Professional Documents
Culture Documents
We take up Part II of the lectures on Remedial Law. You are through with Part I - criminal
procedure and evidence. You were forced to read criminal procedure ahead of civil procedure
because that is the curricula that is required by the board of legal interpretation for law
schools. You see, criminal procedure is taken up in 2 nd year - much ahead of civil procedure.
Criminal procedure really is taken up by 2 nd year law students and then civil procedure is
taken up by 3rd year law students. The other reason why there was a lecture on criminal
procedure ahead of civil procedure is to emphasize that, although learned in criminal procedure
that, generally, the criminal action carries the civil aspect of the case, with regard to the civil
aspect of the case, we usually do not apply the rules for civil procedure.
X X X the defendant - the accused -, after he enters the plea of not guilty, is not required to file
an
answer
to
the
civil aspect of the case. It is enough that he pleads not guilty. That plea of not guilty is also
a
denial
of
this
probable civil remedy. This is also the reason why, in a civil aspect that is brought along by the
criminal
action,
we dont apply the rule on specific denial. This is required in civil cases. In a criminal case,
the
plea
of
[not]
guilty is not considered a specific denial if we apply the rules on civil cases because the plea of
not
guilty
will
if there is a plea of not guilty, the court cannot compel the accused to explain why he is entering
such
plea.
If
he
chooses to plead not guilty, the court can do nothing about it. The court cannot ask the
accused:
what
are
your
reasons? What are your defenses? Unlike in a purely civil action where there is a civil complaint
filed
against
the
defendant and the defendant simply tells the court in his answer, I deny liability. If we apply
civil
procedure,
that is a judicial admission of liability. In fact, that kind of denial in a civil case may lead to a
judgment
on
the
pleadings. In civil, purely civil cases, - not the civil aspect of a criminal case - there is always a
need
for
specific
denial which is not, again, required in the civil aspect of a criminal case. So do not have the
impression
that
although a criminal case carries with it, generally, the civil aspect of the case We dont apply
civil
procedure
to
the civil aspect. That criminal case which carries with it the civil aspect will always be
governed
by
criminal
The only difference, probably, that can be cited with respect to procedural rules governing the
civil
aspect
of
criminal case will be the quantum of evidence. You learned in criminal procedure that the guilt
of
the
accused
shall be demonstrated by proof beyond reasonable doubt. But in so far as the civil
aspect
of
the
case
is
concerned, the quantum should only be preponderance of evidence. So that, in a criminal case,
it
is
very
likely
that the accused will be acquitted of the crime but he can be held civilly liable because the
quantum
of
evidence
used, in so far as the civil aspect, is not proof beyond reasonable doubt but only preponderance
of evidence.
But just like in criminal procedure, we always start with the topic on jurisdiction of courts.
With
respect
to
jurisdiction over civil actions, we have several laws governing jurisdiction of courts in civil cases.
Primarily, we have the Constitution. And then we have the Judiciary Act of 1948 - that is R.A. 296.
And
then
we
have
this
B.P.
129 - the Judiciary Reorganization Act - and its amendments. And then we have the law
creating
the
family
court - I think it was in 1997. And then the law creating the Sandiganbayan. Because we have
so
many
substantive laws governing jurisdiction of courts X X X identified the general law on jurisdiction in
this
country.
The general law on jurisdiction in our country is B.P. 129. All other laws are special laws
governing
jurisdiction.
So that if you find the conflict between B.P. 129 and the special law on jurisdiction, we just
apply
the
rule
on
statutory construction: the special law prevails over the general law. A good example is the
provision
in
B.P.
129
on the jurisdiction of a regional trial court. X X X In testing the jurisdiction of a regional trial court,
B.P.
129
says
that a Regional Trial Court exercises exclusive original jurisdiction over the enumeration of cases,
one
of
which
is cases which were cognizable by the then Juvenile and Domestic Relations Court. So we have
all
these
in
the
129
provided
of
that,
thereafter,
the
the
Juvenile and Domestic Relations Court shall be exercised by the Regional Trial Court in the
concept
of
exclusive
original jurisdiction. But X X X in the Family Court law, which is a special law, it is provided that a
Family
Court
has exclusive original jurisdiction over cases involving marriage, adoption, guardianship of
minors,
criminal cases and civil cases that involve a minor. There is then a conflict now between B.P.
129
and
the
law
creating the Family Court. But since the law creating the Family Court is a special law, its
provisions
will
prevail
over that of B.P. 129. That is why these civil cases in adoption they are no longer cognizable
by
the
Regional
We also meet in our classroom discussion the legal maxim that jurisdiction is a matter of
substantive
law.
But
that is not necessarily true. What is governed by substantive law, in so far as jurisdiction
is
concerned,
is
jurisdiction over the subject matter and over the nature of the case. This is the aspect of
jurisdiction
that
is
governed by B.P. 129 and the other substantive laws on jurisdiction. There are other aspects of
jurisdiction
aside
from jurisdiction over the subject matter or over the nature of the action. One aspect of
jurisdiction
is
jurisdiction
over the person of the litigants. That is not governed by B.P. 129. That is governed by the
Rules
of
Court.
Another one is jurisdiction over the property involved. That is also not governed by B.P. 129.
Its
governed
by
the Rules of Court. Jurisdiction over the issues of a case - that is not governed by B.P. 129. That
is
governed
by
the Rules of Court. So jurisdiction, as part of substantive law, is limited to the authority of a court
to
decide
in
so
far as the subject matter is concerned or the nature of the action. But when it comes to
jurisdiction
over
the
person of the plaintiff, jurisdiction over the person of the defendant, jurisdiction over the
issues these are aspects of jurisdiction that are governed by procedural law - mostly, by the
Rules of Court.
Youll also notice that in B.P. 129 that B.P. 129 does not mention anything about the Supreme
Court.
B.P.
129
begins with the Court of Appeals and goes down to the Regional Trial Court, the inferior courts,
and
in
the
last
part, there is a mention of the Sharia Court. So where does the Supreme Court derive its
authority in exercising jurisdiction over the subject matter of the case or over the nature of
the
action?
Of
course,
it
is
vested
by
the
Constitution itself. But if we read the Constitution on the jurisdiction of the Supreme Court,
the
Constitution
classifies the jurisdiction of the Supreme Court only into 2 kinds, that is: original jurisdiction X X X
and
appellate
jurisdiction. But the Constitution does not say that the original jurisdiction of the Supreme
Court
is
exclusive
its just plain original. The Constitution does not also tell us that the appellate jurisdiction of the
Supreme
Court
is exclusive appellate. It only says that Supreme Court exercises appellate jurisdiction over the
following
cases.
We now ask whether the jurisdiction of the Supreme Court is exclusive or coordinate with other
courts.
And
yet,
in most law books, there is always an item concerning exclusive original jurisdiction of the
Supreme
Court
and
also exclusive appellate jurisdiction of the Supreme Court. The basis of all these commentary is
the
old
Judiciary
Act of 1948. The Judiciary Act of 1948 talks about the Supreme Court. It confers jurisdiction
upon
the
Supreme
Court in a very thorough manner such that the Judiciary Act of 1948 provides for
exclusive
appellate
jurisdiction, exclusive original jurisdiction of the Supreme Court. In other words, we still enforce
and
recognize
the Judiciary Act of 1948. It has not been repealed by the Judiciary Reorganization Act. B.P.
129
did
not
repeal
the old Judiciary Act. The old Judiciary Act is still in force. But whats repealed by B.P. 129, in so
far
as
the
old
Judiciary Act is concerned, are provisions of the Judiciary Act of 1948 which are inconsistent with
B.P.
129.
So
do
not be of the impression that we no longer have the Judiciary Act of 1948. We still enforce
and
recognize
the
Judiciary Act of 1948. The best argument to support this statement is found in Sec. 9 of B.P. 129.
If
you
read
Sec.
9, thats the section providing for the jurisdiction of the Court of Appeals. In Sec. 9 of B.P.
129,
there
is
an
enumeration of cases that are allocated to the Court of Appeals exercising original
jurisdiction
and
exclusive
appellate jurisdiction. It is in that last part of Sec. 9. That part which talks about appellate
jurisdiction
of
the
Court of Appeals. We notice a clause in Sec. 9 saying that the Court of Appeals exercises
appellate
jurisdiction
over cases decided by the Regional Trial Court or quasi-judicial bodies in said laws that are
assigned
to
the
Supreme Court under the provisions of the Judiciary Act of 1948. Thats the best proof that the
Judiciary
Act
of
1948 is still in force. It is expressly recognized as existing up to the present by the provisions of
B.P. 129.
When it comes to the jurisdiction of the Supreme Court under the Constitution as stated,
the
Constitution
provides for a limited number of cases over which the Supreme Court can exercise original
jurisdiction
and
over
limited number of cases over which the Supreme Court can exercise appellate jurisdiction.
And
as
we
said
earlier, these are not exclusive. The exercise of original jurisdiction is not exclusive. The
exercise
of
appellate
jurisdiction by the Supreme Court as provided by the Constitution is likewise not exclusive.
Why
do
we
say
this? We have to read the provisions of the Constitution together with the provisions of B.P. 129
in
allocation
of
jurisdiction with the other courts. The cases that are assigned to the Supreme Court in the
exercise
of
its
original
jurisdiction involve cases involving ambassadors, ministers and consuls. And then theres also
the
vesting
upon
the Supreme Court of original jurisdiction over cases involving petitions for certiorari, petition for
mandamus
X X. If we read the provisions of the Constitution together with B.P. 129, we will find out that the
same authority is given by B.P. 129 to other courts like the Court of Appeals. Again, in Sec. 9, B.P.
129
provides
that
the
Court
of
Appeals also exercises original jurisdiction over petitions for certiorari, prohibition, and
mandamus,
quo
warranto, or habeas corpus. And then under the Chapter on the jurisdiction of the Regional Trial
Court,
B.P.
129
also vests upon the Regional Trial Court a similar authority. The Regional Trial Court shall
exercise
original
jurisdiction over petitions for certiorari, prohibition, and mandamus, and quo warranto. So if
we
take
the
Constitution together with B.P. 129, there are, in effect, 3 courts in our judiciary which
exercise
original
jurisdiction over these petitions for certiorari, prohibition, mandamus, quo warranto, habeas
corpus.
They
are
the Supreme Court, Court of Appeals, and the Regional Trial Court. Which means to say,
theoretically,
that
if
petitioner feels that his rights have been violated lets say through a grave abuse of discretion
committed
by
lower court, he can file a petition for certiorari or prohibition or mandamus against this judicial
officer
with
the
Supreme Court, or with the Court of Appeals, or with the Regional Trial Court upon his choice.
Theoretically,
that is the implication where the Constitution and B.P. 129 have given 3 different courts a
similar
jurisdiction
over petitions for certiorari, prohibition, and mandamus. So for purposes of jurisdiction, there is
nothing
wrong
if, for instance, there is a case pending before an inferior court (a Municipal Trial Court or a
Municipal
Circuit
Trial Court) and this inferior court gravely abuses its discretion amounting to lack of
jurisdiction,
and
the
aggrieved litigant decides to file a petition for certiorari or prohibition or mandamus directly
to
the
Supreme
Court. There is nothing wrong with that theoretically in so far as the issue of jurisdiction is
concerned.
Because
the Constitution has vested upon the Supreme Court original jurisdiction to entertain these
petitions
together
with the Court of Appeals and together with the Regional Trial Court. But the choice given by
B.P.
129
and
the
Constitution over the jurisdiction of these petitions is only theoretical. It has been greatly
limited
by
certain
procedural rules. That is with respect to certiorari, prohibition, and mandamus. The
limitation
is
known
as
hierarchy of courts. Certiorari, prohibition, and mandamus, procedurally, are governed by Rule
65.
If
you
read
Rule 65, you will meet a section, I think its Sec. 4, which speaks about hierarchy of courts.
This
is
limitation
given to the right of a petitioner to file a petition directly with the Supreme Court. Thats a
petition
for
certiorari,
prohibition, or mandamus, or even quo warranto. While theoretically we can file the case
with
the
Supreme
Court, we should follow the procedural principle of hierarchy of courts. In Rule 65, it is expressly
provided
that
petitions for certiorari, prohibition, and mandamus would be filed directly with a Regional Trial
Court
or
the
Court of Appeals. If we analyze carefully Sec. 4 of Rule 65, that is a severe limitation of the right
of
an
aggrieved
party x x x as provided for in the Constitution. So although one of the basic principles why
Congress enacted
B.P. 129 was to do away with the concept of concurrence in jurisdiction, B.P. 129 has not been
able
to
do
away
entirely with concurrent jurisdiction. B.P. 129 does not use the word concurrent in vesting
jurisdiction
courts. The
jurisdiction,
upon
law
classifies
the
the
jurisdiction
only
into
original
original
jurisdiction, appellate
and
exclusive, appellate and exclusive. Unlike in the past, under the old Judiciary Act of 1948,
where
the
law
expressly contained provisions that conferred concurrent jurisdiction over certain cases upon
different
courts
which resulted, really, in confusion. Thats one of the purposes why we now have the Judiciary
Reorganization Act - to do away with concurrence in jurisdiction. Generally, B.P. 129 has been
able to do away with this concept in concurrence of jurisdiction except with respect to certiorari,
prohibition, and mandamus, quo warranto, and habeas corpus since the Constitution and B.P.
129 allocate original jurisdiction upon 3 courts X X X, then it is safe to conclude that these 3
courts exercise original and concurrent jurisdiction over these petitions.
With respect to the Court of Appeals, B.P. 129 classifies the jurisdiction of the Court of Appeals
into
original
and
exclusive jurisdiction, original jurisdiction, and then exclusive appellate jurisdiction. With respect
to
the
original
and exclusive jurisdiction of the Court of Appeals, there is only 1 case over which the Court
of
Appeal
can
exercise exclusive original jurisdiction. And that is annulment of judgment of a Regional Trial
Court.
Because
the Constitution as well as B.P. 129 provide for certain cases only that could be adjudicated
by
the
Supreme
Court and by the Court of Appeals in the exercise of their original jurisdiction, we cannot
classify
the
Supreme
Court and the Court of Appeals as courts of general jurisdiction although they are the 2
highest
courts
of
the
land. The Supreme Court, although it is the Supreme Court, is not a court of general jurisdiction.
It
is
still
court
of limited jurisdiction. Its authority is limited to those provided in the Constitution. Outside of
those
provided
in
the Constitution, the Supreme Court does not exercise jurisdiction over other cases. The same
is
true
with
the
Court of Appeals. In Sec. 9 of B.P. 129, the authority of the Court of Appeals is very limited in so
far
as
exclusive
original jurisdiction is concerned. There is, as we said, only 1 case over which the Court of
Appeals
can
exercise
exclusive original jurisdiction. That is a petition to annul a judgment of a Regional Trial Court.
If the Court of Appeals is given the authority to annul the judgment of a Regional Trial Court,
does
not
the
conferment of this authority carry with it the authority of the Court of Appeals to annul the
judgment
of
an
inferior court, which is lower in rank than a Regional Trail Court? That is a logical argument.
If
the
Court
of
Appeals can annul a judgment of a Regional Trial Court, it should be reasonable that the Court
of
Appeals
can
also annul the judgment of an inferior court. But that is not to construe jurisdiction over the
subject
matter
or
over the nature of the action since the Court of Appeals since a court of limited
jurisdiction.
The
Court
of
Appeals can only annul the judgment of a Regional Trial Court. It cannot annul the judgment
of
an
inferior
court. Does it mean to say that, while the decision of a Regional Trial Court can be annulled in a
case
filed
before
the Court of Appeals, that the decisions of an inferior court is immune from annulment by the
Court
of
Appeals?
That is right. The decision of a Regional Trial Court can be annulled by the Court of Appeals
because
that
is
what B.P. 129 provides. But the decision of an inferior court is immune from annulment
by
the
Court
of
Appeals. But the decision of an inferior court can be annulled by the Regional Trial Court. Why is
this
so?
Is
it
so
provided in B.P. 129 that a Regional Trial Court can annul the judgment of an inferior court?
There
is
really
nothing provided in B.P. 129. If you read B.P. 129, I think the jurisdiction of the RTC starts with
Sec.
19,
there
is
no provision on the Regional Trial Courts jurisdiction which expressly confers upon a Regional
Trial
Court
an
authority to annul a judgment of an inferior court. Nothing is provided in that matter in B.P.
129.
Since we are talking about annulment of judgment, we might just as well go to the procedural
principles
and
X X to Rule 47 - and thats the rule on annulment of judgment. You will notice it is Rule 47 of
the
Rules
which
of
judgment
mentioned in Rule 47 is the annulment of judgment conferred by B.P. 129 to the Court of
Appeals.
In
Rule
47,
we
will notice that the 1 st part - the 1st few sections of that very short rule - speaks about how a
petition
to
annul
judgment of a Regional Trial Court is filed with the Court of Appeals what the Court of Appeals
can
do
after
the filing of the petition. But in the last 2 or 3 sections of Rule 47, the topic is suddenly changed
from
annulment
court.
So
there is a jump from annulment of judgments rendered by the Regional Trial Court to
annulment
of
judgment
rendered by an inferior court. And in these last few sections of Rule 47, the Supreme Court says
that
judgment
of an inferior court can be annulled although there is again no mention B.P. 129. And the
court
that
has
Regional
Trial Court. Can we not challenge the Supreme Court under Rule 47 to a Regional Trial Court
of
authority
to
annul the judgment of an inferior court considering that B.P. 129 does not expressly give to
a
Regional
Trial
Court authority to annul the judgment of an inferior court? We cannot because, under B.P.
129,
there
is
an
allocation to the Regional Trial Court of jurisdiction to entertain and decide all kinds of actions
which
are
not
especially given to other courts. In other words, that provision of B.P. 129 is the justification why
our
books
treat
the Regional Trial Court as a court of general jurisdiction. In fact, it is only the Regional Trial
Court
that
is
considered as a court of general jurisdiction in our system and it is because of that provision in
B.P.
129.
If
you
conceive about an action and then you start asking yourself which court has jurisdiction over
this
action.
But
then you go through a process of elimination. If you entertain the idea of going to the Supreme
Court,
then
And
you
then
authority
you
eliminate
the
Supreme
Court
under
if
it
has
no
the
Constitution. Then you go to the Court of Appeals. Then you read B.P. 129. If, under B.P.
129,
the
Court
of
Appeals does not have jurisdiction then it does not really have jurisdiction. Then you go to an
inferior
court.
If
an inferior court also does not have jurisdiction, then you can be sure it is a Regional Trial
Court
that
has
jurisdiction over the case. That is the principle is followed by Rule 47 when the Supreme Court,
in
sections of Rule
inferior
the
last
few
it
is
Regional Trial Court that has exclusive original jurisdiction. Because while there is an action
known
as
annulment of judgment rendered by an inferior court, since substantive laws have not
allocated
authority
to
decide these cases to any other court, then it follows that it is a Regional Trial Court that has
jurisdiction
over
these cases.
In our study of Rule 47, the threshold case that you probably read or was assigned to read is that
case
of
Islamic
Dawah v. Court of Appeals. In that case, the Supreme Court traced the history of annulment of
judgment as an action. The Supreme Court mentioned that in the past, before B.P. 129, the
Supreme
Court
had
from
the
start
recognized the propriety, the regularity of filing a petition for the annulment of judgment
rendered
by
court.
And before B.P. 129, the Supreme Court said that annulment of judgment of an inferior court can
be
entertained
by a Regional Trial Court. How about a judgment rendered by a Regional Trial Court? Can it be
entertained
by
coordinate court? By another Regional Trial Court? The Supreme Court said yes because a
Regional
Trial
Court
is a court of general jurisdiction. Thats the reason why in B.P. 129, the Court deemed it
necessary
to
incorporate
this provision giving exclusive authority to the Court of Appeals to annul a judgment rendered by
the
Regional
Trial Court - to do away with the anomalous situation then obtaining, before B.P. 129, where a
Regional
Trial
Court can annul a judgment rendered by another Regional Trial Court. Because there was no
specific
provision
in substantive law which allocated unto other courts this authority to annul a judgment of a
Regional
Trial
Court. So, because of B.P. 129, we now have a situation where the Court of Appeals can annul the
judgment
of
Regional Trial Court expressly provided. And it is a Regional Trial Court that can annul the
judgment
of
an
inferior court.
How about the Court of Appeals? Can the Supreme Court annul a judgment of the Court of
Appeals,
given
that
the Supreme Court is the highest court of the land? The answer is no. Because there is nothing
provided
in
the
Constitution which gives to the Supreme Court authority to annul a judgment of the Court of
Appeals.
So
while
we have an action to annul a judgment of a Regional Trial Court, an action to annul the
judgment
rendered
by
an inferior court there is no recognized action, under the Constitution or under B.P. 129 or
under
the
Judiciary
Act of 1948, authorizing the Supreme Court to annul the judgment rendered by the Court of
Appeals.
Although
there is 1 isolated decision by the Supreme Court which mentioned that the Court of Appeals
itself
can
annul
its
own decision. But that is not so provided in B.P. 129. If we rely solely on substantive laws like
the
Constitution
and B.P. 129, there is no such action as annulment of judgment rendered by the Court of
Appeals.
It
does
not
mean to say that the judgment of the Court of Appeals is immune from annulment. There
could
still
be
an
annulment if the Supreme Court will exercise what we call its equity jurisdiction. Rule 65, most
likely,
could
be
remedy in order to annul the judgment of the Court of Appeals based on the same grounds
that
are
given
in
Rule 47. But there is no actual, recognized by substantive law, that is filed for the purpose
of
annulling
the
judgment of the Court of Appeals. But B.P. 129 recognizes the propriety of a petition to annul
the
judgment
rendered by the Regional Trial Court. It also recognizes the propriety of filing an action to annul
the
an inferior court.
judgment
of
If a judgment of a Regional Trial Court, if a judgment of an inferior court can be the subject of
annulment
by
the
Court of Appeals or by the Regional Trial Court, as the case may be, can we not also seek the
annulment
of
judgment rendered by a quasi-judicial body or an administrative agency? After all, these quasijudicial
bodies,
they also exercise the functions of a court. That is, the adjudicate; they determine the rights
and liabilities of the litigants in the cases that are presented before them. This is also a settled
issue. Annulment of judgment under
B.P. 129, as procedurally explained by Rule 47, does extend to annulment of judgment of quasijudicial
bodies.
unless
the
law creating the quasi-judicial body or a chapter of that administrative body allows the
petition
to
be
filed
for
the annulment of these decisions of quasi-judicial bodies. In other words, we cannot file a
petition
under
Rule
47
for the annulment of the decision of a Civil Service Commission or a Securities and Exchange
Commission.
You
will notice that in Rule 47, which follows, literally, the provisions of B.P. 129, it is provided that
Rule
47
refers
to
an action filed by a petitioner to annul the judgment rendered by a Regional Trial Court in a
civil
case.
That
is
clearly provided in Rule 47, which is what, literally, what B.P. 129 provides. B.P. 129 provides
that
the
Court
of
Appeals can annul a judgment of a Regional Trial Court. Now, the procedure, as given in Rule 47,
is
the
Court
of
Appeals can allow the judgment of a Regional Trial Court in a civil action. So if the action is not a
civil
action,
it
Since Rule 47 says that the annulment contemplated in B.P. 129 - the authority given to the
Court
of
Appeals
to
annul the judgment - refers to a judgment of a Regional Trial Court in a civil action. Does it mean
to
say
that
the
judgment of a Regional Trial Court acting as a criminal court cannot be the subject of annulment
under
Rule
47?
You know very well that a Regional Trial Court could act as a civil court and it could also act as a
criminal
court
because the Regional Trial Court exercises original jurisdiction over both civil actions and criminal
actions.
With
respect to the exercise by the Regional Trial Court of authority over civil actions, the decision of a
Regional
Trial
Court in these civil actions could be the subject of annulment of judgment by the Court of
Appeals under Rule
47. But if the decision rendered by a Regional Trial Court is a decision in a criminal case,
even
if
we
can
challenge the validity because of the lack of jurisdiction or collusion or fraud, if the decision
rendered
by
the
X [Regional Trial Court] is a decision in a criminal case, we cannot use Rule 47. Rule 47 is not a
remedy
to
annul
a judgment rendered by the RTC in the exercise of its jurisdiction as a criminal court. So you do
away
with
the
impression that Rule 47 is a remedy to annul a judgment rendered by a Regional Trial Court
in
all
kinds
of
actions. Sec. 1 of Rule 47 is very clear. The decision of the Regional Trial Court must be in a
civil
case
so
that
it
can be the subject of annulment under B.P. 129, in relation to Rule 47. Does it mean to say
then
decision
of
Regional Trial Court in a criminal case cannot be annulled? The answer is yes, under Rule 47. But
a
decision
of
Regional Trial Court in a criminal case can be annulled but not under Rule 47. It can still be
annulled
by
filing
petition for habeas corpus. Habeas corpus is the equivalent of annulment of judgment rendered
by
the
RTC
in
civil case because B.P. 129 is very clear that, in relation to Rule 47, what can be annulled under
Rule
47
is
only
decision of a Regional Trial Court in a civil case. If a party desires to challenge the validity
of
decision
rendered by the Regional Trial Court in a criminal case, he should not resort to Rule 47. He should
file
petition
Is there a difference actually between Rule 47, that is a petition to annul the judgment
rendered
by
Regional
Trial Court in a civil case, to a petition for habeas corpus, which is a special proceeding but
designed
to
set
aside
the decision of a Regional Trial Court in a purely criminal case? There are substantial differences.
Annulment
of
judgment under Rule 47 is what we call as a direct attack on a final and executor judgment.
The
only
purpose
why a party X X X resorts to Rule 47 is to have the decision declared null and void - nullified and
set
aside.
But
in a criminal case where the decision of the RTC may not be valid because of the same reasons
given
in
Rule
47
lack of jurisdiction or extrinsic fraud - the remedy is habeas corpus which is not a direct attack on
the
judgment
rendered by a Regional Trial Court. Habeas corpus, in other words, is an indirect attack on the
judgment
of
Regional Trial Court in this criminal case. Why is it an indirect attack unlike annulment, which is a
direct
attack
Court
in
criminal case, the principal relief which the petitioner in habeas corpus seeks is to declare that
the
petitioner
has
been deprived of his liberty unlawfully - unlawful deprivation of a right that is the principal
relief
which
habeas corpus seeks. It is not principally to set aside a judgment of a Regional Trial Court in
that
criminal
case.
So that if you compare these remedies which seek to nullify or set aside the judgment of a
Regional
Trial
Court
in a civil case and in a criminal case, the remedies of the petitioner in a criminal case are
more
advantageous
attack
on
the
judgment. While in a criminal case, the detainee or prisoner can challenge the validity of
the
judgment
of
conviction although he is not attacking directly the validity of the judgment of conviction. He
is
attacking
the
You will also notice that Rule 47 is inserted in the 16 or 17 rules concerning appeals. In our Rules,
the
procedure
for appeal starts with Rule 40 and it ends up with Rule 56. So from Rule 40 up to Rule 56, the
topic
of
these
16
or
17 different rules is always cases on appeal. Except now Rule 47, thats why the insertion is
quite
scandalous.
Annulment of judgment should have been included in the enumeration of special civil
actions
because
it
is
incorporated in the Rules on appeal but annulment of judgment has nothing to do with
appeals.
B.P.
129
considers annulment of judgment as an original action to be filed with the Court of Appeals or
with
Regional
Trial Court. And in Rule 47, particularly applied to a petition for annulment commenced
before
the
Court
of
Appeals, you will notice that some of the features of a special civil action are carried by a
petition
to
annul
the
judgment filed with the Court of Appeals. For instance, if a petition to annul a judgment of a
Regional
Trial
Court in a civil case is filed before the Court of Appeals, the Court of Appeals has the
authority
to
outrightly
dismiss the petition. That is similar to Rule 65 where a court can outrightly dismiss a petition for
certiorari
if
it
is
not meritorious on its face. That is, of course, provided in Rule 47. The Court of Appeals can
outrightly
dismiss
petition to annul a judgment. So if the petitioner has in mind stopping the execution or
preventing
the
execution
of a final and executory judgment rendered by the Regional Trial Court by making use of Rule 47,
there is a big chance he will not succeed because the Court of Appeals could outrightly dismiss a
petition to annul a judgment filed before the Court of Appeals.
Since the judgment sought to be annulled under Rule 47 is a final and executor judgment,
will
the
filing
of
petition to annul the judgment be a good reason for the trial court to deny a motion for
execution?
Even
if
there
is a petition to annul a judgment rendered by the Regional Trial Court, if that decision has
become
final
and
executory and it is not the subject of annulment of judgment, Rule 47 is not a justification for
the
trial
court
not
to execute its final and executor judgment. So the prevailing party can still move for the
execution
of
that
of
the
Regional Trial Court. The only remedy available to a petitioner in annulment of judgment
before
the
Court
of
temporary
restraining order. Thats why in most petitions to annul a judgment filed with Court of Appeals,
the
petitioner
variably applies for the issuance of a TRO or preliminary injunction. Without these provisional
remedies,
even
if
there is a petition with the Court of Appeals for the annulment of judgment of a Regional Trial
Court
in
civil
case, that petition to annul a judgment will not prevent the execution of that final and executor
judgment.
Under Rule 47, in relation to B.P. 129, on annulment of judgments commenced before the Court
of Appeals, is it correct to say that only the litigants before the Regional Trial Court can make
us of annulment of judgment? That question has also been answered by the Supreme Court in
the threshold case of Islamic Dawah v. Court of Appeals. That case ruled that annulment of
judgment, as contemplated in B.P. 129 and also as envisioned in Rule 47, does not prohibit a
stranger from filing a petition to annul a judgment rendered by a Regional Trial Court although
the petitioner may not have been a litigant in that particular case. He can do so as long as he
can show that he will be prejudiced by the execution of the decision sought to be annulled.
You will also notice that the requirements in Rule 47 before annulment of judgment can be
properly
commenced
are very strict. 1 of the requirements is that the petitioner must show that the remedies for
motion
for
new
trial,
that is, petition for relief and appeal, are no longer available through no fault of his own. In
other
words,
if
the
judgment has not yet become final and executor, a litigant cannot make use of annulment of
judgment
because
he can still appeal. He has other remedies. He can file a motion for new trial. If he has filed a
motion
for
new
trial and that motion is denied and he neglects to appeal, so the judgment becomes final and
executory,
can
he
now properly file a petition to annul the judgment? Still no because his failure to appeal was
through
his
own
fault. He could just have appealed the judgment of the court. Let us say that the aggrieved
party
has
failed
to
appeal, has failed to file a motion for new trial and his failure to do so cannot be traced to
his
negligence
or
inexcusable conduct, can he now file a petition to annul the judgment in the Court of Appeals?
Still
the
answer
is
no because there is still an available remedy to challenge a final and executor judgment. And
that is a petition for relief from judgment. The rules in 47 which apply the provision of B.P.
129
on
annulment
of
judgment
rendered by a Regional Trial Court are very, very strict. All the other remedies must not have
been
availed
of
through no fault of the petitioner. So even if we cannot fault the petitioner, as long as petition
for
relief
from
judgment is still a remedy, still available, we cannot resort to annulment of judgment under
47.
In
that
case
of
Islamic Dawah, the Supreme Court said that if we allow a stranger to avail of annulment of
judgment
of
Regional Trial Court in a civil case where he is not a party, then we should not also require
the
petitioner
to
satisfy the requirements like availability, availment of new trial, motion for new trial, or appeal,
or
petition
for
relief from judgment. The reason, according to the court, is that a stranger to a case cannot
possibly
cannot
possibly make use of a motion for new trial or appeal or a petition for relief from judgment
because
these
remedies, under the Rules, are available only to a litigant in a case. If the petitioner is not a
litigant,
he
could
not
If you compare the procedure in Rule 47 between annulment of judgment that is commenced
before
the
Court
of
Appeals and annulment of judgment commenced before a Regional Trial Court, you will
immediately
notice
very significant difference. While the Court of Appeals has the authority to outrightly dismiss a
petition
to
annul
judgment, a Regional Trial Court cannot. So if there is a petition to annul a judgment filed
before
the
Regional
Trial Court and the subject judgment, of course, is one that has been rendered by an inferior
court,
the
Regional
Trial Court has no authority to outrightly dismiss that petition to annul the judgment. In so far
as
the
Regional
Trial is concerned in a petition to annul a judgment rendered by an inferior court, that petition
to
annul
should
be treated just like any other case. So after of the filing of petition to annul, the Regional Trial
Court
will
issue
summons and then, having served upon the respondents, let the respondents file the answer,
and
then
file
the
case, and then render the decision. That is the significant difference between annulment of
judgments
commenced before the Court of Appeals compared to annulment of judgment commenced
before
the
Regional
Trial Court.
In Rule 47, if the judgment is annulled, then it is declared void by the court. So it can no longer
be
enforced
or,
if
that judgment has already been executed, the Court of Appeals or the Regional Trial Court can
order
restitution
of properties if that is still possible. In analyzing Rule 47, the provisions of Rule 47 in relation
to
B.P.
129
on
annulment of judgment conferred upon the Court of Appeals and the Regional Trial Court, I
suggest
that
you
also read a rule in evidence. That is, impeachment of a judicial record which you must have
taken
up.
That
is
in
Rule 132 of Evidence. Impeachment of judicial record. In that evidentiary rule, impeachment of
judicial
record
means to discredit a judicial record. A judgment of a court if, of course, a judicial record. So we
can
discredit
or
set aside a judgment of the court under that principle of impeachment of judicial record. This is
related
to
Rule
47 as well as to the provisions of B.P. 129 on annulment. In B.P. 129, there are no grounds
for
annulment
mentioned at all. The grounds for annulment are contained in Rule 47 and also in Rule 132
of Evidence. If Im not mistaken, that would be Sec. 28 or 29 or 30 of Rule 132 in Evidence.
The topic is impeachment of judicial record. In that evidentiary rule of impeachment of
judicial record, there are 3 grounds
X X X:
collusion. If we compare that to Rule 47, there are only 3 grounds in Rule 47: 1) absence of
jurisdiction over the subject matter, or 2) absence of jurisdiction over the person of the
litigants, and then 3) extrinsic fraud. Rule 47 does not mention anything about collusion as a
ground to annul the judgment. Does it matter? It does not matter. Collusion is encompassed
by the term extrinsic fraud as a ground for annulment of judgment. So there is no conflict
between impeachment of judicial record and the grounds mentioned in Rule 47 for the
annulment of judgment.
We go back to B.P. 129 and talk about the jurisdiction of a Regional Trial Court. With respect to a
Regional Trial Court, the jurisdiction of a Regional Trial Court is founded on certain factors. The
1st one is whether or not an action is incapable of pecuniary estimation. The other one is if the
action is a real action - it involves title to or possession of real property. And then, if it does
not involve real property or the action does not within the concept of incapable of pecuniary
estimation, then it is the amount involved - whether it is properly for the recovery for money
or for the recovery of personal property.
The 1st factor is an action incapable of pecuniary estimation. So if you come across of an action
that
is
incapable
of pecuniary estimation, then that action is cognizable by a Regional Trial Court. Is it correct to
say
then
that
all
actions incapable of pecuniary estimation are cognizable by a Regional Trial Court always?
That
also
is
not
correct assumption. If you read again B.P. 129, there are several actions incapable of pecuniary
estimation
are
not
which
exclusively
cognizable
judgment
by
Regional
Trial
which
Court.
discussed a minute ago Annulment of judgment is not capable of pecuniary estimation but B.P.
129
says
that
annulment of judgment rendered by a Regional Trial Court is cognizable only by the Court of
Appeals.
How
about annulment of an arbitral award by a barangay court which could also be the subject
of
annulment
of
judgment under the Local Government Code? That is not capable of pecuniary estimation.
Is
it
cognizable
exclusively by the Regional Trial Court? The answer is no. Annulment of a judgment or an
arbitral
award
by
only
by
an
inferior court. This is so provided by the Local Government Code. So the Local Government
Code
is
special
law in this matter. If it conflicts with B.P. 129, then it is the special law that will prevail.
Certiorari,
prohibition,
and mandamus. They are actions incapable of pecuniary estimation but they are not
exclusively
cognizable
Regional Trial Court. So the provision in B.P. 129 which allocates to a Regional Trial Court
exclusive
original
jurisdiction over actions which are not capable of pecuniary estimation admits of several
exceptions.
And
these
several exceptions are also found in B.P. 129. So not all actions incapable of pecuniary estimation
are
cognizable
only by a Regional Trial Court. There are such actions not capable of pecuniary estimation
which
are
allocated
not to a Regional Trial Court but to other courts under the provisions of B.P. 129.
With respect to real actions, that is title to or possession of property this is now qualified by the
amendment to
B.P. 129 which expanded the jurisdiction of inferior courts. These are the actions involving title to
or
possession
Trial
Court
exercising exclusive original jurisdiction as long as the assessed value of the property is more
than
P20,000
or
P50,000, as the case may be. So you have to relate it to the expanded jurisdiction of the
inferior
courts.
But
with
respect to unlawful detainer and forcible entry - they are also actions involving possession of
real
property
then they are always cognizable exclusively by an inferior court, regardless of the assessed
value of the property.
Is it possible that an action is a real action and at the same time one that is not capable of
pecuniary
estimation?
The answer is also yes. We have such actions. They are real actions but they are also
incapable
of
pecuniary
estimation. A good example is foreclosure of real estate mortgage since the property in
mortgage
to
be
foreclosed is a mortgage constituted over real property, then that foreclosure of real mortgage
is
real
action
but, at the same time, it is not capable of pecuniary estimation because the issue to be resolved
by
the
court
by
the foreclosure court - is always this issue: does the mortgagee (the plaintiff) have the right to
foreclose?
That
is
both
real action and one that is incapable of pecuniary estimation? What factor will be determinative
of
the
jurisdiction of the court? Will it be the assessed value of the property or will it be the fact that the
issue
involved
is not capable of pecuniary estimation? Again, this is a settle issue. The Supreme Court said
that
if
an
action
carries the feature both of incapable of pecuniary estimation and a real action, like foreclosure of
real
mortgage,
Court
that
will always have jurisdiction over foreclosure of real mortgage even if the assessed value of the
property
sought
to be foreclosed is only P1, 000. As long as the action is foreclosure of mortgage, the action
is
exclusively
cognizable by a Regional Trial Court. So if you find in one action the 2 features which could be
determinative
of
jurisdiction - incapable of pecuniary estimation and real action - the determining factor will
always
be
that
will
have
jurisdiction. The feature of foreclosure of mortgage as a real action will only be important in
determining
the
venue of the action but not the jurisdiction of the court. A similar action which applies the
same
principle
is
expropriation of a piece of land. Expropriation of a piece of land is also a real action because it
involves
title
to
or
possession of real property. But expropriation of a piece of land will not take into account the
assessed
value
of
the land sought to be expropriated for purposes of determining jurisdiction over the case.
According
to
the
Court, expropriation, although it could be a real action, is also an action that is not capable
of
pecuniary
estimation. So expropriation of real property, even if the assessed value again is P1,000,
will
always
be
sought
be
recovered if it is purely a claim for money. Or if it is recovery of personal property, it is the value
of
the
personal
property according to the complaint. But when it comes to a pure collection suit - that is,
the
creditor
is
interested only in collecting money from the defendant - there are exclusions given in the
amendment
to
B.P.
129. Excluding charges, interests, attorneys fees, and damages. So the determining factor in a
complaint
for
the
sought
to
be
recovered. So that if the amount sought to be recovered by the plaintiff in his complaint against
the
defendant
is
P1,000,000 - a total of P1,000,000 - the conclusion that the case is cognizable by the Regional
Trial
Court
will
not
inferior
court
if the P1,000,000 is the aggregate of the principal, the interest, the costs, the damages, the
attorneys
fees
then
we have to find out the principal which the plaintiff seeks to recover. If the principal is only
P200,
000
but
P800,000 represent interest, damages, costs, and other excluded items, that will be
cognizable
by
an
inferior
to
recover
But
under
the
amendment to B.P. 129, we should exclude the item of damages. Supposing the complaint is
purely
for
damages, and the plaintiff seeks to recover actual damages, moral damages, temperate
damages,
exemplary
damages How will we now ascertain the jurisdiction of the court? We cannot use the rule of
exclusion
because
what the plaintiff seeks as are relief is the recovery of damages. Let us say that the plaintiff
seeks
P100,000
to
actual
damages,
recover
P500,000
exemplary
moral
damages,
and
then
another
damages.
P500,000
The
aggregate will be P1.1M but the complaint says that, principally, the plaintiff seeks to recover
actual
damages
of
P100,000. With what court do we file that complaint? Again, this is settled. It should be with the
Regional
Trial
Court. When it comes to complaints purely for damages, the determining factor, in so far as
jurisdiction
of
courts is concerned, is the aggregate amount of damages - the totality of the damages. So
even
if
the
complaint
has specified the amount of damages for each aspect - actual, moral, exemplary, temperate
damages
the
court
that will acquire jurisdiction is the court that has authority to rule on the aggregate totality of
all
the
damages
With respect to recovery of personal property For instance, the recovery of a car. Do we take
into
account
the
assessed value of the car in order to ascertain the jurisdiction of the court? The answer is no.
B.P.
129
and
the
amendment to B.P. 129 takes into account the assessed value for purposes of jurisdiction for
real
properties.
With respect to personal properties, the assessed value of that personal property has
nothing
to
do
with
jurisdiction of the court. So instead of using as a standard the assessed value, when it
comes
to
personal
property, the determining factor will be the value of the personal property according to the
complaint. In other words, in our complaint for the recovery of a car, replevin for instance If the
plaintiff
wants
the
case
to
be
tried
by the Regional Trial Court, all that he needs to do is state in his complaint is that the value of
the
car
is
P800,000
although it may not be true. Although it may be a false figure. When it comes to personal
property,
we
always
rely on the variation given by the plaintiff in his complaint. So the jurisdiction of the court will
depend
solely
on
the allegations in the complaint. Whether the allegation is true or false, the jurisdiction will be
determined
by
the
figure given in that complaint, with respect to personal properties. Supposing the defendant
challenges
the
valuation given by the plaintiff in his complaint by telling the court that the car could not be
worth
P800,
000
because it is a 30 year old car the true value of the car is only P100, 000. And then the
defendant
is
willing
to
submit evidence to show the true value of the car. Will the court entertain the defendants move?
No.
The
court
will not. The jurisdiction of the court will be based solely in the allegations in the complaint. In
civil
cases,
after
the court has acquired jurisdiction over this particular complaint, relying on the allegations
contained
in
the
complaint, it is very likely that, after trial, the evidence submitted by both sides will convince the
court
that
the
true value of the car is really P100, 000. Can the Regional Trial Court decide the case
although
it
is
now
the
conclusion by the Regional Trial Court that the value of the car is only P100,000? The answer is
yes.
If
Regional
Trial Court acquires jurisdiction over a complaint to recover a car which, according to the
complaint
is
valued
at
P800, 000, the Regional Trial Court continues to exercise jurisdiction over the case until it is
finally
decided,
regardless of the finding of the court that the value of the car is only P100, 000. You know
that
principle
very
well. That is called adherence to jurisdiction. Once the court acquires jurisdiction over the
car,
it
cannot
be
ousted of that jurisdiction. It will continue to exercise jurisdiction over the case until the
case
is
finally
adjudicated. The only means by which we can oust the court - the Regional Trial Court - of
jurisdiction
over
the
case is if Congress enacts a law saying that the jurisdiction of the court will not be based solely in
the
allegations
in that complaint. In other words, if Congress decides to abandon the principle of adherence to
jurisdiction
then
it is possible that the RTC will be deprived of jurisdiction. But as long as the principle of
adherence
to
jurisdiction is not abandoned by Congress, then if the court acquires jurisdiction over a
particular
case,
the
exercise by the court of the jurisdiction of that case continues until that case is finally decided.
With respect to inferior courts Notwithstanding the expansion of the jurisdiction of the
inferior
courts
Meaning to say that in the expanded jurisdiction of inferior courts, practically all cases that can
be
decided
by
Regional Trial Court can now be decided by an inferior court, depending only on the amount
involved
upon
the value of the property. So real actions - accion reinvindicatoria, accion publiciana - they are all
cognizable
by
inferior courts now depending upon the assessed value of the property. Even estate
proceedings
can
now
be
entertained by an inferior court under its expanded jurisdiction. Does it mean to say that an
inferior
court
which
exercises expanded jurisdiction can now be treated as a court of general jurisdiction? Its still a
court
of
limited
jurisdiction. It can only take cases that are given to it by substantive law. The provision of B.P.
129
which
makes
a Regional Trial Court as a court of general jurisdiction is not given to an inferior court. In B.P.
129, in the enumeration of cases exclusively cognizable by a Regional Trial Court is an item
which says the Regional Trial Court shall exercise exclusive original jurisdiction over all action
that are not especially assigned to any other court. That provision in B.P. 129 is not contained
in the allocation of jurisdiction to inferior courts. So inferior courts continue to exercise
jurisdiction only over cases that are assigned to it under B.P. 129 and special laws, or
amendment to B.P. 129.
You will also notice that in B.P. 129, with respect to the vesting of authority to inferior
courts, there is an identification in Sec. 33 of what we call the totality test in determining
jurisdiction. In Sec. 33, the totality test is just a proviso with respect to ascertainment of
jurisdiction of courts. The totality test given in B.P. 129 is more encompassing than the totality
test given in the Rules of Court. We also have a totality test in the Rules of Court. That is in Rule
2. There is a totality test with reference to the section of joinder of causes of action. If you
are going to compare the totality test given in the Rules of Court, under the section on joinder
of causes of action, the totality test in the Rules of Court appears to be of a more limited
scope. In B.P. 129, the totality test refers to all claims of causes of action that are embodied in
1 complaint, whether they pertain to the same or different parties or they arise out of the
same or different transaction. X X X If you compare it to the totality test in Rule 2, the totality
test in Rule 2 speaks only about causes of action for money. The totality of money claims will
be determinative of the jurisdiction of the courts.
In B.P. 129, with respect to inferior courts, we also meet the term delegated jurisdiction to
inferior courts. And also
the
interlocutory
jurisdiction
to
inferior
courts
or
special
That is the delegated jurisdiction of an inferior court. In habeas corpus proceedings, there is also
a
mention
of
an
inferior court trying a habeas corpus proceeding. It does not mean to say that habeas corpus is
cognizable
also
by an inferior court. The authority of an inferior court to entertain a petition for habeas
corpus
refers
to
situation where a petition for habeas corpus is filed with the proper court - usually a Regional
Trial
Court.
But
there are no judges available to act on the petition. But that petition for habeas corpus is
filed,
still,
with
Regional Trial Court which has jurisdiction over petitions for habeas corpus. So the petition for
habeas
corpus
is
filed with the Regional Trial Court but the clerk of court finds out that there are no RTC judges
that
are
available
- they are absent or are on leave - that can entertain a petition for habeas corpus. This is the
remedy provided in B.P. 129. Attention to habeas corpus cases is urgent under our laws. In
fact, habeas corpus proceedings are always given preference by law. So if there are no RTC
judges that are available, the next best thing to do X X X is to transfer the petition filed already
with a Regional Trial Court to an inferior court. That provision in B.P. 129 does not authorize the
filing of a petition for habeas corpus directly with an inferior court. A petition for habeas corpus
filed directly with an inferior court can be challenged on jurisdictional grounds because B.P. 120
does not vest unto an inferior court an authority to entertain a petition for habeas corpus. It is
only under circumstances where there are no other RTC judges available to entertain a petition
for habeas corpus. X X X the judge can now analyze and study the propriety of issuing the writ of
habeas corpus.
We need a break in the meantime but before we have a break, I will give you this riddle and
then you try to answer it. Just like the riddle in grade school X X X. The question is: who am I?
I am just an object. A face in a crowd. Nothing outstanding about it about my form about my
look. But, usually, Im between 4 inches to 8 inches long. And both genders, both men and
women, young or old, adore me. And then I, on one end I have a forest of X X X but my friends
usually tell me that I am like a soldier X X X because I am on call 24 hours a day. If there is no
assignment given me, I just hang around I just lie down doing nothing. But when Im giving a
specific assignment, I see to it that Im always ready to complete the X X X. And when I am at
work, I usually go back and forth and that is warm and that is dark. And then when Im through
with my job, my assignment, I always see to it that I give out a sticky X X X white X X X and
then I return to my X X X and then just hang around and just lie doing nothing. Who is this
person or object?
Before we leave jurisdiction altogether, you have to know the meaning of primary
jurisdiction and residual jurisdiction
Residual Jurisdiction is found in appealed cases particularly Rules 41 and 42. It is the jurisdiction
enjoyed by the trial court to act on certain matters even if the case is already on appeal. It is
well explained in Rules 41 and 42. So it is not correct to assume that if a case is decided by the
trial court and the aggrieved party perfects an appeal on time and the jurisdiction over the case
is now assumed by the appellate court, like the Court of Appeals,
that the trial court is divested entirely of jurisdiction even if there is already a perfected
appeal. In Residual Jurisdiction, the trial court continues to exercise jurisdiction over certain
matters for a very limited period of time. And after the expiration of that period, absolute
jurisdiction over the case will now be assumed by the appellate court.
In Primary jurisdiction, this involves quasi judicial bodies, what happens in Primary Jurisdiction is
that
congress
enacts a law which vests jurisdiction under the quasi judicial body to try and decided
cases
which
are
cognizable by regular courts under the provisions of BP 129. The reason why congress usually
enacts these laws is that congress feels that the quasi judicial body is better equipped in
order to decide disputes between the litigants. A good example of a Primary Jurisdiction
conferred by substantive law is the jurisdiction given to a quasi judicial body called HLURB,
this board is given original jurisdiction, in some cases exclusive original jurisdiction, to
adjudicate cases of disputes between a subdivision buyer and a subdivision developer, so if a
subdivision buyer feels aggrieved for the non-performance by the developer of his
commitments under the contract, the buyer should not file the complaint with a regular court
although under BP 129 the regular court may have jurisdiction, usually for breach of contract
the remedies given in the CC would Specific Performance, Recission of Contract or damages for
both cases or damages alone. In this rule on Primary Jurisdiction, these actions will not be
assumed by the regular court although BP129 gives the regular court such authority
particularly the Regional Trial Court. The jurisdiction is given by substantive law to the quasi
judicial body HLURB because the HU
presumably
between the subdivision buyer and developer so that there is a breach by the subdivision
developer of his commitments to the buyer, what the buyer will do is to file a complaint with the
HLURB.
There is one case however decided by the SC, where the subdivision developer filed a
complaint for ejectment against a subdivision buyer because it was the buyer who allegedly
violated the terms of the contract and the developer wanted to recover possession of the
property purchased by the buyer. The subdivision buyer challenged the authority of HLURB
to entertain a complaint for ejectment which under BP 129 is exclusively cognizable by an
inferior court. The SC said the primary jurisdiction of the HLURB does not extend to
complaints for ejectment filed by one party against the other. So that in the case of primary
jurisdiction vested by substantive law to quasi-judicial bodies, the authority of the quasijudicial body is interpreted strictly. Ejectment could really be a dispute between a subdivision
buyer and developer but then when the purpose is to recover physical possession of the property
or even in accion publiciana, the court said that it is the regular court who has authority over the
complaint.
Now we go the Rules of Court. In analyzing the provisions of the 1997 Rules of Court you should
always
bear
in
mind the constitutional limits that are provided by the Constitution to the authority of the SC
on
the
rules
on
pleadings, practice and procedure, like the ROC, the rules should be uniform in all courts of the
same
grade
and
then the rules should provide for a speedy and inexpensive determination of the case and then
the
rules
should
not increase, decrease or modify substantive rights. So if there is any rule on procedure which
violates
any
one
of these limitations given under the Constitution, we may then properly challenge the
applicability
and
validity
of these rules of procedure. There was one litigant who challenged the validity of a Rule in
Criminal
Procedure,
its Rule 115, and Rule 115 of Criminal Procedure really speaks not about procedure but more of
the
rights
of
the
accused. So the party said that Rule 115 should be excluded from the Rules of Court for it is not
procedural
but
substantive. It modifies, increases or decreases the rights of the person given by substantive law.
The SC denied the petition, saying that while the authority of the SC deals with the procedure,
pleadings
and
practice
and
that
substantive rights should not even be covered, the court said that it is practically
impossible
for
rules
of
procedure to be devised without incorporating certain provisions that are concerned with
substantive
law.
The
standard should be if we take the ROC as a whole: are the Rules of Court primarily procedural
in
character?
if
the answer is yes and there are certain provisions which speak about substantive rights or
its
coverage,
that
should not be the justification for deleting the said provisions in the rules of court. The other
justification
given
by the SC is the Civil Code, the CC is substantive law but if we go over the CC, it contains
provisions
which
are
not substantive in character, they are also procedural but that does not make CC a
procedural
law,
its
still
substantive law. Some articles cited by the court which refer to procedural matters are articles
concerning
the
of
unlawful
detainer and forcible entry. But the SC said that we cannot simply say that the CC is no longer
substantive
simply
because there are certain articles that speak about procedural matters. So if you come across
a
provision
of
the
rules of court which violates substantive law in the sense that the rules of court reduces
substantive
rights
or
modifies substantive rights there is a possibility that this provision could be challenged or
deleted
from
the
rules.
For instance, in special proceedings like the settlement of estate of a deceased person there is
a
provision
in
the
rules concerning the filing of claims. You are familiar with the rule that when a person dies and
then
there
is
settlement proceeding that is commenced with the court, the creditors for money arising from a
contract
which
is expressed or implied, should file their claims against the estate, they have no right to file a
civil
action
for
the
recovery of the money claim against the estate of the deceased or against the executor
or
administrator.
Otherwise, if the money claim is not submitted within the period fixed under the rules, the
claim
of
these
creditors will be barred. And then there is another provision that says that if the deceased is a
solidary
debtor
together with another one who is still alive, it is the duty of the creditor to file a claim against
the
estate
for
the
recovery of the whole indebtedness. That is a violation of a principle under the Civil Code which
says
that
when
there is solidary relationship between two debtors, the creditor is given by the CC the
authority
to
file
complaint against any one of the solidary debtors for the recovery of the whole indebtedness. So,
if
we
apply
the
Civil Code provisions, the creditor in the example could file a complaint for the recovery of the
whole
obligation
against the solidary debtor who is still alive, he does not have to file a money claim against
the
estate
of
the
deceased solidary debtor. In several cases which raised this issue, the SC said that the CC
provision
saying
that
creditor can file a complaint against any one of the solidary debtors will not be affected by the
provision
of
the
Rules of Court concerning the filing of claims. This is an example of a provision in the Rules
of
substantially
one
Court
which
reduces the right given by law to a creditor to file a complaint against any
of
the
solidary
These 1997 Rules of Court should be interpreted liberally according to the Rules. But the
interpretation
is
not
liberal interpretation in favor of the plaintiff or in favor of the defendant. A court being an
impartial party to the dispute. The meaning of a liberal interpretation is to promote justice, to
carry out the duty of the SC under the limitations given under the Constitution.
Under the Rules now, a civil action is always commenced by the filing of a complaint. That is
the
general
rule.
There are certin civil actions usually special civil actions which are not commenced
by a filing
of
complaint.
Instead, we file for a petition. But it does not really matter whether we file a petition or a
complaint
when
an
action is sought to be commenced. The filing of a complaint has given rise to the action that
when
compalint
is
filed, the court automatically acquires jursidiction over the person of the plaintiff. So in that
action,
the
only
problem concerning the jurisdiction is the jurisdiction of the court over the person of the
defendant.
But
the
latest decisions, last year the court decided a case where it was held that even if a
complaint
is
filed
before
competent court, if the one who filed the complaint is not authorized to do so, the court
does
not
acquire
jurisdiction over the person of the plaintiff. In fact, the court said that the court does not
even
acquire
jurisdiction to try or adjudicate the case. So the rule that we follow in our procedural principles
which
says
that
the court acquires jurisdiction over the person of the plaintiff through the filing of a
complaint
will
not
necessarily give jurisdiction by the court over the person of the plaintiff. The court can examine
whether
or
not
the filing of the complaint is authorized by the plaintiff. If it is not authorized by the plaintiff, the
court
will
not
acquire jurisdiction over the plaintiff. The court will not even acquire authority to decide the
case.
The
court
is
absolutely without any jurisdiction to try and decide the case if it is demonstrated that the filing
of
the
complaint
In a complaint properly filed in court, that is one filed by the plaintiff himself or with the
authority
of
the
plaintiff, of course the plaintiff under rule 10 has the right to amend that complaint provided that
an
answer
has
The amendment made under Rule 10 is a matter of
If
the
plaintiff
amends that complaint by impleading another defendant, then the court will have nothing to
do
except
accept
the complaint since the amendment is a matter of right. And in so far as that new defendant is
concerned,
the
date of the filing of the complaint will relate back to the date when the original complaint was
filed
unless
new
cause of action is introduced in that complaint. In which case, we dont make use of that relating
back
doctrine.
The classification of actions under the rules is very simple as civil action, a special civil action,
criminal
action
and special proceedings. In the definition of a civil action, it is very clear that we do not
necessarily
follow
the
definition of a cause of action under Rule 2. In Rule 2 a cause of action is defined as a violation
by
the
defendant
of a right belonging to the plaintiff. So for a cause of action to accrue, the plaintiff must allege
that
he
has
right
and that the defendant has violated such right. The indication given by this definition is that
the
right
holder
must wait for a person to violate his right before he can have a cause of action to bring an
action
in
court.
That
concept of a cause of action should always be related to the definition of a civil action
under
section
1.
The
definition of a civil action does not require a prior violation of a right so that the
rightholder
may
have
justification to go to court. The definition of a civil action is one by which a person sues another
for
the
enforcement or protection for a violation or a threat to violate such right. So there is no need
for an actual violation of a right before a case can be properly filed in court. Under the definition
of a cause of action if there is a threat to violate a right, there is already a cause of action.
Our rules of procedure become complicated when there are several rights that are violated by
one
and
the
same
wrongful act. If there is just one wrongful act and there are several rights that are violated, how
many
causes
of
action will accrue? The standard given by decisions of the court is that in order to determine
whether
or
not
several cause of action will arise if there is one wrongful act and there are several right that
are
violated
is
to
determine whether these rights belong to the same person or to different persons. That is the
common
standard
that we apply now. For instance, if a person drives negligently his car, and then he causes,
as
result
of
the
negligent driving, damage or wrecks three cars, how many causes of action will accrue
against
the
negligent
driver? Using the standard given by the court, we have to determine whether the three
cars
belong
to
one
person or the three cars belong three different persons. If the 3 cars belong to only one person,
only
one
cause
of
action will accrue. In other words, the person owning the three cars cannot file an action
one
complaint
for
damages involving the first car and another complaint for damages involving the second car and
another
for
the
third car. That not possible. That is spitting a cause of action because we are talking about
violation
of
rights
in
the concept of a cause of action. The owner of the three cars has only one right that has
been
violated
by
the
wrongful act of the negligent driver. But if these three cars belong to three
the
owner
of
different owners,
the
first car has his own cause the owner of the second has another cause and the owner of the
third
has
his
own
cause of action. And because there are three causes of action that arise belonging to three
different
persons
then
it follows that these three different persons can file separate complaints. They do not have
to
be
joined
as
plaintiffs in one complaint. They can file their own separate complaints before the competent
court.
So
that
if
the
3 cars belong to three different persons, the first owner can file his complaint before the RTC if he
claims
that
the
amount to 500,000. The second car owner can file his own claim
an
inferior
court if the damages suffered by him about only to 200,000. So the filing of these complaints
by
the
different
owners will depend on the amount of damages which each will respectively claim in their
complaints.
The
fact
that there are 3 different causes of action does not mean that the 3 different parties should go
to
the
same
court
in order to protect their interest and recover damages suffered by them. In our first example
where
the
wrongful
act of driving has caused damages to 3 different cars but belonging to the same person, there is
only
one
cause
of
action. This owner of the 3 cars can only file one complaint for the recovery of damages of
his
cars.
Can
he
properly and rightfully go to court right away because his right has been violated by the wrongful
act.
If
we
rely
solely on substantive law, the answer is yes. As long as a right has been violated by the wrongful
act
of
another,
the right holder has the prerogative of going to court for protection and enforcement of his
right.
If
we
apply
procedural principles, the owner may be precluded from filing right away because other
procedural
rules
has
introduced several precedents before a cause of action may accrue and if these conditions are
not
first
satisfied,
the filing of the complaint will be premature. There could be dismissal by reason of prematurity.
And
what
are
So
even
if
right
has been violated and the rightful owner goes to court but the dispute is covered by the
circular
on
prior
barangay conciliation, then there could be reason for the court to dismiss the case or not to
entertain
the
case
and
just tell the parties to undergo barangay conciliation. The other condition precedent given by
both
procedure
and substantive law is an arbitration clause that is usually given in contracts. The arbitration
clause
in
contracts
invariably provide that there is a breach of contract, the innocent contracting party cannot
simply
go
to
court.
The dispute should first undergo arbitration proceedings. If the arbitration clause breached
by
immediately
filing a complaint in court, the court can refuse of try the case and the court can compel the
parties
to
observe
the stipulations under the arbitration clause. The other condition precedent that is purely
procedural
is
the
without
certification on non-forum shopping, and remember that this defect is not curable by
amendment,
the
court
acquires jurisdiction over the case under BP 129, but the court can order the dismissal of
the case for non-observance of the certification as a condition precedent. There is another
condition
precedent
that
is
given
under
political law: Exhaustion of administrative remedies for the accrual of a cause of action.
Under
the
civil
code,
another condition precedent for members of the same family. It must be shown earnest efforts
toward
compromise must have been resorted to before going to court. So in the definition of a cause of
action
under
the
rules of court is not qualified by certain condition precedents before going to court. He must
see
to
it
that
these
conditions, if applicable, must be observed. The court, although competent and may have
jurisdiction
over
the
case, will refuse to try the case and instead issue an order to the plaintiff to comply with the
conditions.
If
there
is already a cause of action and these conditions are applicable, the general rule is for every
cause
of
action
the
rightholder can file one complaint. If there are 2 causes, the right holder can file 2
complaints.
causes,
to
If
there
are
he can file 3 complaints. But what is proscribed by the rules of court is for the plaintiff
file
more
than
single complaint arising from a single cause of action. In other words, the rules abhor splitting a
cause
of
action.
Filing 2 or more complaints founded on the same cause of action is splitting a cause of action.
The
usual
example
given in splitting a cause of action is lets say that the creditor is entitled to receive from the
debtor
million
pesos. The obligation has matured, it has become due but not been paid. In the ordinary
cause
of
things,
the
creditor should file one complaint for the recovery of 2 million pesos plus interest that has
been
earned
by
the
principal, cost and damages if there are any. If the creditor files one complaint for the recovery of
2
million
pesos
as principal and this complaint will be filed before a RTC and then he files another complaint for
the
recovery
of
interest in the amount of 200,000 pesos in the MTC. That is splitting a cause of action regardless
of
whether
these
actions are filed before different courts. Since the rules prohibit a right holder from splitting a
cause
of
action,
thus the rule also provides for sanctions. These are given by the rules itself. The filing of one
could
be
used
in
order to dismiss the other by reason of litis pendentia, pendency of another action or if one of
the
causes
has
been
decided, the decision in one case can be used to dismiss the other by reason of res judicata. So
there
could
be
grounds for dismissal of complaints which are a product of splitting of a cause of action. There
is a third ground provided by rule 7, and that is forum shopping. So if a right holder splits his
cause
of
action,
he
can
move
for
dismissal either by reason of litis pendentia, res judicata or under Rule 7 on forum shopping. It
is
now
settled
that if a party is guilty of splitting of causes of action, he is also guilty of forum shopping.
There
is
no
need
to
elaborate on whether there is forum shopping as it can be shown that there is splitting of cause
of
action.
Why
does the rule in the first place prohibit splitting? If you look at the consequences there is
really
not
much
anything that can be suffered by the defendant. In our case the debtor is bound to file 2
million
pesos
plus
interest. So if the creditor files one complaint for the recovery of 2 million and the second
complaint
for
the
recover of interest and damages amounting to 200,000. Even if we assume that the plaintiff
will
eventually
win
in both cases, he will not enrich himself because in the first case he will be recovering only 2 M
and
in
the
second
cause only 200,000, his entitlement is merely the same even if he does not split his cause of
action.
so
in
the
point
of view for recovery of money due the creditor, the creditor will not have much benefit that
he
can
derive
by
splitting the cause of action. Why dont we just allow the the plaintiff to file as many
complaints
as
he
wants
involving the same cause? If we look at it, it can even enrich the government because everytime
we
file,
we
pay
docket fees. We can even encourage for as long as he pays docket fees. If we look at it in that
point
of
view,
there
cause
the effect of
of
action could be very harmful not to the parties, but to our courts. In our example if we allow two
complaints
to
be filed based on one cause of action, and these cases is filed before 2 different courts,
there
is
very
strong
probability that the RTC may decide in favor of the plaintiff and there is also a strong probability
that
the
MTC
will decide not in favor of the plaintiff but against the plaintiff, so that our courts may look
funny
if
one
court
will decide will decide in favor of the plaintiff and the other will decide against him involving the
same
cause
of
action and same evidence that will be submitted. In other words, this rule on splitting is for the
protection
and
integrity of our courts. There is a likelihood that the different courts will be rendering
conflicting
decisions
involving the same issue and parties and that will destroy the integrity of our judiciary.
Supposing
that
the
plaintiff indeed splits his cause of action against the same defendant, but the defendant
ignores
the
breach
of
procedure by the plaintiff and does not ask for the dismissal of any one of the cases by reason of
litis
pendencia
or res judicata, can the court on its own order the dismissal of the existing cases? The answer is
yes
because
litis
pendencia and res judicata are both not waivable defenses and the defendant does not raise
these
issues
that
arise from splitting, the court, on their own, can order the cases pending before them. But if
the
dismissal
is
by
reason of litis pendencia, it is not correct to assume that both cases will be dismissed.
Only
one
will
be
dismissed. If by reason of res judicata, the remaining case which is pending will be dismissed.
So
if
both
cases
are pending, and the defendant files a motion to dismiss these two cases, only one case will
be
dismissed.
In
other words, in litis pendencia it is not possible for the defending party to move for dismissal
of
all
pending
cases. So that if you are the lawyer for the defendant and you are choosing which of the two
will
be
dismissed,
youd rather move for the dismissal of the case pending before the RTC because the
amount
involved
is
million pesos and let the cause before the MTC to deprive the RTC. If the MTC eventually
decides the case involving only 200,000 and the decision becomes final and executory, that is
the
end
of
the
creditors
claim
for
million pesos. He can no longer recover because there is now res judicata. Can we give to
the
defendant
remedy to have the 2 pending cases dismissed? The answer is yes. If the ground for dismissal is
forum
shopping
Rule 7. Under the Rules, if a plaintiff is guilty of forum shopping, the court can order the
dismissal
of
all
pending cases but the qualification is that the dismissal is without prejudice. So it is not an
adjudication
on
the
merits unless forum shopping is found to be deliberate. But nonetheless, if the wish of the
defendant
is
to
have
the all the cases dismissed, he can make use of Rule 7. Move for the dismissal on the ground of
forum
shopping.
Anyway, when a person violates the rule on splitting of cause of action he violates the rule on
forum
shopping.
But again one of the cases has been decided, the remaining could be dismissed by reason of
res
judicata
for
as
long as such decision has become final and executory. Litis pendencia and res judicata
are
non-waivable
defenses. We do not need for any motion from the defendant. For as long as it becomes
clear
before
the
trial
courts that there is litis pendencia or res judicata, the courts simply follow rule 9 which
provides
that
if
it
becomes clear during trial that there is litis pendencia or res judicata, it is moto proprio on the
part
of
the
trial
court to order the dismissal of the case. There are certain instances involving the existence of
certain
causes
of
action. If the obligation of the debtor in our example is payable on installments and then
principles
of
this
case
Larena vs Villanueva which was decided almost 100 years ago. In our example, if there is an
obligation
to
pay
million pesos on installment, each installment will have its own date of maturity. Under this
decision
in
Larena
vs Villanueva, it is a rule that for each installment that becomes due and unpaid, one cause of
action
arises
for
that installment. SO that if there are four installments of 500,000 each and the maturity
differ,
if
the
first
installment has become due and unpaid, the creditor will now have one cause of action. But the
cause
of
action
is for the recovery only of the first installment for the recovery of 500,000. Can the creditor
insist
that
if
he
files
complaint he should be able to recover 2 Million pesos? He cannot because the other
installments
are
not
yet
due. He still does not have the right which has been violated. But there are certain
mechanisms
in
Civil
Law
which will enable him to recover the entire obligation simply because one installment has been
due
and
unpaid.
We call it in civil law as the acceleration clause. If there is an acceleration clause in our
contract,
i.e.
the
non-
payment of the first installment will cause the whole obligation to be due, then the creditor will
have
one
cause
of action only. If the first installment has become due and there is an acceleration clause, if the
creditor
files
one
complaint only to recover 500,000 and then the case is decided in his favor and judgment is
entered,
and
later
on the second installment also becomes due and unpaid, he can no longer file another complaint
for
the
recovery
of the second installment by virtue of the acceleration clause. When an acceleration clause
works,
the
whole
obligation becomes due and that should be the subject in just one complaint as only a single
cause
of
action
accrues in favor of the creditor. But without the clause, the rule of thumb is that each
installment,
if
unpaid,
will
give rise to different causes of action. So it is possible that there could be different complaints
filed
by
the
same
creditor against the same debtor corresponding to different installments. The qualification
given
in
Larena
is
that if two installments are already due, then they should be the subject of just one
complaint. There is only one cause of action pertaining to these two installments that have
remained unpaid. The other installments which are not yet due cannot be the subject still of a
separate complaint. And then together with this case of Larena, the Court also decided another
case almost 100 years ago. This case is Blossom vs. Manila Gas. In our example, there is a
monetary indebtedness for the debtor to pay 2 million pesos in 4 separate installments. Lets say
that theobligation to pay the first installement will be due on or before December 31,2013. Since
you are still in May 2013, can the creditor file today a complaint against the debtor for
the recovery of 2 M or even the first installment? The answer is no because the plaintiff still
has no right which has been violated by the defendant.
So as of today, the creditor cannot complain that his right has been violated. Supposing that last
month,
the
debtor conferred with the creditor, and the debtor in writing formally saying that I have no
intention
of
paying
now
and
December 31. Do not expect me to pay you any of the installments that are specified in
my
note.
have
absolutely nothing to do with this promissory note. I wont pay you a single centavo. If that is
the
attitude
of
the debtor in our example, you can apply the principle in Blossom vs. Manila Gas that is even if
the
obligations
are not yet due according to the terms of the agreement but the debtor his expressred formally
his
desire
not
to
pay and he tells the creditor that he should not expect any payment from him. The court
said
that
it
is
an
anticipatory breach of the contract. So that if there is an anticipatory breach of the contract,
the
creditor
can
rightfully file a complaint against the debtor for the recovery of the whole obligation of 2
million
account.
But
remember that this should be treated merely as an anticipatory breach. That the debtor
formally
tells
that
he
is
not going to pay the indebtedness. Supposing that there is no such anticipatory breach that can
be
shown
by
the
creditor. He files a complaint today for the recovery of the whole indebtedness, 2 M,
although
the
first
installment on or before Dec 31. He files the complaint. Does the RTC have jurisdiction?
Of
course
it
has
jurisdiction since the amount to be recovered is 2 million. The defendant after receiveing the
summons
and
he
does not file any responsive pleading or even if he files an answer but does not raise as an issue
the
propriety
of
filing a complaint where the obligation is not yet due. The Court will follow will the order of
things
in
civil
procedure and the court will set the case for pre trial and during the pre trial there is no
settlement.
Lets
say
that the pre trail will be scheduled next year, Feb 2014. By the time the pre trial is scheduled, the
first
installment
will become due. There is no amicable settlement. The court scheduled it for trial by the end of
2014
and
by
that
time let us say that the whole obligation has been due. So at the time the Trial Court conducts a
trial
on
the
case
the debtor has already defaulted but at the time of the filing of the complaint this obligation
has
not
yet
been
defaulted. Can the Court properly decide the case in favor of the plaintiff? The answer is no.
There
is
2005
case
with the same set of facts. The title of the case is Swagman Hotel vs. CA. In this case which is a
modification
of
the principle in blossom. The SC said that if a plaintiff files a complaint in court although he
has
no
cause
of
action at all, but the defendant does nothing and then the claim of the plaintiff matures at the
time
it
is
decided,
the court still has no authority to decide the case because at the time of filing, the plaintiff has
no
cause
of
action.
One of the issues raised by the defendant, can we not apply rule 10, that is amendment to
conform to evidence?
While the case is not final, the obligation became due already and of course the note must
have
been
presented
as evidence that the obligation at that time was already due and demandable. The SC said that
we
do
not
apply
amendment to conform to evidence if in the first place the plaintiff does not have a cause of
action
at
the
time
of
the filing of the complaint. So it is essential that a complaint must be filed after the cause of
action
has
accrued.
If
there is no cause of action that has yet accrued and a complaint is filed, the court will have
no
authority
to
decide even if it matures and becomes defaulted during the trial of the case. We apply the rule
on
amendment
to
conform to evidence only if there is really a cause of action at the time of the filing of the
complaint.
So
you
take
note of these differences between the rule on anticipatory breach given in Blossom vs Manila Gas
and
the
much
later case of Swagman Hotels vs CA. The principle of Swagman has been reiterated by the
court
in
subsequent
cases. At the time of the filing of the complaint, the plaintiff must already have a cause of action.
He
must
show
that his right has already been violated at the time of the filing. Otherwise, he cannot make use
of
amendment
to
action
on
the
The opposite of splitting a cause is joinder of causes of action. Splitting is prohibited while
joinder
of
causes
is
causes
of
action as he may have against the same defendant although these causes of action are totally
unrelated
to
one
another, although these causes arise from different transaction as long as the parties to the
transaction
are
the
same plaintiff and defendant. So a plaintiff can file a complaint against a defendant for accion
reinvidicatoria,
recovery of money arising from loan, recovery of damages from quasi delict. Although they arise
from
different
transaction. So that is there is one plaintiff and one defendant. There is nothing wrong if the
plaintiff
sets
up
different causes of action although these causes of actions arise from different transactions.
The
limitations
of
joinder of causes can be summarized in three issues that is the issue of jurisdiction, the issue of
venue
and
issue
of joinder of parties. There could be joinder of causes of action according to Rule 2 which is
encouraged
as
long
as the party does not violate the rule on joinder of parties found under the next rule as long
as
these
cause
enjoined do not follow different rules of procedure and of course these causes of action
should
be
within
the
jursidiction of the Trial Court. So that if the plaintiff files a complaint against the same
defendant
and
his
first
cause of action is accion reinvidicatoria assesed at 1,000 and the second cause of action is
for
the
recovery
of
money, 2 Million pesos. Obviously, the causes are misjoined because the RTC does not have
jurisdiction
over
the
accion reinvidicatoria valued at 1,000. About 7 months ago, the SC decided a case where one
of
the
parties
in
August 2012, this case presented a joinder of causes where there was really misjoinder of
causes
of
action.
The
complaint filed by the plaintiff against the defendant set up as first cause of action a complaint
for
partition.
And
the second cause of action was for recission of a donation. Both causes of action are cognizable
by
the
RTC.
If
we
rely solely on rule 2 section 5, is there misjoinder of cause of action? the first cause is partition,
the
second
cause
is recission of donation. The answer is Yes. Why? because a complaint for partition is a special
civil
action.
If
you
look at the Rules, Partition is enumerated in the list of Special Civil Actions. While recission of
donation is an ordinary civil action. In other words, they are governed by different procedure.
So,
here
is
indeed
in
this
case
misjoinder of causes of action. But the defendant did not raise this assigned issue. The defendant
either
did
not
realize that partition is a special civil action while rescission in an ordinary action. The
defendant
did
not
do
anything and the worse is that the judge did not know any better. He most likely waited for the
defendant
to
raise this issue on misjoinder of causes of action but since no motion came from the defendant,
the
judge
said
will just try these two misjoined causes. Under the rules, can the court moto proprio apply
the
rule
on
misjoinder of causes by ordering the severance of one of the cases that is misjoinded? The
answer
is
yes.
Under
the Rules, we do not really need a motion coming from the defendant. On its own, if the court
finds
out
that
there is a misjoinder, the court is given the prerogative motu proprio to order the severance of
cases.
This
is
for
the benefit of the court because of if the court will wait for the move from the defendant to
raise
misjoinder
of
causes, the court will find itself confused with the procedure that will follow. Because partition
has
procedure
different from ordinary civil actions. In fact, partition under our rules now is a multi-staged
proceeding.
Thats
why it is a special civil action while rescission is an ordinary civil action. It is not divided into
several
stages
like
complaint for partition. But since nobody raised the issue of misjoinder and the court did not
realize
that
there
was misjoinder of causes, the court just went on to try these two cases until a decision was
finally
issued
by
the
court. When the matter appealed to the SC, the SC said that there was nothing irregular with the
performance
of
the court even if the causes of action are misjoined. But the issue is not raised before the trial
court,
and
the
trial
court goes again with the trial of these misjoined causes of action. The decision of the court
will
still
be
valid.
The only qualification given by the SC is that this misjoined causes should be within the
jurisdiciton
of
the
trial
court under BP 129. In other words, this rule of joinder of causes could be a ground for
severance
of
one
of
the
causes but if it is not raised timely and the trial court eventually decides the case, the decision of
the
trial
court
is
binding. Its perfectly in order as long as the trial court has jurisdiction over the misjoined causes.
Does
the
RTC
have jurisdiction over the complaint of partition? Does the RTC have jurisdiction over
recission
of
donation?
Recission is incapable of pecuniary estimation. So even if there are misjoined causes in one
complaint,
but
this
misjoinder is not raised before the trial court, the parties are deemed to have waived this
misjoinder
of
causes
of
action. The judgment rendered by the court is valid and it can be executed if it is duly entered. If
the
court
does
not motu proprio order the severance of cases, we cannot blame the court for it. It is the bargain
of
the
defendant
to raise this as an issue before the trial court. So again, this is the attitude of the SC when it
comes
to
misjoinder
of causes of action. As long as the misjoined causes fall within the jurisdiction of the trial court,
there
is
nothing
wrong if the trial court will eventually decide the case although there is misjoinder of causes of
action.
Can the complaint be filed where these two causes of action are set-up? First, it is a petition
for
certiorari
and then as a second cause there is a petition for habeas corpus. If you read literally section 5
that
is
not
allowed.
But the SC allowed. A petition for certiorari which is a special civil action could be filed together
with
petition
for habeas corpus which not a special civil but it is in fact a special proceeding and therefore the
procedure followed by 2 different petitions are different. That should be disallowed under
Section 5, but that is allowed according to the court by way of exception.
A complaint is filed with an inferior court. The first cause of action is reinvidicatoria. Recovery of
title
to
piece
detainer
of
condominium unit. The back rentals to be recovered is 2 Million pesos. So in this complaint
the
first
cause
is
accion reinvidicatoria of another piece of land or property whose assessed value is 1000 pesos
and
then
unlawful
detainer of a condominium unit the back rental sought to be recovered is 2 Million pesos. Does
the
inferior
court
over the 2 causes of action. The answer is yes. because an inferior court has jurisdiction over
a
case
of
accion
reinvidicatoria where the assessed value is only 1000 pesos. The inferior court also has
jurisdiction
over
unlawful detainer regardless of the back rentals sought to be recovered. So with respect to
jurisdiction
on
the
part of the inferior court, there is no problem at all. It really has jurisdiction. Are the two causes
properly
joined?
Although they are within the jurisdiction of the inferior, the answer is No. There is still misjoinder
although
both
cases are cognizable by the inferior court. Because accion reinvidicatoria, although
cognizable
by
an
inferior
court will be governed by ordinary procedure while unlawful detainer will be governed
by
summary
procedure. That is one of the limitations in joinder of causes of action. We cannot join causes of
action
which
are
governed by different procedures although they may fall within the jurisdiction of the same
court.
But
you
always refer to this new case of Baylon (?), even if there is misjoinder, if it is not raised as an
issue,
the
issue
is
waived and there is nothing wrong with a decision rendered by the court thereafter as long
as
the
court
has
jurisdiction over all the causes of action that are misjoined in the same complaint.
Good afternoon. To continue with the just todays discussion on joinder of causes of action,
you
should
be
conversant with the limitations to this prerogative given to the plaintiff. You also notice that,
unlike
joinder
of
parties, there is a rule against misjoinder of causes of action in the same way that there
is
rule
against
misjoinder of parties. But there is no rule which governs non-joinder of causes of action
while
in
joinder
of
parties, there is non-joinder and misjoinder of parties. The reason why we cannot conceive
of
rule
on
non-
joinder of causes is because joinder of causes is always permissive. It is always at the option
of
the
plaintiff.
Thats why the rules state that the plaintiff can join as many causes of action as he may have.
That
is
permissive.
If he does not want to join causes of action against the same defendant, the court cannot force
him
to
do
so.
But
there is a rule against misjoinder of causes and misjoinder occurs when the two causes joined
violate
some
of
the
limitations contained in Sec. 5, like rule on joinder of parties, rule which prohibits joinder of
causes
which
are
governed by different rules, such as when a special civil action is joined together with an
ordinary
civil
action
although both would be cognizable by the same court, the joinder is prohibited but as
to
the
mentioned
yesterday, the latest decision of the court is to the effect that even if the causes are misjoined,
if
that
issue
is
not
raised on appeal before the Supreme Court or Court of Appeals, these courts will just ignore
the violation on the rule on joinder of causes of action. The judgment rendered by the court
cannot be challenged provided that the court has jurisdiction over the two or more causes that
have been joined.
The first limitation to joinder of causes is the rule on joinder of parties. And the rule on joinder of
parties
which
serves as a limitation to joinder of causes is the rule in Sec. 6 of Rule 3 that is permissive
joinder
of
parties.
In
permissive joinder of parties, it envisions a situation where there are two or more plaintiffs,
or
two
or
more
defendants or both, and the right to relief arises from the same transaction or a series of
transactions
and
there
is
a common question of law or fact in so far as the defendants and the plaintiffs are concerned.
Usually,
joinder
of
permissive joinder of parties, issues when there are at least two causes of action, pertaining to
the
two
plaintiffs
or against the two defendants as the case may be. A good example is illustrated by case
decided
by
the
court
about 10 years ago. The owner of a tract of land discovered one morning that his property has
been
occupied
forcibly or through intimidation or any other means and that they retained physical possession of
this
property
of
the
land
The
of
course wanted to recover physical possession of the property. The procedural problem that
they
face
was
this.
Can he file, should he file 11 complaints of forcible entry against each one of the informal settlers
or
squatters
or
can he file just one complaint against eleven defendants, eleven informal settlers, but in that
complaint,
he
will
allege eleven causes of action. Each one cause of action against each one of the informal
settlers.
The
SC
said
the
owner of the land has the option of choosing any one of these remedies. The owner of the
land
can
file
eleven
complaints for forcible entry but each complaint must implead only one informal settler. He can
also
file
just
one
complaint against eleven squatters but in that complaint, she should allege eleven causes of
action.
The
last
recourse will involve joinder of parties. There is just one complaint, against eleven squatters
but
in
effect,
in
filing effectively, he can be filing eleven separate complaints, but there is only one
complaint.
That
is
the
illustration of permissive joinder of parties. We should also note that joinder of parties in Sec.
6
of
Rule
as
limitation to joinder of causes of action is also permissive in character. The title of the
section
is
permissive
joinder of parties. In another section, in Sec. 7 of Rule 3, there is another concept of joinder
which
is
compulsory
joinder of parties. In other words, the joinder of parties in compulsory joinder is a must, it is a
mandate
required
by law. And this refers to compulsory joinder of indispensable party. In compulsory joinder of
indispensable
party, the definition of an indispensable party in the Rule is that it is a party without
whom
no
final
determination of a case can be had. Meaning to say that even if the court tries a case without
an
indispensible
party having been impleaded, the decision of the court is void, the proceedings of the
court
are
void.
The
decision will never be entered; it will never become final and executory. That is the message
given
in
rule
on
compulsory joinder of indispensible party. If there are only two parties in a contract of sale,
there
is
just
one
vendor and just one vendee and there is a violation of the conditions of the sale, the innocent
contracting
party,
will of course be indispensable and the party who has committed the breach will also be an
indispensable
party.
The opposite of indispensable party is a necessary or proper party. Rule 3 also gives us the
definition
of
necessary party. But we will know that the joinder of a necessary party is not compulsory. The
law does not require the plaintiff to implead a necessary party unlike in the case of indispensable
party. Because it is the law itself that compels the inclusion of an indispensable party, what is
the sanction if a complaint is filed without impleading an indispensable party?
indispensable
If
an
defendant files a motion to dismiss on that ground, that is the ground relied upon by the
defendant is an indispensable party has not been impleaded, will the court grant the motion
to dismiss? The answer is no. Because Sec. 11 in Rule 3 is very clear: non joinder or
misjoinder of a party is not a ground for dismissal. But in other cases, decided by the SC, the
motion to dismiss filed by the defendant for the reason that an indispensable party has not
been impleaded, is not failure to implead an indispensable party. The ground used by the
defendant is failure to state a cause of action.
In Rule 16, that is the rule on motion to dismiss, failure to state a cause of action is a
ground
for
dismissal.
Failure to implead an indispensable party is not a ground for dismissal under Rule 16. In fact,
Rule
is
very
clear in saying misjoinder or nonjoinder of a party is not a ground to dismiss. But if the defendant
uses
another
ground that is failure to state a cause of action, there are conflicting decisions of the SC when
the
SC
resolved
the
question of whether or not failure to implead an indispensable party is a good ground for
dismissal.
Remember
that the ground used by defendant is not failure to implead an indispensable party but the
ground
for
dismissal
is failure to state a cause of action. One set of decisions of the SC said that if an
indispensable
party
is
not
impleaded and there is a motion to dismiss founded on failure to state a cause of action,
the
case
would
be
dismissed on that ground. Because there is really failure on the part of the plaintiff to state a
cause
of
action
if
an
indispensable party-defendant is not impleaded. In the definition of a cause of action, the law
says
that
cause
of action exists when there is a violation of the right by another party. In other words, a cause of
action
envisions
the existence of a right and a violation of that right. If there is a wrong doer who has violated the
right
of
party,
that wrongdoer should be impleaded as a party defendant. The reason given by these one set of
decisions
of
the
SC in affirming the dismissal of a complaint where an indispensable party defendant has not
been
impleaded
is
that the proceedings taken by the court are void. With respect to the parties who are present in
the
case
and
with
respect to other parties who could have been parties to the cause. The judgment is null and void.
And
therefore
the court said if we dont dismiss the case, we allow the court to continue trying the case and we
allow
the
court
to eventually decide the case. The court will just be spending useless his time, because
the
judgment
to
be
rendered by the court, in a way cannot be enforced; it will never become final and
executory.
That
was
the
justification given by the court in this set of decisions which allowed the dismissal of a
complaint
for
failure
to
state a cause of action. Failure to state a cause of action because an indispensable partydefendant
has
not
been
impleaded. The other set, the second set of decisions of the SC is to the effect that if an
indispensable
party-
defendant has not been impleaded, and there is a motion to dismiss filed by the present
defendant
on
the
same
ground failure to state a cause of action, the court should not dismiss the case. The reason
given
by
the
SC
is
Section 11. Misjoinder or nonjoinder of a party is not a ground for dismissal. The court said: if an
indispensable
is not impleaded, and a motion to dismiss is filed by the defendant, what the court should do is
to order the amendment of the complaint. Is it proper for a court to order the amendment of a
complaint
if
the
motion
before
the court is a motion to dismiss? Should not the court either grant or deny the motion to
dismiss?
If
you
read
Rule 16, on the alternatives, the options given by Rule 16 to a court which is going to rule
on
motion
to
dismiss, Rule 16 really says that a trial court has three options. The first is to deny the motion,
the
second
is
to
grant the motion and the third is to order an amendment to the pleading. So this decision
of
the
SC
is
also
founded on an express provision of Rule 16. A trial court really can refuse to grant a motion to
dismiss
by
using
the third option that is order an amendment of the pleading. In fact as of now, there are four
alternatives
given
to a trial court in resolving a motion to dismiss. The first three: grant the motion, deny the
motion
or
order
an
amendment to the pleading and the fourth alternative introduced by a circular is that for the
court
to
refer
the
matter to arbitration or a prior barangay conciliation. There are now four options given to a trial
court.
But
we
are interested in the third option given in Rule 16. And the Supreme Court said if a person is an
indispensable
party to the case and he is not impleaded as a defendant, the person who has been sued in
that
case
can
move
for a motion to dismiss but the court will not grant the motion, the court will instead order the
amendment
of
that complaint. So the motion to dismiss will not be granted instead, the court will tell the
plaintiff:
you
amend
your complaint by impleading the indispensable party. If the plaintiff receives an order from the
court,
directing
him to amend his complaint by impleading an indispensable party, the plaintiff also has a choice.
He
can
ignore
the order of the court or he can comply with the order of the court. If the plaintiff complies with
the
order
of
the
court and the plaintiff amends his complaint, and impleads the indispensable party, then the
defect
in
that
case
is solved. There is no more procedural defect because an indispensable party has been
impleaded.
But
if
the
plaintiff disobeys the order of the court, directing him to implead an indispensable party,
can
the
court
do
something about the disobedience of the plaintiff? This other set of decisions said, the court
can
now
order
the
dismissal of the case but the dismissal of the case will not be founded on Rule 16 but it will be a
dismissal
found
on Rule 17. Rule 17 is also about dismissal of actions. And the court said if the dismissal
of
the
action
is
thereafter ordered by a court by reason of the disobedience by the plaintiff of a lawful order of
the
dismissal under rule
adjudication
court,
that
the
merits. If that order of dismissal is finally entered, then there will be res judicata and the plaintiff
will
be
barred
This issue as we said is a subject of conflicting decisions of the court and if by chance, this
is
asked
in
your
examinations, I would suggest that you adapt the second set, that is if an indispensable
party
has
not
been
impleaded and there is a motion to dismiss the court should not order a dismissal of a case.
The
court
should
order the amendment of that complaint. If the amendment is not complied with, the court
can
now
order
the
dismissal of the case not by reason of a motion to dismiss under Rule 16 but by reason of Rule
17,
dismissal
of
the action by reason of failure to obey a lawful order of the court. Is there a difference between a
dismissal
under
Rule 16 on that ground failure to state a cause of action and a dismissal under Rule 17 failure to
obey
the
rules
of
court or a lawful order of the court? There is a great difference. If a complaint is dismissed under
Rule 16 because of failure to state a cause of action and the failures to state a cause is founded
on the failure to implead an indispensable party, the order of dismissal under Rule 16 is a
dismissal without prejudice. The plaintiff can file another complaint. But in that other
complaint, he should see to it that the indispensable should now be impleaded. But if the
dismissal of the complaint is by reason of Rule 17, if you read the third section of Rule 17, it is
clearly provided that a dismissal for failure of the party to obey a lawful of the court or failure of
a party to obey the Rules of Court is a dismissal with prejudice, unless the court otherwise
provides. But generally, the dismissal under Rule 17 is a dismissal with prejudice. That should
be the thrust of your answer in the event that this problem is given in your bar examination.
Failure to implead an indispensable party is not a ground for dismissal of a case. Under Section
11 of Rule 3, nonjoinder or misjoinder of a party is not a ground for dismissal. But if the ground
used is failure to state a cause of action, you also say that under Rule 16, a court has an option
not to grant the motion to dismiss, not to deny a motion to dismiss but simply order the
amendment of the pleading or the complaint. If the order to amend is not complied with, there
could now be a dismissal not under Rule 16 but under Rule 17 - Failure to obey a lawful order of
the court.
is
illustrated
usually in our textbooks with an illustration of a relationship between a creditor and his two
debtors.
Lets
say
that the creditor lends 1M pesos to two debtors: Debtor 1 and Debtor 2. And then the
obligation
is
defaulted.
If
the creditor files a complaint, should he implead debtor 1 and debtor 2? Or can he just file a
complaint
against
debtor 1, leaving out in a complaint debtor 2. In other words, in a complaint contemplated by the
creditor,
who
between debtor 1 and debtor 2 is an indispensable party and who between debtor 1 and debtor
2
is
necessary
party. That question will not be answered by the Rules of Court. That question will be
answered
by
the
Civil
Code. In several cases decided by the court, the plaintiff should first evaluate whether the
debtors
are
solidary
debtors or they are only joint debtors. So we are going to apply the provisions of the Civil Code.
And
in
the
Civil
Code, in the absence of any stipulation or some other factors given in the Code itself, when
there
are
two
or
more debtors of the same indebtedness, the presumption is that they are only joint debtors.
But
if
there
is
stipulation that they are jointly and severally liable, then debtors 1 and 2 will be considered as
solidary
debtors.
So we must first establish whether the debtors are joint debtors or solidary debtors. And in
determining
the
relationship of these two debtors to the creditor, it is not the Rules of Court that will
guide
us.
It
is
the
substantive law. It is the civil code to determine whether the parties, the debtors are jointly
liable
or
severally
solidarily liable. If we apply the presumption in the Civil Code that debtors 1 and 2 are joint
debtors,
and
the
creditor files a complaint for the recovery of the whole indebtedness of 1M pesos, do we
consider
debtor
and
debtor 2 as indispensable parties? The answer is YES. If the purpose of the creditor is to
recover
the
entirety
of
his claim that is 1M pesos, he can recover his credit from both joint debtors. But if the
plaintiff,
if
the
creditor
YES.
Because
the creditor has a cause of action against D1. The creditor has a right to compel D1 to pay but
from
the
point
of
view of the Civil Code, the issue is how much is the liability of D1? Again, applying civil code on
joint liability
of debtors, d1 is liable to pay only 500K pesos. If the debtors are jointly liable it is not possible for
the
creditor
to
recover from only one of the joint debtors 1M pesos. He can recover only the portion of the
obligation
which
has
been shared by d1. Why do we say that in our example, the creditor can recover from d1 500K
pesos?
Why
not
400 why not 800K pesos. Because there is another presumption in the civil code that if
there
is
no
express
stipulation between the parties, the debtors should share equally in the liability. So
we
are
applying
presumptions in the civil code. The liability of d1 could be 700k pesos, if that is so stipulated
among
the
parties.
But in the absence of stipulation, we assume that the liability of d1 is equal to the liability of
d2.
Again,
if
the
action is creditor vs. debtor1, the claim that should be recovered by the creditor is only
500K
pesos.
In
this
example, d1 is an indispensable party because without d1, it is then unlikely for the court to
render
judgment
in favor of the creditor directing d1 to pay if d1 is not made defendant to the case. So d1 is
an
indispensable
party. How about d2? Will he be considered as a necessary party in this complaint? The answer is
yes.
So
if
there
is a complaint filed by the creditor only against d1, the creditor is indispensable, d1 is also
indispensable,
but
d2
will only be impleaded as a necessary party. D2 satisfies all the requirements of a necessary or
proper
party
in
that even. If you read the rules, the presence of a necessary party is not indispensable. The
case
can
go
ahead.
But the presence of a necessary party could be required by the court if in order to give complete
accord
of
relief
to the parties in so far as the complaint is concerned or for the purpose of a complete
determination
of
the
subject matter of the action. The subject matter of the action for the purpose of satisfying that
phrase
complete
determination of the subject matter therein is the recovery of 1M pesos. Thats why d2
becomes
only
necessary party. But the rules do not compel the creditor to implead d2. Since d2 is only a
necessary
party,
even
if you dont implead him, the case can prosper, the court can try the case, but the decision of
the
court
will
be
limited to the awarding to the creditor 500K pesos. What is the duty of the creditor or the
plaintiff
if
he
has
not
impleaded a necessary party? The duty of the plaintiff is only to tell the court that he
has
left
out
in
his
by
the
rules
to
party
and
in
that complaint, he will tell the court, I have not impleaded a necessary party. And it is up to
the
court
now
to
determine whether or not it is essential for the court to order that d2 must be impleaded to
this
action.
If
the
court does not issue an order requiring the plaintiff-creditor to implead d2, there is no need for
the
plaintiff
to
amend his complaint. But if the court orders the plaintiff -creditor to amend his complaint
by
including
by
impleading d2, the plaintiff again will have two options either to file in court or not to file in
the
court.
If
the
plaintiff follows eventually the order of the court, then we will have a situation where the
complaint
will
be
amended, the necessary party will be impleaded as defendant but the complaint will now be
for
the
recovery
not only for 500k but for the recovery of 1M pesos. If on the other hand, the plaintiff-creditor
ignores
the
order
of
the court, can the court now make use of Rule 17? Can the court also order the dismissal of the
complaint
under
Rule 17 because of the refusal of the plaintiff to obey a lawful order of the court? We dont apply
Rule
17
in
this
situation. We dont apply Rule 17 because Rule 3 itself already provides for a sanction if the
plaintiff refuses to obey an order of the court directing him to implead a necessary party. The
sanction
given
in
rule
is
simply
that
the plaintiff is deemed to have waived his right to recover from the necessary party. That is
expressly
mentioned
in rule 3 concerning impleading a necessary party. So you will also note that there is a
difference
between
the
to
the
disobedience by the plaintiff to an order by the court to implead a necessary party. If the plaintiff
refuses
to
heed
an order of the court to implead an indispensable party, the complaint could be dismissed under
rule
17
and
the
dismissal general is a dismissal with prejudice. If the plaintiff ignores an order of a court to
implead
necessary
party, the court cannot order the dismissal of the complaint under rule 17. What the court
will
apply
is
the
sanction given in rule 3,that is failure to implead a necessary party if directed by a court. The
case
will
continue,
the case will not be dismissed, but in so far as the necessary party is concerned, the right of
the
creditor
against
him is deemed waived. But if you look further into the consequence of that sanction given in
rule
3,
if
later
on
the plaintiff creditor decides to file a complaint against d2, that complaint will no longer prosper.
Why?
Because
the d2 can now make use of rule 16, file a motion to dismiss on the ground that the claim has
been
paid,
waived,
the
party
same.
not
impleaded is indispensable or necessary. But the ground for the dismissal will be different. In
the
case
of
an
indispensable party, the ground for dismissal is rule 1 sec. 3, failure to obey a lawful order of a
court.
In
the
case
of a necessary party, the complaint again will also be dismissed under rule 16, that is the
claim
has
been
paid,
waived, abandoned, or otherwise extinguished. There are other sections in rule 3 which could
give
rise
to
an
he
is
real party at all to the existing case. And we are referring to the rule on assignment or transfer of
interest
during
the litigation. I think that is the last section in rule 3, that transfer of interest pendente lite and
transfer
of
interest
We are going to make use of the same example: there is a creditor who has lent out 1M pesos to
the
debtor.
This
time, we will only have 1 debtor. The debtor defaults in the payment of the obligation. But
before
the
creditor
files a complaint against him, the creditor feels that he needs money right away. So he decides to
sell
his
claim
to
assign his credit to an assignee. Can the creditor do that. Of course the answer is yes.
That
is
covered
by
procedural law. That is covered by the civil code. That is simply assignment of right. So if the
creditor
who
has
claim for 1M, decides to assign his credit before a case is filed, he can assign this credit to
any
person
who
is
willing to assume the risk of indebtedness. That is what we call in civil law assignment of
credit.
There
is
an
assignor, there is an assignee. Usually in assignment of credit, the assignee pays or buys the
credit
for
an
amount
which is much less than the credit. So if the credit assigned is 1M and it is assigned, it is
very
likely
that
the
money to be paid by the assignee for the 1M credit will only be 700K pesos. So it is a claim to
recover
1M
pesos.
It is sold to the assignee for only 700K pesos. So in dealing up a claim of 1M pesos, the creditor
will
receive
only
700K pesos. But the indebtedness is already in default. Can the assignor, the original creditor
file
complaint
creditor. He has already sold his right. He is no longer a real party in interest. So that if the
original
creditor
files
complaint
against the debtor, the court will dismiss the case. The original creditor is no longer a real party
in
interest.
He
has no right to enforce the payment of his claim that has already been assigned to another
person.
Supposing
it
is the assignee who will file a complaint against the debtor, will the filing of the complaint be
proper.
Of
course
it will be proper. The assignee is a real party in interest. Hes an assignee of the credit, and
therefore
he
stands
to
be benefited or injured by the outcome of the case. If it is the assignee who will file a
complaint
against
the
debtor, can the assignee recover 1M pesos from the debtor? The answer is yes. Because in civil
law,
the
assignee
merely steps into the shoes of the assignor, if the assignor was entitled to recover 1M pesos,
then
assignee
is
also
entitled to recover 1M pesos. But in this case, filed by the assignee, against the debtor, the
assignor
is
not
real
party in interest, he is not a necessary party. He cannot be a considered necessary party because
he
is
not
even
But if we change the facts a little bit, the answer will also be different. If lets say that the
original
creditor
has
not assigned his credit for 1M. He files a complaint against the debtor for the recovery of 1M
pesos.
Is
the
filing
of the complaint proper? The answer is Yes. Because he is still the creditor. The owner of the
credit.
While
the
case is pending before the RTC, the plaintiff-creditor also feels the need for cash right away.
While
the
case
is
pending, can the plaintiff-creditor assign his claim? The answer is Yes. He can assign his claim.
Does
he
need
the
permission of the court? He does not need permission from the court. Because that is
not
governed
by
procedural rules. That will still be governed by substantive law, by the provisions of the civil
code.
So
while
the
case is pending before the RTC, the plaintiff creditor signs or executes a deed of
assignment
pendente
lite,
during the pendency of the case in favor of the assignee. The consideration for the assignment is
still
700K
pesos.
There is nothing wrong with the assignment. As we said, he doesnt even need permission from
the
court
for
the
plaintiff-creditor to assign his credit during the pendency of the case. So we now have a
plaintiff-creditor
who
has assigned his right to an assignee. Will the assignee be considered as an indispensable
party?
The
answer
is
No.
in
if
you
read
that section on transfer pendente lite, we find out that the court has the option not to order
the
amendment
of
the complaint. The court can go ahead with the original parties to the case. So the assignee
pendent
lite
is
not
an
indispensable party. The assignee pendent lite is not even a necessary party.
Let us say that after the assignment, the assignee may submit a manifestation to the court and
tells
the
court
that
during the pendency of the case, he acquired the rights of the plaintiff to recover 1M pesos for
only
700K
pesos.
Can the defendant now tell the court: I am willing to pay 700K right away to the assignee but the
complaint
will
have to be dismissed? Because the assignee purchased the credit during the pendency of the
case
for
only
700K,
although the credit is really for 1M pesos? Is the stand of the defendant correct? In other
words,
can
defendant
compel the assignee to receive 700K pesos as full payment for a 1M peso obligation? The
answer
is
YES.
Under
the civil code, you will read that is Art. 1634 of the civil code. That is the difference between
assignment
of
credit before a complaint is filed and assignment of credit while the case is pending before
the court. The defendant, the debtor in assignment pendente lite can compel the assignee to
accept
an
amount,
the
amount
paid for the consideration for the assignment for the full payment of the credit. That is
what
the
civil
code
provides. You always have to analyze whether the assignment takes place before a
complaint
is
filed
or
the
assignment takes place after a complaint is already filed. There is a big difference between the
consequences
of
assignment pendente lite and assignment before the case is commenced for the purpose
of
satisfying
the
indebtedness. And we are going to apply the provisions of the civil code on assignment
pendente
lite
when
it
comes to the manner of satisfying of full payment of the account. Remember that in assignment
pendente
lite,
if
the account is only 1M pesos, and there is an assignment only for 700K pesos, the
defendant
can
compel
the
assignee to receive 700K pesos as full payment for the 1M pesos account. And this is provided in
the
civil
code.
Another section in rule 3 which could give rise to the determination or ascertainment as to
whether
person
will
and
wife.
Rule
is
very clear in saying that in all actions, the husband and the wife must be joined together.
But
the
exception,
there is an exception, except as provided by law. So if we simply rely on the rules of court,
whenever
there
is
case filed by a husband as plaintiff, he should always join his wife as a co-plaintiff. Whenever
there
is
an
action
filed against the husband, the plaintiff should see to it that the defendants are both the
husband
and
the
wife.
That is the general rule under the rules of the court. The husband and the wife shall sue or
be
sued
jointly,
except as provided for by law. That exception, that phrase, except as provided for by law is
also
the
source
of
conflicting decisions of the court. If you will notice, the rules simply say except as provided by
law.
And
the
rule
itself does not provide for the exceptions. So the rule compels us to look for an exception, either
from
procedural
law or from substantive law. Now the Supreme Court in the latest decisions, said that the law
contemplated
in
the exception is the Family Code or the Civil Code as the case may be. And SC said, if we are
going
to
look
for
the exceptions to this procedural requirement that husband and wife should sue or be sued
jointly,
the
chapter
in family code or in the civil code as the case maybe that is most pertinent to this procedural
principle
will
be
the
rule on partnership or the rules on co-ownership as found in the family code or in the civil
code.
And
in
each
decision, the court said that it is not always correct to require the husband to include his wife
as
co-plaintiff
whenever the husband files a case against another person. The court said that under the rules
on
co-ownership
and the rules on partnership, the code, the civil code allows a co-owner or a partner to file a case
on
behalf
of
the
partnership; a co-owner can file a complaint on behalf of the other co-owners without impleading
the
co-owners.
So that if lets say the husband is in the retail business, and then a customer of the husbands
business
defaults
in
the payment of an obligation, can we allow the husband to file the case without including
his
wife
as
co-
plaintiff. Supreme Court said yes, its not necessary to include the wife. Why? Because the law on
co-ownership,
the law on partnership allows a co-owner a sole co-owner to file a case in order to protect the
interest
of
the
co-
ownership without impleading the other co-owners. In the family code, it seems even
if
the
property
relationship between the husband and wife is covered by conjugal partnership of gains or
absolute
community
of partnership between the husband and the wife, they are treated as co-owners. The husband
and the wife are treated for purposes of actions as co-owners of the properties acquired during
the
marriage.
And
in
civil
law,
co-owner is authorized to file a case without including the other co-owners for the protection of
the
interest
of
the co-ownership over certain properties. In the civil code, as well as in the family code,
according
to
the
code,
co-owner can even file an action of unlawful detainer or forcible entry against a trespasser
who
co-owned
property without including the other co-owners. So as of now, if the husband files a complaint
alone,
without
joining his wife as a party-plaintiff, the filing of the complaint will not be a violation of the rules of
court
which
requires that husband and wife should sue or be sued jointly. We apply the provisions of the
family
code
on
co-
ownership as well as the rules of partnership. Either the family code or the civil code provisions
will
apply.
But
there is a caveat given by the SC in its decision. If the husband as a co-owner files a
complaint
against
wrongdoer, he should see to it that in that complaint, he is admitting that he is simply acting
as
co-owner
of
the property. That he recognizes the existence of the co-ownership. But if in the complaint filed
by
the
husband
alone, without the wife, the husband alleges that he is the sole owner, that there is no coownership
between
the
husband and the wife, then he should implead the wife because he is no longer filing
a
complaint
in
representation of the co-ownership but instead he now denies the existence of that coownership.
That
is
the
caveat given by the court in its latest decision concerning the propriety of the husband filing a
complaint
alone
without being joined by his wife. As long as one of the spouses who acts as plaintiff continues
to
recognize
the
existence of the co-ownership, there is nothing wrong if the other spouse is not included in that
complaint.
So
if
we allow the husband alone to file a complaint, do we consider the wife as an indispensable
party?
The
wife
will not be considered an indispensable party because the law authorizes the husband alone or
the
wife
alone
to
file the complaint. Is the spouse who was left out considered a necessary party? The court said
the
spouse
who
has been left behind in that case is not even considered a necessary party because the case can
be
adjudicated
by
the court and the adjudication by the court can become final and executory. There could
be
complete
determination of the case even without joining the absent spouse. So in this husband and wife
relationship,
if
the
law authorizes one of the spouses to file the complaint and when say the law its the substantive
law,
the
family
or civil code, the absent spouse will not even be treated as a necessary party.
Another provision in rule 3 which could give rise to a situation where we have to determine
whether
party left out is indispensable or necessary is the idea of class suit. In a class suit, the
requirement
is
that
there
is
a community of interest. There is common interest among persons that are so numerous it is
impracticable
to
bring them all before the courts. And in a class suit the law does not require that all the
members
of
the
class
should be impleaded as plaintiff or as defendants as the case may be. What the rule requires
is
only
number
enough to represent the members of a class should act as plaintiff or should act as defendant as
the
case
may
be.
But the most important feature in a class suit is of course community of interest. That is,
the
interest
of
the
members of the class are not specified. The interest of one member will also be the interest
of
the
rest
of
the
members. But if the interest of one member is different from the interest of the other
members,
that
will
not
be
considered as class suit. If youve read the case of Oposa vs. Factoran, that is an example of a
class suit. In fact, the doctrine in oposa vs. factoran is now formally a part of the rules of court.
That
is,
person
files
complaint
on behalf of children who are yet unborn. That is allowed. Because of the decision in oposa vs.
factoran,
that
is
now made a part of the rules of court. Under the circular on kalikasan, in fact, if you have
the
circular
in
kalikasan, there is the section called citizen suit, and that section on citizen suit have this
verbatim
the
decision
of the SC concerning the feasibility, the propriety of a person filing a case, a kalikasan case on
behalf
of
persons
who are yet unborn. You know the reason given by the court in oposa is that this is allowed
because
of
the
principle of intergenerational ethic responsibility. But from a procedural point of view, that will
be
class
suit
although the writ of kalikasan conceived a citizen suit that is effectively a class suit. In a
class
suit,
do
we
consider the members of the class as indispensable or necessary parties? According to the court,
in
class
suit
all
the members of the class are indispensable parties. But that is now settled. That is what the
SC
said
that
in
class suit, all the members of the class that is involved in the litigation are considered as
indispensable
parties.
If
the members of the class are all considered as indispensable parties, should we not identify
them
individually
in
the pleadings, in the complaint or in the answer? The SC said no, in a class suit the class may be
represented
by
sufficient number of the class but although the members of the class are all indispensable
parties,
they
need
not
be identified individually in the pleadings submitted to the court. In other words, the SC
has
inserted
an
exception to the rule on compulsory joinder of indispensable party. The general rule as we
said
while
ago
is
that an indispensable party must always be joined. He must always be impleaded because
without
him,
no
final
determination of the case can be had. But because of this decision of the Supreme Court saying
that
although
the
members of a class in a class suit are indispensable parties, they should serve as an
exception
to
our
rule
that
indispensable parties must be impleaded in an existing action. Why did the court conclude that
in
class
suit
the
members of the class are all indispensable parties? The reason given by the SC is the
last
sentence
in
the
definition of a class suit in rule 3 which is very logical. The last sentence in that section on
class
suit
says
that
member of a class in a class suit shall have the right to intervene. In other words, if there is a
class
there are
identified
suit,
let
us
say
plaintiff
or
defendant in the class suit, so if we read the complaint, there are only 20 plaintiffs or 20
defendants
as
the
case
may be. But they represent 1000 members of the class. The 1000 members of the class
are
all
indispensable
parties according to the court itself. And if anyone of the members of this class decides to
intervene
in
the
case,
the trial court does not have any discretion to deny the motion for intervention of a member of
a
class.
Because
the language of the rules is very clear. A member of a class in a class suit has a right to
intervene,
which
also
is
the
discretion
of the trial court. Thats why, in a pending case if a stranger decides to intervene, he has to
file
motion
for
intervention; he has to get permission from the court. If the court decides not to allow the
intervention,
we
cannot accuse the court of abusing its discretion because the law gives to the trial court
discretion
in
allowing
an
intervention or not allowing an intervention. We leave anything to the discretion of the court.
Thats
why
the
because of this last sentence in the definition of a class suit which gives to a
member of a class a right to intervene. Whenever a member of a class in a class suit files a
motion for intervention, the court does not have a discretion to deny the intervention. A court will
be compelled to allow the intervention because the rule itself states that a member of a class
has a right to intervene. In other words, the court has no discretion in granting or denying the
motion for intervention by a member of a class in a class suit.
The other important topic in rule 3 is about the consequences of the death of a party
either the
plaintiff
or the defendant in a pending action. When a party dies, whether he is a plaintiff or defendant,
the
law
requires
the lawyer of the deceased litigant to give information to the court about the death of
his
client.
This
requirement stems from a provision also in civil code, the provision of the civil code on agency.
The
civil
code
looks at the relationship between a lawyer and his client as a contract of agency. The client is
the
principal
and
the lawyer is the agent. In the civil code, if either the principal or the agent dies, the
contract
of
agency
is
extinguished. So the relationship is cut off. Thats why the rule is very clear in saying that
when
client
or
litigant dies, it is the duty of the lawyer to inform the court about the death of his client. The
lawyer
will
be
telling the court, I am no longer an agent of my principal because my principal has already
died.
There
is
no
more principal-agent relationship between the two. The lawyer withdraws his right to
represent
his
client
in
court once his client dies. If the lawyer informs the court about the death of his client either the
plaintiff
or
the
defendant, it is now the duty of the court to order substitution if substitution will be proper.
So
if
it
is
the
plaintiff who dies, the court will require the presence of the substitute plaintiff, if it is the
defendant
who
dies
the court will require the presence of the substitute defendant. If the court is duly informed about
the
death
of
plaintiff or a defendant, but the court does not observe the process given in the rules
concerning
substitution,
and the court goes ahead with the trial of the case and then the court eventually decides
the
case,
will
the
proceedings taken by the court, will the judgment of the court be valid? The court said if the trial
court
does
not
observe the procedure mentioned in rule 3, after having been notified of a death of a
litigant,
there
is
no
substitution made by the court, the proceedings taken by the court as well as the judgment
rendered
by
the
court are void. So it is now the duty of the court to order substitution of parties. That is if
the
dismissal
of
plaintiff if the death of the plaintiff or the defendant does not result to the dismissal of the case.
There
are
certain
instances where the death of a plaintiff of defendant will automatically lead to the dismissal
of
the
case.
For
the
marriage
void, if either the husband or the wife who are the contestants dies during the pendency of the
case,
the
case
will
be automatically dismissed. That is also provided in the family code as well as in the circular of
the
SC
on
family
related cases. But according to the circular on marriage related cases, if the death of the
husband
or
the
wife
takes place after the judgment has been entered, the death of the husband or the wife
will
not
affect
the
judgment. So it is the death of the husband or the wife in marriage related cases which will lead
to
the
dismissal
of the case if the death takes place before entry of the judgment rendered by the court. So the
focal
point
will
be
the entry of judgment in marriage related cases. In cases where the death of the plaintiff or the
defendant will not lead to the dismissal of the case, the trial court will have to follow the
procedure
for
substitution
of
the
parties. Note that its either the plaintiff or the defendant who will die during the pendency
of
the
case
that
where we follow this procedural substitution of parties. If it is the plaintiff who dies and we
assume
that
the
lawyer for the plaintiff has duly informed the court about the death of his client, the court will
now
require
the
lawyer to submit to him a list of heirs of the plaintiff. And it is up to the court now to issue an
order
directing
these heirs of the plaintiff to appear before the court to act as substitute plaintiff. If the heirs
refuse
to
act
as
substitute plaintiff, can the court compel the heirs or anyone of them to act as substitute
plaintiff?
The
answer
is
NO. The court has no authority to compel an heir of a deceased litigant to act as a substitute
party
in
the
case.
If
the heirs refuse to act as substitute parties, then the court will have to go to the next step given
in
rule
3.
That
is
to require the other party, the defendant in the case to seek the appointment of an
administrator
or
executor
of
be
done
in
settlement court. We assume that in directing the defendant to seek the appointment of
an
executor
or
administrator of the deceased plaintiff, the defendant will be filing a petition for probate of a will
or
intestacy
as
the case may be. Because it is only in this proceeding where a court can appoint an
administrator
or
executor
of
the estate. Remember that in a settlement proceeding, the competent court could be an
inferior
court,
it
could
also be a RTC, depending upon the gross value of the estate. So if the first case is pending
before
RTC,
the
settlement
court. It is not correct to assume now under the circumstances that simply because the case is
pending
before
RTC, that the appointment of executor or administrator should also come from a coordinate
court,
another
RTC.
It depends on the gross value of the estate for the ascertainment of the competent court in the
appointment
of
an
and
he
has
taken his oath of office, then the trial court, the RTC can now order the executor or
administrator
to
act
as
substitute plaintiff or to act as a substitute defendant. This time, the executor or administrator
does
not
have
any
option to deny, to refuse to act as a substitute party. That is one of the duties of an executor or
administrator,
to
represent the estate of the deceased litigant in pending litigations. So one of the
duties
or
executor
or
administrator of an estate. And this case will be pursued until the judgment is finally entered. In
other
words,
if
the death of the plaintiff or the defendant takes place while the case is undergoing trial and
there
is
an
appeal
from the decision of the trial court, the executor or administrator will be representing the estate
even
during
the
period where there is an appeal to the court of appeals or to the SC. The matter can only be
submitted
to
the
settlement court if there is already an entry of judgment. The settlement court will have to wait
until
this
case
is
finally decided and the decision in the case is finally entered. So what if the complaint is for
the
recovery
of
defaulted loan, and the amount sought to be recovered is 2M pesos and during the pendency
of
the
case,
the
defendant dies. Will the case be dismissed? The case will not be dismissed. Does not the civil
law
provide
that
the death of a debtor will extinguish the obligation? Theres no such provision in the civil law.
The
death
of
debtor does not extinguish an obligation. There are only few factors which are taken in
determining whether an obligation to pay money will be extinguished and the death of the
debtor
is
not
one
of
them.
So
if
the
debtor
dies
during the pendency of the case, and the court is notified about the death of the defendant, the
court
will
have
to
observe the procedure given in rule 3 for substitution of party. So if there is proper substitution,
the
executor
or
administrator of the deceased defendant will now be acting as a substitute defendant. The case
will
be
pursued
until the decision is entered. So if the decision is in favor of the plaintiff and the decision is
finally
entered,
the
decision in favor of the plaintiff has become final and executory and the decision directs
the
substitute
defendant, the executor or administrator, to pay 2M pesos, can the plaintiff-creditor, the
judgment
creditor,
file
motion for execution of that judgment? The answer is no. Rule 3 is very clear. If there is a
judgment
against
the
estate represented by the executor or administrator, a judgment for money, which has
been
entered,
that
judgment cannot be executed under rule 39. What the judgment creditor should do is to
submit
his
claim
supported by a final and executory judgment before the settlement court and in that settlement
court,
although
the judgment is already final and executory, there is no assurance at all that the judgmentcreditor
will
be
able
to
of
deceased
person is under the control of a settlement court, no court can issue a writ of execution against
the
estate
of
the
deceased person. We dont make use of rule 39 when it comes to a final and executory
judgment
for
money
against the estate of a deceased person. We follow the procedure for the payment of claims
outlined
in
special
proceedings - settlement of estate. We dont make use of rule 39; we dont allow the court
to
issue
writ
of
execution against the estate of a deceased person although the estate of a deceased person is a
party
to
the
case.
The satisfaction of judgment will have to be submitted to the settlement court. So after the case
is
decided
by
the
trial court, and then the decision in favor of the plaintiff becomes final and executory, the trial
court
has
done
its
duty. The trial court will have no authority at all to issue as a matter of right the writ of
execution
in
favor
of
which
is
in
turn
Now we go to rule 4 on venue of action. Venue is one procedural principle which the SC allows
to
be
between
the
parties. There is only one court that can disregard the rules of court in the application to pending
cases
and
that
is the SC. The CA, RTC cannot disregard the provisions of the rules of court although the CA or
trial
courts
feel
that application of the rules may lead to injustice. That is a prerogative that is enjoyed only
by
the
SC.
The
reason why the SC can disregard the rules of court is because it is the SC that is the author of the
rules
of
court.
The rules of court come from the SC. So if the court of appeals or the trial courts come to the
conclusion
that
the
application of the rules of court may lead to an injustice but they cannot disregard the rules of
court,
what
is
the
duty of the court of appeals or the trial courts? The trial courts can incorporate in their decision
that
is
written
in
accordance with the rules, an advisory to the defeated party to appeal the matter to the SC.
In
that
way,
they
comply with the provision of the rules of court and they give an opportunity to the aggrieved
party
to
bring
the
matter out to the SC. But in so far as the SC is concerned, if the SC concludes that an application
of a procedural principle is inequitable or it will lead to injustice, the SC can simply disregard
the
rules.
We
come
across
in
our
studies of procedure that even the principle or res judicata can be set aside by the SC although
res
judicata
is
concept that on the state policy, it is envisioned as part of the rules of court. If the rules say that
even
if
the
rules
say that intervention for instance can be done only before judgment is rendered by the trial court
and
therefore
intervention can no longer be had on appeal, if the SC thinks that an intervention should be
allowed
even
the
case is already on appeal, the SC will allow the intervention and the SC has done so several
times.
So
the
SC
can
disregard the provision of the rules of court if the SC thinks that it will lead and work equitable
solution
of
the
case. But with regard to venue, this is one procedural principle that can be a subject of
stipulation
between
the
which
is
in
conflict with rule 4, it is the stipulation between the parties that will prevail. So that, if you are
confronted
with
question on venue of actions, do not always look at the problem from the point of view of rule
4.
You
always
first determine whether there is a written agreement between the parties concerning venue
and
that
written
agreement has the feature of exclusivity; That agreement must be reduced in writing; The
feature
of
exclusivity
and it has been entered before the commencement of the action. Rule 4 on venue is the rule
which
recognizes
the
classification of actions into real action and personal actions. So you will notice that in rule 4,
there
is
venue
for
real actions, there is a venue for personal actions. But again, there is an express provision saying
that
the
parties
can change this rules on venue depending on an agreement reduced into writing with the feature
of
exclusivity
before the case is filed. So in a real action usually, the venue in the absence of an agreement
is
the
place
where
the property is situated or any portion thereof is situated. So if the land subject of the
controversy
is
located
here
in Manila, the venue should be Manila. But there is nothing wrong if the parties to a contract let
us
say
contract
of sale involving this parcel of land will agree in that contract of sale that the venue of an
action
that
will
arise
out of the breach of contract of sale, the venue shall be Quezon City or Makati or even Cebu City.
And
that
will
govern the rule on venue in so far as the parties are concerned. In personal actions, that is,
the
action
does
not
involve real rights or real property, the venue in the absence of stipulation is the residence of the
plaintiff
or
the
residence of the defendant, the principal plaintiff of the principal defendant at the option
of
the
plaintiff.
Supposing the action is called a mixed action, meaning some decisions of the SC, there is also a
classification
of
action into mixed that is aside from real and personal action, the court added the
classification,
3 rd
mixed
action. The action is both real and personal. What will be the venue of the action in the
absence
of
stipulation?
The venue will follow the rule on real actions. So the feature of an action as a real action will
prevail
over
its
the
action
is
in
personam or the action is in rem, or quasi in rem, do we have a rule on venue under rule 4 if the
action
is
in
rem
or quasi in rem or in personam? Well if you read rule 4, the only classifications that are
relevant
or
material
to
venue is the classification of real and personal. So that if the action is in rem or in personam or
quasi
in
rem,
how
do we determine the venue of the action in the absence of stipulation? Thats not a problem. If
the
action
is
in
rem or quasi in rem or in personam, all you have to do is to further analyze whether that in
rem or quasi in rem or in personam action is real or personal. If an action is classified into in
rem,
quasi
in
rem
or
in
personam,
it
does not mean to say that that classification of in rem or in personam or quasi in rem
prohibits
further
classification of the same action into real or personal action. So we can have an in rem action
that
is
real
action
at the same time; we can have an in personam action that is a real action at the same time.
But
for
purposes
of
venue, we simply follow its classification as a real action. In the same way that an action in
personam
could
also
be real or personal. If the action in personam is a real action, then we follow its feature as
a
real
action
for
purposes of venue. For instance, action reinvindicatoria, that is, to recover title to or ownership
or
possession
of
a piece of land is of course a real action. The venue therefore is the place the property or any
portion
thereof
is
situated. But if the classification to action reinvindicatoria right away is in personam, you
have
to
further
determine if that in personam actin is either real or personal for purposes of venue. Action
reinvindicatoria
is
real action and at the same time in personam action. It is not correct to say that simply
because
title
to
or
possession of property is involved, that the action is a real action and at the same time it is an
action
in
rem.
real action could be in personam. We said that action reinvindicatoria, action publiciana, they
are
real
actions
but they are also in personam at the same time. A good example of an in rem action which is
personal
will
be
settlement of an estate of a deceased person when the only properties of the estate are personal
properties.
There
are no real rights; there are no real properties in the estate. That is in rem because a settlement
proceeding
is
an
in rem action but at the same time is only a personal action. You have to be reminded always
of
the
decision
of
the SC in that old case of Sweetlands (?). Although parties are generally given the prerogative to
stipulate
on
the
rules on venue as long as there is that the agreement is reduced into writing and there is a
feature
of
exclusivity
and the agreement is entered into before the action is commenced. That in the case of
Sweetlands(?),
the
courts
also have the power to determine the validity of an agreement concerning venue. According to
the
SC
in
that
old
case of sweetlands(?), if the agreement concerning venue will cause undue burden of
remedies
to
plaintiff,
then the agreement can be set aside by the court. In that case of sweetlands(?), the injured
parties,
the
plaintiffs
were heirs or representatives of a person who died as a result of an accident involving a vessel.
In
the
passenger
ticket issued by the shipping company which transportation company usually adhere there
is
embodied
stipulation saying that the venue of the action shall be the principal office, the place where the
principal
office
of
the shipping company is located. That is a valid agreement. But when the victims of this
accident
tried
to
file
cases in their respective provinces or cities where they were residents, the courts before these
complaints
were
filed told them that you have to follow the rule on venue. You have to file your cases, your
claims
for
damages
according to the contract at the place where the principal office of the shipping company is
located.
And
the
place where the principal office of the shipping company I think was Cebu City and the
victims
were
all
residents of Southern Luzon, of Northern Luzon, so it was practically impossible for the
victims
to
file
their
complaints in Cebu and attend trial in Cebu. So the court said, exercising its authority on liberal
construction,
that agreement is void. It is not valid although it is part of the ticket issued by the shipping
company
adhered
to
by the victims. The rule on venue in rule 4 is designed for the convenience of the plaintiff, to the
injured party. It is not designed to serve the interest of a defended party. Thats why it is
axiomatic when it comes to venue that the rule on venue is primarily for the benefit of a plaintiff.
Thats why in personal actions, the plaintiff is always given the choice, the option whether to
file the complaint in his place of residence or in the residence of the defendant at the choice
of the plaintiff. You will also notice that the rule on venue applies only to trial courts. They
dont apply to appellate courts so there is no rule on venue in so far as the SC is concerned
because there is only one SC unlike RTC or an inferior court where there are several regional
districts throughout the country so this is limited only to trial courts, RTC or inferior courts.
We said yesterday that prior barangay conciliation is a condition precedent to the accrual of
the
cause
of
action. Even if the rightholder can show that his right is already violated by other party, he
cannot
simply
commence an action in court without first undergoing prior barangay conciliation. As long as the
requisites
are
applicable. There are two requisites under the LGC: first is that the parties must be natural
persons
and
second,
they reside in the same city or municipality. As long as these requisites are present, prior
barangay
conciliation
is a must regardless of nature of action, i.e. real or personal. Or if it is a claim for money,
regardless
of
the
amount involved.
If the party is a creditor and the amount sought is 1 Million pesos, prior barangay conciliation is
necessary. It is easy to conclude after reading the LGC and The Implementing Rules approved
by the Supreme Court that prior barangay conciliation is a first layer set up by law to prevent
parties from bringing the action to any court. The reason is that the courts are loaded with cases.
IF there is a chance to settle amicably, then they must do so. After all in the Civil Code, amicable
settlement is part of public policy.
The barangay court is not really a court. It is part of executive department. In adjudicating
disputes
it
may
be considered as quasi-judicial body. Barangay courts are not allowed to adjudicate cases.
Their
only
role
is
to
conciliate, mediate and encourage parties to amicably settle and submit compromise
agreement
if
the
parties
agreed freely. Procedurally, a barangay court follows more or less the procedure we follow in
regular
cases.
The
barangay court sends notice to respondent if a complaint is filed against him. But the complaint
does
not
have
to
be in writing but barangay courts usually require a written complaint and a written answer. The
barangay
court
also requires payment of fees, but the fees are minimal. In Metro Manila, the highest fee
imposed
is
not
more
than 50 pesos. A barangay court has the authority to collect docket fee when a complaint is
filed.
If the complainant fails to appear when the barangay court calls for conferences, the barangay
court may order a dismissal and that dismissal is one with prejudice. Thus, the complainant
may lose the right to recover his claim against respondent.
There is also a rule in venue, but different in the rules set out in Rule 4. The venue before the
barangay
court
is the residence of the respondent if the complainant and respondent reside in different
barangays
of
same
cities
or municipalities. It does not matter what kind of action is as long as the contestants are
natural
persons
who
reside in same city or municipality. This applies to all civil actions. It is applicable also in
special civil actions like
in an action for unlawful detainer, forcible entry and interpleader. But we do not apply barangay
conciliation
in
an action for declaratory relief because there is really a dispute in such case, also in Rule 65
even
if
parties
reside
in same cities or municipalities. The reason is that in the enumeration of excepted cases, it
includes
public
officers in the performance of their duties. In certiorari, prohibition and mandamus, you expect
the
respondent
or
quo
warranto.
The duty of the barangay court is just to convince the parties to settle amicably. If they do not,
the
barangay
court must issue a certification stating that no compromise occurred in matter or case under
conciliation.
And
this enables parties to file a case in court. But if the parties agreed to sign a compromise
agreement,
then
the
agreement later on could be considered as a final and executor judgement, that is, if there is
repudiation
made
by anyone of the parties. They may avail the execution of the same. The grounds for
repudiation
are
the
same
grounds given in the Civil Code and treated as vices of consent (fraud, intimidation etc). If there
is
repudiation,
the barangay court will issue a certification that the plaintiff is free to file a complaint in court.
In converting a barangay court in an arbitral tribunal, the parties must sign in writing
constituting
the
barangay court as such. That agreement may also be repudiated within 5 days from
submission.
If
not
repudiated, the barangay court will act as quasi-judicial body. It can receive evidence, and
render
decision
as
arbitral body. That decision may also be contested, not by repudiating but a petition to annul
before
an
inferior
court. The annulment here is different from that of Rule 47. The annulment in barangay
conciliation
on vices of consent.
is
founded
aggrieved party.
If there is a compromise agreement submitted, the barangay court need not ask inferior
court to confirm compromise agreement. If there is no repudiation, the compromise agreement
becomes final and executory and may become a subject of execution by the barangay court..
So, the barangay court after it received compromise agreement, may wait for lapse of 10 days
and if there is no repudiation, the barangay court may consider the compromise agreement
as the law between the parties. If the terms of the compromise agreement are not
complied with by one of the parties, the barangay court may execute the judgement and the
period thereof is a very short period of 6 months compared to that of Rule 39, which is 5 years
from entry of judgement. And after 5 years there is another period of 5 years for the revival
of judgement. Insofar as compromise agreement in barangay courts, we do not follow the
same.
In the matter of execution in barangay court, while the barangay court may make a levy on
execution, the same is limited to personal property. The barangay court is authorized to
do so, it means to say that the barangay court may sell these in a public auction to satisfy
the claim. If there is no satisfaction of the terms of compromise agreement after selling the
properties, the remedy of creditor is to file a petition before inferior court for the enforcement
of judgement.
In one case decided by the SC, the SC decided a dispute concerning enforcement of compromise
agreement.
(Miguel v Montanez), it gives a manner in which execution may be done. Under LGC and
Implementing Rules, it is specified that a barangay court can enforce the compromise
agreement
that
becomes
final
and
executory
through levy of personal properties and sell them in public auction. In the case, the claim of
the
creditor
is
for
example 500,000 and the creditor and debtor reside in same city or municipalities. There Is
a
compromise
agreement submitted. And the claim of 500,00 was reduced to 200,000. substantially and the
creditor
admitted
that the claim may be paid in installments. The debtor did not comply but the creditor did not
repudiate
the
agreement. So, what the creditor did is not to ask for execution by barangay court but filed
a
complaint
for
recovery of the original amount. The trial court said that the only recourse is to enforce
the
compromise
agreement and cannot file an action for recovery. The Supreme Court said that when
compromise
agreement
becomes final and executory and the debtor fails to comply with the terms of the agreement, the
Court
said
that
such failure is a repudiation of the agreement. The SC cited Article 2041 of the Civil Code and in
this article, it
is provided that when a party to compromise agreement does not comply with his obligation,
the agreement is deemed rescinded. It is rescission by operation of law. Thus the creditor is
entitled to recover the claim before the courts of justice.
As long as the terms are complied with, there is no problem. But if the terms are not
followed,
the
failure
of
debtor to follow means repudiation and automatic rescission of the compromise agreement.
In
our study of rescission, there must always be a complaint filed. But in the article cited by SC,
there
is
rescission by operation of law and thus judicial decision is not necessary. The creditor then will
be
reverted
to
his original position insofar as the original amount is concerned even if he agreed to the
reduction
of
the
amount
of credit in the compromise agreement. The repudiation then may be manifested by mere
refusal
or
failure
to
comply with the terms of the agreement. Im not sure if this decision is applicable to
compromise
agreements
submitted before regular courts of justice. In regular courts if the parties submitted a
compromise
such
agreement
agreement,
becomes
the
basis
of
the
judgement
of
the
court (judgement
on
compromise) and it is
immediately executory. If the parties violate the terms of the agreement, the remedy is to move
for execution. In this case when the parties submitted the compromise agreement before the
court, that becomes the law between the parties and it cannot be set aside becased on failure to
comply with his obligations.
SUMMARY PROCEDURE
There are also cases that follow Summary Procedure even though cognizable by RTC. And these
cases are those that are mentioned in the Family Code.
The only pleadings allowed in Summary Procedure are complaint, answer, compulsory
counterclaim
and
his own complaint for the enforcement of his claim. There are also motions which are prohibited
like Motion to Dismiss under Rule
subject matter or absence of prior barangay conciliation. Since the motion to dismiss is
prohibited, does it mean to say that the case may not be dismissed on any of the grounds
mentioned in Rule 16? That is not so. What is prohibited is a Motion to Dismiss filed
by
defendant, but Summary Procedure allows dismissal based on Rule 16 as long as the
order of dismissal comes from court itself, without motion filed by defendant. The court is
given authority to dismiss without correlative motion filed by the defendant by examining
contents of the complaint. If the court finds that a ground under Rule 16 is present, it may
dismiss the case on its own. Thus Rule 16 is still applicable but it is the court that must order
dismissal of the case.
Ordinarily, a court in which a complaint is filed cannot simply dismiss the complaint without a
motion filed by the defendant, even if the court thinks that there is a ground for dismissal except
the
non-waivable
defenses.
The defendant is allowed to file responsive pleading. And the period to answer is non
extendible.
Supposing the defendant ignores the period, and files a motion for extension of 5 days. The
court will consider the motion as not having been filed and the defendant cannot expect the
court to issue an order denying the motion for extension because that is a prohibited pleading.
If there is such a motion filed and the defendant does not file an
answer within
the non
extendible period of 10 days, the plaintiff may ask the court to render judgement based on
the complaint and the evidence attached in the complaint. So it is a very risky move to file a
motion that is prohibited since it will not be acted upon. The court has the discretion not to act
on
it.
If
the defendant is prohibited from filing motion to dismiss except on grounds mentioned earlier,
and
the
defendant after evaluating the complaint is convinced that the case should be dismissed under
Rule 16, he may still use the grounds under Rule 16 as an affirmative defense in an answer. He
may then raise these issues and the court studies the case after submission of position papers.
If the defendant does not answer and the court will render judgement based on complaint and
evidence
attached, it means that the court will not issue an order that the defendant is in default since a
motion
to
declare
now
is
judgement rendered by the court in favor of the plaintiff based solely on the complaint and
attachments.
If you compare this to regular procedure, if the defendant does not answer, the court cannot
simply
declare the non-answering defendant in default. If there is no answer and the plaintiff does not
file
motion
to
declare the party in default, the court cannot issue an order of default on its own. It must be
initiated
by
plaintiff
in
the
In Summary Procedure, some of prohibited motions are motion for new trial, motion for
reconsideration
and petition from relief from judgement. If there is judgement rendered and the defendant is
prohibited
filing those motions,
there
from
the only remedy of the defendant is to appeal from the judgement. But
is
before
another
under Rule 47 since it is not prohibited.
But
he
can make use of Rule 47, the Rules are very strict insofar as annulment of judgement are
concerned.
In Summary Procedure, we have preliminary conference similar to pretrial conference. There is
no actual trial. What the court would require the parties to do if there are triable issues is to
submit testimony of witness in a form of affidavit and position papers. These are the papers to
be evaluated by the court in deciding.
A trial is not absolutely prohibited since Summary Procedure includes certain criminal cases. If
the case is a criminal case, the court cannot do away with a trial. The court cannot deprive the
defendant of the right to cross examine the witnesses. What happens then is that the prosecutor
will submit affidavit of prosecution witnesses but they may be subject to cross examination. If
they dont go to court for that purpose, the court may strike out the affidavits insofar as such
witness is concerned.
The reason why trial is allowed in a criminal case is that the SC cannot violate the constitutional
right given to the accused to confront the witnesses against him and to cross examine the
witnesses in a criminal case. That right is not given to a defendant in a civil case.
SMALL CLAIMS
In Small Claims, lawyers are prohibited from appearing. The parties may still protect their
interest because they are not required to make their own pleadings. There are forms prepared by
the courts to be filled out by the parties. It is a matter of asking from the clerk of court of these
forms and the parties will just fill up the blanks and then submit it to the court. But payment
of docket fees is also necessary.
Joinder of causes of action is allowed as long as the causes of action joined will not go
beyond 100,000, exclusive of interest, damages, attorneys fees, litigation expenses, costs.
We also have similar section in prohibited pleadings as in Summary Procedure.
What is emphasized in Small Claims is the Judicial Dispute Resolution(JDR). The inferior court
will encourage the parties to enter into compromise agreement.
One of the differences between Small Claims and Summary Procedure is that there are no
criminal
cases
involved in Small Claims. Another important difference is that in Small Claims, the judgement
of
the
court
is
immediately final and executory. There is no appeal available. It also prohibits Motion for New
Trial,
Motion
party
for
Judgement.
challenge judgement is not available. The Circular says the judgement is immediately final and
executory.
The
only available relief then is Rule 65. While in Summary Procedure, appeal is available. If
appeal
is
available,
Rule 65 is not available. Availability of appeal forecloses availability of Rule 65. Availability of
Rule
65
is
not
really a benefit because petition filed under Rule 65 does not stop the court from rendering a
decision unlike in
appeal. In appeal, execution of judgement is not allowed except in Unlawful Detainer and
Forcible
Entry
because there is a provision that says that in these cases, the judgement rendered in
favor
the
plaintiff
is
execution
of
judgement can easily be corrected by posting a supersedeas bond if necessary. These remedies
are
not
available
to defendant in Small Claims but he can avail of Rule 65. But when he avails Rule 65 it does
not
meant
to
say
that the inferior can no longer execute judgement. The only way by which Rule 65 can stop
immediate
execution
of judgement is if the court taking cognizance of Rule 65 will issue TRO or writ of preliminary
injunction
which
may not be complied with by defendant because in preliminary injunction or TRO since the
applicant
here
must
post a bond. So it is difficult for the defendant to prevent the execution of judgement in Small
Claims.
In ordinary procedure, pleadings are always in writing even if the court is an inferior court. The
rules now allow a party to make use of 9 pleadings. If you compare it with motions, there is no
limit with respect to number of motions that may be filed.
into claim pleadings and responsive pleadings. There are only two responsive pleadings:
reply and answer. But it does not mean to say that the defendant cannot make use of claim
pleadings like a counterclaim, crossclaim or third party complaint. Even if there is a
classification of these pleadings, there is no prohibition on the part of the defendant to make
use of these pleadings. If defendant files answer and he thinks he has claims against plaintiff, he
may file answer with counterclaim. He may also file a crossclaim against co-defendant.
In Rule 7, the classification of pleadings into initiatory and non-initiatory pleadings is necessary
for the purposes of determining whether or not the party must accompany his pleading with
certification of non-forum shopping. In initiatory pleadings, it is necessary that there is such
certification. Without which, the complaint may be dismissed, with prejudice or without
prejudice. Also, the classification is necessary to enable the court and the parties to know
whether there is a need to pay for docket fees since in initiatory pleadings, payment of docket
fees is necessary. If an initiatory pleading is filed without payment of docket fees, the court
does not acquire jurisdiction over these pleadings.
With respect to a complaint, what the Rules require to be alleged are only ultimate facts. This
rule
is
not
followed in certain cases, like when the case is governed by Summary Procedure since in such
procedure,
it
is
necessary that the complaint is accompanied by evidence that the plaintiff decides to submit
to
the
court.
Also
by evidentiary facts(testimony,
documentary).
Thus when defendant files his answer, he must support it also with evidence that he intends
to present to the court Note that Rule 6 does not prohibit the plaintiff or defendant from alleging
evidentiary
facts.
Ultimate facts are facts which constitute cause of action. An allegation that plaintiff has a
right.
An
allegation that the right is violated by defendant. An allegation that there is compliance of
conditions precedent. For instance, an allegation that plaintiff has undergone prior barangay
conciliation is an ultimate fact if the case is governed by prior barangay conciliation.
Insofar as the answer is concerned, it is a pleading that responds to a complaint. The
answer must contain a negative defense, affirmative defense of both. The problems that
usually arise in an answer is with respect to a negative defense. A negative defense is an
important part of pleading, and when we talk about negative defense, it involves specific
denial. The standard to be followed in ascertaining whether denial is a specific denial or not a
specific denial is found in sec 10 of Rule 8.
There are three modes by which specific denial may be had. The first mode is the denial of
allegations
with accompanying grounds relied upon to support his denial. Second is part denial and part
admission.
Third
is just a statement that he has no knowledge concerning truth of allegations in the complaint.
If
you
analyze
Rule 8 on specific denial, the law does not require the defendant to file an order of reference. It is
a
choice
on
the
part of the defendant as to what mode he opts to choose. So that theoretically, the defendant
may
make
use
of
the third mode right away. Theoretically, the defendant may file answer that he has no
knowledge
and
etc.
But
the
SC discourages the defendant in using the third mode since it imposes some sanctions if
defendant
insists
in
using third mode as the only mode in his answer. If you note the allegations in paragraph 1, it
usually
contains
the legal capacity of plaintiff and defendant. If defendant make use of the third mode, it is
unreasonable
that
he
alleges that he does not know his citizenship, etc. there are certain allegations in complaint
that
is
known
by
defendant like his name and residence. If he denies it, he must make use of other modes of
denial.
To
avoid
the
possibility that defendant may abuse the use of third mode, the SC says that if the defendant
says
that
he
has
no
knowledge as to certain allegations in the complaint and therefore specifically denies them, the
defendant
has
to
explain why he has no knowledge with respect to such allegations. If he fails to do so, it will not
be
considered
as specific denial. It will be considered as general denial. And if it is a general denial, it will be
treated
as
judicial
admission as to the truth of the allegations contained in the complaint. The effect of judicial
admission
is
that
it
to
rebut
the
same. The court then may immediately enter judgement on the pleadings upon motion of
the plaintiff.
Another form of specific denial frowned upon by jurisprudence is this kind: I specifically
deny paragraph 1 of the complaint because I have no business with plaintiff. I deny specifically
paragraph 2 because there is no contact between plaintiff and defendant that is not specific
denial. That is general denial and thus considered as general denial.
A negative pregnant is a denial in form since it uses the words specific denial but when you look
at
the
denial, there is no ground to support the denial. That is in violation of the first mode. Thus it
may
be
treated
as
judicial admission. If defendant files an answer with a general denial, and he uses the words
I
specifically
deny but he does not inform the court of the grounds relied upon to support his denial. It is a
specific
denial
in
form and insofar as the court is concerned that is a general denial. Does the defendant have any
remedy
at
all
to
convert the general denial into a specific denial? Yes. It is provided in Rule
pleader
feels
that
10. If the
he
commits an error, he may amend the pleading as a matter of right before a responsive pleading
is filed.
In some special proceedings we dont apply this rule on specific denial since we allow general
denial
like in Habeas Corpus. But the Circular on Amparo, Habeas Data expressly prohibits general
denial.
It
must
filed
before RTC and that filed before an inferior court. The requisites are the same. But we are
concerned
with
the
other qualification. A counterclaim may be a compulsory counterclaim if filed with RTC but not
a
compulsory
counterclaim anymore if filed with inferior courts simply because there is an amount
alleged
in
that
counterclaim. The usual example of compulsory counterclaim usually alleged in the answer is
that
the
filing
of
the complaint is unjust and without basis and therefore the defendant has been compelled to
avail
the
services
of a lawyer and forced to pay attorneys fees and because of the unjust filing of the
complaint,
he
suffered
200,000. If that is the tenor of a compulsory
filed
by
the
defendant in RTC, it is still treated as compulsory counterclaim by RTC even if the amount is only
200,000
which
is below the jurisdictional amount. If there is a complaint for the recovery of 1 Million and the
defendant
alleges
We
challenge the jurisdiction of RTC simply because the amount is below 400,000. But if the
complaint
is
filed
before
an inferior court and the amount sought is only 300,000 but the defendant sets up what he
calls
compulsory
connected
with
the subject of the complaint, is treated as permissive counterclaim. Thus the inferior court
may
order
the
dismissal of the counterclaim for being outside of its jurisdiction. If the amount is beyond
the
authority
of
inferior court, the compulsory counterclaim will be treated as permissive counterclaim. But if
the
court
is
RTC
and the amount of the compulsory counterclaim is below its jurisdictional amount, it may still
hear
the
case
with
respect to counterclaim.
A
reply
definition
of
useless, if you
read
the
reply,
plaintiff
the
new matters alleged in the answer are deemed controverted. They are not deemed
admitted.
Usually,
what
happens in a complaint, for instance, is that if the allegations in a complaint are not specifically
denied
or
there
is nothing mentioned at all in the answer about the truth or falsity of such allegation, then the
allegation
in
the
complaint is admitted. That is a judicial admission. We dont follow that principle when it
comes
to
new
matter that is alleged in an answer filed by the defendant. For instance, the creditor files a
complaint
against
debtor for the recovery of an unpaid loan. We assume that the allegations in the complaint are
adequate,
that
the
creditor has a right to enforce collection against defendant. If the defendant does not
specifically
deny
or
does
not set up properly affirmative defenses in his answer, the defendant is sanctioned by law.
The
failure
of
the
defendant to make specific denial or properly set up an affirmative defense will lead the court
to
conclude
that
the defendant has admitted all the allegationsin the complaint and therefore the defendant will
have
no
chance
of winning the case, if his answer is not amended, should there be a judgment on the
pleading.
But
if
the
defendant files an answer properly crafted and he introduces a new matter in that answer the
new
matter
introduced is the assertion that the defendant has paid the debt. Is that a good defense? that is
good
defense.
In
fact it is even a ground for a motion to dismiss, that the debt has been paid with
abandoned
or
otherwise
extinguished. So instead of filing a motion to dismiss the defendant chooses to incorporate that
in
an
answer
as
an affirmative defense,which is also allowed by law. So the new matter introduced is the fact
of
payment.
The
plaintiff does not file a reply. Is the plaintiff deemed to have admitted that the obligation has
been
paid?
The
answer is no. This time we follow the definition of a reply. The new matter alleged in the
answer
is
deemed
controverted even without a reply. So the plaintiff does not have to submit his own pleading in
response
to
that
new matter alleged in the answer. It is the law itself which tells the court that the new matter in
the
allegation
is
deemed controverted. It will be deemed subject of a trial conducted by the court. If we are
going
to
follow
rule
16in our example, the defendant now can ask for a preliminary hearing in order to show that
there
has
been
the
payment of the debt. But for purposes of reply, there is no need for the plaintiff to controvertthe
new
matter.
So
whenever you go to the definition of a reply you must take into acounterclaimount the second
sentence.That
is
the most important part in the definition of a reply. If there is no reply the new matter is deemed
controverted.
It
as
the
least
Are there instances where a party should file a reply not because it is mandated by the rule
but
in
order
to
protect his interest in the pending case? in the past there were two exceptions expressly
recognized
by
the
old
rules,where the filing of areply was mandatory because otherwise the plaintiff does not file
areply
he
would
suffer serious and adverse consequences. The first was when there was an allegation in answer
of
the
defendant
about usury. The second was where the answer of the defendant is founded on an actionable
document.
In
these
two instances in the past, the plaintiff was expected to file a reply For the reason that if he fails
to file a reply made a specific denial under oath the allegation of usury and the genuineness of
the execution of the actionable document are deemed admitted. And that is not good for the
plaintiff.
Under the present rules, there is only one exception. The first exception -if an allegation of
usury
in
an
answer
necessitates the following of areply - is no longer applicable because the 1997 rules have
introduced
new
rule
concerning allegations of usury which need specific denial under oath. Under our present rules,
an
allegation
of
usury contained in acomplaint or similar pleading is deemed admitted if not specifically denied
under
oath.
So
when an allegation of usury for the purpose of recovering the usurious interest is contained in
an
answer,
we
dont follow this requirement that there must be a specific denial under oath. The law is very
clear
on
this.
The
allegation of usury must be embodied in a complaint. the liberal interpretation of the rules
will
lead
to
the
pleading
like
counterclaim or cross claim there is need for a specific denial under oath. But the responsive
pleading
is
not
areply. The responsive pleading to that complaint or counterclaim or cross claim will be an
answer.
reply
is
denial
under
responsive
to
cross
claim would still be an answer. If the allegation of usury is contained in the answer then the law
will
apply
the
rule which requires specific denial under oath. Theres no such provision now in the rules.
It is the second exception that is still applicable up to the present. When the answer is founded
on
an
actionable
the
adverse
party should, if he wants to make a denial of the actionable document, do so specifically and
under
oath.
For
instance, if the defendants defense again is payment and he alleges in his answer that the
fact
of
payment
is
supported by receipt issued by the plaintiff himself acknowledging full liquidation of the
indebtedness,
under
to
allege
in
the compliant the actionable document. How does the pleading of a defendant allege an
actionable
document?
there are two ways of doing that. in the pleading whether in acomplaint or an answer the
substanceof
the
actionable document should be stated and then a copy of the actionable document should
be
appended
or
attached to the pleading, to the complaint or the answer. Or if he does not want to place a
summary
of
the
contents of the actionable document, the pleader can simply copy word for word the actionable
document.
On
the part of the adverse party, whether it is plaintiff or defendant who is confronted with
an
actionable
document, the law requires this party to make a specific denial under oath. So if it is the
defendant
who
sets
up
as his defense an actionable document, it is the duty of the plaintiff to make a specific
denial
under
oath.
Otherwise, the genuineness and due execution of the actionable document will be deemed
admitted.
And
again
If it is the plaintiff who should make a specific denial under oath, so that he is not deemed to
have
admitted
the
genuineness and due execution of that receipt, can he not simply file an affidavit? After all he is
under oath. The only way by which the plaintiff can make a specific denial under oath of an
actionable
document
incorporatedin
an answer is by way of reply because reply is the only pleading available. The only pleading that
responds
to
an
answer is a reply. And if the plaintiff makes a reply and he sets up in that reply a specific denial,
he
should
also
see to it that that specific denial is under oath. If there is only specific denial without having been
verified
not enough.
take
that
is
There is genuineness and due execution of the it will be deemed admitted. We will
note
of
the
exceptions given in the rules with respect to the nonapplicability of this principle on judicial
admission
on
genuineness and due execution if there is no specific denial under oath, if the actionable
document
is
contained
in the answer. There are two exceptions in the rule. First, when the adverse party is not a party to
that
particular
document or even if he is party to that document, an order for an inspection of the original
issued
bythe
court
is
not obeyed by the defendant. In these two instances, we dont apply the rule on
judicial
admission
of
genuineness and due execution of the actionable document contained in the answer. The
rule
requiring
the
an
answer
is
described by the supreme court as ?? . meaning that is mandatory. If the pleader does not
follow any of the modes in the rules for pleading an actionable document. The sc said the
plaintiff
will
not
be
allowed
to
present
proof of his cause of action. if it is the defendant who fails to do so, He will not be allowed to
present
proof
of
his
defense. So the attachment of the actionable document or copying the contents of that act
doc
in
the
pleading
adversely affect the pleader if he does not follow either the modes of
pleading
an
act
doc.
Now we go to the third part of the complaint fourth party complaint or fifth party complaint. We
follow
literally
what the rule say it is third party complaint fourth party complaint etc. meaning to say there
is
no
end
To
the
number of complaint that can be impleaded, third party complaint fourth party sixth party
complaint.
As
long
as the allegations in these complaint has something to do with the claim of the plaintiff in the
complaint
you
requires
prior leave of court. We cannot simply file a third aprty complaint without leave of court.
There
is
need
for
leave of court. And the 3rd party complaint must allege that the 3rd party defendant is liable
to
the
3rd
party
plaintiff. The 3rd party plaintiff is always a defendant. The defendant-3 rd party pal is entitled to
recover
from
the
matter
of
the
claim in the complaint. so the 3 rd party complaint is always connected with the subject matter of
the
complaint.
If the complaint,for instance,is for the recovery of an unpaid loan,the 3 rd party complaint
cannot
pertain
to
recovery of the ownership of a piece of land. If the subject of a3rd party complaint should
always
be
related
to
the subject matter of that complaint. Why do we need permission from the court before the
defendant
can
file
3rd party complaint? Because the 3 rd party complaint will forcibly bring into the action a stranger
to
the
case.
The
3rd party defendant is not at present a litigant to the case. It is a stranger to the case. That is why
the
rules
require
that the court should be given discretion whether to allow or not to allow the 3 rd party complaint
because
there
may be no need at all in bringing a stranger to the case or even if there be aneed the claim
against
the
stranger
is
unrelated or unconnected to the subject matter of the complaint. If the court denies the motion
for the admission of the 3rd party complaint the remedy of the defendant- 3 rd party plaintiff is
just
to
file
separate
complaint
against the 3rd party defendant. It is in a 3 rd party complaint were we can best illustrate the
meaning
of
ancillary
jurisdiction of trial courts. Let us say the subject of the complaint is still the recovery of
loan,
1m.
So
the
competent court is the rtc. 1m figure is principal obligation. The defendant asks the court
permission
to
file
an
answer with a 3rd party complaint. In the 3rd party complaint, the defendant asserts that a
stranger,
juan
dela
250T by reason of
indemnity,
subrogation or any other relief. With respect to the complaint, there is no jurisdictional
issue
because
the
competent court is really the rtc . It is with respect to the 3 rd party complaint were a jurisdictional
issue
could
be
raised. The 3rd party complaint is effectively a complaint filed by the defendant against a
stranger
in
case.
And
the amount that he seeks to recover is only 250k this amount is not w/in the jurisdiction of a
rtc.
Can
the
court
upon motion of the 3rd aprty defendant order the dismissal of the 3 rd party complainton the
ground
of
lack
of
jurisdiction? Remember the figure is only 250k. the answer is no. we apply the rule on ancillary
jurisdiction
of
rtc. If a trial court has jurisdiction over the principal case which is the complaint filed by the
plaintiff
defendant
against
the
same
court
will
also
the
exercise
ancillary
pleadings,
jurisdiction
over
all
collateral
incidental
pleading that are related to the complaint. So the 3 rd party complaint to recover 250k should
still
be
cognizable
by the rtc. Is it correct to say that a 3 rd party complaint, 4th party complaint are the only
pleadings
which
will
enable a litigant before the court to bring in by compulsion a stranger in a case? Can a
litigant
also
bring
in
stranger to the case w/o a pleading or 3 rd party complaint. The answer is no. that law does
notsay
that
3rd
the
party complaint is the only means available to bring a stranger to a case. What the law tells us
only
in
the
filing
3rd pc is that it is the complaint filed by the defendant- 3 rd party plaintiff against a stranger
with
court
because
the stranger is liable to the defendant for contribution, indemnity subrogation or other relief.
the
rule
does
not
say that the 3rd party complaint is the only means by w/c a stranger can be compelled to be a
[party
canthe
to
the
case.
defendant compel a stranger to be a party to the case by filing a counterclaim? Can the
defendant
make
use of a cross claim in order to bring in forcibly a stranger to the case. The answer to
thesequestions
is
yes.
The
law authorizes the defendant to bring in a stranger not by way of a 3 rd party complaint
but
by
way
of
bring
in
stranger to an existing case thru the filing of a cross claim. Although the law defines a cross
claim
as
claim
by
defendant against his co-defendant, the law does not say that in filing a cross claim against a co
defendant
that
3rd person cannot be impleaded by a cross claim. in the definition of a compulsory counterclaim,
if
you
go
again
over
the person of this stranger. That is so allowed in the definition of a compulsory counterclaim. One
thing
allowed
a defendant in bringing a stranger to the case by not using a 3rd party complaint but by
using
cross
claim
or
will
say
that
co
defendant,
lets
say,a
case
filed by AvsB and C. the defendants are B and C. if defendant b has a claim related to the
subject
matter
of
the
complaintagainst C, B should file an answer w/ a cross claim. but it could happen that in that
cross
claimagainst
file
cross
claimagainst my co-defendant c plus x/y/z. he has to resolve this question right away because
if
he
fails
to
set
in
the
rules
if
compulsory counterclaim and across claim are not set up they are barred. So the best to set up
this
cross
claim
otherwise his cross claim will be barred. If there is a need to implead a stranger it will be
allowed
to
implead
stranger although it is not using a 3rd party complaint. If you will read sec 11 of rule 6 it
provides
that
cross
claim or counterclaim it will be the basis of the court to bring in a stranger to the case
for
determination of the issues.
the
complete
Well discuss some aspects of the forms of a pleading - Rule 7. If we just literally follow rule 7,
we
can
arrive
at
this same principle. A pleading must always be signedbecause a pleading that is not signed
according
torule
will be treated as a sham pleading. It has no legal effect at all. It is deemed not rendered
filed.
So
pleading
must always be signed. If a pleading is unsigned it is asham pleading and the courtmotu
proprio
can
order
the
striking out of the pleading.Who can sign the pleading? the litigant can sign the plead or if he has
a
counsel,
the
counsel can sign the pleading, if anyone or the respective counsels or both of them the counsel
and
the
client
can
sign the pleading. are there pleadings which will not be admitted by the court if the only
signature
is
that
of
the
lawyer? Is the rules expect the plead to be signed by the party himself, not only by the
counsel?
by
way
of
exception the answer is yes. In Marriage related cases annulment of marriage or to declare
the
marriage
void,
the Sc circular says that the complaint and answer must be signed by the client, by the party
himself.
if
signed
alone by the lawyer the court will not accept this pleading for filing. But generally the signature
of
the
counsel
will be enough In order to have this pleading accepted by the court. Again if we literally follow rule
7,
if
the
law
requires a pleading to be verified but the pleading is not verified or there is insufficient
verification,
rule
says
pleading
and
law
requires
pleadings to be verified. It is only in instances that the law requires verification that the lawyer
should
have
his
pleading verified. And the rule 7 is also very emphatic in telling the lawyer how to verify.
The
pleading
is
verified by the verified statement of the affiant that he has read the contents of the
pleading,
that
these
allegations are true of his own personal knowledgeor it is an authentic document. if the
verification
is
not
according to the tone given in the rules that will be an inadequate or insufficient verification.
And
under
rule
the absence or inadequacy of verification carries with it the effect of an unsigned pleading. But
the
SC
keeps
on
ignoring the provisions of rule 7 with respect to verification.although it would appear in rule 7
that
absence
of
ruling
that
the
question
is
adequate
or
inadequate
and then you are asked what is the effect. Then just adopt the rulings of the sc that theabsence
of
verification
in
instances required by law that the submission of a pleading with inadequate verification is only a
formal
defect.
In fact it has always been a formal defect. It is only in the 1997 rules that the sc inserted these
provisions
that
lack
pleading.
but
the
sc
did not change the doctrines and it follows without saying that lack of verification in instances
required
is
only
formal defect. You might be asked whether verification of a pleading is now the general rule
given
that
in
rule
all initiatory pleadings must carry with them a certification of non forum shopping. a
complaint
initiatory
being
pleading
will
always
an
carry
with
it
shopping.Permissivecounterclaim
also initiatory so we
certification
on
non
forum
is
need to append to
shopping.
withcross claim, a 3rd party complaint, a 4 party complaintbecause these are all initiatory
pleadings.If
the
rule
requires a complaint or other initiatory pleadings to carry with them a certification on non
forum
shopping,
does it not mean to say that these pleadings must also be verified under rule 7? The
answer
is
no.
the
certification on non forum shopping is different from verification of a pleading. When you
speak
about
verification of a pleading, we refer to the allegations contained in the pleading. Thats why in
verification
the
verifier tells the court that he has read the pleading and that the allegations are true and
correct
of
his
own
personal knowledge. The contents of the certification on non forum shopping will not have
anything
to
do
with
the contents in the allegations in the initiatory pleading. the certification on non forum shopping
simply
certifies
under oath that no same action has been filed Before another tribunal, agency or court. That if
later
on
the
one
who signs the certification comes across such similar or identical action that he will so inform
the
court
right
away. So the contents of the certification on non forum shopping have nothing to do with what is
alleged
in
the
initiatory pleading . so we can have a pleading that is not verified but it must contain a
certification
on
non
forum shopping. With respect on this rule on non forum shopping, the court appears to have
adopted
the
rule
on substantial compliance With the requirements of certification on non forum shopping . In the
past
the
sc
was
quite strict. The sc will affirm the dismissal of the complaint because the provisions on
certification
on
non
forum shopping where not literally followed. In a case decided, there was a complaint
where
there
were
plaintiffs. The plaintiffs were all principal plaintiffs. If we follow strictly the rule on certification
on
non-forum
certification
and under rule 7, this defect is not curable by amendment. If we would follow the rule on
certification
it
would
lead to the dismissal of the case.In this case, only 2 of the plaintiffs signed the
certificationon
non-forum
shopping. so the defendant challenged the authority of the court. The authority of the court
to
go
ahead
to
entertain the petition because the rule on non-forum shopping has been violated. the court
refused
to
dismiss
the case. The court says that we will go ahead with the case but we will just drop the claim of
the
non-signing
plaintiffs. so the case will go on insofar as the plaintiffs signed the certification on non
forum
shopping
are
concerned. The sc said that the signature of the two plaintiffs will be substantial
compliance
with
certification on non-forum shopping the general rule is the rules require that the party himself
must sign the certification on non forum shopping. If a lawyer signs the certification on non
forum shopping hes not aplaintiff/ defendant. Hes just a lawyer for the plaintiff and he signs the
certification non forum shopping he must be able to show a special power of atty authorizing
him to sign the certification on non forum shopping.
objection
is
deemed waived if it is not set up in pleading or in a motion to dismiss. Another basic principle
is
because
the
rules encouraged the joinder of causes or even the joinder of parties, there could be several
causes
of
action
that
these
causes
of
action that are set up could be set up jointly or in the alternative so that there could be a
complaint
with
joint
causes of action. There could be a complaint with alternative causes of actions. There could also
be
defense
with
alternative defenses, an answer with alternative defense and answer with joint defenses. Rule 3
in
relation
relation
to
this
rule
in
this
ex
the defendants are impleaded as alternative defendants. since we allow alternative causes,
alternative
defenses
and also alternativedefendant, can the court also tender a decision where the dispositive
portion
also
be
in
the
alternative? That is also allowed. In some special cases, in replevin the last sec in rule 60
authorizes
the
court
to
tender a judgment in the alternative. what is not present in our rules is the propriety of a
complaint
where
the
plaintiffs are made in the alternative. nothing is mentioned in the rules. But there is no mention
at
all
in
the
rules
concerning complaint filed by plaintiff made in the alternative. so in our rule nothing is
mentioned
about
the
plaintiff
vs
defendant. the plaintiffare named jointly. there is nothing mentioned in rules where plaintiffs
being
named
in
the alternative. so again the rules expressly authorize the filing of a complaint where the
pl
or
pl
vs
defendant. But if we follow the gen rule that pleadings should be liberally interpretedto provide
for
just
speedy
and inexpensive determination of the case,well if the court issues the sc might allow a
complaint
where
the
plaintiffs are named in the alternative, which is a principle that is followed by courts in the US.In
federal
rules
in
civil procedure theres an express provision saying that plaintiffs could benamed in the
alternative,defendants
could be named in the alternative, causes of action in the alternative.Defenses can also
be
alleged
in
the
alternative. Unfortunately, that provision on the federal rules on civil procedure were not
incorporated
in
our
rules with respect to plaintiffs being named in the alternative. But again we have defendants in
the
alternative
byexpress provision in the rules, causes of action alleged in the alternativedefenses alleged in
the
alternative.
There could also be a judgment where the dispositive portion is written in the alternative,
like
in
the
case
of
replevin. But with respect to the non waivable defnses given in rule 9,it is always better to
compare
the
non-
waivable defenses in civil actions and non-waivable defense in criminal actions. if you go to
criminal procedure, there are also 4 non-waivable defenses.They cannot be subject of waiver.
They
cannot
be
subject
of
application
of
the omnibus motion rule. In rule 9, the rule on non-waivable defenselack of jurisdiction overthe
subject
matter,
litis pendentia prescription andres judicata. if you compare this non-waivable defenses to a
criminal
case,
you
will immediately notice that there are similarities, there are also differences. for instance res
judicata
w/c
is
non-
not
called
But of course it
res
judicata in a criminal case. In acriminal case it is called double jeopardy. There was a question
asked
in
the
bar
once. Explain the concept of res judicata in treason. That is double jeopardy. so in civil cases,
re
judicata
is
the
alsonon-waivable
defense in a criminal case that is also non-waivable extinguishment or prescription of a
penalty.
so
in
both
prescription is non-waivable defense. The 3rd one where this grounds are similar the absence of
jurisdiction
over
the subject matter that is also non-waivable in a criminal case. It is in the 4 th ground that there
is
distinction
bet
these non-waivable grounds. In a civil case, the ground of litis pendentia is non-waivable.but in a
criminal
case,
does
charge an offense. That is a non-waivable defense. the only difference between the non-waivable
defense
in
civil
and criminal actions is with respect to a criminal action where the non-waivable defense is the
informationdoes
not charge an offense. but in a civil case the equivalent is the failure to state a cause of action.
litis
pendentia
is
not really non waivable defense in a criminal case. so there seems to be no litis pendentia that
is
applicable
in
criminal case. but when it comes to that non waivable grounds, theinformation does not
charge
an
offense
is
equivalent to a civil case if we make use of rule 16 will be failure to state a cause of action.
But
failure
to
state
cause of action is also a ground for a motion to dismiss under rule 16. That means to say that
if
the
complaint
fails to state a cause of action, that it can be remedied even w/o expressly or
formally
amending
the
complaint.Thecourt will decide still in favor of the plaintiff although the plaintiff has not at all
amended
his
in
order to allege a cause of action. Is that possible in a civil case? That is possible if the
complaint
does
not
properly allege a cause of act that defect must be remedied under rule 10 amendment of
pleading
to
conform
with the evidence if the complaint does really allege a cause of action the defendant does not
raise
as
an
issue
in
a motion to dismiss or does not raise as affirmative defense in answer if during the trial the
plaintiff
presents
evidence showing that he really has cause of action and this evidenceis admitted in the court
the
complaint
is
deemed amended by operation of law. Insofar as the court is concerned that complaint now
states
cause
of
action . that is the remedy if a complaint fails to state a cause of action. so the court cannot
consider
it
as
non-
waivable defense it is really a waivable defense in a civ case. Because it can easily be
amended
or
remedied
by
the principle in rule 10 about amendment to conform w/ evidence. can we not follow this in a
criminal
case?
Lets say that the info does not charge an offense during the trial the prosecutor presents
evidence
that
there
is
really a crime committed although the information does not accuse thedefendant of
committing
particular
offense cannot the court apply the rule on amendment to conform w/ evidence? That is not
allowed
because
that will violate constitutional right of the accused to be informed of the charges against him.
so the only reason why we dont allow amendment to conform w/ evidence in criminal case is
because it violates constitutional right of the accused. if he is arraigned for an information
which does not accuse him of any crime, then he is arraigned for nothing. That is what
criminal procedureprovides. In other words, it can apply amendment to conform w/ evidence
as long as we dont violate the constitutional rights of the accused. Unlike in civil case, if the
civil action does not state a cause of action but the defendant has not filed motion to dismiss.
it participates in the trial and during the plaintiff presents evidence that the he has cause of
action. that complaint is deemed amended by operation of law.
Another principle is the rule on default. And we have come across certaincases were the court
were
default
is
prohibited in summmary procedure, small claims, in amparo cases, in habeas data, default is
prohibited.
and
in
rule 9, in marriage related cases default also prohibited. So it is not correct to say that in
civil
action,
if
the
defendant has not filed his answer or a responsive pleading, he can be declared in default upon
motion
by
the
upon
the
defendant,defendant does not file an answer during the reglementary period, upon motion by
the
plaintiff,
we
can order a default. That is a general rule except in caseswhere the motion to declare the
defendant
in
default
is
prohibited or even in cases were the law directs the trial court
investigation
as
and
interest
and then the defendant after summons have been served does not file an answer, can the court
now
on
its
own
declare the defendant in default? the answer is no. default can be done only by the court if there
is
correlative
motion filed by the plaintiff. without the correlative motion, the court has no authority to motu
proprio
declare
the non answering defendant in default. We need a motion. If the plaintiff on the,other hand,
does
not
file
motion to declare the defendant in defaultwhen it is very clear from the records of the case
that
the
time
to
answer has already been expired and the plaintiff does not file a motion, what can the
court
do
now
if
we
prohibit the court from declaring the non-answeringdefendantin default motu proprio? insofar as
declaration
of
the courtis concerned, we need a motion coming from the plaintiff. w/o the motion, the
court
cannot
do
anything concerning the declaration of default. if the plaintiff keeps on ignoring that he has a
prerogative
to
file
a motion to declare the defendant in default. He does not exercise this prerogative, chances
are,
the
court
will
lose sympathy with the plaintiff and court might order the dismissal of the case for failure to
prosecute
for
an
happens
to
the
complaint that he has filed? If he does not receive an answer on time, he should avail of this
remedy
to
file
motion to declare the defendant in default. If he does not file a motion, hell end up receiving an
order
from
the
court dismissing the case for failure to prosecute. That is under rule 17.And under rule 17,
the
dismissal
by
reason of failure to prosecute is a dismissal with prejudice. That is certainly adverse to the
plaintiff
because
he
can no longer file another complaint for the recovery of his claim against the defendant.
Supposing that plaintiff initiates this move to declare the defendant in default, he files a motion.
but
the
motion
in
trials.
which usually
The
theory of the plaintiff when he files a motion to declare the defendant in default ex
parte
is
because
the
defendant does not even bother to answer. why should he be served with a copy of the
motion
to
declare
in
default? If he is served with a copy of that motion, the defendant might entertain the idea of
filing
an
answer
in
order to preempt the granting of that motion. The sc said that it is not the correct argument. In
fact
rule
is
very
clear. A motion to declare a defendant in default will be served upon the defendant if it is not
served
upon
the
defendant that motion is a useless piece of paper. So if the defendant receives a copy of the
motion
to
declare
him in default and there may be signs to file an answer and his answer is now received can the
court
still
declare
him in default? The answer is yes. If the court follow strictly the rules of court. But as a matter
of
policy
if
the
answer is already been filed although it is filed out of time it is now part of the rec of the case.
Will
the
trial
court
still declare him in default? The answer is no. the sc has repeatedly informed the trial court
that
as
much
as
possible this very technical rule on default should not be applied strictly. Even if the period
to
answer
has
already expired, but an answer is filed out of time the court should still admit that answer and
deny
motion
to
declare the defendant in default. The reason why the sc has adopted this policy is because if
the
defendant
is
declared in default the court can right away render a judgment of default against defendant
without
conducting
a trial. In rule 9 if defendant is declared in default rule 9 gives the trial court 2 choices. 1 st is to
render
judgment
right away based on the allegations contained in the complaint. 2 nd is to require the plaintiff to
present
evidence
ex parte in support of his allegations. At least in the 2 nd option there will be a reception of
evidence.
Unlike
in
the 1st option the trial court will just rely on the allegations in the complaint. And if there is trial
ex
parte
where
the defendant is in default, the defendant will not be allowed to participate in the trial unless he
is
able
to
secure
an order from the court to lift the order of default. So if the defendant is declared in default
and
then
trial
is
ordered by the court even if defendant goes to court w/ his answer the court will not entertain
the
defendant
because one of the sanctions of a declaration of default is the defendant inability to participate
in
the
trial.
So
if
the defendant is in default there is 99% chance that he will lose the case because he has not
filed
an
answer
at
all.
And if theres going to be a trial, it is only the plaintiff who will be allowed to present
evidence
and
appear
during the trial because this is a likelihood in default in court cases rule 9 is also very
explicit
in
saying
that
when the defendant is declared in default although the judgment in default is favorable to the
plaintiff
the
trial
court should see to it that the award should not be more or different than that prayed for in the
complaint.
So
in
our ex where there is a complaint to recover an unpaid loan, the defendant is in default and the
court
orders
the
presentation of evidence ex parte, the plaintiff is the only one present in court and introduce
any
evidence
he
wants because nobody is around to object to his evidence. He presents evidence that the
indebtedness
of
the
defendant is not only 1M but 3M the court now decides the case if the court believes that there is
preponderant
evidence that will justify an award of 3m can the court render such judgment? The answer is
no.
in
rule
9,
the
award in default judgment by the court cannot be more than what is prayed for in
the
complaint. It could not be different from the relief prayed for on the complaint. It could be less
than
what
is
prayed
for
in
the
complaint,
it
could be equal but it could not be more than what is prayed for in the complaint. Even if
there
is
ex
parte
presentation of evidence. Do we follow this rule whenever the court authorizes the plaintiff to
present
evidence
ex parte? Because of the inability of the defendant to comply with certain rules/ orders of the
court.
we
follow
this rule limiting the award only to default cases. A similar case where there could be an ex parte
presentation
of
evidence is found in rule 18 on pre trial. In the rule on pre trial, the parties should present a pre
trial
brief.
And
they should also be present during the pre trial conf. if it is the plaintiff who does not appear
during
the
pre
trial
or does not submit a pre trial brief, the court can order the dismissal of the case. And that
is
dismissal
w/
prejudice. But if it is the defendant who does not appear during a pre trial or he does not submit
a
pre
trail
brief
the court can authorize the presentation of evidence ex parte by the plaintiff . so whether it is
under
rule
18
or
rule 9, the defendant has violated certain provisions of the rules in rule 9 the violation by the
defendant
is
his
not filing of an answer w/in the reglementary period. In rule 18, the violation by the defendant
consists
of
not
appearing during pre trial or non-submission of his pre trial brief. In these situation, that the
defendant
violates
the rules governing submission of certain papers and appearance during pre trial then rule
18
authorizes
the
trial court to allow the presentation of evidence ex parte by the plaintiff. Weve taken up
what
is
going
to
happen after an ex parte presentation of evidence under rule 9. The decision of the court
cannot
be
more
than
what is prayed. The decision of the court cannot be different from what is prayed. How about
in
rule
18?
The
complaint is still for the recovery of 1m. there is an ex parte trial allow by the court under rule
18.
The
plaintiff
presentation evidence ex parte. During the ex parte hearing the the plaintiff presentation
evidence
w/c
convinces the court that the entitlement of the plaintiff is not 1m but 2m. can the court later
on
award
to
the
plaintiff 2m although his complaint prays only for the payment of 1m? if we read carefully that
provision
in
rule
18 the answer will be the court can award 2m because in rule 18 what the court can do is
to
grant
relief
according to the evidence submitted by the plaintiff unlike in rule 9 w/c says that the extent of
the
relief
cannot
be more than what has been prayed for. It cannot be different from what has been prayed for.
But
insofar
as
rule
18 is concerned, after an ex parte presentation of evidence the relief will be based on what has
been
proven
by
the evidence. Although that relief could be more than or different from what has been
prayed
for
in
the
complaint. Why do we treat the default defendant in rule 9 with more flexibility with
more
compassion
compared to the defendant in rule 18. Well the significant different bet this 2 defendant is
that
in
rule
the
defendant has not filed an answer the court will take pity on the defendant who can be
considered
as
having
surrendered the case to the plaintiff for his failure to file his answer. In rule
defendant
has
filed
18, the
an
answer thats why the court holds a pre trial conf. the violation by the defendant in rule 18 is
not
his
failure
to
answer but his failure to comply with the requirements of rule 18. Remember these 2 different
bet
rule
and
rule
18 when it comes to the extent of the award after an ex parte presentation of evidence.
Another principle in rule 9 is the rule on partial default. In partial default, the factual antecedents
are
that
there
are at least 2 defendant sued under a common cause of action and then one defendant answer
and the other does not answer. Can the non-answering defendant be declared in default upon
motion
of
the
plaintiff?
The
answer is yes. He can be declared in default because default is founded on the premise that
the
defendant
has
been served w/ summons but does not file an answer w/in the reglementary period. So that is his
punishment.
He will be declared in default. Can the court also render judgment by default against a
non-answering
defendant? This time the court cannot do that. Partial default, the most that the court can do
is
to
declare
the
non-answering defendant in default. The court cannot declare the answer defendant in
default.
There
is
no
reason to declare him in default. So if there is an answer filed by one of the defendant, the court
will
be
forced
to
the court will have to call a pre trial. The court will have trail if
necessary.
But
is
no
separate
judgment in default that will be rendered against him. So we follow the normal course. There is
now
trial.
And
during the trial the answering defendant will also be given a chance to present his evidence. Can
the
answering
defendant call the defaulting defendant to be a witness? The answer is yes. The answering
defendant
can
call
the
defaulting defendant as a witness. There is nothing in the rules according to the court
which
prohibits
defaulting defendant to testify in the case. Although he will not be allowed to participate as a
litigant
during
the
trial. After trial the court finds in favor of the answer defendant will that decision be also
in
favor
of
the
wins
the
defaulting defendant wins. The answer defendant loses, the defaulting defendant also loses. this
is
one
situation
where a defaulting defendant can prevail in the case. The reason is because these 2 defendant
are
sued
under
common cause of action. Because this is the rule that we follow in our system where a defaulting
defendant
can
conceivably win in case of partial default, in one case the creditor who sued 2 defendant
where
one
of
the
defendant has answer and the other fails to answer. The court has already ordered the nonanswering
defendant
in default, his counsel most likely told him of this principle in rule 9 so the plaintiff-creditor asked
himself
if
go
ahead w/ the trial of the case and this answer defendant puts up a good fight, I might lose the
case.
Can
just
not move for the dismissal of the case so far as the answer defendant is concerned so I will
be
left
fighting
that
is a good move. because he avoids fighting a defendant who has already filed an answer. So
what
the
plaintiff
did was to move for the dismissal of the complaint against the answer defendant the answer
defendant
naturally
will not object to the dismissal of the case. So the caption of the case was change from
plaintiff
vs
defendant1
and defendant2 to plaintiff vs defendant2. Defendant1 is already out. Can the court now after
presentation
of
evidence ex parte rule against defendant2 who is the only defendant left on the case? Would it
be
trial court to .
proper
for
the
The sc said not necessarily. Even if defendant1 has been dropped from the case
upon
the
initiative
of the plaintiff, what the trial court should examine is whether defendant1 is an indispensable
party
to
If defendant1 is an
the
case.
defendant1
be
around
the
proceedings taken by the court could be void. So it is useless for the court to try the case. Under
the new doctrines enunciated by the sc, if an
has
been
impleaded
he
dropped from the case the court should compel that the
There
should
is
be
an
amendment to the complaint. If the plaintiff ignores the order of the court compelling him
to
amend
is
his
make
use
of rule 17 order the dismissal of the case because of the refusal of the plaintiff to obey an order
of
the
court.
that
is a dismissal similar to dismissal for failure to prosecute, that is failure to obey a lawful order of
the
court
or
the
refusal to obey the provisions of the roc. So that in our ex what the court should do is to require
the
plaintiff
who
has dropped defendant1 to implead defendant1 in the complaint. That should be another
amendment
to
complaint. If defendant 1 is an
court.
that
that
if
the
indispensable party is not made a party to the case what the trial court should do is to
require
the
implead the
to
of
to
indispensable party. If the order of the court is ignored what the court should do
is
dismissal
plaintiff
the
order
complaint.
And
advantageous
that
is
the
dismissal
for
w/
prejudice.
a
Since
it
is
not
non-
of
the
case,
what are the remedies for the defaulting defendant? The first one is to file a motion to lift the
order
of
default.
That is before judgment based on fraud, accident, mistake or excusable negligence and together
w/
this
motion
he should already submit his proposed answer because rule 9 also requires him to convince the
court
that
he
has
a good defense. The only way to do that insofar as the defaulting defendant is concerned is to
submit
motion
with affidavit of merit and append to this motion his proposed answer to the complaint. His
answer
to
the
complaint shall be evaluated by the court and the court could be convinced that the defaulting
defendant
really
has a good and substantial defense. And the defaulting defendant if his motion to lift the order is
denied
cannot
appeal. He cannot appeal the denial of his motion to lift the order of default because the
denial
is
only
an
interlocutory order. That is not appealable. Supposing that the court has already rendered a
judgment
of
default
can he appeal the judgment by default? The answer is yes. He can appeal the judgment by
default
because
the
judgment by default is an adjudication of the merits of the case. Can he also file a petition for
cert
under
65
to
not
available.
But if what is being challenged only is the denial of his motion to lift an order of default
because
the
law
does
not allow the defendant to appeal he can make use of rule 65. But he has to convince the
higher
court
that
the
trial court has acted w/o jurisdiction in excess of jurisdiction amounting to lack of jurisdiction.
Supposing
the
defendant simply tells the court pls lift the order of default and just allow me to file an answer
can
the
court
give
him the opportunity to file an answer although there is already a declaration of default the
court
should
not
allow the filing of answer unless the court lifts the order of default if the court orders the
lifting
the
order
of
default the defendant can now file an answer although the time has already expired. The
court
as
matter
of
public policy should not apply strictly the rules on default because the sc said if we allow
strictly
the
rules
on
Rule 10 on amended and supplemental pleadings lets say that the plaintiff files an action
reinvindicatoria
against the defendant in accion reinvindicatoria one of the jurisdictional allegations is the
assessed
property.
value
of
the
This complaint is filed before the rtc but there is no allegation concerning the
assessed
value
of
the
property. Can the court order the dismissal of the complaint for lack of jurisdiction. The answer
is
yes.
Because
by merely reading the complaint the court will be convinced that it has no jurisdiction the court
will
not
be
able
to determine if it has jurisdiction or not unless the assessed value of the property is
alleged.
So
there
is
something wrong jurisdictionally in our complaint. The rtc may not have jurisdiction over the
case.
The
plaintiff
discovers the error that he has committed. Can he amend his complaint so that he can alleged
in
the
complaint
the assessed value of the property and that will now confer upon the rtc the jurisdiction over the
case.
If
we
are
going to rely on the old doctrines of the sc, the plaintiff will not be allowed to do that. Because
the
old
doctrines
are to the effect that if the amendment will cure absence of jurisdiction that will not be
allowed
but
under
the
because
of
failure of the plaintiff to alleged the necessary jurisdictional averment, he should be allowed
to
amend
the
complaint. Amendment will be a matter of right. A similar ex has already happened but that
case
is
one
of
unlawful detainer. Unlawful detainer is of course cognizable by an inferior court not by the rtc
and
in
certain
instances of unlawful detainer what terms jurisdictional allegation is the presence of a prior
demand
to
vacate
the property it is now settled that in unlawful detainer if there is no prior demand made by the
plaintiff
upon
the defendant for the defendant to vacate the property and pay the rental then that complaint
will
not
come
to
the jurisdiction of an inferior court so this averment concerning the plaintiffs prior demand upon
the
defendant
is according to the court jurisdictional w/o that allegation the inferior court will not acquire
jurisdiction
of
the
complaint for unlawful detainer. So if that is the defect in our complaint simply that there is no
allegation
in
the
complaint for unlawful detainer regarding the presence of a prior demand upon the
defendant
can
the
defendant amend his complaint as matter of right by simply inserting this allegation that the
plaintiff
before
the
filing of the case. Again under the present rules that is allowed. That is a matter of right. that
amendment
will
give to the inferior court jurisdiction over the case. So if you still use these old principles
probably
under
these
ex given you should allow the amendment as matter of right to that complaint even if that
amendment
will
confer jurisdiction upon the trial court. In amendment under rule 10 or even in supplemental
pleadings,
do
not
limit the term pleadings only to the complaint. All pleadings can be amended as a matter of
right.
They
can
be
amended w/ prior permission of the court. complaint can be amended as matter of right
answer
can
be
amended as a matter of right. counterclaim, cross claim, 3 rd party complaint can be amended
as
matter
of
right. The only limitation is that amendment should only be once. And before a responsive
pleading
is
filed.
So
you have to be conversant w/ the responsive pleading to w/c pleading it will relate to.
Complaint-
answer.
counterclaim- still an answer, same w/ cross claim and 3 rd party complaint. So in case of these
claim
pleadings,
the plaintiff can amend his respective pleading as matter of right once before the answer
is
filed.
Can
the
plaintiff amend his pleading as a matter of right or even w/ prior permission from the
court if he changes his cause of action? the answer is also yes. Under the present rules, and as
authorize
by
the
sc
cause
of
action
can
pleading
has
plaintiff
to
change his cause of action by simple amending his complaint under rule 10 that decision of the
sc
was
in
conflict
w/ old doctrines where under the old rules it does not allow the change in the cause of
action
by
simply
amending the complaint even if it is a matter of right. The latest case decided by the sc
affirmed
this
vs
1997
case
the
court allowed an amendment to the complaint not as matter of right but as a matter of
discretion
of
the
court
even if there was already an answer filed by the defendant. Under rule 10, if there is already
an
answer,
the
amendment can no longer be a matter of right. It always w/ a leave of court. But this case of
ports
authority
vs
gozon, the plaintiff filed a complaint for specific performance after it was answered he filed a
motion
before
the
court to change his complaint to a complaint for injunction. There was really a substantial
change
to
the
action
from specific performance to an action for injunction. But this was thru a motion because an
answer
was
already
filed by the defendant the trial court allowed the amendment siting provisions of rule 10, and the
court
affirmed
the ruling of the trial court. So the rule that we follow at present is if it is a matter of right
the
plaintiff
can
amend his pleading by changing his cause of action if it is no longer a matter of right but a
matter
of
discretion
upon the court the court can still allow the amendment of a pleading by changing the cause of
action.
It
does
not
matter if an answer has been filed or not. The sc said that we follow this principle in order to give
to
the
parties
an opportunity in order to have the court adjudicate on the true dispute bet the parties as
long
as
it
does
not
involve prejudice to substantial justice there is nothing wrong if the trial court allows an
amendment
to
the
complaint where the plaintiff will change the cause of action. But the court also said that since
the
amendment
is
w/ leave of court then they are going to assume that the defendant has already filed an answer
to
1st
the
cause
of
action if the court allows the amendment naturally the defendant will be given an
opportunity
to
amend
his
answer. His answer now to the 2 nd cause of action. Theres nothing wrong w/ this procedure. In
fact
the
sc
in
this case encourage trial court to use liberally the rule on amendment to pleadings whether as
a
matter
of
right
or as a matter of discretion.
On the part of the defendant, if a defendant files an answer w/ a general denial thats bad for the
defendant
hes
going to lose the case the responsive pleading to an answer is a reply. If no reply has
been
filed
and
the
defendant amend his answer as matter of right w/o getting permission to the court by changing
a
general
denial
to a specific denial. The answer is yes. We give the same right enjoyed by the plaintiff to the
defendant.
So
the
amended answer will now contain a specific denial. But what is important to amendment as a
matter
of
right
is
that it should be exercised only once before the responsive pleading has been filed. If no
responsive
pleading
is
yet filed, but the amendment is already the 2 nd amendment, we need permission from the
court.
amendment
is
only a matter of right if it is exercised once before the responsive pleading is filed. Can we also
amend
pleadings
if the case is already on appeal to the ca or to the sc? particularly if the amendment is only
formal in nature.
With respect to substantial amendments appellate courts because that will injure the rights of
the
party
who
has
not appealed. What can be brought only to appeal are issues that can be raised before the trial
courts
even
if
it
is
only a matter of discretion trial courts are liberal in allowing amendments. there is a particular
rule
of
evidence,
the
evidence
presented by the plaintiff is not material to the allegations in his complaint then if there is an
objection
by
the
defendant, the objection should be sustained. but if the presentation of evidence does not
appear
to
be
material
and not objected to by the defendant, the court cannot tell on its own the plaintiff not to
continue
w/
with
the
presentation of the evidence. For instance the complaint accion reinvindicatoria, a case
where
the
title
to
or
possession of real property, during the trial the plaintiff does not present evidence which
shows
that
he
is
entitled to the possession of the property subject matter of the proceeding. instead the plaintiff
presents
evidence
which demonstrates that the defendant owes him 3M. if you are the lawyer for the defendant
in
this
case,
you
stand up and tell the court that the evidence concerning defendants liability for 3M is not
material
to
the
case
If
there
is
an
objection which is raised by the defendant the court will sustain the objection. So the
plaintiff
will
not
be
allowed to introduce this evidence concerning the defendants liability for 3M. But supposing
that
the
plaintiff
starts presenting evidence that he is entitled to 3M from the defendant, the defendant does
not
stand
up
and
does not object. The defendant keeps quiet about the reception of evidence. Can the court
refuse
to
admit
the
evidence? The court cannot because the court will always admit evidence although irrelevant
or
immaterial
if
not objected by the defendant so the court will now receive this evidence showing that the
plaintiff
is
entitled
to
recover from the defendant the 3M. You remember that the complaint is for the recovery
of
the
title
to
or
possession of real property. When the time comes for the court to render a decision, can the
court
simply
award
to the plaintiff the 3M, although the plaintiff has not amended his complaint? The answer is yes
and
the
reason
is that the amendment to conform to evidence in rule #10 and this is evidentiary principle. It
also
states
that
this
is no need for the plaintiff to formally amend his complaint. The amendment will take place by
operation
of
law
Even in supplementing pleadings, the principal difference between the supplementing and
amended
pleadings
pleading
as a matter of right and in supplementing pleading the pleader will not be allowed his cause of
action.
It
is
only
in amendment the pleader can change his cause of action. In supplementing pleading the
antecedent
facts
that
are given in the supplementing pleading have taken place after the original pleading has been
filed
and
it
cannot
give rise. A supplemental pleading cannot give a new cause of action in favor of the
plaintiff.
Also
for
the
purposes of evidence, an amended pleading takes the place of the original pleading. So an
amended
complaint
takes the place of the original complaint. An amended answer takes the place if the original
answer.
Will
the
court necessarily discard the original pleading, the original answer, the original complaint or can
they
remain
as
part of the records of the case? For evidentiary purposes, however, the admissions given
in the original complaint or in the original answer, any admission made in an original pleading
will
not
cease
to
be
judicial
admission. In rules in evidence, admissions made in pleadings even in motions for are
considered
as
judicial
admissions. They are conclusive upon the admitter. But if there is an amendment, the
amended
pleading
will
now take the place of the original pleading. How about the admissions made in the original
pleading?
Will
they
remain to be admissions? According to the court, they remain to be admissions but they are no
longer
judicial;
admissions. They could be treated as extrajudicial admissions. For instance, in the example
awhile
ago,
if
the
original answer contains a general denial, that is judicial admission of the allegations contained
in
complaint
and that will justify a judgment on the pleadings. If the defendant amends his answer by
converting
general
denial into a specific denial, then the general denial is construed as an admission will now be
converted
into
an
extrajudicial admission by the defendant. will that be beneficial to the defendant? if you tell him
that
his
judicial
admission has been converted into an extrajudicial admission simply because he has filed an
amended
answer?
That is so beneficial to the defendant because it will not be considered as an evidence against
him
by
the
court.
admission
is
always conclusive upon the pleader. It cannot be the subject of rebuttal evidence.
With respect to the preceding section there's not much discuss except that in the periods for
replevin
or
period
for the filing or issuing notice that there is nothing mentioned at all about the period as to
when
complaint
may be filed the periods begin with the period to file a responsive pleading but nothing speaks in
the
rules
as
to
when a complaint should be filed. The reason is because the filing of a complaint is solely
dependent
upon
the
claim of the plaintiff. We can't force him to file a complaint. It's not possible for the Supreme
Court
to
tell
the
plaintiff you should file this complaint within this particular period. If the SC does so the SC will
be
invading
the turf of substantive law. The filing of a complaint is dependent solely on the decision of the
plaintiff
and
if
there is ever a period fixed as to when that complaint should be filed it will not be determined
by
the
SC
it
will
have to be determined by substantive law. A complaint must be filed so that it can be prosecuted
successfully
as
long as the claim has not prescribed. Prescription is a matter of substantive law. Thats why in
the
rules
it
begin
with the period of when to file an answer but with respect to the other claim pleadings
a
cross
claim,
counterclaim a third party complaint there is a period fixed now in the rules. With respect to a
cross
claim
and
compulsory counterclaim they must be filed within the period fixed for the filing of an answer
because
crossclaim
even
if
a counterclaim or third party complaint are claim pleadings the rules do not allow
the
defending
These
pleadings must always be added or incorporated in the answer. So if defendant has claims
against
the
plaintiff
or against 3rd persons who are not litigants he should file an answer with a counterclaim an
answer
with
crossclaim or an answer with a third party complaint. The trial court will not allow the
defendant
to
file
an
answer today and then next week the defendant will file a compulsory counterclaim or even
a permissive counterclaim or a crossclaim. He will have to amend his answer and then
incorporate in that amended answer a crossclaim or counterclaim or a 3rd party complaint and
with respect to a thirdparty complaint you have to file a motion with the court asking for
permission to admit this third party. That is the way how these pleadings are submitted by the
defending party. Because this is the rule that we follow the filing of a compulsory counterclaim
generally should be together with an answer and an answer has to be filed within 15 days or 30
days or 60 days as the case may be. If there is an answer filed without a counterclaim but
later on the defendant feels that he should set up a counterclaim he will have to file an
amended answer with a counterclaim.
With respect to bill of particulars this is one of the mechanisms that are prohibited in small
claims
procedure
even in summary procedure and in our proceedings like amparo or habeas data. If the defendant
feels
that
there
is a need for the plaintiff to be more definite in crafting the allegations contained in the
complaint
the
remedy
of
the defendant is to file a motion for bill of particulars. If the defendant cannot fully
comprehend
the
subject
matter of the complaint because there are certain inadequacies or the allegations are not
definite
enough
can
the
defendant file a motion to dismiss on this ground? The answer is no Rule 16 does not include
as
ground
for
dismissal the inadequacy of the allegations contained in the complaint. May there be an
instance
where
defendant can rightfully file a motion to dismiss because of the vagueness or inadequacy of
the
allegations
contained in the complaint. that is instead of filing the motion for bill of particulars he should
file
motion
to
dismiss and the court grant dismissal because of the inadequacy or vagueness of the allegations
contained
in
the
complaint. The answer is yes. By way of exception, this happens when a RTC acts as a
commercial
court.
When
the trial court tries disputes in a corporate dispute or disputes among partners or among
members
of
an
contained
in
the complaint the remedy of the defendant is to file a motion to dismiss on this ground. The
reason
given
by
the
court is that in commercial courts applying the procedure outlined by the SC for RTC acting as
a
commercial
court, a motion for bill of particulars is prohibited. So if there is vagueness since motion for bill of
particulars
is
not allowed to be filed by the circular on commercial courts the remedy left for the defendant is
to
move
for
the
dismissal of the case on this particular ground, vagueness or indefiniteness in the allegations
contained
in
the
complaint. In ordinary civil cases where we allow a motion for bill of particulars, the motion is
available
to
both
sides the plaintiff and the defendant. If the allegations in the complaint are indefinite or vague
the
defendants
remedy is to move for bill of particulars. If the allegations contained in the answer are
likewise
vague
or
indefinite the remedy of the plaintiff is also to move for bill of particulars but they are also
in
the
form
of
motion. There is something special about a motion for bill of particulars filed by either party.
While
that
motion
should comply with the requisites of a motion under the rules so as not to be considered as a
useless
piece
of
paper and there should therefore be service upon the adverse party there should also be a
notice
of
hearing
when a motion for a bill of particulars is submitted the court, the court can act upon the
motion
right
away
without waiting for the hearing set for that motion. Usually we set a motion for hearing during
a
motion
day
which is usually a friday. We wait until that motion day so that we can submit to the court for
resolution this motion but not in the case of a motion for bill of particulars if we set the motion
day
for
bill
of
particulars
on
friday and it is received by the court on tuesday prior to this motion day on tuesday can right
away
resolve
the
motion it can grant the motion or to deny that motion. This is one of the few motions that can
be
acted
upon
right away by the court without waiting for the arrival of the date set for the hearing of the
motion.
And
motion for bill of particulars by its very nature should be filed by the defendant before he
submits
an
answer.
And it should be filed also by the plaintiff before he responds to the answer before he submits
his
reply.
If
the
defendant has already submitted his answer it is useless for the defendant to be asking for a
bill
of
particulars.
The filing of the answer means that the defendant has understood has comprehended fully
the
allegations
contained in the complaint. But if the defendant files a motion for bill of particulars and that is
denied
then
the
denial is still an interlocutory order what the defendant should do is to file an answer on
time
within
the
remaining period which should not be less than 5 days but if the motion is granted. The order
of
the
court
will
be directed to the plaintiff ordering him to submit an amended complaint or simply a bill of
particulars
which
will form part of the allegations contained in the complaint. If the plaintiff does not obey the
order
of
the
court
directing him to submit a bill of particulars what is the remedy of the defendant? Either to move
for
the
striking
out of the allegations in the complaint which are vague or indefinite. The second more
practical
remedy
is
to
move that the whole complaint be stricken out and if that complaint in its entirety is stricken out
the
case
will
be
dismissed. If it is the plaintiff who is the movant for bill of particulars and the court directs
the
defendant
to
submit the bill or to amend his answer but the defendant disobeys the order of the court what
are
the
remedies
of the plaintiff? He can ask the court to strike out the allegations in the answer which are vague
or
indefinite
or
he can also move that the answer be stricken out as a whole. If the court authorizes or directs
that
the
answer
be
stricken out although it has been filed on time because of the refusal of the defendant to
amend
his
answer
or
submit a bill of particulars the situation will be as if the defendant has not filed an answer at
all
and
therefore
the next recourse of the plaintiff is to file a motion to declare the defendant in default. So this
is
one
instance
recognized in the rules where a defendant can be declared in default although he may have
already
filed
an
answer on time. Usually the filing by the defendant of an answer on time will preclude his
declaration
by
the
court in default. So it is not always correct to say that declaration in default is predicated on the
premise
that
no
answer has been filed by the defendant. This is one case where there could be a declaration of
default
even
if
the
defendant has filed an answer. The other situation is found in rule 29 the consequences of
failure
to
obey
an
order of the court related to the statute of discovery the modes of discovery. If you go to
rule
29
there
is
provision which says that if the defendant disobeys an order by the court relating to the use
and
availment
of
the modes of discovery, what the court can do is to strike out the answer filed by the
defendant.
And
if
the
answer filed by the defendant is stricken out the next move of the plaintiff should be to have
that
defendant
declared in default.
With respect to the filing and service of motions pleadings and other papers with the court we
should
always
have in mind the difference between substitute service of pleadings and motions and
substitute service of summons. The two are completely different from one another. The
substitute service of motions pleadings and other papers refers to a situation where the motion
or pleading cannot be served in person or personally there is failure to serve even if it is service
by mail by registered mail or ordinary mail. In substitute service of these papers motions
and pleadings what the movant should do is is to submit these motion or pleading with the
clerk of court with proof that personal service and service by mail has failed and when it is
received by the court that is the substituted service of motions and pleadings and other
papers is now completed. In the case of substituted service of summons it happens when
there is failure on the part of the sheriff to serve in person upon the defendant the summons.
If after several attempts the sheriff still could not serve summons in person upon the
defendant the next step for the sheriff to do is to substitute service of summons. So what the
sheriff does in substitute service of summons is to serve the summons at the residence of the
defendant upon a person of sufficient intelligence and discretion or if there is none at the place
where the defendant has his office upon a person who is competent and in charge of that office.
That is the meaning of substitute service of summons you distinguish it with substitute service of
motions and pleadings.
With respect to service of pleadings there is always a preference given by the court to personal
service
compared
with the other modes of service and if a movant or a pleader chooses a mode of service different
from
service
in
person the law requires that you should submit to the court an explanation.
mode
of
service
Why this
other
by
mail has been resulted to instead of personal service. The court in the past has been very
strict
in
this
order
of
preference in the use of the modes of service but recently the court has relaxed somewhat the
rule
depending
on
the nature of the motion that will be served in person or by mail as the case may be. In the
past
if
movant
for
instance files a motion but he chooses to serve upon the adverse party by mail and then he has
not
stated
in
the
motion the reason why he has not observed personal service, usually the court consider that
motion
as
scrap
of
paper because it does not comply with the provisions of the rules but as we said this rule has
been
relaxed
by
the court. It all depends on the importance of the motion that will be filed with the court and that
will
have
to
be
resolved by the court. And one such important motion is a motion to dismiss. Courts are very
strict
with
respect
to a motion to dismiss. The adverse party the plaintiff must be served with a copy by personal
service
if
he
is
not
served by personal service but by mail what the trial court usually requires the defendant to
do
is
to
submit
proof that the plaintiff has indeed received through the mail the motion to dismiss and this
can
be
done
by
submitting to the court the registry return and unless the registry return is submitted the
court
will
not
act
on
that motion to dismiss for failure to observe the requirements for service of this important
motion.
Now we go to summons. Summons is the writ available to the trial court in order to enable the
court
to
acquire
jurisdiction over the person of the defendant. Is it the only writ or process which will enable the
court
to
acquire
jurisdiction over the person of the defendant? Not so. Summons is the usual writ which
enables
the
court
to
acquire jurisdiction over the person of the defending party but the court can still acquire
jurisdiction
over
the
person of the defendant by compulsion even if the court does not issue the summons. For
example is the special civil action in Rule 65 certiorari prohibition and mandamus. They are
special civil actions distinct from the case from which that order or decision has originated but
in rule 65 the rules does not allow the certiorari court or prohibition court to issue a summons
addressed
to
the
defendant.
What
rule
65
authorizes
the
court
to
do
is
to
issue a notice addressed to the defendant requiring them to submit their comment before the
court.
That
order
to
comment if served upon the respondents will enable the court to acquire jurisdiction. So it is
not
correct
to
say
that summons is the only mechanism or process available to the court which will enable the
court
to
acquire
jurisdiction over the person of the defendant forcibly that is by compulsion. We don't have to
talk
about
these
writs or the notice if the defendant voluntarily submits to the jurisdiction of the court, in this case
the
court
will
notification
given by a circular of the court concerning service of summons upon a foreign corporation which
has
transacted
agent
in
the
philippines. In this 2011 circular the summons to be served upon this foreign private corporation
may
be
done
four ways but always with the approval of the trial court.
upon
the
in
First is personal service of summons
foreign
private corporation not doing business in the philippines. But with the assistance of the
department
of
foreign
affairs and also the court of the country where this foreign corporation has its office. The second
mode
is
which
can also be authorized by a domestic trial court is the publication of the summons. It is not the
one found in rule
14. The summons will be published in the place in the country where this foreign corporation has
its office. So if the foreign corporation has its office in taiwan the publication should be in a
newspaper in taiwan. The third mode given by this 2011 circular is by fax message or any
electronic device authorized by the trial court for the service of summons upon this foreign
private corporation or entity. The fourth mode is a combination of any of the three as authorized
by the court.
With respect to domestic private corporations do not forget the rule on acquiring jurisdiction
through
the
service
of summons as explained in that old case of Villarosa vs UNECO. If you are going to sue a
domestic
corporation
you should see to it that summons is served upon the officers of that corporation or a domestic
association
with
juridical entity upon the officers enumerated in the rules of court but the decision of Villarosa
vs
UNECO
has
not been changed it has not been relaxed at all. So you have to know who these officers are they
are
enumerated
in the rules of court the president the managing partner the general manager the
treasurer
the
corporate
secretary or in house counsel of the corporation. Remember that in the case of Villarosa the
summons
was
served upon a branch manager of the defendant and the rules do not include a branch
manager
as
one
of
the
officer upon whom summons can be served and the court ruled that the trial court did not
acquire
jurisdiction
over the person of this corporation because the summons was served not upon anyone of the
officers
mentioned
in the rules of court. Again the doctrine in Villarosa has been affirmed by cases subsequently
decided
by
the
SC
involving corporations and partnership. But in the case of a partnership there could be a
revision.
When
the
association with juridical entity is a partnership what the rules require is that summons must be
served
upon
the
managing partner or a general manager as the case may be. So if the defendant is a partnership
duly registered with the securities and exchange commission 31:22 and the partnership is
composed of four partners service upon anyone of the partners will be a valid service of
summons. Because under the civil code in a partnership the presumption is that all the
partners are managing partners so we apply certain provisions of the civil code. Since all
partners under the civil code are presumed to be managing partners service of summons upon
anyone of the parties will be a sufficient compliance with the law.
It is in service of summons upon a natural person there is a conflict of decisions rendered by the
court
insofar
as
the decision of jurisdiction over this natural person is concerned. In one case decided in 2006
a
defendant
was
sued a natural person for the recovery of money. The defendant stayed in a gated subdivision
according
to
the
court it means that not anybody can enter the subdivision without obtaining the permission of
the
guards
on
the
gate or the owner of the house living within the subdivision. This defendant resided in this gated
subdivision
so
everytime that the sheriff would go to the residence of this defendant to serve summons the
guards
would
not
let the sheriff enter the property. The guards always told the sheriff that that person is not
around
he
cannot
be
served with summons personally. So we will not allow you to enter the subdivision. After so many
attempts
the
sheriff got fed up and what the sheriff did is to leave a copy of the summons together
with
complaint
Literally
copy
of
the
with the guards of the subdivision. Is that a valid substitute service of summons.
that
is
not
a valid service of summons if you will read rule 14 on substitute service of summons. It
means
that
the
summons should be served at the residence of the defendant upon a person of sufficient age and
discretion
then
living therein. If the summons and the complaint was left only with the security guards at
the
gate
of
the
subdivision this will not comply with the rules on substitute service because the guards do
not
reside
at
the
place of residence of the defendant. And then the court also said that the meaning of the phrase
of
sufficient
age
and discretion does not mean that the person to be served by substitute service could be a
minor
residing
in
the
residence of the defendant. The court said that this person of sufficient age and discretion means
that
this
person
between
this
person and the defendant himself. So if the person served is simply a visitor of the residence
that
will
not
be
sufficient service of summons. But in this 2006 case the SC became very liberal. Although it
was
clear
that
the
sheriff did not satisfy the requirements of a substitute service of summons the court ruled
that
the
trial
court
acquired jurisdiction over the person of the defendant so it would seem that in this case we
did
not
follow
strictly the substitute service of summons. But in 2009 another case was decided by the
court
involving
the
validity of a substitute service of summons that is not made in accordance with the provisions of
the
rules.
And
this time the court said if substitute service of summons is not in accordance with section 7 or
Rule
14
the
service
is not valid the court will not acquire jurisdiction over the person of the defendant and
therefore
if
the
court
does not acquire jurisdiction over the person of the defendant the proceedings taken thereafter
by
the
court
may
be invalidated the proceedings may be void for lack of jurisdiction over the person of the
defendant.
In summons you concentrate your study in section 14 15 and 16. These are the sections in
summons
which
has
been the subject of decisions of the supreme court that are really in conflict with one another.
Before 1997 it was firmly established that if an action is filed against the defendant that is purely
in
personam
and
also
personal
at
the same time like recovery of an unpaid loan and the defendant cannot be served by summons
either
in
person
or by substitute service the doctrine then which we follow was that the court cannot
simply
authorize
publication of the summons and after publication of that summons as directed by the court the
court
will
now
have jurisdiction to try the case. This is restricted by that old 1960s or 1970s decision of citizen
surety
vs
herrera.
This was the generally prevailing doctrine in this case a case was filed for the recovery of a
deficiency
arising
from a foreclosure of real estate mortgage. So that action was in personam it was also
personal
in
character.
Although previously the collateral owned by the mortgagor who is now the defendant in this
complaint
have
known address when this complaint for deficiency was filed and a summons was issued the
sheriff
reported
to
the court that it can no longer locate the defendant in the residence or in any other address
given
to
him
by
the
plaintiff so service in person of the summons could not be had substitute service also could not
be
had
because
the residence of the defendant was unknown. What the plaintiff did was to file a motion to
court
where
he
sought authority from the court to publish these summons of course this was in the form of an
ex
parte
motion
because summons has not yet been served upon the defendant the court has not yet acquired
jurisdiction
over
the person of the defendant. During the hearing of the motion it was only the plaintiff who was
present
and
the
lawyer explained to the court that several attempts were made but the sheriff have
failed
to
serve
these
summons in accordance with these modes so the plaintiff asked with the court for authority
to
publish
the
summons which the court readily granted. There was no opposition. After receiving the
order
of
the
court
authorizing the publication of the summons the plaintiff transacted with a newspaper of general
circulation
and
caused the summons to be published. The newspaper of course gave to the plaintiffs lawyer
the
affidavit
of
publication so that it can be presented with the court as evidence that the order of the
court
to
publish
the
summons has been complied with. After 60 days from the publication of the summons
the
court
has
not
received any responsive pleading any answer coming from the defendant. So what the plaintiff
did
was
to
file
motion to declare the defendant in default. In rule 14 the period within which to answer a
complaint
after
publication ordered by the court is a period of 60 days so what the plaintiff did there was in
accordance
with
the
rules. Since there was no answer filed the plaintiff thought to file a motion to declare the
defendant
in
default.
During the hearing of the motion the plaintiff presented to the court a copy of the order
authorizing
publication,
the proof that the summons was indeed published and the affidavit of the publisher of the
newspaper
saying
that there was indeed publication of the summons. The plaintiff obviously was expecting the
court
to
grant
his
motion to declare the defendant in default but much to the surprise of the plaintiff the trial
court
which
was
presided by judge Sereno who became chief justice of the SC she was then a trial court judge
asked
the
plaintiff
after presentation of evidence by the plaintiff to explain to me why your complaint should not be
dismissed.
So
the lawyer was taken aback he told the judge your honor we moved for authority to publish
the
summons
because the summons cannot be served in person or by substitute service. You allowed
us
to
publish
the
summons and we spent money for the publication of the summons we have done our part
and now you are asking us to explain why this case should not be dismissed is there
anything wrong with our case in the first place? And the judge told the plaintiff even if you
publish the summons that publication did not enable the court to acquire jurisdiction over
the person you should have complied with the requirements of the rules of court so the lawyer
asked himself what parts of the rules of court did I fail to comply with? And then it came up to
the decision that the requirement which appears not therein satisfied was what the SC calls the
constitutional requirement of due process that the action should have been converted into one
that is in personam into in rem
personam
and
also
personal
at
the
same
time
could
be
converted from in personam is to apply to the court for the preliminary attachment of the
properties
belonging
to the defendant and of course after the court has granted the writ of preliminary attachment
that
there
should
be an actual attachment on personal properties of the defendant. The cases for this
conclusion
by
the
plaintiff
aside from Rule 14 section 15 where there is a mention of the issuance of a preliminary
attachment
over
properties of the defendant the other rule that supports this argument is rule 57 on
preliminary
attachment.
If
you read section 1 of rule 57 on preliminary attachment. The last situation enumerated
instance
where
preliminary attachment could be issued by the trial court when the defendant is not a resident of
the
philippines
and he is not found in the philippines and he could be served with summons by
publication. The court interpreted these provisions to mean that if there is publication of the
summons
accompanying
there
preliminary
Without
should
be
attachment
over
a
personal
preceding
properties
this
of
or
the
defendant.
actual
preliminary attachment of the personal properties of the defendant the court cannot acquire
jurisdiction
over
the
person of the defendant. In other words if we are not able to convert the action in personam to
one
that
is
in
rem
or quasi in rem the court will not be able to acquire jurisdiction over the person of the
defendant
and
therefore
the court will have no authority at all to entertain that case. This ruling of the SC in citizens
surety
vs
herrera
was issued in the 1960s or early 70s and that has been the rule that was always followed
when
it
comes
to
actions in personam that are also personal at the same time. The innovation introduced by the
citizen
surety
was
right
also
to
order the dismissal of the case. The court said instead of ordering the dismissal of the case
what
the
trial
court
should do is to order the archiving of the case. So there will be no dismissal of the case simply
archiving
of
the
case. The court explained that if we simply archive the case if we dont order the dismissal of
the
case
then
the
law on prescription will not start to run and therefore it is not possible for the defendant later
on
to
setup
the
defense of prescription which is one of the non waivable defenses. The defendant cannot
possibly
setup
the
defense of prescription if the complaint is archived not dismissed because under the civil
code
if
there
is
judicial demand for the payment of an indebtedness prescription will not start to run. And the
court
complaint
that is archived will constitute always as a judicial demand for the performance of the obligation.
From
that
time
cannot
be
served with summons in person or by substitute service. Until the 2008 this case of PNOC vs
Santos
was
decided
by the court and if you're not familiar with that case I suggest that you read. Because it is a case
that has all revised or changed the principles applicable to this situation where an action in
personam
can
be
filed
by
the
court even if there is no conversion into in rem or quasi in rem. PNOC vs Santos a 2008 case
involved
practically
the same claim it was a claim for money arising in fact from a sale. The defendant could not be
located
anymore.
So his whereabouts are unknown. And therefore summons cannot be served in person or by
substitute
service.
Instead of following the steps taken by the lawyer in citizens surety vs herrera the lawyer in pnoc
did
not
move
for the publication of summons. What the lawyer filed was a motion to allow him to present
evidence
ex
parte
because no answer has been filed by the defendant and the trial court allowed it. Evidence
was
presented
ex
parte and later on the judge rendered a decision in favor of the plaintiff directing the
defendant
to
pay.
When
the defendant learned of the decision he presented himself before the court and he
asked
the
court
for
reconsideration of the decision. That was a mistake of the defendant. Because the court said that
when
he
filed
motion for reconsideration he admitted the jurisdiction of the court over his person. So there was
no
more
issue
on absence of jurisdiction. The filing of a motion for reconsideration was voluntary appearance
on
the
part
of
the
defendant he's admitted himself to the jurisdiction of the court. From that time on since 2008
lawyers
have
made
use of PNOC vs Santos as the authority to convince a court the trial court that there is no
more
need
for
publication and for the issuance of a writ of preliminary attachment before the court could
acquire
jurisdiction
over the person of the defendant. In 2010 there was another case which the court resolved
Padua
vs
Galvez.
This
case practically reiterates the ruling in PNOC vs Santos. There is no need for the conversion
of
an
action
in
personam to in rem or quasi in rem before the court could acquire jurisdiction over the person of
the
defendant.
In this case of Padua the court explained that we should apply literally what the rules provide. If
you
go
to
rule
16 if the defendant is a resident of the philippines but is temporarily out of the philippines in
relation
to
section
14 if the whereabouts of the defendant are unknown there could be publication of summons and
that
will
enable
the court to acquire jurisdiction over the person of the defendant. So it would seem that the
principles
which
were adhered before as enunciated in citizens surety vs herrera are no longer binding upon
plaintiffs
they
can
ignore the requirement of prior preliminary attachment of properties of the defendant before
there
could
be
publication of summons to enable the court to acquire jurisdiction over the person of the
defendant.
So
14
15
and
16 are the sections involved in the case of PNOC vs Santos and Padua vs Galvez. There is really
no
need
for
the
plaintiff under 14 15 and 16 to make a conversion of an in personam action into in rem or quasi
in
rem
through
the process of a writ of preliminary attachment that is actually carried out by the court.
But what is the advantage of using this principle in citizens surety vs Herrera. Is there any
advantage
if
the
plaintiff first moves for preliminary attachment over the properties of the defendant and
thereafter
ask
the
court
for publication of summons. Compared to just the plaintiff asking for publication of
summons
without
an
surety
is
that
there is a security that is enjoyed by the plaintiff when the property of the defendant is attached
through
writ
of preliminary attachment. If you read rule 57 that is precisely the purpose of preliminary
attachment
over
the
property of the defendant to provide security in favor of the applicant for whatever judgment
the court may render in favor of the plaintiff. But again the present stand of the court is not to
apply anymore that principle in citizens surety vs herrera insofar as publication of summons is
concerned. There is no more need for converting an action in personam into one that is in
rem or quasi in rem. Again the court explained that if there is a preliminary attachment of a
property belonging to the defendant the act of actual attachment of the property is the act
which converts the in personam action into in rem or quasi in rem. Because a property
belonging to the defendant is now within the jurisdiction of the trial court.
Now we go to motions. In motions the general rule is that if a motion is not made in open
court
it
must
be
reduced into writing and it must satisfy all the requirements given in the rules for the motion.
There
must
be
service upon the adverse and that motion should be set for hearing. That is always the general
rule
with
respect
to motions. So if there is a motion that is reduced into writing but it is entitled ex parte motion
that
motion
on
its
face already violates the rules. Because an ex parte motion is not served upon the adverse party
and
usually
it
is
not set for hearing in accordance with the provisions of the rules on motion. When it comes
to
the
notice
of
hearing of motions what some lawyers do is to address the notice of hearing to the clerk of court.
So
in
the
notice
of hearing it is provided the transfer of court RTC Manila the transferee and then the pleadings
this
include
the
foregoing motion and your schedule of motions for hearing on motion day and then
particular
day
for
that
motion day and then signed by the movant. And of course at the bottom there is proof of service
either
in
person
or by registered mail. The SC said that is not the notice of hearing that we require in
motion.
The
notice
of
hearing must be addressed to the adverse party. It should not be addressed to the branch
clerk
of
court
so
the
proper way of presenting a notice of hearing of any motion in general is to make the adverse
party
or
the
lawyer
of the adverse party as an addressee. Mr Juan Dela Cruz lawyer for the defendant please
take
note
that
the
foregoing motion will be heard with the RTC on particular motion day at 830 etc. That is a
proper
way
of
preparing a notice of hearing the notice should be sent to the adverse counsel and then at the
bottom
there
must
be proof of service by registered mail or by personal service as the case may be.
Remember
that
the
SC
has
repeatedly held that if a motion is submitted to court and the motion does not emit the
requirements
the
formalities the mechanisms and the rule as to service and notice of hearing that motion is a
scrap
of
paper.
The
court does not have to entertain that motion. So we should not expect the court to
consider
by
granting
or
denying the motion the court will simply ignore the scrap of paper that has been filed with the
court.
And then we have this omnibus motion rule which again emphasizes the non waivable defenses
in civil action. In any civil proceeding if there is an objection to a pleading or to any claim it
should be contained in the motion or in another pleading and if the objections are not setup
these objections are deemed omitted except for the non waivable defenses.
in
certain procedures and circulars of the court. In small claims, even in summary procedure and
in
some
special
proceeding amparo and habeas data like that they are also prohibited. But in regular
procedure
motion
to
dismiss is of course allowed in civil cases. And a motion to dismiss under rule 16 should be
filed as a matter of general practice before the defendant submits an answer. Can the
defendant properly file an answer and a motion to dismiss at the same time? in Rule 16 that
is
also
allowed
but
the
motion
to
dismiss
will
simply
be
incorporated in the answer we note that under rule 16 if the defendant does not have in mind
filing
separate
motion to dismiss but the defendant has in mind submitting his responsive pleading right
away
he
can
file
an
answer effecting the motion to dismiss by incorporating in his answer the grounds in rule 16
as
affirmative
defenses. In other words if the defendant files an answer with affirmative defenses these
affirmative
defenses
are those that are enumerated in rule 16 the grounds for a motion to dismiss. He is allowed to do
that.
And
once
the answer is filed with the court the defendant can ask the court to conduct a preliminary
hearing
on
this
affirmative defenses and the court can grant it as if the defendant has previously filed a
motion
to
dismiss.
So
there could be an answer together with a motion to dismiss. But these are not separate
submissions.
The
answer
is not separate from the motion to dismiss. There is just one answer and then in that answer
affirmative
defenses
are set up and possibly negative defenses but with respect to the affirmative defenses they
are
those
that
are
mentioned in rule 16 as grounds for a motion to dismiss. In this case there will be a preliminary
hearing
as
if
motion to dismiss has been filed by the defendant. But in the case of a non waivable defense
since
they
are
non
waivable if you give effect to this effect of non waivable defense it is possible it is proper for the
defendant
to
file
motions to dismiss one after another without violating the omnibus motion rule if these
motions
to
dismiss
are
founded on these non waivable defenses. The defendant can fila a motion to dismiss based on
prescription.
If
that is denied do we allow the defendant to file a second motion to dismiss based on litis
pendentia?
yes
if
the
second motion to dismiss is filed do we allow the defendant to file a third motion to dismiss?
This
time
on
lack
of jurisdiction over the subject matter? The answer is yes again and then if the third motion to
dismiss
is
denied
can the defendant again can file a fourth motion to dismiss founded this time on res judicata?
The
answer
again
is yes because of the application of these non waivable defenses. It is conceivable and it
is
proper
for
the
defendant to file successive motions to dismiss that contain of course distinct non waivable
defenses
and
we
do
not make use of the omnibus motion rule. So a motion to dismiss founded on lack of jurisdiction
over
the
person
only will be a waiver of the other grounds in rule 16 except litis pendentia lack of jurisdiction
or
res
judicata.
There will be waiver of course of the other grounds in rule 16 but not those contained in letters f
and
except
in
unenforceability under the statute of fraud which is a waivable defense. IN the resolution of a
motion
to
dismiss
rule 16 gives to the court 3 choices. Grant or deny the motion or order amendment of the
pleadings.
fourth
option now given to the trial court by virtue of these laws on Alternative Dispute Resolution
that
is
if
these
grounds are available what the court can do as a fourth choice is to refer the matter into
mediation
or
arbitration
as the case may be and suspend further hearings. So as of now there are 4 options available
to
trial
court
in
resolving a motion to dismiss under rule 16. Grant the motion deny the motion order an
amendment
to
the
pleadings and then refer the matter to conciliation or mediation as the case may be.
Is there any tactical advantage or procedural advantage if the defendant instead of filing a
motion
to
dismiss
under rule 16 will simply answer the complaint but in his answer he will set up affirmative
defenses those enumerated in rule 16? Is there a procedural advantage? Yes there is. There
is
procedural
advantage.
If
the
defendant files an answer with an affirmative defense and these affirmative defenses
are
the
grounds
enumerated in rule 16 for a motion to dismiss and after preliminary pleading on this
affirmative
defenses
the
court orders the dismissal of the case. The defendant will be given an opportunity to
recover
his
claim
for
damages if in his answer there are counterclaims permissive or compulsory together with
the
affirmative
defenses. So if the answer of the defendant is an answer with a negative defense with
affirmative
defenses
and
compulsory or permissive counterclaim and the defendant asks the court to conduct a
preliminary
hearing
on
the affirmative defenses and the court orders the dismissal of the complaint because the
affirmative
defenses
are
properly demonstrated by evidence the complaint will be dismissed but the defendant will have
an
opportunity
We
note
that
in rule 16 the dismissal of the case will not affect any counterclaim or crossclaim or any other
claim
that
has
been
submitted by the defendant before the court and this can only be done if the defendant files
an
answer.
The
defendant cannot file a motion to dismiss with a counterclaim impossible. He cannot file a
motion
to
dismiss
with a crossclaim because a motion to dismiss is not a pleading it is only in an answer where
we
can
have
crossclaim or a counterclaim a counterclaim against the plaintiff as the case may be. So that
is
the
procedural
advantage if the defendant is advised by his counsel not to file a motion to dismiss as a
separate
motion
but
simply file an answer with a counterclaim and setting up negative and affirmative defenses.
In
motion
to
dismiss of course we can make use of any of the grounds mentioned in rule 16 but again with
the
exception
of
non waivable defenses if there is a motion to dismiss founded on grounds other than the non
waivable
defenses
the grounds not cited are deemed omitted. So if there is a motion to dismiss founded on lack
jurisdiction
over
the person of the defendant which is a waivable defense and then that is the only ground
that
is
setup
in
the
motion to dismiss and that motion to dismiss is denied, the defendant will be precluded from
filing
second
motion to dismiss on the ground of improper venue because these are waivable defenses.
What
we
said
earlier
there could be a second motion to dismiss if the second motion to dismiss or the succeeding
motions
to
dismiss
With respect to lack of jurisdiction over the subject matter or over the nature of the case, this
ground
it
is
the
topic in our case of Tijam vs Sibonghanoy. I assume all of us are familiar with this case. If the trial
court
does
not
have jurisdiction over the subject matter of the case normally the conclusion is that the
judgment
of
the
court
is
void because the court must have jurisdiction over the subject matter before it can properly
try
the
case.
If
the
court on the other hand does not have jurisdiction over the subject matter of the case but the
defendant
kept
silent about this issue about this absence of jurisdiction and then the defendant allows the
court
to
conduct
hearing on the case he allows the court to decide the case and the defendant thereafter
appeals
let
us
say
to
the
Court of Appeals and before the court of appeals the defendant also does not raise the
issue
of
lack
of
jurisdiction and then the CA renders its own decision affirming the decision of the RTC and after
receiving
the
decision of the CA the defendant asks for an extension of the period to file a motion for
reconsideration which at that time is allowed. And instead of filing a motion for reconsideration
the
defendant
this
time
challenges
the
validity of the decision of the trial court as well as the decision of the court of appeals on the
ground
that
the
trial court did not have jurisdiction from the very start . And lastly that case has been pending
before
the
courts
for 15 years. In Tijam the SC refused to resolve the issue of validity of the judgment. In the
case
of
Tijam
the
court simply said it is true that lack of jurisdiction over the subject matter can be raised at
anytime
even
for
the
first time on appeal but in this case we have to make use of the rule on estoppel by laches.
The
case
has
been
pending for 15 years and during this 15 year period the defendant did not challenge the
jurisdiction
of
the
court
in fact the parties litigated by filing submissions to the court of appeals. So it is not fair and just
according
to
the
court to declare the judgment as void and then to remand the case to the lower court to the
proper
court
to
try
it
all over again. The SC observed it might take another 15 years for the trial court to eventually
decide
the
case.
So
overall the SC observed we have a case that seeks to recover only 1900 pesos pending before
the
possibly for
courts
of
justice
30 years. It is not just according to the SC. The SC said that while the
decision
really
may
be
challenged because of the absence of jurisdiction over the subject matter the defendant is
estopped
by
laches
by
his act of negligence in failing to raise this issue as soon as possible. He is guilty of estoppel by
laches
he
can
no
longer challenge the validity of the decision of the court. The case of Tijam was decided in 1968
its
really
an
old
case. Our rules that we have now took effect in 1997 but under the rules that we are discussing
we
still
have
non
waivable defenses like lack of jurisdiction over the subject matter. And in rule 9 there is no
exception
as
to
this
non waivable defenses there is just an enumeration of these non waivable defenses and the
first
one
is
lack
of
jurisdiction over the subject matter. Rule 9 does not even mention the case of Tijam vs
Sibonghanoy
even
by
way
of exception to its character of a non waivable defense. So we argue that under the 1997 rules
Tijam
should
be
considered abandoned. We should forget about Tijam vs Sibonghanoy. That is not a good
argument
because
in
rule 47 in annulment of judgment the doctrine in Tijam was incorporated as part of the rules of
court.
If
you
go
to rule 47 one of the grounds for annulment of judgment is lack of jurisdiction over the subject
matter.
In
rule
47
there is an exception, except when there is estoppel by laches. That is an express recognition
of
the
1997
rules
about the applicability of the case of Tijam vs Sibonghanoy. So we still have laches by estoppel
as
good
defense
against this non waivable defense of lack of jurisdiction over the subject matter.
In other cases that are factually different from Tijam the SC also used another kind of estoppel in
order
to
bar
party from raising the issue of jurisdiction although the trial court really does not have
jurisdiction.
good
example is the 2004 case of Soliven vs Fastforms. In the case of soliven vs fastforms a case
was
filed
before
an
RTC after the effectivity of BP 129 and after the effectivity of the 1997 rules. The amounts to be
recovered
in
that
complaint was almost 800 thousand pesos. The court before which the complaint was filed was
a
regional
trial
court in Makati. So if we apply BP 129 in determining the jurisdiction of the court simply
because
the
amount
sought to be recovered was in the aggregate sum of 800 thousand should not lead us to the
conclusion
that
the
RTC really was the competent court. That is not what BP 129 tells us. In BP 129, in order to
determine
the
competent court in complaints for money we should exclude items like interests damages
cost and attorneys fees. And the remainder will be the basis in ascertaining the competent
court.
Obviously
in
this
case
at
the
start
the issue of jurisdiction was not raised at all. So the defendant instead of filing a motion to
dismiss
which
was
not expected of him because he also thought that the trial court really have jurisdiction over the
case.
He
simply
filed an answer and in that answer incorporated a counterclaim. So there was an answer by
the
defendant
together with a counterclaim. The judge unfortunately also did not study the complaint well so
the
court
also
was not aware that it did not have jurisdiction over the case. Because if the court read the
complaint,
the
court
could have discovered that the amount sought to be recovered by the plaintiff as principal
amount
was
less
than
300 thousand pesos. So that case is cognizable only by an inferior court. So nobody
brought
the
issue
of
jurisdiction with the regional trial court. Then later the court rendered a judgment in favor of
the
plaintiff
this
time the defendants lawyer studied thoroughly the records of the case. The lawyer arrived at the
conclusion
that
there is something wrong with the complaint. That the court did not have jurisdiction over the
case
and
he
can
easily prove to the court that the court did not have jurisdiction because the amount sought to
be
recovered
as
principal was less than 400 thousand pesos. What the defendant did was to file a motion for
reconsideration
before the trial court and he raised the issue of lack of jurisdiction. So he asked the trial court
to
reconsider
the
decision and order the dismissal of the case. On the ground of lack of jurisdiction over the
subject
matter.
The
trial court denied the motion and said you participated in the case you did not challenged the
jurisdiction
of
the
court and you presented evidence for the court in support of your counterclaim and now that you
have
lost
the
case you return to the court and tell the court that it does not have jurisdiction over the case.
That
is
not
fair
said
the RTC. So the RTC stood up to its evaluation that there is nothing wrong with the
decision.
The
case
eventually reached the SC and the SC said the defendant will no longer be allowed to challenge
the
jurisdiction
of the court. Remember that the factual setting of this case Soliven is not similar to Tijam.
The
case
in
soliven
was only about 3 years old at the time it was decided by the RTC so we cannot make use of the
15
year
period
that was capitalized by the SC in using estoppel by laches. We cannot make use of that
concept
of
estoppel
by
laches because the period was not similar to Tijam. But what the supreme court did here
was
to
introduce
another kind of estoppel. The court said there may be no estoppel by laches but there is
estoppel
in
pais
that
is
estoppel by deed. The act of the defendant in participating actively during the trial of the case
and
in
seeking
an
affirmative relief through a counterclaim contained in his answer makes the defendant in
estoppel
in
pais.
he
can no longer challenge the validity of the decision rendered by the court although the
court
may
not
have
jurisdiction over the case. So another kind of estoppel was now set by the SC in order to
prevent
party
from
challenging jurisdiction the first is estoppel by laches in Tijam and then the second one is
estoppel
in
pais
estoppel by deed.
We of course lawyers were contented with the explanation given by the court in these
two
cases.
Which
decisions were really fair its not good to allow a party to participate in the trial and then if he
loses
the
case
he
challenges all that the judge has done in rendering a decision. He should have set up these
issues
even
before
the case is decided or even through a motion to dismiss. But in 2009 another case which was
a criminal case Figueroa vs People this was a criminal case. In Figueroa there was a criminal
case
filed
against
the
accused
for
reckless imprudence resulting to homicide. If you recall under BP 129 these criminal cases of
reckless
negligence
are cognizable by an inferior court under BP 129. But unfortunately in Figueroa the information
was
filed
by
the
prosecutor before the RTC. Just like in Soliven vs Fastforms the prosecutor was unaware that
the
RTC
did
not
have jurisdiction. When the appeals was taken in the custody of the court. His lawyer the
defense
counsel
also
assumed that there was nothing wrong with the jurisdiction of the trial court although in truth
again
the
RTC
did not have jurisdiction over the case. So just like in Soliven vs Fastforms the judge also did not
know
because
nobody raised the issue of jurisdiction. He must have made use of the presumption in
evidence
that
there
is
regularity in the performance of the duty of the prosecutor and then his presumption
that
court
has
jurisdiction over a case that has been filed before it. Really under the rules of evidence the
courts
can
make
use
of these presumptions that it has jurisdiction over the case. There was trial where the court the
prosecution
and
the accused presented their respective evidence. The trial court convicted the accused. the
accused
appealed
to
the CA and then in the CA the accused moved for the dismissal of the information of the
criminal
case
on
the
ground of lack of jurisdiction. The solicitor general who is the lawyer of the people of the
philippines
cited
this
doctrine in soliven vs fastforms that when a party participates in the litigation before the trial
court
and
does
not
challenge the validity of the orders of the trial court he should be estopped from questioning
the
proceedings
taken by a trial court or even the validity of the judgment that is estoppel in pais. So active
participation
means
that the litigant who participates is estopped from challenging the validity of the proceedings
where
there
is
direct participation. The CA agreed with the Solicitor General because the arguments presented
by
the
sol
gen
is
applying the rule on estoppel in pais. The case reached the SC. The SC said the judgment is
void
because
we
cannot apply the rule of estoppel in pais in this case. So even if there wasactive participation by
the
accused
in
criminal case he still can challenge the validity of the information against him if the
court
really
has
no
jurisdiction over the case. Since this case of Figueroa is a criminal case but the case of Soliven is
a
civil
case
does
it really matter? I'm not saying that you follow Figueroa or you follow soliven vs fastforms
but
if
you
are
confronted with a problem on lack of jurisdiction and it is a civil case you apply soliven vs
fastforms
but
if
the
problem involves a criminal case then you follow Figueroa. There is reason really for the SC to
adopt
different
path in Figueroa because Figueroa was a criminal case and of course the liberty of the
accused
was
to
be
considered. In 2010 again there was another similar case which involved also estoppel in pais.
NAPOCOR
vs
the
province of Quezon. The SC adopted the doctrine in Soliven vs fastforms so there is a continuity
of
decisions
in
civil cases where the SC applies the principle of estoppel in pais in order to prevent the party
from
raising
the
issue of jurisdiction if the party has already participated during the hearing of the case. The
principle
is
we
still
have estoppel by laches and estoppel in pais that will preclude the party from raising the
issue
We continue tomorrow.
of
jurisdiction.
Another ground for motion to dismiss is lack of jurisdiction over the person of the defendant.
This
will
take
place if the defendant is not properly served by summons, in accordance with rule 14 either
service
in
person
or
substituted service. The problem of the defendant if he contends before the court that the court
has
not
acquired
jurisdiction over his person is that he has to file a motion before that same court. So he will then
file
motion
to
dismiss based on that ground, lack of jurisdiction over his person. If the defendant files a
motion
to
dismiss
before the court on the ground of absence of jurisdiction over his person does not the
defendant
admit
that
the
court already has jurisdiction over his person? The answer is NO. The filing by the defendant
of
motion
to
dismiss on that ground is the only mechanism available to him to manifest to the court that
the
court
has
not
acquired jurisdiction over his person. In old cases what the defendant did so that he can avoid
that
argument,
that by filing of motion to dismiss he in fact recognizes that the court acquires jurisdiction is
to
tell
the
court
right away that his appearance before the court in filling a motion to dismiss is considered
only
as
special
appearance. Only for that purpose of telling the court, that the court has no jurisdiction over
his
person.
This
special appearance rule, extend to another principle in the past, that when a defendant files a
motion
to
dismiss
on the ground that the court has not acquired jurisdiction over his person and then he has
another
ground
in
Rule 16, by virtue of the application of the Omnibus Motion Rule, the decisions of the court
then,
will
have
to
the effect that if he adds to a motion to dismiss another ground mentioned in Rule 16, he
may
not
use
this
ground of lack of jurisdiction. That has been changed by the present rules of court. A
defendant
who
files
motion to dismiss based on lack of jurisdiction over his person and another ground, is not
deemed
to
have
admitted jurisdiction of the court over his person. That is the present rule that we follow.
In other words, a defendant is free to file a motion to dismiss citing a s to one of the grounds lack
of jurisdiction over his person and other grounds in Rule 16. He is not deemed to have waived his
argument that the court has no jurisdiction over his person.
Let us say that the defendant who claims that the court has not acquired jurisdiction over his
person
does
not
respond on the summons, on the belief that the filing of an answer will in effect make himself
liable
in the complaint.
for
the
claim
Then he is declared in default. He receives the order of the court and then
following
the
rules.,
the defendant files a motion to lift the order of default. The filing of a defendant of a motion to
lift
the
order
of
default is acceptance of the defendant of the jurisdiction over his person. Or on other
instances,
where
the
defaulting defendant has received a judgment of the order of default, and he files a motion for
reconsideration
or a new trial, the filing of the motion for reconsideration or the new trial in effect is submission
of
the
defendant
of the jurisdiction of the court over his person. This is the reason why in case cited Padua vs
Galvez,
the
Supreme
Court said that if the defendant claims that the court has not acquired jurisdiction over his
person
and
then
he
moves for reconsideration or new trial, he should in that motion specify to the court that the
filing of the motion for new trial or reconsideration, is not to be treated as voluntary submission
of his person to the jurisdiction of the court. He must always qualify the filing of such motion.
One the grounds is failure to state a cause of action. The Supreme Court has emphasize the
difference between failure to state a cause of action and lack of cause of action. Lack of cause of
action is not a ground for motion to dismiss. It is failure of the complaint to state the cause of
action. The difference according to the court is that if the plaintiff has no cause of action at all,
that is he does not allege a right, or even if he alleges a right there is no further that his right
has been violated, there is really no reason for the plaintiff to go to court. In this situation, the
complain will be dismissed for prematurity. The court will not acquire jurisdiction over the
compliant. In Rule 16 failure to state
cause of action and the failure to state will solely be the fault of the lawyer who prepared the
complaint.
For instance, in accion reinvindicatoria, let us assume that there is really a plaintiffs right and
entitlement
to
the
ownership and possession to the land, and the defendant has failed to comply with his
obligation,
there
is
now
cause of action. But in the complaint prepared by the lawyer, the lawyer neglects to allege the
assessed
value
of
the property which is the factor which ascertain the jurisdiction of the court. There could be now
a
motion
on
the
part of the defendant to dismiss the case for failure to state a cause of action. If there is an
action
reinvindicatoria
filed before the RTC and there is no allegation as to the assessed value, the RTC will not acquire
jurisdiction
over
the case. The reason is under BP 129 there are two courts which are given jurisdiction, RTC and
inferior
court.
Let us say that there is accion reinvidicatoria before the RTC but there is no allegation as to the
assessed
value
of
the property, the defendant files a motion to dismiss for lack of jurisdiction, the plaintiff of course
will
be
given
copy of such motion, the plaintiffs counsel analyzes the motions but the counsel is self-centered
and
the
counsel
thinks that he could not commit such error, so the court hears the motion. But in hearing of a
motion
to
dismiss
founded on lack of jurisdiction over the subject matter, the court will not allow the parties to
present
evidence
in
support of the opposition. The reason is because lack of jurisdiction over the subject matter
is
purely
legal
question and the only evidence to be taken into account by the court is the complaint
itself.
Applying
the
principle that a court acquires jurisdiction based simply on the allegations of the complaint.
In the hearing of a motion there will be presentation of evidence only if the question that
will be raised is a factual issue, like if the ground is the obligation has been waived or paid or
abandoned. But if the issue is lack of jurisdiction over the subject matter, the only paper to be
examined is the complaint itself. The court can easily resolved by merely reading the contents
of the complaint.
So the parties submit this motion to dismiss. The court concludes that it really has no
jurisdiction.
The
court
grants the motion. So the case is dismissed. The lawyer of the plaintiff will receive the order of
dismissal
from
the court, he will be bothered this time. He will convert himself as a self-centered lawyer to
a
more
humble
lawyer, so he accepts his defeat. Can the lawyer for the plaintiff amend his complaint although
the
court
order
the dismissal based on the defendants motion to dismiss? The answer is YES. Why do we allow
amendment?
Because the order of dismissal will not be entered until the lapse of 15 days.
pending before the court. The plaintiff may still amend the complaint. He can rectify the error
that he committed by inserting the assessed value. He may do so as a matter of right, no need
for the permission of the court. Because according to SC, a motion to dismiss is not a responsive
pleading, and under rule 10, amendment of a complaint is a matter of right as long as it is the
first amendment and no responsive pleading has been filed. The responsive pleading in Rule 10
is an answer.
In this situation, what is the effect of dismissal, if the order is eventually entered, it can no longer
be challenged and has become final and executory order. Does the plaintiff have any other
recourse? If we are going to apply Section 5 of Rule 16, you notice that the rule implicitly
makes a distinction between an order under rule 16 which is founded on letters f, h and i
compared to other grounds. If dismissal is based on f, h, i and the order has not been entered,
the remedy of the plaintiff is to appeal. But if order of dismissal is founded on other grounds,
nothing is mentioned. What is the remedy of the plaintiff?
41, section 1. In analyzing rule 16, 17, 18, and 33 must relate to rule 41.
If you will go through the provisions of rule 41 section 1. There is an enumeration of orders,
which according to the rules, these final orders are not appealable, although final in
character.
If we relate rule 16 to 41, the dismissal that is closely related to rule 16 in rule
41 will be the last enumerated item, that is dismissal without remedies. In rule 16, a dismissal
under f, h, i is subject to appeal, such dismissal is with prejudice because rule 16 expressly say
that remedy of the plaintiff is to appeal. But if the dismissal is founded not f, h, I implicitly the
dismissal is without prejudice. Rule 41 tells the plaintiff one of his recourse, if his complaint
is dismissed is without prejudice. By simply reading rule 41, the plaintiff may immediately
conclude that if his compliant is dismissed by reason of Rule 16 or any other rule which talks
about dismissal without prejudice, appeal is not a remedy available. The plaintiff should not
appeal.
So if the order of dismissal is without prejudice and cannot be appealed. It is very likely that
the 15 day period will lapse without any action from the plaintiff. Can the plaintiff challenge the
order of dismissal even after the lapse of 15 days? The answer is YES. Under Rule 41, although
appeal is not allowed, the last paragraph tells the plaintiff what to do. The remedy is to file an
appropriate
petition
under
Rule
65,
certiorati
or
prohibition.
Why do we allow the plaintiff to allow petition for certiorari although the 15 day period has
lapsed? Under Rule 65, the filing of the petition is 60 days not 15 days. Thus even after 15 days,
he still have 45 days. But because the dismissal is without prejudice, the plaintiff may forget
to file to a higher court, he may opt to file a new complaint against the defendant.
We can easily understand why f, h and i is dismissal appealable. It is right a way a judgment on
the
merits.
If
the
claim of the plaintiff allege in the complaint has really been extinguished. That means he really
has
no
claim
to
the defendant. Therefore, it should be dismissed with prejudice. The motion will present a factual
issue.
During
the hearing of the motion, the defendant can prove that the obligation has been paid, waived or
otherwise abandoned. The hearing is as if the court is trying the case. They may present
witnesses and evidences to prove their allegations. The enumeration in h is not exclusive. Laches
may be included.
purely
on
on
If
legal
issue the court will not allow presentation of evidence. The court will simply read the
allegations
in
the
complaint. If the issue raised is factual the court will be forced to conduct a hearing s if it were a
hearing
on
the
merits.
Let us say that the motion to dismiss is founded in letter h, during the hearing the defendant
presents
evidence
and tells the court that he has no further evidence to produce so the motion is now submitted for
resolution,
the
court denies the motion. What is the next move of the defendant? Rule 16 tells him that he
should
file
an
answer
within the remaining period which shall not be less than 5 days. The defendant files an answer,
in
that
answer
can we incorporate as an affirmative defense the same grounds in the motion to dismiss? YES,
he
can
still
make
use it. Is that not repeating? He is merely repeating but it is allowed. This is because
according
to
the
rules,
if
there are grounds not raised in the pleading, these grounds will be deemed waived. He does
not
want
that
to
apply to him. Can the defendant after filing the answer with the affirmative defense, move the
court
to
allow
preliminary hearing with this affirmative defense? The court will not allow it because there
was
already
hearing on the same ground. During the trial, he may be allowed to present additional evidence.
Going back to Rule 41 in relation to Rule 16, in a dismissal with or without prejudice, that is the
court in Rule 41 in order for the party to determine whether his remedy is appeal or rule 65. If
the court orders the dismissal of a complaint, do we consider the dismissal as a final order?
YES. Any dismissal by the court is a final order. But what matters is whether the order is with
or without prejudice so that we can ascertain the remedy available. And the plaintiff should be
able to determine correctly.
Supposing that the plaintiff committed error. His complaint was dismissed due to f,h, I but he
concludes that the dismissal is without prejudice. So he has in mind to use rule 65. He reads
that rule 65 may be availed of for 60 days. On day 40 he files a petition for certiorari, such
will be dismissed. The court tells him that the proper remedy is an appeal. Can he make use if
the remedy of appeal? The answer is NO, because the period to appeal, for 15 day has already
expired. The order of dismissal has been entered. Can he file another complaint? NO, since
the dismissal is with prejudice.
If the dismissal is founded on Rule 17, we follow the same principle. In Rule 17, there are
several dismissals. It also speaks dismissal with and without prejudice. There is also a
dismissal in Rule 18, during the pretrial, the dismissal is with prejudice. The remedy of the
plaintiff is to appeal. The plaintiff failure to submit a pretrial brief or failure to attend the
preliminary conference. There is also another which is found in Rule 33, judgment on
demurrer of evidence. The dismissal is again with prejudice. That is an adjudication of the
merits.
Rule 17
Another rule for dismissal of actions. If you will recall, rule 17 is connected with an order that
can
be
issued
by
the court in relation to a motion to dismiss. If the defendant alleges that an indispensable
party
has
not
been
impleaded. The defendant can file a motion to dismiss, not on the ground of failure to implead an
indispensable
party but on the ground that the complaint has failed to state a cause of action.
ground
used
by
If that is the
the
defendant on the ground on the theory that an indispensable party must be impleaded so
that
the
court
can
have a final determination of the case, that motion to dismiss will be resolved by the court
using
Rule
16
but
availing of the other option given in rule 16. Remember that in Rule 16, if there is a motion to
dismiss
filed
by
the defendant, the law gives the court 3 options. The first is to grant the motion, the second is
to
deny
and
the
third is to order amendment. In our example where an indispensable party has not been
impleaded,
the
court
will not grant or deny the motion, but will simply order the plaintiff to amend his
complaint.
So
that
the
indispensable party will be impleaded. There court can now have the final determination of the
case.
If the court orders the plaintiff to amend his complaint so as to include an indispensable party,
if the plaintiff follows the order of the court, then he can just submit an amended complaint.
But if the plaintiff does not obey the order of the court, and not amend his complaint, can the
court now order the dismissal of the compliant? Yes. Under rule 17, that is a dismissal with
prejudice. Failure to comply with the order of the court. Therefore the remedy of the plaintiff is
to appeal.
There are 3 sections concerning dismissal in Rule 17, Sections 1,2 and 3. The section provides for
grounds
and
its
upon
the
initiative of the plaintiff itself. If the plaintiff files a complaint today and changes his mind
next
week,
the
summons has not been serve upon the defendant, he can go to the court and file a notice of
dismissal
for
the
notice
of
dismissal? There is a big difference. If the plaintiff files a motion, that means to say that the
court
is
given
the
prerogative to grant or deny. But if simply a notice, the court is left without any discretion except
to
confer.
That
dismissal is without prejudice unless the plaintiff tells the court that the notice should be
considered
as
an
If the dismissal of the complaint is confirmed by the court and he receives the notice of
confirmation and the plaintiff again change his mind, can he file another complaint? NO.
because the confirmation of the dismissal will be entered only after the lapse of fifteen days.
Within the 15 day period, the plaintiff can change his mind. He will just ask the court to revive
his complaint, he does not need to file another complaint. no need to pay another set of
docket fees.
Supposing that the defendant files a motion to dismiss under rule 16, and subsequently the
plaintiff files a notice of dismissal, which of the two submission should be resolved by the court?
This issue was resolved by the SC, what the court should do is to confirm the notice of
dismissal by the plaintiff.
Section 1 also give a concept of two dismissal rule. The creditor files a complaint against
the
debtor
for
the
recovery of an obligation for P500,000. A week after the filing of the complaint, and
upon receipt of the defendant of the summons, the defendant visits the plaintiff, and the
defendant
cries
on
the
plaintiff
and
pleaded and says that he promises to pay just dont proceed with the complaint. so the plaintiff
files
notice
of
dismissal. The case confirmed the dismissal. The court has a ministerial duty to conform with
the
notice.
The
defendant does not still pay. Can the plaintiff file a second complaint? YES the notice of
dismissal
is
without
prejudice. The plaintiff then files a second complaint. the defendant again pleaded.
files
The plaintiff
second
notice of dismissal. The court again confirms. That dismissal will now be considered with
prejudice.
So
that
if
the plaintiff files a third complaint, such complaint will be dismissed on the ground of res
judicata.
Can the court in the second notice of dismissal, confirm the dismissal and say that te
dismissal is without prejudice? NO it is the rule that tells that the second dismissal is with
prejudice, the court is not given discretion. But there could be a situation that the second
dismissal will not be considered with prejudice. The two dismissal rule refers to a situation
where the cases have been filed before a competent court. If one of the cases has not been
file before a competent court, that dismissal will not be with prejudice.
In section 2,involve another dismissal. This time not by mere notice of the plaintiff but
upon
motion.
The
plaintiff after defendant files an answer is not given a prerogative to file a notice of dismissal
but
must
file
motion.
In the ordinary course, if the plaintiff files a motion, the likelihood is that the defendant will
not object. But section 2 gives the defendant a chance to object. Why would a defendant oppose
the dismissal of the case upon motion of the plaintiff if it is favorable to him? Section 2 is clear in
saying that the dismissal is without prejudice. in other words, if the defendant does not object
and the court grants the dismissal, the plaintiff is later on allowed to file another a
complaint founded on the same cause. The defendant can insist that the dismissal should
be considered with prejudice. In section 2 the defendant also might have another good
reason. If the defendant has already filed an answer and has set up a counterclaim. He could
insist on the dismissal but the court should continue with his counterclaim. Dismissal of the
complaint does not dismiss the counterclaim, although it is a compulsory counterclaim. In
effect section 2 gives us a very rare situation where a compulsory counterclaim could survive
without the principal action.
Section 3 presents an instance where the case is dismissed but this time the case could be
dismissed
on
the
initiative of the defendant or the court itself. Dismissal for failure to prosecute, failure to
attend
trial
in
presenting his evidence in chief, failure to comply with the lawful order of the court or to obey
the
provisions
of
the Rules of Court. How can a court order a dismissal of the complaint upon the ground that the
plaintiff
failed
to obey the provisions of the Rules? A good example is Rule 18. It is provided expressly that it is
the
duty
of
the
plaintiff to set his complaint for pre-trial. Once the last pleading is filed. If the plaintiff fails
to
do
so
for
reasonable length of time, the case may be dismissed. The dismissal is with prejudice unless
the
court
makes
qualification.
In most courts, if the court calls the case for trial in the merits and the plaintiff does nit
appear.
The
defendant
may take advantage of the absence of the plaintiff. The lawyer for the defendant may ask the
court for the dismissal of the case on the ground of failure to prosecute or failure to appear
during presentation of evidence of chief. Usually the trial court in most instances accommodates.
The dismissal is upon the adjudication of the merits. In order to be valid the order of dismissal
should comply with the essentials requirements of a valid judgment under Rule 36 and also
under the Constitution. What are the requirements? Under Rule 36, one of the essential
requisite of a valid judgment of any court, is first there must be factual findings, conclusions
of law. If it decision does not have factual findings and conclusion of law applicable, that
decision is null and void. So if the court simply says for failure of the plaintiff to prosecute for
unreasonable length of time, that is not a factual finding of the court, it is a conclusion of the
court. The SC said for a trial court to render a valid judgment the court should explain why and
how it come to a conclusion that the plaintiff failed to prosecute. The court should give
circumstances based on the record of the case which convince the court to conclude that
the plaintiff indeed is guilty of failure to prosecute, without such explanation, the
judgment is null and void. Therefore it can be subject to a challenged at anytime. It can be
collaterally attack. Remember that if there is adjudication upon the merits according to the
rules, the order is simply an order of dismissal under Rule 16 or 17. For the validity of such
dismissal the court should explain. An order for dismissal with prejudice should comply strictly
with the requirements of Rule 36. If no compliance, it is not considered a valid judgment. It is a
void judgment.
RULE 18
Pre-trial is mandatory in all cases, civil or criminal. Even in summary procedure,we have
compulsory pre-trial, though it is called preliminary conference. Also in small claims there is a
semblance of a pre-trial because the small claims court will call the parties to a preliminary
conference wherein the court will make use the JDR rule, Judicial Dispute Resolution.
In all civil
actions a pre-trial is mandatory. In fact it is the duty of the plaintiff to schedule his complaint
for pretrial after the last pleading has been filed. And if he fails to do so, that could be a ground
for the dismissal of the case. The dismissal will be with prejudice.
This rule on pre trial has been modified by certain circulars of the SC, applying the principles of
mediation
and
conciliation. Usually if the trial court calls the parties to a pretrial and the parties present
themselves
to
the
court
for pretrial conference, what trial courts usually do now is to tell the parties that they
should
first
attend
conciliation
process is terminated without an agreement. Then the parties are required to go back to
court
to
attend
the
formal the pretrial conference. During the mediation and conciliation process, the mediator or
conciliator
will
issue a notice to the litigants on the date scheduled for the mediation and conciliation. If the
plaintiff
does
not
appear he ignores the notice sent by the mediator or conciliator for the mediation or conciliation
conference
and
repeatedly ignores such notice, the mediator will submit a report to the trial court telling the
court
on
what
has
transpired in the mediation or conciliation proceeding. If the conciliator submits the report saying
that
plaintiff
has absented himself, then that is a ground for order of dismissal. And could be a dismissal with
prejudice.
So
if
the court issues a notice requiring the parties to attend a pretrial conference and during that
conference the court also
proceedings,
instructs
the
that
parties
mediation
to
attend
mediation
or
or
conciliation
conciliation
proceeding are part of the pretrial to be conducted by the court. If the party absents himself in
the
mediation
or
conciliation, it is as if the party absents himself in the pretrial conference. There can be a order of
dismissal
if
it
is
the plaintiff or the court may order the plaintiff to present evidence ex parte if it is the
defendant.
If the conciliator or mediator fails in his attempt to convince the parties to arrive at an
amicable
settlement,
he
will simply submit his report to the court and the record will be return to the court for a pretrial
conference.
If we based it purely in Rule 18, the parties have the common duty. The first is to submit a
pretrial
brief
and
the
second is to attend the pretrial conference. If the fail to submit a pretrial brief there are
serious
sanctions
that
may be imposed by the court. Even if they were able to submit a pretrial brief on time but they
failed
to
attend
the pretrial conference there could also be serious sanctions and consequences. In case of
the
plaintiff,
the
sanction is dismissal of his complaint with prejudice. In case of a defendant, the sanction is for
the
plaintiff
to
present his evidence ex parte. In other words, we do not observe anymore the principle that
if
the
defendant
does not attend the pretrial conference or fails to submit a pretrial brief on time, the court cannot
anymore
issue
the
If a defendant is in default under Rule 9, the court may order the plaintiff to present evidence
ex parte, in the absence of the defendant. The same is true with Rule 18 , if the defendant
has filed an answer but neglects to submit a pretrial brief or fails to attend the pretrial
conference or even send a representative armed with SPA, what the court will order the
plaintiff to do is to present evidence ex parte.
In rule 9 when the defendant is in default and there is an ex parte presentation of evidence,
the court may only award what the plaintiff has prayed for in the complaint. But in rule 18,
the court may make an award in accordance with the evidence presented by the plaintiff. In
other words, we apply the amendment in pleading to conform to evidence in rule 18,in ex parte
presentation of evidence. But not applicable in rule 9. The reason is because the defendant is
not in default in rule 18, there is already in an answer.
Please also take note the difference of a pretrial conference in a civil and criminal case.,
particularly
in
the
stipulations of fact. In a civil case, the parties can stipulate on facts even without a pretrial
conference,
in
fact
the
parties can simply submit to the court joint stipulation of facts but during the pretrial conference,
the
parties
are
present together with the lawyer for one of the principal purposes is to enable to parties to
agree
on
the
existence of certain facts and that will be treated as a judicial admission on the part of the
parties.
These
facts
stipulated will be a part of the record of the case. They can be even made verbally. There is no
rule
that
the
facts
stipulated should be reduced in writing. But in a criminal case, the rules are stringent.
There
could
also
be
stipulations but procedure is very strict with regard to the admissibility and enforceability of
the
stipulation
of
facts. In Criminal procedure if the prosecution and defense stipulate on certain facts that
stipulation
must
be
reduced in writing, and must be signed by the counsel for the accused and the accused himself
and
such
must
After the pretrial conference is terminated, a trial court is required to issue a pretrial order. That
is a requirement for all courts. The last section of pretrial pertains that the pretrial order will
control the proceedings later on. In that pretrial order the court is required to specify the
issues that had not been stipulated upon and the issues that should be the object of the trial.
It is the pretrial order that will be followed by the court, when the court finds it necessary to
conduct a trial. The pretrial order is a very important document. If we follow decisions of the
SC, the issues specified in the pretrial order in a civil case since they control the proceeding
taken after by the court. The court can even disregard the pleadings submitted by the parties.
For instance, the plaintiff files a complaint against the defendant for the recovery of an
unpaid loan. The defendant files an answer and the issue that is raised by the pleadings is
whether or not the plaintiff is entitled to recover P 1 million from the defendant. The case is
scheduled for pretrial. The parties attended the pretrial and during the conference the plaintiff
and the defendant agree that the issue to be tried is not the right of the plaintiff to recover P
1M but the entitlement of the plaintiff to recover from the defendant a piece of land.
So we
start with a civil action but during the conference, the parties can tell the court that the issue
is whether or not the plaintiff is entitled to recover apiece of land from the defendant. And that is
the issue that is embodied in the pretrial order.
conflict with the pleadings raised by the parties. It is because Rule 18 is very clear, it is the
pretrial order that will govern the course of the proceeding.
the pleadings. The issue as to recover the sum of money will simply be disregarded by the court.
The prevailing order will be the pretrial order issued by the court. Why do we allow the trial court
to change the issues without changing the pleadings? Remember that in a pretrial
conference both parties are present. Both parties must come into an agreement themselves.
The court will simply be following the desire of the litigants. However such procedure is not
proper in a criminal case.
Let us say that the court strictly follows its pretrial order and then it schedules the case for
trial. The court reminds the parties to present evidence limited to the issue on whether the
plaintiff is entitled to the piece of land. During the trial the plaintiff presents evidence that
he is entitled to recover the piece of land. There is nothing wrong with that. But what if the
plaintiff also presents evidence that he is entitled to recover P 1M. Can the plaintiff so present
evidence on such issue? He cannot if the defendant objects but if the defendant does not object,
the plaintiff will be able to present an issue not raised in the pretrial order. So in our
example, the plaintiff presents 2 evidence, one of which is specified in the pretrial order, the
other is not specified but has been raised in the pleadings. Why do we allow the plaintiff to
present evidence on an issue not raised in the pretrial order? It is because on the rule on
amendment to conform to evidence. In other words with respect to issues in the civil case, we
can jump from one issue to another as long as the parties agreed.
We go now to the remedies to appeal a judgement. If we are going to compare the remedies
available to the defeated party in a civil case, you must have noticed that the remedies
mentioned in civil procedure are also mentioned in criminal procedure but there are certain
instances where the consequences could be different from one another. There are also
remedied in a criminal case to appeal a judgment which may not be available in a civil case or
available in a civil case but not available in a criminal case.
For a civil case, the remedies available to the aggrieved party would depend primarily on
whether
the
judgment
has been entered or not. If the judgement has not been entered, following the provisions of Rule
36,
that
is
to
say
the period to appeal is not yet expired, the 15-day period is still running, and the remedies
available
to
the
and
of
course, the last is appeal. But if the judgement has already been entered, it has become final
and
executory,
we
can no longer make use of appeal, new trial or reconsideration. We can make use of other
remedies
beginning
with 38, that is relief from judgement, then we can have annulment of judgment in Rule
47
instances, Rule 65.
and
in
certain
If you compare these remedies available in a civil case depending on whether the judgment has
been
entered
or
not, and we jump to a criminal case, you will notice that in a criminal case, before the
judgment
of
conviction
becomes final, we have the same remedies-- new trial, reconsideration, appeal but there is a
fourth
remedy,
that
is reopening of the case. Notice that reopening is available by express provision even after
a
judgement
by
conviction has been rendered. But in a civil case, there is no mention of the availability of
reopening
in
order
to
challenge a judgment that has been rendered in a civil case. It does not mean to say, however,
that
reopening
of
a civil case is not available in a civil case. It is still available in a civil case but before the
judgment
is
rendered.
If
there is already a judgement rendered by the trial court, reopening is no longer available to the
aggrieved
party.
The SC said that we also have reopening in a civil case as a remedy but since jurisprudence
requires
that
there
must be no judgment yet rendered by the court, the time frame for the remedy of reopening in
a
civil
case
will
be a short period, that is from the termination of the trial which is after the parties presented
their
evidence
and
before thr judgement is rendered by the trial court. That could be a long period depending on
whether
the
trial
court renders judgment promptly. But as long as the judgement has not yet been rendered by
the
trial
court
in
civil case, any one of the parties can move fore reopening of the case. Because reopening as a
remedy
in
civil
case should be held before a judgement is rendered, of course we cannot make use of the
grounds
mentioned
in
grounds
to
justify a reopening of a civil case. The SC said that there are no grounds specifically mentioned
in
the
Rules,
in
fact, reopening a civil case is not expressly recognized. It is just a remedy accepted by
jurisprudence.
And
usually, reopening is a remedy availed of in a civil case after trial has ended but before
judgement
for
the
purpose of allowing the movant to offer evidence which he may have forgotten to present
during
trial
or
additional evidence. So reopening is available also in a civil case but the time frame is
before
judgment
is
rendere but after trial is terminated. If you compare that to a criminal case, you will
immediately notice the difference. In a criminal case, reopening as a remedy is expressly
recognized in criminal procedure. And reopening can be had by the accused even if there is
already a judgment of conviction as long as that judgement has not yet become final and
executory.
So in a criminal case, you also have new trial, reconsideration, appeal and reopening. But after
the
judgement
of
conviction has been entered, you will also notice that in criminal procedure, there is nothing
mentioned
about
petition for relief from judgement. It is not applicable. Also, there is nothing mentioned
about
annulment
of
judgement. And so the accused cannot make use of relief from judgement and annulment of
judgement.
The
remedies available to the accused if his conviction becomes final and executory could either be
habeas
corpus
or
a petition for certiorari in the exercise by the court of its equity jurisdiction. If the accused
only
feels
that
his
detention in prison is unlawful, his remedy is habeas corpus. The SC has made this very clear
already.
Rule
47
applies only to a civil case. It cannot apply to a criminal case. The SC in the exercise of its
equity
jurisdiction
could also entertain a petition for certiorari even if the judgement of conviction has become final
and
executory.
There is a case where the SC exercised this equity jurisdiction involving a criminal case. It was a
capital
offense
tried by the RTC, the accused was represented by counsel, there was a judgement of conviction
but
at
that
time,
death penalty was still allowed. The case eventually reached the SC because of the penalty
imposed,
death
penalty. The SC analyzed the records of the case and was convinced that there was nothing
wrong
about
the
judgement of conviction. So the judgement became final and executory. After the entry of that
decision
by
the
SC, the Executive Department started the process of putting to death the convict. And then,
there
came
time
when the date of execution was approaching. A journalist went to the hometown of the
accused
and
found
overwhelming evidence that the accused was insane. When this story came out, the Executive
Department,
the
DOJ and the SC sent investigators to find out the truth and their report was to the effect that the
court
may
have
committed an error in convicting the accused because the accused should not have been
charged
of
capital
offense in the first place. The SC allowed petition for certiorati to be filed which eventually
resulted
in
the
release of the accused. When questions were raised as to propriety of a petition for
certiorari
long
after
the
judgement has become final and executory, the SC said that certiorari as remedy is part of its
equity
jurisdiction.
So certiorari is available both in civil and criminal cases to challenge a final and executory
judgement
if
the
Now, with respect to new trial and reconsideration in a criminal case, nothing is mentioned
about
pro
forma
motion for new trial or pro forma motion for reconsideration. If you read Rule 37 for civil cases,
the
Rule
is
very
explicit in requiring that a motion for new trial or reconsideration must strictly comply with the
requirements
of
a motion so that that motion will not fall under the concept of a pro forma motion. A pro
forma
motion
will
always be denied and it could result to an instance where the losing party could lose all the
remedies
because
he
has filed a pro forma motion. This is possible in a civil case because if the aggrieved party
files
pro
forma
motion, the pro forma motion will not stop the running of the reglementary period to appeal.
And
if
the
denial
comes after the expiration of the 15-day period, then the aggrieved party would have lost the
remedy of appeal. Entry of judgement takes place by operation of law. He would only be left with
the remedies of petition for relief from judgement, annulment of judgement and certiorari
under 65. In a criminal case, the SC said there is no such thing as a pro forma motion in a
criminal case. So in a criminal case, the filing of motion for new trial or reconsideration will
always
stop
the
running
of
the
period
to
appeal,
even
if
it
is
pro
forma.
Another distinguishing feature of a new trial or reconsideration in a criminal case is that the idea
for the accused to file a motion for new trial or reconsideration could come from the court or the
court could even initiate a new trial or reconsideration as long as the accused gives his consent.
In a civil case, we always need a motion for new trial or reconsideration initiated by the aggrieved
party.
In Rule 37, the grounds for new trial are completely different from those of reconsideration.
This
is
the
reason
why these two motions are distinct and independent of one another. Supposing that a defendant
in
civil
case
is
advised while the period to appeal is running, we have three remedies--- motion for new
trial,
motion
for
reconsideration and appeal. Then the counsel avails of these three remedies. What happens? The
SC
said
that
if
the losing party files an appeal during the pendency of a motion for new trial or motion for
reconsideration,
the
motions are deemed abandoned. It is the appeal that will prevail. It is inconsistent for an
aggrieved
party
to
file
a motion for new trial and while waiting for the resolution, he would perfect an appeal. That
will
render
the
motion academic. Upon perfection of the appeal, the trial court loses jurisdiction, what would be
left
is
residual
jurisdiction. In another case, the winning party filed a motion for execution pending appeal under
Rule
39.
Then
the losing party filed a motion for new trial. The issue raised before the SC was can the court
act
on
the
motion
for execution pending appeal without first resolving the motion for new trial. The SC said it is
not
proper.
The
trial court should first resolve the motion for new trial. The court should always give preference
to
motion
for
In a motion for new trial founded on fraud, accident, mistake and excusable negligence (FAME)
which ordinary prudence could not have prevented and which probably impair the rights of the
movant, we need an affidavit of merit. The affidavit of merit should be executed by persons who
have personal knowledge of the circumstances surrounding these acts of FAME. So it is not
correct to say that in a motion for new trial, we always need an affidavit of merit. We only
need an affidavit of merit if thr grounds relied upon are FAME. If the ground relied upon is
newly-discovered evidence (NDE), we don't need affidavit of merit. What we need is an affidavit
of the witness who is going to give testimony if the motion is granted. But if the
evidence to be presented is documentary, an authentic copy should be attached to the motion
for new trial.
You are also familiar with the principle in new trial that the fraud contemplated in 37 is always
extrinsic
fraud.
If the fraud that is alleged in a motion for new trial in intrinsic fraud, that motion will be denied.
Rule
37
speaks
of fraud that could not have been prevented with the exercise of ordinary prudence. The phrase
"that
could
not
have been prevented with the exercise of ordinary prudence" will really imply the type of fraud
that
could
be
ground for new trial which is extrinsic fraud. So lawyers are allowed to cheat one another
as
long
as
it
is
confined to intrinsic fraud that could be avoided through the use of ordinary prudence.
For instance, the presentation of a forged document will not be a ground for new trial
because the presentation of a forged document by the plaintiff could be easily avoided by
the defendant through the use of ordinary prudence. He could have called witnesses to testify
that that document was forged. Another instance of dishonesty which the court did not consider
extrinsic fraud is when the plaintiff presented witnesses who were perjured. Extrinsic fraud is
that which deprived a party of his day in court. If we allow every act of dishonesty to be a
ground for new trial, there will never be an end to litigation.
With respect to mistake, the mistake of the lawyer is the mistake of the client. The SC is just
applying
the
rule
on
agency, the act of the agent is the act of the principal. But there is one situation when
the
SC
relaxed
the
application of this principle. The SC said that if the mistake of the lawyer amounts to bad faith,
that
there
is
an
insinuation that the lawyer committed the mistake to cause the defeat of his client, then that will
be
ground
for
new trial. If it can be proven that a lawyer sold out his client, that will be also be a ground for
new
trial.
In newly-discovered evidence, because of the requirement that if admitted by the court, it will
probably
alter
the
result of the case, we cannot consider corroborating evidence as NDE. This will not alter the
result
of
the
case.
The recantation of a witness is not NDE. The testimony of a witness given in open court reflects
the
truth.
In a motion for reconsideration under Rule 37, there are only 3 grounds. There is also a rule that
only
one
motion
for reconsideration will be allowed to the aggrieved party. A second MR will not be allowed
even
if
based
on
another ground. This rule is absolute, there is no exception unlike a motion for new trial where
rule
37
expressly
allows the movant to file a second motion for new trial provided the second motion is founded
on
different
ground. But whether it is a motion for new trial or motion for reconsideration, the court will
not
allow
an
extension of time to file these motions. The party must observe the 15-day or 30-day
period.
If
the
MR
is
favorably acted upon, what the court will do is to render an amended judgement. If the motion
for
new
trial
is
granted and it is not a partial motion for new trial, the judgement will be vacated but the
evidence
presented
during the trial of the case will not be disturbed. But if that motion for new trial is granted in
a
criminal
case,
judgement will also be vacated and the evidence presented during trial must be retaken.
Because
the
grounds
for new trial in a criminal case are serious irregularities or errors committed by the trial court.
In Rule 37, it is clearly provided that if a motion for new trial or motion for reconsideration is
denied,
the
denial
cannot be appealed. What should be appealed is the decision itself rendered by the court. It
cannot
even
be
the
subject of Rule 65. The only remedy of the aggrieved party is to appeal from the judgement in
the
merits
that
is
the subject of new trial or reconsideration. In appealing the judgement, the aggrieved party
can
assign
as
error
Relief from judgement, that's rule 38. Relief from judgement is a remedy available to the
aggrieved
party
after
the entry of judgement. In Rule 38, there are two periods to be reckoned. The second period, the
6-month
period
is counted from entry of judgement. There was one case where the aggrieved party
before
the
entry
of
judgement filed before the trial court a petition for relief from judgement. The filing of that
petition
was
really
improper because a judgement has not been entered. The SC said that the trial court should
not have dismissed the petition but instead, it should have treated the petition for relief from
judgement as a motion for new trial because the grounds for motion for new trial are similar to
those of petition for relief from judgement which is a very liberal attitude adopted by the SC. So
even if a lawyer commits an error, he files a petition for relief from judgement founded on
FAME but the judgement has not yet been entered, the court will consider the petition as a
motion for new trial provided that the petition carries with it the requirements in 37, that is
an affidavit of merit that will prove that there was FAME.
Is a petition for relief from judgement considered similar to annulment of judgement? It is
not.
petition
for
relief from judgement is not an independent action. In fact, it is just a continuation of the original
case.
If
it
were
an independent action, a petition for relief from judgement should always be filed with the
RTC
because
it
is
incapable of pecuniary estimation. But since it is not considered an independent action, Rule 38
provides
that
petition for relief from judgement should be filed with the same court that decided the case. In
fact,
in
petition
for relief from judgement, we use the old docket number of the case. Rule 38 is also very
specific,
petition
for
relief from judgement should be filed in the same court. What is important is the time frame
provided in Rule
38. Because the judgement has already been entered, the winning party may have already
filed
motion
for
execution under Rule 39. Should the court grant the motion for execution? The answer is yes
because
that
is
ministerial duty of the court under Rule 39. If the court grants the motion for execution,
will
it
not
render
academic the relief from judgement filed by the aggrieved party? The answer is no. If you read
Rule
38,
it
says
that the executing court that granted the motion for execution can issue a TRO or a
preliminary
injunction
against the enforcement of the writ of execution. This is an exception to the principle in
injunction
that
to
enjoin
a court, the injunctive relief should come from a higher court. Here it is the same court that
issues
the
writ
of
execution that will issue an injunctive writ against its own order to carry out the execution.
If petition for relief from judgement is granted, can the winning party appeal from the granting
of the petition for relief from judgement? The answer is no because the granting of the
petition is only interlocutory. If a petition for relief from judgement is denied, is the denial a
final order? Yes. Can it be appealed? The answer is no. You refer to Section 1 of Rule 41, it is a
final order which is not appealable. The remedy of the petitioner is to file a petition under Rule
65.
Now we go to the third remedy when the judgement has not yet been entered, that is
appeal.
Appeal
as
remedy could be a matter of right or a matter of discretion. When we say that the aggrieved
party
has
the
right
to appeal, it means to say that when he is able to perfect the appeal, the appellate court
has
no
choice
but
to
render a decision as an appellate tribunal. When we say that appeal is a matter of discretion, we
are
giving
to
the
appellate court the discretion on whether or not to entertain the appeal. For a civil case, there
are
only
modes
of appeal, that is ordinary appeal, appeal by petition for review with the CA and appeal by
petition
for
review
on certiorari under Rule 45. If the case originates from an inferior court, the only mode of appeal
available
is
the
first one, ordinary appeal, even if the questions raised are purely questions of law. The
Constitution
does
not
and
of
course
pay
the
appellate
court docket fees. In some instances, the aggrieved party is required to file a record of appeal.
The
payment
of
appellate court docket fees is jurisdictional. Let us say that the case pending before the inferior
court
is
unlawful
detainer which is exclusively cognizable by an inferior court, the inferior court is presented
with
motion
to
dismiss, is that allowed in Summary Procedure? No, unless the ground is lack of jurisdiction or
absence
of
prior
barangay conciliation. The defendant files a motion to dismiss based on lack of jurisdiction
which
the
inferior
court grants. In Rule 16, if the dismissal is founded on lack of jurisdiction over the dubject
matter,
the
dismissal
is without prejudice. If the aggrieved party wants to bring the matter to a RTC, will he
appeal
the
order
of
dismissal or should he file a petition for certiorari? If he is going to follow Rule 41 and the
dismissal
is
dismissal without prejudice, he should not appeal. The remedy is a petition under 65. But in
Rule
40,
if
an
inferior court dismisses a case which is within its exclusive jurisdiction on the ground of lack of
jurisdiction,
the
remedy of the plaintiff is to appeal, ordinary appeal, not Rule 41. Why don't we just follow
Rule
41?
Because
there is a provision in Rule 40 which says that if the matter is brought to the RTC and RTC affirms
the
dismissal
made by the inferior court, it is the duty of the RTC to assume jurisdiction over the case. In
unlawful
detainer
decided by an inferior court, there could be an appeal to the RTC on both factual and legal
questions.
Whenever
the mode of appeal used is ordinary appeal, the appeal is a matter of right.
Before the RTC as an appellate court, since the appeal by the losing party is a matter of right,
can the RTC also order the dismissal of the appeal because the appellant has violated certain
orders or provisions of the Rules of Court? The answer is yes. Although it is the right of the losing
party to appeal to the RTC, the losing party as an appellant should also obey the orders of the
RTC. One such order is given in Rule 41, that is the appellate court can require the appellant to
submit an appeal memorandum. If he does not submit an appeal memorandum, that could
be a ground for the dismissal of the appeal by the RTC.
If the RTC renders its own decision, can there be a second appeal? The answer is yes. This
time to the CA via petition for review. A second appeal is generally a matter of discretion. The
first appeal is generally a matter of right as long as the mode of appeal is ordinary appeal
but if the mode of appeal is Rule 45, that is always a matter of discretion on the part of the
SC. In the appeal from the RTC to the CA via petition for review, only questions of law could be
raised. From the CA, do we allow a third appeal? There could be a third appeal to the SC, but this
is always a matter of discretion in a civil case.
Before we push through with the discussion on appeal, I suggest that you should first
familiarize
yourselves
with some terms that are relevant to appeal which are usually found in the decisions of the
Supreme
Court
resolving propriety or impropriety of appeals. The first of course is a final order compared to an
interlocutory
order. You know the concept of these. Another one is the question of fact compared to question
of
law.
The
third
would be the material data rule in appeals. And then we have improper appeal and
erroneous
appeal,
memorandum decision is found in Rule 51. The harmless error rule is also found in Rule 51.
The opposite of harmless error is of course harmful error.
With respect to material data rule, the material data rule is always an essential component
of
any
mode
of
appeal whether it is ordinary appeal or petition for review or petition for review on certiorari. The
material
data
rule simply tells the appellant that regardless of the mode of appeal chosen by him he should
see
to
it
that
in
this
appeal he should inform the court about the dates that when he received the decision, the date
when
he
received
a denial of his motion for new trial or reconsideration so that the court can immediately ascertain
if
the
appeal
is
perfected on time. So the material data rule will consists of dates when the decision is received
or
when
there
is
a motion for reconsideration when it is filed or when it is denied, if there is motion for new trial
when
it
is
filed
or when it is denied so that on the face of the mode of appeal used, the court can readily
ascertain
whether
the
appeal is timely perfected. This is always important in the appellate court because when
the
appeal
is
not
perfected on time, the appellate court has not acquired jurisdiction over the appealed case, it
has
something
to
do with the authority or jurisdiction of the Supreme Court or the Court of Appeals or even the
Regional
Trial
Court. This is not a new rule introduced in the 1997 Rules, this is an old doctrine we have been
observing
this
even before 1997 Rules. But there was a time, before 1997 when the Supreme Court dispensed
the
material
data
rule. Then in 1997, the Supreme Court decided to re-impose this as an essential so that
an
appeal
can
be
entertained by an appellate court. Again, the reason why we have the material the data rule is
the
question
of
jurisdiction of the appellate court is a judgment has been entered then it is obvious that this
issue
can
no
longer
be appealed so the only recourse for the court usually is to deny the appeal, to disallow the
appeal.
With respect to the concept of erroneous appeal and improper appeal, this is also mention in the
rules.
There
is
an improper appeal when the mode of appeal used by the applicant is the correct mode but
the
issues
or
the
questions raised in that appeal should not be raised during the appeal. So it has something to
do
with
question
of fact and question of law. So that for instance, if the trial court is a Regional Trial Court, from
the
decision
of
the Regional Trial Court there could be an appeal to the Court of Appeals, the mode of appeal
is
still
ordinary
appeal, a notice of appeal. So the notice of appeal is filed with the Regional Trial Court and
eventually
the
records are transmitted to the Court of Appeals. Under the rules, when there is an appeal by
ordinary
appeal
to
the Court of Appeals from a decision of the Regional Trial Court of questions of fact and of law
could
be
raised.
But the Rules says that if the only issue raised in that appeal is purely question of law, the Court
of
Appeals
has
no jurisdiction. So the Court of Appeals will only dismiss the appeal. That is the importance
of
knowing
the
Erroneous appeal, on the other hand, refers to a situation where the mode of appeal used is
not
the
correct
mode. For instance, under the rules, the correct mode is ordinary appeal but the mode used
by the appellant is petition for review. That is an example of erroneous appeal. But as we
go on, we will conclude that unlike improper appeal where it could lead to dismissal of the
appeal there are certain instances where even if the appeal is erroneous the error committed
by the appellant will not lead to the dismissal of the case.
Yesterday, we said that if the court of origin is an inferior court, there could be an appeal to
the
Regional
Trial
Court. The mode of appeal is ordinary appeal just file the notice of appeal or notice of appeal
plus
record
on
appeal in certain instances where the law requires the submission of a record on appeal. From
the
Regional
Trial
Court as an appellate court we said that there could be a further appeal, a second appeal to the
Court
of
Appeals
but this time the mode of appeal is by petition for review. So we go back to the inferior court.
From
the
inferior
court the mode of appeal is a notice of appeal, which is ordinary appeal. Supposing the
aggrieved
party
chooses
the second mode which is a petition for review, which is the wrong mode. So immediately you
will
notice
that
there is something wrong with the way by which the appeal has been perfected. Can the
Regional
Trial
Court
dismiss the appeal on the ground that the appellant has chosen a wrong mode of appeal? The
Supreme
Court
said no. Even if the appellate court is a Regional Trial Court, and the appellant has chosen
wrong
mode
of
appeal, which is a petition for review, the Regional Trial Court cannot dismiss the petition, he
should
disregard
the error committed by the appellant the reason given by the Supreme Court, if you compare
the
contents
of
notice appeal to that of a petition for review, the contents of the petition for review more
than
satisfied
the
requirements of notice of appeal. If you have seen how the petition for review is drafted, it is
a
very
lengthy
document. In that petition for review there is also an application of the material data rule and
then
there
are
errors that are assigned by the appellant and there are arguments also that are embodied in
that
petition
for
review whereas in the notice of appeal, the appellant simply tells the court in one paragraph,
I
am
appealing
from the decision rendered by the court dated such and such and together with this notice of
appeal,
have
paid
the appellate court docket fee of so much. That is what a notice of appeal simply contains so
if
the
appellant
hopefully chooses a petition for review, the Supreme Court said the Regional Trial Court should
entertain
the
appeal because the essential of notice of appeal are already contained in the petition for
review.
other
But
way
around
such
if
as
exercising
where
it
the
Regional
is
Trial
Court
its
the
is
an
appellate
court
appellate
jurisdiction from its decision under the rules, the right mode is as we said petition for review,
the
appellant
instead of filing a petition for review with the Court of Appeals and serving a copy upon the
Regional
Trial
Court files simply a notice of appeal that appeal will be dismissed because the mode of appeal
used
is
erroneous
and it will not conferred jurisdiction anymore upon the Regional Trial Court. In other words there
are
instances
where a wrong choice in the mode of appeal will lead to dismissal of appeal. There also
instances
where
the
Also under the rules, the only mode of appeal that is allowed in civil cases with the Supreme
Court
is
Rule
45
that is petition for review on certiorari or appeal by certiorari. The case is decided by the
Regional Trial Court exercising original jurisdiction, from the decision of the Regional Trial Court,
there
could
be
an
appeal
either
to
the Court of Appeals or to the Supreme Court depending on the choice of the appellant. The
appellant
decides
to go to the Supreme Court directly but instead of filing a petition for review on certiorari or
appeal
on
certiorari
under Rule 45, he simply files a notice of appeal. The Supreme Court will dismiss the appeal
because
the
choice
of mode of appeal is erroneous. Under the rules, if there is erroneous appeal, the Supreme
Court
will
dismiss
that appeal. A notice of appeal will never be able to satisfy the contents of petition for review on
certiorari
under
Rule 45. On the other hand, even if the rules are very keen in saying that in civil cases, the mode
of
appeal
to
the
Supreme Court is only through Rule 45, using the petition for review on certiorari or appeal by
certiorari.
If
the
appellant in avertedly calls his petition simply a petition for certiorari under Rule 65, the
Supreme
Court
has
also been very liberal in considering a petition for certiorari under Rule 65 as a petition for
review under Rule
45. The Supreme Court said, after all the contents of a petition for certiorari under Rule 65 are
exactly
the
same
as the contents of petition for review on certiorari under Rule 45. But the Supreme Court
cautioned
parties
that
petition for certiorari although in fact it should be a petition for review on certiorari should be
filed
within
the
time given for appeal that is within a period of 15 days. If you will recall, in a petition for
certiorari
under
Rule
65 the period provided is 60 days but in Rule 45 the petition for review on certiorari should be
filed
within
15
days. As long as it is timely filed even if the appellant wrongly calls his petition for review on
certiorari
simply
petition for certiorari the court shall just disregard the error committed by the appealing party.
In
the
Court
of
Appeals, the decisions that could be appealed to the Court of Appeals do not necessarily come
from
the
courts
of justice. The decision that could be appealed in the Court of Appeals could be penned by quasijudicial
bodies.
But whether the decision is issued by quasi-judicial body or a decision rendered by the
Regional
Trial
Court
in
the exercise of its appellate jurisdiction, there is just a common mode of appeal that is
petition
for
review.
Is
there any difference procedurally between petition for review filed before the Court of Appeals
if
the
appealed
decision comes from the Regional Trial Court and when the appealed decision comes from the
quasi-judicial
bodies? As to the contents of the petition for review, there is no significant difference. But as to
the
enforcement
of the decision appealed from, there is a great difference. If the decision appealed comes from
the
Regional
Trial
Court in the exercise of its appellate jurisdiction, the decision of the Regional Trial Court
cannot
be
executed
there could be no execution. There could be an execution but it has to be an execution pending
appeal.
motion
should be filed before the Court of Appeals and that motion must be supported by special
reasons
to
convince
the Court of Appeals to order execution of judgment. So generally, when there is an appeal
to
the
Court
of
Appeals from a decision of a court of justice like a Regional Trial Court the appealed decision
cannot
be
the
subject of execution. But when the decision appealed by way of petition for review to the Court
of
Appeals
is
decision rendered by a quasi-judicial body, the appeal will not stay the execution of the decision.
The
decision
of
the quasi-judicial will have to be enforced during the pendency of the appeal. There is only one
way
by
which
we can stop the execution of the judgment rendered by a quasi judicial body from being
enforced
during
the
pendency of the appeal that is to ask the Court of Appeals to issue a writ of preliminary
injunction. Why do we allow execution of a judgment that is being reviewed by the Court of
Appeals when the judgment is rendered by quasi-judicial bodies but we do not allow that when
the judgment is rendered by the Regional Trial Court? One reason given in the Rules is that in
quasi-judicial bodies the quantum of evidence is only substantial evidence whereas in the
Regional Trial Court the quantum of evidence is preponderance of evidence.
If we compare also the remedies available to the defeated party before the trial court and
before the appellate courts, like the Regional Trial Court, the Court of Appeals and Supreme
Courts we will also notice that if the appellate court becomes higher and higher, the
remedies available to the defeated party on that appeal is considerably lessen. Yesterday we
said that before the court of origin whether it is an inferior court or a Regional Trial Court, the
aggrieved party can file a motion for new trial, he can file a motion for recon and he can also
appeal, so there can be three remedies before judgment is entered.
From the inferior court we go to the Regional Trial Court. The Regional Trial Court also
renders
its
own
decision. Can a defeated party can still file motion for reconsideration? Yes. There could still
be
motion
for
reconsideration; there could still be motion for new trial before the Regional Trial Court, even
if
the
Regional
Trial has decided the case in the exercise of its appellate jurisdiction. There could be another
appeal
to
the
Court
of Appeals in fact this will now be the second appeal. If the Court of Appeals has rendered its own
decision,
can
the defeated party make use of the remedies that we mentioned? Can he file a motion for
reconsideration?
The
answer is also yes. There could be motion for reconsideration before the Court of Appeals.
Can
there
be
motion for new trial before the Court of Appeals? Yes there is still a motion for new trial
before
the
Court
of
Appeals. But this time, there is only one ground for new trial before the Court of Appeals. The
new
can
trial
be
founded
only
in
newly
accidents,
discovered
evidence.
the
We
cannot
mistakes
anymore
use
fraud,
and
excusable negligence. And if you read carefully the provisions of the rules on appeals to the
Court
of
Appeals,
you will notice that while a motion for new trial could still be availed of in the Court of
Appeals
it
is
not
necessary to wait for the Court of Appeals to decide the case. Even if the case has not yet
been
decided
by
the
Court of Appeals, the movant can already file a motion for new trial based on newly discovered
evidence
that
is
not possible when the case is before an inferior court or even before the Regional Trial
Court
acting
as
an
appellate court, in the Regional Trial Court we have to wait for the Regional Trial Court to
render
decision
before we can file a motion for reconsideration or motion for new trial. With respect to the Court
of
Appeals,
we
should also wait for the decision of the Court of Appeals before we can move for
reconsideration
but
when
it
comes to a motion for new trial we do not have to wait for Court of Appeals to render a decision
before
we
can
make use of a motion for new trial founded on newly discovered evidence that is clearly spelled
out
in
the
rules.
The availability of a motion for new trial before the Court of Appeals as long as the case is within
the
jurisdiction
of Court of Appeals. Even if the Court of Appeals has not yet decided the case, there could be a
motion
for
new
trial founded on newly discovered evidence and that is the only ground for new trial in the Court
of Appeals. We dont make use fraud, accident, mistake or excusable negligence. But when
the
case
finally
reaches
the
Supreme Court and the Supreme Court has decided the case, then the only remedy
available,
among
the
motions that we mentioned will be a motion for reconsideration. The Supreme Court does
not
entertain
motion for new trial regardless of the merit of that motion for new trial. The reason given by the
Supreme
Court
is that the Supreme Court generally is not a trier of facts and a motion for new trial, will
always
involved
question of fact based on newly discovered evidence. So this remedy of motion for new trial
will
end
to
the
Court of Appeals as an appellate court but remember the new trial with the Court of Appeals is
limited
to
only
one ground and it is newly discovered evidence. While a new trial filed before the Regional
Trial
Court
can
involve newly discovered evidence, it can involve fraud, accident, mistakes and excusable
negligence.
With respect to Rule 45, this is appeal by certiorari to the Supreme Court, in civil cases this
is
the
only
mode
used. In other words, we cannot use notice of appeal we cannot use a petition for review the
Supreme
Court
strictly applies this rule on appeal. It does not mean to say however that we cannot go up to the
Supreme
Court
by simply filing a notice of appeal or ordinary appeal, what the rules prohibit is ordinary appeal
to
the
Supreme
Court that is notice of appeal if it is a civil case if the case is a criminal case, there could be a
notice
of
appeal
to
the Supreme Court such as when the penalty imposed is life imprisonment or reclusion perpetua
by
the
Court
of
Appeals, the appeal from that criminal case will be by notice of appeal, it will not be an appeal
by
petition
for
review on certiorari. In a petition for review on certiorari filed before the Court of Appeals, it is
axiomatic
that
only question of law can be raised. So if we raised question of law and also a question of fact
before
the
Supreme
Court, the Supreme Court will not necessarily disallow the appeal, the rules say that if the
issues
raised
in
an
appeal under Rule 45 are both factual and legal, the Supreme Court has the discretion to remand
the
case
to
the
Court of Appeals but that is always a matter of discretion. And when the Supreme Court sends
the
case
to
the
Court of Appeals because the issues raised are both factual and legal the Court of Appeals will
have
the
duty
now to review the case and renders its own decision. But the opposite does not apply such as
when
the
Court
of
Appeal is the appellate court let us say there is an appeal to the Court of Appeals through
ordinary
appeal,
the
court of origin being a Regional Trial Court. The mode of appeal as we said is ordinary appeal
he
simply
file
notice of appeal with the Regional Trial Court and pay the appellate court a docket fee. It is
in
this
kind
of
appeal, that the Court of Appeals where the rules require the appellant to submit his brief on
appeal
that
is
why
sometimes in courts decisions you will meet the term brief for the appellant and brief for the
appellee,
these
submissions are required only if the appeal is by ordinary appeal the trial court is the Regional
Trial
Court
and
the appellate court is the Court of Appeals. If the trial court is an inferior court and there is
an
appeal
to
the
Regional Trial Court and from the Regional Trial Court we go up to the Court of Appeals we dont
use
ordinary
appeal, the mode is petition for review. If the court of origin is a Regional Trial Court
exercising
original
jurisdiction, the mode of appeal is by ordinary appeal, notice of appeal to the Court of
Appeals.
During
the
pendency of the appeal, the Court of Appeals will require the appellant to submit a brief,
called a brief for the appellant. Then the rules also provide for the contents of that brief for
the appellant. If the appellant does not submit his brief on time, that will be enough reason to
dismiss
the
appeal.
Even
if
the
submits
his
brief
on
time,
the appeal could still be dismissed if the brief submitted by the appellant does not
contain
the
essentials
mentioned in the Rules of Court. If you will read the provisions of the rules as to the contents of
the
brief
for
the
appellant, you will noticed that the brief for the appellant will be divided into several
chapters,
there
is
this
subject index there is this statement of the case there is this statement of facts, arguments and
errors
assigned
by
the appellant. If the brief for the appellant does not contain an assignment of errors, that is
fatal,
the
court
will
dismiss the appeal even if there is a brief submitted by the appellant if the brief does not
contain
assignment
of
errors. Why is the Court of Appeals is very much interested in that chapter in a brief that is the
assignment
of
errors, without which the appeal will be dismissed? The assignment of errors is essential in
an
appeal
to
the
Court of Appeals by ordinary appeal because in so far as the Court of Appeals that decision
appealed
from,
that
is the decision rendered by the Regional Trial Court is a correct decision. Remember that
in
our
Rules
on
decision,
there
is
presumption of regularity so there is a presumption that the decision rendered by the court is a
correct
decision.
The Court of Appeals will always be applying that disputable presumption whenever there is
an
appeal
in
civil case to the Court of Appeals. In fact that same attitude will be adopted by the Supreme
Court
there
whenever
is
an
appeal
brought
to
presumption
the
Supreme
Court
as
under
Rule
45,
that
to
disputable
the
correctness of the decision appealed from. Since the Court of Appeals will look at the decision
of
the
Regional
Trial Court as a correct decision, the only means by which the appellant can destroy
or
overturn
such
presumption is by convincing the Court of Appeals that serious errors have been committed
by
the
Regional
Trial Court. And the problem of the appellant is that he is not allowed to introduce evidence to
show
that
errors
are have been committed by the Regional Trial Court, the appellant will have to rely on the
records
that
have
already been submitted before the Regional Trial Court. So the only way by which he can possibly
convince
the
Court of Appeals that errors have been committed by the Regional Trial Court is to make an
assignment
of
errors. If the appellant cannot make an assignment of errors in his brief that means to say
that
the
appellant
finds nothing wrong with the decision rendered by the Regional Trial Court, therefore
the
disputable
presumption stays, it will still be used by the Court of Appeals. That is why this chapter in
a
brief
for
the
appellant about assignment of error is always essential. Its absence will be fatal in appeal.
The
appeal
can
be
dismissed if there is no assignment of errors in the brief submitted by the appellant. Can the
appellant
let
us
say
an
error
deciding the case against the appellant? That is not the assignment of error that is expected
by
the
Court
of
Appeals. The errors should be specified particular facts, conduct, orders issued by the court,
which
could
have
affected his substantial rights which brings us now to the concept of harmless errors in
appeal.
In
Rule
51
Section 6 that is the section on harmless errors with respect to appeals. In any litigation we could
expect that the trial court must have committed errors during the proceedings. After all the judge
is
also
part
of
humanity
so
he could commit errors just like lawyers who represented their clients they could commit errors
also.
But
in
that
principle of harmless error in given in Rule 51, it is expressly provided that only errors
committed
by
the
court
in admission of evidence, in issuing orders that affects substantial rights of the appellant will
be
considered
by
the appellate court. So if the error committed by court does not really affect the
substantial
rights
of
the
appellant, the error will be disregarded by the court even if it is made part of the assignment
of
errors.
This
requirement on assignment of errors gives the message that in civil cases that are
brought
on
appeal
the
appellate court will only resolve the issues raised in the assignment of errors no other issues
generally
will
be
resolved by the court only the errors assigned by the appellant in his brief. The only
exception
when
the
appellate court or Court of Appeals will resolve other issues not raised in the assignment is
when
the
Court
of
Appeals sees that an issue is closely related to one of the issues raised
brief.
That
is
we have also rule on appeals that the authority of the appellate court is only to resolve issues in
the
assignment
of errors made by the appellant. But again this rule applies only to a civil case it does not
apply
to
criminal
case. In a criminal case if there is an error committed by the trial court whether it is assigned
as
an
error
or
not
assigned as an error the Court of Appeals or even the Supreme Court can take that into
consideration
in
resolving the case. The appellate courts are very flexible in a criminal case that are brought
before
them
from
decision of a trial court unlike in a civil case where there is a provision which limits the
authority
of
the
appellate court to resolve only the errors or issues that are connected with the assignment of
errors
brief for the appellant.
made
in
the
If it is the appellant who does not submit a brief, the appeal will be dismissed. If it is the appellee
who
does
not
submit his brief, the appeal will not be dismissed. The appellee can choose not to submit a
brief
at
all.
If
the
appellee does not submit a brief, then the court will simply decide the case without a brief
coming
from
the
appellee. It is the brief for the appellant whose non-submission could lead to the dismissal of
an
appeal.
In
the
Supreme Court under Rule 45 although Rule 45 is very clear in saying that only questions of law
could
be
raised
in petition for review on certiorari the Supreme Court has recognized a number of exceptions.
As
of
last
count,
there are about 14 exceptional issues where the Supreme Court has allowed an appeal
although
factual
issues
were raised in that petition for review on certiorari. I suggest that you memorize about five of
them
and
that
will
probably be enough for you to answer problems on appeals concerning Rule 45. In fact you
can
immediately
point three exceptions which are not a product of jurisprudence but a product of the circulars
of
the
Supreme
Court where factual issues can be raised in a petition under Rule 45. The first one is kalikasan
cases,
the
second
one is amparo and the third is habeas data. Under circulars of the Supreme Court on these
three
proceedings,
kalikasan, amparo and habeas data, the appeal to the Supreme Court should also be by
petition
for
review
on
certiorari and the circulars also provide that both factual and legal questions can be raised
before
Court
of
Rule 39 is described by the decisions of Supreme Court as the rule that which gives life to the
law.
It
gives
life to the law in a sense that the winning party will be able to recover the award given in his
favor
through
the
use of Rule 39. So if the civil case is for the recovery of money and the court awards let us say 2
million
in
favor
of the judgment creditor, the creditor of course will not be satisfied unless the 2 million is
delivered
to
him.
It
is
not correct to assume that in order to satisfy the judgment we should always make use Rule
39.
Satisfaction
of
the
judgment
creditor is for the payment by the judgment debtor of 2 million pesos, the judgment creditor does
not
even
have
to think about Rule 39 as long as he receives 2 million pesos from the judgment debtor. In
other
words,
the
2 million pesos to the creditor. It is only in that
where
the
judgment debtor refuses to pay where the only remedy of the judgment creditor to enforce
payment
is
to
make
use of Rule 39, that is to force the debtor to pay 2 million pesos by making a levy on his
properties
and
by
selling
this levied properties at public auction. That is the function of Rule 39 that is a forcible
satisfaction
of
final
and
executory judgment. In the ordinary course of things, if there is an appeal from the decision
rendered
by
the
trial
court and it has reached the Supreme Court even if the decision has been affirmed by the
Supreme
Court
and
the decision of the Supreme Court has been entered, it is not correct for the judgment
creditor
to
ask
for
execution from the Supreme Court. The matter of execution is a duty of the court of origin, if
it
is
the
inferior
court that originated the case it is the inferior court that will have the duty to enforce
satisfaction
of
the
claim.
The higher courts usually do not issue an order for the execution of judgment. What the lawyer
for
the
judgment
creditor should do is to wait for the records to be returned to the court of origin. It could take
time
before
the
records simply return to the court of origin. So if the records have not yet been received by the
inferior
court
and
the judgment creditor files a motion for execution there is likelihood that the inferior court will
tell
him
we
have
not yet received the record so we cannot act on your motion although the issuance of execution,
the
granting
the
motion for execution is already a ministerial duty of the court. Rule 39 has provided for the
remedy
in
this
situation. If there is an appeal that has reached the Supreme Court or Court of Appeals as the
case
may
be,
the
appellate court will simply issue a certified true copy of the entry of judgment and that certified
true
copy
will
be submitted immediately to the court of origin that could be the basis of the granting of a
motion
for
execution
that is enough proof that there is really a final and executory judgment. Is there a need for the
judgment
creditor
to file a motion for execution? Of course there is always a need, if the judgment creditor does
not
file
motion
for execution the court has no business issuing a writ of execution because the court will not
know
whether
there has been voluntary satisfaction of the judgment so there has to be a motion for
execution
filed
by
the
judgment creditor. Since the judgment has become final and executory and it is now the
ministerial
duty
of
the
court to grant the motion and to issue a writ of execution, can the motion for execution can be
heard
ex
parte?
This is without notifying the judgment debtor, without giving him a copy even with the
motion.
This
issue
which is the subject of conflicting decisions of the Court the latest that I know of says that a
motion for execution of a final and executory judgment can be heard ex parte by the trial court
but previous decisions are to the effect that the judgment debtor should also be given a copy of
the motion for execution because the judgment debtor may have grounds to oppose the
issuance of the writ of execution. You adopt that old doctrine that the motion for execution of a
final and executory judgment should always be furnished upon the judgment debtor and that the
motion cannot be heard ex parte.
In the Rules, there is a period fixed within which the court can grant a motion for execution
as
ministerial
duty. It is 5 years from entry of judgment. Then after the end of 5 years there could be revival of
judgment,
no
longer a motion but an independent action to revive the judgment but the independent
action
to
revive
the
judgment must be filed within the second five year period. The rules assume that the period of
prescription
for
because
that
is so provided in the Civil Code. The prescriptive period for the enforcement of a final and
executory
judgment
is really a period of ten years under the Civil Code. But what Rule 39 has provided is to
divide
the
ten
year
period into two parts. First five year and the second five year period, within the first five years
you
can
execute
the judgment through a mere motion, a motion for execution. After the lapse of the first five year
period,
can
the
judgment creditor still file a motion for execution? Not anymore. If he files a motion for execution,
let
us
say
on
the 7th year of the 10 year period, the court will deny the motion because the court does no
longer
have
the
authority to order execution through the granting of a motion for execution. The second five
year
period
is
designed to force the judgment creditor to file a separate complaint, an independent action for
the
revival
of
that
judgment. So the motion for execution should be filed within the first 5 year period of this 10
year
period.
Is
the
first 5 year period strictly implemented by the Rules? It is not. Can it be extended? It can be
extended
according
to the Rules. The Supreme Court has decided that if the execution of the judgment within
the
first
year
is
delayed and delay is attributable to the conduct or act that is traceable solely to the judgment
debtor
again
the
year period is correspondingly extended that is equal to the period of delay caused by the
conduct
of
the
judgment debtor. For example, within the first 5 years from entry of judgment, the judgment
creditor
files
motion for execution. Let us say that the motion was filed on the 3 rd year of the 5 year period.
The
judgment
debtor is given a copy of the motion, after receiving a copy of that motion for execution the
judgment
debtor
files a petition for the annulment of the judgment before the Court of Appeals. We assume
that
the
execution
court is the Regional Trial Court. There is now a petition to annul the judgment under Rule 47,
filed
with
the
Court of Appeals. And the Court of Appeals grants a preliminary injunction which is a relief
sought
by
the
judgment debtor in his petition of annulment of judgment. Because of this preliminary injunction
issued
by
the
Court of Appeals we cannot expect the Regional Trial Court to order the enforcement of that
decision.
So
it
will
take let us say the Court of Appeals a period of 2 years within in which to finally decide the case.
At
the
end,
the
Court of Appeals orders the dismissal for petition for annulment of judgment. So there is a
delay
by
years.
If
the 5 year period has already lapsed then we are going to add another 2 years with that 5 year
period. So the 5 year period will be deemed automatically extended up to 7 years within which
to
execute
the
judgment
to
the
filing of a mere motion. That is how the Supreme Court describes how this first 5 year and
second
year
period
could
arise
for
each
and every case where there is a delay in execution arising from the conduct of the judgment
debtor.
It
simply
means that the judgment debtor can really delay the execution of judgment. In fact he is
given
at
least
remedies under the Rules even if the judgment has already become final and executory. As we
said
yesterday,
Rule 38 is one means of delaying the execution of judgment. In Rule 38, the court that has
decided
the
case
can
issue an injunction against the enforcement of its own decision. Rule 47 is another remedy
available
to
the
judgment debtor in order to delay the enforcement of a final and executory judgment. As long as
in
that
petition
by
the
higher court. In annulment of judgment, the court where we file the case will always be a court
higher
than
the
trial court. If the trial is Regional Trial Court, the annulment court will be the Court of Appeals. If
the
deciding
court is an inferior court, the annulment court will be a Regional Trial Court. So there is no way
by
which
the
trial court can disobey the writ of preliminary injunction issued by this higher court. If the motion
for
execution
is granted, which is expected because the judgment has become final and executory, can the
judgment
debtor
appeal from the order granting the motion for execution? The answer is in Rule 41 section 1, an
order
execution is not appealable.
granting
Although it will be treated as a final order, the only remedy of the
judgment
debtor
is to file a petition under Rule 65. Supposing the trial court denies a motion for execution of a
judgment
that
has
already been entered. Is appeal the remedy of the judgment creditor? The answer is no.
The
remedy
of
the
judgment creditor is to appeal. That will be disadvantageous to the judgment creditor. The
creditor
should
also
resort to Rule 65 but the petition that he should file is a petition for mandamus because
mandamus
is
writ
that
will compel respondent to perform a ministerial duty and in Rule 39, as long as the judgment has
been
entered
it
becomes the ministerial duty of the trial court to grant the motion for execution. So that
is
an
act
that
is
compellable by a writ of mandamus. So that is the remedy of judgment creditor. Can the trial
court
rightfully
deny a motion for execution although the judgment has been entered or can the trial court
rightfully
quash
writ of execution that is issued because the judgment has become final and executory? The
general
rule,
the
trial
court cannot quash or rightfully deny a motion for execution if the judgment has been
entered
but
there
are
certain exceptions recognized by the court. First, when the judgment sought to be enforced has
been
novated
or
the judgment has already become dormant. The five 5 year period has already stared
and
no
motion
for
execution has been filed by the judgment creditor. When the only remedy left in so far as the
judgment
creditor
is concern is an independent action to revive the judgment he cannot substitute by a mere filing
of
motion
for
execution. He should avail of this independent action to revive a dormant judgment. Can
the
parties,
the
judgment debtor and judgment creditor enter into a compromise agreement after the judgment
has
and executory?
become
final
agreement
signed
by
both debtor and creditor and whose terms are not consistent with the award given; the effect is
the compromise agreement will novate the judgment. So if the judgment awards to the
judgment
creditor
million
pesos
but
because the debtor and the creditor are long-time friends and they agree to enter into a
compromise
agreement
where they provide that the entitlement of the judgment creditor is reduced from 2 million to
P1.5
million
and
that the debtor will have a period of 1 year within which to mitigate fully the obligation.
That
compromise
agreement is the law between the creditor and the debtor and that will have the effect of
novating
the
judgment.
So if the debtor does not still pay, the court will no longer grant a motion for execution of the
award
that
has
the
act
of
parties the terms of a judgment that has been duly entered, it can still be changed that is an
application
of
the
rule on novation in the Civil Code. Novation is a means in which an obligation is extinguished.
Supposing
that
within the first five year period the court grants a motion for execution and the court
issues
the
writ
of
execution. The writ of execution is carried out by virtue of a levy on execution on the properties
of
the
judgment
debtor but the properties levied upon were not sold within the first five year period so at the end
of
the
first
five
year period there is a writ of execution, there is levy on execution of properties of judgment
debtor
but
these
properties were not been sold at public auction we are now in the 6th year or 7th year of the 10
year
period.
Can
the properties levied upon within the first 5 year period be sold at public auction on year six
or
seven?
The
answer is yes. According to the court, the first five year period does not require that the
execution,
the
actual
levy and sale of property must be done within the first five year period. It is enough that there
is
motion
for
execution filed, the motion is granted by the court, and there is an actual levy of properties
of
the
judgment
debtor. It does not matter if the actual sale of the levied property takes place after the end of 5
years.
So
what
is
important in so far as the first 5 year period is concern is that there must be an actual levy on
the
properties
of
the judgment debtor. So that the levy that carried out of the judgment can be enforced even
beyond
the
five
year
period. There was another case involving again this first 5 year period and second 5 year period
where
in
year
of the 10 year period the judgment creditor whom elected to file a motion for execution
filed
motion
of
execution on year 7 and then the judgment creditor furnish the judgment debtor of this
motion
and
the
judgment creditor convinced the judgment debtor not to oppose the granting of the motion
so
the
judgment
debtor will accommodate the judgment creditor even filed his written position that he is not
objecting
to
the
granting of the motion for execution. Because there is a manifestation by the judgment
debtor
that
he
is
not
opposing the granting of the motion for execution although it was already year 7 the court
granted
the
motion
for execution and then the writ was issued and properties of the judgment debtor were levied
upon.
When
the
judgment debtor saw that his properties were levied upon he changed his mind. He challenged
the
validity
of
the writ of execution issued on year 7 of the 10 year period. And the court sustained this stand
of
the
judgment
debtor. The court said that after the end of the first
jurisdiction
to
execute
judgment by a mere motion. And the fact that the judgment debtor did not oppose the issuance
of
the
writ
does
not matter because the issue is now one of the jurisdictions. The jurisdiction cannot be
vested
upon
in
court
execution issued by the court after the first 5 year period because the motion was filed also
after
the
first
year
period
the
proceedings
taken by the court will be irrelevant and will be void. The issuance of writ of execution is void and
therefore
the
rules
pertaining
to
the second 5 year period. This is an independent action. Since it is an independent action, if the
original
action
was a real action for the recovery of title to or possession of a property, can we consider the
petition
to
revive
the
the
action
to
revive that judgment will also be a real action and therefore the venue in Rule 4 still apply. If the
action
is
real
should
also
be
the place where the property is situated. An action to revive the judgment since it is an
independent
action
will
always be cognizable by the Regional Trial Court because it is not capable of pecuniary
estimation.
So
if
the
decision sought to be revived is a decision rendered by an inferior court we do not file the
petition
to
revive
the
judgment before an inferior court. We always file the petition to revive the judgment with the
Regional
Trial
Court because we have to determine for purposes of jurisdiction whether the revival of a
judgment
is
capable
or
by
the
the
use
of
term
revival of judgment. If you read carefully section 34, there is a mention of revival of
judgment.
The
revival
of judgment in section 34 is not the revival of a judgment that has become dormant. The revival
of
judgment
that
is carried out after the end of the first five year period refers to a judgment that has become
dormant.
It
is
dormant judgment so we have to revive it. The term revival of judgment in section 34
does
not
refer
to
dormant judgment. In fact, section 34 refers to a judgment that has already been executed so
it
could
not
be
dormant judgment. It must be an executed judgment. But why does Rule 39 provide as a
remedy
revival
of
judgment although it has been previously executed? The situation contemplated in section 34 is
that
judgment
is
executed, properties are levied upon, and these properties had been sold in public auction but
the
highest
bidder
or anybody who thereafter acquires the property is not able to get possession of the
property
because
of
opposition or because of legal obligations that are related to the execution of judgment. So
there
is
difference
between revival contemplated in section 34 that a judgment has been executed and
revival
of
dormant
judgment wherein there is no execution that has taken place within the first 5 year of the
prescriptive
10 years.
period
of
Take note if these differences between revival mentioned in section 6 and revival
mentioned in section
34. The improvement given by Rule 39 in the 1997 Rules, in so far as the judgment creditor is
concerned
is
that
under the present rules, the writ of execution issued by the court by virtue of a motion for
execution
has
life
of
5 years. So judgment creditor does not have to keep on filing one motion for execution after
another,
which
was
the practice in the past. Because in the past the life of the writ of execution was a very short
period,
only 60 days.
think
it
is
But at present, it is has a period of 5 years. So at any time within the five year
period, the sheriff could enforce the writ. The sheriff could make a levy on the properties of
the judgment debtor at any time within the 5 year period. The only limitation enforced by the
rules is that the sheriff must make a periodic report to the court as to the progress of the
process of execution. So the life of the legal execution under Rule 39, at present, is a very
long period of 5 years. How does the court enforce a duly entered judgment through the
granting a writ of execution and the issuance a writ of execution? It all depends on the tenor of
the judgment. If the judgment awards money, there will be a levy on execution of properties. If
the judgment is on delivery of property or delivery documents, then there will be no levy on
execution of properties. The property ordered to be delivered will be seized by the sheriff and
then there is delivery of possession with the judgment creditor. If the judgment directs the
judgment debtor to sign a deed of conveyance or a deed of sale in favor of judgment creditor
and the judgment debtor refuses to sign the document, the court can appoint another person
usually the clerk of the court to sign the document on behalf of the judgment debtor.
If the judgment directs the debtor, the defendant to vacate a piece of land or building and he
refuses
to
vacate
building the court through the sheriff will forcibly oust him from the building, the court will
throw
out
the
things belonging to the occupant from that building. Can the court cite the judgment debtor
in
contempt
for
refusing to obey an order of the court which directs him to pay let us say 2 million pesos? In a
deed
of
execution
to be issued by the court in this case in a money award, the writ will be directed to the sheriff
but
the
writ
will
contain word for word the dispositive portion of the decision. So if the sheriff of the court goes to
the
debtor,
the
debtor can refuse to pay and the debtor can even go to court and tell the court that I have
money
but
dont
want to pay, I will get sick of pneumonia if I pay judgment creditor. Can the court cite him in
contempt?
No,
the
court cannot cite him in contempt. This was a question in the bar examination four years
ago.
Citation
for
enforcement
of a judgment by the sheriff of the court making use of the processes in Rule 39 which is levy
on
execution
of
properties so if a judgment debtor refuses to pay the creditor cannot go to court and ask the
court
to
cite
the
debtor in contempt of court that is not contempt of court because the according to the
court
the
writ
is
not
addressed to the judgment debtor, the writ is addressed to the sheriff of the court so it is the
duty
of
the
sheriff
to carry out the dispositive portion of the judgment. May there be citation for contempt if
there
is
an
award
of
money by way of exception? There is seems to be, that is in support cases. If the respondent
is
ordered
to
pay
support, he does not pay support, it is not only contempt that he will be facing but he will be
facing
criminal
case for failure to give support. But generally, we dont use the power of a court to cite a
person
in
contempt
simply because the judgment debtor has refused to obey a writ of execution issued by the court.
There
are
other
and more effective remedies under Rule 39 in order to carry out a forcible satisfaction of the
judgment
and
the
more effective remedy under Rule 39 is to levy on properties of the judgment debtor, seized the
properties of the debtor and sell them at public auction. In the levy of the properties
under
Rule
39,
the
levy
does
not
automatically mean that possession of the levied properties will be in the hands of the sheriff
or in the physical possession of the court. If the properties of the debtor levied upon are real
properties,
the
debtor
will
continue
to
be in possession of the real properties, he will not be ousted from the properties. What the
court
will
do
is
simply to submit to the registry of property a copy of the levy on execution and ask the registry
of
property
to
annotate the fact that this piece of land is already been a subject of levy on execution and this
levy
in
execution
will serve now as lien over the real property of the judgment debtor. But when the property
levied
upon
is
personal property that is when the physical possession of the personal property will be
turned
over
to
the
sheriff. The personal property will be literally in custodia legis. It is now under the control of
the
court.
What
happens after the levy has been implemented by the court? A levy on properties under Rule 39
should
always
be
followed by a sale at public auction of the properties. We cannot have an execution process
where
we
will
stop
at levying of the properties. The levy must always be accompanied by a sale at public auction.
If
there
is
only
levy without a sale at public auction then that levy can be considered as nullified later on by
the
court.
It
is
the
duty of the court to see to it that actual levy on the properties must be followed by public
auction
sale
of
the
properties. Under Rule 39 and some special laws, there certain properties of the judgment debtor
which
cannot
be the subject of a levy. If a property of the debtor is exempt from execution and it is levied upon
the
levy
is
void
and since the levy is void the sale is also void. The validity of a sale at public auction of levied
properties
will
always stem from the validity of a prior levy. If the levy is void the sale is also void. If the levy is
valid,
however,
it does not follow that the sale is also valid because under the rules there are some certain
requirements
that
must be complied with before a sale of a levied property could take place. For instance, if the
property
levied
upon is real property it cannot be simply be sold later on by the sheriff, there certain formalities
to
be
followed,
there could be a requirement on publication of the sale of the properties. So even if there is a
valid
actual
levy
on
real property if later on the property is sold but there is no compliance with the requirement of
publication
the
sale will be void, the buyer of the property will not acquire any title to that property. So if the
levy
is
void,
the
sale is also void. If the levy is valid, the sale could still be void if the requirements for its valid
sale
under
Rule
39
We continue with rule 39, we talked about terceria-third party claim. The rule on terceria in
rule
39
is
also
and
57
governing
third party claim are practically identical. Terceria is predicated on the premise that the property
levied
upon
by
the sheriff for purpose of executing the duly entered judgment does not belong to the
judgment
debtor.
In
rule
39 for the validity of a levy, the property levied upon must belong to the judgment debtor. If the
property
levied
upon belongs to another person, the levy is not valid. If the sheriff sells the property,
nonetheless,
the
sale
is
not
valid. Rule 39 expects that the properties levied upon and eventually sold all belong to the
judgment
debtor
because rule 39 is the satisfaction of judgment against the judgment debtor. If the sheriff
makes
levy
on
properties which does not belong to the judgment debtor, you can expect the true owner
to complain- he can
even take an action by commencing a complaint for the recovery of the property from the
sheriff.
The
remedy
mentioned in rule 39 available to the owner is just one of the several remedies which the
owner
can
avail
of.
In
rule 39, the remedy of the real owner is to file a third party complaint. The other remedies
which
are
expressly
recovery
of
the
property that has been levied upon. If the property levied upon is personal property,
capable
of
manual
delivery, the true owner can file a complaint for replevin against the sheriff who has
seized
the
personal
property. If the property levied upon is real property, he can file a complaint to prevent the sheriff
from
selling
the property and to compel the return of the property to the true owner. And rule 39 does not tell
the
true
owner
that he only has these remedies in the alternative.The owner can make use of these remedies
successively.
If
he
files a third party claim and he does not succeed in recovering the property by reason of the 3 rd
party
claim,
he
can avail of the remedy to file a complaint for the recovery of the real or personal property, as
the
case
maybe.
But the easiest and most practical remedy available right away to the third party claimant is
this
third
party
claim. A third party claim does not require the filing of a pleading, it is just an affidavit filed by
the
third
party
In the affidavit, one should also append supporting documents and papers that will justify
his
claim
to
the
property. What will the court do with this 3 rd party claim? Can the execution court study and
evaluate
this
third
party claim and eventually render a decision determining if the 3 rd party claim is a proper or just
claim?
Can
the
court render a judgment that will tell the sheriff that the true owner of the property is not the 3rd
party
claimant
but the judgment debtor? The court has no such authority because we are already at the
stage
of
execution
of
judgment. In so far as the court is concerned, the case is already completed, it has been
terminated.
The
third
party claim will just be an incident to the execution process that is being followed by the
court.Therefore,
the
court has no authority to resolve an issue of ownership involving the property that has been
levied
upon.
The
issue of ownership should be threshed out in a different and separate proceeding. So if the
execution
court
issues an order saying that the owner of the property is not the third party claimant but the
judgment
debtor
and the third party claimant does not assail the decision, that order will not be entered because
such
decision
is
not rendered on the merits, it is not a final order. It will not constitute res judicata in so far as
the
third
party
claimant is concerned. Regardless of the finding of the execution court that the true owner of the
property
is
the
judgment debtor, that will not be binding on the third party claimant. If at all, the consequence of
that
finding
of
the court is that the sheriff can proceed with the public auction sale of the property. If the
sheriff
schedules
the
property subject to a third party claim to a public auction sale, the remedy of the third party
claimant
is
to
file
an
independent action in order to prevent the sheriff from selling the property (complaint for
injunction
and
damages, for instance). That is one of the remedies available to the third party claimant. You
do
not
file
that
complaint in the execution court. If it is a complaint for injunction, you should file it in the
Regional
Trial
Court
which has jurisdiction over the case and the venue will depend on the residence of the third
party claimant or the sheriff or the judgment debtor. And it is the third party claimant who will
have the right to choose the venue of the action.
If the property levied upon, on the other hand, is a personal property, say a car in the
possession
of
the
judgment debtor but is really owned by the third party claimant, can the third party claimant file
a
complaint
for
replevin to recover the car from the sheriff? Of course, in that complaint for replevin, the
defendants
would
be
the sheriff and also the judgment creditor because the levy was a result of a motion for execution
that
was
filed
by the judgment creditor. If the execution court is RTC and the third party claimant decides to
file
complaint
for replevin, can he file the complaint before an inferior court? Yes, because a complaint
for
replevin
is
cognizable by the inferior courts depending upon the value of the personal property. So if the
execution
court
is
the RTC, but the car is valued at only 250,000 pesos and the true owner, the third
party
claimant
files
complaint for replevin, the complaint will have to be filed with the inferior courts. That
inferior
court,
in
the
complaint for replevin can issue a writ of replevin or a warrant of seizure before the sheriff and
the
judgment
creditor could file an answer. We would have a complicated situation where the sheriff has seized
a
property
by
virtue of a levy on execution in fact the sheriff has scheduled a public auction sale for the car
but
at
the
same
time there is a warrant of seizure or a writ of replevin issued by an inferior court which directs he
sheriff
of
that
inferior court to seize the car from the sheriff and the judgment creditor. Can the judgment
creditor
and
the
sheriff argue before the inferior court that the inferior court does not have the authority to
issue
the
writ
of
replevin or warrant of seizure because that is interfering with the processes issued by the
Regional
Trial
Court?
The answer is no. The sheriff of the inferior court can enforce the replevin. He can seize the car
from
the
sheriff.
Although the sheriff is in possession of the car, by virtue of a levy on execution, can not
the
sheriff
or
the
judgment creditor capitalize on the provisions of rule 60 that a writ of replevin cannot be
enforced
when
the
property is already subject to attachment or the property is under distraint by reason of nonpayment
of
taxes.
If
you go to rule 60 on replevin, that is really a requisite, an essential requisite in the issuance of a
writ
of
replevin.
The replevin court can issue a writ of replevin validly if the property to be seized by the writ of
replevin
is
not
under custodia legis, either levy on attachment or levy on execution. If that car is subject to
levy
on
execution,
then that car is under custodia legis. But notwithstanding that provision in Rule 60, the court
said
that
the
writ
of replevin issued by the inferior court will prevail over the levy on execution made by the sheriff
because
such
levy on execution is a void execution. The requirement in 60 which states that property under
custodia
legis
cannot be the subject of a writ of replevin assumes that the levy on execution is a valid levy
on
execution.
We
said a while ago, that for levy on execution to be valid, the property levied upon must be a
property
of
the
judgment debtor. If the judgment debtor is not the owner of the property levied upon, that
levy
is
void
and
therefore there could be a seizure or confiscation by another sheriff in compliance with the
writ
of
replevin
issued by another court or even an inferior court. In our example, it is also proper for the inferior
court
to
issue
writ of preliminary mandatory injunction against the sheriff so that the sheriff will be
prevented
from
going
ahead with the sale. So this could be a situation, an instance, where a process issued by an
inferior court can be enforced in order to defeat a process issued by a higher court. The levy
court is a RTC but the injunction court is an inferior court. But the injunction will not be directed
against the RTC, it will be directed against the sheriff of the RTC to prevent him from selling the
property which is the subject of a void levy on execution.
In Rule 39, if a property of the judgment debtor has been subjected to a levy on execution,
can
it
be
made
the
subject of another or further levy on execution? Yes. There could be several levy on execution
over
the
same
property of the judgment debtor. So if the judgment debtor owns a piece of land, there could
be
first
levy,
second levy or a third levy on that piece of land. The rule does not prohibit the enforcement of
several
levies
on
execution over the same piece of land owned by judgment debtor because a vendee does not
immediately
obtain
the
debtor
remains to be the owner of the land. Under rule 39, a levy only creates a lien over the
property
similar
to
mortgage lien. Under civil law, we learned that the same property can be the subject of a first
mortgage,
second
and so forth. We apply that same principle to levy on execution. If we have three levies on
execution,
they
are
all
annotated at the back of the title, then we just follow the rule on seniority that we follow in
mortgages
and
other
encumbrances. The first levy will be superior to the second and third levy. The second and third
are
inferior
to
the first levy on execution. In fact the SC has also held that if a property of a debtor, a piece of
land
owned
by
the
debtor, is the subject of different levies and the judgment debtor sells the property, the
buyer
will
have
to
respect the annotation of levies at the back of the title. If the property is later on sold at public
auction
as
result
of levy on execution, then the buyer of the property could lose his title to the property. He
cannot
say
that
he
bought it in good faith because the fact of the levy is annotated at the back of the title of the
judgment
debtor.
If
this property of the judgment debtor is already mortgaged for instance with the PNB, if the
mortgage
in
favour
of PNB is still uncancelled or existing, can the sheriff levy on a mortgaged property of
judgment
debtor?
Yes,
because levy under Rule 39 does not affect ownership of the property. Levy only creates a
lien.
When
the
property of the judgment debtor is levied upon, he does not lose ownership of the property.
He
could
lose
ownership of the property if there is a public auction sale of the property and even if there is a
public
auction
sale of the property later on, the public auction sale does not necessarily mean that he will
automatically
lose
ownership of that levied and sold property especially if that property is a piece of land.
Under
rule
39,
the
judgment debtor can still exercise right of redemption so that he will still keep his title to the
property.
In cases where there are two different levies over the same piece of land owned by the jd,
usually
the
property
will be sold as a result of the first levy of property. If the property is later on sold at public
auction,
and
the
law
gives the jd a right of redemption, this right of redemption will also be enjoyed by the second
levy
owner.
Rule
39, in its definition of a redemptioner, names the jd and his successors-in-interest and any
creditor
who
holds
another levy or lien subsequent to that of the levying creditor who has caused the sale of the
property.
So
in
our
example, if this piece of land belonging to the jdis sold as a result of the first levy, the
judgment
debtor
can
redeem and the second levy holder can also redeem. The right of the jd to redeem is distinct
from the right of the
second levy holder to redeem the property. If it is the second levy holder who redeems the
property,
the
jd
can
make a further redemption of the property. There could be another redemption by the jd. But if
it
is
the
jd
who
redeems the property, then the second levy holder can no longer exercise the right of
redemption.
In
the
rule
of
successive redemption in Rule 39, when it is the jd who redeems the property from the highet
bidder,
further
rights of redemption are cut off by virtue of the redemption made by the jd. We can
speak
of
successive
redemption if the redemptioner is not the jd himself. If ht one who redeems is a redemptioner or
another
levy
or
lien holder, we can apply the rule on successive redemption which says that another
redemption
place within
could
take
60 days from the efficacy of the first redemption even if the period of
redemption
has
already
expired. For instance, if there are two redemptioners and if we include the jd, meaning to say
there
are
three
persons who can redeem the property. If the redemption is carried out by the jd, the other
redemptioners
will
lose their right to redeem. The period of redemption for all of them is 1 year from the
registration
of
the
certificate of sale. We are going to assume a redemption made should be within 1 year from
the
registration
of
the certificate of sale. If the second levy holder redeems then the third levy holder can also
further
redeem
from
him within 60 days from the date of the last redemption. But in any event, within that 1-year
period,
the
jd
can
always exercise his right of redemption. And if it is the jd who indeed exercises
redemption,
the
right
of
redemption given to others will be cut-off. Will it not prejudice these other levy holders if we cut
off
the
right
of
redemption? It could not prejudice the other levy holders. Since they are other levy holders if the
jd
redeems
the
property, they can still enforce their levy, they can have another public auction sale of that
levied
property.
In
civil law as well as in rule 39, the SC has accepted the principle that whenever there is
a
doubt
in
the
interpretation of redemption rules and laws, the interpretation should always be in favor
of
the
jd
or
the
redemptioner. But rule 39 is also very clear in saying that right of redemption will exist only when
the
property
sold at public auction is a real property. When the property levied upon and sold at public
auction
is
personal
property, there is no ror. Because of these distinctions given in the rules, the SC has
also
come
out
with
principles that are applicable to redemption of real property and principles applicable
because
there
is
no
One of these principles is that when the properties levied upon and sold at public auction is
personal
property
and the price is inequitably low at public auction sale, the sale is void. There has to be
another
sale
of
the
property. The personal property is a car owned by the jd, the market value of the car is
800,000.
At
the
public
auction sale, the highest bid is only 50,000. Here, the highest bidder can acquire a car worth
800,000
for
only
50,000. If we apply the principles given by the SC, the same is void. The highest bidder
does
not
acquire
ownership over the property, the court can issue an order declaring the same as ineffectual and
that
the
same
is
void because the price is inequitably low. So the sheriff must schedule another public auction
sale
until
the
price
that will not fall within the classification of an inequitably low price. But when the property
sold
at
public
auction is real property, it does not matter whether the highest bid is high or low or even if
the price generated is inequitably low. In fact the SC said we cannot use this concept of
inequitably
low
price
when
the
property
sold is a real property because of the principle of redemption- the right of redemption given to
the
jd.
And
the
court explained that even if the piece of land owned by the jd is worth 700,000 and highest bid is
only
50,000,
the
sale is valid. The highest bidder can acquire ownership over the property if redemption is not
exercised
by
the
jd. The SC said if the price is very low and the property is real, that is advantageous to the
judgment
debtor
because if he decides to redeem the property, he will only have to produce 50,000 and
then
he
will
get
his
property that has been sold at public auction. In instances where the judgment debtor has
say
redeems
the
property, the redemption will enable the jd to continue possessing the property and not lose
ownership
over
the
property. But the public auction sale of this piece of land could also result in a situation
where
the
price
generated during the auction sale will not sufficient to pay the claim of jc. For instance,
the
claim
of
jc
is
1,000,000. A piece of land owned by jd is levied upon and sold at public auction and the
price
generated
is
500,000 which is not enough to pay in full the jc. The 500,000 will of course go to the jc who
has
caused
the
sale
of the property but the jc has not yet been fully paid, there is still a residue or unpaid balance of
another
500,000.
When the jd redeems the property, should he deliver to the sheriff 500,000 or 1,000,000? The
jd
should
deliver
only 500,000. He need not deliver 1,000,000 because the redemption price is always the
highest
bid
of
the
property plus interest and other additional cost. So if in our example, the jd is able to redeem
the
property
by
producing 500,000 but the jc has not yet been fully paid, the jc will be tempted to have another
levy
on
the
same
property that has been redeemed by jd. The jc could do so because he has not yet been fully
paid
and
in
rule
39,
there must be full satisfaction of the award to put an end to the case. If the jc decides to have
another
levy
on
the
same property that has been previously levied upon as a result of his execution process but
this
property
has
been redeemed by the jd, can the same levy creditor impose or carry out another levy in the
same
property?
The
SC said, in this situation, the same levying creditor no longer levy on the same property. If
the
same
levying
creditor wants to get full satisfaction, he should make another levy on another property of the jd
or
he
can
resort
to other remedies provided for in rule 39 if he cannot get full satisfaction of the judgment.
But
the
SC
also
explained that this principle does not prohibit other creditors from making a levy on the
property
that
was
already redeemed by the jd. If the jd is able to redeem his property, that same property can
be
the
subject
of
levy to be made by his other creditors. But a subsequent levy cannot be made by the same
levying
creditor
or
the
first levying creditor who has caused the public auction sale of the property. With respect to the
issue
as
to
who
is entitled to the fruits earned by the property during the pendency of the levy and during the
running
of
the
period of redemption, rule 39 has settled that issue. The fruits of the property sold at public
auction
will
still
redound to the jd while the period of redemption. The basis is that the jd retains ownership
of
the
property
while period of redemption is running. If the jd is unable to redeem the property within
the
period
of
redemption, then the title will be consolidated in favour of the highest bidder of the
property.
During
the
auction sale of this levied property, anybody can bid even the jc can bid. In fact, it is usually the
jc
who
will
offer
the highest bid because the jc can give an amount equivalent to the award given to him by the
court. If the award in favour of jc is 1,000,000, the jc can give a bid as high as 1,000,000 and he
does not to turn over the task to the sheriff because he will just tell the sheriff I will consider the
1,000,000 bid as full payment of my claim. If a stranger is the highest bidder and he bids for
1,000,000, this stranger is expected to shell out 1,000,000 and deliver it to the sheriff. Can
the jc be forced to shell out cash equivalent to this highest bid even if the highest bid is the
exact equivalent of his claim? Generally, no. but if there is terceria or third party claim and
the highest bidder is the jc, the jc must still shell out cash in order to be declared by the court
and the sheriff as the highest bidder of the property. If the jc is not fully paid, there are other
options given in the rules- availment of which could lead eventually to full satisfaction of the
claim.
First is for the jc to file a motion with the court for the examination of the jd. Another remedy is
for the judgment creditor to file a motion with the execution court for the examination of a
debtor of the jd. And the third remedy is for the jc to file a motion for the appointment of a
receiver of the remaining properties of the jd. We will note that a receiver is one the provisional
remedies in the rules of court. And also receivership here is allowed by the court although the
case is already terminated, already at the stage of execution of judgment.so this is one
instance, where a provisional remedy can still be used even if the case has been decided by
the court. Usually our concept of a provisional remedy is that it is a remedy that can be
availed of during the pendency of a case before entry of judgment. But receivership
contemplated in rule 39, although it is the same receivership in provisional remedy, can still
be availed of even if there is no more pending case, meaning the case has already been
terminated in fact the judgment has already been entered.
The last topic in Rule 39 is of course one of the most important in procedure - the principle of
RES
JUDICATA.
Res judicata n rule 39 is covered by sections 47 and 48. Section 47 is the effect of a local
judgment
after
it
is
entered and then 48, is about the effect of a foreign judgment that is a judgment rendered by a
foreign
court.
In
our study of res judicata, we studied that there are principle requisites of rj: a) identity of
parties,
b)
identity
of
causes of action and c) identity of subject matter. But the effect of rj under section 47 depends
upon
the
nature
of
the action whether the action is in rem or in personam. What is the effect of a judgment in rem?
This
is
answered
of
section
47
speaks about the principle of conclusiveness of judgment. If you want to have a clearer view
of
the
difference
between the effect of a judgment in rem compared to the effect of a judgment in personam
contained
in
letters
and b, all you have to do is look for conclusive in letter a and letter b. Letters a and b use this
word
conclusive
in
both instances and then you analyse the clauses that follow the word conclusive in letter a and
the
clauses
that
follow the word conclusive in letter b and you will immediately appreciate between a
judgment
in
rem
and
judgment in personam. In letter a, the law says the judgment is conclusive upon the title to the
thing,
upon
the
will or administration, upon the personal, political or legal condition of the person. Whereas in
letter
b,
the
word
conclusive is followed by the phrase upon the parties and their successors-in-interest
litigation
for
the
same
thing under the same title and in the same capacity. So that right away, when the judgment
is
judgment
in
rem, the judgment is conclusive not upon the parties, it is conclusive upon the title to a thing,
upon the personal political or legal condition of a person. This is the reason why a land
registration
or
cadastral
proceeding
is
considered as an action in rem because the judgment in these proceedings is conclusive upon
the
title,
it
is
not
considered conclusive upon the plaintiff or defendant. If the judgment is conclusive upon the
title
to
the
thing,
that judgment will be binding upon the litigants or anybody who might have an interest to the
title
of
the
thing
although these persons might not have been involved in the litigation process. In the probate
of
will
which
is
another proceeding in rem, where there is a decision by the court admitting the will to probate,
it
is
conclusive
upon the will or administration therefore anybody who might have an interest in the will will
have
to
respect
that decision by the court. The personal condition of a person, if a person has in his favour a
decree
of
adoption,
he is the adoptee of Juan Dela Cruz, the decree is conclusive upon the personal status of
that
adoptee
and
therefore, anybody who transacts with the adoptee will be bound by the decree of
adoption
issued
by
the
adoption court. But you will notice, there is a caveat in letter a when it comes to probate of a will.
The
probate
of
a will is not conclusive upon the fact that the testator is dead. It is only prima facie. If at all, it
can
serve
only
not
as a conclusive proof of the death of the testator but it could convince the court that the
testator
really
is
dead.
The reason for the caveat is because in civil law, as well as in rules of court, a probate of will can
be
commenced
even if the testator is still alive. Ordinarily, we conceive a proceeding for the probate of a will as
one
wherein
the
testator is already dead, that is not so, under the civil code and the rules of court. There could
be
proceeding
for the probate of a will even if the testator is still alive provided that it is the testator
himself
who
will
commence the petition for the probate of his own will. That is the reason for the caveat in letter
a
of
sec.
47.
The
probate of a will in so far as the common requirements of a will are concerned but in so far as
the
issue
as
to
In letter b, when the rule says that the judgment is conclusive upon their parties and their
successors-in-interest
as to matters directly ajudged or as to matters which could have been ajudged, that phrase
as
to
matters
that
could have been decided or litigated in relation thereto, will refer for instance to a compulsory
counterclaim
or
up
in
the
same
action will be barred. The reason for them being barred is that because they are matters which
could
have
been
between
the
parties only as to the matters directly ajudged or any matter that could have been ajudged.
An
example
of
an
Plaintiff
vs.
defendant, the action for reconveyance of property, this is not in rem but in personam. Not all
actions
involving
real property is in rem. There are only very few actions involving real property that are
considered
by
the
law
as
in rem like cadastral or land registration proceedings but if the action is only for
reconveyance
or
accion
reinvindicatoria, although what is involved is real property, that action is still in personam. The
judgment
is
in
favour of the plaintiff. The judgment is entered. In so far as that case is concerned, the
plaintiff
is
the
owner
of
the property. Later on, can X as stranger file his own complaint against the plaintiff in the first
case for the recovery of real property? Can the plaintiff in the first case set up the defense of res
judicata? He cannot. Because the parties in the second case are not the same in the first case.
There is no identity in the parties between the first and second case. There is even no
identity of causes of action but the subject matter is the same piece of land. If there is
already an identity of subject matter, does it not follow that there will be identity of causes of
action? This is not a correct assumption. There could identity of subject matter but the causes of
action could be still different. For instance, in accion reinvindicatoria, the subject matter is of
course a piece of land, it involves title to a piece of land. There could be another complaint filed
involving the same piece of land but because of an action different but referring to the same
land. For instance, unlawful detainer involving the same piece of land. But although there is
identity of subject matter, the causes of action will be different- the first, accion
reinvindicatoria, the cause is for recovery of title to property, in unlawful detainer, the
cause is physical possession of property. So if the second case is unlawful detainer, the second
case cannot be dismissed by reason of res judicata. There is no identity of causes of action. When
the judgment is entered as contemplated in sec. 47, there is a judgment on the merits that is
rendered by a court of competent jurisdiction is as provided-judgment in rem and judgment
in personam. The collateral principle we adopt on this rule on res judicata is that the judgment
that has been entered becomes immutable-it can no longer be change or modified even by the
SC itself. So even if the judgment entered is a judgment of an inferior court and that judgment
has been entered, everybody will have to respect res judicata applicable to this judgment. That
entered judgment cannot be modified or changedby the inferior court, by the Regional Trial
Court or even by the Supreme Court. That is the general rule when it comes to res
judicata-the final and executory judgment enjoys now immunity from challenge or from being
assailed by parties to the original case. But it does not mean to say that the judgment that has
become final and executory can no longer be challenged, it can still be challenged by way of
exception to the general rule.
We have learned the propriety of filing a petition to annul a judgment under rule 47. Annulment
of judgment is a challenge, an attempt to change or modify a final and executory judgment. One
of the requisites of res judicata is missing, the element that is missing could be that the court
which decided the case is not a competent court because in rule 47, one of the grounds to
annul a judgment is because the court has no jurisdiction over the subject matter or over the
person of the parties.
Another remedy that could modify a final and executory judgment and which does not follow
res
judicata
is
Rule 38 or petition for relief from judgment on the ground of fraud, accident, mistake or
excusable
negligence.
suggest that you read the case in March 2011, F.G.U. Insurance. In that case the SC
summarized
four
instances
where a final and executory judgment can be modified, challenged or even set aside. The first
instance
is
when
there is modification of clerical errors of a final and executory judgment. The second
instance
is
when
the
judgment is what we call a nunc pro tunc judgment. The third is when the judgment is void.
And
the
fourth
is
when circumstances intervened after the final entry of judgment which makes the execution of
judgment
unjust
and inequitable. That is usually the reason applied by the courts when it entertains a petition for
setting aside a final and executory judgment. But in 2007, the SC also came out with another
decision
which
says
that
the
SC
has the inherent power to change or modify a final and executory judgment if substantial justice
so
requires.
So
you can consider that as the fifth exception. The SC is simply telling that us that we are the
author
of
the
Rules
of
Court so we can disregard it at anytime we want to. It seems easy to appreciate because the
Rules
of
Court
is
product of the Supreme Court. So the Supreme Court will be allowed to disregard the application
of
res
judicata
in any event where it sees that disregard of res judicata will yield to substantial justice. So there
are
five
known
exceptions now where a final and executory judgment can be modified, assailed or set aside
notwithstanding
application of res judicata.
Letter c of sec. 47 is about conclusiveness of judgment. It is a type of res judicata but with
limited
application.
There could be identity of parties and identity of subject matter but there is no identity of causes
of
action.
Thats
why the subsequent cases can prosper. They will not dismissed by reason of res judicata. The
usual
example
that
that
by
If
there
is
1,000,000 indebtedness payable in two instalments of 500,000 each, we learned that each
instalment,
if
violated
or if defaulted, will give rise to one cause of action. So if there are two instalments, it is possible
that
two
causes
of actions will accrue from the same promissory note because each instalment will give rise to a
cause
of
action.
We now apply this to sec. 47. If the debtor defaults in the payment of the first instalment, the
creditor
can
file
complaint to recover 500,000-only the first instalment that is due and unpaid. That is one cause
of
action.
Let
us
say that the court, the RTC, will try the case and then it will hear evidence to be submitted by
the
creditor
and
debtor. A defense set up by the debtor in his answer is that the promissory note upon which
the
complaint
is
based is a forged promissory note, it does not contain the genuine signature of the debtor.
After
the
trial,
the
court decides in favour of the creditor. So the court, in effect, says that the document is not a
spurious
document,
it is not a forged promissory note. The signature is a genuine signature. Then the judgment is
entered.
After
the
entry of judgment, the second instalment also becomes due. Can the creditor file a second
complaint
for
the
recovery of the second instalment? The answer is yes, because our principle is that each
instalment
if
unpaid
will
give rise to a separate cause of action so if the second instalment becomes due and unpaid, the
creditor
can
file
separate complaint against the debtor. The second complaint can prosper. The debtor will
again
raise
the
issue
that the promissory note contains his false signature-it is a spurious promissory note. Will the
court
still
make
Not
anymore,
the finding in the first case by the court that the promissory note is genuine will be conclusive
in
so
far
as
the
creditor and debtor is concerned in another case. Thats why in conclusiveness of judgment, the
subsequent
case
will not be dismissed, it will prosper but what the court cannot do is to make an adjudication on
the
issue
that
has already been decided in the first case. That is a conclusiveness of judgment in so far as
the
genuineness
of
the promissory note is concerned. That is the rule of conclusiveness in the last paragraph of
sec. 47.
In sec. 48 which, as we said, refers to a foreign judgment, this section also refers to a foreign
judgment
in
rem
and foreign judgment in personam if you read the first two paragraphs of sec. 48. In sec. 48, it
is
provided
that
the judgment of foreign court is conclusive upon the title to the thing and a judgment
against
person
is
presumptive evidence of the rights between parties. So the first part speaks also about a
judgment
in
rem
that
is
adjudicated by a foreign court, the judgment in rem is conclusive also upon the title to the
thing.
But
judgment is in personam
evidence
when
the
the
rights
between the parties in the complaint. An illustration of that judgment in personam rendered by a
foreign
court,
there is a creditor and debtor suit in a foreign country, say, before a Japanese court. The relief
which
the
creditor
seeks before the Japanese court is for the recovery of an unpaid loan. The Japanese court in
favour
the
creditor.
So the debtor is required to pay the said sum of 100,000 US dollars. The Japanese court has
not
executed
the
judgment but somehow the creditor and debtor live in the Philippines, they are now in the
Philippines.
The
jd
has accumulated certain properties in the Philippines. Can the jc in that Japan case file a
motion
for
execution
before a Philippine court? The answer is no. you cannot file a motion before a Philippine court.
The
Philippine
court knows nothing about the Japan case. There is no basis for the Philippine court to issue a
writ
of
execution.
Is there a remedy available to the creditor in order to enforce the decision of the Japan court in
the
Philippines?
The remedy is the second paragraph of Rule 48 which says that the judgment of the Japan court
is
presumptive
evidence of the rights between the parties. How does the jc make use of the rule that the
decision
of
the
Japan
court is a presumptive evidence of the rights between the parties to the case? The
creditor
should
file
an
independent or separate complaint for the enforcement of the decision of the Japan court and
the
only
evidence
that he needs in order to convince the court that there is preponderance of evidence in his favor
is
certified
true
copy of the decision rendered by the Japan court. If he is able to present a certified true copy of
the
decision
of
the Japan court, the local court will now apply the presumption given in sec. 48 that the
decision
of
the
Japan
court is a presumptive evidence of the rights between the parties. That is enough to convince the
courts
that
the
creditor is really entitled to recover some amount from the defendant. But you will also notice
that
in
sec.
48,
there is a last paragraph which speaks about repelling a judgment by a foreign court whether it is
a
judgment
in
of
want
of
jurisdiction, want of notice, collusion, fraud or clear mistake of law or fact. In other words, if we
have
before
Philippine court, a separate action for the enforcement of a decision rendered by a foreign
court,
the
defendant
in this petition for the enforcement of foreign judgment can set up the defences given in the
last
paragraph
of
sec. 48. The decision of the Japan court can be defeated or repelled by evidence of want of
jurisdiction,
want
of
notice, collusion, fraud or clear mistake of law or fact. The defendant can set up properly the
affirmative
defense
that the Japan court did not have jurisdiction over the case or jurisdiction over his person
because
of
want
of
notice or that the decision the Japan court is void because of collusion or fraud or that the
decision
of
Japan
court
cannot be enforced because there is clear mistake of law or fact by the Japan court. Can we
make
use
of
these
grounds mentioned in Sec. 48 to repel a local judgment? Can we repel the execution of a
local judgment, say there is a motion for execution filed before a trial court because the
judgment
has
become
final
and
executory,
the jc has now filed a motion for execution, can the jd oppose the execution by claiming
that
the
judgment
entered by the court cannot be executed because the judgment is void by reason of absence
of
jurisdiction?
It
cannot be done if the judgment is rendered by local courts. The motion for execution cannot
be
defeated
by
setting up defense that the judgment is void because of want of jurisdiction over the person of
the
defendant,
it
cannot also be done. Why cannot the defendant in this local judgment oppose the execution
by
setting
up
the
defences that the judgment sought to be enforced under rule 39 and that judgment is rendered
by
local
court?
Why can we not the same defences that are available when the case involves a foreign
judgment?
We
do
not
allow a motion for execution to be opposes or to be denied on the argument that the
court
did
not
have
jurisdiction over the subject matter or jurisdiction over the person of the defendant,
because
that
will
be
collateral attack on the judgment. That is not a direct attack on the judgment. We can
directly
attack
the
judgment by filing a petition to annul the said judgment and the ground to be used is lack of
jurisdiction
over
the person or over the subject matter. But if we attack the judgment collaterally, not directly,
we
do
not
allow
that in our system. We can only directly attack the judgment on these grounds- lack of
jurisdiction
over
the
subject matter, over the person and extrinsic fraud. We cannot use these to collaterally attack
judgment.
When
we say collaterally, the person attacking the judgment does not file a separate complaint for
the
purpose
of
having the judgment set aside. If he only opposes the motion for execution and the ground of
his
opposition
is
that the court did not have jurisdiction over the case, that is not a direct attack, it is
collaterally
attacking
the
In
foreign
on
that
foreign
judgment which is not allowed in so far as a domestic judgment is concerned. With respect to the
other
grounds,
collusion and fraud, they are also grounds to directly attack judgment under Rule 47 even under
Rule
38-petitio
for relief from judgment. But what cannot be done our system is a collateral of final and
executory
judgment.
But there is one occasion, according to the Supreme Court, where we could collaterally attack a
judgment.
If
the
judgment is on its face a void judgment, for instance, a judgment rendered by a court contains
only
dispositive
portion, it does not contain findings of fact or conclusions of law, that judgment is, on its face, a
void
judgment.
It does not with the constitutional requirements of a valid judgment. That can be attached
collaterally.
So
if
there
is a motion for execution for that judgment, an opposition can be set up attacking the validity
of
the
judgment
because it does not with the constitutional requirements of a valid judgment. so in the matter of
attacking
local
judgment, as long as the judgment, on its face, appears to be a valid judgment, in writing,
there
are
findings
of
fact and conclusions of law, there is the signature of judge, there is presumption of correctness of
judgment.
The
only way to have it set aside is to file an action directly for the purpose of declaring that
judgment
-
null
and
void
annulment of judgment. You cannot do it by simply opposing a motion for execution. You
cannot
even
do
it
in
order to oppose the petition for a revival a judgment. A petition to revive a judgment is an
independent
action
available to a jc who has failed a judgment within the first 5 years from the entry of judgment.
If the jc files a petition to revive the judgment, the defendant will not be allowed to set up
the
defense
that
the
judgment
sought to be revived is not valid because of lack of jurisdiction, that is another example of a
collateral
attack
on
the judgment.If the argument that the judgment is void is only used as a defense in a separate
proceeding
other
than annulment of judgment, that is always a collateral attack of judgment and that is not
allowed in our system.
The term Provisional Remedies is considered synonymous to two other terms as per the
circulars
of
the
Supreme Court. And these two other terms are interim reliefs and provisional order. So the
terms
provisional
remedy, interim relief and provisional order refer to one and the same provisional
concept-a
provisional
remedy. So that we can rightfully conclude that the enumeration of provisional remedies in the
Rules
of
Court
beginning with Rule 57 up to support pendent lite in Rule 61 is not an exclusive enumeration
of
provisional
remedies. We have to include the enumeration of interim reliefs in other circulars of the
Supreme
Court
or
the
enumeration of provisional orders in a separate circular of the Supreme Court. The enumeration
of
interim
relief
could be found in the circular in amparo. There are four interim reliefs in amparo- protection
order,
production
order, inspection order, witness protection order. There are four interim reliefs in the circular on
amparo.
And
the circular on amparo itself says that amparo could be a provisional remedy under certain
instances.
Habeas
data could also be a provisional remedy under certain instances. So we can add in the
enumeration
the
interim
relief in the circular on amparo, the four interim reliefs plus amparo itself and habeas data.
There
is
another
circular issued by the Supreme Court which enumerates several provisional orders and this
circular
refers
to
provisional orders in marriage-related cases. There are seven provisional orders contained
in
this
circular-
spousal support, child support, visitation rights, custody of a minor, protection order, holddeparture
order
and
orders
in
marriage-related cases. They are also treated just like a provisional remedy in the Rules of
Court.
And
then
in
the latest circular issued by the Supreme Court, the Kalikasan, we also find some provisional
remedies
like
temporary environmental protection order, this is a provisional remedy under the writ of
kalikasan.
And
in
the
writ of kalikasan, if you have gone over the circular, there is a separate section on discovery
measures
and
the
kalikasan circular appears to consider the discovery measures also as provisional remedies or
interim
relief
like
inspection order, production order which are interim reliefs in the writ of amparo. They
should
also
be
if
we
include discovery measures that are specified in the writ of kalikasan. Whether they are treated
as
interim
relief
or provisional remedy or provisional order, their common element is that there must be a
pending
principal
action. You cannot use of these interim relief or provisional remedy or provisional order
unless
there
is
pending principal action except in those instances when the provisional remedy or
provisional
order
can
be
treated as the principal action. For instance, replevin is a provisional remedy but it can also be a
principal
action.
As we said earlier, amparo is a principal action by itself but it can also be treated as a
provisional
remedy.
Just
like habeas data, it is a principal action by itself but it can also be treated as a provisional
remedy. Since we always require an independent principal action before we can make use of
these
provisional
remedies,
it
follows
that we cannot an independent action solely for the purpose of obtaining as a principal
relief
any
of
these
provisional remedies. For instance, a creditor cannot file a complaint for the issuance solely
of
preliminary
attachment, that will completely be dismissed. The application for preliminary attachment
should
be
always
made to depend upon a principal action that is included in the enumeration of cases in sec. 1
of
Rule
57.
Thats
why in Rule 57, thats preliminary attachment, we immediately find actions that should be filed
in
court
where
we can properly ask for the issuance of preliminary attachment. You should also be careful
in
ascertaining
word
because
preliminary.
Attachment
attachment.
is
of
a
provisional
But
remedy
if
it
is
if
preliminary
the
process
under Rule 39. We kept on mentioning levy on execution in order to describe the process in Rule
39
to
execute
judgment. Levy on execution is just another term for levy on final attachment. But we use
the
term
levy
on
we
refer
to
preliminary attachment. But when we talk about levy on execution, we are referring to a final
attachmentattachment that is promulgated under Rule 39.
an
The enumeration of provisional remedies in the rules of court is no longer exclusive. The various
circulars of the Supreme Court have introduced provisional remedies but in a different way.
Instead provisional remedies in marriage related cases, the term used by the Supreme Court
is provisional order. In the circular on Amparo, there are also provisional remedies but the
term used is interim relief, and in the Kalikasan circular there are also provisional remedies but
the terms used are either provisional order or provisional remedy. But they are all provisional in
character because they cannot be the principal action itself.
These remedies are all incidents of the principal case just like the provisional remedies that we
have in the rules of court. When we say that provisional remedies cannot be the principal
action itself, there is no such principal action for issuance of preliminary attachment. There
can be no principal action of issuance of preliminary injunction. But in the case of replevin,
as a matter of fact, this replevin has been treated by the court as a main action, but the
provisional remedy is an action for the issuance of writ of replevin or a warrant of seizure.
Support pendente lite is also conducted in the principal action, the principal action could be an
action support with an application for support pendente lite.
Although the term used in the other circulars are now different from provisional remedy, still
the
concept
of
provisional remedy will apply in the provisional order or interim relief as the case may be.
In
the
case
of
marriage related cases, the following are the provisional orders. Spousal support, child
support,
visitational
rights, the custody of the minors, and the hold departure order, protection order or the
appointment
administrator
of
of the common property only common or those belonging to the conjugal
partnership of gains.
Under the writ of Amparo, and also the circular on Habeas Data, Amparo and Habeas Data
although principally they are considered as actions in special proceeding, they are treated at the
same time as provisional remedies. If you read the circulars on Habeas Data and Amparo, if
there is already a criminal case instituted in the court, involving the disappearance of a
person or extra legal killing of a person, that criminal action will be the principal case. In
that principal action, a party could move or apply for the issuance of the Writ of Amparo or
Habeas Data as the case maybe.
So there are four interim reliefs in Amparo, protection order, inspection order, production
order
and
witness
protection order. We include now the four interim reliefs, Amparo and Habeas Data. In
the
Kalikasan,
circular
the
provisional
orders
protection
or
of
interim
reliefs
are
temporary
order
environmental
and
preliminary attachment. And the circular also speaks of an optional protection order, cease and
desist
order,
and
production and inspection order. If you will notice in these two circulars of the Supreme Court
appears
to
detail
certain modes of discovery like the production of documents, inspections of things. They are
the
subject
in
the
modes of discovery as enumerated in the rules. They are now treated as provisional remedies. In
the
Kalikasan
court can issue a production order or inspection order. The same is true with the Amparo
circular
there
is
production order, and inspection order, although they are substantially of the same nature in that
we
in modes of discovery.
have
taken
Although we have now several provisional remedies and interim reliefs or provisional orders, it is
not correct to assume that they follow common rules. These different circulars have not
adopted the rules that are existing in the rules of court. That is 57 up to 61. If you analyze the
provisional remedies, found in the rules of court, one of the common elements is the
requirement for the applicant to post a bond. So we have an attachment bond, an injunction
bond, a receivers bond, and replevin bond. The only provisional remedy which does not require
the posting of a bond is support pendente lite.
But in the circular on marriage related cases, the premise is that the family court can grant
these
provisional
orders with or without bond. It all depends on the discretion of the family court. And then, on the
same
circular,
the law also provides that the family court can grant these provisional orders with or without a
hearing.
Which
can also be present in the rules of court, there are some provisional remedies that can be
granted
ex
parte,
there
are also provisional remedies which need a summary hearing before they can be issued by the
court.
In the Amparo circular, when it comes to the interim relief of production and inspection order,
there
must
be
motion filed by the applicant and there must be a hearing conducted by the court. In respect to
protection
order
and witness protection order, these provisional remedies can be issued by the court without a
hearing,
ex
parte.
In the Amparo circular, there is nothing mentioned about the posting of a bond by the
applicant,
so
it
would
seem that just like the circular on marriage related cases the court do not need a bond
before
the
court
can
In the writ of Kalikasan, the usual provisional remedy that is issued by the court is of temporary
environment
protection
order. The
applicant is
not
in
the
matter of
issuance of temporary environmental protection order, and just like the preliminary injunction,
there can be an ex parte issuance good for 72 hours, but the Kalikasan court can extend that
until the case is finally decided.
So if you compare that temporary environmental protection order to the temporary restraining
order, In TRO there is a definite time, and it is called a stag, it cannot be extended by the
court, but in Kalikasan cases the temporary environmental protection order can be extended
by the court until the case is finally decided. There is also no need for a bond.
What is original in this Kalikasan circular is the party who will be required to post a bond in the
TEPO is not the applicant, it is the adverse party, who will file a motion for the victim of
the TEPO. In most instances of provisional remedies where there is a need for the filing of a
bond, like attachment, preliminary injunction, or replevin or receiver, this can be defeated
by the filing of a counter-bond. The same is true with the environmental protection
order, but the difference is that the applicant is not required to post a bond, but the adverse
party moves for the victim of that environmental protection order, he will need to require to post
a bond to protect the interest of the adverse party.
Another rule that applies provisional remedy that is in common, the issuance of these interim
reliefs
is
always
interlocutory, the order is not the final order because it has nothing to do with the merits of the
case.
And
since
the granting of the provisional remedy is interlocutory therefore it is not applicable. The
accepted
remedy
to
challenge an order granting the provisional remedy is rule 65. But in some circulars that has also
been
changed
substantially. For instance, in summary procedure if in the cases that are cognizable by the
inferior
court,
where
the inferior court is governed by the summary procedure if the inferior court grants a
provisional
remedy
it
is
interlocutory, it is not appealable but the adverse party cannot file a petitioner under rule 65.
In
other
words
there is no remedy available to the adverse party. The reason is in summary procedure the
application
of
availment of rule 65 in order to challenge this interlocutory order issued by the inferior court is
prohibited.
That
is one of the prohibited pleadings in summary procedure, the availment of rule 65 to challenge
the
interlocutory
In the circular on Kalikasan the issuance of the TEPO is of course interlocutory can be
challenged
by
the
granting of this TEPO. Yes, it is allowed, the problem is, the challenge in the TEPO is that can only
be
filed
in
the
Supreme Court. In other words, if we avail of rule 65 in Kalikasan case we cannot file the
petitioner
with
the
RTC, CA, it is only in the SC that can entertain a petition assailing the issuance of TEPO. So,
do
not
get
the
impression that all of these remedies are provisional in character, they are governed by the
same
set
of
rules.
They are governed by different set of rules depending on the circular of the Supreme Court that
is
applicable
in
In respect to the authority of the inferior court to grant the provisional remedy, this matter has
now
been
issued
by BP 129. In the past, before BP 129, there was the question as to the totality or the
authority
of
the
inferior
court to grant provisional remedy. But this was settled by BP 129. If you read section 33 of
BP
129,
it
is
now
clearly provided that the inferior court has the authority to grant provisional remedy as
long
as
it
has
jurisdiction over the action. So there is no question at all that the inferior court can
grant
preliminary
is
now
with
support because the support as a principal action is exclusively cognizable by the family court.
There
could
be
instances where the inferior court can grant support pendente lite but we have to look for a
principal
action
cognizable by inferior court, and one of the incidentals or collateral relief is support pendente
lite,
as
long
as
the
inferior court has jurisdiction over the principal case the inferior court has the authority to grant
this
provisional
remedies as long as the requirements given in the rules and in the circulars are complied with.
Going to rule 57, in section 1 there are 6 instances where the court can properly grant an
application
for
preliminary attachment. In respect to the first 5 instances, there is a common requisite, that
there
is
an
intention
on the part of the adverse party to defraud the applicant. It is only in the last instance where
there
is
no
such
requirement that must be shown that the adverse party has intention to defraud the
applicant.
The
only
requirement is that the defendant is a non resident and not found in the Philippines and
summons
can
be
served
upon him by publication. So even if there is no allegation that the adverse party have intention
to
defraud,
there
could still be a preliminary attachment issued by the court. The fact that the defendant is a
non-resident
and
is
not found in the Philippines, is closely related to the provision in rule 14 when the party can
properly
apply
for
publication of the summons in order for the court to acquire jurisdiction to try and decide
when
property
of
the absent defendant is a non-resident and is not found in the Philippines is the subject of
attachment
that
action
in personam against the defendant will be converted into quasi rem by virtue of the
preliminary
attachment
issued by the court implemented by the sheriff of the court. So instead of this last instance, the
sole
purpose
of
the applicant in moving for the issuance of PA is to enable to obtain a security for any
judgment
that
may
be
So if you envision a case that is pending in the trial court, there is a plaintiff who filed a
complaint
for
money,
there is no security that has been given to him and then the debtor according to the
applicant
is
dishonest
person and intends to leave the Philippines with the intention to defraud the applicant, or he
may
not
actually
defraud the applicant. If you will note in the cases mention in Section 1 the conduct of the
adverse
party
will
be
is
common
saying in preliminary attachment, that the fraud committed by the adverse party could be a
criminal
fraud,
that
is a crime under RPC or only a civil fraud, it is an act of fraud but it has not reached the level
of
crime.
And
that will justify the issuance of a writ of PA. So it is called a civil and criminal fraud, it will be
sufficient
for
the
issuance of the preliminary attachment. But the conduct should fall within anyone of the
instances
mentioned
in
section 1. So if the debtor instance draws a check and delivers the check in payment of his
obligation to the creditor and the check bounces, can the creditor file a complaint and ask for
the
granting
of
PA?
The
answer
is
yes, according to the court, because the issuance of a bouncing check is covered by section 1,
that
is
fraud
in
the
performance of the obligation. In section 1, when there is fraud in contracting the obligation, PA
can
be
issued.
If
there is fraud in performance that is fraud in contractum, that is dolo causante in civil law. When
there
is
fraud
in performance, there is dolo incidente in civil law. And in both instances that is a justification for
the
issuance
of
a writ of PA.
Supposing that the plaintiff as a creditor holds a collateral given by the debtor, there is
already
an
existing
of
security. If there is default in the payment, and the creditor files a complaint. And that debtor has
committed
an
act of dishonesty with the intention to defraud the creditor. Can the secured creditor
properly
move
for
the
issuance of PA? The answer is yes. The Supreme Court has ruled in a judicial foreclosure
in
real
estate
mortgage when the mortgagee holds a security for the payment of liability the mortgagee
can
ask
for
the
issuance of PA and the court can grant the application. Although the applicant admits to the
court
that
he
holds
a security. The reason is that if you read the section and contents of the verified application in
section
one
of
the matters that is incorporated in the verified application for preliminary attachment aside from
the
statement
that the applicant cause of action, the third averment in the application is that the applicant
does
not
hold
sufficient security for the payment of his claim. So even if there is a security held by the creditor,
if
he
can
prove
to the court that the security is not sufficient, he can also ask for a preliminary attachment. So
that
if
the
court
grants the PA, the creditor will now look for the other properties of the creditor that could be
the
subject
of
attachment. So if he holds only land by virtue of agreement, that security is not sufficient for the
indebtedness
of
the party, the court grants its application for preliminary attachment, he may have to look for
other
property
to
be attached. He should not be attaching the same property he already holds a collateral security.
So
instead
one
piece of land, he can attach another piece of land so the creditor now as security of payment of
his claim.
In PA, there is a rule that is applicable to PA and other provisional remedies where these
provisional
remedies
are granted ex parte. The first one or first principle that you should always remember in PA this is
applicable
to
other provisional remedies, this could be granted ex parte is the rule on prior or
contemporaneous
service
of
summons. The situation contemplated in rule 57 where it says that the court can grant ex parte
an
application
of
PA, is that there is an application that is filed after the filing of complaint. And even before the
court
acquires
jurisdiction over the person of the defendant through the service of summons, the court
may
already
have
approved the application for PA. Without notice, there is serious irregularity if rule 57
authorizes
the
court
to
grant the PA ex parte that is without notifying the defendant without giving him a notice and
even
before
the
court has acquired jurisdiction over the person of the defendant through the service of the
summons.
That
is
irregular procedurally. Because we learned in procedure that before the court can act validly,
the
court
must
have jurisdiction over the nature of the action, and also the person of the plaintiff and
defendant.
If
the
court
does not have jurisdiction over the person of the defendant, the proceedings stated are void.
So
in
rule
57
the
rule authorizes the court to approve PA even if the defendant has not been served with
summons, because the motion is ex parte without notifying the defendant. Since there is a
strong
possibility
that
the
defendant
later
on
might challenge the writ, the rules introduced the concept of prior and contemporaneous service
of
summons.
And the court explained, the issuance of PA is at 3 stage proceeding. First is the filing of the
verified
application,
the court will ex-parte grant it, and then the court will require the attachment which is always
essential
before
the court can issue the writ of PA. So that after the issuance of the court of a writ PA, as long as
all
the
conditions
have already been met, the only problem is the implementation or the carrying out of the writ of
PA.
If
the
writ
is already in hands of the Sheriff, the sheriff will not carry out by simply attaching the
properties
of
the
defendant. If that is what he is going to do, the attachment of the properties of the adverse
party
will
be
void
because the court has not acquired jurisdiction over the person of the defendant. So what rule
57
requires
is
to
observed the rule on prior and contemporaneous service of summons. If summons has not
yet
been
served
previously, at least the summons should be served contemporaneous with the actual attachment
of
the
property.
So if the properties of the adverse party have been attached, the sheriff should see to it that
the
summons
have
been served upon the defendant today and if the summons is served upon the defendant today
that
will
remedy
the irregularity of lack of jurisdiction. If the summons is served today, the court
automatically
acquire
jurisdiction over the person of the defendant. That is the reason why the Supreme Court
introduced
the
on
prior
or
contemporaneous service of summons applies to all provisional remedies which can be issued
granted
by
the
court ex parte even before the court has acquired jurisdiction over the person of the defendant.
So
we
can
apply
it in injunction, where the court issues ex parte a TRO or PI. Because in the pleading, the
provisional
remedy
is
granted by the court even if before the defendant answers meaning to say even if summons
has
not
yet
been
served upon the defendant. Since PA is carried out, it is derogation upon the defendants right of
ownership
over
his properties, the Supreme Court has also said that the rule on attachment should be strictly
construed
that
is
in
If the properties of the defendant are now the subject of the PA and the properties are
personal
properties
capable of manual delivery, that could be prejudicial to the right of ownership of the defendant
if
the
personal
property that is subject to PA is a car, that car may no longer be in the possession of the
defendant,
it
will
be
seized by the sheriff. It will be in custody of the court as long the preliminary attachment is not
lifted.
But
the
car
will not be delivered to the applicant, it will be in the custody of the court. So if the court will
finally
decide
the
case after 3 years, during that 3 year period, the defendant will not be able to use it, it will be
used
by
the
sheriff
or of the court. That is why preliminary attachment is really derogation to the rights of
ownership.
If the property seized or attached is a piece of land, the defendants possession will not be
affected.
But
only
inconvenience to be suffered by the owner is that in the registry of the property, the
property
is
subject
of
preliminary attachment. It does not affect his title, there is only a lien, an encumbrance by the
PA.
SO
if
he
does
not loose ownership, it means to say that he can still sell the property, but the buyer of the
property
must
also
recognized the fact that the writ of PA can be later on sold on a public auction in which case
the owner or the buyer of the property could be conceivable loose his title later on. In other
words, the buyer of the land that is the subject of the PA cannot complain later on that he is a
buyer in good faith. He has notice of the existence of preliminary attachment.
If the defendant owns a sizeable bank account, the sheriff could issue a writ of garnishment and
served it upon the bank. And when the bank received the writ of garnishment, the bank will
freeze the account up to the amount of the claim. The defendant could no longer use his fund
anymore, if the defendant tries, the bank will not allow him to withdraw. If it is a checking
account, and he has issued checks to a current account, the checks will be dishonoured upon
presentment because the accounts are now frozen. Thats why PA is really a serious derogation
of the rights of ownership. In that writ of garnishment which is also applicable in execution, that
writ of garnishment will create a new relationship as an incident of the case called a force
intervention. The debtor of the defendant, whether he likes it or not will now be the subject to PA.
So when the bank is garnished, whether he likes it or not, the bank will be forced to intervene.
In the sense that the bank will have to follow now the orders to be issued by the court after the
order of garnishment.
The remedies in 57 so that the defendant will get his rights of ownership in full, no longer subject
to
following: First,
PA,
are
equivalent
the
to
the
amount of the attachment bond. So if the attachment bond is 100k, the defendant has another
100k
in
his
pocket,
he must deposit it in court. And that will compel the court to lift the writ on preliminary
attachment.
If
he
does
not have that much cash, he can just file a counter-bond, issued by a surety authorized by the
Supreme
Court
also up to the 100k. The filing or a bond or payment of cash deposit will make it a ministerial
duty
of
the
court
to
lift the PA and that will enable to get back his properties. If the car has been seized the car will
be
returned.
His
bank account will now be unfrozen. Cash deposit or put up a counter-bond. The other remedy is
to
file
motion
the lifting of the PA on the ground of the issuance is improper or irregular. That is always a
remedy
in
order
to
challenge the provisional remedy. The granting of the attachment is improper or irregular.
But
this
needs
motion filed by the defendant. He has to file a motion. And that motion should be heard. When
he
files
motion
One question that was raised before the Supreme Court is if the defendant has already posted
a
counter
bond,
and therefore the preliminary attachment has already been lifted, can the defendant still
make
use
of
3rd
the
remedy. Otherwise, can he file a motion for the lifting of PA or reversal of the order
granting
the
PA.
Considering that the properties previously have been attached have only been returned to the
defendant?
The
Supreme Court answered yes. In other words, even if the defendant has caused the lifting of the
PA,
by
virtue
of
cash deposit or counter-bond, he can still make use of his 3 rd remedy, to file a motion for
the
lifting
of
the
preliminary attachment. The reason given is that instead of his properties acting now as a
security
for
the
claim
of the applicant, he has put up a counter-bond or a deposit. So there is still a security that is
involved
by
the
applicant. If the order granting the PA is lifted, the applicant will be left without security
because
the
counter-
bond liability will be lifted, the cash deposit will have to be returned. So that the applicant will
now be a debtor without any security at all if the court gives an order of PA, although the
attached properties have been returned, by virtue of the bond or the deposit.
there
is
requirement of a bond is the principle in section 20 that is the extent of liability of the applicant
when
it
turns
out
the granting of the remedy of the court is improper or irregular. Section 20 defines the procedure
to
be
followed.
In an action where the PA is issued by the court, the writ will only be lifted if there is a counterbond,
deposit
or
the court withdraws the order or reverses it. But ultimately the court will have to decide the
merits
of
the
case,
whether or not the plaintiff is entitle to recover. If there is judgment in favour of the applicant,
can
the
adverse
party move for the recovery of the damages even if he lost the case? Yes, if the applicant
wins
the
case
on
the
merits, he can still be held liable for damages because the issuance of the PA is improper or
irregular.
It
was
explained that if the applicant eventually wins the case it means the applicant has a cause of
action.
To
which
the
allegations contained in the verified application for preliminary attachment as stated in section
5.
That
verified
allegations contains some serious allegations. First one is that the applicant has a cause of
action,
but
if
the
applicant wins. It does not necessarily follow that he has complained with the second allegations
in
the
verified
application which is the applicant has a cause of action and that cause of action falls under
anyone
of
the
cases
mentioned in section 1 or rule 57. So if the applicant wins, definitely he has a cause of
action.
But
it
does
not
mean to say that his cause falls under anyone of the cases in section 1. He may not be able
to
prove
that
the
existence of dishonesty or the intention of the defendant to defraud the applicant. So if the
applicant
is
not
able
to demonstrate that his case falls under the any of the cases in section 1, that means to say
that
the
issuance
of
the PA is improper and irregular. The only instances where the court can grant PA are the
instances
mentioned
in section 1. If the defendant wins the case on the other hand, it means to say that the
applicant
does
not
even
have a cause of action, because the complaint is going to be dismissed. The liability of the
applicant
for
damages
will come as a matter of course, but section 20 provides the procedure to be followed in
rendering
the
applicant
The first principles in section 20, is that the recovery of damages should be had in the
same
case,
not
in
separate or independent civil action. So in that complaint filed by the applicant, the adverse
party
must
have
already submit an application for the recovery of damages arising from the wrongful improper
issuance
of
PA.
The most practical way or informing the court that the adverse party has a claim for damages is
to
set
up
in
the
answer a compulsory counter claim, for the recovery of damages. If he sets up a compulsory
counterclaim,
for
the recovery of damages, and then he eventually wins, he will just have to ask the court to
motion
for
the
court
to conduct a hearing to the extent of likability to which the adverse party is entitled. What rule
57
tells
us
then
is
that it is not possible for the defendant who has won the case to file a separate complaint
for
the
recovery
of
damages arising from the wrongful attachment. If he asks so that action will be dismissed
even
if
there
is
no
motion to dismiss filed in that second complaint because the ground for dismissal is res judicata
which
is
non-
waivable defense.
And section 20 also is now very clear that the extent of damages to be recovered by the
adverse
party
is
not
equivalent to the attachment bond. In the past if the attachment bond is fixed by the court at
100k,
there
is
an
assumption that if the adverse party will ask for damages, the amount of damages will be limited
to
100k
that
is
the value of the attachment bond. In section 20, there is nothing stated that the liability of the
attaching
creditor
will be limited to the value of the attachment bond by the court, there is nothing mentioned.
What
section
20
provides is that if the attachment bond is insufficient to answer for the liability of the
applicant
to
answer
for
damages then there could be an availment of writ of execution under rule 39. In other words if
the
attachment
bond is 100k, the court can fixed the liability of the applicant to 500k pesos, the liability of
the
bond
will
of
course be 100k but the 400k can be satisfied by making use of rule 39. We ask the court for the
issuance
of
writ
of
execution, there could now be a levy on execution of the properties belonging to the applicant.
Remember
that
in the section 20 is that it is followed in other provisional remedies like PI, Receiver and replevin.
Well
there
is
bond required before the court will grant this provisional remedy. The manner of collecting the
damages
on
the
part of the applicant if it turns out later that the issuance of provisional remedy is wrongful or
improper.
The next provisional remedy is preliminary injunction. And that the principal action could be any
civil
case
like
a principal action of injunction coupled with the application for TRO or writ of PI. A petitioner
of
certiorari
under Rule 65 is usually accompanied by verified application of TRO or writ of PI. Because one of
the
principal
relief, that is asked by the petitioner in rule 65, is to prevent or prohibit the respondent to
proceed
that is pending
with
in
interlocutory
the
court, in
the
the
case
order
case
of certiorari, to
of
set aside
decision
or
the
respondent court.
PI and TRO could be availed of in any civil action where the relief or principal relief sought is
to prevent the defendant from performing an act in the case of mandatory injunction to compel
a performance of an act. So we will not limit the principal action in preliminary injunction to
civil action, we can also make use of them in criminal case, even in a special proceedings.
As long as the principal is to prevent or prohibit a party from performing an act or to compel
him to perform an act.
In PI, there are in fact 2 provisional remedies that are contemplated. The first one is a TRO
and the writ of Preliminary injunction itself. Both now require an injunction bond. So even if the
TRO in exceptional cases can be granted ex parte, the injunction court should always require a
bond. It is not correct to say that it is only in preliminary injunction where you need a bond,
even if the case of the TRO, there is always a need for a bond fixed by the court. And the
general rule which we follow is that a court cannot grant a TRO and PI without a hearing,
unlike a PA. We should always expect a hearing conducted by the court even in cases of the
TRO. If TRO is granted ex-parte, it is only by way of exception. The general rule is that we need a
hearing. Although it is a summary hearing with notice to both party in case of TRO. There is an
exception however given in the rules, when there is grave and irreparable injury.
The court if it is a one sala court can grant a TRO that will not go beyond 20 days, not
extendible.
But
the
court
will fix a TRO bond. During the 20 day period, the court will conduct now a new hearing for the
purpose of determining whether or not the court will issue a PI. With respect to PI, the
presence
of
summary
hearing
is
absolute. A court cannot grant a PI, without a hearing, there is no exception. There must always
be
hearing
to
be conducted. It is only in TRO where there is an exception to the general rule, there can be an
issuance
of
TRO
ex parte as an exception. AN in the multi-sala court, that is where courts consists of different
branches,
there
is
an executive branch, the executive branch can issue a TRO ex parte, but the TRO ex-parte is
good
only
for
72
hours that is 3 days. And then, in a multi-sala court, what the petitioner usually files in the
court
is
motion
of
special raffle and then if the motion is granted by the raffle. In the meantime the executive
judge
will
issue
ex-
parte TRO good for 3 days and after the raffle is completed, the sala before which the action
has
been
assigned
will now conduct a summary hearing to determine whether or not it will issue a writ of PI. Do
not
forget
the
modification in rule 58 by the 2007 circular of the SC. It has something to do with the court that
has
issued
writ
of PI. The modification in 2007 is that if a court issues a writ of PI which has no term anymore,
that
is
it
is
good
until it is lifted or until the case has finally decide, unlike the TRO. That that court that issued the
writ
of
PI
must
decide the PI within a period of 6 months that is the modification introduced by 20067
circular.
The
idea
of
course is very easy to understand, if the court does not raised a need of 6 months to which the
principal
action
could be decided, the PI will be perpetual injunction, because it is good until the case has been
finally
decided.
So if the court grants a PI today, it has only a period of 6 months within which to decide the
principal
case.
And
in deciding the principal case, the court would either rule in favour of the applicant or
defendant.
If
the
court
rules in favor of the defendant, the PI is automatically lifted. That means to say that plaintiff
has
no
right
at
all.
Although the power of the court to enjoin the performance of the act is broad there are certain
instances
given
in
substantive law that is mentioned in the circulars of the Supreme Court where the court cannot
properly
the PI, even in some cases a TRO.
grant
The first situation wherein the court cannot grant a TRO or PI is in the enforcement of
Kalikasan
statutes.
court cannot prevent the enforcement of Kalikasan statutes decided by the Supreme Court, the
court
of
appeals
and RTC cannot prevent the enforcement of Kalikasan statues. Number two, if there is a TEPO
issued
by
any
court, it is only the SC that can prevent the carrying out of the TEPO. In the case of infrastructure
projects
of
the
national government, only the SC can issue an injunctive relief against the carrying out of
infrastructure.
When
it is a government owned bank that forecloses a mortgage like DBP, it is only the Supreme
Court
that
can
stop
the government bank from proceeding with the foreclosure of the mortgage, whether judicial
or
extra.
And
in
jurisprudence, the court has no injunctive relief against the bureau of customs because the BOC
is
an
agency
that
is tasked with collecting revenues, we cannot give a court the authority to enjoin the bureau
of
customs
from
performing its task to collect revenues for the government. Although the court cannot grant
injunctive
relief
against the bureau of immigration, against deportation proceedings. That is already beyond the
authority
of
the
injunctive relief.
If we are going to compare the remedies available to the defendant against whom an injunctive
writ
is
issued
to
that of a defendant in PA, we will notice right away that in rule 57, in the case of preliminary
attachment, if the adverse party posts or files a counter-bond, it is a ministerial duty of the
court to lift the PA, and therefore the properties will be returned to him. But in PI, if the
defendant posts a counter bond which he is entitled, it does not mean to say that the
injunctive court will have a ministerial duty to lift that PI. The court still has to study the merit
of the lifting of the injunction bond. The court cannot simply relief of the presence of the counterbond for the lifting of PI. So it is not a matter of right to expect the court to will lift because he
has filed a bond. There will be a motion for hearing and the court will determine the merit. The
reason where the rules do not make it a ministerial duty to the lift the PI simply because there
is an injunction bond is the ground that is grave and irreparable injury. And the meaning of
irreparable injury according to the court is that injury cannot be measured exactly in terms
of pesos and centavos that is no mathematical formula in determining the liability or damages
that could be suffered by the applicant in injunction.
In PI and PMI, we should always relate this to the situation stated earlier. That is in summary
procedure.
case
that is exclusively cognisable by an inferior court that is following the summary procedure is
unlawful
detainer
or forcible entry. The civil code contains some articles about procedure when there is a
complaint
pending
before an inferior court involving an unlawful detainer and forcible entry. And in the civil code,
it
is
provided
that the court may grant PI or PMI in cases of ejectment. If it is an inferior court that grants a
PI
or
PMI,
that
cannot be appealed that cannot be challenged under rule 65. In summary procedure rule
65
is
prohibited
pleading. If rule 65 is used in order to challenge an interlocutory order, and the granting of PI or
PMI
is
always
an interlocutory order that is the rule that we follow, as well as in civil code. In PI or PMI granted
by
an
inferior
court in ejectment cases cannot be appealed, cannot also be challenged by petitioner under
rule
65.
But
when
that ejectment case is appealed to RTC, that has jurisdiction in appellate jurisdiction, the civil
code
provides
that
the RTC as an appeal court can also grant a PI or PMI if applied by plaintiff. The PMI or PI
granted
by
the
RTC
is still not appealable because it remains interlocutory but it can now be challenged by Rule 65.
While
we
cannot
interlocutory
order is granted by the RTC as an appeal court, but rule 65 is a remedy. So we can
challenged
PI
or
PMI
granted by the RTC in ejectment cases. The reason is that in ejectment cases. Summary
procedure
governs
the
case if it is still pending with the inferior court. But once it is appealed to RTC, the RTC will no
longer
observe
the summary procedure. It will now follow the regular procedure given in the rules of court
as
an
appellate
court.
The third provisional remedy is the receiver which is one provisional remedy that has future
not
present
in
other provisional remedy. Provisional remedies are contemplated to be used by litigants during
pendency
of
the
case, that there is a need, we must have an independent action where we can give to the
applicant
venue
for
the use of the provisional remedies. In receivers, the court can appoint a receiver during the
pendency
of
the
case if no judgement has been rendered but under the rules, the receivership court could appoint
a
receiver
after
the case has been finally decided and the receivership court can still appoint a receiver even if
there
is
process
of execution under rule 39. So if the judgement of the court has been entered, in fact if it now in
the process of execution and satisfaction of judgement, a court can still appoint a receiver as
provided under rule 39. After a case has been finally decided, there is no more reason for the
court to grant a PI, PMI, if at all, the attachment will be converted into a final attachment but
that will simply be a levy on execution. The PI will be converted into a permanent injunction. It
ceases to be a provisional remedy, but in the case of receivers even if the case has been finally
decided by the court on the merits, the decision has become final and executor, we are now in
the process of execution, the court can still appoint a receiver under the procedures or Rule
39, the court can still order the same. So there is no fix time in which the court can appoint a
receiver. If the case is still pending a receiver can be appointed, if the case has been decided
a receiver can still be appointed. If we are now in the process of execution, a receiver can still
be appointed.
We should relate this to the remedies of a judgment creditor in rule 39 when the judgment
creditor is not able to recover full satisfaction of his account. Under rule 39, one of the remedies
granted by the court is for the creditor to ask for the satisfaction and for examination of the
debtor, and the third is for judgement creditor to ask for appointment of a receiver of the
properties of a judgement debtor. So it is very clear, a receiver can be appointed even if the
cases are finally decided or undergoing execution.
A receiver cannot be appointed by the court ex-parte, there has to be a summary hearing. You
will also notice that the ground for the appointment of a receiver is quite broad. Whenever the
court feels that there is a need to appoint a receiver for the purpose of preserving of the property
under litigation. So there must be a property in litigation. And the rules also provided that in
foreclosure
of
mortgage,
again
the
foreclosure
of
collateral, the mortgagee can move for the appointment of a receiver of the property that is
mortgaged. Even if there is no proof that the collateral will be loss or deteriorate, the
foreclosing mortgagee can file a petitioner for the appointment of a receiver, simply because in
the deed of mortgage there is a written stipulation authorizing the mortgagee to move for the
appointment of a receiver. But generally the purpose of a receivership is simply to preserve
the property from deterioration. So that the court does not consider the receiver as a
representative of the parties, the SC has classified a receiver as a representative of a court, an
officer of a court. He represents the court, he is an officer of a court.
Because he is an officer of a court, the receiver cannot file a case as a receiver without
the
consent
of
the
he
needs permission from the receivership court. On the other hand, if the third person has a
grievance
against
receiver in his capacity as a receiver, the third person must also get the permission of the
receivership
court.
So
we find in a situation where the commencement of the action, will need permission from the
court
who
has
appointed a receiver. If a permission is not granted, that action will fail, because it is deemed
filed
in
violation
under the rules given in receivership., We also notice that in the appointment of a receiver,
the
practically
the
issue is left at the discretion of the court. The qualification of a receiver, how many receivers
will
be
appointed,
how much will be paid to the receiver, it all depends upon the receivership court
because, of this broad
authority of the court it follows that since it is the court that appoints a receiver, it can also
fire and appoint a new one, as a receiver whenever there is a need for the preservation of the
property.
It is with respect to the bond where there is feature of receivership which is not followed in
other
provisional
remedies. We have an attachment bond, a PI/PMI bond. In receivership, there are two bonds that
are
filed.
The
first is required of the applicant for the appointment of the receiver. And if the court
eventually
grants
the
application, and the court appoints a receiver, the receiver will also be required to post a
bond.
So
there
is
an
applicants bond and there is a receivers bond. The receiver bond is designed to protect
the
parties
from
litigation from being abused and mislead by the receiver in the performance of his duties.
We go to replevin.
As we said earlier, replevin is accepted as a main action or as a provisional remedy at the
same
time.
SO
the
recovery of the possession of personal property capable of manual delivery is usually referred
even
in
the
cases
decided by the Supreme Court a complaint for replevin. Although the proper role of
replevin
is
that
of
provisional remedy, the principal action is action for recovery possession of personal property.
Since
that
is
the
principal action, it automatic rules out real action. In a real action we cannot make use of a writ
of
replevin.
In
personal action for the recovery of possession of personal property, the proper provisional
remedy
to
enable
of
seizure.
So
in
replevin cases, it is always for the recovery of possession of personal property, without this writ
of
replevin
as
provisional remedy, the plaintiff will be able to recover the personal property only after the
court
has
finally
decided the case and judgment is in favor of the plaintiff so that if he files a complaint for the
recovery
of
car,
versus the defendant, if he files a complaint today, if he does not use of replevin as a provisional
remedy
there
is
no way by which he can obtain a possession of the car. While it the case is pending. The
only
time
when
the
plaintiff can get back the car is when the court has finally decided the case and the decision
is
in
favor
of
the
plaintiff. So that if the proper court will take 5 years to finally decide the case, during period of
5
years,
the
car
subject of the litigation will be in the hands of the defendant. Chances are by the time the case is
decided,
since
it
is in the hands of the defendant who expect probably to lose the case, when he turns the car, the
car
would
have
already been junk. That is the role made by a writ of replevin. So if the plaintiff files a
complaint
today
for
the
recovery of a personal property or car, which according to the plaintiff belongs to him or at
least
entitled
to
possess the car. If he wants to get the car right away, he should also submit a verified
application
replevin.
for
writ
of
And we will notice that in the rules, the principles governing replevin are treated always
in
favor
of
the
applicant. Why do we say that the rules are treated in favor of the applicant? He files a
complaint
today,
he
moves for the issuance of writ of replevin today, can the court grant the motion today or
tomorrow
although
the
defendant has not yet been served with summons? In other words can the court grant the
application
for
replevin ex-parte. And the answer is yes. In fact this is one provisional remedy which cannot be
granted
by
the
higher court. In PA,PI,PMI or receiver, the court of original jurisdiction or appellate jurisdiction
could grant these remedies except replevin. It could only be granted by the trial court because it
can be granted only before the defendant answers.
If the defendant has already answered, then it would be improper for the trial court to
grant
this
writ
of
replevin. So if file a complaint today for the recovery of a car, and then submit an
application
for
writ
of
replevin also filed today, and the court grants it today, the sheriff will look for the car. And if
the
sheriff
finds
the car in the possession of the defendant, the sheriff will seize the car from the defendant, but
following
again
the rule on prior or contemporaneous service of summons in order to cure any defect on
jurisdiction.
But
as
we
said earlier, the rule on prior and contemporaneous service of summons found in rule 57,
equally
applies
to
other provisional remedies that are granted ex parte. So the sheriff will seize the car, and then
after
seizing
the
car, the sheriff will take it for 5 days, that is five day holding period. If within that holding
period,
there
is
no
counter bond and there is no challenge to the court as to the sufficiency of the replevin, at the 6 th
day,
the
sheriff
will give the car to the plaintiff. So if the trial court will take 5 years to ultimately decide on
the
merits,
the
plaintiff will not suffer any harm at all because within the period it is the plaintiff who will be in
the
possession
That is the advantage given by the provisional remedy of replevin. It enables the plaintiff
to
immediately
recover the possession of the personal property that is the subject of litigation. But
there
could
be
some
problems, concerning the service of the writ of replevin. One of the problems is as follows, the
court
not
always
the RTC but may be an inferior court, because if it is a personal property, the jurisdiction
depending
upon
the
value of the personal property alleged in the complaint. So if the complaint is worth 250k, it
will
be
filed
in
the
inferior court, if it is worth 600k, it will be filed in the RTC. But as long as it has jurisdiction,
these
courts
have
the authority to grant in our complaint to recover possession of the car with a writ of replevin.
The bond required is also different form the usual bond, in other provisional remedies. The
bond required is always double the value of the personal property. In other words, unlike in
PA PI where the court has the discretion to fix the amount of the bond, in replevin, the court
has no discretion, the replevin bond will always, be in double of the value of the property as
alleged in the complaint. So if the complaint alleged that the value of the car is 700k the
replevin bond will be 1.4 million. The court has no authority to further decrease or increase
the bond, it will be based on the value of the property according to the allegations contained in
the complaint. If all these requisites are met, the sheriff will seize the property from the
defendant, or from any person who claims to be entitled to its possession because of the
authority given by the defendant.
The problem arises when the sheriff seized the car, that the car is not in possession of the
defendant,
the
one
in
possession of the car, claims that he is the owner of the car, he is entitled to the possession of
the
car,
he
does
not
even know who the defendant is. If that is the situation, the sheriff will not seize the car. Because
the
authority
of
the sheriff to seize the car in replevin is very clear, he will seize the car if it is possession of
the
defendant
or
some other person claiming under the authority of the defendant. If it is in the hands of a third
person,
who
does
not raised his interest from the defendant, the sheriff will be committing a crime if he seizes the
car from the third person. So that is always a likelihood, that a writ of replevin even if granted
by
the
court,
can
easily
be
defeated if the sheriff submits a return to the court, informing the court that he could not seize
the
car
because
it
is in possession of a third person who is not a litigant in the case. In order to remedy this
situation,
lawyers
have
always advised the clients who are plaintiff that if they file a complaint should always implead
the
defendant,
the first defendant should be a known defendants. A person who according to the plaintiff is in
possession
of
the car and the other defendant to be impleaded is an unknown defendant, so we have a
complaint
where
the
caption is plaintiff vs. Juan dela Cruz and john doe, an unknown defendant, we also make use
of
that.
So
that
when the sheriff looks for the car, he does not find in possession of Juan de la Cruz, he finds it in
the
possession
of a third person, that third person will be John Doe. So the sheriff can rightfully seize the car
from
anybody
who might be in possession of the car. That solves the problem of the sheriff in enforcing the
writ of replevin.
You know the rule in unknown defendant, we have to give him name in the complaint
itself. John Doe... anybody who might be in possession of the car, who might be an unknown
defendant. If the car is seized, there is a holding period of a 5 days, within that 5 days period, the
defendant should do something if wants to recover the car. The defendant should file a motion
to challenge the sufficiency of the bond, although it is double the property. He can say that
the complaint is undervalued in order that the replevin bond became smaller. That could be
an issue raised. Or if there is a third party claim filed, if a third person claims to be the true
owner of the car, then he can file a third party claim just like in 39 and 57. But the difference
in 60 is that the third party claim in rule 60 must be filed within the 5 day period, if it is not
filed within the 5 day period, it becomes a useless third party claim. After the end of 5 days,
the sheriff has the duty to deliver the car to the plaintiff so while the case is going on it is the
plaintiff in possession and enjoying the car.
There was another case decided by the Supreme Court whose facts are as follows. A complaint
for
replevin
was
filed by applicant for recovery of personal property capable of manual delivery. The court
included
that
the
writ
that the sheriff cannot enforced the writ because the car can no longer be found, it seems
that
the
property
simply disappeared. What the plaintiff did after receiving the writ of return was to file another
application
this
time for preliminary attachment of the properties of the defendant. So based on the same
complaint,
he
moved
for replevin which cannot be carried about, he moved for the PA on the ground that the
defendant
has
gotten
old of the property and that he has hidden by the car because the car cannot be found at all. If
we
go
back
to
57,
that could be a ground for the issuance of PA. The SC said that the conversion of application
for
PA
could
be
properly filed so that the new provisional remedy from replevin could be done founded on the
same
allegation
in that complaint. The court said it is not proper. That if the plaintiff does not succeed the writ of
replevin
issued
by the court, he cannot simply file another application for the issuance of PA over the same
property
or
different
property. If the plaintiff decides to move for PA because of failure to carry out the replevin, he
should
overhaul
the complaint filed. The allegations contained in the complaint for the PA are different from
the
allegations
contained in the issuance of writ of replevin. In a complaint for replevin, the plaintiff tells the
court
that
he
is
owner of the car or entitled to the possession, whereas in the complaint for PI, the property
to be attached by the
plaintiff should not be the property belonging to the plaintiff. It should be a property belonging to
the defendant because attachment will be a security in favor of the plaintiff. So if we need a
security, we should have in the hands of the plaintiff a property belonging to the defendant
not the property of the plaintiff. So it could not be done unless, the complaint is amended so
that the amended of complaint change the substantial allegations contained in that
complaint.
Another feature of replevin as a provisional remedy is found in last 2 sections of 60, that is in
the complaint of replevin the decision of the court could be in alternative. The alternative in
replevin, that the property will be delivered to the property or the value that the property that
could not be delivered. It is only the replevin that the court is given an express authority to
render alternative judgment.
The last provisional remedy under the rules as I said is also mentioned in the circular of the SC
on
provisional
orders in marriage related cases. In fact the circular are more expansive because it does
not
mention
only
support pendente lite there is a classification in fact of support, spousal support and child
support.
Although
again in that circular, the family court which has the exclusive jurisdiction over complaint a
support
can
grant
spousal or child support even without hearing or without a bond, which is also a provision
in
provisional
remedy in support pendente lite. In support pendente lite, it is one of the provisional remedy
which
does
not
require the posting of a bond. We follow that principle in that circular, child support and spousal
support
could
be granted by the family court with or without a hearing, with or without a bond. That is a
principal
difference
between the provision on circular on marriage related cases pending in the family court and
support
pendente
lite that is tried and pending by the court which is not the family court. Because in the rules
of
court,
it
is
not
proper for a court to grant an order or application for support pendente lite without
conducting a hearing.
In the rules, the support pendente lite can only be allowed after conducting a hearing where
the
parties
are
given the change to explain, the reason why this is required in the rules of court under support
pendente
lite
is
that a court cannot conceivable issue an order granting support unless the court is able to
determine
whether
the
petitioner really needs a support and even if he really needs support, whether or not the
respondent
has
the
financial ability to grant support. Because if the court simply grants the application without
examining
the
financial ability of respondent, the provisional remedy will be useless. It will only end up with
the
respondent
who has no means of support to go to jail. This is one action where we can imprison a respondent
if
he
does
not
comply with the court to issue support although he may not have really the ability to do
so.
In
support
proceedings, there are three remedies given by substantive law which is certainly very
unfavourable
to
us
men.
We can be imprisoned for citation of contempt, there could be execution of our properties under
rule
39
and
the
third, we can be sent to jail not because of contempt but because we have committed a
crime.
So
that
in
most
cases, before a family court where the defendant admits that even if he wants to give support
and
that
he
is
not
financially able to do so and the court usually asks the petitioner. Are you willing that your
husband
go
to
jail?
And invariably he does not him to go to jail. And the court that the provision on substantive law
violates probably the constitutional provision on equal protection of laws. But in the rules of
court
on
support
pendente
lite, you will notice that the principle in section 20 rule 57, rule 57 is not followed at all.
We said earlier that the remedy in order to recover damages in a wrongful issuance of
attachment,
PI,
replevin
should be in the same case. It could not be held in an independent or separate action for
damages.
But
if
you
read provision on support pendente lite, it is expressly provided that there could be an
independent
action
for
the recovery of money that has been given as support in compliance with the order of the
court.
So
we
do
not
have to file a claim in the principal action, the one who gave support following the order of the
court
for
him
to
give support can file a separate complaint for the recovery of the amount that is needed in
compliance
with
the
Going back to the circular of the SC in marriage related cases, this is trial can only be made by
the family court. If you were ask why the family court can order child or spousal support
without a hearing the side of the parties, you will just there is no need for the family court to
determine the needs of the spouse, or the child, or the financial ability of the defendant.
Because it is in these family related cases, one of the requirements is that there must be
inventory of properties submitted to the family court to the petitioner. So if the family court
analyzes that the property owned in common by the parties, the family court can determine
how much the spouse is entitled to every month or how much given to the minors. So there
is also good reason why family court is not required to conduct hearing on the application of
spousal or child support.
Also in respect to the provisional orders granted by the family court in marriage related
cases, although the provisional orders are called by some other name, these provisional
orders partake of the nature of the injunction, an example is a protection order. A
protection
order
in
family
related
cases
is
effectively
a prohibitory
and
mandatory
injunction at the same time because in the protection order, the family court prohibits the
respondents from performing an act. The family court can tell the respondent that dont ever
visit your child in school, that is effectively a prohibitory injunction. It could also be in
form
of
mandatory injunction, the court can tell the respondent do not enter the conjugal
ever
show
your
face.
Effectively
the
protection order in the marriage related cases partakes of a prohibitory injunction and the
mandatory injunction.
We have also this concept of receiver in marriage related cases, instead of appointment in
the family court to appoint a receiver, the co-owned of property or common property, what
the court can do is to appoint an administrator. So the administrator is effectively a receiver of
this property under litigation in charge of solving the property owned in common by the husband
and wife.
With respect to the interim reliefs in Amparo, we said four of them, protection order,
witness
protection,
inspection and production order, and if we add in Amparo and Habeas Data. In effect we have six
interim
reliefs
available in Amparo. The circular does not mention anything of the filing of a bond before the
Amparo
court
can
issue these interim reliefs, with respect to the Kalikasan circular, when the court issues a TEPO
the
applicant
is
not required to post a bond, it is the adverse party who will be required to post a bond if he
files an application for lifting or dissolution of writ of Kalikasan. And as a security to protect the
interest
of
the
applicant,
it
is
the
adverse party who will be required to file a bond before the court will issue an order lifting or
desolving
the
TEPO.
I suggest that you read the circulars, but do not centre your attention on these provisional
remedies
or
interim
reliefs. Its better off if you centre your attention to the procedures in the civil cases and
criminal
cases
given
in
this different circulars. For instance in Kalikasan case, the procedure in civil case that we
have
learned
is
not
applicable in some cases and they are applicable only partially in other cases. For instance
in
the
circular
of
Kalikasan which can be filed before a RTC, an Inferior court. But the special civil action of
Kalikasan
and
continuing mandamus are cognizable only by CA and SC. In filing the complaint involving the
enforcement
of
Kalikasan case, it is not enough to file a complaint, of course the law requires the filing of a bond.
Together
with
that complaint, the circular requires the party already to append to his complaint the evidence
available.
The
same is true with the defendant, when he files an answer, he can already attach the evidence
in
support
of
his
defences. And in Kalikasan cases, civil action, if the defendant does not file an answer, we do not
require
rule
that is the motion to declare defendant in default, a motion to declare defendant in default is
also
prohibited
in
Kalikasan cases. If the defendant does not file an answer and the plaintiff is prohibited from
filing
motion
to
declare the defendant in default, do we expect the court to render a judgment just like in
summary
procedure
according to the tenor of complaint? The Kalikasan circular provides that if the defendant does
not
answer,
it
is
the duty of the court to declare the defendant in default, so there is default without the
corresponding
motion
of
the plaintiff in Kalikasan cases, it becomes the duty of the court to issue an order declaring
the
defendant
in
And in Kalikasan cases, while the courts totally used the state policy which encourages
the
compromise
civil
case,
the
judgement is not called a judgement based upon compromise, the circular has another term
that
is
consent
decree. That is just a judgement based on a compromise. I suggest you read the circulars,
the
should be read.
procedure
that
You will also notice that the rules on evidence are not necessarily followed in Kalikasan cases.
Although the action maybe a special proceeding, the quantum that usually apply could be near
substantial evidence. Which is also the same principle in Amparo. If you read the circular,
the quantum of evidence is only substantial evidence, same in quasi judicial proceeding
although Amparo is a judicial proceeding. So there is no problem if the Supreme Court changes
the quantum of evidence to be followed as in Amparo. But there is something irregular, if a
quasi judicial body will adopt a rule that quasi judicial body must support his stand with
preponderance of evidence. That act of is void, the rule on quantum of evidence is the turf of
Supreme Court. The administrative bodies cannot change the quantum of evidence.
OTHER SIMILAR REMEDIES encompasses three special civil actions enumerated in the
Rules: 1. Reformation of Instrument; 2.Quieting of Title and; 3. Consolidation of Title under
1607 of the Civil Code. Although they are contained in the same Rule, they are governed by
different rules, by different procedures. So the procedure in declaratory relief is different from
the procedure in the other similar relief. The requirements of declaratory relief are not the
requirements of other similar remedies.
With respect to DECLARATORY RELEIF, the obvious nature of declaratory relief which makes it a
special
civil
action is that the petition must be filed must be filed before a breach or violation is
committed.
In
other
words, if we are going to apply the principles governing ordinary civil actions, petition for
declaratory
relief
will
be dismissed outright; because at the time of the filing of the petition, the petitioner does not
have
cause
of
action. There is no allegation in the petition for declaratory relief that there is a right that has
been
violated
by
the act or omission of another. If there is an allegation, the petition ceases to be a declaratory
relief.
It
becomes
an
ordinary civil action. In short, a petition for declaratory relief is a preventive mechanism in
order
to
prevent
contracting parties from getting involved later on in an ordinary civil action which could be
tedious.
Because,
in
declaratory relief, the petitioner does not allege that he has a right or even if he has a
right,
it
has
not
been
violated. And therefore, having no cause of action, the only relief which the petitioner seeks
from
the
Court
is
for the Court to determine what his rights are under a written instrument, deed or contract. The
petitioner
is
not
absolutely certain if he has rights under a certain deed or instrument; and he is asking the Court
to
declare
what
his rights are. So after the Court has declared what his rights are, that is the end. So we
cannot
have
petition
for declaratory relief with a prayer for damages. A prayer for damages in a declaratory relief
will
defeat
the
nature of declaratory relief. Damages are awarded by the Court if there is already a breach of a
right
belonging
to the plaintiff.
You will notice that there is an enumeration in 63 about the instruments which can be
subject
of
declaratory
relief; deed, will, contract, statute or an ordinance. With respect to statute or ordinance, the
same
principle
applies. So we cannot file a petition for declaratory relief involving a statute or ordinance if
there
has
been
violation of the statute or ordinance. So before the effectivity of the statute or ordinance, the
usual
prayer
for
petition for declaratory relief is to declare the statute or ordinance void or unconstitutional. So,
you
will
notice
in
some instances after the Congress enacted law, and the President has signed it into law, there is
always
date
of
effectivity given to that statute. If somebody wants to challenge the validity or constitutionality
of
that
statute,
he must do so before the law takes effect and before the violation and before a violation of the
law
is
committed,
So
you
will
meet decisions of the Court in certain declaratory relief to the effect that we cannot file a motion
for
execution
in
order to carry out the declaratory judgment. The judgment in declaratory relief is
usually
called
DECLARATORY JUDGMENT in order to differentiate it from what the Court usually renders after a
judgment has been entered in order to clarify a judgment. In the latter phase, we usually
call
the
latter
judgment
as
Court,
it
has become final and executory but there are certain ambiguities which will make it hard for the
Court
of
origin
to execute that judgment. The remedy of the interested party is to file a motion for a rendition of
a
Judgment.
Clarificatory
In Declaratory Judgment, the Court will only tell the petitioner what is rights are, what his
duties
are
under
certain will, deed or contract. Or in the case of a statute or ordinance, the Court will tell the
petitioner
whether
statute or ordinance is constitutional or unconstitutional. So after the Court has done its duty,
there
is
more
need
for the prevailing party to move for execution. We dont apply Rule 39 to a petition for
declaratory.
So
that
is
the
first nature of Declaratory Relief which makes it a special civil action. So there is really no
cause
of
action
as
contemplated in ordinary civil action, where there is a right that has been violated by the
defendant.
The second procedural rule that we apply to declaratory relief, which is not followed in
other special civil actions or ordinary civil action, is the authority of the Court not to entertain
the petition for declaratory relief. The Court can outright tell the petitioner, I am not inclined
to entertain your petition. The Court can refuse to declare the rights and duties of the
petitioner or respondent under a deed, will or contract on the ground for instance that the
judgment of the Court will not bind parties who have not been impleaded a petition for
declaratory relief, which shows that a declaratory relief is not in rem but purely a petition in
personam, it cannot bind parties who have not been impleaded. Although, these parties who
have not been so impleaded may be contracting parties of the contract, subject matter of the
litigation.
What is the competent Court in Rule 63? If the petition is for declaratory relief, it is the
Regional Trial Court because a petition for declaratory relief is not one capable of pecuniary
estimation. But if we are going to look for the competent court for other similar remedies, it is
not always the RTC, we have to take into account in the provisions of BP 129. For instance,
reformation of instruments, is that cognizable solely by the RTC? Yes, because reformation
of instruments is not one capable of pecuniary estimation. What is the competent court for
Quieting of Title? It is not necessarily the RTC. It is because Quieting of Title involved title to or
possession of real property and under the standard provided by BP 19, actions involving title to
or possession of real property could be cognizable by the RTC or an inferior court depending
on the assessed value of that property. So, quieting of title could be cognizable by an Inferior
Court if the assessed value of the property is only P5000 or P10000. We apply the standard
provided in the provisions under BP 129.
The third special civil action is Consolidation of Title. The competent Court is also decided by the
assessed value of the property involved, because consolidation of title always involves a real
property. Using the standard applied by the Court in Quieting of Title, we have to allege the
assessed value of the property in order to give to the trial court jurisdiction over the case.
Why do we need to file a special action for Consolidation of Title? Does not Consolidation of
Title
come
matter of course if the period of redemption has expired and the redemption-er has failed to
exercise his right of
redemption? That is in fact the principle that we follow in Rule 39. In execution of judgment, if a
real
property
is
sold in a public auction by virtue of a levy or execution, the highest bidder will not get
automatically
title
in
his own name. Rule 39 provides for a period of redemption, which is usually one (1) year from
the
registration
of the certificate of sale. After the lapse of one year, if the sheriff is not informed by the highest
bidder
whether
or not there has been a redemption that is carried out, what the sheriff will do is to issue a
FINAL
DEED
OF
SALE. Initially, what the Sheriff issued in Rule 39 is a Certificate of Sale,that is the one that is
recorded
in
the
Register of Deeds. So the Register of Deed can easily determine if the period of redemption has
already
expired.
It is just a matter of counting from the registration of the Certificate of Sale. If there is no
redemption,
the
highest
bidder will naturally be interested in getting a title in his own name. The title of the judgment
debtor
will
have
to be cancelled and a new title should be issued by the Registry of Deeds in the name of the
highest
bidder.
The
highest bidder does not have file an action for the consolidation of title. The highest bidder will
only
secure
from
the Sheriff or the Court this Final Deed of Sale and when he records this Final Deed of Sale,
the
Registry
of
Deeds will simply cancel the title of the judgment debtor and issue a new one in the name of the
highest
bidder.
So the highest bidder now has in his hands Torrens Title in his own name. So in Rule 39 there is
no
such
thing
as
Consolidation of Title under Rule 63 as a Special Civil Action. This is also the procedure that is
followed
when
is
highest
bidder. The sheriff will execute a Certificate of Sale and will be recorded and from that time on
we
count
the
one
year of redemption. If there is no redemption, the Sheriff will again issue a Final Deed of Sale and
on
the
basis
of
that Final Deed of Sale, the Registry of Deeds will cancel the title of the Mortgagor and issue a
new
title
in
the
name of the highest bidder. So you will notice under special laws, The Mortgage Law and even
under
Rule
39,
in order to consolidate title we do not require an action to Consolidate Title. The only public
officer
who
is
going
to deal with the interested party is the Register of Deeds, who has a ministerial duty to issue a
title,
final
deed
of sale. Why do we require an action to consolidate title under 1607 under the Civil Code? If you
read
the
Civil
Code, 1607 also refers redemption rights, there is sale with a right redeem. It is a voluntary sale;
it
is
not
forced
sale not like the sale in Rule 39. But it is a voluntary sale if you compare it in a sale in a
foreclosure
of
mortgage.
to
sell
the
property. But suddenly 1607, the Rules of Court require an action, a special civil action for the
Consolidation
of
Title although the factual antecedents are the same. There is a right of redemption for a
certain
period,
but
the
right holder fails or does not exercise his right of redemption. Why do we require the
adverse
party
to
go
to
court in order to obtain from the court a decision directing the Register of Deed to Consolidate
the
Title
of
the
buyer with right to redeem? The fact that is present in 1607 is that right of redemption is
what
is
called
is
It
is
that classification of redemption into conventional which makes the distinction under the
Civil
Code.
In
the
Civil Code, when there is a sale with right of redemption, that redemption is called Conventional
Redemption.
It is not Legal Redemption. When the period expires, the period for Conventional Redemption is
also one year, the buyer of the property cannot go directly to the Registry of Deeds although
he
can
convince
the
Registry
of
Property that the period has already expired, there is no need to go to Court for the
Registry
of
Deeds
to
compute if the period has already expired, anybody can do that. So the buyer in
Conventional
Redemption
should be allowed to deal with the Registry of Deeds without requiring him to file
in
Court.
an action
The
the
Civil
Code when a sale with a right to repurchase, is not a sale but an equitable mortgage. The Civil
Code
assumes,
disputable presumption, that the contract entered into is not a sale but an equitable mortgage.
So
in
so
far
as
the
Civil Code is concerned, the seller is not a genuine seller but is only a mortgagee. And the
buyer
is
not
true
buyer, but is really a mortgagee, notwithstanding the designation as buyers and sellers in a
Contract
of
Sale.
Also, the Register of Deeds has to observe this disputable presumption that a dead of
sale
with
right
of
that
his
is
the
special
feature with regard to consolidation of title under Artcile 1607 of the Civil Code, to give the buyer
the
chance
to
present evidence to defeat that disputable presumption under the Civil Code. If the plaintiff, who
is
the
buyer
In
that Sale, fails to defeat that disputable presumption, he can still obtain consolidation f title but
he
will
be
forced
to file another special civil action, this time Foreclosure of Mortgage. Hence, if he is not able to
obtain
decision
under Rule 63 in a Special Civil Action to consolidate an Action under 1607, because he is a
mortgagee
in
an
equitable mortgage, he has the right to foreclose the mortgage. And the only mean to
foreclose
the
mortgage
is
to avail another Civil Action which is a foreclosure of a Real Estate Mortgage. But the procedure is
quite
lengthy.
NOTE: Although the Court can outright refuse to entertain a petition for Declaratory relief, it
cannot outright refuse to entertain Reformation of Instrument; .Quieting of Title and;
Consolidation of Title.