1st Part Civil Procedure 213456788

1997 Rules on Civil Procedure INTRODUCTION
2001 Edition
INTRODUCTION
The first thing that we will take up in Civil Procedure are basic concepts. We are going to discuss the
legal concept of courts. As you will know, whenever we talk of procedural law, we have no choice but to
involve courts in our discussion.
Let’s try to have a mental picture of courts. If I (Dean Iñigo) say ‘courts’, please tell me the scene that
comes into your mind. What do you see? There is a table, a gavel, there is someone sitting there. Then
below, there are lawyers sitting down. That is how everybody pictures a court. But actually, what was
pictured out was a courtroom and not a court.
Similar example: How can you picture a corporation? A corporation, as you know in Persons, is a
juridical entity. It is a creature of the law. It is a person under the law but it has no physical existence. But
what you see in a corporation is a building and people who are running the office business. Well, that is
the office of the corporation.
A corporation cannot run without people running it. But a corporation can own properties, kaya you
see the building, the office, the equipments there. The president or the vice-president are the officers of
the corporation. But the officers are not the corporation, they run the affairs of the corporation. Ganoon
din ang court. A court has no physical existence, only a legal one.
Q: What is a court?
A: A court is an entity or body vested with a portion of the judicial power. (Lontok vs. Battung, 63
Phil. 1054)
Q: Why ‘portion’ only?

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

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

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Q: Classify courts in general.

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

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

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

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

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

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

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

A: The MTC however, is a 100% original court. It is the lowest court in the hierarchy. There are no
cases appealed to it. There is no such animal as barangay court. The barangay captains do not decide
cases, they only conciliate.

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CIVIL COURTS vs. CRIMINAL COURTS
Q: Distinguish civil courts from criminal courts.

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

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

May 28, 1987, J. Cruz
HELD: “The question is sometimes asked, in serious inquiry or in curious conjecture, whether we
are a court of law or a court of justice. Do we apply the law even if it is unjust or do we administer
justice even against the law? Thus queried, we do not equivocate. The answer is that we do neither
because we are a court both of law and of justice. We apply the law with justice for that is our mission
and purpose in the scheme of our Republic.”

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So the SC described it self both as a court of law and court of equity. I have already talked with so
many justices of the SC before. And I asked them on how do they deliberate on cases when somebody
files an appeal or petition. They told me, if you want to convince the SC to hear your case… because the
tendency of some lawyers is that they will file their petition and they will cite the law. Meaning, backed-
up by statutory provisions ba. A justice of the SC told me that that is a wrong approach. Do not tell us
what is the law. We know more law than you do! When you file a petition, fairness must be on your side!
Because when we deliberate and we agree that your side seems to be the correct one, to decide on your
favor is more than just to decide on the other side. Then, we will even look for the law to support our
decision. So, you don't have to tell us what is the law, we will look for it. And if there is no law, we will
make it for you, by interpreting… because we are a court more of equity than of law. But when we look
on the equity, we will look for the law and chances are, there is the law to follow.
CONSTITUTIONAL COURTS vs. STATUTORY COURTS
Q: Distinguish Constitutional Courts from Statutory Courts.

A: CONSTITUTIONAL COURTS are created directly by the Constitution itself, while STATUTORY
COURTS are created by law or by the legislature.
In our country, there is only one Constitutional court – the Supreme Court. Even the Sandiganbayan
is not considered a Constitutional court because it was not created by the Constitution directly. The 1973
Constitution ordered Congress to create Sandiganbayan. It was law that created Sandiganbayan (PD
1486). There is a provision in the 1973 Constitution which says, “There should be created a
Sandiganbayan.”
The CA, RTC, and the MTC are created by the Congress. Thus, Congress has the power to abolish the
said courts but it can never abolish the Supreme Court.
So there is only one Constitutional court. All the rest, from the CA down and all other special courts,
are only creatures of Congress. In political law, the power to create carries with it the power to abolish.
That is why, BP 129 abolished all existing courts at that time (CFI, CA, Juvenille, etc.) and RTC, IAC, MTC
were created. That was the judicial reorganization of 1980 under BP 129. But there is only court which the
Batasan Pambansa could not touch – the Supreme Court.
They have no power to abolish the SC because it is created by the Constitution. Pareho lang tayong
tabla eh. Congress is also created by the Constitution. So if you want to abolish the SC, you must call for a
constitutional convention to change the Constitution.
INHERENT POWERS OF THE COURT
Before we leave the concepts of courts, you must know that the courts of justice have what we call
inherent powers. Just like the State have certain inherent powers, whether written or not, these things are
understood to have them – Police power, power of taxation, and power of taxation.
Courts have also inherent powers. Their very existence automatically necessitates the existence of
these powers. Now, that was already asked in the Bar before – what are the inherent powers of the court?
Q: What are the inherent powers of the court?

A: Section 5 Rule 135 of the Rules of Court of the provides:
Section 5. Inherent powers of courts. Every court shall have the power:
(a) to preserve and enforce order in its immediate presence;
(b) to enforce order in proceedings before it, or before a person or persons empowered to conduct a
judicial investigation under its authority;
(c) to compel obedience
to its judgments orders, and processes, and to the lawful orders of a judge out of court, in a case
therein;
(d) to control, in furtherance of justice, the conduct of its ministerial officers, and of all other persons
in any manner connected with a case before it, in every manner appertaining thereto;
(e) to compel the attendance of persons to testify in a case pending therein;
(f) to administer or cause to be administered oaths in a case pending therein, and in all. other cases
where it may be necessary in the existence of its powers;
(g) to amend and control its process and orders so as to make them conformable to law and justice;
(h) to authorize a copy of a lost or destroyed pleading or other paper to be filed and used instead of
the original, and to restore, and supply deficiencies in its records and proceedings.

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There are many powers enumerated. Some of them are common sense. Every court has the power to
see to it that everything of his order is enforced; to compel obedience to his order. Common sense yan.
You are inutile if you cannot even enforce your own judgment! So I've been telling some judges here, eh.
Sometimes we talk about this: they say, it seems that I don't have the power under the Rules of Court. It's
beyond my power. I made a decision but I cannot see how was it enforced.
Parang pampalakas-loob ang Rule 135, Section 5 because you can see there the powers that you do
not know you have. These are inherent eh – hindi puwedeng alisin sa iyo iyan. Otherwise, maging inutil
ka – I have the power to decide but I do not know how to enforce my decision. That is a sign of impotence
(Charles, pinaringgan ka ni Dean!). As a matter of fact, the next section (Section 6, Rule 135) tells us how
to carry out your judgment. If you do not know how to carry out your judgment because the law is silent,
Section 6 says, look for a way. Hanapan mo ng paraan!
SITUATION: Suppose I have the power to decide and I render a decision. I want to enforce the
decision, how do I enforce? Well, usually the law provides for the procedure.
Q: But suppose the law does not provide for any manner to enforce? For example a judge has
rendered a decision, and the law is silent on how to enforce it, do you mean to say that the order is
unenforceable because the law is silent?
A: NO. Section 6 of Rule 135 answers the question.
SEC 6. Means to carry jurisdiction into effect – When by law jurisdiction is conferred on a court or a
judicial officer, all auxiliary writs, processes and all other means to carry it into effect maybe employed by
such court or officer; and if the procedure to be followed in the exercise of such jurisdiction is not
specifically pointed out by law or these rules, any suitable process or mode of proceeding may be
adopted which appears conformable to the spirit of said law or rules.
What Section 6 is trying to say is that when you have the power to decide, you have the power to
enforce. And if the law is silent, you have to think how to do it. Be creative. Provided you conform with
the spirit of the rule. So you do not make the order useless simply because there is no rule. In other
words, try to look for a way on how to enforce you judgment. That is part of your power.
ENFORCEABILITY OF COURT WRITS AND PROCESSES
Another provision that I want to emphasize before we leave this subject of court is Section 3 of the
Interim Rules.
Question: The court of Davao will issue a writ or a process. Can that writ or process be enforced in
Cebu or Manila? Or only in Davao? Or only in Region IX? Hanggang saan ba ang enforceability ng aking
writ or processes? You have to distinguish what kind of writ or process you are talking about.
Under Section 3, Interim Rules:
Sec. 3. Writs and Processes. -

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

A: Under Section 3 of the Interim Rules, you have to distinguish what kind of writ or process you are
talking about:
a) If it is a writ of certiorari, prohibition, mandamus, quo warranto, habeas corpus, injunction, it can
be enforced anywhere within the region. So at least, RTC can enforce it within the region and it
cannot enforce those writs outside the region.
EXAMPLE: If you are illegally detained, you can ask the court to issue a writ of habeas corpus. Now,
a person is detained in Bansalan and the family is here in Davao City. They filed a petition for habeas
corpus in Makilala, North Cotabato. Makilala is in Region 12 and the RTC of Bansalan is part of the 11th
judicial region. Thus, the judge in Makilala cannot issue the writ of habeas corpus due to the fact that
Bansalan belongs to the 11th judicial region while Makilala is in the 12th judicial region. The RTC of
Tandag, Surigao is Region 12 and therefore can issue a writ of habeas corpus to be enforced in Makilala
which is hundreds of miles away because they are of the same judicial region. And yet the RTC of
Bansalan cannot issue a writ to be enforced in Makilala, North Cotabato, which is the next town, because
that is not part of their region. The law is very clear: writs of certiorari, prohibition, mandamus, quo
warranto, habeas corpus and injunction issued by a trial court may be enforced in any part of the region.

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b) Section 3 further says, all other writs are enforceable anywhere in the Philippines. Suppose the
MTC issues a warrant for the arrest of the accused in the criminal case, and he fled to Baguio
City, such warrant can be enforced there. This includes summons, writs of execution or search
warrants.
JURISDICTION IN GENERAL
The word JURISDICTION is derived from 2 Latin words: 1.) JURIS – law; 2.) DICO – to speak, or to
say. So, in effect, when you say jurisdiction, literally translated, it means, “I speak by the law.” It means that
you are saying “I speak with authority” because when you invoke the law, then your act is authorized.
Even in old times when the representatives of the king or the sovereign will try to arrest somebody or
will try to enter your house, they open up in the name of the law. They will always invoke “in the name
of the law.”
So when you say, “I speak by the law” I will do it in the name of the law. It connotes authority or
power. You cannot be wrong. How can you be wrong if you are doing it in the name of the law? So more
or less jurisdiction simply means authority or power. So more or less that is the whole concept of
jurisdiction. It simply means authority or power. That is precisely what jurisdiction is all about.
JURISDICTION simply means the power of the court to hear try and decide a case. In its complete
aspect, jurisdiction includes not only the powers to hear and decide a case, but also the power to enforce
the judgment. (14 Am. Jur. 363-364)
Q: What is the effect if the court has no jurisdiction?

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

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

A: Definitely, a court acting as such may commit errors or mistakes. That is why the action of the
court can be questioned later in a higher court. A court can commit an error which is either an error of
jurisdiction or an error of judgment.
EXAMPLE: A case of murder was filed in the MTC. The accused, Ken Sur, files a motion to quash
because MTC has no jurisdiction over cases of murder. Eh, ‘yong judge iba man ‘yong libro niya, “No, I
have jurisdiction.” So the court denied the motion to quash. Meaning, the judge has decided to assume
jurisdiction. So, meaning from the very start mali na. Now what do you call that? When the court without
authority assumes authority over the case that is called ERROR OF JURISDICTION – the court committed
an error of jurisdiction.

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EXAMPLE: Suppose the case for murder is filed in the RTC where the court has jurisdiction. So
walang mali, everything is correct. But in the course of the trial, you cannot avoid mistakes being
committed like for example, the court misinterpreting the provision of the RPC saying that this is a
requirement, this is not a requirement for the crime. Meaning misapplication or misinterpretation of the
RPC as well as misinterpretation of the rules of evidence – wrong interpretation of the law. And the
accused was convicted but actually tingin mo mali man ito, di ba! Under the law, this elements was not
considered or this element was considered as present. Do you say the decision of the judge is null and
void? NO, the judgment is valid kaya lang mali. So, you do not say the court committed an error in the
exercise of jurisdiction, and that is called an ERROR OF JUDGMENT. And that was also asked in the bar.
ERROR OF JURISDICTION vs. ERROR OF JUDGMENT
BAR QUESTION: Distinguish ERRORS OF JURISDICTION from ERRORS OF JUDGMENT.

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

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

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

A: Jurisdiction is vested with the court, not in the judge. A court may have several branches, and each
is not a court distinct and separate from the others. So, when a case is filed before a branch, the trial may
be had or proceedings may continue before another branch or judge. (Tagumpay vs. Moscoso, L-14723,
May 29, 1959)
EXAMPLE: The RTC of Davao is composed of several branches – eleven to twelve judges. But
technically, there is only one court – the RTC of Davao. We do not consider branches as separate courts.
Q: Now, if the case is filed and is assigned to Branch 8, can that case later be transferred and
continued in Branch 9?
A: Ah YES, because you never leave the same court. You are still in the same court. This is because
jurisdiction is not with the judge. It is with the court itself.

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TYPES OF JURISDICTION:
Types of jurisdiction:
1.) General Jurisdiction and Special or Limited Jurisdiction;
2.) Original Jurisdiction and Appellate Jurisdiction; and
3.) Exclusive Jurisdiction and Concurrent or Coordinate Jurisdiction;
1. GENERAL JURISDICTION and SPECIAL OR LIMITED JURISDICTION
a.) GENERAL JURISDICTION is the authority of the court to hear and determine all actions and
suits, whether civil, criminal, administrative, real, personal or mixed. It is very broad – to
hear and try practically all types of cases. (14 Am. Jur. 249; Hahn vs. Kelly, 34 Cal. 391)
b.) SPECIAL or LIMITED JURISDICTION is the authority of the court to hear and determine
particular cases only. Its power is limited. (14 Am. Jur. 249; Hahn vs. Kelly, 34 Cal. 391)
So, the court is authorized to hear and try certain specified cases. Limitado pa ang
power niya. And when you go over the Judiciary Act, studying the jurisdiction of the
different courts, in civil cases you will see that the jurisdiction of some courts like the
RTC, masyadong far ranging. It covers many things whereas the jurisdiction of the
MTC, makipot. Very narrow bah because it is a court of limited or special jurisdiction.
2. ORIGINAL JURISDICTION and APPELLATE JURISDICTION
a.) ORIGINAL JURISDICTION is the power of the court to take cognizance of a case at its
inception or commencement. (Ballentine’s Law Dict., 2nd Ed., pp. 91 and 917) One can file the
case there for the first time.
b.) APPELLATE JURISDICTION is the power vested in a superior court to review and revise the
judicial action of a lower court. (Ballentine’s Law Dict., 2nd Ed., pp. 91 and 917) If one court
has the power to correct the decision of a lower court, the power of this court is appellate.
This is because it commenced somewhere else and it is just reviewing the decision of the said
lower court.
EXAMPLE: Maya Quitain will file a civil case in the RTC and that court will take
cognizance and try it. You are invoking the original jurisdiction of the RTC. After trial,
Maya lost the case, so Maya decided to appeal the decision of the RTC to the CA. The
case is now there. It is now in the CA and you are now invoking its appellate
jurisdiction.
3. EXCLUSIVE JURISDICTION and CONCURRENT OR COORDINATE JURISDICTION
a.) EXCLUSIVE JURISDICTION is that possessed by a court to the exclusion of all others.
Q: Sugar JJ filed a collection case against John Vera, for an unpaid loan of P5,000.
The judiciary law says, if you file a civil case to collect an unpaid loan below P200,000,
you should file it with the MTC. Can Sugar JJ file it in the RTC?
A: NO. Therefore the jurisdiction of the MTC is EXCLUSIVE. It does not share its
power with other courts.
b.) CONCURRENT or COORDINATE JURISDICTION is that possessed by the court together

with another or other courts over the same subject matter, the court obtaining jurisdiction
first retaining it to the exclusion of the others, but the choice of court is lodged in those
persons duly authorized to file the action. (Villanueva vs. Ortiz, 58 O.G. 1318, Feb. 12, 1962)
Example: Thaddeus Tangkad wants to file a case or petition in court. Then, he looks
at the law and the law says that you can file it in this court or, kung ayaw mo diyan,
puwede din dito, diyan or doon – Thaddeus Tangkad can file it in this court or in other
courts. Therefore, he has the right to choose where to file. So if Thaddeus files it in
court #2, and it assumes now jurisdiction, out na ang court #1 and court #3. If he files it
in court #3, out na yong #1 and #2. Now this is what you call CONCURRENT
jurisdiction because you can file the case in two courts or more at your choice.

2001 Edition
Now, last time we were classifying courts and you learned that the SC is meron
palang original jurisdiction. Ito palang CA also has original jurisdiction. Ang RTC
obviously is more of an original court than an appellate court.
Q: Are there certain types of cases or petitions where I can file it directly with the
SC or file with the CA or file it with the RTC?
A: YES and the best example is a petition for HABEAS CORPUS. The SC, CA and
RTC share concurrent jurisdiction to entertain petitions for habeas corpus. Makapili ka.
I-file mo SC, puwede. Kung gusto mo sa CA, puwede din. Kung i–file mo sa RTC,
puwede. In effect, these are the instances when the SC, CA and RTC exercise
concurrent jurisdiction.
ELEMENTS OF JURISDICTION IN CIVIL CASES
In your study of criminal procedure where you also studied the law on jurisdiction, there are also
some elements of jurisdiction in criminal cases. Otherwise, the proceeding will be illegal. Jurisdiction over
the subject matter; Jurisdiction over the person of the accused; and the third is territorial jurisdiction, i.e.
the case should be filed in the place where the crime was committed. In civil cases meron din iyong
counterpart.
Q: What are the elements of jurisdiction in civil cases?

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

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

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

A: Jurisdiction over the subject matter is conferred by law and is never acquired by consent or
submission of the parties or by their laches. This is a matter of legislative enactment which none but the
legislature can change. (MRR Co. vs Atty. Gen. 20 Phil. 523; Otibar vs. Vinson, L-18023, May 30, 1962) It
cannot be acquired by an agreement between the parties, waiver, failure to object (silence).
Q: Now, suppose I want to file a case against you and under the law that should be filed in the RTC.
But both of us believe that the judges of the MTC like Judge Cañete knows more, he is more competent
than the other judge there. “Maganda siguro dito na lang tayo sa MTC.” “O sige, we sign an agreement,
magpirmahan tayo that we will file the case by agreement in the MTC.” By agreement, doon sa MTC
natin i-file. Did the MTC acquire jurisdiction over the case because the parties agreed?

2001 Edition
A: NO, agreements between parties cannot change the law. Jurisdiction is conferred by law, not by
agreements of the parties. Jurisdiction over the subject matter cannot be agreed upon. It is acquired by or
conferred to the court by law – either the Constitution or the Judiciary Law. The parties cannot agree to
have the case submitted to another court.
Q: Now, suppose I will file a case against you in a wrong court. Ikaw naman hindi ka kumibo.
Actually what you should do there is file a motion to dismiss (or in criminal cases a motion to quash.) But
hindi ka nagkibo “Sige lang. I will not complain.” So is it okey? Since you did not object, you did not file a
motion to dismiss, you did not file a motion to quash, did the ‘wrong’ court acquired jurisdiction over the
case?
A: NO. Jurisdiction cannot be conferred by silence of the parties or by waiver. Estoppel or waiver or
silence or failure to object cannot vest jurisdiction in the wrong court because jurisdiction over the subject
matter is conferred by law. And when the court has no jurisdiction, the court by itself has the power to
dismiss, “Why will I burden myself for trying a case, when I have no jurisdiction?”
The ONLY exception is when there is estoppel by laches, as laid down in tile TIJAM vs.
SIBONGHANOY (April 15, 1968). The issue of jurisdiction was not questioned for an unreasonable length
of time. BUT the rule is, it can be raised at any stage of the proceeding even for the first time on appeal.
And even the parties may not raise it, the court motu propio has the authority to dismiss it.
Q: How is jurisdiction over the subject matter determined?

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

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

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

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

2001 Edition
First Instance: UPON SERVICE ON HIM OF COERCIVE PROCESS

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

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

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

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

2001 Edition
A: Sometimes it is a substitute for jurisdiction over the person. There are instances when the court
cannot acquire jurisdiction over the defendant like when he is abroad. But if the court acquires
jurisdiction over the res, the case may go on. Even if the court cannot acquire jurisdiction over the person
of the defendant, jurisdiction over the res becomes a substitute over the person.
EXAMPLE: Even if the defendant is a non-resident who is out of the country and the object of
litigation is here in the Philippines, then acquisition of jurisdiction over the res confers jurisdiction to the
court even if the defendant is abroad. The res here is where the judgement can be enforced.
That is why in Rule 14, there is an extra-territorial service of summons. But based on a SC ruling, the
extra-territorial service of summons is not for the purpose of acquiring jurisdiction over the person of the
defendant but is merely how to comply with the due process clause.
D. JURISDICTION OVER THE ISSUES
Q: Define jurisdiction over the issues.

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

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

A: The issue is, whether the obligation still existing or is it already extinguished by payment. So that
is the issue. So that is where we will know what we will try in this case.
Q: Suppose after the trial, the court said that the obligation has been extinguished by condonation.
Now where did the court get that? Your defense is payment, and the decision now it was extinguished
by condonation. Is the decision correct?
A: The decision is WRONG because the parties did not raise condonation as the issue. The case was
decided on an issue that was not even raised by the parties. So the court never acquired jurisdiction over
the issue. In other words, the court should only rule on what the parties raised in their pleadings. That is
what we call jurisdiction over the issue. The court should only rule on what the parties claim.
So, the court is supposed to rule on the issue raised and not those not raised by the parties.
Take note that jurisdiction over the issues in civil cases is acquired after defendant has filed an
answer. In criminal cases, jurisdiction over the issues is acquired upon filing of a complaint. For a
decision to be effective, the court must acquire the jurisdiction over the subject matter, the person, the res
in case the defendant is not around, and the last is jurisdiction over the issue.
Q: Distinguish jurisdiction over the subject matter and jurisdiction over the issues.
1.) Jurisdiction over the subject matter is the power to hear and try a particular case, while
Jurisdiction over the issues is the power of the court to resolve legal questions involved in the
case;
2.) Jurisdiction over the subject matter is acquired upon filing of the complaint, while
Jurisdiction over the issues of the case is acquired upon filing of the answer which joins the
issues involve in the case.

2001 Edition
EXAMPLE: I am the plaintiff, I will file a case in court to collect an unpaid loan. From
the moment I file the case, the court has acquired jurisdiction over the subject matter. Now,
you are summoned. File ka naman ng sagot mo, “Wala akong utang, bayad na.” Then the
court has now acquired jurisdiction over the issue. One is acquired upon filing of the
complaint and the other one is acquired after the filing of the answer by the defendant.
HIERARCHY OF THE COURTS
In the 1996 BAR: One of the questions in Remedial Law was: State the hierarchy of the Courts in the
Philippines.
a.) Regular courts
SUPREME COURT
COURT OF APPEALS
REGIONAL TRIAL COURTS
MetTC MTCC MTC MCTC
Note:
MetTC- In Manila
MTCC- cities outside Manila e.g. Cebu, Davao
MTC- municipalities such as Digos, Panabo
MCTC- circuitized areas because it is impractical and expensive to maintain one MTC in every
municipalities.
b.) Special courts
There are also Special Courts which are also considered part of the judiciary. These are:
1. Court of Tax Appeals (RA 1125)
2. Sandiganbayan (PD 1486 as amended)
3. Sharia District Courts and the Sharia Circuit Courts (PD 1083 , also known as the Code
of Muslim Personal Law);
4. Family Courts
We are concerned only of the jurisdiction of the REGULAR COURTS.

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Joseph Martin Castillo • Aaron Philip Cruz • Pearly Joan Jayagan • Anderson Lo •
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Ruby Teleron • Marilou Timbol • Maceste Uy • Perla Vicencio • Liberty Wong • Jude Zamora •
Special Thanks to: Marissa Corrales and July Romena
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Judee Uy • Janice Joanne Torres • Genie Salvania • Pches Fernandez • Riezl Locsin •

2001 Edition
Kenneth Lim • Charles Concon • Roy Acelar • Francis Ampig • Karen Cacabelos • Maying
Dadula • Hannah Examen • Thea Guadalope • Myra Montecalvo • Paul Ongkingco • Michael Pito •
Rod Quiachon • Maya Quitain • Rina Sacdalan • Lyle Santos •Joshua Tan • Thaddeus Tuburan •
John Vera Cruz • Mortmort
JURISDICTION OF THE SUPREME COURT
The highest court of the land is the Supreme Court. It was not affected by the Judiciary Law (BP 129)
which reorganized the judiciary in 1983. Being a constitutional court, its jurisdiction is found in the
fundamental law itself. The SC is both an original and appellate court.
a.) ORIGINAL JURISDICTION OF THE SUPREME COURT
Article VIII, Section 5 , paragraph 1 of the 1987 Constitution enumerates the ORIGINAL jurisdiction
of the SC:
Section 5. The Supreme Court shall have the following powers:

[1] Exercise original jurisdiction over cases affecting ambassadors, other public ministers and
consuls, over petitions for certiorari, prohibition, mandamus, quo warranto , and habeas corpus.
Now, it is still premature for us to discuss now what do you mean by certiorari, prohibition,
mandamus, quo warranto because that is discussed exhaustively in the study of Special Civil Actions.
But you are more acquainted with habeas corpus. It is a special proceeding. If you are illegally detained,
you can file a petition for habeas corpus directly before the SC because it has original jurisdiction.
So that is the first provision in the Constitution dealing with the jurisdiction of the SC. However, the
SC is not only an original court, it is also an appellate court.
b.) APPELLATE JURISDICTION OF THE SUPREME COURT
The appellate jurisdiction is found in Section 5, Paragraph (2), Article VIII 1987 Constitution:
2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of
Court may provide, final judgments and orders of lower courts in:
a) All cases in which the constitutionality or validity of any treaty, international or
executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or
regulation is in question.
b) All cases involving the legality of any tax, impost, assessment, or toll, or any penalty
imposed in relation thereto.
c) All cases in which the jurisdiction of any lower court is in issue.
d) All criminal cases in which the penalty imposed is reclusion perpetua or higher.
e) All cases in which an error or question of law is involved.
a) All cases in which the constitutionality or validity of any treaty, international or

executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or
regulation is in question.
So if the RTC in a certain civil case declares the law as unconstitutional since it has the power to do
so, the same has to be appealed directly to the SC. It cannot pass through the CA because the SC has
exclusive appellate jurisdiction regarding the matter.
b) All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in relation
thereto.
This is related to the legality of tax cases – whether a tax or tax penalty is legal or not. However,
whatever decision the lower court gives, it has to be appealed directly to the SC.
(c) All cases in which the jurisdiction of any lower court is in issue

2001 Edition
EXAMPLE: The RTC or the MTC says it has jurisdiction or it has no jurisdiction over a case. The
aggrieved party, it if wants to raise that joint, it must go to the SC. When the issue is purely jurisdiction,
the SC shall have exclusive appellate jurisdiction.
Now, when the law says all cases in which the jurisdiction of any lower court is in issue, the cases
involve 100% pure jurisdiction as an issue. There are no factual issues involved. If the issue of jurisdiction
is mixed with a factual issue, the appeal should be in the CA without prejudice to the filing of the same
with the SC later. So, this is 100% issue of jurisdiction. No factual issue is involved.
(d) All criminal cases in which the penalty imposed is reclusion perpetua or higher.
We will not dwell on this. This is more on Criminal Procedure. We are only interested in civil cases.
(e) All cases in which only an error or question of law is involved.
Take note that ONLY an error or question of law is involved. So, if there is a mixed question of law
and a question of fact, appeal must be filed with the CA. You only go to the SC if the appeal is 100% legal.
That applies to both criminal and civil cases.
QUESTIONS OF LAW and QUESTIONS OF FACT
The best example of questions of law where the issues are purely legal are classroom problems. The
question is: Who is right? A or B? Reasons. You apply the law. But as to what happened, the facts are
already given. Based on these facts who is correct? Yun ang tinatawag na question of law.
Pero if the facts are still vague, that is not a question of law, that is a question of fact. Example: Lyle
filed a case against Aivy to collect an unpaid loan. According to Lyle, Aivy borrowed money from him
and it’s already overdue and she has not paid. Aivy admits she borrowed money from Lyle but says she
has already paid. Now, the question in the exam: Who is telling the truth?
My golly! How can you answer the question who is telling the truth? In other words, I have to hear
them. Yun ang tinatawag na question of fact – what happened, pinag-aawayan pa. When you go to SC
in civil cases, you are not there to ask the SC to determine who is telling the truth. You are asking who is
right under the law.
OTHER CONSTITUTIONAL PROVISIONS DEALING WITH THE

JURISDICTION OF THE SUPREME COURT
Article IX, Section 7, paragraph (a), 1987 Constitution:
“Each Commission shall decide by a majority vote x x x. Unless otherwise provided by this
Constitution or by law, any decision, order, or ruling of each Commission may be brought to the
Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof.”
The COMELEC, COA and the CSC act also as courts of justice. They have powers to decide certain
cases within their jurisdiction. Election cases, sa COMELEC man yan ba. Claims against the government
– COA. Or disallowance on disbursement by government officers or removal from government service –
CSC.
Now, according to Section 7, any decision, order or ruling of these commissions may be brought to
the SC on certiorari, etc. So you will see that the decisions of the constitutional commissions are
reviewable by the SC.
However, Congress amended the Judiciary Law particularly Section 9 on the jurisdiction of the CA
by now making decisions of the CSC no longer appealable to the SC directly but appealable to the CA. So
based on the present law, out of the three constitutional commissions, the only ones whose decisions are
appealable directly to the SC are those of the COMELEC and the COA
When that law was passed where the decisions of the CSC are appealable to the CA, first I was
stunned. I said there is something queer here because the CSC is a constitutional body and the CA is not.
So why will a decision of a constitutional body be reviewable by a non-constitutional body? And I said
parang it might violate the Constitution. Under the Constitution, decisions of the constitutional
commissions are appealable to the SC. Does Congress have the power to change that by making it
appealable to the CA?

2001 Edition
So I had to look at the provision again to find out whether this is possible. But pwede naman pala.
You look at the provision, “Unless otherwise provided by this Constitution or by law..” Meaning, the decisions
are appealable to the SC unless otherwise provided by law. The Constitution itself gave Congress the
power to change it. So there is no problem.
Article VII, Section 4, last paragraph, 1987 Constitution:
“The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the
election, returns, and qualifications of the President or Vice-President, and may promulgate its rules
for the purpose.”
If there’s an electoral protest for the President and Vice-President, the matter is not to be decided by
the COMELEC but by the SC. This is what is called as the SC acting as the Presidential Electoral Tribunal.
The only case so far was that filed by Defensor-Santiago but which was dismissed, the SC ruled that
when she ran for the Senate, she has already technically abandoned her interest for the Presidency.
Article VII, Section 18 (3), 1987 Constitution – Commander-in-Chief Clause
“The Supreme Court may review, in an appropriate proceeding filed by any citizen, the
sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege
of the writ or extension thereof, and must promulgate its decision thereon within thirty days from its
filing.”
So, the SC, in an appropriate proceeding filed by any citizen review the sufficiency of the factual basis
of the proclamation of martial law. Meaning, the SC can inquire into the basis on why martial law is
declared.
Which therefore abandons the Political Question doctrine laid down in many earlier cases that it is
the prerogative of the President to determination, at his discretion, the sufficiency of the factual basis of
the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof.
So this particular provision of the Constitution came about in 1987 to check the supposed excesses
during the time of Marcos, though it came too late. It may well take another 100 years to produce another
Marcos.
Article VIII, Section 2, 1987 Constitution:
The Congress shall have the power to define, prescribe, and apportion the jurisdiction of the
various courts but may not deprive the Supreme Court of its jurisdiction over cases enumerated in
Section 5 hereof.
Congress may change or even remove the jurisdiction of the RTC or CA. The law can change them
because jurisdiction over the subject matter is conferred by law. However, Congress does not have the
power to lessen or deprive the Supreme Court of its jurisdiction under Section 5, Article VIII.
However Article VI, Section 30 states:
“No law shall be passed increasing the appellate jurisdiction of the Supreme Court as provided in
this Constitution without its advice and concurrence.”
Thus , Congress cannot lessen but it can increase the SC’s powers and jurisdiction, PROVIDED it is
with the latter's advice and concurrence.
The provision under the Ombudsman Law (RA) with regards to the Ombudsman’s disciplining
power appealable directly to the SC, was declared unconstitutional by the SC because it increased the
SC’s jurisdiction and was passed without the advise and concurrence of the SC.
So more or less, these are the scattered provisions of the Constitution dealing with the SC’s
jurisdiction.
[Note: PLEASE REFER TO THE HANDOUT HEREIN ATTACHED FOR A COMPLETE OUTLINE
OF THE SUPREME COURT'S JURISDICTION.]
The ORIGINAL EXCLUSIVE jurisdiction of the SC refers to petitions for the issuance of writs of
certiorari, prohibition and mandamus as defined in Rule 65 against the following: the CA, the COMELEC,
COA, Sandiganbayan, Central Board of Assessment Appeals, NLRC or the Secretary of Labor under the
Labor Code.

2001 Edition
The cases where its original jurisdiction is CONCURRENT with the CA are likewise petitions for the
issuance of writs of certiorari, prohibition, mandamus against the following: the SEC, the CSC, the
different boards, tribunals or agencies which replaced the old Public Service Commission (e.g. LTFRB).
Also, issuance of writ of certiorari against the RTC and other quasi-judicial agencies, courts,
instrumentalities and commissions.
CONCURRENT with the RTC are those actions affecting ambassadors and other public ministers and
consuls. This is based on the Judiciary Law and the Constitution.
CONCURRENT with the CA and RTC are those involving habeas corpus, quo warranto, and writs of
certiorari, prohibition, and mandamus against inferior courts and bodies. For example, a petition for
mandamus against the MTC of Davao City can be filed with the SC, CA, or RTC although the policy of
the Supreme Court is that it should be filed with the RTC based on the hierarchy of the courts. (Vergara
vs. Suelto, 156 SCRA 758)
Finally, with the advent of the new law (RA 8249), there is now a CONCURRENCE between the SC
and the Sandiganbayan in so far as petitions for certiorari, prohibition, mandamus, habeas corpus,
injunction and other ancillary writs in aid of the Sandiganbayan's APPELLATE JURISDICTION.
b.) APPELLATE JURISDICTION OF THE SUPREME COURT:
1.) Automatic review of death penalty. So when the RTC imposes the death penalty, whether the
accused appeals or not, the case will be elevated to the SC;
2.) Ordinary appeal from the RTC direct to the SC. This only applies to criminal cases where the
penalty of reclusion perpetua or life imprisonment is imposed or other offenses which arise out of
the same occurrence or committed by the accused on the same occasion;
3.) Appeal by Certiorari under Rule 45. When it comes to appeal by Certiorari, there are three types:
3.1.) From the CA or all appeals from the CA are certiorari which is different from the certiorari
in Rule 65.
3.2.) From the RTC direct to the SC. Now, this is not ordinary appeal because this only applies to
criminal cases. In civil cases, if you want to go directly to the SC, you can do so by appeal by
certiorari, provided that the following conditions are met:
a.) If no question of fact is involved and the case involves the constitutionality or legality
validity of any tax, impost, etc., or jurisdiction of the lower courts is in issue ( Article VIII,
section 5 par.(2)
b.) only an error or question of law involved (supra);
c.) a judgment rendered upon an award under the Arbitration Law (RA 876)
d.) appeal on pure questions of law in cases of appeal to the RTC from inferior courts. So,
from the MTC to the RTC – ordinary appeal. From the RTC, on pure questions of law, to
the SC – appeal by certiorari.
3.3.) Appeal from other courts or administrative agencies liked appeal from the Sandiganbayan to
the SC, from the Central Board of Assessment Appeal or from the Ombudsman.

published by

2001 Edition

Kenneth Lim • Charles Concon • Roy Acelar • Francis Ampig • Karen Cacabelos •
Maying Dadula • Hannah Examen • Thea Guadalope • Myra Montecalvo • Paul Ongkingco •
Michael Pito • Rod Quiachon • Maya Quitain • Rina Sacdalan • Lyle Santos •Joshua Tan • Thaddeus
Tuburan • John Vera Cruz • Mortmort
JURISDICTION OF THE COURT OF APPEALS

BRIEF HISTORY OF THE COURT OF APPEALS
The jurisdiction of the CA is now governed by BP 129 or the Judiciary Reorganization Act of 1980. BP
129 was passed in 1983 by the former Batasang Pambansa which practically abolished all the regular
courts at that time, and also with the special courts except the SC which cannot be abolished by Congress.
What was also spared was the Court of Tax Appeals which was likewise not affected.
In lieu of these, other courts were created. The constitutionality of BP 129 was challenged as violative
of the security of tenure of the judges. But its constitutionality was sustained in the case of DELA LLANA
vs. ALBA, 112 SCRA 294.
The CA is composed of over 50 justices but I think new divisions were created. They decide cases by
a division of three.
Before BP 129, the court was also called the “Court of Appeals,” the counterpart of the present CA,
though the CA now is different and more powerful than the old one. BP 129 abolished the old CA and
created another court which was called the INTERMEDIATE APPELLATE COURT (IAC).
So, from the 1983 to 1986, it was called the IAC. After the EDSA Revolution, President Aquino,
pursuant to her law-making powers, issued E.O. #33 amending the Judiciary Law and changed the name
of IAC to CA (referring to the jurisdiction of the IAC).
Many people thought that the CA of President Aquino under E.O. #33 is actually the IAC under
another name only, pinalitan lang ng pangalan. But in a case decided by the SC, reported in
IN RE: LETTER OF ASSOCIATE JUSTICE REYNATO S. PUNO
210 SCRA 589 [1992]
HELD: E.O. # 33 created an entirely new court. Therefore, the IAC existed only for three years – from
1983 to 1986. Hence, President Aquino not only re-baptized or re-christened the IAC but she actually
abolished the IAC and created a new CA.
“It is the holding of the Court that the present Court of Appeals is a new entity, different and distinct
from the Court of Appeals or the Intermediate Appellate Court existing prior to Executive Order No. 33,
for it was created in the wake of the massive reorganization launched by the revolutionary government of
Corazon C. Aquino in the aftermath of the people power (EDSA) revolution in 1986.”
So, in effect, Section 9 which defines the second highest court of the land has been amended twice.
First, by E.O. #33. And then on February 1995, it was amended again by RA 7902, known as “The Act
expanding the jurisdiction of the CA.”
The essential features of the CA’s jurisdiction are as follows:
ORIGINAL JURISDICTION OF THE COURT OF APPEALS
[1] Section 9, paragraph 1, BP 129
Section 9 – Jurisdiction – The Court of Appeals shall exercise:
(1) Original jurisdiction to issue writs of mandamus, prohibition, certiorari, habeas corpus, and quo
warranto, and auxiliary writs or processes whether or not in aid of its appellate jurisdiction.
Does the language sound familiar to you? “Original jurisdiction to issue writs of mandamus,
prohibition, certiorari, habeas corpus, quo warranto.” Did you hear that before?

2001 Edition
Under the original jurisdiction of the Supreme Court the language is the same, eh. Now, we take the
same provision for the second time. So, if I would like to file a petition for habeas corpus, where will I file
it?
Q: If I file it with the Supreme Court, is it allowed?
A: Yes, because the Constitution says so.
Q: But suppose I will instead file it with the CA, is it also allowed?
A: Yes, under Section 9, paragraph 1.
So what is the conclusion? The SC and the CA exercises concurrent jurisdiction to entertain petitions
to issue writs of mandamus, prohibition, certiorari, habeas corpus, and quo warranto.
Alright, so I will go to a specific SITUATION: I’m a clever lawyer, and I will file a petition for quo
warranto. In order to be sure I will get what I want, I will prepare two identical petitions. Since
concurrent man sila, I will file before the SC and the other one with the CA. Sigurista ba – kung
madisgrasya sa isa, meron pang isa.
Q: Can I do that? Meaning, I will file one petition before the SC, I will file another petition, pareho-
pareho – I will invoke the jurisdiction of the two courts at the same time. Now, suppose I will do that,
what do you think will happen to me?
A: The consequence is found in Section 17 of the Interim Rules. That’s why, as I said, the Interim
Rules are still intact.
Interim Rules, Sec. 17. Petitions for writs of certiorari, etc. - No petition for certiorari, mandamus,
prohibition, habeas corpus or quo warranto may be filed in the IAC if another similar petition has been
filed or is still pending in the SC. Nor may such petition be filed in the SC if a similar petition has been
filed or is still pending in the IAC, unless it is to review the action taken by the IAC on the petition filed
with it. A violation of this rule shall constitute contempt of court and shall be a cause for the summary
dismissal of both petitions, without prejudice to the taking of appropriate action against the counsel or
party concerned.
So, eto, you believe you are a clever lawyer, so you will file two identical petitions. Do you know
what will happen to you according to the provision? Once the CA learns that you filed an identical
petition with the SC, the CA will dismiss the petition before it. And once the SC also learns that you also
filed before the CA, the SC will also dismiss the one you filed before it. So you end up with nothing
because both courts will dismiss.
And not only that, both courts will declare you in contempt of court and if you are a lawyer,
disciplinary actions may be taken against you. That is what you will get if you think you are clever. It
turns out that you placed yourself in a frying pan. In other words, this is what is called abhorrent,
contemptible practice of FORUM SHOPPING. Have you heard that term before – forum shopping? ‘Yun
bang sabay-sabay kang mag-file ng case. You will invoke the jurisdiction of two or more courts
simultaneously. That is an act of contempt of court (Rule 7, Section 5).
EXCLUSIVE JURISDICTION OF THE COURT OF APPEALS
(2) “Exclusive” jurisdiction over actions for annulment of judgments of Regional Trial Courts;
Yes, you will notice again that this type of action belongs to the original jurisdiction of the CA. But
there is something that you will notice. In paragraph 2, it says there – “exclusive jurisdiction.” In
paragraph 1, the word “exclusive” is not present. As already explained earlier in paragraph 1, the
jurisdiction of the CA is concurrent with the SC. In paragraph 2, the original jurisdiction of the CA is
exclusive with the CA. You can only file this type of action before the CA such as an action for
annulment of judgments of the RTC’s.
Q: Actions for annulment of judgments of RTC’s, an action to annul a judgment of the RTC. Now, is
this similar to an appeal? Is this the same as appealing the decision of the RTC to the CA?
A: No, because in appeal, you are invoking the appellate jurisdiction of the CA. Here in paragraph 2,
it is not appellate jurisdiction. Original ito, eh. Meaning, you are filing an action before the CA for the
first time. And the nature of the action is to annul a judgment of the RTC.
Well, you are familiar with the Civil Law about actions of annulment of contracts. So, if there is such
a case of annulment of contract, there is also such a case as annulment of judgments of the RTC’s and you
come to wonder:

2001 Edition
Q: What would be the ground? What will be the ground to annul the judgment of the RTC and how
do you distinguish it from an appeal?
A: The present 1997 Civil Procedure now contains a specific rule on this. Before 1997, the guidelines
on annulment of judgment of the RTC’s are SC decisions. There is no specific rule, ba. But ‘yung
guidelines are based on jurisprudence.
Right now, starting July 1, 1997, there is now a specific rule on annulment of judgments of RTC. And
that is Rule 47. That is an entirely new rule. So that is enacted precisely to implement Section 9
Paragraph 2. Of course, we will discuss that rule very much later.
APPELLATE JURISDICTION OF THE COURT OF APPEALS
Now we’ll go the 3rd. Paragraph 3 is the most popular jurisdiction of the CA. Appellate, eh. This is
what is often involved. Most of the cases which land in the CA are appealed cases. Alright, so paragraph
3 defines the appellate jurisdiction of the CA.
(3) Exclusive appellate jurisdiction over all final judgments, decisions, resolutions, orders or awards
of the RTCs and quasi-judicial agencies, instrumentalities, boards or commissions, including the
Securities and Exchange Commission, the Social Security Commission, the Employees Compensation
Commission and the Civil Service Commission, except those falling within the appellate jurisdiction of
the SC in accordance with the Constitution, the Labor Code of the Philippines under PD 442, as amended,
the provisions of this Act, and of subparagraph (1) of the third paragraph and subparagraph (4) of the
fourth paragraph of Sec. 17 of the Judiciary Act of 1948.
Take note, the appellate jurisdiction of the CA is EXCLUSIVE. Now, if you will analyze paragraph 3,
you will notice that the CA is a powerful court because it has exclusive appellate jurisdiction over all final
judgments, decisions, resolution, orders or awards of RTC’s. So as a general rule, if the RTC, anywhere in
the country renders a decision and you want to appeal, whether civil or criminal, chances are it will go
the to CA. It is a powerful court, eh – all RTC’s eh – exclusive pa.
And not only only RTC’s. The law says “and quasi-judicial agencies, instrumentalities, boards or
commissions…” Not only decisions of the RTC but quasi-judicial, this is what you call administrative
bodies. Administrative bodies are not actually part of the executive branch but they act just like courts of
justice. They can decide cases and there are hundreds of administrative agencies in the Philippines. And
therefore, if you lost a case before anyone of these bodies, or tribunals, you appeal the decision not with
the SC, but to the CA.
The amendments by RA 7902 is even more specific by adding this phrase, “including the SEC, SSS,
the Employees Compensation commission and the Civil Service Commission (CSC).” That is the
addition. Gi-klaro ba.
CSC – this is what I’ve notice before…I told you before. Before this law was passed, under the
Constitution, decisions of the CSC are appealed to the SC together with the COMELEC and the COA. But
with the passage of RA 7902, the appeal from the CSC has been transferred to the CA, so what is left
behind in the Constitution is the COMELEC and the COA na lang.
For a while there I thought that this was wrong because the CSC is a constitutional body and its
decisions shall be appealed to a non-constitutional body like the CA. So, how do we reconcile this with
the Constitution, Article IX-A, Section 7, where it states that the ruling of each commission shall be
reviewed by the SC? However, the same provision states that: “Unless otherwise provided by this
Constitution or by law.” And the law is the RA 7902. So, this is how we reconcile it, in other words, the
Constitution and the law can provide for a different mode.
Obviously, the purpose of this statute is to unburden the SC with so many cases. At least transfer
some of the workload to the CA. That is the obvious purpose.
The phrase “except those falling within the appellate jurisdiction of the Supreme Court…”means all
cases should be appealed to the CA except those which belong to the SC under the Constitution. We
know that already. When the issue is the constitutionality of the law, treaty, legality of any tax, the
jurisdiction of any lower court – yan, hindi puwede sa CA. Diretso yan sa SC.
And also “except those falling under the Labor Code of the Philippines.” A labor case is not supposed
to be filed in court but with a quasi-judicial agency known as the NLRC and you start in the local level –

2001 Edition
from the Labor Arbiter, then the decisions of the Labor Arbiter are appealable to the NLRC and then from
there, where will you go?
Q: Is the decision of the NLRC appealable before the CA? Because it is also a quasi-judicial agency
and under the law, all decisions of quasi-judicial agencies are supposed to be appealed to the CA.
A: NO. The decision of the NLRC is an exception – except those under the appellate jurisdiction of
the SC under the Constitution and in accordance with the Labor Code (PD 422). So conclusion: NLRC
decisions cannot be appealed to the CA and the only way to elevate it is to the SC by what we call
certiorari, not appeal. Also, decisions of the Secretary of Labor, under the Labor Code are not reviewable
by the CA, but they are reviewable directly by the SC.
And then there is the phrase, "the provisions of this Act, and of subparagraph (1) of the third
paragraph and subparagraph (4) of the fourth paragraph of Section 17 of the Judiciary Act of 1948.” So, in
other words, the new Judiciary Law still makes some reference to the old law. This shows that the entire
1948 Judiciary Law has not been totally repealed. Some provisions are still intact because of the
reference.
Now what is this subparagraph 1 of the third paragraph? It only applies to criminal cases.
EXAMPLE: A person is sentenced to reclusion perpetua, his co-accused is sentenced to reclusion
temporal or prison mayor, and all of them will appeal, all of them should be sa SC na. Otherwise, you
will be splitting the appeal into two parts.
Subparagraph 4 of the fourth paragraph of Section 17. When by appeal from the RTC is on pure legal
question, SC yan.
Q: Suppose nasagulan ng questions of fact, I will appeal questions of fact and questions of law.
A: Under the 1948 Judiciary Law, you cannot appeal directly to the SC. You must appeal to the CA.
The same thing on when the issue is on the constitutionality of a treaty, law, legality of tax, when the
jurisdiction of the lower court is in issue, as explained here in this paragraph of the Judiciary Act of 1948,
if the appeal is 100% constitutional issue, jurisdictional or legality issue – appeal is to the SC under the
Constitution. But if it is mixed with questions of fact, do not go to the SC. You go first to the CA. That is
what the paragraph is all about. Alright, so that takes care of the jurisdiction of the CA.
[4] Section 9, last paragraph, BP 129:
The Court of Appeals shall have the power to try cases and conduct hearings, receive evidence and
perform any and all acts necessary to resolve factual issues raised in cases falling within its original and
appellate jurisdiction, including the power to grant and conduct new trials or further proceedings. Trials
or hearings in the CA must be continuous and must be completed within three (3) months unless
extended by the Chief Justice. (As amended by RA 7902)
This paragraph shows that the present CA that we have now is a more powerful court than before. It
is a unique court. Aside from being an appellate court, it also acts as a trial court. It may receive evidence
but only those evidence which were overlooked by the trial court. It can order a new trial or conduct a
new trial itself.
Q: If an issue of fact is tried before the RTC, can I always ask the CA to allow me to present evidence?
Does it mean to say now that since the CA is a very powerful court, it can take the place of the RTC?
Meaning, if I’m a party instead of presenting my case before the RTC, I will not, “Doon na lang sa CA.”
A: That is already interpreted in the case of
LINGER AND FISHER vs. INTERMEDIATE APPELLATE COURT
125 SCRA 522 [1983]
HELD: The power of the CA to receive evidence refers only to incidental facts which were not 100
percent touched upon, or matters which were simply overlooked by the trial court. You cannot opt not to
present evidence before the RTC. It only refers to incidental facts.
“Evidence necessary in regards to factual issues raised in cases falling within the Appellate Court’s
original and appellate jurisdiction contemplates ‘incidental’ facts which were not touched upon, or fully
heard by the trial or respondent Court. The law could not have intended that the Appellate Court would
hold an original and full trial of a main factual issue in a case, which properly pertains to Trial Courts.”

2001 Edition
published by
LAKAS ATENISTA 1997 – 1998: FOURTH YEAR: Anna Vanessa Angeles • Glenda Buhion • Joseph
Martin Castillo • Aaron Philip Cruz • Pearly Joan Jayagan • Anderson Lo •
SECOND YEAR: Jonalyn Adiong • Emily Aliño • Karen Allones • Joseph Apao • Melody Penelope
Batu • Gemma Betonio • Rocky Cabarroguis • Charina Cabrera • Marlon Cascuejo •

JURISDICTION OF THE
REGIONAL TRIAL COURTS
Ito ang third level, ‘no? And by going over their jurisdiction, you will see that it is a court of general
jurisdiction and it is actually the workforce of the whole judiciary. ‘Yan…talagang mabigat ang trabaho
nitong RTC. Their workload is terrible. Before, somebody asked me, “Dean, gusto mong mag-judge sa
RTC?” Inyuha na na! (Burawi nyo!) Inyo na nang trabaho na ‘yan because there are 2 things there when
you get the job of the RTC judge: Of course, you want to excel, you want to do your job properly and
efficiently, you will die early because of the workload. Or, you end up as one who is lazy. You end up
with administrative cases for laziness, left and right. So mabuti pa, huwag ka na lang magtrabaho diyan,
kasi mabigat ang trabaho diyan.
Q: How many RTC’s are there in the Philippines, from Northern Luzon to Southern Mindanao? In
your opinion?
A: You look at the opening clause of Section 13:
Section 13 (1) Creation of Regional Trial Courts – There are hereby created thirteen (13)
Regional Trial Courts, one for each of the following regions: x x
So the Judiciary law has divided the country into 13 areas which is called JUDICIAL REGION. From
the 1st to the 12th, the 13th is actually in the National Capital Region (NCR), Metro Manila. Every
division is divided into branches and the number of branches keep on increasing by law.
So, to what region do we belong? We are in the 11th judicial region. So there is one RTC for the 11th
judicial region, pero bakit ‘yun ganoon? Davao City lang, more than 10 na? Well, here is where you will
go back to your fundamentals. A court is not the same as a judge. ‘Yan…
Actually, what the law says is that, there are 13 RTCs, and every court is divided into branches. So,
kung branches siguro, malapit nang maging 1000 throughout the country. So there are 13 courts with
almost 1000 judges. Now, as a matter of fact, if you want to know exactly how many there are, you refer
to your Section 14. Actually, this has been amended many times because from 1980 up to the present,
Congress passed laws. In fact when the law took effect, according to Section 14, there are originally 29
RTC judges commissioned for the 11th judicial region – 29 originally.
Now, from what I know, based on the amendment in 1991, it was increased from 29 to 41. So there
are supposed to be 41 RTC judges for the 11th judicial region. As I said, unless from 1991 to the present
dinagdagan na naman nila.

2001 Edition
So 41 RTC judges shall be commissioned for the 11th judicial region. There should be 6 branches
which sits thereafter for the province of Davao del Norte, which sits at Tagum, Nabunturan and Panabo.
Four branches which sit thereat for the province of Davao Oriental which sits at Mati, Bagangga and
Butuan. Sixteen branches which sit thereat for the province of Davao del Sur. And the City of Davao
which sits at Davao City, Digos, Malita and Bansalan. Then 10 branches whish sit thereat for the province
of South Cotabato and the City of General Santos which sit at General Santos City, Koronadal [the City of
Eumir, Francis and Mortz], Surallah, and Polomolok. And 5 branches which sit thereat for the province of
Surigao del Sur which sit at Tandag, Ginanga, Bislig and Kantilan. So that is how they are distributed
within the 11th the juridical region.
Q: So, since there are 41 of them scattered throughout the 11th judicial region, from Surigao to South
Cotabato, for example, I would like to file a case against my neighbor based in Davao. So i-file ko sa
Polomolok, anyway that’s the same court, eh. Or a criminal in Davao City file-an sa Mati. Anyway, the
same court na. Are you allowed to do that?
A. The answer is NO! Every branch of the RTC has its own area of responsibility. Except in Davao
City, or in chartered cities, the authority of every branch here is throughout Davao City. But sa probinsya,
hati-hati ‘yan eh, and the provision there is Section 18 of BP 129.
BP 129, Section 18 . Authority to define territory appurtenant to each branch – The Supreme Court
shall define the territory over which a branch of the Regional Trial Court shall exercise its
authority. The territory thus defined shall be deemed to be the territorial area of the branch
concerned for purposes of determining the venue of all suits, proceedings or actions, whether
civil or criminal, as well as determining the Metropolitan Trial Courts, Municipal Trial Courts,
and Municipal Circuit Trial Courts over which the said branch may exercise appellate
jurisdiction. The power herein granted shall be exercised with a view to making the courts
readily accessible to the people of the different parts of the region and making the attendants of
litigants and witness as inexpensive as possible.
‘Yan, so in the province every branch has its own defined area. So, for example if you are from
Nabunturan, you cannot file a case in Panabo. Kalayo-layo niyan. There is a branch there in
Nabunturan. Doon ka mag-file. Kanya-kanya ng responsibility.
Now, the law says, the SC has the power to define the area of its branch for purposes of supervising
that area and the MTC there. Now, as early as 1983, the SC has already come out with administrative
order throughout the Philippines defining the area of responsibility of each branch. Sometimes I need
that, eh, because there are cases to be filed outside Davao City, especially Cotabato Province. And you
have to be updated kung sang branch ba ako pupunta nito. Sometimes you have a hard time, eh. For
example, the case originated in Babak, part of Davao del Norte, saan ba ito i-file? Panabo or Tagum? I
need to consult that circular. ‘Yan…that will be very helpful. Now you please correlate Section 18 of the
Judiciary Law with the Interim Rules Section 2 because Section 2 of the Interim Rules is related to this, eh.
Interim Rules, Sec. 2. Territorial Jurisdiction of Courts. -

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

CONCURRENT ORIGINAL JURISDICTION with other courts – Section 21
APPELLATE JURISDICTION – Section 22
EXCLUSIVE ORIGINAL JURISDICTION OF THE RTC
Sec. 19 Jurisdiction in civil cases – Regional Trial Courts shall exercise exclusive original
jurisdiction:
[1] In all civil actions in which the subject of the litigation is incapable of pecuniary
estimation.
What does it mean? When the subject of the litigation is not expressed in terms of pesos, centavos.
Alright.

2001 Edition
In most cases that we know, the demand of the plaintiff is expressed in terms of amount, eh.
EXAMPLE: A creditor will file a case for the collection of the unpaid loan from the defendant. Ang
nakalagay sa demanda niya, that after trial that the court should order the defendant to pay him the sum
of P500,000 na utang with interest. So, the subject is expressed in terms of amount of damages ba, the
court shall award to the defendant damages amounting to half a million. Karamihan ng kaso ganyan.
But here, in this civil case, the subject of the civil case is not capable of pecuniary estimation. It cannot
be estimated or calculated in pesos.
EXAMPLE is an action for annulment; rescission of contract; an action for specific performance; an
action for declaratory relief by express provision of the law now; an action for the permanent injunction
against somebody;
[2] In all civil actions which involve the title to, or possession of, real property or any
interest therein, where the assessed value of the property involved exceeds P20,000 or for civil
actions in Metro Manila, where such value exceeds P50,000 except actions for forcible entry into
and unlawful detainer of lands and buildings; original jurisdiction over which is conferred
upon the Metropolitan Trial Courts, Municipal Circuit Trial Courts;
So real actions outside of forcible entry and unlawful detainer. The best example would be accion
publiciana, accion reinvidicatoria, quieting of title, provided the value of the property exceeds P20,000.00
based on the assessed value of the property.
So, for a lesser value, MTC has jurisdiction. This is why MTCs now has jurisdiction over accion
publiciana when the value of the property is P20,000 or less. But kung forcible entry and unlawful
detainer, klaro yan – walang RTC.
Now, if in Metro Manila, then value is P50,000. But outside Metro Manila, the assessed value is only
P20,000.
[3] In all civil actions in admiralty and maritime jurisdiction where the demand or claim
exceeds One Hundred Thousand pesos (P100,00.00) [now PhP 200,000.00] or, in Metro Manila,
where such demand or claim exceeds Two Hundred Thousand pesos (P200,000.00)[now, PhP
400,000].
EXAMPLE: The shipper will ship to you in Davao goods involving common carrier. While in transit,
the goods are lost or they are totally damaged. You would like to file a claim or a case against the carrier,
what kind of a case? That is an admiralty or maritime case.
Q: If you are going to file a case against the shipping company, where will you file it? RTC or MTC?
A: It depends on how much is your claim. If your claim of the damaged or lost cargo exceeds
P200,000, sa RTC; if it is P200,000 or less, sa MTC. In Metro Manila, the jurisdiction is higher – it should
be over P400,000. Now do not confuse this with No. 2 because that involves LAND with more than
P20,000 value.
Take note that prior to August 16, 1999, the claim should exceed P100,000 or P200,000 in Metro
Manila as the case may be. Now, the claim is adjusted to P200,000 and P400,000, respectively pursuant to
Section 5 of RA 7691 which took effect last August 15, 1995:
RA 7691, Sec. 5. After five (5) years from the effectivity of this Act, the jurisdictional
amounts mentioned in Sec. 19(3), (4), and (8); and Sec. 33(1) of Batas Pambansa Blg. 129 as
amended by this Act, shall be adjusted to Two hundred thousand pesos (P200,000.00). Five (5)
years thereafter, such jurisdictional amounts shall be adjusted further to Three hundred
thousand pesos (P300,000.00): Provided, however, That in the case of Metro Manila, the
abovementioned jurisdictional amounts shall be adjusted after five (5) years from the effectivity
of this Act to Four hundred thousand pesos (P400,000,00).
So after August 16, 1999 (5 years from the effectivity of RA 7691) yung P100,000.00 naging P200,000
na. Yung P200,000 in Metro Manila, naging P400,000. Then after another 5 years (2004), aakyat na naman
ang jurisdiction ng MTC. So from the original P100,000.00 magiging P300,000 na yan. Automatic ha.
[4] In all matters of probate, both estate and intestate, where the gross value of the estate
exceeds One Hundred Thousand pesos (P100,000.00) [now P200,000] or, in probate matters in
Metro Manila, where such gross value exceeds Two Hundred Thousand pesos (P200,000.00)
[now P400,000].

2001 Edition
In the subject of Wills and Succession, when a person dies, his estate, his property will be settled for
the benefit of his creditors and heirs. That is what you call either as testate or intestate proceedings
depending on whether the deceased left a will or none.
Q: Where should the estate of the deceased person be settled, RTC or MTC?
A: It depends on how much is the gross value of his estate. If it exceeds P200,000, RTC. If it is
P200,000 or less, it should be with the MTC. In Metro Manila again, it is doubled, the gross should be
more than P400,000. And again, this will automatically increase after 5 years from 1999.
[5] In all actions involving the contract of marriage and marital relations.
Most of these cases are under the Family Code.
Q: What are the possible actions which you can imagine involve the contract of marriage and marital
relations?
A: Annulment of marriage, legal separation, declaration of nullity, dissolution of the absolute
community of husband and wife, and action for support. These cases are the ones arising under the
Family Code, where it arises out of a marital relationship.
Take note that these cases are NO LONGER covered by the RTC because under RA 8369 (Family
Courts Act of 1997), these cases should now be tried by the FAMILY COURTS.
RA 8369, SECTION 5. Jurisdiction of Family Courts. — The Family Courts shall have exclusive
original jurisdiction to hear and decide the following cases:
xxxxxx
d) Complaints for annulment of marriage, declaration of nullity of marriage and those
relating to marital status and property relations of husband and wife or those living together
under different status and agreements, and petitions for dissolution of conjugal partnership of
gains;
xxxxxx
Now, in areas where there are no family courts, the cases shall be adjudicated by the RTC. So certain
branches of the RTC will act as family courts (acting family courts.
We shall skip first no. 6. We will return to that later. Let’s go to no. 7.
[7] In all civil actions and special proceedings falling within the exclusive original
jurisdiction of a Juvenile and Domestic Relations Court and of the Court of Agrarian Relations
as now provided by law;
Before BP 129, these were special courts existing before 1980. Among these courts were the so called
Juvenile and Domestic Relations Courts (JDRC). Then you have the Court of Agrarian Relations (CAR)
which tried the cases involving tenancy, agricultural lessor, agricultural lessee, agricultural lands. When
BP 129 was enacted, the CAR and the JDRCs were abolished. Cases which they used to handle were
automatically transferred to the RTC. That was after BP 129 took effect.
What were the cases which were usually falling within the original jurisdiction of the former JDRC?
Usually, those involving family and children, like support filed by the child against his father,
compulsory recognition, custody of children, adoption proceedings – these are the cases which are
usually heard by the JDRC.
Under BP 129, all of these are now within the jurisdiction of RTC. HOWEVER, this has been amended
again by RA 8369 (Family Courts Act of 1997) These cases are now under the jurisdiction of the FAMILY
COURTS: (See Sections 5 [b], [c], [e], [g])
RA 8369, SECTION 5. Jurisdiction of Family Courts. — The Family Courts shall have
exclusive original jurisdiction to hear and decide the following cases:
xxxx
b) Petitions for guardianship, custody of children, habeas corpus in relation to the latter;
c) Petitions for adoption of children and the revocation thereof;
xxxx
g) Petitions for declaration of status of children as abandoned, dependent or neglected
children, petitions for voluntary or involuntary commitment of children; the suspension,
termination, or restoration of parental authority and other cases cognizable under Presidential
Decree No. 603, Executive Order No. 56, (Series of 1986), and other related laws;
xxxxx

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But the law transferring the jurisdiction of the CAR to the RTC became partially obsolete with the
enactment of the Comprehensive Agrarian Reform Law (CARL) or RA 6657 (June 15, 1988). Under the
CARL, all agrarian disputes between landlord and tenant, lessor and lessee were transferred to the DAR
particularly the DAR Adjudication Board (DARAB), making them quasi-judicial cases . So, from CAR to
RTC, from RTC to DARAB
So the RTC has NO jurisdiction, EXCEPT in the following 2 cases:
1.) Cases where the issue is PAYMENT OF JUST COMPENSATION, f or, the property which has
been taken under CARP law;
EXAMPLE: If you are a landowner and your agricultural land is placed under the CARP
coverage, the government will fix the payment for you. The trouble is that you did not lot
agree on the amount of payment. Agrabiyado ka sa compensation ng gobyerno. Now, you go
to RTC and you ask for higher compensation.
1.) Prosecution of criminal offenses for violation of the CARL;
So these are the only agrarian cases which still belongs to the RTC. This was explained by the SC in
the case of
QUISMUNDO vs. COURT OF APPEALS

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

If the value of the claim is = or < P200,000 – MTC
So this is the same as number [3] and [4] where the jurisdiction of the MTC was raised from P20,000
to P100,000. And under the present law, it is now P200,000. But again, this is subject to the automatic
increase in jurisdiction by 2004.
Q: Suppose the principal amount that you borrowed from me is P200,000, the interest is P30,000. And
you are collecting P10,000 for moral damages, another P10,000 for expense of litigation, etc. So my total
claim is P250,000. Where will I file the case?
A: MTC pa rin. In determining the jurisdictional limit of P200,000, do not include the interest,
damages, attorney’s fees, etc. So you deduct those from the principal claim even if you put them in your
complaint because the law says, “xxx exclusive of interest, damages of whatever kind, attorney’s fees,
litigation expenses, and costs xxx.”

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Q: What are litigation expenses and costs?

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

A: Obviously here, the property is PERSONAL PROPERTY not real. If the property sought to be
recovered is real, apply paragraph [2] of Section 19 on recovery of real property.
Q: In the subject of Sales, the unpaid seller would like to rescind the sale and get back the unit.
Where will the unpaid seller file the case?
A: If above P200,000 sa RTC ka. It if is only P200,000 or less, sa MTC. So this is an example of “the
value of the [personal] property in controversy.”

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Q: (By a classmate, Review class) Who shall determine the value or how should the value be
determined?
A: You will learn the answer when we reach Rule 16 on Motion to Dismiss. In determining the
jurisdiction of the court, in the meantime, which will prevail? You will learn later that the allegations of
the complaint will prevail.
Like for example, I will file a case against you for an unpaid loan of P250,000. Then you say in your
motion to dismiss, “No! ang utang ko sa iyo is not P150,000, but only P80,000. Therefore, the RTC has no
jurisdiction.” So there is now a conflict with what I’m saying and with what you are saying.
With that, we will discuss the conflict later. Now, we do not know who is telling the truth. For the
moment, the rule is, you follow the plaintiff because jurisdiction is determined by the allegations of the
complaint. It is the complaint which will determined whether the court has jurisdiction over the subject
matter. It is not based on what the defendant is saying. That is the answer there.
Let us go to some interesting cases on this provision.
ORTIGAS AND CO., LTD PARTNERSHIP vs. HERRERA

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

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Q: Suppose Karen will file an action for annulment of judgment of the MTC. Does it belong to the
CA?
A: NO! What the law says is: annulment of judgment of RTC, and not MTC. How about Supreme
Court? Lalong wala. Saan ka pupunta? There is really no provision in BP 129 which goes that way. I
don’t think you can go to NLRC.
Wala kang mapuntahan, saan ka tatakbo? Sa RTC because it does not belong to the jurisdiction of
any other court. It should fall under paragraph [6] That is why, this, there are problems reaching the SC
on jurisdiction – whether a case belongs to this, to the regular court or to a special quasi-judicial body.
And we are going to go over some of these cases.
SANDOVAL vs. CANEBA

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

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

232 SCRA 291 [1994]
FACTS: Isabelo and Marita Jareno and the owners and developers of a subdivision.
Fajardo and others, as buyers, signed separate contracts each designated a contract to sell
under which for consideration therein stated, the Jarenos bound themselves to sell to Fajardo
et al the of subject thereof, and after the latter shall have paid the purchase price and interest
shall execute in favor of Fajardo et al the corresponding deeds of sale.
When these contracts to sell are still ongoing the Jarenos sold these lots to other buyers
and the title was transferred to the second buyer. So when Fajardo et al learned about it, they
filed separate complaints with the RTC for annulment of the sale to the other buyers.

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Now, according to Fajardo, the jurisdiction of the case belongs to the RTC and not with
the HLURB because the title of the lots are transferred to the other buyers. It is no longer
under the name of Jareno. Secondly, their action is for the annulment of title to a third
person. Thirdly, these third persons are not the developers; fourthly, under the Judiciary
Law, actions involving title to a real property are to be tried by the RTC.
HELD: The RTC still has NO jurisdiction because the case involved unsound real estate
business practice on the part of the subdivision owners and developers. Under the law,
unsound real estate business practice is under the HLURB. The practice in the case is not a
sound real estate business – I am a developer, I enter into a contract with you and then later
on I sold the contract to a third person, that is unsound!
“By virtue of P.D. 1344, the HLURB has the exclusive jurisdiction to hear and decide the
matter. In addition to involving unsound real estate business practices, the complaints also
involve specific performance of the contractual and statutory obligations of the owners or
developers of the subdivision.” So it is still with the HLURB and not with the regular courts.
BENGUET CORPORATION vs. LEVISTE

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

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

160 SCRA 848 [1988]
FACTS: Lupangco et al were BS Accounting graduates and reviewing to take the CPA
exams in 1985.
There were some anomalies (leakages) in the 1985 CPA Board Examination. By next year,
the PRC passed a resolution prohibiting CPA examinees to attend review classes or
conferences because of leakages. They are prohibited from receiving any handouts, review
materials or any tip from any school, college or university. That was Resolution No. 105 of
the PRC.
So petitioners Lupangco et al, all CPA reviewers filed an injunction suit against the PRC
and to declare the resolution unconstitutional. They filed it with the RTC. The PRC moved to

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dismiss alleging that the RTC has no jurisdiction over the case because the one which has the
jurisdiction is the CA – exclusive jurisdiction to review any decision, order, ruling
or- resolution of any quasi-judicial body. And the PRC is a quasi-judicial body. So their
resolution can only be questioned before the CA and not with the RTC.
HELD: The PRC is WRONG because PRC is not only a quasi-judicial body, it is also a
quasi-legislative body. It also acts as legislative body by issuing rules and regulations.
Now, what kind of resolution is being questioned here? It is a resolution pursuant to it
purely administrative function. It is a measure to preserve the integrity of licensure
examination. Therefore, it does not belong to the CA. It is not the type of resolution
contemplated by Section 9.
“The authority of the CA to review all resolutions of all quasi-judicial bodies pursuant to
the law does not cover rules and regulations of general applicability issued by the
administrative body to implement its purely administrative policies and functions like
Resolution No. 105 which was adopted by the PRC as a measure to preserve the integrity of
licensure examinations.” So that is not the resolution reviewable by the CA.
Now, under what provision under Section 19 can we justify the jurisdiction of the RTC in
the case. The SC said: It is under paragraph 1 where the case is incapable of pecuniary
estimation or, it may fall under paragraph 6 where the case is not within the exclusive
jurisdiction by any court, tribunal or- body exercising Judicial or quasi-judicial functions.
So, if it is not reviewable by the CA, in what court can you question the resolution? Definitely, not
the CA, definitely not the SC. I don’t think it’s with the NLRC. So it will fall under the jurisdiction of the
RTC. Or, it can also fall under paragraph [1,] where the subject matter of the suit is not capable of
pecuniary estimation because what is the nature of the demands is to declare unconstitutional this
resolution. So it belongs to the jurisdiction of the RTC.
BERNARDO vs. CALTEX PHIL. INC.

216 SCRA 170 [1992]
FACTS: Under E.O. No. 172, when there is a dispute between an operator or dealer and
an Oil company regarding dealership agreement, the case shall be under the jurisdiction of
the Energy Regulatory Board (ERB). So any dispute regarding their relationship agreement
except disputes arising out of the relationship as debtor and creditor. So if the dispute arose
out of the relationship as bebtor and creditor, it should be filed with the RTC.
Now what happened here is that on December 5, 1990, Bernardo, a dealer of Caltex,
ordered gasoline from Caltex. So he ordered in the morning. At 6:00 at night on the same day,
there was a price increase. So when the gasoline was delivered the following day, Caltex
charged Bernardo for the increased price. Bernardo refused to pay and he he filed a case
before the RTC. Caltex argued that the case should be filed with the ERB.
HELD: The RTC has jurisdiction because “a contract of sale of petroleum products was
here perfected between Caltex and its operator/dealer Bernardo; that in virtue of the
payment admittedly made by Bernardo, Caltex became a “debtor” to him in the sense that it
was obligated to make delivery to Bernardo of the petroleum products ordered by him; and
that the only issue is the manner by which Caltex shall perform its commitment in Bernardo’s
favor. It is rather one cognizable by the Regional Trial Court, as a dispute indeed ‘arising out
of their relationship as debtor and creditor.’”
“What the controversy is all about, to repeat, is simply the prices at which the petroleum
products shall be deemed to have been purchased from Caltex by Bernardo in December 5,
1990. This is obviously a civil law question, one determinable according to the provisions of
the Civil Code and hence, beyond the cognizance of the Energy Regulatory Board.”
CONCURRENT ORIGINAL JURISDICTION OF THE RTC
Sec. 21. Original jurisdiction in other cases. - Regional Trial Courts shall exercise original
jurisdiction:
[1] In the issuance of writs of certiorari, prohibition, mandamus, quo warranto, habeas
corpus, and injunction which may be enforced in any part of their respective regions;
Q: What is the difference between the original jurisdiction of the RTC in Section 21 and the original
jurisdiction of the RTC in Section 19?
A: In Section 19, you have the EXCLUSIVE original jurisdiction, whereas in Section 21 you have the
original jurisdiction but CONCURRENT with other courts.

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

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

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

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

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

A.) As to original jurisdiction – Section 33
B.) As to delegated jurisdiction – Section 34
C.) As to special jurisdiction – Section 35
A.) EXCLUSIVE ORIGINAL JURISDICTION OF THE MTC
Sec. 33. Jurisdiction of Metropolitan Trial Courts, Municipal Trial

Courts and Municipal Circuit Trial Courts in civil cases. - Metropolitan
Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts
shall exercise:
1) Exclusive original jurisdiction over civil actions and probate

proceedings, testate and intestate, including the grant of provisional
remedies in proper cases, where the value of the personal property,
estate, or amount of the demand does not exceed Two hundred thousand
pesos (P200,000.00) or, in Metro Manila where such personal property,
estate, or amount of the demand does not exceed four hundred thousand
pesos (P400,000.00), exclusive of interest, damages of whatever kind,
attorney's fees, litigation expenses, and costs, the amount of which must
be specifically alleged: Provided, That interest, damages of whatever
kind, attorney's fees, litigation expenses, and costs shall be included
in the determination of the filing fees: Provided further, That where
there are several claims or causes of actions between the same or
different parties, embodied in the same complaint, the amount of the
demand shall be the totality of the claims in all the causes of action,
irrespective of whether the causes of action arose out of the same or
different transactions.

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

170 SCRA 274 [1989]
HELD: Thus, the Court rules as follows:
1. It is not simply the filing of the complaint or appropriate initiatory pleading, but the
payment of the prescribed docket fee, that vests a trial court with jurisdiction over the subject
matter or nature of the action. Where the filing of the initiatory pleading is not accompanied
by payment of the docket fee, the court may allow payment of the fee within a reasonable
time but in no case beyond the applicable prescriptive or reglementary period.
2. The same rule applies to permissive counterclaims, third party claims and similar
pleadings, which shall not be considered filed until and unless the filing fee prescribed
therefore is paid. The court may also allow payment of said fee within a reasonable time but
also in no case beyond its applicable prescriptive or reglementary period.

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3. Where the trial court acquires jurisdiction over a claim by the filing of the
appropriate pleading and payment of the prescribed filing fee but, subsequently, the
judgment awards a claim not specified in the pleading, or if specified the same has been left
for determination by the court, the additional filing fee therefor shall constitute a lien on the
judgment. It shall be the responsibility of the Clerk of Court or his duly authorized deputy to
enforce said lien and assess and collect the additional fee.
For example, I make a partial payment of the docket fee because of inadequacy of money. Under the
SUN INSURANCE ruling, kung kulang ang bayad, huwag namang i-dismiss ang kaso! Give the party a
reasonable time to pay the balance. “When the filing of the initiatory (complaint) pleading is not
accompanied by the payment of the docket fees, the court may allow the payment of the fee within a
reasonable time but in no case beyond the prescriptive period.” Meaning, if by the time you paid the
balance, nag prescribe na ang cause of action, ah wala na! So, provided that the action has not prescribed.
The same rule applies to permissive counterclaims. So this answers the question:
Q: Is the defendant obliged to pay the docket fee?

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

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

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

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

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Now, there are other interesting cases on the issue on docket fees.
FILIPINAS SHELL PETROLEUM CORP. vs. COURT OF APPEALS

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

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

278 SCRA 284 [August 21, 1997)
FACTS: Mortz filed a case against Charles in Leyte. After filing, the court dismissed the
case because it should be filed in Cebu. Mortz wrote a letter to the Office of the Court
Administrator (OCA) asking that the docket fee paid in Leyte be considered applicable to
Cebu. OCA granted his request.
Charles questioned it because of the rule that the payment of docket fee is jurisdictional.
HELD: “The OCA has neither the power nor the authority to exempt any party not
otherwise exempt under the law or under the Rules of Court in the payment of the prescribed
docket fees. It may be noteworthy to mention here that even in the Supreme Court, there are
numerous instances when a litigant has had to re-file a petition previously dismissed by the
Court due to a technicality (violation of a pertinent Circular), and in these instances, the
litigant is required to pay the prescribed docket fee and not apply to the re-filed case the
docket fees paid in the earlier dismissed case.”
“In the case at bar, in the strict sense, Mortz’s complaint cannot be deemed to have been
‘re-filed’ in Cebu City because it was not originally filed in the same court but in the RTC

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Leyte. Thus, when Mortz’s complaint was docketed by the clerk of court of the RTC Cebu
City, it became an entirely separate case from that was dismissed by the RTC of Leyte due to
improper venue. As far as the case in Cebu is concerned, while undoubtedly the order of
dismissal is not an adjudication on the merits of the case, the order, nevertheless, is a final
order. This means that when private respondent did not appeal therefrom, the order became
final and executory for all legal intents and purposes.”
DE LEON vs. COURT OF APPEALS

287 SCRA 94 [March 6, 1998]
FACTS: The question for decision is whether in assessing the docket fees to be paid for
the filing of an action for annulment or rescission of a contract of sale, the value of the real
property, subject matter of the contract, should be used as basis, or whether the action should
be considered as one which is not capable of pecuniary estimation and therefore the fee
charged should be a flat rate of P400.00 as provided in Rule 141, Section 7(b)(1) of the Rules
of Court.
Polgas argued that an action for annulment or rescission of a contract of sale of real
property is a real action and, therefore, the amount of the docket fees to be paid by Dagul
should be based either on the assessed value of the property, subject matter of the action, or
its estimated value as alleged in the complaint.
Since Dagul alleged that the land, in which they claimed an interest as heirs, had been
sold for P4,378,000.00 to Polgas, this amount should be considered the estimated value of the
land for the purpose of determining the docket fees.
Dagul countered that an action for annulment or rescission of a contract of sale of real
property is incapable of pecuniary estimation and, so, the docket fees should be the fixed
amount of P400.00 in Rule 141, Section 7(b).
HELD: Dagul is correct. “In determining whether an action is one the subject matter of
which is not capable of pecuniary estimation, this Court has adopted the criterion of first
ascertaining the nature of the principal action or remedy sought. If it is primarily for the
recovery of a sum of money, the claim is considered capable of pecuniary estimation, and
whether jurisdiction is in the municipal courts or in the courts of first instance would depend
on the amount of the claim. “
However, where the basic issue is something other than the right to recover a sum of
money, or where the money claim is purely incidental to, or a consequence of, the principal
relief sought, like in suits to have the defendant perform his part of the contract (specific
performance) and in actions for support, or for annulment of a judgment or to foreclose a
mortgage, this Court has considered such actions as cases where the subject of the litigation
may not be estimated in terms of money, and are cognizable exclusively by courts of first
instance.”
“The rationale of the rule is plainly that the second class cases, besides the determination
of damages, demand an inquiry into other factors which the law has deemed to be more
within the competence of courts of first instance, which were the lowest courts of record at
the time that the first organic laws of the Judiciary were enacted allocating jurisdiction.”
“Actions for specific performance of contracts have been expressly pronounced to be
exclusively cognizable by courts of first instance and no cogent reason appears, and none is
here advanced by the parties, why an action for rescission (or resolution) should be
differently treated, a "rescission" being a counterpart, so to speak, of ‘specific performance’.”
“In both cases, the court would certainly have to undertake an investigation into facts
that would justify one act or the other. No award for damages may be had in an action for
rescission without first conducting an inquiry into matters which would justify the setting
aside of a contract. Issues of the same nature may be raised by a party against whom an
action for rescission has been brought, or by the plaintiff himself.”
“It is, therefore, difficult to see why a prayer for damages in an action for rescission
should be taken as the basis for concluding such action as one capable of pecuniary
estimation — a prayer which must be included in the main action if plaintiff is to be
compensated for what he may have suffered as a result of the breach committed by
defendant, and not later on precluded from recovering damages by the rule against splitting
a cause of action and discouraging multiplicity of suits.”
“Thus, although eventually the result may be the recovery of land, it is the nature of the
action as one for rescission of contract which is controlling.”
“Since the action of Polgas against Dagul is solely for annulment or rescission which is
not susceptible of pecuniary estimation, the action should not be confused and equated with
the ‘value of the property’ subject of the transaction; that by the very nature of the case, the
allegations, and specific prayer in the complaint, sans any prayer for recovery of money

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and/or value of the transaction, or for actual or compensatory damages, the assessment and
collection of the legal fees should not be intertwined with the merits of the case and/or what
may be its end result.”
TOTALITY RULE
Now, continuing with Section 33, it says there in paragraph [1]:
“Provided further, That where there are several claims or causes of

actions between the same or different parties, embodied in the same
complaint, the amount of the demand shall be the totality of the claims
in all the causes of action, irrespective of whether the causes of action
arose out of the same or different transactions.”
What do you call that rule? The TOTALITY RULE.
ILLUSTRATION: Joinder of causes of action. The defendant secured from me two or more loans.
Let’s say, apat na utang covered by four (4) promissory notes and all of them are due and he has not paid
me any. Let's say each note covers a principal amount of P75,000. Now, I decided to file one complaint
embodying my four causes of action against him although I have the option also to file four separate
complaints. If you will look at the value of each claim which is P75,000 that is triable by the MTC. But if
you will add the four claims that will be P300,000.00.
Q: Which will prevail? The amount of each of the claim or the total?
A: The total amount will prevail. So it should be filed in the RTC. That is the totality rule.
Never mind that there are four (4) separate loans because the law says “irrespective of whatever the
cause of action arose out of the same or different transactions.” Now in that example, there is only one
plaintiff and one defendant. The plaintiff has four claims against the same defendant. Now suppose there
are 4 plaintiffs suing the same defendant in what is called in procedure as joinder of causes of action and
joinder of parties.
EXAMPLE: There are four (4) passengers riding on a public vehicle. They were all injured when the
bus met an accident and all of them were hospitalized. So after they were discharged, the four of them
wanted to sue the bus company for damages arising from contract of carriage or culpa contractual. Since
they hired the same lawyer, the lawyer said, “Why will I file 4 complaints? Isahin na lang. I will join
them.” In effect, he joined 4 causes of action.
Q: The same question will arise. What will be now the basis of jurisdiction? The claim of every
plaintiff or the total claims of the 4 plaintiffs?
A: The total claims. You apply the totality rule because the law says “where there are several claims
or cause of action between the same or different parties.” So whether the parties are the same or the
parties are different embodied in the same complaint the amount of the demand shall be the totality of
the claims the totality rule applies in both situations.
We will now go to paragraph [2] of Section 33.
[2] Exclusive original jurisdiction over cases of forcible entry and

unlawful detainer: Provided, That when, in such cases, the defendant
raises the question of ownership in his pleadings and the question of
possession cannot be resolved without deciding the issue of ownership,
the issue of ownership shall be resolved only to determine the issue of
possession. x x x x”
This is related to the Law on Property – FORCIBLE ENTRY (recovery of physical possession, e.g.
squatting) and UNLAWFUL DETAINER (e.g. you eject a lessee does not pay his rent.) – MTC lahat iyan.
The two cases should not be confused with accion publiciana which is also the recovery of possession but
that is a better right. Now, in unlawful detainer, the plaintiff also prays not only to eject the defendant but
also to claim for back rentals or the reasonable amount of the use and occupation of the property in case
of forcible entry.
Q: Suppose the unpaid rentals already amount to almost half a million pesos – so, unlawful detainer
plus back rentals of half a million. Where should the case be filed?
A: The case should still be filed with the MTC. What determines jurisdiction is the nature of the
action, and not the amount of recoverable rentals. Kahit na one (1) million pa yan, MTC pa rin yan.
Q: In an action for forcible entry or unlawful detainer, can the party present evidence of ownership?
A: The general rule is NO because the MTC cannot adjudicate ownership. That has to be threshed out
in the proper civil action in the RTC. But if evidence of ownership is presented in the forcible entry or

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unlawful detainer case, it is only incidental and it is only resolved to determine the issue of possession.
But the declaration of ownership is not final – that is only prima facie. The question of ownership must be
litigated in a separate action in the RTC.
Let us now proceed to the third paragraph of Section 33 as amended by R.A. 7691:
[3] Exclusive original jurisdiction in all civil actions which

involve title to, or possession of, real property or any interest therein
where the assessed value of the property or interest therein does not
exceed Twenty thousand pesos (P20,000.00) or, in civil actions in Metro
Manila, where such assessed value does not exceed Fifty thousand pesos
(P50,000.00) exclusive of interest, damages of whatever kind, attorney's
fees, litigation expenses and costs: Provided, That in cases of land not
declared for tax purposes, the value of such property shall be determined
by the assessed value of the adjacent lots. (As amended by RA 7691)
Aside from forcible entry and unlawful detainer, MTCs have now jurisdiction over other real actions
like accion publiciana and accion reinvidicatoria cases where the assessed value of the land should be
P20,000 or less. In Metro Manila, it is P50,000 or less. That is the amendment brought about by RA 7691
which expanded the jurisdiction of the MTC.
B.) DELEGATED JURISDICTION OF THE MTC
Sec. 34. Delegated Jurisdiction in Cadastral and Land Registration

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

A: It refers only to cadastral and land registration cases which involve the titling of property under
the Torrens system or cadastral land registration.
Under the Property Registration Decree, only the RTC has authority to entertain land registration and
cadastral cases. But now, Section 34 gives the Supreme Court the authority to DELEGATE MTCs to hear
and decide land registration and cadastral cases under the following conditions:
1.) when there is no controversy or nobody is contesting your petition; or
2.) even if the petition is contested where the value of the land to be titled does not exceed
P100,000.
In which case, these MTCs can decide and their decisions are appealable directly to the CA. Para
bang acting RTC sila ba. That’s what it is called delegated jurisdiction. ‘Delegate’ means it really has to be
assigned to you.
Now do not confuse this P100,000 (Section 34) with the P20,000 under Section 33. Section 34 deals
with cadastral and land registration cases. Section 33 involves civil cases (accion publiciana, etc.)
C.) SPECIAL JURISDICTION OF MTC
Sec. 35. Special jurisdiction in certain cases. - In the absence of

all the Regional Trial Judges in a province or city, any Metropolitan
Trial Judge, Municipal Trial Judge, Municipal Circuit Trial Judge may
hear and decide petitions for a writ of habeas corpus or applications for
bail in criminal cases in the province or city where the absent Regional
Trial Judges sit.
This is what we call special jurisdiction. That only applies to two (2) types of cases: (1) Habeas corpus
and (2) hearing of petitions for bail.

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Remember that habeas corpus is not within the jurisdiction of the MTC. It is with the RTC. Also, the
hearing on petition for bail, RTC yan because the offense may be a heinous one, but under the law on
criminal procedure you can file a petition for bail to have your temporary freedom while the case is going
on. That’s supposed to be in the RTC.
But suppose there is no available RTC judge, all of them are sick or all of them are attending a
convention (this actually happened in Davao in 1990) Section 35 provides that the MTC, in the absence of
RTC judges, can hear and decide on habeas corpus case petitions and applications or petitions for bail in
criminal cases. So acting pa rin yan because they are urgent and the liberty of a person is at stake.
That is allowed because of the urgency of the situation. There is no need for a SC authorization.
However, this is only allowed in the absence of the RTC judges. But if the RTC judge comes back, he has
to take over the petition.
So with that we are through with the jurisdiction of our courts. So we will now proceed to remedial
law proper.
CIVIL PROCEDURE PROPER
Laws are classified as either Remedial or Substantive Law. Remedial Law is also known as Adjective
or Procedural Law.
REMEDIAL LAW vs. SUBSTANTIVE LAW
Q: Distinguish Remedial law from Substantive law?

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

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

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Q: Give the two (2) aspects of Remedial Law.

A: There are 2 aspects of Remedial Law:
1.) PUBLIC ASPECT – one which affords a remedy in favor of the State against the individual
(e.g. criminal procedure) or in favor of the individual against the State (e.g. habeas
corpus) on the other hand,
2.) PRIVATE ASPECT – one which affords a remedy in favor of an individual against another
individual, like the rules on civil procedure. (Gamboa’s Introduction to Philippine
Law, 6th Ed., pp. 97-99)
BRIEF HISTORY OF THE LAW ON CIVIL PROCEDURE IN THE PHILIPPINES
The origin of our law on procedure is American. Forget the law on procedure during the Spanish
regime. But the first known ancestor of the law on Civil Procedure was the old Act 190, otherwise known
as the Code of Civil Procedure, which was enacted on August 7, 1901 by the United States and Philippine
Commission.
And that was the law until 1940 because on July 01,1940 the SC enacted the Rules of Court which we
now call the Old Rules of Court. That continued for another 24 years until January 01, 1964 when the SC
enacted the Revised Rules of Court repealing the Old Rules of Court. And that continued for another 33
years until July 01,1997 where the SC enacted and which took effect on that day (July 01, 1997) the New
Rules on Civil Procedure.
SUMMARY:
1.) First Law – August 07, 1901 – Act 190 – Code of Civil Procedure (40 years)
2.) Second Law – July 01, 1940 – Old Rules of Court (24 years)
3.) Third Law – January 01, 1964 – Revised Rules of Court (33 years)
4.) Fourth Law – July 01, 1997 – New Rules of Civil Procedure.
SOURCES OF THE 1997 RULES OF CIVIL PROCEDURE
Well of course the sources are almost the same as the prior law. The old Rules of Court is also a
source. Many provisions were taken from the 1964 Rules, substantive law like the Civil Code and
jurisprudence. And of course SC circulars. Many circulars are now incorporated under the new rule. So
those are the main sources.
SOURCES:
1.) Previous Rules of Court;
2.) Jurisprudence;
3.) New Civil Code;
4.) SC Circulars
RULE-MAKING POWER OF THE SUPREME COURT
The Rules of Court (1940, 1964, 1997) have all been enacted by tile SC. It is law, not enacted by
Congress but enacted by the SC.
Q: What is the authority of the SC to enact a law when actually the role of the judiciary is only to
interpret the law? Is this not a violation of the separation of powers?
A: The authority of the SC in enacting the prior rules and the present rules is what you call its
rule-making power which provision was found in the 1935, 1973 and 1987 Constitutions. Based on the
present law, the rule-making power of the SC is expressed in Article VIII, Section 5, paragraph [5] which
is substantially the same as the 1935 and 1973 Constitutions. Only everytime they amend the
Constitution, it is getting longer and longer.
Rut the pertinent portion which has not been changed is that the SC “shall have the power to
promulgate rules on pleading, practice and procedure.” That is the authority of the SC in enacting the
Rules of Court. But you should know also the limitations.
LIMITATIONS TO THE RULE-MAKING POWER OF THE SC
The Constitution has also placed limitations on these powers. As currently worded, one limitation
provided for by the Article is “the rules of procedure to be enacted by the SC shall provide for a
simplified and inexpensive procedure for the speedy disposition of cases.” The second one is: “the rules

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shall be uniform for all courts of the same grade.” And the third is: “the rules shall not diminish, increase
or modify substantive rights.”
LIMITATIONS :
1. The Rules of Court shall provide a simplified and inexpensive procedure for the speedy
disposition of cases;
2. The Rules of Court shall be uniform for all courts of the same grade; and
3. The Rules of Court shall not diminish, modify or increase substantive rights.
Substantive rights are created by substantive law so the Rules of Procedure should not increase,
diminish or modify them. In effect, the Rules of Court should not amend the substantive law. It can only
interpret substantive law but should not change it completely. Those are the limitations. With that we are
now ready to tackle the 1997 rules on civil procedure.

published by

LAW ON JURISDICTION IN CRIMINAL CASES

2001 Edition
Before we take up the rules on criminal procedure, we have to review the law on
jurisdiction. Just like in civil cases, we have to know the jurisdiction of the different courts
before we take up the provisions.
Q: How do we define jurisdiction with reference to criminal cases?

A: Jurisdiction in criminal cases has been defined as the power and authority of a court to
take cognizance of an offense and to pronounce the judgement or sentence provided by law
after a trial in the manner prescribed. (Albert, Law on Criminal Procedure, p. 56)
Q: What are the elements of jurisdiction in criminal cases:

A: The following:
1. Territorial jurisdiction;
2. Jurisdiction over the subject matter; and
3. Jurisdiction over the person of the accused.
First Element: TERRITORIAL JURISDICTION
In civil cases, the place is never considered part of jurisdiction. It is only a question of venue
– that the case should be tried in Manila or Davao is never considered as jurisdictional. But in
criminal procedure, the place where the trial is to be heard is not only a question of venue but
also a question of jurisdiction. It is called territorial jurisdiction.
Q: Define Territorial Jurisdiction.

A: Territorial jurisdiction refers to the limits of the geographical boundaries of a place within
which a court has jurisdiction to act judicially and outside of which its judicial acts are null and
void. (Mendoza vs. B.T. Co., 90 Phil. 804)
Q: How is territorial jurisdiction in criminal cases determined?

A: The territorial jurisdiction of a court in criminal cases is determined by the geographical
area over which it presides, and the fact that the crime was committed, or any of its essential
ingredients took place, within said area is an element of jurisdiction. (U.S. vs. Jueves, 23 Phil.
100)
The area of authority of said court is found in Section 2 of the Interim Rules:
Section 2. Territorial Jurisdiction of Courts – Metropolitan Trial

Courts, Municipal Trial Courts, and Municipal Circuit Trail Courts shall
exercise their jurisdiction in the city, municipality or circuit for
which the judge thereof is appointed or designated. Thus, a judge
appointed to the municipality or circuitized municipalities would have
jurisdiction over the said place.
(a) Regional Trial Courts shall exercise its jurisdiction within the
area defined by the Supreme Court as the territory over which the
particular branch concerned shall exercise its authority, in accordance
with Section 18 of B.P. Blg. 129.
There is no problem with the MTCs and MCTCs where the crime is committed there. Pero
yung RTC, it is not really the province because the province can be split into several areas -
itong RTC branch na ito, dito ka. So it is the limit of its authority as defined by the SC pursuant
to the Judiciary Law – the place or municipality where the particular RTC branch exercises
jurisdiction. Every RTC branch has its own area of responsibility.
Meaning, in one province there are many RTC branches which are scattered. A branch in a
particular place will only exercise jurisdiction over its designated territory, a small portion, not
the whole province. The territory is defined by the SC. (Section 18, B.P. Blg. 129)
Second Element: JURISDICTION OVER THE SUBJECT MATTER
Q: How is jurisdiction over the subject matter in criminal cases determined?

A: It is determined by the allegations of the complaint or information in accordance with the
law in force at the time of the institution of the action, not at the time of the commission of the
offense. (U.S. vs. Mallari, 24 Phil. 366; People vs. Pegarum, 58 Phil. 715)

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EXAMPLE: At the time the crime is committed, it was triable by the RTC, but when the
charge was filed in court, it is MTC na because the jurisdiction of the MTC was increased.
Q: Saan ang sundin natin? RTC, which is the law at the time the crime is committed? Or
MTC, which is the law at the time the case was filed?
A: Dun sa MTC. You follow the latter. This is not a question of prejudice, this is purely
procedural. We are not talking here of a retroactive effect of penal law where the law is more
favorable to the accused ‘no? This is just a question of jurisdiction, not a question of law. So, it
is the law in force at the time of the filing of the action is what determines the jurisdiction of the
court.
Q: To be more precise, how do we know where the court has or no jurisdiction?

A: Essentially, it is determined by the penalty provided by the law for the offense as that
offense is charged in the complaint or information. (People vs. Pecson, 92 Phil. 172; Punzalan vs.
People, 99 Phil. 295)
Third Element: JURISDICTION OVER THE PERSON OF THE ACCUSED
Q: How does the court acquire jurisdiction over the person of the accused?
A: It is conferred upon the court either by the voluntary appearance or surrender of the
accused, or by his arrest to answer for the crime charged. (Choc vs. Vera, 64 Phil. 1066)
JURISDICTION OF PHILIPPINE COURTS
Let us now go over the jurisdiction of the different courts in the Philippines. We will start
with the Supreme Court, and then down. Remember that there are two (2) special courts also
authorized to try criminal cases: (1) the Family Courts acting through RTCs, and (2) the
Sandiganbayan.
SUPREME COURT (SC)
Q: What criminal cases are within the jurisdiction of the SC? Well, one of them are cases
affecting ambassadors, public ministers and consuls. It is very rare. But let us concentrate on the
exclusive appellate jurisdiction of the SC in criminal cases.
A: The following:
1. All criminal cases involving offenses for which the penalty imposed by the trial court is
death, reclusion perpetua or life imprisonment;
2. Other offenses which, although not so punished, arose out of the same occurrence or
which may have been committed by the accused on the same occasion as that giving rise
to the more serious offense, regardless of whether the accused are charged as principals,
accomplices, or accessories, or whether they have been tried jointly or separately.
EXAMPLE: Hannah is the principal, accused of murder. Maying is the accomplice

and JJ is the accessory. All of them are found guilty. For the principal, sigurado perpetua
ang pinakamababa nyan – so SC ka!
How about the accomplice? Reclusion Temporal man lang yan ba! And the accessory?
Prision Mayor. In order not to split the jurisdiction, all of them will be appealed to the SC.
3. Even if the penalty is less than reclusion perpetua, death or life imprisonment, where the
issue on appeal is pure question of law.
EXAMPLE: Suppose the crime is homicide. The penalty imposed is reclusion temporal
– 20 years or less – definitely sa Court of Appeals yan. However, if the issue on appeal is
purely legal question lang - 100% legal, no factual issue – SC yan. The mode of appeal is
Rule 45 – Appeal by Cetiorari.
COURT OF APPEALS (CA)

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Let’s go to the CA. Simple: If a case does not fall within the jurisdiction of the SC, then
necessarily it falls within the CA’s jurisdiction. That is, the penalty imposed is less than perpetua
and the appeal is not purely a question of law; the appeal either involves question of fact or
mixed question of law and fact.
REGIONAL TRIAL COURT (RTC)
Sec. 20. Jurisdiction in criminal cases. - Regional Trial Courts

shall exercise exclusive original jurisdiction in all criminal cases not
within the exclusive jurisdiction of any court, tribunal or body, except
those now falling under the exclusive and concurrent jurisdiction of the
Sandiganbayan which shall hereafter be exclusively taken cognizance of by
the latter. (BP 129)
The jurisdiction of the RTC in criminal cases is provided for in Section 20, BP 129 which is
very broad in general – provided it does not belong to the Sandiganbayan or the Municipal
Trial Court (MTC). So what does not belong to the Sandiganbayan or the MTC belongs to the
RTC. Therefore, the best guide is determine the jurisdiction of the MTC. Let us forget the
Sandiganbayan for the meanwhile. If it does not belong to the MTC, it should be to the RTC.
MUNICIPAL TRIAL COURT (MTC)
Q: What law governing the jurisdiction of the MTC?

A: Section 32, BP 129, as amended by RA 7691. RA 7691 is the law expanding the jurisdiction
of the MTC which took effect last April 05, 1994.
Sec. 32. Jurisdiction of Metropolitan Trial Courts, Municipal Trial

Courts and Municipal Circuit Trial courts in criminal cases. - Except in
cases falling within the exclusive original jurisdiction of Regional
Trial Courts and of the Sandiganbayan, the Metropolitan Trial Courts,
Municipal Trial Courts, and Municipal Circuit Trial Courts shall
exercise:
1. Exclusive original jurisdiction over all violations of city or
municipal ordinances committed within their respective territorial
jurisdiction; and
2. Exclusive original jurisdiction over all offenses punishable with
imprisonment of not exceeding six (6) years irrespective of the amount of
fine, and regardless of other imposable accessory or other penalties,
including the civil liability arising from such offenses or predicated
thereon, irrespective of kind, nature, value or amount thereof; Provided,
however, That in offense involving damage to property through criminal
negligence, they shall have exclusive original jurisdiction thereof. (as
amended by R.A. 7691)
There are only two (2) things to remember:
1. all violations of city or municipal ordinances committed within their respective territorial
jurisdiction
2. all offenses punishable with imprisonment of not exceeding six (6) years irrespective of the
amount of fine
When the prescribed penalty is below six (6) years or kung prision correctional and down,
puro MTC lahat yan. Everything above six (6) years, RTC ang jurisdiction.
Q: Suppose if the penalty prescribed is imprisonment, fine or both?

A: Never mind the fine and the both. Just look at the imprisonment. That is the innovation by
the new rules. The fine is never considered in determining the jurisdiction. All you have to do is
look at the imprisonment, i.e. above six (6) years – RTC; six (6) years and below – MTC.
RTC JURISDICTION: Above six (6) years, regardless fine

MTC JURISDICTION: Six (6) years and below, regardless of fine
Q: Suppose the penalty prescribed by law is 100% fine? There are crimes na walang
imprisonment eh where the prescribed penalty is only fine. What will happen?

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A: Under the SC Circular 04-94, if the penalty is imprisonment and fine, or imprisonment or
fine, never mind the fine and concentrate on the imprisonment. But if the penalty prescribed is
purely fine, apply the old law before RA 7691: it depends on the amount prescribed by law.
Under the old law, if the maximum fine is P4,000 or less – MTC yan. If the penalty prescribed
by law is purely fine and above P4,000 – RTC yan.
Where the prescribed by law is purely fine:
MTC – P4,000 or less

RTC – above P4,000
However, the exception to the exception is when the crime is damage to property, like
reckless imprudence, because in the crime of damage to property through criminal negligence
the penalty is only fine, wala yang imprisonment under the RPC and the fine is equal to the
damage or not more than three (3) times the amount of the damage.
EXAMPLE: You bumped a car and you wreck it. The car is worth P100,000. Ano ang
penalty? The minimum fine is P100,000 – equal to the value of the damage – and the maximum
is P300,000 (three times the value of the damage, Article 365, RPC). So the fine could range from
P100,000 to P300,000.
Q: Sa RTC na ba yan because it is above P4,000?
A: No! Basta damage to property through reckless imprudence, automatically it is the MTC
regardless of the amount of fine. The P4,000 is only for crimes other than damage to property
through reckless imprudence.
Outline of the jurisdiction of the MTC and RTC over criminal cases:
RTC:
1. when the prescribed penalty for the offense is imprisonment exceeding six (6) years
irrespective of the amount of the imposable fine;
2. when the prescribed penalty for the offense is fine only and the imposable fine
exceeds P4,000.
MTC:
1. all violations of city or municipal ordinances committed within their respective
territorial jurisdiction;
2. all offenses punishable with imprisonment of not exceeding six (6) years irrespective
of the amount of the imposable fine;
3. when the prescribed penalty is fine only and the imposable amount does not exceed
P4,000;
4. when the offense involves damage to property through criminal negligence
irrespective of the amount of the imposable fine.
Take note, jurisdiction is determined by the principal penalty not by the civil liability,
additional penalty or the subsidiary penalty, which changed the previous rules under the old
jurisprudence. Under the old jurisprudence in the old case of U.S. vs. Bernardo, the SC ruled that
the penalty for simple seduction is only arresto mayor [not more than 6 months]. It cannot be
tried by the old MTC. It should only be tried by the CFI (now, RTC) because under Article 345
of the RPC, in the event that the accused is convicted there be a judgment for support and the
acknowledgment of the child which can only be decreed by the CFI. So what determines the
jurisdiction of the court is not the criminal penalty by the civil liability.
Pero bahaw na yan!! Those pronouncements are already obsolete. Now, never mind the
civil liability. So, in simple seduction [below 6 months], the MTC can order for the support and
acknowledgment of the child because that is only incidental. What is important is six (6) months
lang ang penalty.
CASE: Suppose Sir Jet is convicted of less serious physical injuries for the 6th time within a
period of 10 years only. The penalty for such crime is only arresto mayor – six (6) months
maximum. But since Sir Jet is already a habitual delinquent, may patong na yan where the
penalty can reach as high as 6 months to 14 years and 8 months.

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Q: Where are you going to file the case?

A: That is what happened in the case of People vs. Custoso where the SC held that the case
should be file din the RTC because you consider the principal plus the additional penalty. But
this doctrine is already obsolete. Under the present law RA 7691, we do not consider the
additional penalty, only the principal penalty. Since less serious physical injuries is punishable
by arresto mayor only, it should be filed in the MTC.
Take note the opening clause of Section 32: Except in cases falling within the exclusive original
jurisdiction of Regional Trial Courts and of the Sandiganbayan. In other words, if the crime has a
penalty of six (6) years or lower, dapat talaga MTC. It cannot be tried by the MTC if the law says
it is falling within the exclusive original jurisdiction of the RTC or the Sandiganbayan [if the law
itself ba!].
If the law says this case shall be tried with the RTC, sundin mo yan and never mind the
penalty because the law specifically provides in what court you should file it. Even if the
penalty is one (1) month imprisonment, pag-sinabi ng law “RTC”, you follow it.
Q: Give instances of this exception. In what cases will the RTC will try the case even if the
penalty is only six (6) years or less?
A: There are four (4) instances as laid down by the SC in cases of MORALES VS. CA, 283
SCRA 211 (1997) and COMELEC vs. NHOYNAY , 292 SCRA 254 (1998):
1. Libel – Klaro sa Article 360, RPC na RTC, pero if you look at the penalty for libel, hindi
man makaabot ng six (6) years ba! Article 360 prevails.
2. The Decree on Intellectual Property. Criminal cases for the violation of the Decree on
Intellectual Property – mga trademarks yan.
3. The Dangerous Drugs Act. Basta Dangerous Drugs, automatic RTC yan even if the penalty
is prision correcional lang.
4. Violation of the Omnibus Election Code – Criminal cases arising from the vilations of the
Omnibus Election Code is with the RTC even if the penalty is below six (6) years and
one (1) day (Comelec vs. Nhoynay)
FAMILY COURTS
Q: What criminal cases are falling within the original jurisdiction of the Family Courts under
RA 8369 – An Act Establishing Family Courts?
A: The following under Section 5, RA 8369:
1. Criminal cases where one or more of the accused is below 18 years of age but not less
than nine (9) years of age, or one or more of the victims is a minor at the time of the
commission of the offense.
So for example: 10 years old na bata, sinuntok mo – slight physical injuries – sa

Family Courts yan. Hindi yan pwede sa MTC because regardless of the penalty basta
below 18 years old siya, Family Courts yan whether he is the accused or the
offended party.
2. Criminal cases against minors under the Dangerous Drugs Act; and
3. Violations of RA 7610 – the famous child Abuse Law – as amended by RA 7658.
But since the Family Courts have not yet been constituted, the temporary measure is some
RTC branches were designated as acting as Family Courts. Here in Davao, the salas of Judge
Breva and Judge Archangel are designated as Family Courts. Temporary set-up lang yan. They
are still RTC but acting as Family Courts.
SANDIGANBAYAN

2001 Edition
The most confusing is the jurisdiction of the Sandiganbayan. Everyone is always confused
with this Sandiganbayan. It is the most controversial.
How do you know that the case is to be tried by the Sandiganbayan or by the regular
courts? It does not mean naman that all crimes committed by a public officer must be with the
Sandiganbayan. It could be with the Sandiganbayan or it could be with the RTC or MTC. If you
know the jurisdiction of the RTC or MTC, there is no problem. Above six (6) years – RTC; below
six (6) years – MTC.
But the problem is whether it is with the Sandiganbayan or the regular courts, because for
the Sandiganbayan, doon, regardless of the penalty na naman. Even if the penalty is above six
(6) years or six (6) years and below, if it is triable before the Sandiganbayan, you go there.
Forget the penalty. That is where there is some confusion. Maraming naguguluhan!
Q: What is the guideline in determining the jurisdiction of the Sandiganbayan?

A: The latest governing law is RA 8249 approved on February 05, 1997. This is what it
requires:
1. What kind of position in t he government does he hold or occupy?

2. What criminal cases was committed by him?
WHAT KIND OF POSITION IN THE GOVERNMENT DOES HE HOLD OR OCCUPY?
Sino ba itong taong ito? – if he is a governor, vice-governor, member of the sanggunian,

provincial treasure, assessor, engineers and other provincial department head, city mayor, vice
mayor, members of the sanggunian panglungsod, city treasurer, assessor, engineer, other city
department heads, official of the diplomatic service occupying the position of consul and
higher, Philippine army and air force, colonels and naval captains and all officers of higher
rank, officers of the PNP while occupying the position of provincial directors and those holding
the rank of Senior Superintendent or higher, city and provincial prosecutors and their assistant,
and officials and prosecutors of the Office of the Ombudsman and special prosecutor,
presidents, directors or trustees or managers of GOCCs, state universities or educational
institutions or foundations; members of Congress; members of the Constitutional Commission
without prejudice to the provisions of the Constitution; [ito ang pinakamaganda:] all other
national and local officials classified as Grade 27 and higher.
Those specified positions or even if you are just an ordinary employee but you are Grade 27
or higher coupled with Anti-Graft crime or crime committed in relation to your office –
Sandiganbayan yan, forget the penalty.
If he is below Grade 27 and the crime is anti-graft or a crime committed in relation to his
office, then it is not Sandiganbayan. It is either RTC or MTC. Tingnan mo lang ang Grade. That
is the cue. Madali man lang ba: you just correlate the nature of the crime and the nature of the
position.
WHAT CRIMINAL CASE WAS COMMITTED BY HIM?
When it comes to criminal cases, dalawa (2) lang yan eh: Anti-Graft cases or violation of RA
1379 [Forfeiture of an illegally acquired property]. But more or less Anti-Graft would be a better
example since anyway majority of the cases falls there.
Q: How about those in the RPC?

A: Find out whether the crime was committed by the public officer in relation to his office.
Yan muna ang babantayan mo.
If it is outside of those two [anti-graft or not anti-graft but the crime is committed in relation
to his office], wala na, forget the Sandiganbayan.
What do you mean by “crime committed in relation to the office of the person accused”? In the
case of

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PEOPLE vs. MONTEJO

108 Phil. 652
FACTS: This is a case for murder filed against the former Mayor Leroy Brown of
Basilan City together with some Basilan policeman. Brown ordered his men to arrest
the suspect and he was interrogated. It is in the course of the investigation or
interrogation that they committed the crime of murder.
ISSUE: Was the crime of murder committed in relation to his office?
HELD: Yes. In other words, if they were not public officers they would not have
succeeded in committing the crime. “Although public office is not an element of the
crime of murder in abstract, as committed by the main respondents herein,
according to the amended information, the offense therein charged is intimately
connected with their respective offices and was perpetrated while they were in the
performance, though improper or irregular, of their official functions. Indeed, they
had no personal motive to commit the crime and they would not have committed it
had they not held their aforesaid offices. The co-defendants of respondent Leroy S.
Brown, obeyed his instructions because he was their superior officer, as Mayor of
Basilan City.”
Of course, normally when you say in relation to his office… mga falsification or malversaton…
yan, talagang klaro. That is the normal meaning. That is why in the 1995 case of CUNANAN VS.
ARCEO, 242 SCRA, the SC held that an offense may be considered as committed in relation to
the accused's office if the offense cannot exist without the office such that the office is a
constituent element of the crime. Let us try to compare this in the case of
SANCHEZ vs. DEMETRIOU

207 SCRA 627
FACTS: Mayor Sanchez of Calauan was charged with rape and homicide for the
deaths of Aileen Sarmenta and Allan Gomez. They were charged before the RTC.
Sanchez questioned the jurisdiction of the RTC that since he is an incumbent mayor
at the time of the alleged commission of the crime, his case should be tried before the
Sandiganbayan.
ISSUE: Whether or not the RTC has jurisdiction over the case.
HELD: Yes. The case should be tried by the RTC and not Sandiganbayan. The
case of Sanchez was not considered in relation to their office.
“There is no direct relation between the commission of the crime of rape with
homicide and Sanchez’ office as municipal mayor because public office is not an
essential element of the crime charged. The offense can stand independently of the
office. Moreover, it is not even alleged in the information that the commission of the
crime charged was intimately connected with the performance of Sanchez’ official
functions to make it fall under the exception laid down in People vs. Montejo.”
“In that case of People vs. Montejo, a city mayor and several detectives were
charged with murder for the death of a suspect as a result of a ‘third degree’
investigation held at a police substation. The Supreme Court held that even if their
position was not an essential ingredient of the offense, there was nevertheless an
intimate connection between the office and the offense, as alleged in the information,
that brought it within the definition of an offense ‘committed in relation to the public
office.’ Indeed, they had no personal motive to commit the crime and they would not
have committed it had they not held their aforesaid offices.
“We have read the informations in the case at bar and find no allegation therein
that the crime of rape with homicide imputed to Sanchez was connected with the
discharge of his functions as municipal mayor or that there is an ‘intimate

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connection’ between the offense and his office. It follows that the said crime, being
an ordinary offense, is triable by the regular courts and not the Sandiganbayan.”
LACSON vs. EXECUTIVE SECRETARY

301 SCRA 298 (1999)
HELD: It is not enough to say that the crime committed is in relation to his office.
You must make specific allegations to show really the connection. Otherwise, it will
not be tried by the Sandiganbayan but by the regular courts.
“While the information states that the above-name principal accused committed
the crime of murder ‘in relation to their public office’ there is, however, no specific
allegation of facts that the shooting of the victim by the said principal accused was
intimately related to the discharge of their official duties as police officers. Likewise,
the amended information does not indicate that the accused arrested and
investigated the innocent victim and killed the latter while in their custody.” Dapat:
nahuli…nag-imbestiga…tapos, pinatay – yun, ma-consider pa! Pero pag-sinabi mo
na they killed him in relation to their office, without further explanation – wala! It
becomes merely a conclusion lang ba.
“The mere allegation in the information that the offense was committed by the
accused public officer in relation to his office is not sufficient – the phrase is merely a
conclusion of law, not a factual averment that would show the close intimacy
between the offense charged and the discharge of the accused’s official duties.”
“In the case of People vs. Montejo, it is noteworthy that the phrase ‘committed in
connection to his public office’ does not also appear in the information, which only
signifies that the said phrase is not what determine the jurisdiction of
Sandiganbayan. What is controlling is the specific factual allegations in the
information that would indicate the close intimacy between the discharge of the
accused’s official duties and the commission of the offense charged, in order to
qualify the crime as having been committed in relation to his public office.”
Q: The offender is a public officer and in committing the crime, he took advantage of his
position. Ano yan? Is that a sufficient allegation that the crime is committed in relation to the
office?
A: NO! It does not carry the same meaning. When you say that the public officer took
advantage of his position, that is only an allegation of an aggravating circumstance under Article
14, RPC. (People vs. Magallanes, 249 SCRA 212)
Now, there are instances where there could also be a conflict between the Sandiganbayan
jurisdiction and that of the regular courts. This is were we follow the general rules on statutory
construction that special law prevails over a general law; a specific provision prevails over a
general provision.
Such principle is applied in the case of De Jesus vs. People (1983), reiterated in the case of
Corpuz vs. Tanodbayan (1987). These cases were decided under the 1973 Constitution. But
actually, the doctrine still applies now.
CORPUZ vs. TANODBAYAN

April 15, 1987
NOTE: This Corpuz case was asked in the Bar, not in remedial law but in political
law because it has something to do with the COMELEC.
FACTS: The accused here is a Comelec registrar who allowed the registration of
voters outside of the registration day… bawal man yan ba. So there was a violation
of the Election Code. He committed a crime in relation to his office. For that, he was
charged before the Sandiganbayan under the 1973 Constitution. Now, he challenged
the jurisdiction of the Sandiganbayan to try the case and also the jurisdiction of the
former Tanodbayan which is now the Ombudsman.
Under the Election Code, violations of election code committed by public officers
in relation to their office are supposed to be tried by the RTC. It is a direct provision

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in the code – RTC eh! And the preliminary investigation should be conducted by the
Comelec under the election code.
And of course the prosecution said: “No! Under the law, when the crime is
committed by a public officer in relation to his office, it should be the
Sandiganbayan, not the regular courts.” Pero sabi ng accused: “Under the election
code, it should be the RTC!” Ngayon, sino ngayon mag-prevail dyan?
HELD: The election code prevails because there is a specific provision which is:
crimes under the election code. Whereas the provisions of the Sandiganbayan is
broader: crimes committed by public officers in relation to their duty. That applies to
public officers in general. So the specific provision prevails over the general
provision.
Another interesting point about the Sandiganbayan is that the Sandiganbayan law says that
where a private individual commits a crime in conspiracy with a public officer, all of them
should be tried in the Sandiganbayan. So ‘yung isa, nasabit no? Nasabit yung private
individual. He is not even in the government bakit pati siya i-try sa Sandiganbayan? Because
may conspiracy. There should be a joint trial.
So you cannot say that the public officer should be tried in the Sandiganbayan and the
private individual should be tried in the RTC. Di pwede yan. You cannot split the jurisdiction.
Q: What is the reason why the private individual should be tried together with the public
officers in the Sandiganbayan?
A: The SC explained in the following manner: “Private persons may be charged together
with public officers to avoid repeated and unnecessary presentation of witnesses and exhibits
against conspirators in different venues, especially if the issues involved are the same.”
(Balmadrid vs. Sandiganbayan, March 22, 1991)
Let’s go to some interesting cases on the jurisdiction of the Sandiganbayan over private
individuals:
BONDOC vs. SANDIGANBAYAN

November 9, 1990
FACTS: This case involves quieting(?) operations (manuevers sa mga tseke)

between Central Bank (a government institution, now Bangko Sentral ng Pilipinas)
employees allegedly in connivance with Carlito Bondoc, an assistant manager of a
private bank. Now, two (2) CB employees were charged with several counts of estafa
through falsification of public documents because of their manipulations of the
checks. I think what they did maybe something similar to what Estrada did no? Of
course they were charged with the Sandiganbayan and the cases were assigned in
the Second Division of the Sandiganbayan.
Subsequently after further investigation, another information was filed against
Bondoc as principal by indispensable cooperation and he was also in conspiracy, so
f-in-ile sa Sandiganbayan. His case was raffled to the Third Division. When the Third
Division learned that this is related to the case against the two (2) CB employees in
the Second Division, pinasa sa 2nd Division for consolidation. However, tapos na
pala ang trial dun (2nd Division). So the 2nd Division returned the case of Bondoc to
the 3rd Division.
So naiwan na si Bondoc. Now he questions the jurisdiction of the Sandiganbyan:
How could the Sandiganbayan try me alone when in fact I should be tried jointly
with the 2 CB employees. Eh tapos na sila! So my case should be tried in the RTC.
HELD: “The law requires that the private individuals accused before the
Sandiganbayan should be tried together jointly with the public officer. That is really
true unless the attendant circumstances have made impossible or impracticable such
a joint trial, in which event the trial of said private persons may proceed separately
from the public officers or employees whose own trials have been concluded.”
“Besides, there is nothing so sacred or important about a joint trial as to justify a
radical deviation from ordinary, orderly court processes in order to have it, or as to

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affect the very jurisdiction of the Court required to conduct it. The evidence of the
State or of the accused does not become weaker or stronger whether presented at a
joint or separate trial; the rights of the accused are not enhanced or diluted by the
character of a trial as joint or separate; the procedure prescribed in either situation is
essentially the same.”
So joint trial is possible kung pwede pa. Eh kung wala na? Eh di maiwan ka na lang dyan!
Now, sabihin mo: “No! No! the the law says ‘joint trial!’ I should not be tried alone.” The SC in the
case of Bondoc said: Teka muna, do you have an advantage in joint trial? Or when tried alone?
Or you are tried together with another person? Does joint trial make your job easier or harder?
Makes conviction easier? Wala man bah! Pareho man lang yan!
So meaning, you cannot insist on a joint trial if that is no longer feasible. But as far as the law
is concerned, since you committed the crime in conspiracy with these public officers, you
remain in the Sandiganbayan. So in that case (Bondoc), mag-isa lang siya and his trial continued
in the Sandiganbayan.
AZARCON vs. SANDIGANBAYAN

268 SCRA 747 (February 26, 1997)
FACTS: I think this case happened in Bislig. Azarcon here leased a truck of
somebody for logging operations. The owner of the truck was a delinquent taxpayer
pala. So the Bureau of Internal Revenue (BIR) issued this warrant of distraint. The
BIR looked for the truck which is quite an item which worthwhile: “This truck is
hereby considered as under the possession of the BIR. Now since you (Azarcon) are the one
leasing, okey lang, ituloy mo but you are now the custodian. You are now holding it in behalf
of the BIR.”
After the lease, he returned the truck to the lessor (taxpayer). Obviously, nawala
nga ang truck. So hinabol na si Azarcon ng BIR: “Ba’t mo sinauli? That is under
distraint already and that is malversation!” Under the RPC, the crime of malversation
may be committed by a public officer, by a private individual who is entrusted with
the custody of a property which has been levied by the government (Article 222,
RPC)”
So, f-in-ile-an sya ng kaso sa Sandiganbayan… malversation eh! He now
questions the jurisdiction of the Sandiganbayan: I am not a public officer. If you want to
sue me, you sue me in the regular courts, not here in the Sandiganbayan!
ISSUE: Does the Sandiganbayan have the jurisdiction over a private individual
who is charged with malversation of public funds or property as a principal after the
said individual has been designated by the BIR as custodian of a restrained
property? Did such accused become a public officer and therefore subject to the
Sandiganbayan jurisdiction as a consequence of such designation?
HELD: No. The Sandiganbayan does not have the jurisdiction over him. The law
equivocally specifies: “…the only instances when the Sandiganbayan will have
jurisdiction over a private individual, i.e. when the complaint charges the private
individual either as a co-principal, accomplice or accessory of a public officer or
employee who has been charged with a crime within its jurisdiction.
The Information does not charge petitioner Azarcon of being a co-principal,
accomplice or accessory to a public officer committing an offense under the
Sandiganbayan's jurisdiction. Thus, unless petitioner be proven a public officer, the
Sandiganbayan will have no jurisdiction over the crime charged.
“Granting arguendo that the petitioner, in signing the receipt for the truck
constructively distrained by the BIR, commenced to take part in an activity
constituting public functions, he obviously may not be deemed authorized by
popular election. The next logical query is whether petitioner's designation by the
BIR as a custodian of distrained property qualifies as appointment by direct
provision of law, or by competent authority. We answer in the negative.
“However, we find no provision in the NIRC constituting such person a public
officer by reason of such requirement. The BIR's power authorizing a private
individual to act as a depositary cannot be stretched to include the power to appoint

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him as a public officer. The prosecution argues that "Article 222 of the Revised Penal
Code . . . defines the individuals covered by the term 'officers' under Article 217 . . ."
of the same Code. And accordingly, since Azarcon became a "depository of the truck
seized by the BIR" he also became a public officer who can be prosecuted under
Article 217 . . .”
“We are not persuaded. The language of the foregoing provision is clear. A
private individual who has in his charge any of the public funds or property
enumerated therein and commits any of the acts defined in any of the provisions of
Chapter Four, Title Seven of the RPC, should likewise be penalized with the same
penalty meted to erring public officers. Nowhere in this provision is it expressed or
implied that a private individual falling under said Article 222 is to be deemed a
public officer.”
What it says is, you can be charged for malversation. That’s all. But he is still a private
individual and therefore he cannot be tried alone in the Sandiganbayan.
Q: Under the present law, anti-graft or crimes committed by public officers below Grade 27,
RTC man yan ba! Now, suppose you are convicted by the RTC, where will you appeal?
A: Sandiganbayan. It becomes the appellate court.
Q: Eh halimbawa, MTC? The case is tried by the MTC because the penalty is up to 6 years
only. Convicted ka, where will you appeal?
A: RTC, in accordance with the judiciary law.
Q: From the RTC, convicted pa rin! Where will you appeal?

A: Petition for Review before the Sandiganbayan. Do not go to CA. The Sandiganbayan
takes the place of the CA.
And take note, Sandiganbayan is now given the exclusive original jurisdiction over petition
for issuance of writ of mandamus, prohibition, certiorari, habeas corpus, injunction and other
auxiliary writs and processes in aid of its appellate jurisdiction. Ayan! “in aid”… yan ang
importante dyan.

editor-in-chief: mortmort editors: jayceebelle balite • j-j torres • michael peloton • maying dadula •
jessamyn agustin • lyle santos • paul ryan ongkingco • dynn gutierrez • maya quitain • riezl locsin
• patrick tabar • maritess gonzales • maricel culpable • kenneth leyva • jenny namoc • ferdinand
vido • melissa suarez • rayda sullano • rucel cayetano • rod quiachon • hannah examen • myra
montecalvo • genie salvaña • grace salesa • leo gillesania • gemma betonio • jenny aquiatan •
michael pito • karen de leon • elma tormon • judee uy • pao angeles • jet pascua • contributing
editors: bathsheba baldoza • marlo masangkay
SPACE-FILLER #1:

2001 Edition
My First Experience
It was dark, the moon was high,
We were alone, she and I,
Her hair was soft, her eyes were blue,
I knew what she wanted me to do,
I didn't know how, I just tried my best
By putting my hands upon her breast.
Her hair was soft, her legs were fine,
I ran my fingers down her spine,
I remember with fear her beating heart
As she started to pull her legs apart.
It was dark, there was no light,
Something came out, sticky and white,
It was full, she had enough,
To make it through
Up and down, I pushed and pushed.
She’s fine, I was not fooled
It’s done. . .
It’s through. . .
It’s all over now. . .
My first experience of milking a cow.
Rule 01
GENERAL PROVISIONS

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SECTION 1. Title of the Rules. These Rules shall be known and cited
as the Rules of Court.
SEC. 2. In what courts applicable. These Rules shall apply in all the
courts, except as otherwise provided by the Supreme Court.
Section 1 provides the title of the Rule – Rules of Court. And Section 2, “these rules shall apply in all
the courts except as otherwise provided by the Supreme Court.” Meaning, applicable to all courts except
when the SC say otherwise. For example: The SUMMARY RULES on procedure which is applicable to
some cases in the MTC.
Another example of when the SC say otherwise is Section 4 – that the rules shall not apply to election
cases, land registration, cadastral, naturalization, insolvency proceedings and other cases not herein
provided for except by analogy. That is formerly Rule 143. Ngayon nilagay nila sa umpisa. The placement
is better so that we will see it immediately. That is actually not a new provision. That’s an old one. It used
to be in Rule 143, now it is in Rule 1.
Sec. 3. Cases governed. These Rules shall govern the procedure to be

observed in actions, civil or criminal, and special proceedings.
x x x x x x
Now, some people are asking me, “Akala ko ba civil procedure ito, bakit merong criminal? How
come it mentions criminal cases and definitions when it is supposed to be 1997 Rules on Civil Procedure?
NO, Rule 1 is the general provision for the entire Rules of Court. You look at the title, “These rules
shall be known as the ‘Rules of Court.’” This is the common denominator from the first to the last Rule.
That’s why it says there ‘special proceedings,’ ‘civil cases’ and ‘criminal cases.’ Now we are not interested
in criminal cases of course. Civil action na larg tayo muna.
x x x x x
(a) A civil action is one by which a party sues another for the
enforcement or protection of a right, or the prevention or redress of a
wrong.
A civil action may either be ordinary or special. Both are governed
by the rules for ordinary civil actions, subject to the specific rules
prescribed for a special civil action.
x x x x x
Well the definition of a civil action is there. The definition now becomes shorter compared to the
previous definition. It’s the same definition. It has only been shortened.
A CIVIL ACTION is one by which a party sues another for the enforcement or protection of a right,
or the prevention or redress of a wrong. So, that is the purpose of a civil suit – to enforce or protect your
right or you sue somebody for the purpose of preventing or redressing a wrong.
CLASSIFICATION OF CIVIL ACTIONS
Q: Classify civil actions.

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

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

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

a.) Local Actions
b.) Transitory Actions
IV. As to OBJECT
a.) Action In Personam
b.) Action In Rem
c.) Action Quasi In Rem

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

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

REAL, PERSONAL or MIXED ACTIONS
An action is either a real or personal action. And that is important because of Rule 4 – the venue for
real actions is different from the venue for personal actions.
A REAL ACTION is briefly described as an action where the issue or the subject involved is title,
ownership, possession or interest over a real property like accion publiciana, forcible entry, unlawful

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

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

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

181 SCRA 9

2001 Edition
HELD: “Actions in personam and actions in rem differ in that the former are directed
against specific persons and seek personal judgments, while the latter are directed against the
thing or property or status of a person and seek judgments with respect thereto as against the
whole world.”
Action in personam; EXAMPLE:
ILLUSTRATION: Recovery of land, accion publiciana: Momma Jessa vs. Little Lulu. Sabi ng court:
“Alright Momma Jessa, you are the winner and you are entitled to the land.” Now, here comes Baby
Maya. Momma Jessa says, “Wala na iyan, tapos na iyan. In the case, that was already decided that I am
entitled.” Sabi ni Baby Maya, “Ah, that is between you (Momma Jessa) and Little Lulu. But I’m different.
I have evidence to prove that my right is better than yours. I am not bound by that decision.”
Q: Is the judgment rendered in the case between Momma Jessa and Little Lulu binding on Baby
Maya?
A: NO, because Baby Maya is not a party to that case. She cannot be bound by a judgment where she
is not a party. Hence, the action between Momma Jessa and Little Lulu is an action in personam.
Action in Rem; Example:
ILLUSTRATION #1: Action for annulment of marriage or declaration of nullity of marriage. Suppose
the husband (Joshua) files a case against his wife (Tekla) to annul their marriage. After trial, the court
rendered judgment annulling the marriage of Joshua and Tekla. It became final. Now, the status of the
parties is SINGLE na naman because the marriage is annulled. Joshua meets another girl, Maying, and
courted her and told Maying, “I would like to marry you.” Maying said, “I cannot marry you because I
know you are married. How can I marry you when you are already married?” Joshua said, “Not
anymore. I’m no longer married because my marriage with Tekla is already annulled and here is the
decision. So, I’m single.” According Maying, “No, I am not bound by that judgment because I was not a
party to that case.”
Q: When the court ruled in the case between Joshua and Tekla that the marriage is annulled and
that now you are single, is the judgment binding on anybody?
A: YES. Your status is single and whether you are a party in the case or not, you are bound by the
judgment because it is directed against the whole world. Your status is to be respected.
ILLUSTRATION #2: When a son, Carlo the Spokes, files a case against the father, Rod the Tenor (
most outstanding student of Pavarotti… ), to be considered a recognized child and the court said, “Yes,
you are declared a child of the defendant,” Rod the Tenor is now compelled to recognize you. Your status
as a recognized child is not only binding on your father but is binding on the whole world. Your status is
no longer unrecognized.
Take note, an action in rem and in personam have often been confused with the classification of real
and personal action. They sound almost the same. That an action in personam is also a personal action, or,
when an action is in rem it is also a real action – it is not true. That is a different classification. An action
could be as to cause – it could be real. As to object, it could be in personam. In the same manner, it could be
personal action but an action in rem. So, these are two different classification.
ILLUSTRATION: Eugenia files a case against Concon to recover the possession of a piece of land. It is
a REAL action. In real action, the subject is possession or ownership of real property. Any judgment
therein binds only the parties, and not the whole world. So, it is also an action IN PERSONAM. It is a real
action as to cause, but as to object, it is in personam.
ILLUSTRATION: Papa Paul filed a case to annul his marriage with his wife. It is a PERSONAL action
because it does not involved his property. It is about status. But it is also IN REM because the judgment
therein is binding the whole world.
So, magka-iba yan!!! As a matter of fact, it is not only students but even lawyers and judges
interchange one with the other. Last year, I was reading the SCRA, I cannot remember the decision where
before deciding, the SC gave a lecture: The trouble with this case, the basic error of the court is that it
confused real action with an action in rem and an action in personam with a personal action a real action
could be in personam and a personal action could be in rem. So do not be confused.
QUASI IN REM
Text writers gave a sort of third classification as to object. This is called action quasi in rem. “QUASI”
means almost. So, ‘quasi in rem’ is almost in rem. Actually, it is in personam but almost in rem.

2001 Edition
Q: Define action quasi in rem.

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

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

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

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

In a SPECIAL PROCEEDING, relief may be obtained by mere application or petition;
4.) The period to appeal in CIVIL ACTIONS is generally 15 days and the requirement is the
filing of a notice of appeal, whereas
In SPECIAL PROCEEDINGS the period to appeal is 30 days and aside from notice of appeal,
the law requires the filing of a record on appeal.
Of course the basic distinction is found in Section 3 – a civil action is one by which a party sues
another for the enforcement or protection of a right, or the prevention or redress of a wrong. Whereas, a
special proceeding is a remedy by which a party seeks to establish a status, a right, or a particular fact.
The object of a civil action is to enforce or protect a right or to prevent or redress a wrong. But the
object of a special proceeding is only to establish a status, a right or a particular fact.

2001 Edition
If a creditor sues the debtor to collect an unpaid loan, is that a civil action or a special proceeding?
That is a civil action because the creditor wants to enforce or protect his right to collect. The creditor is
compelling the debtor to pay. It is adversarial.
A good example of a special proceeding is a petition for ADOPTION. It is a special proceeding

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

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

A: A civil action is commenced by the filing of the original complaint in court . Of course this is not
really complete. The filing of the original complaint in court must be accompanied by the payment of the

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

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

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

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

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ETHEL CASE, ET AL vs. FERNANDO JUGO, ET AL

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

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

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

170 SCRA 367
HELD: “Procedural rules are not be belittled or dismissed simply because their non-
observance may have resulted in prejudice to a party's substantive rights, as in this case. Like
all rules, they are required to be followed except only when for the most persuasive of
reasons they may be relaxed to relaxed to relieve a litigant of an injustice not commensurate
with the degree of his thoughtlessness in not complying with the procedure prescribed.
While it is true that a litigation is not a game of technicalities, this does not mean that the
Rules of Court may be ignored at will and at random to the prejudice of the orderly
presentation and assessment of the issues and their just resolution.”
This reminds me of a lawyer who did not comply with the rules and he was arguing that the rules
should be liberally construed. And then the judge says: “There is a thin line between liberal construction
of the rules and gross ignorance of the rules!” Yaan! It is either you did not follow the rules strictly or
you do not really know the rules.

published by
SECOND YEAR: Jonalyn Adiong • Emily Aliño • Karen Allones • Joseph Apao •

2001 Edition
Melody Penelope Batu • Gemma Betonio • Rocky Cabarroguis • Charina Cabrera •

Marlon Cascuejo • Mike Castaños • Karen de Leon • Cherry Frondozo • Jude Fuentes • Maila
Ilao • Ilai Llena • Rocky Malaki • Jenny Namoc • Ines Papaya • Jennifer Ramos • Paisal Tanjili

ORDINARY CIVIL ACTIONS
Rule 02
CAUSE OF ACTION
SECTION 1. Ordinary civil actions, basis of. - Every ordinary civil

action must be based on a cause of action. (n)
Section 1 of Rule 1 is entitled cause of action. That is an entirely new title, which is not found in the
1964 Rules. Section 1 expresses the principle that every ordinary civil action must be based on a cause of
action. That is a new provision but it is a fundamental principle all along – you cannot have a case unless
you have a cause of action.
As a matter of fact under Rule 16, one of the grounds for a motion to dismiss is that your pleading
states no cause of action.
Sec. 2. Cause of action, defined. - A cause of action is the act or

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

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

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

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

2. a CORRELATIVE OBLIGATIONS of the defendants;
3. a VIOLATION of plaintiff’s right; and
4. DAMAGE suffered by the plaintiff.
Even if there is violation, if there is no damage, then what relief are you asking for? There can be no
action where no injury is sustained.

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

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

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

A: Right of action is the right of the plaintiff to bring an action and to prosecute that action to final
judgment. (Marquez vs. Varela, 92 Phil. 373)
Q: What are the ELEMENTS of a right of action?

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A: There are two (2) elements:
1.) the plaintiff must have a good cause of action; and

2.) the must have performed all conditions precedent to the filing of the action.
So, you cannot have a right of action unless you first have a cause of action. That is why the SC said
in the case of
DE GUZMAN, JR. vs. COURT OF APPEALS

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

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

1.) Cause of action is the delict or wrong committed by the defendant, whereas
Right of action refers to the right of the plaintiff to institute the action;
2.) Cause of action is created by substantive law (e.g. rights under the Civil Code), whereas
Right of action is regulated by procedural law;
“Right of action is a remedial right belonging to some persons, while cause of action
is a formal statement of the operative facts that give rise to such remedial right.” (De
Guzman vs. CA, supra)
3.) Right of action may be taken away by the running of statute of limitations, by estoppel or
other circumstances which do not affect at all the cause of action.
EXAMPLE: When a debtor borrows money and he does not pay. His failure to pay is the
cause of action. After 10 years, the right to collect has prescribed and you cannot recover
anything. Actually, what is barred is his right of action, not the cause of action because the
moment he does not pay, there is already a wrong and you cannot erase a wrong. The cause

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of action is not affected by prescription. In fact, the Civil Code provides that the obligation is
converted into natural obligation, which is based on equity rather than a right.
Because sometimes, you say that the action has prescribed. So you are invoking the law on
prescription. But what has prescribed? Is it the cause of action? No. The cause of action does not
prescribe. What has prescribed is the right of action. Yaan!
SPLITTING A CAUSE OF ACTION
Sec. 3. One suit for a single cause of action. - A party may not
institute more than one suit for a single cause of action. (3a)
Section 3 is known as the rule against splitting the cause of action.
Q: What is splitting a single cause of action?

A: Splitting a cause of action is the practice of dividing one cause of action into different parts and
making each part a subject of a different complaint. (Bachrach vs. Icariñgal, 68 Phil. 287)
That practice is expressly prohibited by law as expressed in Section 3, “A party may not institute more
than one suit for a single cause of action.” The rule is simple: If there is one cause of action, you file only one
case. You cannot file two, three or four cases arising out of one cause of action, otherwise you are splitting
it.
EXAMPLE: In a suit under a promissory note, you file a case to collect the principal; another action to
collect the interest; another action to collect attorney’s fees. So, there is only one note and you sue me
three times but there is only one cause of action. Now, under the law, you have split your cause of action.
You should file only one case to recover the principal and the interest as well as the attorney’s fees.
EXAMPLE: Damage (injury) suit: Carlo, while walking was bumped by a vehicle. He filed one case
against the owner of the vehicle for reimbursement of hospital expenses; one case to recover his expenses
for medicine; another one for doctor’s fees; then another case for the lost income. Practical by you have
filed four cases arising from one cause of action. Isang banggaan lang, naging apat ang kaso? Again, the
Carlo here has engaged in the prohibited practice of splitting cause of action. The correct procedure is
that he should file one action and demand the recovery of all these expenses and the lost income.
Sec. 4. Splitting a single cause of action; effect of. - If two or

more suits are instituted on the basis of the same cause of action, the
filing of one or a judgment upon the merits in any one is available as a
ground for the dismissal of the others. (4a)
Q: And what are the effects of splitting a cause of action?

A: Under Section 4, the following are the effects:
1.) The filing of one is available as a ground for the dismissal of other. That is what you call LITIS
PENDENTIA – there is another action pending between the same parties for the same cause.
This is one ground for dismissal of a case (Rule 16 – Motion to Dismiss, Section 1 [e])
So you file a case. And while it is pending, you file another case against the same party
with the same cause of action. Under Section 4, one of them is subject to dismissal.
2.) a judgment upon the merits in any one is available as a ground for the dismissal of the others.
That is what you call barred by prior judgment or RES ADJUDICATA, which is also a ground for
dismissal under Rule 16, Section 1 [f].
EXAMPLE: A case was already decided a long time ago. Now, you are reviving the same
case – you are filing again. Under Section 4, the judgment in the first case years ago would be
cited as a basis for the dismissal of the second case.
Q: What is the reason or philosophy for the rule against splitting a single cause of action?
A: The rule against splitting a cause of action is intended to prevent repeated litigations between the
same parties in regard to the same subject of controversy; to protect the defendant from unnecessary
vexation; and to avoid the costs incident to numerous suits. (Bachrach vs. Icariñgal, supra; Bacolod City
vs. San Miguel, Inc., L-25134, Oct. 30, 1969)

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Actually, the reason is common sense eh – to protect the defendant from unnecessary vexation. Why
create two cases when you have only one cause of action? And why make me spend more? Magasto yung
balik-balik sa court. It becomes an expensive process. And why should you harass somebody when he
only committed one wrong? You file a case against him but do not harass him more than once. Nemo debet
vis vesare procuna em iyadens cusa – “No man shall be twice vexed for one and the same cause.”
SINGLENESS OF A CAUSE OF ACTION
Q: How do you determine the singleness of a cause of action?

A: The singleness of a cause of action is determined by the singleness of the delict or wrong
committed by the defendant and not by the number of remedies that the law grants the injured party.
Meaning, a single delict may give rise to two or more possible remedies but it does not mean to say the
injured party can avail of all those remedies simultaneously or one after another. (Bachrach vs. Icariñgal,
supra; David vs. De la Cruz, L-11656, April 18, 1958)
EXAMPLE: Obligations and Contracts: A violation or a breach of contract could give rise to a civil
action for specific performance or a civil action for rescission of contract. However, it does not mean to
say that the injured party can file both or one after the other. Otherwise, he will be splitting his cause of
action.
EXAMPLE: There is the Recto Law (on Sales) on the remedies of an unpaid seller of personal
properties. I think the law grants three remedies – (1) rescind the contract of sale; (2) exact fulfillment of
obligation; and (3) foreclosure of mortgage. But even the law on Sales is very clear: the choice of one
automatically bars resort to the other because it will be against splitting the cause of action.
EXAMPLE: Credit Transactions: A bank has two (2) possible remedies against a debtor for non-
payment of a loan secured by a mortgaged say, piece of land: (1) foreclose the mortgage on the land; or
(2) file an action to collect the loan. Here, the bank cannot file a case the debtor to collect the loan and at
the same time file an action to foreclose the mortgage for it will be splitting the cause of action. So it is
either you enforce the principal contract of loan, or, you enforce the accessory contract of mortgage. This
is what happened in the case of
DANAO vs. COURT OF APPEALS

154 SCRA 446
FACTS: The Danao spouses borrowed money from the bank, mortgaged their property
and then they failed to pay. The bank filed a civil action to collect the loan. After filing a civil
action to collect the loan, the bank instituted an action to foreclose the mortgage.
HELD: “Anent real properties in particular, the Court has laid down the rule that a
mortgage creditor may institute against the mortgage debtor either a personal action for debt
or a real action to foreclose the mortgage. In other words, he may pursue either of the two
remedies, but not both.”
“Evidently, the prior recourse of the creditor bank in filing a civil action against the
Danao spouses and subsequently resorting to the complaint of foreclosure proceedings, are
not only a demonstration of the prohibited splitting up of a cause of action but also of the
resulting vexation and oppression to the debtor.”
So those are examples of splitting a cause of action and illustrations of the rule that one cause of
action may give rise to two or more remedies but it does not follow that you can avail of all those
remedies. One is enough, otherwise, you will be splitting again you cause of action.
RULES IN DETERMINING THE SINGLENESS OF A CAUSE OF

ACTION
Now, with respect to splitting a cause of action, you must familiarize yourselves on how this rule is
applied to breach of contract and if there are several stipulations. Sometimes it is easy to determine
whether there is one cause of action. Sometimes it is difficult. Sometimes you get confused, ‘ano ba ito?
Isa lang ba ito o more than one?’
RULE #1 (General Rule):

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A contract embraces only one cause of action because it may be

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

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

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

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

A: He is wrong. Isahin mo na lang yan. When all the installment are already due and the creditor has
not filed any case for the collection of the first installment, this time, when he files for collection of the
unpaid second installment, everything must be integrated. So there should only be one complaint for
P200,000 representing the first and second installments. If you do not file a claim for one, it is deemed
barred.
So for example, if you will wait for the entire note to mature, you cannot apply rule 2. You should
only file one action for P300,000 and you go back to the general rule.
RULE #4 (Exception to Rule #2):

However, when the failure to comply with one of several
stipulations in a continuing contract constitutes a total breach, a single
cause of action for damages, actual as well as prospective, arises from
such breach. (Blossom & Co. vs. Manila Gas Corp., 55 Phil. 226)
EXAMPLE: This year the first installment fell due. So the creditor demanded payment for the first
installment from the debtor which the latter denied,! The signature in the note is not mine!”
Now, in that kind of statement, he is not only repudiating the first installment. He is repudiating the
entire note. So under rule #4, the creditor can file a case for the entire loan of P300,000 because it has been
repudiated. If you only file only one for the P100,000 which fell due, then next year, file na naman, it will
be useless because he will still maintain the same position, “Wala akong utang sa iyo! Tigas ng ulo!” So

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you do not wait anymore for the 2nd and 3rd installments to fall due. You file only one case for the entire
breach. There is a total breach for a continuing obligation and there is now only one cause of action for
the entire promissory note
So theses are the basic principles of cause of action that I want you to remember.
JOINDER OF CAUSES OF ACTION
SEC. 5. Joinder of causes of action. - A party may in one pleading

assert, in the alternative or otherwise, as many causes of action as he
may have against an opposing party, subject to the following conditions:
x x x x x
A party may in one pleading assert, in the alternative or otherwise, as many causes of action as he may have
against an opposing party (opening paragraph of Section 5)
Q: What do you mean by joinder of causes of action?

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

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

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

Aileen is the importer of the goods that were shipped on board a carrier. Upon reaching Davao City, they were departed
with the arrastre or stevedoring operator. The goods were delivered to Aileen in a damaged condition, and then reklamo siya
sa arrastre or stevedoring. Then the arraster says, “Damaged na dati yan when it was unloaded from the carrier.” Then when
Aileen went to the carrier, Carrier: “No, the damage happened in their (arrastre’s) custody.”
Now, the Aileen here has two (2) possible causes of action: (1) an action against the
stevedoring operator under the contract of depositary under the law on Credit Transaction; Or,
(2) an action against the carrier under the Law on Transportation. So there are 2 possible causes
of action.

2001 Edition
Q: Can Aileen file a complaint incorporating the two (arrastre and the carrier) both as
defendants?
A: YES, that is allowed. This is alternative joinder because Aileen is not claiming from both of
them, but either one or the other. Aileen is not sure so she decided to file a case against both of
them. At least isa sa kanila matamaan man ba.
ALTERNATIVE joinder; Another Example:

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

Pches, who is forever on a diet, files a case to collect 3 unpaid promissory notes from the John “The Yellow Man”. Pches is
not claiming from either promissory notes but she is claiming all.
ANOTHER EXAMPLE: Roy “The Councilor,” an illegitimate child files a case against his
father for compulsory acknowledgment as illegitimate child and support. There are two causes of
action which are gained: an action for recognition and also for support. This is not alternative
actions but rather, these are cumulative. The child is asking for BOTH relief.
That is why the manner of joining the defendants alternatively or otherwise should be correlated
with Rule 3, Section 13 and Rule 8, Section 2:
RULE 3, SEC. 13. Alternative defendants. - Where the plaintiff is

uncertain against who of several persons he is entitled to relief, he may
join any or all of them as defendants in the alternative, although a
right to relief against one may be inconsistent with a right of relief
against the other. (13a)
RULE 8, SEC. 2. Alternative causes of action or defenses. - A party

may set forth two or more statements of a claim or defense alternatively
or hypothetically, either in one cause of action or defense or in
separate causes of action or defenses. When two or more statements are
made in the alternative and one of them if made independently would be
sufficient, the pleading is not made insufficient by the insufficiency of
one or more of the alternative statements. (2)
Q: When is joinder of causes of action allowed?

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

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

2001 Edition
A: YES because there is a common question of fact or law. They are riding on the same bus, meeting
the same accident, against the same operator. So there is a joinder of parties under Rule 3. And if the
joinder of parties under Rule 3 is proper, then their causes of action can also be joined under Rule 2
because the condition is: “shall comply with the rules on joinder of parties.”
Q: Suppose these passengers were riding on different buses owned by the one operator. They are on
different trips. One is going to Mati; one is going to General Santos; and one is going to Cotabato. All of
them met an accident. Well of course the same kind of case: damage suit, breach of contract against the
same operator. Now, can their causes of action be joined?
A: NO. They cannot be joined because there is no common question of fact or law. The defense of the
operator here is different from his defense there. Meaning, passenger A has nothing to do with the
complaint of passenger B because there is no common denominator between them. So if you cannot join
them under Rule 3, the joinder of causes of action under Rule 2 is also improper.
b.) The joinder shall not include special civil actions

or actions governed by special rules
So, a joinder shall not include special civil actions or actions governed by special rules. The reason
here is simple: Special Civil Actions are governed by certain rules which do not apply to ordinary civil
actions. So a special civil action cannot be joined with an ordinary civil action, or, an ordinary civil action
cannot be joined with an action governed by special rules such as Election cases, naturalization cases,
insolvency cases. In the 1983 case of
UNION GLASS AND CONTAINER CORP. vs. SEC

126 SCRA 31
FACTS: (This is still a good ruling) A stockholder of a corporation who is also the
creditor of the corporation decided to file one complaint against the corporation asserting
several causes of action, among them is his rights as a stockholder under the Corporation
Code and also his rights as a creditor under the Civil Code.
HELD: The joinder is improper. In the first place, one is governed by a quasi-judicial
body (SEC). So how can the RTC try a case when the cause of action is pertaining to the SEC
and it is governed by the special rules of the SEC? So you cannot join that.
c.) Where the causes of action are between the same parties but pertain to different venues or
jurisdictions, the joinder may be allowed in the Regional Trial Court provided one of the causes of action
falls within the jurisdiction of said court and the venue lies therein
PROBLEM: Maceste encroached on two parcels of land belonging to me. In one parcel of land, the
assessed value of that is only P20,000. In another parcel of land, the assessed vaue is P1 million. I would
like to file a case of action publiciana against him. Dalawa eh – there are 2 lands encroached. The first
accion publiciana is triable by the MTC (P20,000). The other accion publiciana is triable by the RTC.
Q: Can I join them?
A: YES, and it must be filed it in the RTC. The jurisdiction of the RTC will prevail.
PROBLEM: Maceste encroached on my land in Tagum with an assessed value of P20,000. And then
he encroached in another land of mine in Davao City with an assessed value of P1 million. You will
notice that in the Tagum land, the jurisdiction is in the MTC for the case accion publiciana and the venue
is Tagum because the property is situated there. In the other case, the jurisdiction is in the RTC and the
venue is Davao City.
Q: Can I file a case against Maceste joining the 2 cases?
A: YES.
Q: Where is now the governing venue?
A: The venue of the RTC case prevails. Therefore, the case must be filed in Davao City.
PROBLEM: Maceste encroached on my land in Tagum with an assessed value of P1 million. And then
he encroached in another land of mine in Davao City with an assessed value of P1 million also. You will
notice that in the Tagum land, the jurisdiction is RTC for the case accion publiciana. In the other case, the
jurisdiction is also in the RTC of Davao City. So both actions, RTC.
Q: In which RTC will you file the case joining the causes of action?
A: Either Tagum or Davao City because both are RTCs.
PROBLEM: Maceste encroached on my land in Tagum with an assessed value of P20,000. And then
he encroached in another land of mine in Davao City with an assessed value of P20,000 also. In the

2001 Edition
Tagum land, the jurisdiction is MTC for the case accion publiciana. In the other case, the jurisdiction is
also in the MTC. So both actions, MTC.
Q: Can I join in one complaint the 2 actions?
A: NO, because the law says provided one of the causes of action falls within the jurisdiction of said
court and the venue lies therein. One of them belongs to the RTC. In the example, both belong to the
MTC.
PROBLEM: Maceste encroached on my land more than one year ago and the land has an assessed
value of only P20,000. So if I will file an accion publiciana, it has to be filed with the MTC. On the other
hand, Aaron encroached my other parcel of land more than one year ago and the assessed value of the
land is P1 million. So my cause of action there is also accion publiciana but triable by the RTC. so I
decided to file a case naming both of them as defendants.
Q: Can they be joined under Section 5?
A: NO. The law allows only if it is between the same parties. This time the parties are not the same.
Plus the fact that you might violate paragraph [a] – there is no common question of fact and law between
them.
PROBLEM: Maceste encroached on my land in Davao City on month ago and then he encroached on
another land of mine (assessed value of P1 million) in Davao City two years ago. Therefore, one case is
forcible entry triable by the MTC and the latter is accion publiciana triable by the RTC.
Q: Can I join them under paragraph [c] although they belong to MTC and RTC?
A: NO, you cannot join them because of paragraph [b] – a forcible entry is special civil action which is
also governed by the Summary Procedure. You cannot join a special civil action. So what is violated here
is not paragraph [c] but paragraph [b].
d.) where the claims in all the causes of action are principally for recovery of money,
the aggregate amount claimed shall be the test of jurisdiction
The last is only a repetition of the old rule: TOTALITY RULE. There is nothing new here. So judiciary
law, totality rule, basta sums of money.
SEC. 6. Misjoinder of causes of action. - Misjoinder of causes of

action is not a ground for dismissal of an action. A misjoined cause of
action may, on motion of a party or on the initiative of the court, be
severed and proceeded with separately. (n)
There is misjoinder when two (2) or more causes of action where joined in one complaint when they
should no be joined.
EXAMPLE: A case joining an accion publiciana case and a forcible entry case which is not proper
because a special civil action (forcible entry) cannot be joined. In this case there is misjoinder of causes of
action.
Under Section 6, if there is misjoinder, you do not dismiss the case. The remedy is to ask the court
that the misjoined case be severed and tried separately. Now, ang counterpart nito which is still present is
misjoinder of parties under Rule 3, Section 11:
RULE 3, Sec. 11. Misjoinder and non-joinder of parties. - Neither

misjoinder nor non-joinder of parties ground for dismissal of an action.
Parties may be dropped or added by order of the court on motion of any
party or on its own initiative at any stage of the action and on such
terms as are just. A claim against a misjoined party may be severed and
proceeded with separately. (11a)
So misjoinder of parties and misjoinder of causes of action are not grounds for dismissal of an action.
Just remove the misjoined cause of action or the misjoined party.

published by

2001 Edition

Michael Pito • Rod Quiachon • Maya Quitain • Rina Sacdalan • Lyle Santos • Joshua Tan •
Thaddeus Tuburan • John Vera Cruz • Mortmort
Rule 03
PARTIES TO CIVIL ACTIONS
CLASSES OF PARTIES:
I. Real Parties in Interest

II. Representative Parties
III. Permissive Parties
IV. Indispensable Parties
V. Necessary Parties
Sec. 1. Who may be parties; plaintiff and defendant. - Only natural

or juridical persons, or entities authorized by law may be parties in a
civil action. The term "plaintiff" may refer to the claiming party, the
counter-claimant, the cross-claimant, or the third (fourth, etc.)-party
plaintiff. The term "defendant" may refer to the original defending
party, the defendant in a counterclaim, the cross-defendant, or other
third (fourth, etc.)-party defendant. (1a)
Q: Who may be parties to a civil case?

A: Only natural or juridical persons or entities authorized by law may be parties in a civil action. So,
you cannot sue or be sued unless you are a person. A dead man cannot sue and he cannot be sued
because he has no more personality.
That is why in one case, Brod Pito sued the firm name, “Paningkamot Store.” So, it is “Brod Pito vs.
Paningkamot Store.” The SC said, that is wrong. Paningkamot Store is not a person. PangaIan ng
tindahan iyan. The correct procedure is you sue the owner because he is the real person. But the defect is
not really substantial. It is only a formal defect that can easily be corrected.
“ENTITIES AUTHORIZED BY LAW”
Q: Give an example of an entity authorized by law which can be sued although it is not a person.
A: The best example is Section 15 of this rule.
Section 15. Entity without juridical personality as defendant.- When

two or more persons not organized as an entity with juridical personality
enter into u transaction, they may be sued under the name by which they
are generally or commonly known.
In the answer of such defendant the names and addresses of the
persons composing said entity must all be revealed.
Another example of an entity authorized by law which may not be a natural or juridical person is a
labor union under the Labor Code. It is an entity authorized by law to file a case in behalf of the of its
members. Although it may not have been incorporated under the Corporation Law but registered under
the Labor Code.

2001 Edition
Q: Who are the plaintiffs, defendants?

A: The term PLAINTIFF may refer to the claiming party, the original plaintiff, the counter-claimant,
the cross-claimant, the third (fourth, etc.)- party plaintiff. So, the word ‘plaintiff’ covers them.
The term DEFENDANT may refer to the original defending party, the defendant in a counterclaim,
the cross-defendant, or other third (fourth, etc.)-party defendant. These are explained in Rule 6, Sections
6, 8 & 11.
I. REAL PARTIES IN INTEREST
Sec 2. Parties in interest. - A real party in interest is the party

who stands to be benefited or injured by the judgment in the suit, or the
party entitled to the avails of the suit. Unless otherwise authorized by
law or these Rules, every action must be prosecuted or defended in the
name of the real party in interest. (2a)
Q: Who is a real party in interest?

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

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

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

88 Phil. 125 [Bar Problem]

2001 Edition
FACTS: Aiza Guadolope decided to go abroad but she has properties in the Philippines.
So she executed a special power of attorney in favor of Ken A. Sabayah: “You have the full
power to administer, to collect all my money; to withdraw my money in the bank; with full power to
sue these people who owe me; with the authority to hire a lawyer; and enter into a contract. Practically,
you are my alter ego.” And then Aiza went abroad.
Ken started to manage the property. One of the tenants failed to pay rentals. So in
accordance with the authority, he hired a lawyer. In preparation of the complaint, it was
stated that, “ Ken, plaintiff vs. Lewee Yoda, defendant.”
ISSUE: Is the action properly filed?
HELD: NO. The real property in interest is the principal, the owner of the property. Ken
is only an attorney-in-fact. An attorney-in-fact cannot use in his own name because he is not
the real party in interest. Ken is given the authority to sue, to manage, hire a lawyer but not
as the plaintiff because the real party in interest is Aiza. The complaint should be name as
“Aiza, plaintiff vs. Leewee Yoda, defendant.” Yaan!
Q: Suppose Ken, the lawyer will amend the complaint: “Ken, as attorney-in-fact of Aiza, plaintiff vs.
Leewee Yoda, defendant” is the complaint properly filed.
A: NO. This is even worse because Ken is admitting that he is only an attorney-in-fact. The more
reason na nahalata ka that he is not the real party in interest. If Ken wants to include the his name, it
should be: “Aiza, plaintiff, represented by Ken, his attorney-in-fact vs. Leewee Yoda, defendant.”
Q: Does the law require Aiza to come here to file the case?
A: NO. Take note that the law does not require the principal (A) to come back to file the case because,
the law does not say “every action must be prosecuted and defendant BY the real party in interest.”
Hindi naman sinabing “by” eh. So an attorney-in-fact can prosecute or defend a party but in the name of
the real party in interest. The real party in interest has submitted to the jurisdiction of the court by filing
the complaint through his lawyer.
II. REPRESENTATIVE PARTY
Sec. 3. Representatives as parties. - Where the action is allowed to

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

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

181 SCRA 9

2001 Edition
FACTS: Angel Maya wanted to sue Devil John who owe her a sum of money. The
problem is, she cannot locate John’s whereabouts. Also, Maya was not certain whether John
is dead or alive. So, to play it safe, what the Maya did was to file a case against the
“defendant and/or the estate of defendant.” Maya obtained a judgment against the
‘defendant and/or the estate of defendant.’
Later on when the judgment was enforced, it turned out that the John was already dead
(tsk! tsk!) but he has properties left behind. So, they started to take hold of their properties.
Now, the heirs of the John challenged the decision.
ISSUE: Whether or not there was a valid judgment against the ‘defendant/or the estate of
the defendant.”
HELD: The decision is void. “The decision of the lower court insofar as the deceased is
concerned, is void for lack of jurisdiction over his person. He was not, and he could not have
been validly served with summons. He had no more civil personality. His juridical
personality, that is fitness to be subject of legal relations, was lost through death (Arts. 37 and
42 Civil Code).”
“The same conclusion would still inevitably be reached notwithstanding joinder of B’s
estate as co-defendant. It is a well-settled rule that an estate can sue or be sued through an
executor or administrator in his representative capacity.”
So, the Court cited Section 3. In order to bind the estate, you should sue the executor or the
administrator of his estate. So, either way, the case cannot prosper.
The last sentence of Section 3:
An agent acting in his own name and for the benefit of an undisclosed
principal may sue or be sued without joining the principal except when
the contract involves things belonging to the principal.
The agent cannot sue because the principal is the real party in interest. But when an agent acts in his
own name and for the benefit of an undisclosed principal, he may sue and be sued, EXCEPT when the
contract involves things belonging to the principal. Under the exception, the principal has really to be
included. The agent cannot file a case where the principal will lose his property without being named as
part to the case.
Sec 4. Spouses as parties. - Husband and wife shall sue or be sued

jointly, except as provided by law. (4a)
Normally, the husband and the wife should sue and be sued together. Even if the wife borrowed
money alone and you want to sue the woman, still the husband should be included. Why? In the
property relationship between the husband and wife, they are governed by absolute community or
conjugal partnership. Whether you like it or not, the implication of the wife is also the implication of the
husband because of the property relationship.
In the same manner, if the wife wants to collect, even if the husband does not know anything about it,
the husband should still be named as party plaintiff, on the ground again that in the income that she can
get redounds to the benefit of the conjugal partnership.
And there were decided cases in the part where even if for example, a wife sues without the husband,
the defect is not fatal but merely format. The complaint should not be dismissed. All that is to be done is
to amend the complaint impleading the husband. (Cuyugan vs. Dizon, 76 Phil. 80)
Q: Give an exception to that general rule that husband and wife shall sue or be sued jointly.
A: The EXCEPTION is in case of Complete Separation of Property (Article 145, Family Code), and
under Article 111, Family Code:
Art. 111. A spouse of age may mortgage, alienate, encumber or

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

be incompetent, may sue or be sued, with the assistance of his father,
mother, guardian, or if he has none, a guardian ad litem. (5a)

2001 Edition
Section 5 is related to Section 3. The minor or incompetent person must be assisted by the parents and
considered as representative party. Incompetent persons includes insane people or mentally retarded
people. They are supposed to be under the custody of other persons, the guardians. If no guardian, the
court has to appoint a guardian called the guardian ad litem.
III. PERMISSIVE PARTY
Sec 6. Permissive joinder of parties. - All persons in whom or

against any right to relief in respect to or arising out of the same
transaction or series of transactions is alleged to exist, whether
jointly, severally, or in the alternative, may, except as otherwise
provided in these Rules, join as plaintiffs or be joined as defendants in
one complaint, where any question of law or fact common to all such
plaintiffs or to all such defendants may arise in the action; but the
court may make such orders as may be just to prevent any plaintiff or
defendant from being embarrassed or put to expense in connection with any
proceedings in which he may have no interest. (6)
Section 6 is known as permissive joinder of parties. This is related to Section 5 [a] of Rule 2 on joinder
of causes of action because when there is proper joinder of parties, necessarily there is also automatic
joinder of causes of action. But there could be joinder of causes of action without joinder of parties.
Q: May two or more persons join in one complaint as plaintiffs? Or can two or more persons be
joined together as defendants?
A: YES, under two conditions, to wit:
1.) There is a right to relief in favor of or against or against the parties joined in respect to or
arising out of the same transaction or series of transactions; and
2.) There is a question of law or fact common to the parties joined in the action.
PROBLEM: Suppose some passengers riding a particular common carrier are injured because of an
accident. All of them want to sue the operator of the carrier for damages arising out of the breach of
contract of carriage. Under the Law on Transportation, it possible for each passenger to file his own case
because our causes of action are different from each other. But can they be joined together in one
complaint against the common carrier?
A: YES because there is a common question of law or fact in the causes of actions of the injured
passengers: the evidence is identical; the issues whether the carrier is at fault are the came; the witnesses
for both parties will be the same; the report will be the same; the defense of the operator against one party
will be the same defense as against the other passenger. So, since there is a common denominator on
their causes of action, they can be joined.
It would be different if the passengers were riding on different buses belonging to the same company,
and all of them met an accident. What happened to Passenger No. 1 does not concern Passenger No. 2.
The evidence will not be the same. So, there is no common denominator – no common question of fact.
Therefore, they cannot be joined.
PROBLEM: Suppose a story appeared in the Inquirer where 5 people were called as jueteng kings.
They were allegedly involved in jueteng – these are the jueteng kings: Ken, Kenneth, Francis, Thad and
Sheriff. Now, the five of them want to sue the Inquirer for damages arising from libel. Is it possible for the
five (5) people named in the article to file only one complaint against the editor and publisher of the
Inquirer?
A: YES because it is of the same story. Their names appeared in the same story. It is not a different
issue. So there is a common question of act law in their cause of action.
PROBLEM: Myra, while driving a car, bumped another vehicle, injuring the driver and causing
injury to other passengers. So, there are three offended parties : the owner of the vehicle, the driver of the
vehicle , and the passenger. There are three(3) causes of action. Can they join in one complaint against
Myra, the owner of the car which bumped them?
A: YES because there is a common question of fact and law. There is only one accident.
Q: But suppose the three of them will file 3 separate cases against Myra, puwede?
A: Puwede, because permissive joinder of parties is not mandatory. Kaya nga ‘permissive’ eh! It is
not mandatory but optional although the law encourages permissive joinder of parities.
Q: Why does the law encourage joinder of parties?

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

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

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

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

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

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

interest without whom no final determination can be had of an action
shall be joined either as plaintiffs or defendants. (7)
Sec. 8. Necessary party. A necessary party is one who is not

indispensable but who ought to be joined as a party if complete relief is
to be accorded as to those already parties, or for a complete
determination or settlement of the claim subject of the action. (8a)
Take note that under the Old Rules, Section 8, the party there was called ‘proper party.’ Now they
change the word from ‘proper party’ to ‘necessary party.’ This readopts the old name under the 1940
Rules. Under the old rules, the parties were either indispensable or necessary. Then under the 1964 Rule,
it was changed from ‘necessary’ to ‘proper.’ Now, under the new rule, back to its old name: ‘necessary
party.’
Q: Distinguish indispensable from necessary party.

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

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Q: Give examples of indispensable party.

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

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

any pleading in which a claim is asserted a necessary party is not
joined, the pleader shall set forth his name, if known, and shall state
why he is omitted. Should the court find the reason for the omission
unmeritorious, it may order the inclusion of the omitted necessary party
if jurisdiction over his person may be obtained.

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The failure to comply with the order for his inclusion, without
justifiable cause, shall be deemed a waiver of the claim against such
party.
The non-inclusion of a necessary party does not prevent the court
from proceeding in the action, and the judgment rendered therein shall be
without prejudice to the rights of such necessary party. (8a, 9a)
If you do not implead a necessary party, you must give an explanation why did you not implead him.
The law requires as much as possible that all parties be impleaded to avoid multiplicity of suits.
EXAMPLE: Tato “The Hunk” files a case against Andre “The Hippie”, a surety, without including Sheriff
“The Punk” as the debtor. In the complaint of Tato, he shall explain why he is not including Sheriff.
Assuming that a necessary party cannot be impleaded, his non-inclusion does not prevent the court
from proceeding with the action. The judgment rendered shall be without prejudice to the rights of such
necessary party.
However, if the court finds no valid reason for not impleading a party, the court may order the
inclusion of the necessary party under Section 9. And take note that under the new rules, the failure to
comply with the order of inclusion without justifiable cause shall be deemed a waiver of the claim against
such (necessary) party.
EXAMPLE: If Tato, without justifiable cause, refuses to include Sheriff despite the order of the court,
and later on, Andre cannot also pay Tato, there is no way now for Tato to go against Sheriff anymore
because he (Tato) failed to comply with the order of inclusion without justifiable cause.
Sec. 10. Unwilling co-plaintiff. If the consent of any party who

should be joined as plaintiff can not be obtained, he may be made a
defendant and the reason therefor shall be stated in the complaint. (10)
This is particularly true with INDISPENSABLE parties – the case cannot proceed without you.
EXAMPLE : There are 4 brothers and 1 sister. They have to file a case against somebody to recover
property which they believe was owned by their parents. Then, brother 4 say to sister 1, “Let us file a
case.” But sabi ni sister 1, “Pilitin mo muna ako.” Then she says, “Ayoko nga, hindi mo ako pinilit eh!”
Meaning, all of them will suffer because ayaw ni sister 1 mag-file ng kaso.
Q: Now, what is the remedy of the 4 brothers?

A: Under Section 10, include the one who refused as one of the defendants. If there is unwilling
plaintiff, name him as defendant whether he likes it or not.
MISJOINDER AND NON-JOINDER OF PARTIES
Sec. 11. Misjoinder and non-joinder of parties. Neither misjoinder

nor non-joinder of parties is ground for dismissal of an action. Parties
may be dropped or added by order of the court on motion of any party or
on its own initiative at any stage of the action and on such terms as are
just. Any claim against a misjoined party may be severed and proceeded
with separately. (11a)
This is similar to Section 6 of Rule 2 – misjoinder of causes of action is not a ground for dismissal of
an action. Misjoinder or non-joinder at parties is not a ground for a motion to dismiss because at any
stage of the case, the court can order a misjoined party to be removed or a party not joined to be included.
Q: Do you know what ‘MISJOINDER of parties’ mean?

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

A: The remedy is to order the removal of the party who is misjoined, or to order the inclusion of the
party who should be joined. And that is not a defect which should cause the dismissal of the case

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

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

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

A: Under Section 12, the following are the conditions of a valid class suit:
1. The subject matter of the controversy is one of common or general interest to many persons
(such as the funds of the association in the case of POLISTICO); and
2. The parties are so numerous that it is impracticable to bring them all before the court.
In which case a number of them which the court finds to be sufficient and numerous and
representative as to fully protect the interests of all concerned may sue or defend for the benefit of all.

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Example is a taxpayer’s suit – filed in behalf of all the taxpayers in the Philippines. And there is no
specific number of persons that is provided by law.
Now, we will go to some interesting cases on class suit decided by the Supreme Court:
SULO NG BAYAN vs. ARANETA, INC.

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

May 19, 1989
RE: Doña Paz Tragedy – iyong lumubog na barko owned by Sulpicio Lines.
FACTS: There we so many relatives who filed a case against Sulpicio Lines and there was
an attempt to file a class suit in behalf of everyone who were drowned including those who
were not identified.
HELD: That cannot be. The survivors have no interest in the death of other passengers.
The interest in this case is individual. What would have been proper is permissive joinder of
parties because of common question of tact or law, but not class suit.
OPOSA vs. FACTORAN

224 SCRA 12 [1993]
FACTS: Oposa et al were all minors. Some were small boys duly represented by their
parents. They filed a case against then DENR Secretary Factoran. The prayer in the case is to
order the DENR to cancel all existing Timber License Agreements (TLA’s), to cease and desist
from proceeding, accepting, processing, renewing all accruing new TLA’s. So, in effect, it
prays for a total log ban in the country to preserve the remaining forest all over the
Philippines.
These young boys sue with their parents. They are suing in their behalf, in behalf of the
other citizens who are of their age because they stand to suffer if the environment will be
deteriorated. They say that they are entitled to the full benefit, use and enjoyment of the
natural resources of our country’s rich tropical rainforests. They say, the case was tiled for

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themselves and others for the preservation of our rainforest and we are so numerous that it is
impracticable to bring all plaintiffs to court. They say that they represent their generations
and generations yet unborn.
HELD: The civil case is indeed a class suit. The case however has a special and novel
element. The personality of the minors to sue for the succeeding generations is based on the
concept of inter-generational responsibility insofar as a balanced and healthful ecology is
concerned. Every generation has a responsibility to preserve the ecology. The minors’ right to
a sound environment constitute at the same time the performance of the obligation to ensure
the protection of the rights or the generations to come.
Q: In case of doubt, should a class suit be allowed?

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

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

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

257 SCRA 186 [May 31, 1996]
FACTS: A labor union filed a case against the employer in behalf of hundreds of
employees. Is this a representative suit or a class suit?
HELD: “What makes the situation a proper case for a class suit is the circumstance that
there is only one right or cause of action pertaining or belonging in common to many
persons, not separately or severally to distinct individuals. The object of the suit is to obtain
relief for or against numerous persons as a group or as an integral entity, and not as separate,
distinct individuals whose rights or liabilities are separate from and independent of those
affecting the others.”
In a representative suit, there are different causes of action pertaining different persons.
“In the present case, there are multiple rights or causes of action pertaining separately to
several, distinct employees who are members of respondent Union. Therefore, the applicable
rule is that provided in Rule 3 on Representative Parties. Nonetheless, as provided for in the
Labor Code, a legitimate labor organization has the right to sue and be sued in its registered
name. This authorizes a union to file a representative suit for the benefit of its members in the
interest of avoiding an otherwise cumbersome procedure of joining all union members in the
complaint, even if they number by the hundreds.” For convenience, the Labor Code allows a
union to file a representative suit.
It is important to note the following:

1. CLASS SUIT
2. REPRESENTATIVE SUIT
3. DERIVATIVE SUIT – only peculiar to the corporation law where the minority files a suit in
behalf of the entire corporation because intra-corporate remedy is useless.
ALTERNATIVE DEFENDANTS

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Sec. 13. Alternative defendants. Where the plaintiff is uncertain

against who of several persons he is entitled to relief, he may join any
or all of them as defendants in the alternative, although a right to
relief against one may be inconsistent with a right of relief against the
other. (13a)
Alternative defendants is also related to alternative causes of action – even if your right against one is
inconsistent with your right to relief against the other party, you may file a suit against the alternative
defendant. (c.f. Rule 2, Section 5 – Joinder of Causes of Action)
You filed a case against the operators of two vehicles. In effect, your cause of action is either culpa
aquiliana or culpa contractual. Is that not inconsistent? The law says, “although a right to relief against
one may be inconsistent with a right against the other.” In other words, even if the two causes of action is
inconsistent with each other, it is allowed.
As a matter of fact, this is the best policy because the plaintiff is a sure winner. The only question is,
who among the two will be held liable.
Although the law is silent, if there is such a thing as “alternative defendants,” there is no reason why
the grounds for “alternative plaintiffs” should not be allowed.
Q: (Taken from Remedial Law Reviewer by Nuevas) May plaintiff join in the alternative?
A: YES, plaintiffs may join in the alternative under the same principle as alternative joinder of
defendants. When several persons are uncertain as to who among them is entitled to relief from a certain
defendant, they may join as plaintiffs in the alternative. This is also sanctioned by the rule on permissive
joinder of parties (Pajota vs. Jante, L-6014, Feb. 8, 1955). Thus, the principal and his agent may join as
plaintiffs in the alternative against a defendant. If the agency is proved, the relief is awarded to the
principal. If not, award is then made to the agent.
Sec. 14. Unknown identity or name of defendant. Whenever the identity

or name of a defendant is unknown, he may be sued as the unknown owner,
heir, devisee, or by such other designation as the case may require; when
his identity or true name is discovered, the pleading must be amended
accord. (14)
Q: Can you sue somebody who is unknown?

A: YES, under Section 14.
BAR PROBLEM: While Leyva “The Rapper” was walking on the street. He was bumped by a car, say
a Toyota Altis, 2001 model, color blue. Now, so far, he could not determine who is the owner. If you are
the lawyer of the Leyva, how would you sue the defendant?
A: Under Section, I will sue the owner of that car as an unknown defendant. I can place in my
complaint, “Leyva ‘the rapper’, plaintiff, vs. the registered owner of Honda motor vehicle with plate
number so and so.” And later if you discover the true identity of the owner, we can amend the complaint
to place the name of the defendant.
Section 14 is similar with Rule 110 in Criminal Procedure – a case may be filed against an unknown
accused.
RULE 110, SEC. 7. Name of the accused. – The complaint or information

must state the name and surname of the accused or any appellation or
nickname by which he has been or is known. If his name cannot be
ascertained, he must be described under a fictitious name with a
statement that his true name is unknown.
If the true name of the accused is thereafter disclosed by him or
appears in some other manner to the court, such true name shall be
inserted in the complaint or information and record. (7a)
ENTITY WITHOUT JURIDICAL PERSONALITY AS DEFENDANT
Sec. 15. Entity without juridical personality as defendant. When two

or more persons not organized as an entity with juridical personality
enter into a transaction, they may be sued under the name by which they
are generally or commonly known.
In the answer of such defendant, the names and addresses of the
persons composing said entity must all be revealed.
Rule 1, Section 1 provides that only natural of juridical persons may be sued.

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Entity without juridical personality as defendant. Under the old law, this was known as suing two or
more persons involved in a business under a common name. When two or more persons transact in a
business under a common name, they may be sued under their common name.
Q: Who are really the defendants here? A: The persons involved.
Now, it is worded in this manner: “When two or more persons not organized as an entity with
juridical personality,” instead of a ‘common name.’ You cannot sue the entity because it has no juridical
personality. But you do not also know the members of that entity, so the law allows you to file a case
against the entity.
Under the second paragraph of Section 15, when the defendants file an answer, they must file under
their names as they are really the real parties in interest. When the lawyer answers the complaint, he is
duty-bound to provide the names of all the defendants.
Q: How do you summon this kind of defendant?

A: Rule 14, Section 8:
RULE 14, Sec. 8. Service upon entity without juridical personality.

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

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

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

2. Entity without juridical personality (Section 15, Rule 3);
3. Any co-owners may bring an action for ejectment (Article 487, New Civil Code)
EFFECT OF DEATH OF A PARTY
Sec. 16. Death of party; duty of counsel. Whenever a party to a

pending action dies, and the claim is not thereby extinguished, it shall
be the duty of his counsel to inform the court within thirty (30) days
after such death of the fact thereof, and to give the name and address of
his legal representative or representatives. Failure of counsel to comply
with this duty shall be a ground for disciplinary action.
The heirs of the deceased may be allowed to be substituted for the
deceased, without requiring the appointment of an executor or
administrator and the court may appoint a guardian ad litem for the minor
heirs.
The court shall forthwith order said legal representative or
representatives to appear and be substituted within a period of thirty
(30) days from notice.
If no legal representative is named by the counsel for the deceased
party, or if the one so named shall fail to appear within the specified
period, the court may order the opposing party, within a specified time,
to procure the appointment of an executor or administrator for the estate
of the deceased and the latter shall immediately appear for and on behalf
of the deceased. The court charges in procuring such appointment, if
defrayed by the opposing party, may be recovered as costs. (16, 17a)
First of all, there are cases when a party to a pending action dies and the claim is not thereby
extinguished (this is what they called an action which survives as we will explain later) and there are
certain actions where if a party dies, the claim is automatically extinguished. Meaning, the death of a

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party causes death of the action. But these are very few. Majority of cases when the party dies, the case or
the cause of action continues.
It is the duty of the lawyer of the deceased to inform the court within 30 days after the death of the
party thereof. He must inform the court and give the name and address of his legal representative/s (e.g.
administrator of executor of the estate)
Well of course, under the rule in legal ethics, the lawyer-client relationship is automatically
terminated by the death of the client because the lawyer-client relationship is personal. But procedurally,
you must tell the court and you must give the name of the legal representative. The latter may re-hire the
lawyer but under a new contract.
The purpose there is for substitution so that the legal representative will be ordered substituted. And
there is a new provision under the new rules. That is, failure of the counsel to comply with his duty shall
be a ground for disciplinary action. That is not found in the prior rule. So, the lawyer can be subjected to
disciplinary action.
So the provision continues, “the heirs of the deceased may be allowed to be substituted for the
deceased without requiring the appointment of an executor or administrator. And the court may appoint
a guardian ad litem for the minor heirs.
So, other than the legal representative, before anything else, the representative refers to the executor
or administrator, and the other alternative will be the heirs, such as the surviving children, wife or
spouse.
Although there was a case decided by the SC way back in 1986 in the case of
LAWAS vs. COURT OF APPEALS

146 SCRA 173
HELD: “The priority of substitution would be the executor or administrator not the heirs.
The heirs would only be allowed to be substituted if there is an (1) unreasonable delay in the
appointment of administrator or executor, or (2) when the heirs resort to extrajudicial
partition. But outside of those two reason, the law always gives priority to the administrator
or executor.”
Under the rule, priority is given co the legal representative of the deceased. That is, the executor or
the administrator of his estate. Many courts do not enforce it strictly. Normally, patay na, “O! Ito ang
heirs o!” “OK! Substitute!” Actually, that is wrong based on LAWAS case. The priority is given to the
administrator or executor. It is only when there is unreasonable delay in the appointment, or when the
heirs resort to extrajudicial partition because there is no more administrator or executor in extrajudicial
settlement.
VDA. DE SALAZAR vs. COURT OF APPEALS
250 SCRA 303 [November 23, 1995]
FACTS: This is an ejectment. case. The defendant died while the case is going on. What is
the procedure? There should be substitution. But there was no substitution in the case for ten
years, until it was decided. The court was not informed of the death of the defendant. Until
finally, there was a decision.
ISSUE: When there is failure to effectuate the substitution of heirs before the rendition of
judgment, is the judgment jurisdictionally detective? Because here, the case continued eh, in
which somebody is already dead.
HELD: NO, “the judgment is valid where the heirs themselves appeared before the trial
court and participated in the proceedings. Therein, they presented evidence in defense of the
deceased defendant. It is undeniably evident that the heirs themselves sought their day in
court and exercised their right to due process.”
In other words, when there was a defect the heirs however cannot used that because they themselves
appeared and continued the case. So, in effect, there was estoppel.
EFFECT OF DEATH OF A PARTY ON MONEY CLAIMS
Now, one of the radical changes again introduced by the new rules is the effect of the death of the
defendant in a money claim – action to collect a sum of money.

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Sec. 20. Action on contractual money claims. When the action is for
recovery of money arising from contract, express or implied, and the
defendant dies before entry of final judgment in the court in which the
action was pending at the time of such death, it shall not be dismissed
but shall instead be allowed to continue until entry of final judgment. A
favorable judgment obtained by the plaintiff therein shall be enforced in
the manner especially provided in these Rules for prosecuting claims
against the estate of a deceased person. (21a)
The best example here is an action to collect an unpaid loan. And while the case is pending the
defendant died. What will happen to the case? The law says: If the defendant dies before the entry of the
final judgment in the court at the time of death, it shall not be dismissed but it shall instead be allowed to
continue until entry of final judgment.
Under the OLD RULES, the case shall be dismissed. So, the civil case is not suspended but it will be
dismissed. Eh, paano 'yung utang? Now, you file a case against the estate of the deceased under the Rules
on Special Proceedings. But definitely the civil case hindi na matuloy . . . patay na iyon when the
defendant dies.
Now, under the NEW RULE, the case will not be dismissed but rather, the case will now continue
until entry of final judgment. That is a radical change of procedure! So case will not be dismissed. It shall
be allowed to continue until entry of final judgement. Meaning, until it becomes final and executory.
Q: But of course, if the judgment is favorable to you (the plaintiff), can you move to execute? Can you
move to execute the decision against or buy the property of the defendant?
A: NO, because the law provides, “xxx a favorable judgment obtained by the plaintiff therein shall be
enforced in the manner specially provided in these Rules for prosecuting claims against the estate of a
deceased person.”
Q: And what is that procedure?

A: YOU FILE A CLAIM against the estate under Section 5, Rule 86 of the Rules of Court, but there
will be no execution.
[Note: SEE OUTLINE AT THE LAST PART OF THIS RULE.]
Q: We are talking of death of a party in a pending civil action. While there is a case and a party dies,
what will happen to the case?
A: I will distinguish – Anong klaseng kaso iyar. Is that an ACTION WHICH DOES NOT SURVIVE or
an ACTION WHICH SURVIVES?
1.) ACTION WHICH DOES NOT SURVIVE

An action which does not survive is an action which is abated upon the death of a party. The case
cannot go on once a party dies. And normally, that refers to actions which are purely personal in
character like an action for annulment of marriages, an action for declaration of the nullity of
marriage or, an action for legal separation, or an action for support. These are the cases arising from
the Family Code.
Example: The husband files a case against the wife for annulment of marriage or
legal separation. One of them dies. Wala nang substitution, TAPOS NA! When one of the
parties dies, the marriage is dissolved. There is nothing to annul because the marriage is
already dissolved. So, these are the actions which are purely personal .
Q: So, what is the effect of the death of the party in actions which does not survived?
A: The case is dismissed!
However, these cases are very few. Majority of the cases are damage suit, recovery of possession, recovery of land,
recovery of unpaid loans, etc. So, these are what you call actions which survive. Meaning , if a party dies, you cannot say that
the case is terminated upon the death of the party. So, ano ang mga kaso na iyan?
2.) ACTIONS WHICH SURVIVE – Is it a contractual money claim or non-contractual claim? If it is a

contractual claim, who died – is it the plaintiff or is it the defendant? If the defendant is the one
who died, when did he die?
2a.) Actions which survive; CONTRACTUAL MONEY CLAIMS:
2a1.) If it is the plaintiff who dies, the case will continue. The heirs or legal representatives will proceed. So, there is
substitution.

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2a2.) If it is the defendant who dies, the question is: KAILAN NAMATAY? Before entry of
final judgment or after entry? This is where Section 20 will come in.
2a2a.) If the defendant died before entry of final judgment, you apply Section 20 of Rule
3. Meaning, the case shall not be dismissed but shall be allowed to continue until entry of
final judgment. And the favorable judgment obtained by the plaintiff therein shall be
enforced in the manner especially provided in these Rules for prosecuting claims against the
estate of a deceased person, and that is Section 5 of Rule 86.
2a2b.) If the defendant died after the entry of the final judgment but before execution
(after the judgment became final but before there could be levy or execution) you cannot
move to execute. Again, you apply Section 5 of Rule 86 which is the governing rule – you file
your judgment as a claim against the estate of the deceased defendant. [Section 5, Rule
86 - Please refer to your codals.] The purpose there is, so that the creditor will share with the
other creditors pro-rata in the distribution of the estate.
2a2c) If the defendant died after levy or execution but before the auction sale – meaning,
the property was already levied by the sheriff bago pa namatay – we will now apply Section
7[c] of Rule 39:
Rule 39, Sec. 7. Execution in case of death of party. In case of

the death of party, execution may issue or be enforced in the
following manner:
x x x x x x
(c) In case of the death of the judgment obligor, after execution
is actually levied upon any of his property, the same may be sold for
the satisfaction of the judgment obligation, and the officer making
the sale shall account to the corresponding executor or administrator
for any surplus in his hands. (7a)
Meaning, after the levy, namatay, auction sale proceeds as scheduled. And if there is an
excess, the excess shall be delivered to the administrator of executor.
2b.) Actions which survive; NON-CONTRACTUAL MONEY CLAIMS:

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

obviously, there is substitution of parties. So, what are these non-contractual money
claims which survive? These are those mentioned in Section 7 of Rule 86 and Section 1 of
Rule 87. That is in the study of Special Proceedings on settlement of the estate of a
deceased person.
So, that is the outline in the light of the amendments of the Rules of Court. [PLEASE REFER TO THE
OUTLINE HEREIN ATTACHED.]
Note: What Section 20 says is that: before the case can be decided and the defendant dies (in actions
involving money claims) the case shall not be dismissed but shall instead be allowed to continue until
entry of final judgment. BUT CONTINUE AGAINST WHOM? Against the deceased? Now, to my mind,
you correlate this with Section 16 --- there should still be substitution.
But assuming, there was no substitution and the heirs fought in the case; there is waiver because the
defect is procedural. Just like what happened in the case of VDA. DE SALAZAR. Actually, what Section
20 emphasized is that, the action shall not be dismissed but shall continue – to emphasize that it is now
different compared with the prior RULE. But obviously, there will always be a substitution
Sec. 17. Death or separation of a party who is a public officer. When

a public officer is a party in an action in his official capacity and
during its pendency dies, resigns, or otherwise ceases to hold office,
the action may be continued and maintained by or against his successor
if, within thirty (30) days after the successor takes office or such time
as may be granted by the court, it is satisfactorily shown to the court
by any party that there is a substantial need for continuing or
maintaining it and that the successor adopts or continues or threatens to
adopt or continue the action of his predecessor. Before a substitution is
made, the party or officer to be affected, unless expressly assenting

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thereto, shall be given reasonable notice of the application therefor and

accorded an opportunity to be heard. (18a)
This applies only when the public officer is party to an action in his official capacity. If he (1) dies; (2)
resigns; or (3) cease to hold office, there will be a succession.
Q: What will happen to the case?

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

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

or incapacitated, the court, upon motion with notice, may allow the
action to be continued by or against the incompetent or incapacitated
person assisted by his legal guardian or guardian ad litem. (19a)
EXAMPLE: Francis files a case against Kenneth. While the case is pending, Kenneth becomes insane.
(tsk! tsk!) The case will continue but Kenneth has to be assisted by his guardian ad litem Thad.
This is related to Rule 3, Section 3 on representative party but in Section 3, Kenneth was already
insane before the case is filed. [inborn na yan eh!]
Sec. 19. Transfer of interest. In case of any transfer of interest,

the action may be continued by or against the original party, unless the
court upon motion directs the person to whom the interest is transferred
to be substituted in the action or joined with the original party. (20)
EXAMPLE: Rudolpho files a case against Leweh to recover a piece of land. While the case is pending,
Leweh sold the land to Erec. Erec now assumes the risk and takes the property subject to the outcome of
the case.
Q: Can the case continue against Leweh?
A: YES.
1.) If Leweh loses and cannot pay, Erec is subsidiary liable;
2.) Leweh can be removed and Erec will be substituted; or
3.) Leweh can stay and Erec will be added.
In all 3 cases, Erec will be bound by the judgment.
Sec. 21. Indigent party. A party may be authorized to litigate his

action, claim or defense as an indigent if the court, upon an ex parte
application and hearing, is satisfied that the party is one who has no
money or property sufficient and available for food, shelter and basic
necessities for himself and his family.
Such authority shall include an exemption from payment of docket and
other lawful fees, and of transcripts of stenographic notes which the
court may order to be furnished him. The amount of the docket and other
lawful fees which the indigent was exempted from paying shall be a lien
on any judgment rendered in the case favorable to the indigent, unless
the court otherwise provides.
Any adverse party may contest the grant of such authority at any time
before judgment is rendered by the trial court. If the court should
determine after hearing that the party declared as an indigent is in fact
a person with sufficient income or property, the proper docket and other
lawful fees shall be assessed and collected by the clerk of court. If
payment is not made within the time fixed by the court, execution shall
issue for the payment thereof, without prejudice to such other sanctions
as the court may impose. (22a)
In criminal cases, the court assigns a counsel de officio. Under the Constitution on Bill of Rights, no
person shall be denied access to courts by reason of poverty.
In civil cases, a plaintiff need not pay docket fee if he is an indigent if he files an application (ex-party
application) to allow him to litigate as an indigent litigant. But if the indigent wins, he has to pay the fees
– file now, pay later) – the amount shall be a lien on any favorable judgment.

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The third paragraph is new. The other party may contest the claim of the indigent if he is really an
indigent or not.
Sec. 22. Notice to the Solicitor General. In any action involving the
validity of any treaty, law, ordinance, executive order, presidential
decree, rules or regulations, the court, in its discretion, may require
the appearance of the Solicitor General who may be heard in person or
through a representative duly designated by him. (23a)
EXAMPLE: Inday (the love-is-blind club president) files a case against Kenneth Bruce Lim for
declaration of nullity on the ground of psychological incapacity. Kenneth alleges that Article 38 of the
Family Code is unconstitutional. So the court will rule on the validity of the law in which case, the
Solicitor General has to be involved in the case to defend the validity of the law.
REASON: The Solicitor General is the legal counsel of the Republic of the Philippines whose duty is
to defend all the official acts of the Government.

published by

Rule 4
VENUE OF ACTIONS
Q: Define venue.
A: VENUE is the place where the action must be instituted and tried. (Ballentine’s Law Dict., 2nd Ed.,
p. 1132)
EXAMPLE: The venue of the action is in Davao, or the venue of the action is in Manila. If you file the
action in other places, that is improper or wrong venue. In criminal cases, that is called territorial

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jurisdiction – the place where the crime was committed. But in civil cases, venue is not the same with
jurisdiction. We do not call it territorial jurisdiction. We call it venue.
This is where it is important to determine whether the action is real or personal for the purpose of
venue. The venue of real action is stated in Section 1 and the venue for personal action is stated in section
2.
VENUE OF REAL ACTIONS
Section 1. Venue of real actions. Actions affecting title to or

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

A: It is because proper court will now be the MTC or the RTC, depending on the assessed value of the
property. If the assessed value is P20,000 or less, MTC yan. If it is over P20,000, it should be in the RTC.
Now in the case of forcible entry and unlawful detainer, paragraph 2 will apply – that is, MTC – it is
in the municipality or city wherein the real property involved or a portion thereof is situated. So, kung
saan iyong real property, doon din ang venue. Now, it is possible that for a property be in the boundary
of two towns. Example: one half is part of Davao City and the other half is in the municipality of Panabo.
So, if you would like to file a case for forcible entry against somebody, you have two choices. You can file
it in the MTC of Panabo or in the MTC of Davao City.
Now, let’s go to personal actions.
VENUE OF REAL ACTIONS
Sec. 2. Venue of personal actions. All other actions may be commenced

and tried where the plaintiff or any of the principal plaintiffs resides,
or where the defendant or any of the principal defendants resides, or in
the case of a non-resident defendant where he may be found, at the
election of the plaintiff. (2[b]a)
Iyan ang tinatawag natin na TRANSITORY ACTION . The venue will now depend on the residence
of the parties. In the civil action, the venue is (1) the place where the plaintiff resides or (2) where the
defendant resides, at the election of the plaintiff. So, puwede kang pumili sa dalawa.
Now, suppose, there are four (4) plaintiffs and 4 defendants and the 4 plaintiffs reside in 4 different
cities or municipalities. So ang choice mo ng venue ay walo (8) becuae the law says, “where the plaintiff
or any of the principal plaintiffs or where the defendant or any of the principal defendants reside…”
So, kung maraming defendants at iba-iba ang lugar at maraming plaintiffs, the residence of each one
could be the proper venue.
NOTE: PRINCIPAL PLAINTIFF, PRINCIPAL DEFENDANT. Because there is such a thing as

nominal defendant and nominal plaintiff – iyun bang formal lang.
EXAMPLE of a nominal party: When a party wants to file a case to annul an execution sale of to
annul a levy, normally it pleads the sheriff as party. But the sheriff is not the principal party but is only a
NOMINAL PARTY. So, the residence of the sheriff is not considered the sheriff being a nominal party
only.
So, just imagine if there are 4 plaintiffs and 4 defendants, iba-ibang cities. There 8 choices of venue.
That is the original concept of forum shopping. I will cite the original case which traced the history of

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forum-shopping na kung saan ako convenient, doon sko mag-file. That is the original concept – which is
legal and legitimate. The trouble is, the concept of forum shopping degenerated into a malpractice ,
where a lawyer, mag-file ng case, sabay-sabay. Ayan! That is why there is a SC case which I will later
discuss where Justice Panganiban cited the history of forum shopping. (Dean is referring to the case of
FIRST PHILIPPINE INTERNATIONAL BANK vs. CA (252 SCRA 259), January 24, 1996)
Forum shopping is legitimate and valid but the trouble is, the practice acquired another unsavory
meaning, where a lawyer will file simultaneous cases. Kaya nga nasira – from a legitimate practice to an
act of malpractice. That is the history of forum shopping.
However, there are instances when it is easy to distinguish whether the action is real or personal and
there are also instances when it is difficult.
EXAMPLE: An action for annulment of a contract of sale or rescission of contract of sale of real
property. Generally, an action for annulment or rescission is a personal action. But suppose , I will file a
complaint to annul or rescind a contract of a deed of sale over a parcel of land. I’m from Davao and
you’re from Davao. But I would like to annul the sale of a land which I made to you one year ago which
land is situated in Digos and the purpose of my action is to recover the ownership of that land. Then, that
is a real action because the primary object of the suit is to recover the ownership of real property, di ba? It
seems to be personal but in reality it is a real action. So the venue is governed by Section 2.
But there are also actions na King tingnan mo parang real but in reality, they are personal actions.
Like what happened in the case of
LA TONDEÑA DISTILLERS INC vs. PONFERRADA

264 SCRA 540 [1996]
FACTS: Judee entered into a contract where she committed herself to sell her land to
Maying. And Judee even placed a lis pendens on the property. But later Judee said, “Gua bo
ai!” (chinese for ‘ayoko na!’) Nag-back out ba! So Maying will file a case against Judee for
specific performance to compel her to sign the deed of sale.
Ang question diyan, ano ba ito? real or personal action? Because if it is real action, the
complaint should be filed in the place where the land is situated. If the action is personal, it
can be filed in Davao City where both of them are residents.
ISSUE: Is this real or personal action?
HELD: It is a PERSONAL ACTION because you are not questioning my ownership.

Here, the plaintiff recognizes that the defendant is still the owner. Kaya nga he is still filing
the case to compel him to sell.
Thus, it should be filed in the residence of the parties. “The complaint is one for specific
performance with damages. Private respondents do not claim ownership of the lot but in fact
recognized title of defendants by annotating a notice of lis pendens. In one case, a similar
complaint for specific performance with damages involving real property, was held to be a
personal action, which may be filed in the proper court where the party resides. Not being an
action involving title to or ownership of real property, venue, in this case, was not
improperly laid before the RTC of Bacolod City.” (Adamos vs. Tuazon 25 SCRA 30 [1968])
So it is not really an action affecting title or ownership because you are still recognizing the title of the
owner of the property. It is different when I’m no longer recognizing it, like recovery or reinvidicatoria.
These are gray areas, or sometimes very hard to distinguish whether the action is real or personal.
Q: [Taken from Remedial Law Reviewer by Nuevas] Where several or alternative reliefs are sought in an
action, and the reliefs prayed for are real and personal, how is venue determined?
A: Where several or alternative reliefs are prayed for in the complaint, the nature of the action a s
real or personal is determined by the primary object of the suit or by the nature of the principal claim.
Thus, where the purpose is to nullify the title to real property, the venue of the action is in the province
where the property lies, notwithstanding the alternative relief sought, recovery of damages, which is
predicated upon a declaration of nullity of the title. (Navarro vs. Lucero, 100 Phil. 146)
Where a lessee seeks to establish his right to the hacienda, which was subsequently sold, for the
purpose of gathering the crops thereon, it is unnecessary to decide whether the crops are real or personal
property, because the principal claim is recovery of possession of land so that he may gather the fruits
thereof. (LTC vs. Macadaeg, 57 O.G. 3317)
Now, going back to Section 2.
RESIDENCE OF THE PARTIES

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We will now go the issue of residence. Where is the residence of the parties? Because residence in
law could mean DOMICILE OR LEGAL RESIDENCE, it could be ACTUAL OR PHYSICAL RESIDENCE.
Alam mo, iyong legal domicile, you may not be there but there is intention to go back there someday.
Alright, with the exception of only one case, the word ‘residence’ and ‘venue’ has been uniformly
interpreted by the SC to mean ACTUAL or PHYSICAL RESIDENCE not legal domicile. Alright, there are
so many case already: CO vs. CA (70 SCRA 296); FULE vs. CA (14 SCRA 189); HERNANDEZ vs. RURAL
BANK OF THE PHIL (81 SCRA 75); RAYMOND vs. CA (166 SCRA 50); ESCUERTE vs. CA (193 3CRA
54).
Pareho ang ruling niyan. EXCEPT for one case decided way back in 1956 – the case of
CORRE vs. CORRE

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

19 SCRA 39 [1967]
FACTS: Clavecilla was sued in Cagayan de Oro City. Clavecilla questioned the venue
because its head office is in Manila. The plaintiff argued that it can be sued because it has a
branch in Cagayan.
ISSUE: Is a corporation a resident of any city or province wherein it has an office or

branch?
HELD: NO. Any person, whether natural or juridical, can only have one residence.
Therefore, a corporation cannot be allowed to file personal actions in a place other than its
principal place of business unless such a place is also the residence of a co-plaintiff or
defendant.
The ruling in the case of ANTALLON was reiterated in the 1993 case of YOUNG AUTO SUPPLY CO.
vs. COURT OF APPEALS (223 SCRA 670)
Because the law said “where the plaintiff or any of the principal plaintiffs..” So if the corporation is
suing with someone from Davao, even if my head office is in Manila, I can file because of the residence of
my co-plaintiff or the residence of the defendant. But outside of that, a corporation cannot sue outside of
its head office because its residence is there. That is the case of YOUNG AUTO SUPPLY.

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“OR IN THE CASE OF A NON-RESIDENT DEFENDANTS WHERE HE

MAY BE FOUND”
Suppose the defendnt is not residing here in the Philippines but is just on vacation and you want to
sue him. What is now the point of reference?
Did you notice the phrase “or in the case of a non-resident defendants where he may be found.”
Now what does that mean? It means to say that the defendant is not actually residing in the Philippines
but he is temporarily around because he is found in the Philippines. Example is a balikbayan who is still
on vacation.
PROBLEM: Suppose a Filipino who is already residing abroad decided to come back this Christmas
for a vacation. When he landed at the Manila Domestic Airport and you are his friend and the first thing
he requested you is, “wala pa akong Philippine peso, puro pa dollars. So pahiramin mo muna ako. I will
pay you in one week’s time once I have my dollars exchanged to pesos.” How much do you want? He
borrowed from you P15,000.00. One week later, still he has not paid you and obviously it seems he will
not pay you. So you decided to sue him while he is around to collect the case advance of the P15,000 that
you gave him. So, where is the venue of the action?
A: The law says, generally where the plaintiff resides or where the defendant resides. The trouble is,
the defendant has no residence here because he is already residing abroad. But he is temporarily here in
the Philippines.
You can sue him where he may be found. If he decides to stay in Cebu, that is where the proper
venue rather his permanent residence. So where he may be found is the alternative venue. The phrase
“where he may be found” means where he may be found here in the Philippines for a non-resident
defendant but temporarily staying in the Philippines.
Q: Suppose a defendant is a non-resident and he is not even here. Like for example, your neighbor
borrowed money from you and the nest thing you heard is that he left the country. He has already
migrated to the states. Of course you know his address there. Can you sue him in the Philippine court, a
defendant who is no loner residing here and is not found in the Philippines?
A: NO, you cannot. Charge it to experience.
Q: Why can you not sue a person not residing here in the Philippines and is not found here in the first
place?
A: There is no way for Philippine courts to acquire jurisdiction over his person. Otherwise, he will not
be bound by the decision.
But in our discussion on the element of jurisdiction: subject matter, person, res and issues, I told you that
the res or the thing in dispute is important because sometimes it takes the place of jurisdiction over the
person of the defendant. So even if the Philippine court cannot acquire jurisdiction over the person of the
defendant but the subject of the controversy (res) is in the Philippines, then the non-resident defendant
can also be sued in the Philippines. The court can now acquire jurisdiction over the res, subject and since
the res is here, the judgment can be enforced. It is not a useless judgement anymore.
EXAMPLE: He is there but he is the owner of a piece of land here. I want to file a case to recover
ownership over the land here in the Philippines, yaan!
Q: Can I sue the non-resident defendant?
A: YES under Section 3. Even if the person is abroad, the res of the property in dispute is here and if
he loses the case the judgment can be enforced – transfer the property to you. So it is not a useless
judgment. That is what Section 3 is all about.
Sec. 3. Venue of actions against nonresidents. - If any of the

defendants does not reside and is not found in the Philippines, and the
action affects the personal status of the plaintiff, or any property of
said defendant located in the Philippines, the action may be commenced
and tried in the court of the place where the plaintiff resides, or where
the property or any portion thereof is situated or found, (2[c]a)
Q: What is the difference between the non-resident defendant in Section 2 and the non-resident
defendant in Section 3?
A: In Section 2, the non-resident defendant may be found in the Philippines. But in Section 3, he does
not reside and is not found in the Philippines. So, physically, he is not around.
Q: What actions can be filed against a non-resident defendant who is not even found here in the
Philippines?
A: There are two (2):
1.) The action that affects the personal status of the plaintiff; or

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2.) The action affects the property or any portion thereof of said defendants is located here in the
Philippines.
ACTION THAT AFFECTS THE PERSONAL STATUS OF THE

PLAINTIFF
EXAMPLE: A young child was abandoned by his illegitimate father. The illegitimate father left the
Philippines for good. The son wants to file a case against the father for compulsory recognition, at least to
improve his status.
Q: Can the child file a case for compulsory acknowledgment here in the Philippines against the father
for compulsory acknowledgment?
A: YES because the action involves the person status of the plaintiff. The res is the status of the
plaintiff who happens to be in the Philippines.
THE ACTION AFFECTS THE PROPERTY OR ANY PORTION THEREOF OF SAID DEFENDANTS IS
LOCATED HERE IN THE PHILIPPINES
Example: The defendant who is already abroad owns a piece of land located here in the Philippines
and I want to recover the ownership of the piece of land.
Q: What is the res?

A: The res is the land which is situated here in the Philippines. Therefore I can sue that defendant
even if he is there because the court can acquire jurisdiction over the res.
In order to validly sue in the Philippine court, a defendant who is no longer residing here and is no
longer found here, the action must be: 1.) action in rem; or 2.) at least quasi-in rem, because if the action iis
for compulsory recognition, that is actually an action in rem. If the suit in involves a property here in the
Philippines, at least that is an action quasi-in rem.
But if the action is purely in personam, then there is no way by which you can sue him. Example is an
action to collect an unpaid loan.
Q: Where is now the proper venue of the action against the non-residents?
A: The law says where the plaintiff resides – action which affects the personal status of defendants,
where the property of the defendant located here in the Philippines
Sec. 4. When rule not applicable. - this rule shall not apply -
a)In those cases where a specific rule or law provides otherwise; or
b)Where the parties have validly agreed in writing before the filing
of the action on the exclusive venue thereof. (3a, 5a)
A.) IN THOSE CASES WHERE A SPECIFIC RULE OR LAW PROVIDES OTHERWISE;
So, when there is a special rule or law on venue which applies only to certain types of cases, then that
rule will apply rather than Rule 4.
Q: What cases which provides for venue of the action which may be different from what Rule 4 says?
A: The following:
1.) A civil action arising from LIBEL under Article 360 of the Revised Penal Code.
Libel could give rise to a civil action for damages. It is considered under the RPC as one of the independent civil actions.
The criminal action for libel shall be filed simultaneously or separately with the RTC of the:
a.) province or city where the libelous article is printed and first published; or
b.) where any of the offended parties actually resides at the time of the commission of the
offense.
If one of the offended party is a public officer, whose office is in the City of Manila at the time of the commission of the
offense, the action shall be filed (a) in the RTC of Manila, or (b) in the RTC of the province where he held office at the time of
the commission of the offense.

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2.) Section 5 (4), Article VIII, 1987 Constitution – The SC may order a change of venue or place of trial
to avoid a miscarriage of justice as what happened in the case of Mayor Sanchez.
So these are the examples on the special rules. Alright…
B.) WHERE THE PARTIES HAVE VALIDLY AGREED IN WRITING BEFORE

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

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

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However, there are cases in which you cannot find the word exclusive or the word only, and yet the
SC said it seems the intention of the parties to limit the venue as exclusive as what happened in the 1994
case of
GESMUNDO vs. JRB REALTY CORP

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

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

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

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Second, again for the sake of equity, to be fair that these poor people will be compelled to
go to Cebu to file a case there. They will be discouraged. It is very expensive to go back and
forth to Cebu. Whereas, Sweet Lines has the resources, the means, the lawyers here in
Cagayan to litigate. Therefore, it would be inequitable to compel them or to apply the
stipulation there.
The ruling in SWEET LINES is an exception to POLYTRADE despite the exclusive stipulation. The SC
said that the refusal of the court to apply it is correct. There is no grave abuse of discretion on the part of
Judge Teves.
ARQUERO vs. FLOJO

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

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

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

VENUE is governed by procedural law – Rule 4 of the Rules of Court;

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4.) JURISDICTION refers to the relation of the parties to the court; whereas
VENUE refers to the relation between the parties; and
5.) JURISDICTION limits the court’s authority; whereas

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

Courts shall be the same as in the Regional Trial Courts, except (a)
where a particular provision expressly or impliedly applies only to
either of said courts, or (b) in civil cases governed by the Rule on
Summary Procedure. (n)
The Rules on Procedure starting with Rule 6, the title of the subject matter is procedure in Regional
Trial Courts. However, by express provisions in Section 1, the procedure in the Regional Trial Court and
the procedure in the Municipal Trial Court is the same.
The Rules on Civil Procedure which applies to RTC are also applicable to the MTC except when a
particular provision expressly applies only to either of said courts.
There are provisions where it is very clear and intended only to apply to RTC or MTC. A good
example of this is paragraph (a) is Rule 40 which governs appeals from MTC to RTC. It is only applicable
to MTC. It does not apply to appeals from RTC to Court of Appeals.
The second example would be in civil cases governed by Rules on Summary Procedure. That would
be the last law that we will take up. Rules on Summary Procedure applied only to MTC. They do not
apply to RTC.
Sec. 2 Meaning of Terms. – The term “Municipal Trial Courts” as used

in these Rules shall include Metropolitan Trial Courts, Municipal Trial
Courts in Cities, Municipal Trial Court, and Municipal Circuit Trial
Courts. (1a)
In our structure, we already illustrated the hierarchy of courts. Metropolitan Trial Courts are only in
Manila. Municipal Trial Courts are in cities and municipalities. When the Rule says ‘Municipal Trial
Court’, it already includes Metropolitan Trial Courts, MTCC, MCTC. So that we will not be repetitious.

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
PROCEDURE IN THE REGIONAL TRIAL COURTS
Rule 6
KINDS OF PLEADINGS
SECTION 1. Pleadings Defined. Pleadings are the written statements of
the respective claims and defenses of the parties submitted to the court
for appropriate judgment. (1a)
Actually, we already touched the word “PLEADING” before. In the Constitution when we were
asking what is the basis of the authority of the Supreme Court to enact the Rules of Court or Procedural
Law. The Constitution says, the Supreme Court shall have the authority to promulgate Rules on pleadings,
practice and procedure. Then we discussed jurisdiction over the issues. Jurisdiction over the issues is
determined by the allegations in the pleadings.
Q: Define pleadings?
A: PLEADINGS are the written statements of the respective claims and defenses of the parties
submitted to the court for appropriate judgment. (Section 1)
This is the document where a party will state his claim against the defendant; or where the defendant
will state also his defense. Pleadings merely tell a story. You tell your story there, the other party will tell
his story.
And how do you assert your claim in court? Not by calling up a judge over the telephone or writing a
letter to the judge, “Dear judge….” but through the appropriate pleadings. How do they look like? The
rules are laid down. It becomes clearer in the 3rd year subject known as Legal Forms. In that subject you
will study particular forms. They have patterns. In pleadings, you do it in legal manner. You do not say,
“Once upon a time…”
The counterpart of pleadings in criminal procedure is information, or the criminal complaint where a
prosecutor will tell what crime you are being accused – what you did, time, the victim, etc.
Sec. 2 – Pleadings allowed – The claims of a party are asserted in a

complaint, counterclaim, cross-claim, third (fourth, etc.) – party
complaint, or complaint-in-intervention.
The defenses of a party are alleged in the answer to the pleading
asserting a claim against him.
An answer may be responded to by a reply. (n)
Section 2 tells us what are the pleadings allowed by the Rules of Court. In a civil case, there are
actually two (2) contending parties: (1) the person suing or filing claim; and (2) the person being sued.
Q: If you are the claimant or the plaintiff, in what pleading do you assert your claim?
A: Complaint, counterclaim, cross-claim, third-party complaint or fourth-party complaint, etc.
These are the different pleadings allowed by the Rules. Of course, maybe, the only thing that you are
familiar with is the complaint. As we go over the Rules, you will understand what do you mean by those
pleadings.
On the other hand, if you are the party sued, you also have to file your pleading or your defense. It is
known as the ANSWER. The defenses of a party are alleged in the answer to the pleading asserting a
claim against him. If I file a complaint against you, in response, you will file an answer.
In last paragraph, an answer may be responded by a REPLY. I file a complaint. You file an answer
invoking your defenses. If I want to respond to your defenses, I will file a REPLY.

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COMPLAINT ANSWER REPLY
That is the pattern.
Q: Summarizing all of them, what are the know pleadings recognized by the law on Civil Procedure?
A: There are seven (7) types of pleadings:
1.) Complaint;
2.) Answer;
3.) Counterclaim;
4.) Cross-claim;
5.) Reply
6.) Third (Fourth, Fifth, etc.) – Party Complaint;
7.) Complaint-in-Intervention.
Let us go over each one of them. How do they function?
A.) COMPLAINT
Sec. 3. Complaint – The complaint is the pleading alleging the

plaintiff’s cause or causes of action. The names and residences of the
plaintiff and defendant must be stated in the complaint.
Q: Define complaint.
A: COMPLAINT is the pleading where the plaintiff will allege his cause or causes of action. A
complaint is also called the INITIATORY PLEADING. Because it is actually the first pleading filed in
court. It is the pleading that starts the ball rolling. It is the pleading that initiates the civil action.
Of course, the names and residences of the defendants must be stated in the complaint. Do you know
the pattern for a complaint?
For EXAMPLE: Mr. Pito wants to sue Mr. Peloton to collect an unpaid loan. Mr. Peloton borrowed
money from Mr. Pito and refused to pay. Normally, it starts with an introduction: “Plaintiff, through
counsel, respectfully alleges that…” Then it is followed by paragraphs which are numbered. For instance:
Illustration:
1.) Plaintiff Mr. Pito, of legal age, is a resident of Matina, Davao City; whereas defendant
Mr. Peloton also of legal age, a resident of Bajada, Davao City;
2.) On Nov. 7, 1996, defendant secured a loan from plaintiff the sum of P30,000.00
payable within one (1) year form said date with legal interest;
3.) The account is already due. Despite repeated demands, defendant failed to and
refused to pay;
PRAYER
WHEREFORE, it is respectfully prayed that judgment be rendered against

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

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

2001 Edition
A: It is called the ANSWER. That is where you will state your defenses. That is why an ANSWER is
called a Responsive Pleading.
Q: Why is it called “Responsive Pleading”?

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

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

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

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

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

A: In paragraph (b), it is briefly called a defense of confession and avoidance because, while the defendant
may admit the material allegation in the complaint, however, he will plead a new matter which will
prevent a recovery by the plaintiff. I admit what you are saying in the complaint but still you are not
entitled to recover from me.
EXAMPLE: The defendant may admit what you are saying in your complaint. I borrowed money
from you – admitted! The account is due – admitted! I have not paid you – admitted. “However, you
cannot collect from me because the account has already prescribed.” Meaning, I will admit what you are
saying but just the same, I am not liable. Kaya nga, you confess, eh. I confess to what you say but I still
avoid liability.
Examples of affirmative defenses are: fraud, statute of limitations, release, payment, illegality, statute
of frauds, estoppel, former recovery, discharge in bankruptcy, and any other matter by way of confession
and avoidance.

2001 Edition
Suppose, you sue me for damages arising from breach of contract. I admit I entered into a
contract but I have no obligation to comply because the contract is null and void. Or, the contract is
illegal. Or, the stipulation is contrary to public policy, therefore, I am not bound. I admit what you
say but I am not liable because of the illegality of the subject matter of the contract.
Or, you sue me because according to you, I entered into a contract and I refused to comply. So, you
file a case against me for specific performance or for damages. Then I say: “It’s true that I entered into a
contract with you. It’s true I did not comply. But there is nothing you can do because the contract is oral
and the contract is covered by the statute of frauds. In order to be enforceable, we should have reduced it
into writing. Since we never reduced it into writing, I am not bound to comply.”
c.) COUNTERCLAIMS
Sec. 6. Counterclaim. - A counterclaim is any claim which a defending

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

101 Phil 911

2001 Edition
FACTS: A died, of course, what survives after that is the estate. X was appointed as
administrator or legal representative. W owes a sum of money to the estate of A and X filed a
case against W to collect the unpaid loan. X is called the REPRESENTATIVE PARTY under
Rule 3, Section 3. W filed an answer and that W has a claim against X. W filed a counterclaim
against X in the case.
HELD: The counterclaim is improper. When X sued W, X is not suing in his own
personal capacity. He is acting as administrator of the estate of A. The real plaintiff is the
estate of A. X is just the legal representative. Therefore, you cannot file a counterclaim against
X in the latter’s personal capacity when X is suing W in a representative capacity.
The SC said that the plaintiff should be sued in a counterclaim in the SAME CAPACITY that he is
suing the defendant. That’s a principle to remember.
PERMISSIVE & COMPULSORY COUNTERCLAIMS
Sec. 7 – Compulsory counterclaim – A compulsory counterclaim is one

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

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

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

A: If one of the five requisites is missing, the counterclaim is permissive in nature.
We will discuss the elements of a compulsory counterclaim one by one.
First Element: A COUNTERCLAIM TO BE COMPULSORY MUST BE COGNIZABLE BY THE

REGULAR COURTS.
In other words, if you file a complaint against me and I have a counterclaim against you in the Labor
Code, then it cannot be classified as a compulsory claim because how can I invoke against you a claim
which is cognizable by the NLRC before the RTC?

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Second Element: IT ARISES OUT OF OR IT IS CONNECTED WITH A TRANSACTION

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

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

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

barred. - A compulsory counter-claim or a cross-claim, not set up shall
be barred. (4a)
So if I do not file a counterclaim against you in the same action, under Rule 9, the counterclaim is
barred forever. I cannot claim it against you in any other case in the future. But if the counterclaim is

2001 Edition
permissive and I will not raise it as a counterclaim, it is not barred. It can still be invoked in another case
against you. It can be a subject matter of a separate action.
Let us try to apply that principle to the case cited.
PROBLEM: Vanessa files a case against me for damages arising from vehicular collision. Her car is
damaged, my car is damaged. In my answer, I denied negligence but I did not claim from her the damage
to my vehicle. After the trial, court found the plaintiff at fault. So, the complaint of Vanessa was
dismissed. So panalo ako. Balikan ko siya ngayon. This time I will file a case against her to recover
damages for the damage to my car since I was able to prove that she was negligent and not me.
Q: What will happen to my case now?
A: My case will be dismissed because I did not raise that cause of action as a counterclaim.
Compulsory yan eh. So since you did not raise, is barred forever.
PROBLEM: Aileen files a case against me for recovery of a piece of land. After trial, talo ako. The
court said that I should return the land to her. So isinauli ko na. Ngayon, kailangan bayaran niya naman
ako for the necessary expenses. So, I will file a case against her. She moved to dismiss – barred, because I
should have raised that as a counterclaim. I cannot file another case involving that cause of action. That is
the effect of failure to raise the compulsory counterclaim in the case filed against you.
PROBLEM: Now, suppose the counterclaim is PERMISSIVE. Pauline files case against me for
recovery of land. My cause of action against her is damages arising against a vehicular collision.
Obviously, the counterclaim is permissive.
Q: Is the counterclaim allowed?
A: Yes, allowed.
Q: Pauline will file a case against me for damages arising from vehicular collision. My decision is not
to file a counterclaim but to file another case against her. Is that allowed?
A: Yes, that is allowed. Meaning, I may or may not raise it as a counterclaim because it is permissive.
I am permitted to raise it as a counterclaim but I am not obliged. I may decided to file another action
against you. That is the importance between a compulsory counterclaim and a permissive counterclaim.
Third Requisite: IT DOES NOT REQUIRE FOR ITS ADJUDICATION PRESENCE OF THIRD
PARTIES OF WHOM THE COURT CANNOT ACQUIRE JURISDICTION.
Meaning, if my counterclaim against you will involve the presence of an indispensable party who is,
let’s say, abroad, and therefore, the court cannot acquire jurisdiction over him, and since it involves an
indispensable party, I will not raise it as a counterclaim.
Q: Will it be barred?
A: NO. If I will file my counterclaim, it will involve another party who is indispensable. The trouble
is, he is not around. Therefore, the counterclaim is not barred because the third element is missing.
Fourth Element: THAT THE COUNTERCLAIM MUST BE WITHIN THE JURISDICTION

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

2001 Edition
Q: How will the defendant claim reimbursement?

A: He has to file with the RTC a case for reimbursement. He cannot use that as a counterclaim for the
forcible entry case because the MTC has no jurisdiction on a counterclaim where the amount is over
P200,000.00.
I will reverse the problem:

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

176 SCRA 440
HELD: “The jurisdiction of the MTC in a civil action for sum of money is limited to a
demand that does not exceed P100,000 (now P200,000) exclusive of interest and costs. A
counterclaim beyond its jurisdiction and limit may be pleaded only by way of defense to
weaken the plaintiff’s claim, but not to obtain affirmative relief.”
Fifth Requisite: THE DEFENDING PARTY HAS A COUNTERCLAIM AT THE

TIME HE FILES HIS ANSWER.
How can I make a claim against you which is not yet existing? Even if all the other requisites are
present, the counterclaim would still not be compulsory because how can one invoke something now
which he can acquire in the future?
So, those are the five essential elements. You remove one, the counterclaim becomes permissive.
Q: Again. What is the importance of distinguishing whether the counterclaim is compulsory or

permissive?
A: If the counterclaim is compulsory, the defendant is obliged under the law to raise it as a
counterclaim in the action where he is being sued. If he fails to invoke it, it is barred forever (Rule 9
Section 2).
If the counterclaim is permissive, the defendant has a choice of raising it as a counterclaim in the case
filed against him or he may decide to file another action against the plaintiff, raising it as his cause of
action. It is permitted but not obliged.
COUNTERCLAIMS IN CRIMINAL CASES
JAVIER vs. IAC

171 SCRA 605

2001 Edition
FACTS: The Javier spouses filed a criminal case against Leon Gutierrez Jr, under BP 22
or the Bouncing Check Law, for issuing a bad check. The criminal case was filed before the
RTC of Makati. The complainants did not reserve the civil action. The implication is that the
claim for civil liability is deemed instituted with the criminal case.
Gutierrez in turn filed a civil action for damages against the Javier spouses in the RTC of
Catarman, Northern Samar, where he accused spouses of having tricked him into signing the
check. According to him, “because you tricked me into signing the check for which you are
suing me, I’m holding you liable for damages”.
What happened now is that he was being criminally sued in Makati but defending
himself in Catarman, Northern Samar. He is explaining in the Samar court what he should be
doing in the Makati court.
HELD: The civil case in Samar should be dismissed. It must be in the Makati court that
Gutierrez, as accused in the criminal charge of violation of BP 22, should explain why he
issued the bouncing check. He should explain that story in Makati and not in Samar.
This should have been done in the form of a counterclaim for damages for the alleged
deception by the Javier spouses. In fact, the counterclaim was compulsory and should have
been filed by Gutierrez upon the implied institution of the civil action for damages in the
criminal case.
What the SC is saying is, since the civil action for damages is impliedly instituted in the criminal case,
and he wants to hold you liable for filing this case, he should file a counterclaim against you in the
criminal case. What is unique was that for the first time in the Philippine Procedural Law, SC laid down
the rule that there is such thing as a counterclaim in a criminal case, because, normally, counterclaims are
only recognized in civil cases. But since the civil action is deemed instituted in the criminal case, the
accused can file a counterclaim against the offended party in the criminal action.
The trouble in this ruling is that, it has been subjected to a lot of criticisms by academicians –
professors of Remedial Law, authors – they criticized the ruling. It provokes more problems than
answers. A justice of the SC remarked, “I think we made a mistake (privately ba) in the Javier ruling. Kaya
it was never repeated.
The SC, in 1997, had another chance to comment on Javier in the case of—
CABAERO vs. CANTOS

271 SCRA 392, en banc
NOTE: Here, the Javier ruling was set aside.

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

2001 Edition
NOTE: The ruling in the case of CABAERO is now incorporated in the last paragraph of Section 1,
paragraph [a], Rule 111 of the 2000 Revised Criminal Procedure:
“No counterclaim, cross-claim or third-party complaint may be filed

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

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

1.) A COUNTERCLAIM is a complaint by the defendant against the plaintiff, whereas,
A CROSS-CLAIM is a claim by a defendant against a co-defendant;
2.) The life of the CROSS-CLAIM depends on the life of the main action. A cross-claim is merely
a consequence of the case filed by the plaintiff against the defendants. No main action, no
cross-claim (RUIZ, JR. vs. CA, infra). Whereas,
In a COUNTERCLAIM, you can kill the main action, still the counterclaim survives.
3.) A COUNTERCLAIM may be asserted whether or not it arises out of the same transaction or
occurrence that is the subject matter of the action, whereas,
A CROSS-CLAIM must always arise out of the same transaction or occurrence that is the
subject matter of the action.
Example: Pao case filed against Jet to collect a loan. Jet files a COUNTERCLAIM
against Pao to recover a piece of land. That is allowed and that is a permissive

2001 Edition
counterclaim. But suppose Dean files a case to collect a loan against Jet and Pao. Jet
files a CROSS-CLAIM against Pao to recover a piece of land.
Q: Will it be allowed?
A: Not allowed! It has no connection with the subject matter of the main action.
Take note that a cross-claim is any claim by one party against a co-party arising out of the transaction
of occurrence that is the subject matter of the original action or of a counterclaim therein. So, a cross-claim
may arise our either of the original action or counter-claim therein.
EXAMPLE: Jet and Pao file a case against Dean. Dean files his answer with a counterclaim against the
plaintiffs Jet and Pao. So Jet and Pao will now become defendants with respect to the counterclaim filed
by Dean. So Jet now can file a cross-claim against Pao arising out of the counterclaim. So this is an
example of a plaintiff filing a cross-claim against his co-plaintiff because of the counterclaim.
HYPOTHETICAL EXAMPLE:
1.) Mortz and Charles, plaintiffs, filed a case against Jet and Pao, defendants. There are two plaintiffs
suing two different defendants on a promissory note. Both Jet and Pao signed the promissory
note in favor of Mortz and Charles:
COMPLAINT (Collection case – Main Action):

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

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

2001 Edition
Plaintiff CHARLES, now cross-claimant

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

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

counterclaim may be asserted against an original counter-claimant.
A cross-claim may also be filed against an original cross-
claimant.(n)
Section 9 is a new provision. There is such a thing as counter-counterclaim and counter-cross-claim.

The concept of counter-counter-claim is not new. As a matter of fact, that was asked in the bar years ago.
EXAMPLE: Chams filed against you an action to collect a loan. You filed a counterclaim against her
to recover a piece of land. Of course, she have to answer your counterclaim. But she will say, “Actually
you have been molesting me with your claim when actually you have no right over my land.” So, nag-file
siya ng injunction to stop you from molesting her. In other words, based on your counter-claim against
her to recover my land, she will file a counterclaim to stop you from molesting her. In effect, there is
counter-claim to a counter-claim.
COUNTER-CROSS-CLAIM. Nag cross-claim ka sa akin, mag cross-claim din ako sa iyo.
E.) REPLY
Sec. 10. Reply. A reply is a pleading, the office or function of

which is to deny, or allege facts in denial or avoidance of new matters
alleged by way of defense in the answer and thereby join or make issue as
to such new matters. If a party does not file such reply, all the new
matters alleged in the answer are deemed controverted.

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If the plaintiff wishes to interpose any claims arising out of the

new matters so alleged, such claims shall be set forth in an amended or
supplemental complaint.(11)
ILLUSTRATION: Plaintiff files a complaint against a defendant to collect an unpaid loan. D files his
answer and raises a new matter, affirmative defense. According to the defendant, the obligation is
already paid. Plaintiff said that you have paid the other loan. In other words, the plaintiff would like to
deny or dispute the defendant’s affirmative defense of payment.
Q: Can I file a pleading to dispute your defense?

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

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

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

The filing of an ANSWER TO A COUNTERCLAIM is generally mandatory under Rule 11
because if the plaintiff fails to file an answer to the counterclaim, he will be declared in
default on the counterclaim.
OUTLINE OF FLOW OF PLEADINGS
PLAINTIFF DEFENDANT
1 Complaint
.
2 a.) Answer
. b.) Counterclaim
3 a.) Reply to answer
. b.) Answer to counterclaim
4 Reply to answer to counterclaim
.
F. THIRD (FOURTH, ETC.) – PARTY COMPLAINT
Sec. 11. Third, (fourth, etc.) - party complaint. A third (fourth,

etc.) party complaint is a claim that a defending party may, with leave
of court, file against a person not a party to the action, called the
third (fourth, etc.) party defendant, for contribution, indemnity,
subrogation or any other relief, in respect of his opponent's claim.
(12a)

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THIRD PARTY COMPLAINT is the procedure for bringing into a case a third person who is not a
party to the case.
So, plaintiff files a case against the defendant. Defendant believes that a stranger or somebody else
should be brought into the case and therefore files a motion in court that he be allowed to file a third-
party complaint against such person and therefore the defendant is called third party plaintiff and that
third person is a third-party defendant.
EXAMPLE : A plaintiff files a case against a defendant to collect a loan when there are two debtors
and one of them is compelled to pay everything so the defendant will drag into the picture the co-debtor
for contribution or indemnity. Well, you already learned if there are two of them all he has to do is to file
a cross-claim against his co-defendant. BUT since he is the only one, the remedy is to avail of Section 11.
Take note that filing a third-party complaint is not a matter of right. THERE MUST BE LEAVE OF
COURT. So unlike counterclaim or cross-claim, you do not need any motion or leave of court. Just file
your answer to the counterclaim of cross-claim and that will do, but not a third-party complaint.
The purpose of third-party complaint is for contribution, indemnity, subrogation and other relief in
respect of his opponent’s claim.
That is why there is a close relationship between a cross-claim and a third-party complaint because a
cross-claim must also be arising out of the subject matter of the main action. A third-party complaint
must be also related to the main action. It cannot be a cause of action which has no relation to the main
action.
EXAMPLE: The plaintiff files a case against the surety and the principal debtor, so both of them are
defendants, and the surety seeks reimbursement for whatever amount he may be compelled to pay the
plaintiff. What kind of pleading would he file against his co-defendant (the principal debtor)? CROSS-
CLAIM.
BUT if the plaintiff file a case ONLY against the surety, because anyway the principal debtor is not an
indispensable party and the surety would like to seek reimbursement from the person who benefited
from the loan, he cannot file a cross-claim against anybody because he is the lone defendant. It is possible
for him to just file an answer . If he loses and pays the plaintiff, then he will file another case against the
principal debtor for reimbursement.
But if he wants everything to be resolved in the same case, what kind pleading will he file? He must
resort a THIRD-PARTY COMPLAINT and implead the principal debtor.
The PURPOSE of a third-party complaint is for the third party plaintiff to ask the third party
defendant for:
1.) Contribution;
2.) Indemnity;
3.) Subrogation; or
4.) any other relief in respect to the opponent’s claim.
CONTRIBUTION:
Example #1: Two debtors borrowed P100,000 from Janis (creditor) and they shared the money 50-50.
When the debt fell due, the creditor filed a case against one of them. So, one of them is being made to pay
the P100,000. Not only his share but also his co-solidary debtor. So if I am the one liable when actually
my real liability is only 50,000. What will I do? I will file a third party complaint against my co-debtor for
contribution.
Example #2: If Andrew and Carlo are guilty of a quasi-delict and the injured party files an action for
damages against Andrew only, Andrew may file a third-party complaint against Carlo for contribution,
their liability being solidary (Article 2194, New Civil Code)
INDEMNIFICATION:
Example #1: Two people signed a promissory note in favor of the creditor. But actually the entire
amount went to you and none for me. When the note fell due, I was the one sued. So I will file a third-
party complaint against you for indemnity. You have to return to me every centavo that I will pay the
creditor.

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Example #2: A surety sued for recovery of debt by the creditor may file a third-party complaint
against the principal debtor for indemnity. (Article 2047, New Civil Code)
SUBROGATION:
Subrogation - You step into the shoes of someone else. Your obligation is transferred to me.
EXAMPLE: Where a contract is leased by a lessee and he subleased the property to a third person
who is now occupying the property. In effect, the sub-lessee stepped into the shoes of the original lessee.
If the property is damaged and the lessor sues the lessee for damages to his leased property, the lessee or
sub-lessor can file a third-party complaint and have the sub-lessee for subrogation because actually, you
stepped into the shoes when you occupied the leased property. (Articles 1651 and 1654, New Civil Code)
For ANY OTHER RELIEF IN RESPECT TO THE OPPONENTS CLAIM, very broad:
EXAMPLE: When I buy the property of Mr. Cruz and after a while, here comes Mr. Dee filing a case
against me to claim ownership of the land. But I bought it from Mr. Cruz who warranted that he is the
real owner. So I will now file third-party complaint against Mr. Cruz to enforce his warranty – warranty
against eviction. (Article 1548, New Civil Code)
Take note that there is always a connection between the main complaint and the third-party
complaint because the condition is “contribution, indemnification, subrogation and any other relief in
respect to your opponents claim.” There is always a relation between the third party-complaint and the
main complaint against you. Here is a bar question...
BAR QUESTION: Janis files a case against Nudj to recover an unpaid load. Now the reason is that
Carlo also owes Nudj. Nudj says, “I cannot pay you because there is a person who has also utang to me.
What I will pay you depends on his payment to me.” File agad si Nudj ng third-party complaint against
Carlo. Is the third-party complaint proper?
A: NO. There is no connection between the main action and the 3rd-party complaint – the loan of
Nudj to Janis and the loan of Andrew to Nudj. Walang connection. Anong pakialam ni Janis sa utang ni
Andrew kay Nudj? Not in respect to his opponent’s claim.
BAR QUESTION: How do you determine whether a 3rd-party complaint is proper or improper?
What are the tests to determine its propriety?
A: Case of
CAPAYAS vs. COURT OF FIRST INSTANCE

77 PHIL. 181
HELD: There are four (4) possible tests to determine the propriety of a third-party complaint.
In order for it to be allowed, it must pass one of them. That is the reason when you file it, you
need the permission of the court to determine whether it is proper or not and the original plaintiff
may object to the propriety of the third-party complaint.
There are the FOUR TESTS (any one will do):
1. A third-party complaint is proper if it arises out of the same transaction on which plaintiff is
based;
EXAMPLE: A creditor sued only one solidary debtor. So you can file a third-party
complaint for contribution. Anyway, there is only one loan and our liability arises out of
the same promissory note
2. A third-party complaint is proper if the third-party’s complaint, although arising out of

another transaction, is connected with the plaintiff’s claim.
EXAMPLE: The car owner is sued for culpa aquiliana for damages arising from
vehicular collision and he files a third-party complaint against the insurance company for
indemnity based on the contract of insurance. So it is connected with plaintiff’s claim,
and that is precisely the purpose of my insurance coverage.
3. Third party defendant would be liable to the original plaintiff's claim. Although the third
party defendant's liability arises out of another transaction.

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

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

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SHAFER vs. JUDGE OF RTC OF OLONGAPO CITY

167 SCRA 386
NOTE: This case although it refers to third-party complaint is related to criminal

procedure. This is similar to the case of JAVIER where the issue is, is there such a thing as a
counterclaim in a criminal case where the offended party did not make a reservation. In
SHAFER, is there such a thing as a third-party complaint in a criminal case?
FACTS: Shafer while driving his car covered by TPL, bumped another car driven by T. T
filed a criminal case against S for physical injuries arising from reckless imprudence. T did
not make any reservation to file a separate civil action. So obviously, the claim for civil
liability is deemed instituted.
Shafer was covered by the insurance, so he filed a third-party complaint against the
insurance company insofar as the civil liability is concerned. The insurance company
questioned the propriety of d third-party complaint in a criminal case, because according to
the insurance company, the third-party complaint is entirely different from the criminal
liability.
ISSUE: Whether or not the filing of a third-party complaint in a criminal case is

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

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

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automatically, it acquires jurisdiction over the third-party complain which is mainly a

continuation of the principal action.
Now, the same situation happened in another case. The case of
EASTER ASSURANCE vs. CUI

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

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

198 SCRA 282
FACTS: Petitioner Francisco Chavez (former solicitor general) represented the

government for PCGG. The case arose out of PCGG cases wherein Enrile was sued for
accumulation of his ill-gotten wealth. Enrile filed an answer to the complaint. Enrile contends

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that the case is harassment suit whose mastermind was the Solicitor General himself. Enrile
files a counterclaim against Chavez. (Enrile’s lawyer maybe well aware of the Sapugay case
the one sued is the lawyer.) Chavez questioned such counterclaim contending that he was
not a plaintiff. Sandiganbayan denied such contention.
HELD: The inclusion of plaintiff’s lawyer is improper.

“To allow a counterclaim against a lawyer who files a complaint for his clients, who is
merely their representative in court and not a plaintiff or complainant in the case would lead
to mischievous consequences. A lawyer owes his client entire devotion to his genuine
interest, warm zeal in the maintenance and defense of his rights and the exertion of his
utmost learning and ability. A lawyer cannot properly attend to his duties towards his client
if, in the same case, he is kept busy defending himself.”
Q: Is the SC suggesting that a lawyer who sued in a harassment case can get away with it? Does that
mean to say that the lawyer is immune from suit?
A: NO, the SC does not say a lawyer enjoys a special immunity from damage suits. However, when
he acts in the name of the client, he should not be sued in a counterclaim in the very same case where he
has filed only as a counsel and not as party. Only claims for alleged damages or other causes of action
should be filed in a separate case. Thus, if you feel that the lawyer is acting maliciously, you file a
complaint but in a separate case. That’s why the case of Sapugay should not be confused with Chavez.
Sec. 13. Answer to third (fourth, etc.) party complaint. - A third

(fourth, etc.)-party defendant may allege in his answer his defenses,
counterclaims or cross-claims, including such defenses that the third
(fourth, etc.)-party plaintiff may have against the original plaintiff in
respect of the latter's claim against the third-party plaintiff. (n)
ILLUSTRATIONS:
A files a case against B
B files a 3rd party complaint against C
A vs. B; B vs. C. Normally, B will defend himself against the complaint of A and C will defend himself
in the complaint of B. That is supposed to be the pattern. Normally, C does not file a direct claim against
A. But the law allows C in defending himself, to answer the claim of A. The law allows him to file a direct
counterclaim against A.
If C has the right to frontally meet the action filed by A – meaning, C will fight A directly – if C has
the right to assert any defense which B has against A and even for C to litigate against A, then it must be
a proper third party complaint. That has happened several times.
EXAMPLE: B owns a car which was already sold to C. The trouble is that B never registered the
transaction. On the record, B is still the registered owner. Then C, while driving the car, meets an accident
and injures A. When A looked at the record, the owner is B. So A files a case against B. So B will file a
third party complaint against the real owner (C). Now, C can frontally meet the complaint filed by A.
That is the best example where you have the right against the original plaintiff or even assert a
counterclaim against him. As a matter of fact, that last test is now incorporated as a new provision
(Section 13).
In the case of:
SINGAPORE AIRLINES vs. COURT OF APPEALS

243 SCRA 143 [1995]
FACTS: Aying filed a case against Bugoy. Bugoy filed a third party complaint against
and Cyle who wants to frontally meet the main complaint filed by Aying
HELD: If that is your purpose, you have to file two (2) answers – you file an answer to
the third party complaint and you file a second answer to the main complaint filed by Aying.
“A third-party complaint involves an action separate and distinct from, although related
to, the main complaint. A third-party defendant who feels aggrieved by some allegations in

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the main complaint should, aside from answering the third-party complaint, also answer the
main complaint.”
Normally, Cyle answers the 3rd party complaint of Bugoy and does not answer to the complaint of
Aying. But according to SINGAPORE case, if Cyle feels aggrieved by the allegations of Aying, he should
also answer the main complaint of Aying. Practically, he shall answer the 3rd party complaint and the
main complaint.
Rule 7
PARTS OF A PLEADING
This is more on Legal Forms, a third year subject. That is a bar subject. That is the last subject given
on the fourth Sunday. The last subject in the bar is Legal Ethics and Practical Exercises where an
examinee will be asked to prepare pleadings like answer, complaint, information.
Sec. 1 – Caption. The caption sets forth the name of the court. The
title of the action, and docket number if assigned.
The title of the action indicates the names of the parties. They
shall all be named in the original complaint or petition; but in
subsequent pleadings it shall be sufficient if the name of the first
party on each side be started with an appropriate indication when there
are other parties.
Their respective participation in the case shall be indicated.
ILLUSTRATION:
Republic of the Philippines

CAPTION 11th Judicial Region
Regional Trial Court of
Davao
Branch 12
Juan dela
Cruz, Civil Case #12345
TITLE For: Annulment of Contract
Plaintiff
-versus-
Osama bin
Laden
COMPLAINT
BODY
Defendant
Plaintiff, through counsel respectfully alleges
that:
1. x x x x x x;
2. x x x x x x;
3. x x x x x x
So, there must be a caption, title. Take note, the title of the action indicates the names of the parties.
They shall all be named in the original complaint or petition; but in the subsequent pleadings, it shall be
sufficient if the name of the first party of each side be stated without the others. You only write the first
name of plaintiff and defendant and followed by the word ‘ET AL”.
Q: Suppose there are 20 plaintiffs and 20 defendants in the concept of permissive joinder of parties.
Now is it necessary that they shall be named?
A: In the complaint, YES. They shall all be named. It is possible that the title alone will reach 3 or
more pages.
BUT in subsequent pleadings like the answer, reply, it is not necessary to write the name of
everybody. What the law requires is to write the name of the first plaintiff followed by the term ‘ET AL”.
Example: Ms. Quitain, et al, plaintiffs vs. Ms. Pastor, et al, defendants.

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So the rule is, it is only in the complaint where the name of all the parties are required to be stated,
but in subsequent pleadings, no need. But there is an EXCEPTION to this rule. There are instances where
the law does not require the name of the parties to be stated even in the complaint.
Q: What are the instances where the law does not require the name of the parties to be stated even in
the complaint?
A: These are the following:
1.) Subsequent Pleading (e.g. answer, reply, etc.) (Section 1);
2.) Class suit (Rule 3, Section 12);
3.) When the identity or name of the defendant is unknown (Rule 3, Section 14);
4.) When you sue an entity without judicial personality (Rule 3, Section 15);
5.) If a party is sued in his official capacity. Official designation is sufficient. [e.g. Mr. Acelar vs.
City Mayor of Davao.] (Unabia vs. City Mayor, 99 Phil. 253)
Sec. 2. The body. - The body of the pleading sets forth its
designation, the allegations of the party's claims or defenses, the
relief prayed for, and the date of the pleading. (n)
a) Paragraphs - the allegations in the body of a pleading shall be
divided into paragraphs so numbered as to be readily identified, each of
which shall contain a statement of a single set of circumstances so far
as that can be done with convenience. A paragraph may be referred to by
its number in all succeeding pleadings. (3a)
(b) Headings - When two or more causes of action are joined, the
statement of the first shall be prefaced by the words "First cause of
action", of the second by "second cause of action," and so on for the
others.
(c) Relief - The pleading shall specify the relief sought, but it may
add a general prayer for such further or other relief as may be deemed
just or equitable. (3a, R6)
(d) Date - Every pleading shall be dated. (n)
In the body, you state your allegations or defenses. Then at the end, you state the relief which we call
PRAYER – what you are asking the court: “Wherefore, it is respectfully prayed that judgment be rendered
ordering defendant to pay plaintiff his loan of P1 million with interest of 10% p.a. from this date until fully paid.”
Then, you end up with the date of the pleading: “Davao City, Philippines, December 10, 1997.”
A pleading is divided into paragraphs so numbered as to be readily identified. Normally, a

complaint starts: “Plaintiff, thru counsel, respectfully alleges that x x x.” Then first paragraph, second
paragraph and so on. The first paragraph is normally the statement of the parties and their addresses
which is required under Rule 6 where a complaint must state the names:
1. Plaintiff Juan dela Cruz is of legal age, a resident of Davao City whereas defendant Pedro
Bautista, is also of legal age and a resident of Davao City.
2. On such and such a date, defendant secured a loan from plaintiff in the amount of so much
payable on this date.
3. The loan is now overdue but defendant still refused to pay.
So every paragraph is numbered so that it can easily be identified in the subsequent pleadings. Pag-
sagot ng Answer, he will just refer to the #, “I admit the allegations in paragraph #5)
Paragraph [b] is related to Rule 2 on joinder of causes of action. Can you file one complaint
embodying two or more causes of action? YES.
EXAMPLE: Angelo wants to file a case against Ina to collect three unpaid promissory notes. So, there
are three causes of action. The lawyer of Angelo decided to file only one complaint collecting the three
promissory notes. Now, how should he prepare the complaint containing the three promissory notes?
Plaintiff respectfully alleges: 1. that he is of legal age x x x.
FIRST CAUSE OF ACTION: In 1995, there was a loan secured amounting to so much and it is
not paid until now;
SECOND CAUSE OF ACTION: In 1995, there was a second loan…became payable and is not
paid.
THIRD CAUSE OF ACTION: x x x x.
In other words, hiwa-hiwalayin mo. You indicate your different causes of action. That is how you
prepare your complaint. On the other hand, the defendant will answer:
ANSWER:

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ANSWER TO THE FIRST CAUSE OF ACTION x x x,

ANSWER TO THE SECOND CAUSE OF ACTION x x x,
ANSWER TO THE THIRD CAUSE OF ACTION x x x.
Do not combine them together in one paragraph. Even in trial when you present your exhibits, you
might get confused because you combined all the three causes of action in one paragraph. But with this
one, the presentation is clearer, the outline is clearer and it is more scientifically arranged than joining
them in one story.
Under paragraph [c], the pleading must state the relief sought. But it may add a general prayer for
such further other relief as may be just and equitable like yung mga pahabol na “Plaintiff prays for such
further or other relief which the court may be deemed just or equitable.” Meaning, aside from the relief sought,
Kung meron ka pang gustong ibigay, okay lang. That is the general prayer.
Q: Is the prayer or relief part of the main action?

A: NO, it is part of the complaint or answer but it may indicate what is the nature of the cause of
action. Cause of actions are mere allegations. Prayer is not part of the action but it is important because it
might enlighten us on the nature of the cause of action. That is the purpose of relief or prayer.
EXAMPLE : Angelo filed a case against Ina for annulment of a contract of sale. If you look at the
caption, it is a personal action which should be instituted in the place where the parties reside. But if you
look at the prayer: “Wherefore, it is respectfully prayed that after trial, the deed of sale shall be annulled on the
ground of intimidation, and the ownership of the land sold to the defendant in Digos be ordered returned.”
Actually, you are trying to recover the ownership of the land. So in other words, it is not a personal action
but a real action.
Sec. 3. Signature and Address.- Every pleading must be designed by

the party or counsel representing him, stating in either case his address
which should not be a post office box.
x x x x x
Signature and address – every pleading must be signed by the party or the counsel representing him.
Take note of the prohibition now: You must state your address which should not be a post office box
because one difficulty is that the exact date when you claim your mail cannot be determined if it is a P.O.
box. But if it is served to his office, the exact date can easily be determined.
Before, I met a situation where the lawyer filed a motion or a pleading stating only his telephone
number. My golly! that is worse! How will I send my reply? Through telephone also? (sa text kaya?)
IMPLIED CERTIFICATION IN A PLEADING

Section 3, second paragraph:
“The signature of counsel constitutes a certificate by him that he

has read the pleading; that to the best to his knowledge, information,
and belief there is good ground to support it; and that it is not
interposed for delay.”
Q: When a lawyer signs a pleading, what is he certifying?

A: Second paragraph says, he is certifying that he has read the pleading, that to the best of his
knowledge, information and belief, there is a good ground to support it, and it is not interposed for delay.
That is called as and IMPLIED CERTIFICATION IN A PLEADING (Arambulo vs. Perez, 78 Phil.
387). That was already asked in the bar once.
BAR QUESTION: What is the meaning of the phrase “Implied Certification in a Pleading”?
A: “Implied Certification in a Pleading” means that when a lawyer signs a pleading he is certifying
that he has read it, to the best of his knowledge, information and belief there is a good ground to support
it, and it is not interposed for delay.
Section 3, last paragraph:
An unsigned pleading produces no legal effect. However, the court

may, in its discretion, allow such deficiency to be remedied if it shall
appear that the same was due to mere inadvertence and not intended for
delay. Counsel who deliberately files an unsigned pleading, or signs a
pleading in violation of his Rule, or alleges scandalous or indecent

2001 Edition
matter therein, or fails to promptly report to the court a change of his

address, shall be subject to appropriate disciplinary action. (5a)
So, when a pleading is not signed it produces no legal effect. It is as if no pleading has been filed.
Q: Now, suppose it was just an inadvertent omission, it was not intentional maybe because he was
hurrying to file the pleading, the lawyer had it filed when actually he has not signed it yet.
A: Well, actually if that is in good faith, the court may forgive the counsel because the law says,
“however, the court, may in its discretion, allow such deficiency to be remedied if it shall appear that the
same was due to mere inadvertence and not intended for delay.” Maybe, alright, you sign it now in order
that it will produce a legal effect.
However, if the lawyer files a pleading which is UNSIGNED DELIBERATELY, sinadya, then,
according to the rules, he shall be subject to appropriate disciplinary action. That is practically unethical
‘no? Not only that, he is also subject to disciplinary action if he signs a pleading in violation of this Rule
or alleges scandalous or indecent matter therein, or fails to promptly report to the court a change of his
address. These are the grounds no.
Now, this ground – fails to promptly report to the court a change of his address has been inserted in 1997
Rules, this was not found in the prior Rules. Siguro, the SC has discovered that this has been the cause of
delay in litigation.
Q: What do you mean by this?

A: A lawyer will file a pleading in court, he will say this is his address, and then he moves his office
without telling the court or the opposing counsel of his new address. So, the court will be sending notices
and orders to his old address and it is returned to sender because the lawyer already moved to another
place. So, it causes delay ba.
So, in order to penalize the lawyer, subject to disciplinary action, it is his obligation to inform the
court and even the opposing counsel about his new address so that all court orders, decisions and all
pleadings will be served on his address. I think what prompted the SC to insert this is the fact that it has
been the cause of delays in many cases.
VERIFICATION
Sec. 4. Verification.- Except when otherwise specifically required by

law or rule, pleadings need not be under oath, verified or accompanied by
affidavit. (5)
A pleading is verified by an affidavit that the affiant has read the
pleading and that the allegations therein are true and correct of his
knowledge and belief.
A pleading required to be verified which contains a verification
based on "information and belief," or upon "knowledge, information and
belief," or lacks a proper verification, shall be treated as an unsigned
pleading. (6a)
Q: What do you understand by verification in a pleading?

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

accordance with law, hereby say that:
I am the plaintiff in the above entitled case.

I caused the preparation of this complaint;
I read the allegations therein;
And they are true and correct of my own knowledge.
Signed
Affiant
Subscribed and sworn to before me on this 2nd day of

October 2001, in the City of Davao, Philippines.
Panfilo Corpuz
Notary Public

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

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

A: NO. The GENERAL RULE is, pleadings need not be under oath, EXCEPT when otherwise
specifically required by law or this rule. When the law or rules require a pleading to be verified, then it
must be verified, otherwise it is formally detective. If the law is silent, verification is not necessary and
the pleading is filed properly.
Now, if you ask me, what are the pleadings which the law or the Rules of Court require to be
verified, there are many. They are scattered throughout the Rules and we will meet some in the course of
going over the Rules. I think that question has already been asked 3 times in the BAR. The last time was
in 1995. Meaning, the examiner was asking for the exceptions. You cannot find one rule or one section
where you will get all the answers in that section because they are scattered, sabog eh. So, practically, it
requires the Bar candidate to have a grasp of the entire Rules so that he will be able to recall as many
pleadings as there are, which require. From time to time we will go on, we will meet them.
BAR QUESTION: Name as many pleadings as you can which must be verified.
A: The following: (taken from the 4th year Remedial Law transcription)
1.) Rule 8 – when you deny the due execution of an actionable document;
2.) Summary Rules – all pleadings under summary rules should be verified;
3.) Special Civil Actions – petitions for certiorari, prohibition and mandamus.
I remember that years ago, there was a student who asked me this question:
Q: Now, on the other hand, suppose a pleading does not require verification but the lawyer had it
verified. What is the effect?
A: There is no effect, just surplusage! A pleading in general is not required to be verified. But I will
verify it. Is there something wrong with it? Technically, none. But if it is required to be verified and you
omit the verification, it is formally defective.

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So he said, “In other words Sir, it is better pala that you will verify every pleading para sigurado. No
harm man kaya? At least, even if there is a verification, when it is not required, no harm.” That’s true, no
harm but if a lawyer does that, that only shows he does not know the rules. He cannot identify which
pleading requires to be verified because he will automatically verify everything.
And the second effect, if a pleading is not verified, and the statement is false, there is no perjury. Now
I verify it, and it turns out to be deliberately false, you are courting a criminal prosecution for your client
for perjury. In other words, you create a crime of perjury when actually there should be none in the first
place. The policy may be playing it safe but it produces other effects. Ignorance of the rules!
CERTIFICATION OF NON-FORUM SHOPPING
Sec. 5. Certification against forum shopping.-- The plaintiff or the

principal party shall certify under oath in the complaint or other
initiatory pleading asserting a claim for relief, or in a sworn
certification annexed thereto and simultaneously filed therewith:
a)that he has not theretofore commence any action or filed any claim
involving the same issues in any court, tribunal or quasi-judicial agency
and, to the best of his knowledge, no such other action or claim is
pending therein;
b)if there is such other pending action or claim, a complete
statement of the status thereof; and
c)if he should thereafter learn that the same or similar action or
claim has been filed or pending, he shall report that fact within (5)
days therefrom the court wherein his aforesaid complaint or initiatory
pleading has been filed.
Failure to comply with the foregoing requirements shall not be
curable by mere amendment of the complaint or other initiatory pleading
but shall be cause for the dismissal of the case without prejudice,
unless otherwise provided, upon motion and after hearing. The submission
of a false certification or non-compliance with any of the undertakings
therein, shall constitute indirect contempt of court, without the
prejudice to the corresponding administrative and criminal actions. If
the acts of the party or his counsel clearly constitute willful and
deliberate forum shopping, the same shall be ground for summary dismissal
with prejudice and shall constitute direct contempt, as well as a cause
for administrative sanctions. (n)
You know what is forum shopping? I think you have an idea about that, no? Forum Shopping is an
unethical practice when a lawyer or a party files identical cases in two or more tribunals hoping that if he
may fail in one case, he will succeed in another forum. Now, maybe this practice has become rampant
before, not so much in Davao City but maybe in Metro Manila because most of the abuses in the bar
happen in Metro Manila not in the provinces.
Maybe because of these abuses, the SC has decided to put down this provision in order to assure
good faith. So everytime you file a complaint you must certify under oath that you have not filed any
other case of this nature in any other court. More or less, you will follow the language found in the first
paragraph. And this requirement was originally found in a Circular 04-94 of the SC. It is now
incorporated in the new rules in Section 5.
Q: What is the effect if a complaint or a third-party complaint is filed in court without the certification
on non-forum shopping?
A: That is a ground by itself for an automatic dismissal of the complaint.
Now take note that the certification of non-forum Shopping is not only required in the complaint but
the law says: “Complaint or other initiatory pleadings” such as counterclaims, cross-claims, third-party
complaints. Therefore, all these pleadings require certification against forum shopping.
Now let’s go to the second paragraph.
Again, what is the possibility if the complaint is filed without the certification against forum
shopping? That is a ground by itself for the dismissal of the complaint.
Q: Now, suppose I will amend the complaint because at first there was no certification of non-forum
shopping, therefore, automatically the defect is cured. Now, is it automatic?
A: Look at the 2nd paragraph, it says, “failure to comply with the foregoing requirements shall not be
curable by mere amendment of the complaint or other initiatory pleading, but shall be cause for the
dismissal of the case without prejudice.” Meaning, you can still re-file the case with the inclusion of the
certification against forum shopping. Pwede mong ulitin, you re-file the same complaint. That is the
meaning of ‘without prejudice.’

2001 Edition
“Unless otherwise provided, upon the motion after hearing” – meaning, it is now discretionary on
the court to determine whether to dismiss or not to dismiss. Of course, it is a ground for dismissal, but the
court may say, “Okay, we will just amend it. We will not dismiss.” But definitely, you cannot insist that
because I already amended, everything is cured. That is for the court to determine whether to dismiss or
not to dismiss. So, mere amendment does not cure automatically the missing certification.
I think this provision that mere amendment does not cure automatically the missing certification for
non-forum shopping was taken by the SC from its ruling in the 1995 case of
KAVINTA vs. CASTILLO, JR.

249 SCRA 604
HELD: “The mere submission of a certification under Administrative Circular No. 04-94
after the filing of a motion to dismiss on the ground of non-compliance thereof does not ipso
facto operate as a substantial compliance; otherwise the Circular would lose its value or
efficacy.”
As a matter of fact, if the certification is deliberately false there are many other sanctions – contempt,
possible administrative actions against the lawyer or criminal case for perjury.
Now, in permissive counterclaims, there must be a certification of non-forum shopping, otherwise

the case will be dismissed. Some lawyers argue that the certification is not required in compulsory
counterclaims. It is only required in permissive counterclaims because in permissive counterclaims, the
claimant has two choices: (1.) to file a counterclaim in the same case, or (2.) to file a separate case.
Another view is that, since Section 5 does not distinguish, we should not distinguish.
However, that issue is now resolved in the 1998 case of
SANTO TOMAS UNIVERSITY HOSPITAL vs. SURLA

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

because there is no possibility of forum shopping in compulsory counterclaims.
“The proviso in the second paragraph of Section 5, Rule 7, of the 1997 Rules of Civil
Procedure, i.e., that the violation of the anti-forum shopping rule ‘shall not be curable by
mere amendment . . . but shall be cause for the dismissal of the case without prejudice,’ being
predicated on the applicability of the need for a certification against forum shopping,
obviously does not include a claim which cannot be independently set up.”

published by


2001 Edition
Rule 8
MANNER OF MAKING ALLEGATIONS IN
PLEADINGS
Sec. 1 In general – Every pleading shall contain in a methodical and
logical form, a plain, concise and direct statement of the ultimate facts
on which the party pleading relies for his claim or defense, as the case
may be, omitting the statement of mere evidentiary facts.
If a defense relied on is based on law, the pertinent provisions
thereof and their applicability to him shall be clearly and concisely
stated.
In so far as pleadings are concerned, it must only state the ultimate facts where you relied your
defense or complaint. You must omit the statement of mere evidentiary facts. The basic question here is,
what do you mean by ultimate facts? What are evidentiary facts? Distinguish ultimate facts from
evidentiary facts.
ULTIMATE FACTS vs. EVIDENTIARY FACTS
Q: What are ultimate facts?

A: Ultimate facts are those which is are essential to one’s cause of action or defense.
Q: How do you determine whether a fact is essential to your cause of action or defense?
A: The test to determine whether the fact is essential to your cause of action is: if the statement in the
pleading cannot be deleted. Because if you delete it, the statement of your cause of action or defense
become incomplete, a certain element of cause of action disappears then it must be a statement of
ultimate fact. Pagtinanggal mo, wala ka ng cause of action. But if you delete it and there is still a cause of
action, then it is not an ultimate fact.
Q: What are the essential elements of a cause of action?

A: The following:
1.) Statement of the right;
2.) Statement of the obligation;
3.) Statement of the violation; and
4.) Statement of damage.
You analyze a complaint from the first to the last paragraph, you find out whether the four are
present. Now, for example a complaint has 20 paragraphs. Yan bang 20 paragraphs, importante ba lahat?
We will shorten it by analyzing sentence by sentence. I will remove paragraph #2. Are the elements of the
cause of action still present out of the remaining paragraph? If the answer is yes, then, paragraph #2 is
not a statement of ultimate fact. We will remove paragraph #5, the story is still complete, there is still a
cause of action, then, the paragraph or the statement that you removed is not a statement of ultimate
facts. Suppose I will remove paragraph #7, kulang na man, the allegation of the violation of the right is no
longer present, then, the paragraph #7 cannot be deleted, otherwise, if you delete it the statement or the
story or the cause of action disappear. Then, that is an ultimate fact.
So if the statement can be deleted and the cause of action is still complete, then it is not a statement
of ultimate fact. It is only a statement of evidentiary fact.
Q: What are evidentiary facts?

A: Evidentiary facts are the facts which will prove the ultimate facts. They should not be stated in the
pleading. They should be brought out during the trial. They are proper during the trial but they have no
place in your pleading.

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In the law on Evidence, ultimate facts are called facturn probandum as distinguished from factum
probans (evidentiary facts).
EXAMPLE: In a land dispute, the question is: Who has been in possession of the land for a long
time? I claim I’m the one. So, I will say, “plaintiff has been in possession of this land continuously for the
past 30 years.” That is a statement of ultimate fact because that shows your right – your right over the
property – that you cannot be driven out. Thirty years na gud iyan.
Suppose the lawyer wants to impress the court that the statement is true, the pleading describing
continues possession for the past 30 years from 1967 to 1997. And therefore, the lawyer will now prepare
the complaint in this manner:
Plaintiff has been in possession of the said property

continuously, openly for the past 30 years from 1967 to 1997 as may
be born out by the following:
He entered the property in 1967. He cleared the property by
cutting the grass. In 1968, he planted 20 coconut trees. In 1969, he
planted 50 coconut trees. In 1970, he planted mango trees. In 1971,
he planted guava. He will recite everything from 1967 to 1997.
That will really prove that he have been there for the past 30 years because continuous eh, - every
year you are reciting your activities including the taxes that you paid, the receipt, “‘yan o, eto and resibo
ko!” Now, if a lawyer will do that, his complaint will reach 100 pages. Do you know why? Because he
violated Section 1. He did not only state the ultimate facts but he also stated the evidentiary facts. So,
what should be the correct pattern? Complaint:
Plaintiff has been in continuous possession of the property for

30 years from 1967 up to the present.
That is the ultimate fact. You do not have to recite exactly what you did because that is what I intend
to prove. Now, of course, during the trial, how can I convince the court that I have been in possession of
the property for 30 years? Kailangan you have to convince, di ba? Then, during the trial, you present the
plaintiff and you ask the plaintiff: Mr. Plaintiff, when did you occupy the property? – “1967” – When you
first occupied the property, describe it. – “Ah, bagnot! I have to clean it. So I clean it in 1967.” – In 1968, were
you still there? – “Oh yes!” – What did you do in 1968? – “I planted coconut trees.” – Did you pay taxes in
1968? – “Yes!” – Where’s the receipt? – “Eto o!”
Yaan! From 1967, isa-isahin mo yan. Doon na tayo mag-istorya sa court. The evidentiary facts should
be brought out in court not in the pleadings, otherwise your pleading become kilometric. That is what is
meant by the phrase that you only state the ultimate facts omitting the statement of evidentiary facts.
Another Example:
Collection case. Sabihin mo: “The defendant borrowed money and then it fell due. I
made demands for him to pay, but despite repeated demands he refused to pay.”
Tama na iyon. You do not have to state in your complaint that “when the account fell due last November
5, I called him up by telephone. He promised to pay in November 7 and called him again and he promised to pay
tomorrow…” Hindi na kailangang sabihin mo iyan! Those are evidentiary facts. But during the trial, you
can narrate that I have been writing, “eto o, andami kong sulat, I have been calling him by telephone but he kept
on promising.” So, mag-istorya ka na ng detail sa husgado. Those are what you call evidentiary facts. But
in your complaint you do not have to recite all those.
Under Section 1, you state the ultimate facts on which you rely your claim or defense. How do you
state the facts? Section 1 says that statement of ultimate facts must be stated in a methodical and logical
form and you must use plain, concise and direct statements or language. The simpler the language, the
better. A pleading is not a vehicle for you to show your mastery of the English language. The judge
might throw away your complaint for not using simple language.
I was reading an article about the use of plain, concise and direct language. I remember- Do not use
this word, rather use this word. For example, do not use the word ‘conflagration,’ use ‘fire.’ The latter is
simpler.
How do you present the facts? Methodical and logical form. It is a matter of writing style. Every
person has his style of writing. Corollary, every person expects you to write in a methodical or logical
form. We have said earlier that a pleading actually tells a story. Plaintiff tells the court his story.
Defendant tells his story, too. How will the court understand your story? Your presentation must be
methodical and logical.

2001 Edition
Writing style is a gift, no? Some people tell their story clearly, others don’t understand. Sasabihin
mo, sabog ka mag-storya. Ang labo mo! It is not methodical and logical. Courts expect lawyers to
present case in a methodical and logical form.
What is the first test whether you style is methodical or logical? The best exercise is your own answer
in examinations. In a problem, you answer and you try to argue why. You try to present your answer in
a clear manner. It must be methodical and logical.
In your examinations, you may wonder why you got a different score with your classmates where in
fact the substance of your answers is the same. Precisely because the presentation of the answer also
matters. Siya 80, ikaw 75. Tingnan mo ang kanyang presentation, mas maganda. To know the answer is
not enough, you must know HOW to answer. Especially in the Bar exams where the corrector is
correcting more than 4,000 notebooks, your notebook must project itself as if your notebook is telling the
corrector: Read me! Read me!! That is the formula to pass law school and the Bar.
PRINCIPLE: Only ultimate facts should be alleged and not the evidentiary facts.
Q: Apart from evidentiary facts, what are the other matters that should not be stated in the pleading?
A: The following:
1.) Facts which are presumed by law;
2.) Conclusions of fact or law;
3.) Matters which are in the domain of judicial notice need not be alleged.
FACTS WHICH ARE PRESUMED BY LAW
Presumptions under the law need not be alleged in a pleading. When a fact is already presumed by
law, there is no need to make that allegation because your cause of action would still be complete.
Example:
Q: In a case of breach of contract against an operator of the common carrier. Do you think it is
necessary for the plaintiff to allege that the driver acted negligently? Is an allegation that the driver of the
carrier acted with negligence required?
A: NOT required. There must be negligence, otherwise, there would be no cause of action. However
there is no need to allege it in the complaint because under the Civil Code, whenever there is a breach of
contract of carriage, there is a presumption of negligence on the part of carrier. It is not for the passenger
to prove that the common carrier is negligent. It is for the common carrier to prove that it is not
negligent.
HOWEVER, In culpa aquilana, or quasi-delict, where there is no pre-existing contract between the
parties, the liability of the defendant hinges on negligence. There must be allegation of negligence. The
defendant must be alleged to have acted negligently to hold him liable. Otherwise, there is no cause of
action. It becomes an ultimate fact which should be alleged in the pleading.
CONCLUSIONS OF FACT OR LAW
Conclusions of law or conclusions of fact must not be stated in the pleading. A statement of fact is
different from a conclusion of fact or law. For EXAMPLE, where plaintiff said that he is entitled to moral
damages or attorney’s fees. That is not a statement of fact but your conclusion.
Statement of fact is to cite the basis why you are entitled – you must state the reason why you are
entitled. The statement of the ultimate fact as distinguished from conclusion was the old case of
MATHAY vs. CONSOLIDATED BANK

58 SCRA 559
HELD: “A bare allegation that one is entitled to something is an allegation of a

conclusion. Such allegation adds nothing to the pleading, it being necessary to plead
specifically the facts upon which such conclusion is founded.”
You must plead the facts upon which your conclusion is founded. To say that you are entitled to
something is not actually a statement of fact but merely a conclusion of the pleader. It adds nothing to
the pleading.

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For EXAMPLE: The complaint alleges that the defendants are holding the plaintiff’s property in Trust
for the plaintiff. Trustee ba – you are holding the properties in trust for me without any explanation of
the facts from which the court could conclude whether there is a trust or not. The SC in the case of
MATHAY said that that statement is merely a conclusion of the plaintiff. You must state the basis of your
statement that they are holding your property in trust.
Frankly speaking, there are numerous complaints which are convincing but upon reading them
thoroughly, you will realize that majority of the statements are not statements of facts but conclusions of
law. Tatanggalin yung conclusion. It is bad complaint when you say that you are entitled to this without
stating your basis.
So statement of law is not allowed although there is an exception under the second paragraph of
Section 1 which says that “if a defense relied on is based on law, the pertinent provisions thereof and their
applicability to him shall be clearly and concisely stated.” At least now you can quote the law. Sometimes a
defendant when he files his answer, his answer is purely based on law. He must cite the legal provision
in his answer and explain WHY is it applicable to him.
ALLEGATION OF ALTERNATIVE CAUSES OF ACTION OR DEFENSES
Sec. 2. Alternative causes of action or defenses. - A party may set

forth two or more statements of a claim or defense alternatively or
hypothetically, either in one cause of action or defense or in separate
causes of action or defenses. When two or more statements are made in the
alternative and one of them if made independently would be sufficient,
the pleading is not made insufficient by the insufficiency of one or more
of the alternative statements. (2)
Q: May a plaintiff in his complaint state two or more claims alternatively or hypothetically?
A: Yes.
Q: What happens if one cause of action is insufficient? Will it cause the dismissal of the complaint?
A: No, the complaint will remain insofar as the sufficient cause of action is stated. The insufficiency of
one will not affect the entire pleading if the other cause of action is insufficient.
EXAMPLE:
I read a case about passenger who was about to board a bus. Of course when you are a
passenger and you get hurt, that is culpa contractual. If you are not a passenger and you get
hurt due to the negligence of the driver, that is culpa aquiliana. So it depends whether there is
a contract of carriage or none.
In that case, the passenger was about to board a bus. As a matter of fact, the left foot had
already stepped on the bus. The bus suddenly sped up. He fell. He was not able to ride
because umandar man bigla. He was injured. What is the basis against the carrier? Is there a
contract or none? There is! Nandoon na nga ang kaliwang paa, eh. Sabi ng iba, wala pang
contract. Well, may mga kaso talaga na malabo. You don’t really know whether your cause of
action is culpa contractual or culpa aquiliana. You want to claim damages but you are not sure
whether your case is based on culpa contractual or culpa aquiliana. It’s either one of the two. It
sometimes happens.
Now, if I am the lawyer for the plaintiff and I am tortured to make my choice, I may allege 2 possible
alternative causes of action. I will draft the complaint in such a way that I will show to the court that my
cause of action is either culpa contractual or culpa aquilana. I will make sure that both allegations are
covered. You cannot be wrong because the law does not require you to make a choice.
Q: You are the defendant. You are confronted with the same problem. There is a complaint against
you and you have 3 possible defenses. Am I obliged to make a choice immediately?
A: NO. The law allows the defendant to cite the 3 possible defenses alternatively. Meaning, each is
my defense or not.
Suppose your defenses are inconsistent, takot ka. There is a lawyer I met na takot maging
inconsistent. I told him to look at Section 2, Rule 8 very well. The law allows defendant to plead his
defenses hypothetically or alternatively. He asked, what if they are inconsistent with each other? I said,
you look at SC decisions. The SC said a party may plead 2 or more causes of action or 2 or more defenses
alternatively. They may be inconsistent with each other but what is important is each defense is

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consistent in itself. Meaning, each defense, when taken alone, is a good defense. You look at them
separately. Do not compare them.
For EXAMPLE:
Plaintiff files a case against a defendant to collect an unpaid loan. The basic allegation is
that the defendant obtained a sum of money by way of loan and never paid it. Here is
defendant’s answer:
a.) “That is not true. I never borrowed any money from the plaintiff.” That is a defense
of denial.
b.) “Assuming that I received money from the plaintiff, that money was not a loan but
plaintiff’s birthday gift to me.” In other words, it was a donation.
c.) “Assuming that the money I received from the plaintiff was really a loan. However,
such amount was completely paid.” Defense of payment.
So, I have 3 defenses. How can you reconcile these 3 defenses? They are inconsistent with each other
but it should not be taken against the defendant. What is important is that each defense is consistent in
itself. Look at them separately. That is also called a “SHOTGUN ANSWER”. Sabog ba! In all directions.
However, during that trial, you have to choose among them which you think is true based on
evidence. The problem is that you choose one but it turned out that a different defense would be correct.
Hindi mo na magamit. There is a prejudice because during the trial, I will choose among them with the
evidence I have. Anyway, pleading man lang yon. I can abandon the others. And that is even better
because you might confuse the plaintiff of what really is your defense. Thus, a lawyer should not be
afraid to hypothetically or alternatively plead defenses which are inconsistent with each other.
That is perfectly allowed as it is alternative and during trial the pleader may show the best one rather
than not stating it in the pleading and during the trial you waive the best defense because according to
the next rule, Rule 9, defenses or objections not pleaded in the answer are deemed waived.
Take note that you have to correlate this topic on the related provisions we have already taken up:
For EXAMPLE:
1.) Rule 2, Section 5 – where a party may, in one pleading state in the alternative or otherwise, as
many causes of action;
2.) Rule 3, Section 6 – on permissive joinder of parties. When may 2 persons or more be joined as
plaintiffs or defendants and how are they joined? They are joined jointly, severally, or
alternatively; and
3.) Rule 3, Section 13 – on alternative defendants. When you are uncertain who is the real defendant,
you may join them alternatively although the relief against one may be inconsistent with the
other.
Remember this provisions because they are interrelated. Thus, when you study the Rules, don’t limit
yourself to a particular provision. Look for other related provisions so you may see the entire picture.
That’s called co-relation – “You don’t only see the tree but the entire forest.” This is very helpful in the
bar exam.
HOW ALLEGATIONS IN A PLEADING ARE MADE
Q: How do you make allegations or averments in a pleading? Can you do it in a general manner or
do you need to be specific? How do you allege your ultimate facts? Is it in particular or general terms?
A: It depends on what matters you are alleging in your complaint – whether is a condition precedent,
capacity to sue or be sued, fraud, mistake, malice, judgment, or official document or act.
ALLEGATION OF A CONDITION PRECEDENT
Sec. 3. Conditions Precedent. - In any pleading, a general averment

of the performance or occurrence of all conditions precedent shall be
sufficient. (3)
Sometimes in a pleading, you have to allege that the conditions precedent have already been
complied with. Can you still remember, one of the elements of a right of action is that before you can go
to court, you must comply with all the conditions precedent?

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Q: When you allege compliance with the conditions precedent, is it necessary for you to be specific
what are those conditions precedent?
A: NO. Section 3 says that in every pleading, a general averment for the performance of all conditions
precedent shall be sufficient. A general allegation will suffice.
For EXAMPLE, in Administrative Law, you have the doctrine of exhaustion of administrative
remedies. Where a law provide for the exhaustion of administrative remedies, court should not
entertain cases without complying said remedies first. If the rule on exhaustion of administrative
remedies is violated, do you think your case will prosper? NO, it will not.
Specific EXAMPLE: You started with a quarrel over a parcel of land where you applied for
homestead. May kalaban ka. Where will you file first? Bureau of Lands. You may then appeal to the
Secretary of Agriculture. From the Secretary of Agriculture, you may go to the Office of the
Presidential who can reverse the decision of the secretary. Now, talo ka pa rin but you believe there is
a good ground to reverse the decisions in the executive department, you can now go to the court.
That is called the doctrine of judicial review of administrative decision. Yan!
Definitely, from the Bureau of Lands, you cannot directly go to the court because you have not yet
complied with conditions precedent before filing the case. And the condition precedent is that you must
comply with the rule on exhaustion of administrative remedies.
Q: Now, suppose I have already complied with all these remedies. I will then go to court. Definitely,
I will allege that I have already exhausted remedies in the executive level. Is that allegation sufficient? “I
have already exhausted my remedies in the administrative level.” Do I have to emphasize - “I started
with the Bureau of Lands. From there, I went to Department of Agriculture. From there, I went to the
Office of the President”?
A: According to Section 3, a general averment will be sufficient. You need not specifically allege
compliance of conditions precedent. Therefore, an averment of the performance or occurrence of all
conditions precedent may be made generally and it shall be sufficient.
ALLEGATION OF CAPACITY TO SUE OR BE SUED
Sec. 4. Capacity - Facts showing the capacity of a party to sue or to

be sued or the authority of a party to sue or to be sued in a
representative capacity or the legal existence of an organized
association of persons that is made a party, must be averred. A party
desiring to raise an issue as to the legal existence of any party or the
capacity of any party to sue or be sued in a representative capacity,
shall do so by specific denial, which shall include such supporting
particulars as are peculiarly within the pleader's knowledge. (4)
When you file a case against somebody you must have capacity to sue and defendant must have
capacity to be sued.
Q: Is it necessary for me to say that plaintiff has capacity to sue? And the defendant has capacity to
be sued?
A: YES because Section 4 says you must show capacity to sue and be sued. It means that capacity to
sue and be sued must be averred with particularity. A general statement of it is not sufficient. As a
matter of fact, that is the first paragraph of a complaint: “Plaintiff, Juan dela Cruz, of legal age, single, a
resident of Davao City…” There is no presumption of capacity or incapacity to sue.
You may say, “I am suing as guardian of the plaintiff.” That is a representative party – to sue and be
sued in a representative capacity. Can you say, “I am suing as a guardian?” NO. Neither can you say, “I
am appointed as the guardian.”
Q: How should it be done?

A: “I am the court’s appointed guardian of the plaintiff minor having been afforded guardian by the
court in this case based on an order.” You have to emphasize that the court appointed you.
Section 4 says, “the legal existence of an organized association of persons that is made a party...” It
means that the defendant is a corporation existing by virtue of the Philippine Corporation Law. There is
no presumption that you are corporation. That is the reason why facts showing capacity to sue and be
sued, etc. must be averred with particularity.
There’s a case which you will study in Corporation Law whether a foreign corporation can sue in
Philippine court. Under the law, it can sue provided it is licensed to do business in the Philippines. The
SC emphasized that if a foreign corporation is suing somebody in Philippine courts, the complaint must

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specifically allege that a foreign corporation is doing business in the Philippines with a license to do.
Otherwise, it cannot sue. Yaan!
“A party desiring to raise an issue as to the legal existence of any

party or the capacity of any party to sue or be sued in a representative
capacity, shall do so by specific denial, which shall include such
supporting particulars as are peculiarly within the pleader's knowledge…”
(section 4, 2nd sentence)
EXAMPLE: You are the plaintiff corporation with juridical capacity. I am the defendant. Suppose I
will deny your capacity to sue. I will deny that you are a corporation licensed to do business in the
Philippines. Now, the law requires me to deny your legal capacity and I must state the reason or basis of
such denial – why you are not of legal age, why you are not a corporation.
This is so because the law says that when you deny or when you question the legal existence of a
party or the capacity of any party to sue and be sued, you shall do so by specific denial which shall
include such supporting particulars as are peculiarly within the defendant’s knowledge. You cannot
plead a general statement that you deny. Your denial must be particular. You must be more specific
about what you are denying.
ALLEGATION OF FRAUD OR MISTAKE
Sec. 5. Fraud, mistake, condition of the mind.- In all averments of

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

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

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

2001 Edition
A: The following:
1.) Rule 8, Section 3– Conditions precedent;
2.) Rule 8, Section 5, 2nd sentence – Conditions of the mind;
3.) Rule 8, Section 6 – Judgment;
4.) Rule 8, Section 9 – Official document or act
Q: What averments must be done with PARTICULARITY?

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

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

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

A: There are two (2) options:
1.) The substance of such instrument or document, shall be set forth in the pleading and the
original or a copy thereof shall be attached as an exhibit.
2.) The copy of the document may with like effect quoted in the pleading in which case, there is
no need to attach the copy.
In the first one, there is no need to copy it. Just mention the substance or features of he promissory
note. The entire document must be quoted in the pleading.
EXAMPLE:
PROMISSORY NOTE:
December 31, 1997
For value received, I promise to pay “B” P1 million not later

than one year from date with 2 percent per annum.
Signed: “A”
Q: Using the above promissory note, how should the pleading be worded?
A: Two ways of pleading of actionable document:

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1.) The substance shall be set forth in the pleading and the original or a copy thereof shall be
attached to the pleading as an exhibit, which shall be deemed as part of the pleading. Party
simply cites only important parts of the document, then attached the document.
EXAMPLE:
COMPLAINT
1. Plaintiff B is xxx of legal age xxx; Defendant A is

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

xxxgayxxxx;
2. On Dec. 31, 1997 def. A secured a loan from plaintiff B which is
covered by a promissory note worded as follows:
PROMISSORY NOTE:
December 31, 1997
For value received, I promise to pay “B” P1

million not later than one year from date with 2
percent per annum.
Signed: “A”
3. The account is now overdue and despite demands of defendant

A still failed to pay B xxx.
So, you copy the entire promissory note verbatim. There is no need to attach a copy of the promissory
note. That is the second way.
Now, if the document is not classified as actionable, then there is no need to follow Section 7. Just
imagine if you will apply Section 7 to all documents in your possession. If you intend to present in
evidence 50 documents and only one is actionable, ang 49 hindi, so you will have 49 annexes. So, ang
pleading mo, kakapal. (parang mukha mo!)
Q: Suppose in the first way, the promissory note was not attached. What will happen?
A: The party violates Rule 8, Section 7. The adverse party may move to dismiss the complaint for
violation of the rules, if such document could not be secured.
If an actionable document is properly pleaded in your pleading in the manner mentioned in Section
7, the adverse party is now obliged to follow Section 8 if he wants to contest such document.
Sec. 8. How to contest such documents. When an action or defense is

founded upon a written instrument, copied in or attached to the
corresponding pleading as provided in the preceding section, the
genuineness and due execution of the instrument shall be deemed admitted
unless the adverse party, under oath, specifically denies them, and sets
forth what he claims to be the facts; but the requirement of an oath does
not apply when the adverse party does not appear to be a party to the
instrument or when compliance with an order for an inspection of the
original instrument is refused. (8a)

2001 Edition
Q: Does every pleading have to be under oath?

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

2.) In case it was signed by an agent in behalf of the corporation or partnership, or a principal,
the signature was unauthorized;
3.) The corporation was not authorized under its charter to sign the instrument;
4.) The party charged signed it in some other capacity than that alleged in the pleading; and
5.) It was never delivered. (Hibberd vs. Rhode, supra)
Q: Does it mean to say that when you admit impliedly the genuineness and due execution of the
actionable document, you have no more defense?

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A: NO. What are no longer available are defenses which are inconsistent with your own admission of
the genuineness and due execution of the actionable document like forgery, because you cannot admit
that the document is genuine and at the same time allege that it is forged. According to the SC in
HIBBERD, you may still invoke defenses provided the defenses are NOT inconsistent with your
admission of the authenticity of the document.
Q: What defenses may be interposed notwithstanding admission of genuiness and due execution of
an actionable document as aforesaid?
A: In the case of HIBBERD, the following:
1.) payment;
2.) want or illegality of consideration;
3.) fraud;
4.) mistake;
5.) compromise;
6.) statute of limitation;
7.) estoppel;
8.) duress;
9.) minority; and
10.) imbecility
Now, if you do not verify you denial, there is already an advantage in my favor. So you cannot
anymore interpose the defense of for example, forgery because that is inconsistent with your own
admission of the genuineness and due execution of the actionable document. But what if the you
presented evidence to prove forgery? Can I waive the benefit of implied admission?
Q: May the benefit of the admission of genuineness and due execution of an actionable document? If
so, in what instances?
A: YES. In the following cases, the implied admission is deemed waived:
1.) Where the pleader presented witnesses to prove genuiness and due execution and the
adversary proved, without objection, the contrary. (Yu Chuck vs. Kong Li Po, 46 Phil. 608);
2.) Where the pleader fails to object to evidence controverting the due execution. (Legarda Koh
vs. Ongsiaco, 36 Phil. 185)
In other words, the lawyer of the defendant does not remember Section 8 and therefore the denial is
improper. But the lawyer of the plaintiff did not also remember Section 8 that when there was evidence of
forgery, he failed to object. So, the incompetence of the both lawyers cancel each other. That is what
happens if the lawyer does not know. Bobo! Maayo pa ang bulalo, naay utok!
WHEN DENIAL NOT UNDER OATH STILL VALID
Q: When may a simple denial suffice? Meaning, what are the instances where the denial of the
genuineness of the document, which is not under oath, is valid?
A: Section 8 says, the requirement of an oath does not apply:
1.) When the adverse party does not appear to be a party to the instrument;
EXAMPLE: Ms. Guadalope filed a case against Ms. Castillo based on a contract entered by them. But before Ms.
Guadalope filed the case, Ms. Castillo died (simba ko!… tok-tok!). So Ms. Guadalope filed against the heirs. The heirs
realized that the signature of Ms. Castillo in contract as forged. Even if the answer of the heirs is not under oath, they
can still prove forgery because they are not party to the instrument.
2.) When compliance with an order for an inspection of the original instrument is refused;
3.) When the document to be denied is not classified as an actionable document but merely an
evidentiary matter. This is because when the document if not actionable, there is no need to
follow Section 7.
REPLY; GENERAL RULE: OPTIONAL; EXCEPTION: SECTION 8
Normally, the person who is presenting the actionable document is the plaintiff.
PROBLEM: But suppose it is the defendant who is invoking an actionable document for his defense.
He claims to have paid the loan and have attached a copy of the RECEIPT to his answer. The plaintiff
looks at the document and realizes that his signature in the receipt is forged.
Q: What should the plaintiff do?

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A: Based on Section 8, the plaintiff must deny the genuineness of the receipt specifically under oath
Q: In what pleading should the plaintiff file where he will deny under oath the genuiness and due
execution of the receipt?
A: Plaintiff should file a REPLY and it must be under oath. If he will not file a reply, the receipt is
impliedly admitted to be genuine.
Q: But the plaintiff may argue that under Rule 6, Section 10 the filing of a reply is optional. How do
we reconcile it with Section 8?
A: Rule 6 is the general rule. Section 8 should prevail over Rule 6 because the former is a specific
provision that applies only to actionable document. It has been asked in the Bar:
Q: When is the filing of the reply compulsory?

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

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

A: Briefly, it is a defense of SPECIFIC DENIAL where the defendant denies the statement in the
complaint by stating the facts and the reason/s on which his denial is based.
Q: How is a specific denial done?

A: Rule 8, Section 10:
Sec. 10. Specific denial. A defendant must specify each material

allegation of fact the truth of which he does not admit and, whenever
practicable, shall set forth the substance of the matters upon which he
relies to support his denial. Where a defendant desires to deny only a
part of an averment, he shall specify so much of it as is true and
material and shall deny only the remainder. Where a defendant is without
knowledge or information sufficient to form a belief as to the truth of a
material averment made in the complaint, he shall so state, and this
shall have the effect of a denial. (10a)
Q: So what are the modes of specific denial?

A: Under Section 10, there are three (3) MODES OF SPECIFIC DENIAL:
FIRST MODE: A defendant must specify each material allegation of fact

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

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SECOND MODE: Where a defendant desires to deny only a part of an

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

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

Material averment in the complaint, other than those as to the amount of
unliquidated damages, shall be deemed admitted when not specifically
denied. Allegations of usury in a complaint to recover usurious interest
are deemed admitted if not denied under oath. (1a, R9)
While the law says ‘material averment in the complaint,” this rule extends to counterclaims, cross-
claims and third-party complaints. (Valdez vs. Paras, L-11474, May 13, 1959)
The reason for the rule on specific denial is that, if there is a material averment in the complaint and
was not specifically denied, it is deemed admitted. However under Section 11, there are averments in the
complaint which are not deemed admitted even when not specifically denied.

2001 Edition
GENERAL RULE: Material averment in a complaint shall be deemed admitted when not specifically
denied.
EXCEPTION: Instances when averments in the complaint are not deemed admitted even when not
specifically denied:
1.) Amount of unliquidated damages;

2.) Immaterial averments (Worcester vs. Lorenzana, 56 O.G. 7932, Dec. 26, 1960)
3.) Evidentiary matters; because a party is only obliged to aver ultimate facts; (Agaton vs. Perez,
L-19548, Dec. 22, 1966)
4.) Conclusions of facts or law.
Let’s discuss the first exception – AMOUNT OF UNLIQUIDATED DAMAGES is not deemed
admitted even if not specifically denied. So if the damages are liquidated, they are deemed admitted.
Examples of unliquidated damages are moral and exemplary damages. Or expenses which I incurred in
the hospital. Those are unliquidated damages. They are always subject to evidence. You have to prove
how much amount you are entitled to. That is why they are not deemed admitted even if not specifically
denied.
So if you are claiming P1 million damages for sleepless nights or besmirched reputation, and I did not
specifically denied such claim, it does not mean that you are automatically entitled to P1 million. Hindi
yan puwede. You have to present evidence that you are really entitled to P1 million. Yaan!
On the other hand, an example of liquidated damages is an obligation with a penal clause. For
example in our contract, it is stipulated that in case you cannot comply with your obligation, you will pay
me P1 million. So if you failed to specifically deny it, then you are deemed to have admitted that I am
entitled to P1 million. There is no need for computation because the amount is already in the contract
beforehand. The contract itself would show how much I am entitled.
Section 11 also says, “Allegations of usury in a complaint to recover usurious interest are deemed
admitted if not denied under oath.” Usury means you charge interest above the legal interest provided by
the usury law. If you want to deny my charge of usury, your answer must be under oath. So, this is the
second instance where a denial should be verified.
NOW, I wonder why this provision is here when as early as 1983 in the case of LIAM LAW vs.
OLYMPIC SAW MILL (129 SCRA 439), that usury is no longer existing and the SC stated in that case that
the provision of the Rules of Court in usury are deemed erased or superseded. Obviously, the SC forgot
what it said in the 1983. (Ulyanin!!)
Sec. 12. Striking out of pleading or matter contained therein. Upon

motion made by a party before responding to a pleading or, if no
responsive pleading is permitted by these Rules, upon motion made by a
party within twenty (20) days after the service of the pleading upon him,
or upon the court's own initiative at any time, the court may order any
pleading to be stricken out or that any sham or false, redundant,
immaterial, impertinent, or scandalous matter be stricken out therefrom.
(5, R9)
Before answering, the defendant can file a motion to strike out a pleading or a portion of a pleading.
Striking a pleading means that the pleading will be deemed erased as if it was never filed. Or if a portion
of the pleading be ordered stricken out or expunged where a pleading or a portion thereof is sham or
false, redundant, immaterial, impertinent, or a scandalous matter is inserted in the pleading, is deemed
erased. This is related to Rule 7, Section 3, third paragraph:
RULE 7, Sec. 3. Signature and address. x x x x

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

A: A motion to strike may still be filed by the defendant within 20 days after the reply.

2001 Edition
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Rule 9
EFFECT OF FAILURE TO PLEAD
General Rule: DEFENSES AND OBJECTIONS NOT PLEADED EITHER IN A MOTION TO DISMISS
OR IN THE ANSWER ARE DEEMED WAIVED
Section 1. Defenses and objections not pleaded. Defenses and

objections not pleaded either in a motion to dismiss or in the answer are
deemed waived. However, when it appears from the pleadings or the
evidence on record that the court has no jurisdiction over the subject
matter, that there is another action pending between the same parties for
the same cause, or that the action is barred by a prior judgment or by
statute of limitations, the court shall dismiss the claim. (2a)
GENERAL RULE: Defenses or objections not pleaded in a motion to dismiss or on answer are
deemed waived. If you do not plead your defense, the same is deemed waived. The court has no
jurisdiction over the issues.
EXAMPLE: In a collection case against you, you did not raise the defense of payment in your answer.
But during the trial, you attempted to prove that the loan has already been paid. Now, that cannot be
done because the defense of payment is deemed waived because you did not raise it in your answer. In
other words, the court never acquired jurisdiction over the issue.
So, there is no such thing as a surprise defense because the defense must be pleaded. If you want to
surprise the plaintiff during the trial by not raising your defense in your answer, you will be the one who
will be surprised because the court will not allow you. When the parties go to court, the plaintiff already
knows what are the defenses. They are already in the answer.
EXCEPTIONS:
Q: What defenses or objections can be taken cognizance of by the court despite the fact that they are
not raised in the motion to dismiss or answer?
A: Under Section 1, Rule 9, the following:
1.) That the court has no jurisdiction over the subject matter;
2.) That there is another action pending with the same parties for the same cause (litis pendentia;
3.) That the action is barred by prior judgment (res adjudicata); and
4.) That the action is barred by statute of limitation (prescription).
Take note that the exceptions can be raised at any time during or after the trial, or even for the first
time on appeal.
Now, the traditional rule to remember notwithstanding the SIBUNGHANOY Doctrine, is that, when
there is a defect in the jurisdiction of the court over the subject matter, the defect can be raised at any

2001 Edition
stage of the proceeding even for the first time on appeal (Roxas vs. Raferty, 37 Phil. 957). This is because
everything is null and void. Jurisdiction over the subject matter cannot be conferred by agreement
between the parties, by WAIVER, by silence of the defendant.
LITIS PENDENTIA. You file a another case while another action is pending between the same parties
for the same cause. That is actually splitting a cause of action because there is already an action and then
you file another action. The action can be dismissed on the ground that there is a pending action.
RES ADJUDICATA. There was already a prior final judgment then you file another case regarding the
same issue. That is also splitting a cause of action.
PRESCRIPTION is not found in the old rule but is taken from decided cases. Among which are the
cases of
PNB vs. PEREZ (16 SCRA 279)
PEPSI COLA vs. GUANZON (172 SCRA 571)
HELD: “The rule on waiver of defenses by failure to plead in the answer or in a motion to
dismiss does not apply when the plaintiff’s own allegations in the complaint show clearly
that the action has prescribed in such a case the court may motu propio dismiss the case on
the ground of prescription.”
Q: Can the court dismiss the action based on any of these grounds without the filing of a motion to
dismiss?
A: YES. It would seem so because the second sentence says, “When it appears from the pleadings or
the evidence on record … the court shall dismiss the claim.” (This is an important change)
Under the 1964 Rules, one of the grounds that you can raise at any stage of the proceeding before
judgment is failure to state a cause of action, but it disappears under the new rules. Does it mean to say
that you cannot raise it anymore? NO. It can still be raised because it can be taken care of by another rule
– Rule 33 on Demurrer.
Sec. 2. Compulsory counterclaim, or cross-claim, not set up barred. A

compulsory counterclaim, or a cross-claim, not set up shall be barred.
(4a)
See discussions on Rule 6, Sections 7 and 8 on counterclaim and cross-claims, respectively.
RULE ON DEFAULT
Sec. 3. Default; declaration of. If the defending party fails to

answer within the time allowed therefor, the court shall, upon motion of
the claiming party with notice to the defending party, and proof of such
failure, declare the defending party in default. Thereupon, the court
shall proceed to render judgment granting the claimant such relief as his
pleading may warrant, unless the court in its discretion requires the
claimant to submit evidence. Such reception of evidence may be delegated
to the clerk of court. (1a, R18)
x x x x x x
A defending party is declared in DEFAULT if he fails to answer the complaint within the time
allowed therefor. The rule on answer is found in Rule 11. And under Rule 11 as a rule, you have 15 days
to file an answer counted from the time you are furnished a copy of the complaint together with the
summons
If the period to answer lapsed and there is no answer, the plaintiff will move to declare the defendant
in default on the ground of failure to file an answer to the complaint. So, the court will issue an order of
default declaring you as a defaulted defendant.
And from the time a party is declared in default, he loses his standing in court, although he is still
entitled to notice of subsequent proceedings. He cannot participate in the trial. He cannot object to
plaintiff’s evidence. He cannot present his own evidence. In effect, the case will be decided only on the
basis of plaintiff’s side without anymore hearing the defendant. And of course, the plaintiff will win. It
is like a boxing bout ba where the rule is, isa lang ang mag-suntok. My golly! How can you win in that
situation? That is the effect of default.

2001 Edition
Take note that the word ‘defending’ party applies not only to the original defendant but even to the
cross-defendant or defendant in a counterclaim.
Q: May a court declare a defendant in default without any motion?

A: NO, because the law says, “upon motion of the claiming party.”
Now, “with NOTICE to the defending party” is a new one. You must furnish a copy to the defending
party of your motion to order the defendant in default which abrogates previous rulings.
Q: Suppose the defendant filed an answer but during the trial, he failed to appear. May he be
declared in default?
A: NO, because the ground for default is failure to file an answer. The correct procedure is for the
trial to proceed without him. (Go Changjo vs. Roldan Sy-Changjo, 18 Phil. 405) That is what you call EX-
PARTE reception of evidence. Only one side will be heard.
BAR QUESTION: If the defendant is declared in default for failure to file an answer is deemed to
have admitted the allegations in the complaint to be true and correct?
A: YES, because the law NOW says, “the court shall proceed to render judgment granting such
claimant such relief as his pleading may warrant.” The reception of plaintiff’s evidence is already
dispensed with. Wala ng reception of evidence. That is the GENERAL RULE. That is the same as the
summary rules and judgment on the pleadings and the court can grant the relief without presentation of
evidence.
HOWEVER under Section 3, it is discretionary upon the court to require the claimant to submit
evidence. EX-PARTE RECEPTION of evidence is OPTIONAL for the court. And such reception of
evidence may be delegated to the clerk of court. This is related to Section 9, Rule 30:
Rule 30, Sec. 9. Judge to receive evidence; delegation to clerk of

court. The judge of the court where the case is pending shall personally
receive the evidence to be adduced by the parties. However, in default or
ex parte hearings, and in any case where the parties agree in writing,
the court may delegate the reception of evidence to its clerk of court
who is a member of the bar. The clerk of court shall have no power to
rule on objections to any question or to the admission of exhibits, which
objections shall be resolved by the court upon submission of his report
and the transcripts within ten (10) days from termination of the hearing.
(n)
The reception of evidence maybe delegated to the clerk of court but the clerk of court must be a
lawyer, that is the condition. So if he is not a member of the bar, he is not authorize to conduct or hear an
ex-parte reception of evidence.
SUMMARY: Steps when the defendant fails to file an answer within the time allowed:
1.) Motion to declare defendant in default;

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

187 SCRA 153

2001 Edition
HELD: “The failure to furnish a copy of the answer to the adverse party in itself is
sufficient or valid basis for defendant’s default.”
Q: May a defendant be declared in default while a motion to dismiss (Rule 16) or a motion for bill of
particulars (Rule 12) remains pending and undisposed of?
A: NO, because under the filing of a motion to dismiss or motion for bill of particulars interrupts the
running of the period to answer. It will run again from the moment he receives the order denying his
motion to dismiss or for bill of particulars. (Hernandez vs. Clapis, 87 Phil. 437)
In the case of
DEL CASTILLO vs. AGUINALDO
212 SCRA 169 [1992]
FACTS: The defendant filed a motion to dismiss under Rule 16 but his motion to dismiss
did not contain notice of time and place of hearing and the motion was denied. Can he file an
answer after filing the motion to dismiss?
HELD: NO. He can be ordered in default. The motion is a useless piece of paper with no
legal effect.
“Any motion that does not comply with Rule 16 should not be accepted for filing and if
filed, is not entitled to judicial cognizance and does not affect any reglementary period. Not
having complied with the rules, the motion to dismiss filed by the defendant did not stay the
running of the reglementary period to file an answer.”
GOLDEN COUNTRY FARM, INC. vs. SANVAR DEV’T CORP.

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

entitled to notice of subsequent proceedings but not to take part in the
trial. (2a, R18)
So if you are declared in default, you cannot take part in the trial. You lose your standing, you cannot
cross-examine the witness of the plaintiff assuming there is a reception of evidence. You cannot object to
his evidence. You cannot even present your own evidence when you are in default.
But what is NEW here is that, you are entitled to notice of subsequent proceedings which abrogates
the old rule. Under the old rules, you are not entitled to service of notice, orders, except substantially
amended pleadings, supplemental pleadings, final orders or judgments or when you file a motion to set
aside an order of default.
But NOW, wala na yan. You are now entitled to service of everything. You only lose you standing in
court but for the purpose of notice, you are entitled to service of every motion, every pleading, every
order.
HOW TO LIFT ORDER OF DEFAULT
(b) Relief from order of default. - A party declared in default may

at any time after notice thereof and before judgment file a motion under
oath to set aside the order of default upon proper showing that his
failure to answer was due to fraud, accident, mistake or excusable
negligence and that he has a meritorious defense. In such case, the order
of default may be set aside on such terms and conditions as the judge may
impose in the interest of justice. (3a, R18)
Q: What is the remedy of a defendant who has been declared in default?

2001 Edition
A: One remedy under Section 3 paragraph [b] is that, provided there is still no default judgment, he
can still file a motion to set aside the order of default upon a proper showing that his failure to answer
was due to F.A.M.E. (Fraud, Accident, Mistake, or Excusable negligence) and that he has a meritorious
defense. [The discussions on FAME is in Rule 37 – New Trial or Reconsideration]
Meaning, even if you are a victim of FAME, if you have no meritorious defense, the court will not lift
the order of default. You are wasting my time. Kahit na pagbigyan kita, talo ka pa rin. There is no
chance for you to win anyway. But if you have a meritorious defense, there is no guarantee that you will
win but at least you have a fighting chance ba that your standing will be restored.
Upon proof, the court will set aside or lift the order of default and will give the defendant an
opportunity to answer, where he will plead his supposed meritorious defenses. In effect, he regains his
standing in court.
Q: When can the defendant avail of this remedy?

A: He may file a motion to set aside the order of default at any time after notice thereof and before
judgment.
SUMMARY: Steps the defendant should take to set aside the order of default:
1.) File a motion to lift or set aside the order of default. The motion must be verified and under
oath;
2.) He must explain why he failed to file an answer due to FAME; and
3.) He must also show that he has a meritorious defense.
PARTIAL DEFAULT
(c) Effect of partial default. - When a pleading asserting a claim

states a common cause of action against several defending parties, some
of whom answer and the others fail to do so, the court shall try the case
against all upon the answers thus filed and render judgment upon the
evidence presented. (4a, R18)
This presupposes that there are two or more defendants. Say, one or some of the defendants made an
answer and the others did not. So, one or some of the defendants were declared in default, the others
were not.
EXAMPLE: Gary sued Bentong and Bayani. Bentong filed an answer. Bayani did not. Bayani was
declared in default but there can be no judgment against Bayani in the meantime because under
paragraph [c], the case will go to trial based on the answer of Bentong. The case will be tried against both
Bentong and Bayani based on the answer of Bentong.
The principle here is that, the answer filed by the answering defendant will automatically benefit the
non-answering defendant. The defense of Bentong will also be Bayani’s defense. Anyway there is a
common or identical cause of action. The best example would be a promissory note signed by both
Bentong and Bayani and they bound themselves solidarily. Both of them were sued. Bentong answered
while Bayani did not, hence he is in default. Can there be a default judgment against Bayani? NO, there
will still be a trial based on the answer of Bentong. In effect, Bentong will defend not only himself but also
Bayani.
Q: Suppose during the trial, Bentong proved that the obligation has been extinguished, which is also
applicable to Bayani, and the complaint is dismissed, what is the effect?
A: Both Bentong and Bayani will win the case. So Bayani will be benefited by the answer of his co-
defendant Bentong. Hence, there is still a possibility that a defaulted defendant can win based on our
example.
On the other hand it is absurd if the answer of Bentong will not benefit the defaulting defendant.
EXAMPLE: Gary filed a case against Bentong and Bayani based on a promissory note on a loan secured
by both, and Bayani defaulted. Bentong answered alleging payment. Suppose, Bentong proved such
defense, the effect is both Bentong and Bayani are absolved. If you say that Bayani should lose because
the answer of Bentong will not benefit Bayani, there will be two conflicting decisions: “Bayani is in
default and thus, should pay the loan; and there is no more loan as far as Bentong is concerned.” Do you
mean a loan is paid and at the same time unpaid? That’s absurd!
But take NOTE that to apply the principle, there must be a common cause of action. If there is no
cause of action, while there may be a trial, the answer of Bentong is only for him. After the trial, Bentong

2001 Edition
might be absolved from liability but the defaulting defendant Bayani will be held liable because
Bentong’s answer does not cover Bayani. That is when there is no common cause of action. In the case of
CO vs. ACOSTA (134 SCRA 185 [1985])

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

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

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

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(d) Extent of relief to be awarded. - A judgment rendered against a

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

1.) The default judgment should not exceed the amount prayed for in the complaint;
2.) The default judgment should not be different in kind from that prayed for in the complaint;
3.) The default judgment should not award unliquidated damages.
Q: In the complaint, the claim is P300,000. The defendant defaulted. The court required the plaintiff to
present his evidence and during the trial, the latter proved P500,000 total claim. Can the court award
P500,000 claim as proved?
A: NO. It should only be P300,000 as prayed for in the complaint.
Q: Suppose during the trial, only P200,000 was proved. What should be the amount of the default
judgment?
A: Only P200,000 as proved because it did not exceed the amount prayed for in the complaint.
Therefore, the rule is, the default judgement cannot exceed the amount prayed for in the complaint
although it may be less than it. Yaannn!
FUNDAMENTAL REASON ON THE RULE ON DEFAULT
What is the reason behind this? You have to know the philosophy on default to understand the
reason behind paragraph [d]. Default means the defendant failed to file an answer despite the fact that he
was properly summoned.
Q: If a defendant failed to file an answer, what may be the reasons behind that? Why did he not file
an answer?
A: In the case of LIM TOCO vs. GO FAY, (80 Phil 166), there are two (2) possible reasons:
1.) Defendant deliberately did not answer because he believed that he had no good defense, and
that the claim is fair. And if he will make an answer, still he will not win and would just incur
expenses;
2.) He had a meritorious defense and he wanted to answer but for one reason or another beyond
his control, he failed to file his answer.
Q: In the second possibility – the defendant had a defense and wanted to file an answer but failed to
file an answer, what is the remedy of such defendant?
A: It is paragraph [b] – file a motion to lift the order of default and state the reasons beyond one’s
control – fraud, mistake, accident, or excusable negligence (FAME) and that there is a meritorious
defense.
Now suppose he did not answer because he thinks the claim is fair and so he will just pay. Then, the
contingency is paragraph [d] – rest assured that the judgment will not exceed the amount or be different
in kind from that prayed for. At least, you will not be surprised.
Just imagine, if you file a case against me for P200,000 damages and then I thought its fair. So I
allowed myself to be defaulted because anyway its only P200,000 because if I file my answer, the costs
could increase. And then during the trial, you proved that the damages were in fact P2 million. So, when
I received the judgment it was already P2 million when the complaint was only for P200,000. Now, if you
knew that would be the case, then you would have fought it out. In other words, its unfair. Hence, the
reason.
Q: If the defendant filed an answer but failed to appear during trial, what will happen?
A: The case will proceed and there will be a presentation of evidence EX-PARTE.
Now if a person is declared in default, it is also possible that an Ex Parte presentation of evidence will
be ordered.
MANGELIN vs. COURT OF APPEALS

215 SCRA 230 [1992]
ISSUE: What is the difference between ex-parte presentation of evidence by virtue of

default judgment AND ex-parte presentation of evidence by failure to appear during the trial

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

A: UNLIQUIDATED DAMAGES are those which are still subject to evidence before it can properly
be awarded such as the presentation of receipts in terms of actual damages, or taking of testimonies to
determine mental anguish or besmirched reputation in cases of moral damages.
LIQUIDATED DAMAGES are those which are already fixed and proof or evidence to establish the
same are not required. An example is an obligation with a penal clause like an agreement to construct a
house and upon failure to finish the same within a stipulated period, the contractor is liable for P10,000
for every day of delay. The amount is already fixed based on the contract price and the penalty provided
and such other circumstances as stipulated.
Now, this third limitation is one of the provisions that I criticized. It should not be here. Something is
wrong here. Last September 1997 during the BAR exams, the secretary of the committee which drafted
this, the former clerk of court of the SC, Daniel Martinez asked for comments on the New (1997) Rules. I
told him about the new Rules on Default, asking him who placed the provision there. He said it was
Justice Feria’s idea.
J. Feria said, “Kawawa naman kasi yung tao, na-default na titirahin mo pa ng unliquidated
damages.” But I said that there is something wrong here. For EXAMPLE: You filed a case against me na
puro damages – compensatory , moral , etc. and I believe I will lose the case if I go to trial. So, my strategy
now would to have myself declared in default because anyway, those unliquidated damages cannot be
awarded by default.
In other words, they have placed the defaulted defendant in a better position when he will file an
answer because if he files an answer and goes to trial, he might lose. So, if he allows himself to be
defaulted, the court can never award the damages. This is the effect of the new limitation. That is why I’m
against this change here.
So, in an action for damages, I will never answer para pag ma-default ako, the court can never award
those damages. Because if I will answer, eh baka ma-award pa. In other words, I will win the case simply
because there is no way for the court to award the damages. And most damages are usually those
unliquidated damages.
(e) Where no defaults allowed. - If the defending party in an action

for annulment or declaration of nullity of marriage or for legal
separation fails to answer, the court shall order the prosecuting
attorney to investigate whether or not a collusion between the parties
exists, and if there is no collusion, to intervene for the State in order
to see to it that the evidence submitted is not fabricated. (6a, R18)
This refers to marital relations referred to in the Family Code: Annulment of marriage; Declaration of
nullity of marriage; Legal Separation. And the policy of the State is to preserve the marriage and not
encourage break-ups.

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Now, in the absence of this provision, husband and wife quarrels and then they decide to separate.
Wife will file a case for legal separation with the agreement that the husband will not answer. Being in
default, there will be a judgement in default and in a month’s time marriage will be severed for the
meantime. The provision then prohibits default in marital relations cases to preserve and uphold public
policy.
Q: What if the party did not really file an answer?

A: The court is bound to find out whether there is a collusion between the parties – whether the act is
deliberate without agreement. We already know that there should be presentation of evidence. And the
law requires the State to intervene. The fiscal is responsible to see to it that the evidence is not fabricated,
the same is legitimate.
Relate this provision of the rule to Articles 48 and 60 of the Family Code:
Family Code, Art. 48. In all cases of annulment or declaration of

absolute nullity of marriage, the court shall order the prosecuting
attorney or fiscal assigned to it to appear on behalf of the State to
take steps to prevent collusion between the parties and to take care that
the evidence is not fabricated or suppressed.
In the cases referred to in the preceding paragraph, no judgment
shall be based upon a stipulation of facts or confession of judgment.
Family Code, Art. 60. No decree of legal separation shall be based

upon a stipulation of facts or a confession of judgment.
In any case, the court shall order the prosecuting attorney or fiscal
assigned to it to take steps to prevent collusion between the parties and
to take care that the evidence is not fabricated or suppressed.

published by

Rule 10
AMENDED AND SUPPLEMENTAL

PLEADINGS

2001 Edition
Part I. AMENDMENTS
Sec. 1. Amendments in general. - Pleadings may be amended by adding

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

A: Well, any type of change – you can add a word or a sentence or you strike out an allegation or you
add or strike out a party; you correct a mistake in the name of a party or inadequate allegation or
description in any other respect. As a matter of fact, if you correct only one letter, that is already an
amendment.
So you can amend by removing something, adding something, or changing something by

substituting another word. You can amend by removing an entire paragraph, an entire sentence, a
phrase, or a word. So that is what amendment is all about. As a matter of fact, before reaching Rule 10,
there are provisions where amendments have already been touched upon, one of which is Rule 1, Section
5:
Sec. 5. Commencement of action.- A civil action is commenced by the

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

1.) a formal amendment; or

2001 Edition
2.) a substantial amendment
These are the same classification under the Rules on Criminal Procedure under Rule 110.
Amendment as a MATTER OF RIGHT; and
Amendment as a MATTER OF JUDICIAL DISCRETION
AMENDMENT AS A MATTER OF RIGHT simply means that the party has the unconditional action
or right to amend his pleading. The court has no right to prevent him from amending. The opposite
party has no right to oppose the amendment.
AMENDMENT AS A MATTER OF JUDICIAL DISCRETION simply means that the court may or
may not allow the amendment. So the other party has the right to oppose.
AMENDMENT AS A MATTER OF RIGHT
Q: When is amendment a matter of right?

A: Section 2:
Sec. 2. Amendments as a matter of right. - A party may amend his

pleading once as a matter of right at any time before a responsive
pleading is served or, in the case of a reply, at any time within ten
(10) days after it is served. (2a)
PROBLEM: I am the plaintiff, I file a complaint. I want to amend my complaint. When is the
amendment a matter of right?
A: At any time a responsive pleading is served to the complaint. Meaning, at any time before the
defendant has filed his answer, the plaintiff may change his complaint at any time. He may change it in
any manner, substantially or formally.
Q: How about the defendant? Suppose he wants to change his answer, when is his right absolute or
as a matter of fact right?
A: At any time before a reply by the plaintiff is filed or before the expiration of the period to file a
reply because a reply may or may be not be filed.
Q: How about if you want to amend your reply? You cannot say before a responsive pleading is
served because there is no more responsive pleading to the reply.
A: So under Section 2, the plaintiff can amend his reply at any time within ten (10) days after it is
served.
Q: Is there any other instance when amendment is a matter of right even if there is already an answer
or even in the middle of the trial the party can still change his pleading and it seems that the court should
allow it?
A: Yes, there is a second instance, when the amendment is FORMAL IN NATURE as found in Section
4:
Sec. 4. Formal amendments. - A defect in the designation of the

parties and other clearly clerical or typographical errors may be
summarily corrected by the court at any stage of the action, at its
initiative or on motion, provided no prejudice is caused thereby to the
adverse party. (4a)
When the amendment is fairly formal, it can be done anytime. As a matter of fact it can be summarily
corrected by the court at any stage of the action, upon motion or even without motion, the court will
order the amendment. Because anyway that is a harmless correction.
NOTE: Change of amount of damages is only formal because there is no change in the cause of
action.
SUMMARY: Amendment as a matter of right:

1.) Before an answer is filed (Complaint);
2.) Before a reply is filed or before the period for filing a reply expires (Answer);
3.) Any time within 10 days after it is served (Reply); and
4.) Formal amendment

2001 Edition
AMENDMENT AS A MATTER OF JUDICIAL DISCRETION
So we will now go to substantial amendments which are a matter of judicial discretion, that is Section
3:
Sec. 3. Amendments by leave of court. - Except as provided in the

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

A: The amendment must be substantial and the adverse party has already filed and served a copy of
his responsive pleading.
PROBLEM: I will file my complaint against you and you will file your answer. After you have filed
your answer, I want to amend my complaint and my amendments is not merely formal but something
substantial, like my cause of action will not be the same anymore.
Q: Can it still be done?
A: YES, BUT this time it is a matter of judicial discretion. It must be with leave of court. So I will have
to file a motion in court to allow or admit the proposed amended complaint. I will furnish a copy of the
motion to my opponent together with a copy of the amended complaint and the other party has the right
to oppose the amendment. So the court will hear and decide whether to allow the amendment or not.
Q: Assuming that the amendment is a matter of judicial discretion, how should the court resolve it?
Assuming that the argument is 50-50 and the court is deliberating whether or not to allow the
amendment.
A: Based on established jurisprudence, the court should always allow the amendment because of the
liberal policy of the rules. Amendments of pleadings should be liberally allowed in order that the real
merits of the case can be ventilated in court without regard to technicalities. So the court will always lean
on allowing a pleading to be amended. That is the liberal policy.
LIMITATIONS TO THE LIBERAL POLICY IN AMENDMENTS TO PLEADINGS
Q: What are the limitations to this liberal policy in allowing amendments? Meaning, when can the
court refuse to allow the amendment and when can you validly oppose it?
A: The following:
1.) when the amendment is to delay the action (Section 3);
2.) when the amendment is for the purpose of making the complaint confer jurisdiction upon
the court (Rosario vs. Carangdang, 96 Phil. 845);
3.) when the amendment is for the purpose of curing a premature or non-existing cause of action
(Limpangco vs. Mercado, 10 Phil. 508; Wong vs. Yatco, 99 Phil. 791)
1.) WHEN THE AMENDMENT IS TO DELAY THE ACTION

The second sentence of Section 3 says that such leave may be refused if it appears that the motion was
made with intent to delay. Meaning, the motion to amend is dilatory. Example: a case is filed against the
defendant based on a cause of action then trial…trial…then the case is already about to end. Then the
plaintiff says he wants to amend his complaint and change his cause of action. I don’t think the court will
allow it. That’s too much.
Or, the defendant will say that he would like to change his defense. I don’t think the court will agree
with that situation because it appears that the motion to amend is already dilatory. Why did it take you
one year to realize that your cause of action or your defense is wrong? So that is a limitation where the
court may refuse to apply the principles on liberality. The liberal policy becomes weaker or is working
against you the longer you delay your amendment because it might already be interpreted to be dilatory.

2001 Edition
Now if you will notice, there is another limitation found in the old rules that is gone here, and that is :
That the amendment will not be allowed if it will SUBSTANTIALLY alter the cause of action or defense (Torres vs.
Tomacruz, 49 Phil. 913) The implication here is that, since amendment is favored, even if you alter you
cause of action or defense, you should not prevent the other party provided that it is not dilatory. And
the definition of this limitation is a confirmation of what the SC said in some cases like the case of
MARINI-GONZALES vs. LOOD
148 SCRA 452
HELD: “While the Rules of Court authorize the courts to disallow amendment of
pleadings when it appears that the same is made to delay an action or that the cause of action
or defense is substantially altered thereby, the rule is not absolute.” It is discretionary.
“Courts are not precluded from allowing amendments of pleadings even if the same will
substantially change the cause of action or defense provided that such amendments do not
result in a substantial injury to the adverse party. This is due to the permissive character of
said rule [which provides: “may refuse”]. In fact, this Court has ruled that amendments to
pleadings are favored and should be liberally allowed in the furtherance of justice.”
That is why these are enough reason to delete that limitation. But if you are going to change your
cause of action or defense when the trial is almost over, hindi na puwede because that will be dilatory.
But if you want to change it before the trial, that it still allowed, even if it is substantial in nature. That’s
why this limitation disappeared. But despite the fact that there is only one limitation now left, it is
conceded that there are still limitations not found in the law which have remained intact.
2.) WHEN THE AMENDMENT IS FOR THE PURPOSE OF MAKING THE COMPLAINT CONFER JURISDICTION UPON
THE COURT
In other words, based on the original complaint the court has no jurisdiction over the subject matter.
So I will amend the complaint so that the court will have jurisdiction. Well, that will not be allowed. So,
jurisdiction by the court cannot be conferred by amendment when the original complaint shows that the
court has no jurisdiction.
For EXAMPLE: I will file a complaint for an unpaid loan and the amount is exactly P200,000 only.
Where should I file the complaint? MTC. But by mistake I file it in the RTC and later I realized that the
case should have been filed in the MTC because the jurisdiction of the RTC should be above P200,000. So
I will amend my complaint and change the complaint and say that my claim is P100,001.00. The obvious
purpose of the amendment is to make the case fall within the jurisdiction of the RTC. According to the
SC, it cannot be done.
The rule here is when in its face, the complaint shows that the court has no jurisdiction over the
subject matter, the court has no authority to act in the case. And if you move to amend it and ask the
court to allow the amendment, you are assuming that the court has the authority to act on the case. But
the court can’t allow it because the court has no authority to act. So the court even is not authorized to
allow the amendment because it has no authority to act in the first place. How can you allow something
when you do not have the authority to act? My golly!
So according to the SC, when its on very face the complaint shows that the court has no jurisdiction,
the court has only one authority and its only authority is to dismiss the case. So with that an amendment
cannot confer jurisdiction.
3.) WHEN THE AMENDMENT IS FOR THE PURPOSE OF CURING A PREMATURE OR NON-
EXISTING CAUSE OF ACTION
Meaning, on its very face, there is no cause of action, there is no case. There is no delict or there is no
wrong. Now how can you create a delict or wrong by amending your complaint? In effect, you are
creating something out of nothing.
BAR QUESTION: How do you distinguish a NON-EXISTENT cause of action from IMPERFECT
cause of action?
1.) In a NON-EXISTENT cause of action, there is yet no delict or wrong committed by the
defendant (Limpangco vs. Mercado, 10 Phil. 508) whereas
In an IMPERFECT cause of action, a delict or wrong has already been committed and alleged
in the complaint, but he cause of action is incomplete (Alto Surety vs. Aguilar, L-5625,
March 16, 1945); and

2001 Edition
2.) a NON-EXISTENT cause of action is not curable by amendment (Limpangco vs. Mercado, 10
Phil. 508; Surigao Mine vs. Harris, 68 Phil. 113) whereas
an IMPERFECT cause of action is curable by amendment (Alto Surety vs. Aguilar, L-5625,
March 16, 1945; Ramos vs. Gibbon, 67 Phil. 371).
BAR QUESTION: Suppose the filing of the complaint will lapse on January 20 and I will file the
complaint today so the running of the period will be interrupted. Suppose I will amend my complaint
next month, on February. Question: Is prescription properly interrupted? When an original complaint is
amended later, when is the prescriptive period for filing the action interrupted? Upon the filing of the
original complaint or upon the filing of the amended complaint?
A: It DEPENDS upon the nature of the amendment:
a.) If the amendment introduces a new and different cause of action, then the prescriptive period
is deemed interrupted upon the filing of the amended complaint; (Ruymann vs. Dir. of
Lands, 34 Phil. 428)
b.) But where the amendment has not altered or changed the original cause of action, no
different cause of action is introduced in the amended complaint, then the interruption of the
prescriptive period retroacts on the date of the filing of the original complaint. (Pangasinan
Trans. CO. vs. Phil. Farming Co., 81 Phil. 273; Maniago vs. Mallari, 52 O.G. 180, October 31,
1956)
EXAMPLE: I will file today a case for damages arising for quasi-delict. And then one or two months
from now I will amend my complaint from damages arising from culpa aquiliana to damages arising
from culpa contractual. Is that a different cause of action? Yes, so the prescriptive period for culpa
contractual is deemed filed next month, not this month, because that is a different cause of action.
EXAMPLE: But suppose I file a case against you for culpa aquiliana, and my claim is one million.
Next month I amend my complaint for damages from one million pesos to two million pesos. Did I
change my cause of action? No, it is still the same cause of action—culpa aquiliana. Therefore, the
prescriptive period is deemed interrupted as of the date of the filing of the original complaint.
AMENDMENTS TO PLEADINGS IN CRIMINAL CASES
Now, the classifications of amendments under the rule on criminal procedure are the same because
there is such a thing as amendments on the criminal complaints or informations as a matter of right on
the part of the prosecution and amendments as a matter of judicial discretion. And under the rules of
criminal procedure, an amendment can either be formal or substantially received. There is some
difference in the rules.
How do you differentiate the amendment of a pleading, under the rules on civil procedure and the
amendment of a criminal complaint or information in criminal cases? Take note that there is no Answer
in criminal cases. The accused is not obliged to file answer but the counterpart of answer in criminal cases
is the plea, where he pleads either guilty or not guilty.
Under the rules on criminal procedure, at anytime before the arraignment or before he enters plea,
the amendment of information is a matter of right, either in form or in substance. EXAMPLE: The
prosecution files an information against you for homicide and then the prosecution wants to agree to
murder. Can it be done? YES, for as long as the accused has not yet entered his plea.
So it is almost the same as in civil cases. For as long as there is no responsive, pleading the
amendment is a matter of right whether in substance or in form.
Q: Now in criminal cases, AFTER the accused had already entered his plea to the original charged, is
amendment still allowed? Can the prosecution still amend?
A: YES. But what is allowed is only formal amendment. Substantial amendment is 100% prohibited
in criminal cases. But in civil cases, puwede.
OBJECTIONS AND DEFENSES NOT RAISED ARE DEEMED WAIVED; EXCEPTION
Sec. 5. Amendment to conform to or authorize presentation of

evidence. - When issues not raised by the pleadings are tried with the
express or implied consent of the parties, they shall be treated in all
respects as if they had been raised in the pleadings. Such amendment of
the pleadings as may be necessary to cause them to conform to the
evidence and to raise these issues may be made upon motion of any party

2001 Edition
at any time, even after judgment; but failure to amend does not affect
the result of the trial of these issues. If evidence is objected to at
the trial on the ground that it is not within the issues made by the
pleadings, the court may allow the pleadings to be amended and shall do
so with liberality if the presentation of the merits of the action and
the ends of substantial justice will be subserved thereby. The court may
grant a continuance to enable the amendment to be made. (5a)
Q: May issues not raised in the pleadings be tried in court during the trial?
A: As a GENERAL RULE, a defendant during the trial is not allowed to prove a defense that is not
raised in the pleadings based on Rule 9, Section 1. The court has no jurisdiction over the issue. That’s
why there is no such thing as surprise defense because a defense that is not raised is deemed waived.
Q: Is there an EXCEPTION to Rule 9, Section 1? Can the rule be relaxed?

A: YES. Section 5 is a relaxation of the rule specifically the first sentence: “when issues not raised in
the pleadings are tried with the express or implied consent of the parties, they shall be treated in all
respects as if they had been raised in the pleadings.”
EXAMPLE: In a collection case, the defendant in his answer raised a defense that the money obtained
from the defendants was not a loan but a donation. During the trial, he attempted to prove that it was a
loan but it was already fully paid. So he is now proving the defense of payment. He is practically
changing his defense. If you follow Rule 9, Section 1, that is not allowed.
But suppose the parties during the trial, the plaintiff agrees that the defendant will prove that the
obligation is paid, then it can be done because issues now raised in the pleadings are tried with the
express consent of the parties. They shall be treated in all respects as if they had been raised in the
pleadings.
In the case of implied consent, the best example is when the defendant attempts to prove payment
and the plaintiff FAILED TO OBJECT. So there is now an implied consent by the parties. Therefore, the
case can now be tried in the issue as if they had been raised in the pleadings. That is what we call the
principle of estoppel. The parties are in estoppel because they expressly or impliedly agreed to try an
issue which is not raised in the pleadings. The court will now render judgment and discuss the evidence
and discuss whether the obligation has been paid or not.
So if it happens, the decision will not jibe with the pleadings. If you read the complaint and the
answer, there is no mention of payment but in the decision resolved the case on that issue. The pleadings
are not in harmony with the decision.
Q: So how will you harmonize the two – pleadings and the decision?
A: The remedy according to Section 5 is to amend the pleadings. We can amend the pleadings to
make them conform with the evidence. That is why the law says: “such amendment of the pleadings as
may be necessary to cause them to conform to the evidence and to raise these issues may be made upon
motion of any party at any time, even after judgment.”
So even after the judgment, you can amend the pleading in order to harmonize with the evidence.
Normally, the evidence should conform to the pleading under Rule 9. In this case, baliktad! – it is the
pleading which is being amended to conform to the evidence. It is the exact opposite.
Normally that is for the benefit of the appellate court in case the decision will be the case will be
appealed. The CA will read the complaint and the answer, “wala mang payment dito!” But when you
read the decision, the main issue was payment not found in the complaint and the answer. So there
might be confusion. So amendment is necessary at anytime, even after judgment.
Q: But suppose the parties never bothered to amend the pleadings, is there a valid judgment?
A: YES because the law says, “but failure to amend does not affect the result of the trial of these
issues.” So, there is a valid trial and the court acquires jurisdiction over the issues because of their implied
or express consent. The best example is FAILURE TO OBJECT.
“if the evidence is objected to at the trial on the ground that it was not within the issues made by the
pleadings, the court may allow the pleadings to be amended and shall do so with liberality if the
presentation of the merits of the action and the ends of substantial justice will be subserved thereby.”
EXAMPLE: The defendant during the trial attempted to prove the obligation that it is paid. The
lawyer of the plaintiff is alert and objected thereby, “You cannot prove that defense because you never
raise a defense of payment in your answer.” Is the objection correct? YES because of Rule 9, Section 1.
The court affirmed the plaintiff that one cannot prove the defense of payment because you never raised it
in your answer. There is no express or implied consent.

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Q: But the defendant said, “If that is so your honor, may we be allowed to amend our answer so that
we will now raise the defense of payment and prove it in court?” Can the court allow the defendant to
amend his answer in the middle of the trial just to prove a defense that is not raised?
A: The rule says YES, the court may allow the pleadings to be amended and shall do so with
liberality if the presentation of the merits of the action and the ends of substantial justice will be
subserved thereby.
That is why you can say that the power of the court in enforcing the Rules of Court is very wide. For
example, I am the judge and the defendant never raised the issue of payment in his answer and he is now
rising such defense. The plaintiff’s lawyer will now object and alleged that he cannot prove such defense
for he never raised it in his answer. The judge sustained the objection, “You cannot prove a defense that
is never raised in your answer.” Q: Is my ruling correct? A: YES because of Rule 9, Section 1 – objections
and defenses not raised in the answer are deemed waived.
The defendant will now move to be allowed to amend the pleading so that I raised that defense. The
plaintiff will object to the amendment. The judge will ask the plaintiff, “is the obligation paid?” “NO.
The defendant never paid it,” answered the plaintiff. So if the defense is false, why are you afraid?
Anyway, he cannot prove it. So I will allow the amendment.
However, if the plaintiff will answer that the defendant has already paid the obligation but that he
never raised such matter in his answer. The plaintiff now will be in bad faith. So I will allow the
amendment.
So in other words, in any way my ruling is correct because I know how to apply the rule. So the
court will allow the amendment and shall do so with liberality… so LIBERALITY should be the rule on
amendment. Section 5 is a rule more on equity. While, Rule 9, Section 1 is a rule of law. Section 5 is a
relaxation of that law on technicality.
The last sentence, “the court may grant a continuance to enable the amendment to be made.”
‘Continuance’ means postponement. It means, postponement of the case to allow the defendant to
amend his answer first.
Part II. SUPPLEMENTAL PLEADINGS
Sec. 6. Supplemental pleadings. - Upon motion of a party the court

may, upon reasonable notice and upon such terms as are just, permit him
to serve a supplemental pleading setting forth transactions, occurrences
or events which have happened since the date of the pleading sought to be
supplemented. The adverse party may plead thereto within ten (10) days
from notice of the order admitting the supplemental pleading. (6a)
The second part of Rule 10 is the supplemental pleading, for the first part is the amended pleadings.
Q: How do you distinguish an AMENDED pleading from a SUPPLEMENTAL pleading?

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

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

answer. – A counterclaim or cross-claim which either matured or was
acquired by a party after serving his pleading may, with the
permission of the court, be presented as a counterclaim or cross-
claim by supplemental pleading before Judgment.
Rule 11, Section 10. Omitted counterclaim or cross-claim. – When a

pleader fails to set up a counterclaim or a cross-claim through

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oversight, inadvertence, or excusable neglect, or when justice

requires, he may, by leave of court, set up the counterclaim or
cross-claim by amendment before judgment.
These provisions emphasize the difference between an amended pleading and a supplemental pleading – how do you
raise a counterclaim or cross-claim which was not raised earlier? Is it by amending the pleading or by filing d supplemental
pleading ? And that applies also to an answer where the defense or the transaction or the cause of action supervened later.
SECOND DISTINCTION: As to effect

In an AMENDED pleading, the amended pleading supersedes the original pleading. The original
pleading is deemed erased. The amended substitutes the original. So from the viewpoint of the law,
the original pleading no longer exists. Whereas,
When a SUPPLEMENTAL pleading is filed, it does not supersede the original pleading. In effect,
there are now two (2) pleadings which stand side by side in the case – the original and the
supplemental pleadings.
EXAMPLE: Mortz borrowed from Nanding P200,000 payable in 2 yearly installments.

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

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

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

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

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

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

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

a new copy of the entire pleading, incorporating the amendments, which
shall be indicated by appropriate marks, shall be filed. (7a)

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When a party files an amended pleading, the amendments should be indicated by appropriated
marks, normally, the amended portion is underlined.
EXAMPLE: A party would to insert an entirely new paragraph. That paragraph would be underlined.
The purpose for such marking is for the court and the opposing party to immediately see and detect the
amendment. If no appropriated mark is provided the court and the lawyer has to compare everything,
paragraph by paragraph, sentence by sentence, line by line. Now, if there are underlines, the court will
just concentrate on the underlined portion. This is for convenience for the parties and the court.
Section 8. Effect of amended pleadings. - An amended pleading

supersedes the pleading that it amends. However, admissions in superseded
pleadings may be received in evidence against the pleader; and claims and
defenses alleged therein not incorporated in the amended pleading shall
be deemed waived.
(Section 8: See discussion on Section 6 on distinctions between an amended and supplemental

pleading; second distinction)
The first sentence is one of the distinctions between an amended pleading and a supplement
pleading. From procedural viewpoint, the original pleading is already non-existent. The court will no
longer consider anything stated there.
EXAMPLE: You say something favorable to me. However, in his amended pleading, he removes such
statement, so that the court will not consider it anymore. Such statement is out of the picture. Now, if you
want to bring to the attention of the court the statement found in the original pleading, you must offer the
original pleading in evidence to consider it all over again. This rule will be considered in the study of
EVIDENCE.

Rule 11
WHEN TO FILE RESPONSIVE PLEADINGS
What are discussed in this rule are periods. The question when a defendant wants to file an answer is,
“How many days does he have?” There must be a deadline. Rule 11 applies to all persons – natural and
juridical such as a corporation.
SECTION 1. Answer to the complaint. The defendant shall file his

answer to the complaint within fifteen (l5) days after service of
summons, unless a different period is fixed by the court. (1a)
Section 1 is the GENERAL RULE – the defendant has a period of 15 days after service of summons
within which to file his answer. The procedure is when a plaintiff files a complaint in court, the court will
issue summons (which is the counterpart of warrant of arrest in criminal cases). The sheriff of the court
will look for the defendant and serve him a copy of the complaint. From that day on, the defendant has 15
days to file his answer.
The rules says, “unless a different period is fixed by the court.” That would be the EXCEPTION to the
15-day period to file answer. Now, when are these instances when the court may fix a different period?
They are those mentioned in Rule 14, Sections 14, 15, and 16 – yung tinatawag service of summons by
publication.
Let’s give example to the general rule. EXAMPLE: If the defendant is served with a copy of the
complaint and summons today (January 13,1998), the last day to file an answer will be January 28, 1998.
Just add 15 days to January 13.
In computing the a period, you follow the rule known as “exclude the first, include the last day rule”
under Article 13 of the New Civil Code. I think you know how to apply that. When you receive the

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complaint today or when you are summoned today, you start counting the period tomorrow. Such rule is
also found in Section 1 of Rule 22 on Computation of Time:
Rule 22, Sec. 1. How to compute time. - In computing any period of

time prescribed or allowed by these Rules, or by order of the court, or
by any applicable statute, the day of the act or event from which the
designated period of time begins to run is to be excluded and the date of
performance included. If the last day of the period, as thus computed,
falls on a Saturday, a Sunday, or a legal holiday in the place where the
court sits, the time shall not run until the next working day. (n)
(The following discussions on Rule 22 are taken from the Remedial Law Review Transcription [1997-
1998]:)
So you see, ito (Section 1, Rule 22) yung the act itself from which the designated period of time where
the case will run is to be excluded. Meaning, when you receive the summons, you count one but today is
excluded and of course the last day is included. And if the last day is the next working day. A: It is done
on the next business day. Here, there is an automatic extension.
Sec. 2. Effect of interruption. Should an act be done which

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

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Defendant received Defendant filed a Motion to Dismiss Deadline to file

Summons Motion to Dismiss is denied. the Answer
Alright, let’s go back to Rule 11:
Sec. 2. Answer of a defendant foreign private juridical entity. Where

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

amended complaint as a matter of right, the defendant shall answer the
same within fifteen (l5) days after being served with a copy thereof.
Where its filing is not a matter of right, the defendant shall answer
the amended complaint within ten (10) days from notice of the order
admitting the same. An answer earlier filed may serve as the answer to
the amended complaint if no new answer is filed.
This Rule shall apply to the answer to an amended counterclaim,
amended cross-claim, amended third (fourth, etc.) party complaint, and
amended complaint-in-intervention. (3a)
Now, what is the period to file an answer to an amended complaint? Under Section 3, there are two
(2) periods – first paragraph, 15 days; second paragraph, 10 days. Now what is the difference?
Suppose the complaint is amended as a matter of right because defendant has not yet filed an answer.
Meaning, the complaint is served on you and even before you answer it was amended and another
complaint is served, then you have 15 days to file your answer counted from the day of service of the
amended complaint. So forget the original period and you have 15 days all over again.
But suppose the defendant has already answered the original complaint and then the plaintiff decides
to amend his complaint which under the previous rule, is a matter of judicial discretion. Now, suppose
the court issued an order admitting the amended complaint and the defendant is furnished of the copy of
the order admitting the amended complaint. Therefore, if he wants to answer the amended complaint, he
has 10 days to do it and not 15 days. The 10-day period will be counted from service of the order
admitting the amended complaint, not from the service of the amended complaint because the same may
not be admitted. You wait for the order of the court admitting the amended complaint.

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So, there are two (2) periods to file an answer to an amended complaint.
Q: Suppose I will not file an answer to the amended complaint. I filed an answer to the original
complaint but I did not file an answer to the amended complaint, can I be declared in default?
A: NO, because Section 3 provides that the answer earlier filed may serve as an answer to the
amended complaint if no answer is filed. Like when the amendment is only formal, why will I answer? In
other words, my defenses to the original complaint is still applicable.
So the principle is: if no answer is filed to the amended complaint, the answer to the original
complaint automatically serves as the answer to the amended complaint and therefore the defendant
cannot be declared in default.
Alright, the third paragraph of Section 3 is new. So, kasama na iyung amended counterclaims,
amended cross-claims.
Sec. 4. Answer to counterclaim or cross-claim. A counterclaim or

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

answer a third (fourth, etc.)- party complaint shall be governed by the
same rule as the answer to the complaint. (5a)
Sec. 6. Reply. A reply may be filed within ten (l0) days from service
of the pleading responded to. (6)
If you want to file a reply, you have ten (10) days to file. But as a general rule, the filing of a reply is
optional.
Sec. 7. Answer to supplemental complaint. A supplemental complaint

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

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Sec. 8. Existing counterclaim or cross-claim. A compulsory

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

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

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

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

2001 Edition
SUMMARY OF TIME TO FILE RESPONSIVE PLEADINGS
PLEADING PERIOD
1.) Answer 15 days
2.) Answer of a private foreign corporation

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

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

5.) Answer to third (fourth, etc.) party complaint 15 days
6.) Reply 10 days
7.) Answer to supplemental complaint 10 days
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published by

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

2001 Edition
A: A bill of particulars is a more definite statement of any matter which is not averred with sufficient
definiteness or particularity in a pleading so as to enable the opposing party to prepare his responsive
pleading. (Section 1)
Alright. So, let’s go to the application of this remedy.
EXAMPLE: The plaintiff filed a complaint against you and you are now furnished with a copy by the
lawyer of the plaintiff. So, you have to file your answer. You have to understand what the cause of
action is all about. So you read the complaint – you notice that the allegations are vague, ambiguous, and
uncertain. So, you cannot understand the allegations. So, you have a hard time preparing your answer.
Now, you do not want to answer something that you cannot understand.
Q: So what is your remedy?
A: The remedy is, instead of answering, you file a motion for a bill of particulars and according to
Section 1, your motion will point out the defects complained of, the paragraphs where they are contained
and the details desired. Because according to you, the allegations are not averred with sufficient
definiteness or particularity to enable you properly to prepare your responsive pleading that is what it is
all about.
So the defendant resorts to the Bill of Particulars if the allegations of ultimate facts in the complaint
are vague and ambiguous that the defendant will have difficulty in preparing his answer. So, he can not
understand and will ask for more details to clear the ambiguities. He will file a motion for Bill of
Particulars, citing the detects and ask for the details, because how can he prepare an answer if he does not
understand the complaint? Aber?
BAR QUESTION: Suppose a complaint is ambiguous, uncertain, indefinite or vague, can the
defendant file a motion to dismiss?
A: NO! A complaint cannot be dismissed simply because it is vague, ambiguous. (Pañgan vs. Evening
News, L-13308, Oct. 29, 1960) The correct remedy is for the defendant to file a motion for bill of
particulars, which will ask for more details on these vague portions of the complaint. (Amoro vs.
Sumaguit, L-14986, July 31, 1962)
According to the SC in the case of
TAN vs. SANDIGANBAYAN

180 SCRA 34 [1989]
HELD: “The proper office of a bill of particulars is to inform the opposite party and the
court of the precise nature and character of the cause of action the pleader has attempted to
set forth, and thereby to guide his adversary in his preparations for trial and reasonably
protect him against surprise at the trial. It complements the rule on pleadings in general, that
is, that the complaint should consist of a concise statement of the ultimate facts.”
“Its primary objective is to apprise the adverse party of what the plaintiff wants — to
preclude the latter from springing a surprise attack later.”
According to the SC, the primary purpose of the bill of particulars is to apprise the adverse party of
what a plaintiff wants. To preclude the latter from springing a surprise attack later. Why? Because the
plaintiff may deliberately make his allegations vague. Sinadya ba niya? To confuse you – to mislead you
– because you might adopt a different interpretation. If the interpretation turns out to be different, your
defenses might be wrong. So, he deliberately make his complaint ambiguous. Now, the other party
should thwart that by asking for a bill of particulars to compel the plaintiff to make the allegations of his
cause of action clearer. So, that is what the bill of particulars is all about.
Now, we will do to a specific situation and let’s find out whether the defendant could file for a bill
of particulars.
PROBLEM: Now, suppose the pleader says in his complaint that he has been in the possession of the
litigated property continuously for forty (40) years. The defendant flied a motion for a bill of particulars,
“The allegations is very broad, very general, very vague. Please tell by way of particulars what are the
improvements you introduced for the past 40 years. I would like to ask for these details to clarify your
allegations that you have been in continuous possession of the land for 40 years.”
Q: Is that a proper motion for a Bill of Particulars?
A: NO, because it is asking for evidentiary matters. In the first place, the plaintiff has no obligation to
state the evidentiary matters in his complaint. It should only state ultimate facts. So, it is not allowed in
the pleading. You cannot ask for that by way of particulars.

2001 Edition
So, what is sought to be remedied are vague and ambiguous statements of ultimate facts. But you
cannot used it to fish for evidentiary matters. Evidentiary facts cannot be the subject of a motion for a bill
of particulars.
Q: But is it not fair that before trial I should know your evidentiary matters?
A: I believe it is fair for the defendant to compel the plaintiff to reveal the details of his ultimate facts
but not under Rule 12. You better avail of the modes of discovery under Rule 23, depositions, request for
admission, etc. But you cannot convert Rule 12 into a modes of discovery. Each rule has its own
functions.
So, let’s give a good example of an instance, where the defendant can rightfully ask for more specifics
or particulars.
EXAMPLE: The plaintiff will sue the defendant for annulment of contract on the ground that the
defendant employed FRAUD in getting the consent of the plaintiff. The plaintiff said, “He got my consent
to the contract by fraud.” The defendant filed a motion for a bill of particulars: “That the defendant
employed fraud in getting plaintiff’s consent is vague, So, I’m asking the plaintiff should give more
specifics. How did I fool you? In what way did I employ fraud? In what way was the fraud exercised?”
Q: Now, is the motion for a bill of particulars meritorious?
A: YES, because allegations of fraud must be stated with particularity. So, you go back in Rule 8,
Section 5:
Rule 8, Sec. 5 Fraud, mistake, condition of the mind.—In all averments

of fraud or mistake, the circumstances constituting fraud or mistake must be
state with particularity. x x x
We already studied that provision. Therefore, if the allegation of the plaintiff is simply that the
defendant employed fraud, that allegation is not sufficient because under Rule 8, it must be stated with
particularity. Therefore, if it is not stated with particularity, the remedy of the defendant is to file a
motion for a bill of particulars under Rule 12.
Q: Suppose, it is the answer which is vague. Suppose ang answer malabo. It is the other way around.
It is the defendant’s answer which is vague or uncertain. Can the plaintiff file a motion for bill of
particulars to compel he defendant to clarify or to particularize his vague answer?
A: YES, because the plaintiff can say, “I cannot file my reply. I mean, I want to file a reply but I can’t
file a reply unless I understand what is your defense.” So it works both ways.
Q: Suppose, it is the reply of the plaintiff to the answer which is vague or ambiguous. Can the
defendant file a motion for bill of particulars to clarify the vague reply?
A: YES. According to Section 1, the motion is to be filed within 10 days. So even if the reply is vague,
it can still be the subject of the bill of particulars within 10 days because there is no more responsive
pleadings there.
So, every pleading which is vague the other party can always compel you to make it clearer.
Q: Is this remedy available in criminal cases?

A: YES. If it is the information which is vague, you cannot understand the allegations in the
information, you cannot plead, “Paano, I cannot enter a plea of guilty or not guilty kasi hindi ko
maintindihan eh” the accused can file a motion for bill of particulars to require the prosecution to clarify
vague portions of a complaint or information.
There is an identical provision in Rule 116, Section 9 of the Rules on Criminal Procedure.
RULE 116, SEC. 9. Bill of particulars. – The accused may, before

arraignment, move for a bill of particulars to enable him properly to plead
and prepare for trial. The motion shall specify the alleged defects of the
complaint or information and the details desired. (10a)
The concept is the same. If the allegations in the information are also vague and ambiguous, “I cannot
understand it, so I cannot intelligently enter my plea.” The accused, before arraignment, can move for a
bill of particulars to enable him to prepare properly for the trial. Then he must specify the defects.
CINCO vs. SANDIGANBAYAN (criminal case)
202 SCRA 726 [1991]
FACTS: A motion for bill of particulars was filed by the lawyer of the respondent in the
fiscal’s office when the case was under preliminary investigation. (In preliminary
investigation, you are given the affidavit of the complainant and his witnesses. And then you
are given 10 days to submit your counter-affidavits.) Here, the affidavit is vague according to

2001 Edition
the accused, so he is filing a bill of particulars. He wanted to compel the complainant to make
his affidavit clearer.
ISSUE: Is Section 9 applicable when the case is still in the fiscal’s office for preliminary
investigation?
HELD: NO. It is only applicable when the case is already in court for trial or arraignment.
But suppose during the preliminary investigation, “I cannot understand what the
complainant is saying in his affidavit?” The SC said, that is simple! If you cannot understand
what the complainant is saying in his affidavit, chances are, the fiscal also will not
understand it. And consequently, he will dismiss the case. Eh di mas maganda! Wag ka na
lang mag-reklamo! [tanga!]
Sec. 2. Action by the court. Upon the filing of the motion, the clerk
of court must immediately bring it to the attention of the court which
may either deny or grant it outright, or allow the parties the
opportunity to be heard. (n)
So pag-file mo ng motion for bill of particulars, the clerk has the obligation to bring it immediately to
the attention of the court and the court can deny or grant the motion immediately. But of course, it is up
to the court to call for a hearing or not.
Q: Now, what do you think is the reason behind that? Why do you think is this provision here, which
is not found in the old rules?
A: Many lawyers have abused Rule 12. In what way? A complaint is filed. The allegations are clear.
Pero sadyain niya – he will file a motion for bill of particulars that he cannot understand. Then, pag file
niya ng motion, he will set the motion for hearing 2 weeks from now. Then the motion is denied because
it has no merit, then, file ka ng answer. In other words, the period to file for an answer has been denied
because it has no merit. Then, file ka ng answer. The period to file for an answer has been delayed. The
defendant has succeeded in delaying the period for filing an answer by pretending that he cannot
understand pero actually klaro man ba.
So in order to prevent that kind of dilatory tactic, when the motion is filed, the court is now
authorized to immediately act on the motion without delaying the filing of the answer. That is the reason
why this provision was inserted because the filing of the motion for bill of particulars can cause delay.
Sec. 3. Compliance with order. If the motion is granted, either in

whole or in part, the compliance therewith must be effected within ten
(l0) days from notice of the order, unless a different period is fixed by
the court. The bill of particulars or a more definite statement ordered
by the court may be filed either in a separate or in an amended pleading,
serving a copy thereof on the adverse party. (n)
Q: Suppose the court grants the motion and the defendant or the plaintiff will be required to submit
the bill of particulars. How will you comply with the order to file a bill of particulars?
A: There are two (2) ways:
1.) Just submit the details of the vague paragraphs; or
2.) Amend the whole complaint and clarify the vague paragraphs
Sec. 4. Effect of non-compliance. If the order is not obeyed, or in

case of insufficient compliance therewith, the court may order the
striking out of the pleading or the portions thereof to which the order
was directed or make such other order as it deems just. (1[c]a)
Q: Alright, suppose the motion is granted, the court ordered the plaintiff to submit a bill of
particulars. The plaintiff refused to comply with the order. What is now the remedy?
A: The court may order the striking out of the pleading or portions thereof which is the object of the
bill of particulars. Like for example: Ayaw mong i-clarify ang complaint mo, ayaw mo. Alright, I will
now issue an order to strike out the entire complaint. It is as if the complaint was never filed. Practically,
your complaint was dismissed. In effect your complaint was dismissed because if the complaint was
ordered stricken out, then it is equivalent to dismissal of the case itself.
Sec. 5. Stay of period to file responsive pleading. After service of

the bill of particulars or of a more definite pleading, or after notice
of denial of his motion, the moving party may file his responsive
pleading within the period to which he was entitled at the time of filing

2001 Edition
his motion, which shall not be less than five (5) days in any event.
(1[b]a)
Q: What is the effect for a motion for a bill of particulars when you file a motion? What is the effect on
that on the 15-day period to file the answer?
A. The 15-day period to answer is stopped or interrupted upon the filing of the motion for bill of
particulars. The period continues to run from the date that you received the bill of particulars, if your
motion is granted, or from the receipt of the order denying your motion if it was denied. From there, the
period to answer will run again so you have to file your answer within the balance of the remaining
period.
ILLUSTRATION: I have 15 days to file an answer. On the 8th day, I filed a motion for a bill of
particulars. Pag-file mo on the 8th day , the running of the period automatically stops and then after
several days, you receive the order. For example, denying your motion, you still have 7 days to go
because the period during which your motion was pending will not be counted. Na- interrupt ang takbo
ng 15 days.
Q: Suppose, you file your motion for a bill of particulars on the 14th day and your motion is denied.
You received the order today. How many days more to file an answer?
A: Five (5) days. You are guaranteed a minimum of 5 days. Kahit one day to go na lang, balik ka
naman sa 5. At least minimum. So, it is 5 days or more but never be less than 5 days.
Therefore, if a defendant filed the motion for bill of particulars within 15 days, he cannot be declared
in default. The plaintiff cannot declare the defendant in default for failure to file an answer because 15
days had already lapse. Pag file ng motion, itigil mo muna ang takbo ng araw. It will be interrupted by
the filing of the motion and the period commences to run again from the time he received the bill of
particulars or the order denying his motion but not less than 5 days in any event.
Sec. 6. Bill a part of pleading. A bill of particulars becomes part

of the pleading for which it is intended. (1[a]a)
Ah, yes. It is very clear ‘no? When you file a bill of particulars clarifying the paragraphs in the
complaint which are vague, the bill of particulars becomes part of the complaint with its supplements.

published by


2001 Edition
Rule 13
FILING AND SERVICE OF PLEADINGS,
JUDGMENTS AND OTHER PAPERS
Section 1. Coverage. This Rule shall govern the filing of all

pleadings and other papers, as well as the service thereof, except those
for which a different mode of service is prescribed. (n)
As a general rule, service of all pleadings is governed by Rule 13. So, this rule governs pleadings
“except those for which a different mode of service is prescribed.” An example of the exception is the
service of complaint which is governed by Rule 14. So Rule 13 applies to all pleadings except complaint.
What is the difference between filing and service of pleadings? Section 2:
Sec. 2. Filing and service, defined. Filing is the act of presenting

the pleading or other paper to the clerk of court.
Service is the act of providing a party with a copy of the pleading
or paper concerned. If any party has appeared by counsel, service upon
him shall be made upon his counsel or one of them, unless service upon
the party himself is ordered by the court. Where one counsel appears for
several parties, he shall only be entitled to one copy of any paper
served upon him by the opposite side. (2a)
When you say FILING, you present the pleading in the office of the clerk of court. When you say
SERVICE, you furnish a copy of the pleading to the party concerned, or if he is represented by a lawyer,
you must furnish a copy of the pleading to the lawyer.
The GENERAL RULE, when a party is represented by a lawyer, the service should be to the lawyer
and not to the party. Service to a party is not valid. What is valid is service to the counsel. Service to the
lawyer binds the party. But service to the party does not bind the lawyer, unless the court orders direct
service to the party.
Q: What is the reason for requiring service upon the lawyer if the party is so represented?
A: The reason for the rule is to do away with the subsequent objection which the party served may
raise to the effect that he knows nothing about court procedure and also to maintain a uniform procedure
calculated to place in competent hands the orderly prosecution of a party’s case. (Hernandez vs. Clapis,
87 Phil. 437; Javier Logging Corp. vs. Mardo, L-28188, Aug. 27, 1968)
So, the purpose there is to avoid any complaint later that the party did not know what to do. Since
the lawyer is presumed to know the rules, at least it is on competent hands. But if you got to the party
himself, the problem is he might start complaining later, “My golly, kaya nga ako kumuha ng abogado
kasi hindi ako marunong.”
There was a even a case when the client volunteered to get the copy of the decision. But he party
failed to give it to his lawyer. Is the lawyer bound, or is the party also bound? NO, because the rule is
service to lawyer binds the client and not the other way around.
So, to avoid all these problems, there must be a uniform rule UNLESS, the law says, SERVICE UPON
THE PARTY HIMSELF IS ORDERED BY THE COURT. Example is in the case of
RETONI, JR. vs. COURT OF APPEALS

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

258 SCRA 378 [1996]

2001 Edition
HELD: “Notice to the lawyer who appears to have been unconscionably irresponsible
cannot be considered as notice to his client. The application to the given case of the doctrine
that notice to counsel is notice to parties should be looked into and adopted, according to the
surrounding circumstances; otherwise, in the court’s desire to make a short cut of the
proceedings, it might foster, wittingly or unwittingly, dangerous collusions to the detriment
of justice. It would then be easy for one lawyer to sell one’s rights down the river, by just
alleging that he just forgot every process of the court affecting his clients, because he was so
busy.”
So, sasabihin lang niya, “Sorry ha, nakalimutan ko,” and then you are bound – Masyadong masakit
naman iyan.
Q: Now, if there are 5 defendants in the same case and there is only one (1) lawyer for all, is the
lawyer entitled to 5 copies also?
A: NO, the lawyer is not entitled to 5 copies but only one (1). Last sentence, “Where one counsel
appears for several parties, he shall only be entitled to one copy of any paper served upon him by the
opposite side.” But if the 5 defendants are represented by different lawyers, that is another story. Every
lawyer has to be furnished a copy.
Q: Suppose you are represented by three or more lawyers. Mga collaborating lawyers, ba. Bawat
abogado ba may kopya?
A: NO, service on one is sufficient. Section 2 says, “…service shall be made upon his counsel or one
of them…” Service to one is service to all. You can do it if you want to but service on one will suffice.
A. FILING OF PLEADINGS, JUDGMENTS AND OTHER PAPERS
Now, how do you file pleadings? Section 3:
Sec. 3. Manner of filing. The filing of pleadings, appearances,

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

1.) Personally; or
2.) by registered mail
First Mode of Filing: PERSONAL FILING

This mode of filing is done personally to the clerk of court. You go to the court and the court will
mark it RECEIVED on January 15, 1998, 9:00 a.m. Then, that is deemed filed. That is personal filing.
Section 3 says, “…by presenting the original copies thereof, plainly indicated as such personally to
the clerk of court…” There was a lawyer before who referred to me. He said he filed a complaint. There
are many copies of it. The court will usually receive 2 or 3 copies – 1 for itself, 1 for the defendant to be
sued in summons, then any balance, ibalik sa iyo. Sabi niya, ayaw daw tanggapin kasi wala raw
nakalagay na “ORIGINAL.” Sabi ng lawyer, lahat naman ito original, kasi naka-computer. So, everything
is original. Sabi na clerk of court, “Eh di, dapat sulatan mo ng ‘original’!” Where did the clerk of court got
that rule? Maski klaro na, sulatan pa rin ng original? Sabi ng clerk of court, “Nasa 1997 Rules and
requirement na iyan.”
So I started to think. And I think, itong provision (Section 3) ang ibig sabihin ng clerk of court, “The
filing of pleadings… shall be made by presenting the original copy thereor plainly indicated as such.”
Meaning, “original,” “duplicate,” “original,” “duplicate.” To my mind, huwagn amang masyadong
istrikto. Nasubrahan ng basa ba! When you read too much, you become very technical. Why refuse to
accept? Simply because walang word na ‘original’? Eh, di ikaw ang maglagay! So the clerk of court, with
that phrase “plainly indicated as such,” becomes too strict.

2001 Edition
Second Mode of Filing: FILING BY REGISTERED MAIL

The other mode is by registered mail. It is not ordinary mail. It is registered mail.
Q: What is the importance of registered mail on filing of pleadings and motions in court?
A: The importance is the rule that in registered mails, the date of filing is the date of mailing. If you
send the pleading through the Post Office by registered mail, the date of filing is not the date on which
the letter reached the court but on the day that you mailed it. So the date on the envelope is officially the
date of filing.
Q: Now, suppose I will file my pleading not by registered mail but throught messengerial service like
LBC or JRS Express delivery, or by ordinary mail? What is the rule if instead of the registered service of
the Post Office, you availed the private messengerial service or by ordinary mail?
A: The mailing in such cases is considered as personal filing and the pleading is not deemed filed
until it is received by the court itself.
When it is by registered mail, the date of mailing as shown by the Post Office stamp is considered as
the date of filing. The envelope is attached. The post office is automatically a representative of the court
for the purpose of filing. In other words, the law treats the messengerial company only as your process
helper. That is why in the 1994 case of
INDUSTRIAL TIMBER CORP. vs. NLRC

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

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

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

Court. A facsimile is not a genuine and authentic pleading. It is, at best, an exact copy
preserving all the marks of an original. Without the original, there is no way of determining
on its face whether the facsimile pleading is genuine and authentic and was originally signed
by the party and his counsel. It may, in fact, be a sham pleading.”
Q: Now, how do you prove that really the pleading was filed?
A: Section 12. This is a new rule on how to prove that a pleading is filed –
Sec. 12. Proof of filing. The filing of a pleading or paper shall be

proved by its existence in the record of the case. If it is not in the
record, but is claimed to have been filed personally, the filing shall be
proved by the written or stamped acknowledgment of its filing by the
clerk of court on a copy of the same; if filed by registered mail, by the
registry receipt and by the affidavit of the person who did the mailing,
containing a full statement of the date and place of depositing the mail
in the post office in a sealed envelope addressed to the court, with
postage fully prepaid, and with instructions to the postmaster to return
the mail to the sender after ten (10) days if not delivered. (n)
Q: Suppose I filed it in court PERSONALLY, but it is not there, therefore, there is no showing that I
filed it in court personally. So how do I prove it?
A: Just show your copy which is duly stamped and received by the court. Definitely, the fault is not
yours but with the clerk of court.
Q: If filed by REGISTERED MAIL. Suppose the court has no copy of it, it had been lost between the
post office and the court?
A: Prove it by presenting the registry receipt and the affidavit of the server, containing a full
statement of the date and place of depositing the mail in the post office in a sealed envelope addressed to
the court. It must be stressed that the affidavit is very important.

2001 Edition
B. SERVICE OF PLEADINGS, JUDGMENTS AND OTHER PAPERS
Sec. 4. Papers required to be filed and served. Every judgment,

resolution, order, pleading subsequent to the complaint, written motion,
notice, appearance, demand, offer of judgment or similar papers shall be
filed with the court, and served upon the parties affected. (2a)
Let us now go to service. Under the law, before you file, there must be service to the opposing party’s
counsel. And all documents, as a rule, shall be filed to the court and served to the parties affected. Or, all
pleadings SUBSEQUENT to the complaint…. bakit ba ‘subsequent’? Meaning, answer, counterclaim,
cross-claim.
Q: Do you mean to tell me the complaint does not have to be served to the defendant by the plaintiff?
A: Of course not! It is the sheriff who will serve it to the defendant. So, the plaintiff does not really
have to go to the defendant to serve the complaint. The complaint is brought to the court because the
summons will be issued.
But if you are the defendant’s lawyer, you go directly to the plaintiff’s lawyer to serve the answer
because an answer is a pleading ‘subsequent’ to the complaint. Moreover, the manner of serving
complaint is not governed by 13 but by Rule 14.
Alright, every paper is required to be filed and served. Some people do not understand this – “Every
judgment, resolution, order… shall be filed with the court and served to the parties...” Well of course,
iyang mga pleadings, motions, etc., you file and serve because there must be proof of service to the
adverse party.
Now, judgments. It must be filed. Why will the court files its own judgment before itself? Actually,
the judge has to file his decision before the court. Read Rule 36, Section 1:
Rule 36, Section 1. Rendition of judgments and final orders. A

judgment or final order determining the merits of the case shall be in
writing personally and directly prepared by the judge, stating clearly
and distinctly the facts and the law on which it is based, signed by him,
and filed with the clerk of the court. (1a)
So, the judge has to file his own decision to make it official.
Sec. 5. Modes of service. Service of pleadings, motions, notices,

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

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

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

128 SCRA 402 [1984]

2001 Edition
FACTS: The office of the lawyer is on the 9th floor of a building in Makati. So, siguro, sira
iyong elevator, gikapoy iyong process server, what he did was, he left the copy of the
judgment to the receiving station at the ground floor.
ISSUE: Was there a valid service?
HELD: NO. The address of the lawyer is at the 9th floor. So, you serve it on the 9th floor
and not at the ground floor with somebody who is not even connected with the law office.
“Notices to counsel should properly be sent to the address of record in the absence of due
notice to the court of change of address. The service of decision at the ground floor of a
party’s building and not at the address of record of the party’s counsel on record at the 9th
floor of the building cannot be considered a valid service.”
“Service upon a lawyer must be effected at the exact given address of the lawyer and not
in the vicinity or at a general receiving section for an entire multi-storied building with many
offices.”
But the case of PLDT should not be confused with what happened in the case of
PCI BANK vs. ORTIZ

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

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

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

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

2001 Edition
recognize the ordinary mail. If you do it, it will be treated as personal filing. In registered mail, the date of
receipt is considered the date of filing not the date of mailing.
Q: Now, when is service by mail deemed complete?

A: Section 10:
Sec. 10. Completeness of service. Personal service is complete upon

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

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

final orders or resolutions shall be served either personally or by
registered mail. When a party summoned by publication has failed to
appear in the action, judgments, final orders or resolutions against him
shall be served upon him also by publication at the expense of the
prevailing party. (7a)
There are three (3) modes again of serving court orders or judgments to parties:
1.) personally;
2.) registered mail; or
3.) service by publication
So court orders or judgments orders have to be served also, either personally or by registered mail.
That’s why if you go to the court, there are employees there who are called process servers. Everyday,
they go around from law office to law office to serve court orders, notices and judgments. And that is
personal service. But if the lawyer is a Manila lawyer, or is out of town, chances are the clerk of court will
apply registered mail.
Under Section 9, there is a third mode of service of court orders and judgments and that is service by
publication. That is if the parties were summoned by publication under Rule 14 and they did not appear.
The judgment is also served to them by publication at the expense of the prevailing party.
Sec. 11. Priorities in modes of service and filing. Whenever

practicable, the service and filing of pleadings and other papers shall
be done personally. Except with respect to papers emanating from the
court, a resort to other modes must be accompanied by a written
explanation why the service or filing was not done personally. A
violation of this Rule may be cause to consider the paper as not filed.
(n)
That is a radical provision. In other words, there are two (2) ways of service: personal or by mail. And
the law says, personal service is preferred to mail. Meaning, personal service is prioritized.

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Q: Suppose you served the opposing counsel by mail.

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

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

293 SCRA 661 [August 5, 1998] J. Davide
FACTS: Solar Team filed before the RTC a complaint against Felix Co. Summons and
copies of the complaint were forthwith served on Co. Co then filed his answer. A copy
thereof was furnished counsel for Solar Team by registered mail; however, the pleading did
not contain any written explanation as to why service was not made personally upon Solar
Team, as required by Section 11 of Rule 13.
Solar Team filed a motion to expunge the answer and to declare Co in default, alleging
therein that Co did not observe the mandate of Section 11. RTC issued an order stating that
under Section 11 of Rule 13, it is within the discretion of the RTC whether to consider the
pleading as filed or not, and denying, for lack of merit, Solar Team’s motion to expunge.
HELD: “Pursuant to Section 11 of Rule 13, service and filing of pleadings and other
papers MUST, whenever practicable, be done personally; and if made through other modes,
the party concerned must provide a written explanation as to why the service or filing was
not done personally. Note that Section 11 refers to BOTH service of pleadings and other
papers on the adverse party or his counsel as provided for in Sections 6, 7 and 8; and to the
filing of pleadings and other papers in court.”
“Personal service will do away with the practice of some lawyers who, wanting to appear
clever, resort to the following less than ethical practices: serving or filing pleadings by mail to
catch opposing counsel off-guard, thus leaving the latter with little or no time to prepare, for
instance, responsive pleadings or an opposition; or, upon receiving notice from the post
office that the registered parcel containing the pleading of or other paper from the adverse
party may be claimed, unduly procrastinating before claiming the parcel, or, worse, not
claiming it at all, thereby causing undue delay in the disposition of such pleading or other
papers.”

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“If only to underscore the mandatory nature of this innovation to our set of adjective
rules requiring personal service whenever practicable, Section 11 then gives the court the
discretion to consider a pleading or paper as not filed if the other modes of service or filing
were resorted to and no written explanation was made as to why personal service was not
done in the first place. The exercise of discretion must, necessarily, consider the practicability
of personal service, for Section 11 itself begins with the clause ‘whenever practicable.’”
“We thus take this opportunity to clarify that under Section 11: Personal service and
filing is the GENERAL RULE, and resort to other modes of service and filing, the
EXCEPTION. Henceforth, whenever personal service or filing is practicable, in light of the
circumstances of time, place and person, personal service or filing is mandatory. Only when
personal service or filing is not practicable may resort to other modes be had, which must
then be accompanied by a written explanation as to why personal service or filing was not
practicable to begin with.”
“Of course, proximity would seem to make personal service most practicable, but
exceptions may nonetheless apply such as when: the adverse party or opposing counsel to be
served with a pleading seldom reports to office and no employee is regularly present to
receive pleadings, or service is done on the last day of the reglementary period and the office
of the adverse party or opposing counsel to be served is closed, for whatever reason.”
“However in view of the proximity between the offices of opposing counsel and the
absence of any attendant explanation as to why personal service of the answer was not
effected, indubitably, Co’s counsel violated Section 11 and the motion to expunge was prima
facie meritorious. However, the grant or denial of said motion nevertheless remained within
the sound exercise of the RTC's discretion.”
“To Our mind, if motions to expunge or strike out pleadings for violation of Section 11
were to be indiscriminately resolved under Section 6 of Rule 1, then Section 11 would become
meaningless and its sound purpose negated. Nevertheless, We sustain the challenged ruling
of the RTC, but for reasons other than those provided for in the challenged order.”
“The 1997 Rules of Civil Procedure took effect only on 1 Jul 1997, while the answer was
filed only on 8 Aug 1997, or on the 39th day following the effectivity of the 1997 Rules.
Hence, Co’s counsel may not have been fully aware of the requirements and ramifications of
Section 11. It has been several months since the 1997 Rules of Civil Procedure took effect. In
the interim, this Court has generally accommodated parties and counsel who failed to
comply with the requirement of a written explanation whenever personal service or filing
was not practicable, guided, in the exercise of our discretion, by the primary objective of
Section 11, the importance of the subject matter of the case, the issues involved and the prima
facie merit of the challenged pleading.”
“However, as we have in the past, for the guidance of the Bench and Bar, strictest
compliance with Section 11 of Rule 13 is mandated one month from promulgation of this
Decision.”
“WHEREFORE, the instant petition is DISMISSED considering that while the justification
for the denial of the motion to expunge the answer (with counterclaims) may not necessarily
be correct, yet, for the reasons above stated, the violation of Section 11 of Rule 13 may be
condoned.”
Sec. 13. Proof of service. Proof of personal service shall consist of

a written admission of the party served, or the official return of the
server, or the affidavit of the party serving, containing a full
statement of the date, place and manner of service. If the service is by
ordinary mail, proof thereof shall consist of an affidavit of the person
mailing of facts showing compliance with section 7 of this Rule. If
service is made by registered mail, proof shall be made by such affidavit
and the registry receipt issued by the mailing office. The registry
return card shall be filed immediately upon its receipt by the sender, or
in lieu thereof the unclaimed letter together with the certified or sworn
copy of the notice given by the postmaster to the addressee. (10a)
Q: How do you prove that you furnished the opposing lawyer a copy by PERSONAL SERVICE?
A: It is through the written admission of the party served as admitted that he had been furnished
with a copy. The other alternative is that you file the affidavit of your employee, or messenger, that he
served the copy in the office of so and so. (containing full statement of facts). Or, the official return of the
server.
The procedure is that there is a pleading and in the last portion there is that part which states:
Copy received : January 16, 1998
By : (Signed) Atty. X
Counsel of Plaintiff

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Q: If it is by ORDINARY MAIL, how do you prove in court that you served a copy?
A: If it is ordinary mail, proof thereof shall consist of an affidavit of the person mailing of facts
showing compliance with Section 7.
Q: If it is by REGISTERED MAIL, how do you prove in court that you served a copy?
A: If service is made by registered mail, proof shall consist of the affidavit of the mailer and the
registry receipt issued by the mailing office. The registry return card shall be filed immediately upon its
receipt by the sender. Or, in lieu thereof, of the unclaimed letter together with the certified or sworn copy
of the notice given by the postmaster – that is a constructive service ‘no?
Now in practice among lawyers when we serve by registered mail, we only attach the original in the
registry receipt and there is a quotation there in the original pleading, “Copy sent by registered mail, this
17th day of January, 1998 to Atty. Juan dela Cruz, counsel for the plaintiff per registry receipt no. 123
hereto attached,” and nobody complains.
But in reality, the law does not allow that. There must be an affidavit of the person who mailed it. The
surrender of a registry receipt alone is not sufficient because if you send the registry receipt, it is not
reflected to whom that letter is addressed so how will the court know that the registry receipt really
corresponded to the pleading that you mailed? It might be another letter like a love letter for your
girlfriend or a letter to your creditor. The registry receipt will not indicate kung ano ang na-mailed to his
address. But we just allow it because it is too tedious – everytime you file, affidavit?!!
But take note, the CA and the SC enforce this strictly. Even if you mail a petition at may nakalagay na
“Copy sent by registered mail” without the affidavit, outright dismissal yan for lack of proof of service.
The SC and the CA are very strict about this requirement.
Let’s go to this topic of CONSTRUCTIVE SERVICE that if the registered mail was not received and
therefore you want to avail of the rules on constructive service – it is deemed served upon the expiration
of so many days. What you will file in court is the unclaimed letter together with a certified or sworn
copy of the notice given by the postmaster to the addressee.
Let us see what happened in the case of
JOHNSON AND JOHNSON PHILS. vs. COURT OF APPEALS

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

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

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

2001 Edition
SANTOS vs. COURT OF APPEALS

293 SCRA 147 [Sept. 3, 1998]
FACTS: Jesus Santos, was sued for damages on by Omar Yapchiongco before the CFI.
CFI dismissed the complaint for lack of merit. CA reversed and declared Santos liable for
damages.
On 15 June 1995, the decision of the CA was sent by registered mail to Santos’ counsel,
Atty. Magno. On the same day, the corresponding notice of registered mail was sent to him.
The mail remained unclaimed and consequently returned to the sender. After 3 notices, the
decision was returned to the sender for the same reason.
On 27 September 1995, a notice of change of name and address of law firm was sent by
Atty. Magno to CA. On 28 March 1996, the same decision of CA was sent anew by registered
mail to Atty. Magno at his present address which he finally received on 3 April 1996. On 17
April 1996, Magno withdrew his appearance as counsel for Santos.
On 18 April 1996, Santos’ new counsel, Atty. Lemuel Santos, entered his appearance and
moved for reconsideration of CA's decision of 6 June 1995. Yapchiongco opposed the motion
on the ground that the period for its filing had already expired.
HELD: “The rule on service by registered mail contemplates 2 situations: (1.) Actual
service - the completeness of which is determined upon receipt by the addressee of the
registered mail; (2.) Constructive service - the completeness of which is determined upon the
expiration of 5 days from the date of first notice of the postmaster without the addressee
having claimed the registered mail.”
“For completeness of constructive service, there must be conclusive proof that Santos’s
former counsel or somebody acting on his behalf was duly notified or had actually received
the notice, referring to the postmaster's certification to that effect.”
“Here, Santos failed to present such proof before CA but only did so in the present
proceedings. Clearly then, proof should always be available to the post office not only of
whether or not the notices of registered mail have been reported delivered by the letter
carrier but also of how or to whom and when such delivery has been made.”
“Consequently, it cannot be too much to expect that when the post office makes a
certification regarding delivery of registered mail, such certification should include the data
not only as to whether or not the corresponding notices were issued or sent but also as to
how, when and to whom the delivery thereof was made. Accordingly, the certification in the
case at bar that the first and second notices addressed to Atty. Magno had been "issued" can
hardly suffice the requirements of equity and justice. It was incumbent upon the post office to
further certify that said notices were reportedly received.”
This last section, Section 14, has something to do with real actions, land titles – notice of lis pendens.
Sec. 14. Notice of lis pendens. In an action affecting the title or

the right of possession of real property, the plaintiff and the
defendant, when affirmative relief is claimed in his answer, may record
in the office of the registry of deeds of the province in which the
property is situated a notice of the pendency of the action. Said notice
shall contain the names of the parties and the object of the action or
defense, and a description of the property in that province affected
thereby. Only from the time of filing such notice for record shall a
purchaser, or encumbrancer of the property affected thereby, be deemed to
have constructive notice of the pendency of the action, and only of its
pendency against the parties designated by their real names
The notice of lis pendens hereinabove mentioned may be cancelled only
upon order of the court, after proper showing that the notice is for the
purpose of molesting the adverse party, or that it is not necessary to
protect the rights of the party who caused it to be recorded. (24a, R14)
This used to be in Rule 14 of the 1964 Rules of Court where it was misplaced. I do riot know why
notice of lis pendens which refers to lands, titles and deeds appears under the rules on Summons. It was
misplaced so they place it under Rule 13 which is also misplaced.
NOTICE OF LIS PENDENS – notice of pending action or litigation.
This is part of the Property Registration Law. The essence of notice of lis pendens is a notice against
the whole world against sale or mortgage of the property under litigation. And whoever deals with it is
accepting the risk. Anybody who buys it is gambling an the outcome of the case. He cannot claim he is
the mortgagee or buyer in good faith because there is a notice.

2001 Edition
I will file a case for recovery of a piece of land and the title is in your name. There is a danger that you
will sell the land to others who know nothing about the case. So if I win the case and try to recover it to
the buyer, the buyer will say he bought the land in good faith, “I did not know that there is a pending
action concerning this land.” And under the law, he is protected because he is a buyer in good faith and
for value. This is if there is no notice of lis pendens. The other risk is that the owner of the land will
mortgage his property.
A person buying a property with a notice of lis pendens is buying it subject to the outcome of the
case. So you are gambling.
Now, as GENERAL RULE, the one who registers a notice of lis pendens is the plaintiff. Exception:
Q: Under Section 14, can the defendant register a notice of lis pendens?
A: YES. The law states that “The plaintiff and the defendant may register when affirmative relief is
claimed in this answer.” In such case, a defendant may register and normally it is done when there is a
counterclaim. The defendant is also interposing a defense with the same property.
Take note that the action in this case affects the right of possession over real property.
Q: How is a notice of lis pendens cancelled?

A: GENERAL RULE: The notice of lis pendens under the rules cannot be removed without the order
from the court and generally the court cannot issue the order until the case is finished or until the final
issue of the case is determined.
EXCEPTION: But in some rare instances, the SC has authorized the cancellation of the notice of lis
pendens even when the case is not yet terminated. One of which is contemplated under Section 14: “After
proper showing that the notice is: [a] For the purpose of molesting the adverse party; or [b] It is not
necessary to protect the rights of the party who caused it to be recorded.” In the case of
ROXAS vs. DY
233 SCRA 643 [1993]
FACTS : Plaintiff filed a case against the defendant to recover a piece of land registered in
the name and possessed by the defendant. The case has been going on for more than 1 year,
the plaintiff has been presenting evidence he plaintiff has not yet shown that he has right
over the land.
HELD: So there is no more basis of notice of lis pendens because your purpose is to
harass the defendant for over a year litigation without showing right over the land.
“While a notice of lis pendens cannot ordinarily be cancelled for as long as the action is
pending and unresolved, the proper court has the authority to determine whether to cancel it
under peculiar circumstances, e.g., where the evidence so far presented by the plaintiff does
not bear out the main allegations in the complaint.”

published by

2001 Edition

Rule 14
SUMMONS
Section 1. Clerk to issue summons. Upon the filing of the complaint
and the payment of the requisite legal fees, the clerk of court shall
forthwith issue the corresponding summons to the defendants. (1a)
Ano ang plural ng “summons”? Meron bang plural yan? “Summonses”? I think it is still
“summons,” whether singular or plural. The verb is, of course, to summon – tawagin mo. Summons
is a noun, a legal term. But actually, there is a similarity in meaning because you are being called to
answer in a case.
Summons in civil cases is the counterpart of warrant of arrest in criminal cases. Under the Rules on
Criminal Procedure, when an information is filed in court, the judge will issue a warrant of arrest. In civil
cases, when a complaint is filed in court, the court will issue what is known as a summons under Section
1.
Section 2 states the contents of a summons:
Sec. 2. Contents. The summons shall be directed to the defendant,

signed by the clerk of court under seal, and contain: (a) the name of the
court and the names of the parties to the action; (b) a direction that
the defendant answer within the time fixed by these Rules; (c) a notice
that unless the defendant so answers, plaintiff will take judgment by
default and may be granted the relief applied for.
A copy of the complaint and order for appointment of guardian ad
litem, if any, shall be attached to the original and each copy of the
summons. (3a)
Q: Define Summons.
A: SUMMONS it is a writ or process issued and served upon a defendant in a civil action for the
purpose of securing his appearance therein. (Ballentine’s Law Dict., 2nd Ed., p. 1250)
Q: What is the purpose of summons?

A: The service of summons enables the court to acquire jurisdiction over the person of the defendant.
(Echevarria vs. Parsons Hardware, 51 Phil. 980)
Q: How does the court acquire jurisdiction over the person of the plaintiff?

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A: Jurisdiction over the person of the plaintiff is acquired from the moment he files his complaint.
Upon filing his complaint in court, he is automatically within the jurisdiction of the court. (MRR Co. vs
Atty. Gen. 20 Phil. 523)
Q: What is the effect if a defendant is not served with summons?

A: The judgment is void. The court never acquired jurisdiction over his person. (Pagalaran vs. Bal-
latan, 13 Phil. 135; De Castro vs. Cebu Portland Cement Co., 71 Phil. 479)
Q: If a complaint is amended and an additional defendant is included, is there a necessity of issuing

new summons on the additional defendant?
A: YES. When an additional defendant is included in the action, summons must be served upon him
for the purpose of enabling the court to acquire jurisdiction over his person. The case is commenced
against the additional defendant upon the amendment in the complaint (Fetalino vs. Sanz, 44 Phil. 691)
Q: Suppose a defendant, who has already been summoned, died, and there was substitution of party
(under Rule 3), his legal representative was substituted in his place, is there a necessity of issuing new
summons on the substituted defendant?
A: NO. The order of the court ordering him to be substituted is already sufficient. Anyway he is
only a continuation of the personality of the original defendant. Just serve the copy of the order, where he
is ordered to be substituted. (Fetalino vs. Sanz, 44 Phil. 691)
BAR QUESTION: If a defendant is served with summons and later on the complaint is amended by
the plaintiff, is there a necessity that another summons be issued and served based on the amended
complaint? Or is the summons of the original complaint sufficient?
ANS: It depends on whether the amendment was made before or after defendant’s appearance in the
action:
Q: What do you mean by the phrase “appearance in the action”?
A: The best example is, whether the defendant files an answer to the complaint.
Appearance in civil cases does not mean that you are there and show your face to the
judge. That is not the meaning of the word “appearance”. Appearance means filing
something in court which would show that the court has jurisdiction over your person,
like the filing of an answer. When the defendant filed an answer through his lawyer,
there is now appearance of the defendant.
a.) If the defendant has not filed answer to the original complaint there must be another summons
issued on the amended complaint. A new summons must be served all over again based on the
amended complaint. (Atkins, Kroll & Co. vs. Domingo, 44 Phil. 680)
b.) If the defendant has already filed an answer to the original complaint or he has already appeared
in the action, and after that the complaint is amended, there is no need of issuing new summons
on the amended complaint. (Ibid; Ong Peng vs. Custodio, L-14911, March 1961)
Q: Connecting the question with Rule 11 (on periods to file pleadings), suppose the defendant was
served with summons on the original complaint and before he could answer, there is now an amended
complaint, so there will be new summons on the amended complaint, what is the period to file an
answer?
A: The period to file an answer is 15 days all over again. there will be another period of 15 days to
file an answer to the amended complaint upon receipt of the amended complaint and the summons.
Q: Suppose the defendant has already filed an answer to the original complaint and after that there is
an amended complaint, what must the plaintiff do?
A: This time, there no need of summons. All that the plaintiff has to do is to furnish the defendant a
copy of the amended complaint together with the motion to admit it. Just serve the defendant a copy of
the amended complaint with a copy of the order admitting the filing of the amended complaint.
Q: Suppose that the court allowed the admission of the amended complaint, what is the period for
the defendant to file an answer to the amended complaint?
A: Going back to Rule 11, ten (10) days only. Ten (10) days, not from the receipt of the amended
complaint, but from receipt of the order allowing the amended complaint.
Appearance in an action is best manifested by the filing of an answer by the defendant. However,
according to the SC in the case of:
PAN ASIATIC TRAVEL CORP. vs. COURT OF APPEALS

164 SCRA 623
HELD: Appearance in the action is not only limited to the filing of an answer. When
defendant files a motion for extension of time to file his answer, that is already an appearance

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in the action. If a defendant files a motion for Bill Of Particulars under Rule 12, that is
already considered as an appearance in the action.
SEC. 3 By whom served – the summons may be served by the sheriff,

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

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

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“Respectfully returned to the court with the information that defendant cannot be served with summons because the
defendant had already moved from the address indicated in the complaint and therefore he cannot be located.”
There must be a report because that will determine when the period to file an answer will start to run.
Or, if he failed to serve it for one reason or another, like for example, the defendant is no longer residing
in that place and you cannot find him, at least you must also return the summons to the court and make a
report that you cannot serve the summon. That is what you call the Sheriff’s Return under Section 4, Rule
14.
He must also furnish a copy of his report to the plaintiff’s lawyer so that the plaintiff’s lawyer can
determine what is the deadline for the defendant to file his answer.
SEC. 5 Issuance of Alias Summons – if a summons is returned without

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

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

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

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

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

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

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Q: Do you have to serve it to the defendant in his office or in his house?

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

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

L-11580, July 20, 1959

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

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

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

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

AND SERVICE OF SUMMONS [RULE 14]

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Now, do not confuse substituted service of summons under Rule 14 with substituted service of
pleadings, orders and other papers under Rule 13.
Let us read Section 6, Rule 13:
Rule 13, SEC. 6. Personal service. - Service of the papers may be

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

motions, notices, resolutions, orders and other papers cannot be made
under the two preceding sections, the office and place of residence of
the party or his counsel being unknown, service may be made by delivering
the copy to the clerk of court, with proof of failure of both personal
service and service by mail. The service is complete at the time of such
delivery. (6a)
SECOND DISTINCTION: In Rule 14, substituted service means if you cannot serve the defendant in
person, then you serve the summons at the residence of the defendant with some person of suitable age
and discretion residing therein or by leaving copies at the defendant’s office or regular place of business
with some competent person in charge thereof. That is substituted service of summons under Rule 14.
But in Rule 13, substituted service of other pleadings, judgments, orders, etc., if personal service or
service by registered mail have failed, then serve it on the clerk of court. And that is known as substituted
service.
In Rule 14, there is NO such thing as service of summons through registered mail. So how can a summons
be served to a defendant in Manila? The Davao sheriff will mail the summons to the Manila sheriff who
will serve the summons to the defendant in Manila.
So, iba ang meaning. That is why I am emphasizing this to avoid confusion. Nakakalito, eh because
of the similarity of terms. Substituted service of summons in Rule 14 is different from substituted service of
pleadings, judgments and other papers in Rule 13.
Third Mode: SERVICE OF SUMMONS BY PUBLICATION : (Sections 14, 15, and 16)
SERVICE BY PUBLICATION UNDER SECTION 14

(Suing an Unknown Defendant)
Going back to Section 9, Rule 13:
Rule 13, SEC. 9. Service of judgments, final orders or resolutions. -

Judgments, final orders or resolutions shall be served either personally
or by registered mail. When a party summoned by publication has failed to
appear in the action, judgments, final orders or resolutions against him
shall be served upon him also by publication at the expense of the
prevailing party. (7a)
Under Rule 13, when a party summoned by publication has failed to appear in the action, meaning
the defendant failed to file an answer, the decision can also be served upon him by publication.
Q: What are the instances where a defendant may be served with summons by publication?
A: Sections 14, 15 & 16 of Rule 14.
And the first one is service upon defendant whose identity or whereabouts are unknown. That is
what you call suing an unknown defendant. Or, the defendant is known pero hindi na makita. He may

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be in Davao, Cebu or in Manila. Bali-balita lang. But definitely, he is in the Philippines. That is the
important condition. So, let us read Section 14:
Sec. 14. Service upon defendant whose identity or whereabouts are

unknown. In any action where the defendant is designated as an unknown
owner, or the like, or whenever his whereabouts are unknown and cannot be
ascertained by diligent inquiry, service may, by leave of court, be
effected upon him by publication in a newspaper of general circulation
and in such places and for such time as the court may order. (16a)
Under this provision, service of summons is allowed:
1.) where the defendant is designated as unknown owner. Well, we have discussed that in Rule 3 –
when you file a case against an unknown defendant is allowed. But of course, he is unknown,
you have no idea where he is staying; and
2.) where the defendant is known but his whereabouts are unknown and cannot be ascertained by
diligent inquiry.
EXAMPLE: If you want to file a case against somebody, and you can no longer find him. You do not
know where he moved. Maybe you have been receiving reports that he is in Manila or Cebu but the
exact address is unknown and you want to sue him.
Q: In the above case, is the plaintiff authorized to have the summons effected by publication?
A: Take note that to avail of summons by publication, there must be leave of court. You must file a
motion, under Rule 14, for permission to have defendant summoned by publication and the court will
issue an order allowing the defendant be served with summons by publication where the complaint and
the summons be ordered published. The service may be effected upon him by publication in a newspaper
of general circulation and in such places and for such time as the court may order.
“Of general circulation and in such places and for such time as the court may order.” Hindi naman kailangan
sa Daily Inquirer. Puwede man sa local paper, ba. For example, sabihin mo: “We learned that he is in
Cebu pero saan sa Cebu, we do not know.” The court may order the publication to be published in a
local newspaper of general circulation in Cebu. Of course, kasama diyan ang complaint. How many
times? Bahala na ang court. Say, tatlong issues. So, every Monday for three weeks. Basta the
presumption is mabasa yan ng defendant or at least somebody who must have read it will inform the
defendant. So, the law requires that you must file a motion and ask the court to allow service of
summons by publication.
Now, one thing that you have to remember is, the whereabouts of the defendant is unknown, but he
is in the Philippines. That is the condition. If he is in the United States, this will not apply. What is
contemplated by Section 14 is that the address of the defendant is unknown but it is positive that he is in
the Philippines.
ILLUSTRATION: Suppose your friend borrowed money from you. Never paid you and just
disappeared and the last time you heard, he is residing somewhere in General Santos City. So you
wanted to sue by having the summons under Section 14 because his exact whereabouts is unknown. So
you file a motion for leave to serve summons by publication under this rule. The question is, should the
court allow it? Of course the tendency is to say “yes” because his whereabouts is unknown and cannot be
ascertained by diligent inquiry.
Q: Now what kind of an action is an action to collect an unpaid loan where the defendant cannot be
located anymore?
A: That is an action in personam.
Q: If the defendant is in the Philippines and his whereabouts is unknown and the action is in
personam, can the plaintiff resort to service summons by publication?
A: In the cases of
FONTANILLA vs. DOMINGUEZ

73 Phil. 579
HELD: In this case, SC said service of summons is possible even if the action is in
personam because service by publication when the whereabouts of the defendant is unknown
is allowed whether the case is in personam or in rem. It is proper in all actions without
distinction provided, the defendant is residing in the Philippines but his identity is unknown
or his address cannot be ascertained.
So if we will follow this case what will be our answer? YES, because it is allowed in any action
without distinction.

2001 Edition
PANTALEON vs. ASUNCION

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

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

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

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

A: The SC said that Section 14 can only be availed of when the action is in rem or quasi in rem. If the
action is in personam, like of collection of a sum of money, service of summons by publication to the
defendant is improper. The action should be action in rem or quasi in rem.
Q: Therefore if your action is in personam, like collection of an unpaid obligation, and you cannot find
the defendant and you want to avail of Section 14, what is you remedy?
A: As explained by the SC, you convert the action to in rem or quasi in rem. How? By looking for any
property of the said defendant and have it attached under Rule 57 [i], the last ground for attachment.
Now, your action is converted to quasi in rem. You can now file a motion for service of summons by
publication. (Pantaleon vs. Asuncion, 105 Phil. 765; Citizen’s Surety & Insurance Co., vs.

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Melencio-Herrera, 38 SCRA 369; Magdalena Estate, Inc. vs. Nieto, 125 SCRA 758; Plywood Industries vs
Breva, 166 SCRA 589)
In all these cases, the SC ruled that to validly serve summons by publication on a defendant who is in
the Philippines but whose name is not known or whereabouts is not known, the action must be in rem or
quasi in rem.
But a minor insignificant amendment to Section 14 has cast doubt on the validity of those doctrine.
Why? You read the opening of Section 14: “In any action…” you notice, “in any action where the
defendant is designated as an unknown… ” You look at the old rules. Can you find the phrase “in any
action”? You look and compare it. Let us look the 1964 Rules:
1964 Rules, Rule 14, SEC. 16 “Whenever the defendant is designated as

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

December 8, 1988
FACTS: Good Earth Enterprises, a domestic corporation was sued. Sheriff went to the
address of the corporation but the corporation was no longer there. It moved to another
place. Subsequently, the sheriff returned the summons to the court. Plaintiff Baltazar filed a
motion for leave to serve the summons and a copy of the complaint upon defendant Good
Earth by publication
ISSUE: Can there be a proper service by publication in this case?
HELD: NO. Service by Publication (Section 14) will not apply because there was no
diligent inquiry made by the sheriff.

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“Under Section 14, therefore, petitioner must show that the address of Good Earth was
‘unknown’ and that such address could not be ascertained by diligent inquiry. More
importantly, We do not believe that the acts of the sheriff satisfied the standard of ‘diligent
inquiry’ established by Section 14 of Rule 14. The sheriff should have known what every law
school student knows, that Good Earth being a domestic corporation must have been
registered with the Securities and Exchange Commission and that the SEC records would,
therefore, reveal not just the correct address of the corporate headquarters of Good Earth but
also the addresses of its directors and other officers.”
SERVICE BY PUBLICATION UNDER SECTION 15

(Extraterritorial Service)
When the defendant is not residing in the Philippines and he is not physically around he must be
served with summons even if he is abroad and that is what is called extraterritorial service. We go back
to the basic question:
Q: Can you sue in the Philippines a defendant who is not residing in the Philippines and who is not
around physically?
A: NO, you cannot because there is no way for the court to acquire jurisdiction over his person
EXCEPT when action is in rem or quasi in rem, like when the action is the personal status of the plaintiff
who is in the Philippines or the properties of the defendant are in the Philippines. And the venue is
where the plaintiff resides or where the property is situated. That is found in Section 3, Rule 4:
Rule 4, SEC. 3. Venue of actions against nonresidents – If any of the

defendants do not reside and is not found in the Philippines, and the action
affects the personal status of the plaintiff or any property of said
defendant located in the Philippines, the action may be commenced and tried
in the court of the place where the plaintiff resides, or where the property
or any portion thereof is situated or found.
Q: If the defendant who is not around and is not residing in the Philippines can be sued under Rule
4, how will you serve summons?
A: This is answered by Section 15:
Sec. 15. Extraterritorial service. When the defendant does not reside
and is not found in the Philippines, and the action affects the personal
status of the plaintiff or relates to, or the subject of which is,
property within the Philippines, in which the defendant has or claims a
lien or interest, actual or contingent, or in which the relief demanded
consists, wholly or in part, in excluding the defendant from any interest
therein, or the property of the defendant has been attached within the
Philippines, service may, by leave of court, be effected out of the
Philippines by personal service as under section 6; or by publication in
a newspaper of general circulation in such places and for such time as
the court may order, in which case a copy of the summons and order of the
court shall be sent by registered mail to the last known address of the
defendant, or in any other manner the court may deem sufficient. Any
order granting such leave shall specify a reasonable time, which shall
not be less than sixty (60) days after notice, within which the defendant
must answer. (17a)
Q: In what instances can you sue in the Philippine courts a defendant who does not reside and is not
found in the Philippines? The other way of asking is, when may a defendant be sued and served with
summons by extraterritorial service?
A: Let us break up Section 15. There are four (4) instances when a defendant who does not reside and
is not found in the Philippines may be sued and summons served by extraterritorial service, provided the
case is in rem or quasi in rem:
1.) the action affects the personal status of the plaintiff;
EXAMPLE: A child left behind files a case against his father for compulsory recognition or
acknowledgement at least to improve his status because the res is the status of the plaintiff.
2.) when the action relates to or the subject of which is, property within the Philippines, in which the
defendant has or claims a lien or interest, actual or contingent;
3.) when the action relates to or the subject of which is, property within the Philippines in which the
relief demanded consists, wholly or in part, in excluding the defendant from any interest therein;
or

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4.) When the property of the defendant has been attached within the Philippines – that is the
MAGDALENA case.
NOTE: The action must be either action in rem or quasi in rem. So an action in personam can never be
filed against a non-resident defendant. That is the similarity between Section 14 and 15 on the assumption
of the ruling in the MAGDALENA is still intact. Even if the defendant is not in the Philippines, the action
must be in rem or quasi in rem. That is their similarity – the action must be classified as in rem or quasi in
rem. That is if we follow the MAGDALENA ESTATE ruling.
Q: What is the difference between Section 14 and Section 15?

A: The difference between Section 14 and 15 is that in Section 14, the defendant is in the country but
his exact whereabouts is unknown, whereas in Section 15, he is really out of the country and is no longer
residing here.
MODES OF EXTRATERRITORIAL SERVICE

Q: How do you serve summons for such a defendant in Sect. 15?
A: Service may, with leave of court, be effected in the Philippines:
a.) By personal service under Section 6;

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

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

198 SCRA 44
FACTS: Defendant is residing permanently in LA, this is an action in rem. By leave of

court, summons was served through publication by ordering to be published for 3 weeks in
the Philippine Daily Inquirer. Another copy will be sent to his last address. Here defendant
questioned the publication. According to him, publication should be in a newspaper in LA,
not the Philippines. How can I be expected to read it when it is published in the Philippines,
nobody will bring it to my attention. But if it is published here, the probability that I read it
is stronger or my neighbor will bring it to my attention.

2001 Edition
ISSUE #1: Is the contention of the defendant correct?

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

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

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The relief is limited to the res so there could be no relief for damages unless he voluntarily submits
himself to the jurisdiction of the court.
c.) modes of extraterritorial service; IN ANY OTHER MANNER WHICH THE COURT MAY
DEEM SUFFICIENT
That is a very general term. A good example of that was what happened in the case of
CARRIAGA, JR. vs. MALAYA

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

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

2001 Edition
252 SCRA 92 [1996] J. Mendoza
FACTS: Here, the defendant is Lourdes Valmonte who is a foreign resident. She is
residing abroad. Her husband, Alfredo Valmonte, who is also her attorney, has a law office in
the Philippines. He is Atty. Valmonte – yung mga Valmonte sa checkpoint cases in
Constitutional law. He is an activist-lawyer. So, his wife is residing abroad but he is here,
because he is practicing in the Philippines.
Now, the sister of Mrs. Valmonte filed a case against her for partition of real property.
You know that you have to implead all the co-owners. The summons intended for Lourdes
was served on her husband in the latter’s law office because anyway, the husband is here.
ISSUE : Was there a valid service of summons on Lourdes Valmonte?
HELD: There is NONE. There was no valid service of summons.
REASON #1: First of all, the case at bar is an action for partition and accounting under
Rule 69. So, it is an action quasi in rem. Since this is an action quasi in rem and Lourdes
Valmonte is a non-resident who is not found in the Philippines, summons on her must be in
accordance with Rule 14, Section 15. So you must follow the modes of service under Section
15 because the action is quasi in rem.
In this case, the service of summons was not effected personally because it was served on
the husband. There was also no publication. The only possibility is the third one, “in any
other manner the court may deem sufficient.”
But the third mode applies only when you are serving the summons abroad. You cannot
apply this when you are serving the summons in the Philippines. So it does not also fall
under the third mode. This mode of service, like the first two, must be made outside of the
Philippines such as through the Philippine Embassy in the foreign country where the
defendant resides.
REASON #2: Under Section 17, leave of court is required when serving summons by
publication. There must be a motion where the court will direct that the summons be served
in that manner.
In this case, was there any motion filed here? Wala man ba. Was there any order of the
court authorizing it? Wala rin. So it does not comply with Sections 15 and 17.
REASON #3: The third most important reason is that, when the defendant is a
non-resident and being served abroad under Section 15, the law guarantees a minimum of
sixty (60) days to answer the complaint pursuant to Section 15.
And here, she was only given fifteen (15) days to file the answer. Therefore, there was an
erroneous computation of the period to answer.
“Finally, and most importantly, because there was no order granting such leave, Lourdes
Valmonte was not given ample time to file her Answer which, according to the rules, shall be
not less than sixty (60) days after notice. It must be noted that the period to file an Answer in
an action against a resident defendant differs from the period given in an action filed against
a nonresident defendant who is not found in the Philippines. In the former, the period is
fifteen (15) days from service of summons, while in the latter, it is at least sixty (60) days from
notice.”
So those are the three main reasons cited by the SC on why there was improper service of summons
on Lourdes Valmonte under the rules.
SERVICE OF SUMMONS BY PUBLICATION UNDER SECTION 16
Sec. 16. Residents temporarily out of the Philippines. When any

action is commenced against a defendant who ordinarily resides within the
Philippines, but who is temporarily out of it, service may, by leave of
court, be also effected out of the Philippines, as under the preceding
section. (18a)
Q: What is the main difference between defendant in Section 15 and in Section 16?
A: In section 15, defendant is residing abroad and not even found in the Philippines, while in Section
16 defendant is residing in the Philippines but temporarily out of the Philippines.

2001 Edition
EXAMPLE: Suppose Ms. Torres is in a world tour. She is considered a resident defendant temporarily
out of the Philippines. I can sue her but it will take months before she come back. The problem is, your
action will already prescribe.
Q: How will you serve summons to him?
A: According to Section 16, you can serve summons just like in Section 15 – through personal service,
by publication, and in any other manner the court may deem sufficient. So one option is to wait for him to
come back and then serve the summons personally.
One of the leading case on this type of defendant was in the old case of:
MONTALBAN vs. MAXIMO

22 SCRA 1070
FACTS: In this case, the defendant is residing in the Philippines but on a world tour and
he will be out for so many months. Naga-tour ba! It was at that time when the summons was
served in his residence. Well of course, he is not there. But there was somebody left in the
house. So, the sheriff said, “Who are you?” And the person said that he is the one in charge
here. “When is your boss coming back?” Mga four or five months pa.
So, the sheriff served upon the person in charge the summons. So, the sheriff resorted to
substituted service under Section 7. And there was a default judgment. Pagbalik ng tao,
defaulted na siya, meron ng execution. So he questioned the service of summons because
under Section 16, in relation to Section 15, summons must be served with leave of court by
personal, publication or in any other manner.
ISSUE #1: Can substituted service of summons be applied to a defendant who is residing
in the Philippines but temporarily out?
HELD: YES. Substituted service is also applicable. Unlike Section 15 where the defendant
has no residence here, you have a residence man. The sheriff resorted to substituted service
by leaving it to the person in charge, a person of sufficient age and discretion because for
justifiable reasons, substituted service is also applicable even if the defendant is outside of the
Philippines.
It is true that personal service of summons is preferred. But if the personal service cannot
be effected within a reasonable time, the sheriff can resort to substituted service. And in your
case, the sheriff cannot serve personally because you will be out of the country for the next
four or five months. So the sheriff has to resort to substituted service.
ISSUE #2: Second, sabi niya, “Equity na lang. That is unfair, eh, because I really had no
knowledge about the case. I failed to answer because you see, during the five months when I
was abroad, I never had the opportunity to call up the one I left behind. So there was no
opportunity for me to ask him what has been happening there. He has also no opportunity to
tell me about what happened because he does not know where I was. So I only learned about
it after five months. So in the name of equity please set aside the judgment.”
HELD: In the name of equity, we will not set aside the judgment. You did not even
bother to call and tell the person left where you were. When you called up perhaps the
person left could notify you about the summons. You are very irresponsible! What kind of a
person are you? You will leave for abroad and you will not even bother to call up to find out
what is going on. So, wala!
So the case of MONTALBAN provides that the service of summons under Section 16 on the defendant
doesn’t prevent the application of Section 7 in addition to Section 15. Summons can be served abroad just
like in Section 15 but it does not mean to say that you cannot apply Section 7 because anyway it does not
say MUST, it uses MAY.
And one thing that you will notice in Section 16 is that the action is IN PERSONAM. It is purely an
action for damages. So in Section 16, when residents are temporarily outside of the Philippines, there
could be also substituted service of summons in addition to Section 15 and the action could be in
personam as distinguished from Sections 14 and 15 where the action must be in rem or quasi in rem.
So the action in Section 16 need not be an action in rem or quasi in rem because he is actually
residing in the Philippines and only temporarily out.
SERVICE OF SUMMONS IN EXCEPTIONAL CASES
1.) SERVICE OF SUMMONS UPON AN ENTITY WITHOUT JURIDICAL PERSONALITY

2001 Edition
Sec. 8. Service upon entity without juridical personality. When

persons associated in an entity without juridical personality are sued
under the name by which they are generally or commonly known, service may
be effected upon all the defendants by serving upon any one of them, or
upon the person in charge of the office or place of business maintained
in such name. But such service shall not bind individually any person
whose connection with the entity has, upon due notice, been severed
before the action was brought. (9a)
Section 8 is related to Rule 3, Section 15:
Rule 3, Sec. 15. Entity without juridical personality as defendant.

When two or more persons not organized as an entity with juridical
personality enter into a transaction, they may be sued under the name by
which they are generally or commonly known.
In the answer of such defendant, the names and addresses of the
persons composing said entity must all be revealed. (15a)
Q: Since you can sue someone without juridical personality, how do serve summons upon him?
A: Under Section 8, by serving summons upon anyone of them, that is sufficient. Service upon any
of those defendants is service for the entire entity already. You may also serve summons upon the person
in charge of the office of the place of business. He may not necessarily be the owner but in-charge of the
office, he can be served with summons.
2.) SERVICE OF SUMMONS UPON SOMEBODY WHO IS A PRISONER
Sec. 9. Service upon prisoners. When the defendant is a prisoner

confined in a jail or institution, service shall be effected upon him by
the officer having the management of such jail or institution who is
deemed deputized as a special sheriff for said purpose. (12a)
Q: How do you serve summons to somebody who is a prisoner?

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

administrator, etc.
Q: When you sue a minor or an insane, how is summons served?

A: You serve the summons to the father or mother in the case of minor. For a legal guardian, in the
case of incompetent people or to the minor himself.
Q: The law says that “service shall be made upon him (the minor) personally” when he may not
understand what it is all about? Baka itatapon lang niya iyon.
A: Because under Rule 3, he is the real party in interest.
4.) WHEN SERVICE OF SUMMONS ON DOMESTIC PRIVATE JURIDICAL ENTITY.
Sec. 11. Service upon domestic private juridical entity. When the
defendant is a corporation, partnership or association organized under
the laws of the Philippines with a juridical personality, service may be
made on the president, managing partner, general manager, corporate
secretary, treasurer, or in-house counsel. (13a)
What do you mean by domestic? A corporation or association organized under Philippine laws.

2001 Edition
Majority of our corporations in the Philippines, almost 95%, are domestic private corporation. Like
banks – BPI, Security Bank - they can be sued because they are persons in the eyes of the law.
Now, how do you serve summons to a corporation? Actually, they have no physical existence, they
only exist by legal friction. Ordinarily summons must be served to a human being, to somebody who is
supposed to be the representatives. Therefore, common sense will tell that in case of a corporation, you
have to serve the summons through people who run the corporation.
Q: To whom do you serve summons if it is a corporation?

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

A: President, managing partner, general manager, corporate secretary, treasurer, in-house counsel.
PRESIDENT. Sometimes, the president of a corporation is called the Chief Executive Officer or
CEO.
MANAGING PARTNER. This is in case of a partnership.
GENERAL MANAGER. Under the prior law, the word there is simply “manager.” Now they added
the word “general.” But even in the old law, the word “manager” is interpreted as general manager. In a
corporation, there are so many managers like branch managers. General manager is the over-all manager
of the corporation throughout the Philippines. He is usually based in the head office.
CORPORATE SECRETARY. The prior law only used the word “secretary” but it has been
interpreted as corporate secretary, not the typist secretary. The corporate secretary is the custodian of the
records of the corporation. He is also a stockholder, because you cannot be a corporate secretary unless
you are a stockholder. The new law has already emphasized ‘corporate secretary.’ Before illiterate
sheriffs used to serve summons on secretary-typist.
TREASURER. The prior law says “cashier” now they have changed the word to ‘treasurer.’ It is
because treasurer is actually an officer also. He is just like a budget secretary of the government.
Cashiers are ordinary employees which is more on clerical works.
IN-HOUSE COUNSEL. He is the lawyer of the company. He is actually employed by the

corporation. He takes care of the legal problems. In Manila, for instance, most of the corporations there
have in-house counsels. Not so much here in Davao. Like Ayala Corporation in Manila, they have
internal legal counsel more or less 10 while Bank of Philippine Island has around 15. But these
corporations hire lawyers from the outside when it comes to sensitive cases. They are referred as
external legal counsel.
The rule that summons may be served on internal legal counsel, although appearing for the first time
in the 1997 rules, is actually an old rule. It has been ruled already in some cases that service of summons
upon an in-house counsel of a corporation is valid. It binds the corporation under the ruling in the case
of PHILIPPINE OIL MKTG. CORP. vs. MARINE DEV’T CORP. (117 SCRA 879) and FAR
CORPORATION vs. FRANCISCO(145 SCRA 197) that the in-house counsel if served with summons,
there is a valid service, because anyway, if you serve it to the general manager or the President, chances
are it will also be referred to him kay siya man ang abogado. So the in-house counsel is new and it
confirms what the SC said.
Two (2) Persons in the OLD RULE not mentioned in the new rules:
But here is the change. In the previous law, you can serve the summons on any of the directors of the
corporation – MEMBERS of the BOARD ba. Now, wala na yan ngayon. I think the only member of the
Board here is the Corporate Secretary. So, the directors, hindi na puwede.
But here is the most radical change. The word ‘AGENT,’ nawala na! Did you notice under the old
law, there is agent. The word agent was so broad and so general that the SC has actually included there
so many people.
Like in the case of R TRANSPORT CORPORATION vs. CA, (241 SCRA 77 [1995]), the summons
was served to the Operations Manager of the corporation and the SC said the service was valid because
he is considered as an agent.
In the 1993 case of GESULGON vs. NLRC (219 SCRA 561), the summons was served on the Assistant
General Manager of the corporation and the SC said that the service was valid because he is an agent.

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In the case of FAR CORPORATION vs. FRANCISCO (146 SCRA 197), the summons was served on
the Chief of Finance and Administrative Section of the corporation and the SC said that he will fall under
the word agent.
In the cases of DELTA MOTORS vs. MASAGUN (70 SCRA 598) and ATM TRUCKING vs.
BUENCAMINO (124 SCRA 434) the service of summon an employee employed in a corporation does
not bind the corporation because an ordinary employee who is not an officer is not considered as agent.
However, there are cases were the service of summons to an ordinary employee who is not an officer
was valid. Among which are:
The case of SUMMIT TRADING vs. ABENDANO (135 SCRA 397 [1985]), the summons was served
on the confidential secretary of the President and the SC said the service is valid. She is qualified as agent.
And in the cases of J AND J CORPORATION vs. CA (158 SCRA 466), reiterated in the case of
GOLDEN FARMS vs. SUN BAR DEVELOPMENT CORPORATION (214 SCRA 295), the summons was
served on a mere clerk of the corporation. So, he is not even an officer. But the clerk gave it to the
President. The SC said that the defect is cured. The clerk could be considered as an agent. The need for
speedy justice must prevail over technicality. So, the word ‘agent’ has become very broad and it
practically covers all corporate officers who are presumed to be responsible.
Now, in the 1997 rules, the word ‘agent’ disappeared. And the law is very clear: President, managing
partner, general manager, corporate secretary, treasurer, in-house counsel.
Now, suppose you will serve it to the Branch manager? Of course the corporation will say that there
is no valid service of summons. OK, it is void. But look at the case of GESULGON, etc. But that is under
the 1964 rules when you are deemed to be an agent. But now, it is very specific. The intention of the new
rules is to limit the service to anyone of these. That is why they removed the word ‘agent.’
And if that interpretation prevails that the intention of the rules is to limit to these people, it is now
very difficult to sue a corporation based in Makati if you are here in Davao because your summons has to
be coursed through them. And these people are not here! The President is not here; The General Manager,
etc. They are all based in the head office. Corporate Secretary, treasure, in-house counsel – Doon man ang
opisina nila ba. The ones based here are branch managers and they are now disqualified. If that is the
intention of the law, my golly! That is another headache!
It can be argued both sides eh. Despite this, we should stick to the principle that technicalities should
not give way.
Suppose I will serve it on the Branch Manager. He forwarded it to their President in Manila. Eh ano
pa ngayon ang reklano ninyo? Anyway you already acquired it, you learned about it. Can you insist that
the court has no jurisdiction when actually you are well aware already of the suit? You can say, let us go
to reality. But it can also be argued under the old law. Precisely, if the intention is to make everybody a
responsible officer, then the word ‘agent’ should have been retained. The intention of the law is to limit
only to these people. So, both sides can be defended.
Section 11 thus becomes another controversial provision. Whether this change has abrogated
GESULGON, FAR EAST CORP., SUMMIT TRADING na pwede. All those doctrines have now been
rendered obsolete because of this change. All those cases were decided based on the word ‘agent’ – are
they agents? At least there is basis, eh. Now, the word ‘agent’ is no longer there. That is why this is a
controversial provision.
E.B. VILLAROSA LTD vs. BENITO

312 SCRA 65 [Aug. 6, 1999]
FACTS: E.B. Villarosa & Partners is a limited partnership with principal office address at
102 Juan Luna St., Davao City and with branch offices at Parañaque and Cagayan de Oro
City (CDO). Villarosa and Imperial Development (ID) executed an Agreement wherein
Villarosa agreed to develop certain parcels of land in CDO belonging to ID into a housing
subdivision. ID, filed a Complaint for Breach of Contract and Damages against Villarosa
before the RTC allegedly for failure of the latter to comply with its contractual obligation.
Summons, together with the complaint, were served upon Villarosa, through its Branch
Manager Wendell Sabulbero at the address at CDO but the Sheriff’s Return of Service stated
that the summons was duly served "E.B. Villarosa & Partner thru its Branch Manager at their
new office Villa Gonzalo, CDO, and evidenced by the signature on the face of the original
copy of the summons."

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Villarosa prayed for the dismissal of the complaint on the ground of improper service of
summons and for lack of jurisdiction over the person of the defendant. Villarosa contends
that the RTC did not acquire jurisdiction over its person since the summons was improperly
served upon its employee in its branch office at CDO who is not one of those persons named
in Sec. 11, Rule 14 upon whom service of summons may be made. ID filed a Motion to
Declare Villarosa in Default alleging that Villarosa has failed to file an Answer despite its
receipt allegedly on May 5, 1998 of the summons and the complaint, as shown in the Sheriff's
Return.
HELD: “We agree with Villarosa. Earlier cases have uphold service of summons upon a
construction project manager; a corporation's assistant manager; ordinary clerk of a
corporation; private secretary of corporate executives; retained counsel; officials who had
charge or control of the operations of the corporation, like the assistant general manager; or
the corporation's Chief Finance and Administrative Office. In these cases, these persons were
considered as "agent" within the contemplation of the old rule.”
“Notably, under the new Rules, service of summons upon an AGENT of the corporation
is NO LONGER authorized.”
“The designation of persons or officers who are authorized to accept summons for a
domestic corporation or partnership is now limited and more clearly specified in Section 11,
Rule 14. The rule now states "general manager" instead of only "manager"; "corporate
secretary" instead of "secretary"; and "treasurer" instead of "cashier." The phrase "agent, or
any of its directors" is conspicuously deleted in the new rule.”
“A strict compliance with the mode of service is necessary to confer jurisdiction of the
court over a corporation. The officer upon whom service is made must be one who is named
in the statute; otherwise the service is insufficient. . . The liberal construction rule cannot be
invoked and utilized as a substitute for the plain legal requirements as to the manner in
which summons should be served on a domestic corporation. .”
“Service of summons upon persons other than those mentioned in Section 13 of Rule 14
(old rule) has been held as improper. Accordingly, we rule that the service of summons upon
the branch manager of Villarosa at its branch office at CDO, instead of upon the GM at its
principal office at Davao City is improper. Consequently, the RTC did not acquire
jurisdiction over the person of Villarosa. The fact that Villarosa filed a belated motion to
dismiss did not operate to confer jurisdiction upon its person. There is no question that the
Villarosa’s voluntary appearance in the action is equivalent to service of summons.”
“Before, the rule was that a party may challenge the jurisdiction of the court over his
person by making a special appearance through a motion to dismiss and if in the same
motion, the movant raised other grounds or invoked affirmative relief which necessarily
involves the exercise of the jurisdiction of the court, the party is deemed to have submitted
himself to the jurisdiction of the court. This doctrine has been abandoned in the case of La
Naval Drug Corporation vs. CA which became the basis of the adoption of a new provision in
Section 20 of Rule 14.”
“Section 20 now provides that the inclusion in a motion to dismiss of other grounds aside
from lack of jurisdiction over the person of the defendant shall not be deemed a voluntary
appearance. The emplacement of this rule clearly underscores the purpose to enforce strict
enforcement of the rules on summons. Accordingly, the filing of a motion to dismiss, whether
or not belatedly filed by the defendant, his authorized agent or attorney, precisely objecting
to the jurisdiction of the court over the person of the defendant can by no means be deemed a
submission to the jurisdiction of the court.”
“There being no proper service of summons, the trial court cannot take cognizance of a
case for lack of jurisdiction over the person of the defendant. Any proceeding undertaken by
the trial court will consequently be null and void.”
“WHEREFORE, the petition is hereby GRANTED. The assailed Orders of the public
respondent trial court are ANNULLED and SET ASIDE.”
5.) SERVICE OF SUMMONS UPON FOREIGN PRIVATE JURIDICAL ENTITY
Sec. 12. Service upon foreign private juridical entity. When the
defendant is a foreign private juridical entity which has transacted
business in the Philippines, service may be made on its resident agent
designated in accordance with law for that purpose, or, if there be no
such agent, on the government official designated by law to that effect,
or on any of its officers or agents within the Philippines. (14a)
Q: What is the difference between corporation or entity in Section 11 and Section 12?
A: The entity or corporation under Section 11 is domestic while under Section 12, the corporation is a
foreign corporation but doing business in the Philippines because the law says, when the defendant is a
foreign private juridical entity which transacted business in the Philippines…”

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When a foreign corporation is not doing business in the Philippines, it cannot be sued, just like a non-
resident defendant. The best example of a foreign corporation doing business in the Philippines are air
line companies, foreign banks.
Q: To whom do you serve summons in this case?

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

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

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

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

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

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

HELD: YES. Otherwise, if we will say that a corporation which is already dissolved can
no longer be sued, it is very easy for a corporation to avoid liability by simply dissolving
itself after it commits a wrong.
And secondly, under the Corporation Law, even if you are already dissolved, there is still
a period for winding up where you can collect. So, it is still functioning. And to say that it is
already dissolved or that it is no longer functioning is not also true.

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

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

G.R. No. L-7154. October 23, 1954
HELD: “‘Doing business’ is construed to mean such continuity of conduct and intention
to establish a continuous business. An isolated transaction, or transactions which are
occasional, incidental or casual and which do not evince intent to conduct continuous
business do not constitute ‘doing business in the Philippines.’”
“In order that a foreign corporation may be regarded as doing business in the
Philippines, there must be continuity of conduct and intention to establish a continuous
business, such as the appointment of a local agent, and not one of a temporary character.”
FAR EAST INTERNATIONAL vs. NANKAI KOGYO CO., LTD.

November 30, 1962
HELD: “Where a single act or transaction of a foreign corporation is not merely

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

125 SCRA 522
FACTS: A Philippine corporation entered into a contract with a foreign corporation and
then their agreement says the foreign corporation agrees to be sued in the Philippines. So
practically, puwede. And the problem now is, to whom will you serve the summons?
When a foreign corporation not doing business in he Philippines agrees to be sued in the
Philippines, how do you serve summons? Is Section 12 applicable?

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HELD: NO, Section 12 is not applicable because in Section 12, the premise is, the foreign
private corporation is doing business in the Philippines. So Section 12 does not apply. So,
how shall we serve the summons?
In the first place, the foreign corporation, which cannot be sued, agrees to be sued. Their
agreement is similar to venue where we can agree on the venue of the case. Now, since it is
not doing business, it is more accurate to apply the rules on Section 15 on extraterritorial
service of summons on a non-resident defendant who is not physically here.
So, summons should be served not in accordance with Section 12 but in accordance with Section 15
on extraterritorial service.
6.) SERVICE OF SUMMONS UPON PUBLIC CORPORATION
Sec. 13. Service upon public corporations. When the defendant is the
Republic of the Philippines, service may be effected on the Solicitor
General; in case of a province, city or municipality, or like public
corporations, service may be effected on its executive head, or on such
other officer or officers as the law or the court may direct. (10a)
An example of a public corporation is the Republic of the Philippines. As a rule, they cannot be sued.
But in cases where it can be sued, summons may be effected on the Solicitor General being the
representative of the Republic.
Kung provinces, cities or municipalities, like the City of Davao, service may be effected on the
executive heads such as the provincial governor, municipal or city mayor.
Summons may also be effected on “such other officer or officers as the law or the court may direct.”
So the court may order that the summons be served on the city legal officer. Here, there is still a valid
service of summons.
Sec. 18. Proof of service. The proof of service of a summons shall be

made in writing by the server and shall set forth the manner, place, and
date of service; shall specify any papers which have been served with the
process and the name of the person who received the same; and shall be
sworn to when made by a person other than a sheriff or his deputy. (20)
This is called a SHERIFF’S RETURN where the sheriff will state the manner (personal or substituted,
publication); place and date; to whom served. Then you specify that you serve also the complaint. Name
of person who received the same.
Q: Must the return be sworn to?

A: NO NEED, except when made by a person other than a sheriff or his deputy. Remember that
summons can be served by other person authorized by the court to do so.
Sec. 19. Proof of service by publication. If the service has been

made by publication, service may be proved by the affidavit of the
printer, his foreman or principal clerk, or of the editor, business or
advertising manager, to which affidavit a copy of the publication shall
be attached, and by an affidavit showing the deposit of a copy of the
summons and order for publication in the post office, postage prepaid,
directed to the defendant by registered mail to his last known address.
(21)
VOLUNTARY AND SPECIAL APPEARANCE
Sec. 20. Voluntary appearance. The defendant's voluntary appearance

in the action shall be equivalent to service of summons. The inclusion in
a motion to dismiss of other grounds aside from lack of jurisdiction over
the person of the defendant shall not be deemed a voluntary appearance.
(23a)
The first mode of acquiring jurisdiction over the person of the defendant is service of summons.
However, even when there is no service of summons, or if there is improper service of summons, if the

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defendant files an answer, then in effect, he is submitting himself to the jurisdiction of the court and the
court acquires jurisdiction over his person by voluntary appearance.
Voluntary appearance is not necessary an answer. Like a motion for an extension of time to file an
answer, or a motion for bill of particulars – that is indicative of his submission to the jurisdiction of the
court.
That is why we said, lack of jurisdiction over the person of the defendant because of absence of
service of summons or improper service of summons, can be waived by voluntary appearance. That is the
second mode.
Now, of course, when a defendant files a motion to dismiss on the ground that the court has not
acquired any jurisdiction over his person, that is not a voluntary appearance. That is a SPECIAL
APPEARANCE precisely to question the jurisdiction of the court over his person.
A special appearance is not indicative of the intention to submit to the jurisdiction of the court.
Otherwise, it becomes absurd if I will file a motion to dismiss questioning the jurisdiction of the court
over my person and then the court will say, “Well, by filing the motion to dismiss, you are also
voluntarily submitting to the jurisdiction of the court.” Definitely, that is not the appearance
contemplated by Section 20.
Now, the second sentence, “The inclusion in a motion to dismiss of other grounds aside from lack of
jurisdiction over the person of the defendant shall not be deemed a voluntary appearance.” What is the
meaning of that? Well, that principle is taken from the ruling of the SC in the leading case of LADAVAL
DRUG CORPORATION vs. CA, 236 SCRA 28, which we will discuss more in detail when we reach Rule
16 on Motion to Dismiss.

published by

Rule 15
MOTIONS
What is a motion? Define a motion.

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SECTION 1. Motion defined. A motion is an application for relief

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

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

A: They are found from Section 2 to Section 6:
Sec. 2. Motions must be in writing. All motions shall be in writing

except those made in open court or in the course of a hearing or trial.
(2a)
As a rule, all motions must be in writing, “except those made in open court or in the course of a
hearing or trial” because for example, during the trial, pagtingin mo sa relo, quarter to twelve na. So you
can move orally for continuance. And the judge will not require you to have that typed pa. There is no
more time to do that. Anyway, it is officially recorded.
Sec. 3. Contents. A motion shall state the relief sought to be

obtained and the grounds upon which it is based, and if required by these
Rules or necessary to prove facts alleged therein, shall be accompanied
by supporting affidavits and other papers. (3a)
So a motion shall state the relief sought to be obtained and the grounds upon which it is based. For
example, you move to postpone the trial next week because you client is still abroad. So you cite the
ground/s upon which it is based.
Q: Is it necessary that a motion be accompanied supporting affidavits and other papers?

A: No, unless required by the Rules or necessary to prove facts alleged therein.
Q: Give an example of a motion where supporting affidavits are required by the Rules.
A: A motion for new trial on the ground of fraud, accident, mistake of excusable negligence. Under
Rule 37, Section 2, in order for a motion for new trial on that ground to be valid, there must Be Affidavit
Of Merits. If there is no affidavit of merits, the motion will be denied.
And if necessary to prove facts alleged therein, then, the motion must be accompanied by affidavit
and other supporting papers. Example is when you are moving for the postponement of the trial because
your client is sick, the best supporting paper would be a medical certificate for that matter.
However, if it is not required by the Rules, or the facts are already stated on record, there is no need
of supporting affidavits or documents. Example is when you move to declare the adverse party in
default. There is no need to support your motion with affidavits because anyway the court can look at the
records, particularly the sheriff’s return, to check when was the defendant was served with summons.
Sec. 4. Hearing of motion. Except for motions which the court may act
upon without prejudicing the rights of the adverse party, every written
motion shall be set for hearing by the applicant.

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Every written motion required to be heard and the notice of the

hearing thereof shall be served in such a manner as to ensure its receipt
by the other party at least three (3) days before the date of hearing,
unless the court for good cause sets the hearing on shorter notice. (4a)
Now, under Section 4, it says there that you must furnish the adverse party a copy of your motion at
least three (3) days before date of hearing. So, you do not furnish him one day before the date of the
hearing. The reason there is to prevent surprise upon the adverse party and to enable the latter to study
the motion and file his opposition (Remante vs. Bonto, L-19900, Feb. 28, 1966). So a motion cannot be filed
ex-parte. Meaning, without notice of hearing and without furnishing a copy to the opponent.
However, a motion need not be set for hearing if it is not a controversial motion. Meaning, these are
motions “which the court may act upon without prejudicing the rights of the adverse party” such as a
motion for extension of time to file answer. So with this kind of motion, the court can immediately grant
your motion.
And the law says, you serve the motion in such a manner as to ensure its receipt by the other party at
least three (3) days before the date of hearing. In other words, you have to calculate that he will receive it
at least 3 days.
One good example of this requirement is one which is mentioned in Rule 13, Section 11, that personal
service is preferred to service by registered mail because if it is personal service, it is assured that the
adverse party received the motion 3 days before. But if it is service by mail, we do not know eh, unless
you mail it very much earlier because let us say, hearing on the motion will be on Friday, and then you
will mail the motion on Monday, or 5 days before, it is possible that the motion will reach the opponent
on Sunday or two days later.
That is the reason why personal service is preferred because if there is no explanation why you
resorted to by mail rather than personal service, the motion is deemed not filed.
Q: What is the effect if a party files a motion serving upon the adverse party the motion in less than
three days?
A: The court may refuse to take action on a motion which does not comply with the rule requiring a
three-day notice to the adverse party, “unless the court for good cause sets the hearing on shorter notice.”
Usually these are urgent motions such as moving for postponement because your witness got sick one
day or hours before the trial.
Sec. 5. Notice of hearing. The notice of hearing shall be addressed

to all parties concerned, and shall specify the time and date of the
hearing which must not be later than ten (10) days after the filing of
the motion. (5a)
Q: Now, what happens if a motion does not contain a notice of hearing?

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

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

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

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

2001 Edition
The SC has already commented on that several times. One of them was the case of
PRADO vs. VERIDIANO II

204 SCRA 654 [1991]
HELD: “Sections 5, Rule 15 of the Rules of Court which explicitly provide that the notice
shall be served by the applicant to all parties concerned and shall state the time and place for
the hearing of the motion. A notice of hearing addressed to the Clerk of Court and not to the
parties is no notice at all.” So it is very technical.
Sometimes, lawyers just ignore that. What is important is I know when you are going to set it. But
some lawyers are very technical. He will look for loopholes in the motion on the ground that you did not
address the notice of hearing to him but to the clerk of court. Is he correct? Tama man iyan ba! Even the
SC said that do not address it to the clerk of court. You address it to the party. The law is very clear.
Now, take note that the new rule added the phrase that you “must specify the time and the date of
the hearing which must not be later than ten (10) days after the filing of the motion.” That is not found in
the prior rule.
Before, some lawyers are mischievous. When they received the complaint, instead of filing an answer,
they will file a motion to dismiss just to delay. And the motion to dismiss is denied. But at least the period
to answer is stretch. And too make it worse, they will file it in November and they will set it for hearing
in December. One month from now.
Now, you cannot do that. Pag-file mo ng motion, maximum ten (10) days only. You cannot say, “I
will set if for hearing 2 months from now.” It is now very clear that it must not be later than 10 days after
the filing of the motion. And see to it that the party receives it 3 days before the hearing because of
Section 4. The minimum is 3 days. So that is a new requirement found in 1997 Rules.
Sec. 6. Proof of service necessary. No written motion set for hearing

shall be acted upon by the court without proof of service thereof. (6a)
Proof of service of the motion is required – “No written motion et for hearing shall be acted upon by
the court without proof of service hereof.” This is related to Rule 13. As a general rule, you cannot file
anything in court without furnishing a copy to your opponent. A motion cannot be filed ex-parte.
The only exception here are motions which can be filed ex-parte because they are not controversial.
Normally, there are motions which can be filed without proof of service, which generally the court will
grant anyway. Another example is Rule 23, Section 21 on indigent or pauper litigants – a party may be
authorized to litigate his action, claim or defense as a indigent upon ex-party motion together with the
complaint and a hearing. Therefore, there is no need to furnish copy of the motion to the other party.
But those are the only exceptions. So, as a rule, every motion must be served to the opposite party.
So, we will outline Sections 2 to 6
Q: What are the requisites of a valid motion?

A: The REQUISITES OF A VALID MOTION are the following:
1.) It must be in writing except those made in open court or in the course of hearing or
trial;
2.) It shall state the relief sought to be obtained and the ground upon which it is based;
3.) It must be accompanied by supporting affidavits and other papers, if required by
these Rules or necessary to prove facts alleged therein. However, if the facts are
already stated on record, the court can check the records;
4.) There must be a notice of the hearing attached to the motion and the adverse party
must receive the motion at least three (3) days before the date of hearing, unless
the court for good cause sets the hearing on shorter notice;
5.) There must be notice of hearing addressed to all parties concerned, and shall specify
the time and date of the hearing which must not be later than ten (10) days after
the filing of the motion; and
6.) There must be proof of service of the motion on the adverse party.

2001 Edition
Sec. 7. Motion day. Except for motions requiring immediate action,

all motions shall be scheduled for hearing on Friday afternoons, or if
Friday is a non-working day, in the afternoon of the next working day.
(7a)
Motion hearings are scheduled on Friday afternoons except those motion which require urgent
action. So if today is Friday and it’s a holiday, sa Monday pa ang hearing. But again, some judges do not
follow this. Ang iba pa nga, everyday eh.
OMNIBUS MOTION RULE
Sec. 8. Omnibus motion. Subject to the provisions of section 1 of

Rule 9, a motion attacking a pleading, order, judgment, or proceeding
shall include all objections then available, and all objections not so
included shall be deemed waived. (8a)
The word “omnibus” means “all embracing or all encompassing.”
Q: Define omnibus motion.

A: An OMNIBUS MOTION is one attacking a pleading, order, judgment, or a proceeding which shall
include all objections then available and objections not so included shall not deemed waived. (Section 8;
Ins. Co. of North America vs. Delgado Brokerage, L-22974, Oct. 28, 1966)
EXAMPLE #1: Motion to Dismiss. In effect, it attacks a proceeding. Where a party is not allowed to
file a motion to based on one ground, if denied, second motion to dismiss based on the second ground,
denied, third motion to dismiss. Meaning, ini-installment mo. That is not allowed. If you have two or
more grounds, you file only one motion to dismiss invoking those grounds because the rule is, any
ground not so invoked is deemed waived.
EXAMPLE #2: Rule 37 on New Trial. A second motion for new trial under Section 5 of Rule 37
prohibits the filing of a second motion for new trial based on grounds available to the movant when he
filed his first motion. Well, if the grounds came later, that is different.
So, the principle there is, if you have two or more grounds you should only file one motion where
you invoke all your grounds.
Now, obviously there is an EXCEPTION because the opening clause of section 8 is “Subject to the
provision of Section 1 of Rule 9.”
Rule 9, Section 1. Defenses and objections not pleaded. Defenses and

objections not pleaded either in a motion to dismiss or in the answer are
deemed waived. However, when it appears from the pleadings or the
evidence on record that the court has no jurisdiction over the subject
matter, that there is another action pending between the same parties for
the same cause, or that the action is barred by a prior judgment or by
statute of limitations, the court shall dismiss the claim. (2a)
Under Rule 9, There are four (4) exceptions. Meaning, they are not deemed waive even if you do not
raise them in a motion to dismiss, which can be even motu propio proceeded by the court.
Q: What are the grounds not deemed waived even if not raised in a motion to dismiss or answer.
(Exceptions to the omnibus motion rule)?
A: The following:
1.) Lack of jurisdiction over the subject matter;
2.) Litis pendentia;
3.) Res adjudicata; and
4.) Prescription.
Sec. 9. Motion for leave. A motion for leave to file a pleading or

motion shall be accompanied by the pleading or motion sought to be
admitted. (n)
EXAMPLE: Under the OLD rules, if you want to file an amended compliant, there are two (2)
Options under the old rules. The first option is to file a motion for leave to file amended complaint. And
when it is granted, that is the time for to you file your amended complaint. The second option is you file
your amended complaint together with the motion to admitted it.

2001 Edition
The same thing iyong sa intervention under the OLD rules. In a motion to intervene, “Motion to
intervene. Granted, I will file my pleading in intervention.” The same thing for certain types of motion
like motion for leave to file third-party complaint: “Motion for leave. Granted, I will file my third-party
complaint.” That is under the previous rule.
NOW, hindi na puwede yan. Under the PRESENT RULE, when you file a motion, the pleading to be
admitted must already be included in your motion. Pag-file mo nng motion, kasama na iyong pleading.
The pleading sought to be amended must already be included in the motion. One-time filing ba!!
Sec. 10. Form. The Rules applicable to pleadings shall apply to

written motions so far as concerns caption, designation, signature, and
other matters of form. (9a)
The rule on pleadings also applies to written motion as far as caption, designation, signature and
other matters of court. So in appearance there is difference between the appearance of a pleading and the
appearance of a motion. But definitely, a motion is not a pleading although it looks like a pleading.

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1997 Rules on Civil Procedure INTRODUCTION

Q: Why ‘portion’ only?

Q: Distinguish court from judge.

Property of LAKAS ATENISTA 1

Q: Classify courts in general.

SUPERIOR COURTS vs. FIRST-LEVEL COURTS

Q: Distinguish superior courts from inferior courts.

Q: What courts are superior or inferior?

ORIGINAL COURT vs. APPELLATE COURT

Q: Distinguish original court from appellate court.

Q: Is the SC an original or appellate court?

Q: Is the CA an original or appellate court?

Q: How about the RTC? Is the RTC an original or appellate court?

Q: How about the MTC? Is the MTC an original or appellate court?

Property of LAKAS ATENISTA 2

CIVIL COURTS vs. CRIMINAL COURTS

Q: Distinguish civil courts from criminal courts.

COURTS OF LAW vs. COURTS OF EQUITY

Q: Distinguish Courts of Law from Courts of Equity.

ALONZO vs. INTERMEDIATE APPELLATE COURT

Property of LAKAS ATENISTA 3

CONSTITUTIONAL COURTS vs. STATUTORY COURTS

Q: Distinguish Constitutional Courts from Statutory Courts.

INHERENT POWERS OF THE COURT

Q: What are the inherent powers of the court?

Property of LAKAS ATENISTA 4

ENFORCEABILITY OF COURT WRITS AND PROCESSES

Under Section 3, Interim Rules:

Sec. 3. Writs and Processes. -

Q: What is the area of enforceability of writs and processes of the courts?

Property of LAKAS ATENISTA 5

Q: What is the effect if the court has no jurisdiction?

JURISDICTION vs. EXERCISE OF JURISDICTION

Q: Distinguish jurisdiction from exercise of jurisdiction.

Q: Why is it important to distinguish jurisdiction from exercise of jurisdiction?

Property of LAKAS ATENISTA 6

ERROR OF JURISDICTION vs. ERROR OF JUDGMENT

BAR QUESTION: Distinguish ERRORS OF JURISDICTION from ERRORS OF JUDGMENT.

2.) ERRORS OF JURISDICTION are reviewable by certiorari; whereas,

Q: What is the use of distinguishing error of jurisdiction from error of judgment?

Q: In whom is jurisdiction is vested?

Property of LAKAS ATENISTA 7

1. GENERAL JURISDICTION and SPECIAL OR LIMITED JURISDICTION

2. ORIGINAL JURISDICTION and APPELLATE JURISDICTION

3. EXCLUSIVE JURISDICTION and CONCURRENT OR COORDINATE JURISDICTION

b.) CONCURRENT or COORDINATE JURISDICTION is that possessed by the court together

Property of LAKAS ATENISTA 8

ELEMENTS OF JURISDICTION IN CIVIL CASES

Q: What are the elements of jurisdiction in civil cases?

Q: Now, what happens if in a particular case one of these is missing?

A. JURISDICTION OVER THE SUBJECT MATTER

Q: Define jurisdiction over the subject matter.

Q: How is jurisdiction over the subject matter acquired or conferred?

Property of LAKAS ATENISTA 9

Q: How is jurisdiction over the subject matter determined?

B. JURISDICTION OVER THE PERSON

Q: Define jurisdiction over the person.

Q: How does the court acquire jurisdiction over the plaintiff?

Q: How does the court acquire jurisdiction over the defendant?

Property of LAKAS ATENISTA 10

First Instance: UPON SERVICE ON HIM OF COERCIVE PROCESS

Q: In criminal cases, how can the warrant of arrest be effected?

Second Instance: BY HIS VOLUNTARY SUBMISSION TO THE

C. JURISDICTION OVER THE RES