Fundamental Concepts:

1. Substantive law – It is that branch of law which creates, defines and regulates rights and duties
concerning life, liberty and property, or concerning powers of agencies and instrumentalities for
the administration of public affairs.

Q: What does it do to the rights and duties of the people?

A: It creates, defines and regulates rights and duties.

Example:
1. Family Code;
2. Civil Code;
3. Labor Code
4. Revised Penal Code; and
5. Corporation Code

Sources (at present):

a. House of Representatives (Lower House)
b. Senate (Upper House)

Q: What do you call these two houses?

A: Congress.

Designation of laws by the Congress: Republic Act (R.A. No.).

Year of Enactment Designation

1901-1935 Act No.
1935-1946 Commonwealth Act
1946-1972 Republic Act
1972-1978 Presidential Decree
1978-1986 Batas Pambansa Presidential Decree
1986-early 1987 Executive Order
1987 Republic Act

2. Procedural / Remedial Law / Adjective Law – It is that branch of law which prescribes the method
of enforcing rights or obtaining redress for their invasion.

Example:
a. Rules of Court (Best source)
b. Rules on Notarial Practice
c. Rules on Summary Procedure
d. Rules on Judicial Affidavit

Q: Are these rules of procedure, laws in the sense that the Civil Code and RPC are a law? A: No. It is
not strictly a law in the sense that the Civil Code and RPC are.

Q: Then why are they called Remedial Law?

A: Only in a sense that they have the same force and effect of a law.

Q: What is the connection between Substantive Law and Remedial Law?

A: Intimate connection. One without the other is useless. What is the use of the right if it cannot be
protected and violation if it cannot be corrected?

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 Source:
a. Supreme Court (main and principal source of Remedial Law)

Q: By what power (SC to promulgate rules of procedure)?

A: By the constitution. It grants the SC the power to promulgate rules of procedure.

ARTICLE VIII, Sec. 5 (5)

Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice,
and procedure in all courts, the admission to the practice of law, the integrated bar, and legal assistance
to the underprivileged.

Note: In the 1987 Constitution, Congress was granted plenary power to legislate in all any matters.
Q: What do you mean by plenary power? A: Full, complete, total and absolute power.

Q: May the Congress enact laws re: rules of procedure?

A: Yes, It can. Part of the plenary power.

Q: Any limitation/s on the plenary power of the Congress?

A: It cannot enact laws that will repeal, modify or amend any existing rules of procedure promulgated by
the SC.

CASE:

SALVADOR ESTIPONA, JR. y

ASUELA, Petitioner,
vs.
HON. FRANK E. LOBRIGO, Presiding Judge of the Regional Trial Court, Branch 3, Legazpi City,
Albay, and PEOPLE OF THE PHILIPPINES, Respondents.
G.R. No. 226679, August 15, 2017

Section 23 of Republic Act No. 9165 (COMPREHENSIVE DANGEROUS DRUGS)

ACT) is declared unconstitutional for being contrary to the rule-making authority of the Supreme Court
under Section 5(5), Article VIII of the 1987 Constitution.

Q: What is the third element required for Substantive Law and Remedial Law, so that the two (S&R) can
really benefit real persons?

A: Courts. Courts are required so that Substantive Law and Remedial Law can really benefit human
beings. Otherwise, Substantive Law and Remedial Law will remain in paper.

Note: No Courts = Useless.

Q: Enumerate all courts in the Philippines. Start from the lowest level courts.
A:
a. Municipal Trial Court (MTC)
b. Municipal Circuit Trial Court (MCTC)
c. Metropolitan Trial Court (MeTC)
d. Municipal Trial Court in Cities (MTCC)

Note: There is no need to mention everything– one by one. Mention ONLY Municipal Trial Court.

Q: One court with different names, why is that so?

A: Because all of these courts have the same jurisdiction over cases with some minor exceptions.

Q: Why are they given different names when they exercise exactly the same jurisdiction?

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 A: They exercise territorial jurisdiction.

Q: What is the lowest level court in Metro Manila?

A:
a. Metropolitan Trial Court (MeTC), whether in Las Piñas, Pasay, Makati or Pateros City.

Q: How many cities and municipalities are there in Metro Manila?

A: 17 cities and 1 municipality.

Q: For Municipal Trial Court (MTC), over what areas does MTC exercises its jurisdiction?
A: Over all municipalities in the Philippines except MM.

Q: How about Municipal Trial Court in Cities (MTCC)?

A: All cities in the Philippines except Cities in MM.

Q: How about Municipal Circuit Trial Court (MCTC)?

A: Two or more contiguous or adjoining municipalities

Q: Is there other different court which is of the same level as MTC (lowest level court)?
A: Yes. Shari’a Circuit Court.

Q: Enumerate other courts – higher level courts.

A:
a. Regional Trial Court.

Q: Is there other different court which is of the same level as RTC?

A: Yes.
a. Shari’a District Court.

Q: Any other court which is of the same level as RTC and Shari’a District Court?

A: Family Court.

Q: Next higher level courts.

A:
a. Court of Appeals
b. Sandiganbayan
c. Court of Tax Appeals

Note: All are of the same level.

Q: Another court which is of the same level with Court of Appeals?

A: Shari’a Appellate Court (not yet operational)

Q: Judgment rendered by CTA en banc is now appealable to?

A: Supreme Court via Rule 45 – Appeal by Certiorari.

Q: Highest Court.
A: Supreme Court – no other co-equal and the highest tribunal.

Q: What is a Constitutional Court?

A: One created by the Constitution.

Q: What is Statutory Court?

A: One established by a law and statute.

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Q: Example of Constitutional Court?
A: Supreme Court.

Basis: Article 8 of the 1987 Constitution.

Q: Example of Statutory Court? A:

a. Sandiganbayan (PD 1486 amended by PD 1606)
b. MTC, RTC, CA (BP 129)
c. CTA (RA 1125 amended by RA 9282)
d. Family Court (RA 8369)
e. Shari’a Courts (PD 1083)

Q: Is Sandiganbayan considered a Constitutional Court since it is mentioned in the 1973 Constitution?

A: No. It is not created by the constitution.

Q: What law enacted the Sandiganbayan – since there was no congress at that time?
A: PD 1486 amended by PD 1606. It was President Marcos himself who enacted it and NOT the
constitution.

Q: What is General Jurisdiction?

A: Power to adjudicate all controversies except those expressly withheld from the plenary powers of the
court.

Example:
a. RTC

Q: Why is RTC a court of general jurisdiction, what makes RTC the only court of general jurisdiction in
the Philippines?
A: BP 129, Sec. 19 (6)

In all cases not within the exclusive jurisdiction of any court, tribunal, person or body exercising jurisdiction
or any court, tribunal, person or body exercising judicial or quasi- judicial functions.

General rule: Courts can only exercise jurisdiction where there is a law conferring jurisdiction over said
case.

Exception: BP 129, Sec. 19 (6).

In all cases not within the exclusive jurisdiction of any court, tribunal, person or body exercising jurisdiction
or any court, tribunal, person or body exercising judicial or quasi- judicial functions.
Note: Jurisdiction is conferred by law.

Q: What is limited Jurisdiction?

A: Restricts the court’s jurisdiction only to particular cases and subject to such limitations particular cases
and subject to such limitations as may be provided by governing law.

Example: SC

Q: Why is SC limited?
A: It can only exercise jurisdiction over a particular case if there is a law conferring to it or special law.

Q: What is a Court of Law?

A: One which decides a case based on the written laws enacted by the legislative body.

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Q: What is Court of Equity?
A: One which decides a case not based on written law on the facts of the case.

Q: Can it be both?
A: It is either. It cannot be both, at the same time, it cannot be based in the normal practice and
written laws.

Q: Why not refuse judgement since there is no applicable written law, is that allowed?
A: No, the court/ judge cannot refuse or decline to render judgement even if there is no applicable written
law for that matter.

Basis: Article 9: NCC

No judge or court shall decline to render judgement by reason of the silence, obscurity or insufficiency of
the laws.

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Incapable of pecuniary estimation
If that subject is capable or incapable of pecuniary estimation, what does that mean?
If you can give the subject of a litigation a monetary value, then it is capable of pecuniary estimation, if not
it is incapable of pecuniary estimation, but sometimes it is not easy to determine.
A good example of an action wherein the subject of a litigation is incapable of pecuniary estimation is an
action for specific performance. The subject of the litigation is the specific performance. Can you give
specific performance, sometimes, it is a provision in a contract --- to compel the defendant to perform a
provision in their contract, can you give that performance a monetary value? No, it is incapable. SO because
of this provision, paragraph 1, Section 19, it is the Regional Trial Court which exercises exclusive original
jurisdiction.
Action for Specific Performance
But supposed the action for specific performance, filed by the plaintiff, is to compel the defendant to execute
a deed of an absolute sale to transfer a title over a parcel of land from the defendant to the plaintiff? So this
action now becomes a real action. A real action is now capable of pecuniary estimation because the real
property involved is capable of pecuniary estimation. It has a monetary value, it can be not exceeding
P20,000, not exceeding P50,000. So what kind of action now is the action for specific performance? Is it
capable or incapable of pecuniary estimation? That is now the difficulty.
Action for Partition
An action for partition, the partition is incapable of pecuniary estimation, but the partition is always of a real
property. So it affects interest in real property, so therefore, it becomes a real action capable of pecuniary
estimation. So is it a real action? You apply Paragraph 3.
The latest jurisprudence on how to determine whether an action is capable or incapable of pecuniary
estimation is Sarmiento Property Holdings, Inc. Vs. Philippine Bank of Communications, promulgated
in 1918 and the ponente is Justice Leonen.
Of course, there are actions that can easily be determined. An action for collection of sum of money is
capable of pecuniary estimation. There is no question. But there are other actions that are not that easy.
So in the case of Sarmiento, the SC lay down the following rules:
(all cases promulgated before the Sarmiento are overturned and not controlling)
1. Look to the main action. What is the main action that was filed?
2. Look at the principal relief sought by the plaintiff.

Let’s go back to our example.

By itself, Specific Performance is incapable of pecuniary estimation. So that is the main action.
What is the relief sought for by the plaintiff when he filed the action? Specific Performance. That’s what the
plaintiff wants, perhaps to perform a provision in their contract. That’s the relief sought by the plaintiff that
is incapable of pecuniary estimation.
But supposed the case is the same as the one I gave earlier, to compel the defendant…, it becomes now
capable.
According to Justice Leonen, don’t look at the incidental reliefs that may result from the principle relief/main
action. Just look at the main action. If the main action results to a sum of money being transferred to the
defendant or if the main action will affect the transfer of title, or possession of or interest in real property.
What is controlling is the MAIN ACTION, if it is incapable then it is incapable even if it may result to
transfer of title, or possession of or interest real property or payment of sum of money.
Before Sarmiento, don’t look at the main action but look at the ultimate relief. But now, after Sarmiento,
don’t look at the incident reliefs but look at the MAIN ACTION. That will be the basis whether the action is
capable or incapable of pecuniary estimation.
Now, Paragraph 2 of Section 19 is just a counterpart of Paragraph 3, Section 33 regarding real actions. If
the action is a real action and the assessed value of the property involved exceeds P20,000 outside Metro
Manila or exceeds P50,000 within Metro Manila, then it is the RTC which would exercise exclusive original
jurisdiction.
Let’s not discuss paragraph 3, I do not encounter cases like these.
Paragraph 4 of Section 19 is a counterpart of a portion Paragraph 1, Section 33 regarding matters of probate
referred to petition for settlement o estate, testate or intestate. If the gross value of the estate involved
exceeds P300,000 outside Metro Manila or exceeds P400,000 within Metro Manila then it’s now the RTC
which would exercise exclusive original jurisdiction.

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Paragraph 6, we have discussed this already, this is the jurisdiction of the RTC over all actions not falling
within the jurisdiction of any court, tribunal, body or any person exercising judicial or quasi-judicial functions.
The cases in Paragraph 7 have been transferred to the jurisdiction of the Family Courts.
Paragraph 8 is a counterpart of a portion Paragraph 1, Section 33 regarding actions for sum of money. In
action for sum of money, if the amount involved exceeds P300,000 outside Metro Manila or exceeds
P400,000 within Metro Manila then it’s now the RTC which would exercise exclusive original jurisdiction.
Let’s go now to Section 21.
Under Section 21, the RTC shall exercise original jurisdiction. Take note is not exclusive original. So under
paragraph 1 of Sec 1, the RTC shall exercise original jurisdiction over petitions for certiorari, prohibition,
mandamus, quo warranto, habeas corpus. So the RTC shall exercise original jurisdiction, meaning all these
cases may commence in RTC.
Let’s go first on the jurisdiction of Court of Appeals on page 6.
Under Par. 1 of Section 9, it provides that CA shall exercise original jurisdiction over petitions for certiorari,
prohibition, mandamus, quo warranto, habeas corpus. So there are 2 courts – RTC and CA - of different
levels now exercising original jurisdiction over the same cases.
Let’s go now on the jurisdiction of the Supreme Court on page 7.
Par. 1 of Sec. 17, the SC shall also exercise original jurisdiction over petitions for certiorari, prohibition,
mandamus, quo warranto, habeas corpus. So there are 3 courts – RTC, CA and SC - of different levels
now exercising original jurisdiction over the same cases. So this is a classic case of concurrent original
jurisdiction being exercised by 3 courts in different levels.
When 2 or more courts of different levels exercise original jurisdiction over a particular case, we apply now
the rule on hierarchy of courts. We do not apply it on appellate jurisdiction of courts.
You know the rule of hierarchy of courts. If you can file a petition on certiorari on RTC, you cannot file it
with CA directly, although the CA and SC exercise original jurisdiction over it. You have to start at the lowest
court. Of course, there are sub-petitions of certiorari which you cannot file in RTC, but if you can file it in
RTC, you have to start with the RTC.
So let’s go back to the jurisdiction of RTC.
Under Par. 2 of Section 21, page 3, the shall exercise original jurisdiction with actions affecting
ambassadors and other public ministers and consuls.
Let’s go back to the jurisdiction of the Supreme Court on page 7.
Sec. 17, the SC shall also exercise original jurisdiction over actions affecting ambassadors and other public
ministers and consuls. So there are 2 courts – RTC and SC - of different levels now exercising original
jurisdiction over actions affecting ambassadors and other public ministers and consuls.
So if you are asked over what actions do the SC and RTC exercise original jurisdiction? Actions affecting
ambassadors and other public ministers and consuls.
Let’s go now to the appellate jurisdiction of the RTC.
By the wat, in MTC, we do not discuss its appellate jurisdiction. Of course the MTC does not have appellate
jurisdiction because it is the lowest level court.
Now over what cases does the RTC exercise appellate jurisdiction?

The RTC exercises appellate, as I said earlier appellate jurisdiction is always exclusive, jurisdiction over all
judgment rendered by Municipal Trial Court. There is only one judgment of the MTC which is not appealable
to the RTC and it is judgment rendered by the MTC exercised in its delegated jurisdiction.

Section 23, special jurisdiction of RTC. Section 23 is not conferment of jurisdiction. Section 3 provides that
the SC may assign certain RTCs to hear, try and decide certain cases. The SC may assign certain RTC to
try only violations of Comprehensive Dangerous Drugs Act. The RTC already exercised jurisdiction over all
violations of Comprehensive Dangerous Drugs Act. Now, the SC, under Section 23, may assign certain
RTC to try only violations of Comprehensive Dangerous Drugs Act or Anti Money Laundering Act.

You just read the jurisdiction of Family Courts on Civil Cases.

Let’s go now to the jurisdiction of CA.

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By its name, we know that the CA is principally an appellate court. But although it is principally an appellate
court, it exercises original jurisdiction over few cases.

There is only one case where the CA exercises exclusive original jurisdiction. That case is Petition for
Annulment of Judgment of the Regional Trial Court under Rule 47.

The other original jurisdictions of the CA are not exclusive; they are concurrent with other courts.

As we mentioned earlier, the CA exercises original jurisdiction over petitions for certiorari, prohibition,
mandamus, quo warranto, habeas corpus, writ of kalikasan, writ of amparo, writ of habeas data.

Except for Writ of Kalikasan, the CA exercises concurrent original jurisdiction over the RTC and the SC.

For petition for Writ of Kalikasan, only the CA and the SC exercise concurrent original jurisdiction.

Now over what cases does the CA exercise appellate jurisdiction?

The CA exercises appellate jurisdiction over all judgements of Regional Trial Courts, whether rendered in
the exercise of its original or appellate jurisdiction. There is only one case where the CA does not exercise
appellate jurisdiction. What is that judgment of RTC which is not appealable to the CA? Those judgments
rendered by the RTC in the exercise of its original jurisdiction where the appeal raises only pure
question of law by Petition for Review on Certiorari under Rule 45, without exception.

In civil case, the only way to appeal to SC is by Rule 45, Petition for Review on Certiorari.

If the judgment was rendered by the RTC in the exercise of its appellate jurisdiction, even if the appeal
raises only pure questions of law. Where do you appeal that? Petition for Review under Rule 42, you
must mention Rule 42 because there is another kind of mode of appeal which is also a petition for review.

So aside from judgments of RTC, over what other judgments, resolutions or orders does the CA exercise
appellate jurisdiction? Over decisions of quasi-judicial agencies, instrumentalities, boards or commission
under Rule 43.

Aside from judgments of the RTC, the CA also exercise appellate jurisdiction over judgments, resolutions,
final orders or awards of quasi-judicial agencies. What is the mode of appeal of quasi-judicial agencies to
CA? Petition for Review under Rule 43.

Aside from judgments of RTC, rendered on its original or appellate jurisdiction, judgments of quasi-judicial
agencies, is there any other judgment appealable to CA? The CA also exercise appellate jurisdiction over
judgments rendered by MTC, in the exercise of its delegated jurisdiction, on Land and Cadastral
Proceedings.

So we’re done in Jurisdiction.

We no longer discuss cases over which SC exercises jurisdiction because according to the Supreme Court,
for purposes of taking the bar, what you will be tested is whether, if you passed the bar, you can start
practicing law on lower courts or handle cases in the trial courts, prepare a complaint or answer, and you
will not be tested, when you passed the bar, if you would know how to appeal in the Supreme Court. So we
no longer discuss appeals in the Supreme Court.

The SC is also principally an appellate court. But as we have seen earlier, the SC exercises also original
jurisdiction over petitions for certiorari, prohibition, mandamus, quo warranto, habeas corpus, writ of
kalikasan, writ of amparo, writ of habeas data but concurrent with other courts.

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Most of the jurisdiction of SC are appellate jurisdiction and we will discuss that when we reach Appeals.

Before you take the Midterms exam, we must finish Rule 45 which is Appeals.

---- fin ----

For preliminary sanction for jurisdiction, for court to try or decide a case it is not sufficient that the court has
jurisdiction over the subject matter of the case. It must also essential to the court has jurisdiction over the
parties and it also the court to decide over the factual issues of the case for the court to acquire to hear and
decide the case to render judgement.
It is not enough for the court to have jurisdiction over the subject matter of the case, it must also have
acquired jurisdiction over the persons of the parties, so that the court can render, appeal and try a case,
and then render judgement valid and binding judgment.
Q: Why is it important for to acquire jurisdiction over the parties of the case?
A: It is important because if the court does not have acquire jurisdiction over the parties of the case, these
parties cannot be bound by any judgement rendered by the court. So, the trial and judgement will be
useless.
Q: Who are the parties in a civil action?
A. Plaintiff
B. Defendant
Q: How does a court render jurisdiction over the plaintiff?
A: When he Files a complaint or initiatory pleadings. He voluntary submits himself to the court, so the court
does not have to do anything to acquire jurisdiction over the plaintiff. Because in filing the complaint he
submits himself to the of the court.
Q: How does a court render jurisdiction over the defendant?
A: When the court issues a proper summon, this is how the court can acquire jurisdiction over the
defendant.
Q: How about voluntary appearance?
A: It happens by mistake or ignorance of the defendant’s counsel. Because normally the defendant doesn’t
want the court to have jurisdiction over him. Without knowing it the council files something like a motion to
the court seeking affirmative relief which can be considered voluntary appearance. So even the defendant
has not received summons the court could have acquire jurisdiction over the person because he sought an
affirmative relief from the court by filing a motion.
Every time a person files a motion he seeks an affirmative relief, why would you file a motion if you are not
seeking an affirmative relief. A motion is an application for relief other than a pleading. When the defendant
does that he was deemed made a voluntary appearance. There is no need to serve summons even if there
is improper in the summons, the court has jurisdiction over the person.
Q: How about Jurisdiction over factual issues? How does the court acquire jurisdiction over factual
issues? How does a factual issue arise in the case?
A: Factual issue arises in a case when one party asserts a fact in the pleading and the other party
properly denies that same fact also in his or her pleading. If there is an assertion of a fact by one

9
party and there is a proper denial in the same fact by the other party in his pleading, then a factual
issue arises. Then the court acquire jurisdiction over factual issues.
Illustrate:
P alleges that the D obtain a loan from him, an amount of 500k and the obligation becomes due.
The plaintiff demands upon the D and he fails to pay.
In his answer, D alleges that he denies that he never obtained loan from the plaintiff. There is
proper denial on his part.
Now, the factual issue is whether or not the D acquire a loan from the P and the P repeats the
demands and the obligation becomes due and D fails to pay. The court acquires jurisdiction.
Illustrate:
Demand is an essential to a case of sum of money. The plaintiff fails to allege that he made a
demand to the D his obligation. Even if he fails to allege that he demanded he also fails one of the
element to a cause of action in a sum of money. So, the D will dismiss the case because of the
failure of the P to allege that he demands a sum of money. If the D, files a motion to dismiss based
on lack of cause of action.
In the new rule, it is not one of the motion to dismiss, if the P fails to allege that he demand from
the D. The D would not deny that fact because it was not alleging. There is no factual issue in the
demand made by the P. Suppose, that the P realize his defect in the complaint. By presenting
evidence, the D can object the evidence, because the court did not have jurisdiction over that
factual issue because he did not allege in the complaint. That is not allowed not in the jurisdiction
in the court. It is important that the P allege the factual issues. It is important to the court to acquire
jurisdiction over the factual issue in a case. When a one party alleges that fact and one party denies
that fact in their pleadings, then the court has jurisdiction over the factual issues of the case. A
party now may present evidence.
Jurisdiction over the subject matter
– conferred by law; it is only a law that will conferred in a court jurisdiction over the subject matter
of a case. The rules of court, the rules of procedure cannot confer on any court jurisdiction over a
particular case.

Q. What is the meaning jurisdiction of the court over the subject matter what does it mean? Why
the subject matter of the case?

A: It means over a class of cases so when a law confers in a court jurisdiction over a case actually
it is not over a particular a case, the law adversely confers jurisdiction over a class of cases. It
means the court is conferred jurisdiction over a class of cases.

Q: So how does the court determine if it has jurisdiction over subj matter in a case which I filed
within a particular case?

A: The court will have to read the allegation in the initiatory pleading to determine whether it has
jurisdiction over the subject matter of the case.
Example: OVER a classes of cases
Par 1. Section 19 BP Blg. 129 as amended, Regional Trial Courts shall exercise original jurisdiction:
In all civil actions in which the subject of the litigation is incapable of pecuniary estimation;
This is one of class of cases, cases that subject matter is incapable of pecuniary estimation. This
is one of class of cases, so when a particular case is filed in the court, the court will have to read
the allegation in the pleading not just the title of the case then the court has to determine if the this
court has .. belongs to the class of cases over which the law has conferred to it jurisdiction. So
suppose that a case was filed in the RTC, that the court after reading the allegation of the complaint

10
and determines that the subject matter of this case is incapable of pecuniary estimation. Therefore,
the court will decide that it has jurisdiction over that particular case because there is a law confers
over it, that the RTC has jurisdiction over civil cases in subject matter of which is incapable of
pecuniary estimation.
- It means over a class of cases, so the court determines whether it has a jurisdiction over a
particular case in the allegation in the initiatory pleading, in the complaint or in the petition and not
based in the allegation in the answer or not based on the evidence later on presented by the parties
but based only in the allegation in the pleading.
- Jurisdiction that can only have conferred by law.
Q: How would you define a jurisdiction of a court over the subject matter
A: Power of the court conferred by law to hear, try and decide a particular class of cases.
Q: It is either an original or appellant jurisdiction?
How can you differentiate an original and appellant jurisdiction?
A: Original – it is a power of the court to hear, try and decide a case at the first instance.
Q: What does “at the first instance means”
A: It means for the first time.
So when a court exercises original jurisdiction over a particular case It means that particular case
maybe commence in the court exercising original jurisdiction. “It maybe commenced in that court”
that means that court exercises original jurisdiction over the particular case because that case
maybe commence in that court, “commence”, that what it means in the first instance, it maybe
commence, that case will started in that court that means that court exercises original jurisdiction
over the particular case.
So it is the power of the court to hear, try and decide a case at the first instance, at the very
beginning of that particular case, at the first instance from the time that the case initiated so the
court will hear, try and decide the case from the very beginning of the case
Original Jurisdiction… to Appellant jurisdiction
Q: What does a court with appellant jurisdiction do?
A: It is the power of the court to review, reverse, affirm, modify or refer the final judgement rendered
by the lower court which exercises original jurisdiction over the same case.
Before a court exercises appellant jurisdiction over a particular case, a lower court must have
already exercise an original jurisdiction over that particular case so when a court exercises
appellant jurisdiction over a particular case it no longer at the first instance because that case has
already originated in the lower court and the lower court has already exercise original jurisdiction
before a court can exercise appellant jurisdiction over that same case.
Several court may exercise jurisdiction over a one particular case but not the same type of
jurisdiction. One court may exercise original jurisdiction and another court exercise appellant
jurisdiction.
Q: What is an Exclusive jurisdiction?
A: It is the power of the court to hear, try and decide a case, at the first instance to the exclusion of
other court.
Example: Forcible Entry may only be commenced, commence meaning original jurisdiction, if is it
only be commence, meaning that original jurisdiction exercise by the MTC, it is also exclusive
because the action for forcible entry may only be commenced in the MTC meaning that MTC

11
exercises exclusive original, it may be commence only in the MTC meaning that the court only
exercises exclusive original jurisdiction. Exclusive and Original.
Q: Why original?
A: FE may be commenced in the MTC if the action for forcible entry maybe commenced in MTC,
that means jurisdiction of MTC over actions of Forcible Entry is not only original but also exclusive.
It may commence original only meaning exclusive in the MTC so that is what it is meant.
Q: So is it exclusive when a court exercises exclusive jurisdiction, what kind of jurisdiction is
exercise by the that court, exclusively by that court meaning original jurisdiction or appellant jur?
A: Original jurisdiction or
It is original because it may commence in the MTC if the action only Municipal trial court, that the
forcible entry is not only original but also exclusive. It may be commenced original only, exclusive
in the original trial court.
Q: What kind of jurisdiction of that exclusive original or exclusive appellant. May only be appealed
in one court that means that court exercise exclusive appellant jurisdiction because that court
exercise. We say exclusive original not exclusive appellant jurisdiction because the judgement of
the lower court may only be appealed in that particular court, meaning that particular court
exercises exclusive appellant jurisdiction but we don’t say exclusive appellant jurisdiction, we say
we say exclusive original jurisdiction.
Q: Why does we don’t say exclusive appellant jurisdiction?
A: Because all appellant jurisdiction is exclusive there is no other kind of appellant jurisdiction the
judgement in a case rendered by a court may only be appeared in one court that is why all appellant
jurisdiction are exclusive.
That is why we don’t use the word exclusive appellant jurisdiction, it is understood when a court
exercises appellant jurisdiction over a case it means that its appellant jurisdiction is exclusive
appellant jurisdiction. It is understood.
Q: What is Concurrent jurisdiction as to oppose exclusive jurisdiction?
A: It is the power of the two or more courts of different levels to exercise original jurisdiction over
one particular case or over the class of same cases.
Ex. Pet of certiorari under Rule 65, we know that the pet of certiorari maybe commence in the RTC,
that means the RTC exercise original jurisdiction over petition of certiorari because petition of
certiorari maybe commence in the RTC. But BP 129, if apetition of certiorari to be commence in
the CA, so the CA exercises original jurisdiction over a pet of certiorari. So there two courts now of
different levels execising original jurisdiction over petitions of certiorari but a petition of certiorari
maybe also commence in the SC, which means that SC exercise original jurisdiction over pet of
certiorari. There are now three courts of different levels exercising original jurisdiction over one
particular case, pet of certiorari. So that illustrates the power of two or more courts, now there are
three courts in different levels exercising original jurisdiction over one particular case, pet of
certiorari.
Q: Why is it original?
A: because there is no concurrent appellant jurisdiction that is why to exercise the power of two or
more courts with different levels is to exercise original jurisdiction over one particular class of cases.
So there is only one concurrent jurisdiction meaning two or more courts exercising original
jurisdiction over a particular class of cases but there is no concurrent appellant jurisdiction because
an appellant jurisdiction is always exclusive but never concurrent but original jurisdiction maybe

12
exclusive or may be concurrent like in the case of the RTC, CA and SC exercising original
jurisdiction over pet of certiorari under Rule 65.
Q: Distinguish General and Limited jurisdiction?
A: General jurisdiction – it is the power of the court to exercise exclusive jurisdiction over cases not
falling within the exclusive jurisdiction of any court, tribunal, person or those exercising exclusive
quasi-judicial or judicial functions.
Q: Are they cases that is falling under the jurisdiction of any court? Is that possible that there are
cases not falling under the exclusive jurisdiction of any court? When does that happen? When is
there a case not falling in the jurisdiction of any court?
A: If there is no law that confers on any court jurisdiction over that particular case, meaning there
is no court in that particular case does not fall under any jurisdiction of any court because there is
no law that confers on any court jurisdiction over that particular case. Therefore, that particular case
does not fall within the jurisdiction of any court.
The court can exercise jurisdiction over it because there is no law that confers to any court
jurisdiction over that particular case, so the court exercising exclusive jurisdiction over those cases
not falling other the jurisdiction of any court exercises general jurisdiction.
Q: How about Limited jurisdiction?
A: Limited jurisdiction – is the power of a court to exercise jurisdiction over a particular case if
conferred by law, that’s the general rule because a court can exercise jurisdiction over a particular
case only when there is a specific law conferring jurisdiction over that particular case.
The only time when the court exercise jurisdiction over a particular case is when there is a law that
confers on it jurisdiction over that particular case.
A court can only exercises jurisdiction over a particular case if there is a specific law that confers
on it, jurisdiction on that particular case.
General Rule is the Limited jurisdiction but the Exception is the General jurisdiction.
So in the case of General jurisdiction, a court now exercises jurisdiction over case which does not
fall under the jurisdiction of any court, including that court because there is no law that confers on
any court, jurisdiction over a particular case. Only the court exercising general jurisdiction can only
exercise jurisdiction over a case not falling under the jurisdiction of any court including that court
itself because there is no law confers on it, jurisdiction over that particular case.
Q: What court in the PH exercise General jurisdiction? And What court exercises Limited
jurisdiction?
A: Only the RTC exercises exclusive original jurisdiction over all cases not within the exclusive
jurisdiction of any court, tribunal, person or body exercising jurisdiction or any court, tribunal, person
or body exercising judicial or quasi- judicial functions. BP 129, Sec. 19 (6)
So only the RTC exercise general jurisdiction because of that provision, all the other court including
the SC, CA and all other court exercise limited jurisdiction. Even the supreme court, the SC cannot
exercise jurisdiction if there is no law confers on it, jurisdiction over that particular case.
General rule: Courts can only exercise jurisdiction where there is a law conferring jurisdiction over
said case.
Exception: BP 129, Sec. 19 (6).
In all cases not within the exclusive jurisdiction of any court, tribunal, person or body exercising
jurisdiction or any court, tribunal, person or body exercising judicial or quasi- judicial functions

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Q: What is delegated jurisdiction?
Sec 34, BP 129 as amended
A: Section 4. Section 34 of the same law is hereby amended to read as follows:
“Sec. 34. Delegated Jurisdiction in Cadastral and Land Registration Cases. – Metropolitan Trial
Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts 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
declaration of the real property. Their decisions in these cases shall be appealable in the same
manner as decisions of the Regional Trial Courts."
The SC has granted the power to delegate Cadastral and Land Registration Cases to MTC
provided there is no controversy or opposition, or contested lots where the value of which does not
exceed One hundred thousand pesos (P100,000.00),
Q: What value?
A: The value of the real property involved the value of which does not exceed One hundred
thousand pesos (P100,000.00).
A land registration and cadastral case under the law is within the exclusive original jurisdiction not
of the RTC because that case is capable of pecuniary estimation. Under BP 129, a LC and CC is
within the exclusive original jurisdiction of the RTC but because of Sec 34, the SC granted the
power to delegate over CC or LR case to a MTC provided the assessed value does not exceed
100, 000 pesos or provided that the action is not contested. So RTC exercises over a cadastral
case or land registration case but upon the delegation of the SC, the MTC now exercises delegated
jurisdiction.
Q: How are judgement by the MTC in the exercise of its delegated jurisdiction appeal? To what
court?
A: according to Sec. 34, judgement rendered by the MTC in the exercise of its delegated jurisdiction
shall be appealable in the same manner as decisions of the Regional Trial Courts are appealable.
Q: What court where the decision of the MTC is appealable?
A: CA. Since the judgement rendered in the MTC in the exercise of the delegated jurisdiction is
appealable not to the RTC but to the CA because in the same manner as decisions of the Regional
Trial Courts are appealable. It means that decisions in the MTC in the exercise of its delegated
jurisdiction is appealable not to the RTC but to RTC. It is only instance the where the judgments of
the MTC is appealable to the CA and not to the RTC directly.
Q: What judgements rendered by the MTC are directly appealable in the CA not to the RTC?
A: Judgements rendered by the MTC in the exercise of its delegated jurisdiction in a LR or CC
case.
Q: What is special jurisdiction?
A: Section 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.
Special jurisdiction is the jurisdiction exercise by the MTC petitions for a writ of habeas corpus or
applications for bail in criminal cases in the province or city where there is no available Regional
Trial Judges in one place.

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 Q: Is it possible that there is no RTC judge in one place?
A: Yes
Q: Can they MTC take cognizance for the petition of habeas corpus? How?
A: All over the PH there are RTC, of course the RTC are either in the City or in the province or in
the selected municipalities. So, there is always be a RTC judges in one province. So, if you want
to file the petition, you have to go to the RTC. Of course it can happen now that all the RTC in one
province attend a convention, all the RTC judges are infected with covid-19, so there will be no
RTC judges in the province.

JURISDICTIONAL ESTOPPEL
*not a specie/kind of jurisdiction

ATTY OBRA: The general rule for the jurisdiction of the court for the subject matter of a case is that
kind of jurisdiction cannot be waived. Cannot be waived by any act, omission or negligence of a party.
So if the court has no jurisdiction over the subject matter of the case, but the defendant did not file a
motion to dismiss raising the lack of jurisdiction or failed to allege it as an affirmative defense in his
answer, he is not deemed to have waived that objection to lack of jurisdiction of the court over the
subject matter of the case.

Q: What does it mean that he has not waived that?

A: He can raise it for the 1st time on appeal. Because even if he did not raise it during the trial in the
trial court, he is not deemed to have waived that objection.

*Even if the defendant actively participated in the trial court. His right will not be waived.

Q: What is the exception to the general rule?

A: Tijam v. Sibonghanoy. The defendant-appellant was barred from raising the issue of lack of
jurisdiction.

He was barred because of the facts. The case was filed in the 1940’s. The case involved was
cognizable by the lowest level court, let us refer to it as the municipal trial court. The court having
jurisdiction was the municipal trial court. However the case was filed before the regional trial court and
so it did not have jurisdiction over the subject matter of the case. The defendant did not raise the issue
of lack of jurisdiction of the RTC over the case. The Regional TRial Court had the duty “motu proprio”
the case even without a motion to dismiss, on the ground that it did not have jurisdiction over the case.
Trial proceeded and the defendant participated. The RTC rendered a judgment adverse to the
defendant. The defendant then appealed to CA. However, defendant did not raise the issue of lack of
jurisdiction of the RTC. It only raised errors of law and fact, not jurisdiction. The CA should have motu
proprio dismissed the case because of the lack of jurisdiction of the RTC. However, CA also failed to
do its duty. It rendered a judgment affirming RTC’s decision. After a judgment was rendered, the
defendant filed a motion for reconsideration of the judgment. It was only then that he raised the issue
of lack of jurisdiction of the RTC.

The CA denied the MR, saying that it was too late for the defendant because he was barred by
estoppel and laches. Then Tijam went to the SC. The SC said “you are barred from raising the issue
of lack of jurisdiction”.You waited too long. You should have raised the issue in the MTC, RTC or CA.
You are barred by estoppel and laches from raising the issue.

The ruling here is the exception to the general rule. In certain special instances, where the facts to
Tijam case are analogous, a party may be barred from raising the issue by estoppel or laches.

BOSTON EQUITY RESOURCES v. CA

15
*While the jurisdiction of the court over the subject matter of the case cannot be waived. The
jurisdiction of the court over the person of the defendant may be waived. It may be waived by the
defendant by not raising it as an affirmative defense in his answer.

So if the defendant fails to raise the lack of jurisdiction of the court over his person, and he actively
participated in the case, he can no longer raise it because of his affirmative defense.

AMENDED RULES: LACK OF JURISDICTION OVER PERSON OF DEFENDANT NO LONGER A

GROUND FOR MOTION TO DISMISS.

MANILA BANKERS v. NG KOK WEI

*A party is barred from raising for the 1st time the issue of lack of jurisdiction over the subject matter
of the TRIAL COURT for a PETITION FOR REVIEW ON CERTIORARI.

*It is THE ONLY mode of appeal to the SUPREME COURT.

It should have been raised in the trial court or court of appeals. It is too late.

HIERARCHY OF COURTS
*applies only when there is CONCURRENT ORIGINAL jurisdiction among SEVERAL courts of
DIFFERENT LEVEL.
Ex. Petition for Certiorari

RTC -original JD
CA -original JD
SC -original JD

Q: Since it may be commenced in any of these 3 courts, where should a petition for certiorari be filed?
A: It should be filed in the lowest level court (RTC). Unless that it would not be proper that the RTC
take cognizance of the petition for certiorari.

An exception would be when the purpose is to annul an interlocutory order issued by the RTC. They
are co-equal courts. The RTC cannot annul the interlocutory order issued by another RTC. So it should
be filed in this case before the COURT OF APPEALS.

The Supreme Court may only take cognizance of a petition for certiorari when it is of
TRANSCENDENTAL IMPORTANCE/EXTRAORDINARY REASON. It is by way of exception to the
rule of hierarchy of courts.

AGAN v. PIATO
*SC listed certain cases when the rule on hierarchy of courts may be DISPENSED WITH. When a
petition may be directly initiated to the SC.

1. When the relief sought cannot be obtained in the lower courts.

2. When there are exceptional and compelling circumstances to warrant an exception to the rule
on hierarchy of courts.

RESIDUAL PREROGATIVE
*Applies when a case was filed and the court does not have jurisdiction over the case.

This court cannot do anything because it has no jurisdiction, it cannot issue an order. However if this
situation is allowed, the case will remain pending. It will be an absurd situation.

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KATON v. PALANCA
*A court has a residual prerogative. It is the power of the court to dismiss a case over which it has no
jurisdiction. It may issue an order, but only to dismiss the case.

Important Doctrine on Jurisdiction:

1.City of Manila vs. Judge Cuerdo (G.R. No. 175723, February 4, 2014)

According to the Supreme Court, when a court is conferred by law, appellate jurisdiction over a particular
case pending before a lower court,. that court which was conferred with appellate jurisdiction is also
impliedly conferred original jurisdiction over petitions for certiorari seeking to annul an interlocutory order
issued by the lower court in that particular case.

In the case of City of Manila vs. Judge Cuerdo, there was a pending local tax case in the sala of Judge
Cueredo in RTC Pasay City, you know that under the law that it is the Court of ta Appeals which I
expressly conferred appellate jurisdiction over tax cases decided by the RTC. So, in that tax case, Judge
Cuerdo issued an interlocutory order and the City of Manila wanted to assail and nullify that interlocutory
order issued by the RTC in that particular tax case

The issue that arose is What court exercises original jurisdiction over that Petition for Certiorari seeking to
annul that interlocutory order issued in the RTC.

Under BP.129, there are three courts that were conferred original jurisdiction over petitions for Certiorari,
the RTC, the CA and the SC. As to the CTA, there was no expressed law that conferred jurisdiction to the
CTA original jurisdiction over that Petition for Certiorari. What is conferred to the CTA is appellate
jurisdiction over tax cases decided by the RTC.

So in this case, the Petition for Certiorari was filed with the CA because it has original jurisdiction over a
Petition for Certiorari.

The Supreme Court said that when a court is conferred Appellate Jurisdiction over a particular case
decided in a lower court, it is Impliedly conferred original jurisdiction (emphasize impliedly not expressly)
over Petition for Certiorari seeking to annul an interlocutory order issued by a lower court in that
particular case over which the higher court exercises appellate jurisdiction.

So when jurisdiction is conferred to a court, the law also impliedly confers on that court original jurisdiction
over petition for certiorari. Otherwise, there will be a split jurisdiction which the supreme court upholds.
One court exercising appellate jurisdiction over a case and then another court exercising original
jurisdiction over petition for certiorari seeking to annul interlocutory order in that same case, then there
will be two courts now, one exercising appellate jurisdiction and the other is original jurisdiction over
Petition for Certiorari.

So the court said that it should not be allowed and there should only be one court exercising BOTH
appellate jurisdiction and original jurisdiction over petition for certiorari over a particular case

So even if there is no law expressly conferring original jurisdiction over Petition for Certiorari, the CTA by
mere implication is conferred of that jurisdiction because of its appellate jurisdiction over that particular
tax case.

2. Lomondot vs. Judge Balindong (G.R. No. 192463, July 13, 2015)

We know that under the law creating the Sharia Courts, judgments rendered by the Sharia District Courts
are appealable only to the Sharia Appellate Court. So it is the Sharia Appellate Court exercising appellate
jurisdiction over judgment rendered by Sharia district court.

17
But in this case, the judgment was appealed not to the Sharia Appellate Court but to the Court of
Appeals. The CA, since it does not have Appellate jurisdiction over judgments of the Sharia district courts
dismissed the case. But the problem is that although the Sharia Appellate Court has long been
established by law, up to now, it has not yet been organized. The member of the court have not been
appointed, so practically there’s no Sharia Appellate Court.

So how can you appeal the judgment of the Sharia district courts to the Sharia Appellate Court when
practically, the Sharia Appellate Court does not yet exist although it has been established by law. Hence
you cannot appeal to the Sharia Appellate Court.

According to the Supreme Court, in the meantime that the Sharia Appellate Court has not been
organized, judgments of the Sharia District Courts are appealable to the special division of the Court of
Appeals preferably composed of Muslim CA Justices.

3. Municipality of Tangkal vs. Judge Balindong (G.R. No. 193340, January 11, 2017)

Under the Code of the Muslim’s Personal Law, it is the Sharia District Court that are conferred jurisdiction
over personal and real action involving parties who are both Muslims.

So here, the case was filed in the Sharia District Court, the plaintiff was a Muslim, however the defendant
is a Municipality, a Local government where the mayor was a Muslim.

So is that case now commenceable by the Sharia District Court? If the case is between a plaintiff who is a
Muslim and a Municipality whose Mayor is a Muslim?

The Supreme Court said that NO, the real party in interest here, the defendant, is not a Muslim because it
is Municipality. Although the mayor is Muslim, the real party in interest as the defendant is not the mayor
but the Municipality.

The Sc said that Sharia District Court did not have jurisdiction over that case, because it is a requirement
that BOTH parties are Muslims to be under the jurisdiction of the Sharia District Court.

4. LBP vs. Dalauta (G.R. No. 190004, August 8, 2017)

This case is abot primary jurisdiction of administrative agencies . Under the Comprehensive Agrarian
Reform Law (CARL) it is the Department of Agrarian Reform Adjudication Board (DARAB) as a quasi
judicial agency exercises primary jurisdiction in determining just compensation for lot owners whose lots
are covered by the CARL. So DARAB is an administrative agency and quasi judicial agency which
exercises primary jurisdiction over the determination of just compensation for lot owners, whose lots were
taken under CARL.

But in that same law, CARL also provides that RTC acting as special agrarian courts will confer exclusive
original jurisdiction in determining just compensation for lot owners, whose lots were taken under CARL.
So an administrative agency exercises primary jurisdiction in determining just compensation and A court
acting as a specialized agrarian court exercises exclusive original jurisdiction.

By the way under the CARL, an order issued by the DARAB fixing just compensation becomes final and
executory after 15 days after the receipt by the lot owner.

In this case, the land owner filed an original action with RTC acting as special agrarian court to determine
just compensation involving the same land where DARAB has already issued an order fixing just
compensation for that same land which has already become final and executory.

18
So the issue that arose is whether the Land owner can still file an action to determine just compensation
in the special agrarian court when the DARAB which exercises primary jurisdiction has already issued an
order which has already become final and executory?

The Supreme Court said, while DARAB has the primary jurisdiction, the RTC does not exercise appellate
jurisdiction over final order of the DARAB. RTC acting as special agrarian court exercises exclusive
original jurisdiction and not appellate.

The Special Agrarian Court cannot be deprived of its exclusive original jurisdiction in determining just
compensation. It cannot be deprived because it is conferred by law, CARL is conferred by law. So
although the order of DARAB has already become final and executory.
An original action may still be filed by the lot owner to the special agrarian court determining just
compensation over the same land.

Q: Which decision shall prevail?

A: Decision of the Special Agrarian Court will prevail over the DARAB’s decision although it has already
become final and executory.

Take note that there were previous decisions of the SC regarding this matter, but this case is the latest.
Because in the previous cases, the SC ruled if the original action was filed with SAC beyond the 15 day
period , the action can no longer be filed. So the action must be filed to SAC within 15 days from the
receipt of the land owner of the order of the DARAB, but now the ruling has already been changed.

Q: What is Primary Jurisidiction?

A: The jurisidiction of the administrative agencies exercising quasi judicial functions to take cognizance of
certain cases ahead of the Regular Courts by reason of their special knowledge, experience and
technical know how.

So in this case that we have discussed, the DARAB exercises primary jurisdiction but a regular court
acting as SAC, although its an agrarian court is still a court which exercises original jurisdiction. So an
administrative agency exercises primary jurisdiction but a regular court exclusive original jurisdiction so
they are not incompatible

Doctrine:

19
 -The doctrine of primary jurisdiction tells us that courts cannot, and will not, resolve a
controversy involving a question which is within the jurisdiction of an administrative
tribunal, especially where the question demands the exercise of sound administrative
discretion requiring the special knowledge, experience and services of the administrative
tribunal to determine technical and intricate matters of fact

- as with the DAR-awarded compensation, LBP's valuation of lands covered by CARL is

considered only as an initial determination, which is not conclusive, as it is the RTC,
sitting as a Special Agrarian Court, that should make the final determination of just
compensation,

-Special Agrarian Courts are the Regional Trial Courts expressly granted by law with
original and exclusive jurisdiction over all petitions for the determination of just
compensation to landowners.

5. Regulus Dev. Inc. vs. De la Cruz (G.R. No. 198172, January 25, 2016)

Here, the Supreme Court discussed what we call equity jurisdiction

Q: What is Equity Jurisdiction?

A: Equity jurisdiction is power of a court which has already lost jurisdiction over the case whether original
or appellate jurisdiction. But because of Equity jurisdiction, the court has the power to still issue an order
(although it has already lost jurisdiction of the case) but only to prevent unjust enrichment or to ensure
that justice is served . Only for that purpose.

In this case , there was an action for unlawful detainer which originated in the MTC and the judgment was
appealed to the RTC so the RTC was exercising appellate jurisdiction over the case.

Although the case was appealed to the RTC, RTC does no longer have jurisdiction because it was
already dismissed by the MTC. But the court forgot that during the pendency of the action, the defendant
was required to make deposits to a court or bank for the monthly rentals. In this case both MTC and RTC
have already lost jurisdiction over the case but since there was deposit made, the RTC although it has
already lost appellate jurisdiction over the case still issued an order allowing the withdrawal of the deposit
to prevent unjust enrichment in the exercise of its equity jurisdiction.

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A civil action may be commenced by the filing of the complaint. But the filing of a complaint is
not sufficient to acquire jurisdiction over the case. For the court to acquire jurisdiction, the
CORRECT DOCKET FEES must be paid by the plaintiff.

Q: What is the effect if the plaintiff fails to pay the correct docket fees?
A: Proton Pilipinas v. Banque Nationale de Paris, the SC ruled that the failure of the plaintiff
should not result into the outright dismissal of the case, provided the plaintiff was in GOOD
FAITH and the NON-INTENT TO DEFRAUD THE GOVERNMENT. Provided further that the
proper docket fees must be paid within the prescriptive period for the action. Meaning, before
the action has been prescribed.

*Most of the time the plaintiff fails to pay the proper docket fees because of the computation
given to him.

ALDAY v. FGU INSURANCE / SUNLIFE INSURANCE v. ASUNCION

*Same ruling as Proton Case

RUBY SHELTER BUILDERS v. FORMARAN

*The TC dismissed the case outright because it was shown that the plaintiff intended to defraud
the government. The plaintiff did something to lessen the amount of docket fees. It reached the
SC and ruled that the TC was correct.

ST LOUIS UNIVERSITY v. COBARRUBIAS

*Since the right to appeal is a mere statutory right, all the requirements prescribed by law must
be strictly complied with. Including the correct docket fees for appeal.

The appellant failed to pay the correct docket fees. He was given a chance to pay because the
appeal was not dismissed outright. The appellate court dismissed the appeal. The SC said the
CA was correct because he was given a chance to pay.

SY-VARGAS v. ESTATE OF OGSOS

* SC ruled if the counterclaim is a compulsory counterclaim, the counterclaimant is not required
immediately to pay the docket fee. Meaning upon the filing of the answer incorporating the
compulsory counterclaim.

However if the counterclaim is PERMISSIVE, the counterclaimant must immediately pay the
docket fee. Otherwise the permissive counterclaim will be dismissed. The Court will not acquire
jurisdiction without the payment of the correct docket fee.

Eventually if the counterclaim is granted, the counterclaimant would have to pay the docket fee.
If the counterclaim is compulsory, he has no choice but to set such counterclaim in his answer.
Supposing a defendant is not ready to pay the docket fee in a compulsory counterclaim, he
must set it up in his main action.

Q: What is the consequence if he does not set it up in his main action?

A: (If a compulsory counterclaim) He would be deemed to have waived it. He cannot file a
separate action for that claim against the plaintiff.

So that is why if the counterclaim is compulsory, he is not required to immediately pay the
docket fee because it would be unfair to him.

Q: What if permissive counterclaim?

A: Even if the defendant does not set it up in the main action, he can file a separate action for
that claim against the plaintiff. He is not deemed to have waived it even if he does not set it up
in his answer to the main action.

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 RULE 1, SEC. 6 : “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”.

Q: Is the liberal construction of the Rules of Court as provided in Rule 1 a general rule?
A: It is the exception. The general rule is the strict construction and application of the Rules of
Court.

Q:How do you now promote that objective?

A: By the strict interpretation and application of the rules.

Applied in the cases of: (CHECK THIS)

1. PILAPIL v. HEIRS OF BRIONES

2. CRUZ v. CA (476 SCRA 581)
3. NOVATECNICA v. CA (476 SCRA 581)

Q: When do we now liberally construct the rules by way of exception?

A: We only liberally construe and apply the rules when a strict interpretation application would
defeat, rather than promote the purpose by which the rules were promulgated.

When do we now liberally construe the Rules by way of an exception?

Only when the strict application of the Rules would subvert or defeat rather than promote the purpose for
which the SC promulgated the Rules of Court.

Rule 2

Section 1 provides that every ordinary civil action must be based on a cause of action.
The way the Rule stated that “every ordinary civil action” stresses the fact that there is no exception.

What is implied in this rule?

What is not expressly stated but implied in this rule is that special civil actions need not be based on a
cause of action.

An action for interpleader is not based on a cause of action. The plaintiff in an action for interpleader has
no cause of action against the defendant. But in an action for unlawful detainer or forcible entry, the plaintiff
has a cause of action against the defendant.

What is a cause of action? Section 2

A cause of action is the act or omission by which the party called the defendant violates a right of another
called the plaintiff
Every time a person commits an act or omission which violates the right of another, that person whose
rights are violated acquires a cause of action against that person whose act or omission violated his right.

Section 3 provides that a party may not institute more than one suit for a single cause of action.
Who institutes suit?
The plaintiff, so the plaintiff cannot institute several suits against defendant if he has only one cause of
action against him.

Section 4
If several suits are filed based on the single cause of action against a defendant, that is what we call splitting
a cause of action that is prohibited. The filing of one suit is a ground for the dismissal of the other suits. The
other remedy is the final judgment in one is a ground for the dismissal of the others. If several suits are filed
against the defendant and a final and executory judgment in one case has been rendered, that judgment
upon the merits is a ground now for the dismissal of the other suits.

22
Section 5
While the plaintiff may not institute more than one suit based on a single cause of action, he may institute
one suit joining several causes of actions against the same defendant. Suppose the defendant violated one
right of the plaintiff (1 cause of action), same defendant violated another right of the same plaintiff (2 causes
of action). The defendant violated the third right of the plaintiff (3 causes of action), what can the plaintiff
do?
The plaintiff may file 3 suits against the same defendant since he has three causes of action. But the plaintiff
may decide to join in 1 suit the three causes of action against the defendant. That is allowed and even
encouraged, to file 1 complaint joining his causes of action against the same defendant rather than file
three separate complaints.

But the plaintiff cannot just decide to simply join his causes of action in one complaint, there are conditions
that has to be complied. (Section 5)
1. The party making the joinder of causes of action must also comply with the rules on joinder of parties.
2. The joinder shall not include special civil actions or actions governed by Special Rules.
Ex: Actions governed by special rules are special proceedings, criminal actions governed by criminal
procedures.
Thus, only ordinary civil actions may be joined in one complaint against the defendant.
3. When the causes of action being joined are between the same parties but they pertain to different
jurisdiction and venue, joinder may still be made in the RTC provided that one of the causes of action falls
within the jurisdiction of said court and venue lies therein.
4. If the claims in all the causes of action are principally for recovery of money, the aggregate amount
claimed shall be the test of jurisdiction.
This is a situation where all the claims being joined are for sum of money, the aggregate amount of all the
claims shall be the test of jurisdiction.
Let us say that the claims in all the three causes of action being joined pertained to the MTC, if you add all
the claims and the total or aggregate amount is now within the jurisdiction of the RTC, then the complaint
where the joinder is made should be made in the RTC.

Section 6
Misjoinder of causes of action is not a ground for dismissal of an action.

Let us say that one of the causes of action joined is a special civil action, now there is a misjoinder of causes
of action. That misjoinder is not a ground for dismissal but the remedy is to separate that misjoined cause
of action and for the plaintiff to deal with it in a separate action.

RULE 3

Section 2
Every civil action must be prosecuted or defended in the name of the real party in interest.
Who prosecutes the civil action? Plaintiff
Who defends a civil action? Defendant
This means that both plaintiff and defendant must be real parties in interest.

How do we determine if the plaintiff or the defendant is a real party in interest?

Real party in interest is defined as the party who stands to be benefited or injured by the judgement in the
suit or the party entitled to the avails of the suit. But this definition will not help us determine whether the
plaintiff or the defendant is a real party in interest.

Test: In determining whether a party is a real party in interest, the question that should be asked is was it
the right of the plaintiff that was violated, if the answer is yes, then the plaintiff is a real party in interest.
Was it the act or omission of the defendant which violated the right of the plaintiff? If the answer is yes, the
defendant is a real party in interest.

There are two kinds of real parties in interest:

23
1. Indispensable parties are those without whom no final determination can be had of an action.
There is final determination of an action when the court renders a valid and binding judgment. An
indispensable party must be joined otherwise no final determination can be had.

2. Necessary party is one who is not indispensable but who ought to be joined if complete relief is to be
afforded as to those already parties.
Not indispensable meaning a necessary party may be dispensed with. It means that the court may still
proceed with the case and render a valid and binding judgment. Not joining a necessary party, the
consequence is that the plaintiff will not be accorded complete relief if a defendant who is a necessary party
is not joined.

RULE 3-7

Last meeting, we were discussing permissive joinder of parties under Sec 6 of Rule 3.

There are 2 kinds of Permissive Joinder of Parties:

1. Permissive Joinder of Several Persons as Plaintiffs

2. Permissive Joinder of Several Persons as Defendants

Permissive Joinder of Several Persons as Plaintiffs

When can several persons decide to join as plaintiff in one complaint against the defendant?

- When each of those persons has a cause of action against the defendant then they may decide to
join as plaintiffs in one complaint against the defendant.

- Of course, under the rules, each of them may file a separate complaint against the defendant.

- Let us say there are three persons who have a cause of action (COA) against the defendant.

- Each of them can file a complaint separately, 3 suits filed against the defendant.

- But those 3 persons may decide to join in once complaint against the defendant.

- That is Joinder of Persons as Plaintiff.

- But they cannot just do it, there are conditions:

1. The COA of each of these 3 persons against the defendant must all arise from the same
or series of transactions.

2. (Later on) Questions of Fact and Law will arise common to all plaintiffs

Why permissive?

- Because they may not join as plaintiff in one complaint, each of them can file separately.

Permissive Joinder of Several Persons as Defendants

- As you all know, Defendants do not join as defendants. THEY ARE JOINED.

Who decides whether to join them or not?

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- The Plaintiff.

Conditions for Joinder of Defendants:

1. The COA of the plaintiff against each of, example, 3 persons as defendants must arise from the
same or series of transactions.

So several persons may decide to join as plaintiffs and a plaintiff may decide to join several
persons as defendants provided conditions are met.

RULE 3, Section 7 and 8

2 Kinds of Real Parties in Interest

1. Indispensable Parties

2. Necessary Parties

Indispensable party

Section 7. Compulsory joinder of indispensable parties. — Parties in interest without whom no

final determination can be had of an action.

What does without whom no final determination can be had of an action?

- Let’s say, during the pendency of action, the Court discovered that a defendant, an
indispensable part, was not joined, what will the Court do?

- Let me ask the question, if an indispensable part is not joined, may the Court proceed to
the trial and render a valid and binding judgement?

- No. The Court cannot proceed to the trial and render a valid and binding judgement. The
judgment would be null and void so it would be useless for the Court to proceed to the trial. That
is what is meant - no final determination can be had of an action.

Necessary party

- Section 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.

You say a necessary party is one who is not indispensable, what does that mean?

- He is dispensable. That means the Court can proceed to the trial and render a valid and
binding judgement even without a necessary party.

What is the consequence if the Plaintiff failed to join a defendant who is a necessary party?

- The Plaintiff will not be accorded complete relief or compete determination or settlement.

Let’s illustrate that.

Suppose A and B are joint debtors.

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A and B obtain a loan from C in the amount of 10M. It is stated in the contract of loan that A and B are
joint debtors, 50-50. Supposed A and B failed to pay.

C then filed a collection of sum of money but only against A. B was not joined.

How will you classify B?

- Necessary Party.

But what is the consequence to C?

- C cannot get the whole amount of debt but only the part of A against whom the action is
filed.

- So this is a good illustration of a Necessary Party.

Take note, it is always the Plaintiff who joins the defendant. So if an indispensable or necessary party is
not joined, it is the fault of the Plaintiff and Plaintiff will suffer the consequences.

But supposed, there are two persons who should join as Plaintiff, both of them are indispensable
parties as plaintiff but only one of them wants to join. And the other one cannot be compelled to
join. So what is the remedy of the Plaintiff who joined?

- As both of them are indispensable, the Court cannot proceed to trial.

- Remember, the Court cannot compel a person to join as plaintiff. No jurisdiction yet, the
Court can only acquire jurisdiction upon filing of the complaint by the plaintiff. If that person
refuses to join, he cannot be compelled even by the Court,

- The remedy is Section 10.

Section 10. Unwilling co-plaintiff. — If the consent of any party who should be joined as plaintiff
cannot be obtained, he may be made a defendant and the reason therefor shall be stated in the
complaint.

- That persons who refuses to join, especially if an indispensable party, can be joined
as defendant and the plaintiff who joined must state why he is joining him as Defendant
when in fact that person should join as plaintiff.

So what is the remedy of the defendant joined by the plaintiff when plaintiff failed to joined
another person as defendant who is an indispensable party? Can the Court dismiss the case?

- No. Non-joinder of Parties is not a ground of Dismissal (Sec. 11)

Okay correct, but the Court will be in dilemma because if the party not joined is an indispensable
party, it cannot proceed to trial but it cannot also dismiss, even motu proprio, the trial. So what is
the remedy?

- The defendant may file a motion for the court to issue an order to compel the plaintiff to
join a defendant who is an indispensable party.

So let’s say the Court already issued an order but the plaintiff still failed to join the defendant,
despite the order?

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 - The case can be dismissed on the ground of Failure of the Plaintiff to comply with the
order of the court under Rule 17 and not on the ground of failure to join the indispensable party.
Take note of that. That’s the consequence.

Q: Suppose the defendant who was not joined by the plaintiff, is a necessary party. The plaintiff failed to
comply with the order of the court to join the defendant. What is the consequence?

A: The court may proceed with the case. He is not an indispensable party. The court cannot dismiss the
case because he may be dispensed with. The judgment will be rendered without prejudice to the necessary
party.

His claim against that defendant is deemed waived so he cannot file for a separate action.

CASES UNDER RULE 3

RELUCIO v. LOPEZ

*In an action filed by a wife against her husband, to be appointed as the sole administratrix of the conjugal
properties and the forfeiture of the share of the husband in the conjugal properties, the concubine with
whom the husband was living with for so many years, is neither an indispensable party or necessary party.
Because he is not even a real party in interest.

*When the husband was living with the concubine, he acquired some properties. Husband filed a motion to
compel the wife to join the concubine. According to the husband, concubine is an indispensable party.

*Upon the SC, the issue was whether the concubine was a real party in interest. The SC ruled that the
concubine is not a real party in interest. She is neither a necessary or indispensable party. She may be
excluded and the court can proceed with the trial. It may accord the wife complete relief.

DE CASTRO v. CA

*In a case filed by the creditor against one solidary debtor, the other solidary debtors who were not joined
are neither necessary or indispensable parties. A suit against one solidary debtor will accord the plaintiff
complete relief.

*In a solidary obligation, the creditor can collect the entire obligation from that one solidary debtor. Other
solidary debtors are not necessary parties nor indispensable parties.

ORQUIOLA v. CA

*A judgment rendered against a defendant (judgment obligor), cannot be enforced against the successors
in interest of that defendant.

ISSUE: May the judgment be enforced against the successors in interest of the judgment obligor?

*The successor in interest was the party who bought the land from the defendant.

*The SC ruled in the negative. A judgment may not be enforced against them if the following circumstances
are present:

1. If the successor in interest of the judgment obligor was not impleaded as a defendant in the action.
2. He bought the property from the judgment obligor before the filing of the action (When he bought
the property, he relied on the title of the judgment obligor).

CHINA BANKING CORPORATION. v. OLIVER

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*A party is not indispensable to the suit if his interest in the controversy or subject matter is distinct and
divisible from the parties in the suit and would not be prejudiced by any judgment in the suit.

DAVID v. PARAGAS

*The joinder of an indispensable party is mandatory. The presence of all indispensable parties (whether as
plaintiff or defendant) is necessary to vest the court with jurisdiction to try the case and render a valid and
binding judgment. The absence of even one indispensable party renders all subsequent proceedings in the
action of the court null and void, including the judgment.

*Jurisdiction is conferred by law. Even if a court has jurisdiction over a particular case, that court may not
exercise jurisdiction. While the court has jurisdiction over the subject matter of the case, it may not exercise
that jurisdiction if an indispensable party was not joined.

*It is the jurisdiction to “TRY” the case. For the court to “EXERCISE” jurisdiction over the case.

LAND BANK v. CACAYURAN

*A taxpayer is a real party in interest in any action, where there is a claim that public funds are illegally
disbursed, or that public money is being diverted to an improper purpose, or that public funds are being
wasted.

CARABEO v. DINGCO

*Distinction between an action that survives the death of the party and action that does not survive the
death of the party. An action that survives the death of the party is one where the wrong complained of
affects property or property rights, the injuries to the person being merely incidental. In an action the wrong
complained of affects persons and the injury caused to the property and property rights is merely incidental,
that action will not survive the death of a party, whether the plaintiff or defendant.

DELA CRUZ v. JOAQUIN

*When a party dies during the pendency of an action, under the rules there must be substitution of the
deceased party by his legal representative or his heir. When the party died during the pendency of the
action, the heirs without being notified by the court, entered their appearance. They presented evidence on
behalf of the deceased party. There is no need for formal substitution. There is no need for the court to
order the substitution of the deceased party. The heirs of the deceased party voluntarily took part in the
action.

NAVARRO v. ESCOBIDO

*A single-proprietorship is not a juridical person, he cannot sue and be sued in his own name. If a single-
proprietorship is involved, it should be the owner who is the real party in interest.

*To establish a single-proprietorship you just go to the Department of Trade and register your business.
What is usually done is to include the single-proprietorship’s name “doing business…”.

ISSUE: Is the single-proprietorship a real party in interest? NO.

DIVINAGRACIA v. PARILLA

*In an action for partition, all the co-owners and all persons having interest in the subject property of the
partition are indispensable parties.

ENRIQUE VDA. DE SANTIAGO v. VILAR

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*Joinder of indispensable parties is mandatory.

*Rosario is an indispensable party because the widow of the original plaintiff. The failure to implead
rendered proceedings void before the CA.

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 RULE 4: VENUE
*Rule on determining the proper venue. Before you determine the proper venue, it should be first
determined if the case is a real or personal action. We cannot determine the proper venue without
determining if real or personal action. Why should we first make such determination? Because the rule in
determining proper venue for real actions is different from the rule in determining proper venue for personal
actions.

So how do we distinguish a real action from personal action?

A real action is one which affects title to, possession of or interest in real property.

By that definition we can conclude that are real actions involve real property. But not all actions involving
real property are real actions. There are actions involving real property but they do not affect title to, or
possession of, or interest in real property, they are not real actions.

What is a personal action?

A personal action is one which is not a real action. That is how personal action is defined under Rule 4. Any
action that is not a real action is a personal action.

What is the rule in determining proper venue in real actions?

A real action 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.

What is the rule in determining proper venue in personal actions?

A personal action shall 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.

Why at the option of the plaintiff?

In a personal action, the plaintiff may choose the venue where to file the complaint. Naturally, because it is
the plaintiff who files the complaint.

In what instances do these rules do not apply?

1. Where a specific rule or law provides otherwise; or

Ex: Under Rule 66 on Quo Warranto which says that a petition for quo warranto shall be filed in the RTC of
the place where the respondent resides.

2. Where the parties have validly agreed in writing before the filing of the action on the exclusive venue
thereof.

It must be in writing and they should agree on the exclusive venue before the filing on the action.

In one case, the agreement provides that any action arising from the contract between the parties shall be
filed in the proper court of Pasay City. Was the agreement exclusive? No, the agreement is not exclusive.
It only provides for an additional venue aside from the proper venues provided in Rule 4.

So how should the parties make the agreement on venue exclusive?

The use of the word shall will not make the agreement on venue exclusive. The words only, exclusively, or
shall be filed in the proper court of Pasay City to the exclusion of other courts can be used to make the
agreement on venue exclusive.

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Cases regarding venue:

1. BPI Savings Bank v. Sps. Yujuico

For purposes of determining proper venue, an action to recover deficiency after the extrajudicial foreclosure
of real estate mortgage is a personal action.

In extrajudicial foreclosure of real estate mortgage, there will be no action in court because it is extrajudicial.
Suppose after public sale of the mortgage property, the proceeds of the sale are not enough to satisfy the
obligations of the mortgagor- debtor to the mortgagee-creditor.
In a judicial foreclosure of real estate mortgage, if there’s deficiency, all that the plaintiff has to do is to file
a motion in that pending action for deficiency judgment. But in extrajudicial foreclosure of real estate
mortgage and there is deficiency, since there is no pending action, the creditor needs to file a separate
action to recover deficiency from the mortgagor debtor.

What kind of action is an action to recover deficiency after the extrajudicial foreclosure of real estate
mortgage?

According to the case of BPI Savings Bank v. Sps. Yujuico, it is a personal action for purposes of
determining proper venue. The proper venue will be the proper court at the place of the plaintiff or the
defendant, at the option of the plaintiff.

2. Planters Development Bank v. Ramos

The parties entered into a contract where they stipulated that any action between them shall be filed in the
proper court of a place. Let us assume that the venue was exclusive, a fact given in the case. Later on, one
of the parties filed an action against the other, an action to annul their contract. The plaintiff filed the action,
not on the venue they agreed upon, but based on the rule under Rule 4, the proper court at the place of his
residence. The defendant filed a motion to dismiss on the ground of improper venue saying that they have
agreement on the proper venue and it should prevail.

The Supreme Court said that when the action filed by one of the parties is to annul the contract which
contains a stipulation as to the exclusive venue, you cannot expect the party who filed the action to abide
by that stipulation on a contract which he claims to be null and void. It was proper for the plaintiff to file the
action on the proper venue based on Rule 4 not on their agreed exclusive venue. But if the action is to
annul certain provisions of the contract and not the entire contract, the agreement on the exclusive venue
will still apply. In the case of Planters Development Bank v. Ramos, the action is actually to annul certain
provisions of the contract which do not include the stipulation on the exclusive venue and not the entire
contract, thus, the motion to dismiss is granted.

Nothing to discuss on Rule 5.

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 RULE 6: KINDS OF PLEADING
What is a pleading?
Pleadings are the written statements of the respective claims and defenses of the parties .

Based on that definition, there are two kinds of pleadings:

1. A pleading that sets forth the claims a party;
Complaint, counterclaim, cross-claim, third (fourth, etc.)- party complaint, complaint in intervention
2. A pleading that sets forth the defenses of the party.
Answer to the complaint, Answer to the counterclaim, Answer to the cross-claim, Answer to the
third (fourth, etc.)- party complaint, Answer to the complaint in intervention, Reply, Rejoinder (as
introduced by the 2019 Amendments to the Rules on Civil Procedure)

Rejoinder is a responsive pleading to a reply. It may be filed only if the reply is based on an
actionable document.

What are defenses that may be set forth? There are 2 kinds of defense:

1. Negative defense is the specific denial of the material fact or facts alleged in the pleading of the claimant
essential to his or her cause or causes of action.

What is a material fact?

A fact alleged in the complaint which is essential to the cause of action of the plaintiff against the defendant.

2. Affirmative defense is an allegation of a new matter which, while hypothetically admitting the
material facts alleged in the complaint, would nevertheless prevent or bar the plaintiff from recovering his
claim.

If an affirmative defense is alleged in the answer, there is an implied admission of the material facts alleged
in the complaint. But that new matter alleged would nevertheless prevent the plaintiff from recovering his
claim.

Defendant be like: Even assuming all the material allegations in the complaint are true, still because of this
new matter that I alleged on my Answer, the plaintiff cannot recover his claim against me.

Let us say, the defendant alleges in his Answer that while all the material facts alleged in the complaint are
true, the action of the plaintiff against him has already prescribed. That’s the new matter alleged in the
Answer, prescription. And because of that new matter alleged on the Answer, the plaintiff cannot recover
his claim against him.

That illustrate an affirmative defense even if the defendant will assume that all the material facts in the
complaint are true, still because of the new matter alleged in the answer, the plaintiff cannot recover his
claim

Under the amendments in the rules of civil procedure there are now 18 affirmative defenses expressly
mentioned in the rules.
§ 13 affirmative defenses are mentioned under section 5 (b) of Rule 6
§ So out of the 18 affirmative defenses, 13 are mentioned under Sec. 5 (b) of rule 6
§ The first 10 defenses are found in Sec 5(b) and 3 are found in the 2nd par Sec 5(b)

Section 5. Defenses. (b). The affirmative defenses include 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. Affirmative defenses may also include grounds for the dismissal of a
complaint, specifically, 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. (5a)

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 § That is why it is 13, the other 5 affirmative defenses are stated or mentioned of Sec 12 of Rule 8.

Section 12. Affirmative defenses- following grounds:

1. That the court has no jurisdiction over the person of the defending party;
2. That venue is improperly laid;
3. That the plaintiff has no legal capacity to sue;
4. That the pleading asserting the claim states no cause of action; and
5. That a condition precedent for filing the claim has not been complied with.

- All the ground to dismiss in Rule 16 except of 5 of them are now just affirmative defenses
- So there are 18 affirmative defenses

Under the amendments, there are only five grounds for a motion to dismiss. The other ground to dismiss
are now just affirmative defenses. Although the 5 grounds of the motion to dismiss under the 2019
amendments are still, may be alleged in the answer as an affirmative defenses.

But the other grounds, are now just affirmative defenses, they cannot be a basis for a motion to dismiss
any more like the failure of the complain to state the cause of action. They cannot, under the amendments,
you cannot file a motion to dismiss under the failure of the complaint stated as a cause of action also the
ground that the court has no jurisdiction over the person of the defendant, you cannot, it is no longer a
ground as a motion to dismiss, you can allege as an affirmative defense in the answer.

- In the case of Alba v. Malapajo, G.R. No. 198752; January 13, 2016, Peralta, J.
- the court just determines whether a counterclaim is compulsory or permissive,
-the test composed of four questions provided by the SC, if the answer of these four questions is Yes,
then the counterclaim is compulsory, If No, then the counterclaim is permissive
(a) Are the issues of fact and law raised by the claim and by the counterclaim largely the same? (b)
Would res judicata bar a subsequent suit on defendants’ claims, absent the compulsory counterclaim
rule?
(c) Will substantially the same evidence support or refute plaintiffs’ claim as well as the defendants’
counterclaim? and
(d) Is there any logical relation between the claim and the counterclaim? A positive answer to all four
questions would indicate that the counterclaim is compulsory
-1) do the main action and counterclaim have the same factual and legal issues, so if the main action
and counterclaim have the same factual and legal issues
2) would a final judgement in the main case be res judicata to the counterclaim, if the counterclaim is
filed in a separate action
3) Is there any logical relation between the claim in the main action and the counterclaim,
4) would the evidence that would prove that would support the P’s claim also support or would it
disprove the claim in the counter claim? would evidence would support the claim in the main action
disprove the claim in the counterclaim?
-If your answer is YES to all of these four question, the claim is compulsory otherwise it is permissive
- In the case of Lim Teck Chuan v. Uy, G.R. No. 155701; March 11, 2015, Reyes, J.
- Under this revised section [2], where the plaintiff moves for the dismissal of his complaint to which a
counterclaim has been interposed, the dismissal shall be limited to the complaint. Such dismissal shall
be without prejudice to the right of the defendant to either prosecute his counterclaim in a separate
action or to have the same resolved in the same action. Should he opt for the first alternative, the court
should render the corresponding order granting and reserving his right to prosecute his claim in a
separate complaint. Should he choose to have his counterclaim disposed of in the same action
wherein the complaint had been dismissed, he must manifest such preference to the trial court within
15 days from notice to him of plaintiff's
motion to dismiss. These alternative remedies of the defendant are available to him regardless of
whether his counterclaim is compulsory or permissive.

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- This pertains to the dismissal of the complaint in the instance of the plaintiff, you know that under
Rule 17, the plaintiff himself may file a notice of dismissal, not a motion to dismiss but a notice of dismissal,
if the answer has not been serve to him , so the P may cause the dismissal of his own complain, so before
the an answer is serve to the P, he may cause the dismissal of his complain by just filling a notice to
dismissal but after the answer has been served to the plaintiff, the P must file a motion to dismiss, the
dismissal now is with leave of court, after the defendant has served the answer to the plaintiff

- Now, if the court grants the motion to dismiss. Filed by the plaintiff himself, not by the defendant but
by the defendant himself, what is the effect of the dismissal of complaint to a counterclaim for the answer
of the defendant

- - remember that the defendant has already filed his answer, has already served his answer to the
plaintiff and to the court.

- Suppose that there is counterclaim in the answer of the defendant, and later on the P move for the
dismissal of the complaint, and it was dismissed, the main action has already dismissed, what about the
counterclaim of the defendant that was incorporated in the answer, what will happen to the counterclaim?

- The dismissal of the complaint in the instance upon motion of the P as without prejudice to the
counterclaim, the defendant may prosecute his counterclaim in the main action, he did not have to file
another action, in the main action even if was already been dismiss, upon the instance of the P.

- If he wants that he prosecutes his claim in the counterclaim action the D has to leave notice to the
court that he wants to prosecute his action, his counterclaim in the main action. He has to give notice to the
court within 15 days from his receipt of the order of the dismissal. Otherwise, he may just file a separate
action for his claim for the counterclaim against the P in a separate action,

- So he has an option to prosecute his action in the main action or to prosecute his claim against the
plaintiff in a separate action.
- In the case of Metrobank v. CPR Promotions G.R. No. 200567; June 22, 2015, Velasco,
Jr., J.
It is elementary that a defending party’s compulsory counterclaim should be interposed at the time
he files his Answer, and that failure to do so shall effectively bar such claim. As it appears from the
records, what respondents initially claimed herein were moral and exemplary damages, as well as
attorney’s fees. Then, realizing, based on its computation, that it should have sought the recovery
of the excess bid price, respondents set up another counterclaim, this time in their Appellant’s Brief
filed before the CA. Unfortunately, respondents’ belated assertion proved fatal to their cause as it
did not cure their failure to timely raise such claim in their Answer. Consequently, respondents’
claim for the excess, if any, is already barred. With this, we now resolve the substantive issues of
this case.
-If the D fails to set up his compulsory counterclaim in his answer in the main action, he is deemed
to have waived his claim against the P
Q: What does that mean that he is deem to have his counterclaim against the P
A: That mean that he cannot file a separate action against the P for that claim that he should have
set up as counterclaim in the main action, if that claim is a compulsory counterclaim
-But if the counterclaim is a permissive counterclaim, although the defendant has set up his
permissive counterclaim in the answer in the main action, he may still file a separate action for that
claim against the plaintiff
- In the case of Valdez v. Dabon A.C. No. 7353; November 16, 2015, Per Curiam
- In other words, the respondent's denial is a negative pregnant, a denial coupled with the admission
of substantial facts in the pleading responded to which are not squarely denied. Stated otherwise,
a negative pregnant is a form of negative expression which carries with it an affirmation or at least
an implication of some kind favorable to the adverse party. Where a fact is alleged with qualifying
or modifying language and the words of the allegation as so qualified or modified are literally denied,
it has been held that the qualifying circumstance alone is denied while the fact itself is admitted. It
is clear from Atty. Dabon's Comment that his denial only pertained as to the existence of a forced

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 illicit relationship. Without a categorical denial thereof, he is deemed to have admitted his
consensual affair with Sonia.
-This is regarded to a specific denial; some specific denial is negative pregnant.
-So in this case, the husband was accused of sexually assaulting a woman other than his wife, in
his answer in that accusation, the H said that “I did not sexually assault that woman”, what was
admitted by that H, what kind of denial that he admitted that making that kind denial,
Q: What did he admit?
A: He admitted that he had sexual intercourse with the woman that he did not used force,

- So that kind of denial, that admits other things is a negative pregnant.

By making a negative pregnant, you are admitting

- In the case of Caneland Sugar Corp. v. Alon

G.R. No. 142896; September 12, 2007, Austria – Martinez, J.
- Petitioner does not dispute its loan obligation with respondent. Petitioner’s bone of contention
before the RTC is that the promissory notes are silent as to whether they were covered by the
Mortgage Trust Indenture and Mortgage Participation on its property covered by TCT No. T-11292.
It does not categorically deny that these promissory notes are covered by the security documents.
These vague assertions are, in fact, negative pregnant, i.e., denials pregnant with the admission of
the substantial facts in the pleading responded to which are not squarely denied. As defined in
Republic of the Philippines v. Sandiganbayan, a negative pregnant is a "form of negative
expression which carries with it an affirmation or at least an implication of some kind favorable to
the adverse party. It is a denial pregnant with an admission of the substantial facts alleged in the
pleading. Where a fact is alleged with qualifying or modifying language and the words of the
allegation as so qualified or modified are literally denied, has been held that the qualifying
circumstances alone are denied while the fact itself is admitted."
-According to the SC, a negative pregnant is denial, pregnant with, so it is denial, pregnant with an
admission
-It is a denial but it carries with it, an admission of an substantial facts alleges in the averment
-so when a party, wants it deny one entire averment, you know in the averment there are several
facts contained in that allegation on in averment in that several facts, but if the defendant only
denies some but not all, he will have deemed admitted the facts that he did not deny these facts
even if he did not say that
- “I deny this facts”
- he will be deemed he just admit some of the fact, in the averments but not all, that was SC was
saying that that negative pregnant is a denial pregnant with admission
- it is a denial but pregnant with admission, it carries with iit like a pregnant woman carrying a baby
That is why pregnant, pregnant with admission, with the other facts in the averments

- Rule 7 speaks of the parts and contents of the pleading

- Section 3. Signature and address
- (a) Every pleading and other written submissions to the court must be signed by the party or counsel
representing him or her.
- (b) The signature of counsel constitutes a certificate by him or her that he or she has read the
pleading and document; that to the best of his or her knowledge, information, and belief, formed
after an inquiry reasonable under the circumstances:
- (1) It is not being presented for any improper purpose, such as to harass, cause unnecessary delay,
or needlessly increase the cost of litigation;
- (2) The claims, defenses, and other legal contentions are warranted by existing law or jurisprudence,
or by a non-frivolous argument for extending, modifying, or reversing existing jurisprudence;
- (3) The factual contentions have evidentiary support or, if specifically, so identified, will likely have
evidentiary support after availment of the modes of discovery under these rules; and
- (4) The denials of factual contentions are warranted on the evidence or, if specifically, so identified,
are reasonably based on belief or a lack of information.

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- (c) If the court determines, on motion or motu proprio and after notice and hearing, that this rule has
been violated, it may impose an appropriate sanction or refer such violation to the proper office for
disciplinary action, on any attorney, law firm, or
- party that violated the rule, or is responsible for the violation. Absent exceptional circumstances, a
law firm shall be held jointly and severally liable for a violation committed by its partner, associate, or
employee. The sanction may include, but shall not be limited to, non-monetary directive or sanction; an
order to pay a penalty in court; or, if imposed on motion and warranted for effective deterrence, an order
directing payment to the movant of part or all of the reasonable attorney’s fees and other expenses directly
resulting from the violation, including attorney’s fees for the filing of the motion for sanction. The lawyer or
law firm cannot pass on the monetary penalty to the client. (3a)
- Under Sec 3 of Rule 7 of the amended rule, that the pleading must be signed either by the party
himself or his counsel
- So a pleading signed either by the party himself or his counsel,
- When a counsel signed a pleading he certify to several matters, he attested to the court the
allegations in the pleadings are true and this pleading is not being filed to cause delay, so when every time
a counsel sign a pleading he certifies certain matter enumerated in Sec. 3 of Rule 7,
- This are under the new rules because under the old rules, when a counsel, he signs a pleading he
only certifies that he read the pleading and that the best of his knowledge and his belief that the pleading
is not to cause delay and the allegations are true therein he certifies on that certain matters, he only certifies
those matters that in the amended rules there are additional matters that the counsel certifies to certain
matters
- You need to memorize it
- Under the old rules, the failure, if the pleading is not signed by either the parties or his counsel, then
that pleading produces no legal effect that was provided by the old rules, I don’t why it was removed, so we
don’t know the effect if the party or his counsel has failed to sign the pleading, under the old rules, when a
pleading was not signed it produces no legal effect but that provision was already deleted
- Under Sec. 4 of Rule 7, pleadings, we enumerated it earlier need not to be verify, the general rule
is that pleading need not be verified, unless there is a specific law that the pleading must be verified,
nonetheless pleading need not be verified
- Now, there is a rule that all initial pleadings must be verified, although the general rule that the
pleading need not be verified, initiatory pleading must be verified
- Q: How is pleadings be verified?
- A: By an affidavit, a sworn affidavit, signed by the plaintiff or pleader, attesting that all the material
facts alleged in the pleading are true based on his knowledge, personal knowledge, or based on authentic
records
- Again, by an affidavit incorporated in the pleading or attached to the pleading which states that the
plaintiff or the pleader has read the pleading and all the material allegation in the pleading are true and
correct based in his personal knowledge or based on authentic record, that is how the pleading is verified
- In effect, when a pleading is verified, the allegation in the pleading, the factual allegation in the
pleading, are placed under oath so that when a pleader falsifies an allegation in his pleading since it is
under oath, he is liable for perjury, that is how the pleading is verified
- GR: All the initiatory pleadings must be verified, a complaint, an initiatory pleading must be verified,
a petition must be verified because it is an initiatory pleading
- Q: How about the other pleading which are not initiatory pleading?
- A: the answer and the reply, may not be verified because the Gen Rule because, a pleading may
not be verified unless it is an initiatory pleading because initiatory pleading must be verified
- But there are instances that there are pleading that are not initiatory pleading must be verified
- Instances when pleading which are not initiatory pleadings but must be verified
- 1. Answer- since the answer is not an initiatory pleading as a rule it need not be verified,
- Q: When should an answer be verified?
- A: The answer must be verified when an actionable instrument was attached to the complaint.
- So now, there is a need that an answer be verified, if an actionable document is attached to the
complaint
- Q: What is an actionable document?
- A: It is a written instrument on which the claim, the cause of action of the plaintiff is based

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- So it is a written document on which the cause of action of the plaintiff is based and the plaintiff
attached the actionable instrument to his complaint in his answer,
- the defendant must specifically deny under oath, the authenticity or the due execution of the
actionable document, he must not just specifically deny because he must specifically deny under oath, the
answer must be placed under oath, must be verified so that the defendant may deny the due execution of
the authenticity of the actionable document, attached to the complaint
- If the action filed against the defendant is an action to recover usurious interest
- So a complaint was files against the defendant the action of the plaintiff is to recover usurious interest
that the plaintiff was made to pay the defendant usurious interest,
- so naturally in the complaint, there will be an allegation of usury on the part of the defendant because
the plaintiff is claiming that he is made to pay the D usurious interest, so he filed an action to recover
usurious interest that he paid the D, so the action is to recover usurious interest
- so naturally, there will be an allegation on the complaint that the D charge usurious interest
- Q: What will the D do if he wants to properly deny the allegation of usury in the complaint?
- A: The defendant must specifically deny under oath the allegation of usury,
- So in that instance, when it is necessary to verify an answer so he can specifically deny under oath
the allegation of the usury in the complaint in an action filed by the P to recover usurious interest that he
was made to pay the D
- That is an example where an answer needs to be verified
- 2. A reply – since it is not an initiatory pleading as a rule need not to be verified but there is an
instance a reply must be verified,
- Q: What is that instance, it is necessary that the reply needs to be verified,
- Q: who files a reply?
- A: It is a plaintiff who files to a reply as a responding pleading to an answer which is another
responding pleading
- A: When the D attached an actionable document in his answer,
- Q: When would the actionable document be attached in his answer?
- A: When his defense of the D is based in a written instrument, the written instrument will be
considered as an actionable document, so if the defense of the D are based on a written document
- If the D attached in his answer, an actionable document, and the P wants to deny the authenticity of
the actionable document attached to the answer, he should deny the authenticity or due execution of the
actionable document attached to the answer by specific denial under oath, it must be under oath, it is not
enough that it is specifically deny it, it must be under oath
- The P must verify his reply so that the denial of the authenticity or due execution of the actionable
document attached to the answer would be effectivity
- Q: What is the instance when a pleading needs to be verified but are not verified
- A: the verification is defective,
- Q: so what is the consequence of that when a pleading needs to be verified but is not verified? What
is the effect of that? Or if there is a verification but it is defective. 2:16:47
A: In the case of Basan Basan v. Coca – Cola Bottlers Phils., G.R. No. 174365 – 66; February
4, 2015, On the procedural issue, we hold that while the general rule is that the verification and
certification of non-forum shopping must be signed by all the petitioners in a case, the signature of
only one of them, petitioner Basan in this case, appearing thereon may be deemed substantial
compliance with the procedural requirement. Jurisprudence is replete with rulings that the rule on
verification is deemed substantially complied with when one who has ample knowledge to swear
to the truth of the allegations in the complaint or petition signs the verification, and when matters
alleged in the petition have been made in good faith or are true and correct. Similarly, this Court
has consistently held that when under reasonable or justifiable circumstances, as when all the
petitioners share a common interest and invoke a common cause of action or defense, as in this
case, the signature of only one of them in the certification against forum shopping substantially
complies with the certification requirement. Thus, the fact that the petition was signed only by
petitioner Basan does not necessarily result in its outright dismissal for it is more in accord with
substantial justice to overlook petitioners’ procedural lapses. Indeed, the application of technical
rules of procedure may be relaxed in labor cases to serve the demand of justice.

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- The SC said the rule on verification is deemed substantially complied with when one who has ample
knowledge or efficient knowledge to swear to the truth of the actions in the complaint or petition signs a
verification

- As a rule, the pleading must be verified if it is a complaint by the P, if in case it is an answer by the
D himself,

- But in this case, the requirement in the verification is deemed to have been sufficient, substantially
complied with by any person, who has personal knowledge, with the allegation in the pleadings and there
is substantial compliance, hence that will cure the defect, there is no need to the P himself or the D himself
to sign the verification

- In the case of Heirs of Josefina Gabriel v. Segundina Cebrero, G.R. No. 222737; November 12,
2018, Peralta, J., The substitution of heirs in a case ensures that the deceased party would continue to be
properly represented in the suit through the duly appointed legal representative of his estate. The purpose
behind the rule on substitution is to apprise the heir or the substitute that he is being brought to the
jurisdiction of the court in lieu of the deceased party by operation of law. It is for the protection of the right
of every party to due process. Proper substitution of heirs is effected for the trial court to acquire jurisdiction
over their persons and to obviate any future claim by any heir that he or she was not apprised of the
litigation.

- According to the SC, non-compliance with a defect with the requirement of the verification, would
not render the pleading fatally defective, the non-compliance of the requirement of the verification would
not render the pleading fatally defective, the court may give the pleader a chance to cure the defect and
comply with the requirements of verification.

- There is another mandatory requirement for initiatory pleadings

- Q: What is that?

- A: Certificate against forum shopping, that is another mandatory requirement for initiatory pleading

- Now, we don’t need to discuss the tenor of CAFS, it should also be under oath

- as a rule, only the plaintiff, since as it is needed for initiatory pleading, so only the P or the petitioner
has signed the CAFS., this is under oath the P if there are several P, all the Ps, (2:20:25, nawala)

- The failure to comply with the requirement of the CASF is fatal, it is ground for the dismissal of the
pleading, or the dismissal the case if it is complaint

- So, it is strictly complied with the requirement on CAFS, it must be strictly complied with

- But in one case, the SC allowed an exception to the rule, in one case not all, not all the P signed the
CAFS, the rule is that the P who does not able to sign will be drop as a P, in this the case, only one of the
several P signed the CAFS

- The SC held that it is not fatal, provided that all of the Ps has common cause of action, if the Ps
common cause of action against the D, the signature of one, of CAFS will suffice.

- As otherwise, the court is very strict oh the certificate against forum shopping, the failure to comply
with the requirement of the forum shopping is a ground that is fatal to the case and cannot be cure by
amendment for the pleading or the complaint
- Under the rules, the counsel of a party, under his name or under his signature, he must
indicate the date and issue of the certificate of compliance for exemption of the MCLE (mandatory
continuing legal education), all lawyers are required to comply with this MCLE

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- a professor are exempted from this requirement, but so we must indicate under our name, sign a
pleading should indicate the date and place of the issuance of the certificate compliance for
exemption of MCLE,
failure to do that, under the old rules, is a cause of dismissal of the case if it is a complaint, the
pleading will be deemed as without any legal effect , under the present rule, the failure to indicate
the MCLE for exemption, the date of issue and the place of issue, is no longer a ground for
dismissal if it is a complaint, the failure of the counsel indicate of his MCLE certificate is a ground
for administrative sanction, that the rule of People v. Arojado, G.R. No. 207041; November 9,
2015, In any event, to avoid inordinate delays in the disposition of cases brought about by a
counsel's failure to indicate in his or her pleadings the number and date of issue of his or her MCLE
Certificate of Compliance, this Court issued an En Bane Resolution, dated January 14, 2014 which
amended B.M. No. 1922 by repealing the phrase "Failure to disclose the required information would
cause the dismissal of the case and the expunction of the pleadings from the records" and replacing
it with "Failure to disclose the required information would subject the counsel to appropriate penalty
and disciplinary action." Thus, under the amendatory Resolution, the failure of a lawyer to indicate
in his or her pleadings the number and date of issue of his or her MCLE Certificate of Compliance
will no longer result in the dismissal of the case and expunction of the pleadings from the records.
Nonetheless, such failure will subject the lawyer to the prescribed fine and/or disciplinary action.

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 RULE 7

Let's start with Rule 7, the rule is that every pleading must be signed by the party or his counsel. Under
the old rules, by old rules i mean the rules prior to the 2019 amendments it was expressly provided that
an unsigned pleading produces no legal effect, this simply means that if the party or his counsel failed
to sign the pleading it is as if the pleading did not exist.
Under the amended rules the provision on the effect of an unsigned pleading has been deleted, we don't
know the reason for the deletion and we are ignorant as to the effect of the deletion.
Under the old rules when a party’s counsel signs a pleading he certifies that he has read the pleading that
to the best of his knowledge, information, and belief there is a good ground to support the pleading and
that it is not being filed to cause delay.
Under the amended rules however when a counsel signs a pleading he certifies that only to the matter I
have just stated but also to four other matters enumerated under Section 3b of Rule 7 which I'm sad to
say you just have to memorize, a lawyer who violates this rule faces a slew of penalties including
administrative sanctions and the payment of fines.
The rule is that pleadings need not be verified unless specifically required by law or rule. There is a
specific rule that says all initiatory pleadings such as a complaint or petition must be verified; an initiatory
pleading is one which one file commences a new action or proceeding. A counterclaim or cross-claim
since its filing does not commence a new action or proceeding is not an initiatory pleading.
Q: How is a pleading verified?
A: A pleading is verified by sworn affidavit of the pleader either attached to or incorporated with the
pleading where he attest to 3 matters enumerated in section 4 of rule 7, the first of which is that the
allegations in the pleading are true and correct based on his personal knowledge or based on authentic
documents.
As a rule the pleader himself assigned pleading, a pleading that requires verification but lacks verification
or its verification is defective shall be treated as an unsigned pleading. The problem is there is no rule on
unsigned pleadings anymore, remember the provision on unsigned pleadings was deleted in the 2019
amendments.
There are instances when a pleading which is not an initiatory pleading must also be verified, an answer
which obviously is not an initiatory pleading must be verified if it aeeks to specifically deny the
authenticity and due execution of an actionable document pleaded in the complaint. Under the rules even
if the defendant specifically denies the authenticity and due execution of the actionable document
attached to the complaint, if the specific denial is not under oath, he will be deemed to have admitted
them. An answer must also be verified if the defendant seeks to deny the allegation of usury against him
in a complaint to recover you should use interest even if the defendant specifically denied the allegation
of usury against him in the complaint if his allegation is not under off he will be deemed to have admitted.
A reply which cannot be mistaken for an initiatory pleading must also be verified if the plaintiff seeks to
specifically deny the authenticity and due execution of the actionable document pleaded in the
defendant's answer. By the way an actionable document is a written instrument upon which the
plaintiff's claim or the defendant's defenses are founded. The substance of the actionable document must
be set forth in the complaint or answer and the original or a copy thereof must be attached to the
complaint or answer.

In the case of Basan v. Coca – Cola Bottlers Phils. (G.R. No. 174365 – 66; February 4, 2015)the
supreme court said that the rule on verification is then substantially complied with when a person who has
ample knowledge to swear to the truth of the allegations in the complaint or petition since the verification
take note that the supreme court is a little more lax when it comes to verification than with regards to the
certificate against forum shopping.

In another case Heirs of Josefina Gabriel v. Segundina Cebrero (G.R. No. 222737; November 12,
2018) the supreme court also said that non-compliance or a defect in the verification would not render
the pleading fatally defective. The trial court may give the reader a chance to comply with or correct the

40
 defect in the verification. Let me repeat, so in the case of gabriel vs cebrero the supreme court said that
non-compliance with or a defect in the verification would not render the pleading fatally defective. The
trial court may give the reader the chance to comply will or correct the defect in the verification, so
another mandatory requirement for initiatory pleadings is a certificate against forum shopping of course I
don't want to insult your intelligence by discussing the turner of a certificate against forum shopping the
last thing I want to do is to insult your intelligence if any since a certificate against forum shopping is
required of initiatory pleadings it must be signed and sworn to by all the plaintiffs or petitioners failure to
comply with the rule on certificate against forum shopping is fatal. It is a ground for the outright dismissal
of the action or proceeding defect cannot be the defect and sorry cannot be cured by amending the
initiatory pleading. Let me repeat, the defect in the certificate against forum shopping or the failure to
include a certificate against forum shopping is fatal. It is a ground for the dismissal of the complaint or
petition, the defect cannot be cured by amending the initiatory pleading so the plaintiff or petitioner
cannot just ask the court your honor, may I just amend my pleading so include a certificate of non forum
shopping or so that I can correct the defect in the certificate of against forum shopping so it cannot be
cured by amending the initiatory pleading. In another case heirs of gabriel vs cebrero we mention that
already the supreme court made it very clear that is certificate against forum shopping must be signed
by all the plaintiffs or petitioners, those who fail to sign the certificate shall be dropped as parties to the
case, that is the general rule. The plaintiffs or petitioners who fail to sign the certificate against forum
shopping shall be dropped as parties to the case. The supreme court however, surprisingly, allowed the
application of the rule on certificate against forum shopping ,the supreme court said that when all the
plaintiff or petitioners share a common interest and cause of action, the signature of one of them in the
certificate against forum shopping may be deemed substantial compliance of the requirement. So if the
plaintiffs or the petitioners share a common cause of action or share a common interest this signature of
one of them will be considered as substantial compliance with the requirement.

Finally in the case of People v. Arojado G.R. No. 207041; November 9, 2015
the supreme court said that the failure of a party's legal counsel to indicate under his name the number,
date and place of issue of his certificate of MCLE compliance or exemption will no longer cause or result
in the dismissal of the complaint or the action. Under the old rules if the plaintiff’s legal counsel fails to
indicate in the pleading under his name, the number date of issue, and place of issue of his MCLE
certificate of compliance or exemption that fact will result in the dismissal of the complaint for action under
the amended rules that will no longer have the fact that will no longer cause the dismissal of the action or
complaint except that the legal counsel or the lawyer may be subjected to administrative sanctions.

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 RULE 8

Ok so we are done with Rule 7, let’s now go to Rule 8 manner of making allegations in the pleadings. The
2019 amendments introduced significant changes to the provisions of rule 8 under section 1 of the old
rules a party may only allege ultimate facts upon which he relies for his claim or defense, he could not
allege mere evidentiary matters or facts in his pleading. Under section 1 of the amended rules so ever a
party must allege in his pleading not only ultimate facts on which he realize points claim or defense he
must also allege only evidence he has necessary to prove his claim or defense. As a consequence of this
new provision, a party must allege in his complaint or answer the names of all his witnesses and this
substance of their respective testimony. The party is required to attach to his complaint or answer the
judicial affidavits of all witnesses as well as his documentary and object evidence. The overall effect of
this innocent looking change in section 10 rule 8 is that it made it extremely difficult for lawyers which
ensure you aspire to be, to prepare the complaint or the answer. Class it's not too late to change your
course and take up a degree in mortuary science, instead, ok? ok. Earlier I mention actionable
documents, so let me talk about actionable documents now in more detail.

Section 7 define actionable document as a written instrument upon which the plaintiff or the plaintiff's
cause of action or the defendant’s defense is based.

Q: How may a plaintiff or defendant plead an actionable document?

A: The defendant or the plaintiff shall set forth in his pleading the substance of the written instrument and
attached thereto the original or a copy of the written instrument.

Q: How may the defendant contest on the actionable document attached to the complaint?
A: The defendant shall specifically deny in his verified answer the genuineness and due execution of the
plaintiff’s actionable document otherwise he will be deemed to have admitted them.

Note: The actionable documents genuineness and due execution must be specifically denied under by
the defendant otherwise the genuineness and due execution of such actionable document shall be
deemed admitted by the defendant. This of course will require the defendant to verify his answer because
the specific denial of the authenticity and due execution of the plaintiff’s actionable document must be
under off so the specific denial must be under off it's not enough that the defendant specifically denies the
genuineness and due execution of the plaintiff actionable document his specific denial must be under off
that's why the answer of the defendant must be verified because that's how you place under off the
allegations in the answer.

Q: How may the plaintiff contest the actionable document attached to the defendant's answer?
A: He may do so by specifically denying in his verified reply the genuineness and due execution of the
actionable document attached to the defendant’s answer. So this is the only instance when it becomes
necessary for the plaintiff to file a reply and to verify it. Failing in this the plaintiff will be deemed to have
admitted the genuineness and due execution of the defendant’s actionable document.

When we were discussing Rule 6 we mention in passing two kinds of defenses that the defendant be set
forth in his answer: they are negative defenses and affirmative defenses.

Negative Defense – as the specific denial of a material fact or allegation in the complaint.

Material Facts or Allegations – are of course the facts alleged in the complaint that are essential to or
that constitute the cause of action of the plaintiff against the defendant.

Note: Other facts alleged in the complaint that are not essential to or do not constitute the plaintiff's cause
of action are not referred to as material facts or allegations. What are they? They are just facts, not
material facts nor material allegations.

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Q: Why is it necessary for the defendant to make a proper specific denial of the material facts for
allegations in the complaint?
A: If the defendant fails to make a proper specific denial of the material facts or allegations in the
complaint he will be deemed to have admitted them. The defendant however, will not be deemed to have
admitted other facts alleged in the complaint which are not material facts or allegations.

Ok? Now how is a proper specific denial made? under Section 10 of Rule 8 there are three ways by
which the defendant may specifically deny the material allegations in the complaint. The first way is by
absolute denial, the second is by partial denial, and the third is by disavowal of knowledge.

Absolute Denial is used when the defendant intents to deny all the facts contained in one averment.

Q: How does a defendant make an absolute denial?

A: First the defendant must specify each material fact he intends to deny. Second he should deny the
facts that he had specified and third he should, when practicable, allege all facts in support of his denial.

Ok let me repeat, so how does a defendant make a proper absolute denial? The defendant should first
specify each and every material fact that he intends to deny. You should first specify each and every
material fact that he intends to deny that’s why it is called specific denial because the defendant must first
specify each and every material fact he intends to deny second he should deny the facts he intends to
specify and third he should, when practicable allege all facts in support in his denial. Class, it is not
enough that the defendant denies the facts alleged in the complaint, he should first specify the facts and
then deny them and he should also alleged facts in support of his denial. You know the way I do it in my
clients answer is that first, I specify the facts in the complaint that I intend to deny and then I deny them
and then I allege facts in support of my denial. How does it sound in an actual answer? Ok let me state
how it is stated in an answer of the defendant. The allegations in paragraph 10 of the complaint are
denied the truth being that, ok that would be a sufficient absolute denial. All the facts alleged in paragraph
10 of the complaint are denied the truth being that the new state the facts in support of your denial. Ok
class that's how an absolute denial is made, you specify then you deny and then you state facts in
support of your denial.

Ok so let's proceed under existing jurisprudence the defendant is deemed to have sufficiently specified
the facts that he intends to deny if he alleges in his answer that he is denying all the facts alleged in let’s
say paragraph 10 of the complaint that will be considered as a sufficient specification of the facts that the
defendant intents to deny. You know that the paragraphs in the complaint are numbered sequentially, so
all the paragraphs are numbered sequentially, so when a defendant wants to deny certain facts in the
complaint it does not have to state the again, to satisfy the requirement of specification it does not have to
state in his answer the facts, the material facts alleged in the complaint that he intends to deny only has
to do is to refer to the paragraph where the facts that he intend to deny are contained. So we'll just say
the facts alleged in paragraph 10 of the complaint are denied you don't have to use the word specifically
denied because that will not make a difference, if you don't do it properly even if you use the word
‘specifically’ it won't matter class you just do it right you don't have to use the word specifically and so it is
important aside from specifying the facts and then denying them it is important also for a proper absolute
denial to state the facts in support of the defendant's denial. Ok so just referring to the paragraph number
in the complaint is sufficient specification, by the way the reason why it is called specific denial is because
the defendant has to specify each and every fact he intends to deny. That's why it's called specific denial.

A general denial as opposed to a specific denial is not a proper denial, if the defendant makes a general
denial of all the facts alleged in the complaint even if he uses the word ‘specifically’ that would not make a
proper specific denial and the consequence is that he will be deemed to have admitted all the facts
alleged in the complaint, so let us say the defendant in his answer says that he is specifically denying all
the facts alleged in the complaint, so he used the word ‘specifically’ denied all the facts alleged in the
complaint, is that a proper specific denial? No it is not a proper specific denial. The defendant, if he
makes that kind of denial which is called a general denial he will be deemed to have admitted all the facts

43
alleged in the complaint to the prejudice of his client that the defendant paid him an enormous sum of
money.

Ok? So let's go, let's proceed.

Q: When do we use the second kind of denial specific denial which is partial denial?
A: Partial denial is used when the defendant intents to deny some but not all the facts contained in an
averment.

Note: Sometimes the defendant does not want to deny all the facts in one averment because those other
facts are not adverse to him and he cannot deny them, it's not good that he will deny facts that he can't
deny. So what will he do if he intends to deny some but not all the facts contained in one averment? Yes
to make a partial denial, so how is it done? So a partial denial is done by first specifying the facts in the
averment which he admits as true and material, so that's the first thing that the defendant do if you want
to make a proper partial denial, you should first specify the facts in the averment that he admits as true
and material and then second he shall deny the rest. So take note that unlike in the case of an absolute
denial what the defendant is required in a partial denial is to specify not the facts that he intend to deny
but the facts that he believes, that he admits as true and material and then he will just deny the rest so
the defendant in a partial denial does not specify the facts that he intend to deny but the facts that he
admits as true and material and he will not specify the facts that he intends to deny he will just deny the
rest without the rest of the facts without specifying them. Take note of the difference between an absolute
denial and a partial denial.

Let's go now to the third way by which the defendant may make a proper specific denial. It is called
disavowal of knowledge, of course you may call it also a vowel of ignorance or knowledge for avowal of
ignorance which of course the defendant may not find so flattering if you use the term avowal of
ignorance. So the term disavowal of knowledge sounds more acceptable than avowal of ignorance but
they mean the same thing. Ok, so when is this kind of specific denial proper? You know this kind of
specific denial is seldom used but when this kind of specific denial or disavowal of knowledge proper,
disavowal of knowledge as a way of specifically denying a material fact and a complaint is proper in a
situation where the defendant does not know whether a material fact alleged in the complaint is true or
not. That may happen. That there is a fact, a material fact alleged in the complaint but the defendant does
not know whether that material fact alleged in the complaint is true or not, he does not know whether it is
true or not, what he knows is that that fact is adverse to him but he does not know whether it is true or
not.

So what does he do? Can he specifically deny that material fact? Would it be proper for him to deny, to
say in his answer that that material fact is not true? When he does not know whether it is true or not? Of
course it is not proper for him. He cannot do that. He cannot deny a fact of which he has no knowledge, it
would be improper. So what happens? The defendant is in a bind, if he does not deny the material fact
alleged in the complaint because he has no knowledge of that fact he will be deemed to have admitted it.
On the other hand if he does not specifically denied a material fact and more likely it would be adverse to
him he would be deemed to have admitted it. He cannot deny because it would not be, he cannot deny
because it would not be proper. If he does not deny he will be deemed to have admitted that material fact.
That's a dilemma facing the defendant, so what is a way out of that dilemma for the defendant? How does
he solve, how does he go out of the bind?

Now disavowal of knowledge provides the defendant with a ready solution the defendant may alleged in
his answer that he is without knowledge or information sufficient to form a belief as to the truth of the
material facts alleged in, let us a paragraph 9 of the complaint. So the defendant will just state the truth.
The defendant will just state the truth it is answer it will state that he is without knowledge or information
sufficient to form a belief as to the truth of the material fact alleged in the complaint that the say
paragraph 9 of the complaint by making that statement which is not, does not sound like a denial at all but
by making that statement the defendant will be deemed to have made a proper specific denial of that
material fact. Although he did not deny the material fact but if he makes that statement that is without

44
knowledge or information sufficient to form a belief as to the truth of the material fact alleged in the
complaint then section 10 of Rule 8 considers that statement which as I said does not sound like a denial,
as a proper specific denial of the material fact alleged in the complaint. Ok did you understand class?

But as a word of caution, this kind of specific denial and referring to this a vowel of knowledge should be
used sparingly. The defendant cannot use this kind of specific denial if he ought to know ,given these
circumstances whether the material facts alleged in the complaint is true or not. You cannot say you are
without knowledge or information sufficient to form a belief as to the truth of a material fact alleged in the
complaint when you should know whether that fact is true or not. You cannot say you don't know when
you ought to know under the circumstances. So the defendant should be careful because if you make this
kind of specific denial disavowal of knowledge and later on it is shown to the court by the plaintiff that you
ought to know you should know that fact you cannot plead ignorance of the fact. You cannot plead
ignorance you don't know when you should know or you ought to know, then you will be considered to
have admitted fact even if you make that statement that you are without knowledge or information
sufficient to form a belief as to the truth of the material facts alleged in the complaint.

So three kinds of making a proper specific denial first is absolute denial it is used when the defendant
intends to deny all the facts alleged in one averment. The second is partial denial which is used when the
defendant intends to deny some but not all the facts alleged in one averment. And the third way of making
a proper specific denial is disavowal of knowledge, it is used when the defendant has no knowledge of
whether a material fact alleged a complaint is true or not he does not know whether it is true or not we
cannot deny it because it is not proper to deny something you don't know. You cannot also say he is it if
he say it does not deny it he will be deemed to have admitted it so the way out of that dilemma is for the
defendant to just say he is without knowledge or information sufficient to form a belief as to the truth of
that material fact and that statement is considered by the rules themselves as a proper specific denial of
that material fact. Ok, ok so we are done with a specific denial the first kind of negative defense. We are
done with that.

Let us now discuss the second kind of defense which is affirmative defense.

Affirmative Defense – is an allegation of a new matter in the answer which while hypothetically admitting
the material allegations in the complaint would nevertheless prevent the plaintiff from recovering his claim
against the defendant. So based on this definition of an affirmative defense when a defendant search for
an affirmative defense in his answer he is in reality alleging new matter in his answer. By alleging that
new matter in his answer however, the defendant is made to hypothetically admit all the material
allegations in the complaint so if the defendant alleges that new matter in his answer, he is deemed to
have admitted if only hypothetically, all the material allegations in the complaint. All those material
allegations that are essential to the cause of action of the plaintiff against him he is deemed to have
hypothetically admitted all the material allegations in the complaint. Normally if the defendant admits all
the material allegations in the complaint then that's the end of it for him he loses the case. But in the case
of an affirmative defense the defendant alleges a new matter in his complaint by doing so he's deemed to
have hypothetically admitted the material allegations in the complaint hypothetically, hypothetically, and
yet although he is deemed to have hypothetically admitted only material allegations in the complaint but
because of that new matter that he alleged in his answer the plaintiff is prevented or cannot recover his
claim against the defendant.

So to better understand this, let me give you an illustration, you will better understand this if we illustrate.
So let us say the defendant alleged in his answer a new matter. What is that new matter that the
defendant alleged? He alleged in his answer that the action of the plaintiff has already prescribed, is
already barred by the statute of limitations, that is a new matter alleged in the answer because it is not a
specific denial of the material facts alleged in the complaint, of course there is no mentioned of that in the
complaint. So when the defendant alleges that in his answer that would be a new matter alleged by the
defendant in his answer, that the action of the plaintiff against him has already prescribed or is barred by
the statute of limitations. Ok but by doing that, but by alleging that new matter the defendant is deemed to
have admitted all the material allegations in the complaint constituting the cause of action of the plaintiff
against him, and yet even if he is deemed to have admitted only material allegations in the complaint

45
constituting because of the plaintiff against him, still, nevertheless, the plaintiff cannot or is barred from
recovering his claim. Why not? Why can't the plaintiff recover his claim from the defendant when the
defendant is made to hypothetically admit only materials and a material allegations in the complaint
constituting the plaintiff's cause of action? Why can't the plaintiff recover his claim against the defendant?
Because of that new matter alleged in the answer, that the action of the plaintiff against the defendant has
already prescribed even if all the material allegations in the complaint are true since the plaintiff's action
against the defendant has already prescribed or is barred by statute of limitations then he can no longer,
the plaintiff can no longer recover his claim from the defendant. That is the nature of an affirmative
defense, that is the nature of an affirmative defense.

Now class under the 2019 amendments there are now a total of 18 affirmative defenses. There are now
18 affirmative defenses under the 2019 amendments. We are listed in the 2019 amendments these 18
affirmative defenses 10 of the affirmative defenses. 10 of the 18 affirmative defenses are found in the first
paragraph of section 5b of rule 6. Plus please take note 10 of the affirmative defenses are found in the
first paragraph of section 5b of rule 6. Three of the affirmative defenses are found in the second
paragraph of section 5b of rule 6. Ok how many are there now there are 10 + 3, 13 we have no 13
formative defenses. And the other five affirmative defenses are found under section 12 of rule 8. Ok
under section 12 of rule 8. Now class if you want to pass Rem 1 and eventually, God’s willing, your bar
exams in the year 2025, you have no choice but to memorize these affirmative defenses. You have to
memorize them if you want to pass Rem 1 and in the remote possibility that you'll be taking the bar exams
perhaps 10 years from now.

Now class, under the 2019 Amendments, there are now a total of 18 affirmative defenses:

1. First par. of Section 5(b), Rule 6 = 10 affirmative defenses

2. Second par. of Section 5(b), Rule 6 = 3 affirmative defenses

3. Section 12, Rule 8 = 5 affirmative defenses

If you want to pass Rem1 and your bar exam, you have to memorize these affirmative defenses.

Let’s discuss cases in the syllabus pertaining to Rule 8:

Fernando Medical Enterprises vs. Wesleyan University

- The SC discussed 3 kinds/ways by which a proper Specific Denial can be made. We’ve
already discussed that.

Go Tong Electrical Supply vs. BPI Family Savings Bank

- The SC clarified that the use of the phrase “specifically denied” will not make the denial
a proper specific denial.

Benguet Exploration Inc. vs. CA

- The SC said that the admission by a party of the due execution and authenticity of the other
party’s document does not mean that he also admits the truth and the accuracy of the contents of
the document

- Thus, he is not precluded from presenting evidence to disprove the truth and the accuracy
of the contents of the document whose due execution and authenticity has been admitted by the
party.

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 - Let me explain a little further, in this case the SC said by admitting the due execution and
authenticity of a document, the party is not deemed to have also admitted the truth and the accuracy
of the contents of the document.

- So if that is the case, he may still present evidence to disprove the truth and the accuracy
of the contents of the document whose due execution and authenticity has been admitted already.
Take note of this. Remember this.

We are done with Rule 8.

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 Rule 9: Effect of Failure to Plead

Section 1 provides:

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. xxx

What are these defenses or objections that should be pleaded in a motion to dismiss or answer
otherwise they will be deemed waived?

- The 18 Affirmative defenses

- So if a defendant did not plead these affirmative defenses available to him in his motion to
dismiss or answer, he will be deemed to have waived them. He can no longer raise it any time after
he filed his answer/ motion to dismiss the complaint.

But what are the exceptions to this rule? What defenses or objections which even if not pleaded in
a motion to dismiss or answer are not deemed waived?

Section 1. Defenses and objections not pleaded. —

xxx 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.

1. the court has no jurisdiction over the subject matter

2. that there is another action pending between the same parties for the same cause,

3. that the action is barred by a prior judgment (res judicata) or

4. that the action is barred by statute of limitations

Do these defenses and objections sound familiar to you?

- It should. If you have read the Amended Rules, under Rule 15 you will realize that these 4
defenses and objections I mentioned are the only grounds for a Motion dismiss.

- Under the old Rule 16, which by the way has been deleted, there are 10 grounds for a motion
to dismiss. Under the 2019 Amendments, there are only 4 grounds that are left.

- So even if these 4 defenses and objections are not pleaded in a motion to dismiss or not
alleged in the answer as affirmative defenses, they are not deemed waived, the defendant may still
invoke them:

a. Any time

b. During the trial

c. For the first time on appeal

Now, Section 2 of Rule 9

Section 2 provides:

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 Section 2. Compulsory counterclaim, or cross-claim, not set up barred. — A compulsory
counterclaim, or a cross-claim, not set up shall be barred

- If a compulsory counterclaim, or a cross-claim, which is always compulsory, is not

incorporated in the defendant’s answer and not set up in the main action, it is deemed waived.

What does this mean?

- This means, let us say the defendant has a compulsory counterclaim against the plaintiff.
Under this rule, he should set that compulsory counterclaim up against the plaintiff in the main
action.

- If he also has a cross-claim against his co-defendant, he should set it up in his answer to the
complaint.

- Now the effect is, if he did not set it up, he is deemed to have waived his counterclaim and
cross-claim and cannot file a separate action against the plaintiff or his co-defendant for his claim
in the counterclaim and cross-claim.

Now, if the plaintiff determines from the record of the case that the defendant failed to file his answer
within the period prescribed by the rules or fixed by the court. What is his remedy?

- His remedy is to declare the defendant in default.

- Now, if he fails to file this, the court cannot motu propio declare the defendant in default. The
Court has to wait for the motion of the Plaintiff.

After declaring the defendant in default, what can the Court do?

1. Render a Judgment based on the Allegations of the Complaint or

2. Require the plaintiff to present his evidence ex parte, without the participation of the
defendant, after which, the court may render Judgment based on the evidence presented by the
Plaintiff.

While a defendant who has been declared in default can no longer participate in the proceedings, he
remains entitled to be given notice to all proceedings subsequent to his declaration in default.

Before the Court can declare in default the defendant, the plaintiff must serve him a copy of the motion
even before filing his motion with the court. So the defendant will not be surprised if he would receive an
order declaring him in default. He cannot plead that he is surprised.

What is the remedy of a defendant declared in default?

- The Rules provide that at any time after the defendant receive an order declaring him default
but before judgment, the defendant may file a verified motion on the ground that he was prevented
from filing his answer within the prescribed period due to fraud, accident, mistake or excusable
negligence and by showing to the court that he or she has a meritorious defense.

Because the court can declare him in default, the court must first file a motion to declare him in
default and the plaintiff must first serve him a copy of the motion even before the plaintiff can file
his motion with the court.

Q: So what is the remedy of the defendant who has been declared in default?

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A: The Rules provide that at any time that the defendant receives the order of but before judgment, the
defendant may file a verified motion to lift the order of default on the ground that he was prevented from
filing his answer within the prescribed period by reason of fraud, accident, mistake or excusable negligence
and by showing to the court that he has a meritorious defense.

In certain cases, despite the failure of the defendant to file his answer within the prescribed period, the
Court may not declare the defendant in default.

Q: What are these cases?

A: These are actions for nullity of marriage, actions for annulment of marriage and lastly actions for legal
separation.

What is common to all of these actions, class? Do you know? Do you know what is common in these 3
actions? All these 3 actions would involve spouses. Spouses who still love each other but spouses who
have learned to hate each other. Otherwise one spouse this kind of case if they still love each other. The
only reason why these cases are filed is because the spouses have lost their love for each other and what
replaces the love between them is what? What replaces love between spouses? What replaces it? Hate,
class hate replaces love and when hate takes over love the spouses can no longer tolerate each other,
they cannot tolerate. They do not want to see the face of the other.

Q: Why is it that in these actions for nullity of marriage, actions for annulment of marriage and actions for
legal separation, the court cannot declare the defendant in default even if he does not file or she does not
file his/her answer.

A: The reason for this class is simple. Since the parties in these cases as I have said are spouses who are
estranged from each other. They have parted ways already and therefore both of them want the marital
chain binding them together to be broken, to be severed. They want the marital chain binding them (to each
other) to be broken, to be cut so these spouses who are the parties to these cases they tend to collude.

How? By one spouse agreeing to file the petition and the other spouse agreeing not to file an answer. So
there is collusion, you can expect collusion between the spouses because both of them want the marital
chain binding them to each other to be broken with finality, to be severed. They have nothing to do with
each other anymore. They want to separate. They want to put distance between them. OK?

So that´s the reason the spouses who are parties to these cases tend to collude. So to prevent them from
colluding, they cannot declare the defendant in default even if he does not file his answer. So the
plaintiff/petitioner regardless of whether the defendant file his answer, has to present evidence and in
addition the government represented by the Solicitor General will interfere, take part in these cases. To see
to it that the petitioner or the plaintiff is not fabricating evidence because the plaintiff may just do that, just
for the court to grant petition so that their marriage to each other will be annulled or declared null and void
from the beginning or that they will allowed to live separately from each other as far as possible. Ok?

CASES UNDER RULE 9

BDO v. Transipeck, in this case the Supreme Court said the proper remedy for an order of default is not a
motion for reconsideration. It is not a motion for reconsideration but a verified motion to lift order of default.

Some defendants who have been declared in default, especially those who are represented by lawyers
who graduated from Ateneo, or UP or San Beda, file a motion for reconsideration of the order of default
and what happens class? The Court will just deny them because that is not the proper motion to file when
a defendant is declared in default.

The proper motion is a verified motion to lift the order of default on the ground that the defendant was
prevented from filing his answer within the prescribed period due to fraud, accident, mistake or excusable
negligence.

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Salvador v. Rabaja, in this case the Supreme Court said the defendants failure to attend a pretrial
conference is not a ground to declare him in default although the effect of the failure of the defendant to
appear during the pre-trial is the same as being declared in default but it is not proper for the court to declare
the defendant in default if he fails to attend the pretrial conference.

The effect of the failure of the defendant to attend the pretrial conference is that the court will issue an order
allowing the plaintiff to present evidence ex parte. If that sounds familiar it’s because that is the effect of the
defendant being declared in default under the old rules class before the 1997 amendments (1997 rules of
Civil Procedure) when a defendant it was practice that defendant fails to appear without a valid reason in
the pretrial conference. The plaintiff will move that he be declared AS IN DEFAULT not in default but “AS
IN DEFAULT” The court will issue an order declaring the defendant as in default.

Under the 1997 Rules on Civil Procedure up to now that is no longer done. The term as in default is
no longer used. When the defendant fails to appear without a valid course during the pretrial conference
the court upon motion of the plaintiff or even motu proprio may issue an order allowing the plaintiff to present
evidence ex parte, not to declare the defendant as in default. But of course they have the same effect. The
Court may allow the plaintiff to present his evidence ex parte.

Vite v. Jonas, the Supreme Court said that a defendant who has been declared in default may not appeal
the order declaring him in the default.

Let me repeat. Now, in the case of Vite v. Jonas the Supreme Court a defendant who has been declared
in default may not appeal the order declaring him in default. But the defendant who has been declared in
default may appeal the judgement of the court. The judgment rendered by the court after he was declared
in default so the defendant who has been declared in default cannot appeal the order declaring him
in default but may appeal the judgment by the default. So that is what the defendant may appeal not the
order of default but the judgment by default. That’s the doctrine in the case of Vite v. Jonas, that is all you
have to remember about this case.

You can state it in one short sentence so once you have reduced the substance of a case in one short
sentence there’s no difficulty at all. So OK that’s the benefit of stating the doctrine of a case in one or two
sentences. It’s easy to remember the doctrines if it is, they are stated in one or two sentences.

Since the judgment by default you know that a judgment by default is rendered by the court after the
defendant has been declared in default so most likely the judgment is either based only on the allegations
in the complaint or based on the evidence presented by the plaintiff ex parte. You know what happens
when the court declares the defendant in default? The Court may render judgment based solely on the
allegations of the complaint or the court may require the plaintiff to present the plaintiff to present evidence
ex parte and then render judgement based on the evidence presented by the plaintiff. So you can see that
the defendant was not able to present any evidence he was not even able to file his answer OK so since
that is what happen when a judgment by default is rendered by the court on what grounds may the
defendant who have been declared in default and against whom a judgment by default was rendered may
appeal the judgment by default. On what grounds will he appeal the judgment by default? He was not able
to present any evidence, was not even able to file his answer.

So in the case of Vite v. Jonas, the Supreme Court also said that the defendant who was declared in
default may appeal the judgment by default on the following grounds: first is that the amount of the judgment
is excessive or is different in kind from what was prayed for in the complaint.

I failed to mention in class that a judgment by default may not grant an award which was prayed for in the
complaint or may not grant an award which is in excess of what was prayed for in the complaint. So even
if plaintiff was required to present evidence and the plaintiff was able to prove that he’s entitled to more
damages than what he prayed for in his complaint the court cannot grant him an award which is greater
than what he prayed for although he was able to prove that he deserve greater damages, a bigger amount
of damages he was able to prove but the court cannot grant him award damages more than what he prayed

51
for. That is the limitation of a judgment by default. That is one ground on which the defendant who was
declared in default may appeal a judgment by default.

Another ground would be that the plaintiff failed to prove the material allegations in the complaint. This will
happen if the court required the plaintiff to present evidence ex parte. So if the court requires the plaintiff to
present evidence after declaring the defendant in default. The plaintiff has to present evidence to prove the
allegations in his complaint, failing in that then it may not be proper for the court to grant him damages
which he was not able to prove. Because the court required the plaintiff to present evidence. So that’s one
ground that the plaintiff failed to prove the material allegations in the complaint and lastly the judgment by
default is contrary to law. So even if the defendant was not able to present any evidence he wasn’t even
able to present his answer if the judgment by default is contrary to law, that would be a ground for an appeal
of the judgment by default.

Rule 10: AMENDED AND SUPPLEMENTAL PLEADINGS

A party may amend his pleading once as a matter of right at any time before the answer to his pleading is
served on him.

So a party may amend his pleading once as a matter of right at any time before the answer to his pleading
is served on him. Take note “is served on him” not is filed with the court but is served on him. OK, before
the answer is filed with the court, it should first be served on the plaintiff. If the pleading sought to be
amended is a reply which cannot be responded to. There’s no answer to a reply then it may be amended
as a matter of right within 15 days from it’s filing. 15 days that’s when a reply is filed under 2019
amendments. 15 under the old rules that’s only 10 days but under the amended rules it’s now 15 days. 15
days from notice of the answer the plaintiff may file his reply. So within the 15 day period the plaintiff may
amend the reply as a matter of right.

Q: What happens after the responsive pleading has already been served on the pleader? May the pleader
still amend his pleading?
A: The answer is yes.

Now what happens after the responsive pleading has already been served on the pleader? May the
pleader still amend the pleadings?

Yes, but he may only do so with leave of court. After the pleader has been served of the copy of the
responsive pleading of the adverse party, he may amend the pleading only with leave of court. But there is
an exception to this rule, if the amendment sought to be made is intended only to correct typographical or
clearly clerical errors in the pleading, then it may be amended by the court moto propio or upon motion of
the pleader. There is no need to set the motion for hearing because the court by itself, moto proprio, may
order the amendment or upon motion of the party. That is even the responsive pleading has already been
served on the pleader.

Section 5, Rule 10
If a party is able to present an evidence to prove a fact which he did not alleged in his pleading, he need
not amend his pleading to conform to the evidence that he was able to present. This a departure from the
old rule, under the old rule, when a party fails to allege a fact which is essential to his case or his cause of
action, he cannot later on present evidence to prove that fact which he did not allege in his pleading.

Suppose evidence has been admitted to prove a fact not pleaded by a party or not alleged in his pleading,
under the old rules, said party may move for the amendment of his pleading to conform to evidence. But
under the amended rules, there is no need for that. If a party fails to allege a fact in his pleading but was
able to present evidence to prove it, he need not move for the amendment of his pleading to conform to the
evidence he was able to present. It is no longer necessary to amend his pleading anymore, his evidence
will remain on record and will be considered by the court without requiring him to amend his pleading to
conform to evidence that he was able to present.

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How is an amended pleading filed? Let us say if a party amended his pleading as a matter of right
or allowed by the court to amend his pleading, how will he file and what kind of pleading should he
file?

Under Rule 10, when a party is allowed to amend his pleading, he should serve on the adverse party a
copy and file with the court a new copy of the entire pleading incorporating the amendments which as a
matter of practice should be underlined. So the court will know what portion of the pleading were amended.
The amendments introduced should indicated with appropriate mark. As a matter of practice based on my
experience, when an amended pleading is filed, the amendments introduced are underlined, that’s
appropriate mark to indicate amendments.

What does an amended pleading do to the pleading that was amended?

An amended pleading supersedes or takes the place of a pleading that was amended.
When amended pleading supersedes the pleading that was amended, it is as if, the pleading that was
amended does not exist anymore although it remains on the record of the case. That’s is the rule but there
is an exception. Admissions made by the pleader on the superseded pleader may still be given in evidence
against the pleader as if it is an extrajudicial admission.

Why as if it is an extrajudicial admission?

Because normally admission made in a pleading is a judicial admission. A judicial admission does not
require proof which means that a party benefited by the admission did not present it in evidence and the
court will consider it. But admission made in the pleading that has been superseded under normal condition
should be considered as a judicial admission because it was made by the party in the course of the
proceeding of the same case. But if that pleading has already been superseded, the admission made in
that pleading may still be given in evidence against the pleader but no longer considered as judicial
admission because it is now an extrajudicial admission. Because extrajudicial admission may be given in
evidence against the party who made the admission.

Why should a party file a supplemental pleading instead of amending his original pleading?

There is a reason for that because a party has no choice but to file, always with leave of court, a
supplemental pleading if he wants to set forth transactions, occurrences or events which happened after
he has filed his pleading. He cannot just amend his pleading to set forth these transactions, occurrences or
events which happened after he has filed his pleading because they happened after he filed his original
pleading.

Supplemental pleadings may only be filed with leave of court. The party must first file a motion for leave to
file a supplemental pleading. He cannot just file a supplemental pleading as a matter of right. It is always
with leave of court.

What is the effect of filing a supplemental pleading to the pleading that is supplemented?
Unlike an amended pleading, a supplemental pleading does not supersede or take the place of pleading
supplemented. But in fact, a supplemental pleading is an addition to the pleading that is supplemented.

Cases under Rule 10

1. Yujuico v. United Resources Asset Mgt. Corp

The SC said that as a matter of judicial policy (meaning policy of the Supreme Court), courts should treat
motion for leave to file amended pleading with liberality, especially if the motion is filed at the early stages
of the proceeding or at least before the trial. The purpose is to ensure that every case may, as far as
possible, be determined on its real facts and that multiplicity of suits be prevented.

2. Remington Industrial Sales Corp v. CA

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The SC said that since a motion to dismiss is not a responsive pleading, the filing thereof does not preclude
the plaintiff from amending the complaint as a matter of right.

RULE 11, WHEN TO FILE RESPONSIVE PLEADINGS

Q: When should a complaint be responded to?

A: Within 30 days from service of summons, unless the a different period is fixed by the court.

Take note: All periods are in calendar days. It is understood that all the periods are in calendar days.

Q: When should an amended complaint be responded to?

A: It depends on whether it is filed as a matter of right or with leave of court.

If the amended complaint was amended as a matter of right, it shall be responded to within 30 days from
service of the amended complaint. Before the plaintiff files the amended complaint as a matter of right, he
must first serve a copy of the amended complaint on the defendant. So the defendant will file his answer
within 30 days from the receipt of that copy of that amended complaint, amended as a matter of right.

Q: What about if the amended complaint was amended with leave of court?

A: The defendant shall answer the amended complaint within 15 days from notice of order admitting the
amended complaint.

Q: What is the reason for the difference in periods if the amended complaint is amended as a matter or
right or with leave of court?

A: The reason for that is when the amended complaint is amended as a matter of right, the first time that
the defendant will see a copy of the amended complaint – remember he has not filed his answer yet. He
has been served summons with a copy of a complaint. Before the defendant can file an answer to the
complaint, he will receive a copy of an amended complaint from the plaintiff.

The first time that the defendant will see a copy of the amended complaint is when he is furnished by the
plaintiff a copy of the amended complaint. So, he is given 30 days as if he is answering the complaint itself.

Q: If the amended complaint was amended with leave of court, when will be the first time that the defendant
will see a copy of that copy of that amended complaint?

A: The first time that the defendant will see a copy of the amended complaint, if it is to be amended with
leave of court, is when he is furnished a copy of the motion for leave to file amended complaint by the
plaintiff. So before the plaintiff will file his motion for leave to file amended complaint, he must first furnish
the defendant a copy of that motion with a copy of the amended complaint already attached to the motion.

So, what will happen within 5 days, under the 2019 Amendments, from the defendant’s receipt of that
amended complaint? He is required to file his objection or comment to the motion for leave. And then he
will file it with the court. It will take some time for the court to resolve the motion for leave to file amended
complaint, so by that time perhaps 20 days have already elapsed. And then the defendant will wait for the
order of the court either denying the motion or admitting the amended complaint. So by the time the
defendant received the order of the court admitting the amended complaint, perhaps a period of 30 days
would have elapsed. And from the time he receives the order, he is still given 15 days. So, he has with him,
by the time he receives the order of the court admitting the amended complaint, he would have 20 or 30
days within which to study the amended complaint. And when he receives the order of the court admitting
the amended complaint, he will still have a period of 15 days. In effect, the defendant has a longer time

54
within which to prepare his answer to an amended complaint with leave of court than one that is amended
as a matter of right.

Q: When should a supplemental complaint be responded to?

A: A supplemental complaint may be answered within 20 days from notice of the order admitting the same,
unless a different period is fixed by the court.

A supplemental complaint or pleading may only be filed with leave of court, there is no filing of a
supplemental complaint or pleading as a matter of right. Because a supplemental pleading or complaint is
always filed with leave of court, when the defendant receives a copy of the plaintiff’s motion for leave to file
supplemental complaint, he will receive with that motion a copy of the supplemental pleading already. And
it will take the court around 20 days or more within which to issue the order admitting the supplemental
complaint. Long before the defendant receives a copy of the order of the court admitting the supplemental
complaint, he would have with him a copy of that supplemental complaint for about 20 or 30 days. But he
is given a period of 20 days from receipt of the order admitting the supplemental complaint within which to
file his answer.

These periods within which to answer the complaint, the amended complaint, the supplemental complaint,
also applies to when to file a responsive pleading to a counterclaim or cross-claim.

Q: When should a foreign private juridical entity file its answer to the complaint?

A: Within 60 days after receipt of summons by such entity, provided that the service of summons is made
on the government official designated by law to receive the same.

It is a government official authorized by law which will receive the summons from the court and serve it on
the foreign private juridical entity. So within 60 days from service of summons on the foreign private juridical
entity by the government official authorized to receive summons and serve it on the FPJE, it has to file its
answer to the complaint.

Q: When should a third- (fourth, etc.) party complaint be responded to?

A: Within 30 days after service of summons on the defendant of the third- (fourth, etc.) party complaint.

The third- (fourth, etc.) party complaint shall be responded to in the same manner as a complaint may be
responded to. Since the rule on filing the answer to the complaint is that the answer shall be filed within 30
days form service of summons, that rule shall also govern the filing of an answer to a third- (fourth, etc.)
party complaint.

This rule implies that the third- (fourth, etc.) party defendant will also be served summons.

Q: The defendant in the counterclaim or a cross-claim is not served summons. Why is that?

A: Because the defendant in the counterclaim or a cross-claim is already a party to the action. The purpose
of serving summons is for the court to acquire jurisdiction over the person of the defendant. The defendant
in the counterclaim is the plaintiff; the defendant in a cross-claim is a co-defendant of the cross-claimant.
They are not served summons because the court has already acquired jurisdiction over their persons. The
court already acquired jurisdiction over the plaintiff when he filed the complaint. The court already acquired
jurisdiction over the defendant in the cross-claim, being a co-defendant, when he was served a summons
in the main action.

The defendant in a third- (fourth, etc.) party complaint need to be served summons because they are not a
party in the main action. The court does not have jurisdiction over the third- (fourth, etc.) party defendant.

Q: When should an answer, which is a responsive pleading, be responded to?

55
A: Within 15 days from service of the pleading responded to. The responsive pleading to an answer is a
Reply.

Q: May the court, upon motion of a party, extend the periods provided under Rule 11? May the court reduce
the periods provided under Rule 11?

Yes, the court may increase the periods provided under Rule 11. However, the court cannot reduce the
periods because it is prescribed by the rules.

The court, upon motion of a defending party, may increase the period but it cannot reduce. The court has
no power to change the Rules of Court, particularly Rule 11.

RULE 12: BILL OF PARTICULARS

Let’s go now to Rule 12, Bill of Particulars.

Q: When and by whom may a Motion for a Bill of Particulars or a more definite statement be filed?

A: The defendant (in the main action) or any defending party (in the counterclaim, cross-claim, or third-
party complaint) may file a Motion for Bill of Particulars at any time before filing a responsive pleading.

Q: So, if it is a responsive pleading to a complaint (an Answer), within what period may the defendant file
a Motion for Bill of Particulars?

A: The defendant may file a Motion for Bill of Particulars at any time within 30 days from service of
summons, but before filing his answer to the complaint.

Q: On what ground may the defendant file a Motion for Bill of Particulars?

A: That there are matters in the complaint that are not stated with sufficient particularity or definiteness.
Either the allegations in the complaint are vague and could not be easily understood, or they are susceptible
to different interpretations. Or the allegations in the complaint lack details. So the defendant would want the
court to order the plaintiff to state those matters in the complaint with more particularity. More clearly and
to add details.

The defendant wants the court to order the plaintiff to state those matters in the complaint with more
particularity, more clearly and to add details to the allegations in the complaint. That’s the ground. There
are matters in the complaint that are not stated with sufficient particularity and/or definitely.

For what purpose may the defendant file for a motion for bill of particulars? He should have a purpose for
filing a bill of particulars. What is that purpose? It is there under Section 1 or Rule 12.

The purpose of the defendant in filing the motion for bill of particulars is to enable him to properly prepare
his answer to the complaint. Why? What is his problem? He cannot properly prepare his answer to the
complaint because there are matters in the complaint that are vague, that lack details, so he cannot
prepare his answer. So, what does he do? He files a motion for bill of particulars, so that he can now
prepare his answer. There are matters in the complaint that are not stated with sufficient particularity--
they are vague, they lack details.

In criminal actions, the accused may also file before entering his plea a motion for a bill of particulars. The
accused may file at any time before the accused enters his plea. What is the purpose of the accused
when he files a motion for a bill of particulars? To enable him to plead property and to prepare for trial.

But in civil actions, the purpose of the defendant in filing a motion for a bill of particulars is to enable him
to properly prepare his answer to the complaint, not to prepare for trial.

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What may the court do upon the filing of the defendant of a motion for a bill of particulars? What does
Section 2 of Rule 12 provide?
1. The court may deny or grant the motion for a bill of particulars outright. What does “outright”
mean? What is implied here is that the court may grant or deny the motion for a bill of particulars
outright, meaning, without a hearing. A motion for a bill of particulars, before the 2019
amendments, under jurisprudence, is a litigious motion. It should be set for hearing and the
adverse party will be the plaintiff should be granted a hearing. But under Rule 12, the court may
grant or deny the motion without a hearing, without giving the plaintiff a hearing.
2. The court may allow the parties to be heard. The court, motu proprio, in the exercise of its
discretion, may set the motion for hearing. It is the court now that will set the motion for hearing.

Before, when a defendant files a motion for a bill of particulars, he has to include his motion a notice of
hearing, because a motion for a bill of particulars is a litigious motion. And the court cannot just grant the
motion without giving the plaintiff a hearing. But now, under Section 2 of Rule 12, the court may grant or
deny the motion without a hearing.

Suppose that the court grants the motion for a bill of particulars filed by the defendant:
1. What should the plaintiff do? The plaintiff shall file a bill of particulars.
2. When shall the plaintiff file the bill of particulars? Within ten days from the notice of the order.
3. What is the consequence if the plaintiff fails to file the bill of particulars within ten days from the
notice of the order granting the motion for a bill of particulars? The court may order that the
complaint be stricken out of records, or a portion of the complaint to which the motion for a bill of
particulars is directed. if the motion for a bill of particulars of the defendant is directed to the entire
complaint, and the plaintiff fails to comply with the order of the court, the court may order that the
entire complaint be stricken out of the records.
4. What happens if the complaint is stricken out of the records? The case will be dismissed.
5. What if the motion for a bill of particulars is directed only to a portion, one allegation in the
complaint? The court may order the striking out of that part or portion of the complaint to which
the motion for a bill of particulars was directed.

Let us go now to a situation where the court denies the motion for a bill of particulars.
1. So when the court denies the motion for a bill of particulars, what should the defendant do? The
defendant should file his answer.
2. Within what period? Within the period to which he was entitled at the time he filed his motion for a
bill of particulars. Remember, the motion for a bill of particulars is filed at any time before the
defendant files his answer to the complaint, or within 30 days from service of summons. If a
defendant files a motion for a bill of particulars, let us say 20 days after service of summons--on
the 20th day of the 30-day period for filing his answer. Later on, he received the order of the court
denying his motion for a bill of particulars. Within 10 days from the receipt/notice of order of the
court denying his motion for a bill of particulars.
3. Suppose he filed a motion for a bill of particulars on the 29th day of the 30-day period, and then
later on he received the order of the court denying his motion for a bill of particulars? Within 5
days from the receipt/notice of order of the court denying his motion for a bill of particulars. The
Rules provide that the period shall not be less than five days.

RULE 13

In the course of a trial of the case, a civil case, the parties will be serving on the other party pleadings,
motions or other papers. And after serving a copy of a pleading, motion or other paper on the other party,
the pleader will file his pleading, his motion with the court. So service of pleading, motions comes first,
before the filing. A party cannot file to the court any pleading, motion, or other paper without furnishing the
other party a copy of the pleading, motion or other paper.

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Let us start with service of pleadings, motions or other papers. What is service? Service is the act of
furnishing the adverse party a copy of the pleading, motion or other paper.

What is filing? When the word used is “file,” that is the act by a party of submitting to the court the original
copy of a pleading, motion or other paper.

Take note: by the word “service” alone, you should know that it is service on the other party. When the
word used is “file,” you do not file with the other party. You file with the court. You serve a motion,
pleading or other paper on the other party.

Let us start with service of pleadings, motions or other papers. What are the modes of service of
pleadings, motions or other papers? Rules 13 prescribes several modes:
1. Personal service
2. Registered mail
3. Sending the pleadings, motions or other papers through an accredited courier
4. Sending or transmitting the pleadings, motions or other papers by email
5. Transmitting the pleadings, motions or other papers by fax
6. By other electronic means as the court may allow, and as may be allowed by International
Conventions to which the Philippines is a member

The preferred mode of service of pleadings, motions or other papers is personal service. The other
modes of service may be resorted to only if personal service is not possible.

How is personal service made? By personally delivering a copy of pleading, motion or other paper to the
other party or to his counsel. If the other party has a counsel on record, then the service should be on his
counsel, not to the party himself. If the party has a counsel on record, the service of pleadings, motions or
other papers should be on the counsel.

Sometimes, it is not possible to personally deliver a copy of the pleading, motion or other paper to the
other party or his counsel. By the way, “personally” here does not refer to the other party. “Personally”
describes the person making the delivery--the pleader, the movant or his messenger who has made the
delivery. I have to explain that because when it comes to service of summons, it will be different.

If the pleadings, motions or other papers cannot be delivered personally to the other party or his counsel,
there are other ways of effecting personal service. Still personal service, although the copy of the
pleading or motion is not delivered personally to the other party himself. Another way of effecting personal
service may be done. How?
1. By leaving a copy of the pleading or motion at the office or place of business of the other party or
his counsel with a person in charge of the office or place of business. If the motion or pleading
can not be delivered to the party himself or to his counsel, there is another way of personal
service.

So if the motion or the pleading cannot be delivered to the party himself or to his counsel there is another
way of effecting personal service, it’s still personal service by leaving a copy of the pleading or motion at
the office of the other party or his counsel with a person who is in charge of the office. That is also personal
service. Although the pleading or motion is not delivered to the other party himself or his counsel. That is
still personal service by leaving a copy of the pleading or motion at the residence of the other party with a
person in the charge of the office.

If that cannot be done then perhaps the other party or his counsel has no known office then there is another
way of effecting personal service by leaving a copy of the pleading or motion at the residence of the other
party or his counsel with a person of sufficient age, at least 18 years of age and of sufficient discretion
residing in the residence of the other party or residence of the counsel. So all of these are service in person.
First by personally delivering the pleading or motion to the other party or his counsel if that is not possible,
another way is by leaving a copy of pleading or motion at the office of the other party or his counsel with a
person who is in charge of the office. If that is not possible, there is a third way of effecting personal service

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it is by leaving a copy of the pleading motion at the residence of the other party or his counsel with a person
who is at least 18 years of age, of sufficient age, and of with sufficient discretion who is residing at the
residence of the other party or his counsel.

Take note class that all of these are personal service. If personal service cannot be done then there is
another mode you go to the second mode, which is by registered mail. By registered mail. So instead of
personal service, the copy of the pleading or motion may be sent by registered mail to the other party or
his counsel by registered mail. So that’s the second mode of effecting of service. By registered by mail.
First is by personal service, if that is not possible by registered mail. If service by registered mail is not
possible then the pleading may be served by an authorized courier. Frankly, I do not know what courier is
authorized by the court. The 2019 amendments had already taken effect since last May 1st but I don't really
know what private couriers are accredited by the Supreme Court. Accredited courier.

Is LBC an accredited courier? Who would know? Perhaps someone knows?

No one knows? Is LBC is an accredited courier so that we can serve a pleading to the other party or his
counsel by sending the pleading or motion by LBC, nobody knows?
Student: Sir, we do that in office, we sometimes send the pleading through LBC.
Sir: I also do that but aside from sending the pleading or motion through LBC, I also before sending it
through LBC, I first send it by registered mail. So that the rule is if whether it is sent through LBC or ordinary
mail if it is sent by a LBC or ordinary mail then the date of filing would be the actual receipt, the date of
service would be the actual receipt of the party. So by the time the pleading or motion is received by the
other party the reglementary period for filing it or serving it may have already expired. But if it is by registered
mail the rule is the date of mailing is the date filing. But if it is by ordinary mail which is not recognized by
the rules it is the actual receipt of the other party is the date of service so if the period may have date may
have already expired or survey the other party. So what I do is with registered mail
and then so that the other party or the court may receive it early, I also send the same pleading or motion
by LBC. You’re working in a law office Ms. Marcelo?
*chika with student

If all the other modes by personal service, by registered mail, by accredited courier, by fax, by email are
not possible then you go to other electronic means. I really do not the other electronic means. I know email,
I know fax, I do not know what are the other electronic means in which you can send or transmit a pleading
or motion. Do you class? What are these other electronic means? Anyway let us not be bothered by it. Why
is it important that the pleading or motion i served properly on the other party or his counsel. It is important
because when you file the pleading or motion, the court will not accept your pleading or motion if there is
no proof of service on the other party. That is the first thing that the receiving clerk would do is to look for
whether there is proof of service on the other party. If there is none, the admitting/ receiving clerk of the
court would not accept the pleading or motion. So it is important to properly serve the pleading or motion
on the other party or his counsel.

If all these modes of service are not possible there is another way of service that is recognized by the rules.
If all the other modes of service are not possible then the party may resort to what is called substituted
service of pleadings or motion. Substituted service. But the other modes must first be exhausted, it is only
after the other modes are not possible that the part may resort to substituted service.

Q: How is this done?

A: So when the party cannot serve his pleading or motion on the pether party by all the other modes of
service then what he will do is to furnish the clerk of court a copy of that pleading or motion with proof of
failure of personal service or other modes of service and that of submitting the pleading or motion with the
clerk of court that would be considered as substituted service to the other party although the other party
was not served, there is no other way of serving the pleading or motion on the other party the party may
just submit a copy to the clerk of court with an explanation with proof of failure of service by registered mail
or personal service or by the other modes, then that furnishing the clerk of court of a copy of the pleading
or motion will served as a proper service on the other party. So that the party who is filing the pleading or

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motion may now file the pleading or motion with the court and the court will accept or admit the pleading or
motion. That is substituted service.

There is also called presumptive service.

Q: What is this presumptive service?

A: Presumptive service is a presumption that a party has been served a notice of a setting in the court.
Setting of a hearing, if the notice of the setting has been sent to him by mail after the lapsed of certain
period depending on whether the party being served is residing in the same judicial region where the courts
sits or residing outside the judicial region where the court sits. So that presumptive service. A party has
been presumed to have been served a notice of a setting, he was served by a registered mail after the
lapse of a certain period.

So if the party being served is residing in the same judicial region where the courts sits and the notice has
been sent to him by registered mail after the lapse of 20 days from the mailing of the notice, he will already
if residing in the same judicial region where the court sits, he will be presumed to have already received the
notice of the setting after the lapsed of 20 days from the mailing if he is residing in the same judicial where
the court sits, he will be presumed to have already received the notice after the lapse of 20 days from the
date of mailing.

If the party being served is a residing outside the judicial region where the courts sits he will be presumed
to have received the notice of setting by the court after the lapse of 30 days from the date of mailing of the
notice. That is what is referred to as presumptive service. This is new, this was introduced by the 2019
amendments under the old rule that is the rule prior 2019 amendments, there was no presumptive service.

Let us go filing. Filing. How? What are the modes of filing?

A: There are only 2 modes of filing. We are now talking about submitting to the court a copy of the pleading
or motion after it has been served on the other party or his counsel. Filing. There are 2 modes of filing a
pleading or motion with the court either by personal filing with the court. Meaning the party himself who is
filin the pleading or motion, or his messenger will go to court and personally submit to the court a copy of
the pleading or motion. That is personal filing. The date of filing, because it is personal, the date of personal
filing with the court, the date of receipt of the pleading or motion would be the date of filing. By the way
perosnal filing is the preferred mode of filing. Personal. If personal filing is not possible perhaps due to
distance or the party has no messenger or the counsel of the party who is filing the pleading or motion has
no messenger or there is great distance between the office and the court then the party may resort to the
second mode of filing which is by registred mail.

As I mentioned earlier when the filing is done by registered mail the date of filing is the of mailing is deemed
as the date of filing, suppose the pleading or motion is mailed today by registered mail, sent by registered
mail today the court the court will receive that perhaps after 5 days or 10 days from today, but today is the
date of mailing. The rules says the date of mailing is the date of filing so even if the court will receive the
pleading or motion 10 days after the mailing but since date of mailing is the date of filing it is as if the
pleading or motion is filed not upon the receipt of pleading or motion of the court but on the date when it
was sent by registered mail. So if I usually resort to filing by registered mail. Let us say that today is the last
day for filing and I just finished the pleading or motion. There is no time for me, I have no messenger. There
is no time for me to go to the court in Quezon City. I hold my office at my residence in Las Pinas so I finished
the pleading or motion at 4:30 on the last day of the filing so I cannot go to Quezon City to file personally
the pleading or motion so what I do is to go to the post office here in Las Pinas, it is very near my residence
and office so I can go there within 10 minutes so I’ll just mail it by registered mail and I would have filed the
pleading or motion seasonably because the date of mailing is the date of filing.

By the way there are certain papers that could not be filed or could not be served by the other modes other
than by personal service or by registered mail. So these papers may only be served by personal service or
by registered mail. By the way class, the court shall also serve judgements or orders on the parties. The
court will serve judgments or orders or other papers on the parties. So the court if it will serve a copy let us
say of a subpoena on a party or the exhibits of a pleading or an order on a party. The court cannot do it by

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email or by fax. The court has to serve the subpoena on a party only by personal service or by registered
mail. So there are papers that could not be served on the parties by the court by email, by fax or by other
electronic means only by personal service or by registered mail. These papers are subpoena, or protective
orders so when the court issues a protective order a Temporary Protection Order the court cannot serve
on a party by email, by fax or by electronic means. The court has to serve it either by personal service or
by registered mail.

RULE 14: SUMMONS

Good morning, class. I am giving you this supplemental lecture for Rem 1 covering Rule 14 for a good
reason. No rule in the rules of court has been more impacted by the 2019 amendments than Rule 14. Many
of the significant changes introduced by the 2019 amendments, either incorporated as textual provisions,
the rulings of the supreme court in some cases listed in your syllabus or they rendered other rulings
inapplicable. And so class, it is important for us to read, study and discuss these important changes in Rule
14.

Summons is one of the most important, if not the most important subject in civil procedure. You know that
service of summons is the only way by which a court acquires jurisdiction over the person of the defendant
which is not dependent on his voluntary submission to the jurisdiction of the court. Under normal conditions,
a defendant would not want to voluntarily submit himself to the jurisdiction of the court. In the few instances
that I learned that a defendant appeared to have voluntarily placed himself under the jurisdiction of the
court, it turned out that he did so by mistake or incompetence of his counsel. It is therefore important that a
court has a way of acquiring jurisdiction over the person of the defendant whether the defendant likes it or
not. And that way is by service of summons.

While it is essential for the court to acquire jurisdiction over the person of the defendant in one class of
cases, it is not necessary in another class of cases. Before we can even start to discuss summons therefore,
we have first to identify the class of cases where service of summons is essential and the other class of
cases where it is not. We are ofcourse talking about actions in personam in the one hand and actions in
rem and quasi in rem on the other hand. By the way, this is a totally different classification of actions
between personal actions and real actions.

An action for forcible entry is both a real action and an action in personam. An action for nullity of marriage
is both a personal action and an action in rem. An action for sum of money is both a personal action and
an action in personam. And an action for non-registration is both a real action and an action in rem. In
actions in personam, it is important that the defendant be properly served summons because it is essential
that the court acquires jurisdiction over him. In actions in rem and quasi in rem however, the court need not
acquire jurisdiction over the defendant. So how do we distinguish an action in personam from an action in
rem or quasi in rem?

An action in personam is one which is directed against a specific defendant seeking to make such defendant
personally liable to pay a certain sum of money or to deliver property or to do or not to do a particular act.
Take note that the main feature of an action in personam is that it is directed against a specific person, not
just any person. Another unique feature of an action in personam is its purpose which is to make the specific
defendant personally liable for something. Either to pay the plaintiff a fixed sum of money or to deliver to
the plaintiff property which may be real or personal property or to do or not to do a particular act. Since the
purpose of an action in personam is to make the specific defendant personally liable for something, it
becomes necessary for the court to acquire jurisdiction over him so that when the court renders a judgment,
such judgment can be enforced against the defendant.You’ll better understand what an action in personam
is if we cite some examples.

Good examples of action in personam are actions for sum of money, actions for damages, actions for
forcible entry and unlawful detainer, actions for specific performance and actions for injunction. You cannot
file any of these actions without impleading a specific defendant and without praying that the defendant be
ordered to pay you the plaintiff a sum of money or to deliver to you a particular property or to do or not to
do a certain act.

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Let’s go now to action in rem. The word “rem” by the way is a latin word which means “thing” or “property”.
It is the same word as the latin word “res” which is found in res ipsa loquitor which means the thing speaks
for itself and in res judicata which means a thing already adjudicated. The reason why res and rem have
different endings is that in latin, nouns change their ending depending on how they are used in a sentence
whether as subject or as an object. It is res if it is used as a subject and rem if it used as an object. Literally
therefore, action in rem means action directed to a thing.

An action in rem therefore is one that is directed to a res which may be property or the status of a plaintiff
seeking to bind any person, take note class, any person, not a specific person, who may have an interest
in the res. Let me repeat the definition of an action in rem. An action in rem is one that is directed to a res
which may be property or the status of the plaintiff seeking to bind any person who may have an interest in
the res or property. You will note that the action in rem is directed not against a person in particular but to
a specific property. This is the reason why in almost all actions in rem, there is no defendant named and if
there is, he is not a real defendant but only a nominal one. A judgment in an action in rem will be all about
the res or property to which the action is directed. It would not make any person liable for any obligation
except that if it happens that a person has an interest in the res or property to which the action in rem is
directed, such interest would be affected by the judgment.

They say that an action in rem is an action against the whole world. This is ofcourse hyperbole. More
precisely, it means that while an action in rem does not seek to make any specific defendant liable for any
obligation, the judgment therein may prejudice any person, take not class any person, not specific person,
including the government who may have an interest in the res which may be property or the status of the
plaintiff. We can cite an example, an action for nullity of marriage where the res to which the action in rem
is directed is the status of the plaintiff. In an adoption proceeding, the res to which the action is directed is
the status of the petitioner. Okay? Since an action in rem is not directed against a specific defendant and if
there is one named, the action does not seek to make him liable for any obligation.

The court need not acquire jurisdiction over the named defendant if any. Most of the time, there is no named
defendant in an action in rem. It will suffice therefore that the court should acquire jurisdiction over the res
either by its actual seizure or by the filing of the proper initiatory pleading. So class, in an action in rem, it
is not necessary for the court to acquire jurisdiction over a named defendant if there is any. Most of the
time, I said, there is no defendant named in an action in rem. What is essential in an action in rem is that
the court should acquire jurisdiction over the res to which the action is directed.

Q: How does the court acquire jurisdiction over the res in an action in rem?

A: There are two ways by which the court may acquire jurisdiction over the res which may be property or
the status of the plaintiff.

1.The first is by the actual seizure of the property in which case the res or the property is placed under
custodia legis, in the custody of the court or custodia legis. So the first way by which a court in action in
rem may acquire jurisdiction over the res is by the actual seizure of the property or status. I’m sorry. You
don’t seize status. Actual seizure of the property.

2. The second way by which the court in an action in rem may acquire jurisdiction over the res to which the
action is directed is by the filing of the proper initiatory pleading.

An action for nullity of marriage is an action in rem. What is the res to which the action is directed? The
status of the plaintiff or petitioner. And how does the court acquire jurisdiction over that res? The status of
the petitioner or the plaintiff? By the mere filing of the petition for the nullity of marriage, the court acquires
jurisdiction over the res, over the status of the plaintiff.
Now class, an action for land registration is a good example of an action in rem. An action for land
registration is directed to a res. What is the res in an action for land registration? It is an unregistered parcel
of land. It is the res to which an action for land registration is directed. An unregistered land. The petition
for land registration is not filed against any specific defendant but it names the Register of Deeds as a

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nominal defendant. He is not a real defendant. In an action for land registration, the Register of Deeds is
always named as a defendant bu not as a real defendant but as a nominal defendant. Why should the
Register of Deeds be named as a nominal defendant? Because he will be the one to implement the
judgment of the court if the petition is granted. But the action for land registration does not seek to make
the Register of Deeds, who is named as a defendant liable, for any obligation. The petition for land
registration does not seek to make the Register of Deeds liable to pay a certain sum of money or to deliver
property or to do or not to do a particular act. The purpose of the action for land registration is not to make
the Register of Deeds liable for any obligation because the action is not directed to him or against him. It is
directed to the unregistered parcel of land. What relief is sought by the plaintiff or the petitioner in an action
for land registration? In a petition for land registration, the petitioner prays that a judgment be rendered by
the court ordering the land registration authority to direct the Register of Deeds concerned to register the
subject land and to issue a torrens title over the land in the name of the petitioner.

The register of deeds concerned to register the subject land and to issue a Torrens title in the name of the
petitioner, so that is the relief prayed for by the petitioner, in an action for land registration for the court to
render a judgement directing the land registration authority to order the register of deeds concerned
where the property is situated to register the subject land an to issue a Torrens title in the name of the
petitioner. So here the petition is directed not to any defendant but to the unregistered parcel of land, so
later on the court will render a judgment ordering the land registration authority to direct the register of
deeds to register the land to issue a Torrens title over the land in the name of the petitioner. So the
judgement here in a petition for land registration which is an action in rem is all about the res, it does not
make any person liable for any obligation, its all about the res. Now publication of the filing of the petition
of the action for land registration is required.

Why is publication required in an action for land registration?

To give constructive notice to the whole world, meaning to anybody as I said to the whole word is
hyperbole, to give constructive notice to everybody, anybody who may have interest in the parcel of land
which is the subject of the action so that if he has or an interest in the subject parcel of land then he may
go to court, file a written opposition then he becomes a party, but he is not being sued as a defendant its
up to him whether to go to court and file a written opposition for the petition for land registration, if he
thinks he has an interest in that parcel of land and the res that will be prejudiced by the judgement. Thats
why publication is required. Publication is constructive notice to the whoe world, to anybody who may
have an interest inthe subject parcel of land. So you can see the main features a of an action in rem in a
petition
for land registration

1. Directed to a res which is an unregistered parcel of land

2. The action is not directed against a specific defendant,a real specific defendant, the action does
not seek to make a specific defendant liable for an obligation though there is a name defendant
the register of deeds, the action is not directed against him to make him liable for any obligation
3. Purpose of the action is to bind any person who may have an interest in the res, but the
judgement will be all about the res or the unregistered land. I hope I was able to simplyify or make
you understand better on what an acton in rem by citing this example of a petition for land
registration

Of course there are other good examples of an action in rem,

1. Probate of a will
2. Cadastral case
3. Absolute nullity of marriage
4. Adoption proceeding

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Let me briefly discuss an action for nullity of marriage, it may seem to you counter intuitive that an action
for declaration for nullity of marriage is an action in rem, but it is an action in rem, not even an action
quasi in rem, but an action in rem.

So why is an action for declaration of nullity of marriage an action in rem?

Okay so using the definition of an action in rem as our test, lets see if indeed an action for declaration of
absolute nullity of marriage is an action in rem. So we see an action in rem is one directed to a res. So in
an action for declaration of absolute nullity of marriage, what is the res to which the action is directed?
The res here class is the status of the petitioner. What status? Her marriage. So the action is directed to
the status of the plaintiff specifically her marriage. Since marriage always involves two persons, of course
you cannot marry yourself so you talk of marriage there will always be two persons involved. So when
one spouse files a petition of declaration of nullity of marriage, in a way the other spouse will always be
affected. So when one spouse files a petition for nullity of marriage the other spouse will always be
named as a defendant but the action class is not directed against the other spouse, the action does not
seek the other spouse liable for any obligation, the action does not seek to make him to pay a certain sum
of money, deliver property or to do or not to do a particular act, because the action is not directed against
him, it is directed against the status of petitioner, which in a way will always affect the spouse that is
named as a defendant. So in an action for nullity of marriage, the other spouse who is a defendant is not
real defendant, he is just imploded as a defendant because somehow he will be affected by any
judgement, he has an interest in the res, he has an interest in the res which will definitely be affected by
the judgement for nullity of marriage. But he is not a real defendant, the action does not seek to make him
liable for any obligation. So far the action for nullity of marriage is a somehow a in conformity in our
definition of an action in rem. We said earlier that an action in rem is one that directed to a res the res
here is the status of the petitioner, seeking to bind any person who may have an interest in the res. No
person is named as a defendant except the other spouse who is not a real defendant. So the action in
rem seeks to bind any person who may have an interest in the status of the petitioner.
So what happens when the court grants the petition? The court will render a judgement declaring the
petitioner and the other spouse, okay so you will see the judgement in the action is all about the res, it will
declare the marriage between petitioner and respondent null and void. But incidentally it will affect the
nominal defendant because he is one side of the marriage, as I said earlier you dont marry yourself you
always marry somebody else, Ive never heard somebody married himself, hopefully of the same sex. So
having analyzed an action for nullity of marriage I hope you are convinced it is an action in rem, it
conforms strictly to our definition of an action in rem.

Before we leave the topic of an action in rem since an action in rem is directed against the res it is not
directed against a specific defendant , and it does not seek to make any defendant even if a defendant is
made liable for an obligation, therefore it is not necessary for the court to acquire jurisdiction in an action
in rem, as I said most of the time there is no named defendant in an action in rem, but if there is a
defendant named, he would be a nominal defendant, and the action in rem does not make seek to make
him liable for any obligation, so that is the nature, it is not necessary for the court to acquire jurisdiction
over the person of the defendant, anyway the action is directed to a res, judgement which will be enforced
later will only be about the res, although as I said any person, including the government who has an
interest in the res will also be bound by the judgement, even the government. So if the court grants the
petition for annulment of judgement and the marriage between the petitioner and respondent is declared
null and void, even the government is bound by that judgement, and even the government must respect
that judgement. So if the petitioner gets married again, which is usually the case, which is usually the
reason why one spouse would want his marriage to be declared null and void, because he already has a
boyfriend or girlfriend who is eager to marry him or her, there is no reason for the court to acquire
jurisdiction over the defendant if any, if a defendant is named in the action.

So we can go now to an action quasi in rem, as the name suggest an action quasi in rem, it combines the
features of an action in personam and action in rem. Thats why it is called action quasi in rem, quasi
means something similar, it means an action somehow to an action in rem, but is is also similar to an
action in personam because an action quasi in rem combines the features of an action in personam and
action in rem. But it is more of an action in rem than an action in personam although it combines both the

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two kinds of action, an action quasi in rem is more of an action in rem than an action in personam. So like
an action in rem, an action quasi in rem is also directed to a res, so this is the feature of an action quasi in
rem which is similar to an action in rem it is directed to a res, most of the time it would be property, no
longer status of the petitioner, but property. An action quasi in rem is also like a action in rem directed to a
res, so that is the feature of an action in rem found in a quasi in rem. But an action quasi in rem also
names a specific defendant, so that is the feature of an action in personam that is found in a an action
quasi in rem, while the action is directed to a res, the action names a specific defendant which is a feature
of an action in personam. Like both kinds of action, an action in rem and an action in personam, an action
quasi in rem seeks to subject the interest of the specific deffendant in the res, in the property, to a lien or
obligation, burdening the res. Okay so let me define an action quasi in rem, is one which is directed to a
res, but names a specific defendant, and the purpose of the action is to subject the interest of the named
defendant in the res to a lienor obligation burdening the res. By its definition you can see very clearly that
the features of an action in personam and an action in rem are tightly interwoven in an action quasi in
rem, we can see these combined features in an action for real estate mortgage class. So a good example
of an action QUASI IN REM, IS AN ACTION FOR FORECLOSURE OF REAL ESATE MORTGAGE. To
what is an action, by the way before we proceed, who files an action for foreclosure of real estate
mortgage, it is the mortgagee-creditor, okay but the action is directed to a res, what is the res to which the
action to foreclosure of real estate mortgage is directed, the mortgage property class, the mortgage
property is the res to which the action is directed. Who is the named defendant becomes an action quasi
in rem always names a specific defendant, who is the specific defendant named in an action for
foreclosure of real estate mortgage. It will be the mortgagor-debtor.

Is an action for foreclosure of real estate mortgage intended or does it seek to make the defendant, liable
for an obligation like paying a certain sum of money, or delivering property or doing or not doing a
particular act, that s the purpose class of an action for foreclosure of mortgage. As you can see the name
itself of the action foreclosure of real estate mortgage, the action does not seek to make the defendant for
any sum of money, although the reason why the action for foreclosure of real estate mortgage was file
was because the debtor failed to pay his obligation, his loan, under a contract of loan, to the creditor, but
the action itself, the action for foreclosure of mortgage is intended to foreclose the mortgage property, it is
directed to a res, to the mortgage property, and the purpose is not to make the defendant liable for any
obligation, but to subject the interest of the defendant who is the mortgagor-debtor in the res, in the
mortgage property. What is the interest of the mortgagor-debtor in the mortgaged property? He is the
owner. So the purpose of the action is to subject his interest in mortgage property, as an owner of the
mortgage property. to what? To a lien or obligation burdening the mortgage property.

What is that lien burdening that mortgage property?

It was given to secure the payment of the loan of the defendant to the mortgagee creditor. That is the lien,
the lien is the mortgage, burdening the mortgage property, so the purpose of the action is to subject the
interest of the debtor in the mortgaged property, as an owner to the lien to the mortgage burdening the
mortgaged property. Because it was given to se3cure the payment of the mortgagor-debtor obligation to
the mortgagee creditor. So that class illustrates I think very clearly to what is an action quasi in rem. Its a
good example, an action for foreclosure of real estate mortgage, there is a specific defendant, is directed
to a res the mortgage property, the action does not seek make the defendant liable to any obligation, but
the purpose of the action is to subject the interest of the defendant in the mortgaged property, as owner to
the lien burdening the mortgage property. What that lien that burdens the mortgage property? It was
given as a security of the payment of the obligation of the debtor to the creditor. I hope im still talking
sense class, do you understand?

Let me repeat since an action quasi in rem like an action in rem, is directed to the res and does not seek
to make the named defendant, there is always a named defendant, liable for any obligation, it does not
seek to make the defendant liable for any obligation. It is not therefore necessary for the court to acquire
jurisdiction over the named defendant, it is enough that the court acquires jurisdiction over the res to
which the action is directed. So we have now made a distinction between an action in personam on the
one hand and an action in rem, and an action quasi in rem on the other hand. In actions in personam it is

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essential for the court to acquire jurisdiction over the person of the defendant, by its nature it is essential
for the court to acquire jurisdiction over the defendant, in actions in rem and quasi in rem it is not
necessary for the court to acquire jurisdiction for the court to acquire jurisdiction over the defendant, it is
necessary that the court acquire jurisdiction over the res, the property or the status of the plaintiff.

How does the court acquire jurisdiction over the res? Whether its property or the status of the plaintiff.
There are two ways where the court may acquire jurisdiction over the res

1. By the actual seizure of the res if it is property placing the res under custodia legis or the custody
of the court
2. By the filling of the proper initiatory pleading, this is applicable for an action for nullity of marriage,
where the res the action is directed is the status of the plaintiff, you cannot seize, there is no
actual seizure of the status of the plaintiff. So how does the court acquire jurisdiction over the res
which is the status of the plaintiff? By the filing of the petition for dclaration of absolute nullity of
marriage.

Okay class lets proceed.

Let us go now to rule 14. It took us almost 50 minutes to discuss the distinction between these three kind
of action, but its worth it class, before we can discuss summons under rule 14, we have to be very clear
about the distinction among these 3 actions.

So let us start now with rule 14

Now one of the significant changes, which took effect on may first while the pandemic was already raging,
is that the court may now authorize the plaintiff to serve his summons in the defendant. If you remember
the old rules class, by old rules, I mean the rules before the 2019 amendments. Under sec 3 rule 14 of
the amended rules, by the way before we go to the amended rules, summon may be served by the
sheriff, his deputy, or by any proper court officer, that is still true under the amended rules, so under the
amended rules summons may be served by the sheriff, his deputy or any proper court officer, but under
the amended rules aside from those persons who may serve summons, the court may authorize the
plaintiff to serve the summons, that is new class, under the old rules under the old rules only those
persons I mentioned earlier may serve summons, under the amended rules the court may appoint or
authorize the plaintiff to serve his summons. But not in all cases only in certain instances.

Now under sec 5 rule 14 of the amended rules, service of summons in person, im sorry before we got to
that, so let us discuss the three instances when the court may authorize the plaintiff or shall authorize the
plaintiff to serve the summons. What are these three instances under the amended rules when may or
shall authorize the plaintiff to serve summons to the defendant

Okay class so under the 1st paragraph of section 3 of rule 14 the court MAY take note class, when you
say may, the court may not, so under the 1st paragraph of section 3 of rule 14, the court MAY authorize
the plaintiff to serve summons together with the sheriff, if there is failure of service of summons by the
sheriff, his deputy or other proper court officer.

Let me repeat under the 1st paragraph of section 3 rule 14 the court may authorize, MAY authorize, the
plaintiff to serve the summons on the defendant, but to be accompanied by the sheriff, if there is failure of
service of summons on the part of the sheriff, his deputy or any proper court officer. So its always the
sheriff, his deputy or other proper officer who must serve the summons. If they fail its only when the
sheriff, deputy or other proper court officer fails to serve the summons that the court in the exercise of its
discretion, may authorize the plaintiff to serve the summons to the defendant, but the plaintiff has to be
accompanied by the sheriff. Thats under the 1st paragraph of section 3 of rule 14.

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Lets go to the second instance when the plaintiff may be authorized to serve the summons, under second
paragraph of section 3 of rule 14 of the amended rules, the court SHALL authorize the plaintiff to serve
the summons if summons is to be served on a defendant who resides outside the judicial region of the
court or where the court sits. Take note the word used now is SHALL no longer may.

So when should the court authorize the plaintiff to serve the summons on the defendant?
The second paragraph of section 3 of rule 14 provides that the court SHALL authorize the plaintiff to
serve the summons if the defendant to be served summons is found or resides outside the judicial region
where the court sits. So the sheriff his deputy or other proper court officer will not even attempt to serve
summons, if based on the initiatory pleading the defendant resides in a place outside the judicial region
where the court sits, the court shall authorize the plaintiff to serve the summons, without first asking the
sheriff, deputy or other proper court officer, the plaintiff should serve the summons.

What is the third instance, when the court shall authorize the plaintiff to serve summons? so the court
shall authorize the plaintiff to serve the summons if the sheriff his deputy or other proper court officer,
returns the summons unserved, you know class when the sheriff serves the summons after successfully
serving the summons he files a return to the court, reporting to the court that he served the summons to
the defendant on a particular date, thats what is known as return. So if the sheriff or his deputy or other
proper court officer, files a return indicating the he failed to serve summons on the defendant, then the
court SHALL authorize the plaintiff to cause the service of summons, by other means available under the
rules. We will discuss those other means later. So that is the third instance when th court shall authorize
the plaintiff to serve summons. That is under section 3 fifth paragraph of rule 14.

So we are done with the 3 instances when the court may or shall authorize the plaintiff to serve the
summons on the defendant.

Now under section 5 of rule 14, service of summons in person is still the preferred mode of service of
summons. Service of summons in person I suggest you use that term not personal service of summons,
the correct term under the amended rules, even under the 1997 rules the proper term is service of
summons in person. Because personal service is only used in personal service of pleadings, motion or
other papers, but service of summons the proper term is service of summons in person, there is a
difference class between personal service of pleadings or motion and service of summons on the
defendant in person. Take note of that you use the proper term. So even under the amended rules the
preferred mode of service of summons is still service of summons in person, although there is a minor
modification under this section in the manner in which service of summons in person may be effected.

So how is service of summons in person effected? How may the sheriff effect service of summons in
person? Still the same in the old rules, by handing a copy to the defendant himself, not to anybody but to
the defendant himself, that is what is meant by in person. The defendant himself must receive the
summons, that is how service of summons in person is done.

But suppose the defendant refuses to receive the service of summons, some defendants think by not
receiving the summons they are escaping the jurisdiction of the court, even if the defendant refuses to
receive the summons if it was served on him then it is as if he was already properly served summons so
what should the sheriff do if the defendant refuses to accept summons and sign for its receipt, so under
the sheriff should make a tender of summons, it is not clear what it means. So under the amended rules if
the defendant refuses to accept the summons and sign for its receipt the sheriff shall leave a copy of the
summons In the presence of and within the view of the defendant. So in practice what sheriffs do class if
the defendant refuses to receive a summon, the sheriff will just drop a copy on the floor and tell the
defendant, you don't want to receive this summons then im leaving a copy, he will drop a copy of the
summons on the floor and he will leave and report that and that would be considered service of summons
in person although the defendant refused to receive. By the way I forgot to mention how to effect service
of summons in person, by handing the copy of the service of summons in person to the defendant

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himself, and informing him that he is being served summons, so when the sheriff goes to the defendant
im handing to you a copy of the summons.

What happens if summons cannot be served on the defendant in person?

The sheriff can resort to substituted service of summons. But there is a very important requisite before the
sheriff can resort to substituted service of summons. This requisite was enunciated in the case of Manotoc
v. CA which is now an expressed provision under the amended Rules, Section 6 of Rule 14. Before it was
a jurisprudence but now an expressed provision of the Rules.

What is this requisite?

Under Section 6 of Rule 14, if, for justifiable reasons, the defendant cannot be served summons in person
after at least three (3) attempts on two (2) different dates, it is only then that the sheriff may resort to
substituted service of summons

He must make three attempts to serve the summons in person on two different dates. Perhaps in one day,
he can make two attempts to serve the summons to the defendant in person, then the following day he will
go back to the residence of the defendant and try to serve the summons again to the defendant in
person. So at least 3 attempts, it may be 4, but at least 3 attempts, failing to serve the summons to the
defendant in person, after at least 3 attempts on 2 different dates, that the sheriff may resort to substituted
service of summons.

But there are other requisites under existing jurisprudence which are still in force despite the 2019
Amendments.

If the sheriff cannot serve summons in person after 3 attempts on 2 different dates, he must specify in his
return what he did, that he tried 3 attempts on 2 different dates to serve summons in person. He must
indicate that in his report, otherwise, there will be no proper substituted service of summons.

How is substituted service of summons effected?

Under Section 6 of Rule 14, the first way is (1) by leaving copies of the summons at the defendant's
residence to a person at least eighteen (18) years of age and of sufficient discretion residing therein;
The person with whom the summons was left in the residence of the defendant must be at least 18 years
of age, he must be of sufficient discretion and he must be a resident in the residence of the defendant.

The second way, if the first way is not possible or feasible, (2) by leaving copies of the summons at the
defendant's office or regular place of business with some competent person in charge thereof. A competent
person includes, but is not limited to, one who customarily receives correspondences for the defendant;
If that person is in charge of the office, of course, he must be competent unless the defendant himself is
incompetent and he will charge someone who is also incompetent.
By competent person includes, but is not limited to, a person who customarily receives correspondence for
the defendant. If at the office of the defendant, the sheriff cannot find the person in charge of the office, the
sheriff can leave the copy of the summons with a person who customarily receives correspondence for the
defendant in the office.

Who usually receives correspondence in the office?

What I know usually it is the security guard who customarily receives correspondence at the office of any
person.

The third way, (3) by leaving copies of the summons, if refused entry upon making his or her authority and
purpose known, with any of the officers of the homeowners’ association or condominium corporation, or its
chief security officer in charge of the community or the building where the defendant may be found;

If the defendant is a resident of a subdivision, there is a wall surrounding a subdivision or if the defendant
leaves in a condominium building, and the sheriff is refused entry at the gate of the subdivision where the
defendant lives or he is refused entry in the condominium building where the defendant resides, then he

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may leave the copy of the summons with any security officer or officer of the homeowner’s association in
the subdivision or officer of the homeowner’s association of the condominium building or if not, with the
security officer of the condominium building. That’s new, it not under the old Rules.

Now if all the ways we have discussed fail, the summons could not be served by those ways, there is
another one. The last way of effecting substituted service, the last recourse if allowed by the courts, the
summons may be served to the defendant (4) by sending a copy of the summons by electronic mail to the
defendant’s electronic mail address.

This is really new, imagine sending service of summons to the defendant in his email address but you have
to exhaust all the other ways before this can be resorted and only if the court allows it. Before this way can
be resorted to, the parties must first seek permission from the court.

Other requisites for valid substituted service of summons will be discussed when we discuss the cases of
Jose v. Boyon, Manotoc v. CA, Ong v. Co, and Dumagas v. Jensen.

Service of Summons on Domestic Private Juridical Entity

Substantial changes have also been introduced by the 2019 Amendments as to how domestic private
juridical entity, such as a corporation, partnership, or association with juridical personality, may be
served summons.

Under the old Rules, a defendant corporation or partnership may be served summons only by personally
serving summons to its president, managing partner, general manager, treasurer, corporate secretary, or
in house counsel. Under Section 12 of the amended Rules, however, it is provided that in the absence or
unavailability of the persons mentioned (president, managing partner, general manager, corporate
secretary, treasurer, or in-house counsel of the corporation), summons may be served on their secretaries.

Let us say, the president is not around or not in the office, he’s having lunch with another beautiful
employee, summons may now be served on the president’s secretary. That is what is meant by this new
provision under the 2019 Amendments.

But suppose the president is having lunch with his secretary, the other officers are also having
lunch with their respective secretaries in different places, so what may the sheriff do if the corporate
officers and their secretaries are not around? How will the sheriff serve summons on the defendant
corporation?

Under the amended Rules, the sheriff may serve the summons on any person who customarily receives
correspondence for the defendant corporation at the principal office. As I said earlier, usually, it is the
security guard.

Now, if the defendant is a domestic juridical entity which under a receivership, then the summons
shall be served on the receiver or liquidator, as the case may be.

Should there be refusal on all the persons mentioned earlier, if they refused to receive summons after at
least 3 attempts on 2 different dates, then service of summons can be made electronically, by transmitting
the summons by electronic means if allowed by the court as provided under Section 6 of Rule 14.

Service of summons by publication

As a rule, service of summons by publication does not vest on the court jurisdiction over the person of the
defendant. But there are 2 instances when service of summons by publication will vest on the court
jurisdiction over the person of the defendant even in actions in personam where it is essential for the court
to acquire jurisdiction over the person of the defendant.

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How? By proper service of summons. Remember in actions in rem and in actions quasi in rem, there is no
need for the court to acquire jurisdiction over a named defendant, if any.

2 instances when service of summons by publication will vest on the court jurisdiction over the
person of the defendant:
1. Section 16 of Rule 14 - Service of summons by publication on a defendant whose identity or whereabouts
are unknown will vest on the court jurisdiction over his person even in actions in personam.
2. Section 18 of Rule 14 - Service of summons by publication on a defendant who is a resident of the
Philippines but is temporarily out of the Philippines will vest on the court jurisdiction over his person even
in actions in personam.

In what other way do a defendant who is a resident of the Philippines but is temporarily out of the
Philippines may be served summons aside by publication?
Since the defendant is a resident of the Philippines, although temporarily out of the Philippines, he must
have a residence in the Philippines. When we were discussing that if service of summons fails, there is
substituted service of summons. So if service of summons in person cannot be effected on the defendant
because he is temporarily out of the Philippines, a copy of the summons can be left on the residence of the
defendant with a person who is at least 18 years of age and of sufficient discretion and a resident of the
residence of the defendant.

Extraterritorial Service of Summons under Section 17 of Rule 14

It is extraterritorial because it is done outside the Philippines. There are 2 requisites before extraterritorial
service of summons may be resorted to, the first requisite pertains to the defendant and the second requisite
pertains to the action.

1. Extraterritorial service of summons is proper when the defendant is not a resident of the Philippines and
not found in the Philippines;
2. Extraterritorial service of summons is proper in 4 actions:
a. when the action involves the status of the plaintiff;
b. when it involves property in the Philippines when the defendant who is not a resident and not found in
the Philippines claims a lien on that property in the Philippines;
c. when it involves property in the Philippines and the relief sought by the plaintiff is to exclude the defendant
who is not a resident and not found in the Philippines from any interest in that property; and
d. when the defendant who is not a resident and not found in the Philippines and the action is where the
property of the defendant in the Philippines has been attached under a writ of preliminary attachment.

If you notice, these 4 actions are either actions in rem or actions quasi in rem. Remember that in actions in
rem and quasi in rem, there is no need for the court to acquire jurisdiction over the person of any named
defendant. The extraterritorial service of summons in this case is not intended for the court to acquire
jurisdiction over the defendant. The purpose of the extraterritorial service of summons is to satisfy the
requirement of due process- to give notice to a defendant who is not a resident and not found in the
Philippines, of an action pending against him in the Philippines. Also, extraterritorial service of summons,
as a rule, will not vest on the court jurisdiction over the defendant in any of these actions.

Extraterritorial service of summons cannot vest on the court jurisdiction, why?

Because the service of summons is done outside the jurisdiction of the courts. The service of summons is
not valid as one that will vest jurisdiction over the person of the defendant. Its only purpose is to give notice
to a defendant who is not a resident and not found in the Philippines that there is an action filed against him
in the Philippines.

Voluntary Appearance under Section 23 of Rule 14

Under Section 23 of Rule 14, the defendant's voluntary appearance in the action shall be equivalent to
proper service of summons. This is the same under the old Rules.

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How does a defendant makes a voluntary appearance?
A defendant makes a voluntary appearance every time he files a motion in court seeking affirmative relief
from the court. Because a motion is defined as an application for relief other than by a pleading. So every
time a defendant files a motion, he is seeking an affirmative relief from the court. By filing a motion, he need
not be served summons, because he is voluntary submitting himself to the jurisdiction of the court.

Under the old and new Rules, a motion to dismiss filed by the defendant on the ground that the court lacks
jurisdiction over him is not a voluntary appearance. Under the old Rules, even if the defendant includes
other grounds in his motion to dismiss, provided that one of the grounds is that the court lacks jurisdiction
over him, then such motion would not be considered voluntary appearance. But under the amended Rules,
if the defendant files a motion to dismiss on the ground that the court lacks jurisdiction over him but includes
other grounds in his motion, then such motion is now a voluntary appearance. That is a change introduced
by the 2019 Amendments.

But the problem is, if you have read the Amendments, lack of jurisdiction over the person of the defendant
is no longer a ground for a motion to dismiss but a mere affirmative defense which a defendant may plead
on his Answer.

Another case which is still effective or applicable up to now is the case of Tujan Militante v. Nustad which
was promulgated very recently (June 19, 2017). The ruling in this case is that under Section 23 of Rule 14
of the Amended Rules: when a defendant files a motion to dismiss on the ground that the court does not
have jurisdiction over his person, that motion is not equivalent to a voluntary appearance.

In this case of Tujan Militante, the defendant, since he believed he was not properly served summons, filed
a motion to dismiss on the ground that the court did not acquire jurisdiction over person. The court denied
the motion to dismiss. That motion should not have been considered as voluntary appearance, whether
under the Old Rules or even under the New Rules, because the ground is lack of jurisdiction over the person
of the defendant. But after denial of his motion, the defendant filed a motion for reconsideration of the order
denying his motion to dismiss. The court denied that motion for reconsideration. Later on, the court
proceeded with the trial, and the defendant objected because the court did not acquire jurisdiction over me
because there was no proper service of summons on me. Filing a motion to dismiss on the ground that the
court did not acquire jurisdiction over the person is not equivalent to voluntary appearance.

Supreme Court: While that is correct (not voluntary appearance), but if defendant subsequently files a
motion for reconsideration of order denying his motion to dismiss, the filing of that motion for
reconsideration, in which in effect the defendant seeks an affirmative relief from the court is now equivalent
to voluntary appearance.

RULE 15 (MOTIONS)

There are substantial changes introduced by the 2019 amendments to Rule 15.

What is a motion? Motion is an application for relief other than by a pleading. That is how a motion is defined
under Rule 15 (both in new and old rules). Every time a party files a motion, in effect, he is seeking relief
from the court, because a motion is an application for relief other than a pleading. A pleading is also an
application for relief

In what form should a motion be? The rule is that: motions shall be in writing. That is the general rule.

Exceptions:
1. When a motion is made in the course of the proceedings of the case--trial or hearing. Because
movant, judge and adverse party are there. When one party makes a motion verbally, the adverse
party can immediately oppose the motion and the court can rule on the motion. There is not need
to put it in writing because everything that happens during the course of trial or hearing of the case,
everything that is said by a party, judge, by adverse party is recorded.

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 2. When the motion is made in open court. In open court = in the presence of the judge, and in
presence of other officers of court, and in presence of the adverse party. So anything that happens
in presence of the judge, in the presence of the parties, in the presence of the other court officers
is in open court, even if the door of the court is closed.

Under the Amended Rules, there are two kinds of motions. Even under the Old Rules. But the 2019
amendments introduced a new terminology: litigious and non-litigious motions.

Now, what is a litigious motion? I (Sir Obra) modified the definition in Rule 15. I don’t think it is precise
definition, so I modified it a little to make it more precise.

A litigious motion is one which, if granted by the court, will prejudice the substantial rights of the adverse
party. In Rule 15, there is no mention of substantial rights. Instead of the court granting the motion, the
court acting upon the motion. “Acting upon the motion” is VAGUE. What does that mean? It is only when
the court grants a litigious motion that the substantial rights of the adverse party may be prejudiced. If the
motion is denied, it will not prejudice the rights of the adverse party.

If you what a litigious motion is, you already know what non-Iitigious motion is--just the negative. It is one
which, if granted by the court, will not prejudice the substantial rights of the adverse party. Every time the
court grants a motion of a party (whether litigious or non-litigious), it will somehow prejudice the rights of
the adverse party. All motions, any kind of motion, will somehow prejudice the rights of the adverse party.
Let me illustrate.

A motion for postponement of hearing is definitely, under the amended rules, non-litigious motion. It will
delay the proceedings of the case, it will prejudice the rights of adverse party, but not his substantial rights.

There is a list under the amended rules, under Rule 15, of litigious and non-litigious motions. You have to
identify a motion based on its definition. It is up to you, it is up to a party to properly identify a motion whether
it is a litigious or non-litigious motion.

Under the old rules, if a party files a non-litigious motion, he is required to first furnish the adverse party
copy of his motion before he will file it. That is the only requirement for a non-litigious motion under the old
rules.

Under the old rules, if a party files litigious motion, he has to include in his motion a notice of hearing. That
means he should set his motion for hearing. He should make a request to the court for hearing if his motion
is a litigious motion. Otherwise, it will be considered a pro-forma motion. What is the effect of filing a pro-
forma motion? The court will not give it due course. The court will treat it as a scrap of paper. What do you
do with a scrap of paper? Throw it to the waste basket. Pro-forma motion – it sounds like the dialect -- puro
porma lang, wala namang laman.

Under the amended rules, Rule 15 of the Amended Rules: when a party files a litigious motion, he need
not include a notice of hearing. There is no requirement now to set a litigious motion for hearing. What will
the party do who files a litigious motion? Furnish the adverse party a copy, and file it with the court. No
need to identify if the motion is litigious or non-litigious. Filing a litigious or non-litigious motion, as far as
the movant is concerned, is just the same. You just furnish the adverse party a copy, and file it with the
court.

The burden now of identifying the motion is on the adverse party. Under the amended rules, when a party
receives a motion from the other party, he should identify if motion he received is a litigious or non-litigious
motion. If litigious, then he must file his objection to the motion within five days from receipt of motion.
Otherwise, the court will resolve the motion without his opposition. It will not be set for hearing anymore.
Although, in some instances, in exercise of discretion, the court may decide to set a hearing for the litigious
motion. It is the court, no longer the movant.

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After the movant files the litigious motion, the adverse party must file his objection within five days from
receipt of the motion. If the adverse party did not properly identify the motion, if he thought it is a non-
litigious motion and therefore did not file his objection, the court will resolve it without his objection. Most
probably, the court will grant the litigious motion, because there is no objection by the adverse party.

Under Rule 15 of the amended rules, there is a list of prohibited motions. Under the old rules, there is no
list of prohibited motions. Do you know what is first on the list of prohibited motions? Motion to dismiss.
Under the old rules, a motion to dismiss is in one Rule, Rule 16. But Rule 16 was deleted entirely. Now, a
motion to dismiss is a prohibited motion, except if the grounds are (Section 12A).......

There is a list of grounds. Those are the only grounds now for a motion to dismiss. Although there are three
numbers here under Paragraph A of Section 12, you will notice that there only 2 numbers under paragraph
A. But there are four grounds for a motion to dismiss under the amended Rules. Number 3 is actually
two grounds. That the cause of action is barred by prior judgment, that’s res judicata. (The other is ) barred
by statute of limitations, that’s prescription.

Number 1 (on the grounds), that the court has no jurisdiction over the subject matter of the case. Second,
there is a pending cause between the same parties and for the same cause of action, that’s litis pendentia.
Third, that the action is barred by prior judgment which is res judicata. Fourth, that the action is barred by
statute of limitations, that is prescription. Remember those four grounds for a motion to dismiss. Otherwise,
a motion to dismiss is now a prohibited motion.
What happened to the other grounds for a motion to dismiss under Rule 16 under the old Rules? Like failure
of the complaint to state a cause of action, improper venue, or that the court has no jurisdiction over the
person of the defendant. They are now affirmative defenses, including these four grounds (under paragraph
A of Section 12). These may be alleged in the answer as affirmative defenses.

To finish our discussion on motions.. We know that an order of the court denying a motion to dismiss is an
interlocutory order. What is a final order? A final order that terminates the proceedings of the case so that
nothing is left for the court to do after the order is issued. The order terminates the issue of the case. An
interlocutory order is one that resolves one or some issues in a case but does not terminate the proceedings
because there are other issues that are unresolved by the order of the court.

What is the remedy of an aggrieved party if a final order is issued by the court which terminates the
proceedings? Appeal. A final order is like a judgment. Because a judgment terminates the proceedings of
the case, then the remedy of an aggrieved party for an adverse final order is appeal. So an order of the
court granting the motion to dismiss and dismissing the complaint is a final order because it terminates the
proceedings. As a rule, the order of the court dismissing the complaint upon a motion to dismiss is
appealable because it is a final order.

But there are orders of dismissal which are not appealable. What orders of dismissal are not appealable
although they are final orders? When the order of dismissal is without prejudice. If the order of dismissal is
with prejudice, it is appealable. But if it is without prejudice, although it is a final order because it terminates
the proceedings, it is not appealable because there is another remedy available to the aggrieved party. If
the order of dismissal is without prejudice, it means that the complaint may be refiled. The remedy of the
party is to refile the complaint.

If the order of dismissal, let us say, is based on the lack of jurisdiction of the court over the subject matter
of the case, is it with or without prejudice? The plaintiff may refile with the proper court. Thus, it is without
prejudice. If the order of dismissal is based on the ground that the complaint failed to state a cause of
action, is it with or without prejudice? It is without prejudice because all that the plaintiff needs to do is
amend the complaint and refile it because it failed to state a cause of action the first time he filed it.

What orders of dismissal are with prejudice? First, if the order of dismissal is based on res judicata or prior
judgment, then it is with prejudice. Second, if the order of dismissal is based on the ground that the action
has prescribed. If the action has already prescribed, the plaintiff cannot refile the complaint because the
action will remain prescribed. Third, if the action was dismissed on the ground that it is barred by Statute of

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Frauds, it cannot be refiled. Therefore the order of dismissal is appealable. Fourth, if the order of dismissal
is based on the ground that the claim has already been paid, waived, abandoned, or otherwise
extinguished. The plaintiff cannot refile the complaint.

So we are done with motions.

(Student asked about the 3-day notice rule and 10-day hearing rule)
Sir: There’s no more 3-day notice rule. Let me explain what the 3-day notice rule is first before you can
understand why the 3-day notice rule is no longer applicable under the amended Rules. Under the old
Rules, when a party files a litigious motion, he is required to include in his motion a notice of hearing. In
that notice of hearing, he will specify the date and time that he is requesting for the court to hear his motion.
So what is the 3-day notice rule? Since there is a specific date requested by the movant in his motion, so
there is now a specific date for the hearing. He is required first, before he files his motion, to furnish the
adverse party with a copy of his motion. The 3-day notice rule requires that the movant must furnish the
adverse party a copy of his motion at least 3 days before the scheduled hearing, the date he requested for
in his motion. That’s the 3-day notice rule.

But under the amended rules, there is no need to set a litigious motion for hearing. So since there is no
need, the 3-day notice rule would no longer apply. There is no hearing anymore of a litigious motion.

There is no Rule 16 anymore. This has been deleted. Some of the provisions like Section 12 of Rule 15,
that’s the only place where you find some of the provisions in Rule 16 that has now been completely
deleted.

We go now to Rule 17.

While Section 12 of Rule 15 speaks of a motion to dismiss the complaint at the instance of the defendant,
Rule 17 speaks of the dismissal of the complaint/action not at the instance of the defendant, which is normal,
but at the instance of the plaintiff himself. So under Rule 17, it is the plaintiff himself who causes the
dismissal of his own complaint.

How may the plaintiff cause the dismissal of his own complaint? Before the plaintiff is served a copy of the
answer of the defendant or a motion for summary judgment, he may dismiss the complaint by just filing a
notice of dismissal. Take note class it’s a notice of dismissal. The plaintiff is not asking the court to dismiss
the case but he is just giving notice to the defendant and to the court that he wants his case/complaint to
be dismissed. It’s not a motion. It’s a notice. So the court, since the plaintiff is not asking its permission to
dismiss its complaint, the court cannot deny a notice of dismissal. What the court may do is issue an order
confirming the notice of dismissal. Okay, if that’s what you want. So the judge may say: “Okay if that’s what
you way. Anyway you were the one who filed your complaint. You were the one who spent for it. You paid
your counsel. If you want to have your case dismissed, it’s up to you.” The court will just issue an order
confirming, not granting, the notice of dismissal. So the case now is dismissed.

But after the plaintiff has been served an answer of the defendant or a motion for summary judgment, the
plaintiff cannot just dismiss his complaint by a notice of dismissal. This time, he has to file a motion to
dismiss because the dismissal now is with leave of court. The answer of the defendant may include a
counterclaim. Most probably the court will grant the motion to dismiss filed by the plaintiff. Most probably,
perhaps certainly, the defendant will not object to the dismissal of the complaint against him. But if the
defendant has included a counterclaim in his answer, then, the dismissal by the court upon the motion of
the plaintiff is without prejudice to the counterclaim set up by the defendant in his answer. So the
counterclaim will remain although the main action is already dismissed upon his own motion. The defendant
may still prosecute his counterclaim either in that same action that has already been dismissed. He need
not file a separate action. Or he may choose to file a separate action.

If the defendant chooses to prosecute his counterclaim in the same action filed by the plaintiff against him,
he has to give notice to the court. He has to file a manifestation to the court, within 15 days from receipt of
his motion to dismiss filed by the plaintiff, that he wants to prosecute his counterclaim in the same action.

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If he does not file that manifestation, he has to file a separate action for his counterclaim. It will no longer
be a counterclaim if he files it in a separate action.

Now, suppose the plaintiff, either by notice of dismissal or a motion to dismiss, caused the dismissal of his
complaint. Let us say, later on after the dismissal of the case at the instance of the plaintiff, he changed his
mind. He wants to sue the defendant again for the same cause of action. May he refile his complaint against
the same defendant? What is the nature of the order of dismissal of the court of the case at the instance of
the plaintiff? Was it with or without prejudice? The answer is that it is without prejudice. So if the plaintiff
changes his mind, he may still refile the same complaint against the same defendant for the same cause
of action.

But let’s say the plaintiff again felt remorse. He was suddenly stricken by his conscience. He regretted that
he refiled his complaint against the defendant. The plaintiff would again want to cause the dismissal of his
complaint for the second time. May he again file a notice of dismissal? The answer is yes. Both as to notice
of dismissal or motion to dismiss. He may do so for the second time.

Let us say, again, the plaintiff changed his mind after causing the dismissal of his complaint against the
defendant twice, he again wants to refile the complaint. May he refile the complaint for the third time? The
answer is no. The second dismissal is with prejudice already.

Did you understand, class? Okay.

Now, while there is dismissal of the complaint at the instance of the plaintiff, there is also dismissal of the
complaint due to the fault of the plaintiff. Not at his instance, but due to his fault – to the fault of the plaintiff.

Q: When may a complaint be dismissed due to the fault of the plaintiff?

A: First, when the plaintiff fails to appear during the presentation of his evidence-in-chief, then upon motion
by the defendant or the court motu proprio may dismiss the complaint due to the fault of the plaintiff,
because he failed to appear on the date of the presentation of his evidence-in-chief. So the court may motu
proprio or upon the motion of the defendant dismiss the complaint due to the fault of the plaintiff.

Or when the plaintiff fails to prosecute his case within a reasonable time, then the court, motu proprio or
upon motion of the defendant dismiss the complaint. Due to the fault of the plaintiff because he failed to
prosecute his case against the defendant within a reasonable time.

Or if the plaintiff fails to comply with any order of the court or any rule, then the court, motu proprio or upon
motion of the defendant, may also dismiss the complaint due to the fault of the plaintiff.

Three different instances when the court, motu proprio or upon motion of the defendant, may dismiss the
complaint due to the fault of the plaintiff:

(1) When the plaintiff fails to appear on the date of the presentation of his evidence-in-chief; or
(2) When he fails to prosecute his case within a reasonable time; and
(3) When the plaintiff fails to comply with an order of the court or any rule.

Q: In those instances when the dismissal is due to the fault of the plaintiff, what is the nature of the order
of dismissal?

A: If there is no mention in the order of dismissal whether it is with or without prejudice, the default is it is
with prejudice. It is only when it is expressly stated in the order of dismissal that it is without prejudice, that
[the nature of the order of dismissal] is without prejudice. But if there is no mention whether it is with or
without prejudice, then it is with prejudice.

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By the way, the rules that we have been discussing also applies to the dismissal of a counterclaim by the
counter-claimant, or a cross-claim by the cross-claimant, or a third- (fourth, etc.) party complaint by the
third- (fourth, etc.) party plaintiff.

RULE 18: PRE-TRIAL

We go now to Rule 18. Pre-trial.

Under the amended rules, the plaintiff may file a reply only if the answer of the defendant includes an
actionable document. Otherwise, the plaintiff cannot file a reply. So the plaintiff may only file a reply if an
actional document is attached to the answer of the defendant.

Q: Now, when may a rejoinder be filed?

A: Under the amended rules, the defendant may file a rejoinder if the reply of the plaintiff is solely based
on an actionable document.

Q: What is an actionable document?

A: On the part of the plaintiff, when the claims or cause of action of the plaintiff is based on a written
instrument, that written instrument is an actionable document. In the case of a defendant, when the
defenses of a defendant are based or founded upon a written instrument, then that instrument is an
actionable document.

So, under the amended rules, the last pleading that may be filed will be a rejoinder. But it will be very seldom
that a reply or a rejoinder may be filed because a reply may be filed only if an actionable document is
attached to the answer and a rejoinder may only be filed if the reply is solely based on an actionable
document.

So, anyway, after the last pleading has been filed, it is the duty of the clerk of court to set the pre-trial of
the case within five days from the filing of the last pleading.

Q: Now, what matters are taken up during the pre-trial?

A: Just read it under Section 2, Rule 18. We don’t have to discuss them. So there are certain matters that
are to be taken up during the pre-trial.

But the most important purpose of a pre-trial is for the court to exert its moral influence over the parties for
the parties to settle their case amicably. That’s the main purpose of a pre-trial, for the court to convince
the parties to settle their case amicably. To prevent a protracted and expensive litigation between
the parties.

Q: Now, since a pre-trial is mandatory, what is the effect if a pre-trial is not held?

A: All the proceedings in the case, including the judgment, would be null and void if a pre-trial was not
held.

Now, during the pre-trial, both the parties AND their respective counsels must be present. This is the
only stage of the trial of the case that the presence of both parties and their counsels are required. It is
mandatory for both the parties and their counsels to appear during the pre-trial of the case.

Q: Why is that important? Why should the parties be required to appear during the pre-trial?

A: For the reason that I already mentioned, class. The main purpose of a pre-trial is for the court to convince
the parties to settle the case amicably. So, the parties must be there because if only the counsels of the
parties are there, the court would not be able to convince the parties through their counsels to settle their

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case amicably. The counsels usually would not want the case that they are handling to be settled amicably.
That will go against their interest if a case is settled amicable because then they can no longer collect
attorney’s fees. If their clients are able to settle their case amicably then that’s the end of their collection of
attorney’s fees.

Q: What is the effect if the plaintiff and his counsel fails to appear during the pre-trial?

A: The failure of the plaintiff and his counsel to appear during the pre-trial is a ground for the dismissal
of the case. So if the plaintiff and his counsel fails to appear during the pre-trial without a valid cause then
the court may, motu proprio or upon motion of the defendant, dismiss the case.

The dismissal of the case on the ground that the plaintiff and his counsel failed to appear during the pre-
trial is with prejudice. Unless the court states in the order of dismissal that it is without prejudice, then it is
with prejudice.

Q: What about if it is the defendant and his counsel who fail to appear during the pre-trial?

A: Then that is a ground for the court to allow the plaintiff to present evidence ex parte.

Before, under the old rules, when the defendant fails to appear during the pre-trial, the plaintiff will move
that the defendant be declared as in default, and the court will issue an order declaring the defendant as in
default. But that is no longer done under the 1997 Rules and the 2019 Amendments.

The defendant is no longer declared as in default if he fails to appear during the pre-trial. But the effect of
the defendant failing to appear during the pre-trial, and his being declared in default, are the same which is
for the court to allow the plaintiff to present evidence ex parte. So it’s the same. That’s why before the
practice is for the court to declare defendant as in default because they have the same effect. But that term
‘as in default’ is no longer used at present.

Now, the parties, before the pre-trial, are required to file a pre-trial brief at least 3 days before the date
of the pre-trial. The failure of the plaintiff to file a pre-trial brief has the same effect as his failure to appear
during the pre-trial which is the dismissal of the complaint. The failure of the defendant to file his pre-trial
brief at least three days before the date of the pre-trial has the same effect as his failure to appear during
the pre-trial which is that the plaintiff may be allowed by the court to present evidence ex parte.

So, it’s important for the parties to appear during the pre-trial.

After the hearing on the pre-trial, the court now will refer the case to the Philippine Mediation Office (PMO)
for what is referred to as the Court-Annexed Mediation (CAM). So, after conducting the pre-trial hearing,
the court will refer the parties to the PMO near the court, and the parties are required to appear before a
mediation officer who may not even be a lawyer. A mediation officer will try to convince the parties to settle
their case amicably.

The purpose of this is to de-clog the dockets of court. So before the court will proceed with the trial, it will
first refer the case to the CAM.

Now, if the parties fail to arrive at a settlement during the mediation proceedings, then the mediation officer
will submit a report to the court that no compromise agreement was reached by the parties. So if the
mediation fails, the case will go back to the court and if the judge thinks that there is still a chance that the
parties could be convinced to settle the case amicably, the judge now will again refer the case no longer to
the mediation office but to another branch of the court for what is called the Judicial Dispute Resolution
(JDR).

If the mediation proceeding fails, the case will go back to the court and the judge, if he believes that there
is still a chance for the parties to enter into a compromise agreement, will refer the case to another branch
of the court, to another judge, who will conduct what is referred to as the JDR.

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If that fails, if no settlement is reached by the parties in the JDR, then the other court will return the case to
the court which is handling the case and then the court will now proceed with the trial of the case.

That is what is done, class. First, after the pre-trial hearing the court will refer the parties to the PMO, to a
mediation officer, and the mediation officer will try to convince the parties to settle their case amicably
(CAM). If he fails, he will prepare a report to the court that the mediation failed and the judge, if he believes
that settlement is still possible, will again refer the case to another judge who will conduct the JDR. If that
fails again, then the case will be returned to the court and then the court will now conduct the trial of the
case.

Okay, so we are done with pre-trial under Rule 18.

RULE 19: INTERVENTION

Let us go now to Rule 19, Intervention.

Q: Now, when may a person intervene in a pending action?

A: (1) If that person has a legal interest in the matter in litigation in that pending action, then he has a
ground for intervening in that pending action.

(2) When a person has a legal interest in the success of either of the parties in the pending action. So
when a person has an interest in the success of either of the parties in the pending action, that means
impliedly that he has an interest in the defeat of the other party.

(3) When the person will be prejudiced if the court orders the distribution or disposition of property in the
custody of the court.

Q: So how may a person intervene in a pending action where he is not a party?

A: He must file a motion for intervention. Motion for leave to intervene.

Under the old rules, that motion is a litigious motions. Under the old rules, the intervenor has to set his
motion for leave to intervene for hearing. That requirement has been dispensed with under the 2019
Amendments so when a motion to intervene or motion for leave to intervene is filed, there is no need to
set that for hearing. Because although it is a litigious motion, litigious motions under the 2019 Amendments
need not be set for hearing anymore. But, of course, the parties in a pending action must be furnished a
copy of that motion for leave to intervene.

……motion for leave to intervene. Now the court may in the discretion of the court set the motion for hearing,
under the 2019 amendments If the court believes there is a need to set the motion for hearing the court
may set the motion for hearing. Now in deciding whether to grant the motion for intervention or deny it, what
factors should the court consider in deciding whether to grant the motion for intervention or to deny it?
Under sec 1 rule 19 of the ROC the court shall consider two factors whether to grant or to deny a motion
for intervention.

What are these factors?

1. Whether the intervention will unduly delay or prejudice the rights of the parties in the pending
action. Okay that is one factor.
2. The second factor is whether the rights of the intervenor may be fully protected in a separate
action, the court must consider those two factors in deciding whether to grant or deny the motion
for intervention.

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There is no problem when there is no conflict between these two factors.?

What happens when there is conflict between these two factors? Let us say the intervention will definitely
delay ore prejudice the rights of the parties in the action, based on the findings of the action, but at the
same time the court has determined that the rights of the intervenor cannot be fully protected in a separate
action, the rights of the intervenor may only be fully protected in the pending case where he wants to
intervene. The two factors are now in conflict with eachother the intervention will definitely delay or prejudice
the adjudication of the rights of the parties in the pending action but the rights of the intervenor cannot be
fully protected in a separate action, it can only be fully protected in that pending case. Which factor should
the court consider? Under existing jurisprudence the interest of the intervenor shojld prevail. So even if the
court determines the intervention would unduly delay or prejudice the rights of the parties in the pending
action, but if the rights of the of the intervenor cannot be protected in full in a separate action then the court
should grant the intervention. Is that clear class? Dou you have any question regarding that?

When may the intervenor intervene?

ANS: at any time before judgement is rendered, a motion for intervention may be filed, provided a judgement
has not been rendered.

Under rule 19 the intervenor, lets call him now the intervenor (how do you say intevenor in Tagalog? Im
Bicolano), may file a complaint in intervention or an answer in intervention.

Q: when should the intervenor file a complaint in intervention? By the way when an intervenor files his
motion for leave to intervene, he should already attach to that motion either a complaint in intervention or
an answer in intervention.

Ans: when the intervenor has an interest either or both the parties in the pending action, he should file a
complaint in intervention. If the intervenor would want to join a defendant in a pending action to resist the
claim of the plaintiff against that defendant, he should file an answer in intervention. But an answer to what?
An answer to the complaint of the plaintiff in the pending action.

Let us say the intevenor is a co-owner in a property of the defendant in a pending action. The defendant
and intervenor owns in common a parcel of land, they are coowners of a parcel of land but only one of them
the defendant was sued by the plaintiff who was claiming ownership over that parcel of land. So the
intervenor now who is a co-owner has an interest in the matter in litigation. If the court decides on that
property he may be prejudiced so his interest now is to join that defendant to resist the claim of the plaintiff
over htat parcel of land, then he will file an answer in intervention.

I leave rule 20 to you class. If a question in the bar is taken from the bar, you tell me and I will surrender
my license as a lawyer. But that may happen 10 years from now or 15 years from now. That may not even
happen at all class. But in the rare instance, rare possibility just tell me.

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Lets go now to rule 21.

What is a subpoena?

ANS: an order of the court directing a person to appear in court and to testify in the trial of a case or to
appear in an investigation by a competent officer or for the taking of his deposition. Let me repeat an order
of the court directing a person to appear in court and to testify in the trial of a case or to appear in an
investigation by a competent officer or for the taking of his deposition. So that is a subpoena.

When a subpoena also directs a person to bring with him books documents or other things in his possession
or control, then that subpoena is called subpoena duces tecum. But of the person is only directed to only
appear and testify in a case then the subpoena is called subpoena ad testificandum. But if the subpoena
requires him to also bring with him books documents and other things then it is called subpoena ad
testificcandum.

What is the issue if the person who was issued and served a subpoena fails to comply with the subpoena?

ANS: the court under the rules under rule 21 may order his arrest, if the person served a subpoena fails to
appear in court, as directed by that subpoena.

What is the remedy of a person who was issued and served a subpoena? Sometimes a person I should
not have been issued a subpoena, I should not be ordered to go to court and testify, I do not know anything
about the case, why should I be ordered by the court or I dont want to get involved in that case.

ANS: The remedy of that person on whom a subpoena was serve is to file a motion to quash the subpoena

Now on what grounds may a person file a motion to quash the subpoena served on him? On what grounds
may he move for the quashal of the subpoena?

ANS: it depends class, it depends on the kind of subpoena served on him, if it was a subpoena ad
testificandum or a subpoena duces tecum.

So on what ground may a person move to quash subpeona duces tecum?

ANS:

1. The subpoena is unreasonable and oppresive. Okay so thats the first ground, that the suboena is
unreasonable and oppressive
2. The books documents or things that the person is being required to produce appear to be
irrelevant. They are not relevant. The book appear not relevant. the books, documents or things
that the witness, lets call the person the witness is being required to produce in court appear to
be not relevant to the case. Of course the witness must show that to the court, that the books
documents and things that I am being asked to produce do not appear to be relevant.
3. The applicant for the subpoena did not advance to the witness the reasonable costs of the books,
documents and things that the witness is being required to bring with him. So the third ground is
the applicant did not advance the reasonable costs of the production of books documents or
things that the witness is being required to produce in court. Thats the third ground.
4. That the witness fee and the kilometrage fee were not tendered to the witness when the
subpoena was served on him. So there is a requirement, that a witness fee and kilometrage fee
should be tendered to him. Because he is entitled to a witness fee and kilometrage fee when the
witness is required to testify in court. So when the witness and kilometrage fee were not offered
to the witness when the subpoena was served on him, that will be a ground to quash the
subpoena duces tecum. Four grounds class.

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What about if the subpoena to be quashed is a subpoena ad testificandum?

ANS:
There are two grounds

1. That the witness is not bound by the subpoena.

2. The witness fee and kilometrage fee were not tendered to the witness when the subpoena was
served on him.

Now when is a witness not bound by a subpoena?

Ans: a witness is not bound by the subpoena in two instances

1. When he resides more than 100 kilometers from the court he is required to testify. Then he is not
bound for that subpoena.
2. When he is a detention prisoner because there is a pending case against him, the permission of
the court from which his case is pending was not obtained. Then that is a reason where a witness
is not bound by the subpoena.

Okay class any question?

Classmate: sir question, pag government employee po ba kailangan pa ng witness fee?

Atty: I dont know that is not provided by the rules or jurisprudence. You might know. Are you a goernment
employee?

Classmate: yes sir

Atty: what government office are you working in?

Classmate: COA

Atty: how long have you been with COA

Classmate 6 years po

Atty: in what capacity are you working in COA?

Classmate: state auditor

Atty: are you a certified public accountant?

Classmate: yes sir

Atty: do you receive salary as a COA employee

Classmate Yes po sir

Atty: reason I ask is some employees of customs or the Bureau of internal revenue some employees of
these government offices they say “we are very luck because we are working with the BOC and yet we still
receive salary, we are already working with he BOC and still receive salary” meaning even if they don't
receive salary they would want to work with the BOC or the BIR. Do you, anyway its not important.

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Okay no more question regarding subpoena? Are you asked to testify in cases? Since you have to testify
in cases of government employees. Which you audit so you are called in the sandiganbayan, well not all
cause some cases of goernment officers are not cognizable by the sandiganbayan but by the RTC or the
MTC depending on the penalty for the offense charged. Those whose salary grade are below 27 and violate
the anti graft and corrupt practices act, then their cases are not filed with the SB but with the RTC or MTC
depending on the penalty. Cause for the SB to exercise jurisdiction over cases involving public officers
these public officers must have a salary grade of at least 27. Do you agree?

Classmate: yes po sir

Atty: of course you have no choice but to agree. Do you have a choice? Can you disagree? Tell me ms.
Classmate: no po sir

Atty: its not hard to say that, of course after this class you can tell your classmates that the professor is
wrong.

Oka lets go now to rule 22 computation of time or computation of periods. So rule 11 provides for periods
when to file responsive pleadings.

Lets go now to Rule 22 Computation of Time or Computation of Periods

So Rule 11 (Rule 11) provides for periods when to file responsive pleading, it provides for different periods.
Now there are rules in computing or counting those periods. There are specific rules for computing or
counting those rules prescribed by the Rules of Court specifically under Rule 11. Rule 22 provides for these
rules in computing or counting the period prescribed by the Rules. So there are four rules.

The first rule is that in counting a period prescribed by the rules the day of the act, (the day of the act) from
which the period begins to run shall be excluded and the day of the performance shall be included. That is
the first rule for the computation of a period. Let me repeat the day of act or event from which the period
begins to run shall be excluded and the day of the performance shall be included.

Q: What does that mean?

Let us apply it to an actual period prescribed by the Rules. Let's choose Section 1 of Rule 11 which provides
that the defendant shall file his answer within 30 days from the service of summons. So the period
prescribed for the defendant to file an answer to the complaint is 30 days from the service of summons. So
we are illustrating this rule, suppose I’m defendant class, (I´m the defendant) I was served summons today,
today is what date? October 10? Is it 10? So I was served, I am the defendant in a civil case. I was served
summons today, based on Section 1 Rule 11, I have to file my answer within 30 days from service of
summons, today is service of summons. So how do I count the 30 day period, within which I have to file my
answer to the complaint. The rule says the answer shall be filed within 30 days from service of summons.
So let us apply this rule so we know how to count the 30 day period, the day or the event, or act from which
the period begins to run shall be excluded.

Q: What is that act or event from which the period begins to run? Based on Section 1 of Rule 11 the answer
shall be filed within 30 days from the service of summons. What is the act or event from which the period
of 30 days shall begin to run? What is that? Based on Section 1 Rule 11?
Student: The service of summons, Sir.
Sir: The service of summons, I was served summons today now the first rule, the day of the act from which
the period begins to run shall be excluded, the day of the performance shall be included so today is the day
of the act from which the period begins to run. Because today I was served the summons, and the act or
the event is the service of summons. So since the day of the act from which the period begins to run shall
be excluded in counting the 30 day period from within which I should file my answer shall be excluded. So
today when I count my 30 days, today is .. I do not count starting today because today the day of the act is
excluded. So I do not start counting today.

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I have to count 30 days, from when? Not today, today is not day 1 of the 30 day period but tomorrow.
Tomorrow is day 1 of 30 days. Is that clear class? because the day of the event or act from which the period
begins to run (Section 1, Rule 11) from service of summons. ( within 30 days from service of summons) so
you count the 30 days period excluding the day of the event or act from which the period begins to run-
excluding today. Now, what is the day of the performance? The day when you file, so you have to file the
answer on the 30 day that is included in counting the 30 days, the day of the performance so you need to
file it on the 30th day.

So the second rule, is there any question regarding that? You know this already I’m just boring you with
this.

Let’s go to the second rule (the second rule) is that when the last day of the period which is the performance
falls on a Saturday or a Sunday or holiday in the place where the courts sits and the last day will be on the
next working day so when the period falls on Saturday or a Sunday or a holiday on the place where the
court sits then the next working day will be the last day. Is it possible on the place of the party served it is
Saturday but the place where the courts sits is not saturday? No, we are in the Philippines there’s only one
time. What do you call that? Timebelt? So if it’s Saturday on the place of the plaintiff or the defendant it will
be Saturday on the place where the court sits.

This reason why in the court sits , stated there “after holiday” the place of the defendant was served it may
be a not holiday but in the place where the courts sits is a holiday. So we apply this rule, if it is a holiday
where the party but not a holiday in the place where the court sits then this rule will not apply. (This rule will
not apply)

Third rule, when an act interrupts the running of the period, so when an act interrupts the running of a period
the allowable after the interruption shall start to run on the day after notice of the cessation of the cause of
the interruption. It may not be immediately clear to you. If an act interrupts the running of a period the
allowable period after the interruption shall start to run or shall be counted on the day after the notice of the
cessation of the cause of the interruption. We'll understand it better if we illustrate it, so when an act
interrupts the running of a period, would you think of an act on a pending case where the act when
performed will interrupt the running of a period prescribed by the rules. Let's say section 1 of Rule 11, the
defendant shall file the answer shall be filed within 30 days from the service of summons, that is the period
prescribed. What do you think is an act that can interrupt the running of the 30 days within which to file an
answer from the service of summons.

Q: What act of the defendant do you think will interrupt the running of the 30 day period for filing the answer?
Please I want to hear from you, anybody?

Student: Sir, when the defendant files for a motion of bill of particulars, will interrupt the running of the
period.
Sir: Ok let us use that. Let us say on the 20th day of the 30 day period, instead of filing for his answer the
defendant files a motion for bill of particulars. Instead of filing his answer he files for a motion of bill of
particulars on the 20th day of the 30 day period. When an act interrupts the running of a period, the
allowable period after the interruption shall start to run or be counted on the day after the notice of the
cessation of the cause of the interruption.

Q: What would be, since the motion for the bill of particulars was filed on the 20th day of the 30 day within
which to file the answer. What will be the allowable period after the interruption? What would be the
allowable period, the motion for the bill of particulars was filed on the 20th day of a 30 day period? What
would be the allowable period after the interruption? 20th day, 30 period. What is left?

Students: 10 days.

Sir: So that would be the allowable period after the interruption. So after the interruption the allowable period
shall start to run on the day after notice of the cessation of the cause of the interruption.

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Q: Notice of what?
A: The day after notice of the cessation of the cause of the interruption.

Q: In the context of filing for a bill of particulars, the allowable period because it was filed on the 20th day.
The allowable period is 10 days, but that 10 day period will start to run on the day after the notice of the
cessation of the cause of the interruption. What would that be? What would be notice of the cessation of
the cause? When will the interruption cease? So that the allowable period will again start to run, the
remaining period will again start to run. When will the interruption cease?

Sir: The interruption started when the motion for bill of particulars was filed so the period of filing the answer
has been interrupted from that time. From the time of filing for a bill of particulars.When will the interruption
cease? Ms. Acal?
Student: When the ...
Sir: When the defendant receives the order of the court. What order of the court?

Student: The order of the court requiring the filing the bill of particulars
Sir: Ok, let us not go there, it is a little complicated.

Let us simplify it, I'm sure many of you are hungry already.

Q: What order of the court?

A: Order of the court denying the motion of bill of particulars, so we know the allowable period after the
interruption is 10 days

Q: How should we count the 10 day period?

A: Of course when the interruption ceases, the period will again start to run. The remaining period will start
to run.

Q: What will stop the interruption? When will the interruption cease?
A: When the defendant receives the order of the court denying its motion for a bill of particulars. So the
allowable period after interruption shall start to run the day after the notice of the cessation of the cause of
the interruption.

What is the cause of interruption? The filing of the motion for a bill of particulars.
Q: When will interruption cease, receipt by the defendant of the order of the court denying his motion for a
bill of particulars. So he has 10 days within which to file his answer.

So when should he start counting the 10 day period? When? Will it be the day when he receives the order
of the court denying his motion for a bill of particulars because he has to file his answer. If the court denied
his motion for a bill of particulars he has 10 days.

Q: When should be the start counting the 10 days? Should it be the day he receives the order of the court
denying his motion for bill of particulars?

A: No. The rules says, the allowable period from the interruption shall start to run on the day after (on the
day after) the notice of the cessation cause of the interruption. So on the day after he receives the order of
the court denying the motion for a bill of particulars . So if I'm the defendant, I receive the order denying the
motion. I know I have 10 days left. Or the allowable period for filing the answer is 10 days. So i'll start
counting 10 days not today but tomorrow. The day after notice of the cessation of the cause of the
interruption.

Did I simply? Or did I made it complicated class? So do you understand it better now? Before we started
the class? Perhaps you are more confused now. Earlier 1 hour ago or 2 hours ago that is my best. That is
the most I can do. So I hope my most is enough, is enough.

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There is a fourth rule. We talked about an interruption by an act in our example the filing of a motion of a
bill of particulars will interrupt the running of the 30 day period for filing the answer so we said that the
motion for a bill of particulars was filed on the 20th day. How do we count the remaining period? According
to the fourth rule in computing for the allowable or remaining period. The day of the act which caused the
interruption shall be excluded. So what is the cause of the interruption? The day of the act which caused
the interruption shall be excluded in counting the remaining period. What is the act that caused the
interruption? The filing of the motion for a bill of particulars which was filed on the 20th day. In counting the
remaining period you do not count the 20th day because that is the act which caused the interruption. Start
counting the following day, you have 10 days. Do not include the day of the act which caused the
interruption. Is that clear class? We are done.

RULE 30-37

I’m sure that most of you by now acquired atleast a working knowledge of the provisions of the 1997 Rule
of Civil Procedure, therefore there’s no need for me to dwell on the provisions that were left untouched
by the 2019 amendments. For purpose of this lecture therefore, I intend to focus only on new provisions
introduced by the 2019 amendments as well as provisions that were substantially and significantly
amended. In addition, I will also discuss some old provisions which I believe are not yet well understood.

Let me start of Rule 30 on Trial, Section 1 is a new provision, it fixes the schedules, within what period
should he complete the presentation of his evidence.?

A: The plaintiff shall start presenting his or her evidence within 30 days from the termination of the pre-
trial conference.

Q:Within what period the plaintiff complete the presentation of evidence?

A:The plaintiff is given a period of 3 months or 90 calendar days within which to finish the presentation of
his evidence, by the way, everytime I say a period of days, it should be understood as “calendar days”.

Q:What happens if the court, upon failure of the parties to reach a settlement during mediation
proceedings decide to hold what is known Judicial dispute Resolution or JDR.

A: Section 1 of Rule 30 provides that the time spent for conducting the JDR shall be included in the 90
days period allotted to the plaintiff for the presentation of his evidence.

Q:What about the Defendant? When should he start presenting Evidence?

A: Section 1 of Rule 30 provides that the defendant must start presenting his evidence not later than 30
days from the time he is given notice of the ruling of the court on the plaintiff’s formal offer of evidence.

Q: Now, for how long may the defendant present his evidence?

A: The defendant is given the same period of 90 days or 3 months within which to complete the
presentation of his evidence.

You are of course aware the a defendant may set up his answer or responsive pleading, a counterclaim
against the plaintiff or a crossclaim against his co-defendant, or he may also file with leave of court a third
party complaint against a person who is not a party in the main action.

Q: The question now is, When should the defendants present evidence on his counterclaim, crossclaim or
third party complaint. Will this 3 month or 90 day period include the time that the defendant would spent in
adducing evidence to prove his counterclaim, crossclaim or third party complaint?

A: The answer is NO, the court shall give the defendant additional time to prove his counterclaim,
crossclaim or third party claim but in no case may the additional period exceed 90 days.

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Now, there are instances when after the defendant has rested his case, the court, upon the plaintiff’s
motion, may allow him to present rebuttal evidence.

Q: If the plaintiff is allowed to present rebuttal evidence, the courtt will most likely allow the defendant to
present sur rebuttal evidence . The question is What period should the Court give both parties to
complete their presentation of their respective rebuttal evidence?

A: Under Section 1 of Rule 30, the court shall give both parties a total period of not more than 30 days.

Q:What evidence may the plaintiff or the defendant present by way of rebuttal or sur rebuttal evidence?

A: The plaintiff’s rebuttal evidence may only refute whatever evidence was presented by the defendant
during his turn to present evidence. The plaintiff cannot present new evidence in support of his cause of
action

(plaintiff may present rebuttal evidence only the evidence that will disprove the defendant’s evidence)

On the other hand the defendant’s sur rebuttal evidence is limited only to refuting whatever rebuttal
evidence presented by the plaintiff. The defendant is not allowed to present new evidence in support of
his evidence

Q:Within what period should the court terminate the trial of a civil action?

A: Under Section 1 of Rule 30, the court has a period of 6 months or 180 days within which to complete
the trial of the case, however, if there are third fourth etc party claims or counterclaims or crossclaims,
The court is given a period of 10 moths or 300 days within which to complete the trial.

The most common motion filed in the trial of a case is a Motion for postponement and the most common
reason is that the party’s counsel has severe case of LBM. I wonder why lawyers are prone to LBM when
they seldom suffer heart disease.

Section 2 of Rule 30 provides that the party who sought and was granted postponement shall be required
to finish the presentation of his evidence within the same period allotted to him by the rules.

Under Section 6, the formal offer of evidence, the comment and objection thereto as well as the court’s
ruling on the formal offer of evidence shall all be done orally.

RULE 31

We go now to rule 31, Consolidation and Severance

Under Rule 31, When may several action pending before a court be consolidated for joint hearing or trial?

Section 1 provides that when several actions pending before a court involved common questions of law or
fact, the court upon motion or motu proprio may order the consolidation of cases for joint hearing or trial.

Before we proceed, let me explain first what the phrase “Several Cases pending before court” means.
In Pasay City for instance, there is only 1 metropolitan trial court with several branches.
In Quezon City, there is only 1 RTC but with several branches. When we say therefore that there are
several cases pending before the court it does not necessarily mean that the cases are pending in one
court. The phrase “several cases pending before a court “could also mean that there are several cases
pending in different branches of the same court.

Factoring this we can now restate the rule as follows:

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When several actions involving common questions of law or fact are pending before different branches of
the same court, the cases may be consolidated in a branch of the court where one of the cases is
pending for joint hearing or trial.

When several actions involving common questions of LAW or FACT are pending before DIFFERENT
BRANCHES of the SAME COURT, the cases may be consolidated in a branch of the court where one of
the cases is pending, for joint hearing or trial.

Q:When it may be consolidated?

A: When several actions involving common questions of LAW or FACT are pending before DIFFERENT
BRANCHES of the SAME COURT involving the same parties

Q: How is this practiced?

A: The cases having common questions of law or fact are consolidated in the branch of the Court, where
the case having the lowest docket number is pending.

Q: What is the reason for this practice?

A: The case having the lowest docket number is the case which was filed first. It is logical that cases having
common questions of fact or law, but filed on different dates, shall be consolidated with the case that was
filed first.

REPUBLIC OF THE PHILS. V. HEIRS OF ENRIQUE ORIBELLO

~The SC discussed the 2 kinds of consolidation of cases.

1. ACTUAL CONSOLIDATION - Happens when several cases are combined as one, with each of
the cases, losing its separate identity. Under this kind, the joint cases are merged into a single
action where a single judgment is rendered.

2. CONSOLIDATION FOR TRIAL - Several cases are ordered to be tried together, but with each of
the cases retaining its separate character and identity. The Court will render a separate judgment for each
of the cases that were consolidated.

SEVERANCE
~ It is the opposite of consolidation. The general rule is that all the issues pleaded in a case shall be tried
jointly and must be resolved in one judgment.

Q: When may the Court by way of exception, order that a distinct claim or issue be tried separately from
the main action?

A: In Metrobank v. Sandoval, the SC explained that the trial court may only order a separate trial of a claim
or issue if parties seeking a severance clearly shows that a separate trial would:

1. Prevent prejudice
2. Promote justice
3. Further convenience
4. Allow a fair trial for all parties

RULE 32 (TRIAL BY COMMISSIONER)

~ The provisions are self-explanatory. They explain themselves. Atty. Obra assigns you to read this on your
own for the bar exams, hopefully in 2021.

RULE 33 (DEMURRER TO EVIDENCE)

~ The word “demurrer” is a noun which means objection, protest or a challenge. The verb form is “to demur”
means to object to, take exception to or to dissent from. When a defendant files a demurrer to evidence,

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he tells the Court that even assuming that the facts established by the evidence of the plaintiff are true, they
are not sufficient to justify the reliefs prayed for by the plaintiff in his complaint.

A demurrer to evidence is a Motion to Dismiss. It is however a different kind of motion to dismiss

from the one provided for in paragraph (a), Section 12 of Rule 15 of the Amended Rules.

DISTINCTION BETWEEN MOTION TO DISMISS AND DEMURRER TO EVIDENCE

1. A motion to dismiss is filed within the period for filing, but before filing an answer. A demurrer to
evidence is filed after the plaintiff has completed the presentation of evidence.
2. A motion to dismiss under Rule 15 is filed under four grounds (A. That the court has no jurisdiction
over the subject matter of the case, B. There is another action pending between the same parties
and for the same cause, C. The action is barred by prior judgment, D. That the action has been
prescribed).

Q: What are the grounds for demurrer to evidence?

A: Rule 33 is vague as to this point. It provides that after the plaintiff has completed his presentation
of evidence, the defendant may move for dismissal on the ground that upon the facts and the
law, the plaintiff has shown no right to relief.

Q: What is meant by “upon the facts and the law, the plaintiff has shown no right to relief”. What
facts, what law?

A: Let us start with what we know. The defendant files the demurrer to evidence after the plaintiff
has completed the presentation of his evidence. Based on this, we can surmise that there is
something wrong or deficient in the totality of the plaintiff’s evidence.

Q: By what amount of evidence should the plaintiff establish the material facts in his complaint so
that after resting his case, he could assert that upon the facts he has established, he is by law
entitled to the reliefs he prayed for in his complaint.

A: The Rules require that the plaintiff shall allege in his complaint all the material facts essential in
his cause of action. His failure to allege even one material fact would provide the defendant a
ground for the dismissal of the complaint. To be entitled in the reliefs in his complaint prayed for,
the plaintiff by the time he completes the presentation of evidence, must have established at least
by PRIMA FACIE EVIDENCE all the MATERIAL FACTS ALLEGED IN HIS COMPLAINT.

PRIMA FACIE EVIDENCE - Is the amount of quantum of evidence which is sufficient to establish
a fact or a set of facts, in the absence of contrary evidence. If after resting his case, the plaintiff
was able to prove the material facts in his complaint at least by PRIMA FACIE evidence, the
defendant who has yet to present contrary evidence would have no ground to file a demurrer to
evidence.

We have now identified the real ground for demurrer to evidence. It is the failure of the plaintiff after
completing presentation of his evidence, to prove by at least prima facie evidence, all the material facts
alleged in his complaint that will justify that the defendant was not presented even an iota of contrary
evidence to move for the dismissal of the case.

Let us now discuss the Rules governing Demurrer of Evidence.

Section 1 of Rule 33 provides that when the demurrer of evidence is denied, the defendant retains his
right to present his evidence

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When the demurrer to evidence is granted on appeal, the order of dismissal is reversed and the defendant
loses his right to present his evidence.

In the case of Radiowealth Finance Co. vs. Del Rosario, the SC ruled that when an appellate court
reverses the order of a trial court granting the defendant’s demurrer to evidence, the appellate court should
not remand the proceedings to the trial court but rather render judgment on the basis of evidence adduced
by the plaintiff in the trial court. The SC explained that the defendant could no longer present evidence,
remanding the case to the trial court would just be a waste of time.

What is the remedy to the defendant whose demurrer to evidence was denied?

To know the proper remedy, we should first determine the nature of an order denying the demurrer.

Is it a final order? Does it resolve all the issues in the case and terminate the proceedings thereof leaving
nothing to do by the court?

Or is it an interlocutory order, one that resolves one or some of the issues in the case and therefore, does
not terminate the proceedings?

Based on what we said about final and interlocutory orders, the order of the court denying the demurrer
to evidence is definitely an interlocutory order.

Section 2 of Rule 33, a new provision expressly provides that the order of the court denying the demurrer
to evidence shall not be the subject of an appeal, petition for certiorari, prohibition or mandamus.

Of course an order of denying a demurrer to evidence being an interlocutory order is not appealable.

But why cant it be the subject of petition for certiorari, prohibition or mandamus?

We know that as a rule, interlocutory orders are reviewable by petition for certiorari, prohibition or
mandamus.

Now, the reason is obvious. A defendant whose demurrer to evidence has a plain, speedy and adequate
remedy in the ordinary course of law. He can go to trial and present his evidence.

What is the remedy of a plaintiff whose case was dismissed because the defendant's demurrer to evidence
was granted?

An order granting the demurrer to evidence being obviously a final order, the remedy of the plaintiff
is to appeal the order.

In the case of RP vs. Gimenez, Justine Leonen opined that since an order granting the demurrer to
evidence is a final order that partakes the nature of a judment on merits. It must also comply that the facts
and the laws on which it is based must be clearly stated therein.

What is the significance of the new provision under Section 2, Rule 33 which states that a demurrer to
evidence must be subject to Rule 15?

Under Section of 5 of Rule 15, a demurrer to evidence is listed as one of the litigious motions.

When a litigious motion is filed, the adverse party has a period of 5 days from notice within which to file his
opposition thereto. Within 15 days from receipt of court or upon expiration of the period to file an opposition,
the court shall resolve the motion. Under the 1997 rules, all litigious motions must be set for hearing,
otherwise, it would be treated as pro-forma motions and it will not suspend the period on filing pleadings or
motions.

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For instance, a motion to dismiss was a litigious motion. A litigious motion not set for hearing cannot
suspend the period on which to file an answer.

In the same manner, the filing of motion for new trial is a litigious motion under the old rule, not set for
hearing cannot suspend the period for filing an appeal.

All of these have changed under the 2019 amendments.

Litigious motions are now no longer required to be set for hearing. Since the party filing a litigious
motion is no longer required to set the motion for hearing, it is now the burden of the adverse party to
determine whether or not the motion served to him is litigious or not.

If it is, he should file his opposition within 5 days from his receipt, otherwise, the court will resolve the motion
without his opposition.

Under Section 6 of Rule 15, however, the Court under the exercise of his discretion, may call for a hearing
on the litigious motion, in which cae, it shall send notice to all parties specifying the time and date of hearing.

Demurrer to Evidence in Civil Vs. Criminal Cases

1.In Civil Cases, Leave of Court is not required.

When the demurrer is denied, the defendant always retains his right to present evidence regardless of leave
of court.

In Criminal Cases, when an accused files a demurrer to evidence, without leave of court, and it is denied ,
the accused loses his right to present evidence.

2.In Civil Cases, when the defendant’s demurrer is granted, the plaintiff may still appeal.

But in Criminal Cases, when the accused defendant’s demurrer is granted , the prosecution cannot appeal
the order of the court granting the demurrer.

In the case of RP vs. Geminez through Justice Leonen, the SC explains the rationale behind this rule in
Criminal Cases.

When the Court dismisses the Criminal Case against the accused…The Rights against double jeopardy

Because an order of dismissal of a criminal case is equivalent to the acquittal of the accused.

Q:May the court Motu proprio dismiss the case in civil cases? No

But in Criminal cases, if theres a ground to demurrer to evidence, even if the accused will not file
demurrer to evidence, the court has the duty to dimiss the case.

RULE 34, SEC 1: When answer fails to tend an issue, or otherwise admits material allegations of the
adverse party’s pleading.

Now, you may ask what will justify the court in rendering judgement based only on the bare facts alleged in
the complaint considering that the plaintiff has not presented even an iota of evidence to prove them. We
know that when the defendant fails to properly deny the material facts alleged in the complaint, he
will be deemed, whether he likes it or not, to have admitted them. We know the rule that when facts
are admitted or are deemed admitted, they need not be proved. These facts are deemed established
without the party asserting them having to present evidence to prove them. When a court therefore renders

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a judgment on the pleadings, it is actually rendering a judgment based on facts that are deemed established
and which need not be proved.

Case: Adolfo vs. Adolfo which was promulgated on March 18, 2015, SC ruled that although the answer
failed to properly deny the material allegations to the complaint thereby failing to tender any issue but since
the defendant alleged matters in his answer by way of an affirmative defenses and these new
matters necessarily produced factual issues because they were deemed controverted by the plaintiff
then it was improper for the trial court to have granted the plaintiff’s motion for judgment on the pleadings.
SC however, opined that in another case, that if the affirmative defenses asserted in the answer did not
produce any factual issues that would require a trial, then it would be proper for the trial court to render
judgment on the pleadings.

In some cases, even if the defendant’s answer fails to tender an issue or otherwise admits the material
allegations of the complaint, the court is prohibited from rendering a judgment on the pleadings. These are
actions for declaration of nullity of marriage, actions for annulment of marriage and actions for legal
separation. What is common among these cases is that they all involve spouses whose marriage are on
the rocks. In most cases, both spouses want their marriage declared null and void or nullified or they just
want to be socially distanced from one another as far as possible. The tendency therefore is for the spouses
to collude which practice is prohibited by law. One form of collusion in these is cases is for one spouse to
file a petition and for the other spouse to intentionally file an answer which fails to tender an issue thereby
allowing a judgment on the pleadings. To frustrate this kind of collusion in these cases therefore, Sec 1 of
Rule 34 prohibits the court from rendering judgment on the pleadings.

Sec 2 of Rule 34 provides that a motion for judgment on the pleadings shall be subject to the provisions of
Rule 15 of the amended rules. Since sec. 5 of rule 15 includes a motion for judgment on the pleading in its
lists of litigious motions, it will therefore be governed by the provisions of Rule 15 pertaining to litigious
motions. We do not have to discuss this provision now because we have already discussed them in detail
in connection with our discussion on demurrer to evidence.

Under the 1997 rules, the court cannot moto proprio render judgment on the pleadings, under the 2019
amendments however, the court may now, on its own initiative render judgment on the pleadings if
it is convinced that the answer fails to tender an issue or otherwise admits the material allegations
in the complaint. The 2019 amendments also introduced the new provision that any order of the court
whether granting or denying the motion for judgment on the pleadings is not appealable and shall not be
subject to certiorari, prohibition or mandamus.

RULE 35

Let us now go to rule 35, summary judgments. We already know that motion for judgment on the pleadings
may be filed by the plaintiff. Now, which party may file a motion for summary judgment, sec. 1 of rule 35
provides that a party seeking to recover a claim, counterclaim or cross claim or to obtain declaratory
relief may file a motion for summary judgments. Based on this provision, we now know that the plaintiff,
the counter claimant, the cross claimant and the petitioner in an action for declaratory relief may file a
motion for summary judgment.

Who else may file a motion for summary judgement? Sec. 2 of rule 35 provides A party against whom
a claim, counterclaim, or cross-claim is asserted or a declaratory relief is sought may also file a
motion for summary of judgment. We are therefore informed by the provision that the defendant in a
main action or the defendant in the counterclaim or the defendant in the cross claim or the respondent in
an action for declaratory relief may also file a motion for summary judgment.

Q: When may the plaintiff or other claiming parties file a motion for summary judgment?
A: The plaintiff may file a motion for summary judgment at any time after he is served a copy of the answer.

Q: What about the defendant, when may he file a motion for summary judgment?
A: Sec. 2 of Rule 35 says that a defendant may file a motion for summary judgment at any time.

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Q: What does an at any time mean?
A: It appears as an open ended, of course it could only mean after the court has acquired jurisdiction
over the person of the defendant. But since the rules allowed the defendant to file a motion for summary
judgment at any time, he may file it before he files his answer. If he can, if that is the intention of the rules,
then there would be a problem on 2 counts.
1. There is nothing in the old rules or the amended rules that says the filing of the defendant
of a motion for summary judgment will suspend the running of the period for filing his answer and
so a defendant who files a motion for summary judgment before he files his answer will always run
the risk of being declared in default, and
2. Before the defendant files his answer, factual issues, whether genuine or sham, would not
exist leaving the defendant no ground for a motion of a summary of judgment.

But let us leave these questions unanswered.

A material fact is fact alleged in the complaint that is essential to the plaintiff's cause of action. A factual
issue arises only when the plaintiff asserts a fact in his complaint that the defendant properly denies it in
his answer. There is no genuine issue as to material facts when defendant’s denials of the material facts
are false and contrived. Thereby producing not genuine, factual issues but spurious, sham, and fictitious
ones.

This is why when a party files a motion for summary judgment, he is required to adduce evidence by citing
and attaching to his motion affidavits and depositions of his witnesses, as well as admissions by the adverse
party.

Philippine Bank of Communication v. Go – SC held that summary judgment is proper when there are no
genuine issues of fact which call for presentation of evidence in a full-blown trial. Instead, what exists are
sham and spurious factual issues. Thus, when the affidavits, depositions, and admissions cited and
attached in the motion show that factual issues are not genuine, then summary judgment must be rendered
as a matter of law.

Adolfo v. Adolfo – SC differentiated motion for judgment on the pleadings and motion for summary
judgment. In motion for judgment on the pleadings, there is no factual issue at all because of failure of the
defendant's answer to produce or raise any factual issue. In summary judgment, there are factual issues
only that they are not genuine but sham and spurious. In motion for judgment on the pleadings, the moving
party is not required to attach affidavits, depositions, and admissions. On the other hand, because factual
issues exist in a motion for summary judgment, the moving party is required to produce evidence by way
of affidavits, depositions, and admissions.

Sir’s personal opinion: He thinks that there is no situation where the defendant may properly file a motion
for summary judgment. If there is no genuine issue as to a material fact, it would be the defendant's fault.
It was the defendant that made false denials giving rise to the spurious and sham factual issues. Therefore,
allowing the defendant to file a motion for summary judgment and ask the court to rule in his favor is to
reward him for his fault.

Since a motion for summary judgment is in the list of litigious motions under Section 5, Rule 15, it is
therefore governed by the rules pertaining to litigious motions.

RULE 36 – Judgments, Final Orders, and Entry thereof

Judgment is the final determination by the court of the respective rights and obligations of the parties in the
action or proceeding. To be valid, the requisites are:

1) Court must have jurisdiction over the subject matter of the case and over the parties,

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2) It must be in writing,

3) The judgment must be personally and directly prepared by the judge,

4) The judgment must clearly and distinctly state the facts and the law on which it is based, and

5) Signed by the judge

The fourth requirement is a constitutional requirement. Section 14, Art. VIII of the Constitution expressly
provides that no decision may be rendered by any court without expressing therein clearly and distinctly
the facts and the law on which it is based.

Miguel v. JCT Group Inc. – SC ruled that does not clearly and distinctly state the facts and law on which it
is based leaves the parties in the dark as to how it was reached. It is especially prejudicial to the losing
party who is unable to pinpoint the possible errors of the court for review by a higher tribunal. Such decision
is a patent nullity and should be struck down and set aside as void.

Also, under Section 14, Article VIII of the Constitution, an order of the court denying a motion for
reconsideration of a judgment is deemed a judgment in itself. It must therefore state clearly and distinctly
the facts and the law on which it is based.

In another case (he didn’t mention the title), the Court granted a demurrer of evidence partakes the nature
of a judgment and must therefore state clearly and distinctly the facts and the law on which it is based.

In another case (didn’t mention title), the order of the court granting or denying a motion to dismiss, being
akin to a judgment, must likewise state clearly and distinctly the facts and the law on which it is based.

Rendition of Judgment

- Let us say the judge has already clearly and distinctly stated the facts and law on which it is based
and has already signed it, how will the judge render judgment? Section 1 of Rule 36 states that a judgment
is rendered when the judge, after complying with all the requisites for a valid judgment, files the
written copy of the judgment with the clerk of court. It is the filing by the judge of the copy of the
judgment with the clerk of court which constitutes rendition of judgment.

- What is the rendition’s significance? What happens in rendition of judgment?

A:The judgment becomes final, although not yet executory.

Before filing the judgment with the clerk of court, the judge can do whatever he wants with the judgment.
He can make the winning party lose, or he can make the losing party win. If he wants, he can even throw
the judgment to the waste basket. But once he files the judgment with the clerk of court who is the
official custodian of all court records, the judgment becomes officially part of the record of the case,
and it becomes final, although not yet executory.

After the judgment has been rendered, the court will send (usually by registered mail) copies of the judgment
to all the parties of the case. Receipt by a parties of notice of judgment. The notice of judgment for a
party is the exact moment when the period to appeal the judgment begins to run. If the proper mode
to appeal is by notice of appeal, then the party has 15 days from notice of the judgment within which to
appeal the judgment. If the proper mode to appeal is by record on appeal, then he has a period of 30 days
from notice of judgment within which to appeal the same.

We have now discussed rendition of judgment and notice of judgment.

ENTRY OF JUDGMENT

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Let us now discuss entry of judgment. There are two ways by which entry of judgment may be understood.

1. We can understand it as the exact time when the judgment becomes not only final, remember it
became final upon rendition, but also executory.
2. Or we can understand entry of judgment as the time when the clerk of court enters the dispositive
portion of the judgment in a book of entries of judgment, after the judgment has become final and
executory. But since the clerk of court may only enter the judgment in the book of entries of
judgment after the judgment has become final and executory, there is always a time lag. It could
be weeks, it could even be months between the time the judgment becomes final and executory
and the time when the clerk of court actually enters the judgment in the book of entries of judgment.

Before the effectivity of the 1997 Rules of Civil Procedure, this was a constant source of confusion. Section
2 of Rule 36, however, makes it now crystal clear that the date of finality of the judgment or final order
shall be deemed to be the date of its entry. What does this mean? It means that when we say date of
entry of judgment, we are not referring to the date when the clerk of court actually entered the judgment in
the book of entries of judgment, but when the judgment became final and executory. (when period to
appeal expired )

I almost forgot to ask a very important question, when does a judgment become final and executory?

A: A judgment becomes final and executory when the periods to appeal for all the parties have expired and
no appeal, motion for new trial or reconsideration has been filed. Why did I say periods to appeal? The
answer is simple. Since the parties may receive the judgment on different dates, they would naturally have
different periods to appeal.

SEVERAL JUDGMENT

When may a court render what is referred to as several judgment? When there are several defendants in
a case, and the court deems it proper to render a judgment against one, or some, but not all defendants,
leaving the case to proceed against the other defendants, the judgment rendered by the court is called
several judgment.

SEPARATE JUDGMENT

Another kind of judgment is called separate judgment. When may a court render a separate judgment?
When several claims or reliefs are joined in one complaint, the court after resolving all the issues pertaining
to one, or some, but not all the claims or reliefs, may render judgment on those claims or reliefs that have
been resolved leaving the case to proceed with regards to the remaining claims or reliefs. The judgment
rendered by the court is called separate judgment.

RULE 37

We now go to Rule 37. New trial and reconsideration. Let us discuss the different remedies available to a
party from the time he receives a copy of the adverse judgment, but before the judgment becomes final and
executory. These remedies are referred to as post-judgment remedies. The losing party has three post-
judgment remedies:

1. He may file a motion for new trial.

2. He may file a motion for reconsideration.
3. The losing party may appeal the adverse judgment.

Of course, there is a fourth remedy, and a very effective one. The losing party may fire his counsel and
replace him someone who graduated from Arellano Law School, the best law school along Donada St.

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Let us start with motion for new trial. When may the aggrieved party file a motion for new trial. He may file
it at any time after he receives a copy of the judgment, but before the judgment becomes final and
executory---that is before the period to appeal expires. When a party files a motion for new trial, what relief
or reliefs is he asking from the court? What does he want the court to do with regards to the adverse
judgment? When an aggrieved party file a motion for new trial, he wants the court to do two things for him:

1. He wants the court to set aside the adverse judgment. In other words, render the judgment
nugatory.
2. The aggrieved party wants the court to grant him a new trial or another chance to present his
evidence.

Let us now go to another aspect of a motion for new trial. On what grounds may a party file a motion for
new trial? Under Section 1 of Rule 37, there are two grounds for a motion for new trial. I will paraphrase the
provision of the Rule to make it easier for us to understand to remember these provisions. What you
understand, you easily remember. The first ground for a motion for new trial is that the substantial rights of
the aggrieved party during the trial of the case might have been impaired due to fraud, accident, mistake or
excusable negligence. To understand this ground, we should know exactly what the substantial rights of a
party during a trial of a case are.

We know that the main purpose of a trial is to give the parties the opportunity to present evidence in support
of the allegations in his pleading. Knowing this, we can conclude that the most important right of a party
during the trial of a case is to be able to present his evidence either in support of his cause of action or of
his defense. When a party therefore is prevented from presenting his evidence during the trial of the case
due to fraud, accident, mistake or excusable negligence resulting in a judgment against him, then he has a
valid ground for filing a motion for new trial. This is what is meant by the phrase “the aggrieved party’s
substantial rights during the trial might have been impaired.” This is the reason why when a party files a
motion for new trial, he asks the court to set aside a judgment, and grant him a new trial so that he can
present the evidence which he was prevented from presenting during the trial of the case due to fraud,
accident, mistake, or excusable negligence. But the court will not just accept this ground on its face value;
the party moving for a new trial on these grounds must show to the court that despite his exercise of ordinary
diligence, the fraud, accident, mistake, or excusable negligence still happened. In the case of Padilla
Rumbawa vs. Rumbawa, the Supreme Court ruled that the blunders and mistakes committed by the party’s
counsel during the trial of the case, due to his ignorance, inexperience, or incompetence, do not qualify as
a ground for new trial. If such were to be admitted as valid grounds, according to the Supreme Court, there
would never be an end to litigation, so long as a new counsel could be employed to allege and show that
the prior counsel had not been sufficiently diligent, experienced, or learned.

Let us now go to the second ground for a motion for new trial. An aggrieved party may also file a
motion for new trial on the ground of newly discovered evidence. Newly discovered evidence refers to
evidence that the aggrieved party discovered only after the trial of the case. Since the aggrieved party
discovered the evidence only after the trial of the case, obviously he could not have produced and
presented it at the trial. But before the court will accept newly discovered evidence as a ground for a
motion for new trial, the moving party must show to the court the concurrence of three requisites. In the
case of Mendoza vs. Osamis, the SC laid down these three requisites. First, the evidence must have
been discovered after trial. Second, the evidence could not have been discovered and produced during
trial even with the exercise of reasonable diligence. And third, the evidence is not merely corroborative or
cumulative but it must be of such weight that if admitted, it would probably change the judgment from one
that is adverse to the aggrieved party to one that is favorable to him.

Let us now go to the second post-judgment remedy which is Motion for Reconsideration.

Q: When may the aggrieved party file a motion for reconsideration?

A: He may file at any time after notice of judgment but before the judgment becomes final and executory.

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Q: On what ground may a motion for reconsideration be filed?

A: Under the 2nd paragraph of Section 1 of Rule 37, a motion for reconsideration may be filed on any of
three grounds: (1) that the damages awarded are excessive; (2) that the evidence is insufficient to justify
the judgment; and (3) that the judgment is contrary to law. Take note that the three grounds for
reconsideration of judgment are also grounds for an appeal of the judgment. A party having these
grounds therefor, may choose between filing a motion for reconsideration or appealing the judgment.

When a party files a motion for reconsideration, he is not complaining that he was prevented from
presenting his evidence during the trial. In fact, by filing a motion for reconsideration, the movant is
admitting that he was able to present all his evidence during the trial. His complaint is that the court, in
deciding the case, misappreciated his evidence; or that the court excluded his evidence which, under the
Rules on Evidence, should have been admitted; or that the court admitted the adverse party’s evidence
which, under the Rules on evidence, should have been excluded; or that the court applied the wrong law
to the case; or while the correct law was applied to the case, the court misinterpreted it. These are what
are referred to as errors of fact and errors of law.

As you can see, while the remedy of motion for reconsideration is interchangeable with the remedy of
appeal, it is not so with the remedy of motion for new trial. A motion for new trial and a motion for
reconsideration have different grounds and different reliefs prayed for. Both remedies are, however,
covered by the Omnibus Motion Rule; as you may remember, the Omnibus Motion Rule provides that a
motion that attacks a pleading, order, judgment, or proceeding, shall include all the objections then
available, and those objections that are not included are deemed waived. This is the reason why the
filing of a second motion for new trial or reconsideration is prohibited. When a party files a motion
for new trial or reconsideration, it should include all available grounds because he is not allowed to file a
second motion for reconsideration or motion for new trial. Under Rule 15, both a motion for new trial and
reconsideration are listed as litigious motions, and must therefore comply with the requirements of
litigious motions.

RULE 40

Let us now go the third post-judgment remedy, Appeals, starting with Rule 40.

In civil cases, the right to appeal is not a constitutional right, neither is it part of the due process clause of
the constitution. Of course, the right to appeal is also not a natural right. The right to appeal, at least in
civil cases, is a mere statutory right. A litigant in a civil case may appeal an adverse judgment only
because there is a law that confers on him the right to appeal.

Q: Now, what is the significance or consequence of the fact that the right to appeal is a mere statutory
right?

A: The consequence is that an appellant must strictly comply with all the requirements prescribed by law
for an appeal. Failure of the appellant to comply with any requirement prescribed by law is a ground for
the dismissal of the appeal.

Q: What is the effect of an appeal to the judgment appealed from? Stated differently, what happens to the
judgment after it is appealed?

A: As a rule, an appeal vacates the judgment appealed from. When an appeal vacates the judgment,
it is as if no judgment has been rendered yet in the case. A judgment that has been vacated cannot, as a
rule, be executed.

Before we proceed further with appeals, it is necessary for us to make a distinction between error of
judgment and error of jurisdiction.

Q: When does a court commit an error of judgment?

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A: A court commits an error of judgment when, despite having jurisdiction over the subject matter of the
case, it commits an error of fact or an error of law in the exercise of its jurisdiction.

Q: Now when does a court, having jurisdiction over the subject matter of the case commits an error of
fact?

A: The court commits an error of fact when it admits evidence which, under the rules on evidence, should
be excluded. It also commits an error of fact when it excludes evidence which, under the Rules on
Evidence, should be admitted. Another way of committing an error of fact is when the court, after correctly
admitting evidence, it gives it probative value that it does not deserve under the Rules on Evidence.
Lastly, the court commits an error of fact when, after correctly admitting evidence, it withholds from it the
probative value that it deserves under the rules on evidence.

Q: Going now to another form of error of judgment; how does a court, having jurisdiction over the case,
commit an error of law?

A: One way of committing an error of law is when, in the exercise of its jurisdiction, the court applies the
wrong law to the set of facts correctly established in the case. Another way of committing an error of law
is when the court, having jurisdiction over the case, applies the correct law…

Q: How does a court having jurisdiction over the case commit an error of law?

Ans:

1. One way of committing an error of law is in the exercise of its jurisdiction the court applies the
wrong law in the set of facts correctly established in the case.
2. Another way of committing an error of law, when a court having jurisdiction over the case applies
the correct law to the facts of the case, but in the process of applying it misinterprets the law.

Let us now discuss how a court can commit an error of jurisdiction this is very important a court commits
an error of jurisdiction when despite having no jurisdiction over the subject matter of the case, the court
exercises jurisdiction over the case. Let me repeat the court commits an error of jurisdiction when despite
having no jurisdiction over the subject matter of the case, exercises jurisdiction over the case.

Q. May a court having jurisdiction over the case, commit an error of jurisdiction?
Ans: yes, a court having jurisdiction over the case may nevertheless commit an error of jurisdiction when
in the exercise of its jurisdiction it commits grave abuse of discretion amounting to lack or excess of its
jurisdiction

So it is clear that a court having no jurisdiction over the subject matter of the case or a court having
jurisdiction of the subject matter of the case may both commit error of jurisdiction.

Now why did we spend a lot of time discussing the distinction between error of judgement and error of
jurisdiction the reason is because an error of judgement and an error of jurisdiction require different
remedies. If a parties counsel chooses the wrong remedy for any of these errors it would spell disaster of
course for the client, not for the counsel. If experience has thought me anything it is the fact that the
counsel for both parties in the case always win and almost always both parties lose.

Going back to business, the remedy of an aggrieved party for an error of judgement is appeal, the remedy
for an error of jurisdiction is a petition for certiorari under rule 65 provided however that the aggrieved
party has no appeal, or any plain, speedy and adequate remedy in the ordinary course of law.

We are done with these preliminary matter on appeal. Let us now go to appeals proper.

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Allow me to take some liberties with regards to appeals I divide appeals into two groups. The first group is
ordinary appeals, and the second group is for the lack of a better term “other appeals”. I don't want to call
them special appeals because there is nothing special about them.

There are two kinds of ordinary appeals the first is ordinary appeal by notice of appeal and the second is
ordinary appeal by record on appeal. Ordinary appeals are covered by rules 40 and 41.

Under other appeals there are three kinds, the first is petition for review under rule 42, the second kind is
also petition for review under rule 43, and the third kind of other appeals is petition for review on certiorari
better known as appeal by certiorari under rule 45.

Let us start with ordinary appeals.

Q: When do we use ordinary appeals?

ANS: We use ordinary appeals when the judgement appealed from was rendered by the court in the
exercise of its original jurisdiction

But as you already know there are two kinds of ordinary appeals, ordinary appeal by notice of appeal, and
ordinary appeal by record on appeal.

Q:When do we use ordinary appeal by notice of appeal?

ANS: We use this kind of ordinary appeal when the judgement appealed from was rendered by the court
in the exercise of its original jurisdiction in a case where only one appeal is allowed. This kind of appeal is
the most frequently used because in about 95% of cases only one appeal is allowed. In most cases a n
appeal may be taken only after a judgement in a case has been rendered.
By the way a notice of appeal is usually in a one page document, where the appellant formally informs the
court and the adverse party, that he is appealing the judgement to the proper court, stating the date when
he received a copy of the judgement or the order of the court denying his motion for new trial or
reconsideration. The notice of appeal also states, that the appellant has already paid as shown by the
receipts attached the requisite docket and other lawful fees. It takes about ten (10) minutes to prepare a
notice of appeal.

A notice of appeal shall be filed within fifteen (15) days from notice of judgement or from receipt of the
order denying the motion for new trial or reconsideration.

The other kind of ordinary appeal is Record on appeal.

Actually in this kind of ordinary appeal, the record of appeal is still accompanied by a notice of appeal.

Q: when should an ordinary appeal by record on appeal be used?

A: ordinary appeal by record on appeal shall be used when the judgement appealed from was rendered
by the court in the exercise of its original jurisdiction, in a case where multiple or several appeals are
allowed.

There are only a few cases where several or multiple appeals are allowed in one case. In this kind of
case a party is allowed to appeal an order of the court while the main case remain pending in the trial
court.

Multiple appeals are allowed in special proceedings and in some special civil actions such as actions for
expropriation and partition.

Q: what is a record on appeal?

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A: A record on appeals is a compilation of all the orders of the court, as well as the pleadings, motions,
and other submissions of the parties that are relevant to the particular order of the court being appealed
from.

Q: Why is party who wants to appeal an order of the court, while the case is still pending therein required
to file a record on appeal?

A: the reason is simple, since the record of the case cannot be transmitted to the appellate court,
because despite the appeal, the main case will remain pending in the trial court. The party appealing is
required to furnish the appellate court his own record of the case pertinent to the subject of the
appeal…Since it takes quite some time to prepare record on appeal, the appellant is given a longer
period of 30 days from Notice of the order appealed from within which to file his record of appeal.

Let us now discuss, Appeals from judgments of the Municipal Trial Courts under Rule 40. I need not
tell you that Municipal Trial courts include MTCC, MCTC, MeTC.
Being the lowest court, the MTC exercises only original jurisdiction. The only jurisdiction it exercises other
than original is the delegated jurisdiction over cadastral and land registration cases which the MTC may
only exercise upon delegation by the SC.

Let us just assume that MTC exercises only original jurisdiction. Since the MTC exercises only original
jurisdiction, the proper mode of appeal from all its judgments is ordinary appeal. We already said earlier
that ordinary appeal is used when the judgment appealed from is rendered by the court in the exercise of
its original jurisdiction.

Since the MTC exercises only original jurisdiction, therefore, the mode of appeal for all its judgment is
ordinary appeals.

But we know that there are two kinds of ordinary appeals:

1. Ordinary appeal by notice of appeal
2. Ordinary appeal by record on appeal

Q: To what court should an appeal of a judgment from the MTC be taken?

A:It shall be taken to the RTC.

Q:If an appeal from the judgment of MTC is taken to RTC, with what court should the notice of appeal or
record on appeal be filed? Should it be filed with the MTC which render the judgment or with RTC acting
as the appellate court?
A: Section 3 of Rule 40 provides that the notice of appeal or record on appeal shall be filed with the court
which rendered the judgment, in this case, MTC

By the way the court which rendered the judgment appealed from goes by different names. Sometimes it
is referred to as the court of origin, at other times, it is the court a quo (a quo being a latin phrase which
means “from where”) more frequently, the court which rendered the judgment is simply called the trial court
as distinguished from the appellate court.

Now, within what period should an appeal from the judgment of the MTC be taken to the RTC? It
depends, if the appeal is by notice of appeal, the notice of appeal shall be filed with the MTC within 15 days
from the notice of judgment or receipt of the order denying the motion for new trial or reconsideration. If the
appeal is by record on appeal, the record on appeal shall be filed with the MTC within 30 days from notice
of judgment.

May the 15 day or 30 day period for taking an ordinary appeal be extended?
Absolutely not, don’t even think of asking for an extension.

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When is an appeal deemed perfected? The answer to this question needs qualification, if the appeal is
by notice of appeal, the appeal is deemed perfected as to the appellant upon the timely filing of the notice
of appeal with the MTC. If the appeal is by record on appeal, the appeal is deemed perfected as to the
appellant upon the approval of the MTC of the record of appeal.

So you must compare the perfection of appeal between an appeal by notice of appeal and appeal by record
on appeal. An appeal by notice of appeal is perfected upon the filing with the court which rendered the
judgment. An appeal by record on appeal is deemed perfected upon the approval by the court which
rendered the judgment of the record on appeal.

When does the MTC, the court which rendered the judgment, lose jurisdiction over the case? We
know that once an appeal is perfected, two courts become involve in the case. First, the court which
rendered the judgment and second, the appellate court. The two courts, however, cannot exercise
jurisdiction at the same time. Once the court which renders the judgment loses jurisdiction over the case,
the appellate court must immediately assume jurisdiction over the case.

When exactly does the MTC lose jurisdiction over the case? The MTC loses jurisdiction over the case
upon the concurrence of two events: (1) an appeal must have been perfected; and (2) the period to appeal
should have expired.

Ideally, when the court which rendered the judgment has lost jurisdiction over the case, the appellate court
should be ready to assume jurisdiction over the case. This does not happen however due perhaps to
bureaucratic reasons, it takes a while for the records of the case to be transmitted to the appellate court.

RULE 40-45

Let us now go to the third post-judgment remedy, Appeals, starting with Rule 40.

In civil cases, the right to appeal is not a constitutional right, neither is it part of the due process clause of
the constitution. Of course, the right to appeal is also not a natural right. The right to appeal, at least in
civil cases, is a mere statutory right. A litigant in a civil case may appeal an adverse judgment only
because there is a law that confers on him the right to appeal.

Q: Now, what is the significance or consequence of the fact that the right to appeal is a mere statutory
right?

A: The consequence is that an appellant must strictly comply with all the requirements prescribed by
law for an appeal. Failure of the appellant to comply with any requirement prescribed by law is a ground
for the dismissal of the appeal.

Reglementary period in filing an appeal must be strictly complied with

Q: What is the effect of an appeal to the judgment appealed from? Stated differently, what happens to the
judgment after it is appealed?

A: GR: As a rule, an appeal vacates the judgment appealed from. When an appeal vacates the
judgment, it is as if no judgment has been rendered yet in the case. A judgment that has been vacated
cannot, as a rule, be executed.

Exception: execution pending appeal

Before we proceed further with appeals, it is necessary for us to make a distinction between error of
judgment and error of jurisdiction.

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Q: When does a court commit an error of judgment?

A: A court commits an error of judgment when, despite having jurisdiction over the subject matter of the
case, it commits an error of fact or an error of law in the exercise of its jurisdiction.

Q: Now when does a court, having jurisdiction over the subject matter of the case commits an error of
fact?

A: The court commits an error of fact when it admits evidence which, under the rules on evidence, should
be excluded. It also commits an error of fact when it excludes evidence which, under the Rules on
Evidence, should be admitted. Another way of committing an error of fact is when the court, after correctly
admitting evidence, it gives it probative value that it does not deserve under the Rules on Evidence.
Lastly, the court commits an error of fact when, after correctly admitting evidence, it withholds from it the
probative value that it deserves under the rules on evidence.

Q: Going now to another form of error of judgment; how does a court, having jurisdiction over the case,
commit an error of law?

A: One way of committing an error of law is when, in the exercise of its jurisdiction, the court applies the
wrong law to the set of facts correctly established in the case. Another way of committing an error of law
is when the court, having jurisdiction over the case, applies the correct law…

Q: How does a court having jurisdiction over the case commit an error of law?

Ans:
1. One way of committing an error of law is in the exercise of its jurisdiction the court applies the
wrong law in the set of facts correctly established in the case.
2. Another way of committing an error of law, when a court having jurisdiction over the case applies
the correct law to the facts of the case, but in the process of applying it misinterprets the
law.

Let us now discuss how a court can commit an error of jurisdiction this is very important a court commits
an error of jurisdiction when despite having no jurisdiction over the subject matter of the case, the court
exercises jurisdiction over the case. Let me repeat the court commits an error of jurisdiction when despite
having no jurisdiction over the subject matter of the case, exercises jurisdiction over the case.

Q. May a court having jurisdiction over the case, commit an error of jurisdiction?
Ans: yes, a court having jurisdiction over the case may nevertheless commit an error of jurisdiction when
in the exercise of its jurisdiction it commits grave abuse of discretion amounting to lack or excess of its
jurisdiction

So it is clear that a court having no jurisdiction over the subject matter of the case or a court having
jurisdiction of the subject matter of the case may both commit error of jurisdiction.

Now why did we spend a lot of time discussing the distinction between error of judgement and error of
jurisdiction the reason is because an error of judgement and an error of jurisdiction require different
remedies. If a parties counsel chooses the wrong remedy for any of these errors it would spell disaster of
course for the client, not for the counsel. If experience has thought me anything it is the fact that the
counsel for both parties in the case always win and almost always both parties lose.

Going back to business, the remedy of an aggrieved party for an error of judgement is appeal, the remedy
for an error of jurisdiction is a petition for certiorari under rule 65 provided however that the aggrieved
party has no appeal, or any plain, speedy and adequate remedy in the ordinary course of law.

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We are done with these preliminary matter on appeal. Let us now go to appeals proper.

Allow me to take some liberties with regards to appeals I divide appeals into two groups. The first group is
ordinary appeals, and the second group is for the lack of a better term “other appeals”. I don't want to call
them special appeals because there is nothing special about them.

There are two kinds of ordinary appeals the first is ordinary appeal by notice of appeal and the second is
ordinary appeal by record on appeal. Ordinary appeals are covered by rules 40 and 41.

Under other appeals there are three kinds, the first is petition for review under rule 42, the second kind is
also petition for review under rule 43, and the third kind of other appeals is petition for review on certiorari
better known as appeal by certiorari under rule 45.

2 KINDS OF ORDINARY APPEAL

1.ORDINARY APPEAL BY NOTICE OF APPEAL

Q: When do we use ordinary appeals?

ANS: We use ordinary appeals when the judgement appealed from was rendered by the court in the
exercise of its original jurisdiction

But as you already know there are two kinds of ordinary appeals, ordinary appeal by notice of appeal, and
ordinary appeal by record on appeal.

Q:When do we use ordinary appeal by notice of appeal?

ANS: We use this kind of ordinary appeal when the judgement appealed from was rendered by the court
in the exercise of its original jurisdiction in a case where only one appeal is allowed. This kind of appeal is
the most frequently used because in about 95% of cases only one appeal is allowed. In most cases a n
appeal may be taken only after a judgement in a case has been rendered.
By the way a notice of appeal is usually in a one page document, where the appellant formally informs the
court and the adverse party, that he is appealing the judgement to the proper court, stating the date when
he received a copy of the judgement or the order of the court denying his motion for new trial or
reconsideration. The notice of appeal also states, that the appellant has already paid as shown by the
receipts attached the requisite docket and other lawful fees. It takes about ten (10) minutes to prepare a
notice of appeal.

A notice of appeal shall be filed within fifteen (15) days from notice of judgement or from receipt of
the order denying the motion for new trial or reconsideration.

2.ORDINARY APPEAL BY RECORD ON APPEAL

The other kind of ordinary appeal is Record on appeal.

Actually in this kind of ordinary appeal, the record of appeal is still accompanied by a notice of appeal.

Q: when should an ordinary appeal by record on appeal be used?

A: ordinary appeal by record on appeal shall be used when the judgement appealed from was rendered
by the court in the exercise of its original jurisdiction, in a case where multiple or several appeals are
allowed.

There are only a few cases where several or multiple appeals are allowed in one case. In this kind of
case a party is allowed to appeal an order of the court while the main case remain pending in the trial
court.

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Multiple appeals are allowed in special proceedings and in some special civil actions such as actions for
expropriation and partition.

Q: What is a record on appeal?

A: A record on appeals is a compilation of all the orders of the court, as well as the pleadings, motions,
and other submissions of the parties that are relevant to the particular order of the court being appealed
from.

Q: Why is party who wants to appeal an order of the court, while the case is still pending therein required
to file a record on appeal?

A: the reason is simple, since the record of the case cannot be transmitted to the appellate court,
because despite the appeal, the main case will remain pending in the trial court. The party appealing is
required to furnish the appellate court his own record of the case pertinent to the subject of the
appeal…Since it takes quite some time to prepare record on appeal, the appellant is given a longer
period of 30 days from Notice of the order appealed from within which to file his record of appeal.

RULE 40

Let us now discuss, Appeals from judgments of the Municipal Trial Courts under Rule 40. I need not
tell you that Municipal Trial courts include MTCC, MCTC, MeTC.
Being the lowest court, the MTC exercises only original jurisdiction. The only jurisdiction it exercises other
than original is the delegated jurisdiction over cadastral and land registration cases which the MTC may
only exercise upon delegation by the SC.

Let us just assume that MTC exercises only original jurisdiction. Since the MTC exercises only original
jurisdiction, the proper mode of appeal from all its judgments is ordinary appeal. We already said earlier
that ordinary appeal is used when the judgment appealed from is rendered by the court in the exercise of
its original jurisdiction.

Since the MTC exercises only original jurisdiction, therefore, the mode of appeal for all its judgment is
ordinary appeals.

But we know that there are two kinds of ordinary appeals:

1. Ordinary appeal by notice of appeal
2. Ordinary appeal by record on appeal

Q: To what court should an appeal of a judgment from the MTC be taken?

A: A: Should be taken to the RTC (of the place where the MTC which rendered the judgment sits)
EXCEPT in that one instance (delegated jurisdiction- should be taken to the CA instead of RTC).

Q:Why CA?

A: under Sec 33 BP 129 as amended , judgment of the MTC rendered in the exercise of its delegated
juridicistion shall be appealable in the same manner of RTC

Q:If an appeal from the judgment of MTC is taken to RTC, with what court should the notice of appeal or
record on appeal be filed? Should it be filed with the MTC which render the judgment or with RTC acting
as the appellate court?

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A: Section 3 of Rule 40 provides that the notice of appeal or record on appeal shall be filed with the court
which rendered the judgment, in this case, MTC

By the way the court which rendered the judgment appealed from goes by different names. Sometimes it
is referred to as the court of origin, at other times, it is the court a quo (a quo being a latin phrase which
means “from where”) more frequently, the court which rendered the judgment is simply called the trial court
as distinguished from the appellate court.

17:22-21:30

Q: Within what period should an appeal be made on the judgment from the MTC be taken to RTC?
A: It depends. If the appeal is by “NOTICE OF APPEAL”, the notice of appeal shall be filed with the MTC
within 15 days from notice of judgment or receipt of the order denying the motion for new trial or
reconsideration.

If the appeal is by “RECORD ON APPEAL”, the record on appeal shall be filed with the MTC within 30 days
from notice of judgment.

Q: May the 15 day or 30 day period for taking ordinary appeal be extended?
A: ABSOLUTELY NOT. Don’t even think of asking for an extension.

Q: When is an appeal deemed perfected?

A: Qualify. If the appeal is by NOTICE OF APPEAL, the appeal is deemed perfected as to the appellant
upon the timely filing of the notice of appeal with the MTC.

If the appeal is by RECORD ON APPEAL, the appeal is deemed perfected as to the appellant upon the
approval of the MTC of the record of appeal.

So there must be the comparison of the perfection of appeal between an appeal by notice of appeal and
appeal by record on appeal. An appeal by notice of appeal is perfected upon the filing of the notice of appeal
with the court which rendered the judgment. An appeal by record on appeal is deemed perfected upon the
approval by the court which rendered judgment of the record on appeal, not the filing of the record of appeal
but THE APPROVAL BY THE COURT WHICH RENDERED THE JUDGMENT OF THE RECORD ON
APPEAL.

Q: When does MTC (court which rendered judgment) lose jurisdiction over the case?

A: We know that once an appeal is perfected 2 courts become involved in the case.

1. Court that rendered the judgment

2. Appellate Court

The 2 Courts cannot exercise jurisdiction over the case at the same time. So once the Court which rendered
the judgment loses jurisdiction over the case, the Appellate Court must immediately assume jurisdiction
over the case. Once the RTC (appellate court) assumes jurisdiction, the MTC should have lost jurisdiction
over the case. The two Courts cannot exercise jurisdiction over the same case at the same time.
The period to appeal for the adverse party should have expired.

Let me repeat. The Court which rendered the judgment loses jurisdiction over the case upon the happening
of two events:

1. The appeal must have been perfected.

2. The period to appeal for the adverse party should have expired.

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Ideally, when the Court which rendered the judgment or the trial Court has lost jurisdiction over the case,
the appellate court should be ready to assume jurisdiction over the case.

This does not happen, however. Due perhaps to bureaucratic reasons, it takes a while for the record of a
case to be transmitted to the appellate court. Before the appellate court receives the record of the case, it
would even know that an appeal has been taken to it. It would not also be able to act on the case.

So, we are faced with an impossible situation. The court which rendered the judgment has lost jurisdiction
over the case. But as the record of a case has not been transmitted to the appellate court, the appellate
court is not yet ready to exercise its appellate jurisdiction.

Now the question is, in the meantime, who will exercise jurisdiction over the case?

To bridge this hiatus, the trial court, after losing jurisdiction over the case, is given RESIDUAL/
SUBSIDIARY JURISDICTION.

Subsidiary Jurisdiction may be exercised by the trial court after it has lost jurisdiction over the case at any
time for as long as the record of the case is with it.

However, it is a limited jurisdiction. The trial court, in its exercise, may only issue only a few orders such as:

1. Order to preserve and protect the rights of the parties pertaining to matters that are not litigated in
the appeal
2. Order approving the parties’ compromise agreement
3. Order allowing a person to appeal as an indigent for an order granting a motion for execution
pending appeal
4. Order allowing withdrawal of appeal.

Remember, the trial court may only exercise its subsidiary jurisdiction after it has lost jurisdiction over the
case and as long as it retains custody over the records of the case. Once the record of the case is
transmitted to the appellate court, the trial court also loses its subsidiary jurisdiction.

What is the procedure in the RTC as an appellate court after it receives from MTC the record of the case
or record on appeal?

RULE 40: SEC 7: Acting as an appellate court, the RTC shall issue an order:

1. Directing the appellant to file his memorandum within 15 days from receipt of order and
2. Directing the appellee to file his memorandum within 15 days from receipt of memorandum of the
appellant

After receipt of the respective memoranda of the parties or upon the expiration of the periods of filing
memoranda, the RTC may now exercise its appellate jurisdiction.

Q: What is the procedure in the Regional Trial Court as an appellate court after it receives from the Municipal
Trial Court the record of the case or the record on appeal?

A: Acting as an appellate court the Regional trial court shall issue an order directing the appellant to file his
memorandum within 15 days from his receipt of the order and directing the appellee to file his memorandum
within 15 days from his receipt of the memorandum of the appellant. After each receipt of the respective
memoranda of the parties or upon the expiration date of the periods for filing the memoranda. The RTC
may now exercise its appellate jurisdiction by rendering judgment in the case based on the record
of the case and the respective memorandum filed by the parties.

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Under section 8 of Rule 40 if the MTC before trial issues an order dismissing the case for lack of jurisdiction
and such order is on appeal affirmed by the RTC. The RTC if it has jurisdiction over the case shall try the
case on the merits as if the case was originally filed with it. If the MTC has tried and decided the case on
the merits and on appeal the RTC determines that it has original jurisdiction over the case, the RTC shall
not dismiss the case and but shall instead try the case if it was originally filed with it allowing the parties to
submit additional pleadings and evidence.

Q: In an order of dismissal issued by the MTC dismissing the case without a trial (— could only be a
dismissal based on a Motion to Dismiss) and the ground for the dismissal is lack of jurisdiction of the MTC
over the subject matter of the case, the plaintiff will appeal the order of dismissal to the RTC. The RTC
may then rule that the MTC was correct in dismissing the case so it will affirm the order of dismissal
because it believes that the MTC has no jurisdiction over the subject matter of the case. In fact, if the
MTC has no jurisdiction then that could mean that the RTC has jurisdiction over the case. So what will the
RTC do? Will it just affirm the decision of the MTC?

A: What the RTC as an appellate court should do is not to affirm the order of dismissal of the MTC but to
exercise jurisdiction over that case because it has jurisdiction over the case and not the MTC as if that
case was originally filed with the RTC and proceed with the trial of the case as if it was originally filed with
it. And the RTC may require/allow the parties to amend their pleadings so the case can be tried in the
RTC as if it was originally filed there.

Rule 41 APPEAL from REGIONAL TRIAL COURTS

SEC 1 No appeal may be taken from: (PIDSEJ)

(a) An order denying a motion for new trial or reconsideration;

(b) An order denying a petition for relief or any similar motion seeking relief from judgment;

(c) An interlocutory order;

(d) An order disallowing or dismissing an appeal;

(e) An order denying a motion to set aside a judgment by consent, confession or compromise on
the ground of fraud, mistake or duress, or any other ground vitiating consent;

(f) An order of execution;

(g) A judgment or final order for or against one or more of several parties or in separate claims,
counterclaims, cross-claims and third-party complaints, while the main case is pending, unless
the court allows an appeal therefrom; and

(h) An order dismissing an action without prejudice.

Rule 41 opens with a list of court orders that cannot be appealed. When the Supreme Court gives you a list
you better memorize it there’s simply no way to avoid it but let me discuss a number of these court orders
which like some unfortunate people myself included are without appeal.

Second in the list of non appealable orders is an interlocutory order.

What is an interlocutory order? Why is it non-appealable?

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As you very well know an interlocutory order is one issued by the court in the course of the trial of the case
which resolves one or some but not all the issues in the case. It is for which reason that an interlocutory
order does not terminate the proceedings in the case. In the course of the trial of the case, the court
may issue dozens of interlocutory orders. Imagine if each of these interlocutory orders is allowed to be
appealed in just one case the appellate courts will be swamped with a tsunami of the appealed interlocutory
orders. I don’t have to say more.

Fifth on the list is an order of execution. An order of execution is an unappealable for a good reason. If an
order of execution is allowed to be appealed, every judgment obligor will appeal the order of execution and
there would be no end to litigation. A case will go on and on and on without arriving at any final resolution
as we often see with regards to romantic entanglements there must be closure.

The last in the list of an unappealable court orders is an order dismissing the case without prejudice. An
order dismissing a case is a final order and therefore appealable. There are however 2 kinds of order of
dismissal, the first kind is one with prejudice the other kind is one without prejudice. When the order of
dismissal is with prejudice, it means the plaintiff cannot refile the case and he’s only recourse is to appeal
the order of dismissal.

An order of an execution is unappealable for a good reason, if an order of execution is allowed to be

appealed, every judgement obligor will appeal the order of execution then there will be no end to litigation
a case will go on and on and on without arriving without any final resolution as we often say to regards to
romantic entanglements there must be a closure

The last of the list of an appealable court orders is an order dismissing the case without prejudice, you know
that an order dismissing a case and therefore appealable, however there two kinds of dismissal, the first
kind is with prejudice and the other kind is without prejudice, if the order of the dismissal is with prejudice,
it means that the plaintiff cannot refile the case and his only recourse is to appeal the order of dismissal.
When the order of dismissal is however, without prejudice the plaintiff may refill the case thereby precluding
him from appealing the order of dismissal. Refilling the case is a speedier, more just and less expensive
remedy than appealing the order of dismissal. Having completed and less expensive remedy than appealing
the order of dismissal.

Having completed the discussion of appeals of the MTC. Let us discuss the judgements appeals from the
RTC.

The RTC being a second level court, exercising both original and appellate jurisdiction, the RTC exercises
original jurisdiction to certain specified civil actions and it exercises appellate jurisdiction over judgments
rendered by the MTC.

Let us first discuss appeals from judgements rendered by the RTC in the exercise of its original jurisdiction.

Q: To what court is the appeals from a judgment rendered by the court in the exercise of its original
jurisdiction taken?

A: As a rule, the appeal is taken to the CA

Q: By what mode of appeal should the appeal be taken

A: The proper mode of appeal is by original appeal either by notice of appeal or record on appeal.

We don’t have to discuss the procedure for ordinary appeals from the RTC as they are exactly the same
as the procedure for the original appeals from the MTC to the RTC. All you have to do is to substitute MTC
to RTC as the trial court and RTC with CA as the appellate court.

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The same rules apply to the proper mode and kind of appeals as to when an appeal by notice of appeal or
record on appeal shall be taken as to where to file the notice of appeal or record on appeal, as to when the
appeal by notice of appeal or record on appeal is deemed perfected, as to when the trial court losses
jurisdiction over the case, as to when the trial court may exercise subsidiary jurisdiction and lastly, as to
what orders the trial court may issue in the exercise of its subsidiary jurisdiction.

Q: Is there an instance when a judgement rendered by the RTC in the exercise of its original jurisdiction is
appealable not to the CA but to another court?

A: Yes, when the judgement appealed from was rendered by the RTC in the exercise of its original
jurisdiction and appeal raises only pure questions of law, the appeal should be taken not to the CA but
directly to the SC by way of a petition for review of certiorari under rule 45. Thus, before a judgement of the
RTC may properly be appealed to the supreme court, two requisites must be satisfied

1st the judgement appealed from must have been rendered by the RTC in the exercise of its original
jurisdiction

2nd the appeal must only raise pure question of law

In relation to this, when a judgement appealed from was rendered by the RTC in the exercise of its appellate
jurisdiction and the appeal are raises pure questions of law

Q: where should the appeal be taken? Should be taken directly to the SC because the appeal only raises
the question of law or it should be taken to CA?

A: The answer is that it should be taken to the CA, the reason is simple, we said earlier that before a
judgement of the RTC may be appeal directly to the SC by way of Rule 45, two requisites must concur, first
the judgement appealed from was rendered by the RTC in the exercise of its original jurisdiction and the
appeal raises the question of pure question of law, two things must concur

Although the appeal raises only pure questions of law, one of the requisites is not satisfied, so appeal
should be taken to CA.

RULE 44 – Procedure in CA while in the exercise of its appellate jurisdiction in ordinary appeals.

Upon its receipt of record of the case (record on appeal), CA should issue order directing appellant to file
appellant’s brief to be filed within 45 days from receipt of the order. As for appellee, appellee’s brief to be
filed within 45 days from receipt of appellant’s brief and giving appellant 20 days to file a reply brief. After
this, CA shall render judgment based on the record of the case (record on appeal) and the respective briefs
of the parties.

RULE 42 – Petition for Review from RTC to CA

To what court is a judgment rendered by RTC in exercise of its appellate jurisdiction taken on appeal?
Answer is CA through appeal by petition for review.

A petition for review must be verified and must, among others, allege specific, material dates showing
that it was seasonably filed and it must specify the errors of fact/law, or both that RTC was supposed to
have committed. Petition must be accompanied with certification against non-forum shopping.

How and within what period shall the appeal by petition for review under Rule 42 be taken to CA? Filing
petition for review and paying requisite docket and other legal fees within 15 days from notice of judgment.
While notice of appeal and record on appeal are filed with RTC which rendered the judgment, the
petition for review is filed with CA, the appellate court. While 30-day period for filing an appeal is strictly
non-extendible, the 15-day period contemplated under Rule 42 may, for good reason, be extended for

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another 15 days and, only for the most compelling reason, be further extended for a period not more than
15 days. Before the extension may be granted, the petitioner must move for extension before the original
15-day period expires and he must already pay the docket and other legal fees for the appeal. The reason
for allowing the extension is that petition for review is much more difficult to prepare than a notice of appeal
or record on appeal.

May the period of 15 days be extended? YES. For another 15 days on the ground for any good or valid
reason. (such extension may be from 15 days to 45 days)
May a 2nd extension be granted? NO. UNLESS if there is a most compelling reason and such period
should not exceeding 15 days.

When is appeal deemed perfected?

- Upon filing of petition for review with the CA

*RTC (appellate jurisdiction) may affirm or reverse the decision of the MTC, no trial and parties are to file
their respective memoranda
*if the RTC affirm the MTC who committed errors of law, it is deemed that the RTC committed such errors
as well

The reason for allowing a total extension of 30 days to the 15-day period for filing the petition for review is
that the petition for review is much more difficult to prepare than the notice of appeal or record on appeal.

Q: When is an appeal by petition for review under Rule 42 deemed perfected?

It is deemed perfected as to the petitioner upon the timely filing of the petition for review with the Court of
Appeals.

Q:When does the RTC lose jurisdiction over the case?

It loses jurisdiction upon the perfection of the appeal, and the expiration of the period to appeal of the
adverse party.

When may the RTC exercise its subsidiary jurisdiction? Before I answer this question, you should know
that in an appeal by petition for review, the RTC, even after losing jurisdiction over the case, is not required
to automatically transmit the case record to the Court of Appeals. Such being the case, the RTC’s period
for exercising jurisdiction cannot be made to depend on its contingent custody over the record of the case.
To answer the question now, the RTC may exercise subsidiary jurisdiction after it has lost jurisdiction over
the case and at any time before the Court of Appeals gives due course to the petition for review.

We will discuss later when and for what reason the Court of Appeals may give due course to the petition.
The RTC may, in the exercise of its subsidiary jurisdiction, issue the same orders as in ordinary appeals.

*Note: When an appeal is by Petition for Review to CA, the RTC is not required to automatically transmit
the record of the case to CA, But CA in it’s discretion may grant Petition for Review. (Record of the case
remains with the RT even appeal was perfected already)

What may the Court of Appeals do upon the filing of petition for review?

Since Petition for review is not a matter of right . It is a matter of discretion on the part of CA on whther or
not to entertain appeal:

1. The Court of Appeals may dismiss the petition outright if it finds it to be patently without merit, or
the appeal is being prosecuted manifestly for delay, or that the petition raised therein, or that the
questions raised therein are too insubstantial to merit the court’s consideration.

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 2. But if the Court finds probable merit in the petition, it may require the respondent to file his
comment thereon within 10 days from notice. If after receipt of the respondent’s comment, or upon
the expiration of the period for filing the comment, the Court finds prima facie that the RTC has
committed errors of fact or errors of law that would warrant reversal or modification of the
appealed judgment, the Court of Appeals may give due course to the petition. If it deems it
necessary, the Court of Appeals may then require the RTC to elevate the record of the case.

Just to remind you, the RTC may exercise its subsidiary jurisdiction after it has lost its jurisdiction over the
case, and at any time before the Court of Appeals gives due course to the petition.

After the Court of Appeals has given due course to the petition, it may set the case for oral argument or
require the parties to submit memoranda, after which the case is deemed submitted for decision.

RULE 43Appeals from Quasi-judicial Agencies to the Court of Appeals.

Rule 43 lays out the procedure for appeals from judgments, final orders, resolutions of quasi-judicial
agencies. The prefix “quasi” means similar to but not exactly the same. When we say quasi-judicial
agencies, therefore, we mean that while these agencies are similar to courts, they are not courts. These
administrative agencies are characterized as quasi-judicial because they perform function which courts
do…

When we say quasi-judicial agencies, therefore, we mean that while these agencies are similar to courts,
they are not courts. These administrative agencies are characterized as “quasi-judicial” because they
perform functions which courts do. They hear, try, and decide cases in accordance with the law. In other
words, these administrative bodies perform quasi-judicial functions.

Section 1 of Rule 43 gives us a long list of quasi-judicial agencies whose judgments, final orders, or
resolutions are appealable in a manner provided by this Rule. Instead of memorizing this long list, I suggest
you take note of the quasi-judicial agencies that are expressly or impliedly excluded from the coverage of
Rule 43.

To mention a few, the NLRC is expressly excluded under Section 2 of Rule 43. By implication, the
COMELEC and COA which are both Constitutional Commissions, are excluded. They are impliedly
excluded because they are expressly covered by Rule 64 in relation to Rule 65. Take note that the CSC,
which is also a Constitutional Commission like the COMELEC and COA, is included in the list under Section
1 of Rule 43.

Q: To what court and by what mode of appeal are the judgments, final orders, or resolutions of quasi-judicial
agencies appealable?

A: They are appealable to the CA by Petition for Review under Rule 43.

Considering that the provisions of Rule 43 are almost identical to the provisions of Rule 42 which we have
already discussed in sufficient detail, I don’t want to waste your time discussing them again. I’m sure you
have better things to do like watching Netflix the whole night, and sleeping the whole day.

But let us discuss a couple of differences between Rule 42 and Rule 43. Under Section 2 of Rule 42,
only the assailed judgment or final order of the RTC attached to the petition must be a certified true copy
or duplicate original. The pleadings and other material portions of the record of the case attached to the
petition need only be clear copies. On the other hand, under Section 6 of Rule 43, all the documents

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required to be attached to the petition including the assailed judgment, final order, or resolution as well as
the pleadings and material portions of the record of the case must be certified true copies or duplicate
originals.

Another difference is that, under Paragraph B, Section 8 of Rule 42, the perfection of the appeal stays
the execution of the appealed judgment or final order. On the other hand, under Section 12 of Rule 43,
the taking of the appeal does not stay the execution of the judgment, final order, or resolution appealed
from.

What is the difference in R42 and R43?

Rule 42:

- Under Section 2 of Rule 42, only the assailed judgment or final order of the RTC attached to the
petition must be a certified true copy or duplicate original. The pleadings and other material portions of
the record of the case attached to the petition need only be clear copies

- Once Appeal is perfected: appeal vacates the judgment (judgment cannot be executed)

In Rule 43:

- Section 6 of Rule 43, all the documents required to be attached to the petition including the assailed
judgment, final order, or resolution as well as the pleadings and material portions of the record of the case
must be certified true copies or duplicate originals.

reason: in R42, court a quo judgment rendered are under the supervision of the SC while in R43, the QJA
w/c render the judgment are not under the supervision of the SC).

- Filing of appeal doesn’t stay the execution of judgment

RULE 45

We will now discuss the last mode of appeal, Appeal by Certiorari to the SC under Rule 45.

In Civil Cases, without exemption, the only way to appeal to the SC is by petition for review on certiorari or
appeal by certiorari under Rule 45. In Criminal Cases, the same rule applies save for three exceptions,
First, If the judgment of the RTC imposed the (1) penalty of death, the accused need not appeal because
under the 1987 Constitution, the judgment shall be automatically reviewed by the SC. If the judgment of the
RTC, however, imposed the (2) penalty of reclusion perpetua or (3) life imprisonment, the judgment is
appealable to the SC by notice of appeal. So these are the only exceptions in criminal cases.

Let me repeat, in Civil Cases, without exception, only proper mode of appeal to the SC is by petition for
review on certiorari or appeal by certiorari under Rule 45.

An appeal by certiorari under Rule 45 is unique in two ways. First, it is the only mode of appeal where only
questions of law may be raised. Second, it is the only mode of appeal that is not a matter or right, but a
matter of sound – it is always sound – judicial discretion.

Let us expound on these two unique features of an appeal by certiorari. In the other modes of appeal that
we have so far discussed, the appellate court may resolve both questions of fact and questions of law. In
an appeal by certiorari, only questions of law may be raised and resolved by the SC.

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In the 2018 case of Kensonic vs. UNI-Line Multi Resources, the SC instructs us on the true nature of an
appeal by certiorari. Speaking in simple words the court explains that in an appeal by certiorari under Rule
45, the SC may only resolve questions of law, not questions of facts; this is so, because the SC is not a
trier of fact. As a rule, the SC will accord great weight and respect to the finding of facts of the trial court.
The SC will usually not disturb the finding of facts of the trial court.

In the same case the SC gives us an easy guidance as to how to distinguish a question of law and fact.
For a question to be one of law, the same must not involve an examination of the probative value of the
evidence presented. The resolution of the issue must rest solely on what the law provides on the given set
of facts. Once the issue requires a review of the evidence presented , the question posed is one of facts,
the real test therefore in determining whether a question is one of law or one of fact is whether the
appellate court can determine the issue raised without reviewing or evaluating the evidence. If such
is the case, it is a QUESTION OF LAW, if otherwise it’s a question of fact.

The rule that only questions of law may be raised in an an appeal by certiorari however admits of several
exceptions

In Mendoza vs Palugod, (June 20, 2018) The Supreme Court gave us the instances when questions of
fact may be resolved in an appeal by certiorari. These are:

(1) when the inference made by the court a quo is manifestly mistaken, absurd or impossible
(2)when the court a quo has committed abuse of discretion
(3)when the judgement is based on a misapprehension of the facts,
(4)when the findings of fact are conflicting
(5)when the CA findings of fact are contrary to those of the trial court
(6)when the conclusions made by the court a quo do not cite the specific evidence they are based.

Let us now discuss the other unique feature of an appeal by certiorari, and unlike all other modes of appeal,
an appeal by certiorari is not a matter of right but a matter of sound judicial discretion.

Q: What does this mean?

In the other modes of appeal once the appellant has complied with all the requirements prescribed by law
for the appeal, the appellate court is duty bound to give due course to the appeal, in an appeal by certiorari
however compliance by the appellant of all the legal requirements is not a guarantee that the supreme court
will give due course to the appeal. This is what is meant by the appeal being not a matter of right.

Sec 6 of rule 45 underlines this fact when it provides an appeal by certiorari may be given due course only
when there are special and important reasons for doing so. Of course from the appellants point of view his
appeal is always of the utmost and greatest importance. The supreme court however is almost always of
a different mind.

FACTORS THAT THE COURT MAY CONSIDER IN GIVING DUE COURSE TO THE APPEAL:
Sec 6 of rule 45 also sets for certain matters the supreme court MAY consider, take note MAY CONSIDER
in deciding whether to give due course to the appeal or not. The court may act favorably on the appeal by
certiorari first when the trial court has decided a question of substance that the Supreme Court has not until
then decided, Second when the trial court has decided a question of substance in a way that is contrary to
law or jurisprudence, third when the court a quo usually the court of appeals, has departed from the usual
and accepted course of judicial proceedings or has allowed such departure by a lower court as to call for
the exercise of the Courts power of supervision. These matters the Supreme Court was quick to say neither
control nor limit its exercise of discretion. This simply means that even if these matters are shown to be
present the supreme court may deny due course to the appeal by certiorari (period).

Q: How and when shall an appeal by certiorari be taken to the supreme court?

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ANS: The appeal shall be taken by filing with the supreme court a verified petition for review on certiorari
within 15 days from notice of judgement or receipt of the order denying the motion for new trial or
reconsideration.

Q:May the 15 day period for the filing of the petition be extended?

ANS: Suprisingly yes and for a period of 30 days. Sec 2 however provides for certain conditions for the
grant of the 30 day extension. The motion for extension should be filed with the supreme court before the
original 15 day period expires and the full docket and other lawful fees for the appeal should already be
paid therewith. The court may only grant the 30 day extension for justifiable reasons. (not compelling
reasons)

2nd extension is not allowed

Q: What is required before the Motion of Extension be granted?

A: upon motion of the party + aggrieved party shall pall of full payment of docket fee + shall be filed
before the original 15 day period expires

Failure to comply with any of the prescribed requirements shall be a ground to dismiss the petition.
As if this is not intimidating enough, Section 5 also provides that the Supreme Court may motu proprio
dismiss the petition on the ground that the appeal is without merit or is being prosecuted manifestly for
delay or that the questions raised are too unsubstantial to require the consideration of the court.

Based on my experience, the first thing that Supreme Court staffers do upon laying eyes on the petition is
to search for every flaw, error or deficiencies that they can find so they can dismiss your petition outright.
Imagine after spending sleepless nights preparing your thick petition, all you will get from the SC is a one
page resolution dismissing your petition outright, they won’t even look at the merits of your petition. To
avoid this sad experience, therefore, I suggest you win all your cases in the lower courts so that it’s not you
but your opponent who will be filing the petition with the Supreme Court.

Let us close our discussion of Rule 45 by enumerating the judgments that may be appealed to the
Supreme Court by petition for review on certiorari. What are these judgements?

1. Judgments rendered by the RTC in the exercise of its original jurisdiction where the appeal raises only
pure questions of law

2. Judgments rendered by the Court of Appeals whether in the exercise of its original or appellate jurisdiction
where only pure questions of law are raised on the appeal

3.Judgments of the Sandiganbayan whether rendered in the exercise of its original or appellate jurisdiction
where the appeal raises only questions of law

4.Judgments of the Court of Tax Appeals en banc where only pure questions of law are raised in the
appeal
*Note: Judgment rendered by CTA division is appealable to the CTA en Banc

5. Judgments rendered by the RTC or CA in a petition for habeas corpus even if the appeal raises both
questions of fact and questions of law

6.Judgments rendered by the RTC, the Sandiganbayan or the CA in a petition for amparo even if the appeal
raises both questions fact and questions of law provided the petition is filed with the Supreme Court within
5 calendar days from notice of judgment

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7. Judgments rendered by the RTC, the Sandiganbayan or the CA in a petition for habeas data even if the
appeal raises both questions fact and questions of law provided the petition is filed with the Supreme Court
within 5 calendar days from notice of judgment

8. Judgments rendered by the Court of Appeals in a petition for writ of kalikasan even
if the appeal raises both questions of fact and questions of law provided the petition is filed with the Supreme
Court within 15 days from notice of judgment.

*In these instance, when judgments could not be appealed to the Supreme Court because questions of fact
are involved and there is no appeal or other plain, speedy or adequate remedy available in the ordinary
course of law, the aggrieved party’s only recourse is to file a petition for certiorari under Rule 65 provided
he can establish lack of jurisdiction or grave abuse of discretion.

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