Notes and Cases

In Civil Procedure
(A review material)
By: Fernando P. Cabato
Retired RTC Judge and Guest
Lecturer, College of Law
Saint Louis University
Application of the Rules of Court
General Provisions
(Rule 1)
Q. Are the Rules of Procedure mandatory?
A. Yes. The rules of procedure are mandatory, except only when, for the most
persuasive of reasons, they may be relaxed to relieve a litigant of an injustice not
commensurate to the degree of his thoughtlessness in not complying therewith.
Limpot v. Court of Appeals, 170 SCRA 367 [1989]
Q. How should the Rules of Procedure be construed or interpreted?
A. The Rules of Court should be liberally construed in order to promote their
objective of securing a just, speedy and inexpensive disposition of every action
and proceeding. (Section 6, Rule 1, Rules of Court; Delgado v. Court of Appeals,
467 SCRA 418 [2005]; Lustana v.Jimena-Lazo,457 SCRA 429 [2005];California
Bus Lines, Inc. Court of Appeals,, 562 SCRA 403 [2008])
Notes and Cases
Technical rules of procedure are not designed to frustrate the ends of justice.
They are provided to effect the proper and orderly disposition of cases and
effectively prevent clogging of court dockets. (Vibar International Construction,
Inc. v. FEB Leasing and Finance Corporation, 456 SCRA 588 [2005]) The Rules
of Procedure are not intended to hamper litigants or complicate litigation..
Rather, The Rules provide a vital system of justice where suitors may be heard
following judicial procedure and in the correct forum. (Audi AG v. Mejia, 528
SCRA 378 [2007] En Banc; Purefoods Corporation v. Nakakaisang Samahang
Mangagagawa ng Purefoods Rank and File, 563 SCRA 471 [2008] ); Valino v.
Vergara, 581 SCRA 454 [2009]).

Q. How should the rules of procedure be treated?

A. Procedural rules should not be belittled or be disregarded..(Enriquez v. BPI,

544 SCRA 590 [2008]) ] They are prescribed to insure an orderly and speedy
administration of justice. (Enriquez v. BPI, 544 SCRA 590 [2008]) Like all rules,
their application is necessary save for the most persuasive of reasons, strict
compliance with procedural requirements must be observed.(Metro Drug
Distribution, Inc. v. Narciso, 495 SCRA 286 [2006])
Case: :Deceased Spouses Vicente S. Arcilla and Josefa Asuncion Arcilla v.
Teodoro, 561 SCRA 545 [2008] Litigation is not merely a game of technicalities.
Rules of procedure should be viewed as tools aimed at facilitating the attainment
of justice, rather than its frustration. Where there is substantial compliance, a
liberal interpretation of procedural rules is more in keeping with the constitutional
mandate to secure justice
Case: Limpot v. Court of Appeals, 170 SCRA 367 [1989] Rules of procedure
are intended to ensure the orderly administration of justice and the protection of
substantive rights in judicial or extrajudicial proceedings. Substantive land and
adjective law are not contradictory \ to each other.. The policy is to give effect to
both kinds of law, as complementing each other, in the just and speedy resolution
of disputes between litigants. Procedural rules are not to be belittled or dismissed
simply because their non-observance may have resulted in prejudice to a partys
substantial rights. Like all rules, they are require3d to be followed except only
when for the must persuasive of reasons they may be relaxed to relieve a litigant
of an injustice not commensurate with the degree of his thoughtlessness in not
complying with the procedure prescribed. .
Q. How should the rules of procedure be cited?
A. It is cited as the Rules of Court. (Section 1, Rule 1, Rules of Court) Alhough
the Rules of Court has been on occasions modified or amended, it is cited as The
Rules of Court.
Q. How are the procedural rules applied? .
A. As a rule, procedural rules are applied prospectively.. However, they may be
given retroactive effect when its application will not do injustice to the affected
party. Conversely, giving retroactive effect may not be done if it will work
injustice to the affected party. A litigant cannot selectively apply one set of rules
favorable to him and another when the one chosen works against him..
(Queensland Tokyo Commodities, Inc. v. Matsuda, 512 SCRA 276 [2007])
Case:Real v. Belo, 513 SCRA 111 [2007] The steadfast guide of judicial action
is that a party litigant be accorded the fullest opportunity to establish the merits

3
of his action or defense rather than for him to lose life, honor or property on mere
technicalities. (Real v. Belo, 513 SCRA 111 [2007]
Case: Springfield Development Corporation , Inc. v. Presiding Judge, RTC,
Bran 40, Misamis Oriental, 514 SCRA 326 [2007] Judicial policy is that cases
should be determined on the merits, after full opportunity to all parties for
ventilation of their causes and defenses, rather than on technicality or some
procedural imperfections.
Case: Serrano Galant Maritime Services, Inc. 408 SCRA 523 [2003]) The
ends of justice is better served if it is determined on the merits, after full
opportunity is given to all parties for ventilation of their causes and defenses,
rather than on technicality or some procedural imperfections. It is far better to
dispose of the case on the merits, which is a primordial end, rather than a
technicality that may result in injustice.
Case: . Vette Industrial Sales Co., Inc. Cheng, 509 SCRA 532 [2006] While it
is desirable that the Rules of Court be faithfully observed, courts should not be
too strict with procedural lapses that do not really impair the proper
administration of justice. The rules are intended to ensure the proper and orderly
conduct of litigation because of the higher objective they seek, which is the
Q. May the Rules of Procedure be disregarded in the guise of liberal
construction? Explain.
A. No. The Rules of Procedure exist for a noble purpose. To disregard such rules,
in the guise of liberal construction, would be to defeat such purpose. They are not
to be disdained as mere technicalities, and may not be ignored to suit the
convenience of a party. They ensure the effective enforcement of substantive
rights through the orderly and speedy administration of justice. .(Audi AG v.
Mejia, 528 SCRA 378[2007]; Valino v. Vergara, 581 SCRA 454 [2009]).
Notes and Cases
.
An utter disregard of the Rules, however, cannot justly be rationalized by
harping on the policy of liberal construction (Torres v. Abundo, 512 SCRA 556
[2007] nor the rules of procedure be misused and abused as instruments for the
denial of substantial justice. (Tanhu v. Ramolete, 66 SCRA 425 [1975];Anson
Trade Center, Inc. v. Pacific Bank Corporation, 581 SCRA 751 [2009]}
Case: Alonso v. Villamor, 16 Phil. 315 [1910) Litigation is not a game of
technicality, in which one more deeply schooled and skilled in the subtle art of
movement and position entraps and destroys the other. It is rather a contest in
which each contending party fully and failure lays before the court the facts in
issue and then, brushing aide as wholly trivial and indecisive all imperfection of
forms and technicalities of procedure, asks that justice to be won upon the merits.

4
Technically, when it deserts its proper office as an aid to justice and becomes its
great hindrance and chide enemy deserves scant consideration from courts. (See:
Anson Trader Center, Inc. et al., v. Pacific Banking Corporation, 581 SCRA 751
[2009]
Dismissal of an appeal on pure technical grounds not favored.
Case: Heirs of Victoriana Villagracia v. Equitable Banking Corporation,
550 SCRA 60 [2008] This case is for the recovery ownership and possession of
four parcels, annulment of affidavit and damages on the ground of forgery and
bad faith on the part of the mortgagees. After trial, the RTC rendered its decision
dismissing the complaint. The Heirs of Villagracia appealed to the CA which
affirmed the decision of the RTC. The heirs of Villagracia, now petitioners, filed
their appellants brief out of time, hence, the CA dismissed their appeal. After a
motion for reconsideration was denied, the Heirs of Villagracia, Petitioners, filed
the present petition for review on certiorari. Issue: Whether or not the dismissal of
the appeal on purely technical grounds was valid. Held: No. The dismissal of the
appeal was not proper. Dismissal of appeals on purely technical grounds is not
encouraged. The rules of procedure ought not to be applied in a very rigid and
technical sense, for they have been adopted to help secure, not override,
substantial justice. (Remulta v. Manlongat, 422 SCRA 226 [2004] As held in
Republic v. Imperial, 303 SCRA 127 [1999],the filing of the appellants brief on
appeal is not a jurisdictional requirement. But an appeal may be dismissed by the
CA on grounds enumerated under Rule 50 of the Rules of Court. The court has the
power to relax or suspend the rules or to except a case from their operation when
compelling reasons so warrant, or when the purpose of justice requires it. What
constitutes good and sufficient cause that will merit suspension of the rules is
discretionary upon the court. Adjudication: The petition was granted, the
resolutions of the CA were set aside, petitioners appeal was reinstated and case
was remanded to the CA for further proceedings.
Notes and Cases
But while it is true that procedural rules are to be construed liberally,
rules prescribing the time within which certain acts must be done, or certain
proceedings taken, must be construed strictly to prevent needless delays, and to
the orderly and speedy discharge of judicial business. Such compliance with such
rules is mandatory and imperative. (Philippine Coconut Authority v. Garrido, 374
SCRA 154 [2002];Motorola Philippines, Inc. Ambricio, 582 SCRA 502 [2009]
Case: Alvero v. De la Rosa, 76 Phil. 428 [1946] Although the rule is that the
Rules of Court should be liberally construed, however, their strict observance
which has been considered indispensable to the prevention of needless delays and
to he orderly and speedy discharge of judicial business, is an imperative necessity.
The rules prescribing the time within which certain acts must be done or certain

5
proceedings taken, are considered absolutely indispensable to the prevention of
needless delays and to the orderly and speedy discharge of judicial business and
therefore must be strictly complaint with.
Case: Ponciano Jr., v. Laguna Lake Development Authority, 570 SCRA 207
[2008] In a civil case, a judgment wax rendered. The aggrieved party appealed
from said decision. Counsel for the appellant received a copy of the judgment
rendered by the CA on 28 February 2006 and filed a motion for reconsideration
on March 16, 2006. Issue: Whether or not the motion for reconsideration was
filed on time> Held: No, it was filed one (1) day late. Section 1, Rule 52
requires that an aggrieved party may file a motion for reconsideration of the
judgment or resolution within fifteen (15)days from notice. The counsel received
the judgment of the CA on 28 February 2006 and thus he has until 15 March 2006
to file his motion for reconsideration. But counsel filed the motion on 16 March
2006,or a day after the expiration of the fifteen (15) days. This period fixed is
non-extendible.
(Note: If the trial court is satisfied with the reason why the appeal was one day
late, it trial court may in the exercise of its discretion, and in the interest of
substantial judtice, may allow the appeal to have been perfected)
Case: Hon. Fortich v. Hon. Corona, 298 SCRA 678 [l998] In that case, the
Court made an observation that there has been some instances wherein this Court
allowed a relaxation in the application of the rules, but this flexibility was never
intended to forge a bastion for erring litigants to vioate the rules with impunity. A
liberal interpretation and application of the rules of procedure can be resorted to
only in proper cases and under justifiable causes and circumstances.
Case: Anson Trade Center, Inc. v. Pacific Banking Corporation, 581 SCRA
751 [2009] Anson Trade Center, Inc. (ATCI) and Anson emporium Corporation )
AEC) obtained a loan from the Pacific Banking Corporation. ATCI and AEC
executed a deed entitled Continuing Suretyship Agreements whereby it was
stipulated that as security for any and all the indebtedness or obligations of ATCI
and AEC had the right to retain a lien upon any and all moneys or other
properties and/or proceeds thereof in the name or for the account or credit of
ATCI and AEC. ATCI and AEC defaulted in the payment of the loans, and despite
several demands made for payment they were unanswered. PBC filed with the
RTC a case for sum of money against ATCI and AEC. Both filed a motion to
dismiss to which the PBC filed its reply. The RTC denied the motion to dismiss.
ATCI and AEC filed a joint answer. A pre-trial conference was set by the RTC. By
the suggestion of the trial court, the case was referred to the Philippine Mediation
Center for arbitration. The arbitration proceedings were unsuccessful. The case
was remanded to the RTC and set another pre-trial conference. But at the set date
for pre-trial, ATCI and AEC appeared but PBC did not. On motion of the ATCT
and AEC they prayed for the dismissal of the case for failure of the PBC to appear
at the pre-trial. The RTC granted the motion without prejudice. A motion for

6
reconsideration was filed by the PBC but the trial court denied the same. PBC
filed a petition for certiorari under Rule 65 with the CA for grave abuse of
discretion amounting to lack or in excess of jurisdiction for dismissing the
complaint based on a technicality, that is, failure of PBC to appear at the pre-trial
despite notice. The CA granted the petition of PBC and reversed the assailed RTC
orders which dismissed the civil complaint for sum of money. The CA ruled that
the RTC lost sight of the fact that even the Rules of Court mandate a liberal
construction of the rules and the pleadings in order to effect substantial justice.
The overriding principle and the present trend in the rulings of the court is to
afford every party-litigant the amplest opportunity for the proper and just
determination of his cause. A motion for reconsideration was filed by ATCI and
AEC but the CA denied it. Hence, ATCI and AEC filed a petition for review on
certiorari. Issue: Whether or not the CA in reversing the orders of dismissal of the
RTC was correct. Held: The CA was correct.. Sections 4 and 5, Rule 18, on PreTrial mandate that the non-appearance by the plaintiff in the pre-trial shall be a
cause for dismissal of the action. However, every rule is not without an
exception. Section 4, Rule l8 explicitly provides that the non-appearance of a
party may be excused if a valid cause is shown therefor. In this case, there was a
valid cause. There is no question that PBC received the notice of the pre-trial
conference but it failed to attend the same. Such non-appearance notwithstanding,
the CA annulled the questioned orders of the RTC after it found that PBC did not
intentionally snub the pre-trial conference. There is no reason to disturb such a
finding. PBC was not remiss in its duties to prosecute its case. Except for the lone
instance of the pre-trial conference, PBC promptly and religiously attended the
hearings set by the RTC. When the RTC failed to act immediately on the motion
to dismiss, PBC filed two motions to resolve. The actuations of the PBC revealed
its interest in prosecuting the case, instead of any intention to delay the
proceedings. Adjudication: Petition for review on certiorari was
denied. The decision and resolution of the CA setting aside the
questioned orders of the RTC were affirmed.
Case:Anson Trade Center, Inc. v. Pacific Banking Corporation, 581 SCRA
751 [2009]) The rules of procedure may not be misused and abused as
instruments for the denial of substantial justice. Some members of the bar,
availing themselves of their proficiency in invoking the letter of the rules without
regard to their real spirit and intent, succeed in inducing courts to act contrary to
the dictates of justice and equity, and, in some instances, to wittingly or
unwittingly abet unfair advantage by ironically camouflaging their actuations as
earnest efforts to satisfy the public clamor for speedy disposition of litigations,
forgetting all the while that the plain injunction of Section 2 of
Rule 1 is that the rules shall be liberally construed in order to
promote their object and to assist the parties in obtaining not
only speedy but more imperatively, just
and inexpensive
determination of every action and proceedings.

7
Case: Victory Liner, Inc. v. Malinias,.523 SCRA 279 [2007]
There is no innate right to appeal. Appeal is a statutory right
which may be exercised within the prescribed limits. By pursuing
a wrong remedial tack is no excuse.
The Rules of Procedure
provides for a rational and orderly method by which appeal can
be pursued, and even contingency remedial measures if appeal
could no longer be timely pursued. The failure of the petitioner to
undertake a timely appeal, or to engage in the available modes
of relief even if appeal was no longer possible has to bear the
consequences. The failure of the petitioners to undertake a
timely appeal or to engage in the available modes of relief simply
has to bear the consequence.
Case: Motorola Philippines, Inc. v. Ambrosio, 582 SCRA 502 [2009] The
delay was eleven (11) days beyond the 15-day reglementary period; worse, there
was no explanation proffered by the respondents. The fact that the respondents
were more than a hundred will not justify the relaxation of the rule. . The bare
invocation of substantial justice is not a magic wand that will compel the court
to suspend the rules of procedure. Rather, the appellate court needs to assess if the
appeal is absolutely meritorious on its face. Only after such a finding case it ease
the often stringent rules of procedure
The rules of procedure, particularly on the observance of time fixed to do
certain act should not be construed strictly when to do will unjustly prejudice
the substantial rights of the aggrieved party. The Court has the power
suspend the Rules to prevent a grave miscarriage of justice.
Case: Amorganda v. Court of Appeals, 166 SCRA 203 [l988] Spouses
Amorganda were the lessees of a fishpond initially for 10 years on a yearly rental
of P3,000.00 The lease period was extended twice to end on July 31, l997. But on
January 5, l986, the lessors, without the knowledge and consent of the lessees
harvested bangus and shrimps from the fishpond. The spouses Amarganda filed a
complaint for qualified theft in the Provincial Prosecutors Office against the
lessors. On February 27 l986, the lessors with the aid of armed men, forcibly
entered the leased fishpond and prevented the spouses Amorganda and their
workers from entering the leased premises. The spouses Amorganda filed a
complaint with the RTC to compel the defendants to return the leased premises to
them and for damages and prayed for a writ of preliminary injunction. The
defendants Sayson filed their answer. The RTC issued a writ of preliminary
injunction as prayed for by the plaintiffs. The defendants filed a petition with the
CA praying for the annulment of the order issued by the RTC granting the writ of
preliminary investigation because the RTC has no jurisdiction since the complaint
filed is in the nature of recovery of possession and should have been filed with the
MTC, that there is no cause of action, and non-exhaustion of administrative
remedies. The plaintiffs filed their comment. The CA issued its judgment
declaring the order issued by the RTC null and void because the court a quo has

8
no jurisdiction and directed the RTC to dismiss the complaint.. The plaintiffs filed
by registered mail its motion for reconsideration of the decision but was denied
for having been filed beyond the reglementary period. Hence, the plaintiffs, now
the petitioners filed the present petition. Issue: Whether or not the motion for
reconsideration was filed out of time... Held. The petitioners received a copy of
the decision of the CA on 24 July 1987. They have, under the Rules, a 15-day
period to file their motion for reconsideration or appeal. Petitioners, however,
filed their motion for reconsideration only on 10 August l987, or two days
after the expiration of the reglementary period. Counsel for the petitioners
explained that that the last day for filing the motion for reconsideration was on 8
August l987 which fell on a holiday, Saturday, so that he filed the motion for
reconsideration on Monday, 10 August l987. Saturday was not a holiday, and
therefore the motion for reconsideration was filed beyond the reglementary
period. But there are compelling reason, that is, the prevention of a grave
miscarriage of justice exists in this case that warrant a suspension of the Rules
and excuse the delay of two calendar days in the filing of the motion for
reconsideration. The respondents admitted that they unilaterally terminated the
lease contract between them and the and prevented the petitioners from entering
the fishpond despite the fact that the lease period has not yet expired. The
respondents admitted that the fishpond was forfeited in favor of the government,
and that all improvements thereon introduced by their predecessor-in-interest
were likewise forfeited in favor of the government. The Bureau of Fisheries and
Aquatic Resources (BFAR) ruled that the respondents have no more leg o stand
on, much less anymore personality to assert any right over the fishpond. That
being the case, the respondents had no right to enter the fishpond and exclude the
petitioners there from. . The respondents appeared to be guilty of coercion, stand
to unjustly profit from their fraudulent and deceitful act at the expense of the
petitioners who may not be able to recovery the rentals advanced by them to the
respondent. These are compelling reasons sufficient for the court to suspend the
Rules to prevent grave miscarriage of justice. Adjudication: The judgment
appealed from is reversed and set aside and affirming the order of the RTC..
Case: Lagunzad v. Court of Appeals, 154 SCRA 199 [1987] The Court ruled
that We cannot must ignore petitioners plea for the review of his case in this
instance. There is not the slightest indication of malice on the part of or the desire
to delay the proceedings and to transgress the rules on procedure. If at all,. his was
an honest mistake or miscalculation worsened by some fortuitous occurrence
which we deem condonable under the circumstances. For we have, in many cases
granted relief where a stringent application of the requirement of timeliness of
pleadings would have denied a litigant substantial justice and equity. Suffice it to
note that the rules on technicality were promulgated to secure not to override
substantial justice, and especially because the petition appears to be impressed
with merit.
Q. In sum, what is the role of the court in dealing with the application of the
Rules of procedure?

A. The courts are vested with the authority to relax compliance with the
procedural rules, even of the most mandatory character, mindful of the duty to
reconcile both the need to put an end to litigation speedily and the parties right
to an opportunity to be heard. (Reyes v. NLRC,578 SCRA 322 [2009]
Q. In what courts are the Rules of Court applicable? When are they not
applicable?
A. The Rules of Court shall apply in all the courts, except as otherwise provided
by the Supreme Court. (Section 2, Rule 1)
The Rules of Court are not applicable in (1) election cases (2) land
registration (3) cadastral (4) naturalization (5) insolvency proceedings, and (6)
other cases not provided for, except by analogy and convenient. (Section 4, Rule
1)
Q. What is the foundation of the Rules of Court?
A. The basis of the provisions of the Rules of Court is the constitutional authority
vested on the Supreme Court to promulgate rules governing pleadings, practice
and procedure in all courts; such rules are simplified and inexpensive procedure
for the speedy disposition of cases. (Section 5, Article VIII, Philippine
Constitution)
Q. Has the Supreme Court the power and authority to suspend the effects of
or disregard the Rules of Court?
A. Yes, the Supreme Court, has the power to suspend the application or effects of
the Rules of Court in the higher interest of justice. If the Supreme Court is
constitutionally empowered to promulgate rules of procedure, it follows that it has
the power to amend, modify or revise the rules of procedure whenever interest of
justice is better served. (De Guzman v. Sandiganbayan, 256 SCRA 171 [l996] En
Banc.)
In the De Guzman case, the Court said that a situation where a rigid
applicztion of rules of procedure must bow to the overriding goal of courts of
justice to render justice where justice is due to secure to every individual all
possible legal means to prove his innocence of a crime of which he is charged.
Said case cited the earlier case of People v. Court of Appeals, March 7, l995
where substantial justice was upheld anew in allowing therein the appeal of the
accused espise the withdrawal of his notice of appeal and his subsequent escape
from confinement that only to truly make the courts really genuine instruments in
the administration of justice.
Note: The Court has the power to suspend procedural rules in the exercise of its
inherent power, as expressly recognized in the Constitution, to promulgate rules
concerning pleading, practice and procedure in all courts. In proper cases,

10
procedural rules may be relaxed or suspended in the interest of substantial
jusdice, w2hich otherwise may be miscarried because of a rigid and formalistic
adherence to such rules. (Solicitor r General v. The Metro Manila Authority,204
SCRA 837 [l991]; Strategic Alliance Development Corporation v. Radstocl
Securities Limied, 607 SCRA 413 [2009]

Notes and Cases

The contention that substantive law and adjective law are contradictory to
each other is not true. The policy of the courts is to give effect to both kinds of
law, as complementing each other, in the just and speedy resolution of the dispute
between the parties. Observation of both substantive and procedural rights is
equally guaranteed by due process, be it the Constitution or only a statute or a rule
of court. (Limpot v. Court of Appeals, 170 SCRA 367 [l989] Tupas v. Court of
Appeals, 193 SCRA 567 [1991]; Materia: Mangahas v. Court of Appeals, 566
SCRA 373 [2008])

Civil Actions
(Ordinary Civil Actions)
(Rule 2)
Q. Define civil action.
A. A civil action is one by which a party sues another for the enforcement or
protection of a right or the prevention or redress of a wrong. (Section 3(a), Rule 1;
Heirs of Guido and Yaptinchay v. Del Rosario, 304 SCRA 18 [1999])
Notes and Cases
The term action and suit are synonymous. The operative fact which
converts a justiciable claim or cause into an action or suit is the filing of the civil
complaint with the proper court.(Lopez v. Filipinas Compana de Seguros, 16
SCRA 855 [1966]
A justiciable question is that which affects civil, personal or property
rights accorded to every member of the community or nation. (Avelino v. Cuenco,
83 Phil. 71[[1941] Justiciable controversy, on the other hand, is one involving an
active antagonistic assertion of a legal right on one side and a denial thereof on
the other concerning a real, ad not mere theoretical question or issue. (Delunen v.
Republic,94 Phil. 288 [1953]

11
A civil action may either be an ordinary action as for instance an action for
the collection of sum of money; or a special civil action as for instance a petition
for certiorari pursuant to Rule 65.(Section 3[a], par. 2, Rule 1)
Q. Define special proceeding.
A. A special proceeding is a remedy by which a party seeks to establish a status, a
right, or a particular fact. (Section 3[c], Rule 1)
Notes and Cases
Special proceedings are those instituted and prosecuted according to
specials rules as distinguished from actions which are prosecuted and tried
according to the ordinary rules and provisions of civil procedure Both ordinary
and special rules are found in the Rules of Court.
For instance, an action like recovery damages arising from quasi-delict
an action for recession of contract prosecuted under the general rules of civil
procedure. (See: Rules l to 37, Rules of Court) On the other hand, settlement of
estate of a deceased is a special proceeding because it is governed by special rules
provided in the Rules of Court (See: Rules 73-91, Rules of Court } .Guardianship,
habeas corpus, change of name are special proceedings because each are
prosecuted under special rules (See: Rules 92-97 Guardianship; Rule 102Habeas Corpus; Rule 103, Rules of Court)
Q. Distinguish civil action from special proceeding.
A. Civil action differs from a special proceedings as follows:
(1) A civil action requires the filing of formal pleadings, while a special
proceeding relief may be obtained by mere application or petition;.
(2) In a civil action, there are two definite and particular adverse parties,
the party demands a right called the plaintiff and the party whom the right is
sought called the defendant, whereas in a special proceeding, while there is a
definite party petitioner, there is no definite adverse party, as it is a proceeding
usually considered to be against the whole world. (Hagans v.Wislizenus, 42 Phil.
880 [1920])
(3) A civil action in particular is one by which a party sues another for the
enforcement or protection of a right, or the prevention or redress of a wrong,
while a special proceeding is a remedy by which a party seeks to establish a
status, a right, or a particular fact. (Section 3[a] and [c], Rule 1)
Q. Give an example of a civil action and a special proceeding.
A. Pedro was forcibly dispossessed of his peaceful and actual possession of his
land by Juan. Pedro would like to recover the possession of his land from Juan.
His remedy is to file an action for recovery of possession either by an action for

12
forcible entry or by accion publiciana. (See: Article 539, Civil Code, in
conjunction with Rule 70, Rules of Court) This is a civil action.
Diego has a younger sister, Pauline, who is suffering from an incurable
mental illness. Diego would like to take care of his sister and administer her
properties she inherited from her parents, both deceased. The remedy of Diego is
to file a petition for guardianship over the person and property of Pauline. This is
a special proceeding. (See: Rule 93, Rules of Court; Pacific Banking Corporation
Employees Organization, et al., v. Court of Appeals, 242 SCRA 492Marc [l995])
Q. When is a civil action deemed commenced?
A. An original civil complaint is deemed commenced upon its filing with the
proper court, (Section 5, first sentence, Rule 1) and the payment of the
corresponding docket fee and such other fees required. The period of
commencement is reckoned from the date of the full payment of the docket fees
and other fees required by the Rules to be paid..(Magaspi et al v. Ramolete, 115
SCRA 193 [1982])
Notes and Cases
An actual case or controversy is one that involves a conflict of legal rights,
an assertion of opposite legal claims susceptible of judicial resolution; the case
must not be moot or academic or based on extra-legal or other similar
considerations not cognizable by a court of justice. (Garcia .Executive Secretary,
583 SCRA 119 [2009] En Banc)
Q. When does the court acquire jurisdiction over the complaint?
A. The court acquires jurisdiction over any case falling within its jurisdiction only
upon the filing of the Complaint and the payment of the corresponding prescribed
docket fee. The payment of the docket is not only mandatory but also
jurisdictional. ( Excellent Quality Apparel, Inc. v. Win Multi-Rich Builders, Inc.,
578 SCRA 272 [2009]
Notes and Cases
The docket fees in cases involving real property depend upon the fair
market value of the same. (Sections 7[a] and 7[b](1) of Rule 141). The later
imposes a fixed or flat rate of docket fees on actions incapable of pecuniary
estimation.. (Ruby Shelter Builders and Realty Development Corporation v.
Formaran III, 578 SCRA 283 [2009]
In ordinary appeal, perfection of the appeal requires (1) the filing of the
notice of appeal on time and (2) the payment of the correct docket appeal fee.
(Ruiz v. Delos Santos, 577 SCRA 29 [2009]
Q. The second sentence of Section 5, Rule 1, states that if an additional
defendant is impleaded in a later pleading, the action is commenced with

13
respect to him on the date of the filing of such later pleading, irrespective of
whether the motion for its admission, if necessary, is denied by the court.
Give an example.
A. The case of Cabrera v. Tiano, 8 SCRA 542 [l963] is in point. Plaintiff filed
a complaint with the RTC, and defendant in due time filed his Answer. Later, or
some months thereafter, Plaintiff with leave of court filed a motion to admit
attached amended complaint impleading another defendant. The trial court
admitted the amended complaint. Issue: Insofar as the new defendant named in
the amended complaint is concerned when did the Complaint commence as to
him? Held: As to the new defendant is concerned, the action is deemed
commenced on the date of the filing of the amended complaint, even if the motion
to admit was denied by the trial court.
Q. Why is the date of commencement of action important?
A. The commencement of an action is important because it is the date when the
running of the period of prescription is suspended, (Cabrera v. Tiano, supra.)
Q. How is a civil action determined? Explain briefly.
A. The aim and object of a civil action determines its character, and whether it is
an action in rem, or action in personam or action quasi in rem, it is determined by
its nature and purpose, and by these only.. (Damagas v. Jensen, 448 SCRA 663
[2005]
Q. How are civil actions classified as to cause or foundation? Define each,
and give examples.
A. They are classified into.(1) personal action {2) real action and (3) quasi in
rem action.
Q.Define each and give example..
(1) A personal action is one founded on privity of contract, and is brought
for the recovery of personal property, for the enforcement of a contract or
recovery of damages for the commission of an injury to person or property.
(Marcos-Araneta, et al. v. Court of Appeals, supra; Domagas v. Jensen, 448 SCRA
663 [2005])
Some examples:: An action for recovery of damages for breach of
contract of carriage, or an action for the enforcement of a promissory note which
became due and payable or an action for enforcement of a contract or recovery of
personal property and damages are personal action These are actions founded on
privity of contract. Another example is an action seeking to compel recognition
of an alleged just arrangement. is a personal action. (Marcos-Araneta, et al. v.
Court of Appeals, supra; Domagas v. Jensen, 448 SCRA 663 [2005]) An action to

14
recover sum of money or property, real or personal, is an action in personam.
(Ang Lam v. Rosillosa, 86 Phil. 447 [1950] An action for the accounting of the
properties of a deceased person, is a personal action A judgment rendered in an
action in personam binds only the parties properly impleaded therein and duly
heard or given the opportunity to be heard. An action for specific performance
praying for the execution of a deed of sale in connection with an undertaking in a
contract, such as the contract to sell, is an action in personam (Yu v. Pacleb, 580
SCRA 197 [2008]
Notes and Cases
When the purpose of an action or proceeding is to impose, through
judgment of a court, some responsibility or liability directly upon the person of
the defendant, the action is a personal action. A personal action has for its object
a judgment against the person that is to compel a defendant to specifically
perform some act or actions to fasten a pecuniary liability., A personal action is a
proceeding to enforce personal rights or obligations, such action is bought against
the person , although it may involve his right to, or the exercise of ownership of,
specific property, or seek to compel him to control or dispose of its in
accordance with the mandate of the court. (Yu v. Pacleb, 580 SCRA 197 [2008]
Case: Yu v. Pacbleb, 580 SCRA 197 [2008] An action for specific performance
for the execution of deed of sale in connection with an undertaking in a contract
such as a contract to sell, is an action in personam. (:Cabutihan v.Landcenter
Constructiion and Development Corporation, 383 SCRA 353 [2002]}
Q. What is the test to determine whether an action is in personam?
A. The test is if the object of the suit is to establish a claim generally against some
particular person, with a judgment which, in theory, at least, binds his body, or to
bar some individual claim or obligation, so that only certain persons are entitled to
be heard in defense, the action is in personam., although it may concern the right
to or possession of a tangible thing. (Sandejas v .Robles, 81 Phil. 421 [1948]
Q. How is the residence of the plaintiff determined in a personal action?
A. A plaintiff who is not a resident of a particular place cannot, in a personal
action, contextually opt for said place as venue of his complaint for reconveyance
One can easily secure a basic residence tax certificate practically anytime in any
Bureau of Internal Revenue treasurers office and dictate whatever relevant date
one desires entered. (Yu v Pacleb, 580 SCRA 197 [2008]]
:
(2) A real action is founded on privity of real estate, and is brought for the
specific recovery of lands, tenements. Or, real actions are those founded on the
privity of real estate, such as actions affecting title to, or for recovery of
possession, or for partition or condemnation of, or foreclosure of mortgage on,
real property.(De la Cruz v. Seminary of Manila, 18 Phil. 330.[1910]

15

For example:: An action for reconveyance or to remove cloud of or

quieting title to real property are real actions because they involve title to, or
possession of, or interest therein.. (See: Valeriano S. Concha, Sr. v. Lumosco, 540
SCRA l, [2007] Another example is an action for the recovery of a specific realty.
(De la Cruz v. Seminary of Manila, supra)
(3)) Mixed actions are actions such as pertain to some degree to both real
and personal and real, therefore, are properly reducible to neither of them, being
brought for the specific recovery of land and for damages sustained in respect of
such land. (De la Cruz v. Seminary of Manila, supra)
For example: An action for replevin is a mixed action, partly in rem and
partly in personam. It is in rem insofar as the recovery of specific property is
concerned, and in personam as regards to damages involved. (BA Finance
Corporation v. Court of Appeals, 258 SCRA 102 [1996]
Q. How are civil actions classified as to their object? Explain and give
example of each.
A. As to object, civil actions are classified into: (accion in personam or personal
action; (2) accion in rem or action in rem or (3) accion quasi in rem. Or action
quasi in rem.
(1) An action in personam is a suit to establish a claim generally against
some particular person, with a judgment which, in theory, at least, binds his body,
or to bar some individual claim or objection, so that only certain persons are
entitled to be heard in defense, although it may concern the right to or possession
of a tangible thing. ( Grey Alba v. De la Cruz, 17 Phil.49 [1910]; Sandejas v.
Robles, 81 Phil. 421 [1948]; Domaga v. Jensen, 448 SCRA 663 [2005]
For example: A civil action upon a cause of action for performance or
non-performance of the terms and conditions of a contract of sale and for the
resolution or enforcement thereof is an accion in personam.(Sandejas v. Robles,
supra.) Another examples is an ejectment suit wherein judgment is binding only
upon parties properly impleaded and given an opportunity t be heard. (Pasion v.
Melgre=ito, 519 SCRA 378 [2007]}
Notes and Cases
The purpose of an action in personam is to impose, through the judgment
of a court, some responsibility or liability directly upon the person of the
defendant. (Asiavest Ltd. v. Court of Appeals, 296 SCRA 539 [1996] It is a suit to
compel a defendant to specifically perform some act or action to fasten a
pecuniary liability on him. It has for its object a judgment against a person. It is
an action to enforce personal rights and obligations, such action is brought against
the person. For instance a suit for injunctive relief is an injunctive act which is in
personam. (Domagas v. Jensen, supra)

16

(2 ) An accion in rem is a suit whereby the object is to bar indifferently

all who might be minded to make an objection of any sort against the right sought
to be established, and if anyone in the world has a right to be heard on the strength
of alleging facts which, if true, show an inconsistent interest. (Grey Alba v. De la
Cruz, 17 Phil. 49 [1910]
For example: An action or application for the issuance of a certificate of
title under the Torrens System of land registration or an action for the
confirmation of an imperfect title to realty. These proceedings bind the whole
world (See: Reyes v. Razon, 38 Phil. 480; Act 141, as amended; Act 496 as
amended; Presidential Degree No. 1529 or the Property Registration Decree, as
amended; and related pertinent laws) For another, an action for the annulment of
marriage is an accion in rem. (Rayray v. Chae Kyung Lee, 18 SCRA 450 [1966])
All civil actions involving property, whether real or personal, are
invariably real actions; but not all real actions are actions in rem.. For instance, an
application for confirmation of title to PD 1529,as amended, is an action in rem
as well as it is a real action.
Case:Rayray v. Chac Kyung Lee, 18 SCRA 450 [1966]) If the object of the
action is to bar indifferently all whom who might be minded to make an
objection of any sort against the right sought to be established, and if any one in
the world has a right to be heard on an allegations of facts which, if true, shows an
inconsistent interest, the action or proceeding is said to be in rem.
(3) Quasi in rem: It is an action which deals with the status, ownership.
or liability of a particular property but which are intended to operate on these
questions only as between the particular parties to the proceedings and not to
ascertain or cut off the rights or interests of all possible claimants. The judgment
therein is binding only upon the parties who joined in the actions. (Domagas v.
Jensen, 448 SCRA 63 [2005]; Yu v , Pacleb, 580 SCRA 197 [2008]
A quasi in rem action is one brought against persons seeking to subject the
property of such persons to the discharge of the claims assailed. In an action quasi
in rem, an individual is named as defendant and the purpose of the proceeding is
to subject the interests therein to the obligation or loan burdening the property.
(Yu v , Pacleb, 580 SCRA 197 [2008]
Examples: an action to quiet title over a parcel of land is a quasi in rem
proceeding because while it involves a real property, the judgment that shall be
rendered therein is binding only between the parties to the suit. (Domaga v.
Jensen, supera) An action for unlawful detainer or forcible enty by their nature
and purpose is a real and in personam actions. The plaintiff seeks to enforce a
personal obligation or liability on the defendant, and for the latter to vacate the
property subject of the action, restore physical possession thereof to the plaintiff.,
and pay actual damages or for the use and occupation of the property.(Article 539,
Civil Code of the Phlippines; Rule 70, Rules of Court; Progressive Development
Corporation, Inc. Court of Appeals, 301 SCRA 637 [l999]

17
Notes and Cases
In an action quasi in rem, an individual is named as defendant, and the
purpose of the proceeding is to subject his property to the obligation or lien
burdening it.( Banco de Brazil v. Court of Appeals, 333 SCRA 545 [2000];
Domagas v. Jensen, 448 SCRA 663 [2005] All proceedings having for their sole
object the sale or other disposition of the property of the defendant, whether by
attachment, foreclosure or other form of remedy, are in a general way thus
designated. The judgment entered in these proceedings is conclusive only between
the parties. (Sandejas v.Robles, 81 Phil. 421 [1948] All proceedings having for
their sole object the sale or some disposition of the property of the defendant,
whether it be on foreclosure, attachment, or another remedy, are actions quasi in
rem. The judgment rendered in such proceedings is conclusive only between the
parties.(Banco Expanol-Filipino v. Palanca, 37 Phil. 921 [1918]
Q. What is the test in determining whether an action is in rem?
A. The test is if the object of the suit is to bar indifferently all who might be
minded to make an objection of any sort against the right sought to be established,
and if anyone in the world has a right to be heard on the strength of alleging facts
which, if true, show an inconsistent interest, the proceeding is an action in rem.
(Grey Alba v. De la Cruz, supra; Sandejas v. Robles, supra)
Q. What are the four remedies of person unlawfully deprived of his
possession of real property? How do you classify these actions?
A. Depending on the obtaining facts and circumstances, these remedies are:
(1) An action for unlawful detainer or forcible entry; (2) An accion publiciana
or an action to recover possession; (3) accion reinvindecatoria or an action to
recover ownership and possession. These are real actions at the same time in
personam because they involve title to, or possession of or an interest real
property and the plaintiff seeks judgment compelling the defendant to vacate the
possession of the property subject of the suit, hence, an action personam. .
Q. Briefly explain each remedy..
A.
(1) The generic term ejectment refers to suit for the recovery of
possession de facto of a realty. This is either be an action for forcible entry or
unlawful detainer. Both actions are summary in nature, and should be resolved
expeditiously. . .
Forcible entry is filed with the proper MTC within one year from the
unlawful dispossession of realty. The plaintiff must allege in his Complaint and
prove that he was in prior possession of the land or building and that he was
deprived thereof by the defendant by means of force, intimidation, threat, strategy
or stealth. This action is summary in nature and filed with the proper MTC. (Yu
v. Pacleb, 512 SCRA 402 [2007]) The only form of damages that may be

18
recovered is the fair rental value or the reasonable compensation for the use and
occupation of the property. Other damages may be claimed in an ordinary action.
(CGR Corporation v. Treyes, Jr., 522 SCRA 765 [2007]
Unlawful detainer involves the persons withholding from another of the
possession of real property in which the latter is entitled, after the expiration or
termination of the formers right to hold possession under contract, either
expressed or implied..(Republic v. Luriz, 512 SCRA 140 2007] This is filed with
the proper MTC. The only issue to be resolved is physical possession or material
possession of the realty involved, independent of any claim of ownership.
(Mendoza v. Court of Appeals, 452 SCRA 117 [2005]) The judgment rendered
shall be conclusive with respect to the possession only and shall in no wise bind
the title or affect ownership of the land or building. Such judgment would not bar
an action between the same parties respecting title to land or building. (Roberts v.
Pupio, 515 SCRA 346 [2007] Where the issue of ownership is raised in an
unlawful detainer action, the courts may pass upon the issue of ownership in order
to determine who has the right to possess the property and for the sole purpose of
settling the issue of possession., the issue of ownership being inseparably linked
thereto. (Pascual v. Coronel, 527 SCRA 474 [2007])
(2) Accion publiciana an is a plenary action filed with the proper RTC to
recover possession of realty which is filed a year after the unlawful dispossession
thereof .The question to be resolved in this case3 who between the parties has a
better right of possession over the real property. Regis, Jr. v. Court of Appeals,
528 SCRA 611 [2007]
.
(3) Accion reivindicatoria is a action filed with the proper RTC which
involves not only possession but ownership of real property. (Bejar v. Calung, 516
SCRA 84 [2007. The plaintiff sets up a title in him and prays that he be declared
owner and be given full possession thereof. (Amoroso v. Alegre, 524 SCRA 641
[2007])
Q. In actions in rem and quasi-in-rem, when does the jurisdiction attaches?
A. In actions in rem and quasi-in-rem, the court must acquire jurisdiction over
the res or the subject matter of the action.
.
Cause of action
(Rule 2)
II
Q. Define cause of action?
A. A cause of action is a partys act or omission that violates the rights of the
other.{Section 2, Rule 2; Dela Rama v. Mendiola, 401 SCRA 704 [2003]) Or, a
cause of action may be defined as the fact or combination of facts which affords a
party a right to judicial interference in his behalf. (Philippine National
Construction Corporation v. Court of Appeals, 514 SCRA 569 [2007]; Heirs of
Tomas Dolleton v. Fil-Estate Management, Inc., 584 SCRA 409 [2009])

19

In Pari materia: Verceles v. Posada, 522 SCRA 518 [2007]Agrarian

Reform Beneficiaries Association v. Nicolas, 567 SCRA 540 [2008]; Canete v.
Genuino Ice Company, Inc., 542 SCRA 206 [2008] Fort Bonifacio Development
Corporation v. Domingo, 580 SCRA 397 [2008].
Q. What is a right of action?
A. It is the right of a person to commence and prosecute an action before a court
of law to enforce or protect a right, or prevent or redress of a wrong.(Marquez v.
Varela, 92 Phil. 373 [1952] . But it does not accrue until all the facts which
constitute the cause of action have occurred. (Borbe v. Calalo, 535 SCRA 89
[2007]
Notes and Cases
For a right of action to exist, there must be a person called the plaintiff
who has a valid cause of action, and performs all conditions precedent to the
filing of the action, and the right to institute the action against another person
called the defendant who transgressed or violated plaintiffs legal right.. A right
of action must rest on a valid cause of action, and converted it into an action
pleaded in the complaint and filed with the proper court. .
Q. Define remedy. Explain briefly.
A. Remedy is simply the means by which the obligation or the corresponding
action is effected. It is the appropriate legal form of relief whereby a remedial
right may be enforced. (Rachrach v. Icaringal, 68 Phil. 287 [1939]) It should not
be confused with a cause of action.
Notes and Cases
A single cause of action may give rise to two or more remedies, but the
plaintiff may not pursue all such remedies, whether simultaneously or
successively. (Quique v. Bautista, 114 Phil. 401 [l962] When a party is entitled to
more than one remedy to enforce his rights, he is obligated to make a choice from
among such remedies. Once an election of the remedy is made, he can not be
permitted, after an adverse judgment was rendered against him, to return to
another forum and there assert his rights inconsistent with the earlier judgment
rendered against him. (Pascual, et al. v. Hon. Francisco Ortega, et al., CA G.R.
No. 25374-R, June 29, l961, I Court of Appeals Reports, Second Series, p. 348)
Q. Give an examples of one cause of action which may give rise to two or
more remedies..
A.
For example: (1) failure to pay an indebtedness secured by a mortgage is a
single cause of action. To enforce it, two remedies are available, namely,

20
foreclose the mortgage or collection of sum of money. Where the creditormortgagee pursues an action for foreclosure of mortgage, the other remedy of
collection of sum of money is waived; conversely, if collection of sum of money
is pursued, the remedy of foreclosure of mortgage is deemed abandoned.
Another example (2) is a breach of contract which is a single cause of
action for the enforcement of which two remedies are open, namely, an action for
specific performance or an action for rescission of contract. These remedies are
alternative not successive. Plaintiff is entitled only to one remedy and not both.
(See: Movido v. RFC, 105 Phil. 886 [1959]; Quioque v. Bautista, 114 Phil. 401
[l962]
The choice of a remedy becomes the foundation of the theory of the case. .
Case: Bashier v. Commission on Elections, 43 SCRA 266 [l972]) A party is
bound by the theory he adopts and by the cause of action he stands on. He cannot
be permitted after having lost thereon to repudiate his theory and cause of action,
and thereafter adopt another and seek to re-litigate the matter anew either in the
same forum or on appeal A party having pursued one theory and lost thereon, he
may no longer pursue another inconsistent theory without thereby trifling with
court processes and burdening the court with endless litigation.
A party should decide early what version or theory he is going to advance
A change of theory in the latter stage of the proceedings is objectionable not due
to the strict application of procedural rules, but because it is contrary to the rules
of fair play, justice and due process. (Dalisay v. Mauricio, Jr., 479 SCRA 307
[2006]
To allow a party, who has lost in a battleground of his choice, to again test
the validity of his rights in another case would be to allow him to use the
machinery of one court and then jump to another when the ride went against him.
This would be to thwart a judgment by a re-litigation in a trial de novo
destructive of the public policy that judicial proceedings be upheld. (EspanolFilipino v. Palanca, 37 Philippines 921 [l918]
.
Q. State the differences between a cause of action and right of action.
A. (1) A cause of action refers to the delict or wrong committed by the defendant,
while a right of action refers to the right of the plaintiff to institute and prosecute
the action. (2) A cause of action is determined by the initiatory pleading, while a
right of action may be taken away by the running of the statute of limitations, or
by estoppel or other circumstances which do not affect at all the cause of action.
(Marquez and Gutierrez v. Francisco Varela and Carmen Valera, 92 Phil. 373
[1952]
Q. Distinguish action from a cause of action.

21
A. An action is a legal demand of ones rights in a court of justice, a legal
proceeding in a court of justice to enforce a right or to redress a wrong, while a
cause of action consists merely of the primary right, the primary duty, and the
breach of that duty. The action is the means of redress of the legal wrong
described by the words cause of action and the cause of action precedes and
affords the right to the remedy.
Q. Distinguish action, cause of action and relief.
A. An action is a suit brought for the enforcement or protection of the rights
violated; while cause of action is an act or omission of one party in violation of
the legal right or rights of the other; while relief is the specific coercive measure
prayed for by plaintiff from the court for the wrongful violation of his legal right
which resulted to an injury causing loss o damage by the defendant
Q. What determines the aim, object and nature of an action?
Whatever be the action, be it a proceeding in rem, or personal action, or
quasi in rem, the action is determined by its nature and purpose, and ascertained
from the material allegations of the complaint constituting the cause of action and
the character of the relief sought,. (Calo v.Roldan, 76 Phil. 445 [1946]) whether or
not the plaintiff is entitled to any or all of such reliefs. (Del Valle, Jr. v. Dy, 585
SCRA 355 [2009]
In pari materia: Benguet State University v. Commission of Audit, 524 SCRA 437
[2007]; Hernudd v. Lofgren, 534 SCRA 205 [2007]
Q. What are the essential elements of a cause of action?
A. A cause of action exists when these elements are present: (1) a right in favor of
the plaintiff by whatever means and under whatever law it arises or is created; (2)
an obligation on the part of the named defendant to respect or not to violate such
right, and (3) an act or omission on the part of such defendant violative of the
right of the plaintiff or constituting a breach of the obligation of the defendant to
the plaintiff for which the latter may maintain an action for recovery of damages.
(Pioneer International, Ltd. v. Guadiz, Jr.., 536 SCRA 584 [2007]
In Pari materia: Canete v. Genuino Ice Company, Inc., 542 SCRA 206
[2008];Philippine National Bank v. Spouses Encina, 544 SCRA 68 [2008];
Camarines Sur IV Electric Cooperative, Inc. v. Aguino, 566 SCRA 263 [2008]);
Heirs of Tomas Dolleton v. Fil-Estate Management, Inc., 584 SCRA 4009 [2009])
Notes and Cases
A right is a claim or title to an interest in anything whatsoever that is
enforceable by law. Conversely, an obligation is a juridical necessity to give, to do
or not to do. Thus, for every right enjoyed by any person, there is a corresponding

22
obligation on the part of another person to respect such right. (Makati Stock
Exchange, Inc. v. Campos, 585 SCRA 120 [2009]
The mere assertion of a right and claim of an obligation to an initiatory
pleading, whether a Complaint or Petition, without identifying the basis or source
thereof, is merely a conclusion of fact and law which is would not stand for
ultimate facts essential to the rights of action or defense asserted.. (Makati
Exchange, Inc. v. Campos, supra)
Q. When a complaint fails to state a cause of action or it lacks a cause of
action, what is the remedy of the defendant? Explain.
A. The remedy of the defendant is to file a motion to dismiss the Complaint for
lack or absence of a cause of action.
A complaint which does not state a cause of action may be dismissed via a
motion to dismiss on the ground of lack or absence of a cause of action. To sustain
the motion to dismiss, the Complaint must show on its face that the claim for
relief does not exist, rather than that a claim has been defectively stated, or is
ambiguous, indefinite or uncertain. (Universal Aquarius, Inc. v. Q.C. Human
Resources Management Corporation, 533 SCRA 38 [2007]; Luistro v. Court of
Appeals, 585 SCRA 244 [2009]) When the defendant moves to dismiss the
Complaint on the ground of lack of cause of action, he is regarded as having
hypothetically admitted as true all the averments thereof. (Makati Exchange, Inc.
v. Campos, 585 SCRA 120 [2009] A ruling on this motion should be based only
on the facts alleged in the complaint, (Perkin Elmer Singapore Pte Ltd. v. Dakila
Trading Corporation, 530 SCRA 170 [2007] and no other.
Q. State the test in determining whether or not a complaint states a cause of
action?
A. The test for failure to state a cause of action is whether the complaint alleges
facts which if true would justify the relief demanded. The inquiry is into the
sufficiency, not the veracity , of the material allegations. If the allegations in the
complaint furnish sufficient basis on which it can be maintained, it should not be
dismissed regardless of the defense that may be presented by the defendant.
(Hongkong and Shanghai Banking Corporation, Limited v. Catalan,440 SCRA
498 [2004])
Q. Is insufficiency of cause of action a ground to dismiss the Complaint?
A. No.
A complaint may not be dismissed for insufficiency of cause of action if it
appears clearly from the complaint and its attachments that the plaintiff is entitled
to relief. (Universal Aguarius, Inc. v. Q.C. Human Ressources Management Corp..
(533 SCRA 38 [2007])
Notes and Cases

23

The caption of the Complaint is not important in determining the

sufficiency of a cause of action. The litmus test is whether the facts alleged in
therein clearly show the presence of the essential elements of a cause of action.
(Benito Saguitan-Ruiz, 394 SCRA 250 [2002]) And the ultimate facts or facts are
essential if stricken out, they leave the cause of action inadequate or insufficient.
Philippine Crop Insurance Corporation v. Court of Appeals, 567 SCRA 1
[2008]Czndgd v.Geronimo, 542 SCRA 206 [2008])The focus is on the
sufficiency, and not the veracity, of the material allegations which determination
is confined within the four corners of the Complaint. (Malicdem v. Flores, 501
SCRA 248 [2002] .
In pari material: Philippine Crop Insurance Corporation v. Court of Appeals, 567
SCRA 1 [2008]
Q. If the cause of action is insufficient, what is the remedy of the defendant
considering that he cannot file a motion to dismiss on that ground? .
A. The remedy of the defendant is to file his Answer and incorporate therein as
affirmative defense the insufficiency of the cause of action. Then, file a motion
for the preliminary hearing of the affirmative defense as if a motion to dismiss
was filed. ( Sections 4 and 5 [b], Rule 6 in conjunction with Section 6, Rule 16).
If motion is denied proceed to trial.
Notes and Cases
The defendant should file his Answer with affirmative or special defenses.
Let the trial on the merits proceed, and plaintiff adduces evidence to prove the
allegations of his Complaint. After plaintiff has rested his case, the defendant
believes that the plaintiff has not shown to be entitled to relief may file a motion
to demur to the evidence on the ground that upon the facts and the law the
plaintiff has shown no right to relief. (Rule 23- Demurer to Evidence; New
Regent Sources, Inc. v. Tanjuatco, Jr., 585 SCRA 329 [2009])
Q. What is the test in determining the sufficiency of the facts in the complaint
as constitutive of a cause of action?
A. The test of the sufficiency of the facts alleged in the complaint to constitute a
cause of action is whether or not, admitting the facts alleged, the court could
render a valid judgment upon the same in accordance with the prayer of the
complaint. (Francia, Jr. v. Power Merge Corp. 476 SCRA 62 [2005];Flour Daniel,
Inc. Philippines v. E.R. Villarosa & Partners Co., Ltd., 528 SCRA 321
[2007] ];Agrarian Reform Beneficiaries Association v. Nicolas, 567 SCRA 540
[2008])

24
Case Heirs of Tomas Dolleton v. Fil-Estate Management, Inc., 584 SCRA 409
[2009] : The test for failure to state of cause of action is whether the complaint
alleges facts which if true would justify the relief demanded. The inquiry is into
the sufficiency, not veracity, of the material allegations. If the allegations in the
Complaint furnish sufficient basis on which it can be maintained, it should not be
dismissed regardless of the defense that may be presented by the defendant..
Q. If the defendant files a motion to dismiss on the ground that the action has
already prescribed, how should the motion be resolved?
A. The motion to dismiss should be denied.
The affirmative defense of prescription does not automatically warrant a
dismissal of a complaint. An allegation of prescription can effectively be sued in
a motion to dismiss only when the Complaint on its face shows indeed the action
has already prescribed. If the issue of prescription is one involving evidentiary
mattes requiring a full-blown trial on the merits., it cannot be determined in a
motion to dismiss. (National Irrigation Administration v. Court of Appeals, 318
SCRA 255 [l999]
In Pari material: Pomeda v. Heirs of Eliseo Guevarra, 515 SCRA 627 [2007];
Heirs of Tomas Dolleton v. Fil-Estate Management, Inc., 584 SCRA 409 [2009]
Notes and Cases
Where the question to be resolved in a motion to dismiss a civil
complaint on the ground of lack of cause of action, only the allegations of the
complaint must be examined, and only the facts therein alleged,, which are
hypothetically admitted true, would justify the relief demanded and the court
can render judgment thereon, then the complaint alleges a cause of action
and should not be dismissed, and consequently the motion to dismiss cannot
prosper.
Where the question of prescription of action is raised in a motion to
dismiss, the motion can be granted only where it is shown clearly on the face
of the Complaint that indeed the action had prescribed,. Otherwise, the
motion must be denied, as evidence is required to show that the action had
presr4ibed Consequently, rial on the merits follows.
Case: Heirs of Tomas Dolleton v. Fil-Estate Management, Inc., 584 SCRA 409
[2009] Eight Complaints for Quieting of Title and/or Recovery of ownership and
possession were filed by Heirs of Tomas Dolleton and numerous other plaintiffs
over several parcels of land against Fil-Estate Management, Inc. Theallegations of
these complaints were similarly worded and contained identical cause of action of
90 years of uninterrupted possession until they were forcibly ousted by armed
men hired by the defendant; they have been paying their yearly realty tax over the
several lots now titled in the name of the defendant; that the titles were
fraudulently obtained and spurious. The thrust of the complaints is that the subject

25
properties are different from the lands titled properties claimed by the defendant,
or that land covered by the certificates of title do not include the land of the
plainttf. Plaintiff prayed for the issuance of a preliminary injunction to enjoin the
defendant from developing the properties and after trial judgment be rendered in
their favor by directing the defendant to reconvey these lands to them and the
damages. Claimed by awarded. The defendant filed a motion to dismiss on several
grounds among them is lack of cause of action and prescription.. The RTC after
hearing found the motion to dismiss meritorious that the complaints lack cause of
action and that the action has prescribed. Plaintiffs filed a consolidated notice of
appeal.. The Court of Appeals found that the defendants title to the subject
properties were indispensable because they were registered under the Torrens
System and that the actions had prescribed. The motion for reconsideration filed
by them was denied. Hence, the plaintiffs below, now the Petitioners filed the
present for review on certiorari under Rule 45. Issue: Whether or not the 8
complaints lack cause of action and whether or the defense of prescription be
sustained in a motion to dismiss. Held. The Court was convinced that each of he
Complaints filed by the petitioners sufficiently stated a cause of action. The
Complaints alleged that the petitioners are the owners of the subject properties by
acquisitive prescription. As owners thereof, they have the right to remain in
peaceful possession of the said properties and, if deprived thereof they may
recover the same under Article 428 of the Civil Code. The Complaints should not
have been dismissed True,, the essential elements to constitute a cause of action
were present in all the complaints.. To sustain a motion to dismiss for lack of
cause of action, the complaint must show that the claim for relief does not exist,
rather than that a claim has been defectively stated, or is ambiguous, indefinite or
uncertain. The complaints likewise passed the test in determining the presence or
absence of a cause of action. The test for failure to state of cause of action is
whether the complaint alleges facts which if true would justify the relief
demanded. The inquiry is into the sufficiency, not veracity, of the material
allegations. If the allegations in the Complaint furnish sufficient basis on which it
can be maintained, it should not be dismissed regardless of the defense that may
be presented by the defendant.
The affirmative defense of prescription does not automatically warrant a
dismissal of a complaint. An allegation of prescription can effectively be sued in
a motion to dismiss only when the Complaint on its face shows indeed the action
has already prescribed. If the issue of prescription is one involving evidentiary
mattes requiring a full-blown trial on the merits., it cannot be determined in a
motion to dismiss. In this case, the respondents must first be able to establish by
evidence that the subject properties are indeed covered by their certificates of title
before they can argue that any remedy assailing the registration of said properties
or issuance of the certificates of title over the same in he names of respondents or
their predecessors--in-interest has prescribed. Adjudication: Petition granted.
The decision of the RTC and the Resolution of the Court of Appeals are reversed
and set aide. That the records of the cases returned to the court of original and
ordered to try and decide the case with dispatch.

26
Q. What determines the jurisdiction of the court over the subject matter of a
complaint?
A. Jurisdiction over the subject matter is determined by the allegations of the
Complaint, irrespective whether or not the plaintiff is entitled to recover upon all
or some of the claims asserted therein, and the law at the time when the action is
commenced. Jurisdiction if a court over an action is determent by law at the time
the action is commenced. (Abad v. Court of First Instance of Pangasinan, 206
SCRA 579 [2002]; Fernando v. Lim,563 SCRA 147[2008];Cadimas, etc.v.
Carreon, et al, Sept. 29, 2008]
Notes and Cases
The phrase subject matter of the action means the physical facts, the
things, real or personal, the money, land and chattels, and the like, in relation to
which a suit is prosecuted. It refers to the thing or object in dispute. The cause of
action is based on and formulated upon the thing or object for the purpose of
enforcing or protecting a right or seeking redress of a wrong in a court of law.
The relief is the redress sought or prayed for by the plaintiff. Remedy is
the appropriate legal form of relief whereby a remediable right may be enforced.
(Bachrach v. Icaringal, 68 Phil. 287 [1939])
The presence of a cause of action rests on the sufficiency, and not on the
veracity of the allegations in the complaint. (Pioneer International, Ltd. v. Guadiz,
Jr., 535 SCRA 584 [2007])
Splitting of a single action
(Sections 3 and 4, Rule 2)
Q. What does splitting a single cause of action mean?
A. Splitting a single cause of action is the practice of dividing one cause of action
into different parts and making each part the subject of a separate complaint.
(Bataan Hardwood Corporation v. Dy, 43 SCRA 450 [1972]
Q. What does one suit for a single cause of action mean? And what is its
effect if two or more suits are instituted on the same cause of action?
A. A party may not institute more than one suit for a single cause of action.
(Section 3, Rule 2;Laperal v. Kartigbak, 4 SCRA 582 [1962]) If two or more suits
are instituted on the basis of the same cause of action, the filing of one or a
judgment upon the merits in any one is available as a ground for the dismissal of
the others. (See: Sections3,and Section 4, Rule 2); Bataan Hardwood Corp. v. Dy
Pac & Co., Inc., supra)
Notes and Cases

27
Spitting a single cause of action is not allowed. A contract, for instance, to
do several things at several times is divisible in its nature, so as to authorize
successive actions; and a judgment recovered for a single breach of a continuing
contract or covenant is no bar to a suit for a subsequent breached thereof. On the
other hand, where the covenant or contract is entire or indivisible, and the breach
total, there can only be one action, and the plaintiff recovers all his damages.
Blossom & Co v. Manila Gas Corp. 55 Phil. 226 [1930]; Quioque v. Bautista, 4
SCRA 476 [1962];[Bataan Hardwood Corp. v. Dy Pac & Co., Inc., supra)
Q. State the reasons for the rule against splitting a single cause of action.
A. The rule is intended to prevent repeated litigations between the same parties in
regard to the same subject of controversy; to protect the defendant from
unnecessary vexation; and to avoid the costs incident to numerous suits.
(Bachrach . Icaringal, 68 Phil. 287 [1939] )
Notes and Cases
See: 567 SCRA 375
The principles of res judicata, or bar by prior judgment, or law of the case,
or conclusive of judgment may come into play. Once a cause or defense has been
finally resolved in a judicial proceeding, the same cause or defense may no
longer be re-litigated in another forum by the same parties.
The principle of res judicata in actions in personam is found in Sections
49[b] and 49[c], Rule 39. It comes in two concepts, namely, (a) bar by prior
judgment with is found in Section 47[b], Rule 39 and (2) conclusiveness of
judgment found in Section 47[c], Rule 39, Rules of Court.
.
The rule on bar by prior judgment means that when a judgment has been
rendered by a court of competent jurisdiction over a case between he litigants, it is
a bar to a new action or suit involving the same cause of action either before the
same or any other tribunal. This judgment rendered in the first case is an absolute
bar to the subsequent action since said judgment is conclusive not only as to the
matters offered and resolved to sustain that judgment but also as to any other
matter which might have been offered for that purpose and which could have been
adjudged. .
The rule on conclusiveness of judgment means that any right, fact, or
matter in issue directly adjudicated or necessarily involved in the determination of
an action before a competent court in which a judgment is rendered on the merits
is conclusively settled by the judgment therein and cannot again be litigated
between the parties and their privies whether or not the claim or demand, purpose,
or subject matter of the two suits are the same.
Res judicata as a bar by prior judgment when there is an identity in the
cause of in the cause in both cases involved, in conclusiveness of judgment, the

28
cause of action in the first case is different from that in the second case. Both bar
by prior judgment and conclusiveness of judgment are founded on the principle of
estoppel based on the salutary policy against unnecessary multiplicity of suits.
Camara v. Court of Appeals, 310 SCRA 608 [1999]; Garcia v. Philippine Air
Lines, 558 SCRA 171 [2008])
Q. When is a cause of action considered single?
A. Where there is only one delict or wrong, there is but a single cause of action,
regardless of the number of rights violated, and all of those rights violated must
be asserted and prayed for in one complaint. (Camara v. Aguilar, 94 Phil. 527
[19 ) But the single delict or wrong must violate only one contract or transaction,
for if there are separate and distinct contracts or transactions, betwe3en plaintiff
and defendant, violation of each contract or transaction would constitute a
separate action. (Landol, Inc. v. Monroy, 102 Phili. 753 [l957]; Joseph v.
Bautista, et al.,170 SCRA 540 [l989])
Notes and Cases
: When ones property is taken through violence or intimidation, by
another, a single wrong or delict is committed consisting of the illegal taking or
unlawful dispossession of the property. Here there is only one single cause of
action. At the same time, such single cause of action entitles the one unlawfully
deprived of his possession two claims: one is for the recovery of the possession
of the property, and the other for damages for the reasonable use and occupation
of the land. Under the rule, the illegally disposed person can only file one
Compliant for recovery of possession and damages. He cannot file two separate
actions, one for recovery of possession, and the other for damages, for he would
be splitting a single cause of action into two parts. .(Bataan Hardwood Corp. v.
Dy Pac & Co., Inc., 43 SCRA 450 [l972] )
Q. May a motion to dismiss filed in a MTC on the ground that another action
for quieting of title is pending before the RTC under Section 1[e], Rule 16,
involving the same parties and the same subject matter prosper?
A. No. In order that this ground be availed of there must be, between the action
for forcible entry and the other action for quieting of title, these requisites must
be present: (1) Identity of parties, or at least such as represent ting the same
interest in both actions; (2) identity of rights asserted and relief prayed for, the
relief being founded on the same facts; and (3) the identity on the two proceedings
particulars should jibe such that any judgment which may be rendered on the
other will regardless of which party is successful amount to res-justicata. While
there may be identity of parties and subject matter in the forcible entry case and
the quieting of title case, the rights asserted and the relief prayed for in the said
cases are not the same. Consequently, lacking this element, the ground relied upon

29
will justify the grant of the motion to dismiss. ((Quimpo v. Dela Victoria, 46
SCRA 130 [l972])
Case: Quinpo v. Dela Victoria, 46 SCRA 139 [1972] \Victoria filed two cases:
one for quieting of title with the CFI nor RTC, and the other for forcible entry
with the CC of Davao, now MTCC of Davao. Involving one and the same parcel
of land against Quimpo in both cases. Quimpo filed a motion to dismiss the
Complaint for forcible entry alleging another action for quieting of title is pending
before the RTC. The MTCC denied the motion to dismiss for the reason that
there is no identity of rights asserted and relief prayed for and it does not appear it
does not appear that any judgment which would be rendered on the other action
will amount to res judicata. For failure to file his Answer, Quimpo was declared in
default, plaintiff adduced evidence and submitted the case for resolution. The
MTCC rendered judgment ordering Quiimpo to vacate the premises and pay the
accured rentals. Quimpo moved for a reconsideration but was denied. Quimpo
appealed to the RTC and restated his arguments contained in his Quimpo.
Meamtine, Victoria moved for the issuance of an order for writ of execution. His
appeal was dismissed. Quimpo filed a motion for reconsideration but was denied.
Hence, the present petition assailing the decisions of both MTCC and RTC.
Issue: Whether or not the court was correct in granting the issuance of immediate
execution before resolving the issue of the fact that there is another pending
action involving the same parties and the same subject matter. Held: No, the court
a quo did not commit an error. There might be an identify of parties and subject
matter in the case of forcible entry and in the action for quieting of title, the rights
asserted and the relief prayed for in these cases are not the same. In the forcible
entry the legal right claimed is possession, while in quieting of title the legal rist
asserted is ownership. In the action for quieting of title the question involved is
whether the pasture permit could include property for which OCT issued in the
name of Victoria. On the other hand, in forcible entry case, the issue is whether,
assuming that Quimpos pasture permit were valid, he had the right to forcibly
eject the prior occupant Victoria. Adjudication: The questioned orders were
affirmed, finding no reversible error committed by the court a quo..
When there is one delict or wrong committed, there is only one cause of
action regardless of the umber of rights that may have been violated
belonging to one person.
Case: Joseph v. Bautista, 170 SCRA 540 [1989\] Joseph filed a suit against
several defendants Peres, Villa, Vargas, Sioson, Villanueva and Pagarigan in the
CFI, now RTC, for damages against Peres, as owner of the cargo truck, based on
breach of contract of carriage and against Sioson and Villanueva, as owner and
driver, respectively, of the pick up truck, based on quasi-delict. Sioson filed his
answer disclaiming ownership of the pick up truck and never will he acquire
ownership thereof. With leave of court, Joseph filed an amended complaint and
included additional defendants Pagarigan and Vargas as alternative defendants
because he could not ascertain the real owner of the cargo truck was, whether

30
Perez or Vargas, and who was the real owner of the pick up truck, whether Sioson
or Pagarigan. Perez filed an amended answer with cross-claim against her codefendants for indemnity and subrogation in the event she is ordered to pay
Josephs claims. In his amended complaint, Joseph prayed that defendantw be
declared jointly and solidarily liable. Defendants Villanueva, Cardeno, Sioson and
Pagarigan, through their insurer, Insurance Corporation of the Philiippines, paid
Josephs claim in the sum of P1,300.00 thereby Joseph executed a release of
claim against the insurer, Cardeno, Villanueva, Sioson and Pagarigan. Later,
Villaueva, Cardeno and their insurer paid Perezs claim for damages to her cargo
truck in the amount of P7,420.51. Consequently, Sioson, Pagarigan, Cardeno and
Villueva filed a joint motion to exclude and exonerate them from .any liability
alleging that they reached an amicable settlement with Joseph. Perez filed
opposition to cross-defendants motion and filed a counter motion to dismiss
premised on the fact that the release of claim executed by Joseph in favor of the
other defendants inured to her benefit considering that all the defendants were
solidarily liable. to Joseph. The trial dismissed the case Joseph filed a motion
for reconsideration which was denied, Joseph filed with the Court a petition on
appeal by certiorari praying that the order dismissing the case, and the order
denying his motion for reconsideration be annulled and set aside.
Joseph, the Petitioner, argued that the court below presided by Judge
Bautista erred in declaring that the release of claim executed by him in favor of
the Respondents Sioson, Villanueva and Pagarigan inured to the benefit of Perez,
therefore, erred in dismissing the case. Joseph contended that there were two
causes of action embodied in his Complaint, hence the judgment on the
compromise agreement under the cause of action based on quasi-delict is not a bar
to the cause of action for breach of contract of carriage.. Issue: Were the
arguments submitted by Petitioner tenable? Held: No. The Petition is not
impressed with merit. A cause of action is understood to be the delict or wrongful
act or omission committed by the defendant in violation of the primary rights of
the plaintiff. It is true that a single act or omission can be violative of various
rights at the same time, as when the act constitutes a violation of several separate
and distinct legal obligations. However, where there is only one delict or wrong,
there is but one single cause of action regardless of the number of rights that may
have been violated. The singleness of a cause of action lies in the singleness of
the delict or wrong violating the rights of one person. Nevertheless, if only one
injury resulted from several wrongful acts, only one cause of action arises. In this
case, Petitioner sustained a single injury on his person that vested him a single
cause of action, with the correlative rights of action against the different
respondents through the appropriate remedies allowed by law. The trial court was
correct in holding that there was only one cause of action involved although the
bases of recovery invoked by Petitioner against respondents therein were not
necessarily identical since the respondents were not identically circumstanced. A
recovery by the Petitioner under one remedy necessarily bars recovery under the
other. This, in essence, is the rationale for the proscription in our law against
double recovery for the same act or omission which, obviously, stems from the
fundamental rule against unjust enrichment. There is no question that the private

31
respondents, defendants below, were solidarily liable was found by the trial court
and as prayed for by the Petitioner.. The argument of the Petitioner that the
impleaded respondents below as solidary debtors was intended only to apply in
case of execution is vacuous as there is nothing in law or jurisprudence which
would countenance such a procedure.. Adjudication: The petition dismissed,
and the questioned orders of the trial court affirmed.. .
Case: Tayag v. Court of Appeals, 209 SCRA 665 [l992] In one complaint two
causes of action: are alleged: one to.compel recognition and the other is claim for
inheritance These causes of action can be uoined in one Complaint.
Q. Rep v. Court of Appeals and Hernandez, 253 SCRA 509 .
Q. In case of violation of the rule against splitting cause of action, what is its
effect and what would be the remedy?
A. In case of a violation of the rule against splitting a cause of action, the
defendant may file his Answer and he may plead the splitting of a cause of action
as an affirmative defense. Then defendant may file a motion to for a preliminary
hearing of said defense as if a motion to dismiss has been filed. (Section 6, Rule
16).
When two or more suits are instituted on the basis of a single cause of
action, there is a clear splitting of causes of action, hence, the filing of one or a
judgment upon the merits in any one is available as a ground for the dismissal of
the others (See:. :Section 4, Rule 2)
Notes and Cases
In lis pendentia, the theory behind is that a party is not allowed to vex
another more than once regarding the same subject matter and for the same cause
of action. Lis pendentia is a ground to move for the dismissal of a civil case
wherein another action is pending between the same parties for the same cause of
action, such that the second action becomes unnecessary and vexatious. (Villarica
Pawnshop, Inc. v. Gernale, 582 SCRA 67 [2009])
Case: Arceo v. Oliveros, 134 SCRA 308 [1985] It is not disputed that there is
another civil case (Case No. 435-G) pending between Arceo, plaintiff-appellant
and Jose Oliveros, defendant-appellees Rufina Cabangan. That case involves the
case the same parcel of land and similar issues as those case (Civil Case No. C105}. In said said case, the Oliveros spouses, as plaintiffs, impugn the
extrajudicial settlement between Sixta and Pablo Arceo wherein the former
renounced her right over the disputed lot in favor of the later and seek to annl the
transfer certificate of title issued to Pablo Arceo over thesaid lot. Said spouses
based their action upon a claim of ownership over the land pursuant to a Deed of
Absolute Sale whereby Sixta Arceo sold to them her definite or specific share on
the homestead she and her brother inherited from their father. In his Anwer in the

32
said case (Civil Case No. 435G) Pablo Arceo, as defendant, sets up by way of
counterclaim his right of compulsory redemption over the same lot pursuant to
Section 119 of the Public Land Act, claiming further that the property has never
been partitioned between him and her sister. Issue: Whether or not lis pendens
may be inperposed in the counterclaim and when so done cannot again be
advanced in a seprate complaint as a cause of action. Held: This is exactly what
plaintiff-appellant Pablo Arceo seeks to accomplish in Civil Case No. C-105- to
exercise his right of compulsory redemption. In Civil Case No. 435-G and Civil
Case No. C-105, the parties are litigating over the same subject matter (the lot
inherited by the Arceows from their father) and the same issues validity of the
sake made by Sixta Arceo to the Oliveros spouses and Pablo Arceos right of
compulsory redemption under Section 119 of the Public Land Act as co-heir of his
ssister Sixta ARceo. The only difference being, that in Cvivil Case No. C-105,
Pablo Arceo asserts this right of compulsotry redemption as a cause of action in
his complaint; whereas, in Civil Case No. 435-G he asserts said claim by way of
counterclaim, which makes no difference anyway. For while lis pendens is
normally interposed as a defense when another case is pending upon the same
cause of action between the same parties in two complaints, it may also be
interposed even if said claim is set forth by way of counterclaim since the latter
partakes the naure of a complaint by the defendant against the plaintiff. Hence, it
has been held that to interpose cause of action a counterclaim and again advanced
the same in a complaint against the same party, as in the case, would be vilaltive
of the rule against splitting a single cause of action which is prohibited by the
Rules.

Joinder and misjoinder

cf causes of action
(Section 3 and 4)
Q. Define joinder of action or joinder of causes of action?
A. Joinder of causes of action is meant the uniting of two or more demands or
rights of rights of action in one action. (1 CJS, 1181)
Q. When is a joinder of causes of action available? State the general rule.
A. The general rule is that a party may in one pleading assert, in the alternative
or otherwise, ,as may causes of action as he may have against an opposing part.
(Section 5, Rule 2)
Q. State the exceptions to the general rule. In another way of putting it, what
causes of action may be joined in one complaint?

33

A. A party may in one pleading assert, in the alternative or otherwise, as many

causes of action as he may have against an opposing party, subject to these
conditions:
(a) The party joining the causes of action shall comply with the rules of
joinder of parties;
(b) The joinder shall not include special civil actions or actions governed
by special rules;
(c) Where the causes of action are between the same parties but pertain to
different venues or jurisdictions, the joinder may be allowed in the Regional Trial
Court provided one of the causes of action falls within the jurisdiction of said
court and the venue lies therein, and
(d) Where the claims in all the causes of action are principally for recovery
of money, the aggregate amount claimed shall be the test of jurisdiction. (Section
5, Rule 2)
Q. Is joinder of causes of action between the same party but of different
venues or jurisdiction allowed?
A. Yes, it is allowed in the RTC provided one of the causes of action falls within
the jurisdiction of said court and venue lies therein. (Section 5[c], Rule 2)
Q. May a plaintiff in an action for foreclosure of mortgage of a property
located in San Fernando, La Union join in one complaint an action for the
recovery of possession located in Baguio City with an assessed value of
P19,000.00.?
A. No. Although the action for foreclosure of mortgage of property is cognizable
by the RTC and the venue lies is in San Fernando La Union, this action is a
special civil action which is governed by special rules and may not be joined with
the an ordinary civil action for recovery of possession of land. (Section 5[b], Rule
2) the jurisdiction of which lies with the MTC of Baguio. Thus, it may not be
joined with the action for foreclosure in a single complaint before the RTC of San
Fernando (Section 5[c], Rule 2) as the RTC of La Union has no jurisdiction over
the subject matter of the recovery of possession of land located in Baguio.
Q. In one Complaint, two causes of action in the alternative are alleged by
the plaintiff against the same defendant. One cause of action falls within the
jurisdiction of the MTC and the other falls within the jurisdiction of the
RTC, and the complaint is filed with the RTC. Will the RTC be deprived of
hearing and deciding the case? Give reason.
A. The RTC is not necessarily deprived of its jurisdiction over the Complaint
alleging two alternative causes of action. .
The rule is that where causes of action are between the same parties but
pertain to different venues or jurisdictions, the joinder may be allowed in the

34
RTC provided one of the causes of action falls within the jurisdiction of said court
and the venue lies therein.(Section 5[c], Rule 2) In this case, one action falls
within the jurisdiction of the RTC, the other action falls within the MTC, and
both actions involve the same parties. Hence, the RTC is not deprived of its
authority to hear the case despite t one cause of action lies with the MTC and
venue is assumed properly laid.
Q. When is there an identity of causes of action?
A. There is identity of causes of action if the same evidence needed in the first
case will sustain the second action, and this principle applies even if the reliefs
sought in the two causes are different. (Santos v. Heirs of Dominga Lustre, 561
SCRA 120 [2008]
Notes and Cases
Several plaintiffs may join as plaintiffs in one complaint having a common
valid cause of action against defendant arising from one single wrong or
same transaction..
Q. Paolo, a farmer, was burning dried cogon grass. The fire spread resulting
in the burning of the houses of Alfonso,, Bernardo and Carlos each of which
has a value of 25,000.00 or a total of P75,000.00. Alfonso,, Bernardo and
Carlos joined as plaintiffs in one complaint for recovery of the value of their
respective houses and the complaint was filed in the MTC. (a) Have Alfono,
Bernardo and Carlos a valid cause of action against X? (b) is the joinder of
Alfonso, Bernardo and Carlos as plaintiffs in the complaint proper? (c) Has
the MTC jurisdiction over the subject matter of the complaint?
A. (a) Yes, Alfonse, Bernardo and Carlos have a valid cause of action against
Paolo.. They have a valid cause of action because each have a legal right over
their respective houses; that Paolo has a correlative obligation to respect those
legal rights of Alsonso, Bernardo and Carlos. The act of Paolo violated such
rights of Alfonso, Bernardo and Carlos, hence, they have a right to seek redress
for the wrong or damage done to each of them.. (Pioneer Concrete Philippines,
Inc. v. Todaro, 524 SCRA 153 [2007]
(b) Yes, the joinder of Alfonso, Bernardo and Carlos as plaintiffs in one
complaint is proper. Their right to relief having arisen from the same transaction,
namely, the act of Paolo in burning dried cogon grass, and there being a common
question of fact and law arising in the action, the house-owners can join as
plaintiffs in one complaint. This is allowed by the Rules.(Section 5, Rule 2, in
relation to Section 6, Rule 3, Rules of Court)
(c) Yes, the MTC has jurisdiction over the subject matter of the complaint
because the claims of Alfonso, Bernardo and Carlos constituting their respective
causes of action are principally for recovery of sum of money, hence, the rule is
that the aggregate amount claimed shall be the test of jurisdiction. Since, the
aggregate amount does not exceed three hundred thousand pesos (P300,000.00)

35
the MTC has exclusive original jurisdiction over the case. (Section 33, BP Blg.
129 as amended by RA 7691)
Several defendants may be joined in one Complaint, the plaintiff having a
common cause of action against them for recovery of damages arising from
the same transaction.
Q. Alfonso, accountant, Bernardo, Department Head, and Carlos, internal
auditor of Foods for the Gods Corporation all are residents of Baguo City
and the Fool for the Gods has its principal corporate address at Baguio City,
without giving notice and without any cause, by agreement and design
abandoned their respective positions in said corporation and joined Garden
of Eden Food Corporation which offered better pay and benefits to each of
them. Food for the Gods filed a Complaint for damages pursuant to Articles
19 and 20 of the Civil Code was filed praying that, after due hearing, plaintiff
be granted recovery of damages in the aggregate sum of P450,000.00
(P150,000.00 each defendant) (1) Is the joinder of Alfonso, Bernardo and
Carlos as defendant proper? (2) Has the Food for the Gods a cause of
action for damages? (3) What court would have jurisdiction over the case?
A. (1) The joinder of Alfonso, Bernard and Carlos as defendants is proper
because the right to relief in favor of Food for the Gods Corporation arose out of
the same transaction, namely, the acts of the defendants in terminating their
employment under the circumstances given in the problem, and there is a
common question of lact and law arising from the action. (Section 5 and Section
5[d], Rule 2)
(2) The RTC has jurisdiction to try and hear the Complaint because the
subject mater is principally the recovery of sum of money, and jurisdiction of the
court is determined by the aggregate amount claim by the plaintiff. (Section 5[d],
Rule 2) In this case, the aggregate sum of monetary claim is P450,000.00, hence,
jurisdiction falls within the exclusive jurisdiction of the RTC.
Q. Joshua is a resident of San Fernando City, LU., while Marco and Carlo
are residents of Buguias, Benguet Province. Joshua, Marco and Carlo are coowners of a residential land located at Pinsao Proper, Baguio City with an
assessed value of P300,000.00. Joshua is indebted to Marco in the sum of
P100,000.00 which became due and payable on December 30, 2009 but
remains unpaid. Marco and Carlo wrote Joshua that it was high time that
the co-owned land be partitioned but Joshua rejected the proposal to
partition the residential land. Marco filed a complaint for partition against
Joshua and Carlo in the RTC, Branch 59, Baguio City. Marco alleged in his
complaint for partition his money claim of P100,000.00 against Joshua,
including payment of accrued legal interest and attorneys fees. Is the joinder
of the causes action proper? Give reason.

36
A. No. It was improper for Marco to join his causes of action against Joshua in
the complaint for partition against Joshua and Carlo. The causes of action are
between Joshua and Marco having to do with the outstanding and payable sum of
money, but not with respect to the partition which includes Carlo who has nothing
to do with the claim of Marco. The joinder is the partition and a sum of money.
But the partition is a special civil action which cannot be joined with the ordinary
civil action. (Section 5[c]. Rule 2) Moreover, the causes of action pertain to
different venues and jurisdictions. The action for sum of money falls within the
MTC because sum of money claimed is less than P300,000.00 (Section 19 subparagraph (8), BP Blg.129 as amended by RA 7691) and since it is an ordinary
action for collection of sum of money, the case should be filed in the MTC of
Buguias, Benguet Province which is the residence of Marco, the plaintiff, or
Marco can file the complaint for sum of money with the MTC of San Fernando
City, La Union, which is the residence of Joshua but at the election of Marco, the
plaintiff..(Section 2, Rule 4)
Q. A taxicab driven by Mario hit an electric post resulting to serious physical
injuries suffered by his passenger, Jose. Mario was charged, before the MTC
of Baguio City, in a criminal information for reckless imprudence resulting
in serious physical injuries. While the criminal case is pending, Jose filed a
civil action in the RTC against Rachelle, the registered owner of the taxicab
for breach of contract of carriage and Mario for quasi-delict. Rachelle filed
a motion to dismiss the complaint on the ground of lis pendencia, that is, the
pending civil action to recover civil indemnity arising from the delict which
was deemed instituted with the criminal action. How should the motion to
dismiss be resolved? Why?
A. The motion to dismiss should be denied.
The cause of action of Jose is for breach of contract of carriage against
Rachelle the taxicab owner is a distinct cause of action which may be filed
despite the pending criminal action against Mario, the taxicab driver. At law,
Rachelle may be subsidiarily liable in the criminal action if and when Mario shall
be found guilty of the crime charged and he is found insolvent. The civil action
for quasi-delict against Mario is an action which can be filed and proceed
separately and independently (Article 2176, Civil Code in relation to Section 3
Rule 111, Rules of Court) regardless of the result of the criminal action. The only
limitation is that the offended party, in this case, Jose, shall in no case can recover
damages twice for the same act or omission charged in the criminal action.( Ibid.;
Samson v.Daway, 434 SCRA 612 [2004] .
Q. Verex executed three promissory notes in favor of Joshua, to wit: first for
P200,000.00 due and payable on February 15, 2008; the second is for
P300,000.00 due and payable on May 15, 2008, and the third, for P500,000.00
due and payable December 15, 2008. The first two are unsecured but the last
is secured by a real estate mortgage. Can Verex file three separate actions or
can he one complaint with three causes of action? Explain with reason.

37

A. I qualify my answers to the two questions.

Verex may join two causes of action for collection of sum of money based
on the first two promissory notes for P200,000.00 and P300,00.00 respectively
against Joshua before the RTC. The joinder of these two causes of action is
allowed where the claims, as in this case, principally for recovery of money, the
aggregate value claimed determines the jurisdiction of the court which, in this
case, the aggregate sum is P500,00.00 hence jurisdiction lies with Regional Trial
Court.
But Verex cannot include as the third cause of action with the first two
causes of action in one complaint because it is secured by a real estate mortgage
which is governed by special rules. Joinder of this cause of action with the first
two is not allowed. (Section 5[b], Rule 2)
The loan secured by a real mortgage, a violation thereof is but one single
cause of action but there can be two remedies, namely, foreclosure of mortgage or
simple collection of sum of money. But Verex is not permitted to pursue these
two remedies simultaneously or successively.. If he chooses to foreclose the
mortgage, then the remedy of collection of sum of moony is waived or
abandoned. If, on the other hand, he chooses to file a suit for collection of such of
money, then he waives the remedy of foreclosure of mortgage. If Verex elects to
sue Joshua for simple collection of money, then he may join the three causes of
action, all for collection of sum of money, in one complaint, having arisen from a
common transaction which involve same question of fact and law.
Or, Verex can file three separate complaints, tow for collection of sum of
money, and the third a petition for the foreclosure of real estate mortgage.
Case: Katon v. Palanca, Jr., 437 SCRA 566 [2004] That where prescription,
lack of jurisdiction or failure to state a cause of action clearly appears from the
complaint filed with the trial court, the action may be dismissed motu proprio,
even if the case has been elevated for review on different grounds.( Monzon v.
Relova, 565 SCRA 514 [2008]
Q. What is the effect of misjoinder of causes of action?
A. The are: (1) A misjoinder of causes of action is not a ground for a motion to
dismiss. (2) Where there is a misjoinder of causes of action, on motion of a party
or on the initiative of the court , may be severed and proceeded with separately.
(Section 6, Rule 2).
Notes and Cases
If neither of the parties move for the separation of the misjoined causes of
action, the trial court can motu proprio cause the separation of these causes of
action and hear and try them separately.
..

38
Q. Alex filed a complaint with the RTC alleging two causes of action, namely,
(a) recovery of a parcel of land and (2) foreclosure of mortgage against Paolo.
Paolo filed a motion to dismiss on the ground of misjoinder of causes of
action. Will the motion prosper? What should the trial court do?
A. The motion to dismiss filed by Paolo will not prosper. The trial court can
severe the two causes of action and try and hear them separately.
Misjoinder of causes of action is not a ground for a motion to dismiss.
(Section 6, Rule 2)
When, as in this case, there are two actions, one for
recovery of land and the other for foreclosure of mortgage which is a special
action, they can not be joined in one Complaint. The dismissal of the Complaint
may on the ground of misjoinder of causes of action is not the proper remedy..
Rather, the trial court may in its own initiative severe the two causes of action and
hear them separately..(Section 6 in conjunction with Section 5[b], Rule 2)
Notes and Cases
There is no provision of the Rules against non-joinder of separate causes
of action because the plaintiff is required for a single wrong to maintain or file
one single action. (Section 1, Rule 2) It may happen that there are two or more
causes of action which accrue in favor of the plaintiff against one and the same
defendant. The plaintiff may file separately as many causes of action as there
may be against one defendant. This is permissible under the Rules. But these
actions, may be consolidated and be heard and tried jointly to avoid unnecessary
expense and delay.(Section 1, Rule 31}
Q. For valuable consideration, Paolo executed two promissory notes in favor
of Liam. One is in the amount of P200,000.00 which became due and
payable, the other is in the mount of P500,000.00 which also became due and
payable. Liam wants to sue Paolo for recovery money and damages. Is Liam
obligated to file one Complaint against Paolo considering that Paolo is a
resident of Baguio and that Liam is a resident of San Fernando City, La
Union? with reason.
A. Liam is not obliged to join the two causes of action in one Complint.
Where, as in the case, the two claims are principally for recovery of sum
of money, the aggregate amount claimed determines the test of jurisdiction.. Both
money claims have an aggregate amount of P700,000.00, the jurisdiction over
the two causes of action are principally for sum of money, hence,jurisdiction lies
with the RTC. Rightly, Liam can file the Complaint with RTC. (Section 5[c], Rule
2)
Since joinder of causes of action is permissive, Liam can file two separate
Complaints: one for the collection of the sum of money covered by an overdue
promissory note in the amount of P200,000.00 and damages, and file it in the
MTC having jurisdiction vested by law; the other for recovery of sum of money
in the amount of P500,000.00 and damages, Liam can file it in the RTC. The

39
residence of Paolo and Liam are immaterial because the subject matter involves
personal actions. In personal actions, Liam, the plaintiff, has the choice where to
file the two complaints in Baguio City where Paolo resides or in San Fernando
City, La Union, where he resides. This is allowed because joinder of causes of
action is permissible and separate complaints is allowed to be filed which Liam
can pursue.(Section 5[d], Rule 2).
Q. Suppose, in the above problem, Liam filed a complaint with the RTC of
San Fernando City, La Union, alleging therein the two causes of action.
Paolo filed a motion to dismiss the Complaint on the ground that cause of
action which is P200,000.00 covered by a promissory note lies with the
jurisdiction of the MTC. How should the motion to dismiss be resolved?
Reason.
A. The motion to dismiss should not be granted.
The joinder of the causes of action is allowed. Where, as in this case, the
Complaint was filed with the RTC and one of the causes of action lies within its
jurisdiction, and the venue properly laid. The venue was properly laid because
the choice to file the personal action as in this case was with Liam, the plaintiff.
The RTC has jurisdiction over the subject matter because when the action is
principally for recovery of sum of money, the test to determine jurisdiction of the
court was the totality of the claim which, in this case, was P700,00.00. For this
reasons, the motion to dismiss on the ground of lack of jurisdiction is without
merit (See: Section 5 in conjunction with Section 5 [c], Rule 2).
Parties to a civil action
(Rule 3)
Q. Who may be a party to a ordinary civil action or suit?
A. Only natural or juridical persons, or entities authorized by law may be parties
to a civil action. (Section 1, Rule 3)
Notes and Cases
Generally, parties to a civil action are the plaintiff and the defendant. The
term plaintiff is the party suing or bringing the suit or the claiming party, the
counterclaimant, the cross-claimant, or the third party plaintiff. The term
defendant is the original party against whom the suit is lodged, or the party sued
by the plaintiff, the defendant in a counterclaim, the cross-defendant, or the third
party defendant. (Section 1, Rule 3; See: Special Civil Actions, Rules 62-71)
In special proceedings (Rules 71-100) the initial pleading is a petition and
for uniformity, the petitioner (plaintiff) is the one who initiates the petition, and
the adverse party is the respondent (defendant) who opposes the petition.

40
Q. May any person sue or be sued? Explain.
A. No. Unless otherwise authorized by law or these Rules, every action must be
prosecuted or defended in the name of the real party in interest. (Section 2, Rule
3; Samahang Magsasaka ng 53 Flektarya v. Mosquera, 518 SCRA 668 [2007] :
Rural Bankers Association of the Philippines, v. Tanghal Salcana, 534 SCVRA
721 [2007])
Q. Under the rule on parties, who are the parties that may sue and be sued?
A. They are: (1) Parties in interest; (2) parties who are represented by authorized
agents, (3) spouses, (4) minor or incapacitated person, (5) juridical persons such
as duly registered corporations or partnerships, (.6) others parties authorized by
law or by the Rules.
Notes and Cases
The phrase duly authorized law includes the representative of the owner
in ejectment cases (Section 1, Rule 70), a receiver (Section 6, Rule 59), assignee
of a debtor in insolvency proceedings, judgment creditor may sue the debtor of a
judgment debtor if the former denies the indebtedness (Section 43, Rule 39, and
in the Civil Code, particularly Articles 487, 1311, 1497, 1664, 2103 and 2118..
(a) A thing
A thing like a ship or a vessel M/S Prosperity, cannot be sue or be sued
because it is neither a natural or juridical person. But the owner of the vessel, the
proprietor of the vessel, or the duly registered corporation or partnership which
owns the vessel may sue or be sued.
(b) a registered labor union
A duly registered Labor Union can sue or be sued. .
(c) Intestate or testate estate
The intestate or testate estate of a deceased can sue or be sued.
(d) a service, civic organizations, religious l association, or religious or
education institutions duly registered can sue or be sued.
A service, civic organizations, religious association, or religious or education
institutions duly registered with the SEC can sue or be sued.
(e) a foreign corporation

41
A foreign corporation which is legally engaged in business in the
Philippines with a duly issued license to do business here may sue or be sued in
our courts. Or, a foreign corporation which is illegally engaged in business in the
Philippines, and without a duly issued license to do business here, may not sue but
it may be sued in our courts. A foreign corporation which is not engaged in
business in the Philippines, may sue in our courts on a single isolated transaction
but it cannot be sued in our courts on such a transaction.
(f) class suit
When the parties are so numerous that it is impractical to bring all before
the court, in which case one or more may be made parties if they represent
sufficiently the interest of all.
(g) association or two or more persons
Where two or more persons associated in any business transact such
business under a common name, in which case they may be sued by such
common mane, whatever it comprises the names of such persons or not.
(h)co ownership
In co-ownership, any one of the co-owners may bring an action in
ejectment.
(i) state
The State, or the National Government of the Philippines, as a rule may
not be sued under the doctrine of immunity from suit. But it may be sued if it
gives its consent, or when the government sues a private individual in which case
the latter may aet up his own claims and defenses, or when the government enters
into a contract with a private person, or government entities, whether corporate or
non-corporate, exercising proprietary functions, or government-owned
corporations, or suits against government officials and employees in their personal
and private capacities, or municipal corporations, including Barangays, subject to
the limitation that they cannot be held civilly liable for acts performed in the
exercise of strictly governmental functions.
Case: United Paragon Mining Corporation v. Court of Appeals, 497 SCRA
638 [2006] A personnel superintendent of a corporation has no personality to file
in behalf of the corporation without any authority from the board of directors. It is
basic that a corporation has a legal personality entirely separate and distinct from
that of its officers and the latter cannot act for and in behalf without being so
authorized by its governing board.
Q. May an entity without juridical personality be sued?

42

A. Yes. When two or more persons not organized as an entity with juridical
personality enter into a transaction, they may be sued under the name by which
they generally or commonly known.
In the answer of such defendant, the names and addresses of the person
composing said entity must all be revealed. (Section 15, Rule 3)
Q. What is meant by the term interest?
A. An interest within the meaning of the rule means material interest, an interest
in issue and to be affected by the decree as distinguished from mere interest in the
question involved or a mere incidental interest. (PepsiCo., Inc. v.. Emerald Pizza,
Inc. 530 SCRA 58 [2007]
Q. Who is a real party in interest?
A. A party in interest who tands to be benefited or injured by the judgment in the
suit, or the party entitled to the avails of the suit or the party entitled to the avails
of the suit. . Unless otherwise authorized by law or these rules, every action must
be prosecuted or defended in the name of the real party in interest. (Section 2,
Rule 3; PNB v. Heirs of Estganislao military and Deogracias Militar, 467 SCRA
377 [2005]) This requirement is essential in the admnsstration of justice.
(Samahang Magsasaka ng 53 Flektarya v. Mosquera, 518 SCRA 668 [2007])
In pari materia: Carillo v. Court of Appeals, 503 SCRA 66 [2006]; Carandang v.
Heirs of Quirino A. De Guzman, 508 SCRA 469 (2006] Samahang Magsasaka ng
53 Flektarya v. Mosquera, 518 SCRA 668 [2007]; (Bankers Association of the
Philippines v. Tanghal Salvana, 534 SCRA 721 [2007] Excellent Quality Apparel,
Inc. v. Win Multi-Rich Builders, Inc., 578 SCRA 272 [2009]
Notes and Cases
There are two requirements to institute an action, to wit: (1) the plaintiff
must be the real party in interest, and (2) the action must be prosecuted in the
name of the real party in interest. These elements are for the purposes (1) to
prevent the prosecution of actions by persons without any right, title or interest to
the case, (2) to require that the actual party entitled to legal relief be the one to
prosecute the action, (3) to avoid a multiplicity of suits, and (4) to discourage
litigation and keep it within certain bounds, pursuant to sound public policy. (Oco
v. Limbaring, supra; In the Matter of Reversion/Recall of Reconstituted OCT No.
0-116, et al v. Register of Deeds of Tarlac City, 535 SCRA 476 [2007]
This rule is mandatory. (Filipina Ind. Corp. v. San Diego, 23 SCRA 706
[1968] All civil actions be prosecuted and defended in the name of the real
party in interest, but not necessarily by the real party in interest. (See: Section 2,
Rule 3) If a suit is not brought in the name of, or against, the real party in interest,

43
a motion to dismiss may be filed on the ground that the Complaint states no cause
of action. (Strongworld Construction Corporation v. Perello, 496 SCRA 700
[2006]; Office of the Solicitor General, Gulla v. Heirs of Alejandro Labrador, 496
SCRA 735 [2006]
Case: United Paragon Mining Corporation v. Court of Appeals, 497 SCRA
638 [2006] A personnel superintendent of a corporation has no personality to file
in behalf of the corporation without any authority from the board of directors. It is
basic that a corporation has a legal personality entirely separate and distinct from
that of its officers and the latter cannot act for and in behalf without being so
authorized by its governing board.
Q. What is the test to determine whether a suing party is the real party in
interest?
A. To qualify a person to be a real party in interest in whose name an action must
be prosecuted, he must appear to be the present real owner of the right sought to
be enforced. This requirement that the party instituting a civil case must be a real
party in interest must consequently extend to a party filing an appeal in a civil
case in the higher courts. (Oco v. Limbaring, 481 SCRA 346 [2006]
Q. Give an example of a real party in interest.
A. In an action to set aside an execution sale, the real party in interest is the
person who has an interest, either in the property sold or the proceeds thereof.
One who is not interested or is not injured by the execution sale cannot question
its validity. In short such a person is not a party in interest to the action.
(Pantranco Employees Association v. National Labor Relations Commission, .581
SCRA 598 [2009])
Q. What is the reason for the rule which requires the impleading of all real
parties in interest?
A. The purpose of the rule is to bring before the court parties rightfully interested
in the litigation, so that only real controversies will be presented and the
judgment, when entered, will be binding and conclusive. (Salonga v. Warner
Barnes, 88 Phil. 125 [1951) The aim and intent of the rule is the complete
determination of all possible issues, not only between the parties themselves but
also as regards other persons who may be affected by the judgment. (Fuentevella
v. FEATI, 94 Phil. 644 [1954])
Q. While a civil action is pending trial, the trial court discovers that an
indispensable party is not impleaded. What should the trial court do?
Briefly explain.

44
Q. The trial court should suspend the trial and direct such indispensable party be
impleaded (Cortes v. Avila, 101 Phil. 205 [1957] because the inclusion in the
action all indispensable parties is mandatory for the trial court to exercise its
jurisdiction (Filipina Ind. Corp. v. San Diego, 23 SCRA 706 [1968] and essential
in the administration of justice. (Samahang Magsasaka ng 53 Flektarya v.
Mosquera, 518 SCRA 668 [2007])
Notes and Cases
If indispensable parties are not impleaded, the remedy is to dismiss the
action. because absence of any indispensably party in an action, there can be no
final determination of the action, (Laperal Development Corporation v. Court of
Appeals, 223 SCRA 268 [1996] and all proceedings taken are null and void
including the judgment therein rendered.(Alabang Development Corporation v.
Valensuela, 116 SCRA 261 [1982]) Otherwise stated, the absence of an
indispensable party renders all subsequent actions of the court null and void for
want of authority to act, not only as to the absent parties but even as to those
present. (Lotte Phil. Co., Inc, v. Dela Cruz, 464 SCRA 591 [2005] The joinder of
indispensable parties is mandatory. (Ibid) The joinder of all indispensable parties
must be made under any and all circumstances because their presence is a
condition sine qua non for the exercise of judicial power. (Nacua Jao v. Chian
Banking Corporation, 505 SCRA 56 [2006]
In pari materia: De Galicia v. Mercado, 483 SCRA 131; Uy v. Court of Appeals,
494 SCRA 535; Villanueva v. nite,496 SCRA 459)
Q. Who is an indispensable party?
A. He is one who has such an interest in the controversy or subject matter that a
final adjudication cannot be made in his absence, without injuring or affecting that
interest. A party who has not only an interest in the subject matter of the
controversy, but also has an interest of such nature that a final decree cannot be
made without affecting his interest or leaving the controversy in such a condition
that the final determination may be wholly inconsistent with equity and good
conscience.. (Moldes v. Villanueva, 468 SCRA 697 [2005];
Case: Quitalan v. Heirs of Lorenzo Quilatan, 597 SCRA 519 [2009] Pedro
Quitalan died intestate leaving two parcels of land covered by two Tax
Declarations. At the time of his death he was survived by his three children,
namely, Ciriaco, Francisco and Lorenzo, all of whom were deceased. Ciriano was
survived by five children; Francisco was survived Ely Qjuitalan and Rosvida Q.
Elias, Solita Q. Trapsi ajnd Rolando Quitalan. Heirsx of Loreanzo were made
defendants.
ly Quilatan and Rosvida Q. Elias, two or the children of Franciso,
discovered that the tax declarations of the properties in the name of Pedro
Quitalan were cancelled and new tax declarations were issued. In the names of

45
spouses Lorenzo Quilatan and Anita Lizertiquez. Ely and Rovisda, filed a
complaint for nullification of the tax declarations and partition of the estate of
Pedro Quitalan with damages against the heirs of Lorenzo Quilatan who were
individually named in the complaint as defendant. The trial court rendered
judgment voiding the tax declarations in the names of spouses Lorenzo Quilatan
and Anita Lizeertiqiquez and ordered the partition of the subject properties into
three equal shares among heirs of Francisco, Ciriaco and Lorenzao. On appeal,
the CA reversed the judgment of the RTC without prejudice holding that Ely
Quilatan and Rovida failed to implead other co-heirs who are indispensable
parties to the case. It ruled that the judgment rendered by the RTC was null and
void. Ely Quilatan and Rovisda Q. Elias filed the present petition for review on
appeal.
Issue: Whether the CA correctly reversed the decision of the RTC and
ordered the dismissal of the civil case without prejudice.
Held: The CA was correct in holding that the Petitioners, the plaintiss in
the court below should have impleaded in their complaint all indispensable parties
pursuant to Section l, Rule 69 and Section 7, Rule 8, Rules of Court.
The record shows that two siblings of the petitioners, Solita and Rolando
were not impleaded. The heirs of Ciriaco were also not impleaded either as
plaintiffs or deendants. (Arcelona v. Court of Appeals, 280 SCRA 20 [l997] The
thrust of the action was to revert the subject properties back to the estate of Pedro
Quilatan, thereby making all his heirs pro-indiviso co-owners and to partition
them equally among themselves, and that all co-heirs and persons having an
interest in the subject properties are indispensable parities to an action of
partition, which will not lie without the joinder of said parties.(Mendoza .
Coronel, 482 SCRA 358 [2006] The heir4s of Lorenaz cannot be faulted or
blamed if they did not raise this issue in theirAnswer because was an action for
partition of real property. It is the plaintiffs now petitioners who are mandated by
the Rules to impleqad all the indispensable parties. Considering that several coheirs who are indispensable parties to the action for partition were not impleaded
either as plaintiffs or defendants, the actions taken by the RTC and subsequent
proceedings were null and void for want lack of jurisdiction or lack of authority
to act, not only as to the absent parties but even as to the3se present.
Adjudication: Petition for review was denied. The decision of the CA
reserving the judgment of the RTC affirmed. The case was remanded to the court
of original and direct3ed the court to implead all indispensable parties to the
action.
Q. Give the exceptions to the rule requiring the impleading of all real parties
in interest.
A. The exceptions are:
(1) In a class suit pursuant to Section 12, Rule 3. When the subject matter of
he controversy is one of common or general interest to many persons so
numerous that it is impracticable to join all as parties, a number of them

46
which the court finds to be sufficiently numerous and representative as to
fully protect te interest of all concerned may sue or defend for the benefit
of all. . Any party in interest shall have the right to intervene to protect his
individual interest.
(2) Entity without juridical personality pursuant to Section 15, Rule 3. When
two or more persons not organized as an entity with juridical personality
enter into a transaction, they may be sued under the name by which they
are generally or commonly known.
(3) In co-ownership pursuant to Article 487 of the Civil Code. Any of the coowners may bring an action in ejectment. Thus, a co-owner may bring an
action in that capacity without the necessity of joining all the other coowners as co-plaintiffs because the suit is deemed to be instituted for the3
benefit of all. (Tanjuatco v. Gabo, Jr., 582 SCRA 200 [2009] En Banc)
When a suit is brought by one co-owner for the benefit of all, a favorable
decision will benefit hem but an adverse decision cannot prejudice their
rights. (Vda de Zabala v. Pamaran, 39 SCRA 430 [1971]
Q. Is an attorney-in-fact a real party in interest?
A. No. The rule on representative as party states that where the action is allowed
to be prosecuted or defended by a representative or someone acting in a fiduciary
capacity, the beneficiary shall be included in the title of the case sand shall be
deemed to be the real party in interest.(Section 3, Rule 3) . A representative may
be a trustee of an express trust, a guardian, an executor or administrator, or a party
authorized by law or the Rules. (Section 3, Rule 3)
Notes and Cases
When the agent is authorized to bring an action, the same must be
prosecuted in the name of the principal. (Filipina Ind. Corp. v. San Diego, 23
SCRA 706 [ l968]) Thus, it is not the agent who is the real party in interest but his
principal. Hence, when authorized to sue, he sues in the name of his principal.
(Marcelo v. Vda de Leon, July 29, l959)
A right of action being assignable, the assignee thereof for valuable
consideration is a real party in interest, even if the assignment is only for the
purpose of collection.(Articles 1624 and 1625, Civil Code; Carlos v. Keiner
Const. Ltd., 100 Phil. 29)
Case: Filipinas Industrial Corporation v. Diego, 23 SCRA 706 [1968] The
attorney-in-fact of a corporation filed in his own a complaint. Defendant filed a
motion to dismiss on the ground that the attorney-in-fact is not the real party in
interest. The trial court denied the motion. Defendant filed a motion for
reconsideration but was denied.. Defendant filed a petition for certiorari under
rule 65.. Issue: Whether or not the trial court committed grave abuse of discretion
amounting to lack of jurisdiction in. holding that the agent can file on his own for

47
the defendant corporation? Held: No. The petition should be given due court. An
agent or attorney-in-fact or apoderado cannot file a complaint by himself because
he has no interest, as he is not the real party in interest. A judgment against the
agent in no way binds or affects his principal. Necessarily, the result of the
judgment is entirely futile. It touches nothing, settle no questions, binds no party,
quiets no litigation. Indeed, the judgment amount to nothing. (Galarosa v.
Valencia, No. 11, l993)
Q. When may an agent be sued alone?
A. An agent may be sued alone when (a) he acts in his own name (Article l883,
Civil Code; or (2) he expressly binds himself (Article l897, Civil Code) or (3) he
exceeds the limits of his authority without giving the other party sufficient notice
of his power. (Article l897, Civil Code; Zullueta et al v. Munoz, el at, l7 SCRA
972 [1966]}
Q. May husband and wife sue or be sued?
A. Yes, husband and wife may sue or be sued jointly except as provided for by
law. (Section 4, Rule 3)
Q. Perla, married,, alone filed a Complaint for the recovery of damages for
the use of her exclusive property? Will the action prosper without joining her
husband? Reason.
A. Yes, if the property relations between Perla and her husband is under the
regime of complete separation of property.
Any property brought to the marriage by Perla is her exclusive property
including the fruits deprived therefrom. (See: Article 38 in relation to Article
41[b] and [f], Family Code.). The damages that may be recovered from the suit is
considered fruit of her property belongs to her exclusively. Hence, the action
will prosper because she can sue along being the real party in interest to sue.(See:
Article 44, Family Code)
Q. May a married woman be sued alone?
A. Yes, in the following instances:
(1) When the litigation is between husband and wife;
(2) If the suit concerns her exclusive property;
(3) If the litigation is incidental to her profession, occupation or business;
(4) If the litigation concerns the exclusive property of the husband, the
administration of which has been transferred to her; or
(5) Such other appropriate cases as may be allowed by the general
principles of Islamic law and other laws. (Article 44, Family Code)

48
Q. How should the issue whether a husband is a stranger to the suit or not be
determined? Explain.
A. In determining whether the husband is a stranger to the suit, the character of
the property must be taken into account.
In two earlier cases, Mariano v. Court of Appeals, 174 SCRA 59 [l989]
and Ching v.Court of Appeals, 432 SCRA 356 [2004] the Court held that the
husband of the judgment debtor cannot be deemed a stranger to the case
prosecuted and adjudged against a wife for an obligation that has redounded to the
benefit of the conjugal partnership. On the other hand, in two cases Naguit v.
Court of Appeals, 347 SCRA 60 [2000] and Sy v. Discaya, 181 SCRA 378 [l990]
the Court stated that a spouse is deemed a stranger to the action wherein the writ
of execution was issued and is therefore justified in bringing an independent
action to vindicate her right of ownership over his excusive or paraphernal
property.. It is settled in Mariano that whether the obligation of the judgment
debtor redounded to the benefit of the conjugal property or not.
Case: Buado v. Court of Appeals, 586 SCRA 397 [2009] Erlinda Nicol, married
to Romulo Nicol, was sued alone by spouses Roberto and Venus Buado for
damages. After trial, the RTC rendered its decision in favor of the plaintiffs, the
Buado spouses. Erlinda appealed to the CA which affirmed the decision of the
RTC. The decision became final. . Upon a writ of execution, the Deputy Sheriff
levied upon the personal properties of Erlinda which were insufficient to satisfy
the judgment. The deputy sheriff issued a notice of levy on real property which
was annotated on the TCT No. T-125322. At the auction of said titled land, an
affidavit of third party claim was filed by Arnulfo F. Fule which prompted the
Buados to put up Sheirffs indemnity bond. The auction sale proceed. Almost a
year later, Romulo Nicol filed a complaint for annulment of the Certificate of Sale
and damages with preliminary injunction against the Buados and the Decputy
Sheriff in the RTC Branch 21 and alleged that the defendants connived and
directly levied upon and execute his real property without exhausting the personal
properties of Erlinda. Further, he alleged that that there was no proper publication
and posting of the notice of sale. Lastly, he contended that the auction sale price
of P500,000.00 was very low. The Buados filed a motion to dismiss on the
grounds of lack of jurisdiction and that they had acted on the basis of a valid writ
of execution. The RTC dismissed Romul Nicils complaint and ruled that
RTCBranch l9, the original court which rendered the decision,, has jurisdiction
overt the case. Romulo Nicol filed a motion for reconsideration but was denied.
On appeal, the RTC Branch 21 was reversed and held that it has jurisdiction to act
on the complaint of Romulo Nicol. Buados filed a motion for reconsideration but
was denied. Hence, Buados, the Petitioners filed a petition for review on
certiorari. Issue: Is the husband who is not a party to the suit but whose property
is being executed on acoount of te other sposes being the judgment obligor, be
considered a stranger under Section 16, Rule 39? Held: There is no dispute
that the contested real property is conjugal in nature. Under Article 122 of the
Family Code explicitly provides that payment of personal debts contracted by the

49
husband or the wife before or during the marriage shall not be charged to the
conjugal partnership except insofar as they redounded to the benefit of the family.
Under the system of absolute community where liabilities incurred by
either spouse by reason of a crime or quasi-delict is chargeable to the absolute
community of property, in the absence or insufficiency of the exclusive property
of the debtor-spouse, the same advantage is not accorded in the system of
conjugal partnership of gains. The conjugal partnership of gains has no duty to
make advance payments for the liability of the debtor-spouse. The argument of
the Petitioners that the obligation of the wife arising from her criminal liability is
chargeable to the conjugal partnership is untenable. By any stretch of imagination
can it be concluded that the civil obligation arising from the crime of slander
committed by Erlinda redounded to the benefit of the conjugal partnership.
Conjugal partnership of gains cannot be held liable for the personal obligation
contracted by one spuse, unless some advantage or benefit is shown to have
accrued to the conjugal partnership. The filing of a separate action by Romulo
Nicol was proper and jurisdiction was vested by RTC Branch 21 for further
proceedings. Adjudication: Petition dismissed. CA decision appealed from
affirmed.
Q. Are the heirs of a deceased person real parties in interest?
A. If the action arises out of a right pertaining to the deceased person and it is of
those actions which survive, the heirs are real party in interest and, therefore,
may sue or defend in their own names provided there is no pending judicial
settlement proceeding estate, in which case the executor or administrator shall be
the proper party. (Magdalena v. Benedicto, Feb. 28, 1958
Where an intestate estate proceedings is pending, the duly appointed
administrator of the estate is the proper party to sue or be sued in behalf of
intestate estate of the deceased; in much the same manner that if an testate estate
proceeding is filed, the duly appointed executor is the proper party in behalf of the
testate estate of the deceased.
Q. Who are the real parties in interest to an action upon a contract?
A. The real parties in interest are those who, on the face of the contract, appear to
be parties thereof.(Velardo v.Paez, 101 Phil. 376 [1957]]) But when one of the
contracting parties is a corporation which had no legal existence, the person who
signed the contract for the corporation and who acted as its lawyer when the
corporation was sued under the contract, controlling the proceedings till the
judgment, is the real defendant, although not named.. (Albert v. University
Publishing Co., 13 SCRA 84 [1965]
Q. Is a co-owner a real party in filing a suit alone to protect the thing held
common without being joined by the other co-owners?

50
A. Yes, a co-owner may bring an action in that capacity without the necessity of
joining all the other co-owners as co-plaintiffs because the suit is deemed to be
instituted for the benefit of all. A favorable judgment will benefit them but an
adverse decision cannot prejudice their rights of the co-owners who were not
included as co-plaintiffs. (Tanjuatco v. Gako, Jr., 582 SCRA 200 [2009]
Q. When a pleading asserts a common cause of action against several
defendants some of whom answer and the other fails to do so, how should the
trial court proceed with the trial of the case?
A. The trial court try the case against all upon the answers thus filed and render
judgment upon the evidence presented. ( Section 3[c], Rule 9). The trial court has
no authority to divide the case before it by first hearing it ex parte as against the
defaulted defendant and rendering a default judgment against it, then proceeding
to hear the case, to the non-defaulted defendant. Otherwise, that would amount to
prejudging the case against the non-defaulted defendant. (Heirs of Mamerto
Manguiat v. Court of Appeals, 562 SCRA 422 [2008]
Q. May a minor or an insane or incompetent sue or be sued?
A. A minor or a person alleged to be incompetent, may sue or be sued, with the
assistance of his father, mother, guardian, or if he has none, a guardian ad litem.
(Section 4, Rule 3)
Notes and Cases
The rule does not distinguish whether the minor is emancipated or not.. It
is safe to state that a minor who is emancipated by marriage or by voluntary
concession, can sue or be sued with the assistance of his father, mother, guardian,
or if he has none, a guardian ad litem
Q. May a business under the name and style Caf Alfredo owned by
Alfredo Serano be sued?
Q. No. The business Caf Alfredo has no juridical personality to be sued. But
its owner, Alfredo Serano, is the party in interest to defend against the claim of the
plaintiff.
A single proprietorship, doing business under a particular name and style,
is owned by a natural person, and is not vested with juridical personality to file or
defend an action by such name and style.. The real party in interest to file or be
sued is the person who owns the business. (Heirs of Mamerto Manguiat v. Court
of Appeals, 562 SCRA 422 [2008]
Q. Is the joinder parties compulsory or permissive? Explain.

51
A. Joinder of parties in an action is either compulsory or permissive.
.
Joinder of indispensable parties is compulsory as they are parties in
interest without whom no final determination can be had of an action. (Section 7,
Rule 3); Nacua-Jao v. China Banking Corporation, 505 SCRA 268 [2006];
Lucman v. Malawi, 511 SCRA 56 [2006]
Joinder of necessary parties is permissive because non-inclusion of a
necessary party does not prevent the court from proceeding in the action, and the
judgment rendered therein shall be without prejudice to the rights of the such
necessary parties. ( Section 9, 3rd par., Rule3). Moreover, non-inclusion of a
necessary party is not a ground for a motion to dismiss.(Buado v. Court of
Appeals, 586 SCRA 397 [2009])
Notes and Cases
In an action for partition of land, all the co-owners thereof are
indispensable parties, hence, they must be joined as parties. In is an action for
annulment of partition, all of the heirs must be made parties as they are
indispensable parties. In an action for the recovery of ownership of land, the
person who claims to be owner of the land is the indispensable party defendant
and not the one in possession as tenant. (See: De Lara v. De Lara, 2 Phil. 294
[1902]; Caram v. Court of Appeals, 101 Phil. 315 [1957]; Briz v. Briz, 43 Phil.
763 1922]; Manza v.Santiago, 96 Phil. 938 [1954])
Q. May several parties be joined jointly or in the alternative? Is this joinder
comsulsory or permissive?
A. Joinder of parties whether as plaintiffs or defendants, and whether jointly,
severally, or in the alternative, is permissive when:
(a) there is a right to relief in respect to or arising out of the same
transaction or series of transactions is alleged to exist, except as otherwise
provided by the Rules; and
(b) where any question of law or fact common to all such plaintiffs or to
all such defendants may arise in the action; but the court may make such orders
as may be just to prevent any plaintiff or defendant from being embarrassed or put
to expense in connection with any proceedings in which he may have no interest.
(Section 6, Rule 3)
Case: Marquez v. Valera, 97 Phil. 373 [1955]. Alfonso, a landowner, appointed
Sergio, agent, to look for a buyer for his land. Sergio designated Perla as his subagent for the same purpose without the knowledge and consent of Alfonso. Perla
found the purchaser but Alfonso withdrew from the transaction. Sergio and Perla
joined as plaintiffs in one complaint for recovery of the commission which they
failed to realize because of Alfonsos withdrawal. Issue: Was the joinder of
plaintiffs proper? Held: Yes, the joinder of Sergio and Perla as plaintiffs in one

52
complaint is proper for the following reasons: First, in order to sue as plaintiff,
privity of contract is not required. Material interest in the subject of the action is
sufficient, so that the lack of contract between Alfonso and Perla is of no moment.
Second, Sergio and Perla, by acting jointly in rendering service to Alfonso
became entitled to a right of relief which arose out of the same transaction or
series of transactions, namely, the right to be paid their commission out of the
contract of agency, and the same questions of fact and law govern their claims.
(See: Section 6, Rule 3 )
Q. Distinguish indispensable from necessary party?
A. An indispensable party or a real party in interest, must be joined under any
and all condition, his presence being a sine qua non of the case. (Section 7, Rule
3) A necessary party, on the other hand, is one who is not indispensable but 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.
(Section 8, Rule 3) If, in an action an indispensable party is not impleaded in the
Complaint and judgment is rendered, that judgment is null and void. On the other
hand, when a necessary party is not joined in an action, the pleader must set forth
his name, if known, and shall state why he is omitted. Should the court find the
reason for the omission unmeritorious, it may order the inclusion of the omitted
necessary party if jurisdiction over his person my be obtained. (Section 9, Rule 3)
The failure to comply with the order for his inclusion, without justifiable cause,
shall be deemed a waiver of the claim against such party. (Ibid) The non-inclusion
of a necessary party does not prevent the court from proceeding in the action, and
the judgment rendered therein shall be without prejudice to the rights of such
party. (Ibid)
For instance, in an action for collection of debt instituted by the creditor
against the surety, the principal debtor is merely a necessary party.who is
ultimately liable for the obligation but is not an indispensable party. (Vano v. Alo,
95 Phil. 495 [1954 For another, in an action for foreclosure of a real estate
mortgage instituted by the first mortgagee, the second mortgagee is merely a
necessary party. (Somes v. Govt. 62 Phil. 432 [1935]
Q. May parties to an action be dropped or added?
A. Parties may be dropped or added by order of the court on motion of any party
or on its own initiative at any stage of the action and on such terms as are just.
Any claim against a misjoined party may be severed and procedded with
separately. (Section 11, 2nd sentence, Rule 3)
Q. Is a non-joinder of an indispensable party excusable? Explain or
illustrate.

53
A. Yes, an action may be entertained despite the failure to include an
indispensable party where it appears that the naming of the party would be a mere
formality..
Illustrative case is Baguio v. Rodriguez, 105 Phil. 1324 [1957] . An
employee who was suspended from work with the City filed a complaint for
reinstatement plus back salaries against all the City Officials from the City Mayor
down but without naming as defendant the City of Baguio. Issue: Was the
complaint dismissible for not impleading the City as defendant? Held: No. the
failure to implead the City , though it may appear as indispensable party because
it would just be a formality as all the City Officials concerned were made
defendants in their official capacities.
Q. In one civil complaint, Paolo sued Marco and Carlo in the RTC of
Baguio. The cause of action against Marco is an overdue and unpaid
promissory note in the amount of P300,000.00 and that against Carlo is the
balance of P300,000.00 on the purchase price of a motor vehicle sold on
credit payable in two payments. Does the RTC of Baguio have jurisdiction
over the case? Explain and give reason..
A. No, the RTC has no jurisdiction over the case.
First, Marco and Carlo cannot be joined as defendants in one complaint
because the right to relief against Marco and Carlo did not arise out of the same
transaction or series of transactions, and there is no common question of fact or
law involved. (Section 6, Rule 3)
Second, the action presents a principal cause of action for recovery of
sum of money, hence, jurisdiction of the court is determined by the amount
claimed excluding whatever kind of damages, attorneys fees, litigation expenses
and cost. Under the law, the jurisdiction over the sum of P300,000.00 or less falls
within the jurisdiction of the MTCC. Consequently, two separate actions for
recovery of sum of money should be filed. One against Marco and another against
Carlo, both complaints should be filed with the MTCC. (Flores v. MallarePhilipps, 144 SCRA 377 [1966]
Q. Marco filed a complaint against Nico in the RTC of Baguio for the
recovery of money, to wit: (1) P250,000.00 on a promissory note which
became overdue and payable; (2) P35,000.00 for the purchase price of a Dell
laptop computer; (3) P50,000.00 for the costs of repair to his car caused by
defendant; and (4) attorneys fees, litigation expenses and costs in the total
sum of P70,000.00. Nico filed a motion to dismiss on the ground that the
court has no jurisdiction over the subject matter of the complaint. Suppose
you are the presiding trial judge, how will you resolve the motion of Nico?
Explain and give reason. .
A. I will deny the motion to dismiss filed by Nico.

54
The RTC of Baguio has jurisdiction over the subject matter of the
complaint. Under the Rules, Carlo as plaintiff can assert in one complaint as many
causes of action as he may have against Nico since all the claims are principally
for the recovery of money. Thus, the aggregate amount claimed determines the
jurisdiction of the court. In this case, the total sum due is P335,000.00,
exclusive of the total sum of P70,000.00 constituting attorneys fees, litigation
expenses and costs. Since the amount of money sought to be recovered is
P335,000. 00. Accordingly, jurisdiction lies with the RTC of Baguio and not with
the MTCC. (Blg. Blg. 129 as amended by RA 7691; Section 5[d], Rule 2, Rules
of Civil Procedure)
Q. Who is a necessary (or proper) party?
A. 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. (Section
8, Rule 3)
Q. What is the effect of failure to join a necessary party?
A. Whenever in any pleading in which a claim is asserted a necessary party is not
joined, the pleader shall set forth his name, if known, and shall state why he is
omitted. Should the court find the reason for the omission unmeritorious, it may
order the inclusion of the omitted necessary party if jurisdiction over his person
may be obtained. (Section 9, Rule 3)
The failure to comply with the order for his inclusion without justifiable
cause, shall be deemed a waiver of the claim against such party.
The non-inclusion of a necessary party does not prevent the court from
proceeding in the action, and the judgment rendered therein shall be without
prejudice to the rights of such necessary party . (Ibid)
Q. If a party is unwilling to be joined as co-plaintiff, what is the remedy so
that he be made a party to the case? ?
A. It the consent of any party who should be joined as plaintiff can not be
obtained, he may be made a defendant and the reason therefore shall be stated in
the complaint. (Section l0, Rule 3)
Q. When is alternative joinder of defendants proper?
A. Where the plaintiff is uncertain against who of several persons he is entitled to
relief, he may join say or all of them as defendants in the alternative, although a
right of relief against one may be inconsistent with a right of relief against the
other. (Section 13, Rule 3)
Notes and Cases

55

For instance, the principal and his agent may be joined as defendants in
the alternative. If the agency is proved, the principal shall be liable; if not the
agent. (Pajota v. Jante, Feb. 8, l955)
Q. May plaintiffs join in the alternative?
A. Yes, under the same principle as alternative defendants. (Section 13, Rule 3)
When several persons are uncertain as to who among them is entitled to relief
from a certain defendant, they may join as plaintiffs in the alternative. Thus, for
example, the principal and his agent may join as plaintiffs in the alternative
against a defendant. If the agency is proved, the relief is awarded to the principal;
if not, award is then made to the agent.
Q. Could there be a situation where an action the defendants joined in the
alternative, but plaintiffs right to relief against one being inconsistent with
his right to relief against the other?
A. Yes, this scenario is possible to happen. For example, in a collision of
common carriers, one carrier is under contract to X to deliver his goods to a
certain place and which was completely destroyed as a result, X may join the
owners of the two common carriers as alternative defendants, although is right to
relief against one is on contract, while against the other, on tort. (Section 13, Rule
3)
Q. May a defendant of unknown identity or that his name is unknown be
sued?
A. Yes, whenever the identity or name of a defendant is unknown, he may be sued
as the unknown owner, heir, devisee, or by such other designation as the case may
require; when his identity or true name is discovered, the pleading must be
amended accordingly. (Section 14, Rule 3)
Q. Alex, Bart, Charlie and Douglas, do business under the name ABC and D,
. They entered into and signed a contract of conditional sale of a parcel of
land with X who acknowledged the sum of P150,000.00 as initial payment
with the promise of the buyer to pay the balance of P600,000..00 on or before
December 31, 2009, without extension; failure to pay the balance will
automatically revoke the transaction, and buyer to return the possession of
the land immediately without further demand, and that whatever amount
had been initially si deemed forfeited by way of penalty without recourse
against X. For failure of ABC and D to pay the balance, X sued ABC and C
for recovery of possession of the land. ABC and D filed a motion to dismiss
the complaint on the ground that they cannot be sued by such name ABC and
D because it has no juridical personality. X countered that they can be sued

56
in such a capacity because they entered into a transaction with him under
such name. Resolve with reason.
A. The contention of ABC and D in its motion to dismiss is without merit. The
rule is that when two or more persons not organized as an entity with juridical
personality, as in the problem given, entered to a contract with X, it may be sued
under the name by which it is known and, in this case, it is knowni as ABC and
D. (Section 15, Rule 3) Thus, the rule allows such an entity like ABC and D to be
sued, and contention of X is sustained by the rule. ABC and D as defendant in
filing its Answer must state and allege the names and addresses of the persons
composing said entity which is without juridical personality.(Ibid)
Case: Ridgewood Estate, Inc. v. Belaos, 490 SCRA 448 [2005] A party to an
action may not foist the defense of lack of personality of Camella Houses to
evade its liability, if any, to another person where said party admittedly uses the
same Camella Houses as its business name.
Q. While a civil action is pending trial, the plaintiff becomes incompetent or
incapacitated , will the action be dismissed for that reason?
A. No, the trial court should not dismiss the action. If a party becomes
incapacitated or incompetent like the plaintiff in this case, the trial court, on
motion with notice, may allow the action to be continued by the plaintiff assisted
by his legal guardian or guardian ad litem. (Section 18, Rule 3)
Q. Suppose it is the defendant who becomes incompetent or incapacitated, is
the rule be the same?
A. Yes, the same rule on incompetence or incapacity under Section l8, Rule 3
applies.
Q. While an action is pending trial, the plaintiff transfers all his interest in to
X who is not a party to the action, should the trial court dismiss the action
for that reason?
A. No. In such a case of transfer of interest, the action may be continued by the
original party (original plaintiff) unless the trial court upon motion directs the
person to whom the interest is transferred to be substituted in the action or joined
with the original party. (Section 19, Rule 3)
Q. Under what conditions may a person be allowed to litigate his claim or
defense as indigent party?
A. A party may be authorized to litigate his action, claim or defense as an indigent
if (1) the trial court upon an ex parte application and hearing, (2) is satisfied that
the party is one who has no money or property sufficient and available for food,

57
shelter and basic necessities for himself and his family. (Section 21, 1 st par., Rule
3)
Q. What is included in the authority allowing the party to litigate as indigent
party?
A. The authority includes an exemption from payment of docket fee and other
lawful fees, and of transcript of stenographic notes which the court may order to
be furnished him. The exemption of the docket and other lawful fees which the
indigent was exempted from paying shall be a lien on any judgment rendered in
the case favorable to the indigent , unless the court otherwise provides. (Section
21, 2nd par., Rule 3)
Q. May such grant of authority to litigate as indigent party be assailed or
contested by the adverse party?
A. Yes. Any adverse party may contest the grant of such authority at any time
before judgment is rendered by the trial court. If the court should determine after
hearing that the party declared as an indigent is in fact a person with sufficient
income or property, the proper docket and other lawful fees shall be assessed and
collected by the clerk of court.
If the payment is not made within the time fixed by the court, execution
shall issue or the payment thereof, without prejudice to suh other sanctions as the
court may impose. (Section 21, 3rd par., Rule 3)
Q. What is the concept of a class suit?
A. When the subject matter of the controversy is one of common or general
interest to many persons so numerous that it is impracticable to join all as parties,
a number of them which the court finds to be sufficiently numerous and
representative as to fully protect the interest of all concerned may sue or defned
for the benefit of all. Any party in interest shall have the right to intervene to
protect his individual interest. (Section 12, Rule 3)
Q. What are the requisites of a class suit?
A. The requisites are: (1) the subject matter of the controversy is one of common
or general interest to many persons; (2) the persons are so numerous that it is
impracticable to bring them all before the court. When these requisites concur, a
number of them which the court finds to be sufficiently numerous and
representative as to fully protect the interests of all converned may sue or defend
for the benefit of all. (Section 12, Rule 3)
Q. When may the Solicitor general appear in an action before the trial court?

58
A. In any action involving the validity of any treaty, law, ordinance, executive
order, presidential decree, rules or regulations, the court, in its discretion, may
require the appearance of the Solicitor General who may be heard in person or
through a representative duty designated by him. (Section 22, Rule 3)
Rules to be observed where
a party to an action dies while case
Is pending trial
Sections 16, 17 and 20 , Rule 3
(1) When a party dies while the case is pending trial. (Section 16, Rule 3)
Q. What is the effect of death of party in a pending action?
A. When the pending action is one which is purely personal in character, such as
an action for support, or an action for legal separation, or an action for correction
of name, or an action for civil liability arising from an offense, it is extinguished
by the death of a party.(Section 16, Rule 3)
Notes and cases
When action is purely personal, the death of either of the parties
extinguishes the claim and the action is dismissed. Conversely, when the action is
not purely personal, it is not extinguished by the death of either party. The
deceased partyshould be substituted by his heirs or his executor or administrator.
(Section 16, Rule 3)
Q. When a party to a pending action dies what is the duty of counsel to the
trial court?
A. If the claim in the pending action is not extinguished by the death of the party,
it is the duty of his counsel (1) to inform the trial court within thirty (30) days
after such death of the fact of death, and (2) to give the name and address of his
legal representative or representatives. Failure of counsel to comply with this duty
shall be a ground for disciplinary action. (Section 16 1 st par., Rule 3) After notice,
the trial court shall order the legal representative or representatives to appear and
be substituted within a period of thirty (30) days from notice. (Section 16, 3 rd par.,
rule 3)
Q. What actions do not survive the death of the defendant?
A. Actions for the recovery of money or debt or interest therein do not survive the
defendant. (Section 1, Rule 87)
Q. What actions which survive the death of the defendant?

59
A. They are: (1) actions to recover personal or real property or interest therein; (2)
or to enforce any lien thereon; and (3) actions to recover damages for an injury to
person or property real or personal. (Section 1, Rule 87)
Q. What will the trial court do if no legal representative is named by the
counsel for the deceased party, or if the one so named shall fail to appear
within the specified period fixed by the trial court?
A. The trial court may order the opposing party, within a specified time, to
procure the appointment of an executor or administrator for the estate of the
deceased and the latter shall immediately appear for and on behalf of the
deceased. The trial court charges in procuring such appointment, if defrayed by
the opposing party, may be recovered as costs. (Section 16, 4th par., Rule 3)
Q. May the deceased party be substituted?
A. Yes. The heirs of the deceased may be allowed to be substituted for the
deceased, without requiring the appointment of an executor or administrator and
the trial court may appoint a guardian ad litem for the minor heirs. (Section 14,
send par., Rule 3) The trial court shall forthwith order said heirs and/or guardian
ad litem to appear and be substituted within a period of thirty (30) days from
notice. (Section 16 3rd par., Rule 3)
(2) When the party in a pending an is a public officer. (Section l7, Rule 3)
Q. When a party to an action is a public officer dies while it is pending
hearing, may the action be dismissed for that reason?
A. No. When a public officer is a party in an action in his official capacity and
while the action is pending dies, resigns, or otherwise ceased to hold office, the
action may be continued and maintained by or against his successor if, within
thirty (30) days after the successor takes office or such time as may be granted by
the trial court, it is satisfactorily shown to the court by any party that there is a
substantial need for continuing or maintaining it and that the successor adopts or
continues or threatens to adopt or continue the action of his predecessor.
Before a substitution is made, the party or officer to be affected, unless
expressly assenting thereto, shall be given reasonable notice of the application
therefore and accorded an opportunity to be heard. (Section 17, Rule 3)
(3) When an action is pending trial based on recovery of sum of money
arising from contract
Q. Pending an action for recovery of money based on contract and the
defendant dies, may the action be dismissed for that reason?

60
A. No. When the action is for the recovery of sum of money arising from contract,
express or implied, and the defendant dies before entry of final judgment in the
court in which the action was pending at the time of such death, it shall not be
dismissed but shall instead be allowed to continue until entry of final judgment. A
favorable judgment obtained by the plaintiff therein shall be enforced in the
manner especially provided in these Rules for prosecuting claims against the
estate of a deceased person. (Section 20, Rule 3)
Notes and Cases
Q.Alex sued Bartolome for recovery of sum of money in the RTC. During the
trial of the case, Bartolome died. Is you were the counsel for Alex what will
you advise him on the effect of Bartolomesdeath?
A. As counsel for Alex, I will tell him that the death of Bartome will not be a
ground for the dismissal of the case. The case will continue but proper
substitution of Bartolome by his heirs or legal representative shall be done. The
case shall then proceed until judgment is rendered. When the judgment becomes
final and an entry of judgment is entered, the judgment is enforced as a money
claim against the estate of Bartolome in accordance with the special rules on
claims against the estate of deceased persons.(Section 20, Rule 3 in conjunction
with Rule 86)
Q. Suppose in the above problem, Bartolome dies before the trial court
renders its judgment, should the case continue or be dismissed? Explain.
A. Since the action is pending trial and Bartolome dies, the case may continue
until final judgment is rendered. Once entry of judgment is entered and the
judgment is favorable to the plaintiff, as in the case above, the judgment shall be
enforced in the manner provided for by the special rules on settlement of the
estate of deceased persons. (Section 20, Rule 3 in conjunction with Rule 86}
Q. Suppose in the above problem, Bartolome dies after the judgment has
become final and executory but before levy of execution, and judgment is
favorable to Alex, what is the effect of the death of Bartolome?
A. Alex shall file the judgment which became final as a money claim against the3
estate of Bartolome in the manner provided by the special rules on claims against
the estate of deceased persons.. (See: Rule 86)
Q. Suppose Bartolome dies after levy of execution on his properties, how
should the execution sale be pursued?
A. The execution sale shall proceed in the manner and in accordance with Section
7[c], Rule 39)

61
Q. Marcial is indebted to Ferdinand in the amount P150,000.00. The
obligation became due and payable. Ferdinand intended to file a suit against
Marcial for recovery of sum of money. Unfortunately, before he could fhe
complaint against Marcial, he (Marcial) died. What is the remedy of
Ferdinand. Reason.
A. Ferdinand, as a creditor, can file his money claim with the probate court in the
matter of intestate estate of deceased Marcial in the manner and pursuant to the
special rules on claims against the estate of deceased persons. (Section 5, Rule
86)
If, however, the claim did not arise from contract, express or implied,
Ferdinand can file an ordinary action against the executor or administrator the
estate of deceased Marcial in the manner and pursuant to the special rules of
claims against the estate of deceased persons. (Section l, Rule 87)
Q. Alex, a pedestrian, was side-swiped by a fast-speeding taxicab driven by
Tomas, and owned the operated under the LTB franchise of Mamerto,
resulting to serious physical injuries sustained by Alex. Tomas, the driver of
the taxicab died due to the vehicular accident. Mamerto, after a brief
confinement at the BGMMH died due to cardia arrest. What is the remedy of
Alex?
A. The remedy of Alex is to file an action for the recovery of damages based on
quasi delect, or ex contractu, against the executor or administrator of the estates of
either or both Tomas and Mamerto, in the manner and pursuant to the special rules
on claims against the estate of deceased person.. (Sections l, Rule 87; Raqueza, et
al v. Court of Appeals, April 11, l997
Q. A civil action for recovery of sum of money in amount of P20,000.00 was
filed by Alex against Berto. While the case was pending trial Berto died. The
case continued upon the substation of Berto by his heirs. A judgment was
rendered in favor of Alex and the judgment became final but before entry
was made. What is the remedy of Alex and where should he litigate his claim
under the judgment? Explain.
A. I qualify my answer.
The remedy of Alex is to file the judgment which became final as a
money claim against the estate of Berto in the manner provided by the special
rules on claims against the estate of deceased persons.. (See: Rule 86).
But the claim of Alex shall be filed in the court having territorial
jurisdiction of the residence of Berto at the time of his death, and depending upon
the value of Bertos estate.
If the residence of Berto was outside of Metro Manila at the time of his
death, and the value of his estate does not exceed P100,000.00, the probate
proceedings shall be filed with the appropriate MTC and Alex claim will be filed
in said proceedings. .

62
If the residence of Berto was in Metropolitan Manila at the time of his
death, and the value of his estate does not exceed P200,000.00, the probate
proceedings shall be filed in the appropriate MetroTrial Court and Alex shall file
his claim in said proceedings.
If the value of the estate of exceeds either of this amounts, the probate
proceedings shall be filed with the appropriate RTC where Berto resided at the
time of his death, and Alex can file his claim in said proceedings. (See: Section
33[1], BP Blg. 129 as amended by RA 7691
Venue of Actions
(Rule 4)
Q. What is the meaning of venue?
A. As used in the rules of procedure, venue is the place of trial, the place where
the action is instituted, and the parties prosecute or defend their respective
causes and defenses in a judicial court. (Section 1, Rule 4; Philippine Banking
Corporation v. Tensuan, et al., 230 SCRA 413 [l994]
It relates to the
geographical location on which an action or proceeding should be brought and not
to the jurisdiction of the court. (Ibid)
Q. Is venue the same as jurisdiction? Explain. .
A. No. Venue and jurisdiction are entirely different in concept and application,
and one does embrace the other. The venue of an action forcible entry is the place
where the realty, subject mater of the action, is located; and jurisdiction is the
authority or power of a court to hear the case. Thus, an action for forcible entry,
the venue lies with the place where the real property is situated, while jurisdiction
the power of the court o hear this case which is conferred by law in the MTC
having territorial jurisdiction the subject matter of the action. .. (Section 1, 2 nd
par,Rule 4) .
Q. Distinguish venue from jurisdiction..
A. Venue is distinguished from jurisdiction as follows: Jurisdiction is defined and
conferred by law or statue, while venue is the place where an action should be
instituted; (2) Jurisdiction is the inherent power vested by law to a court to hear
and decide a case, while venue is the particular municipality, city or province
where the action should be brought before a court having territorial jurisdiction
over the subject matter of the action; (3) Venue may be waived or be the subject
of agreement, while jurisdiction cannot be waived as it is conferred by law and
the parties may not by agreement or compromise or acquiescence deprive the
court having jurisdiction over their controversy. (5) Venue has nothing to do with
the determination of facts and issues of a case, while jurisdiction precisely
embraces all this, and upon which render its judgment.

63

Q. What characterizes the rule on venue of actions?

A. Questions involving venue are procedural and not jurisdictional
matters. . Venue may be waived by express agreement of the parties. Venue may
be the subject of an agreement as to the exclusive place where an action may be
brought in case of breach of contract. Venue is intended to provide convenience to
the parties, rather than restrict their access to the court.(See: Nilolas v.Reparations
Co., 64 SCRA 110; Philippine Banking Corporation v. Tensuan, supra; MarcosAraneta et al v. Court of Appeal, 563 S RA 41 [2008]
Q. How is venue classified as to object?
A. Venue is classified as to object into (1) venue of real actions and (2) venue of
personal actions.
Q. What is the venue of real actions?
A. Actions affecting title to or possession of real property, or interest therein, shall
be commenced and tried in the proper court which has jurisdiction over the area
wherein the real property involved, or a portion thereof, is situated. (Section 1,
Rule 4)
Forcible entry and detainer actions shall be commenced and tried in the
municipal trial court of the municipality or city wherein the real property
involved, or a portion thereof, is situated. (Section 1, 2nd par. , Rule 2)
Notes and Cases
The venue of real actions affecting properties found in different provinces
is determined by the singularity or plurality of the transactions involving said
parcels of land. (United Overseas Bank Phils. V. Rosemoore Minign &
Development Corp., 518 SCRA 123 [2007]
The venue for extrajudicial foreclosure proceedings is the place where
each of the mortgage property is located as prescribed by Section 3, Act No. 3135.
( Yu v. Philippine Commercial International Bank, 485 SCRA 56 [2006]
A.M. No. 89-10-05-0 outlines the procedure on Extrajudicial Foreclosure
of mortgage of mortgages involving property located at different places.
In case of partition of a real property among co-owners or heirs, the action
should be brought before the RTC which has territorial jurisdiction over the land
sought to be partitioned.
Q. An action reinvindicatoria is a real action. What should be considered in
determining jurisdiction of the court?

64

A. The jurisdiction of the court as well the venue of the action for reinvindicatoria
is determined by the allegations in the complaint and the law at the time the action
was commenced. (Cadimas, etc. v. Carrion, et al., September 29, 2008)
In action for recovery of possession or action publiciana, the venue of the
action is where the real property is situated.
Q. What is the venue in personal actions?
A. All other actions may be commenced and tried where the plaintiff or any of the
principal plaintiffs resides, or where the defendant or any of the principal
defendants resides, or in the case of non-resident defendant where he may be
found, at the election of the plaintiff. (Section 2, Rule 4; Marcos-Araneta v. Court
of Appeals, 563 SCRA 21 [2008]
Notes and Cases
Where plaintiff seeks to recover personal property, or seeks the
enforcement of a contract and recovery of damages, or an action based upon
quasi-delict and damages are, among others, personal actions.
Case: Uniwide Holdings, Inc. v. Cruz, 529 SCRA 664 [2007] The general rule
on venue of personal actions such a a complaint for the collection of sum of
money is embodied in Section 2, Rule 4. This section is qualified by Section 4 of
the same Rule which allows the parties before the filing of the action to validly
agree in writing on an exclusive venue. But a written agreement on an exclusive
venue of an action does not however preclude parties from bringing a case to
other venues. .
Q. Where is the venue for intestate estate proceedings?
A. For the purposes of intestate estate proceedings, the petition for letters of
administration of the estate of a deceased person should be filed in the Regional
Trial Court of the city or province where the decedent resides at the time of his
death. (San Luis v. San Luis, 514 SCRA 294 [2007] ) and the value of his estate
exceeds P200,000.00
Notes and Cases
It is not correct to say that residence for purposes of fixing venue of the
settlement of the estate of a deceased person, is synonymous with domicile. In
election cases, the residence and domicile are treated as synonymous terms,
that is, the fixed permanent residence to which when absent, one has the intention
of returning.(Ibid.) But for purposes of settlement of estate, residence and
domicile are not the same because venue under the Rules of Court, the

65
residence of a person is his personal, actual or physical habilitation, or actual
residence or place of abode, which may not necessarily be his legal residence or
domicile provided he resides therein with continuity and consistency. Hence, it is
possible that a person may have his residence in one place and domicile in
another. (San Luis v. San Luis, 514 SCRA 294 [2007])
Case: (San Luis v. San Luis, 514 SCRA 294 [2007] In determining proper
venue, the residence of a person is his personal, actual or physical habitation, or
actual residence or place of abode, which may not necessarily be his legal
residence or domicile provided he resides therein with continuity and consistency.
(See: Ang Kek Chen v. Calasan, 528 SCRA 124 [2007]
Case: Fule v. Court of Appeals, 74 SCRA 189 [1976] For purposes of a civil
action, the word resides should be viewed or understood in its popular sense,
meaning, the personal, actual or physical habitation of a person, actual residence
or place of abode. It signifies physical presence in a place and actual stay thereat.
Q. Paolo in a cavil case obtained a favorable judgment against Liam. For
quite a long time, Paolo was unable to enforce the writ of execution since
March 12, 2005 when the judgment became final and executory. What is the
remedy of Paolo and where should it be filed? .
A. Paolos remedy is to file an action for revival of judgment. To determine the
proper venue, is to inquire whether the action for revival of judgment is real
action or personal action. If it involves real action, then the complaint for revival
should be filed in the place where the realty or any portion thereof is located. If,
on the other hand, the complaint for revival involves a personal action, then it
should be filed either in the residence of the plaintiff or the defendant at the
choice of the plaintiff. (Infante v. Aran Builders, Inc., 531 SCRA 123 [2007]
Specifically, the allegations in the complaint for revival of judgment
determines whether the action is a real action or a personal action. Where the sole
reason the action to revive judgment is the enforcement of adjudged rights over a
piece of property, the action falls under the category of a real action for which the
complaint be filed with the RTC of the place where the realty is located.
(Universal Robina Corporation v. Lim, 535 SCRA 95 [2007]
Q, What is the venue of actions against non-residents?
A.If any of the defendants does not reside and dis not found in the Philippines,
and the action affects the personal status of the plaintiff, or any property of said
defendant located in the Philippines, the action may be commenced and tried in
the court of the place where the plaintiff resides, or where the property or any
portion thereof is situated or found. (Section 3, Rule 2)
Q. When does the rule on venue not apply?

66
A. The rules on venue shall not apply (1) in those cases where a specific rule or
law provides otherwise, or (2) where the parties have validly agreed in writing
before the filing of the action on the exclusive venue thereof. (Section 4, Rule 4)
Notes and Cases
In the absence of qualifying or restrictive words, such as exclusively and
waiving for this purpose any other venue, shall only receding word venue, to
the exclusion of the other courts or words of similar import, the stipulation
should be deemed a mere agreement on the additional forum, and as limiting
venue to the specified place. ( Lantin v. Lantion, 499 SCRA 718 [2006];Auction
in Malinta, Inc. v. Luyaben, 515 SCRA j569 [2007] ; Uniwide Holdings, Inc. v.
Cruz, 529 SCRA 664 [2007]
Q. Liam filed a Complaint before the MTC against Paolo. Upon reading the
allegations of the Complaint, the MTC issued an order dismissing the
Complaint for improper venue. What the MTC correct? Reason.
A. No. The MTC may not dismiss an action on is own or motu prprio on the
ground of improper venue because it is not one of the grounds wherein the court
may dismiss the action motu proprio on the basis of the pleadings. (Infante v.
Aran builders, Inc. 531 SCRA 123 [2007]
Q. In the same problem, suppose Paolo files a motion to dismiss on the
ground of improper venue, may the MTC dismiss the complaint upon the
motion of Paolo? Reason.
A. No. Before the MTC resolves the motion, it must determine whether or not it
contains the proper notice as required considering the motion is a litigated motion.
If the motion is without notice, then the same is a mere scrap of paper and the
MTC can ignore it. On the other hand, if the motion is with proper notice to the
adverse party, the MTC should hear the motion and allow the plaintiff to be heard.
Thereafter, the MTC should rule on the motion, either to grant or deny it. (See:
,Rule 15 Motions in onjuction with Sections l, 2, 3 Rule 16) .
The question of venue mainly relates to the trial and touches more upon
the convenience of the parties, rather than upon the substance and merits of the
case.(Westmont Pharmaceuticals, Inc. v.Samaniego, 482 SCRA 611 [2006]
Q. What is the initial remedy of a defendant if on the face of the complaint
the venue is improperly laid?
A. The initial remedy of the defendant upon receipt of the summons and a copy
of the complaint is to file an motion to dismiss the complaint on the ground of
improper venue under Section 1[c], Rule 16..

67
Said motion must comply with the rule on contents and notice.notifying
the adverse party of the time, date and place when the motion shall be heard.
(Sectios 3, 4, and 5, Rule 15), and a copy of the motion and notice be served
upon the adverse party, with proof of service. (Section 6, Rule 15)
Q. Suppose the motion to dismiss is denied, what will the defendant do?
A. The defendant should file his Answer within the remaining period of the
reglementary period from notice of dismissal (See: Section 4, Rule 16) and
include in said Answer the ground of improper venue as an affirmative defense.
Later, defendant may file a motion for preliminary hearing on his affirmative
defenses alleged in his complaint as if a motion to dismiss has been filed.(See:
Section 6, Rule 16)
Q. Suppose the action is one which falls under the Rule on Summary
Procedure, and since under the summary rule a motion to dismiss is not
allowed, what is the remedy of the defendant?
A. The defendant must his Answer within ten (10) days from notice, and
incorporate therein his affirmative and/or negative defenses, like improver venue,
otherwise, said defenses are deemed waived except lack of jurisdiction. If the
defendant fails to files his Answer within the period provided by the Rule, the
court, motu propirio shall render decision as may be warranted by the facts
alleged in the complaint and limited to what is prayed for therein. (Sections 5 and
6, Revised Rule on Summary Procedure.)
Q. Suppose in the above problem, the trial court motu proprio declares the
defendant in default, is the trial court correct?
A. No. There is no provision in the Revised Rule on Summary Proceure allowing
the trial court to declare the defendant in default.
Under the Revised Rule of Summary Procedure, if the defendant fails to
file his Answer within the period provided therein, the duty of the trial court is to
render judgment as may be warranted by the facts alleged in the complaint and
limited to what is prayed for therein. It is within its discretion to reduce the
amount of damages and attorneys fees claimed for being excessive or otherwise
unconscionable.. (Section 6,)

68

Pleadings
Uniform Procedure
In trial courts
(Rule 5)
Q. Are the rules on procedure the same in the first and second level courts?
A. As a general rule, the procedure in the first level courts are the same as in the
second level courts. But there are exept5ions,to wit: (1) where a particular
provision expressly or impliedly applies only to either of said courts, or (2) in
civil cases governed by the Revised Rule on Summary Procedure. (Section Rule
5)
Kinds of Pleadings
(Rule 6)
Q. Define pleadings.
A. Pleadings are the written statements of the respective claims and defenses of
the parties submitted to the court for appropriate judgment. (Section l, Rule 6)
Q. What are the pleadings allowed by the Rules of Court.
A. The are: (1) Complaint; (2) Counterclaim; (3) Cros-claim; (4) third-party
compliant, etc.;(5) Complaint in intervention; (6) Answer. (Section 2, Rule 6)
Notes and Cases
Strictly speaking, that which is not included in the enumeration is
excluded. Hence, a motion or a position paper, or a manifestation, or

69
memorandum is not pleading but may fall within the generic term legal or judicial
paper or process.
The purposes of pleadings are to define the issues and lay the foundation
of proof to be submitted by the parties during the trial. (Lianga Lumber v. Lianga
Timber, 76 SCRA 197.[1977] The pleadings will set forth the claims and defenses
of the contending parties, and for the trial court to be apprised of the nature of the
action.
A pleading containing derogatory, offensive or malicious statements when
submitted before a court or judge3 in which the proceedings are pending is direct
contempt. (Dantes v. Caguioa, 461 SCRA 236 [2005]
There is a distinction between a pleading and a motion. A pleading relates
to the cause of action, either to support it, like a complaint, or to defeat it, like the
answer (See: Section3 and 4, Rule 6) A motion on the other hand does not relate
to the cause of action at all for it is a mere application a particular relief. (See:
Section 1, Rule 15)
.
(a) As to parts of a pleading; manner of making allegations, effect of
pleadings, (Rules 7,8 and 9)
Complaint
Q. Define Complaint.
A. A Complaint is a pleading which alleges plaintiffs cause or causes of action,
with a specification of the relief sought and may add a general prayer for such
other reliefs as may be deemed or equitable. (Section 3, Rule 6 in relation to
Section 2[c], Rule 7)
Notes and Cases
A Complaint should be prepared and drafted according to the rules set
forth in Rule 7 Parts of a pleading. Rule 8, sets the rules as to the manner of
making the allegations in the pleading should likewise be followed. .
The prayer for relief though part of the Complaint is not a part of the cause
of action, although the prayer may give light to the nature of the action instituted.
For example, an action for rescission of a contract of management of a land,
where the plaintiff prayed that the contract be rescinded and possession of the
land returned to him, the action is real because the ultimate purpose as alleged in
the prayer was to recover possession of the land. (De Jesus v. Coloso, 1 SCRA
272 [1961]
A complaint must have a (a) caption (See: Section 1). (2) Body (See:
Section 2), divided into paragraphs and contains headings; relief and date, (3)
Signature and address of counsel, (4) verification (See: Section 4), Certification
against non forum shopping. (Section 5), Rule 7)

70

Q. What is a caption?
A. Caption is that portion of every pleading which contains (a) the name of the
State, like The Republic of the Philippines; (b) particular Judicial Regions like
Judicial Region I; (c) name of court like Regional Trial court; (d) particular
branch of the court like Branch 62; (e) the name of the parties: Plainiff(s) versus
name of the Defendant(s); (f) the title of the action like Action for Re-conveyance
and Damages with Prayer for the issuance of a Temporary Restraning Order, (g)
the file or docket number, like Criminal Case No. 223-10. (Section l, Rule 7)
Q. How should the allegations of facts be pleaded in the Complaint?
A. The complaint shall contain in a methodical and logical form, a plan, concise
and direct statement of the ultimate facts on which the plaintiff relies for his
claim, omitting the statement of mere evidentiary facts. (Section l, Rule 8)
A complaint should state a general averment of the performance or
occurrence of all conditions precedent. (Section 3, Rule 8)
Notes and Cases
Every material fact essential to the existence of the plaintiffs cause of action must
be set forth in the Complaint in a direct and positive manner.
Ultimate facts are those principal, determinate facts, upon the existence of
which, the entire cause of action rests. .A fact is essential if it cannot be stricken
out without leaving the statement of the cause of action insufficient. (Remitere v.
Vda de Yulo,16 SCRA 257 [1966] Evidentiary facts, or probative facts necessary
to prove such ultimate facts should be avoided
A Complaint is designed to apprise the adverse party, usually the
defendant, of the cause of action which he has to meet; to inform clearly and
definitely of the claims made against him, so that he may be prepared to meet the
issues to be heard and litigated.
A complaint which fairly and clearly apprise the defendant of the
contentions and claims of the plaintiff in a plain and simple language, that which
will not mislead or surprise the defendant is a good and sufficient complaint.
(Lizarraga Hermanos v. Yap Tico et al., 24 Phil. 504 [1913])
Q. What is the test for the sufficiency of the facts alleged in the Complaint?
A. The test for determining the sufficiency of the facts alleged in the complaint is
whether upon such facts a valid judgment may be rendered against the defendant,
or whether the information given thereby is sufficient to enable the party to plead
and prepare for trial. (Wise and Co. v. City of Manila, 101 Phil. 144 [1957])
Q. How should capacity to sue or be sued alleged?

71

A. (1) The plaintiff should allege facts to show his capacity to sue or be sued. or
(2) the authority of a party to sue or be sued in a representative capacity. Or (3)
the legal existence of an organized association of persons that is made a party
must be averred.( Section 4, Rule 8)
Notes and Cases
The plaintiff lacks legal capacity to sue (a) when he does not have he
necessary qualifications to appear at the trial, as when plaintiff is not in the full
exercise of his civil rights; and (b) when the plaintiff does not have the character
or representation he claims, which is a matter of evidence. This defect refers to
the minority, insanity, coverture, lack of juridical personality, or another other
disqualification of a party.(Lunsod v. Ortega, 16 Phil. 664 [1910]; Calano v. Cruz,
91 Phil. 247 [1952]
The lack of capacity to sue and the defect of lack of personality to sue
should be distinguished. The former refers to disability of the plaintiff, the latter
to the fact that the plaintiff is not a real party in interest, in which case, the proper
ground for dismissal would be that the complaint states not cause of action.
(Gonzales v. Alegarbes, 53 OG No. 22 Nov. 30, l957]
A party desiring to raise an issue as to the legal existence of any party or
the capacity of any party to sue or be sued in a representative capacity, shall do so
by special denial, which shall include such supporting particulars as are peculiarly
within the pleaders knowledge. (Section 4, 2nd sentence, Rule 8)
Q. How should several or alternative causes of action be alleged in a
complaint?
A. Plaintiff may set forth two or more statements of a claim alternatively or
hypothetically, either in one cause of action or in separate causes of action. When
two or more statements are made in the alternative and one of them, if made
independently would be sufficient, the pleading is not made insufficient by the
insufficiency of one or more of the alternative statements.(Section 2, Rule 8)
Q. How should a condition precedent be alleged in a Complaint?
A. When a condition precedent is required by law or the Rules be done or
accomplished before a Complaint is filed with the Court, a general averment of
the performance or occurrence of such condition is sufficient. (Sec tion 3, Rule 80
Notes and Cases
In certain cases, referral to the proper Lupon Tagapayapa is a condition
sine qua non before a Complaint be lodged with the appropriate court. (RA 7160
otherwise known as the Local Government Code)

72
While a complaint in ordinary civil actions involving members of the
same family must contain an allegation that earnest efforts towards a compromise
have been made under Article 222 of the Civil Code, under Article 151 of the
Family Code a complaint otherwise defective on that score may be cured by
introduction of evidence effectively supplying the necessary averments of a
defective complaint. (Santos v. Court of Appeals, 475 SCRA 1 [2005]
Q. Is the prayer for relief a part of the cause of action? What function does it
perform?
A. The prayer of a complaint sets forth in clear, concise, and complete manner the
reliefs which the plaintiff seeks to be awarded him after trial.
The prayer for relief, though part of the complaint, is not a part of the
cause of action and does not give it character, although in certain cases, the prayer
may give light to the nature of the action instituted. For example, in an action for
rescission of a contract of management of land, where the plaintiff prayed that the
contract be rescinded and possession of the land returned to him, it was held that
the action was real inasmuch as its ultimate purpose, as indicated in the prayer,
was to recover possession of the land. (Baguio v. Barrios, 77 Phil. 120 [1946]; De
Jesus v. Coloso, 1 SCRA 272 [1961]
Q. What is the effect of an unsigned complaint?
A. An unsigned complaint produces no legal effect. However, the court may, in its
discretion, allow such deficiency to be remedied if it shall appear that the same
was due to mere inadvertence and not intended for delay. (Section 3, par.2, 1 st
sentence, Rule 7)
Q. May an attorney be subject to disciplinary action who violates Section 5,
par. 2, Rule 7 anent rule on signature and address rule?
A. Yes. Counsel who deliberately files an unsigned compliant, or signs a pleading
in violation of the Rule, or alleges scandalous or indecent matter therein, or fails
to promptly report to the court a change of his address, shall be subject to
appropriate disciplinary action. (Section 5, 2nd par., Rule 7) The compliant filed
in violation thereof is an unverified pleading..
Q. Should every complaint be verified?
A. No. Unless otherwise specifically required by law or rule, a complaint need not
be under oath, verified or accompanied by affidavit. (Section 4, rule 7)
Notes and Cses
A complaint is verified by an affidavit that the affiant has read the
allegations of the complaint and are true and correct of his personal knowledge or
based on authentic records. (Section 4, par. 2, Rule 7)

73
Absence of or a defective verification of complaint is merely formal, not a
jurisdictional requirement, (Median Container Corporation v. Metropolitan Bank
and Trust Company, 561 SCRA 522 [2008] which the trial court may motu
proprio direct a party to comply with or correct, as the case may be. (MarcosAraneta v. Court of Appeals, 563 SCRA 41 p2008]
A pleading which is required by the Rules of Court to be verified may be
given due course even without a verification under circumstances warranting the
suspension of the rules in the interest of justice. (Tanjuatco v. Gako, Jr., 582
SCRA 200 [2000]; Sari-Sari Group of Companies, Inc. v. Piglas Kamao, 561
SCRA 569[2009]
Q. What is the purpose of verification?
A. The purpose of verification is to insure good faith in the averments of a
pleading. (Philippine Bank of Commerce v. Macadaeg, 109 Phil. 981 [1960]
Q. What is the significance of an attorneys signature on a pleading?
A. The signature of an attorney on a pleading constitutes a certificate by him that
he has read the pleading; that to the best of his knowledge, information, and belief
there is good ground to support it; and that it is not interposed for delay.(Section
3, Rule 7)
This is what is known as implied certification of a pleading. (Arambulo v.
Perez, 78 Phil. 387)
Notes and Cases
With respect to an individual litigant, there is no question that litigants
must sign the sworn verification and certification unless they execute a power of
attorney authorizing another person to sign for and in their behalf..
With respect to juridical person, Section 4, Rule 7 on verification and
Section 5, Rule 7 on certification against forum shopping are silent as to who the
authorized signatory should be. But individuals vested with authority by a valid
Board Resolution may sing the certification against forum shopping on behalf of
the corporation, appending the Board Resolution to the complaint or petition is
the better procedure to obviate any question on the authority of the signatory to
the verification and certification.(Cagayan Valley Drug Corporation v.
Commissioner of Internal Revenue, 545 SCRA 10 [2008]
Q. In a petition filed in the Court of Appeals,, its verification and
certification was signed by the Solicitor General. The petition was
questioned on the ground that Section 4, Rule 7 of the Rules oc Court anent
the verification was also signed by the Solicitor General. Will the objection
prosper? Why?

74
A. The objection will not prosper. The signature of the Solicitor General on the
verification is a substantial compliance of the requirements under Section 4, Rule.
(People v. Court of Appeals, 545 SCRA 52 [2008]
Noes and Cases
The purpose of verification requirement is to assure that the allegations in
a petition were made in good faith or are true end correct, not merely speculative.
The verification requirement is deemed substantially complied with when one
who has ample knowledge to swear to the truth of the allegations in the petition
have been made in good faith or are t rue and correct. (Rombe Eximtrade (Phils.),
Inc. v. Asiatrust Develop0men Bank, 545 SCA 253 [2008] A manager and Head
of he Acquired Assets Unit of Asiatrust Development Bank was in the position,
knowledge and experience, and in good faith, are sufficient compliance with the
verification and certification requirements. (Ibid.)
Q. What is a sham or false pleading?
A. A sham or false pleading is one which is not signed or signed with intent to
defeat the purpose of the rule requiring every pleading to be signed by the lawyer,
or if the party has no lawyer, by the party himself. An unsigned pleading produces
no legal effect. (Section 3, 3rd par., Rule 7)
Notes and Cases
Q. What is the consequence on a counsel who deliberately files an unsigned
pleading?
A. A counsel who deliberately files an unsigned pleading or signs a pleading in
violation of this Rule, or alleges scandalous or indecent maters therein, or fails to
promptly report to the court a change of his address, shall be subject to
appropriate disciplinary action. (Section 3, 3rd par., Rule 7)
Q. How is a judgment be pleaded?
A. In alleging a judgment or decision of a domestic or foreign court, judicial or
quasi-judicial tribunal, or of a board or officer, it is sufficient to aver the
judgment or decision without setting forth matter showing jurisdiction to render it.
(Section 6, Rule 8)
Q. How is an official document or act pleaded?
A. In alleging an official document or official act, it is sufficient to aver that the
document was issued or that act done in compliance with law. (Section 9, Rule 8)

75

Forum Shopping
(Section 5, Rule 7) (See: Circular No. 28-91)
Q. What is forum shopping?
A. In one aspect, Forum shopping is the act of a party, against whom an adverse
judgment has been rendered in one forum, of seeking another and possibly
favorable opinion in another forum by appeal or a special civil action of certiorari.
( Section 5, Rule 7; Lee Hiong Wee v. Dee Ping Wee, 494 SCRA 258 [2006].;
Cruz v. Caraos, 521 SCRA 510 [2007] Polanco v. Cruz, 579 SCRA 489 [2009]
;Wacnang v. Comission on Elections, 569 SCRA 799 [2008]
Forum shopping exists when a party repetitively avails of several judicial
remedies in different courts, simultaneously or successively, all substantially
founded on the same transaction and the same essential facts and circumstances,
and all raising substantially the same issues either pending in, or already resolved
adversely, by some other court. (Huibonhua v. Conception, 497 SCRA 562
[2006]; Santos v. Paranaque Kings Enterprises, Inc. 505 SCRA 48 [2006]; Adao v.
Docena, 539 SCRA 487 [2007]
Q. What is the essence of forum shopping?
A. The essence of forum shopping is is the filing of multiple suits involving the
same parties for the same cause of action, either simultaneously or successively,
for the purpose of obtaining a favorable judgment. ((Ao-As v. Carino, 480 SCRA
240 [2006]; Young v. Sy, 503 SCRA 151 [2006]; Clark Development Corporation
v. Mondragon Leisure and Resorts Corporation, 517 SCRA 203 [2007]
Notes and Cases
For example, where a party participated in the proceedings before the
Secretary of Justice, actively litigating the issues which are exactly the same ones
raised by him before the Supreme Court, through the initiatory Petition for review,
he is deemed to have engaged in a forum shopping. (Tan v. Court of Appeals, 542
SCRA 306 [2007]
The rules on forum shopping apply only with complaints or initiatory
pleadings. . (Sheker v. Estate of Alice O. Sheker, 540 SCRA 111 [2007]

76
Note: Forum shopping is the institution of two or more actions or proceedings
grouded on the same cause on the supposition that one or the other cout would
make a favorable disposition. (Cua, Jr. v. Tan, 607 SCRA 648 [2009])
Note: The Code of Professional Responsibility, Rule 12.02 and Rule 12.04, Canon
12 as well as the Section---, Rule --- on the rule against forum-shooping
,prohibits the filing of multiple action to attain the same objective. Both violations
constitute abuse of court processes; they tend to degrade the administration of
justice; weak ha voc on orderely judicial procedure; and add to the congestion of
the heavily burdened dockets of the courts. (Que v. Revilla, 607 SCRA l 92009]
Note: To engage in forum-shopping is a an act of malpractice. The lawyer who
violates the cited Caon and Rules of the Code of Professional Responsibility and
the Rule against forum-shopping in the Rules of Court shall, after hearing, is
vulnerable to administratative discipline or sanction. (Cua, Jr. v. Tan, 645 [2009]

Q. What is the reason behind this requirement of certification against nonforum shopping?
A. It was designed to serve as an instrument to promote and facilitate the orderly
administration of justice and should not be so interpreted with such absolute
literalness as to subvert its own ultimate and legitimate objective or the oal of all
rules of procedure which is to achieve substantial justice as expeditiously as
possible. (National Steel Corporation v. Court of Appeal, 388 SCRA 85 [2002]
Q. What is the reason for the certification against forum shopping rule?
A. The rule on certification against forum shopping is intended to prevent the
actual filing of multiple initiatory pleadings involving identical causes of action,
subject matter and issues in other tribunals or agencies. This rule is rooted in the
principle that a party-litigant should not be allowed to pursue simultaneously
remedies in different for as is this practice is detrimental to orderly judicial
procedure..(Republic v. Carmel Development, Inc. 377 SCRA 459 [2002]) The
rules on forum shopping are meant to prevent such eventualities as conflicting
final decisions. (Collantes v. Court of Appeals, 517 SCRA 561 [2007]
Q. What is the effect of failure to include in the initiatory pleading a
certification of non-forum shopping?

77
A. The petition or complaint is vulnerable to a motion to dismiss. Failure to
comply with the requirement for a certification against non-forum shopping is
generally not curable by its submission subsequent to the filing of the initiatory
pleading nor by amendment, and is a cause for dismissal of the complaint or
petition. (Median Container Corporation v. Metropolitan Bank and Trust
Company, 561 SCRA 622 [2008]
But where the Counsel for the corporation executed the verification and
certificate of non-forum shopping before the corporation authorized him, the
passing of a Board Resolution of authorization before the actual filing of the
complaint is deemed a ratification of the counsels prior execution, thus curing
any defects thereof. (Ibid.)

]
Q. How many ways may forum shopping be violated?
A. Forum shopping can be committed in three ways:
(1) filing multiple cases based on the same cause of action and with the
same prayer, the previous case not having been resolved yet (litis pendencia);
(2) filing multiple cases based on the same cause of action and with the
same prayer , the previous having been finally resolved res judicata); and
(3) filing multiple cases based on the same cause of action but with
different prayers (splitting cause of action, where the ground of dismissal is also
either litis pendentia or res judicata. (Ao-As v. Court of Appeals, 491 SCRA 339
[2006] Jainal v. Commissions on Elections, 517 SCRA 799 [2007] ;Go v.
Looyuko, 537 SCRA 445 [2007]; Guy v. Court of Appeals, 539 SCRA 584
[2007]; Oporto v. Members of the Board of Inquiry and Discipline of National
Power Corporation, 569 SCRA 93 [2008]
Q. What is the test in determining whether or not a party has violated the
forum shopping rule?
A. The test in determining whether a party violates the rule against forum
shopping is where a final judgment in one case will amount to res-jusicata in the
action under consideration or where the elements of litis pendentia are present.
(Maricalum Mining Corporation v. Brion,482 SCRA 87 [2006]; PAL Employees
Savings and Loan Association, Inc. v. Philippine Air Lines, Inc. 485 SCRA 632
[2006]; Riesenbeck v. Macaren, Jr. 480 SCRA 362 [2006]; Taningco v Taningco,
529 SCRA 735 [2007] ; Desteleria Limtuaco & Co. v. Adverising Board of the
Philippines, 572 SCRA 455[2008]

78
Q. What must a certification of non forum shopping contain in a Complaint
or initiatory pleading?
A. The certificate against non forum shopping must show that the plaintiff in his
complaint certifies under oath that:
(1) he has not theretofore commenced any action or filed any claim
involving the same issues in any court, tribunal or quasi-judicial agency and
(2) to the best of his knowledge, no such other action or claim is pending
therein;
(3) if there is such other pending action or claim, a complete statement of
the present status thereof; and
(4) if he should thereafter learn that the same or similar action or claim has
been filed or is pending, he shall report that fact within five days there from to the
court wherein his aforesaid complaint or initiatory pleading has been filed.
(Section 5, 1st par.,Rule 7; LDP Marketing, Inc. v. Monter, 480 SCRA 137 [2006]
Q. What is the effect of failure to comply with the requirements against
forum shopping?
A. Failure to comply with the required certification shall not be curable by mere
amendment of the complaint or other initiatory pleading but shall be cause for the
dismissal of the case without prejudice, unless otherwise provided, upon motion
and after hearing. (Section 5, par. 2, 1 st sentence, Rule 5; Vitory Liner, Inc. v.
Malinias, 523 SCRA 279 [2007] )
Notes and Cases
The submission of a false certification or non-compliance with any of the
undertakings therein shall constitute indirect contempt of court, without prejudice
to the corresponding administrative and criminal actions. If the acts of the party
or his counsel clearly constitute willful and deliberate forum shopping, the same
shall be ground for summary dismissal with prejudice and shall constitute thereof
contempt, as well as a cause for administrative sanctions. (Section 5, 2 nd par. 2nd
sentence, Rule 5; Heirs of Sofia Nanaman Lonoy v. Secretary of Agrarian
Reform, 572 SCRA 185 [2008]
Compliance with the certification against forum shopping is separate from
and independent of the avoidance of forum shopping itself. (Ching v. Secretary of
Justice, 481 SCRA 609 [2006]
Q. What is the effect of lack of certification against forum shopping?
A. As a rule, lack of certification of forum shopping is a ground to dismiss the
compliant or initiatory pleading. This rule is not jurisdictional but mandatory. It
is not cured by the submission of a belated certification after the filing of the
complaint or initiatory pleading. ( See: Section 3, Rule 42); Espina v. Court of

79
Appeals , 519 SCRA 327 [2007] Failure to comply cannot be executed. (Cordova
v. Court of Appeals, 529 SCRA 7 [2007]
This rule, however, is not absolute. Where \there is substantial compliance
with the requirement, coupled with special circumstances and compelling reasons,
the rule may be applied liberally to attain the higher interest of justice. Espina v.
Court of Appeals, supra)
Notes and Cases
The rule against forum shopping, by way of exception, should not be
interpreted with such absolute literalness as to subvert the its ultimate and
legitimate objective which is the goal of all rules of procedure, that is, to achieve
justice as expeditiously as possible. A liberal application of the rule may be
justified where special circumstances or compelling reasons are present. .
(Huntington Steel Products, Inc. v. National Labor Relations Commission, 442
SCRA 551 [2004]; Victory Liner, Inc. v. Malinias, supra)
Case: Heirs of Juan Valdez v. Court of Appeals, 562 SCRA 89 [2008] In
several cases, the Court allowed initiatory pleadings or petitions with initially
defective verification and certifications of non-forum-shopping on the ground of
substantial compliance. The Court reasoned that strict compliance with the
requirement merely underscores its mandatory nature, in that, it cannot be
dispensed with or its requirements altogether disregarded. Thus, ruled that the
subsequent submission of the required documents such as the secretarys
certificate constituted substantial compliance with the procedural rules that
justified relaxation of the requirements in the interest of justice. (In pari
material: Wack Wack Golf & Country Club v. National Labor Relations
Commission, 456 SCRA 280 [2005]; Jaro v. Court of Appeals, 277 SCRA 282
[2002]; Youngt v. Seng, 398 SCRA 629 [2003]; Loyola v. Court of Appeals, 245
SCRA 447 [l995] [Vicar International Construction, Inc. v. FEB Leasing and
fiannce Corporation, 456 SCRA 588 [2005]
Case: Asean Pacific Planners v. City of Urdqaneta, 566 SCRA 219 [2008] In
this case, the Court of Appeals dismissed the petition for certiorari because there
was no proof that Cesar Goco was authorized to sign the verification and
certification of non-forum shopping of said petition of the Asean Pacific.. In its
motion for reconsideration, the required documents were attached thereto and
argued that there was substantial compliance with the rules.
The City of
Urdaneta contended that there was no proof to show that Ceasar Goco was duly
authorized by the corporation to sign the verification and certification, hence, the
CA was correct in dismissing the petition. Issue: Whether or not there was
compliance with the rules on non-forum shopping. Held: Asean jPacific has
substantially complied with the rules on non-forum shopping. Cesar Gogo had no
proof of his authority to sign the verification and certification of non-forum
shopping of the petition for certiorari filed with the CA. The CA is allowed by
the rules the discretion to dismiss the petition since only individuals vested with
authority by a valid board resolution may sign the certificate of non-forum

80
shopping in behalf of a corporation. Proof of said authority must be attached
,otherwise, the petition is subject to dismissal. (Philippine Air Lines, Inc. v. Flight
Attendants and Stewards Association of the Philippi8nes, 479 SCRA 605 [2006]
But, it must be pointed out that in several cases, the Court considered as
substantial compliance with the procedural requirements the submission in the
motion for reconsideration of the authority to sign the verification and
certification, as in this case. A Board Resolution authorized Cesar Goco to act
and sign for the Corporation before the Petition for Certiorari was filed in the Ca.
Hence, at the time of filing Cesar Goco was duly aruthorized to sign the
verification and certification of non-form shopping, although not attached to the
petition. There was indeed substantial compliance with the rules on non-forum
shopping. Adjudication: The petition was granted.
Q. Is non-compliance with the rule against forum-shopping jurisdictional
and mantatory:
A. It is not jurisdiction but mandatory. Certification against non-forum shopping
be strictly complied with underscores its mandatory nature in that it cannot be
dispensed with or its requirements altogether disregarded, but it does not thereby
interdict substantial compliance with its provisions under justifiable
circumstances. (Cana v Evangelical Free Church of the Philippines, 544 SCRA
225 [2008]
Summary of the rule
In sum, the rule against forum shopping must be complied because
compliance therewith is mandatory. If the rule is violated, it is a ground to
dismiss the complaint without prejudice. This is the strict and literal interpretation
the rule.
But strict and literal interpretation of the rule against forum shopping may
be relaxed, when there is non-compliance with or a violation of the rule against
forum shopping but attended by special circumstances or compelling reasons, to
attain the higher interest of justice..
Statement of the general rule, and the exception.
Case: Huntington Steel Products, Inc. v. National Labor Relations
Commission, 442 SCRA 551 [2004] While the requirement of strict compliance
underscores the mandatory nature of the rule, it does not necessarily interdict
substantial compliance with its provisions under justifiable circumstances. The
rule should not be interpreted with such absolute literalness as to subvert the its
ultimate and legitimate objective which is the goal of all rules of procedure, that
is, to achieve justice as expeditiously as possible. A liberal application of the
rule may be justified where special circumstances or compelling reasons are
present.

81
Case: Philippine Public School Teachers Association v. Heirs of Carolina P.
Iligan, 496 SCRA 816 [2006] Carolina P. Iligan was a public school teacher and
member of the Public School Teachers Association (PPSTA). Carolina was a
bona-fide member of the Mutual Assistance System, a death benefit program
whereby a member pays a fixed contribution and upon the death of a member, the
heirs are paid a fixed amount. Carolina was also a member of the Mutual
Retirement System, a retirement plan wherein a members pays a monthly
premium of P400.00 and upon retirement would receive the benefit corresponding
to the number of years paid for. She was issued two certificates of membership
and the premium contributions for the two policies were automatically deducted
from her monthly salary. Carolina served continuously for 25 years in the public
teaching service. She was diagnosed with a breast cancer and was advised by her
doctor to undergo aggressive chemotherapy treatment. She was confined in the
hospital from June 19, 2000 up to December, 2000. Premiums for the two policies
continued to be deducted from her salary. Meanwhile, Carolina used up all her
sick leave credits as of September, 2000 and thus went on sick leave without pay.
Consequently, the premium payments due from September, 2000 to
December,2000 were not paid. She was discharged from the hospital and
resumed her teaching on January 1, 2001. However, the premiums payments were
not deducted from her salary. She returned to the hospital from September
19,2001 and until October 2, 2001, when she died.
The heirs of Carolina P. Iligan demanded of the PPSTA to pay them the
P100,000.00 death benefit due to them as heirs of Carolina. PPSTA offered to
remit only 50% of Carolinas total contributions, considering that for failure to
pay the monthly premiums, her policies has already lapsed as of November,
2000. The Heirs sued for specific performance and sum of money with the MTC
against PPSTA its Manager, and officers of the association. The PPSTA filed their
answer. After trial, the Court dismissed the plaintiffs complaint for lack of legal
basis. Plaintiff appealed to the RTC rendered judgment .and reversed and set aside
the judgment of the MTC. Aggrieved, the PPSTA by petition for review went to
the CA. The CA dismissed the petition for being defect in substance there being
no proof that Asuncion Ramon G. Asunsion, Jr. President of PPSTA had been duly
authorized by the PPSTA to execute and file a certification of non-form shopping.
Petitioner Tamayo executed the verification and certification in her behalf.
Asunsion, Jr. executed the verification and ceritification for in and behalf of the
PPSTA. That he is the Petitioners corporate secretary and that he had caused the
preparation and filing of the petition for review. However, petitioners failed to
incorporate or appended in their petition a copy of the resolution of the Board of
Directors of the PPSTA authorizing Asunsion to sign the certificate of non forum
shopping in its behalf. That there was a need for the CA to resolve the petition on
the merits, otherwise, the decision would set a dangerous precedent to put the
PPSTA to the brink of bankruptcy. The disposition of the case should not be based
on technicalities and must be decided on the merits as the ends of justice would
be better served .Issue: Whether or not the Petition for review was properly
dismissed for lack of certification or was defective in substance, applying the
literal meaning of the rule. . Held: No. The petition is meritorious. Under

82
Section 3, Rule 42, failure to comply is sufficient ground for the dismissal of the
petition. The rule requires that certification against forum shopping should be
appended to or incorproate3d in the initiatory pleading filed before the court This
rule is not jurisdictional but mandatory. . This rule also requires hat the party, not
counsel, must certify under oath that he has not commenced any other action
involving the same issue in the court or any other tribunal or agency. .
The reason for this is that the plaintiff or principal knows better than
anyone else whether a petition has previously been filed involving the same case
or substantially the same issues. Hence, a certification signed by counsel alone is
defective and constitutes a valid cause for dismissal of the petition.
While the requirement of strict compliance underscores the mandatory
nature of the rule, it does not necessarily interdict substantial compliance with tis
previsions under justifiable circumstances. The rule should not be interpreted with
such absolute literalness as to subvert its own ultimate and legitimate objective
which is the goal of all rules of procedure, that is, to achieve justice as
expeditiously as possible. A literal application of the rule may be justified where
special circumstances or compelling reasons are present. In this case, after
reviewing the records of the case, the court found special circumstances and
compelling reasons to relax the application of the rule to attain higher interest in
the administr4ation of justice. Adjudication: Petition granted. Assailed
resolutions of the CA are set aside. CA is directed to resolve the case with
reasonable dispatch.
Q. Who should sign the certification of forum shopping?
A. The person who should sign the complaint or initiatory pleading depends upon
whether the complaint or initiatory pleading is filed by a natural person(s) or a
juridical person/
In the case of natural persons, the parties-plaintiffs themselves should to
sign the certificate of non-forum shopping.
In case of juridical persons, such as corporations, the physical act of
signing may be performed, on behalf of the corporate entity, only by specifically
authorized individuals for the simple reason that corporations, as artificial
persons, cannot personally do the task themselves. (Hydro Resources Contractors
Corporation v. National Irrigation Administration, 441 SCRA 614 [2004] For
this purpose, a Board Resolution purporting to authorize a person to sign
documents in behalf of the corporation must explicitly vest such authority, such as
the specific act of signing verification and certification against forum shopping.
(Metropolitan Cebu Water District v. Adala, 526 SCRA 465 [2007];Athena
Computers, Inc. v. Reyes, 532 SCRA 343 [2007]
Notes and Cases

83
Where there are two petitioners, the verification and certification of the
initiatory pleading must be signed by both. (Athena Computers, Inc. v. Reyes,
532 SCRA 343 [2007]
A petition is signed only by one of the several petitioners was held as
substantial compliance with the rule. (Cavie v. Heirs of Cavile, 400 SCRA 255
[2003]; Kimberly Independent Labor Union for Solidarity, etc. v. Court of
Appeals, 528 SCRA 45 [2007]
Where the petitioners raised a common cause of action against the
respondents, and the certification was signed only by 25 out of 28 petitioners, on a
petition for certiorari, there is substantial compliance with the rule on certification
against forum shopping. (Espina v. Court of Appeals, supra) .
A party who files a petition for habeas corpus despite a pending petition
for certiorari that questions the validity of the order granting bail, which order is
precisely the very basis of the Petition for habeas corpus is guilty of forum
shopping. (Pulido v. Abu, 526 SCRA 483 [2007]

Q. If the cause of action of a complaint is based on a document, how should it

be alleged?
A. If the cause of action is based on instrument or document, the substance of
such instrument or document shall be set forth in the complaint, and the original
or a copy thereof shall be attached to the complaint as an exhibit , which shall be
deemed to be a part of the complaint, or said copy may with like effect be set
forth in the complaint. (Section 7, Rule 8); Canete v. Wislizemus, 36 Phil. 428
[l917)
This rule is also referred to an actionable document because it is the basis
of the cause of action, and merely evidentiary. (Araneta, Inc. v. Lyric Film
Exchange, 58 Phil. 736)
Q. Is there an exception to the above rule
A. Yes. In a complaint or initiatory pleading an official document or official act is
alleged, it is sufficient to aver that the documents was issued or the act done in
compliance with the law. (Section 9, Rule 8)
Q. How shall the adverse party contest the genuineness and due execution of
an actional document or instrument and what is the effect of failure to so
contest it?
A. The adverse party shall specifically and under oath deny the genueneness and
ue execution of the actionable document or instrument and state what he claims to

84
be the facts; otherwise, he shall be deemed to have admitted the authenticity of
said document or instrument. (Section 8, Rule 8; Heirs of Roque F. Tabuena v.
Land Bank of the Philippines. 566 SCRA 557 [2008])
Q. When does this specific denial under oath rule not apply?
A. .The rule on specific denial under oath does not apply when (a) the adverse
party does not appear to be party to the instrument or (b) compliance with an
order for an inspection of the original instrument is refused. (Section 8, last
sentence, Rule 8)
Q. If the cause of action is based on fraud, mistake, condition of the mind,
show should the facts be alleged in the complaint?
A. In all averments of fraud or mistake, the circumstances constituting fraud or
mistake must be stated with particularity. Malice, intent, knowledge or other
condition of the mind of a person maybe averred generally. (Section 5,, Rule 8)
Q. In sum, what facts must be averred with particularity?
A. To summarize, the following facts must be particularly averred:
(a) In all averments of fraud or mistake the circumstances showing the
fraud or mistake must be stated with particularity.
(b) Facts showing capacity to sue or be sued, the authority to sue or be
sued in a representative capacity or the legal existence of an organized association
of persons that is made a party must be averred.
The facts showing capacity of a foreign corporation to sue or be sued must
be pleaded.
(b) A party desiring to raise an issue as to the legal existence of any party or
the capacity of any party to sue or be sued in a representative capacity
shall do so by specific denial, which shall include such supporting
particulars as are peculiarly within the pleaders knowledge
Default
(Section 3, Rule 9)
Q. When may a defendant be declared in default?
A. When a defendant fails to file his answer within the prescribed period, or
within the time allowed by the Rules, or within the shorter time fixed by the trail
court in the Summons, he may be declared in default upon motion of the plaintiff
with notice to the said defendant.(Section 3, Rule 9)
Q. State the fundamental reason underlying the rule on effect of default.

85
A. The reason underlying the rule on the effect of default is that the failure to
answer on the part of the defendant who receives the summons and knows that he
is being sued, may be due to one of two causes: {1} either to his resolution not to
oppose the plaintiffs allegations and relief demanded in the complaint, and
willingness to abide by the judgment granting said relief after the presentation of
evidence by the plaintiff, or (2) to fraud, accident, mistake or excusable
negligence without which he should have filed his answer on time for he has a
good defense. (Lim Toco v. Go Fay, 80 Phil. 166 [19 48]
Q. May the trial court motu proprio declare defendant in default.
A. No. A defendant may be declared in default only upon motion by the plaintiff
with notice to the defendant. (Crisologo-Jose v. Land Bank of the Philippines, 492
SCRA 322 [2006] ;Sablas v.Sablas, 526 SCRA 292 [2007] When the trial courts
acts on the motion ordering the defendant in default, then defendant is deemed in
default upon notice of the order of default.
Q. What are the requisites in order that the defendant may be declared in
default?
A. They are: (1) the claiming party must file a motion asking the trial court to
declare the defending party in default; (2) the defending party must be notified of
the motion to declare him in default and (3) the claiming party must prove that the
defending party has failed to answer within the period provided by the Rules. (De
los Santos v. Carpio, 501 SCRA 390 [2006]
Q. When should the trial court declare a defendant in default?
A. While there are instances when a party may be properly defaulted, these should
be the exception rather than the rule, and should be allowed only in clear cases of
obstinate refusal or inordinate neglect to comply with the orders of the court.
(Monzon v. Relova, 565 SCRA 514 [2008])
Q. What is the effect of the order declaring defendant in default?
.
A. When defendant is declared in default, the trial court shall proceed to render
judgment granting the claimant (plaintiff) such relief as his pleading may
warrant, unless the court in its discretion requires the claimant (plaintiff) to
submit evidence. Such reception of evidence may be delegated to the clerk of
court. (Section 3, Rule 9)
Q. Is a defendant who is declared in default entitled to notice?
A. Yes. A defendant in default shall be entitled to notice of subsequent
proceedings but not to take part in the trial. (Secton 3[a], Rule 9)

86
Notes and Casee
There are three requirements which must be complied with by the
claiming party before the trial court may declare the defending party in default:
(1) the claiming party must file a motion asking the court to declare the defending
party in default; (2) the defending party must be notified of the motion to declare
him in default; (3) the claiming party must prove that the defending party has
failed to answer within the period provided by law.
The rule expressly requires that the motion of the claiming party should be
with notice to the defending party. (Section 3, Rule 9) The purpose of the notice
of a motion is to avoid surprises on the opposite party and to give him time to
study and meet the arguments. The notice of a motion is required when the party
has the right to resist the relief sought by the motion and principles of natural
justice demand that his right be not affected without an opportunity to be heard.
(Yap v. Court of Appeals, 115 SCRA 104 [1982] .
Case: Delos Santos v. Carpio, 501 SCRA390 [2006] It is not disputed that
petitioners were served summons on January 22, 2001. They had fifteen (15) days
from notice within which to file their answer. Petitioners Answer was due on
February 6, 2001, but no answer was filed by them.. The respondent Metrobank
filed a motion to declare petitioners in default on February 9, 2001, setting the
hearing thereof on February 16, 2001. However, four days before the scheduled
hearing, the trial court issued the Order dated Februarty 12, 2001, declaring
petitioners in default. Issue: Was he trial court correct in issuing the order of
default? ? Held: No. There was no justifiable reason why the trial court chose
not to hear the petitioners on the date and time fixed in Metrobanks motion, and
instead, hastily granted the motion to be impressed with merit. It totally
disregarded the purpose for which the filing of a motion and notice to defending
party are required by the Rules, the trial court had acted in a despotic manner that
is correctly assailed through a petition for certiorari. Adjudication: Petition
granted. Decision of the CA reversed and set aside, the order of default of the
RTC was set aside, Answer of petitioners was deemed admitted and directed the
trial of the case.
Q. Liam filed a civil complaint against Carlo. For failure to seasonably file
his Answer, Carlo was in open court declared in default by the trial court.
The next day, Nico who is a process server of the court and a good friend of
Carlo, informed him (Carlo) that he was declared default. On the same day,
Carlo filed a motion under oath to lift the order of default on the ground of
excusable negligence and interposed a valid and meritorious defense, with
notice of hearing, and a copy of said motion was served, Hurriedly, Carlo
left for Manila to attend to an urgent business. When Carlo returned to
attend to the hearing of his motion, he was instead served a copy of the
opposition to his motion and an order declaring him in default issued by the
trial court. If you were the trial judge, would you have declared Carlos in
default? Reason.

87

A. Under the factual circumstances, I would not have declared Carlos in default.
Considering that I have not yet issued an order declaring Carlo in default
at the time his the motion to lift order of default was filed, technically and strictly
speaking, Carlo was not yet in default. Since the motion of Carlo was filed ahead
of the motion of Liam to declare Carlo in default, there appears a pure
technicality, that is, whether or not to grant the motion to declare Carlo in default.
Admittedly Carlo failed to file his Answer on time, I am task to exercise my
sound discretion and in the exercise of which, I would have had to rely on the
following principles of law and jurisprudence: : (1) declaring defendant in default
on pure technical ground is frowned upon; and the rules of procedure ought not to
be applied in a very rigid, technical sense, for they are adopted to help secure not
override, substantial justice; (2) judgment by default is generally disfavored; a
case is at best decided when the contending parties are able to present their
arguments and adduce evidence in support of the claims and defenses; (3) it is to
the best interest of justice that the parties be given the full opportunity to
ventilate the claims and defenses in a full-blown trial; (4) Under the attending
circumstances, Liam was not unnecessarily prejudiced by failure of Carlo to file
his Answer on time.
Q. May the trial court motu proprio order a defendant in default?
A. No. The trial court could not validly do that as an order of default can be made
only upon motion of the claiming party. Where no motion to declare defendant in
default was filed by the plaintiff, no default order may be issued by the trial court
motu proprio..
..
If a party declared in default is entitled to notice of subsequent
proceedings, all the more should a party who has not been declared in default be
entitled to such notice.
Q. How can a defendant be given notice of default order if his residence or
whereabouts is not known or cannot be located or ascertained?
Q. Obviously there is no way notice can be sent to the defendant and the notice
requirement cannot apply. The law does not require that the impossible be done.
The law obliges no one to perform an impossibility. Laws and rules must be
interpreted in a way that they are in accordance with logic, common sense, reason
and practicality. (ibid)
Q. In a civil action, the defendant received the summons and copy of the
complaint. He failed to file his Answer on time. Plaintiff filed a motion to
declare defendant in default and set it for hearing. Upon receipt of the
motion, and before the date set for hearing the motion, defendant filed his
Answer to the Complaint. At the date of the hearing of the motion to declare
defendant in default, the defendant manifested that he had filed his Answer

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though belatedly. If you were the trial court will you grant the motion to
declare defendant in default upon the admission of the defendant filed his
Answer beyond the reglementary period? Reason.
A. If I were the trial court, I will deny the motion of the plaintiff to declare
defendant in default.
First, the motion became moot and academic when the Answer was filed,
though belatedly, before defendant was declared in default.( Martinez v.
Republic, 506 SCRA 134 [2006] Where there is no motion to declare defednat in
default there can be no declaration of default; and where there is no declaration of
default, Answer may be admitted at the discretion of the trial court even if filed
out of time. (See: Sablas v. Sablas, 526 SCRA 292 [2007]
Case: Sablas v. Sablas, 526 SCRA 292 [2007] This is an action ofr partition,
invesntory and accounting. Esterrlita and RodolfoSablas were plainitiffs in a
complaint filed against Pascual Lumanas and Guillerma S. Sablas in the RTC. On
October 6, summons and copy of complaint were served to Pascual and
Guillerma Sablas. On October 21, they filed a motion for extension of time and
prayed for additional l5 days or until Nov. 5. They were not able to filed their
answer on time. It was on Nov. 8, l999 that they filed their a
Answer. While the trial court observed that the Answer was filed out time, it
admitted the Answer because no motion to declare defendants in default was
filed. The following day, November 9, the plaintiffs moved to declare defendants
in default which was denied by the trial court on 6 December. They move for
reconsideration but was also denied. They filed a petition with the CA and
questioned the orders of the RTC under Rule 65. They argued that under the
Rules, Section 3, Rule 9, the RTC had no recourse but to declare defendants in
default when they failed to file their Answer on time. The CA granted the petition
and vacated the Orders of the RTC and remanded the case for the reception of the
evidence of the plaintiffs. The spouses Guillerma Sablas and Pascual Lumanas
filed a petition for review on certiorari assailing the judgment of the CA. Issue:
Whether or not the CA was correct in reversing the RTC. Stated otherwise,
whether or not the RTC was correct in admitting the belated answer since there is
no motion to declare defendants in default. Held: Where as in this case there was
no motion to declare defendants in default, there can be no declaration in default.
An order of default can be made only upon the motion of the claiming party.
(Medisero v, China Banking Corporation, 356 SCRA 616 [2001] It can be
properly be issued against the claiming who failed to file the Answer within the
prescribed period only if the claiming party files a motion to that effect with
notice to the defending party. Before a defendant may be declared in default, three
requisites must concur, namely: (1) the claiming party must file a motion asking
the court to declare the defending party in default; (2) the defending party must be
notified of the motion to declare him in default and (3) the claiming party must
prove that the defending party has failed to answer within the period provided by
the Rules.(De los Santos v. Carpio, 501 SCRA 390 [2006] The trial court cannot
motu proprio declare a defendant in default, as the rules leave it up to the

89
claiming party to protect his or its interest. The trial court should not under any
circumstances act as counsel for the claiming party. In this case, the RTC was
correct in admitting the Answer though it was filed out of time because there was
no motion filed by the plaintiffs to declare defendants in default, and therefore
could not have correctly issued an order declaring defendants in default on its
own initiative.
Where there is no declaration of default, the Answer of the defendants
may be admitted by even filed out of time. (De Dios v. Court of Appeals, 212
SCRA 519 [1992] The Rules provides for discretion of the trial court not only to
extend the time for filing an answer but also to allow the answer to be filed after
the reglementary period. Adjudication: Petition granted. The decision of the CA
set reversed and set aside, the orders of the RTC were reinstated. Case remanded
to the trial court for further proceedings.
Q. What are the remedies available to a defendant declared in default?
A. The remedies are:
(1) The defendant in default may, at any time after discovery thereof and
before judgment, file a motion under oath to set aside the order of default upon
proper showing that his failure to answer was due to fraud, accident, mistake or
excusable negligence and that he has a meritorious defense; Section 3[b], Rule 9
(2) If the judgment has already been rendered when the defendant
discovered the default, but before the same has become final and executory, he
may file a motion for new trial under Section l[a], Rule 37;
(3) If the defendant discovered the default after the judgment has beome
final and executory, he may file a petition for relief under Section l Rule 38, and
(4) A petition for certiorari to declare the nullity of a judgment by default
is available if the trial cout improperly declared defendant in default, or even if
the trial court properly declared a party in default, if grave abuse of discretion
attended such declaration. (Cerezo v. Tuazon, 426 SCRA 167 [2004]; David v.
Gutiererez-Freuelda, 577 SCRA 357 [2009]
Q. In a civil case, the defendant was, on motion of the plaintiff and with
notice to the defendant, declared in default by the trial court. Posthaste,
upon discovery of the default order, defendant filed a motion to lift order of
default which was not under oath, and without an affidavit of merits clearly
showing facts as to support his ground for excusable negligence and merely
alleged that he has a good defense. In his motion, defendant argued that
declaration of default is frowned upon, and that he should be given the
opportunity to present evidence in the interest of substantial justice. If you
were the trial court how would you resolve the motion of the defendant?
Reason.
A. I will deny the motion for two reasons. First, the motion to lift order of
default was not oath. Second. Although the motion stated that the answer was not
filed on time due to excusable negligence, there were no facts alleged in the

90
motion to substantiate excusable negligence. Although defendant alleged in his
motion that he has a meritorious defense, did not substantiate such assertion
(Velayo-Fong v. Velayo, 516 SCRA 320 [2006]; (See: Section 3[b], Rule 9)
Defendants invocation that declarations of default are frowned upon is
inapplicable against the circumstances of the problem given.
.
Q. What is the effect of a partial default?
A. When a pleading asserting a claim states a common cause of action asserting
a claim against several defending parties, some of whom answer and the others
fail to do so, the court shall try the case against all upon the answers thus filed and
render judgment upon the evidence presented. (Section 3[c], Rule 9)
Q. Marco has a common claim against Pedro, Ramon, Santiago and
Teodoro for the collection of sum of money as follows: P3,000.00 due Pedro,
P4,000.00 due Ramon, P4,000.00 due Santiago and P5,000.00 due Teodoro.
All of them reside in Baguio City including Marco. Marco filed a complaint
in the MTC against all of them in a single complaint. Pedro and Ramon
respectively filed their Answer within the reglementary period, while
Santiago and Teodoro failed to file their Answers despite due service of
summons. On motion of Marco, Santiago and Teodoro were declared in
default, and trial on the merits followed with respect to Pedro and Ramon.
Thereafter, the trial court rendered judgment against Pedro and Ramon.
Was the trial court correct?
A. No. The MTC was in error both in declaring Santiago and Teodoro in default
and in rendering judgment against Pedro and Ramon.
The rule on this point is that when a claim states a common cause of
action against several defendants, as in the problem given, Pedro and Ramon filed
their Answer, while Santiago and Teodoro did not, , the MTC should have tried
the case against all the defendants upon the Answers filed by Pedro and Ramon
and render judgment upon the evidence presented. The MTC instead of following
the rule, erroneously issued an order of default and then heard case on the merits
against Santiago and Teodoro. (Section 3[c], Rule 9)
.Case:Heirs of Mamerto Manguiat v. Court of Appeals, 562 SCRA 422 [2008]
Where the complaint asserting a claim states a common cause of action against
several defending parties, some of whom answer and the others fail to do so, the
trial court shall try the case against all upon the answers thus filed and render
judgment upon the evidence presented. It is not within the authority of the trial
court to divide the case before it by first hearing it ex parte as against the
defaulted defendants and rendering a default judgment against them, then
proceeding to hear the case as to the non-defaulted defendants.
Q. What is the extent of relief to be awarded when a defendant is declared in
default?

91

A. A judgment rendered against a defendant declared in default shall not exceed

the amount or be different in kind from that prayed for nor award unliquidated
damages. (Section 3[d], Rule 9)
Q. Give the exceptions to the rule that a defendant who fails to answer shall
be declared in default?
A. The exceptions are: (1) in action for annulment of marriage, or (2) declaration
of nullity of marriage, or (3) for legal separation where the defendant or
respondent fails to answer, the trial court shall direct the prosecuting attorney to
investigate whether or not a collusion between the parties exists, and if there is no
collusion, to intervene for the State in order to see to it that the evidence
submitted is not fabricated. (Section 3[e], Rule 9)
Q. Liam filed a civil action against Marco who upon service of summons and
copy of the Complaint filed his Answer. Trial on the merits ensued. In one
hearing, the defendant failed to appear and on motion of the plaintiff, the
trial court issued an order which declared defendant in default. Was the trial
court correct in declaring defendant in default?
A. No, the trial court committed an error by miscomprehending the rule on
default.
Failure to file an responsive pleading within the reglementary period , and
not failure to appear at the hearing, is the sole ground for an order of default
(Rosario, et al. v. Alonxo, et al., June 29, l963 ) except the failure to appear at a
pre-trial conference wherein the effects of default on the part of the defendant are
followed, that is, the plaintiff shall be allowed to present evidence ex-parte and a
judgment based thereon may be rendered against the defendant. (Section 5, Rul
l8; Monzon v. Relova, 565 SCRA 514 [2008]
Answer
Q. Define Answer.
A. An Answer is a pleading in which a defending party sets forth is defenses.
(Section 4, Rule 6)
Notes and Cases
Like a Complaint, an Answer shall have a (a) caption, (b) body which sets
forth the defending partys defenses, (c) the relief prayed for, (d) date of the
Answer, (e) signature and address of the defending party or his counsel; the
address should not be the post office box, (f) verification when required by law or
rule. (Sections 1-4, Rule 7)

92
The Answer shall be divided into paragraphs so numbered as to be readily
identified, each shall contain a statement of a single set of circumstances
traversing each paragraph of the complaint so far as that can be done; when one or
more paragraphs are addressed to one of several causes of action in the complaint,
they shall be prefaced by the words answer to the first cause of action or
answer to the second cause of action and so on; and when one or more
paragraphs of the Answer are addressed to several causes of answer, they shll be
prefaced by words to that effect. (See: Section 2[a},[b] 2nd par.)
The Answer shall contain in a methodical and logical form, a plain,
concise and direct statement of the ultimate facts on which the defending party
relies for his defense, omitting the statement of mere evidentiary facts. (Section 1,
Rule 8)
The defenses of the defending party are alleged in the Answer which meet
head-on the assertions against him. (See: Section 2, 2nd par., Rule 6)
Q. What are the two kinds of defenses. Explain each briefly.
A. They are: (1) Negative defense; and (2) Affirmative defense.(Section 5, Rule
6} .
(a) Negative defense is the specific denial of the material fact or facts
alleged in the pleading of the claimant essential to his cause or causes of action.
(Section 5[a] Rule 6)
(b) Affirmative defense is an allegation of a new matter which, while
hypothetically admitting the material allegations in the pleading of the claimant
would nevertheless prevent or bar recovery by him. The affirmative defenses
include fraud, statute of limitations, release, payment, illegality, discharge in
bankruptcy, and any other matter by way of confession and avoidance. (Section
5[b], Rule 6)
Notes and Cases
An affirmative defense is one which is not a denial of an essential
ingredient in the plaintiffs cause of action, but one which, if established, will be a
good defense, like an avoidance of the claim. When the answer asserts affirmative
defense, there is proper joinder of issues which must be ventilated in a full-blown
trial on the merits and cannot be resolved by a mere judgment on the pleading.
(Mongao v. Prye Properties Corporation, 467 SCRA 201 [2005]
The issues are joined when the Answer makes a specific denial of the
material allegations in the Complaint or asserts affirmative defenses which would
bar recovery by the plaintiff. An Answer fails to tender an issue where the
allegations admit the allegations in support of the plaintiffs cause of action or fail
to address them. (Mongao v. Prye Properties Corporation, supra)
Where the Answer fails to tender an issue, or otherwise admits the
material allegations of he adverse partys pleading, the court may, on motion of
that party, direct judgment on such pleading. The Answer would fail to tender an

93
issue if it does not comply with the requirements for a special denial.. (Mongao v.
Prye Properties Corporation, supra.)
Q. How should the defendant traverse the allegations of the complaint?
A. The defendant in his Answer must specify each material allegation of fact the
truth of which he does not admit and, whenever practicable, shall set forth the
substance of the matters upon which he relies to support his denial. (Section 10,
1st sentence, Rule 8)
Notes and Csses
A general denial does not become specific because of the use of the word
specifically (Cortes v. Co Bun Kim, 90 Phil. 167) A denial generally and
specifically of each and every allegation contained in each and every paragraph
of the plaintiffs complaint is an insufficient denial. (Dacanay v. Lucero, 76 Phil.
139)
Q. Suppose the defendant desires to deny only a part of an averment, how
should he allege such denial?
A. When a defendant desires to deny only a part of an averment, he shall specify
so much of it as it is true and material and shall deny only the remainder. (Section
10 2nd sentence, Rule 8)
Q. Is this phrase defendant is without knowledge or information sufficient
to form a belief as to the truth of the material allegations in paragraph 3 of
the complaint a denial?
A. Yes, that shall have the effect of a denial. (Section 10 last sentence, Rule 8)
Notes and Cases
To constitute a sufficient and effective denial, allegations disclaiming
knowledge or information sufficient to form a belief must refer specifically to
such averments of the complaint as are to be met by that particular form of plea.
The reason for requiring the defendant to make a specific denials in his
Answer is to compel the defendant to specify the matters which he intends to
disprove and disclose the maters upon which he relies to support his denial,
thereby limiting the issues and avoiding unnecessary delay and surprises. (El
Hogar Filipino v. Santos Investment, 74 Phil. 79)
Q. What is the effect of an admission of fact in the pleading?

94
A. It dispenses with the need to prove the same. The effect is that the party who
made the admission cannot later on present or introduce contradictory or
inconsistent evidence to such admission; even if introduced and not objected to by
the adverse party, it should be ignored.
Q. What is the effect of failure to specifically deny the existence, authenticity and
due execution of a document subject of the complaint?
Q. Such failure to deny specifically under oath the existence, due execution and
authenticity of a document subject matter of the action amounts to a judicial
admission of its genuineness and due execution. (Tabuena v. Land Bank of the
Philippines,566 SCRA 557 [2008]
Note: See Section 7 and 8, Rule 8 in the matter of how to contest the
genuineness of a document.

Q. What is the effect of failure to deny specifically the material averments of

the Complaint? Give the exception.
A. Material averments in the Complaint shall be deemed admitted when not
specifically denied in the Answer. (Section 11, Rule 8)
The exception is as to the amount of unliquidated damages.(Section 11,
Rule 8)
Exception to the exception is an allegation of usury in a complaint to
recover usurious interest if not specifically denied under oath is deemed admitted.
(Section 11, Rule 8).
Q. How may a defendant plead his defenses?
A. The defendant may plead his defenses either (a) in a motion to dismiss
{Section 1, Rule 16) or (b) in his answer either affirmative or negative or both
Q. What is the effect of failure to allege defenses and objections either in a
motion to dismiss or Answer?
A. Defenses and objections not pleaded either in a motion to dismiss or in the
Answer are deemed waived, except the defense (1) of lack of jurisdiction of the
court over the subject matter. (2) there is another action pending between the same
parties for the same cause, (3) action is barred by a prior judgment or statute of
limitation, the court shall dismiss the claim. (Section 1, Rule 9)

95
Q. How shall the defendant contest the genuiness and due execution of an
actionable document and what is the effect of failure so to contest it?
A. The defendant shall specifically and under oath deny the genuineness and ue
execution of the actionable document, and sets forth what he claims to be the
facts. But this rule shall not apply to him if he is not a party to the actionable
document or instrument or when compliance with an order or inspection of the
original instrument or document is refused. (Section 8, Rule 8)
Q. Is the defendant allowed to strike out the complaint or matters contained
therein?
A. Yes, on motion of a party before responding to a pleading or, if no responsive
pleading is permitted by these Rules, upon motion made by a party within twenty
(20) days after the service of the pleading upon him, or upon the courts own
initiative at any time, the court may order any pleading to be stricken out or that
any sham or false, redundant, immaterial, impertinent, or scandalous matter be
stricken out therefrom. (Section 12, Rule 8)
Counterlaim
(Section 6, Rule 6)
Q. Define Counterclaim.
A. A counterclaim is any claim which a defending party may have against an
opposing party. (Section 6, Rule 6)
Notes and Cases
For instance, A filed a civil action against B for the collection of a sum of
money in the amount of P400,000.00. B may, in his answer, plead as his
counterclaim that he has an accounts receivable from A in the amount of
P150,000.00 which is the value of the good purchased on credit by A which the
latter failed to pay.
The purpose of counterclaim is designed to enable the disposition of a
whole controversy of interested parties conflicting claims, at one time in one
action, provided all parties can be brought before the court and the matter can be
decided without doing prejudice to the rights of any party. (Reyes v. Court of
Appeals, 38 SCRA 138)
A counterclaim is a complaint by the defendant against the plaintiff.
Although it may be alleged in the answer for convenience sake, it is not part of
the answer. It is distinct and independent cause of action. When the counterclaim
is properly interposed, the defendant becomes, in respect of the matters he
pleaded, an action, the plaintiff. There will be two simultaneous actions pending

96
between the same parties wherein each is at the same time both a plaintiff and a
defendant.
A counterclaim is an offensive as well as defensive plea and is not
necessarily confined to the justice of the plaintiffs claim. It represents the right of
the defendant to have the claims of the parties counter-balanced in whole or in
part, and judgment to be entered for the excess, if any. A counterclaim stands on
the same footing and to be tested by the same rules, as if it war an independent
action. (Matela v.Tay, 5 SCRA 163)
A counterclaim may be filed only against an opposing party. The filing of
a counterclaim against a third party is not allowed but the court may order such
party to be brought in as defendant. The bringing of a third party defendant is
proper if the latter would be liable to the plaintiff or to the defendant or both for
all or part of the plaintiffs liability against the original defendant, although the
third-party defendants liability arises out of another transaction. (Maranan v.
Manila Banking Corporation, 519 SCRA 572 [2007]
The dismissal of a complaint due to the fault of the plaintiff is without
prejudice to the right of the defendant to prosecute any pending counterclaim of
whatever nature in the same or separate action. (Perkin Elmer Singapore Pte Ltd.
v. Dakila Trading Corporation, 530 SCRA 170 [2007]
Test to determine whether counterclaim is compulsory or not. Sandejas v.
Ignatio, Jr. 541 SCRA 61 [2007]
Q. What is compulsory counterclaim?
A. Counterclaim is one which, being cognizable by the regular courts of justice,
arises out of or is connected with the transaction or occurrence constituting the
subject matter of the opposing partys claim and does not require for its
adjudication the presence of their parties of whom the court cannot acquire
jurisdiction. Such a counterclaim must be within the jurisdiction of the court both
as to the amount and the nature thereof, except that in an original action before the
Regional Trial Court, the counterclaim may be considered compulsory regardless
of the amount. (Section 7, Rule 6}
Q. Give an example of a compulsory counterclaim.
A. A filed a civil action against B for the recovery of a piece of land. B may
allege in his answer a counterclaim for the reimbursement or payment for the
value of all the improvements he introduced on said land and the amount of
damages he sustained because such claims are necessarily connected with the suit
for the recovery of land which B has in good faith enhanced the value of the
subject land. If B fails to interpose his counterclaim which is compulsory in
nature, he will be barred from subsequently suing A for said value of
improvements and amount of damages suffered.

97
Another example: .In an action for recovery of possession of a parce3l of
land,=, the claim of the defendant that he is the owner of the land is a compulsory
counterclaim.( De Jesus v.Tuazon & Co., L22184, October 20, 1966)
Q. Does ja counterclaim needs to be answered? Is there an exception?
A. As a rule, a counterclaim should be answered. By way of exception is when the
issues of a counterclaim are so inseparable from those raised by the complaint and
the answer; that such counterclaim partakes of the nature of a special defense, an
answer thereto would be unnecessary. (Ballecer v. Bernardo, 18 SCRA 291 [1966]

Cross-claim
(Section 8, Rule 6
Q. Define cross-claim.
A. A cross-clam is any claim by one party against a co-party arising out of the
transaction or occurrence that is the subject matter of the original action or of a
counterclaim thereon.. Such cross-claim may include a claim that a party against
whom it is asserted is or may be liable to the cross-claim for all or part of a claim
asserted in the action against the cross-claimant. (Section 8, Rule 6)
Q. What is the nature of a cross-claim?
A. A cross claim being defensive in nature and arising entirely out of a complaint,
prosper only if plaintiffs succeeds. It cannot be the subject of independent
adjudication once it lost the nexus upon which its life defends. (Torres, et al. v.
Court of Appeals, 49 SCRA 67 [1973]
Q. Give an example of a cross-claim.
A. A creditor files an action for recovery of a sum of money against the principal
debtor and his surety. In the same action, the surety should file a cross=claim for
indemnity against the principal debtor.(Secttions 8 and 9, Rule 6)
Q. Distinguish counterclaim from cross-claim.
A. The distinctions are:

98
(a) a counterclaim is a complaint by the defendqant againt the plaintiff,
whereas, a cross-claim is a claim by the defendant against his co-defendant; and
(b) a counterclaim may be asserted whether or not it arises out of the
transaction or occurrence that is the subject matter of the action, whereas, a cross
claim must always arise out of the transaction or occurrence that is the subject
mater of the action or of a counterclaim.
Q. What is the purpose of the Rules in allowing counterclaims and crossclaims in an action?
A. The purpose is to avoid multiplicity of suits. (Republic v. Paredes, 108 Phil. 57
[l960] , and toward this end allow, and in certain cases, compel parties to combine
in one litigation their conflicting claims, more particularly when they arise out of
the same transaction. (Ledesma v. Morales, 87 Phil. 199 [1950\
.Q. When may a defendant assert a counterclaim or cross-claim in an
answer?
A. A defendant may assert a counterclaim or cross-claim in the answer (a) if the
court has jurisdiction to entertain the claim and (b) it can, if the presence of third
parties is essential for its adjudication, acquire jurisdiction of such parties.
(Sections 7 and 8, in relation to Section 12, Rule 6)
Q. May a defendant assert a counterclaim or cross-claim which either
matured or was acquired after the anwer and if so, how may it be done?
A. Yes, a counterclaim or cross-claim which either matured or was acquired by a
party after serving his pleading may, with leave of court, be presented as a
counterclaim or a cross claim. By way of a supplemental pleading. (Section 6,
Rule 10)
Q. When is a counterclaim or cross-claim compulsory and when permissive?
A. A counterclaim or cross=claim is conclusive if
(a) it matured before answer;
(b) it arises out of or is necessarily connected with the transaction or
occurrence that is the subject matter of the opposing partys or co-partys claim;
(c) it does not require for its adjudication the presence of third persons of
whom the court cannot acquire jurisdiction ; and
(d) it is within the jurisdiction of the court.
Otherwise, the counterclaim or cross claim is merely permissive.
Q. Suppose a counterclaim is not within the jurisdiction of the court, how
should it be pleaded?

99
A. Such a counterclaim may be pleaded as a set-off to reduce plaintiffs claim.
(Icasiano v. Icasciano, 3 SCRA 300 [1961]
O. In what action shall a counterclaim or cross-claim be set up? How about a
merely permissive one?
A. A compulsory counterclaim or cross claim mast be set up in the same action,
otherwise, it shall be barred. Section 2, Rule 10) On the other hand, a merely
permissive counterclaim or cross claim may be the subject of a separate and
independent action.

Third Party Complaint

(Section 11, Rule 6
Q. Define third-party complaint.
A. A third-party complaint is a claim that a defending party may, with leave of
court, file against a person not party to the action, called the third-party defendant
for contribution, indemnity, subrogation, or any other relief, in respect of his
opponents claim.
Q. Give an example of each of the grounds for their-party complaint.
A. (a) If X and Y are upon an action for quasi-delict liable, and the injured party
files an action for damages against X only, X can file a third=party complaint
against Y for contribution because their liability is joint and several or solidary.
(See: Article 2194, CCP)
(b) A surey was sued for recovery of debt by the creditor may file a thrird-party
complaint against the principle debtor for indemnity. (See: Article 2047, CCP)
(c) A lessee sued by his lessor for cost of repairs in a case where the lessee
obliged himself to defray the same, the lesee may file a third party complaint for
subrogation against the sublessee who has assumed compliance with the
obligation.. (Arts. 1651 and 1654, CCP)
(d) In an action for recovery of real property, the defendant may file a third
party complaint against his vendor for warranty against eviction. (Art. 1548, CCP)
Q. How to determine the propriety of a third party complaint?
A. A third party complaint would be proper if

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(a) It arises from the same transaction on which the plaintiffs claim is
based or
(b) the third party claim, although arisout out of another contract or
transaction, is onnected with the plaintiffs claim; or
(c) the third party defendant would be liable to plaintiffs claim against
the original defendant, although the third party defendants liability artises out of
another transaction; or
(d) the third party defendant may assert any defense which the third party
plaintiff ahs, or may have, against plaintiffs claim. (Capayas v. CFI of Albay, 77
Phil. 181)
Notes and Cases
The third-party complaint is a procedural devise whereby a third party
who is neither a party nor privy to the act or deed complained of by the plaintiff,
may be brought into the case with leave of court, by the defendant, who acts as a
contributor, indemnity, subrogation or any other relief, in respect of plaintiffs
claim. A third-party complaint is actually independent of and separate and
distinct from the plaintiffs complaint, and were it not for Section 11, Rule 6, of
the Rules of Court, it would have to be filed independently and separately from
the original complaint by the defendant against the third party. (Construction &
Development Corporation of the Philippines v. Cuenca, 466 SCRA 714 [2005]

Counter-ciybterckauns and counter-cross claim

Section 9, Rule 6
Q. May a counterclaim be asserted against an original counter-claimant?
A. Yes, counter-counterclaim may be asserted against the original counterclaimant. . (Section 9, Rule 6)
Q. May a cross-claim be asserted against an original cross-claimant?
A. Yes, counter-cross claim may be asserted against the original cross-claimant.
(Section 9, Rule 6}

Reply
(Section 10, Rule 6
Q. Define Reply.

101

A. A Reply is a pleading the office or function of which is to deny, or allege facts

in denial or avoidance of new matters alleged by way of defense in the answer
and thereby join or make issue as to such new maters.
Q. What is the effect of failure to file a Reply?
A. The filing of a reply is optional, and failure to do so amunts to a denial of all
new matters alleged in the answer. (Calo v. Roldan, 76 Phil. 445)
Q. When is the filing of a reply required?
A. The filing of a Reply is required:
(a) To deny the genuineness and due execution of a written instrument
upon which the defense is founded. The plaintiff must make a denial specific,
under oath, and accompanied by allegations of he true facts; otherwise, he is
deemed to have admitted the genuineness and due execution of the written
instrument.
(b) To denyan allegation of usury in the answer. The denial must be
specific and under oath, and accompanied by allegation of usury is deemed
admitted, but not that the transaction is a loan.
Q. When is the filing of a reply improper?
A.
A reply is improper or not allowed to be filed when the case is submitted
for judgment upon the pleadings.
The plaintiff is deemed to have admitted the truth of the material
averments of the adverse partys Answer and to rest his case upon those
allegations taken together with those of his own which the Answer admits. A
motion for judgment on the pleadings, therefore, is inconsistent with the filing of
a reply, as the first admits the truth of all the material allegations of the Answer,
whereas a reply controverts all new matters alleged therein. (Aquino v. Blanco, 79
647 .
Q. Suppose defendant alleged new maters in his Answer, will the plaintiff file
a reply to such claims?
A. No, because reply is not the proper pleading. The plaintiff can traverse the new
matters raised in the Answer in an amended or supplemental Complaint.

Q. May a supplemental complaint be filed?

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A. Yes. On motion of the plaintiff, the court may, upon reasonable notice and
upon such terms as are just, permit him to serve a supplemental complaint setting
forth transactions, occurrences or events which have happened since the date of
the complaint sought to be supplemented. The defendant may file his answer
thereto within ten (10) days from notice of the order admitting the supplemental
complaint.
Q. State the scope of a Supplemental complaint.
A. A supplemental complaint must be consistent with, and in aid of, the cause of
action set forth in the original complaint. A new and independent cause of action
cannot be set up by such complaint. (Lambino v. Judge RTC, R. 172 Valenzuela
City, 512 SCRA 525 [2007]

Q. If the defense is based on fraud or mistake or condition of the mind, how

should the averment be made in the Answer?
A. In alleging fraud or mistake, the circumstances constituting fraud or mistake
must be stated with particularity. But malice, intent, knowledge or other condition
of the mind of a person may be averred generally. (Section 5, Rule 8)
In another way of stating, the following facts may be averred generally in
a pleading:
(a) The performance or occurrence of all conditions precedent;
(b) Malice, intent, knowledge or other condition of mind of a person;
(c) The judgment or decision of a domestic or foreign court, judicial or
quasi-judicial tribunal, board or officer, in the sense that there is no
necessity for setting forth matters showing jurisdiction to render it.
Q. If the defense is based on a written instrument or document, how should
it be averred in the Answer?
A. Where the defense of the defendant is based upon a written instrument or
document, the substance of such instrument or document must be set forth in the
Answer, and the original or a copy thereof must be attached to the Answer as an
exhibit, which shall be deemed to be a part of the Answer, or said copy may with
like effect be set forth in the Answer. (Section 7, Rule 8)

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A. Are pleas which admitting the allegations of the complaint to be true, yet the
matters set out in the answer deny or take away the plaintiffs right of action. For
instance, a plea of infancy, or incapacity, or fraud or duress. (See: Corporacion de
PP Agustinos Recoletos v. Crisostomo, 32 Phil. 427)
Q. How are two or more causes of action or defenses by pleaded?
A. They may be pleaded alternatively or hypothetically either in one cause of
action or defense or in separte cause of action or defense.
Q, In alternative causes of action or defenses, what is the effect of the
insufficiency of one of the alternatives?
A. As long as one of the alternative statements, if made independently, would be
sufficient, the pleading is not rendered insufficient by the insufficiency of the
other alternatives.
Q. In pleading alternative causes of action or defenses, is it required that the
causes of action or defenses be consistent with each other?
A. In pleading alternative causes of action or defenses, the cause of actions or
defenses alleged may be inconsistent with each other, provided that each cause of
action or defense be consistent in itself. (La Mallorca v. Court of Appeals, July 27,
1966)
Q. How to question or contest a written instrument or document?
A. When an action or defense is founded upon a written instrument, copied in or
attached to the corresponding pleading, the genuineness and due execution of the
instrument shall be deemed admitted unless the adverse party, under oath,
specifically denies them and sets forth what he claims to be the facts, but the
requirement of an oath does not apply when the adverse party does not appear to
be a party to the instrument or when compliance with an order for an inspection of
the original instrument is refused. (Section 8, Rule 8)
Q. What is an actionable document and how shall it be pleaded?
A. An actionable document is one which is the basis of the cause of action or
defense and not merely evidentiary thereof. It shall be pleaded in either of the
following two ways:
(a) The document may be reproduced in the pleading itself; or
(b) the substance of the document may be set forth in the pleading and the
original or copy of the document shall be attached to the pleading as an exhibit.

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Q. How shall the adverse jparty contest the genuineness and due execution of
an actionable document and what is the effect of failure so contest it?
A. The adverse party shall specifically and under oath deny the genuineness and
due execution of the actionable docuemtn and state what he claims to be the facts;
otherwise, he shall be deemed to have admitted the authenticity of said
document.
Q. What specific facts are deemed admitted by the adverse party who fails to
contest the genuineness and due execution of an actionable document?
A. The following are the facts admitted:
(a) The party whose signature is bears signed it.

Q. What is intervention?
A. Intervention is a procedural device by which a third person, not originally a
party to a civil suit, but claiming an interest in the subject matter, comes into the
case, in order to protect his right or interpose his claim. ( Union Bank of the
Philippines v. Conception, 525 SCRA 672 [2007] .
Said person comes in and joins in to the suit by filing a motion to
intervene and attached thereto his complaint in intervention. The trial court will
act on the motion and the complaint. (Section Rule )
Q. What is a negative pregnant?
A. It 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.
(Caneland Sugar Corporation v. Alon, 533 SCRA 28 [2007])
A denial negative pregnant is in effect an admission.
Q. Suppose a defendant likes to deny only a part or a qualification of an
averment, how shall he frame his denial?
A. If the defendant likes to deny only a part or a qualification of an avernment, he
shall specify so much of it as is true and deny only the remainder.
Q. Is the lack or absence of verification of an initiatory a fatal defect?

105
A. No. The requirement that a pleading be verified is simply a condition
affecting form of pleadings, and noncompliance with the requirement does not
necessarily render the pleading fatally defective.
The verification of a pleading is, however, significant as it is intended to
secure an assurance that the allegations in the pleading are true and correct and
not the product of the imagination or a matter of speculation. (Toyota Motor Phils.
Corp. Workers Union v. NLRC, 537 SCRA l7l [2007]

Manner of pleading complaint

(Rule 8)
Q. Jose, in his Complaint for the recovery of real property alleged, among
others, that he is the owner of the said property evidenced by a deed of
absolute sale executed in his favor by Paolo, the defendant. Attached to the
complaint is a duplicate original of the Deed of Absolute Sale marked Annex
A and made part of the Complaint. Paolo, in his unverified Answer denied
the allegation anent the sale of the subject matter which is the property and
the Deed of Absolute Sale, Annex A, of the Complaint, for lack of knowledge
or information sufficient to form a belief as to the truth thereof. Was the
denial of the allegations of the Complaint anent the ownership and deed of
sale of the property satisfactory or sufficient at law? Why?
A. No, the denial n the Answer of Paolo is defective and does not amount to an
effective and valid denial.
Paolo was in the position to specifically deny the allegation concerning the
sale of the property without resorting to the catch phrase for lack of knowledge
or information sufficient to form a belief as to the truth of the same. Since the
denial is defective it amounted to an admission. (Section 11 in conjunction with
Section 11, Rule 8) Material averments in the complaint must be specifically

106
denied, otherwise, they are deemed admitted. (Section 11, Rule 8) Further, the
genuineness and due execution of the Deed of Absolute Sale must be denied
under oath. Since the Answer was unverified, there was failure to properly deny
the genuineness and due execution of the Deed of Absolute Sale, hence it was
deemed admitted.. (Section 8, Rule 8)
Notes and Cases
Where the defense of a defendant is based on a written instrument or
documents, he must in his Answer allege the substance of such an instrument or
document and the original thereof or a copy thereof (duplicate original or a
certified true copy) shall be attached to the pleadidng as an exhibit which is
deemed to be part of the Answer (Section 7, Rule 8)
Q. State the basic rule on the proper way of preparing an initiatory pleading,
like a complaint..
A. Every pleading shall contain in a methodical and logical form, a plan, concise
and direct statement of the ultimate facts on which the party pleading relies for his
claim or defense, as the case may be, omitting the statement of mere evidentiary
facts. (Section 1, Rule 8; Canete v. Genuino Ice Company, Inc., 542 SCRA 206
[2008] ) The relief sought must be clear, specific and complete.(Baguiro v.
Barrios, 77 Phil. 120
Ultimate facts mean the essential facts constituting the plaintiffs cause of
action, or such facts as are essential that they cannot be stricken out without
leaving the statement of the cause of action inadequate.(Vda de Daffon v. Court of
Appeals, 387 SCRA 427 [2002]
Q. What is the test in determining the jurisdiction of the court in a complaint
with a cause of action for the collection of sum of money?
A. When the cause of action is principally for the recovery of sum of money, the
jurisdiction of the court is determined by the aggregate amount claimed. (Section
[d}, Rule 2)
Q. Nicco filed a complaint for sum of money against Marco with the MTCC
of Baguio, the total amount of the demand, exclusive of interest, damages of
whatsoever kind, attorneys fees, litigation expenses, and costs, being
P500,000.00. Marco filed a motion to dismiss on the ground that of lack of
jurisdiction of the MTCC over the subject matter of the complaint. After
hearing the motion, the MTCC granted the motion to dismiss and issued an
order directing the Branch Clerk of Court to forward the whole record of the
case to the RTC for its disposition. Was the MTCC correct? Reason.
A.
Yes. With respect to the dismissal of the case on the ground of lack of
jurisdiction, the MTCC was correct because at law it has no jurisdiction over the

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subject mater of the case which is the collection of sum of money in the amount
of P500,000.00, exclusive of interest, attorneys fees, damages of whatever kind,
litigation expenses and costs. (Section 33, BP Blg. 129 as amended by RA 7691)
The MTCC has jurisdiction if the amount is P400,000.00 or less, exclusive of
interest, attorneys fees, damages of whatsoever, litigation expenses and costs.
No. With respect to the order of the MTCC directing that the record of the
case be transferred to the RTC is not correct because its only duty is to dismiss
the case for lack of jurisdiction, hence, it has no authority to forward the case to
another court, which, in this case, is the RTC. (Section 3, Rule 16)
Q. Paolo filed a complaint with the MTCC for specific performance against
Carlo, a resident of Quezon City, to compel Carlo to execute a deed of
conveyance covering a parcel of residential land located at Pinsao, Baguio
City having the assessed value of P20,000.00. When Carlo received the
summons together with the Complaint, he filed a motion to quash on the
ground of lack of jurisdiction of the MTCC arguing that the subject matter
of the action is incapable of pecuniary estimation. If you were to resolve the
motion, what will be your resolution? Reason.
A. I will resolve to deny the motion. The action filed with the MTCC is for
specific performance, one which involves title to, or possession of real property,
or interest therein and the assessed value of the property or interest therein does
not exceed Twenty Thousand Pesos (P20,000.00). Since the action involves title
to or interest in real property and assessed value of the subject matter involved
therein is P20,000.00, jurisdiction falls within the MTCC pursuant to law.
(Section 19[2] in conjunction with Section 33, BP Blg. 129 as amended by RA
7691; Russel v. Vestil,, 304 SCRA 738 [1999]; Cabutihan v. Landcenter
Construction, 383 SCRA 326 [2002]
Civil actions which involve title to, or possession of, or interest therein, of any
real property, jurisdiction over the subject matter of the complaint is
determined by the current assessed value of the land or property..
Case: Heirs of Valeriano S. Concho, Sr. v. Lumosco, 540 SCRA 1 [2007]
Three civil complaints were filed by Heirs of Valeriano S. Concha, Sr. with a
common cause of action for recovery of real properties covered by Certificates
of Title and damages against spouses Lomusco. On separate occasions, Lumosco,
et al. on the grounds of lack of jurisdiction of the RTC over the subject matter of
the complaints; failure to state a cause of action for reconveyance; prescription
and waiver, abandonment, laches and estoppel. On the issue of jurisdiction, over
the subject matters of the complaints, the assessed value of each property
involved are less than P20,000.00. Pursuant to BP Blg. 129 as amended by RA
7691 jurisdiction over the subject matters lies with the MTC. Heirs of Concha
opposed contending that subject matter of these cases are incapable of pecuniary
estimation which under the law, Section l9[1\ of BP Blg. 129 as amended by RA

108
7691 fall within the jurisdiction of RTC. Issue: Which court has jurisdiction over
these complaints for reconveyance of real properties, the RTC or the MTC? Held:
To begin with, jurisdiction over the subject matter is vested by law, and
determines cases to which general class to which it belongs. To determine
whether a court has jurisdiction over the subject matter of a case, the nature of the
cause of action and the relief sought be looked into.. These cases involve actions
for the reconveyance of titled properties. To be sure, an action for reconvenance
respects the decree of registration as incontrovertible but seeks the transfer of
property, which has been wrongfully or erroneously registered in other persons
name, to its rightful and legal owners, or to those who claim to have a better right.
There is no special ground for an action reconveyance. It is sufficient that the
aggrieved party has a legal claim on the property superior to that of the registered
owner, and that the property has not yet passed to the hands of innocent purchaser
for value.
These cases can also be considered as actions to remove cloud on ones
title as they are intended to procure the cancellation of an instrument constituting
a claim on Conchos alleged title which was used to injure or vex them in the
enjoyment of their alleged right.
Since these cases are for reconveyance or actions to remove cloud on
ones title, the applicable law to determine which court has jurisdiction is Section
19[2], of BP Blg. 129 as amended by RA 7691.
In these cases, it is undisputed that the subject lots and their assessed
values are less than P20,000.00.
Under the present law, particularly Section 19[2] of BP Blg. 129 as
amended y RA 7691 categorically states that all civil actions which involves title
to, or possession of real property, or any interest therein where the assessed value
of the property or interest does not exceed Twenty Thousand Pesos (P20,000.00.
Since in these cases involve title to, or possession thereof or interest therein the
assessed value of each lot has an assessed value of less than P20,000.00
jurisdiction lies with the MTC and not with the RTC. Adjudication: Decision of
the Court of Appeals affirmed that the RTC has no jurisdiction over the subject
matters of these three cases.
Notes and Cases
It is now a settled rule that actions for reconveyance of or for cancellation
of title to or to quiet title over real property are actions that fall under the
classification of cases that involve title to, or possession of, real property are
actions that fall under the general classification of cases that involve title to, or
possession of, real property, or any interest therein. (Heirs of Valeriano S.
Concha, Sr. v. Lumosco, supra)
To have a clear picture of the rule above enunciated, original law, the
Judiciary Act of l948, as amended vested jurisdiction to the Courts of First
Instance now Regional Trial Courts exclusive original jurisdiction in all civil
actions which involve the title to, or possession of, real property, or any interest
therein. This law was overcome by BP Blg. 129 and later amended by R. A. 7691

109
expanding the jurisdiction of the first level courts, and it provides almost the same
provision of that of the original law which states that in all civil actions which
involve title to, or possession of real property, or any interest therein, where the
assessed value of the property involved exceeds P20,000.00, jurisdiction lies
with the RTC. Conversely, if the assessed value of the property involved does not
exceed P20,000.00, jurisdiction lies with the first level courts, that is, the MTC,
MTCC, Metropolitan Trial Court, MCTC.
In the light of the Concha ruling, the is plain and clear that in determining
which court has jurisdiction, it is only the assessed value of the real property
subject of the case that should be considered. (Hilario v. Salvador, 457 SCRA 815
[2005]; . .
The Concha ruling involves purely civil actions for reconveyance, or
cancellation of title, or quieting of title. But where an action involves matters
relating to settlement of the estate of a deceased person , it partakes of the nature
of a special proceedings. Matters which involve settlement and distribution of the
estate of the decedent fall within the exclusive province of the probable court in
the exercise of its limited jurisdiction. (See: Natcher v. Court of Appeals, 366
SCRA 385 [2001]
Section 19[4] of BP Blg. 129 as amended, it provides that in all matters
of probate, both testate and intestate, where the gross value of the estate exceeds
One Hundred Thousand Pesos (P100,000.00) or, in probable in Metro Manila,
where such gross value exceeds Two Hundred Thousand Pesos (P200,000.00)
Q. If the cause of action is based on fraud or mistake, how should it be
alleged in the complaint?
A. The averments of fraud or mistake, the circumstances constituting the fraud or
mistake must be alleged with particularity.(Section 1, Rule 8; Hernudd v. Lofgren,
534 SCRA 232 [2007]; Canete v. Genuino Ice Company, Inc., 542 SCRA 206
[2008])
Notes and Cases
In alleging fraud, the circumstances constituting fraud must be stated with
particularity to enable the opposing party to controvert the particular facts
allegedly constituting the same. (Gonzales v. Climax Mining Ltd., 512 SCA 148
[2007]
In alleging mistake, deceit, machination, false pretense, misrepresentation,
threats in a complaint, the facts and circumstances constituting each should be
stated in particularity. Without supporting statements of the facts to which the
allegations of fraud, mistake, deceit, machination, false pretense,
misrepresentation, do not sufficiently state an effective cause of action. (Reyes v.
Regional Trial Court of Makati, Branch 142, 561 SCRA 593 [2008].Moreover,
the pleading must be under oath. (Section 8, Rule 8)

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Amendment and Supplemental Pleadings

(Rule 10)
Q. May pleadings be amended?
A. Yes, pleadings may be amended by adding or striking out an allegation or the
name of any party or a mistake or inadequate allegation or description in any
other respect. Section 1, Rule 10)
Notes and Cases
Amendments to pleadings are favored and should be liberally allowed to
clearly disclose the merits of the controversy in furtherance of administration of
justice, to speed up trial on the merits, and to save on unnecessary expense.
(Verzosa v. Versoza, Nov.27,1968)
Q. What is the reason and objective of an amendment?
A. Amendment of pleadings is allowed so that the actual merits of the controversy
may speedily be determined, without regard to technicalities, and in the most
expeditious and inexpensive manner. (Section 1, Rule 10)
Notes and Cases
Amendment may be by addition, suppression, incorporation, substitution
and the like. To incorporate or attach document is an amendment. (Villegas v.
Roldan, 76 Phil. 349 [1946] Perez v. Rubio, Jan. 31, l973
Q. Is amendment of a pleading a matter of right or with leave of court?
A. An amendment of a pleading may be {1) a matter of right or (2) with leave of
court. (Sections 3 and 4, Rule 10)
Q. When is amendment a matter of right?
A. A party may amend his pleading once as a matter of right. before a responsive
pleading is served or in the case of reply, at any time within ten (10) day after it is
served, (Section 2, Rule 10)
Q. When is amendment with leave of court?

111
A. Substantial amendments may be made only upon leave of court. But such leave
may e refused if it appears to the court that the motion was made with intent to
delay. (Section 3, Rule 10)
Q. When a party seeks to introduce substantial amendments to his pleading
what should he do?
A. The party who desires to introduce substantial amendments to his pleading
shall (1) file a motion for leave to introduce such amendments; (2) specify or
particularize and incorporate the amendments to be introduced which shall be
indicated by appropriate marks (3) the motion must be set for hearing and contain
a notice to that effect and the latter be given opportunity to be heard; and (4) a
copy of said motion be served to the adverse party; (5) order granting or denying
the motion. (See: Section 3, Rule 10 in relation to Section 7, Rule 10)
Q. When may formal amendment to a pleading be made?
A. A formal amendment may be allowed by the trial court at any stage of the
action, either by its own initiative or on motion of a party, provided no prejudice
is caused thereby to the adverse party. Such format amendments may be to correct
a defective designation of the parties or other clearly clerical or typographical
errors which may be done summarily. (Section 4, Rule 10) .
Q. What is the effect of an amended pleading?
A. An amended pleading supersedes the pleading that it amends. However,
admissions in superseded pleadings may be received in evidence against the
pleading, and claims or defenses alleged therein not incorporated in the amended
pleading shall be deemed waived. (Section 8, Rule 10)
Notes and Cases
The word superseded means that the original pleading ceases to perform
any function as a pleading. The case stands for trial on the basis of the amended
pleading only. And claims and defenses not incorporated in the amended
pleadings are deemed waived.
Q. Is amendment to conform to authorize presentation of evidence allowed?
A. Yes, by express provision of the Rules.(Section 5, Rule 10)
Q. When and how is this method of amendment done?
A. When issues not raised by the pleadings are tried with the express or implied
consent of the parties, they shall be treated in all respects as if they had been

112
raised in the pleadings. Amendment of the pleading as may be necessary to
conform to the evidence and to raise these issues may be made upon motion of
any party at anytime, even after judgment, but failure to amend does not affect the
result of the trial of these issues.. (Section 5, Rule 10)
Q. Suppose evidence is objected to at the trial on the ground that it is not
within the issues made by the pleadings, what should the court do?
A. The trial court may allow the pleadings to be amended and shall do so with
liberality if the presentation of the merits of the action and the ends of substantial
justice will be subserved thereby. For this purpose, the trial court may grant a
continuance to enable the amendment to be made. (Section 5, Rule 10)
Q. May a pleading be supplemented?
A. Yes. On motion of a party, the trial court may, upon reasonable notice and
upon such terms as are just, permit him to serve a supplemental pleading setting
for transactions, occurrences or events which have happened since the date of the
pleadings sought to be supplemented. The adverse party may plead thereto within
ten (10 ) days from notice of the order admitting the supplemental pleading.
(Section 6, Rule 10)
Q. Distinguish amended from supplemental pleading?
A. An amended pleading has for its purpose the correction of any error, defect or
imperfection in the statement of the cause of action or defense, whether by way
of addition, suppression, incorporation, substitution and the like, to the end that all
matters in dispute may be presented before the court; (Villegas v. Roldan, 76
Phil. 349 [194] whereas, a supplemental pleading has for its function the setting
up of transactions, occurrence and events that have happed since the filng of the
action and which may tend to strengthen up or reinforce the cause of action or
defense stated in the pleadings before the court.(Legarda v. Carrascoso, 81 Phil.
450 [1950]

Bill of Particulars
(Rule 12)
Q. Define or give the concept of a bill of particulars.
A.
Q. When can a bill of particulars be availed of?

113
A. A defending party before he files a responsive pleading may move for a bill of
particulars of any matter which is no averred with sufficient definiteness or
particularity to enable him properly to prepare his responsive pleading. If the
pleading is a reply, the motion must be filed within ten (10) days from service
thereof.
The motion for bill for particulars shall point out the defects complained
of, the paragraphs wherein they are contained, and the details desired. (Section l,
rule 12)
Notes and Cases
Upon the filing of the motion, the court may either deny or grant it
outright, or allow the parties the opportunity to be heard. (Section 2, Rule 12) If
the motion is granted, either in whole in part, compliance must be effected within
ten (10) days from notice, unless a different period is fixed by the court. The bill
of particulars ordered by the court may be filed either in a separate or in an
amended pleading serving a copy thereof on the adverse party. (Section 3, Rule
12) A bill of particulars becomes jpart of the pleading for which it is intended.
(Section 6, rule 12) While the motion for bill of particulars is pending
ewaolurion, the period to file a responsive pleading is suspended. Upon notice of
the denial of the motion, the responsive pleading may be filed within the
remaining period reckoned from the filing of the motion, which shall not be less
than five days in any event. (Section 5, Rule 12)
Q. What is the effect of non-compliance with the order of bill of particulars?
A. If the order of bill of particulars is not complied with, or in case of insufficient
compliance, the court may order the striking out of the pleading or the portions
thereof to which the order was directed or make such other order as it deems just.
{Section 4, Rule 12)
Q. May a complaint be dismissed for ambiguity of its allegations?
A. No. A complaint may not be dismissed although the allegations therein are
ambiguous,I indefinite and uncertain.. This ambiguity, indefiniteness or
uncertainty is a ground for a bill of particulars, not a motion to dismiss. (Pangan v.
Evening News, Oct. 29, 1960; Amoro v. Sumanguit, July 31, l962 )east Freight
Forwarders, Inc., 581 SCRA 736 [2009)
Where the allegations of a complaint are vague, indefinite, or in form of
collusion, the remedy of the defendant is not to move the dismissal its dismissal
but to file a motion for bill of particulars. (Ilano v. Espanol, 478 SCRA 365
[2005]
Q. Paolo sued Carlo in the MTCC for specific performance to execute a deed
of absolute sale over a piece of unregistered land measuring 45o square
meters with a current market value of P500.00 a square meter, plus damages

114
in the total sum of P200,000.00 and costs of the suit. Carlo received the
summons and a copy of the Complaint. As counsel for Carlo what is you first
legal move. Why?
A. As my first move, I will file a motion for bill of particulars because the
allegations insufficient such as the location of the land and its classification, the
current assessed value. The rule is that if the complaint is ambiguous, indefinite or
uncertain as to material facts, the remedy of the defendant is to file a bill of
particulars and not a motion to dismiss. The Complaint of Paolo is insufficient
and indefinite as to inform Carlo the necessary facts so that he can file an
appropriate pleading or legal paper. .
Filing and Service of
Pleaings, judgments and
other papers
(Rule 14)
Notice Lis pendens
(Section 14, Rule 13

Q. What is a notice of lis pendens?

A. It is an announcement to the whole world that a particular real property is jn
litigation, serving as a warning that one who acquires an interest over said
property does so at his own risk, or that he gambles on the result of the litigation
over the said property. ( Section 14, Rule 13)]: AFP Mutual Benefit Associaltion,
Inc. v. Court of Appeals, 327 SCRA 203 [2000]; Cunanan v. Jumping Jap Trading
Corporation, 586 SCRA 620 [2009];;Lu v. Lu Ym, Sr. 595 SCRA 79 2009]
Q. What is the policy behind litis pendencia?
A. The policy is that a party should not be allowed to vex another more than once
regarding the same subject matter and for the same cause of action. This is a
sound public policy to avoid possible conflicting judgments, for the sake of the
stability of the rights and status of persons. (Sherwill Development Corportion v.
Sitio Sao. Nino Residents Association, Inc, 461 SCRA 517 [2005]
Lis pendenia or auter action pendant is the pendency of another action
between the same parties for the cause cause.(Buan v. Lopez, 145 SCRA 34 [l986]
Q. Distinguish notice lis pendens and Litis pendentia?

115
A. . A notice lis pendens is an announcement to the whole world that a particular
real property is jn litigation, serving as a warning that one who acquires an
interest over said property does so at his own risk, or that he gambles on the result
of the litigation over the said property (Cunanan v. Jumping Jap Trading
Corporation, 586 SCRA 620 [2009]); whereas, in lis pendentia, the theory behind
is that a party is not allowed to vex another more than once regarding the same
subject matter and for the same cause of action. Lis pendentia is a ground to move
for the dismissal of a civil case wherein another action is pending between the
same parties for the same cause of action, such that the second action becomes
unnecessary and vexatious. (Villarica Pawnshop, Inc. v. Gernale, 582 SCRA 67
[2009]
Q. What is the purpose of a notice lis pendens?
A. When duly filed a notice lis pendens charges all strangers with notice of the
particular litigation referred o therein and, therefore, any right they may thereafter
acquire over the property is subject to the eventuality of the suit.. (Cunanan v.
Jumping Jap Trading Corporation, 586 SCRA 620 [2009]
Q.What is the rationale behind a notice lis pendens?
A. Notice of lis pendens is founded upon public policy and necessity, the purpose
of which is to keep the properties in litigation within the power of the court until
the litigation is terminated and to prevent the defeat of the judgment or decree by
subsequent alienation.(Eduardo Fernandez, et al., v.Court of Appeals, 343 SCRA
184 [2000];
Cunanan v.Jamping Jap Trading Corporation, 586 SCRA 620
[2009\]
Q. When may a notice of lis pendens be availed of?
A. A notice lis pendens may be availed of as follows:
(1) An action to recover possession of real estate;
(2) An action to partition
(3) Any other court proceedingsthat directly affectthe title to the land dor
building thereon or he use orthe occupation thereof;
(4) In suits seeking to establisgh a right to, r an equitable estate or
interest in.\, a specific real property or to enforce a lien, a charge or an
encumbrance against it. (Altanlic Erectors, Inc. v. Herbal Case Realty Corp. 399
SCR 409 [2003]; Lu v. Lu v.Ym.. Sr., 595 SCRA 79 [2009]
A notice lis pendens is availed of mainly in real actions.(Lu v. Lu jYm..
Sr., 595 SCRA 79 [2009]
Q. In what action is notice lis pendens available and to whom?
A. It is only available in actions affecting title or possession of real property and
may be filed by the plaintiff at the time of the filing of the complaint or by the

116
defendant at the time of the filing of answer, he he claims affirmative relief
thereon, or at any time afterwards. (Section 14, Rule 13)
Q. What is the effect of the filing of a notice of lis pendens?
A. The filing of a notice of lis pendens charges all strangers with a notice of the
particular litigation refereed to therein and, therefore, any right they may
thereafter acquire on the property is subject to the eventuality of the suit. (Section
14, Rule 13; Laroza v. Guia, 134 SCRA 341 [l985]; Cunanan v. Jumping Jap
Trading Corporation, 586 SCRa 620 [2009];
Q. Where should a notice of lis pendens be filed?
A. The notice should be filed with the Registry of Deeds of the City or Province
where the property is situated and shall contain the names of the parties, the
object of the action or defense and a description of the property affected thereby.
(Section 13, Rule 14)
Q. May the notice be cancelled subsequently?
A. Yes, the notice of lis pendens may be cancelled only upon order of the court,
after proper showing that the notice is for the purpose of molesting the adverse
party or that it is not necessary to protect the rights of the party who caused it to
be recorded. (Section 13, Rule 14)
Q. When may a notice of lis pendens duly annotated in the title be cancelled?
A. It may be canceled only upon order of the court, after proper showing that the
notice is for the purpose of molesting the adverse party, or that it is not necessary
to protect the rights of he party who caused it to be recorded. (Section 14, Rule
13)
Q. When is an annotation of notice lis pendens in the titles to properties
improper?
A. Annotation of notice lis pendens on titles to properties is not proper where the
proceedings instituted are actions in personam. (Atlantic Erectors, Inc. v. Herbal
Cove Realty Corporation, 399 SCRA 409 [20030

Summons
(Rule 14)

117

Q. Define Summons.
A. Summons is a writ by which the defendant is notified of the action brought
against him or her. ( St. Aviation Services Co. Pte., Ltd. v. Grand International
Airways, Inc., 505 SCRA 30 [2006] Sanci Philippines, Inc. v. Mogol, 592 SCRA
652 [2009] )
Summons is a writ or a written process issued and served upon the
defendant in a civil action for the purpose of securing his appearance therein.
(Ballentines Law Dictionary, 2nd Ed., p. 1250)
Q. What is the purpose of Summons?
A. The service of Summons enables the trial court to acquire jurisdiction over the
person of the defendant or defendants. ( Echavarria v. Parsons Hardware, 51 Phil.
980; ( St. Aviation Services Co. Pte., Ltd. v. Grand International Airways, Inc.,
505 SCRA 30 [2006]
Notes and Casses
When the defendant does not voluntarily submit his person to the courts
jurisdiction, or there is no valid service of summons upon the defendant, any
judgment of the court rendered without having acquired valid jurisdiction over the
person of the defendant , is null and void. (Ma. Imelda M. Manotoc v.Court of
Appeals, 446 SCRA 673 [2005] The disputable presumption that an official duty
has been regularly performed will not apply where it is patent that the sheriffs or
servers return is defective or improper.Heirs of Mamerto Manguiat v. Court of
Appeals, 562 SCRA 422 [2008]
Q. What is the effect of absence of Summons?
A. In the absence of service of Summons, and unless the defendant waives such
defect by his voluntary appearance in court, any judgment rendered in regard to
such defendant is null and void. (Government v. Botor, 69 Phil. 130) The
proceedings of the court which hears and decide a case without summons having
been duly served upon the provided by Sections 6 or 7, of Rule 14are null and
void. (Ma. Imeda M. Manotoc v. Court of Ap0eals, 592 SCRA 652 [2009]
Q.. What shall the Summons contain?
A. The following:
1. The name of the court;
2. The names of the parties to the action;
3. A direction that the defendant answer within the time fixed by the
Rules; and

118
4. A notice that unless the defendant so answers, plaintiff will take
judgment by default and may be granted the relief applied for. (Section 2, Rule
14)
Q. Who issues the Summons; when is it issued; and to whom it is issued, and
what accompany the Summons; and by whom served?
A. Summons is issued and signed by the clerk of court where the complaint is
filed. It is issued after the complaint is filed and the filing fees duly paid. The
summons and a copy of the complaint shall be served to the defendant or
defendants sued in the complaint, which summons and complaint shall be served
by the sheriff, or his deputy, or any officer of the court or any suitable person
authorized by the court issuing the summons. (Sections 1 and 2,and 3 Rule 14)
Q. What is the duty of the sheriff or the court officer tasked to ser4ve the
summons?
A. (1) When the service has been accomplished, the server shall, within five (5)
days therefrom, serve a copy of the return, personally or by registered mail, to the
plaintiffs counsel, and shall return the summons to the clerk who issued it,
accomplished by proof of service. (Section 4, Rule 14)
(2) If summons is returned without being served on any or all of the
defendants, the service shall also serve a copy of the return on the plaintiff/s
counsel,, stating the reasons for the failure of service, within five (5) days
therefrom. In such a case, or if the summons has been lost, the clerk, on demand
of the plaintiff, may issue an alias summons. (Section 5, Rule 14)

.
Q. A civil case is filed by Anna against Caiphas. Summons was issued without
a copy of the complaint attached. What should the defendant do?
A. The defendant who received the Summons without the Complaint attached to
the Summons, must nevertheless appear before the trial court and apprise the
court of the defect and challenge the jurisdiction of the court over his person. But
if the defendant does not challenge the service and is otherwise informed of the
cause of action against him, the defect is deemed waived.(De Castro v. Cebu
Portland Cement Co., 71 Phil. 479)
Q. What is the effect of the appearance of a defendant in a civil action where
summons was issued but not yet served to him?

119
A. The voluntary appearance of the defendant is equivalent to service of
summons.(David v. Gutierrez, 577 SCRA 357 [2009]
Q.What are the modes of service of summons?
A. The modes of service of summons are: (1) personal service under Section 6,
Rule 14; (2) Substituted service under Secvtion 7, Rule 14; abd (3) service by
publication under Sections 14, 15 and 16, Rule 14.
Q. To whom should summons be personally served if defendant is a natural
person?
A. Personal Service of summons should be made on the defendant himself,
Summons to the defendant is accomplished upon being handed the summons and
a copy of the complaint by the sheriff, or his deputy, or any court officer, or for
justifiable reason by any suitable person authorized by the court issuing the
summons. (Section 6, Rule 14, Rules of Court; Ma. Imelda M. Manotoc v Court
of Appeals, 499 SCRA 21 [2006]
Q. How is personal service of summons effected?
A. It is effected by (1) handing a copy of the summons and a copy of the
complaint to the defendant in person or (2) if he refuses to receive and sign for it,
by tendering it to him (Section 6, Rule 14)
Q. When is substituted service of summons proper?
A. If, for justifiable cause the defendant cannot be personally served with
summons within a reasonable time, then substituted service of summons may be
done. (Section 7, Rule 14)
Q. How is substituted service of summons effected?
A. Substituted service of summons may be effected by (1) leaving a copies of the
summons at the defendants residence and with some person of suitable age and
discretion then residing therein; or (2) by leaving the copies at defendants office
or regular place of business with some competent person in charge thereof.
(Section 7, Rule 14; (Potenciano II v. Barnes, 562 SCRA 483 [2008]
Q. How is summons served upon an association without juridical
personality?
/a, When persons associated in an entity without a juridical personality are sued
under the name by which they are generally or commonly known, service of
summons upon the defendants by serving one of them, or upon the person in

120
charge of the office or place of business maintained in such name. (Section 8,
Rule 14)
Q. Kapit Bahay Association has 100 duly registered and active members It
has a president, Marco Politoc, and who regularly hold office at 123, Lopez,
Bldg. Session Road Bagui. Ten (10) of them gave written notice to severe
their memberships and tendered their written resignations effective
immediately. Three months thereafter the association was sued in a civil suit
and summons was served upon Marco Politico, President of the association.
What is the effect of the summons upon the ten (10) ex-members of the
association?
A. The summons served to the President of the Kapit Bahay Association will not
legally affect or prejudice the ten (10 ) ex-members of the association.
The service of summons upon the president of the association shall be
effective upon all the bona fide members of the association, but is not legally
effective against the ten (10) ex members whose memberships were severed
before the action was filed. (Last sentence of Section 8, Rule 14)
Q, X filed a complaint in the RTC against Y for sum of money. The Sheriff
was given the Summons and copy of the complaint to be served to Y. The
Sheriff submitted a Return. X filed a motion to declare Y in default. Y. filed
a motion to dismiss the complaint on the sole ground that the summons was
wrongfully served, hence, the court has not acquired jurisdiction over his
person. Rule on the motions.
A. The motion to declare Y in default is denied. Technically, since no order of
default was yet issued by the court, Y was not yet in default and considering that
Y filed a motion to dismiss on the ground that the court has not yet acquired
jurisdiction over the person of Y.
The motion to dismiss on the sole ground that the summons was
wrongfully or improperly served is denied. (Philippine American Life & General
Insurance Compony v. Brevqa, 442 SCRA 217 [2004] The clerk of court is
directed to issue an alias summons to be served to the defendant in accordance
with law. Prudence dictates that it is far better to issue and serve an alias summons
than to grant outright the motion to dismiss. Trial courts should be cautious
before dismissing complaints on the sole ground of improper service of summons
considering that it is well within its discretion to order the issuance and service of
alias summons to be served in accordance with the rules on summons.
(Anunciacion v. Bocanegra, 594 SCRA 318 [2009]
Q. To whom summons be served if the defendant is a domestic juridical
entity?

121
A. Summons to domestic private juridical entity should be served upon the
president, managing partner, corporate secretary, treasurer, or in-house counsel.
(Section 11, Rule 14)
Notes and Cases
This rule is restricted, limited and exclusive enumeration of the officers
authorized to receive summons upon a domestic private juridical entity. The
statutory construction rule expressio unios est exclusio alterius applies. Service
of summons to any person than those named in the rule is therefore not valid.
(Paramount Insurance Corp. v. A.C. Ordonez Corporatio, 561 SCRA 327 [2008]
Notes and Cases
Where the defendant is the Republic of the Philippines, service of
summons must be made on the Solicitor General. The Bureau of
Telecommunications is an agency attached to the Department of Transportation
and Communications and is indisputably part of the Republic. (Heirs of Mamerto
Manguiat v. Court of Appeals, 562 SCRA 422 [2008] Hence, if the Bueau of
telecommunicaions is sued, the summons should be served to the Solicitor
General.
Q. When an additional defendant is included in the action, is it nece3ssary
that Summons be served him?
A. When an additional defendant is included in the action, Summons must be
served upon him for the purpose of enabling the court to acquire jurisdiction over
his person. Thus, said defendant must be served with Summons together with a
copy of the Complaint ( amended by impleading additional defendant) wherein
he is included as a party defendant.
Q. How should summons be served where the action is strictly personal?
A. Ideally, since the case is str4ictly a personal action, personal service on the
defendant is the preferred mode of service of the summons. . The essence of
personal service is the handing or tendering of a copy of the summons to the
defendant himself, wherever he may e bound, that is, whatever he may be ,
provided he is in the Philippines. (Sancio Philippines, Inc. v. Mogol, 592 SCRA
652 [2009]
Notes and Cases
Where the civil action is in personam, one that seeks to impose some
responsibility or liability directly upon the person of he defendant through the
judgment of a cour,. (Domagas v. Jensen, 446 SCRA 663 [2005] and the

122
defendant in the Philippines,, the service of summons may be made through
personal service or substituted service in the manner provided for in Sections 6
and 7, Rules l14 of the Rules of Court. (Sancio Philippines, Inc. v. 592 SCRA 652
[2009]
The settled rule is that summons upon the defendant or respondent must
be served by handing a copy thereof to him in person or, if he refuses to receive
it, by tendering it to him. In this way, service of summons by personal delivery is
valid..
Q. In the Sancio case, the defendant spouses content that Section 6 should not
be singled out without construing the same with Section 7, both of the same
Rule 14. They argue that in a civil case, summons must be served upon the
defendants personally at the designated place alleged in the complaint. If the
defendants spouses refuse to receive and sign the summons, then the process
server must tender the same to them by leaving a copy at the residence of the
defendants. If the summons cannot be served in person because of he
absence of the defendants at the address stated, then the same can be served
by (1) leaving copies of the summons at the defendants residence with some
person personal of suitable age and discretion residing therein or (2) leaving
the copies at defendants office or regular place of business with some
competent person in charge thereof. Is this contention tenable?
A. No, such arguments will not hold water. Section 6 nd 7 cannot automatically
be construced to apply simultaneously Said provisions do not provide for
alternative modes of service of summons, which can either be resorted to on the
mere basis of convenience to the parties. As these rules stand, service of summons
in the persons of the defendants is generally preferred over sub substituted
service.(Robinson v. Miralles, 510 SCRA 678 [2006] Substituted service
derogates the regular method of personal service. It is an extraordinary method,
since it seeks to bind the respondent or the defendant to the consequences of a
suit, even though notice of such action is served not upon him but upon another
whom the law could only presume would notify him of the pending proceedings.
(Sandoval II v. House of Representatives Electoral Trubunal, 383 SCRA 770
[2002]
Q. If summons cannot be served by personal service, what is the alternative
mode of serv ice of summons?
A. The alternative mode of service of summons is by substituted service. If
defendant, for excusable reasons, cannot be servedc with the summons within a
reasonable period, then the sub substituted service of summons is permitted.
Since this mode of service is in derogation of the usual method of service, the
server must faithfully and strictly comply with the prescribed requirements and
circumstances authorized by the rules. (Ma. Imelda M. Manotoc v. Hon. Court of
Appeals, 499 SCRA 21 [20o8];

123
Case: Collado-Lacorte v. Rabena, 595 SCRA 15 [2009] An administrative
complaint was filed against Ernesto R. Rabena, Process Service for improper
service of summons in a civil case in the MTCC. It appears that summons upon
the defendants in said civil case were served, through substituted service, upon
Elvira Abero and Aida Rabena, respectively. The service of summons was made
without stating in the Return (1) the facts and circumstances surrounding the
failed personal servi ce; (2) date and time of the attempts on ersonal service; (3)
the inquidies made to locate the defendants; (4) the names of the occupants of the
defendants alleged residence; (4) and all other acts done, though futile to serve
the summons on defendants. Issue: Whether or not the substituted service of
summons upon the defendant was proper and valid. Held: The substituted
service on the defendants was improper, as it failed to comply with the
requirements prescribed by the Rules of court, and deviated from the ruling in
Ma. Imelda M. Manotoc v. Court of Appeals, 499 SCRA 21 [20o8]; Accordingly,
the trial court did not acquire jurisdiction over the persons of the defendants.
Case: Sancio Philippines, Inc. v. Mofol, 592 SCRA 652 [2009] Saqncio a
domestic corporation filed a complaint for sum of money and damages against
spouses Mogol in the MeTC.Sancio at his request that summons and a copy of the
complaint on the Mogols who were in the premises of the trial court waiting for
the hearing of a criminal case filed by Sansio for violation of BP Blg. 22 against
Alica Mogo. Upon being informed of the3 summons and the complaint, the
spouses Motol referred the same to their counsel who took the summons and
complaint and return tthem to the process service telling the latter that the
summons be served at the given address stted in the summons and not any othger
place. As the process server could not convince the spouses Mogol tossing for the
summond and complaint, he left the court premises. Later, the process servier
issued a Return and decalred that: xxx the undersigned tried to serve a copy of
he summns issued by the court xxx together with a copy of the complaint upon
defendant Leodegario Mogol and Alicia Mogol at MeTC Branch 24 courtoom as
requested by the Plaintiff counsel, but failied for the reason that they refused to
receive with no valid reason at all? Sancio filed a motion to declare the
defendants spouse Mogol. Sancio contented that the copy of the compliant was
already served upon the Mogos at the court premises which they refused to accept
for no valid reason at all. The spouses Mogol through special appearance filed
jtheir opposition to the motion arguing Section 3, Rule 6 =of the Rules of C ourt
requires that the summons and copy of the complaint be served to the m at their
given address as written jin the summons and there they be be handed the said
summons and copy of the complaint. The trial court granted the motion to declare
them in default. The Mogols filed a motion for reconsideration but was denied.
The spouses Mogol filed a petition for certiorari, prohibition and injunction with
the RTC.Essenially, the spouses Mogol contended that there was no valid service
of summons which was binding on the court below who did not acquire jurisdic
tion over their persons. The RTC dismissed the Petition. Spouses Mogol filed a
notice of Appeal to the CA. The CA ruled that there was no valid service of
summons upon the spouses Mogol and the court of original did not acquire

124
jurisdiction over their persons. It is clear that the Return stated that the summons
was unserved to the spouses. The CA the appeal was granted, the order of the
RTC set aside and reversed, the ordeer of the MeTC declared null and void.
Issue: Whether or not there was proper service of summons upon the foreoing
facts. Held: The summons and copy of the complaint were duly served on the
spouses Mogol. Personal service of summons upon the spouses Mogol was valid.
The process server presented the summons and the copy of the complaint to
respondent spouses at the courtroom of the MeTc. The spouses immediately
referred the matter to their counsel, who was present with them in said courtroom
At the express direction of his clients, the counsel took the summons and the copy
of the complaint, read the same, and thereby informed himself of the contents of
the said documents. At this point, the act of counsel of spouses Mogol of
receiving jthe summons and the copy of the complaint already constituted a
receipt on the part of his clients, for the same was done with the behest and
consent. Already accomplished was the operative act of handling a copy of the
summons to respondent spouses.. Thus jurisdiction of the court over the persons
of the sposue3s was already acquired.
The instruction of counsel for spouses Mogol not to obtain a copy of the
summons and the copy of the complaint, under the lame excuse that the same
must be served only in the address stat3ed therein, was a gross mistake. Section 6,
Rule 14 does not require that the service of summons on the defendant in person
must be effected only at the latters residence, This excuse fails. The provision is
lcear that, whenever practicable, summons shall e served by handing a c opy
threof to the defendant; or if he refuses to receive and sin for it, by tendering it to
him. The service of the copy of the summons and the complaint inside the
courtroom was most practical act under the circumstances , and the process
server need not waid for respondent spouses to reach their given address, which is
Daisy St.,Employee Village, Lucena City. Adjudication: The petition for review
on certiorari uner Rule 45 was granted. The decision and resolution of the CA
reserved and set aside, The order of the RTC is affirmed.
Notes and Cases
Personal service of summons most effectively ensures that the notice
desired under the constitutional requirement of due process is accomplished.
(Sancio Philippines Inc. v. Mogol, 592 SCRA 652 [2009]
Section 8, Rule 14 is the rule on substituted service of summons. (1) if
the defendant cannot be fersonally served within a reasonable time as prescribed
in Section 7 (personal service on defendant) service nat be effected (a) by leading
copies of the summons at the defendants residence with some persons of suitable
age and discretion than residing therein, or (b) by leaving the copies at
defendants office e or regular place of busisness with some competent persons in
charge thereof.

125
Q. Suppose the defendant cannot be served promptly or there is impossibility
of prompt service, what are the requirements to be observed by the server?
A. The server is given a reasonable time to serve the summons to the
defendant in person. Reasonable time as used in this rule means so much time
as is necessary under the circumstances for a reasonably prudent and diligent
man to do, conveniently, what the contract or duty requires that should be done,
having regard for the rights and possibility of loss, if any, to the other party.
When the server is asked to submit his Return of the summons and the later
submits the return, the validity of the summons lapses. If the return shows that
the summons was not served, the plaintiff may ask for the issuance of an alias
summons. (Collado-Lacorte v. Rabena, 595 SCRA 15 [2009]
Q. For the purpose of personal service of summons to the defendant, what is
a reasonable time?
A. For personal service of summons, to the plaintiff, reasonable time means no
more than seven days since the expeditious processing of a complaint is what the
plaintiff wants. To the sheriff or process server, reasonable time means 15 to 30
days because at the3 end of the month, it is a practice for the branch clerk of court
to require the sheriff or process server to submit a Return of the summons
assigned to the sheriff or process server for service. The Sheriffs Return provides
data to the Clerk of Court, which the clerk uses in the Monthly Report of Cases to
be submitted to the Office of the Court Administrator within the first then (10)
days of the succeeding month Thus, one month from the issuance of summons can
be considered reasonable time with regard to personal service of the summons
to the defendant. (Ma Imelda M. Manotoc v. Court of Appeals, supra; ColladoLacarte v. Rabena, supra)
Q. Suppose the sheriff or process server cannot service the summons
promptly or there is impossibility of prompt service of the summons upon the
defendant, how should the summons be served?
A. For a sheriff or process server to make a substituted service of summons to
the defendant, the following must be complied with and obler4sed:
(1) There must be several attempts by the sheriff or process server to
personally serve the summons within a reasonable time (one month) which
eventually resulted in failure to prove impossibility of prompt service. Several
attempts means at least three (3) tries, preferably on at least two different dates;
(b) the sheriff or process server must cite in his Retgurn why such attempts wer
unsuccessful. It is only then that impossibility of service can be confirmed or
accepted. ( Ma. Imelda M. Manotoc v. Court of Appeals, supra Robinson v.
Miralles, 510 SCRA 678 [2006]) It is important that summons, among other court
processes be served expeditiously. (Zenauda Musni v. Ernesto G. Morales, 315
SCRA 85 [l999];

126
Q. Should summons and copy of the complaint be served at the address of
the defendant as alleged in the complaint and the summons?
A. No. The service of summons to be done personally does not means that
service of summons is possible only at the defendants actual residence. Since the
rule is silent as to the place of service, personal service of summons may be
served anywhere or at any place where the defendant may be found in the
Philippines. It is enough that the defendant is handed a copy of the summons in
person by anyone authorized by law. This is distinct from the service of summons
under Section7, Rule 14. (Lazaro v. rural Bank of Francisco Balagtas (Bulacan),
Inc., 409 SCRA 186 [2003] .
Q. For a substituted service to be valid, what should cited by the Sheriff or
process servi e in his Return of the Summons?
A. The following data must appear in the Sheriffs Return:
(1) Facts and circ umstances surrounding the atteampted personal service;
(2) The efforts made to find the defendant and the reasonas behind the
failure must be clearly narrated in detail;
(3) The date and time of the attempts on personal service, the inquiries
mad to locate the defendant;
(4) the names of the occupants of the alleged residence or house of
defendant and all other acts done, though futile, to serve the summons. (See: The
Handbook for Sheriffs prepared by the Philippine Judicial Academy and Adm.
Circular No. 5, ated November 9, l989; Ma Imelda M. Manotoc v. Court of
Appeals, supra; Collado-Lacorte v. Rabena, supra
Q. Is Summons required to serve an amended Complaint?

Q. What are the requisites for a substituted service of summons?

A. They are: (1) the defendant cannot be served personally within a reasonable
time; and (2) the impossibility of prompt service should be shown by stating the
efforts made to find the defendant personally and the fact that such efforts failed,

127
and this statement should be made in the proof of service. Giving a copy of the
summons to a messenger of a law firm cannot in any way be construed as
equivalent to service of summons on the defendant. (Potenciano II v. Barnes,
supra)
Service of summons on the defendant himself is the means by which the
court acquires jurisdiction over the defendant. It serves as a notice to the
defendant that an action has been commenced against him, thereby giving him
opportunity to be heard on the claim made against him. (ibid.)
Where there was no service of summons on the defendant, the trial court
never acquired jurisdiction over him and the trial courts order of default and the
judgment by default are void. (ibid.)
Summons must be served upon the party for a valid judgment to be
rendered against him. The disputable presumption that an official duty has been
regularly performed will not apply where it is patent from the sheriffs or servers
return that it is defective. (Heirs of Mamerto Manguiat v. Court of Appeals, 562
SCRA 422 [2008]
Q. How should summons be served where the action is strictly personal?
A. Ideally, since the case is str4ictly a personal action, personal service on the
defendant is the preferred mode of service of the summons. . The server delivers
the summons and a copy of the complaint or petition to the defendant in person.
Q. If summons cannot be served by personal service, what is the alternative
mode of serv ice of summons?
A. The alternative mode of service of summons is by substituted service. If
defendant, for excusable reasons, cannot be servedc with the summons within a
reasonable period, then the sub substituted service of summons is permitted.
Since this mode of service is in derogation of the usual method of service, the
server must faithfully and strictly comply with the prescribed requirements and
circumstances authorized by the rules. (Ma. Imelda M. Manotoc v. Hon. Court of
Appeals, 499 SCRA 21 [20o8];
Case: Collado-Lacorte v. Rabena, 595 SCRA 15 [2009] An administrative
complaint was filed against Ernesto R. Rabena, Process Service for improper
service of summons in a civil case in the MTCC. It appears that summons upon
the defendants in said civil case were served, through substituted service, upon
Elvira Abero and Aida Rabena, respectively. The service of summons was made
without stating in the Return (1) the facts and circumstances surrounding the
failed personal servi ce; (2) date and time of the attempts on ersonal service; (3)
the inquidies made to locate the defendants; (4) the names of the occupants of the
defendants alleged residence; (4) and all other acts done, though futile to serve
the summons on defendants. Issue: Whether or not the substituted service of
summons upon the defendant was proper and valid. Held: The substituted

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service on the defendants was improper, as it failed to comply with the
requirements prescribed by the Rules of court, and deviated from the ruling in
Ma. Imelda M. Manotoc v. Court of Appeals, 499 SCRA 21 [20o8]; Accordingly,
the trial court did not acquire jurisdiction over the persons of the defendants.
Notes and Cases
Section 8, Rule 14 is the rule on substituted service of summons. (1) if the
defndcant cannot be served (personally) within a reasonable time as prescribed in
Section 7 (personal service on defendant) service nat be effected *a) by leading
copies of the summons at the defendants residence with some persons of suitable
age and discretion than residing therein, or (b) by leaving the copies at
defendants ofi e or regular place of busisness with some competent persons in
charge thereof.
Q. Suppose the defendant cannot be served promptly or there is impossibility
of promt service, what are the requirements to be observed by the server?
A. The rule gives the server a reasonable time to serve the summons to the
defendant in person. Reasonable time as used in this rule means so much time
as is necessary under the circumstances for a reasonably prudent and diligent
man to do, conveniently, what the contract or duty requires that should be done,
having regard for the rights and possibility of loss, if any to the other party. When
the server is asked to submit his Return of the summons and the later submits the
return, the validity of the summons lapses. If the return shows that the summons
was not served, the plaintiff may ask for the issuance of an alias summons.
(Collado-Lacorte v. Rabena, 595 SCRA 15 [2009]
Q. For the purpose of personal service of summons to the defendant, what is
a reasonable time?
A. For personal service of summons, to the plaintiff, reasonable time means no
more than seven days since the expeditious processing of a complaint is what the
plaintiff wants. To the sheriff or process server, reasonable time means 15 to 30
days because at the3 end of the month, it is a practice for the branch clerk of court
to require the sheriff or process server to submit a Return of the summons
assigned to the sheriff or process server for service. The Sheriffs Return provides
data to the Clerk of Court, which the clerk uses in the Monthly Report of Cases to
be submitted to the Office of the Court Administrator within the first then (10)
days of the succeeding month Thus, one month from the issuance of summons can
be considered reasonable time with regard to personal service of the summons
to the defendant. (Ma Imelda M. Manotoc v. Court of Appeals, supra; ColladoLacarte v. Rabena, supra)

129
Q. Suppose the sheriff or process server cannot service the summons
promptly or there is impossibility of prompt service of the summons upon the
defendant, how should the summons be served?
A. For a sheriff or process to make a substituted service of summons to the
defendant, the following must be complied with and obler4sed:
(1) There must be several attempts by the sheriff or process server to
personally serve the summons within a reasonable time (one month) which
eventually resulted in failure to prove impossibility of prompt service. Several
attempts means at least three (3) tries, preferra bly on at least two different
dataes; (b) the sheriff or process server must cite in his Retgurn why such
attempts wer unsuccessful. It is only then that impossibility of service can be
confirmed or accepted. ( Ma. Imelda M. Manotoc v. Court of Appeals, supra) It
is important that summons, among other court processes be served expeditiously.
(Zenauda Musni v. Ernesto G. Morales, 315 SCRA 85 [l999]
Q. For a substituted service to be valid, what should cited by the Sheriff or
process server in his Return of the Summons?
A. The following data must appear in the Sheriffs Return:
(1) Facts and circ umstances surrounding the atteampted personal service;
(2) The efforts made to find the defendant and the reasonas behind the
failure must be clearly narrated in detail;
(3) The date and time of the attempts on personal service, the inquiries
mad to locate the defendant;
(4) the names of the occupants of the alleged residence or house of
defendant and all other acts done, though futile, to serve the summons. (See: The
Handbook for Sheriffs prepared by the Philippine Judicial Academy and Adm.
Circular No. 5, ated November 9, l989; Ma Imelda M. Manotoc v. Court of
Appeals, supra; Collado-Lacorte v. Rabena, supra)
Q. A personal civil action was filed by X against Y. Summons and copy of the
complaint were given to the sheriff to be served on Y. The Sheriff after
attempts to serve the summons to Y failed. In his last attempt, again Y could
not be found, the Sheriff handed to M, a twelve year old daughter of Y, who
resides with Y the summons and copy of the3 complaint. The Sheriff
submitted his Return stating that he handed Summons and a copy of the
complaint to M. Was the substituted service of summons valid? Reason:
A. No. The substituted serve of summons was improper. To be a valid, there
should be a report indicating that M who received the summons and a c opy of the
complaint in Ys behalf was one with whom the defendant had a relation of
confidence ensuring that the latter would actually receive the summons. M, a 12yearld girl though the daughter of Y is not possessed with sufficient age and
discretion as required by the Rules. (Orion Surety Corporation v. Kalfam

130
Enterprises, Inc., 522 SCRA 617 [2007] See: Ma Imelda M. Manotoc v. Court of
Appeals, supra)
Pascaul v. Pascual, 607 SCRA 288 [2009]
Q. When is summons by publication be availed of by the plaintiff?
A. In any action where the defendant is designated as an unknown owrner, or the
like, or when ever his whereabouts are unknown and cannot be ascertained by
diligent inquiry, service may , by leave of court, e effected by publication in a
newspaper of general circulation and in such places and for such times as the
court may order. (Santos, Jr. v. PNOC Exploration Corporation, 566 SCRA 272
[2008]
Q. How is summons by publication proved?
A. Service of summons by publication is proved by the affidavit of the printer, his
foreman or principal clerk, or of the editor, business or adverstising manage of the
newspaper which published the summons. (Ibid)
Q. How is summons by publication complimented?
A. Service of summons by publication is complemented by service of summons
by registered mail to the defendants last known address. This complementary
service is evidenced by an affidavit showing the deposit of a copy of the summns
and order for publication in the post office, postage prepared, didrected to the
defendant by registered mail to his last known address. (ibid)
Q. For purposes of summons, what is meant by newspaper of general
circulation?
A. To be a newspaper of general circulation, it is enough that it is published for
the dissemination of local news and general information, that it has a bona fide
subscription list of paying subscribers, and that it is published at regular intervals.
That the newspaper must also be appealing to the public intere3st. (Metropolitan
Bank and Trust Company, Inc. v. Penafel, 580 SCRA 352 [2009]
Q. What is the effect of a summons served upon a branch manager of a
corporation? Can it be cured?
A Such service of summons is defective and will not bind the corporation. A
branch manager of the corporation is not included in the enumeration provided
by the Rule of persons upon whom service of summons can be validly made in
behalf of the corporation. Such a defect of service of the original summons may,
however, be cured by the issuance and the proper service of new summons upon

131
the corporation. (Bank of the Philippine Islands v. Santiago, 519 SCRA 389
[2007]
Motions
(Rule 15)
(A) In General
Q. Define motion.
A. A motion is an application for relief other than by a pleading. (Section l)
Notes and Cases
A motion may be oral or written. (Section 2) An oral motion is made in
open court. For example: A motion for continuance of hearing addressed to the
trial court during trial. . On the other hand, a written motion is filed and submitted
ex parte or with notice and hearing. A motion for extension of time to file Answer,
for instance, may be filed ex parte, which may not contain a notice of hearing,
but which a copy thereof should be served upon the adverse party. This motion is
a non-litigable or non-litigable motion because it does not prejudice the adverse
party and the court may immediately act on it. (Primetown Property Group, Inc.
v. Juntilla, 459 SCRA 683 [2005]
On the other hand, a motion to dismiss on the ground that the court lacks
jurisdiction over the subject matter must contain a notice and be set for hearing. .
(Section 5 and 6) This kind of a motion is a litigable motion which must, to be
valid, contain a notice setting the time and date for hearing on Motion Day
(Section 7), that is, on Friday afternoons, or if Friday is a non-working day, in the
afternoon of the next wording day. Section 16, BP Blg No. 129 as amended,
provides that jall motions, except those requiring immediate action, shall be
heard in the after of every Friday, unless be held on the afternoon of the next
succeeding business day. The Supreme Court may, for good reasons, fix a
different motion day in specified areas. Motion for new trial, motion for
reconsideration of a judgment, or motion to intervene among others, are litigated
motions.
Q. Give the requisites of a valid motion.
A. They are:
(1) A motion must be in writing, except motions made in open court or in
the course of a hearing or trial. (Section 2)
(2) A written motion should state the order sought and the grounds on
which it is based. and if required by the Rules or necessary to prove facts alleged
therein, shall be accompanied by supporting affidavits and other papers; (Section
3)

132
(3) A written motion shall be set for hearing by the applicant, except when
the motion may be acted upon without prejudicing the rights of the adverse party.
(Section 4)
(4) A written motion required to be heard must contain a notice of the
hearing thereof which shall be served at least three (3) days before the date set for
hearing, and furnished to all the parties concerned; ; the notice shall specify the
time and date of the hearing which must not be later than ten (10)days after the
filing of the motion (Section 5)
(5) A written motion set for hearing shall not be acted upon by the court
without proof of service of the notice thereof. (Section 6)
Notes and Cases
The general rule is that all written motions shall be set for hearing at least
three (3) days before the date of hearing.(Rustia v. Rivera, 508 SCRA 39 [2005]
The service of the notice should be made in a manner to ensure that a copy of the
motion is received by the adverse party at least three (3) days before the hearing.
Since the purpose of this rule is to avoid delay, service of a copy of the motion
may be done, as a rule, and whenever practicable, by personal delivery. (See:
Section 11, Rule 13) It is not intended for the benefit of the movant but for the
adverse party to give him the opportunity to be heard. (Jehan Shipping
Corporation v. National Food Authority,, 477 SCRA 781 [2005]
This 3-day notice rule is not absolute and it is subject to exceptions,
namely: (1) ex parte motions which the court may act upon without prejudicing
the rights of the adverse party; (2) motion mutually agreed upon by the parties to
be heard less than the 3-day notice rule; (3) when both parties jointly submit the
motion for resolution; (4) motion for summary judgment which must be served at
least ten (10) days before its hearing. (Section 3, Rule 35)
Q. A civil suit is pending trial between A and B. B would like to file a
counterclaim which matured after he filed his answer. How should B go
about filing said counterclaim? Explain briefly.
A. B should file a motion with leave of court to file his counterclaim, attaching
thereto a copy of his counterclaim. This motion must be with notice and hearing..
The rule states that a motion for leave to file a pleading accompanied by the
pleading sought to be admitted. (See: Section 9, Rule 15 in relation to Section 2,
Rule 6 and Section 9, Rule 11)
Notes and Cases
The above given answer is applicable to cross-claim or third-party
complaint, etc. because they a pleadings referred to in Section 9, Rule 15. It
applies to the filing of a supplemental pleading (Section 6, Rule 10, or motion to
file amended complaint or answer. (Sections 7and 8, rule 10)

133
A motion to cross-examine a witness is adversarial, it must contain a
notice and hearing. (Philippine Banking Corporation v. Court of Appeals, 419
SCRA 487 [2004] A motion for issuance of an order of demotion is likewise a
litigable motion hence must comply with the requirement of notice of time and
date to all parties concerned and hearing. (Alvarex v. Diaz, 424 SCRA 213
[2004] Motion for reconsideration of a final order or judgment must have notice
of time and date of hearing and served upon all the parties concerned, and must be
filed on time. (Philippine Long Distance Telephone Company v. Buna, 530 SCRA
444 [2007]
Q. A suit is pending trial between A and B. X, who is not a party to the suit,
has a legal interest in the subject matter of the suit. How should X be able to
participate in said suit to protect his interest?
A. X should file a motion with leave of court to intervene in the suit between A
and B, attaching thereto a copy of his complaint-in-intervention or answer-inintervention as the case may be. The motion must contain a notice to all parties
concerned (Alvarex v. Diaz, 424 SCRA 213 [2004], a mandatory requirement
(KKK Foundation, Inc. v. Calderon Bargas, 541 SCRA 432 [2007] ,and must be
heard as required by the Rules. (See: Section 4, 5 and 6, Rule 15 in conjunction
with Section 9, Rule 15 and relation to Sections 1, 2. 3, Rule 19)
Q. Suppose a litigable motion does not comply with the rule of notice, how
should it be treated?
A. A litigable motion that does not comply with the rule on notice should not be
accepted for filing and, if filed, is not entitled to judicial cognizance simply
because the requirement of notice and hearing was not complied with. (Sections
4,5 and 6, Rule 15; Republic v. Peralta, 404 SCRA 360 [2003]) Indeed, such a
motion without notice and hearing is pro forma and presents no question which
merits attention and consideration of the court. ( Bacelonia v. Court of Appeals,
397 SCRA 286 [2003]; Balagtas v. Sarmiento, Jr., 432 SCRA 343 [2004]; Jehan
Shipping Corporation v. National Food Authority, 477 S CFA 781 [2005] ;Victory
Liner, Inc. v. Malinias, 523 SCRA 279 [2007]
Q. What is the reason for the rule on notice and hearing of a litigated or
litigable motions?
A. Unless the movant sets the time and place of hearing the trial court would have
no way to determine whether that party agrees to or objects to the motion, and if
he objects, to hear him on his objection, since the Rules themselves do not fix any
period within which he may file his reply or opposition. In short, to give the
adverse party procedural due process. (See: Manila Ssurety and Fidelity Co., Inc.
v. Bath Construction and Company, 14 SCRA 435 [1965];
Notes and Cases

134

A party has a right to resist the relief sought in a litigable or litigated

motion and natural justice demand that his right be not affected without an
opportunity to be heard. Consequently, such a motion must have a notice and
hearing to be valid. (Sarmiento v. Zaraatan, 514 SCRA 246 [2007]
Q. Is there an exception to this rule?
A. Yes. Where a rigid application of the rule will result in a manifest failure or
miscarriage of justice, technicalities may be disregarded in order to resolve the
case. The Court allows a liberal construction of the rule where the interest of
substantial justice will be served and where the resolution of the motion is
addressed solely to the sound and judicious discretion of the court. (San Juan v.
Sandiganbayan, 561 SCRA 316 [2008]
Q. A, who is a defendant in a civil suit, received a copy of an adverse
judgment rendered by the trial court. A timely filed a motion to
reconsideration but did not contain a notice.. What is the effect on the
motion which contains no notice?
A. The motion without notice is a useless or a mere scrap of paper which the
clerk of court is not authorized to receive nor the trial court to act on it. Since it is
a motion for reconsideration, the running of the period of appeal is not tolled.
( Manila Surety & Fidelity Co., Inc. v. Bath Construction & Co., 14 SCRA 435
[1965]
Q. What is the effect of a litigated motion which direct the branch clerk of
court to submit the motion for resolution by the court upon receipt thereof?
A. Such a motion violates the requirement of notice and hearing set forth in
Section 4,5 and 6, of Rule 15, and is fatally defective. . As such it is deemed
useless piece of paper which is not entitled to b e action upon. It does snot affect
any reglementary period involved or the filing of said litigated motion. (Cledera,
et al . Sarmiento, et al., 39 SCRA 552 [1971]; Guitierrez v. Cabrera, 452 SCRA
512 [2005]; Land Bank of the Philippines v. Natividad, 458 SCRA 441 [2005]
Notes and Cases
A motion for reconsideration without a notice of hearing is fatally
defective. It cannot be cured by belated filing of notice of hearing. (Nation
Commercial Bank of Saudi Arabia v. Court of Appeals, 396 SCRA 541 [2003]
Such a motion does not toll the period of appeal.
Q. A civil complaint with pertinent annexes was filed by A against B. Before
filing a responsive pleading, B timely filed a motion to dismiss on two

135
grounds: (1) that the complaint lacks a cause of action and (2) assuming
arguendo that the complaint states a cause of action, still the venue was
improperly laid. The motion contains a defective notice because it did not
set the motion for hearing. If you were the trial court how will you resolve the
motion with defective notice? Reason.
A. There is no question that the motion contains a defective notice. But since I can
resolve the grounds presented upon the face of the complaint together with its
Annexes, I will entertain the motion but resolving it, I will direct the adverse
party A, to file his comment thereon. In this way, a liberal construction of the
rule on notice and hearing is permissible in the higher interest of justice. ( See:
Sun Uy Giok v. Matusa, 101 Phil. 727[1957];;Azajar v. Court of Appealsk, 145
SCRRA 333 [l986]
Q.Define omnibus motion.
A.An omnibus motion is one attacking a pleading, order, judgment, or proceeding
shall include all objections then available, and all objections not so included shall
be deemed waived.(Section 8, Rule 15)
Q. What are the grounds or objections under the Rules that even if not
alleged in an omnibus motion are not deemed waived?
A. They are: (1) Lack of jurisdiction of the court over the subject matter; (2)
there is a pending action between the same parties for the same cause; (3) the
action is barred by prior judgment or res judicata; (4) barred by statute of
limitations or prescription of action. Even if these grounds were not raised in an
omnibus motion or motion to dismiss , they are not deemed waived and they may
be raised at any time during trial upon a motion to dismiss. (Section 1, Rule 9) ;
Katon v, Palanca,,Jr.,437 SCRA 565 [2004]
Q. May a purchaser of titled property in a foreclosure proceedings file a
motion, during the redemption period, for the issuance of a writ of possession
of said property?
A. Yes, the motion may be ex parte under oath and it is the ministerial duty of
the court to issue the writ.. (Idolor v. Court of Appeals, 450 SCRA 396 [2005])
Q. May party to an action who filed a motion assume that it be granted by
the court?
A. No. a party-movant who filed a motion should never assume that the court
will grant it. Thus motions for postponements are granted only upon meritorious
grounds and no party has the right to assume that such motion would be granted.
(Heirs,of Tiburcio P. Ballesteros, Sr., v. Apiag, 471 SCRA 111 [2005]; R Trnasport

136
Corporation v. Philhino Sales Corporation, 494 SCRA 630 [2005] ;Memita v.
Masongsong, 523 SCRA 244]
(B) Motion to Dismiss
(Rule 16)
Q. Define a motion to dismiss.
A. It is a written motion usually filed by the defendant in an action seeking the
dismissal of the complaint on any of the grounds provided by the Rules. Said
motion must have a notice of the time and date of hearing, a copy thereof be
served to all parties concerned at least three days before the hearing. (See:
Section l and 2, Rule 16) .
Notes and Cases
A motion to dismiss is a tool accorded a defending party to raise
preliminary objections to the Complaint or any pleading asserting a claim against
him before he files his responsive pleading. .(Guirao v. Ver, 16 SCRA 638 [l966]
motion to dismiss is filed before a responsive pleading is filed, and it is
not a responsive pleading.
Q. What are the grounds for a motion to dismiss?
A. They are:
(1)
(2)
(3)
(4)
(5)

That the court has no jurisdiction over the person of the defending party;
That the court has not jurisdiction over the subject matter of the claim.
The venue is improperly laid;
The plaintiff has no legal capacity to sue;
That there is another action pending between the same parties for the same
cause;
(6) That the cause of action is barred by a prior judgment or by the statute of
limitation;
(7) That the pleading asserting the claim states no cause of action;
(8) That the claim or demand set forth in the plaintiffs pleading has been
paid, waived, abandoned, or otherwise extinguished;
(9) That the claim on which the action is founded is unenforceable under the
provisions of the statute of frauds, and
(10)
That a condition precedent for filing the claim has not been
complied with. (Section 1, Rule 16)
Q. May a trial court motu proprio dismiss a complaint? Explain.

137
A. Yes. Lack of jurisdiction over the subject matter is one of those grounds where
the court may dismiss a claim or a case at any time when it appears from the
pleadings or the evidence on record that any of those grounds exists, even if they
were not raised in the answer or in a motion to dismiss. (Geonzon vda de Barrera
v. Heirs of Vicente Legaspi, 565 SCRA 192 [2008]
Q. What are the grounds which must be alleged in a motion to dismiss
otherwise they are deemed waived?
A. They are:
(1) Lack of jurisdiction over the person of the defendant;
(2) That the venue is improperly laid;
(3) That a condition precedent for filing the claim has not been complied with
(4) The plaintiff has no legal capacity to sue..
Notes and Cases
A motion to dismiss on the ground that venue is improperly laid must be
filed before a responsive pleading or an answer is filed, otherwise the objection is
deemed waived.
Q. When does a plaintiff lack legal capacity to sue?
A. The plaintiff lacks legal capacity to sue (1) when he does not possess the
necessary qualification to appear at the trial, such as when the plaintiff is not in
the full exercise of his civil rights, and (2) when the plaintiff does not have the
character or representation which he claims, which is a matter of evidence.
(Recreation Amusement Association of the Philippines v. City of Manila, 100
Phil. 950)
The lack of legal capacity to sue refers to a disability of the plaintiff to be
a party as distinguished from lack of legal personality to sue which refers to the
plaintiff as not a real party in interest, in which case, a motion to dismiss jon the
ground that the complaint states no cause of action. (Casimiro v. Roque, 98 Phil.
880)
Q. What are the grounds which not raised in the motion to dismiss are not
deemed waived and may be raised during the trial?
A. They are
(1) The court lacks jurisdiction over the subject matter of the complaint;
(2) The cause of action is barred by a prior judgment or by statute of limitations;
(3) That the complaint states no cause of action;
Notes and Cases

138
A motion to dismiss on the ground that the court lacks jurisdiction over the
asubject matter may be raised before answer, or after answer is filed, or after
hearing had been commenced, or at any stage of the proceedings, even for the first
time on appeal, and even if not raised as a defense in the answer. (Ker & Co.,
Ltd.v. Court of Tax Appeals, Jan 31, l962) A complaint may be dismissed by the
trial court even if no evidence is presented where it is apparent from the complaint
and the opposition to the motion to dismiss that the court has no jurisdiction.
(Ruprto v. Fernando, 83 Phil. 9434)
Q. What does this ground that there is another action pending between the
same parties for the same cause mean?
A. It means that there are two pending actions involving the same parties, the
same subject matter, similar relief prayed for. Hence, one of the two actions must
be dismissed. There is litis pedentia or autor action pendant.
Q. What does litis pendentia means? Is this allowed by the Rules?
A It means the pendency of another action between the same parties for the same
cause of action.
A. No. The policy behind litis pendentia is that a party should not be allowed to
vex another more than once regarding the same subject matter and for the same
cause of action.
Q. When may the defendant raise the issue of lack of jurisdiction over his
person in an action filed against him?
A. The defendant at the very first opportunity, and before any voluntarily submits
himself to the jurisdiction of the court, file a motion to dismiss on the sole
ground that the court lacks jurisdiction over his person on account of defective
service or want of service of summons. (Jaraanilla v. Gonzales, 96 Phil. 3)
Q. May the defendant file a motion to dismiss on the ground that the court
lacks jurisdiction over his person along with other grounds for a motion to
dismiss?
A. Yes, the defendant may do so, but the effect in that the objection of lack of
jurisdiction over his person shall be deemed waived and he shall be considered to
have submitted his person to the jurisdiction of the court. (Republic v. Ker & Co.
Sept. 29,l966)
Q. What is the remedy of the defendant if it wants to test the sufficient of the
facts to constitute a cause of action?

139
A. To file a motion to dismiss on the ground that the complaint states no cause of
action, and the insufficiency of the cause of action must appear on the face of the
complaint. For this purpose, the motion to dismiss must hypothetically admit the
truth of the facts alleged in the complaint. (Ibid.)
Q. What is the significance of a motion to dismiss on the ground of failure to
state a cause of action?
A. When the defendant files a motion to dismiss for failure of the complain to to
state a cause of action, the inquiry is into the sufficiency, and not the veracity, of
the material allegations. If the motion assails, directly or indirectly, the veracity
of the allegations in the complaint, it is improper to grant the motion upon the
assumption that the averments in the motion are true and those in the complaint
are not. The sufficiency of the motion should be tested on the strength of the
allegations of fact contained in the complaint and no other. If the allegations of
the complaint are sufficient in form and substance but their veracity and
correctness are assailed, it is incumbent upon the court to deny the motion to
dismiss and require the defendant to answer and go to trial to pave his defense.
The veracity of the assertions of the parties can be ascertained at the trial on the
merits. ( Balo v. Court of Appeals, 471 SCRA 227 [2005] citing Galeon v.
Galeon, 49 SCRA 516 [l973]; PNB v. Escina, supra)
Q. What is the effect of a dismissal of the complaint based on lack of cause of
action?
A. It is a dismissal without prejudice, and the plaintiff is not barred from filing a
new suit against the defendant involving the same facts, but raising a cause of
action arising there from. (See: Young v. King, 398 SCRA 629 [2003]
Q. What is the test to determine the failure to state a cause of action? And if
there is insufficient allegations of fact to constitute a cause of action, what is
the remedy of the adverse party?
A. The test is whether the complaint alleges facts which if true would justify the
relief demanded. (Universal Aquarius, Inc. v. Q.C. Human Ressources
Management Corporation, 533 SCRA 38 [2007]
Where the complaint fails to allege sufficient facts to constitute a cause of
action, the adverse party can file a motion to dismiss the complaint for failure to
state a cause of action. Ibid)
Q. X filed a civil complaint against Y in the RTC. Y filed a motion to dismiss
the complaint and X opposed the motion. After hearing the motion, the trial
court denied the motion. If you were the counsel of Y what would you do?

140
A. Since the order denying Ys motion to dismiss is an interlocutory order, I will
file an Answer and interpose as a defense the objections raised in the motion to
dismiss, and then proceed to trial. If, after trial a judgment is adverse, to Y, then
Y can appeal from the judgment and assign as an error commited by the trial
court is the denial of the motion to dismiss.
An aggrieved party may assail a denial his motion to dismiss by availing
the reme3dy of filing a special civil action or a petition for certiorari under Rule
65 when, under the circumstances, the trial court clearly issued the order without
jurisdiction or in excess of jurisdiction, or with grave abuse of discretion
amounting to lack of jurisdiction.

Motion for reconsideration or new trail

Fresh period rule: Parties who availed themselves of the remedy of
motion for reconsideration are not allowed to file a notice of appeal within fifteen
days from the denial of that motion. This rule is irrefragably procedural,
prescribing the manner in which the appropriate period of appeal is to be
computed or determined and, therefore, can be made applicable to actions
pending upon its effectivity without danger of violating anyone elses right.
(Makati Insurance Co., Inc. v. Reyes, 561 SCRA 234 [2008]
Q. Has the first level court jurisdiction to try, hear and decide an accion
publiciana and accion reinvindicatoria? Explain.
A. Yes, where the assess value of the real property involved does not exceed
{P20,000.00 or P50,000.00 in Metro Manila). The jurisdictional element is the
assessed value of the property established by taxing authorities on the basis of
which the tax rate is applied commonly it does not represent the true value or
market value of the property. (Geonzon vde de Barrerra v. Heirs of Vicente
Legapsi, 565 SCRA192 [2008]
Q. What are the parts of a decision or judgment or final order?
A. The essential parts of a decision or final order consist of: (1) a statement of the
case; (2) statement of the facts; (3) issues or assigned errors; (4) the courts ruling
and (5) the dispositive portion. (V.C Ponce Company, Inc. v. Regyes, 561 SCRA
646 [2008]; Paramount Insurance Corp. v. Ordonez Corporation, 561 SCRA 327
[2008]

141

Q. What is a final order?

A. A final order is one that disposes of the whole matter or terminates the
particular proceedings or action leaving nothing to be done but to enforce by
execution what has been determined. (San Fernando Rural Bank, Inc. v.
Pampanga Omnibus Development Corporation, 520 SCFA 564 [2007].
The remedy of the aggrieved party is to appeal from said final order as
provided in Rule 41.
Q. What is an interlocutory order?
A. An interlocutory order is one that determines an incidental matter and which
does not touch on the merits of the case or lput an end to the proceedings. (bid.)
The remedy of the aggrieved party to assail an improvident interlocutory
order is to file a petition for certiorari under Rule 65. (ibid)
Q. In relation to final and executory judgments or decisions, what does stare
decisis mean?
A. Stare decisis is a legal maxim which means that when a principle of law which
has been established by the decision of a court of controlling jurisdiction will be
followed in other cases involving a seminal situation. (Pepsi Cola Products (Phils)
Inc. v. Espiritu, 525 SCRA 527 [2007]
Pre Trial
(Rule 18)

Q. What is the object and purpose of Pre-Trial?

A. Pre-trial, by definition, is a procedural device intended to clarify and limit the
basis issues raised by the parties and to take the trial of cases out of the realm of
surprise and maneuvering. It is an answer to the clarion call for the speedy
disposition of cases.. It thus paves the way for a less cluttered trial and resolution
of the case. (Anson Trade Center, Inc. et al.. v. Pacific Banking Corporation, 581
SCRA 751 [2009]
Notes and Cases
The policy behind the rule on pre-trial is to abbreviate court proceedings
and ensure prompt disposition of cases and decongest court dockets. Pursuant to
this policy, the trial judge has to determine during the pre-trial conference if there
is a need to amend the pleadings. (Tanjuatco v. Gako, Jr., 582 SCRA 200 [2009]

142

Inconsiderate dismissals, even without prejudice, do not constitute a

panacea or a solution to the congestion of court dockets, while they lend a
deceptive aura of efficiency to records of individual judges, they merely postpone
the ultimate reckoning between the parties. (Anson Trade Center, Inc., et al. v.
Pacific Bank Corporation, supra.)
Q. Who sets the case for pre-trial?
A. The plaintiff. Who should set the case for pre-trial. Administrative Circular
No.03-1-09 states that within five (5) days from date of filing the reply, the
plaintiff must promptly move ex parte that the case be set for pre-trial conference.
If the plaintiff fails to file said motion within the given period, the Branch Clerk
of Court shall issue a notice of pre-trial.( Polanco v. Cruz, 579 SCRA 489 [2009]
Q. What is the reason behind the guidelines set forth in A.M. No. 03-09-SC
which is entitled: Guideline To Be Observed by Trial Court Judges and
Clerks of Court In The Conduct of Pre-Trial And Use Of DepositionDiscovery Measures, which took effect on August 16, 2004?
A. The aim of the Guidelines is to abbreviate court proceedings, ensure prompt
disposition of cases and decongest court dockets. (ibid.)
Q. Should the trial court dismiss the case if the plaintiff fails to move for pretrial? Reason.
A. No. Even without any justifiable cause for such delay, the extreme sanction of
dismissal of the complaint might not be warranted if no substantial prejudice
would be caused to the defendant, and there are special and compelling reasons
which would make the strict application of the rule clearly unjustified.. (Olave v.
Mistas, 444 SCRA 479 [2004] The ends of justice and fair ness would best be
served if the parties are given the full opportunity to litigate their claims and the
reasl issues involved in the case are threshed out in a full-blown trial. (Polanco
v.Cruz, 579 SCRA 489 [2009]
Intervention
(Rule 19)
Q. What is intervention?
A. Intervention is a proceeding in an action by which a third person, not a party
thereto, but claiming an interest in the subject matter, is permitted by the court to
make himself a party, either by joining the plaintiff in claiming what is sought by
the complaint, or uniting with the defendant in resisting the claim of the plaintiff,
or demand something adversely to both of them. (Lacuna v.Board of Liquidators.

143
L-18621 Nov. 28, l964); Union Bank of the Philippines v. Ceoncepcion, 525
SCRA 672 [2006];Non-party Social Justice Society (SJS) v. Atienza, Jr., 545
SCRA 92 [2008]
Q. What is the nature of the interest which entitles a person to intervene in a
pending suit or action?
A. The interest which entitles a person to intervene in an action between two
other parties must be in the matter of litigation and of such direct and immediate
character that the intervenor will either gain or lose by the direct legal operation
and effect of the judgment that may be rendered in said action. (Garcia v. David,
67 Phil. 279; Nordic Asia Limited v. Court of Appeals, 403 SCRA 390 [2003];
Perez v. Court of Appeals, 480 SCRA 411 [2005] ;Nieto, Jr. v. Court of Appeals,
529 SCRA 285[2007]
Q. What is the purpose of intervention?
A. It is to afford one, not an original party, yet having a certain right or interest in
the pending action, the opportunity to appear and be joined ao he could assert or
protect such right or interest. (Clareza v. Zamora, L-15364, May 32, l961) The
purpose of intervention is not to obstruct nor unnecessarily the expeditious
disposition of the case. (Ibid)
Q. Who may intervene and upon what are the grounds for intervention?
A. A person who has a legal interest in a pending action may intervene to assert
or protect said right either or against both original parties. (Section 1 Rule 19)
The grounds for intervention are the following:
(1) Intervenor has a legal right in the matter in litigation; or
(2) Intervenor has an interest in the success of either of the parties; or
(3) Intervenor has an interest against both parties,
(4) Internor is so situated as to the adversely affected by a distribution or
orther disposition of the property in the custody of the court or of the
officer thereof. (Section l, Rule 19; Franciso, Jr. v. Nagmamalasakit na
mga Mananangol ng mga Manggagawang Pilipino, Inc., 415 SCRA 44
[2003] ; Alfelor v. Halasan, 486 SCRA 451 [2006]
Q. Give an example of each of these grounds for intervention.
A. (a) Legal interest in the matter of litigation: In an intestate estate petition of
the estate of a deceased person, the heirs of the deceased has a legal interest in the
estate of the decedent and hence may intervene when they believe that the acts of
the administrator are prejudicial to jthem. (Dais v. CFI of Capiz, 51 Phil. 396)
(b) Legal interest in the3 success of either party In an action for recovery of a
debt brought by the plaintiff-credtor against the Surety company as defendant-

144
debtor, the principal debtor has a legal interest in the success of either party,hence
may intervene and joiin the defendant surety company in defeating the claim of
the plaintiff-creditor. (Behn, Meyer & Co v. Banco Espanol-Filipino, 11 Phil.
253)
Legal interest against both parties In an action for rhe recover of real party
between two persons asserting confliction assertions, a person who claims to be
the owner of said property has a jlegal interest against both contending original
parties, hence, jmay intervene in the action to assert and protect his right of
ownership. (Santaromana v. Barrios, 63 Phil. 456)
(d) Interest in so situated as to be adversely affected: In an action for the
r4ecovery of sum of money brought by plaintiff against the defendant, the owner
of the personal property which was attached by reason of a writ of attaqchment
issied by the court has an interest in said attached property as may adversely be
affected hence may intervene to fo quash the writ of attachment. (Manila Herald
v. Ramos, 88 Phil. 94)
Q. How to intervene and when?
A. A motion to intervene may be filed at any time before rendition of judgment by
the trial court. A copy of the pleading-in-intervention should be attached to the
said motion and served on the original parties.(Section 2, Rule 19);; Social Justice
Society (SJS) v. Atienza, Jr., 545 SCRA 92 [2008] Associated Bank (now United
Overseas Bank[Phils] v. Pronstrololer, 598 SCRA 13 [2009
Notes and Cases
The rule states that intervention may be filed at any time before
rendition of judgment by the trial court (Section 2, Rule 19; Yao v. Perello,
414 SCRA 474 [2003] Clearly, an intervention may be filed at any time during
the trial or the period where evidence is being introduced by either party, or even
when the case is submitted for resolution provided no judgment has yet been
rendered. (Dunpog v.Court of Appeals, 408 SCRA 267 [2003]. An intervention is
not an independent action but an ancillary or supplemental to the principal action
(Nieto, Jr. v. Court of Appeals, 529 SCRA 285 [2007] can no longer be
entertained when a judgment has been rendered by the trial court. (Hi Tone
Marketing Corporation v. Baikal Realty Corporation, 437 SCRA 121[2004] Thus,
a motion and manifestation in the nature of a motion for intervention should be
filed before judgment is rendered. .(Balanoba v. Madriaga, 475 SCRA 688 [2005]
May an intervention be entertained by the Supreme Court? Yes. The Court
categorically rules that intervention is a means by which comprehensive
adjudication of rival claims overriding technicalities on the timeliness of its filing.
Intervention is allowed even when then the petition for review of the assailed
judgment was already submitted for decision in the Supreme Court, or even after
the decision became final and executory. ( Pinlac v. Court of Appeals, 410 SCRA
419 [2003] If a case originated from an original action filed with the Supreme

145
Court, the appropriate time to file a motion-in-intervention in such a case if ever
is before and not after the resolution of the case. (Republic v. Gingoyon, 481
SCRA 457 [2006]
An intervention is not granted automatically. A person desiring to
intervene must initially file with leave of court a motion to intervene at any time
before render of judgment by the trial court (Rockland Construction Co., inc. v.
Singzon, Jr., 508 SCRA 1 [2006] attaching thereto a copy of his complaint-inintervention if he asserts a claim against either or all of the original parties,
(Section 2, Rule 19) or an answer-in-intervention if he unites with the defending
party in resisting a claim against the latter. (Ibid.) and furnishing the parties to the
action.(Section 2, Rule 19) In said motion, it must be shown that the movant has a
legal interest in the matter of litigation or otherwise qualified (Yao v. Perillo, 414
SCRA 474 [2003] and should be allowed an opportunity to show that he is
entitled to intervene. (Hi Tone Marketing Corporation v. Baikal Realty
Corporation, 437 SCRA 121 [2004].
The trial court shall hear the motion and consider whether or not the
intervention will unduly delay or prejudice the adjudication of the rights of the
original parties, and whether or not the intervenors rights may be fully protected
in a separate proceeding. (Section 1, Rule 19; Nordic Asia Limited v. Court of
Appeals, 403 SCRA 390 [2003]
Allowance of an intervention is discretionary with the trial court. (Angeles
v. Republic, 505 SCRA 724 [2006].; Social Justice Socity (SJS v. Atienza, Jr.,
54592 [2008] Such discretion once exercised cannot be reviewed by certiorari
and controlled by mandamus save where there is clear grave abuse of discretion.
(Heirs of Geronimo Restrivera v.De Guzman, 434 SCRA 456 [2004]
If an intervenor is an indispensable party in the pending action, he must
necessarily be included as a party because is not included, the proceeding and the
judgment rendered shall be null and void.
Intervention is not mandatory but merely optional and permissive.
(California Bus Lines, Inc. v. State Investment House, Inc., 418 SCRa 297 [2003]
Nordic Asia Limited v. Court of Appeals, 434 SCRA l95 [2004] Intervention is a
recognized excekption to Section 2, Rule 19.; Social Justice Society (SJS) v.
Atienza, Jr., 545 SCRA 92 [2008]
If the trial court grants the motion to intervene and admits the complaintin-intervention, the answer thereto shall be filed within fifteen (`5) days from
notice of the order granting the intervention, unless a different period is fixed by
the trial court. (Section 4, Rule 19) An order denying a motion for intervention is
appealable. (Foster Gallego v. Galang, 435 SCRA 275 [2004] because a person
whose intervention is denied by the court has no standing to question the decision
of the trial court, Hence the prospective intervenors right to appeal applies only
to the denial of his intervention.(ibid.)
A trial court which has no jurisdiction over the principal action has no
jurisdiction over a complain-in-intervention. (Asian Terminals, Inc. v. BautistaRicafort, 505 SCRA 748 [2006].

146
Q. Has a transferee pendent elite of the property in litigation the right to
intervene in the litigation between the original parties?
A. No. A transferee pendent elite of the property in litigation does not have a right
to intervene. The transferee stands exactly in the shoes of his predecessor-ininterest, bund by the proceedings and judgment in the case before the rights were
assigned to him. It is not thus legally tenable for a transferee3 to still intervene. In
law, it considers the transferee joined or substituted in the pending anction,
commencing at the exact moment when the transfer of intere3st is perfected
between the original party-transferor and the transferee pendent elite. (Associated
Bank (now United Overseas Bank[Phils] v. Pronstrololer, 598 SCRA 13 [2009];
Santiago Land Development Corporation v. Court of Appeals, 267 SCRA 79
[l997])
Judgment
Q. What is the importance of the fallo or dispositive part of a judgment?
A. The importance of the dispositive part of a judgment or decision is that it
actually settles and declares the rights and obligations of the parties, finally,
definitively, authoritatively, notwithstanding the existence of inconsistent
statements in the body that may tend to confuse. (Espiritu v. Court of Appeals,
166 SCRA 394 [l988]) It is that part of the judgment or decision that controls for
purposes of execution. (Federal Builders, Inc. v. Daiichi Properties and
Development, Inc., 579 SCRA 104 [2009])
Notes and Cases
A judgment must conform to, and be supported by, both the pleadings and
the evidence, and must be in accordance with the theory of the action on wich the
pleadings are framed and the case was tried. (Jose Clavano, Inc. v. Housing and
Land Use Regulatory Board, 378 SCRA 172 [2002]; Development Bank of the3
Philippines v. Teston, 545 SCRA 422 [2008]
Q. What is the effect of a judgment which becomes final?
A. The prevailing party can have it executed as a matter of right by mere filing of
motion for execution within five (5) years from date of entry of the judgment.
Failure to enforce it by a motion after the lapse of five years from the date of its
entry, the said judgment is reduced to a right of action which must be enforced by
the institution of a complaint in a regular court within ten (10) days from the time
the judgment became final. (Bausa v. Heirs of Juan Dino, 563 SCRA 533 [2008]
Notes and Cases

147
When a party to an original action fails to question an adverse judgment or
decision not filing the proper remedy within the period prescribed by law, he loses
the right to do so, and the judgment or decision, as to him, becomes final and
executory. (Ocampo v. Court of Appeals, 582 SCRA 43 [2009)
It is unacceptable scheme or practice of parties who, either by their own
or their counsels inadvertence, have allowed a judgment to become final and
exectuory and, ater the same has become immutable, seek iniquitous ways to
assail it. The finality of a decision is a jurisdictional event which cannot be made
to depend on the convenience of the parties.(Spouses Aguilar v. Court of Appeals,
310 SCRA 393 [1999])
Q. What is reason behind the principle of finality of judgment?
A. Every litigation must come to an end. Access to court is constitutionally
guaranteed. But once a litigants right has been adjudicated by a court of
competent jurisdiction, and that the judgment therein rendered became final, he
should not be granted an unbridled license to go back for another try. For if
endless litigations were to be encouraged there would result to multiplicity of
casesr to the detriment of the administration of justice. ( Dizon-Abilla v.
Gobonseng, 577 SCRA 401 [2009]
Q. What is the significance of the rule of finality of judgment?
A. Public policy dictates that final and executory judgment or decision is
immutable and unalterable and may no longer be modified in any respect, even if
the modification is means to correct erroneous conclusions of fact and law,
regardless of whether it will be made by the court hat rendered it or by the highest
court of the land. (Silliman University v. Fontelo Paalan, 525 SCRA 759 [2007]
Q. What does the principle of immutability of judgment mean? What is the
reason behind it?
A. When a judgment becomes final and executory, it becomes immutable and
unalterable. The same may no longer be modified in any respect, even if the
modification is meant to correct what is perceived to be an erroneous conclusion
of fact or law, and whether made by the highest court of the land. (Heirs of Maura
So v. Obliosca, 542 SCRA 406 [2008]
The reason for the rule is grounded on the fundamental considerations of
public policy and sound practice that, at the risk of occasional error, the
judgments or orders of couts must be final at some definite date fixed by law.
(Camara v. Court of Appeals, 310 SCRA 608 [l999} In pari material: Garcia v.
Philippine Airlines, et al., 558 SCRA 171 [2008]; Republic v. Tango, 594
SCRA560 [2009]
Q. Is there an exception to the rule on finality or immutability of judgment?

148
A. The only exceptions to the rule is (1) the correction of clerical errors, the so
called nun pro tunc entries which cause no prejudice to any party, (2) null and
void judgments, and (30 whenever circumstances transpire after the finality of the
decision which render its execution unjust and inequitable. (Heirs of Maura So v.
Obliosca, 542 SCRA 406 [2008]
Notes and Cases
A rule so highly esteemed for so potent a reason and honored for so long a
time is that at the risk of occasional errors, judgments of court should become
final at some definite date fixed by law. This is because courts were instituted to
put an end in controversies. Were the rule otherwise, litigation might become
more intolerable than the wrongs it is intended to redress. (See: Dy Cay v.
Crossfiled & OBrian, 38 Phil. 521 [l8 ]; Pascual, et al., v. Ortega, et al., supra)

Q. For the purposes of acting or a motion for summary judgment, what is a

genuine issue and show may it be determined?
A. A genuine issue is an issue of fact which requires the presentation of evidence
as distinguished from an issue which is a sham, fictitious, contrived or false claim.
The trial court can determine a genuine issue on th basis of the pleadings,
admissions, documents, affidavits or counter-affidavits submitted by the parties.
(Bitanga v. Pyramid Construction Engineering Corporation, 563 SCRA 544
[2008]
Q. Where there is a discrepancy or conflict between the ratio decidendi and
the fallo of a judgment, which should prevail?
A. The fallo controls over the ration decidendi. Where there is a conflict beteen
the fallo and the ration decidendi or body of the decision, the fallo controls, and
this rule rests on the theory that the fallo is the final order, while the opinion in the
body is merely a statement oreering nothing, but this rule applies only when the
dispositive part of a final decision or order is definite, clear and unequivocal, and
can wholly be given effect without need of interpretation or construction. (United
Bank of the Philippines v. Pacific Equipment Corporation,567 SCRA 573 [2008]
Q. What is the meaning of a summary judgment?
A. A summary judgment is a procedural device resorted to in order to avoid long
drawn out litigations and useless delays.(See: Rule 35, Rules of Court; Nocom v.
Camerino, 578 SCRA 390 [2009]
Q. When is a summary judgment be resorted to?

149

A. When the pleadings on file show that there are no genuine issues of fact to be
tried, a party is allowed to obtain immediate relief by way of summary judgment,
that is, when the facts are not in dispute, the court is allowed to decide the case
summarily by applying the law to the material facts. (Ibid.)
It is the moving party, the party who files a motion for summary judgment,
who has the burden to show clearly by evidence that summary judgment is
proper.
Q. When is summary judgment not allowed?
A. When the pleadings tender a genuine issue, summary judgment is not proper. A
genuine issue is such issue of fact which requires the presentation of evidence as
distinguished from a sham, fictitious, contrived or false claim.(Ibid.)
The trial courts have limited authority to render summary judgments and
may do so only when there is clearly no genuine issu as to any material fact.
When the facts as pleaded by the parties are disputed or contested, summary
judgment cannot take place. (Tan v. De la Vega, 484 SCRA 538 [2006]
Q. What are the requisites that must be present for summary judgment to be
proper?
A. The requisites are: (1) there must be no genuine issue as to any material fact,
except for the amount of damages; and (2) the party presenting themotion for
summanry judgment must be entitled to a judgment as a matter of law. (See:
Section 3, Rule 35; Solidbank Corporation v. Court of Appeals, 390 SCRA 241
[2002])
Case. Ong v. Roban Lending Corporation, 557 SCRA 516 [2008] A summary
judgment is permitted only if there is no genuine issue as to any material facts and
a moving party is entitled to a judgment as a matter of law. A summary judgment
is proper if, while the pleadings on their face appear to raise issues, the affidavits,
depositions, and admissions presented by the moving party show that such issues
are not genuine
Q. May a final interlocutory order be entered in the docket of final
judgments or final orders?
A. No. There is no provision in the Rules of Court fort the entry of judgment of
supposedly final interlocutory order and execution stage order, and no such order
are accepted by any court for entry under Section 2, Rule 36 of the Rules of
Court. ( Republic v. De los Angeles, 567 SCRA 722 [2008]
Notes and Cases

150
A final order is one which finally disposes of a pending action, so hat
nothing more can be done with it in the trial court. In words, this final or
judgment ends the litigation is that trial court. When this final order becomes final
it should be recorded in the entry of judgment.(Madrigal Transport, Inc. v.
Lapanday Holdings Corporation, 436 SCRA 123 [2004]
On the other hand, an interlocutory order is one which does not dispsose
of the case completely and indicates that other things things remain to be done by
the trial court.(Philippine Comuter Solutions, Inc. v. Hernandez, 527 SCRA
809[2007] A motion to dismiss is an interlocutory order and is not appealable.
(Mondragon Leisure and Resorts Corporation v. United Coconut Planters Bank,
427 SCRA 585 2004]; Section 1[c], Rule 41)
Q. The Constitution requires that a case submitted for decision shall be
decided within a fixed period. When should the period of ninety (90) days
fixed by the Constitution commenced?
A. The ninety (90) day period for deciding the case shall commence to run from
submission of the case for decision without memoranda, and, in case the court
requires or allows its filing, the case shall be considered submitted for decision
upon the filing of the last memorandum or upon the expiration of the period to do
so, whichever is earlier. (Duque v. Carrido, 580 SCRA 321 [2009]
Notes and Cases.
Failure to resolve cases submitted for decision within the period fixed by
law constitute a serious violation of the constitutional right of the parties to a
speedy disposition of their cases. (Re: Cases Left Undecided by Former Judge
Ralph S. Lee, McTC, Branch 39, Quezon City. 580 SCRA 461 [2009]
Res judicata, Bar by prior judgment and
Conclusiveness of judgment
Q. What specific section of the Rules enunciates the principle of res-judicata?
A. It is found in Section 49[b], Rule 39, Rules of Court. This section refers to the
concept of res-judicata or also known as bar by prior judgment or estoppel by
judgment. It is a principle of law that facts and issues which were squarely raised
and definitely, directly and finally resolved in a case which was tried on the merits
and decided by a court of competent jurisdiction constitute a bar to another suit
involving the same facts and issues. (Perez v. Court of Appeals, 464 SCRA 89
[2005]
Q. What are the essential elements of litis pendencia?

151

A. They are:
(1) there is identity of parties or representation in both cases;
(2) there is identity of rights asserted and reliefs prayed for;
(3) the reliefs are founded on the same facts and the same basis;and
(4) identity of the two preceding particulars should be such that any
judgment, which may be rendred in theother action, will, regardless of which
party is successful, amount to res judicata in the action under consideration.
((Terona v. Alejo, 367 SCRA 17 [2001])
Q. What does res judicata mean?
A. It means a matter adjudged; a thing judicially acted upon or decided; a thing or
matter settled by judgment. ( See: Section 49[b], Rule 39;Layos v. Fil-Estate Golf
and Development, 561 SCRA 75 [2008]
Stated in another way, when material facts or questions in issue in a
former action were conclusively settled by a judgment rendered therein, such facts
or questions constitute res judicata and may not again litigated in a subsequent
action between the same parties or their privies regardless of the form of the latter.
(Dela Rama v. Mendiola, 401 SCRA 704 [2003])
Q. How is the rule on res judicata applied?
A. Res judicata lays down the rule that an existing final judgment rendered on the
merits, and without fraud or collusion, by a court of competent jurisdiction, upon
any matter within its jurisdiction, is conclusive of the rights of the parties or their
privies, in all other actions or suits in the same any other judicial tribunal of
concurrent jurisdiction on the parties and matters in issue in the first suit. (PNB v..
Sia, 579 SCRA 562 [2009]
Q. For res judicata or litis pendencia to bar the institution of a subsequent
action, what are the requisites that must concur?
A. The following must concur: (a) the former judgment or order must be final; (b)
the judgment or order must be one the merits; (c) it must have been rendered by a
court having jurisdiction over the subject matter and parties; and (d) there must
be, as between the first and second actions, identify of parties, of subject matter,
and of causes of action. (Bondagfy v. Artadi, 561 SCRA 633 [2008]; PNB v. Sia,
579 SCRA 562 [2009]
The identity of parties needed to satisfy the requirement requires only
identity of interest, and not a literal identity of parties. Public Interest Center, Inc.
v. Roxa, 513 SCRA 457 [2007]
Q. What is the effect of res judicata?

152
A. In a final judgment on the merits rendered by a court of competent jurisdiction,
such judgment is conclusive as to the rights of the parties and their privies an
absolute bar to subsequent action involving the same claim, demand or cause of
action. J. & N Shipping Lines, Inc. v. Technomarine Co., Ltd., 518 SCRA 721
[2007].
Q. State the concept and effect of conclusiveness of judgment/
A. Conclusiveness of judgment bars re-litigation in a second case of a fact or
question already settled in a previous case. (Layos v.Fil-Estate Gulf and
Development, 561 SCRA 75 [2008] Under this doctrine of conclusiveness of
judgment, the facts and issues actually and directly resolved in a former suit
cannot again be raised in any further case between the same parties, even if the
latter suit may involve a different claim or cause of action. The identity of causes
of action is not require3d but merely identity of issues.(See: Heirs of Rolando N.
Abadilla v. Gallarosa, 494 SCRA 659 [2006] ; PNB v. Cruz, 579 SCRA 562
[2009])
Q. Differentiateconclusiveness of judgment from bar by prior judgment.
A. There is bar by prior judgment when, as between the first case where the
judgment was rendered, and the second case that is sought to be barred, there is
identity of parties, subject matter, and cause of action. But where there is identity
of parties and subject matter in the first and second cases, but no identity of
causes of action, the first judgment is conclusive only as to those matters actually
and directly controverted and determined and not as to matters merely involved
therein. This is conclusiveness of judgment.(Republic v. Yu, 484 SCRA 416
[2006]
Q. What is the effect of a judgment which was not appealed within the period
of appeal?
A. A judgment which was not appealed within the period of appeal becomes final
and executory. It may no longer be modified in any respect, even if the
modification is meant to correct an erroneous conclusion of fact or law, and
regardless of whether the modification is attempted to be made by the court
rendering it or by the highest court of the land, as what remains to be done is the
purely ministerial enforcement or execution of the judgment. This is the effect of
the doctrine of finality of judgment. ( Vios v. Pantangco, Jr., 578 SCRA 129
[2009].
The doctrine of finality of judgment or immutability of judgment is
grounded on fundamental considerations of public policy and sound practice that
at the risk of occasional errors, the judgment of adjudicating bodies must become
final and executory on some definite date fixed by law. (Coca-Cola Bottlers
Philippines, Inc., Sales Force Union-PTGWO-BALAIS v. Coca-Cola Bottlers,
Phiiippines, Inc., 464 SCRA 507 2005]

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Q. Is there a remedy left the aggrieved party if the judgment has become
final and executory?
A. Yes. If the 15-day period of taking an appeal has lapsed, the aggrieved party
can avail of the remedy of filing a petition for relief from judgment under Rule
38. A petition for relief of judgment should be done within j60 days after the
petition learns of the judgment, but not more than 6 months after such judgment
or final order was entered. If the petition for relief from judgment is denied, the
next available remedy is to file a petition for certiorari under Rule 65, but not a
appeal since such a remedy is prohibited under Section l, Rule 41. (Domingo
Realty, Inc. v. Court of Appeals, 513 SCRA 40 [2007]
Q. State the doctrine of the law of the case.
A. The law of the case means that whatever is irrevocably established as the
controlling legal rule or decision between the same parties in the same case
continues to be the law of the case, whether correct on general principles or not,
so long as the facts on which the legal rule or decision was predicated continue to
be the facts of the case before the court. (Banes v. Lutheran Church in the
Philippines, 475 SCRA 13 [2005]

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Appeals
I
In general
Q. What is an appeal?
A. It is a procedural tool whereby a party to an action before a judicial court is
allowed to have the judgment or final order rendered by said court be reviewed by
an appellate court.
Q. What is the nature of an appeal?
A. Under the law, an appeal is merely a statutory privilege.(Philippine Rabbit Bus
Lines, Inc. v. Goimco, Sr. 476 SCRA 190 [2005] The right to appeal is not a
constitution, natural right.(Stolt Nielsen Marine Services, Inc. v. National Labor
Commission, 477 SCRA 516[2005] It is neither a natural right nor part of due
process, Neypes v. Court of Appeals, 469 SCRA 633 [2005] ) Being a procedural
remedy, it may exercised only in the manner prescribed by the provisions of law.
(Baniqued v. Ramjos.452 SCRA 813 [2005]; Philux, Inc.v. Nattional Labor
Relations Commission.564 SCRA 21 [2008]; Philipps Seafoof (Philippines)
Corporation v. The Board of Investments, 578 SCRA 69 [2009]
Q. Who may appeal?
A. Either or both parties to an action may appeal from a judgment rendered
therein by the court that heard and determined the case.
Q. When to appeal?
A. The uniform period of ordinary appeal is fifteen (15) from notice of judgment
or decision or final order.(See: Section 2 Appeal from MTC to RTC; Rule
40;Section 3 Appeal from the RTC to CA in ordinary appeal; Rule 41;Section 4,
Rule 43 Appeal from quasi-judicial bodies to CA)
Notes and Cases
.
The fifteen-day period to appeal is reckoned from notice to the aggrieved
party of the judgment or final order or resolution (Miel v. Malindog, 579 SCRA
ll9 [2009] In counting the period, exclude the first day and include the last day.
Thus, if the aggrieved party received a copy of the judgment or final order on
May 3, 2010, his last day to appeal is on May 18, 2010. .
Q. When is an appeal deemed perfected?

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A.An appeal is perfected when the aggrieved party (appellant) within 15 days
from notice of the adverse judgment or final order files (1) a notice of appeal with
the court which rendered the judgment or final order; and (2) pays in full the
appellate docket and other fees required. These are sine qua non to the perfection
of an appeal. (Republic v. Luriz, 513 SCRA 140 [2007]; Crisologo v. Daray, 562
SCRA 382 [2008]
Q. What is the rule of compliance in perfecting an appeal?
A. Perfection of an appeal must be strictly complied with, and compliance
therewith is mandatory and jurisdictional. Otherwise , the judgment or final
order becomes final and executory. (Dela Cruz v. Golar Maritime Services, Inc.
478 SCRA 173 [2005]; Sapitan v. JB Liner Bicol Express, Inc. 537 SCRA 230
[2007]
Case: Miel v. Malindog, 579 SCRA ll9 [2009] Perfection of
an appeal within the statutory or reglementary period is not only
mandatory but jurisdictional. Failure to do so renders the decision
for final order or resolution final and executory. Consequently, it
deprives the appellate of jurisdiction to alter the decision/final
order or resolution, much less to entertain the appeal. (See:
Sehwani Incorporated v. In-N-Out Burger, Inc., 536 SCRA 225
[2007])
Q. What is the effect of a perfected appeal?
A. In an ordinary appeal by notice of appeal, the court losses
jurisdiction over the case upon the perfection of the appeals filed
in due time and the expiration of the time to appeal of the other
parties, and not just the plaintiffs or defendants. (Lee v.
Trocino, 561 SCRA 178 [2008] By the perfection of an appeal,
the appellate court acquires jurisdiction over the appealed case.
Q. Normally, what is to be appealed from?
A. In ordinary appeal by notice of appeal, the subject of appeal is the judgment or
final order rendered by the trial court after full-dress trial on the merits.
Notes and Cases
A final judgment or order is one that finally disposes of a case,
leaving nothing more to be done by the court in respect thereto as when there is an
adjudication on the merits which, on the basis of the evidence presented at the
trial, declares categorically what the rights and obligations of the parties are and

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which party is in the right. For instance, a judgment or order that dismisses an
action on the ground of res judita or prescription. This dismissal is final.
An interlocutory order, on the other hand, is one that does not finally
dispose of the case, and court has still to receive evidence of the parties and then
to adjudicate the contentions of the parties and determining the rights and
obligations as regards each other. For instance, an order denying a motion to
dismiss jthe complaint on the ground of lack of jurisdiction of the court, or lack of
jurisdiction over the person of the defendant,, improper venue are interlocutory
orders.(Rudecon Management Corporation v. Singson, 454 SCRA 612 [2005]
Q. Is an appeal part of judicial process?
A. Yes. Appeal is an essential part of our judicial process. Courts should proceed
with caution so as not to deprive a party of the right to appeal particularly if the
appeal is meritorious. (Republic v. Luriz, 513 SCRA 140 [2007]
A party who does not appeal from the decision may not obtain any
affirmative relief from the appellate court other than what he has obtained from
the lower court, if any, whose decision is brought up on appeal. (Real v. Belo, 513
SCRA 111 [2007])
In particular
(Rule 40)
Appeal from the Muncipal Trials Courts
To the Regional Trial Courts
Q. Who may appeal from a judgment or final order rendered by the MTC?
A. Either or both parties to an action may appeal from a judgment or final order
rendered by the MTC to the RTC exercising jurisdiction over the area to which
the former pertains.(Section 1, Rule 40)
Q. When may an appeal be taken?
A. (1) Ordinary appeal by notice of appeal: An appeal may be taken within
fifteen (15) days after notice to the aggrieved party referred as the appellant of
the judgment or final order appealed from. (Section 2, Rule 40)
(2) Appeal by record on appeal: Where a record on appeal is required, the
appellant shall within thirty (30) days after notice of the judgment or order
appealed from. (Section 7, 2nd sentence, Rule 40)
Q. How is an appeal taken?

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A. In either appeal by notice of appeal or by record on appeal, appeal is taken by
filing a notice of appeal with the court MTC which rendered the judgment or final
order appeal from.(Section 3, Rule 40)
Q. When is record on appeal required?
A. A record on appeal is required (1) in special proceedings and (2) in other cases
of multiple or separate appeals. (Section 3, par. 2, Rule 40)
Q. In what instances may the period be less or beyond the appeal period of
fifteen days?
A. Two instances expressly provided by this Rule, namely:
(1) In an appeal where record of appeal is required, the notice of appeal
and the record on appeal shall be filed within thirty (30) days after notice of the
judgment or final order appealed from.
(1) In a habeas corpus proceedidngs, appeal from the order is taken within
48 hours from notice.

Notes and Cases

Q. When is an appeal perfected?

A. An appeal by notice of appeal is deemed perfected with the appellant, within
f5 days after notice to him of the judgment or final order appealed from, by (1)
filing a notice of appeal to the MTC which rendered the judgment or final order
and (2) paying in full the appellate docket and other lawful fees. ( Section 4, Rule
40 in relation to Section 9, Rule 41 and Section 5, of Rule 40)
An appeal by record on appeal is deemed perfected as to the appellant
with respect to the subject matter thereof upon the approval of the record on
appeal. (Section 4, Rule 40 in conjunction with Section 9, par. 2, Rule 41)
Case: :Tatad v. Commission on Audit, 562 SCRA 342 [2008]
In that case, it
was ruled that an appeal of a party by notice of appeal is deemed perfected (1)
upon the filing of the notice of appeal in due time, and the notice of appeal does
not require approval by the court and (2) upon full payment of the docket and
other lawful fees.
Q. How is an appeal perfected in the MTC?

158
A. The appeal shall be perfected within 15 days after notification to the party of
the judgment or final order complaint of
(a) by filing with the MTC which rendered the judgment or final order a
notice of appeal;
(b) by paying in full the appellate docket and other lawful fees with the
MTC when rendered the judgment or final order appealed from; (Sections 2, 3, 4
and 5, Rule 40)
(c) in appeal which requires a record on appeal, the notice of appeal and
the record on appeal shall be filed within jthirty (3O) days after notice of
judgment or final order, and the appeal is deemed perfected upon the approval of
the record on appeal.(Section 3, Rule 41 in conjunction with Section 4, Rule 10
and Section 9, Rule 40)
..
Q. What should the notice of appeal contain?
A. The noice of appeal shall contain the following:
(1) The title of the case shall remain the same as to the court of origin, but
the party appealing from the judgment or final order is further referred
to as the appellant, and the adverse party is referred to as the appellee.
(Section 1, 2nd sentence, Rule 40)
(2) It shall indicate the parties to the appeal; (Section 3, Rule 40)
(3) It shall indicate the judgment or final order or part thereof appealed
from; (Section 3, Rule 40)
(4) It shall indicate the jmaterial dates showing the timeliness of the
appeal. (Section 3, Rule 40)
(5) It show proof that a copy of the notice of appeal and the record on
appeal where required was furnished the adverse party or appelleee=.
(Section 3, Rule 40).
Q. How may the period for appeal from the MTC interrupted?
A. The period of appeal from the MTC is interrupted by a timely motion for
reconsideration or new trial. (Section 2, par. 2, Rule 40) But no extension of time
to file motion for reconsideration or new trial shall be allowed. (Ibid.)
Q. In a civil action, the MTC rendered judgment against A, defendant and in
favor of B, the plaintiff. X received a copy of the judgment on May 3, 2010.
On May 18, 2010, X filed a motion for reconsideration/new trial. The MTC
denied the motion for reconsideration//new trial on May 25, 2010. X received
the order of denying his motion on May 28,2010. When should X perfect his
appeal?
A. He should perfect his appeal on the first working day which is May 31, 2010,

159

X filed his motion for reconsideration on May 18, the last day of the
period of appeal. He received the order denying his motion for
reconsideration/new trial on May 28, 2010 which is a Friday. The following day,
May 29 is a Saturday, and the day following is Sunday,, May 30. . Hence, X had
a day to perfect his appeal which was on May 29. But since May 29 is a Saturday
and the following day is Sunday the period is suspended and resumes to run the
next working day is May 31 which is the day X must perfect his appeal.
Q. Suppose in the above problem, X on May 18, 2010 filed a motion for
extension of time to file his notice of appeal. On May 25, 2010, the MTC
denied his motion. X received a copy of the order denying his motion for
extension of time to appeal. X filed his notice of appeal the following day.
Will the appeal of X prosper?
A. The appeal of X must fail because X failed to comply with the mandatory and
jurisdiction rule on perfection of appeal. .
A motion for extension of time to appeal is not extendible. The rule on
perfecting an appeal is clear that the appeal must be perfected within 15 days after
notice of the judgment appealed from. Since the motion for extension of time to
appeal is not extendible, the period of appeal was not tolled. Failure to perfect an
appeal in the manner provided by the law is mandatory and jurisdiction. X, failed
to file his notice of appeal and pay in full the docket and other lawful fees with
the MTC within 15 days after notice to him of the judgment appealed from.
Hence, X failed to perfect his appeal. Consequently, the judgement became final
and executory on May 19,2010..
Q. Suppose in the above problem, X filed a motion for extension of time to
file a motion for reconsideration, will the result be the same?
A. Yex, the period of appeal was not tolled. A motion for extension of time to file
a motion for reconsideration is prohibited, hence, it did not stay the running of the
period of appeal.
Q. In a civil action, the MTC rendered judgment in favor of X, plaintiff and
against Y, defendant. Y received a copy of the judgment on May 3, 2010.
Three days later, or on May 6, 2010, Y filed a motion for reconsideration
which was denied by the MTC, a copy of said order of denying the motion
was received by Y on Ma 18, 2010. Following day, Y filed a petition for
certiorari under Rule 65 with a prayer for a TRO and PI. Was the period of
appeal suspended? Reason.
A. Yes, the period of appeal is suspended. A petition for certiorari under Rule 65
coupled with a TRO and PI staying the proceedings in the MTC filed with the

160
RTC to annul the judgment of th MTC.. (See: De los Reyes v. Elpano, 93 Phil.
239)
Q. May an appeal filed out of time be entertained? Explain
briefly.
A. The general rule is that when an appeal is not perfected on time, the decision or
final order becomes final.and executory. (Miel v. Malingod, 579 SCRA 119
[2009] By way of exception, under meritorious cases, if barring of the appeal
would be inequitable and unjust in the light of certain circumstances therein, the
belated or delay in the filing of an appeal may be excused on grounds of
substantial justice and equity. ((Legasto v. Court of Appeals, 172 SCRA 722
[1989];PNB v. Court of Appeals, 246 SCRA 304 [1995] The Court may suspend
its own rules or except a particular case from its operation, whenever the purposes
of justice require it.(Miel v. Malindog, supra)

161

Circumstances that justify exemption from the strict application of the rules
of procedure.
Case: Baylon v. Fact-Finding Intelligence Bureau, 394 SCRA 21 [2002] The
following range of reasons provide justification for a court to resist strict
adherence to procedure, to wit:
(1) matters of life, liberty honor and property;
(2) counsels negligence without the participatory negligence on the part of
the client;
(3) the exsstence of special or compelling circumstances;
(4) the merits of the case;
(5) a cause not entirely attributable to the fault or negligence of the party
favored by he suspension of the rules;
(6) a lack of any showing that the review sought ts merely frivolous and
dilatory; and
(7) the other party will not be unjustly prejudiced thereby.
Q. What is the effect of failure to pay the docket appeal fee?
A. The failure to pay docket fees does not automatically result in the dismissal of
an appeal, it being discretionary on the of the appellate court to give it due course
or not. (Gillamacs Marketing, Inc. v. Aboitiz Shipping Corporation, 513 SCRA
526 [2007] In indeed, the Supreme Court, in some cases, condoned oversights of
parties in failing to pay these fees on time to avoid undue burden on their right to
appeal. (Gillamacs Marketing, Inc. v. Aboitiz Shipping Corporation, 513 SCRA
526 [2007]

162
Q. After judgment was rendered, the aggrieved party appealed, and the
appeal was perfected. Then, the aggrieved party filed a petition for
certiorari. Will the petition prosper? Reason.
A. No. tt was no longer proper after the appeal was perfected because there
existed a plan, speedy and adequate remedy which was the appeal taken by the
aggrieved party. (Ong v. Basco, 561 SCRA 253 [2008] Petition for certiorari
cannot prosper where there are no special circumstances clearly demonstrating the
inadequacy of an appeal. (Ibid.)
Q. May a party on appeal change his theory of the case?
A. No. A party cannot change his theory of the case on appeal. A party cannot
raise in the appellate court any question of law or of fact that was not raised in the
court below or which was not within the issue or issues raised by the parties in
their pleadings. (Sari-Sari Group of Companies, Inc. v. Piglas Kamao, 561 SCRA
5690 [2008]
Q. What is the remedy of a party aggrieved by a judgment rendered by the
Court of Appeals?
A. The remedy of a party not satisfied with the judgment rendered by the Court
of Appeals is to file a petition for review on certiorari under Rule 45 where only
questions of law may be raised. The party aggrieved by a decision of the Court of
Appeals is proscribed from assailing the decision or final order of said court by
way of a petition for certiorari under Rule 65 because such recourse is proper only
if the party has no plain, speedy and adequate remedy in the course of law.
(California Bus Lines, Inc. v. Court of Appeals, 562 SCRA 403 [2008]
Case: Federal Builders, Inc. Daiichi Properties and Development, Inc., 579
SCRA 104 [2009] The proper remedy of a party aggrieved by a decision of the
Court of Appeals is a petition for review under Rule 45, which is not identical to a
Petition for Certiorai under Rule 65. Under Rule 45, decisions, final orders or
resolutions of the Court of Appeals in any case, regardless of the ntur4e of the
action or proceeding involved, may be appealed to the Supreme Court by filing a
petition for review, which would be but a continuation of the appellate process
over the original case. On the other hand, a special civil action under Rule 65 is an
independent action, based on the specific grounds thereon provided and, as a
general rule, cannot be availed of as a substitute for the lost remedy of an ordinary
appeal, including that to be taken under Rule 45. When party adopts an improper
remedy, such petition may be dismissed outright.
Q. What question or issue may be raised in a petition for review under Rule
45?

163
A. Only questions of law may be raised in a Petition for Review under Rule 45.
(Section 1, Rule 45); Tapuroc v. Loquellano Vda de Mende, 512 SCRA 97 [2007]
General Santos Coca Cola Plant Free Workers Union Tupas v. Coca Cola Bottlers
Phils., Inc. 579 SCRA 414 [2009]
Q. When is an issue a question of law and when is it an issue of fact?
There is a question of law if the issue raised is capable of being resolved
without need of reviewing the probative value of the evidence. The resolution of
the issue must rest solely on what the law provides on a given set of
circumstances. On the other hand, where the issue raised invites a review of the
evidence presented, the question is one of fact. If the query requires a reevaluation of the credibility of witnesses, or the existence or relevance of
surrounding circumstances and hteir relation to one another, the issue in that
query is factual. (See: Morales v. Skills International Company, 500 SDRA 186
[2006];Juaban, et al v. Espina, et al., 548 SCRA 588 [2008]

Q. What should be included as part of appellants brief or a petition for review?

A. The rule is explicit in the mandate that the legible duplicate originals or true
copies of the judgment or final order of both lower courts must be certified by the
clerk of court, unless the petitioner could show that the Clerk of Court was
officially on leave and the Administrative Officer was officially designated as
officer-in-charge. (Real v. Belo, 513 SCRA 111 [2007]; China Banking
Corporation v. Padilla, 514 SCRA 35 [2007]
Q. Is this rule absolute?
A. No. Subsequent and substantial compliance of a party may call for the
relaxation of the rule. When the Court of Appeals dismisses a petition outright
and the petitioner files a motion for reconsideration of such dismissal, appending
thereto the requisite pleadings, documents or order or resolution, this would
constitute substantial compliance with the Revised of Court. (Real v. Bello,ibid.)
Indeed, there is no compelling need to attach the position papers of the parties
where the decisions of the MTC and RTC already stated their respective
arguments. (ibid.)
Q. What is the effect of erroneous mode of appeal?
A. The use of an erroneous mode of appeal is a cause for dismissal of the petition
for certiorari. It is now a settled rule of procedure that a petition for certiorari is
not a substitute for a lost appeal. The Arbitration Law, RA 876, specifically
provides for an appeal by certiorari under Rule 45 of the Rules of Court that

164
raises pure questions of law. Under Section 29, of RA 876, the may refers only
to the filing of an appeal, not to the mode of review to be employed the use of
may merely reiterates the principle that the right to appeal is snot part of due
process of law but a merely statutory privilege to be exercised only in the manner
and in accordance with law. (Gonzales v. Climax Mining Ltd., 512 SCRA 148
[2007]
Under Rule 45 Petition for Review on Certiorari
Q. What is inquired into in a petition for review on certiorari?
A. In all petitions for review on certiorari to the Supreme Court from the Court of
Appeals decisions usually limits its inquiry only to questions of law. (Tapuroc v.
Loquellano Vda de Mende, 512 SCRA 97 [2007]
Note: In the recent case of Insular Life Assurance Company Ltd v. Court of
Appeals, 428 SCRA 79 [2004], the Supreme Court has recognized a number of
exceptions to the rule that a petition for review on certiorari under Rule 45 should
raise only questions of law. (Chuayuco Steel Manufacturing Corporation v.
Buklod ng Manggagawa sa Chuayuco Steel Manufacturing Corporation, 513
SCRA 621 [2007]
But the Supreme Court may review the factual findings of the trial court
and the lower appellate courts. For instance, when the findings of the Court of
Appeals are contrary to those of the National Labor Relations Commission or of
the Labor Arbiter. (Norsh Hydro (Phils.), Inc. v. Rosales, Jr., 513 SCRA 583
[2007] Or, when the findings of the Court of Appeals clash with those of the
voluntary arbitrator or the National Labor Relations Commission, the Supreme
Court is compelled to go over the records of the case as well as the submission of
the parties. (Amkor Technology Philippines, Inc. v. Juangco, 512 SCRA 325
[2007]
Q. What is the reason for the rule that only questions of law may be raised in a
petition for review on certiorari?
A. The Supreme Court is not a trier of facts. It is not its function to examine and
evaluate the probative value of the evidence presented before the concerned
tribunal upon which its impugned decision or resolution is based.(Toriano v.
Trieste, Sr, 512 SCRA 264 [2007]; Gonzales v. Madame Pliar Farm Development
Corporation, 512 SCRA 199 [2007]; Tan v. People, 513 SCRA 194 [2007])
Factual findings of the Court of Appeals are entitled to great weight and
respect, especially when the Court of Appeals affirms the factual findings of the
trial court. The findings of fact of the Court of Appeals is, as a rule, conclusive
and bining upon the Supreme Court. However, jby way of exception, in rare and
special circumstances, questions of fact may be passed upon in a petition for
review on certiorari under in any of the following: (See: Maliclic v. Calaunan,
512 SCRA 642)

165
For example, the existence of a breach of contract is a factual matter not
usually reviewed in a petition filed under Rule 45. (Omengan v. Philippine
National Bank, 512 SCRA 305 [2007]. Only questions of law may be raised in an
appeal by certiorari under Rule 45.
Petition for Certiorari under Rule 65 is a special civil action which
questions the authority of the Court, tribunal, body, etc for having acted beyond
its jurisdiction, or in excess or lack of jurisdiction. ( Salma v. Miro, 512 SCRA
724 [2007]
Findings of facts of the Court of Appeals are as a rule not reviewable.
Generally, the findings of fact of the Court of Appeals are not reviewable
by the Supreme Court in a petition for review on certiorari, they are final and
conclusive, if they are borne out by the record or are based on substantial
evidence. ( Nombrefia v. People, 513 SCRA 360 [2007]
Findings of facts of the trial court given weight and respect
On the other hand, findings of the trial court, its calibration of the
testimonies of witnesses and its assessment of the probative weight thereof, as
well its conclusions anchored on said findings are accorded by the appellate court
high respect if not conclusive. (Nombrefia v. People, 513 SCRA 369 [2007]
The Court of Appeals may tap any of the three alternatives therein
provided to aid the court in resolving appealed cases, to wit: (1) it may rely on
available records alone, or (2) require the submission of memoranda or set of the
case for oral argument, or (3) dispense with, at its sound discretion, with a tedious
oral argument exercise. (General Credit Corporation v. Alsons Development and
Investment Corporation, 513 SCRA 225 [2007]
Corporate Rehabilitation under RA 8799
All decisions and final orders in cases falling under the Interim Rules of
Corporate Rehabilitation and the interim Rules of Procedure governing IntraCorporate Controversies under RA 8799 shall be appealed to the Court of Appeals
through a petition for review under Rule 43 of the Rules of court to be filed
within fifteen days fromnotice of the decision or final order of the RTC. (New
Frontier Sugar Corporation v. Regional Trial Court, Branch 39, Iloilo City, 514
SCRA 601 [2007]
What is covered by the term intra-corporate controversy.
An intra-corporate controversy is one which pertains to any of the
following relationships: (1) between the corporation, partnership or association
and the public; (2) between the corporation, partnership or association and the

166
Sate in so far as its franchise permit or license to operate is concerned; (3)
between the corporation, partnership or association and its stockholders, partners,
members or officers, and (4) among the stockholders, partners or associates
themselves. (Yujuico v. Quaiambao, 514 SCRA 243 [2007]
Court that has jurisdiction over intro-corporate controversies.
Upon the enactment of RA 8799, the jurisdiction of the Securities and
Exchange Commission over intra-corporate controversies and other cases
enumerated in Section 5 of PD 902-A has been transferred to the court of general
jurisdiction or the appropriate Regional Trial Court. (Yujuico v. Quiambao, supra)
Arbitration and Alternative dispute resolution
Disputes do not go to arbitration unless and until the parties have agreed to
abide by the arbitrators decision. Necessarily, a contract is required for
aartibitration to take kplace and to be binding. (Gonzales v. Climax Mining Ltd.,
512 SCRA 148 [2007]
A proceeding in a petition for arbitration under RA 876 is limited only to
the resolution of the question of whether the arbitration agreement exists. (Ibid.)
The doctrine of separability or severability enunciates that an arbitration
agreement is independent of the main contract. It denotes that the invalidity of the
mainc contract, also referred to as the container contract, does not affect the
validity of the arbitration agreement which still remain alid and enforceable.
(Gonzales v. Climax Mining Ltd., 512 SCRA 148 [2007]
Question of law and question of fact distinguished
Questions of law are those that involve doubts or controversies on what
the law is on certain state of facts, while questions of fact are those in which there
is doubt or difference as to the truth or falsehood of the alleged facts. (Philippine
National Construction Corporation v. Court of Appeals, 512 SCRA 684 [2007]
Courts
All proceedings had by a court without jurisdiction are void.
A court, tribunal or administrative agency acts without jurisdiction if it
does not have the legal power to determine the case. But where the court, tribunal
or administrative agency is clothed with the power to determine the case, it
nevertheless acts in excess of jurisdiction when it oversteps the authority as
determined by law commits grave abuse of discretion and the remedy is a to file a
petition for certiorari under Rule 65. (New Frontier Sugar Corporation v. Regional
Trial Court, Branch 39, Iloilo City, 513 SCRA 601 [2007]
Inherent power of the courts

167

Every court has the power and the corresponding duty to review, amend or
reverse its findings and conclusions whenever is attention is seasonably called to
any error or defect that it may have committed. (Herce, Jr. v. Municipality of
Cabuyao, Laguna, 512 SCRA 332 [2007]
Power to use its discretion
Discretion is a faculty of a court or an official by which it may decide a
question either way, and still be right. (Republic v. Sandiganbayan, 512 SCRA 25
[2007]
Meaning of Judicial discretion
Judicial discretion, by its very nature, involves the exercise of the judges
opinion and the law has wisely provided that its exercise be guided by wellknown rules which, while allowing the judge rational latitude for the operation of
his own individual views, prevent them from getting out of control. (Santos v.
How, 514 SCRA 25 [2007]
Power to interfere
The rule of courts is to ascertain whether a branch or instrumentality of
government has transgressed its constitutional boundaries. It will not interfere
with executive or legislative discretion exercised within those boundaries,
otherwise, they stray into the forbidden realm of policy decision-making.
(Gonzales v. Madame Pilar Farm Development Corporation, 512 SCRA 199
[2007)
Motions
Order denying a motion to dismiss is to proceed with trial.
An order denying a motion to dismiss is an interlocutory order and cannot
be the subject of a petition for certiorari, unless the order was made with grave
abuse of discretion or without or in excess of jurisdiction. (Romulo v. Peralta,
513 SCRA 612 [2007] There is grave abuse of discretion where the power is
exercised in an arbitrary or despotic manner by reason of passion of personal
hostility which must be so patent and gross as it amount to an invasion of positive
duty or to a virtual refusal to perform he duty enjoined or to act at all in
contemplation of law. (Romulo v. Peralta, 513 SCRa 612 [2007]
Forum shopping
Concept

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Forum shopping is an act of a party, against whom an adverse judgment or
order has been rendered in one forum of seeking and possibly getting a favorable
opinion in another forum, other than by appeal or special civil action for
certiorari, or, it may also be the institution of two or more actions or proceedings
grounded on the same cause on the supposition that one or the other court would
make a favorable disposition. (Reington Indusrial Sales Corporation v. Chinese
Young Mens Christian Association of the Phil. Islands, 512 SCRA 183 [2007]
There is forum shopping when between an action pending before this
Court and another one, there exist: (a) an identify of parties, or at lest such parties
as represent the same interests in both actons, (b) identity of rights asserted and
relief prayed for, the relief being founded on the same facts, and (c) the identity of
the two proceeding particulars is such that any judgment rendered n the other
action, will, regardless of which arty is successful, amount to res judicata in the
action under consideration; said requisites also constitutive of the requisites for
under action pendant or lis pendens. (Public Interest Center, Inc. v. Roxas, 514
SCRA 457 [2007]; Manila International Airport v. Olongapo Maintenance
Services, Inc. 543 SCRA 269 [2008]
In a suit brought by citizens and taxpayers to determine a public right or a
matter of public interest, all citizens and taxpayers are regarded as parties to the
proceedings by representation and are bound by the judgment rendered therein.
(Ibid.)
Q. How should the rule against forum-shopping be applied?
A.As a rule, strict compliance with the rule against forum-shopping underscores
its mandatory nature and therefore all the elements or the rule must be
complain=ed with. By way of exception, the certification cannot altogether be
disregarded with or its requirements be disregarded as the rule does not prohibit
substantial compliance under justifiable circumstances, considering especially that
although it is obligatory, it is no jurisdictional. For example, when all the
petitioners share a common interest and invoke a common cause of action or
defense, the signature of only one of them in the certification against form
shopping substantially complies with the rule. ( Paqyuing v Coca-Cola.
Philippines, Inc., 543 SCCRA 344 [2008]
Judgment
Rendition of judgment
A decision in a civil cse is rendered only upon the signing by the judge
who penned the same and upon filing with the clerk of court. What constitutes
rendition of judgment is not the mere pronouncement of the judgment in open
court but the filing of the decision singed by the judge with the Clerk of Court. A
draft decision does not operate as judgment on a case until the same is duly signed
and delivered to the clerk of court for filing and promulgation. (Mondala v.
Mariano, 512 SCRA 585 [2007]

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Motion for reconsideration

Remedy after judgment was rendered but before it becomes final.
A motion for reconsideration or new trial is the remedy available for a
party to challenge a judgment if they 15-day period from receipt of judgment for
taking an appeal has not yet expired. (Domingo Realty, Inc. v. Court of Appeals,
513 SCRA 40 [2007]
Where the grounds raised in a motion for reconsideration have been
sufficiently considered, if not squarely addressed in the Decision, it behooves
movant to convince the Court that certain findings or conclusions in the Decision
are contrary to law. (Shangri-La international Hotel Management, Ltd. v
Developers Group of Companies, Inc., 512 SCRA 143 [2007]
Remedy is to appeal from the judgment and nor from the order denying
the motion for new trial or reconsideration.
An order denying a motion for new trial or reconsideration cannot be
appealed. The rule is to appeal from the judgment and not from the order rejecting
the motion for reconsideration or new trial. It the 15-day period for taking an
appeal has lapsed, then the aggrieved party can avail of Rule 38 by filing a
petition for relief from judgment which should be done within 60 days after the
petitioner learns of the judgment, but not moe than s6 months after such judgment
or final order was entered. The remedy of party whose petition for relief from
judgment has been denied is to file a special civil action for certiorari under Rule
65, not an appeal since this is proscribed under Section l, Rule 41 of the Rules of
Civil Procedure. (Domingo Realty, Inc. v. Court of Appeals, 513 SCRA 40 [2007]
Remedy to assail judgment by compromise
A compromise agreement, even if it is immediately executory, can still be
annulled for vices of consent or forgery. Thus, if one of the parties claims that his
consent was obtained through fraud, mistake, or duress, he must file a motion
with the trial court that approved the compromise agreement to reconsider the
judgment and nullify or set aside said contract on any of the said grounds for
annulment of contract within 15 days from notice of judgment. (Domngo Realty,
Inc. v. Court of Appeals, 513 SCRA 40 [2007]
Q. What is the remedy of a party of an adverse decision rendered by a voluntary
arbitrator?
A. If errors or fact and/or law are raised, the remedy is to file a petition for review
under Rule 43 of the Rules of Court. (BS-CBN Broadcasting Corporation v. Worl
Intractive netweork Systems Japan Co. Ltd., 544 SCRA 308 [2008]

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Q. Suppose it is expressly stipuated that the decision of the arbitrator shall be final
and unappealable and that no further judicial recouse if either party disagrees with
the whole or pary of the arbitrators award may be availed of cannot be held to
preclude in proper cases the power of judicial review which is inherent in courts.
(ibid.)
The dispositive portion of the judgment or decision or final order prevails
over the discussion or the body of the said judgment or decision or final order.
(V.C. Ponce Company, Inc. v. Reyes, 561 SCRA 646 [2008]

Writ of execution
Execution of judgment can be issued only against a party to the action and
not against one who did not have his day in court. (Panotes v. City Townhouse
Development Corporation, 512 SCRA 269 [2007]
The duty of the sheriff in the execution of the writ is purely ministerial.
He is to execute the order of the court strictly to the letter and has no discretion
whether to execute the judgment or not. (Cebu International Finance Corporation
v. Cabigon, 515 SCRA 616 [2007]
A writ of execution being the final stage in the litigation process,
execution of judgments ought to be carried out speedily and efficiently since
judgments left unexecuted or indefinitely delayed are rendered inutile and the
parties prejudiced thereby, condemnatory of the entire judicial system. ( De Leon
Dela Cruz v. Recacho, 527 SCRA 622 [2007]
A sheriff who demands or receiveds money for the execution of a wirt of
demolition is a clear violation of the Rules. The Rules require the sheriff to
estimate his expenses in the execution of the decision, and the prevailing party
will then deposit the said amount to the Clerk of Court who will disburse the
amount to the sheriff, subject to liquidation. (Ibid,)
It is mandatory for a sheriff to make a return of the writ of execution to the
clerk or judge issuing it within thirty (30) days upon his receipt of the writ.
(Katipunan ng Tinig sa Adhikain, Inc. v. Maceren, 530 SCRA 395 [2007]) For
instance, a sheriff who accepts money from the plaintiff prior court approval of
the estimated expenses, and which amount he spen for his snacks and
transportation anf for the allowance of the police who accompanied him in the
implementation of the writ of execution violates Section 9, Rule 141 of the Rules
of Court. Suelto v. Forniza, 534 SCRA 170 [2007]

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Land registration judicial proceedings
A person who seeks confirmation of an imperfect or incomplete title to a
piece of land on the basis of possession by himself and through his predecessorsin-interest shoulders the burden of proving by clear and convincing evidence
compliance wit the requirements of Section 48[b] of CA No. 141 as amended. He
must prove that the land is alienable and disposable public land; and that he or
through his predecessors-in-interest, have been open, continuous, exclusive, and
notorious possession and occupation of an alienable and disposable land of the
public domain, under a bona fide claim of acquisition or ownership since June 12,
l945. (Reyes v. Republic, 512 SCRA 217 [2007]
Section 39 of PD governs the issuance of decree and title
PD 1529 Land Registration Decree does not specifically provide for
execution of judgments in the sense ordinarily understood and applied in civil
cases. The reason being there is no need for the prevailing party to apply for a writ
of execution in order to obtain the title because Rule 39 of the Rules of Court is
not applicable to land registration cases. The procedure to follow in the matter of
issuance of decree of registration and tile is outlined in Section 39 of the PD 1529.
(Republic v. Nillas, 512 SCRA 286 [2007] It is does clear that the obligations
provided in this Section 39 are levied on the land court to issue an order directing
the LRC to issue in turn the corresponding decree of registration, its clerk of court
to transmit copies of the judgment and the order to the LRC and the latter to cause
the preparation of the decree of registration and the transmittal thereof to the
Registry of Deeds. All these obligations are ministerial on the officers charged
with their performance and thus generally beyond discretion of amendment or
review. (Ibid., p. 299)
Note: Laches and prescriptionwill not render inefficacious a decision
rendered by the court in an original land registration proceedings.
In Sta Ana v. Menla, l SCRA 1294 [1961] it laid down the doctrine that
neither prescription nor laches may render inefficacious a decision in a land
registration case. This doctrine was reiterated in the case of Heirs of Cristobal
Marcos, etec, et al v. De Banuvar, et. Al., 25 SCRA 316 [1968[ where in that case
it was argued that a prayer for the issuance of a decree of registration filed in l962
pursuant to a l938 decision was, among others, barred by prescription and laches.
In rejecting this argument, the Court was content in restating with approval the
ruling in Sta. Anna v. Menla. The same ruling in Sta Anna was upheld in Rodil v.
Benedicto, 95 SCRA 137 [1980], Vda de Barroga v. Albano, 157 SCRA 131
[1988], Cacho v. Court of Appeals, 269 SCRA 159 [l997] and Paredes v. Court of
Appeals, 463 SCRA 504 [2005]; This doctrine set up in Sta Anna v. Menla and the
subsequent cases is again reiterated in Republic v. Nillas, 512 SCRA 286 [2007].
The doctrine of stare decisis compels respect for settled jurisprudence.

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Judgment in Forcible Entry and Detainer immediately executory
Under Rule 70, a judgment in favor of the plaintiff shall be immediately
execuory. It can be stayed by the defendant only by perfecting an appeal, filing a
supercedeas bond, and making a periodic deposit of the rental or the reasonable
compensation for the use and occupancy of the property while the appeal is
pending. (Republic v. Luriz, 513 SCRA 140 [2007]

Revival of judgment
An action for revival of judgment is no more than a procedural means of
securing the execution of a previsous judgment which has become dormant after
the passage of five years without it being executed upon motion of the prevailing
party. (Panotes v. City Townhouse Development Corporation, 512 SCRA 269
[2007]
Forcible entry and unlawful detainer
In an action for forcible entry, the plaintiff must prove that he was in prior
possession of the land or building and that he was deprived thereof by means of
force, intimidation, threat, strategy or stealth. (Yu v. Pacleb, 512 SCRA 402
[2007]
Habeas corpus
A petition for the issuance of a writ of habeas corpus may be availed of in
cases of illegal confinement by which any person is deprived of his liberty, or by
which the rightful custody of any person is withheld from the person entitled
thereto. (Ormilla v. Director, Bureau of Corrections, 512 SCRA 177 [2007]
Declaratory Relief
For such an action for declaratory relief to prosper before the RTC, it must
be shown that (a) there is a justiciable controversy, (b) the controversy is between
persons whose interests are adverse, )c) the party seeking the relief has a legal
interest in the controversy, and (d) the issue involed is ripe for judicial
determination. (Baan Teleommunication, in. v. Republic, 514 SCRA 562 [2007]
A mere apprehension of an administrative sanction does not give rise to a
justiciable ontroversy. (Ibid.)
Injunction
Nature and scope

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A writ of preliminary injunction is a provisional remedy, an adjunct to a
main suit, as well as a preservative remedy issued to preserve the status quo of the
things subject of the action or the relations between the parties during the
pendency of the suit. (Yujuico v. Quiambao, 514 SCRA 243 [2007]
Meaning of status quo
Status quo is the last actual peaceable uncontested status that preceded the
controversy. Court should avoid granting a writ of preliminary injunction that
would in effect dispose of he main case without trial. (Yujuico v. Qiambao, supra)
Requisites for its issuance
In order for a a restraining order or the writ of injunction to issue, the
petitioner is tasked to establish and convincingly show the following (1) right in
esse or a clear and unmistakable right to be protected; (2) a violation of that right;
(3) that there is an urgent and permanent act and urgent necessity for the writ to
prevent serious damage. (Samahan ng Masang Pilipino sa Makati, Inc. v. Bases
Conversion Development Authority, 514 SCRA 88 [2007] A judge who issues an
order granting a writ of preliminary injunction which does not conain specific
findings of fact and conclusion of law that the requirements for the grant of the
injunctive writ are present commits a grave abuse of discretion. (Yujuico v.
Quiambao, 514 SCRA 243 [2007]
Replevin is an action whereby the owner or person entitled to repossession
of good or chattels may recover those goods or chattels from one who has
wrongfully distrained or taken, or who wrongfully detains such goods or chattels.
(Smart Communications, Inc. v. Astorga, 542 SCRA 434 [2008]

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