2AA NOTES IN CIVIL PROCEDURE
A.Y. 2014-2015 A case is ready for trial when there is already a
Rule 30-71
RULE 30
So tapos na tayo sa commencement of an action,
pre-trial, trial.
Now, what is a trial?
A trial is a judicial proceeding wherein the court
investigates and determines the controversies in a
case. It is called the reception of evidence, on both
sides and based on those evidence the court will
render a decision based on facts and the law.
So if you would notice, trial involves investigation,
determination of facts and presentation of
evidence. Those are the stages that comprise a
trial.
Is hearing the same as trial?
They are used interchangeably but there are
differences. Like number one in trial it is called
reception of evidence, but in hearing it involves a
broader scope.
So which is broader a hearing or trial?
Hearing
So a hearing pertains to the stage of pre-trial,
trial, and trial wherein you said there is reception
of evidence so hearing is broader than trial.
When is trial necessary?
When there is a genuine issue submitted before
the court.
What issue would need trial? Is it factual or
legal issue?
Factual. Because there is investigation and
presentation of evidence. So factual issue would
entail presentation of evidence. So when the issue
is factual there is a need to conduct trial because
when the issue is mere legal there is no need to
present evidence. What the court would do is to
resolve based on applicable law, rules, regulations
or jurisprudence.
When is a case ready for trial?
joinder of issues and, so that means that the last
pleading has already been submitted to the court
and then the court determines that there is a
genuine issue of fact that needs to be resolved.
Okay, now, under section 3 of rule 30. I want you
to go over sec.3 of rule 30. Postponement of a trial
on the ground of absence of evidence.
What are the requisites wherein there is a
valid postponement of trial based on the
ground of absence of evidence based on
section 3?
First there must be a motion for the
postponement, and there must have been an
affidavit or a sworn statement showing the
materiality or relevancy of the evidence and that
such evidence could not be produced despite due
diligence
So under sec. 3 we have a situation where, for
example, today is the scheduled presentation of
the evidence, however, ung ebidensya na gustong
ipresenta ng witness ng plaintiff, hindi available,
walang ebidensya kasi hindi niya na-obtain.
So under sec.3, the trial may be postponed on
certain conditions. But sec.3 has already been
modified by the Judicial Affidavit Rule which was
effective January 1, 2013.
Under the judicial affidavit rule, the parties shall
file to the court and serve on the adverse party
personally or by licensed courier not later than 5
days before pre-trial or the schedules hearing,
first the judicial affidavits of their witnesses
which shall take the place of the witnesses direct
testimonies and attached to the judicial affidavits
are the parties documentary or object evidence.
So under the judicial affidavit rule, 5 days before
pre-trial, kung 10 ang witnesses mo, you should
submit the judicial affidavits of your 10 witnesses
and attached to those affidavits are the evidence,
documentary or object which will be identified by
the witnesses during the scheduled trial.
So ngayon halimbawa, it is my turn to present
evidence and my witness is Mr. Cruz, dapat nung
nag pre-trial meron nang judicial affidavit at ung
mga ebidensya na i-aaydentify niya ay naka-
attach na sa judicial affidavit.
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So pag nag-hearing today, there is no more reason
to postpone because of absence of evidence kasi
kailangan yun naka-attach na sa judicial
affidavit. That is what we do right now kaya
mabilis kami mag-rule sa civil cases, magresolve
ng civil cases.
Okay, halimbawa, what is the effect if the
parties fail to submit the judicial affidavit?
Hindi ako nag-file ng judicial affidavit ni Mr. Cruz
at siya ay listed as my witness sa pre-trial, hindi
ko siya pwede i-presenta. Ung mga ebidenysa
niya, hindi ko na rin pwedeng i-presenta. I am
deemed to have waived his presentation and I am
deemed to have waived the presentation of the
evidence that he is about to identify.
So under sec.3 there is no reason to postpone for
absence of evidence, unless, under exceptional
circumstances. Because the court should not
admit as evidence documents or objects which are
not attached to the judicial affidavit. So yun ung
tatandaan niyo. No excuse na, your honor the
witness ir not around or the documents he is
about to present, he failed to bring. Hindi na
pwede kasi dapat naka-attach na yan.
Can there be a postponement on the ground
of illness of a party or a lawyer?
Yes. There can be a postponement but there must
be a motion to that effect and there must also be
an affidavit or a certification showing that the
appearance of that party is indispensable and that
the nature and character of his illness is
excusable.
Okay, and it is a practice in court that a party
absent due to an illness should submit a notarized
medical certificate I do not accept med cert that is
not notarized. Ang daling makakuha ng med cert
diba? Kaibigan niyo doctor, pahingi nga ng
medcert. So it should be notarized.
Is postponement a matter of right? That if
there is a motion to postpone on the ground
of illness the court should automatically
grant it?
No mam, it is on the sound discretion of the court.
May experience ako notarized med cert, hindi
maka-attend ung plaintiff who will be presented
as witness, ang nakalagay sa med cert, my
ingrown sabi ko, ako nga pumapasok na may
ingrown, ang sinusuot ko nalang open shoes, so I
denied the motion to postpone. Hindi lahat ng
illness pwede, well kung sore eyes, or na-stroke,
or high blood, mahirap ung court room syempre
baka tumaas ung BP mamatay, so delikado yun.
So it must be a valid, should be a valid, the non
attendance should be excusable.
Siguro kung pinutol ung paa, saka ung bunot sa
ngipin, paano naman makakapagsalita. Syempre
masakit ang ngipin mo, lahat yan , masakit na.
sore eyes, I really. Kasi lahat kami magkakaron
ng sore eyes.
Under section 5, this confirms the
importance and significance of a pre-trial.
Why?
Mam because the issues that will be discussed
and that will be taken upon by the court will only
be the ones taken up in the pre-trial.
So, only issues, so trial shall be limited to the
issues set forth in the pre-trial only. Sabi ko nga,
the pre-trial shall control the court proceedings. If
the parties would present evidence which are
irrelevant or immaterial to the issues then it
should not be allowed.
The order of trial is, who should present
first evidence?
It is the plaintiff who produce evidence first.
So plaintiff, halimbawa, ikaw ung plaintiff 10 ung
testigo mo, tatapusin mo lahat yun, with the
judicial affidavits and the documentary and object
evidence and after that you will rest your case and
make a formal offer of evidence. So lahat yung
mga ebidensya, ifoformal offer mo, because
evidence that is not formally offered cannot be
admitted and considered by the court although it
is identified. Kasi class pag nagpaidentify ka ng
ebidensya, it doesnt mean iooffer mo na yun, kasi
pina-idenitfy mo yun pala hindi mo naman
kailangan or unfavorable to you, wag mong i-offer.
So after the plaintiff has rested his case. Ano
ba yung rest?
Meaning wala ka nang ibang ippresent na
evidence and you will formally offer your evidence.
After that, who would be next?
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It would be the turn of the defendant to present
evidence
So ung defendant if he has 5 witnesses and then
rest his case, formal offer of evidence.
And after that, what happens?
After that mam, if there is third party defendant
he may also produce his evidence
So ung third party defendant by the way, yung
defendant, kung nag-file siya ng third party
complaint, magpipresent siya ng evidence against
the plaintiff for his defense. He will present his
evidence against third party defendant. Sabay
sabay na yun para hindi paulit ulit na babalik, ok,
so third party defendant and so on, kung may
cross claim, ung cross claimant.
Now, after that, can there be presentation of
rebuttal evidence?
Yes mam. The parties may be allowed to present
just rebutting evidence and not any evidence.
Halimbawa, during a cross examination or during
the presentation of witnesses by the defendant,
sabi nung plaintiff may irerebut siya, gusto niya
icontrovert ung mga pinresent na evidence ng
defendant, but that is discretionary upon the
court. Rebuttal evidence.
It is not only the plaintiff who may present, also
the defendant may present rebuttal evidence. And
there could be sur-rebuttal, ako I allow, kung
merong motion for rebuttal I only allow one
setting kung hindi ka nakapag-presenta on one
setting, lahat ng ebidensya mo on rebuttal will be
already waived.
My position is you should present everything
during your evidence in chief, same is true with
the defendant, under such such circumstances
lang ako nagaallow ng rebuttal but it is
discretionary upon the court.
So itatanong ko, ano ba ung nature ng evidnce na
iipepresenta mo on rebuttal. Sasabihin your
honor, kasi eto po, yung sinabi po ng defendant na
ganyan na invalid yung aming contract, oh?
Irerebut mo pa ba yun eh nagpresent ka na nga
ng evidence on the validity of the contract,
irerebut mo pa ba yun eh you already cross
examined the defendant and during cross
examination, you already presented evidence? So
in that case I do not allow rebuttal.
Now, may an action be suspended,
halimbawa nagtatrial na tayo, can it be
suspended?
Yes mam.
On what grounds?
It may be suspended when the parties would like
to enter into a compromise
Eto kasi especially when we discussed JDR, diba
nagtatrial na, nagppresent na ng ebidensya ang
plaintiff nagmove ngayon ung defendant. Your
honor move to suspend the proceedings because
there is an on going settlement among the parties,
eh papayagan yang korte kasi that is an ADR
para hindi na humaba ang trial. But there must
be a sincere and valid intent to enter a
compromise not merely to delay the case so
especially if sabi nung isang party, your honor, we
would like to have a mid-trial JDR, the court will
have to accommodate that for purposes of entering
into a settlement and eventually enforcing or
entering into an agreement.
Now who must receive evidence during
trial?
It must be received personally by the judge who is
trying the case
So pwede bang halimbawa absent ako,
sasabihin ko dun sa aking branch clerk of
court, naka-leave ako, may naka-set tayong
hearing ikaw na muna ang umupo at
pakinggan mo ung ebidensya?
The reception of evidence can be delegated to the
branch clerk of court if it is ex parte.
When can there be an ex parte presentation
of evidence?
When there is a declaration of default and when
there is a written agreement by the parties
So it is the judge who must receive evidence,
testimonial, kailangan ako ang makinig dun in
open court and documentary evidence, it should
be the judge personally.
There could only be delegation of reception of
evidence when there was a declaration of default
and presentation will be made by the plaintiff ex
parte, so it will be delegated to the branch clerk of
court.
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Halimbawa yung branch clerk of court ko ay
hindi siya lawyer, bachelor of laws lang or
OIC lang siya. Can the reception of evidence
be delegated upon a clerk of court who is not
a lawyer?
No mam because the rules are clear that the
branch clerk of court must be a lawyer
Can the branch clerk of court rule on
objections during the ex parte presentation
of evidence?
No. only the judge could do so.
RULE 31
Rule 31 pertains to consolidation or severance.
When may there be consolidation of cases?
So halimbawa, limang civil cases ang
involved, when may there be consolidation
of cases?
There may be a consolidation when there is a
common question of law or fact in those several
cases
Halimbawa, you are the owner of 5
apartments, 5 ung tenants mo, lahat yun
ineeject mo, gusto mo na paalisin pero iba
ibang tao yun. You want to eject them form
your property because of non payment of
rentals. Can these cases be consolidated?
Yes mam. Kasi may common question of law diba?
Is there a ground for the action to recover
possession? there are similar factual
circumstances, lahat sila tenants mo, lahat sila
nagrerenta, lahat sila, hindi nagbabayad, so there
can be consolidation, and yung limang cases na
yun lets say for example, kasi pag nagfile ka
naman ng case iba ibang docket numbers yan so
pag niraffle yan sa iba ibang courts mapupunta or
pwede ding sa isang court lang but most probably
sa iba ibang courts yan.
Dun sa example natin sabi mo consolidation
is proper, so lima, saang court ngayon
macoconsolidate ung lima? Pwede bang
pumili na, ay dun kay judge mas ok yun?
Mam it will be consolidated in the court where is
is already commenced to be tried.
Eh pare-pareho naman ng stage yan eh. Well in
practice what we do is cases will be consolidated
to the case with the lowest docket number so,
kung ako ung court na 01, 02, 03, kung ako ung
na-raffle ung 01, sakin mapupunta ung napaka-
malas, lima agad ung kaso. Kaya kami minsan
naguusap usap, deny mo na ung consolidation,
lalo na ako ung lowest, kaya sabi ko nako,
magpapa-consolidate, minsan kasi 10 cases
naconsolidate lahat, ako ung lowest docket
number. Appeal in an ejectment case, 10 tenants,
madali naman iresolve yun eh kaya lang ang
daming tenants, sa isang kaso pamilya, ang
daming heirs, mula nung mumulat mata nung
ninuno nila so ilan anak nun napaka-rami, pag
naghihearing kami puno ang court room. So
consolidated, malas lang yung judge na may
lowest case docket.
Now yung severance, halimbawa yung 10 na
yun, na-consolidate, when can there be
severance of cases?
There can be severance of case if it involves only
one case but there are several claims in that
particular case
Halimbawa nanganak na, third party complaint,
fourth party complaint, fifth party complaint,
cross claim, may compulsory counter claim pa.
well ung compulsory counter claim at cross claim,
pwede bang i-severe yun?
No mam it must be tried in the same action.
May permissive counterclaim be severed?
Yes.
Yung third party complaint pwede ba
isevere un? Yes. Kasi madedelay na ung purpose
ng main action. That is the purpose of severance
of cases.
RULE 32
Now, let us proceed to, rule 32. Trial by
commissioner.
In this proceeding there must always be a
hearing and who will conduct the hearing?
The commissioner
And who is a commissioner under the rules
of civil procedure? Kasi madami tayong
commissioners in our government eh,
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commissioner ng different bodies, mga
government agencies.
Mmam a commissioner is a person upon whom a
case being tried in a court is delegated upon him.
So that he will get the testimony of witnesses.
Under section 1 of rule 32, who are included
as a commissioner? What may be included in
the term commissioner?
A referee, an examiner and auditor.
Well hindi ito ung referee na ano ha referee kasi
may referral eh, so it was referred to him, auditor,
well when you look at the dictionary, and auditor
is nakikinig eh pakikinggan mo, yung book of
accounts mo inaaudit, and examiner, ineexamine
kung ano yung mga issues involved that will be
referred by a court to a commissioner.
Now what are the 2 modes of referring a
case to a commissioner?
Number 1 mam by motion or by agreement of both
parties
So both parties must agree for a referral to a
commissioner and the second one is if one party
wants to refer to the commissioner and there
is a third mode [when the court appoints a
commissioner]. Lalo na pag accounting ng mga
mana, ung settlement of estate magsusubmit ung
executor, halimbawa nagpasubmit ako, render an
acoounting, jusko napaka-ano nyan
Lalo na kung wala kang background sa
accounting, and you know class even if a judge
has a background in accounting, kasi yung
pagtingin mo sa mga papeles na yun, would divert
you from judicial functions, magheahearing ka,
magsusulat ka ng decisions, so you refer to the
experts or to a commissioner.
But there are actions wherein trial by
commissioner is mandatory. And what are
those actions?
Expropriation cases under rule 67.
What else?
Special civil action.
What kind of special civil action?
Kasi ang expropriation is a special civil action,
ano pa yung isang special civil action that would
require mandatory referral to a commissioner.
Partition under rule 69, and in partition
proceedings. Settlement of estate of deceased
persons when the claims are contested, and
submission of accounting by administrators or
executors.
When may there be a referral to a
commissioner? What are the situations when
there may be referral either by agreement of
the parties or by motion or by the court
motu proprio?
Mam when it is necessary to take the long account
of the party, or parties, and when taking of such
account is necessary before judgment can be
rendered and then when an issue or a question
arises during the trial itself and when it is
necessary to effect judgment.
For carrying a judgment or order. So you would
notice for carrying a judgment, referral to a
commissioner may be done even after the trial.
Lalo na kung sa writ of execution at
nagkakaproblema kung ano ba yung mga
properties na ieexecute, magkano ba yung mag
properties na ieexecute, so to carry into effect the
judgment.
What are the powers of the commissioner?
Mam depending on the order of the court because
the court may limit it or limit the powers but
generally his power involves number one, hearing
regarding the case and then he may rule upon the
admissibility of evidence.
So there is authority to rule upon the
admissibility of evidence. Should a
commisisioner be a lawyer?
Not necessarily mam
But with respect to a branch clerk of court
receiving evidence?
The branch clerk of court must be a lawyer
The branch clerk of court has authority to
rule on objections?
No. Ito ung absurd jan, pwede mag-rule ng
admissibility ang commissioner who is not a
lawyer but a branch clerk of court who is a lawyer
is not authorized to rule. But that is what is
provided for under the rules of court.
The commissioner before entering and performing
his duties must be sworn, he must be under oath.
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Kung walang oath, what would be the
consequence of that on the proceedings that
he has conducted?
It will be void. Void kasi he should be under oath.
Inappoint lang siya ng court eh.

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What would be the effect of the failure of the
parties to appear before a commissioner?
The commissioner may either proceed ex parte or
he may adjourn the proceedings with notice to the
other party
Does the commissioner have the authority to
issue subpoena ad testificandum or
subpoena duces tecum?
Yes mam
So he has the authority and if the party fails
to obey the subpoena, does he have the
power to cite the disobedient party in
contempt of court?
Mam it will be contempt of the court which issued
the order to refer the case of to the commissioner
So the commissioner will report to the court and it
is the court who will cite the disobedient party of
contempt. The commissioner has no authority by
himself to cite a disobedient party in contempt of
court.
What must be contained in the commissioner
report? So after hearing, halimbawa ikaw na-
appoint ka ng commissioner, you are required by
the court to conduct a hearing on the accounting
submitted submitted by the executor in the
settlement of estate, so magcoconduct ka ngayon
ng hearing jan, kaya magiissue ka ng subpoena,
before you magaappear ang plaintiff and
defendant, meron din jang mga cross examination.
Parang trial before the court but it is being
conducted by the commissioner, after the
termination of the hearing before the
commissioner, he will submit a report.
What should be contained in the report?
Mam the report must contain his ruling on the
issues.
Ruling? Is a commissioner allowed to rule?
Bo mam his findings of issues that are submitted
before him. So factual findings of the issues
submitted before him.
Apart from that what else? Is presentation of
evidence made before a commissioner?
Yes. The commissioner can receive evidence. Ung
accounting, it will be presented before the
commissioner.
Can there be affidavits?
Yes mam
Can there be depositions?
Yes mam
So the factual finding and the depositions and
affidavits must be attached to the report
Now the question is what is the value of that
report on the judge?
It is not binding upon the judge such that the
judge may adopt it in full or in part or may modify
it or reject it totally.
Can the judge refer it back to the
commissioner and require him to conduct
further hearings?
Yes mam
Okay, so you mentioned that the court may totally
reject the report but the rejection should not be
whimsical there must be valid grounds for the
rejection.
One ground is when the commissioner
submitted a report without conducting a
hearing? What is the effect if there is no
hearing conducted before the commissioner?
The proceeding will be void
Yes. Kaya nga trial by the commissioner. There
must always be a hearing.
So would you say that the repost of the
commissioner is merely recommendatory
upon the court?
Yes mam.
So that is trial by commissioner. We will be
discussing in detail what really happens in a trial
by commissioner when will be discussing
expropriation and partition because in these
special civil actions, trial by commissioner is
mandatory.
RULE 33
In civil cases what is demurrer to evidence?
Demurrer to evidence is a kind of motion to
dismiss based on the ground that the plaintiff was
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not able to show that he has a cause of action or
that he is not entitled to the relief.
He has no right, he has shown no right to relief
based on the evidence presented.
It is different to say when the plaintiff has no
cause of action it may be that the plaintiff has a
cause of action but based on the evidence
presented he was not able to prove his cause of
action.
Halimbawa nangutang ako sayo, you have a cause
na hindi ako nagbayad and you filed a case
against me, may cause of action ka pero nung
presentation of evidence hindi mo naman
naipresenta ung promissory note, so you have no
right, you did not present sufficient evidence to
establish your right to relief.
Does demurrer to evidence under rule 33
apply to election cases?
No. it is very clear when we started discussing the
rules of court. It does not apply, the rules of court
does not apply to election cases.
When do you file the demurrer to evidence?
The demurrer to evidence is filed by the defendant
after the plaintiff has rested his case.
With respect to demurrer to evidence in civil
cases, is leave of court required before you
can file it?
No mam. So there is no requirement for leave of
court.
But in criminal cases, do you need to file
demurrer to evidence with leave of court?
It may be with or without leave of court.
What is the consequence if there is no leave
of court in criminal cases and a demurrer to
evidence was filed?
If the demurrer to evidence was denied then the
defendant will not be able to present his evidence.
So, how would you distinguish, because you
mentioned a while ago that a demurrer to
evidence is a dismissal of the case based on
insufficiency of evidence.
How would you distinguish a demurrer to
evidence from a motion to dismiss which we
have discussed under rule 16?
First mam, with respect to the time of filing, the
motion to dismiss is filed before the defendant
files his answer while in a demurrer to evidence it
is filed after the plaintiff rests his case and as to
the grounds, the motion to dismiss under rule 16,
there 10 grounds for it but in demurrer to
evidence the ground could be that the plaintiff
wasnt able to show that he is entitled to a relief.
So, in a motion to dismiss, you should file it
within 15 days within the same period for filing
an answer. In a demurrer to evidence, you file it
after the plaintiff has presented his evidence and
has rested his case.
If the demurrer to evidence is granted, what
is the effect of that?
Then the case will be dismissed because the court
would rule that the plaintiff was not able to
substantiate his right of action.
If the demurrer to evidence is denied, what
is the effect?
If it is denied mam, then the defendant will have
to present his evidence. So the trial will proceed.
Let us say the trial court granted the demurrer to
evidence and you said the case would be dismissed
what is the remedy from the dismissal of the case
upon a demurrer to evidence?
So dinissmiss ng court, insufficiency of
evidence, anong remedy ngayon ng plaintiff
syempre nadismiss ang kaso niya?
He may appeal.
The plaintiff appealed, on appeal the court of
appeals reversed the dismissal. Sabi ng court of
appeals, well based on the evidence presented by
the plaintiff, he has sufficiently proved his case.
So there is no ground to dismiss and to grant the
demurrer to evidence.
Ngayon, what is the consequence of that?
Then mam the defendant will not be permitted to
present his evidence because he is deemed to have
waived that right.
So pag nareverse on appeal, yung dismissal, the
defendant shall be deemed to have waived his
right to present evidence and the court of appeals
would rule or decide the appeal based on the
evidence presented by the plaintiff.
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So in civil cases, it is really a risk to file a
demurrer to evidence. Kasi pag na-grant tuwang
tuwa ka nadismiss, ngayon pag nareverse, wala
na. so you do not file a demurrer to evidence
unless you are sure that really there is
insufficiency of evidence on the part of the
plaintiff.
Usually class kasi halimbawa, in resolving a
demurrer to evidence, the judge should be careful
kasi, in this situation, the judge has only
determined the case or has assessed the case only
on the basis of the plaintiffs evidence, hindi mo pa
naririnig ung depensa ng defendant.
So whenever I rule on a demurrer to evidence
whether in civil or criminal cases, halimbawa,
based on the evidence presented by the plaintiff,
sans or without presentation of defendants
evidence yet, it appears that the plaintiff has
established his cause of action. Kasi kung
maglalagay ako ng complete or definitive
statement, eh tapos na ung boxing diba. Hindi ko
pa nalalaman ung ebidensya ng defendant eh may
definitive ruling na ako. So it has to be always
indicated that the defendant has not yet
presented evidence.
Kasi, nagpresenta ang plaintiff, may utang ang
defendant sakanya in the amount of 20million
pesos, pinresenta ang contract of loan, may
promissory note, nagissue ng cheke, naipresenta
naman lahat yun, ang idedetermine ko lang, na-
establish ba ung elements of the cause of action.
Una, is there a contract of loan, second, meron
bang failure to pay, third, may promissory note.
So meron talagang contract and failure to pay,
valid ung collection suit. Magpipresenta ngayon
ung defendant so idedeny ko ung demurrer, pwede
bang panghawakan ng plantiff na panalo na ako
kasi idedeny na yun ni Judge Quiambao? Hindi.
Eh kung magpresenta ung defendant sakin ng
official receipt, wala na diba. What will defeat the
cause of action of the plaintiff? Usually kasi pag
dineny mo ung demurrer to evidence, ipapainhibit
na yung judge. Sasabihin may pre-judgment,
meron nang bias kasi hindi pa nagppresent ung
defendant meron nang conclusion ang judge. Eh
very clear naman dito na it is one of the remedies
provided for under the rules.
So hindi dapat maginhibit ung judge. Kaya nga
very careful ung terminology nung Judge.
Without presentation of defendants evidence.
RULE 34
Now miss galura, judgment on the pleadings
under rule 34.
When may judgment on the pleadings be
availed of?
When there is no legal issue at all. For example
mam
No legal issue at all??? Under rule 34 section
1, when can judgment on the pleadings be
availed of?
Diba when an answer, fails to tender an issue. To
tender an issue. Whether legal or factual. So
walang issue talaga whether legal or factual. Or
the answer admits all the material allegations in
the complaint, the admission may either be by
reason of?
By stipulation.. of when the defendant has
Remember ito on the pleadings, wala pang
stipulation dito. Answer palang ang naififile so
when can there be admissions? First, when there
is a definite allegation on the answer, diba?
Indicating or admitting the material allegations
on the complaint or there is an implied admission
because the answer did not specifically deny the
material allegations in the complaint. In that
case, there could be a judgment on the pleadings.
And who between the plaintiff and the
defendant may move for a judgment on the
pleadings?
The motion will be filed by the plaintiff
The plaintiff or the claiming party. Kasi ang sabi
when an answer fails to tender an issue. So it is
the plaintiff who could move for a judgment of the
pleadings.
And if you are the defendant filing an answer with
counterclaim, dun sa counterclaim mo ikaw ang
plaintiff pwede ka ding magmove or if you are a
third party complainant diba based on the
pleadings that we have studied.
9|Page
Now, so the answer fails to tender and issue
whether legal or factual.
My question is, is evidence being considered
by the court in rendering a judgment on the
pleadings?
No mam. Just based on the pleadings.
And what are the pleadings we are talking
about here?
The complaint and the answer.
So remember that the judgment on the pleadings
may only be sought by the plantiff or the
claimant.
Is judgment on the pleadings proper when
no answer is filed? Walang answer, so ang
plantiff magmmove siya ng judgment on the
pleadings?
No mam
What is the proper remedy if no answer has
been filed by the defendant despite proper
service of summons?
Declare the defendant in default. Now, judgment
on the pleadings does not entail appreciation or
consideration of any evidence.
When the plaintiff or the claimant filed a motion
for judgment on the pleadings what would happen
to his claim for damages? Halimbawa kung claim
for specific performance with damages, the
answer of the defendant did not raise any factual
or legal issue so the plaintiff moved for judgment
on the pleadings, in his action for specific
performance with damages, what will happen
now to his claim for damages? Pwede bang
magrule ang court thru a judgment on the
pleadings to the plaintiff?
No mam
Why not?
Because the defendant was not able to present his
evidence, because the plaintiff was not able.. well
in judgment on the pleadings sabi nga natin
complaint lang at answer, pag nagcclaim ka ng
damages you have to prove it, you have to present
evidence so, sabi nga natin you do not appreciate
evidence here.
So what will happen?
The plaintiff will waive the claim for damages.
May the court render judgment on the
pleadings on its own? Halimbawa ako binasa
ko pleadings, ayy wala naman issue puro
admission lang, magrender na nga ako
judgment on the pleadings para madali.
No mam it must be on motion
It must always be on motion but I would like you
to refer to rule 18 section 2 paragraph (g). Will
you please read, ung purposes ng pre-trial.
The propriety of rendering judgment on the
pleadings, or summary judgment, or of dismissing
the action should a valid ground therefor be found
to exist.
This is one exception wherein the court could
render judgment on the pleadings motu proprio.
Halimbawa during pre-trial sabi natin
stipulations and admissions of facts. Lahat
inadmit na ng defendant, wala nang gagawing
trial in that case the court on its own on the
pleadings. If during pre trial it has been
determined that there is no more issue factual or
legal, what would be resolved? Remember that.
Section 2 rule 18 paragraph (g). Let us say that
the complaint speaks no cause of action. Is
judgment on the pleadings proper?
No mam
Anong remedy mo if you are the defendant
and the complaint states no cause of action?
Motion to dismiss
What are the cases where judgment on the
pleadings is not applicable? Not allowed?
When the action is for the declaration of nullity of
marriage, and for legal separation and for
annulment of marriage.
Hindi pwede dito ang judgment on the pleadings
because there could be no declaration of default
and because here kahit na hindi sumagot yung
spouse, the government, the office of the solicitor
general will have to, for the republic as parens
patriae will have to oppose or controvert the
petition for annulment or the declaration of
nullity of marriage.
10 | P a g e
 RULE 35
Now summary judgments. Summary judgment is
also known as accelerated judgment.
When is summary judgment proper?
Summary judgment is proper when there is no
genuine issue to resolve.
Genuine issue on what?
No genuine issue on factual matters except the
amount of damages. Absence of genuine factual
issue.
Who may move for summary judgment?
The defendant mam
Only the defendant?
Either mam. Either the plaintiff or the defendant.
Within what time may a motion for summary
judgment be filed? If it is the plaintiff or the
claimant, when should he file?
Upon the receipt of the answer of the defendant.
So any time from receipt of, or service of answer,
okay.
How about the defendant, within what time?
The same goes for the defendant mam, any time
during the trial of the case.
So if it is the defendant, at any time. Kahit na
hindi pa niya narereceive, at any time he can file.
Pero kung claimant ka, at any time after receipt of
the answer.
What are the requisites for a valid summary
judgment?
Number one mam, there must be no genuine
factual issue to be resolved, and then number two,
there must be a motion for the summary
judgment.
And when we say motion, it must comply with the
requirements under section 15, notice and
hearing.
What else are the requisites?
Under section 3 of rule 35 it provides that the
moving party must be entitled to a judgment as a
matter of law.
No genuine factual issue. What do you mean
by a genuine issue? Kelan ba may genuine
issue?
Mam there is a genuine factual issue when a fact
is being controverted and the parties are required
to
Now let us say that during pre trial the due
execution and genuineness of a document is
admitted. Halimbawa ung contract of loan which
is the subject matter of the case, halimbawa ang
action is annulment of the contract of loan or
recisision of the contract of loan, the defendant
admitted the due execution and genuineness of
the contract of loan. Is summary judgment
proper?
No mam
Why not?
Because what the defendant admitted is just the
genuineness and due execution of the contract of
loan but then there will be other factual issues that
are relevant and that needs to be proved.
Halimbawa sinabing ok, talagang yang contract of
loan na yan talagang it is not a forgery it is
genuine in fact nakapirma naman ako jan but the
problem is I was forced to sign. So that is another
issue. There is a factual issue because
intimidation or vitiation of consent was raised.
Summary judgment is not proper because there is
still factual issue which is relevant.
When there is no factual issue but there is a
legal issue, may summary judgment be
rendered?
Yes mam
May the court on its own render a summary
judgment on a case without any motion?
No mam it must also be on motion.
Can there be a rendition of a partial
summary judgment? Halimbawa may 5
issues, sabi ng court eh ung 3 naman, well
the other party claimed the the 3 issues are
not genuine factual issues kasi admitted na
yan, so dalawa nalang ung controverted
issues, in that case can the court render
summary judgment based on these 3 issues?
Yes mam the court may do so
11 | P a g e
And in that case what should the court do?
The court will render judgment on those three
issues and then continue the trial regarding those
issues that are in good faith controverted and the
court should specify and indicate the facts without
controversy wherein the court is rendering partial
summary judgments and what facts are
controverted wherein trial would proceed.
What could be the bases of the court in rendering
summary judgment? Remember sa judgment on
the pleadings talagang complaint and answer
lang, no evidence is allowed.
In summary judgment what could be the
bases of the court in rendering summary
judgment? Can the court appreciate
evidence?
Yes mam.
And what are those evidence that could be
appreciated and considered by the court in
summary judgment?
Testimonial
Testimonial which may be in the form of?
Written affidavits
What else?
Depositions & admissions under rule 26.
Admissions by the adverse party. Answers to
interogatorries. So those could be used by the
court as bases for rendition of a summary
judgment.
And these affidavits, depositions, answers to
interrogatories, the purpose of these is to show
that there is no genuine issue as to any material
fact and that the movant is entitled to a judgment
as a matter of law. In summary judgments, even if
the answer tenders an issue but it is not genuine,
judgment could be rendered. But that is not the
case in judgment on the pleadings.
How would you distinguish summary
judgment on judgment on the pleadings?
Mam in judgment on the pleadings, the court
considers only the complaint and the answer of
the parties while in summary judgments the court
in addition to that may also consider the evidence
of the parties depositions, admissions, and
affidavits.
What else?
In judgment on the pleadings it is filed by the
plaintiff or the claiming party while in summary
judgment either part may move for that.
When is judgment on the pleadings availed
of?
Judgment on the pleadings is available when the
answer fails to tender an issue and if there are
material admissions as to the material allegations
in the compliant. While in summary judgment, it
is filed when there is no genuine factual issue to
be resolved.
Ok, now. In judgment by default, kasi this is
another kind of judgment. What is the basis of
the court in rendering judgment by default?
In judgment by default, the basis of the court is
the evidence submitted by the plaintiff
And here is an answer filed?
No. So there is no answer, the court will just base
its decision on the evidence presented by the
plaintiff ex parte.
RULE 36
Judgment. When you say judgment, based on
the rules of court, what do you mean by
judgment?
Judgment is the determination of the court as to
the issues and controversies presented before it
and it lays down the obligations and the rights of
the parties in the case.
So it is the final determination of ruling by the
court of competent jurisdiction regarding rights of
parties or matters submitted before it.
Is judgment the same as decision?
No mam.
How will you differentiate that?
Mam I change my answer. They are the same
They are the same, depende lang yan sa kung
anong gusto ng judge. Pareho lang yan. Well
usually, ako talaga decision. I use judgment pag
nag-plea of guilty. Kasi in that case wla naman
ako ng factual determination, so ang nakalagay
na agad dun na-arraign, may information, tapos
nung una nagplea of not guilty tapos nagplea of
12 | P a g e
guilty, eto na ngayon ang kanyang sintensya.
Judgment. Parang abbreviated. Pag decision kasi
after a thorough but the effect is the same. Its
just a matter of terminology.
What are the requisites under our
constitution for a valid judgment?
Diba this is constitutional eh. The court that is
rendering judgment must have competent
jurisdiction, jurisdiction over the parties and the
subject matter. Both parties must be provided
with the opportunity to present their case and
their evidence. Those evidence presented must
have been considered by the judge in rendering
the decision and number 5 is that the judgment or
the decision must clearly state the facts and law
as basis for such decision.
Can there be an oral judgment?
It must be written mam
It must be in writing and personally prepared by
the judge. Kailangan written. And there must be
findings of fact and statement of issues and
conclusions. Those are the requisites for a valid
judgment.
What are the parts of a judgment or
decision?
The body and the fallo
Which part is subject of execution?
The fallo or the dispositive portion, yung
wherefore. So yun ung titignan mo.
In case of conflict between the dispositive
portion and the body of the decision, which
will prevail?
The general rule is that the fallo will prevail but
an exception is when there is just a mistake in the
fallo but the ration decidendi is very conclusive,
the ratio decidendi will be followed.
Halimbawa nakalagay sa body na entitled ung
plantiff to 10million of actual damages. Sa fallo
ang nalagay 1million lang, atsaka talagang sa
body yun yung intention 10 million.
Well in that case which will prevail?
The ration decidendi. Oo kasi talagang un ang
intent but as a genral rule or as a rule the
dispositive portion should prevail.
To begin. what must the trial court render to
make decision? Yung mga trial courts, how
many days?
Within 90 days.
How about court of appeals?
12 months from date of submission of decision.
How about supreme court?
Within 24 months.
So the decision should be rendered by the judge.
Personally rendered by the judge. And in our
constitution, it must be in writing with the finding
of facts and law and the conclusion.
What if the judge who tried the case, already
retired from the service or the judge died
and a new judge was appointed. So hindi
natapos ng dating judge yung pag gawa ng
decision. Inabot sa bagong judge yung pag
gawa ng decision. Is the decision valid?
The supreme court has ruledthat the decision is
valid.
What is the value of the decisions rendered
by the Supreme Court?
So it is basic that the decisions of the Supreme
Court forms part of the legal system. And these
decisions of the Supreme Court are accorded
mandatory judicial notice. Kahit sa opinion natin,
mali ang decision ng Supreme Court, it is the law.
Jurisprudence yan and must be adhered to based
on the principles of stare decisis.
When does a judgment or decision become
final?
In that case, it is final and can be executed. That
is one aspect of finality. That there is no appeal,
or the appeal was made, kahit na nag-appeal,
there was a final decision made by the Supreme
court or the appellate court and the judgment can
now be executed. Final and exeutory.
But there is another aspect of finality. In terms of
whether the court still has something to be done
with respect to the case. So when the trial court
renders a decision, it is final in a sense that the
judgment disposes of a case in a manner that
there is nothing more to be done by the court with
respect to that stage. But being final does not
mean it will be executed. Which is another aspect
of Finality.
13 | P a g e
Finality can be of two aspects.
1. Judgment that can be executed and
2. Finality in a sense that theres nothing
more to be done. In this case, it could be
appealed because it is already final as
against an interlocutory order.
When a motion to dismiss is denied, is that a
final judgment or merely an interlocutory
order?
When the motion to dismiss is denied, meaning
the case will proceed. So its merely an incident.
But when the motion to dismiss is granted and
the case is dismissed, is that a final order or is
there finality to that? Yes because there is
nothing more to be done by the court.
Within the Philippines, is conditional
judgment allowed?
No. Halimbawa sabi ko, in a complaint for
collection of a sum of money. Wherefore the
defendant is directed to pay the plaintiff the
amount of P1m provided that the defendant still
have properties. Is that a valid judgment? That is
a conditional judgment. That is void.
Ano ba yung judgment sin perjuicio or
Judgment without prejudice?
Judgment without stating the facts in support of
the conclusion. Halimbawa, you filed a case in a
court that has no jurisdiction. The other party
filed a motion to dismiss for lack of jurisdiction.
And the court granted it. Talaga naman wala
siyang jurisdiction. Ano ba yung judgment na
yun? Is it with prejudice or without prejudice?
Without prejudice. Meaning pwede pang i-file yun
in a court with proper jurisdiction. So walang
statement of facts like an entire decision. But
there is already a conclusion. Because the issue is
mainly lack of jurisdiction.
But there are other judgment without prejudice or
judgment sine prejuicio that are not allowed in
our jurisdiction. Halimbawa nilagay ko lang sa
decision ko, Plaintiff John Ree Doctor, filed
complaint for specific performance against Apple
Cruz, the defendant. After perusal of the evidence
presented by both parties, the Court finds the
plaintiff is entitled to P1m. Wherefore, the
defendant, Apple Cruz, is directed to pay John
Ree Doctor P1m plus damages.
Is it a valid judgment?
No. The judgment will not be binding in favour of
Mr. Cruz and it will not favor you kahit nanalo
ka.
Judgment upon compromise?
When we were discussing about mediation and
judicial dispute resolution, we said that the
purpose of this dispute resolution or court
diversion, is for the parties to settle the conflict
amicably. And when it is successful, the
compromise agreement will be executed by the
parties. And that compromise agreement will be
submitted to the Court. If the compromise
agreement is not contrary to law, public policy or
morals, the court will approve it.
Once approved, what is the value of that
compromise agreement?
A valid judgment. Kaya ang title nun ay
Judgment on compromise agreement. To
differentiate it from a regular decision issued by
the Court. At ang ginagawa dun, both parties
have entered in a compromise agreement dated,
kokopyahin ang entire compromise agreement.
Yun ang judgment upon compromise.
Halimbawa tayong dalawa, we entered into
a compromise agreement, after mediation,
inapporve ng court, can I appeal the
judgment of a compromise agreement?
No.
What is the effect of a judgment of a
compromise agreement?
Immediately executory. Bakit? Parehas na kasi
nag-agree. It means you have settled all the
conflicts and controversies between you.
Eh judge, paano po pag yung isang party, was
misled. Or the consent was vitiated. Hindi na
appealable.
What is the remedy of the aggrieved party?
Petition for certiorari. Kasi di na siya appelable.
Or to annul the judgment on compromise.
Entry of Judgment. When is the date of
entry of judgment?
Date of finality of judgment. Halimbawa,
nagrender ako ng decision, ikaw yung plaintiff,
nanalo ka, nareceive mo yung decision April 14,
you have 15 days to appeal, hanggang kelan ka
pwede mag appeal? April 29. Then hindi ka nag
14 | P a g e
appeal, syempre panalo ka. Pero may ibang
plaintiff walang satisfaction, sasabihin nila
masyado maliit. So ayun, hindi ka nag appeal,
pero hindi lang ikaw ang party, may defendant.
Nareceive ng defendant yung decision April 20,
and he has 15 days to appeal. So May 5. Exclude
the first, include the last. Dumating ang May 5,
hindi na sya nag-appeal.
In our example, kelan ang date of entry na
yun? May 5. Because the other party still has the
right to appeal.
RULE 37
We said that when the judgment becomes
final and executory, wala na talaga. But
what are the remedies of the losing or
aggrieved party before a judgment becomes
final and executor?
You can file a
1. Motion for new trial,
2. Motion for reconsideration or
3. Appeal
Within what period must the motion for
reconsideration be filed?
Within the period for perfecting of appeal. So 15
days or 30 days
When the motion for reconsideration was
filed, sabi mo within the period to appeal,
what is the effect of filing the motion for
reconsideration on the period to appeal?
It tolls the running of the reglementary period for
filing of the appeal.
What are the grounds for motion for
reconsideration?
1. Damages awarded are excessive,
2. The evidence is insufficient to support the
judgment or final order,
3. The decision or final order is contrary to
law.
Can a motion for extension, to file a motion
for reconsideration be filed? maglalapse na
yung 15 days, pwede mo ba ipaextend?
Denied agad yan ng court. Kasi kung may ground
ka, alam mo na yun, bakit ka pa magpapaextend.
And what are the requirements of motion?
So notice and hearinging are the mandatory
requirements for motion. Otherwise, they are
proforma and will not be given due course by the
Court.
And apart from the requirements of notice
and hearing, what must be specified in the
motion for reconsideration?
So it must be specified what is contrary to law,
what is the evidence which was overlloked,
evidence that must not be considered by the court.
When the motion for reconsideration, is
granted, what is the effect of that on the
decision?
So there will be an amendment, damages kunyari
is excessive, ibababa. So it would now change the
outcome of the decision.
The consideration may be total or partial. And
there is nothing wrong with the court if it
partially reconsidering its decision.
How many motion for reconsideration is
allowed for every party?
Only one. A party should not be allowed to file a
second motion for reconsideration to a judgment
or a final order. It is very clear under section 5 of
Rule 37.
Within what period must a motion for new
trial can be filed?
Within the period for perfecting of appeal. So 15
days or 30 days.
Is a motion for new trial allowed in cases
covered by summary procedures and small
claims?
No.
What is the effect in filing a motion for new
trial on the period of appeal?
The same as the effect of the motion for
reconsideration.
So being a motion, it should comply with the
requirements of Rule 15.
What are the grounds for a motion for new
trial?
1. Fraud, accident, mistake or excusable
negligence which ordinary prudence could
not have guarded against and by reason of
15 | P a g e
 which such aggrieved party has probably
been impaired in his rights; or
2. Newly discovered evidence, which he could
not, with reasonable diligence, have
discovered and produced at the trial, and
which if presented would probably alter
the result.
What kind of fraud?
Extrinsic fraud.
How would you distinguish you distinguish
extrinsic fraud from intrinsic fraud?
Extrinsic fraud connotes any fraudulent scheme
executed by the prevailing party outside the trial
against the losing party who because of such fraud
is prevented from presenting his side of the case.
(e.g. preventing witness from testifying) Intrinsic
fraud on the other hand refers to acts of a party
during the trial which does not affect the
presentation of evidence. (e.g. presentation of
forged promissory note.
When the ground is fraud, accident mistake
or excusable negligence which have
impaired the rights of the parties during
trial, what should support the motion for
new trial based on this ground?
An affidavit of merit. It should prove or shown to
the court that if a new trial would be allowed, he
has a meritorious defense or a meritorious cause
of action. Kasi kung hindi niya i-spespecify yun,
sasabihin ng court wala naman kwenta. You have
to show the merit of your case orr cause of action.
When should a new trial based on a newly
discovered evidence be denied?
If the decision will be the same, then the new trial
will not be allowed.
A newly discovered evidence is different from
forgotten evidence. Ang newly discovered
evidence, nung during trial, wala, not in custody
of the parties. Or nahihirapan sya to secure or
obtain the evidence despite diligence and nung
nag decision niya, dun lang niya nakuha.
What if yung plaintiff, after nung decision Ay
nasa akin pala yung receipt It is material and
proves payment. It is a forgetten evidence.
If in a motion for reconsideration, a second
motion is not allowed. In a new trial, is a
second motion allowed?
Second motion is allowed so long as it is based on
grounds not existing or available at the time the
1st motion was made.
So medyo lenient sa new trial, pwede ka mag
second motion. Lalo na if yung ground mo newly
discovered evidence. Kasi nga on grounds not
available or existing at the time the first motion
was filed.
Now in a motion for reconsideration, if it is
granted the decision is modified or amended.
If a new trial is already granted, what is the
effect of that?
It will stand for trial de novo.
What do you mean by trial de novo?
Magkakaroon ng re-hearing. Ibig sabihin ba nun,
mag prepresent ulit ng mga evidence? Yes but
those evidence already presented which are
material and relevant will no longer be presented.
You said upon filing for the motion for
reconsideration, or a motion for new trial, the
period to appeal is interrupted? Halimbawa ako,
nagfile ako ng motion for reconsideration, on the
15th day, denied ng court, so wala na yung motion
for reconsideration ko. Ang remaining remedy ko
na lang is appeal.
Question, how many days do I have left in
order to file an appeal?
Fresh period of 15 days. Dati kasi kung ano lang
yung remaining period, kung nag MR ka on last
day, and nadeny, may isang araw ka lang to
appeal. Exclude the first include the last. Kung
nag MR ka on the 5th day, meron ka pa 10 days.
Pero ngaun because of the NEYPES case. Fresh
period rule.
But what are you appealing? The denial for
the motion for reconsideration? Or the
judgment or decision?
The judgment not the denial of the motion for
reconsideration.
In criminal procedures, mayron din motion for
new trial. Meron dun re-opening of new trial
under Rule 119. Sec 23 or 24.
16 | P a g e
Is there such a thing as reopening of trial in
civil cases?
So in civil cases, pwede ka mag motion of
reopening for new trial.
But when must it be filed?
Bago mag decision ang judge.
For what grounds?
Justice and equity.
Now in the Neypes case, I would like to point out
that fresh period rule applies in Rule 40, Rule 41,
Rule 42, and Rule 43 and even in Rule 45.
RULE 38
Relief from judgments.
Is this available not only to the parties to the
action but to third persons whom have an
interest in the action but was not able to
intervene?
No, it is available only to the parties to the action.
What is the nature of the relief from
judgment? Ano na yung stage ng
proceedings dito?
Final and executory na kasi wala ng appeal,
walang MR, ieexecute na ng court. So, this is an
equitable remedy.
Is the relief from judgment available if there
is a remedy of appeal?
No. It is only available when there is no other
available adequate remedies under the Rule.
What are the grounds for a petition for relief
from judgment?
It may be fraud, accident or mistake which
prevented the party during the trial to present his
evidence rr fraud, mistake or accident which
prevented the party from appealing the decision.
So there are two aspects of Relief of Judgment.
In the first one, during trial the parties rights
were impaired by fraud accident and mistake and
the purpose is to set aside the judgment.
The second aspect, is when he was prevented to
appeal by reason of fraud, accident or mistake.
And the purpose is, relief from judgment so that
his appeal will be given in due course.
Are you saying that a relief from judgment
can be filed after entry of judgment?
Yes.
When must the petition for relief from
judgment be filed?
60 days after discovery of entry of judgment
provided that the 60 day period is also within the
6 months rule. So those two periods must concur.
Halimbawa, nalaman mo today, pero nagkaroon
ng entry of judgment 2 years ago.
Can you still file petition for relief of
judgment?
No. Kasi beyond 6 months rule.
Must the petition for the relief of judgment
be verified?
Yes. Kasi final and executory na tapos pipigilan
mo. Iququestion mo by reason of fraud, accident or
mistake.
Now we are looking at a situation here.
Naieexecute na yung decision, so is the party
filing a petition for relief of judgment
entitled to ask for a prelinary injucntion in
order to stop the execution?
Yes. It is availble pending the procedures for the
relief of judgment. Bakit if hindi magiisue ang
court ng injunction, mawawalan na ng kwenta
yung relief from judgment. Executed na yung
judgment, what more is to be prevented?
Decisions of the Supreme Court and the
Court of Appeals, can the petition of relief of
judgment be filed against decisions of these
courts?
Hindi. So in that case and petition for relief of
judgment is available only before the trial courts.
Not with respect of Court of Appeals and the
Supreme Court.
RULE 39
Pag sinabi mong execution, in civil case,
what does that mean?
So it is the fruit of the suit. Enforcement of
judgment
Which part of the decision is subject to
execution?
The falio or dispositive portion.
17 | P a g e

When may execution issue as a matter of
right?
On motion of the parties, after the judgment has
become final and executory.
And we have defined a final and executory
judgment.
1. No appeal or
2. Even there was an appeal and the
judgment now has become final and ready
for execution.
Halimbawa yung kaso, nanggaling sa trial court
and sa CA, talo pa din yung aggrieved party.
Umakyat sa SC, panalo pa din sa SC. So final and
executory na yun.
Before what court must the motion (Matter
of right na to) for execution be filed?
Before the court of origin. Ang trial court ang
mageexecute. Dun ka magfifile ng motion. Sa SC,
kasi walang sherrif.
And the decision becomes final and executory,
wala na gagawin yung court pag naging final na
yung decision. Now, once a judgment becomes
final and executor, it becomes the ministerial duty
of the court to execute the decision.
But how shall execution be issued?
First there must be a motion for execution. And
being a motion, it comply with notice and
hearing. Because there might be circumstances or
supervening events that could have changed the
circumstances of the parties.
For example, sa sobrang tagal eh nagbayaran na
ang parties. So pag nag motion of execution ang
isang party, sasabihin ng isang party, hey excuse
me binayaran ko na yan.
The motion for execution should be filed before the
court of origin. Ito na naman ang isang issue, ang
entire records niyan nasa SC, may decision and
SC final and executory, ang sabi natin dito ka
magfifile ng motion sa trial court. Eh hindi pa
binabalik ni SC and court records?
Must the prevailing party wait for the
records to be remanded to the court of
origin before the prevailng party can move
to the execution of the decision?
No.
In that case, what must be done? What are
the requisites? Alangan naman sabihin sa
trial court na nanalo ako sa SC, tapos na
yung kaso. What must be attached for the
motion of execution?
Certified copy of judgment accompanied by the
copy of the entry of judgment.
Is there a situation when a motion for
execution may be filed with the appellate
court?
Yes. It can be done when ayaw pa din mag issue
ng trial court after ng notice and hearing. So
pupunta siya ng SC, or CA. The purpose is not for
these courts to issue the writ of execution but for
these courts to direct the lower court to issue the
writ of execution.
What we discussed is the execution as a matter of
right, when there is final and executory judgment.
But there is another kind of execution. Under sec
2 of Rule 39. Which is discretionary execution or
execution pending appeal.
What are the requisites of a discretionary
execution?
So this situation, theres no final and executory
judgment. So hindi ito execution as a matter of
right. Halimbawa nag issue ako ng decision, nag
appeal ngaun, there could be an execution
pending appeal under Sec 2. But there must be
good reasons, for the court to issue an execution
pending appeal and the court shall be very strict
in issuing a writ of execution pending appeal. Kasi
hindi pa tapos yung kaso tas papa execute mo na.
So there must be good reasons.
And what would confer the discretionary
power upon the court to issue a writ of
execution pending appeal? Ano yung basis
ng Court?
Good reasons. Example of good reasons na hindi
pa tapos yung kaso naka appeal pa.. eh pina
execute na ng korte. If the defendant or the
judgment debtor is insolvent. Pero if
insolvent ay yung prevailing party, so nag
motion for execution pending appeal, based
on the ground of the insolvency of the
prevailing party. Is that a good reason?
NO.
Halimbawa we are talking of computers, bumili
ka ng mga computers, version 2014 or 2013,
18 | P a g e
natapos ang decision ng korte 2015, eh nag
appeal. So ang cause of action mo, ideliver sayo
yung computers kasi nag bayad ka naman na.
Nanalo ka, sabihin mo mag court of appeals kami
and then SC. Mag wowork pa ba yung computers?
That is a good reason.
Would good reason be enough for the court
to issue writ of execution pending appeal?
What should accompany a good reason?
There must be a bond. Halimbawa pag dating sa
SC, nareverse. Nanalo yung kabilang party, eh
nadeliver na sayo. The bond will answer for
damages.
And what is the amount of the bond?
Halimbawa the value of the computers is P10m,
P10m din dapat ang value ng bond. It would not
be lesser or greater. So equivalent to the value of
the subject of the writ of execution pending
appeal.
Let us say, nag issue ang court ng execution
pending appeal, so sinabihan yung
defendant, ideliver mo yung computers
based on the decision of the trial court. Can
that execution pending appeal be stopped?
Can the discretionary execution be stayed?
Sec 2 of rule 39. So sabi ng court oh Mr. Cruz,
nanalo naman si Mr. Doctor, i-deliver mo sa knya
yung computers kasi may good reason sya. Wala
ng kwenta yan, after ma-decide yung appeal.
Nagpost ng bond si Mr. Doctor ng P10m, ikaw
naman ayaw mo ideliver. So ang remedy mo is
you would, upon application before the court, post
supersedeas bond Equivalent to P10m. So
mangyayari, hindi ka magdedeliver. May bond ka
din. So pareho kayo. That would be the situation.
So by filing a supersedeas bond which must be
first approved by court. Without its approval,
execution will not proceed.
We said that the final judgment could be
appealed. Yun hindi pa executory, yung final lang
ung aspect na nothing is left to be done by the
court. Like a decsion, it could be appealed as a
rule. But, there are judgment that are declared by
the rules or certain laws which are immediately
executory. Now, what are these judgment?
Judgment on accounting , injunction, support and
receivership.
So kung manonotice niyo, receivership is a special
civil action, accounting is a special proceeding.
Ang support is a provisional remedy.
Naremember niyo yung time na yung SC nag
issue ng injunction with respect yung kay GMA.
Ang argument nun ni Sec. De Lima, pwede ba sila
mag MR on injucntion. Hindi. Its immediately
executory. Theres no such thing as a preliminary
injunction that is appealable. Kasi because of the
urgency. And in the family code, nakalagay dun
that the decision is immediately executory with
respect to the declaration of presumptive death.
Immediately executory so its not appealable.
Bakit? Sino mag aappeal dun?
Declaration of presumptive death is immediately
executory kasi ano ba ang purpose nun. Urgent
para mkapag asawa ule. The petition should be
dismissed. Kailangn may allegation ka dun that
you are asking for the declaration of presumptive
death of your spouse because you are getting
married. Kung hindi ka magaasawa, hindi yan
idedeclare.
Yung computers, so execution pending
appeals, dineliver ng court from Mr. Cruz
sayo, nag appeal si Mr. Cruz, nanalo sya. Eh
nadeliver na sayo yung computers, what
would happen now?
Court will order restitution or reparation of
damages. So kung P10m yung value, ibbalik mo
ngayon ung P10m.
What are the modes of execution of
judgment?
1. By motion within 5 years from date of
entry of judgment.
2. By complaint. If within the 5 year
period, no motion for execution was filed,
after the 5 year period, an independent
action will be filed. Complaint na and not
mere motion so magbabayad na ule ng
filing fees. Complaint for revival of
judgment.
Within what period may an independent
action for the revival of judgment be filed?
Within 10 years from the entry of judgment.
What if after revival, the 5 year period for
execution lapse again. Can there be another
revival?
19 | P a g e
Yes, so long as you pay again the filling fees.
In an independent action for the revival of
judgment, can the issues be reopened and
relitigated?
No. The only issue in the action is whether or not
the party are entitled to revival of judgment.
What if the reason for non-execution of
judgment is the hiding of the other party?
Then the 5 year period lapsed?
The 5 year period for execution is interrupted
since the non execution is due to the fault of the
losing party. Hence, there can still be execution
beyond the 5 year period.
Yesterday we are talking about the different
periods and the modes of execution of judgment.
We said that execution may be through motion or
an independent action.
So again within what period may a final and
executory judgment be executed by mere
motion?
Within 5 years after entry of judgment.
After the lapse of 5 years, how can the
judgment be executed?
By filing an independent action as long as it is
within the 10 years period from the entry of
judgment.
I mentioned that, the 5 year period of executiong
judgment by a mere motion can be relaxed, okay?
And that beyond the 5 year period, the judgment
may still be executed by a mere motion but that is
the only exception case when there is a delay in
the execution within that 5 year period because of
the respondent or the judgment debtor. For the
advantage of the judgment debtor, because of the
acts of the judgment debtor di maexecute yung
judgment within 5-year period through no fault of
the prevailing party. So in that case the SC
allowed the filing of a mere motion even beyond
the 5 year period but the exception is applicable
only when the delay is occasioned by the actions of
the judgment debtor. Please remember that.
I think I assigned to you a case with respect to
that, the case of RCBC vs. Castro.
So if the judgment was not executed within the 5-
year period within the 10-year period an
independent action for revival of the judgment
must be filed, however under Section 34 of Rule
39. If you would notice, it also mentions revival of
judgments. Please read Section 34.
Section 34. Recovery of price if sale not
effective; revival of judgment. If the
purchaser of real property sold on execution, or
his successor in interest, fails to recover the
possession thereof, or is evicted therefrom, in
consequence of irregularities in the proceedings
concerning the sale, or because the judgment has
been reversed or set aside, or because the property
sold was exempt from execution, or because a
third person has vindicated his claim to the
property, he may on motion in the same action or
in a separate action recover from the judgment
obligee the price paid, with interest, or so much
thereof as has not been delivered to the judgment
obligor, or he may, on motion, have the original
judgment revived in his name for the whole price
with interest, or so much thereof as has been
delivered to the judgment obligor. The judgment
so revived shall have the same force and effect as
an original judgment would have as of the date of
the revival and no more.
I would like to emphasize that under Rule 39
there are 2 kinds of revival of judgment, first is
contemplated under Section 6, you revive a
dormant judgment because it was not executed
within the 5 year period from the date of entry of
judgment. And the second one or the other kind is
provided for under Section 34 as one of the
remedies wherein the purchaser during a public
auction may recover the purchase price from the
judgment obligor.
Let us say for example that, you are the plaintiff
in action for collection of sum of money I am the
defendant. So, you filed a case against me
amounting to 10 million pesos. And the Trial
Court ruled in your favor, sabi, bayaran mo yan,
yan ang pagkakautang mo 10 million plus legal
rate of interest. Appeal ako sa CA panalo ka parin
pagdating sa SC panalo ka parin. So what you did
was to have the judgment executed. Now, within 5
years nagmotion ka for execution nagissue ngayon
ng writ of execution. So sinisingil na ko ng sheriff
sa 10 million plus interest, wala akong cash on
hand at wala rin akong cheke dahil wala naman
akong pera sa bangko kaya nga hindi ako
nakabayad sayo. So what the sheriff did was to
20 | P a g e
levy my properties, real and personal properties to
come up with the sufficient amount to cover the
subject judgment. Let us say ang nakuha sakin is
dalawang bahay at lupa with improvements, and
that properties were sold at a public auction para
mabayaran ka ng 10 million plus interest. So si
Mr. Doctor kunware ang highest bidder, sya ang
nanalo. So yung 10 million plus 5 million, let us
say inabot ng 15 million, binigay na ngayon sayo
ng korte. Si Mr. Doctor should be now in
possession and the owner of the 2 properties. Sya
ang highest bidder eh, bayad ka na rin naman.
The problem is when he was about to occupy or to
take possession of those 2 properties, may mga
squatters pala. So he can not take possession or
recover possession of the properties which he
purchase during the public auction.
Under Sec. 34 anu yung remedies? Based on
what you read, what are the remedies
granted to the purchaser?
File a separate action against me (Judge Q) to
recover the 15 million pesos, that is 1 remedy. Eh
panu kung wala ng ibabayad si Judge Quiambao.
What is another remedy available to you?
That is where revival of judgment will come in,
that is another remedy given to a purchaser who
cannot recover possession of the property that he
bought. So that is the revival contemplated under
Section 34.
Now, we now proceed, we go back to section 7.
In case the prevailing party dies. Can a writ
of execution still be issued by the court?
Yes, upon motion of the succeeding party in
interest, executor or administrator.
Kasi class you won naman kahit buhay ka o patay
ka, your right has alredy been established, so a
writ of execution dahil may final and executory
judgment na may still be issued.
But who will file the motion for the issuance
of the writ of execution?
Executor, administrator and the succeeding party
and the writ of execution will issue in any case, in
any event.
What would be significant is if it is the loosing
party who dies.
If the loosing party dies, can a writ of
execution be still issued against the loosing
party who died?
Yes it will still be issued, after levy of real or
personal property but if it is for collection of sum
of money the winning party must file a separate
action for recovery from the estate of the
deceased.
First we should what levy is, what do you
mean by levy?
Taking of the officer of the property of the party in
his custody for the satisfaction of judgment. So it
is the sheriff who implements the writ of
execution. When we say levy the sheriff sets apart
whole or part of the property of the losing party in
order to satisfy the judgment. In laymans term
hahatakin ni sheriff ang mga properties nyo, but I
would like to point out that hindi basta basta
pwedeng maghatak si sheriff ng property. The
levying of property is applicable only if the
judgment debtor or the losing party cannot satisfy
the judgment in cash.
So you said that if the losing party dies the writ of
execution may still issue in any case after the levy
has been made.
But the question is what if the losing party
dies before levy? Bago maghatak ng
property si sheriff, can a writ of executin be
still issued?
No maam, the remedy is to file a claim against
the estate of the deceased.
If the judgment is for a sum of money yun.
Pero what if the judgment involves recovery
of real or personal property, can a writ of
execution be issued even before levy?
Yes. Correct.
So now, a writ of execution you said that it is the
fruit and the end of the suit.
And what is being executed in the decision?
The dispositive portion.
So now what should be the content or the
form of the writ of execution?
It shall contain the name of the court, the case
number dispositive portion and the instruction to
the officer to satisfy the judgment. So the writ of
21 | P a g e
execution should conform with the dispositve
portion of the decision. Otherwise the execution is
void.
Example, in the judgment the judge awarded
in favor of the plaintiff a house and lot in
Ayala Alabang covered by TCT 1234 with an
area of 100 sqm nakadescribe. But in the
writ of execution the property that was
indicated is a house and lot in Forbes Park
Makati in that case is that a valid writ of
execution?
No, it may be quashed.
Let us say that the judge in the dispositve portion
directed the defendant to pay the plaintiff the
amount of 10 million pesos plus 12% legal rate of
interest from the filing of the complaint. Yun ang
nasa dispositve portion, sa writ of execution ang
ginawa lang ng judge for the defendant to pay the
plaintiff 10 million pesos and to pay damages in
the amount of 6%. Is that a valid writ of
execution?
No maam.
Why not?
Because it is not certain, there is room for
interpretation. Sa una 12 tapos nung papaexecute
na 6% nalang. The writ of execution should not
vary the terms of the judgment, hindi pwedeng 10
million pwedeng bayaran ng installment kung di
naman nakalagay sa dispositive portion,
otherwise the writ of execution is void.
Execution of money judgmewent eto yung mga
pledge of sum of money, damages dahil sa
injuries.
How may judgments for money be excuted?
By first demand for payment.
Who will demand?
The court sheriff. Hindi pwedeng ako na may
dalang writ of execution, oh magabayad ka! The
sheriff would demand payment.
Does the sheriff have the discretion, if you
cannot pay the full amount pay it by
installment, balikan nalang kita kinsenas
katapusan. Pwede ba yun?
No. So dapat the full payment including the
lawful fees.
Full payment, paano yung full payment? Anu
yung how could payment be made? Can it be
trough a promissory note?
As a general rule it should be in cash but parties
may agree as to the means of payment, for
example cashiers cheque.
A certified bank check is what is provided under
the Rules, eh kung papayag naman yung kabilang
party na cashiers check or managers check eh di
pwede.
Kung promissory note?
Parties may agree. Di na nga nakapagbayad ng
utang, nagantay ka ng 10 years tapos papayag ka
promissory note? Well kung papayag ka, at talaga
naming busilak ang puso mo, but my God
promissory note nanaman eh kung di naexecute
eh di another kaso nanaman yan. So it should be
in cash or certified bank check.
Halimbawa ako di ako nakapagbayaad, may
writ of execution 10 million wala akong cash
at certified bank cheque. Eh meron akong
judgment in favor of me 10 million din, what
can the sherfiff do now?
The sheriff may levy my properties.
In that case kung anu mahahatak ni sheriff yun
ang hahatakin nya, but the judgment obligor
should be given the option kung aling properties
ang ipapahatak nya. Nagpunta si sheriff 10
million ang sinisingil wala akong pera sabi ni
sheriff, eh alin ho ba ng pwedeng properties na
pwede mo ibigay na hahatakin ko. Eh sa gulo ng
isip ko di na ako nakasagot, bahala ka na kung
anung gusto mo.
In that case what shall the sheriff levy first?
The sheriff sal first levy the personal properties
then if it is not sufficient levy the real properties.
What if wala akong cash, properties lang ang
meron ako Samsung cerllhone lang. Pero
meron ako deposit sa bangko, may pautang
ako kay ms. Balingasa what would the
sheriff do?
Garnishment.
How do you define garnishment?
It is taking of the property of the losing party in
the hands of a third person. So you garnish the
property of the judgment debtor in the hands of
3rd person.
22 | P a g e

So may deposit ako sa bangko, 3rd person ba
yung bank?
Yes.
May pautang ako kay Ms. Balingasa, 3rd
person ba siya?
Yes. 3rd person in the sense that they are not
parties to the action.
So how shoud the sheriff garnish my bank
deposit?
The sheriff must first send notice to the garnishee
then the garnishee will determine if the amount
would suffice and 3rd if the amount will suffice the
garnishee shall deliver directly to the judgment
creditor the amount.
Si Ms. Balingasa panu magagarnish yung
pautang ko sakanya?
Same procedure. Inonotify sya isusurrender
nya.Eh ang sabi ni Ms. Balingasa nagbayad na
sya, di sya pwedeng pilitin. O nagreport ang
bangko sa Court meron sya 200 pesos nalang
below the maintaining balance, kukunin nalang
yan ng bangko so most of the time paper judgment
nlang. Paper victory. Lalo na kung 20 years ka
nagantay ng kaso, but that is the procedure for
execution for money jdugments, and with respect
to the garnishment, the 3rd person who are in
custody or possession of the property of the
judgment debtor is now considered a forced
intervenor.
We mentioned a while ago that if the judgment
debtor or the losing party cannot pay in cash or
check, real properties of the losing party may be
levied upon by the sheriff. How do you levy, real
properties like land and building? Kasi class kung
personal property kukunin lang yang TV mo kotse
mo ref washing machine kukunin ni sheriff.
Eh yung building at lupa panu hahatakin ni
sheriff yun?
The sheriff will notify the registry of deeds by
giving a copy of the writ of execution and describe
the real propert. At kung mayruong occupants
yung bahay at lupa the sheriff should also notify
the person or occupants a copy of the order.
If this procedure of levying real properties
are not complied with what is the status of
the levy made by the sheriff?
Status is void, it is defective. It will invalidate the
levy as if it was not levied.
So money judgment.
What if the judgment involves specific acts?
Under Section 10 of Rule 39. Judgment directs the
losing party to restore the prevailing party in
possession and to convey the land in favor of the
prevailing party or to deliver to the prevailing
party, the properties subject of the execution.
How can this be executed?
Sabi ng Court the defendant Jeniffer Munsayac is
directed to deliver to the plaintiff, Jeff Magsombol
the title of the land TCT 1234 located at Sampaloc
Manila, and to restore the plaintiff Jeff
Magsombol in possession of said property. May
money judgment involved ba?
Wala.
So ito it involves doing of acts, panu ko
ieexecute to? Panu ieexecute ni sheriff?
So si sheriff pupunta kay Mr. Magsombol
mayruon po kayong writ of execution, naghearing
naman na po kayo alam nyu na po ito. So ito po
ang nakalagay dyan, ibigay mo yung titulo sa
plaintiff at makakaalis na po kayo. Yan yun eh.
Okay.
So in that case, what if Mr. Magsombol
refuses to deliver the title?
It may be conveyed by another person, at his
expense and it shall have the effect of a valid
conveyance.
Ako as a judge I will direct the registry of deeds to
transfer the title to the registry of deeds and
cancel the title in possession of the debtor.
Can the court cite Mr. Magsombol in
contempt?
No, because the order is directed to the sheriff not
directly to him.
What if the judgment involves, selling a real
or personal property, how can it be
executed?
Kasi it is the act, ibenta mo yan. Eh di susundin
ng losing party at yung proceeds ibibigay nya sa
prevailing party.
23 | P a g e
In my first example, pinapadeliver yung
title, pwedeng ibang tao gumawa nun? My
question is may isa pang judgment for Mr.
Magsombol to vacate the property and
restore the prevailing party in possession.
Antigas ng ulo nya sinarado nya ang bahay
ayaw nya papasukin si sheriff, can the
sheriff barge in and break open the
property?
No. Kung abandoned na pwede naman. Pero dito
kasi andun si Magsombol.
What if there is a break open order?
Sheriff has the authority to break open, break
open lang nya wag nyang ibibreak open yung jaw
ni Mr. Magsombol. Dont be like *** nung
dinedemolish binugbug nya yung sheriff.
So may break open na si sheriff, ayaw talaga
umalis he does not want to vacate the
property. Can the sheriff demolish?
No, the sheriff is not authorize to demolish the
building and the property.
But can the prevailing party move and ask
the court for the issuance of writ of
demolition?
Yes, but there must be a motion and hearing and
that the party failed to remove what is requested
to be demolished.
So remember, break open, demolition, removal of
improvements there should be a special order of
the court after notice and hearing. Sheriff cannot
just barge in. The sheriff cannot just barge in,
and remove the improvements. Even with the
behement refusal of the losing party or occupant
therein.
So in this situatuions under, we mentioned that if
the specific act can be done by another person and
not only the losing party, contempt is not
available. Hindi pwedeng icontempt, however, if
in case of special judgments as contemplated
under section 11, when dpo you say that the
judgment is special? Parang halo halo, may
special at regular.
A judgment is special if it can be performed only
by the person, by reason of the qualifications of
him. Sya lang pwedeng magperform ng act subject
of the judgment.
In that case if the loosing party refuses to
perform the act in the judgment, is contempt
now available?
Yes.
Let us say for example sim Mr. Magombol, in an
action for support, let us say kunyare, may anak
ka na ba Mr. Magsombol? Bigyan natin ng anak,
sample lang. Nagfile ng support, anak lang
walang asawa uso na yan ngayon eh.
So. Mr. Magsombol nagrefuse, pwede bang
bestfirend nya nalang magsupport?
No, it is a special judgment.
Why?
Because it cannot be performed by somebody else.
Kasi ang qualification ng support can only be
demanded from parent. Eh yung bestfirend
naman nya hindi sya yung magulang ng bata. It is
only him that can perform the act subject of the
judgment.
So halimbawa, yung bahay at lupa ng loosing
party, the sheriff levied the house and lot. So
hinatak na. Yung house and lot mo ngayon
nakasanla sa ibang tao. Nakasanla sa bangko
bago pa man malevy ng sheriff, ang sabi natin ang
purpose kasi ng levy para ibenta yun ni sheriff
mabayaran yung pagkakautang nya sa winning
party. Ang question ngayon, ay ibebenta na rin
ngayun yung property sa public auction to the
highest bidder to satisfy the judgment.
What would happen now to the real estate
mortgage which is existing?
A lien is created. Even if the sheriff already levied
the house and lot the existing mortgage could be
respected and recognized.
So ang question ngayon, ibinenta na diba,
alin ngayun ang unang babayaran?
Yung real estate mortgage, saka yung prevailing
party.
Eh panu pag nabenta, eh tama lang to pay
the mortgage? What will happen?
The sheriff will again look for another property na
pwedeng hilain.
What are the properties exempt from
execution?
1. The judgment obligor's family home as
provided by law, or the homestead in
24 | P a g e
 which he resides, and land necessarily
used in connection therewith;
2. Ordinary tools and implements personally
used by him in his trade, employment, or
livelihood;
3. Three horses, or three cows, or three
carabaos, or other beasts of burden, such
as the judgment obligor may select
necessarily used by him in his ordinary
occupation;
4. His necessary clothing and articles for
ordinary personal use, excluding jewelry;
5. Household furniture and utensils
necessary for housekeeping, and used for
that purpose by the judgment obligor and
his family, such as the judgment obligor
may select, of a value not exceeding one
hundred thousand pesos;
6. Provisions for individual or family use
sufficient for four months;
7. The professional libraries and equipment
of judges, lawyers, physicians,
pharmacists, dentists, engineers,
surveyors, clergymen, teachers, and other
professionals, not exceeding three
hundred thousand pesos in value;
8. One fishing boat and accessories not
exceeding the total value of one hundred
thousand pesos owned by a fisherman and
by the lawful use of which he earns his
livelihood;
9. So much of the salaries, wages, or
earnings of the judgment obligor for his
personal services within the four months
preceding the levy as are necessary for the
support of his family;
10. Lettered gravestones;
11. Monies, benefits, privileges, or annuities
accruing or in any manner growing out of
any life insurance;
12. The right to receive legal support, or
money or property obtained as such
support, or any pension or gratuity from
the Government;
13. Properties specially exempted by law.
Yung furniture, eh panu yung TV na 100,000 ang
value diba? So in this day and age kelangan
imodify na itong amounts na ito eh.
How about jewelries? Are they exempt?
No, the list is exclusive.
Yung sweldo can it be the object of a writ of
execution? Mga earnings kung may business
ka.
Yes, in excess of the need of the family for 4
months. After 4 months pwede ng maging subject
of the writ of execution.
Life insurance pwede ba?
Hindi.
Ako meron nyan, para ngang brossure eh sabi ko
sa asawa ko ayaw ko namang pangit yun
kalalagyan ko pag dumating na yung araw na
yun. Gusto ko naman yung maganda ang design,
dati takot ako, after so many deaths
namumrublema kung saan kukuha ng
pangkabaong, saan ililibing. Maging praktikal
nalang, ma-outlive ko naman yan eh kasi pag at
the age of 60 di ko pa magagamit may rebate.
Pero atleast prepared, may brosure namimili,
ayaw ko naman yung basta nalang ako ilagay
kung saan. Well its part of life, its inevitable. The
only thing permanent in life is death and taxes.
From the day you are born may taxes and yung
papasukan ng kabaong mo may taxes din. Death
and tax.
So yung life insurance hindi pwedeng subject ng
writ of execution, lupa ni Judge sa St. Peter akin
na, hindi pwede yun.
Yung pension ng isang retiree can it be a
subject of a writ of execution?
No.
Eh yung retirement benefits?
No.
What is the lifetime of a writ of execution?
5 years.
Is there anything under Rule 39 that
mentions the lifetime of a writ of execution?
This is the same as period to execute a judgment
and it is very clear under section 14 the writ of
execution shall continue in effect, during the
period within which the judgment may be
enforced merely by motion. Within 5 years from
entry of judgment.
Now, under Section 15, after levy the property
will be sold on execution and under Section 15
25 | P a g e
there are three preferred places on which notices
of a sale at public auction may be made.
Saan dapat ipost ni sheriff yung notice of
public auction?
Conspicuous places, city hall town hall or
municipal hall. Public market, hindi pwedeng sa
savemore, dapat public market, judge public
naman yun. A public market is operated and
maintained by the local government.Diba yung
mga munisipyo, kunware Dagupan public market,
bilihang bayan ganyan.
What else?
Post office.
Dapat talaga baguhin na ang rules, wala ng
pumupunta sa post office. Sabi ko nga dapat
pwede na posting ng notice through online. Dapat
may website, as long as this is not amended, we
should follow the 3 preferred public places.
The notice should specify san magaganap ang
public auction the exact time and the date.
Well sa Muntinlupa duon sa may quadrangle sa
may munisipyo.
Let us say that a car was levied by the sheriff on
the premise that that car is owned by the losing
party kunware si Ms. Balingasa, sabi nya kotse ko
nalang hatakin mo sheriff it turned out the car is
not owned by Ms. Balingasa kay Mr. Doctor pala.
Syempre shocked si Mr. Doctor.
What now are the remedies of Mr. Doctor?
Third party claim.
In what form?
Execute an affidavit of ownership, stating the
grounds he relies that he has ownership. First is
he would execute an affidavit that he is the owner
of the car.
To whom?
To the sheriff, and this is called terceria ibibigay
nya kay sheriff. Si sheriff naman magrereport sa
court na ang nahatak nya ay being claimed by a
third person.
What else are the remedies available to Mr.
Doctor?
He can file a motion before the court in order to
determine whether the sheriff acted correctly or
wrongly in levying his car, and it would only be a
summary hearing the purpose is to determine,
whether, because class it is very basic sinasabi ko
sa sheriff ko na siguraduhin mo na yung
hahatakin mo ay pag aari ng losing party kung
hindi ay admin ka.
Dahil a sheriff who levies a property of a third
person acts beyond his authority in the writ of
execution, he oversteps his authority. So
kailangan sigurado ka na yan ay property ng
judgment debtor. So yan ang 2nd remedy, he can
file a motion before the court. Ang idedetermine
dyan ay kung may basis ang kanyang claim
na kanya yun, is that a conclusive
determination of the court of the ownership
of property mistaken in levy?
No, it is a mere summary hearing eh.
So if Mr. Doctor really wants to settle his claims of
ownership, he should file, another remedy given to
him, an independent action to establish his
ownership. So tatlo,
So can he file an action for damage against
the bond?
Yes.
Can he file an action to annul the levy with
damages?
Yes.
Those are the 5 remedies given to a third person
whose property was mistakenly levied by the
sheriff.
Ang question ko ngayun eh property nya
naman yun ngayun, can he file a motion for
intervention?
No, because the judgment is already final and
executory.
Eh kelan ba nagiintervene?
Before judgment.
So ngayun sabi ni Mr. Doctor, akin yang
kotseng yan sheriff nagfile sya ng affidavit.
Should the sheriff continue with the levy?
No dahil may doubt na eh, unless there is a bond
posted by the prevailing party. Dont worry sige
kunin mo.
26 | P a g e
So in that case can the sheriff continue with
the levy?
Yes. So if he proves that he really is the owner he
can file a claim against the bond.
So we said a while ago in case of levying real or
personal properties of the judgment debtor or the
loosing party, we now discuss the procedure
during a public auction.
During a public auction to whom shall the
sheriff sell the property?
To the highest bidder.
Can the prevailing party, bid during the
auction?
Yes.
If the prevailing party is the highest bidder then
the property would be given to him. Let us say for
example the award given is 10 million pesos and
the sheriff sold the property during the public
auction at 15 million pesos. So that is the highest
bid.
So judgment is only for 10 million pesos,
what will happen to the excess of 5 million
pesos?
The excess of 5 million will be given to the
judgment debtor.
Eh pano naman kung 5 million lang yung
property, 10 million yung judgment, can the
prevailing party not pay the said amount in
case he is the highest bidder at 5 million?
Yes. The judgment is not obliged to pay if the
property sold is of lesser value to the amount of
judgment.
Now, let us say that the highest bidder is not
the judgment obligee, a third person and
that highest bidder refuses to pay, what
would be the remedy against him?
Sell again the property to the highest bidder and
the sheriff can file an action to claim for the loss
incurred from the highest bidder who refuses to
pay.
Can the highest bidder be cited in contempt
of court?
Yes and he will be black listed, hindi na sya
pwedeng magbid. Kasi magbibid sya tapos di
naman nagbabayad, remember that the public
auction is part of the official proceedings of the
court. Kaya parang may mockery on the part of
the court kapag ganun.
Now, if the property sold is personal
property, kunware a car and there is a
highest bidder. The delivery is very
practical in this case, together with the
manual delivery what shall the sheriff give
and issue to the highest bidder?
The sheriff shall issue a certificate of sale. This is
very important because the issuance of the
certificate of sale or the COS yun yung language
ng mga sheriff COS, without this kasi the sale will
not be effective.
What if the property sold is a real property,
how can it be delivered?
The sheriff shall also issue a certificate of sale
describing the property stating the price of the lot
or parcel of lot or land and shall also state that
the sale is subject to 1 year redemption .
So it must be provided for in the certificate of sale
of real properties that it is subject to redemption
within a 1 year period, proforma na yan nasa
COS. Nasa ilalim.
Who will exercise redemption?
Judgment obligor or the redemptioner.
Is there redemption if the property is
personal?
No. Redemption is applicable only to real
property, kaya COS ng personal property walang
nakalagay duon na redemption period.
With respect to COS involving real property,
for it to be effective what must be done by
the sheriff?
The COS must be registered with the registry of
deeds. Withot the registration then, it is not
effective.
Why do you think it is not effective if not
registered? Because when do you count the
period of redemption?
The 1 year period of redemption is counted from
the registration not from the issuance of COS. So
it is very important that the sheriffs registers the
COS kasi kung hindi niregister yan ng sheriff,
then, at anytime pwedeng iredeem yan. Kasi
sasabihin pwede koi redeem yan kasi di naman
27 | P a g e
nakaregister, Kasi the 1 year period will not
commence to run. Within 1 year from the date of
registration of COS, not from the issuance of the
COS.
It was mentioned a while ago that the right of
redemption can be exercised either by a
redemptioner or the judgment obligor, who is a
redemptioner?
He is a creditor who has a lien over the property
by virtue of attachment, judgment or mortgage
and such lien is subsequent to the lien by which
the property was originally . ibang creditors, pero ang period is already 60 days
In our example, a house and lot which is levied by
the sheriff is sold for execution is mortgaged to
the bank, that mortgage is a lien. And for
purposes of the house and lot, the bank here is a
creditor, is it not?
So the house and lot was sold at a public
auction and the prevailing party was the
highest bidder, in that case who may redeem
the house and lot, in that case who may
redeem the house and lot?
The judgment obligor within 1 year period.
Who else?
The bank.
Who is called?
The redemptioner.
Halimbawa yung judgment obligor hindi nya
inexercise his right of redemption within
that 1 year period, can the bank redeem the
property?
Yes.
Within what period?
Within the 1 year period.
What if the judgment obligor, redeemed the
property within the 1 year period, can there
be a subsequent redemption by the bank?
No, there is no further redemption because the
judgment obligor will already be restored to his
property, wala na.
Judge eh panu naman ho yun? May utang
sya sa bangko nakamortgage, anung
remedy?
The remedy of the bank is to foreclose the
mortgage.
Let us say that the judgment obligor did not
redeem the property, ang nagredeem is the
bank, so siya yung first redemption within
the 1 yr, it turned out, the losing party ay
pagkakautang pa of 5million pesos in a
lending institution, can that lending
institution exercise subsequent redemption?
Yes judge within 60 days from the last
redemption, within 60 days at pwede pa yung
no longer the 1 year period granted to the first
redemptioner or the judgment obligor.
What we are talking about here, the 1 year
redemption period is redemption mandated
by law, it is provided by rules so it is legal
redemption. Can it be extended? Halimbawa
makikiusap yung judgment debtor na pwede
po b n bigyan niyo pa ako ng another year,
or 2 years to redeem?
No, it cannot be extended, this is legal redemption
but if it is conventional redemption, there could be
an extension.
Pending the 1 year redemption period, let us say
the house and lot, ang highest bidder ikaw ang
judgment debtor si Ms. Balingasa, nabili mo na
may certificate of sale ka na nakaregister na
,during that one year period, can you now take the
posssesion of the house and lot can you occupy
and live there?
No judge the possession would still be with the
judgment debtor, so he has still the right, hindi
lang yan accomodation by the Rules, he has the
right to stay there because the ownership of the
highest bidder is not yet consolidated. Conditional
pa din eh, pwede pa niyang iredeem yung
property.
Halimbawa si Ms. Balingasa ung dalawang
kwarto pala nung bahay pinaparentahan niya,
who will be entitled to collect the rents over the
property. Is it the highest bidder or still Ms.
Balingasa?
It's still Ms. Balingasa.
So can Ms. Balingasa still make ordinary repairs
on the property, yes judge.
28 | P a g e
Yung luxurios ipmrovements pwede niyang
gawin?
Ah yes judge, since she is still the owner.
In this case class, as we have discussed the
property she has the right of possession and you,
you can have the right to possession but according
to the rules, siya pa rin, because she has still the
right to exercise redemption within the one year
period.
Kung halimbawang this is not applicable to
personal property, halimbawa kotse, right
then and there after the public auction, who
will be entitled?
The highest bidder.
Upon the expiration of the redemption
period of one year, if there is no redemption,
what is the effect?
The highest bidder or purchaser is entitled to
conveyance and possession of property.
So will this ownership be now absolute?
It will be consolidated upon the issuance of
sharing of certificate of non-redemption, so
everything will be acquired by the highest bidder,
he has the title and all the rights and claim of the
judgment obligeor of the property will no longer be
existing.
So everything will be the acquired by the higest
bidder, he has the title, all the rights the claim of
the judgment obligor will no longer be existing.
Wala ng karapatan yung judgment obligor kasi di
na sya nagredeem consolidated na yung
ownership.
When will that consolidation of ownership
be reckoned with? After the expiration of
the 1 year period or at the time when the
sheriff levied the property?
From the time when the sheriff levied the
property. So it retroacts.
We have already discussed Section 34 with
respect to revival of judgment.
Sections 36 to 43, isipin nyu napakahaba, yan
yung remedy, these are the remedies if the
judgment was returned unsatisfied despite the
issuance of writ of execution, bakit ba unsatisfied?
Una, walang ibabayad yung judgment debtor,
wala ng makuhang properties yung sheriff wala
ng mahanap na property whether real or personal
property kaya magrereport ang sheriff judgment
is unsatisified.
Now, in that case, under Section 36 what can
the judgment creditor do?
The judgment creditor can ask the court to order
the appearance of the judgment obligor, for
investigation whether he has other property that
can be subjected to satisfy the judgment. Its just
saying that, ang court ang pipiga, o wala ka na ba
talagang ibang properties? The court will cause
the examination, kaya sya magaappear dahil
under oath yan ng court, di sya
makakapagyabang dahil perjury aabutin nyan.
That is given to the judgment creditor.
How about the judgment debtor, what can
he do kung wala ka ng mapigang properties
at pera talaga, under Sectuion 37?
Those owing to the judgment debtor can be also
asked to appear before the court. Pati yung mga
may utang magtuturuan na yan, kai ang 2aa may
mga utang sakin yan eh, yang mga yan andami ng
utang sakin nyan. Eh nung ginagarnish nung
sheriff sabi nyo wala kayong utang, the court will
call all of you and examine you.
What if after examination of the judgment debtor
and the 3rd persons who owe the judgment debtor
money, what can the court do? So nalaman ng
court, may property pa pala tong judgment debtor
eh, tinatago mo atsaka may mga pautang ka pa
pala eh.
This properties can be subject to levy and if there
are other debts owed to the judgment obligor, the
obligor of the judgment obligor may be ordered to
pay directly to the judgment creditor.
Can the court direct the judgment debtor, eh
kung wala ka ng ibayad, hulug hulugan mo
nalang. Biruen mo 10 million pesos hulug
hulugan nanaman.
Yes as long as, the Court will not touch the four
months salary diba? Which is excluded from the
writ of execution. This is provided for under
Section 40, so may court order, bayaran mo by
installment.
29 | P a g e
Now, what else can the court do if the court
after examination determined na marami pa
palang properties si judgment debtor sa ibat
ibang parte ng pilipinas. At nagpaplan yung
debtor na idispose, dinidiscipate nya na
yung properties?
The court can prevent the disposal of the property
to defraud the judgment creditor.
Can the court appoint a receiver?
Yes judge to preserve the property.
Can the sheriff be appointed as a receiver?
No. Pag ginawa mong receiver yan the following
day wala na yung properties na yan. Hindi naman
lahat ng sheriff ganun, nakakita na ba kayo ng
sheriff? Alam nyu agad eh, may kwintas na gold,
relo na gold, iba talaga pag sa court, alam nyo na
yun yung sheriff kasi imagine nagiimplement ng
writ of execution nanghihila ng mga properties,
yung mga di nababayarang kotseng hinihila. So
lahat ng ahh, nagdidemolish may budget yan.
Well kaya ang sabi ko sa sheriff ko, wag ka lang
magkakamalai, kasi kung di ka pa-filan ng kaso
nung mga litigante I will make sure na ako
magpafile ng kaso laban sayo. Kasi ang problema
class, pag naadmin yujng sheriff mo because of
irregularity in the writ of execution damay ako eh
command responsibility because it is under my
signature, under the courts name na ineexecute
nya yun.
Very strict kasi ang Supreme Court pag
nagkamali ang staff mo, damay yung judge by the
principle of command responsibility. Kay Pnoy
lang naman di applicable ang command
responsibility eh. But in all other government
agencies, applicable yan except him, so he says.
So, those are the remedies granted to a judgment
obligee and even to the judgment obligor kung
talagang the writ of execution cannot be
implemented. Despite attempts of levy of property
or attempts to collect cash for money judgment.
Let us proceed to Section 47. Remember when we
were discussing, Rule 16 grounds for motion to
dismiss res judicata, one of the ground of the
motion to dismiss is when there is res judicata
during that time we discuss about the concepts of
res judicata which I mentioned to you is based on
Section 47 Rule 39.
The two concepts of res judicata are
provided for under Section 47, so what are
the effects of final judgment or final order?
A judgment or a final order against a specific
claim is conclusive to the title of a thing.
For example recovery of ownership of a parcel of
land located at Sampaloc Manila with TCT # 1234
with an area of 100 meters nakadescribe yun. If
the court adjudged in your favor that property,
that is conclusive, and there is res judicata.
What else?
A judgment or final order with respect to a
probate of a will or the administration of the
estate of a deceased person is conclusive to the
will and the administration, however, probate of a
will or a letter of grant of administration of the
estate of a person is a prima facie evidence only of
a death of person.
So panu ba yun? Conclusive upon the will
pero di conclusive na patay na yung
gumawa?
Kasi syempre during lifetime pwede naman
tayong gumawa ng will diba? Effective upon our
death, in probate of a will ang dinidetermine lang
naman ng court ay is the testator of sound mind
and has the capacity to dispose of his property at
the time of the making the will? Does the will
comply with the requirements of a will? May
witness notarized ba yan?
Yun lang dinedetermine jan kasi class even if the
testator is still alive, he can apply for the probate
of his will habang buhay pa tayo at may will tayo,
pwede tayong magpetition sa Court for the
probate of the will to determine if we have the
capacity to dispose of our property and determine
whether during the execution of that will we are
of sound mind.
So pag namatay ka wala ng problema, di na
pagaawayan ng mga anak mo at tagapagmana
mo, wala ng problema, so conclusive lang yun na
may will ka and you were of sound mind when you
executed the will, but it does not conclusively
mean that the testator is really dead so ang res
judicata lang is, yung last will and testament
valid or not valid depending on decision of the
court.
30 | P a g e
What else?
Judgment or final order with respect to personal,
political, legal condition or status of a person or
his relation to another is conclusive upon the
status, condition or relationship of the person.
Declaration of nullity of marriage between A
and B, sabi ng court null and void because of
psychological incapacity. Is that res
judicata?
Yes between A and B.
Pag magasawa ulit si A, nadeclare na syang
psychologicaly incapacitated pwede ba sya
magasawa ulit, pag nagasawa sya valid yun
diba?
Yes.
So res judicata with respect to B, pero pwede sya
magasawa at hindi pwede sabihing uy res judicata
ka na psychoilogically incapacitated. Res judicata
only with respect to the relationship of A and B.
May kilala ako piskal, thrice married. 1st
nagpadeclare ng nullity under Article 36. 2nd time,
ganun din nagasawa ulit, ganun din
psychologicaly incapacitated tapos ngayun
nagasawa nanaman.
Kaya nga ang sabi ko dapat yung family code
iammend eh na pag psychologically incapacitated
la, dapat res judicata nay un. Eh kasi diba
juridical antecedent, it is incurable, so kahit sinu
ang partner mo may tama ka talaga. Tignan mo si
Kris Aquino, hilan na baa ng nagging boylet
nya. Kahit judge ako, di naman ako nagjajudge
ng.... pero class ang psychological incapacity di
naman relative yan eh, na pag sya ang partner mo
eh you cannot perform your marital obligations
duties and responsibilities. Pero most of the time,
madaming pagkakataon na talagang, at hindi
lang ito sa piskal. Meron sa Cebu ganyan din
ilang beses na, nagpakasal, nakakarami may
nagdidiborsyo pa sa Amerika kasi ang basis nyan
is the Church, the annulemtn. Kasi diba ang
Catholic Church ay forgiving, sabi nga may
chance daw. But kung titignan mo yung statistics,
kung nadeclare na psychologically incapacitated
yung tao nay un at magkaruon ng relationship
magkakaproblema parin yun ang example nga si
Kris Aquino. Sinu ba yung asawa nya na
nagbabasketball?
Si James Yap.
Meron pa si Mayor Herbert, parang imaginary
anu lang naman sya, para sakanya sila may
relationship, yung lalaki di nila alam na
karelasyon na pala nila si Kris. Not of
psychological incapacity na ito, eto ay
psychological imbalance na. Diba sabi sa Family
Code psychological incapacity is not a sickness of
the mind. Hindi naman sakit sa utak, although
kailangan ng psychiatrist ang psychological
imbalance ay iba talagang illness of the mind yun
which could alo be the basis of psychological
incapacity.
Very vague nga yan eh na kahit anu pwede mong
gamitin.
So, what else?
Any other case judgment or final order, with
respect to the matter directly adjuged or in
relation thereto is conclusive between the parties
and their successor in interest by title subsequent
to the commencement of the action or special
proceeding, litigating for the same thing, and
under the same title and in the same capacity.
So all those cases which you have enumerated, the
judgment in those cases are covered by paragraph
of A and B of Section 47. And those pertain to bar
by prior judgment as a concept of res judicata and
the last paragraph pertains to conclusiveness of
judgment.
What do you mean by conclusiveness of
judgment under Section 47?
Any right fact or matter that is already adjudge or
necessarily included in an action is settled and
cannot be litigated anymore.
Ang example ko nga nun yung unlawful detainer.
In an ejectment case yung possession hindi mo na
pwedeng irelitigate yun pero yung ownership is a
different matter. So there is conclusiveness of
judgment on the issue of possession alone. So
there is res judicata on the issue of possession but
not the issue of ownership with respect to
ejectment cases.
Now, foreign judgments or final orders, may
epeketo ba yung foreign judgment dito sa
Pilipinas? For example Filipina married to an
Amaerican citizen, the American citizen filed for
divorce and it was granted. He was granted with a
31 | P a g e
decree of divorce. What is the effect of that
foreign decree in our country in our
jurisdiction?
It is not binding in our jurisdiction. So it cannot
be recognized in our jurisdiction.
In your study of the family code, if it is the foreign
spouse who filed for divorce, against the Filipino
spouse, that could be valid diba in our jurisdiction,
so yun ang effect nun, but when could it be
recognized? That decree of divorce, you should file
an action for recognition of judgment here in
Manila, and could we apply section 47 yung res
judicata? That with respect to the marital
relationship between the foreign spouse and
Filipino spouse that decree of divorce is res
judicata? If that foreign judgment is recognized
here in the Philippines?
Yes. Sa ating jurisdiction irerecognize natin na
divorced nga sila.
My question is, pero kung halimbawa, ang
Filipino spouse ang nagfile ng divorce, is it
valid in our jurisdiction?
No, not valid kailangan yung foreign spouse.
At hindi naman pwedeng basta basta magasawa
yung Filipino spouse diba, kasi kung sa foreign
country even after divorce ay hindi naman parin
pwede magasawa ay hindi talaga parin pwede
mag asawa kunware yung Filipina, pero kung sa
US na pwedeng mag-asawa magbebenefit din
naman yung Filipina spouse pwede syang
magasawa.
So effects of foreign judgment or orders. Pwede mo
sabihin, eh judge we do not recognize divorce in
our country, but that is provided for in the family
code.
Ms. Monsayac a while ago mentioned about
quashing a writ of execution, when the writ of
execution does not conform with the dispositive
portion or it varies the terms of the dispositive
portion of the decision. So that is 1 ground to
quash a writ of execution.
What are the other grounds to quash a writ
of execution?
1. If the property subject of the execution is
excempt from execution. Oo, correct, tapos
papaexcute diba?
2. If the property levied or if the property
subject of the writ of execution is owned
by a third person, ang ginawa ng court
yun ang pinapaexecute nya kay sheriff.
Kasi implementing or enforcing a writ of
execution to a property of a third person is
very patent, it can be quashed.
Halimbawa the judgment was already
satisfied and the judge still issues a writ of
execution?
It is subject to quashal.
So those are some of the grounds by which a writ
of execution can be quashed. Basta ang very basic
ground is yung sinabi ko that it does not conform
with the dispositive portion and it varies the
terms of the dispositive portion.
So that is writ of execution.
RULE 40
We now proceed to appeals.
Is the right to appeal part of due process?
It is not part of due process but a mere statutory
privilege. It is granted by law not by the
Constitution.
What specific law grants the right to appeal?
The Rules of Court.
What particular law? Because the basis of the
rules of court is part of the rule making power of
the Supreme Court, but the basis really is a Law,
which specifically provided for the right to appeal,
kaya mayruon tayong Rules 40-45.
Lagi natin sinasabi the right to appeal is not
part of due process but only a statutory
appeal. But what law granted this?
BP 129 in the same way that jurisdiction is
conferred by law, it is conferred by BP 129
particularly Section 39. Mr. Magsombol, please
read BP 129 Sec. 39 to show the basis of the Rules
of Court and the right to appeal.
BP 129. Sec. 39. Appeals. The period for appeal
from final orders, resolutions, awards, judgments,
or decision of any court in all cases, shall be 15
32 | P a g e
days from the notice of the final order, resolution,
award, judgment, or decision appealed from
Nung panahon pa ni Marcos so Batas Pambansa,
wala pa tayong kongreso nuon ang mayruon
general assembly kaya ang congressman nuon
ang tawag ay Assembly Man. Yan yung walang
senate at House of Representatives, ang mayruon
nuon Batasang Pambansa, dun din sa Congress
ang opisina nila nun. BP 129.
Yng mga judges nuon nareorganize tanggal sila
lahat, wala ng Curt of First Instance kaya
nagkaruon ng RTC kaya may provision on
Jurisdiction.
Can you find that in the Constitution?
No.
Among the rights in the Bill of Rights
kasama ba yung right to appeal?
No. It is not part of due process.
For purposes of the exercise of the statutory right
to appeal, payment of docket fees is required.
What is the effect if docket fees are not filed,
but a notice of appeal is filed or a petition
for review is filed?
It is a ground for the dismissal of the appeal.
So kapag di nakabayad, may the court
outrightly dismiss the appeal?
There must be a motion.
Well, and it is discretionary upon the Court. The
Court will give the appellant time to pay the
docket fee, so the non-payment appeal docket fees
is a ground for dismissal but it is a discretionary
dismissal not automatic upon the Court.
What are the modes of appeal? There are two
modes of appeal.
1. Ordinary appeal
2. Discretionary appeal
Ordinary appeal is covered by rules 40 and 41.
Is ordinary appeal a matter of right?
Yes. You say that your appeal is a matter of right
with respect to your first appeal.
An ordinary appeal is perfected by filing
either?
A notice of appeal or a record on appeal.
Discretionary appeal is provided for under
Rules 42 and 45 which is through?
Ordinary appeal and Appeal by certiorari or
petition for review on certiorari.
Iba yung petition for review on certiorari under
Rule 45 at petition for certiorari under Rule 65.
Ang Rule 65 is a special civil action not a mode of
appeal unlike Rule 45 which is a mode of appeal.
Now, Mr. Magsobol sinu ba pwede
magappeal?
Either of the parties. If the parties still feel
aggrieved he can appeal, sabi ko nga sainyo
mayruong plaintiff nanalo na walang satisfaction
mag-aappeal pa kasi hindi satisfied sa amount of
damages. Gusto nya 10 million ang binigay lang
ng Court 50,000 or 1 million lang kasi yun lang
naman naprove nya.
So, any party aggrieved or prejudiced by the
judgment.
Ang sabi natin kanina ordinary appeal is
perfected by filling a notice of appeal or a
record on appeal. Within what period must a
notice of appeal be filed?
It must be filed within 15 days from the notice of
judgment or final order.
How about a record on appeal?
Within 30 days from notice of judgment.
When is a record on appeal required?
It is required in case of special proceedings and in
other cases wherein multiple or separate appeals
is allowed by the Rules.
Ahm, change of name, correction of entry,
settlement of estate, guardianship yung mga
special proceedings record on appeal, and multiple
appeal. Kagay ng expropriation, in expropriation
there are two issues to be resolved, first the
propriety of the exprpration. So the court will first
determine, eto bang expropriation na ito ay for
public purpose? And is it being filed by the proper
authority? Pag sinabi ng court that the
expropriation is for a public purpose and it is valid
pwede ka na mag-appeal dun. Pwede ka na
magapela, sasabihin mo hindi naman yan for
33 | P a g e
public purpose eh gagawa ka ng subdivision for
private use naman.
Kaya lang mayruon pang iang issue, just
compensation na kilangang irefer mo sa isang
commissioner, so in that case importante ang
record on appeal.
So the defendant, ay iaapela nya ang first issue
which was adjudge by the court eh ang record di
mo ba pwede i-elevate sa appellate court dahil
may ihi-hearing pa kayo na issue on just
compensation. So kaya anu ba ang record on
appeal?
Lahat ng record ng kaso isi-xerox mo lahat ng
orders, at yun ang ieelevate mo kaya record on
appeal. Kaya mas matagal ang record on appeal
30 days.
And it is also important that when you file a
notice of appeal or a record on appeal, specify the
material dates.
And what are the material dates that should
be specified?
Notice of the party of the final judgment or order.
So yun ay kung kailan mo natanggap yung
desisyon.
Bakit?
Because the 15 day period will start from that
notice.
Class ang notice of appeal napakasimple lang, one
page lang yan nakalaga, the defendant through
counsel files this notice of appeal against the
decision of the Court, dated, which was received
on for being contrary to law and evidence. Period.
Where do you file the notice of appeal?
Before the trial cour.t.
How about the record on appeal?
Also before the trial court.
So pag nareceive ko ang record on appeal, ang
gagawin ko ngayin is to direct my branch of clerk
of court to prepare the records of the case and
elevate it, the entire recrds to the Court of
Appeals.
Sasabihan ko sa appellant, paphotocopy mo lahat
ng mga records na kailangan mo and we will
elevate that. Nakaindex lahat yan.
What is the consequence of the failure to
appeal on time?
The appellant can no longer file an appeal, and
the judgment will become final and executory.
In case of an appeal, is a new trial conducted
by an appellate court?
No. Irireview lang kasi ng appellate court.
Can new parties be impleaded during the
appeal?
No. The title of the cse ill remain the same,
plaintiff versus defendant, dadagdagan mo lang
kung ang defendant ang nagappeal, lalagay mo
defendant appealantm yung plaintiff, plaintiff-
appellee pareho parin yun.
What are the issues that may be considered
by the appellate court in an appeal?
Only those assigned errors in the appellants brief,
kasi class nagfile ka ng notice of appeal sa trial
court so ieelevate naming yng records. Pag
natanggap na ngayin ng CA ang entire records
inonotify ngayon yung appellant na eto yung
record on appeal, now the appellant will file an
appelants brief at duon nakalagay, assigned
errors.
In civil case, if an error or issue is not
assigned, can the CA resolved those issues
not assigned as errors?
As a general rule the CA cannot resolve those
issues, except:
1. Errors on jurisdiction over the subject
matter.
2. Errors affecting the validity of judgment.
3. Errors affecting the proceeding.
4. Errors directly connected to the assigned
errors.
5. Plain clerical errors.
In a criminal case, kasi sa criminal case may
appellants brief din and if the CA finds an
error in the decision of the Court pero hindi
assigned errors, can the appellate court rule
on that?
No. it is different in criminal cases , in a criminal
case unlike in a civil case, the entire case is open
34 | P a g e
for review ganyan sa criminal case and even if the
errors is not assigned the same may be resolved
by the appellate court. Remember that, yun ang
distinction ng civil at criminal case with respect to
assigned errors.
Judge (J): Miss Tiambeng, so we started
discussing appeals. So, we discussed the two
modes of appeal: ordinary and discretionary
appeal. So, an ordinary appeal is an appeal as a
matter of right, while a discretionary appeal is no
longer a matter of right. And we have discussed
that an ordinary appeal may be perfected either
by filing a notice of appeal or a record on appeal.
Now, when is appeal by notice of appeal
perfected?
Student (S): An appeal by notice of appeal is
deemed perfected upon the filing of the notice of
appeal and the payment of the appellate docket
fees and other legal fees.
J: In due time. Within the period prescribed by
law.
And how about the record on appeal? When
is it perfected?
S: An appeal by record on appeal is deemed
perfected upon the approval of the record on
appeal which was filed in due time and upon the
payment of the required fees.
J: So, there are two parties in an action, and when
a decision is rendered, the aggrieved party will
appeal. Well yung winning party class, kahit
nanalo siya, maybe there are some matters that
he does not agree with the court. Laging ang
nagiging contention diyan nung winning party
kulang yung award ng court. So magaappeal din
yan. So, a perfected appeal is, as you said, if it is
through a notice of appeal, is by filing a notice of
appeal in due time as to the one party. So as to
her or as to him, perfected yan. But remember,
the other party also may appeal. So it is perfected
as to the other party when he files a notice of
appeal in due time.
Okay, now question. When does the court
which will render the judgment loses
jurisdiction over the case? When the mode of
appeal is through a notice of appeal.
S: Upon the filing of the notice of appeal or upon
the expiration of the period to appeal or to file the
notice of appeal.
J: Of all the parties?
To be accurate, hindi siya OR. The court which
render the judgment loses jurisdiction over the
case upon the perfection of the appeal AND the
expiration of the time to appeal of the other
parties. So both must conclude. Kasi, kapag
naperfect yung appeal, nakapag-appeal yung mga
parties, hindi naman automatic na mawawala na
yung jurisdiction. Because as long as the entire
records are still with the court of origin, and the
entire records are not yet elevated to the appellate
court, the court does not lose jurisdiction, even if
the appeal is already perfected.
Record on appeal. You mentioned that the appeal
is perfected as to the party filing the record on
appeal upon approval of the record on appeal.
Question: when does the court which
rendered the judgment lose jurisdiction over
the case? Not really over the case, but only
over the subject matter. Kasi diba sabi natin,
ang record on appeal is applicable when there is
multiple appeal or a special proceedings.
When does the court lose jurisdiction over the case
if it is through a record on appeal?
S: upon the approval of the record on appeal or
upon the expiration of the period on which to file
the .
J: So remember, if it is through notice of appeal
and through record on appeal, magkaiba. It is
different when the court loses jurisdiction over the
CASE if it is through notice of appeal or over the
SUBJECT MATTER of appeal with respect to a
record on appeal.
Now, when is an appeal by petition for
review or discretionary appeal perfected?
S: Upon the filing of the petition for review and
upon the expiration of the period of which to file
the said petition.
J: We are talking here of mere perfection. When
you say perfected, you took the appeal. When an
35 | P a g e
appeal is perfected, it does not necessarily mean
that the court already lose jurisdiction.
So, the appeal is perfected by petition for review
upon filing of the petition and payment of
appropriate docket fees.
Losing jurisdiction is a different matter from
perfection. Kasi, if you would.. oh complaint, in
appeal by petition for review, when does the court
lose jurisdiction over the case?
S: Maam upon the filing of the petition for
review and upon the expiration of the time
to appeal by the other courts.
J: Please take note of that. Now, prior to the
transmittal of the entire record to the appellate
court, does the court still have remaining
jurisdiction over the case?
S: Yes maam. The trial court has residual powers
and it may order the, it may allow that the
preservation of the rights of the parties be
J: In the exercise of residual powers, what may
the trial courts still do even if the appeal was
already perfected?
S: The trial court may issue an order for the
protection of the rights of the parties with regard
to an issue or a matter not included in litigation in
the appeal or it may allow compromises, uhm
J: Can it still dismiss the appeal for being
filed out of time?
S: Yes maam.
J: Yes. That is part of the residual power.
Now, what is the effect if the appeal is
perfected? Is the judgment vacated or is the
judgment stayed?
S: The judgment is stayed and the court may
affirm, reverse or modify the judgment.
J: But what if the judgment is one rendered in a
case covered by the rules of summary procedure?
Will an appeal stay the judgment in summary
procedure?
S: No maam. It is the exception to the general
rule. It will not stay the judgment.
J: If a judgment rendered in small claims cases, is
it appealable? Based on what weve studied. In
small claims cases the judgment is immediately
executory.
What is the effect of judgment on those who did
not appeal? For example, I am the plaintiff you
are the defendant, and I won. So you appealed. Of
course nanalo na ko, hindi na ako nagappeal.
S: Maam, with regard to affirmative reliefs, the
person who did not appeal, he cannot ask for
affirmative reliefs on the appealed case. And with
regard to reversal of judgments, the general rule
is that only those who appealed will be covered by
reversal of judgments. And the exception is if they
are, if the parties defenses and claims are
interwoven
J: If the parties claims and defenses are
interwoven. Akala ko if the parties are
intertwined eh.
If the parties defenses or claims are
interwoven/intertwined that it cannot be
separated.
Okay, so those are the effects.
Now, under section 1 of Rule 41, what are the
cases or orders that are not appealable?
You can go over section 1 of Rule 41.
S: Section 1. Subject of appeal. An appeal
may be taken from a judgment or final order that
completely disposes of the case, or of a particular
matter therein when declared by these Rules to be
appealable.
No appeal may be taken from:
(a) An order denying a motion for new trial or
reconsideration;
(b) An order denying a petition for relief or any
similar motion seeking relief from judgment;
(c) An interlocutory order;
J: So an interlocutory order, I think we defined
what is an interlocutory order, so it is not
appealable. It is explicit under Rule 41. So what is
the remedy of an aggrieved party in an
interlocutory order? Like for example, ano ba
yung mga interlocutory order, denial of a motion
to dismiss, meaning magpoproceed sa trial yan.
What is the remedy of an aggrieved party kung
hindi siya pwede mag-appeal?
36 | P a g e

S: An appeal via Rule 65.
J: Okay next.
S: (d) An order disallowing or dismissing an
appeal;
(e) An order denying a motion to set aside a
judgment by consent, confession or compromise on
the ground of fraud, mistake or duress, or any
other ground vitiating consent;
(f) An order of execution;
(g) A judgment or final order for or against one or
more of several parties or in separate claims,
counterclaims, cross-claims and third-party
complaints, while the main case is pending, unless
the court allows an appeal therefrom; and
(h) An order dismissing an action without
prejudice.
In all the above instances where the judgment or
final order is not appealable, the aggrieved party
may file an appropriate special civil action under
Rule 65.
J: So, in those enumerated instances, appeal is
not a remedy. At the last paragraph of section
1, Certiorari is a remedy. But there are
conditions. It must be shown that there was
grave abuse of discretion and we will be
discussing that exhaustively in Rule 65.
Apart from those enumerated in Section 1 of Rule
41, we said judgments in small claims and
summary procedure are not appealable, judgment
on a compromise and judgment declaring the
presumptive of the spouse, they are immediately
executory. And what is the remedy?
Certiorari.
Okay now, what is the remedy of an aggrieved
party from an order denying a motion for
reconsideration or new trial?
S: The remedy of the aggrieved party is to appeal
from the judgment.
J: Okay. You appeal from the judgment when the
motion for reconsideration is denied; you do not
appeal the denial of your motion for
reconsideration, that is an improper remedy. Ang
iaappeal mo yung desisyon nung judgment.
Now, under Rule 40, this is an appeal from the
decision of what court?
S: From the decision of the Municipal Trial Court.
J: And the appeal is brought to?
S: The Regional Trial Court.
J: Regional Trial Court. What is the mode of
appeal here? Is it by ordinary appeal or by
discretionary appeal?
S: By ordinary appeal.
J: Always by ordinary appeal. Kasi wala
namang appellate jurisdiction yung MTC. So
the decision rendered by the first level court
is always in the exercise of its original
jurisdiction. So by ordinary appeal by filing
what? Either?
S: A Notice of appeal or a record on appeal.
J: Now, where should you file the notice of
appeal? Before the MTC or the RTC?
S: Before the MTC.
J: The Municipal Trial Court. And within what
period must the appeal be perfected?
S: It must be perfected within 15 days from the
notice of the judgment or order.
J: If it is by notice of appeal. But if it is by
record on appeal?
S: By record on appeal, it must be within 30 days
from the notice of the judgment.
J: Okay. So, ang notice of appeal napakasimple
lang class. Defendant is filing a notice of appeal
from the decision of the municipal trial court, or
metropolitan trial court of manila, to the regional
trial court. The decision was received on such a
date. Or eto, the defendant is filing a notice of
appeal from the decision of the metropolitan trial
court, copy of which was received on so and so, on
37 | P a g e
such and such a date, on the ground that the
decision is contrary to law and evidence. Yun
lang. And he filed before the municipal trial court.
Pag binasa mo yun, yung judge ng mtc, if it is
within the 15-day period, it is the MTC who will
allow the notice of appeal. Ang magiging order
lang, considering that the defendant has
seasonably filed a notice of appeal on such
and such a date, let the entire records of this
case be elevated to the Regional Trial Court.
Yun lang.
If the appeal is not filed on time, then the notice of
appeal is denied for being not filed on time. That
is why in the notice of appeal, it is important to
indicate the material dates. And what are the
material dates?
S: It is the date when the judgment or order was
received.
J: So para makita agad ng court. Oh nareceive
niya last month pa ngayon lang siya nagappeal.
So denied outright. That is the importance of
indicating the Material Data Rule, material
dates. So, syempre pag inelevate yan sa RTC
contrary to law. Ano yung portions ng decision na
contrary to law? Isang page lang kasi yung notice
of appeal eh.
In that case, what should the appellant file
before the RTC under rule 40?
So, nandun na yung notice of appeal and the
regional trial court will notify the appellant that
the RTC already received the notice of appeal.
And what should the appellant file then?
S: A memorandum on appeal.
J: Memorandum on appeal by the appellant.
Within what period must the memorandum be
filed?
S: Within 10 days.
J: Within 10 days?
S: Within 15 days maam.
J: From when?
S: From the notice of the transmittal of the
J: Notice of the appeal. 15 days. The appellee
may file also a memorandum for the appellee.
Kasi class, kung simpleng notice of appeal, paano
malalaman ng judge ano ba ang contrary to law.
Isang sentence lang yan eh. So, in the
memorandum on appeal, doon makikita ano yung
grounds ng appeal, yung discussion. Ano yung
part of the decision which is contrary to law.
Now, what would be the effect if the
appellant fails to file a memorandum on
appeal?
S: It would be a ground for dismissal of the
appeal.
J: Ground for dismissal of the appeal, and this is
very clear under section 7 of Rule 40. So you take
note of Section 7 of Rule 40.
Now, what would be the title of the case
which was appealed from the first level
court to the regional trial court?
S: It will be the same title but the party who will
be filing the appeal will be named as the appellant
and the
J: If it is the defendant who appealed? What
would be the title?
S: ahh
J: Plaintiff-appellee?
S: Plaintiff-appellee vs. Defendant-appellant
J: So halimbawa ito yung plaintiff, si Ms. Mesina
ang defendant, so ang mangyayari, Jemimah
Tiambeng, Plaintiff-Appellee vs. Julie Ann
Mesina, Defendant-Appellant.
Baliktarin natin. Ang nanalo yung defendant,
natalo ka plaintiff, ang mangyayari, Jemimah
TIambeng, Plaintiff-Appellant vs. Julie Ann
Mesina, Defendant-Appellee.
That would be the title. As I have mentioned, the
material date shall be indicated AGAIN in the
memorandum of appeal.
Should there be payment of appellate docket fees?
38 | P a g e

S: Yes maam.
J: At what court should it be paid? At the
appellate court (RTC) o sa MTC?
S: MTC maam.
J: Where do you file the memorandum on
appeal, MTC or RTC?
S: RTC maam.
J: At the RTC. Ang ifa-file mo sa MTC yung
Notice of appeal.
Section 8, I would like you to read section 8
because this is important. Please read it.
S: Appeal from orders dismissing case without
trial; lack of jurisdiction. If an appeal is taken
from an order of the lower court dismissing the
case without a trial on the merits, the Regional
Trial Court may affirm or reverse it, as the case
may be. In case of affirmance and the ground of
dismissal is lack of jurisdiction over the subject
matter, the Regional Trial Court, if it has
jurisdiction thereover, shall try the case on the
merits as if the case was originally filed with it. In
case of reversal, the case shall be remanded for
further proceedings.
If the case was tried on the merits by the lower
court without jurisdiction over the subject matter,
the Regional Trial Court on appeal shall not
dismiss the case if it has original jurisdiction
thereof, but shall decide the case in accordance
with the preceding section, without prejudice to
the admission of amended pleadings and
additional evidence in the interest of justice. (n)
J: Okay, para maintindihan natin, let us have an
example pertaining to section 8.
You, as the plaintiff, filed a complaint for
ejectment. Kasi first level court diba? Exclusive
jurisdiction. Ejectment, specifically unlawful
detainer. Kasi nagpaparenta ka hindi na
nagbayad yung tenant mo. So, you filed a
complaint for unlawful detainer against your
tenant before the metropolitan trial court of
manila, is the jurisdiction proper? Okay. Kasi
yung property tsaka yung residence mo sa Manila.
However, you filed the case more than one year
from the time of the last demand. Question, does
the metropolitan trial court still has jurisdiction
over the action?
S: No.
J: Why not?
S: Because the cause of action should be Accion
Publiciana.
J: Correct. Within 1 year, wala na, accion
publiciana. And what is the court of proper
jurisdiction with respect to accion publiciana? The
regional trial court. So this is very clear. The
metropolitan trial court has no jurisdiction.
Now, the defendant or tenant filed a motion to
dismiss on the ground of lack of jurisdiction which
the metropolitan trial court of manila granted.
Sabi niya, wala akong jurisdiction it should be the
regional trial court. The plaintiff appealed. Saan
siya magaappeal?
Regional trial court. Rule 40. By ordinary appeal,
notice of appeal, appeal as a matter of right.
Okay, sabi ng RTC, Correct. The metropolitan
trial court is correct in dismissing the case
because it lacks jurisdiction. This is now an accion
publiciana or recovery of possession, within the
jurisdiction of the regional trial court.
Question: Walang jurisdiction nga ang mtc, nag-
appeal sa rtc, inaffirm ng rtc yung dismissal,
should the regional trial court dismiss the action?
S: No maam. The regional trial court shall not
be confined with the affirmance of the
appeal but should also try the case as if it
was originally filed with it.
J: Why should it try the case? Eh dinismiss na
nga sa mtc. What gives it authority to try the
case?
S: Maam because it already has the proper
jurisdiction to try the case.
J: Kasi it has jurisdiction. So the rtc should not
dismiss the case and try it as if it is originally
filed before it. Recovery of possession na ang
39 | P a g e
treatment niya dyan. Bakit gagawin yun? Kasi
pag dinismiss niya kawawa naman yung patry
magrerefile nalang, bayad nanaman ng fees,
docket fees.
The second situation, same facts. Okay, assuming
that there was no motion to dismiss filed by the
defendant. Tutulog-tulog yung lawyer nung
defendant. Nagproceed ang kaso. And the
metropolitan trial court rendered a decision in
favor of the plaintiff ejecting the defendant. The
defendant appealed to the regional trial court.
And on appeal, the regional trial court reversed
the metropolitan trial court and said, the
metropolitan trial court has no jurisdiction.
Because the case was filed beyond 1 year from the
time of the last demand. In this situation, should
the rtc dismiss the case?
S: Yes maam. The dismissal shall be on the merits
of the case already.
J: Is that what is provided for under the second
paragraph of section 8 that if the case was tried
on the merits the rtc.
(Bat ganyan ka magbasa ng codal, pa-side? Ah.
Kasi pa-side yung basa niya nagulat ako eh.)
S: Maam it shall decide the case on the basis of
the entire records and the memorandum without
prejudice to the admission of additional evidence.
J: So remember, sa second situation may trial on
the merits, but the metropolitan trial court tried
the case without jurisdiction. Nagprisinta ng
evidence, may mga position paper, affidavits,
counter-affidavits. Pagdating sa RTC, kasi nag-
appeal yung defendant, sabi ng RTC bakit
nagpatuloy sa proceedings itong metropolitan
trial court wala siyang jurisdiction. In that case,
nireverse niya. But, the regional trial court should
not dismiss the case. At it shall proceed.
Considering that it was tried on the merits. Well,
the rtc in this situation shall not dismiss the case
but shall decide the case using the evidence
presented before the metropolitan trial court
without prejudice to the admission of amended
pleadings and additional evidence in the interest
of justice. So that is rule 40.
RULE 41
But before we proceed to that, what are the modes
of appeal from the decisions of the regional trial
court?
S: Ordinary appeal under rule 41.
J: Under rule 41. So ordinary appeal by notice of
appeal or record on appeal.
In Rule 41, the regional trial court there is in
the exercise of what kind of jurisdiction?
Original jurisdiction.
So the appeal will be taken from the RTC to
what court?
S: To the court of appeals.
J: Court of appeals. And what are the other
modes of appeal?
S: Petition for review under rule 42.
J: Okay. It would be filed where?
S: To the court of appeals.
J: To the court of appeals. Here, the regional
trial court is exercising what kind of
jurisdiction?
S: Appellate jurisdiction.
J: Appellate jurisdiction. So ang situation dito,
MTC nagappeal sa RTC and then RTC has a
decision, mag-aappeal sa court of appeals.
What are the other mode of appeal from the
decision of the regional trial court?
S: Petition for review on certiorari under rule 45.
J: And this is filed in what court?
S: Supreme Court.
J: Supreme Court. So remember, there are three
(3) modes of appeal from the decision of the
regional trial court. Covered by Rules 41, 42 and
45.
Now, under rule 41, the rtc here exercised its
original jurisdiction in rendering the decision. So
the appeal is to the court of appeals by notice of
appeal or record on appeal.
Now, what are the errors that may be raised
under rule 41?
S: The errors on the questions of law or fact, or
mixed questions of law and fact.
40 | P a g e
J: What if the question is purely questions of
law?
S: Then maam the remedy will be Rule 45.
J: And bring it to the Supreme Court. Now,
where do you file the notice of appeal under
rule 41? Before the RTC or the CA?
S: The regional trial court.
J: Before the regional trial court. And within
what period?
S: within 15 days from the notice of the judgment.
J: If it is through record on appeal?
S: 30 days.
J: 30 days. Now, the notice of appeal, again,
should contain the material dates and what is the
ground for the appeal.
Again, when is the appeal perfected?
S: In the notice of appeal, upon the filing of the
notice of appeal and upon the payment of the
docket fees and other lawful fees.
J: Okay. Now, when will the court lose
jurisdiction, when will the regional trial
court lose jurisdiction over the case?
S: Upon the filing of the notice of appeal and upon
the expiration of the period to file.
J: And if it is through record on appeal, upon
approval of the record on appeal. And again, prior
to the transmittal of the entire records, the
regional trial court can exercise residual powers
that we have discussed a while ago.
RULE 42
Let us now proceed to Rule 42.
Rule 42 pertains to?
S: Petition for review from the RTC to the CA, the
RTC exercising its appellate jurisdiction.
J: Okay. So a decision was rendered by the
metropolitan trial court, or by the municipal trial
court, appealed to the regional trial court, the
decision of the regional trial court would be
appealed to the court of appeals under rule 42 by
petition for review.
Is this an appeal as a matter of right or
discretionary appeal?
S: Discretionary.
J: Of course. It is already a discretionary appeal.
Kasi, hindi na siya first appeal, second na. So it is
already a discretionary appeal. And within what
period must the petition for review be filed?
S: 15 days from the notice of the judgment or
order
J: And where do you file the petition for
review before the regional trial court or at
the court of appeals?
S: At the court of appeals.
J: Should the petition be verified?
S: The petition should be verified.
J: Should it be accompanied by a
certification against non-forum shopping?
S: Yes maam.
J: You mentioned a while ago that the petition for
review should be filed within 15 days from the
notice of the decision from the RTC. Can this
period be extended?
S: Yes maam. But there should be good cause with
regard to the extension.
J: Hindi nga lang good cause eh. Because under
rule 42, it should be for the MOST compelling
reason. For how many more days?
S: 15 days.
J: 15 days. And that is the last extension. So all in
all, 15 + 15 is equal to 30 days. So in a petition for
review, the period can be extended for filing it. In
a notice of appeal or record on appeal, 15 days or
30 days, by ordinary appeal, can the periods be
further extended?
41 | P a g e
S: No maam.
J: Never. It cannot be extended. If you did not
file an appeal within those periods, what
would be the effect of that?
S: The judgment will be final and executory.
J: Correct. So, under rule 42, petition for review,
the period may be extended for another 15 days.
So motion to extend. It must be based on the most
compelling reason. But remember, pag nagfile
kayo ng motion to extend to file petition for
review, must the appellate docket fees be fully
paid?
OO. Maraming nadidismissan diyan ng appeal.
Magfafile nga ng extension, hindi naman
magbabayad ng docket fees. Outrightly. Not given
due course. Okay? And it is very clear under the
rules. FULL PAYMENT.
Class iba yung sa commencement of an
action. Diba dun liberal pa ang korte? Na
pwede kang magbayad. You will be given a certain
period as long as its not beyond the prescriptive
period to file an action. Pero kapag sa appeal if
you would notice, full payment of the appellate
docket fees. This is because talo ka na,
pinagbibigyan ka nalang ng korte, kaya ito
discretionary appeal, tapos hindi ka pa
magbabayad, hindi ka pa magcocomply sa rules.
Remember class, is an appeal part of due
process?
No. it is merely a statutory right which may be
taken away from you. Oh pagka na-repeal yung
provision na yan, or iniba itong rules on appeal,
edi wala ka ng right to appeal, because it is not a
constitutional right.
Now. So, in the title of the petition, pareho
din ba siya ng title dun sa MTC at sa RTC?
Sa Petition for review, plaintiff-appellee,
defendant appellee, susundin ba natin yun?
Remember, this is through a verified petition. So
the title will now change. Petitioner-
Respondent.
I-implead mo ba yung MTC at RTC? No. only the
parties. Petitioner vs. respondent.
Now, under section 2 of rule 42, form and contents
of the petition. Diba sabi ko nga sainyo kanina it
should be verified and should be accompanied
with a certification against forum-shopping. And
of course it is very important to point out the
errors of law and the grounds relied upon in
the petition. Yun ang importante in petition for
review. Because, the issue should be specified.
Under section 2, yung number of copies,
napakarami diba? Ilang kopya ang kailangan?
Seven. I would like to point out that the number
of copies under section 2 of rule 42 has
already been MODIFIED.
Under the Efficient Use of Paper Rule issued
by the, yes theres such a rule, effective January 1,
2013 class. Ang trust ng rule na ito, for every, ano
ba yun, 500 reams of paper, a certain number of
trees are being cut. Ang dami. So the Supreme
Court would like to preserve the environment,
kaya nilimit nalang yung number of copies to be
filed. So ito modified na ito.
Under the efficient use of paper rule, A.M. No. 11-
9-4-SC, effective January 1, 2013, if the copies to
be filed on pleadings submitted or filed before the
court of appeals, kasi ito diba court of appeals
ang rule 42, copies to be filed: 1 original
nalang, and 2 copies with annexes. So tatlo
nalang. Bakit? Efficient use of paper rule. Kung
gaya nitong pitong kopya, class alam niyo hindi
naman kailangan ng napakaraming kopya. Kung
mapapansin yung kapal ng record, yun pala ang
dami daming kopya ng complaint, ng decision na
hindi naman kailangan, eh pinapatanggal ko rin
naman yung mga duplicates eh, isang kopya lang
naman ang babasahin eh ng judge at tsaka ng
justices. Hindi naman yan sa paramihan ng
kopya. So yun yung ifafile nyo, 1 original and 2
copies with annexes. Pero syempre kailangan
bigyan niyo ng kopya yung kalaban, so
magdagdag kayo based on kung ilan yung
kalaban niyo. That is sa court of appeals and
sandiganbayan.
Ngayon sa regional trial courts, yung sa lower
courts, 1 original copy with annexes. Eh dati
nararanasan ko limang kopya, ganyan. So
ipatatanggal ko yun. Anong gagawin ko dun sa 4
copies? Gagawin kong scratch, gagamitin ko yung
likod, hindi kailangan yun eh. So saying ang papel
diba?
42 | P a g e

Now, kung sa supreme court, ilang kopya? Under
the efficient use of paper rule, 1 original copy
and 4 copies. So isang original, apat na
photocopies. Unless, the case is referred to
the en banc. Pag na-En banc, 1 original plus
10 copies. Syempre yung petitioner may mga
annexes, kailangan ba judge yung sa apat na
kopya at yung sa en banc sampung copy lahat
meron yung annexes? Hindi. Two sets of
annexes lang. Maghiraman nalang sila dun.
Efficient use of paper rule, please read it.
Nakalagay din dun yung ano, dapat ang font nila
ngayon ang size is 14. Single space pero malaki.
Napakasarap basahin yung size 14 kasi dati ang
liliit ng font. Ang hirap nakakainis tapos ang
haba pa ng pleadings. So ngayon ang sarap na
magbasa. Tapos 1.5 ang space so talagangsabi
ko nga efficient use of paper rule pero 14 ang font
size tapos 1.5. Pero alam niyo, napakasarap
magbasa ng ganun kalalaki na may space. Kasi
diba, subukan niyo na single space tapos ang font
is 11 or 12 jusko, sabi ko kung hindi nga lang ako
maaadmin dito pag ganito ayaw ko na basahin
talo ka na eh. Ang hirap kasi.
So the efficient use of paper rule, so section 2,
yung number od copies modified na yan class.
And another thing, class, when you file pleadings
in the supreme court, you are required, parties
are required to submit simultaneously with the
court-bound pleadings. So yung 1 original and 4
copies or 1 original and 10 copies sa supreme
court. The parties are required to submit soft
copies. Meaning, pati yung annexes. In PDF
format. Either by e-mail or by USB or CD.
Hindi tatanggapin kung yun lang court-
bound paper. Dapat may CD or USB or may
acknowledgment kayo na na-email niyo. Kaya
lang pag e-mail nagcra-crash ang ano ng supreme
court. So may okay na yung i-USB mo nalang or
yung CD. Magastos nga lang sa usb. Even yung
annexes, so ii-scan niyo yun. Kaya mas lalong
malakas maningil ang lawyers pag sa supreme
court.
Now, under rule 42 Pero sa lower courts, kami
wala kaming internet. Binigyan kami nung sa
internet pero hindi nagwowork. Pinasauli ko nga
eh kasi binabayaran nila yun eh, yung monthly
pero its not working. Eh ano ba yung sinasabi,
meron silang configuration something, sabi ko
ewan ko sainyo sa trabaho ko nga lang hindi na
ako makapahinga magcoconfigure pa, ano yun?
Sabi judge ganito po ang gawin niyo, icli-click niyo
po, ganyan, sabi ko ay nako, ibabalik ko nalang
sainyo, anong icli-click pa namin. Hindi ako IT
expert. Tapos, nafollow niyo na po yung
instructions? Sabi ko yung filling-up of forms nga
inis na inis ako eh. Tapos pag kailangan may
internet. So, kaya, well it would really take a lot
of resources, financial resources. Ang NCR hindi
naman ito internet capable, eh ang lapit lang ng
muntinlupa.
Now, sabi nila, sa supreme court eh iba kasi ang
supreme court. Syempre kung anong gusto ng
mga hari susundin yan. Pag hindi pa nakapasok
yung mga justices sa internet, syempre andiyan
agad yung mga taga-IT. Diba? Kasi justice yan ng
supreme court. Eh kami? Ay maghintay ho kayo
marami pa hong sineserbisyuhan. Tapos pag hindi
ka agad nakapag-submit, explain. Thats the
problem. And just imagine, yung aming mga bond
papers, yung supply, ubos na. Ano palang ngayon?
April. For one year, ilan lang ang mga
dumadating saming bond paper. So ang
tumutulong na sa amin yung local government.
And that is allowed under the local government
code. Because we are serving the constituents.
So sumulat uli kami. Alam niyo, nagdeliver,
tatlong balot, tatlong ream. Ay sabi ko, isang
linggo lang namin gagamitin yan. Sabi ko nag-
aksaya pa kayo ng delivery van. Tapos yung folder
100pcs., sabi ko eh ang case load ko ilan. Isang
linggo lang yang ano na yan. Tapos gusto nila
tanggalin yung assistance ng local? And then they
expect us to deliver? Class ako nga, ako nalang
yung bumibili ng mga supplies sa court. And then,
pag nag-request ka sakanila, mag-bibidding pa po.
Jusko. So sa isang taon pa kami maghihintay,
kailangan pa ng, ay nako. That is our life. And
yet sasabihin mabagal ang hustisya. And we
can only do so much. With the resources that
we have. And how many staff do we have?
Meron kang isang lawyer, yung branch clerk of
court. May legal researcher. Stenographers na
apat. Isang sheriff. Isang process server. Isang
utility. Dalawang _. Eh yung desisyon, ah,
wala kaming confidential staff.
Eh sa supreme court, ilan ang lawyer,
labindalawa. Yun ang mga nagda-draft ng mga
43 | P a g e
desisyon. Eh kami, kami lang. nagta-trial ako sa
umaga, sa hapon magpipirma ng order, plus you
will supervise your staff. So judicial and
administrative matters, nagkakasal ka pa. Kaya
sabi ko nga, sana alisin nalang yung kasal sa
judge. Kasi nakaka-ano eh. And we are required
kapag nagkasal, parang pari, magsesermon kami.
Parang ganun din. Alangan naman tanungin, oh
ikaw tinatanggap mo ba kasi kasal yan eh,
importante sakanila yan. Kaya bibigyan mo ng
importansya. So, pagkatapos ng hearing,
matatapos ng 11:30 or 12, may kasal na
naghihintay po judge. Kasi nira-raffle yung kasal.
Hindi ka naman makakatanggi. Kaya hate na
hate naming mga judges, February, June, May
(kasi mid-year), December. Yan ang talagang
maraming nagpapakasal. January. December-
January.
Going back, ganun ang buhay sa korte.
Nakapunta na ba kayo ng rtc manila? Sinong
nakapunta na? Imaginine niyo. Tignan niyo yung
kalunos-lunos na kalagayan nila dun. Ako nung
naghea-hearing ako dati dun, katabi ko na yung
mga records. Tapos yung may plastic sa kisame,
pag umuulan yun yung sahod. Pag napuno,
tatanggalin ng utility. Maswerte na nga lang
kami, sa muntinlupa, may hall of justice na
maganda. Pero yung manila, yung other courts,
nakakaawa. Sabi nga namin dun sa mga kasama
namin, parang nakaka-degrade yun sa
institusyon, na mamaya papatakan ka ng kung
ano. But we have to perform our duties.
Now, under rule 42, may the court of appeals
outrightly dismiss the petition for review?
S: Yes, maam.
J: Okay, on what grounds? Under section 4, ano
yung sabi? You can go over rule 42.
S: Section 4. Action on the petition. The Court
of Appeals may require the respondent to file a
comment on the petition, not a motion to dismiss,
within ten (10) days from notice, or dismiss the
petition if it finds the same to be patently
without merit, prosecuted manifestly for
delay, or that the questions raised therein
are too insubstantial to require
consideration.
J: So, there are 3 grounds or situations when, the
court of appeals, even without motion, can
outrightly dismiss a petition for review when it is
patently without merit, when it is manifestly
for delay, and the issues raised are too
unsubstantial, walang kakwenta-kwenta to
merit consideration by the court.
Now, we said that a petition for review is
perfected by filing a verified petition. With
the certification of non-forum shopping,
payment of appellate court docket fees, and
the petition should specify the grounds.
Okay, what would be the effect of failure to
comply with these requirements?
S: It shall be a ground for dismissal.
J: So, based on that, if you do not follow the form,
and the contents, and the payment of the docket
fees, your appeal, your petition for review under
rule 42 may be dismissed. And when is a petition
for review under rule 42 perfected? Remember
hindi ito a matter of right or notice of appeal.
When is it perfected? Upon filing of?
S: Upon filing of the petition and upon payment of
the docket fees.
J: And when will the regional trial court lose
jurisdiction over the case?
S: Upon the filing of the petition and the
expiration of the period to file said petition.
J: Now, before the court of appeals gives due
course to the petition, can the regional trial
court still exercise residual powers? Is there
such a thing as residual powers if the appeal
is through a petition for review?
S: No. (YES)
J: Check section 8, paragraph 3.
S: However, before the Court of Appeals gives due
course to the petition, the Regional Trial Court
may issue orders for the protection and
preservation of the rights of the parties
which do not involve any matter litigated by
the appeal, approve compromises, permit
appeals of indigent litigants, order
execution pending appeal in accordance
with section 2 of Rule 39, and allow
withdrawal of the appeal.
44 | P a g e
 Mesina... versus Julie Ann Mesina, respondent. I-
J: So, does the regional trial court have include mo ba for example yung civil service
residual powers before the court of appeals commission as a respondent?
gives due course to the petition? Yes.
S: Yes. (No.)
Pero class, compare this to when the mode of
appeal is by notice of appeal or record on appeal. J: Is that what is provided for under rule 43? No.
The trial court loses jurisdiction when the You need not, you do not have to implead
entire records are elevated to the appellate the quasi-judicial body, but only the private
court. Pero dito, before the court of appeals respondent in the action.
gives due course.
Now there are enumerations, di ba?
Kasi in a petition for review, hindi ine-elevate ang Enumerations under rule 43. Nakalagay dun
records sa appellate court. unang-una court of tax appeals. In the present
rules, or in the present set-up, in a decision
What should accompany the petition for of the court of tax appeals en banc, is it still
review? covered by rule 43?
The certified true copy of the decision, hindi
yung entire records. Hindi ie-elevate. Kaya the S: No maam.
exercise of residual powers under rule 42 remains
with the rtc before the court of appeals gives due J: So where should the appeal be directly
course to the petition. filed?

S: To the supreme court.

RULE 43
J: To the supreme court under what rule?
What is rule 43?
Rule 45.
S: It is an appeal from the quasi-judicial bodies to
the court of appeals. So remember yung court of tax appeals hindi na
siya kasama sa rule 43. Decisions or final orders
J: Quasi-judicial bodies. So, this is through a of the court of tax appeals EN BANC, kasi may
petition for review. From the decisions or final mga divisions yan, appealable to the supreme
orders of quasi-judicial bodies to what court via rule 45, petition for review on certiorari.
court? Now class, if it is the decision of the court of tax
appeals division, mage-MR yan sa court of tax
S: To the court of appeals. appeals en banc. Hindi agad sa court.

J: To the court of appeals. Must the petition Now, how about the National Labor Relations
be verified? Commission? Is it a quasi-judicial body?

S: Yes. S: Yes maam.

J: It must be verified. Should it be J: Correct. The decisions of the NLRC, is it

accompanied by the certification against appealable to the court of appeals under rule 43?
non-forum shopping?
S: No maam. It is appealable to the court of
S: Yes maam. appeals via rule 45.

J: Should the quasi-judicial body be J: Rule 45 ba?

impleaded? Halimbawa ikaw yung petitioner:
Jemimah Tiambeng, petitioner versus uhm ang S: Ah, 65.
nirereklamo mo ay yung decision in favor of ms.

45 | P a g e
J: 65. Remember, St. Martins Funeral
Homes. You studied this in your labor. Diba?
Well, because under the labor code, ang nakalagay
dun kasi is by certiorari eh diba. So it was
interpreted by the supreme court, ang nakalagay
dun by the appropriate certiorari, ininterpret yan
ng supreme court in the case of St. Martin
Funeral Homes, yan yung landmark case. Kasi
may dalawang where to file a certiorari under the
rules. First is rule 45, petition for review on
certiorari which is an appeal. And another is
petition for certiorari under rule 65 which is an
independent special civil action.
So sabi ng supreme court, it cannot be rule 45,
kasi purely questions of law. So, ang magiging
appeal is by rule 65. At dapat daw sa court of
appeals, hindi sakanila. Talagang mautak
ang mga justices ayaw magtrabaho, binaba.
Itong civil service commission. The civil service
commission is a constitutional body, diba? Just
like commission on audit and the commission on
elections. But the civil service commission,
the decisions of the case and final orders,
where is it appealable? Is it covered by rule
43? Tignan mo. Tignan mo ang rule 43.
S: Ay yes maam.
J: Of course, diba? Ang COMELEC at COA ang
hindi. Ang civil service commission, under rule
43, sa court of appeals. Pero alam niyo ba class,
bago ng 1997 rules of civil procedure, sa supreme
court din ang court of appeals? At ang labor cases
sa supreme court din. But because of the rule-
making power of the supreme court, binaba nila
sa court of appeals. Ang civil service nilagay nila
dun sa court of appeals under rule 43.
Now, COA and COMELEC. The decisions of COA
and COMELEC, saan ka magaappeal? How could
you assail the decisions of COA and COMELEC?
Under rule 64, in relation to rule 65. Dont worry
we will discuss that. Im just discussing this kasi,
iisipin niyo, eh bakit yung civil service
commission, na constitutional commission, and
under your study of administrative law diba,
quasi-judicial body siya eh diba, ang civil service,
COMELEC, COA. Bakit hiniwalay ang civil
service commission? Nilagay sa rule 43.
Now, what are the issues that may be raised
under rule 43?
S: Questions of law or facts, or mixed.
J: Okay. And within what period must the
petition for review under rule 43 be filed?
S: 15 days from the notice of judgment.
J: Can it be extended?
S: Yes.
J: For how many more days?
S: 15 days.
J: On what ground?
S: For good cause and justifiable reason.
J: Most compelling reason. Kagaya din ng rule
42, most compelling reason, pareho sila 15 + 15.
Most compelling reason.
Sa ordinary appeal at sa petition for review under
rule 42, when the appeal is perfected, we
discussed that the appeal stays the execution.
Under rule 43, when a petition for review
under rule 43 is filed, will it stay the
execution of the judgment of the quasi-
judicial agency? Under section 12, rule 43.
For example, civil service commission, ang
desisyon ng civil service commission is that the
government employees be dismissed from the
service. Nag-file ngayon yung government
employee from the order of dismissal ng petition
for review under rule 43 sa court of appeals.
Upon filing of the petition for review, is the
judgment of dismissal immediately
executory or is it stayed by the appeal?
S: It is immediately executory.
J: Immediately executory, unless the court of
appeals issues a temporary restraining order or a
preliminary injunction.
What is substantial evidence rule? Youre
taking up administrative law right now, diba?
Tapos niyo na ba yung admin law o nasa public
officers or election law palang kayo?
46 | P a g e
 S: Court of appeals.
S: Public officers.
J: Under rule?
J: Public officers. Pabaliktad kayo.
S: Rule 43
The quantum of proof, quantum of evidence, in a
civil cases is? Preponderance. Sa criminal cases? J: Rule 43. Correct. So there is a distinction
Proof beyond reasonable doubt. between the final orders of the ombudsman in
criminal cases and in administrative cases. Kasi
In administrative cases, substantial evidence. And class, the ombudsman has the authority to
under the substantial evidence rule, the findings discipline all government employees, to
of facts of the quasi-judicial agency investigate, and to impose penalties upon
concerned when supported by substantial government employees administratively. So kahit
evidence, shall be binding with the court of halimbawa nasa executive ka, pwede kang
appeals. So, sa petition for review under rule 43, madismiss ng ombudsman, kung hindi umaakto
it must be shown that the decision of the quasi- yung head of agency mo.
judicial body is not based on substantial evidence, Okay let us end there.
that the quantum of evidence was not complied
with. Otherwise, ang findings of quasi-judicial Miss Mesina, What are the modes of appeal to
bodies binding yan sa court of appeals. the CA?
Under rule 41, which is an ordinary appeal.
Now, does the court of appeals have
jurisdiction to review the decision of the From what court?
ombudsman in criminal cases? Ang decision
na sinasabi ko dito ay hindi yung guilty or not RTC, exercising original jurisdiction over the
guilty, but the decision of the ombudsman to file place and may be taken by notice of appeal and
an information and charge a person in court or record on appeal.
before the sandiganbayan.
What are the other modes?
S: Maam only administrative cases. Rule 42, petition for review.

J: What is the remedy if the decision being From what court?

questioned is rendered by the ombudsman
in criminal cases? Nagdecide ang RTC, exercising appellate jurisdiction.
ombudsman na mag-file ng charges, for
example, for plunder, against a government Last mode?
official. Kagaya ni Jinggoy, nag-file ng
charges ang ombudsman against him, that is Petition for review under rule 43, appeal from
a criminal case. So, what is the remedy of decisions or resolutions from quasi judicial bodies
Senator Jinggoy? to the CA.

S: Avail a petition for certiorari. Under rule 42, it is a discretionary appeal.

J: Under? BTW, before we proceed to the procedure,

remember that the mode under rule 41 and 42,
S: Under rule 65. the distinction really lies, under rule 41, it is an
ordinary appeal, rtc to CA and under rule 42, it is
J: In Administrative cases, halimbawa the a discretionary appeal, rtc to CA.
ombudsman decided to dismiss a certain
employee for gross misconduct or abuse of Distinction is based on the nature of the
authority, saan mag-aappeal ang powers they are exercising.
government employee ngayon?
Under rule 41 original jurisdiction

47 | P a g e
Rule 42 appellate jurisdiction
Those are the modes of appeal to the CA
RULE 44
In ordinary appealed cases in rule 44, would
the title of the case remain the same?
Yes, it will remain the same but the appealing
party will be referred to as the appellant and the
adverse party as the appellee.
What are the questions that may be raised
here?
Questions of fact or law, which must be indicated
in the assignment of errors.
When should the appellants brief be filed?
It should be filed within 45 days from the notice of
the clerk of court that all oral and documentary
evidence are attached.
When is the appellees brief filed?
Within 45 days from receipt of appellants brief
What if, what was filed was original cases
like, petition for certiorari, prohibition,
mandamus, they are not appeals but they
are original special civil actions, question is
in lieu of appellants brief, what should be
filed by the party?
They should file their respective memorandum
within a non-extendible period of 30 days from the
notice of appeal.
What is the effect if they fail to file a
memorandum in these cases?
It should be a ground for the dismissal of the
action.
In ordinary appealed cases, you mentioned that
appellants brief must be filed within 45 days from
the notice of the clerk of court that all oral and
documentary evidence are attached to the records.
What should be the contents of the
appellants brief?
The subject index, so there should be a table of
contents, proceed
The assignment of errors, that is very
important so that the CA would know what are
the parts of the decision you are questioning and
what are the supposed errors committed by the
trial court, these are your grounds of appeal, kasi
sa notice of appeal nilagay nyo lang na contrary to
law and evidence to be specific it should be stated
in the assignment of errors and take note in civil
cases, can the appellate court resolve errors
and issues not raised in appeal?
NO, except what?
Errors pertaining to the lack of jurisdiction.
So, if you dont put it in the assignment of errors,
how would the CA know that the decision of trial
court is contrary to law and evidence, but that is
in civil cases, in criminal cases, based on your
study in criminal procedure, there is also appeal
and requirement to file appellant or appellees
brief, in criminal cases, if an error is not assigned
or an error not raised in appeal, can appellate
court decide that issue or error?
YES, because in criminal cases, once an appeal is
filed, the case is open for review, WON the error is
assigned, the whole case is open for review.
The appellants brief, aside from the
assignment of errors, there should be?
A statement of facts, statement of the case,
issues, arguments
Appellees brief would counter whatever was
stated in the appellants breief, appellee would
indicate the counter statement of facts.
For example, at the trial court level, the
defendant who is the losing party now the
appellant has now raised in the trial court the
issue of payment of the obligation, example a
collection suit for a sum of money, so sa trial court
na raise na niya yung defense, now talo siya in
the appeal, can he still raise issues that have
already been raised below and rejected or
decided against?
YES, ofcourse, because that is the very purpose of
an appeal.
RULE 45
48 | P a g e
What are the modes of appeal before the SC,
if there is any?
Petition for review on certiorari under rule 45.
Under our constitution, in crim cases?
Is there an ordinary appeal by notice of appeal in
crim cases when the penalty is reclusion perpetua,
or life imprisonment, so by ordinary appeal in our
constitution and if the penalty is death, there is
an automatic review before the SC, however these
modes of ordinary appeal in reclusion perpetua,
life imprisonment and automatic review, has been
modified in the case of PEOPLE v. MATEO, did
you discuss this in your crimpro?
You should have discussed this, because this is
the basis of the modification in the appeal in crim
cases, under the present rules now, the death
penalty imposition is prohibited, we cannot
impose, instead reclusion perpetua is imposed by
the court, now if Life imprisonment or reclusion
perpetua is imposed by trial court, where will the
appeal be?
It should be in the SC under the constitution but
because of the decision of PEOPLE V. MATEO,
decided in 2004 class, kasi wlang death penalty,
so of RP or LI, notice of appeal to the CA
basahin nyo sa crimpro sa roc.
If the CA, affirms the conviction, and the
imposition of RP or LI, then the next step is
appeal it to the SC, rule 45. You review your
appeals in crimpro, yan na ung procedure ngayon.
So kung Death penalty, bawal na.
Justice Vitug is the ponente of the case and it was
his valedictory decision, sabi nya it does not
violate the consti because appeal in CA when RP
or LI or even death is an intermediate review
because SC is not a trier of facts, and sabi nya ung
thrust nya eh kung ejectment pag natalo sa MTC,
to RTC, then aakyat sa CA then sa SC eh eto pa
kayang habang buhay na pagkakakulong or
death, pagkagaling mo ng RTC, isa lang mode of
appeal mo, rtc to Sc kaagad so meron nang
intermemediate review sa CA, so yan na ung basis
now ng appeals in crim cases, review crimpro in
appeals.
Now rule 45, in this case is a mode of appeal
to the SC, petition for review on certiorari,
what are the questions that may be raised?
Only questions of law, purely questions of law.
Where filed?
The SC, exclusive. Exclusive jurisdiction of SC,
cannot be before the rtc or ca, only SC.
Purely questions of law, how do you
distinguish a question of law and a question
of fact?
When for example it is with the applicability of
the law with regard to the case, this is question of
law and the question of fact depending on the
evidences presented. So there is a need to review
the evidence, whether oral, documentary or object
evidence.
Halimbawa ung factual issue, WON there was
payment of the obligation.
How do you determine? Present evidence: official
receipts. But if the issue is WON the court has
jurisdiction, it is legal issue, question of law.
In a petition for review on certiorari, what
would be the title of the case now?
The one who filed the petition, petitioner and the
against the respondent.
The judge who rendered the questioned
decision or order, is it necessary to implead
the court or judge?
NO, it is a case between petitioner and
respondent.
Must it be verified?
YES
Accompanied by a certification against non
forum shopping?
YES
49 | P a g e
May a petition under rule 45, include a What should be the meat of the petition?
petition for the issuance of a TRO or a
prelim injunction? The arguments and issues relied upon, so that the
SC would know if you are raising questions of law
YES only or are raising factual issues not within the
office of rule 45.
When must pet for review on certiorari be
filed? Now, should under rule 45 also, it is required
just like other modes of appeal it is required
Within 15 days from the notice of the judgment or that material dates be indicated, WHY?
final order
In order for the court to know if it was filed on
Can it be extended? time and impt also if it is discretionary rule 42,
Yes 43 and 45, the certified true copies of the
decision assailed from must be attached.
How many more days?
30 days What is the effect of failure to comply with
requirements in content of petition and
So 15 + 30 = 45 days. payment of full appellate docket fees?

Can it be further extended? Ground for dismissal of petition.

Not anymore. May the SC outrightly deny the pet for

review on certiorari, even if no motion from
So rule 45= at the most 45 days. any party?
Rule 42= 15 +15 YES.
43 = 15 + 15
so 45 days only rule 45. On what ground?
If there is no merit
When may the court, may the SC allow an
extension? And?
If it is prosecuted for delay
For valid reasons.
And?
Under rule 42 and 43, most compelling reason. If issue is too unsubstantial to warrant
Pare pareho rin naman yan but must be stated consideration as provided for in section 5
and when you file a motion for extension it must
be accompanied already by the payment of the full So those are the grounds for outright dismissal
docket fees. under rule 45.

What should be contained in the petition? Is the rule 45, a matter of right or
discretionary appeal?
18 copies should be filed, we have discussed this
yesterday, the efficient use of paper rule, already It is subject to the sound discreyion of the
discussed that the number of copies to be filed is court and should be granted only according
already modified by the efficient use of paper rule, to section 6 on what ground?
it is no longer 18 copies, so remember that.
On special and important reasons.
Apart from required number of copies, what
must be contained in the petition? What are these?

The full names of the parties 1. The lower court decided on question of
substance not yet decided by SC

50 | P a g e
 2. It decided on question of law not in accord
with the law
The time of SC is very important, we should not
waste the time of the court in filing petitions on
which the issues are too unsubstantial and unless
there are important and special reasons to do so,
SC is not a trier of facts and may only review
questions of law.
Can rule 45 apply also to criminal cases?
YES, from decision of CA affirming trial court
decision can be to the SC but purely legal issues
only.
What is the effect of dismissal of the petition
for review on certiorari on the judgment
assailed? What will happen to the decision
or final judgment appealed from?
Becomes final and executory
Under rule 45, it is explicit that only questions of
law are to be raised, but there are cases where SC
allows question of facts to be raised in a pet
for rev on certiorari under rule 45, what are
those 2 cases?
Writ of amparo and writ of habeas data
You will take these up in special proceedings
Decisions of rtc and ca of writ of amparo and
habeas data is appealable to SC via rule 45, but
factual issues may also be raised, same is true for
petitions for issuance of writ of habeas data.
These are the only exceptions.
Appeals from decisions of sandiganbayan?
Saan un?
SC only. It is thru rule 45. Very clear in section 1.
Can the other courts, include quasi-judicial
bodies?
YES
Halimbawa ung rule 43, umakyat kayo sa CA
then nag decision, this can be appealable to SC
via rule 45.
RULE 46
Original cases, anong court covered here?
CA
In CA, it has jurisdiction in certain cases
filed before it for the frist time, it has
original jurisdiction, what cases covered
here?
Original actions for certiorari, prohibition,
mandamus and quo warranto
These are the original cases covered by rule
46, annulment of judgment?
Yes but covered by rule 47
Orig cases what would apply is procedure under
rule 46.
How is jurisdiction over the person of the
respondent acquired in CA?
Upon service of the decision or resolution,
indicating the initial action to be taken.
No service of summons. And upon voluntary
submission.
In trial court, there is service of summons but
here in rule 46, orig cases in CA, no service of
summons, the CA will acquire jurisdiction by
requiring respondent to file comment and by
voluntary submission pag nag comment.
May CA conduct hearing?
YES, nag heahearing dyan lalo na pag writ of
amparo, habeas data and habeas corpus and
remember merong new trial. So it acts as if it is a
trial court, no problem with this because what are
raised are questions of fact and law and factual
issues include appreciation and assessment of
evidence.
RULE 47
This is an extra ordinary action, pertains to
what remedy?
Annulment of judgments
How commenced?
By filing a verified petition with CA
Is this in exercise of concurrent or exclusive
jurisdiction of CA?
51 | P a g e
Exclusive jurisdiction if CA.
Can you file this before the SC?
NO.
What judgments may be the object for
petition for annulment? Judgments of final
orders of what court?
Read section 1, decisions of RTC only.
If decision sought to be annulled is MTC,
where to file?
To the RTC.
In criminal actions can be?
NO only decisions of RTC in civil actions.
What are the grounds?
2 grounds: extrinsic fraud and lack of jurisdiction
Lack of jurisdiction over?
Subject matter and over the person of the
defendant
Within what period must petition for
annulment be filed, if ground is extrinsic
fraud?
4 years from the discovery of fraud.
If ground is lack of jurisdiction?
Before barred by estoppel of laches.
Because jurisdiction may be raised at any time as
long as not barred by estoppel or laches.
It is an extraordinary action and different from
petition for review = reckoning is 60 days but not
later than 6 months from entry of judgment, impt
here is the entry.
But if you would notice in rule 47, is entry of
judgment relevant?
NO.
Is it only available to the parties to the
action?
NO.
What would justify filing for non parties?
Provided that he may prove the fraud or lack of
jurisdiction and that he is affected by the
judgment.
Remember under rule 47, if remedies of
appeal, new trial, pet for relief are available,
if they were exhausted, can still file?
NO, clear in section 1, last part, that if these
remedies are available then petition for
annulment of judgment, the party or 3rd person is
not entitled for rule 47.
What procedure would apply?
Ordinary civil action procedure, specially in
reception of evidence before CA.
What would be the effect of judgment under
rule 47?
If ground is lack of jurisdiction, it shall be set
aside and rendered null and void.
Remedy? For above situation?
May refile case in proper court.
Ground is extrinsic fraud, effect?
Court may motu propio or motion of any party,
conduct a new trial. That is why the procedure
would be observed is on OCA.
If, the petition for annulment of judgment is
given due course, how could the CA now
acquire jurisdiction over person of
respondent for new trial?
By service of summons, this is required in this
particular case and CA would issue this.
Apart from annullment of judgment, other
available reliefs under rule 47?
Refile the case
Can damages be awarded by CA?
YES
If it involves a property real or personal, can
restitution be ordered?
YES
These are the remedies under rule 47.
Now, decisions of CA and SC, will rule 47
apply?
NO, di pde ipa annul mamagagalit ang SC. Just
revisit.
They are proposing to do away with condonation,
Pascual case, basis of Aguinaldo doctrine, in
election law. In admin cases, pag binoto ka ng
52 | P a g e
electorate, wipe out na. at time of election, they
are aware you are facing admin charges but they
are still voting for you but in this case diba during
last election, di nila alam, it just came out. Kahit
na it is really bad precedence as sabi ni justice
serreno, it violate and wala sa 1987 consti, the
basis of condonation doctrine is 1935 consti and
pascual case basis of Aguinaldo case, devided in
1959.
Can RTC, annul judgment of another RTC?
NO, but may mga judges na gumagawa nian, and
they were sanctioned by SC.
RULE 48
May there be a preliminary conference
during appeal?
YES, rule 48
Purposes?
So they will still consider amicable settlement,
limitation of issues and witnesses
Binding effect? Of whatever was taken
during prelim conference before CA?
It shall control subsequent proceedings parang
pre trial, what was agreed upon or taken during
pre trial shall control proceedings.
RULE 49
Rule 49 pertains to oral argument in CA, in SC
nag oral argument so pde din sa CA, you will
appear before 3 justices since division of CA is 3
justices.
Motion may be file before CA, is it not?
YES, pde Motion for recon and motion for new
trial
Should these motions comply with rule 15
where there should be notice and hearing?
Hearing is not required on motions filed before
CA.
RULE 50
What are the grounds for dismissal of appeal
before CA?
Rule 50.
1. Non payment of docket fees, lagi kasama
yan di gagalaw pag wala, kc gagamit ng
papel, resources, dcket fees are non
refundable.
2. Appeal is not filed in time whether by
notice of appeal or record on appeal.
3. Failure to file a notice of appeal or record
on appeal on time
4. Unauthorized omission or alteration of the
pertinent documents, these are those to be
elevated to the CA. There is table of
contents for those to be given and you
cannot add, that is alteration and
tampering you will be charged and appeal
is dismissed.
5. Failure to file the required contents,
specifically the material dates, arguments,
issues and of course the assignment of
errors.
6. Failure of the appellant to appear without
justifiable cause
You will be given time to correct or complete and
it is not whimsical but failure to still comply, it
will be dismissed, remember appeal is a remedy
which is a statutory right and not a matter of
constitutional right.
Section 2 of rule 50, pertains to an improper
appeal, when it is improper, what would be
the effect of that to the appeal?
It shall be dismissed.
We must know, what is the meaning of
improper appeal, when do you say it is
improper?
Provided in section 2, go over section 2, the 2
situations are improper appeals.
SECTION 2 - An appeal under rule 41, from rtc to
ca raising only quest of law shall be reviewable by
said court. Also appeal by notice of appeal instead
of petition for review from appellate judgment of
rtc shall be dismissed.
An appeal erroneously taken to CA shall not be
transferred to appropriate court but shall be
dismissed outright.
53 | P a g e
First situation is: Rule 41, ordinary appeal
by notice of appeal, ano ba ang issues under
rule 41 that may be raised?
Questions of facts or mixed questions of facts and
law, if under rule 41, you raised pure questions of
law, that is improper appeal. So under rule 41
only question of facts or mixed question of facts or
law. (Improper Appeal)
Second situation? Second paragraph.
This is an erroneous appeal, not merely an
improper appeal.
Why erroneous?
Because what should have been filed is a petition
for review which is a discretionary appeal from
mtc to rtc in appellate jurisdiction and petion for
review to CA but you did instead is a notice of
appeal as a matter of right and hindi na dapat kc
2nd appeal na, dapat petion for review and it is an
erroneous appeal that should be outrightly
dismissed by CA, pede ba sabihin ng CA na
itama mo nalang ung erroneous appeal?
NO.
Can mtc diretso to CA, pede ba irefer sa rtc
ng CA?
NO.
Take note of section 2
1st situation = improper appeal
2nd situation = erroneous appeal
May distinction kaya ang improper sa
erroneous?
YES different.
How to distinguish?
1st situation = sa rule 41, ang mode of appeal is
notice of appeal, ordinary appeal and tama ang
mode mo, mode of appeal is correct, BUT improper
kasi you raised pure questions of law na mali,
dapat question of fact or mixed quest of law and
facts.
But under 2nd situation, dapat petion for review,
but finile mo is notice of appeal, mali ang mode of
appeal mo, so this is erroneous appeal.
That is the distinction.
RULE 51
What is the harmless error rule? Alam mo sa
JBC tinatanong to sa interview pag nag apply ka
ng judge, I was asked and Judge Aguinaldo
natanong din.
So what is this?
Those that which does not affect the substantial
rights of the parties, the admission or exclusion of
certain evidence would not really affect the
substantial rights of parties.
For example the appellant is questioning the
jurisdiction of court in not admitting a
documentary evidence and assigned it as error
and the trial court misappreciated the facts
because it did not admit one document, eh kung it
will not change the outcome of the case it is a
harmless error rule. Kung di inadmit and di ma
aapektuhan dahil sa dami ng document to support
his cause of action.
RULE 52
Mr. Aggabao, MR may also be filed from CA
decision, is it not?
Is a 2nd MR allowed?
No, it is prohibited, just like those made by the
trial court.
RULE 53
2nd motion for new trial is it allowed?
YES
What is the ground allowed?
Ground of newly discovered evidence not been
able to be procured in trial court with due
diligence that would alter the outcome of the
decision.
That is the only ground that is allowed for MNT
before CA
When filed?
At any time after the appeal from lower court is
perfected and before the CA loses jurisdiction over
the case.
54 | P a g e
Under rule 37 and under rule 53
distinctions?
Under rule 37 there are 2 grounds, FAMEN and
Newly discovered evidence but under rule 53, only
newly discovered evidence is the ground.
So can a 2nd MNT be filed under rule 37?
YES provided that ground did not exist in filing
the 1st.
So is a 2nd MNT allowed under rule 53
before CA?
NO, because there is only 1 allowable ground
which is newly discovered evidence.
When do you file under rule 37?
Within period of appeal.
RULE 54
RULE 55
RULE 56
Procedure before the SC, what are the cases
that may be originally filed before SC?
Petitions for certiorari, prohibition, mandamus,
quo warranto, habeas corpus, disciplinary
proceedings against members of the judiciary and
attys and cases affecting ambassadors, other
public ministers and consuls.
There are 7 cases enumerated under section 1 of
rule 56, but there are 2 additional and those are:
writ of amparo and habeas data.
What is the mode of appeal allowed in SC?
Rule 45
Grounds for dismissal of appeal before SC?
Lack of merit
Non payment of docket fees
Case is not appealable
What if it is appealed beyond period
allowed?
Ground for dismissal.
What if appeal is erroneous?
Also ground.
Improper appeal?
Also ground
These are the grounds for dismissal of the appeal
in SC. Mode of appeal is rule 45. Petition for
review on certiorari.
PROVISIONAL REMEDIES
When you say provisional, what does that
mean?
Maam, when you say provisional, it means
temporary or ancillary to the main action.
So, provisional remedies under the rules of court
are that: it is temporary, preliminary, and
ancillary to the main action. They are remedies in
the interim during the pendency of the main
action.
What are the purposes of provisional
remedies?
1. To preserve or protect their rights or
interests while the main action is pending;
2. To secure judgment;
3. To preserve the status qou;
4. To preserve the subject matter of the
action.
And also to secure judgment especially in
preliminary attachment, so that, the decision in
favor of the prevailing party will not be a paper
victory. Nanalo lang sya sa papel, sa decision pero
di naman maiimplement. Kasi, hindi ma-satisfy
yung judgment.
What are the different kinds of provisional
remedies under the rules of court?
1. Preliminary attachment (Rule 57);
2. Preliminary Injunction (Rule 58);
3. Receivership (Rule 59);
4. Replevin (Rule 60);
5. Support
blgs pendente lite (Rule 61).
2015-05-19 03:48:55
Those are--------------------------------------------
the provisional remedies under the
rules of court.
airrs But class, under the special laws,
there are other provisional remedies allowed. Like
for example, in a case between spouses, like
annulment of marriage and they have children.
55 | P a g e
During the pendency of the action, when there is
no decision yet by the court, has a provisional
remedy. The court may order the temporary
custody of the minor children to be vested in
one of the spouses.
In violence against women and children, lagi
nyong naririnig yan. What is the
provisional remedy?
The wife asks for a temporary protection
order.
Is a hold departure order issued by Regional
Trial Courts in criminal cases pending before the
RTC, is that a provisional remedy?
Yes. A hold departure order is a provisional
remedy.
DEPOSIT. For example, I purchased a piece of
land from you and we have a contract of sale. I
already paid you the amount as stated in the deed
of sale, but you still failed to deliver to me the title
of the property. So, I filed an action against you
for a specific performance for you to deliver to me
the title. During the pendency of the action,
syempre the money is with you already, eh kung
abutin ng sampung taon ang kaso, what will
happen to the money that I gave to you?
So, what will be the provisional remedy can
I avail of so that the money that I gave to
you, paid to you will be protected?
The provisional remedy is by DEPOSIT in a bank,
during the pendency of the action. And when it is
determined by the court that indeed there is
failure to deliver the property. Halimbawa, di mo
na maideliver kasi naibenta mo na sa iba, I can
always withdraw the money from the bank
wherein that money was deposited.
With respect to cases involving corporate
rehabilitation, during the pendency of the case
before the special commercial court, the
provisional remedies that may be issued would be
the appointment of a receiver, during the
rehabilitation of the corporation, kung nalulugi na
yung corporation, with a state order, meaning
during the pendency of the action, yung mga
officers of the corporation cannot dispose of the
properties of the corporation.
Under the rules on environmental cases, a
temporary environmental protection order
(TEPO).
Under the Human Security Act, an Inspection
Order.
Writ of Amparo, Witness Protection Order.
So those are the other provisional remedies that
may be availed of during the pendency of the main
action.
Now, Mr. Aggabao, which court has the
authority to grant provisional remedies?
The court which has the jurisdiction over the
main action
Can the RTC grant a provisional remedy?
Yes.
Can the CA grant the provisional remedies?
Yes.
The SC?
Yes.
How about the MTC?
Yes. Provided the main action is pending before it.
Now, based on your readings on the provisional
remedies under the rules 57-61, you would know
that there are common requirements on the
issuance of the provisional remedies.
What are those common requirements?
Maam first, there must be a verified petition.
A verified petition which must be supported
by?
Affidavits and other supporting documents.
So, affidavits, EXCEPT in receivership. What
else?
Apart from affidavit, there must a BOND. If you
would notice, bond in the provisional remedies,
EXCEPT in support pendente lite.
So those are the common requirements, there are
two:
1. Affidavits, except in receivership; and
2. Bond, except in support pendente lite.
RULE 57
56 | P a g e
Let us now discuss preliminary attachment under
rule 57.
What is the nature of a preliminary
attachment, is it an action in personam, an
action in rem or an action quasi in rem?
The nature is an action quasi in rem.
Why do you say that it is an action quasi in
rem?
Because, the court need not acquire the
jurisdiction over the person but only the
jurisdiction over the res or the property.
So, the object of a preliminary attachment is the
property of the defendant.
Preliminary attachment presupposes the
pendency of a main action. It is not an
independent action in itself. There is a main
action. Kaya sabi natin, it is a provisional remedy.
It is not a distinct proceeding from the main
action.
If the property is held by the sheriff under
preliminary attachment, what are the effects
of the preliminary attachment?
It places the property under custodia legis.
So the property will now be in custodia legis or in
custody of the court or the law.
For what purpose?
For the security of a pending litigation... for the
satisfaction of judgment.And there is a lien
created on the property attached.
And the second effect is?
That the court acquires jurisdiction over the res or
property.
So, when availed of in an action in personam,
the preliminary attachment converts the
action to one that is quasi in rem. And the
effect of that is there is no need to acquire
jurisdiction over the person of the defendant. So
those are the consequences of placing the property
under the preliminary attachment.
Who may avail of the remedy of preliminary
attachment?
The applicant...
Who is the applicant?
It may be the plaintiff or the defendant.
The defendant with respect to his counter-claims
or third party-party complaint. So the plaintiff or
any proper party. The defendant may also be an
applicant for preliminary attachment.
When may a preliminary attachment be
applied for?
It can be applied at the commencement of the
action or any time before the entry of judgment.
This is very clear in Section 1 of Rule 57. At the
commencement of the action... So when you file a
complaint, usually it must be incorporated. The
application must be incorporated in the complaint
itself.
Example: Recovery of possession with
application for preliminary attachment. It
should be incorporated in the complaint when it is
availed of at the commencement of the action.
If not availed at the commencement of the
action, can it be availed at any other time?
Yes Maam, before entry of judgment.
It is before entry of judgment, NOT AFTER
judgment. Kasi kung meron nang judgment, it is
no longer preliminary. It defeats the purpose of
being a preliminary attachment.
What are the kinds of attachments?
1. Preliminary attachment under Rule 57;
2. Garnishment;
3. Levy on execution.
Garnishment and Levy, we had already discussed
under Rule 39. In Garnishment and Levy, the
properties are being attached diba, for the
purposes of satisfaction of a judgment, there is a
judgment already but in preliminary attachment,
there is no judgment yet.
With respect to garnishments and
attachments, can the public funds be
attached, or garnished, or levied on
execution?
No Maam.
Pwede bang halimbawa, kontratista ka ng
DPWH kinasuhan mo ang DPWH kasi hindi
binayaran yung kontrata, so kinasuhan mo
57 | P a g e
ang government, pwede bang sabihin mo
ipapa-attach ko yung funds ng DPWH sa
Landbank, can it be done?
No.
Why not? Can attachment, execution lie
against public funds?
No. The remedy is for you to file a claim before the
Commission on Audit. So yun funds ng regular
departments or offices of the government or the
Republic of the Philippines.
Can you attach funds of public corporations,
like LGUs, can you attach funds of City of
Manila?
Well, it is different. Pwede mong i-attach yung
funds ng public corporations. They are not
exempt. Especially, in matters where they are
exercising not purely for public purposes.
What are the grounds for which a
preliminary attachment may issue?
First Maam, action for recovery of specified
amount of money or damages, except moral and
exemplary damages.
What else? How about cause of action
arising from contract?
Yes Maam. Arising from contract, law, quasi-
contract, delict or quasi-delict.
Delict or crime. So, in civil aspects of a criminal
action, there could be a preliminary attachment.
In criminal cases, and you studied this. Under Sec
2 of Rule 127, can you please read it Mr. Aggabao
Sec. 2 Rule 127. Attachment. When a civil
action is properly instituted in the criminal action
as provided in Rule 111, the offended party may
have the property of the accused attached as
security for the satisfaction of any judgment that
may be recovered from the accused in the
following cases:
a) When the accused is about to abscond
from the Philippines;
b) When the criminal action is based on a
claim for money or property embezzled or
fraudulently misapplied or converted to
the use of the accused who is a public
officer, officer of a corporation, attorney,
factor, broker, agent or clerk, in the course
of his employment as such, or by any other
person in a fiduciary capacity, or for a
wilful violation of duty;
c) When the accused has concealed, removed,
or disposed of his property, or is about to
do do; and
d) When the accused resides outside the
Philippines.
So, there could be a preliminary attachment
issued in the civil aspect of criminal cases under
Sec 2 of Rule 127. So actions arising from law,
contracts, delict, quasi-delict and quasi-contract.
But, what would be the condition so that a
preliminary attachment may be issued in
these cases?
The party must have the intent to defraud the
creditors.
When the party has the intent to defraud the
creditors or the party is about to depart from the
Philippines.
What is the next ground?
Action for recovery of money or property
embezzled or converted by a public officer, a
lawyer, and other persons acting in fiduciary
capacity.
So there must be an element of trust and there is
a wilful violation of duty.
Talagang special mention pa ang attorney
jan, why? Because, an attorney-client
relationship is based on trust and confidence.
Next?
Action to recover the possession of property ...
...That the property was unjustly or fraudulently
taken or detained.
What else?
In contracting the debt or obligation, there was
fraud and even in the performance of the
obligation, there was fraud.
What else?
An action against a party who removed or
disposed of the property with the intent to defraud
his creditors.
And lastly?
58 | P a g e
An action against non-residents not found in the
Philippines, or person cannot be served with
summons personally, substituted service but
summons may be served by publication.
So in this case class, the last ground, paragraph
10, that is what converts an action in personam to
an action quasi in rem.
If you would notice, in all these grounds for the
issuance of a writ of a preliminary attachment
there is a common denominator, and what is
that that would justify the issuance of writ
of preliminary attachment? What is that?
The ELEMENT OF....?
FRAUD.
The element of fraud. If you would notice from
paragraphs a to e, there is always an element of
fraud. EXCEPT paragraph f, which converts the
action into an action quasi in rem. So that the
element of fraud justifies or warrants the issuance
of a writ of preliminary attachment in all these
cases.
Is the enumeration exclusive?
YES.
Yes, so, if a writ of preliminary attachment
is issued on other grounds except these six
grounds, under Section 1 of rule 57, what is
the status of the writ of preliminary
attachment?
It is INVALID.
The rule on issuance of a writ of preliminary
attachment should be STRICTLY
CONSTRUED, why?
Because, preliminary attachment is a there must shown a sufficient cause of action;
STATUTORY RIGHT. It is issued only on specific
grounds.
Why does strict construction class?
Because, it is a RIGOUROUS REMEDY. That
exposes the debtor to humiliation. In fact,
imaginine nyo class, di pa nga tapos ang kaso
hahatakin na agad yung mga properties mo.
So there must be a VALID and JUSTIFIABLE
grounds based Section 1 of Rule 57 such that it
should not be abused to cause unnecessary
prejudice to a party during the pendency of a case
and where there is no decision yet.
Is the insolvency of a defendant a ground for
the issuance of a writ of preliminary
attachment?
No. It is not a ground. If you would analyze
paragraphs a to f of Section 1 Rule 57.
May a writ of preliminary attachment be
issued ex parte without any notice and
hearing?
Yes Maam.
Why?
So that it will pre-empt the disposition of the
property by the defendant that will result to the...
Kung malalaman ng defendant na inonotify, uy
ibabatak ko na ang mga properties ko, then?
It would render the attachment nugatory.
Why?
Pwede kong itago ang mga properties ko para
hindi makita ni sheriff. Well, you know under
Section 2 the issuance may be either EX PARTE
or ON MOTION with notice and hearing.
But, you know there is nothing wrong and it
is sanctioned by the rules that a preliminary
attachment be issued ex parte and not by
motion, to preserve the element of surprise.
Oh ayan na si sheriff, iseserve na ang writ of
preliminary attachment. As long as there is a
VALID ground provided for in any of those
enumerated under Section 1 of Rule 57.
What are the requirements for the issuance
of a writ of a preliminary attachment?
First, there must be a verified petition; second,
third,...
The common requirement..?
The BOND maam.
The Bond and? How would you show that
the applicant has the sufficient ground or
cause of action?
Affidavit Maam...
By an affidavit within the personal knowledge of
the affiant. And that there must be a BOND, and
of course, the grounds must be any of those
provided under Section 1 of Rule 57. The affidavit
59 | P a g e
must show the circumstances of fraud and the
affiant must have personal knowledge of such.
With respect to the bond, what is the
purpose of the bond in the writ of the
preliminary attachment?
It is payment for the injury that may be suffered
by the adverse party or the defendant.
Kasi halimbawa, plaintiff-defendant, na-grant
yung writ of preliminary attachment, so kukunin
na yung properties mo hindi pa tapos ang kaso.
So, I am required to post a bond so that in the
event that there is damage or injury on the
property, the bond would be liable for that,
especially in the judgment could be adverse to the
plaintiff, the applicant for the issuance of a writ of
preliminary attachment.
And how much is the bond?
..fixed by the court or equal to the value of the
property.
Let us say that the property that is attached is
valued at P10M, so that would be the amount of
the bond. It cannot be less. It would be in cash or
it would be in surety.
Now, Section 5 is very important because this
pertains to the different stages involving the writ
of a preliminary attachment. Mr. Aggabao, I want
you to read section 5:
Section 5. Manner of attaching property. The
sheriff enforcing the writ shall without delay and
with all reasonable diligence attach, to await
judgment and execution in the action, only so
much of the property in the Philippines... [the
important part] No levy on attachment pursuant to
the writ issued under Section 2 hereof shall be
enforced unless it is preceded, or
contemporaneously accompanied, by the service of
summons, together with a copy of the complaint,
the application for attachment, the applicants
affidavit and bond, and the order and writ of
attachment, the applicants affidavit and bond,
and the order and writ of attachment, on the
defendant within the Philippines.
The requirement of prior or contemporaneous
service of summons shall not apply where the
summons could not be served personally or by
substituted service despite diligent efforts, or the
defendant is a resident of the Philippines
temporarily absent therefrom, or the defendant is a
non-resident of the Philippines, or the action is one
in rem or qausi in rem.
So there are three stages involving the
proceedings or the implementation of a writ
of preliminary attachment. So the first stage
is?
1. First: The order granting the writ of
preliminary attachment.
2. Second: The issuance of a writ of
preliminary attachment.
3. Third: The implementation of the writ.
We mentioned a while ago that a writ may be
issued ex parte, meaning there is no service of
summons yet.
So at what stage may, in the proceeding
involving writ of preliminary attachment,
may...is jurisdiction over the person of the
defendant not necessary by service of
summons?
At first stage Maam.
First only?
First and Second stage Maam.
That the order granting the issuance of the writ
and the issuance of the writ of attachment proper.
So on the first and second stage, the writ of
preliminary attachment may be issued without
service of summons.
But, at what stage should there be service of
summons?
In the third stage. In the implementation of the
writ. Because it is explicit as what Mr. Aggabao
read in Section 5 of Rule 57 that no levy on
attachment pursuant to the writ issued
under Section 2 hereof shall be enforced
UNLESS it is preceded, (ibig sabihin before
the implementation) or contemporaneously
accompanied (kasabay), by the service of
summons, together with a copy of the
complaint, the application for attachment,
the applicants affidavit and bond.
So hindi mo pwedeng iimplement kung hindi pa
naseserved ng summons ang defendant.
But, under the last paragraph of Section 5,
there are situations or instances wherein
60 | P a g e
the implementation or enforcement of the
writ of preliminary attachment may be done
even without the service of summons. What
are those?
1. Maam, first is that the service of
summons cannot be done personally or
through substituted service despite due
diligence.And it must be shown that
diligent efforts were exerted to no avail in
the service of summons.
2. Second, that the defendant is a resident of
the Philippines temporarily absent
therefrom;
3. Third, that the defendant is a non-
resident of the Philippines;
4. Fourth, that the action is one in rem or
quasi in rem.
Diba, we mentioned that there is no need to
acquire jurisdiction over the person of the
defendant in actions in rem and actions quasi in
rem. And the last, how could you serve summons
upon the defendant who is in hiding?
Ok, so those are the instances wherein service of
summons is not required before implementing the
writ of preliminary attachment.
Mr. Aggabao, there is application for the issuance
of a writ of preliminary attachment and there is
an affidavit and there is a bond. With these
situations or circumstances, should the court now
grant automatically the writ of preliminary
attachment?
Is the grant of preliminary attachment a
matter of right?
No, Maam. It rests on the sound discretion of the
court.
And the court should determine if the situation
falls within any of the grounds in Section 1 of
Rule 57. And I would like to point out, diba ang
common denominator, fraud? Pag inallege lang
ang fraud, that is not enough. It should be
proved and showed through the affidavits,
diba? Fraud should be alleged with
particularity and be specific. And, most
importantly, it must be proved. Then thats the
time that the court now will issue the writ of
preliminary attachment.
If the requisites do not exist, then there is no
authority for the court to issue the preliminary
attachment.
Now, assuming you are the defendant, and
there is a writ if preliminary attachment but
before the writ of preliminary attachment
has not yet been implemented, na-issue na
nya, nalaman mo, how would you now, what
is your remedy so that the writ of
preliminary attachment will not be
implemented against you?
Maam, by cash deposit and filing a counter bond.
By filing a counterbond, either depositing in
cash.... halimbawa P10M, oh edi magdeposit ka ng
P10M in cash or bond. So, you file a counterbond.
Paano, Mr. Aggabao, kung na-implement na
yung writ of preliminary attachment? Na-
attach na ni sheriff yung mga properties mo,
do you still have any remedy against the
writ?
Yes Maam.
Then what is your remedy?
I will file a motion to discharge the writ of
preliminary attachment.
So, motion to discharge the writ of
preliminary attachment. And how could do
that? How could you move to dishcrge?
Magpa-file ka ng motion. Is that enough by
filing a motion?
...On the ground of... that the writ of preliminary
attachment is issued improperly and the bond is
excessive and there must be notice and hearing.
So, in this case, kailangan mo ba magfile ng
counter bond?
No Maam.
No.
But what if the writ of preliminary
attachment was issued in accordance with
the requirements of Section 1 of Rule 57, it
was issued regularly and properly? What is
your remedy?
Maam, my remedy is to... my ground is that the
bond is excessive.
61 | P a g e
Ha? Ikaw as a defendant, na-attach na ni sheriff
ang property mo. So ang remedy mo, for you to
question the writ of preliminary attachment, ang
sabi mo kanina you would move to discharge the
writ of preliminary attachment on the ground that
it was improperly issued, it was irregularly issued
and you will (?) there is no requirement to post a
counterbond. Kinukwestyon mo nga eh, irregular
ang pag-issue.
Ang question ko ngayon, paano kung regular
naman ang issuance ng writ of preliminary
attachment? It was regularly issued in
accordance with Section 1 of Rule 57,
merong bond na pinost yung plaintiff or
applicant.
So in that case, you would file a motion to
discharge but you must file a counterbond.
Bakit ka magka-counterbond?
Kasi, regular naman naman yung issuance eh,
para lang, in that case maibabalik sayo ang
properties na na-attach ni sheriff. You file a
counterbond or you deposit in cash.
Class, please take note that the discharge could be
total or partial. When you file a counterbond or
deposit in cash. But, if your ground is that, the
writ of preliminary attachment was issued
irregularly or improperly, its total or nothing.
Hindi pwedeng sabihin mo na partial lang to. If
there is irregularity, then totally, the writ of
preliminary attachment is invalid.
Another ground would be if the attachment is
excessive. Kunyari yung prayer ng plaintiff is
P10M, aba nag-attach si sheriff P100M na ang
value. So, the attachment is excessive and you can
file a motion to discharge the attachment OR if
the sheriff attached a property that is exempt
from execution.
Now, yung personal property, movable, so i-
aattach ni sheriff, kukunin nya to,
hahatakin nya, wala pang judgment and
then what would the sheriff do with respect
to the property under preliminary
attachment, should the sheriff sell it at the
public auction?
No, Maam....
What is the purpose of preliminary
attachment?
For the security of the judgment.
So, unlike a final attachment which we discussed
either garnishment or levy, ang purpose ni sheriff
ng paghila nya to sell it at a public auction to
satisfy the judgment, eto hindi, just to preserve
and protect the property. So the sheriff will safely
keep the personal property.
How will the sheriff attach a real property?
Kung movable kukunin lang nya, eh paano
kung house and lot?
By filing the writ of attachment in the Register of
Deeds.
Involving real property, so before the Registry of
Deeds. Ipapa-annotate nya yung writ of
preliminary attachment. So that is how
attachment is made by the sheriff.
Now, with respect to the discharge of the writ of
attachment, let us say that the motion to
discharge the writ of preliminary attachment is
based on the unenforceability of the contract. So
sabi nung defendant, bakit mo iaattach? Ipapa-
discharge ko yan. Hindi naman enforceable ang
kontrata natin eh. So is that a ground to
discharge the writ of preliminary
attachment?
No Maam.
No, because it already pertains to the merits of
the case. Ang ground lang naman kung may fraud
eh, diba? Eh kung na-iprove yung fraud sa
entering into the contract or in the performance of
the obligation, so the attachment is proper. Pero
kung ku-kwestyunin mo na ang validity ng
contract, that is another story and you are now
going into the merits of the case.
May a property which is already in custodia
legis be attached? Halimbawa, yung kotse
na-attach na ng ibang korte, can it be
attached again by another court?
Yes, Maam.
Yes, there is no prohibition on that. That is
provided in Section 7 of Rule 57.
But what is the condition?
The writ must be filed in the proper court or the
agency...
62 | P a g e
So, according to Section 7 of Rule 57, a copy of the
writ of attachment should be filed dun sa court
kung saan sya unang na-attached or who has
custody of the property. And notice of the
attachment should be served to the custodian.
Kasi class, kapag naman nag-attach, hindi naman
sa korte nilalagay, mapupuno na ang korte sa
dami ng inaattach. Imaginine mo mga furnitures,
mga tv, refrigerators, kotse, so meron kang
pinaglalagyan.
Now, Section 10 of Rule 57, this is similar to Rule
39. Yung walang ma-attach si sheriff in a
preliminary attachment, so just like in Rule 39,
there is examination of (?) whose property is
attached, so same procedure.
You mentioned a while ago Mr Aggabao, that
in a writ of preliminary attachment that
there is no sale of property attached before
entry of judgment, Is there an exemption to
this?
Yes Maam. There is exemption.
What is that?
When the property is perishable.
Perishable property, yung mga food items. Yung
mga mamahaling pagkain na ina-attach.
Halimbawa ikaw ay may ari ng hotel, so yung
mga mamahaling chocolate, mga alak, mga
perishable goods could be sold.
And the proceeds of the sale, to whom will it
now go?
To the applicant, Maam.
That would be the one that is going to be
preliminarily attached. Halimbawa, yung
computer, sabi ko nga next month or next year
wala na, iba na ang version nyan. That is
considered to be perishable, not in a sense of
consumability, di mo naman kakainin yan
but with respect to the use. Ngayon, ito ang
version but next year a higher version will come
out to the market and a present version of
computer would be no use.
Just like under rule 39, what are the
remedies available to the third person
whose property is attached by the sheriff in
the implementation of the attachment?
The third party may avail of the remedy of
TERCERIA.
What is Terceria?
It is making or executing an affidavit evidencing
his right to possession in the property.
What else?
He may file a separate action... Reindivicatory
action.
What else? Can the third person claim
damages against the bond?
Yes Maam.
What else?
The third party may move for summary hearing.
Yes, so that the property will be released in his
favour. So pareho lang class ang remedies of a
third person whose property is attached under
writ of preliminary attachment and under Rule
39.
Now, how would you now distinguish
between preliminary attachment under Rule
57 and the final attachment under the Rule
39?
Maam the writ of preliminary attachment under
Rule 57 is availed of at the commencement of
action or before the entry of judgment while in
Rule 39, it is availed of only after entry of
judgment.
What else? With respect to the sale of
property attached?
In preliminary attachment under Rule 57, it
cannot be sold immediately while in Rule 39 it is
always sold.
That is the very purpose, to sell at the public
auction. What else?
In Rule 57, it is an ancillary remedy for the
purpose of securing the property before rendering
the judgment while in rule 39, it is a means of
execution.
If under Rule 57, you said that if the
property is perishable, it can be sold. To
whom will the proceeds of the sale go?
That will be under custodia legis.
Under Rule 39, after the sale at a public
auction, to whom the proceeds of the sale
will go?
63 | P a g e
The proceeds of the sales will go to the judgment
creditor.
Judgment creditor. Now, we studied lis pendens,
notice of lis pendens. A notice of lis pendens, when
there is a pending litigation that is recorded at the
back of your title. Real property, so pupunta kayo
sa Registry of Deeds, you will provide the Register
of Deeds with a copy of the complaint and the
Register would annotate the lis pendens.
Now, itong preliminary attachment, Mr. Aggabao,
diba, you said for it to be valid or for a preliminary
attachment to be effective with respect to real
property, it is also annotated at the back of the
title and it is being done by the Register of Deeds
upon giving him a copy of the writ of preliminary
attachment.
So let us say, may dalawang entry na yun,
mayrong notice of lis pendens, same case, same
specific performance with damages, civil case No.
1234 pending at RTC Manila, nakatatak dun sa
title, uy mayron palang kaso. May writ of
preliminary attachment na naissue in the same
case or in another case. For example, with respect
to real property, naka-annotate dun sa title.
Question ngayon, which would prevail?
Maam, there will be priority of liens...
Alin ang magpe-prevail, notice of lis pendens
or the registered writ of attachment?
Maam, the registered writ of attachment.
Why?
Bacause..., Remember we studied under Rule 39,
after the sale at public auction, mag-iissue ng
certificate of sale, kung hindi na-redeem, yung
property na na-attach or na-levy, magkakaroon ng
consolidation of ownership to the highest bidder
after 1 year.
Yung ownership na yun, when will it be
considered effective, from the time of
auction sale or will it retroact from the date
of levy?
It retroacts from the date of levy, so kung kailan
mo na-attach. Same is true, ang notice of lis
pendens, kung kailan mo lang yan pina-rehistro,
dyan lang yan magiging effective. Pero ang writ
of attachment, it retroacts from the time na
inattach. So the writ of preliminary attachment
or the final attachment, for that matter, would
prevail over the notice of lis pendens.
So that is the writ of preliminary attachment. Let
us now proceed to preliminary injunction.
RULE 58
What is the nature of the writ of preliminary
injunction?
It is a remedy...
Does it presuppose a main action?
Yes, Maam.
Yes. It is a preservative remedy availed of during
the pendency of the main action.
What are the two kinds of preliminary
injunction?
The two kinds are prohibitory and mandatory.
What is a preliminary prohibitory
injunction?
It orders the person to refrain from doing an act.
How about the preliminary mandatory
injunction?
It orders the performance of an act.
What is the purpose of a preliminary
injunction?
To preserve the status quo until the rendition of
judgment.
So until the rendition of Judgment or until the
merits of the case are fully resolved. That is the
purpose of a preliminary injunction.
You mentioned about status quo, what is
status quo?
It is the last actual peaceable situation which
precedes the pending controversy.
So it is the situation existing at the time of the
filing of the case. It is the LAST ACTUAL
PEACEABLE UNCONTESTED STATUS.
Madaling tandaan, LAPUS. Last actual peaceable
uncontested status preceding the pending
controversy.
64 | P a g e
Injunction may either be preliminary, which we
are discussing under Rule 58, and final injunction,
which is also provided for under Section 9 of Rule
58.
The purpose of a writ of preliminary
prohibitory injunction is to what?
To refrain from doing a particular act.
So you are asking or you are directing a person,
the court or tribunal to refrain from performing
an act to prevent further injury. It is not for the
purpose of correcting a wrong already done but to
correct further injury.
The purpose of preliminary mandatory
injunction is what?
To command the person to perform a particular
act.
To perform a particular act in order to re-establish
and maintain a pre-existing relation.
Is a preliminary mandatory injunction
issued to establish a new relation to the
parties?
No, Maam.
No. It is only to maintain what was pre-existing
prior to the controversy.
When may preliminary injunction, whether
prohibitory or mandatory, be issued by the
court?
At the commencement of the action or before the
rendition of the judgment.
So at any stage of the proceeding, it may be at the
commencement or during the proceeding but
before the rendition of the judgment.
What court has the authority to issue the
writ of preliminary injunction?
The court which has jurisdiction over the main
action.
So RTC can issue, MTC, CA and the SC and also
the Sandiganbayan may issue the writ o
preliminary injunction.
What are the grounds for the issuance of a
writ of preliminary injunction, under
Section 3 of rule 58?
First, the applicant is entitled to the relief...
So the relief may either be restraining, the
commission of the act, or performance of the act.
What else are the grounds?
Second, the continuance of the act would work
injustice to the applicant. Third, the continuance
of the act would probably be in violation of the
applicants rights and tending to render the
judgment ineffective.
So those are the three (3) grounds under Section 3
of Rule 58 for the issuance of the writ of
preliminary injunction.
Siguro class nanonotice ninyo na ang preliminary
attachment is a writ, ang preliminary injunction
is also a writ. Because, this is an order of the
court, this is a process of the court, kaya
writ.
What are the essential requisites for the
issuance of the writ of preliminary
injunction, whether prohibitory or
mandatory?
There must be a verified application and bond.
So, verified application and bond.
But, what should be established with respect
to the verified application? What are the
requisites?
1. It must show the facts that the applicant
is entitled to the relief.
He is entitled to the relief, meaning there
is a right, existence of a right that needs
to be protected. It must an unmistakeable
right, clear legal right.
There must be a bond executed in favour
of the adverse party.
2. The second is that the acts against which
an injunction is directed are violative of
the rights existing in favour of the
applicant.
Next?
3. There is probability of irreparable injury.
4. And lastly, there is no ordinary, speedy,
adequate remedy to prevent that
irreparable injury.
So those are the four (4) requisites for the
issuance of a writ of preliminary injunction. And
65 | P a g e
you are correct that there must be a verified
application and bond, unless exempted by the
court.
Irreparable injury. I mentioned a while ago
that there must be an existing right, a clear legal
right, it must be unmistakeable right.
So if a right is doubtful and it could be
determined only after a full blown trial, is
there a valid justification to issue a
preliminary writ of injunction?
No.
There is no valid ground or justification to issue
the writ of injunction.
What do you mean by irreparable injury?
This is the very core. This is the very basis why
the writ of injunction is issued by the court. When
you say irreparable injury, there is inadequacy
of pecuniary estimation; it cannot be
quantified into money. Hindi mo pwedeng i-
kompyut ang injury na masu-sustain if an
injunction will not be issued by the court. Damage
is not quantifiable in a monetary consideration. So
it must prove irreparable injury if the act will not
be restrained or if the person will not do the act.
Let us say for example, that the damages
that is being claimed by the party would
adequately compensate the injuries caused,
should the preliminary injunction be issued?
No, Maam. If the damage that will be sustained
by the applicant can be compensated by the bond
filed by the adverse party, it is ground not to issue
preliminary injunction.
So the writ of injunction should never issue when
the action for damages could adequately
compensate the injuries caused. As I have said a
while ago, the very foundation of the authority
and jurisdiction of the court to issue the writ of
preliminary injunction is IRREPARABLE
INJURY. It is not capable of pecuniary
estimation. Eh kung ang hinihinge mong damages
is actual damages kasi na-ospital ka, limang
milyon, eh makwa-quantify mo na yun bakit pa
mag-iissue ng injunction ang court when there is
an injury that can be quantified by money.
What is the quantum of evidence for the
issuance of writ of preliminary injunction?
Preponderance of evidence Maam...
If you are requiring preponderance of evidence,
then you are already applying the evidence
required in the main action, in the merits or the
merits. Well, sabi nga natin dito, the
probability of the irreparable injury. In that
case, the quantum of evidence is merely
PRIMA FACIE, ostensible right to a final
relief. Kasi eto nga, this is merely a provisional
remedy. The evidence need not be conclusive and
complete yet, because you are just trying to
prevent the doing of an act or you are asking the
court to require the doing of an act otherwise
there is irreparable injury on your part.
What acts may be the subject of injunction?
Can acts already consummated be subject of
injunction?
Yes Maam if the act is a continuing act.
So as a rule, kung consummated na, wala nang
reason to issue an injunction. However, yun nga
by exception, if the acts are continuing, then the
writ of preliminary injunction may still issue.
There has been several decisions of the Supreme
Court about it. So, although the general rule is
that a writ of preliminary injunction cannot be
issued against consummated acts, it has been held
that acts consummated or already done which are
continuing in nature may still be enjoined by the
court.
Yung issue ngayon, yung Binay. This is pending
before the SC class but for academic discussion.
Kasi maraming mga intricacies ito but i-limit lang
natin sa rule. Consummated acts not subject to
injunction unless continuing.
Example ganito, wag na natin masyadong idiscuss
ang Binay. In an environmental case, yung SM
nagputol ng puno. Ngayon nag-file ang isang NGO
ng case against SM with an application for
temporary restraining order and/or writ of
preliminary injunction to restrain SM from
cutting down trees. Can writ of preliminary
injunction or TRO still issue?
Yes Maam.
Yung sa pagputol ng puno doon sa area na yun,
pwede pa ba? Ano pa ba ang i-enjoin, naputol na
ang puno. The act is already irreversible. Kasi
halimbawa, nagputol yung SM doon sa area nay
un, diba may specific area, doon sa area na yan.
66 | P a g e
So, ang pinaeenjoin, pagbawalan ang pagputol ng
puno sa area na yun. Pero nung nag-file sya ng
case, putol na lahat ng puno doon sa area na yun.
In that case, meron ka pa bang ipapaenjoin,
Mr. Aggabao?
Putol na yung puno. Hindi naman ang injunction
mo eh, for SM be enjoined from cutting down trees
all over the Philippines. Hindi ganun, syempre it
should be specific. So ang pinatitigil mo, magputol
ang SM ng puno doon, specific area. Nakpagputol
na, naputol na ang lahat, meron ka pa bang i-
enjoin? Wala na. Continuing ba yun? Irreversible
na yun eh. Naputol na. Fait accompli.
Pero kung hindi pa nakapagputol, pwede pang
magkaroon ng injunction, diba? Same is true,
ikaw defendant ka in an ejectment case, natalo
ka, idedemolish na ang bahay mo, nademolish na.
Nagfile ka ng injunction, is there something to
enjoin? Wala na, nademolish na, irreversible na
yun. Pero kung hindi pa, pwede pa siguro kasi it
would amount to an irreparable injury, as long as
you could prove before the court that you have a
CLEAR LEGAL RIGHT.
Kaya sa akin pag nagpa-file ng injunction against
MTC, idedemolish, hindi na. TRO usually, one
setting, para lang may due process, one setting, oh
anu yun, anu yun, wala eh, no clear legal right.
Correct, may irreparable injury, masisira ang
bahay but no clear legal right. Damno absque
injuria you are injured but you have no cause of
action, in accordance with law.
Halimbawa, yung case ni Mayor Binay. I am not
saying na ito ang tama ha, but this is just for
academic discussion. Preventive suspension, kasi
magiging issue jan kung ang CA may authority
eh, pero iset aside muna natin yan ngayon.
Pero ngayon nga, Preventive Suspension,
immediately executory. Question, ang remedy
certiorari, nag certiorari sya kaya immediately
executory.
Ngayon, meron bang clear legal right? Yes,
mayor sya diba? Irreparable injury?
Maaring meron, hindi lang sa kanya, yung
constituents, yun ang maaari. Papasok ngayon,
may consummated act na ba? Consummated na
ba yung act dahil nag-oath na yung vice-
mayor?
Well, merong nagsasabiing consummated na, nag-
oath na eh so theres nothing to enjoin, meron
ding iba nagsasabing hindi. So you must know.
Ano ba, irreversible ba yung situation? Ano ba
ang pinapa-enjoin? Preventive suspension. Nung
nag-oath ba yung vice-mayor, nagko-continue pa
ba yung preventive suspension?
Yes, Maam.
Correct, diba? Continued pa rin yung 6 months.
So the act is still continuing, kahit sabihin pa
na may acting mayor na. So, in that case,
injunction may be proper. Kasi hindi naman yan
kagaya ng nagputol ng puno, na wala ka nang i-
enjoin dahil tapos na. Ito, although meron ka
nang acting mayor, yung preventive suspension
nya 6 months, continuing pa rin. So what Im
saying is, based on the requisites of a preliminary
injunction, the injunction MIGHT be proper. Yun
lang, up to that point. But the other question,
issue would be which we would discuss tomorrow
in relation to the Ombudsman Law, does the CA
have the authority? Yun ang another issue. Pero
yung based on the requisites, kung sa SC yan,
parang meron diba? And papasok pa rin dyan,
yung preventive suspension is immediately
executory eh. It is an interlocutory order.
And another point that I would like to clarify with
you, ang injunction class, TRO and preliminary
injunction, once it issued, it is immediately
executory. Hindi yung maghihintay ka pa ng 15
days para makapag-appeal ka, hindi ganun. It is
immediately executory, otherwise, madedefeat
yung purpose eh. Sasabihing, ah hindi ako
magpuputol ng puno ha pero I have 15 days to file
a motion for reconsideration, so hindi pa yan
effective, putulin ko. We will be discussing more
about it tomorrow. Siguro narinig ninyo na
iaappeal pa daw nila yung injunction, hindi nila
binasa yung Rule 58.
So we were discussing yesterday preliminary
injunction. As a review, what are the requisites
for the issuance of a preliminary injunction?
First, that the applicant has the right to relief
demanded; ... that the commission of the act would
work injustice to the applicant...and that there is
probability that the right of the applicant will be
violated...
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And there is probability of irreparable injury. So,
those are the requisites for the issuance of a
preliminary injunction. Yesterday we were
discussing about consummated acts. If the acts
are consummated, it is no longer proper to issue a
writ of preliminary injunction or a temporary
restraining order. But there is exception to this,
and what would that be Mr. Mauricio?
Because we discussed yesterday that as a
General Rule, a writ of preliminary
injunction cannot be issued against acts
which are already consummated. But, the
Supreme Court has also laid down an exception.
That although the acts are consummated but
which are continuing in nature, the act may still
be enjoined by the court.
As far as I can remember, we were discussing
about the preventive suspension issued by the
Ombudsman against Mayor Binay. We had
academic discussion without prejudice of course to
the ruling of the Supreme Court. Based on the
elements, we said that there might be irreparable
injury not only to Mayor Binay but also to the
constituents of Makati.
Is there a clear legal right?
There is, on the ground that he is elected by the
people and as Mayor of Makati. Also, there is no
adequate remedy in order to address the
situation. Why? Because, preventive suspension
order is immediately executory and it is an
interlocutory order and the remedy is to file a
petition for certiorari under Rule 65. Thats what
Mayor Binay did - question the preventive
suspension order through a petition for certiorari.
Question is, did Mayor Binay file the
petition for certiorari before the proper
court? Or, should it be filed before the
Supreme Court?
That is another issue that should be resolved in
that case. Because, under the Ombudsman Law
Sec 40 of RA 6770, it is explicitly stated that, no
writ of injunction shall be issued by any court to
delay an investigation being conducted by the
Ombudsman UNLESS there is a PRIMA FACIE
evidence that the subject matter of the
investigation is outside the jurisdiction of the
Ombudsman.
The investigation is within the authority of the
Ombudsman. So, that is another issue as against
the injunction issued against the preventive
suspension by the Ombudsman.
And, under Sec 14 also second paragraph, it is
provided that no court shall hear any appeal
or application for remedy against the
decision or findings of the Ombudsman
except the Supreme Court on pure question
of law.
So, is the Court of Appeals the proper court
in questioning the preventive suspension
order issued by the Ombudsman?
However class, in one case, Office of the
Ombudsman v. Jose T. Capulong (GR No.
201643, March 12, 2014), the issue also here is
the preventive suspension issued by the
Ombudsman against Capulong. Capulong
questioned the preventive suspension meted
against him by the Office of the Ombudsman
before the Court of Appeals via a petition for
certiorari under Rule 65, the same thing that
Mayor Binay did.
With the petition for certiorari, Capulong applied
for the issuance of a temporary restraining order
and/or writ of preliminary injunction. So parang si
Mayor Binay din, certiorari with TRO and
injunction. The CA issued also the TRO and the
injunction. So the CA acted on that.
So, yung sa Capulong case, sabi ng SC, pwede.
But in the Binay case, we dont know what would
be the ruling of the Court. Ang sabi ng Supreme
Court, sa Capulong case, a preventive suspension
order is an interlocutory order which cannot be
appealed from. So, the aggrieved party may seek
redress through a petition for certiorari under
Rule 65. In that case, the CA found that the
Office of the Ombudsman exceeded its
authority.
According to the CA, what are the requisites
of the issuance of the preventive
suspension?
First, determine whether the evidence of guilt is
strong. Second, it is in an administrative case
involving dishonesty, oppression, grave
misconduct, or gross neglect of duty. And the
charges would warrant removal from office.
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So, in that case, ang sabi ng SC, the courts can
substitute the Ombudsman judgment if there is
grave abuse of discretion. So in the Capulong case,
nirecognize ng SC na pwede ang CA na mag-issue
ng TRO at injunction against the preventive
suspension order of the Ombudsman. I dont know
what would be the treatment now by the SC
because the issue, yun nga yung Sec 14, that it is
only the SC which can review the findings of the
Office of the Ombudsman. So this is only for
academic discussion, yun yung mga points. We
will have to wait for the decision of the SC.
Because, you know the complexity would be
different. Kasi, there is also the issue of
condonation eh. So baka iyun ang mag-iba. In that
case, the SC might rule that Binay has no clear
legal right to seek for an injunction. And the issue
now, sana maresolve ng SC, which court has the
authority to enjoin or to issue a TRO or injunction
against the preventive suspension issued by the
Ombudsman. So those are the points that I want
you to really look into especially when the SC
decision already decides the case. But we will go
to the basic.
What are the requisite of a preliminary
injunction:
1. clear legal right;
2. there is the probability of irreparable
injury;
3. there is a violation of the right of the
applicant; and,
4. there is no adequate or speedy remedy
provided for under the rules except for
the issuance of the injunction.
I assigned to you also another case. The case of
Ombudsman v. Dechavez. When a government
employee meted the penalty of dismissal in an
administrative case, diba we discussed under Rule
43 that that is immediately executory, is it not? It
is immediately executory; therefore, preliminary
injunction will not lie. That is under the case of
Ombudsman v. Dechavez.
Mr Mauricio, in the issuance of the writ of
preliminary injunction, can it be issued ex
parte without notice and hearing?
No, Maam. A writ of preliminary injunction
cannot be issued without a prior notice and
hearing.
Now, a species of preliminary injunction is a
temporary restraining order. What is a
temporary restraining order?
A temporary restraining order is an order of the
court to maintain the status quo between or
among the parties until the determination of the
prayer for a writ of preliminary injunction.
When may a temporary restraining order
issue? What would warrant or justify the
issuance of a temporary restraining order?
The applicant ....
Pending the hearing on the application for
the preliminary injunction. Now, what is
the duration of the TRO for the RTC and
MTC?
20 days. Can it be extended?
Never, you cannot extend the TRO. The judge who
extends the TRO is grossly ignorant of the law.
Hindi pwede.
What if the 20 days lapsed without the court
issuing the preliminary injunction, is there a
need for a motion to declare the TRO no
longer effective?
There is no need Maam.
What if, so 20 days yung TRO, on the 10th day
after the issuance of the TRO, the judge
issue a writ of preliminary injunction, what
would happen to the TRO?
Maam the TRO would be...
What if the judge denied the writ of the
preliminary injunction prior to the lapse of
the 20-day period of the TRO, what will
happen to the TRO?
...
What is the duration of the TRO for the CA?
60 days.
How about for the SC?
Maam it depends upon the Supreme Court. It
could be indefinite until further orders.
May a TRO issued without notice and
hearing? Can it be issued ex parte?
Yes Maam.
When? Under instance?
...
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Who will issue the TRO even without
hearing?
Is it the SC? Is it not that under the Rules, the
TRO should be issued after notice and hearing.
However, as an exception and you are correct, if
there is an extreme urgency, the executive judge
could issue a TRO for the duration of 72 hours
before it is raffled to a branch of the court. So in
that case, there is a 72-hour TRO.
What must be done within that 72 hours
TRO issued by the executive judge ex parte?
...
In that case class, within the 72 hours, the judge
whom the case is raffled shall conduct a summary
hearing to determine whether a TRO should
really be issued until the application for
preliminary injunction is resolved. Dun sa 72
hours na yun. So halimbawa yung executive
judge, naku, idedemolish itong bahay hindi
naman ito squatter. Kapag nademolish na yun,
irreversible na. Talagang it would cause
irreparable injury.
So ang judge, because there is an extreme
urgency, nag-issue ng TRO valid for 72 hours.
Nai-raffle sa akin. Within that 72 hours, so ilang
araw yun, 3 days, magko-conduct ako ng hearing
on the TRO and to determine kung talagang mag-
iissue ako ng TRO.
Now, after hearing I decided to issue the
TRO, you said that the TRO is for 20 days, so
may 72 hours na, how many more days...
should the 72 hours be included in the 20-
day TRO period?
Yes, Maam.
Kasi, we have been discussing about temporary
restraining order and Status Quo.
Again, what is a status quo? So pag sinabi
natin maintain the status quo, ano ang
minimaintain natin?
The Last Actual Peaceable Uncontested Status at
the time of the filing of the case, yun ang status
quo.
How would you distinguish now the status
quo from TRO, kasi magkaiba ito when the
court issues a TRO and when the court
issues a status quo ante order. ang SC ang
mahilig mag-issue ng ganito, ng status quo
ante.
Is it required that before a status quo order
may be issued there must be notice and
hearing?
No, Maam.
So it can be issued by the court motu proprio.
How about the TRO?
There must be notice and hearing.
What is the purpose of TRO?
Maam, the purpose of the TRO is in order for the
court to intervene the granting of the writ of
preliminary injunction.
So when a TRO is issued, diba restrained, you are
prevented to do an act. Hwag mong i-demolish
ang bahay.
How about a status quo ante order?
When you say status quo ante, ibig sabihin
hwag kang gagalaw, wag kang magde-
demolish. Status quo order neither directs
the doing or undoing of an act. So irespeto mo
kung ano ang status mo at the time of the filing of
the complaint. Yun ang status quo. It is as if na
para bang walang kasong finile. So halimbawa,
ikaw nakatira ka doon, irespeto mo yun, pwede ka
pa ring tumira doon. Respect the staus at the time
of the filing of the complaint. Hindi ka
pagbabawalan na wag kang tumira, there is no
restraint.
In TRO, is there a need to post a bond before
its issuance?
Yes Maam.
How about the status quo ante order?
There is no need to post a bond Maam.
Ang status quo kasi para hindi magkagulo.
Parang walang pakialaman. Ang TRO talagang
halimbawa anjan na ang sheriff, magde-demolish
na, pipigilan mo. Ang status quo, hindi
makikialam ang sheriff, wala, parang walang
nangyari. As if there was really no case. What you
were doing at the time of the filing of the
complaint. Kung gusto mong parentahan ang
bahay mo, pwede. Yun ang status quo. Hindi ka
pipigilang..oh sige pwede ka jan pero at any time
ha pwede kang paalisin, or yung renta mo dapat
70 | P a g e
ibigay mo rito sa adverse party. Parang walang
gagalaw. Yun lang yun.
A TRO is usually issued against the adverse
party. So ire-restrain ka pero akong nag-apply
walang restraint sa akin. Yun yung TRO. Sa
isang party lang may pagbabawal. Pero sa
status quo ante, pareho tayo. Dapat pareho
tayong walang gagawin, irerespeto natin kung
anong meron tayo at ginagawa natin yung mga
karapatan natin nung nag-file tayo ng kaso.
Ang TRO kasi class, one sided. Yung isa lang ang
bawal gumalaw yung isa pwedeng gumalaw. In
status quo, pareho kayo.
With respect to injunctions, can an
injunction be issued against government
infrastructure projects? Halimbawa yung
Ayala Bridge, diba nire-repair? Hirap na
hirap na yung mga dumadaan dun. Can the
residents of the City of Manila or the Mayor
of Manila file an action to stop, to have the
repair of the Ayala Bridge enjoined because
it is causing irreparable injury to the
residents in the area?
Maam, no.
Can we enjoin Kim Henares, can we stop her
from collecting taxes from us or from
implementing the Value Added Tax?
No, Maam.
In criminal prosecution, can the filing of an
information against an accused be stopped
through a preliminary injunction?
No. Merong isang kaso, a judge in Pasig, he issued
an injunction against the filing of an information
against Delfin Lee, yung Globe Asiatique. Yung
TRO, imagine, tini-RO nya yung mga fiscal na
wag mag-conduct ng investigation, pina-stop yung
preliminary investigation and even the filing of
the information. Kaya nga nakapagtago si Delfin
Lee diba, nahuli na lang this year or last year.
That is very basic, you do not enjoin criminal
prosecution.
Can injunction be the principal action?
Yes, Maam.
Yes, because of the last provision of Rule 58. It
pertains to the final injunction
By the way, going back to preliminary
mandatory injunction, can the court compel
one of the spouses to cohabit with and
render conjugal rights to the other?
Halimbawa, hiwalay na, gusto nang bumalik, may
clear legal right ba? Diba meron? Bilang mag-
asawa, you have the obligations eh.
Second, is there a violation of that right? That
would be the issue, may violation ba? Eh paano
kung binugbog mo or what. The family code
provides for the rights of spouses to cohabit, diba?
Obligation to cohabit and render the obligations of
marriage. May right naman. But will the refusal
of the spouse amount to the violation of that right
that would cause grave injustice to the other
spouse? Because you compel the other spouse to
do so, you are violating the constitutional right of
the other spouse. Hindi mo pwedeng pilitin, that
would amount to servitude already. Parang slave
na ang treatment mo sa asawa mo. That is why
AN INJUNCTION WILL NOT LIE.
Another point that I would like to
emphasize, Mr Mauricio, for example naka-
receive ka ng writ of preliminary injunction
or TRO today. Sabi mo, ah hindi pa ito
effective, meron pa akong 15 days to file a
motion for reconsideration. Thats what Sec.
De Lima was saying during the time of GMA
in 2010. Kasi GMA was about to...basta
merong issue nun eh. Sabi ni Sec. De Lima,
hindi pa nagla-lapse yung period to appeal
on the TRO or injunction, so hindi pa final
yun, hindi pa kailangang i-implement. Is
that correct?
That is not correct Maam because the writ of
preliminary injunction is immediately executory.
Yes, and it is very clear under Sec 5 of Rule 58.
Yung first paragraph of Sec 5. A temporary
restraining order to be effective only for a period
of 20 days from service on the party or person
sought to be enjoined. So, this means that when
you are served, once you are served with the TRO,
that is immediately effective. It is an interlocutory
order, not appealable. So hindi ka maghihintay.
Isipin nyo na lang yung TRO, sasabihin ninyo
hindi pa naman ito effective, mag-i-MR pa ako
within 15 days. So pwede kong i-demolish yan.
Diba? Na-defeat yung purpose ng provisional
remedy of Temporary restraining order.
And also, the last paragraph which would confirm
that a TRO and injunction is immediately
71 | P a g e
executory. If issued by the CA, a TRO shall be
effective 60 days from service to the party or
person enjoined. So, ang injunction or a TRO is
effective upon service to the party or person
enjoined. So that is preliminary injunction and
TRO.
RULE 59
We now proceed to Rule 59. Rule 59 pertains
to what provisional remedy?
Receivership.
Receivership, this provisional remedy presupposes
a main action pending. And the property subject
of the action requires preservation.
What is the concept of receivership, what is
receivership?
Maam, Receivership is a provisional remedy
wherein the court would appoint a representative
as a receiver to preserve the real or personal
properties during the pendency of the action...
Is it only available during the pendency of
an action?
No Maam, it is also available even after judgment.
After the judgment in aid of execution. Is it
also available during the pendency of an
appeal?
Yes. So the provisional remedy of receivership is
available during the pendency of the action,
during appeal and in aid of execution after the
final and executory judgment if the judgment is
returned unsatisfied.
Can receivership be also a principal action?
Yes.
Remember class, the receivership under Rule 59 is
not the same as the receivership under the
Banking Laws. They are different. The rules are
different. So we only limit ourselves to the
receivership as a provisional remedy available
under the Rules of Court.
What court can grant receivership?
Maam, the court where the action is pending.
Can the CA and SC grant the receivership?
Yes, maam.
So they can. All courts can grant the provisional
remedy of receivership.
What would justify the grant of an
application for receivership? In what
instances where receivership may be
granted by the proper court.
Maam it could be granted where the applicant
has...
So the applicant must have what?
Interest Maam.
On What?
On the subject matter
Ok, What else?
Maam the judgment debtor is to apply property for
the satisfaction of the judgment. Also, in the
execution of....
Yes, but what situation would warrant the
appointment of the receiver? You said that
the applicant must have interest in the
property or on subject of the action. But
what situation would warrant the
appointment of the receiver?
Kasi, when the receiver is appointed during the
pendency of the action, the properties of the party
ay kukunin sa kanya and will be safely kept and
will be under custodia legis and under the
supervision of the person who is appointed as a
receiver so that later on it would satisfy the
judgment.
What situations would warrant the
appointment of a receiver as provided under
Sec 1 of rule 59?
Maam if the properties is in danger of being lost
or...
So lost, wasted or dissipated and it must be
shown by the applicant. By the way, should
the application be verified?
Yes, Maam.
It should be verified. What else are the
situations that would warrant the
appointment of a receiver?
Well, you said a while ago that receivership may
be availed of in aid of execution of judgment. So if
the judgment was returned unsatisfied, I think we
had discussed this under Rule 39 that if the
72 | P a g e
judgment is returned unsatisfied, one of the
remedies is to appoint a receiver.
Diba maraming remedies, examination of
judgment debtor, examination of the third persons
who have obligations or debts to the judgment
debtor and one remedy is to appoint a receiver
and, if the appointment of a receiver is the
most feasible and convenient thing to do in
order to preserve, administer or dispose of
the property in litigation because in
receivership, you are preventing the other party
to dispose of the properties during the pendency of
the action and even during appeal.
Kasi, the adverse party should be the owner of the
property and as the owner, you have the right to
dispose of your property diba? Pwede nyang gawin
yun. So as a protection and for the satisfaction of
judgment, then a receiver may be appointed under
Sec 1 of Rule 59.
We said a while ago that application for the
appointment of a receiver must be verified.
What are the requirements for the court to
appoint a receiver upon filing of a verified
application?
Maam aside from the application the applicant
must also show that he has interest in the property
and that the property is in danger of being lost,
wasted, or dissipated.
Is there a need to post a bond in
receivership?
Yes Maam.
So the applicant must post a bond equal to the
value of the property subject of receivership but
not less.
How about the receiver who will be
appointed by the court, is he required to
post a bond?
Yes Maam.
So in receivership, how many bonds are
involved?
Two, Maam.
One is the?
Applicants...
And One is the?
Receivers...
The receiver appointed by the court, before
the receiver discharges his functions, what
is the condition or requirement aside from
posting a bond?
He must be under oath.
Why?
Because once he is under oath, he now becomes an
officer of court and he is accountable and liable to
the court.
I would like to point out that apart from these
requisites that we have mentioned for the
appointment of the receiver, the court must
only consider the grounds or reasons given
by the applicant although that is what is
provided under Sec 1 of Rule 59. But
remember, that also Sec 1 of Rule 59 a
receiver may be appointed if it is the most
convenient and the most feasible thing to do.
So it is not only from the point of view of the
applicant that the court should determine
the propriety of appointing a receiver.
And what should be considered by the
court?
The court should determine whether injury
resulting from such appointment would probably
be greater than the injury ensuing if the status
quo is left undisturbed. So iisipin ng court, mas
makakabuti bang mag-appoint ako ng receiver o
hahayaan ko na lang na walang receiver.
The court should determine whether the
appointment of a receiver would prejudice the
rights of the other parties or imperil the rights of
the other parties as much as those of the
applicant. Lalo na class kung ang property ay
pinag-away awayan ng mga co-owners or ng mga
magkakapatid. So iisipin yan ng korte, pag ako ba
ang-appoint ng receiver at yun ang mag-
mamanage ng property, mas magiging maayos ba
itong mga parties na ito. Kasi you have to
consider, babayaran mo yung receiver. Mas
mamanage ban g maganda or sila-sila na lang ang
magma-manage.
So those are the considerations that must be
taken, addressed and appreciated by the court.
73 | P a g e
What are the powers of a receiver assuming
he has already posted a bond nad he has
already taken his oath as a receiver?
Maam, first to file suits in his own name...
So in his own name, he does not have to implead
the applicant.
Also maam he has the power to collect debts due
either debts due to him or to property. Also, he has
the power to receive rents; also he has the power to
do acts respecting the property as the court may
authorize.
May the party to the action be appointed as
receiver?
Yes, maam but only if all of the parties consented
to such appointment.
May an action be filed against a receiver?
Halimbawa, yung isang property given to
the receiver to manage the property. Meron
isang tao not party to the action claiming
that he is the owner of the property. Can he
file an action against the receiver, for
example, recovery of possession?
No, Maam.
As a general Rule, an action cannot be filed
against the receiver unless there is leave of court.
So the third person would ask leave of court so
that he can file an action DIRECTLY against the
receiver.
What are grounds to discharge a receiver or
terminate receivership?
Maam if there is insufficiency or ineffectiveness
the....
And there is no longer a need for the appointment
of the receiver or the need no longer exists.
We said a while ago that a receiver may be
appointed during the pendency of an appeal.
Where should the verified application for
the appointment of a receiver during appeal
be filed? Should it be before the appellate
court or before the court of origin?
Maam it should be filed before the court of origin.
Court of origin. So doon ka magpa-file kahit
na andun sa court of appeals. Who will
appoint the receiver? The CA or the court of
origin?
Maam the court of origin.
So this is part of the residual powers of the court.
Diba sabi natin, the court could exercise residual
powers. If you would notice, yung isa sa mga
residual powers that the court could exercise are
those matters for the protection of the parties in
the action.
What is the liability of a party who refuses
or neglects to deliver the property to a
receiver? Can i be cited in contempt of
court?
Yes, Maam.
So under Sec 7 of Rule 59, the party who refuses
to deliver the property to the court appointed
receiver may be cited in contempt of court and he
could be liable for damages.
Kung magtatanong kayo, Judge eh bakit
kailangan pa ng receiver? Bakit hindi na lang
preliminary attachment, mas maganda. Class,
ang preliminary attachment is available only at
the commencement of the action and before
judgment. Ngayon, pag nagkaroon na ng decision
or appeal, wala na yung preliminiary attachment.
Nadi-dissolve na yung preliminary attachment
issued by the trial court. So ano ang pwedeng
remedy? Eh di receivership on appeal.
RULE 60
What is replevin?
Maam Replevin is a provisional remedy wherein
the applicant... to recover a property...
What kind of property? Real or personal?
Personal property Maam.
Replevin applies only to personal property.
Rule 60, Replevin, may be a main action or purely
a provisional remedy. So if there is a main action,
that would be recovery of possession. Pero class,
ang ano jan, talagang Replevin ang title if you
want to recover a personal property. Replevin as a
main action with a provisional remedy of replevin.
When must the application for replevin be
filed?
74 | P a g e
Maam at the commencement of the action or
before answer.
Commencement of the action or before answer. So
that is the requirement. A party praying for the
provisional remedy of replevin must file an
application for writ of replevin at the
commencement of the action or at any time before
the defendant answers.
What must accompany the application for
the issuance of the writ of replevin?
Maam it must accompany the affidavit of the
applicant describing the property...
Apart from describing the property, what
must the applicant show? Remember, the
applicant wants to recover a personal
property at ang gustong mangyari ng
applicant dito ay ang personal property
mapasakanya na so that the applicant will
have the custody of the personal property
during the pendency of the action, that is
the purpose of replevin.
Maam, the applicant must show that he is the
owner of the property and that he is entitled to the
possession.
So, is it absolute that only owners of the
personal property may file an application
for Replevin?
No Maam. It is not absolute. As long as the
applicant could show that he is entitled to the
possession of the property.
With respect to the defendant, it must be shown
by the applicant that the defendant is in ACTUAL
POSSESSION OF THE PERSONAL PROPERTY
because if the defendant is not in actual
possession, the writ of replevin will not issue.
Kasi kung wala naman sa defendant, nasa ibang
tao, paano ang gagawin mo? The writ of replevin
would be useless. So it is important class that the
defendant is in actual possession of the personal
property subject of the writ of replevin.
The applicant must also show that the defendant
wrongfully detained the personal property.
Usually class itong replevin yung mga bumibili ng
kotse on installment. Bibili kayo ng kotse, maglo-
loan kayo sa banko. So yung banko babayaran
yung Toyota or Honda, so sa banko kayo ngayon
may utang. Magbabayad kayo ng amortization sa
banko. Kung hindi kayo makabayad... ang mga
banko ngayon maghigpit two months lang,
irereplevin na. Ang daming replevin cases. You
know in one week nagra-raffle kami sa
Muntinlupa ng mga 50 cases of replevin. Ganun
katindi. Ang sabi ko, ganun pala kadaming
Pilipinong nangungutang para makabili ng kotse.
May Montero, fortuner, vios, altis yng mga high
end. Dalawang buwan lang hindi mkabayad, pa-
filan na. Kasi nauuso yung mga no down payment
eh kaya madamin nangungutang. So two months
hindi nakabayad, nagpa-file ng Replevin as a
main action with an application for a writ of
replevin.
So 2 months hindi nakabayad magpa-file ng
replevin main action tapos may action for the writ
of replevin, so ganyan ang gagawin, recovery of
personal property, ang kotse of course is a
personal property, so ang question ngayon is
how could the applicant or the bank show,
the defendant is wrongfully detaining the
property, what must be shown?
Una, nangutang siya sa bangko para bumili ng
kotse and then hindi siya nagbabayad ng
amortization for 2 months, meaning the defendant
has no right anymore to take possession of the
property, because he already failed in his
amortization, that is how you show it.
Let us say for example, hindi utang sa bangko,
ikaw pinahiram mo yung kotse mo sa kaibigan
mo, hindi na isinauli sayo, can you file an action
for replevin? Can recover possession of that?
Yes. And what must you show? So that youll
be entitled to the writ of replevin.
That the defendant did not return it.
You must show the OR and CR, your title, your
ownership, the basics of why you want to recover
possession of the personal property atsaka you
must state the actual value of the property.
Is there a requirement to post a bond in
replevin?
Yes mam. There is a requirement to post a bond.
How much?
Double the value of the property.
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Kaya sa amin yung mga nagpopost ng bond,
halimbawa yung Montero, dalawang buwan hindi
nakabayad, so mga 1 million pa yun, pa nagpost
ng bond yung bangko mga 2 million, kaya ang laki
ng kita ng mga surety. Let us say mga Toyota,
700,000 double up , kaya sa replevin mas malaki
yung bond, double the value of the property.
Judge bakit naman double the value? Eh
kapag nag-preliminary attachment ng real
property, equal to the value. Bakit class?
Because ang personal property, its mobile, ang
dali kaya niyang i-dispose. Kaya double the value,
so ang mangyayari, what if judge later on, it was
decided by the court that the applicant is not
entitled to the possession of that personal
property, then whatever damages suffered by the
defendant will be answered by the bond. At
halimbawa, etong bangko, kasi class, kapag iyan
ay nahatak, na-replevin, pwede nilang ibenta yan.
So, ang mangyayari nagyon, kapag nanalo yung
defendant, ano ngayon yung ibabalik, edi yung
nasa bond. That is the purpose of the bond. Now,
let us distinguish, kasi in preliminary attachment,
diba naghahatak din si sheriff, dito sa replevin,
kukunin din ni sheriff yung property, yung
personal property.
How would you now distinguish replevin
from preliminary attachment?
In replevin, the purpose is recovery of personal
property. For preliminary attachment during the
pendency of the action, the purpose is to secure
the award from the judgment.
Replevin is only available if the defendant is
in actual possession of the personal
property. How about in preliminary
attachment?
Even if the property is in the hands of a 3rd
person, still the property may be attached.
Ok now, Can you attach a property which is
already in custodia legis?
Yes mam.
In replevin, can you avail replevin? Pwede
mo pang marecover yung property?
Personal property, if it is already in custodia
legis?
No mam.
Hindi. Kasi halimbawa, RTC QC, andun na yung
kotse, na-attach na daw, itong si sheriff,
magrereplevin, kukunin niya, ipapakita niya yung
order of replevin, it cannot be done. Unlike in the
preliminary attachment, wherein the sheriff will
only show the court the writ of preliminary
attachment. Ok.
Yung example natin kanina, may utang ka sa
bangko dahil namili ka ng kotse, car loan, 2
months ka ng hindi nakababayad, before the bank
can file the action for replevin and apply for the
issuance of a writ of replevin.
Is there a requirement that the bank should
make a demand from you? To turn over the
possession and to pay their obligation. Bago
makapag-file nf replevin, kailangan ba muna
mag-demand sa iyo ang bangko na isauli mo
na sa amin ang kotse kasi hindi ka na
nakakabayad. Is demand necessary before
you file an application for the issuance of a
writ of replevin?
Yes mam. (NO)
Go over Sec. 2 Rule 60 which provides for the
requirement, di ba the basic requirements would
be affidavit and bond.
Is there anything in Sec 2, that requires
demand for the return of possession, before
the application for the return of the writ of
replevin can be file or even the main action
for replevin?
None.
There is none. So demand under sec. 2, there is
nothing under Rule 60 which requires a demand
on the possessor of the property before an action
for replevin could be filed.
Mr. Mauricio, May replevin and attachment
be availed of in the same case? So at the
commencement of the action, there is an
application for the writ of preliminary
attachment, it was granted, there was a writ
of preliminary attachment. Can replevin be
availed of in the same case?
No mam.
So you cannot avail those provisional remedies in
the same case because the purposes are different.
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Can a writ of replevin be issued without
notice and hearing? Under sec. 3 of Rule 60.
Please read (Refer to Sec.3 Rule 60, Rules of
Court).
So, it is very clear upon the filing, mere filing of
the affidavit and the approval of the bond will
warrant the approval of writ of replevin, provided
of course that in the affidavit, the applicant has
the right to or title to recover possession and take
custody of the personal property during the
pendency of the action. So a writ of replevin
may be issued ex-parte. There is no need for
a notice and hearing.
Now, I mention a while ago that replevin may be
the main action, and under Sec. 9 of Rule 60, this
pertains to the issuance of the judgment wherein
the court after the trial on the merits now
determines who is entitled to, who has the right of
possession to or the value of the property subject
of litigation.
RULE 61
SUPPORT PENDENTE LITE
What do you mean by pendente lite?
Support while pending action.
Now, support pendente lite, can it be
granted without notice and hearing?
No mam.
So, there must be a notice and hearing. Support
here is merely provisional.
Ok during the pendency of the action and
support pendente lite may be granted in two
instances. And what are those instances?
In actions for support and second, in criminal
cases wherein the civil action or the civil liability
in a criminal action is reserved or is not waived by
the aggrieved party.
So in action for support in a family case, for
example in legal separation, annulment of
marriage or the main action is support,
declaration of nullity of marriage, those are the
cases wherein support pendente lite may be
granted by the court.
And the second situation that you have mentioned
is in a criminal action wherein the civil liability
includes support to the offspring as a consequence
of rape. So, those are the two instances wherein
support pendente lite is available.
Is bond required?
Wala na ngang pang-suporta sa sarili,
magrerequire ka pa ng bond, napaka-harsh
naman at napaka-mean naman ng rules, ok before
the court grants your support during the
pendency of the action, you must first post a bond
equal to the support that you are claiming. Ok
now, that is injustice and unfair.
Now, when may the application for support
pendente lite may be filed?
Upon the commencement of the action.
Must the application be verified?
Yes mam.
If the right to support is in issue or the basis
of the right to support is not established,
meaning there is question as to the filiation
or paternity of the child, isa yun sa issue.
Can support pendente lite be granted?
No mam.
No. So it must be based on a legal ground for
support, halimbawa ikaw, isa kayo sa mga
magulang at wala namang question talagang
hindi mo idine-deny na anak mo iyon, support
pendente lite will be granted, pero halimbawa,
yung tatay sinasabi niya, hindi ako ang tatay
niyan magpapa-DNA muna tayo, at that point in
time, the application for support pendente lite
should not be granted.
For example, the court fixed 15,000 a month as
support pendente lite, is that already conclusive
or res judicata that upon the termination of the
main action yun na talaga ang magiging suporta
para sa applicant.
No mam because it is only for the pendency.
And remember even yung support na in-adjudge
in the court in the main action, that could also be
modified depending on the changing needs,
financial needs of the applicant for support. The
procedure of support pendente lite is summary in
nature.
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Now, Mr. Mauricio, we said that the application
for support pendente lite must be verified.
What must be set forth in the application for
support pendente lite?
The financial capabilities of the parties of both
parties, yung applicant at yung hinihingan mo ng
suporta, and it should be accompanied by
affidavits, kung may depositions, nasa abroad,
depositions or other authentic documents, in
support of the claim. Ano ba ito? Birth certificate.
Marriage contract. Because support may either be
child support or spousal support.
With respect to child support class, there are
several conditions or factors that must be
considered by the court, so ang applicant,
halimbawa yung asawa, yung babae, para sa
anak, ok, yung husband, in that case, ang
dinedetermine ng court, hindi lang yung financial
condition ng lalaki na hinihingan ng suporta, the
financial conditions of both parents must be
considered by the court, kasi for example the one
in custody of the child is the mother, may trabaho
naman yung nanay. Yung tatay halimbawa ay
construction worker, eh gusto ng nanay lahat na
ang tatay ang mag-support.
Remember, di ba, support of the family is the
obligation of both spouses, sa kultura lang natin
yung lalaki ang susuporta sa babae, but under the
family code, support of the family is the obligation
of both spouses.
So, in that case, the financial conditions of the
applicant and the other party should be
considered, the financial condition of the parent
who has custody of the child should be considered.
The physical and health condition of the child,
baka laging maysakit, laging nasa ospital, special
child ba siya, kailangan ng special attention,
papasok sa school of SPED diba, iba yung
pangangailangan nun, mas marami at mas mahal
ang kailangan nun. The standard of living that
the child was accustomed to. At syempre,
icoconsider din nung court kung magkano ba yung
kita nung party against whom support is being
claimed.
Eh judge seaman po kasi yun, malaki ang kita
niyan, mga kumikita yan ng 100K pesos net, so in
that case judge kailangan ibigay niya sa amin
yung 100K pesos na yun. Paano naman
mabubuhay yun, di na ba iyon kakain? Why kill
the goose that lays the golden eggs? Di ba.
Kaya kapag may kumokonsulta sken, usually
ganyan, nasa abroad yung asawa, may iba na daw
pamilya, sila suporta lang ang kailangan.
Tatanungin ko. Ano ba gusto mo, ipakulong yung
asawa mo, suporta o ma-annul yung kasal niyo?
Support lang po, oo kasi kapag pinakulong mo
yung asawa mo, lalo kayong mawawalan. Ok.
Magkano ba ang gusto mo, yun 100K daw po ang
kita, kesa mapunta po sa kerida, ipadala na lang
po sa amin ang lahat,. Hindi yun. Those factors
should be considered.
Ang spousal support, wala kayong anak o kahit
may anak kayo, syempre kailangan mo din ng
suporta. Well, the factors that should be
considered. Meron bang sapat na mapagkukunan
yung asawa mo, para siya ay mabuhay? Are there
adequate provisions or source of income yung
asawa mo?
Remember class, mag-asawa kayo, kailangan
suportahan niyo ang isat isa, hindi pwede na pag
nagalit kayo, mamatay ka sa gutom, hindi naman
kita kaanu-ano, bakit kita pinapakain, pinatitira
sa isang bahay, di tayo magkaanu-ano. We are not
even blood relatives.
Minsan ganun. Judge biruin mo, pinakakain ko
siya, batugan, hindi ko nga siya kaanu-ano eh.
Alam mo kung naging kadugo mo iyan,
makasalanan ka, incestuous yun. But thats the
reality, so child and spousal support. Maraming
conditions na kailangan i-consider ang court.
Now, provisional remedies. What provisional
remedies that we discussed are applicable in
criminal cases?
Kasi under Sec. 1 of Rule 127, if you still recall
your criminal procedure, di ba, it was stated there
provisional remedies in civil actions in so far as
they are applicable may be availed of in
connection with the civil action deemed instituted
with the criminal action. So ano iyon?
Ano yung mga remedies in civil cases that
are applicable in criminal cases?
1. Support pendente lite.
2. Receivership.
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Yes in civil action and in estafa during the
pendency of the case. Baka naibenta na, estafador
nga eh, di manloloko na naman yun. Ibebenta na
yun. Kaya ako pag nag-JDR ng estafa, talagang
yung akusado, napakatamis ng dila, pati ako
nakukumbinse na kaya niya magbayad ng 10M sa
loob ng isang buwan. Parang ang gandang
mangako talaga.
SPECIAL CIVIL ACTIONS
So, attachment can be availed of in criminal cases.
So we are now in special civil actions. In the
beginning of our study of civil procedure, we said
that a civil action is of two types.
One is?
Ordinary civil action.
And the second is?
Special civil action.
Now, Rule 62 up to Rule 71 of the Rules of Court,
they are special civil actions, and we have added
another one, the Writ of Kalikasan, under the
environmental Rules and Procedure.
We have defined an ordinary civil action.
And how do you define an ordinary civil
action?
It is when the part seeks the enforcement or a
right or redress of a wrong.
So that is ordinary civil action, how about a
special civil action, how do we define it?
They are for the same purpose mam but the
special civil action is.
Is there even a definition from Rule 1 to 71, kasi
ang ordinary civil action ay naka-define eh. Is
there even a definition of the special civil action.
It is not capable of definition. Special nga kasi
siya. Yung tipong, it cannot be with an
ordinary civil action, kasi in an ordinary civil
action, we have to have a cause of action, you
should have a clear legal right, you should have
an interest.
But in our study of special civil action, dib a may
mga special civil action na, wala ka namang
interest, there is no cause of action, like in
interpleader, you have no interest, youre not
interested as a plaintiff, yung declaratory relief,
there is no breach yet but you will file a petition
for declaratory relief.
So, the element of the causes of action in an
ordinary civil action will not apply, really.
Nagtingin na rin ako sa rules ng US, no definition
of what a special civil action is.
But what I know is this, a special civil action
although there is an urgency which must be
immediately addressed and relief should be
given, and special civil actions are availed
of, when there are no other speedy, adequate
remedy in the ordinary course of law. Ok.
RULE 62
Rule 62 pertains to interpleader, and it is
commenced by a complaint not by a petition.
The special civil actions that are initiated by
complaint are: Interpleader, expropriation,
partition, foreclosure or real estate mortgage and
of course forcible entry and unlawful detainer.
Initiated by petition: Certiorari, Quo Warranto,
Contempt, Prohibition,Declaratory Relief and
Mandamus.
Now, we proceed to interpleader. In
interpleader, what is interpleader based on
sec. 1of Rule 62?
It is a special civil action filed when there are two
conflicting claims upon the same subject. It is to
compel claimants to litigate their claims.
Who is the plaintiff in an interpleader?
The plaintiff is the person upon whom the
conflicting claims is made upon the same subject
matter.
And does that plaintiff have any interest on the
subject matter? None. Kaya hindi applicable yung
elements of cause of action, he has no interest, or
if he has, that interest is not disputed by the
claimants.
And who will be the defendants?
The two conflicting claimants. And the purpose of
interpleader, is that these two claimants would
interplead and litigate their conflicting claims
among themselves.
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What then are the requisites for a complaint
for interpleader?
1. There must be two or more claimants with
conflicting claims.
2. The plaintiff in the action for interpleader
has no claim upon the subject matter of
the adverse claim, and if he has it is not
disputed. That such should be one and
the same case.
Oh, lets have an example. Ito lagi ang nangyayari.
You are renting an apartment, yung dalawang
magkapataid, nag-aaway. Halimbawsa,
nagbabayad ka kay Ms. Tiambeng, si Ms.
Munsayak kapatid niya. Si Ms. Munsayak
sinisingil ka rin. Bakit ka nagbabayad dun?
Sa akin ka lang magbabayad, ako yung may mas
karapatan ditto sabi nung tatay namin nung
nabubuhay pa siya. Ako ang mas may karapatan,
kasi ako ang bunsi sabi ni Ms. Tiambeng, edi
pumunta ka dun sa sementeryo, humingi ka ng
kasulatan kay tatay. So ngayon ikaw, can you file
a complaint for interpleader in that case?
First, are there claimants which who have
conflicting claims?
Yes.
Second, do you have an interest on the
property? Is it disputed? Ang interest mo doon
di ba nagrerent ka, yung ang interest mo. Pero
kinukuwestiyon ba niya? Hindi nila
kinukuwestiyon. Ang gusto lang nila magbayad
ka ng renta sa kanila. Ok.
So, they have adverse claim, over the apartment,
over the rentals that you are paying, so it is really
right for an interpleader.
Being the plaintiff, so this is commenced by
a complaint, who will pay the filing fees?
Syempre ikaw, being the plaintiff, you will pay the
docket fees. But it will constitute a lien in the
judgment.
Who will be the defendants?
Silang dalawa. But you know the purpose of
interpleader, kapag nakapag-file ka na ng
complaint, ang mag-aanswer na silang dalawa na
ang sasagot niyan, sila na ngayon ang mag-
aaway, parang pinagsabong mo lang sila. Kasi,
anong pakialam mo, wala ka namang interest,
manuod ka na lan, kung sino ang idedeclare ng
court na rightful owner or the possessor of the
property at doon ka magbabayad. That is the
purpose of interpleader. Pero ang principal na
mag-aaway, magsasagutan, yung dalawang
claimants, ang role mo lang is to fiel a complaint
and you we will just wait kung sino mananalo sa
dalawa.
The same is true dun sa mga warehouse.
Halimbawa, galing sa pier yung mga trucks,
dineliver dun sa warehouse sa Paranaque, may
consignee, nakapangalan, eh eto yung isa, hindi
akin yan, nag-aaway ngayon, hindi malaman
ngayon ng warehouseman, kung kanino
irerelease yung mga goods. It is proper to file an
action to file an interpleader. Ok. Now.
When a complaint for interpleader is filed,
can a motion to dismiss be filed by the
conflicting claimants?
Yes Mam.
On what grounds?
On the grounds of Rule 16.
So any of the grounds under Rule 16 and?
Impropriety of the action for interpleader.
Sabi ni Ms. Tiambeng, eh hindi naman kami nag-
aaway eh, there was just a misunderstanding,
hati naman kami sa renta. In that case, the
complaint for interpleader may be dismissed.
Now, by the way, you mention a while ago that
any of the grounds under Rule 16 may be used to
dismiss a complaint for interpleader, so the
motion to dismiss on the ground of failure to state
a cause of action under Rule 16 may be used to
dismiss a complaint for interpleader.
Question. Ano ba ang cause of action? What
is the meaning of a cause of action? What are
the elements of a cause of action?
First, the plaintiff has a right. Second, the right
was violated by the defendant which right, the
defendant has the obligation to respect. And
because of the violation there is an injury.
Yun ang elements ng cause of action. Pag wala
yung isang element, you can file a motion to
dismiss.
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Ang tanong ko in an interpleader, yun bang
plaintiff ano bang right niya ang na-violate
and that he was injured. Mag-aapply ba
yung elements ng ordinary cause of action
sa interpleader?
Definitely not, because the plaintiff has no
interest or claim over the subject matter. So doon
na lang hindi na applicable, so Rule 16, the
failure to state a cause of action, cannot be
used as a ground to dismiss.
Ano pong pwedeng gamitin judge? Impropriety of
the action instead of failure to state a cause of
action, dahil wala naman talaga eh. Because the
meaning of cause of action in an ordinary
civil action is not applicable in a special civil
action.
So, since this is a complaint, the two conflicting
claimants who are now defendants in the action
for interpleader must file an answer.
Within what period must the answer be
filed?
Within 15 days from service of summons.
So, yung answer na iyon kanino nila
ifufurnish? Sino dapat ang bigyan nila ng
kopya? To whom must the answer be served?
Silang dalawa ang dapat na magbigayan ng kopya
ng answer, ikaw kasi wala kang interest eh,
because they should litigate against each other.
What would be the effect if there is failure to
file an answer?
There will be a declaration of default.
So, meron din declaration of default. The party
who fails to file an answer will lose his standing in
court.
Apart from that, what is the consequence of
failure to file an answer?
The defendant will be barred from pursuing his
claim.
So, ang purpose nga ng interpleader eh para
ayusin na nila yung gusot nilang dalawa eh, di pa
nag-answer yung isa. Ano mangyayari? Default.
So, sabi ni Ms. Tiambeng, hindi bale
interpleader, wala namang anu yan, special
civil action. I will just file an independent
civil action, recovery of possession form Ms.
Munsayak, can she do that?
It is very clear under the rule on interpleader, Ms.
Tiambeng is already barred from pursuing her
claim. Subukan lang niya to file an independent
action, for sure the other party will file a motion
to dismiss for failure to answer the complaint for
interpelader. That is the effect of that.
Now, with respect to the complaint for
interpleader. Can the two conflicting
claimants file an answer with counterclaim?
Pwede bang mag-counterclaim? Under Sec. 5
of Rule 62, pwede ba?
Yes mam.
Yes, pwede mag-counterclaim. Cross-claim, third-
party complaint.
In an interpleader, is pre-trial also
conducted?
Yes, there is also pre-trial.
Yes. So pwede din diyan mediation and ADR.
Now, which court has jurisdiction over a
complaint for an action for interpleader? Is
it the RTC or MTC?
It depends mam, if it is personal property and the
value is not more than 300,000 outside Metro
Manila, and in Metro Manila, at not more than
400,000, the Municipal Trial Court.
Ok. How about with respect to real actions?
With real actions, if the amount is not more than
20,000
If the value of the property is not more than
20,000 outside Metro Manila, and in Metro
Manila at not more than 50,000, the Municipal
Trial Court.
Interpleader, may pinag-aralan pa tayong isang
interIntervention, di pa yung may sumasali,
parang pareho, eto naman ayaw sumali ng
dalawa, pinilit mong sumali, para yang ganun,
may kaibigan ka , nag-aaway, pinagsabong mo,
sige dyan kayo. Ikaw nanonood ka lang kung sino
mananalo, eh di dun ka kakampi.
How would you distinguish interpleader
from intervention?
Intervention is merely filing of a motion of a party
who has legal interest in the action. In
interpleader, the party filing has no interest.
81 | P a g e
So, interpleader is an independent civil action.
And also, in interpleader the defendants are
merely brought just to
Yung dalawang conflicting claimants, kaya
naman sila nadamay dahil nag-file ka ng
interpleader against them, thats why they are
defendants.
In intervention?
In intervention mam, there is the defendants
there.
The parties are already impleaded. Intervenor,
ikaw ang makiki-join, sa interpleader, kayo yung
ijinojoin, yung dalawa as defendants.
But the most important distinction is that in
interpleader, the party filing the complaint
has no interest in the subject matter or even
if he has interest it is not disputed. But in
intervention, it is an essential requisite that
the intervenor has legal interest in the
subject matter of litigation, success of either
parties or against ah the either parties or he will
be adversely affected by the disposition of the
property subject of the litigation. Let us end there.
RULE 63
ANOTHER SPECIAL CIVIL ACTION:
DECLARATORY RELIEF AND SIMILAR
REMEDIES.
What are the two types of actions covered by
Rule 63?
1. Petition for declaratory relief
2. Similar remedies. Reformation of the
instrument, consolidation of ownership,
and quieting of title
What are the specific features of a petition
for declaratory relief?
A petition for declaratory relief is a special civil
action filed by persons who are interested for their
rights to be declared under a contract, will, deed
or other written instruments and persons whose
rights may be affected may also question the
construction or validity of a statute, executive
order or regulation, ordinance or any other
governmental regulation and this should be done
before any breach is done.
Is there a need for the existence of a cause of
action for filing a petition for declaratory
relief?
There is no need because in an ordinary civil
action, there is a requirement of actual injury or
damage and that is not so in a petition for
declaratory relief. That requirement of actual
injury in ordinary civil action is substituted by an
impending damage or injury and there should be
no breach in order to file a petition for declaratory
relief on the instruments or contract subject of the
petition.
Does a petition for declaratory relief, when
the court renders the decision or resolves
the petition, entail an executory process
wherein the winning party or the prevailing
party may move for the issuance of a writ of
execution?
No. Pag nanalo ka, the court will only declare the
rights under the contract or deed or under the
law. It is not proper for you to ask for the issuance
of writ of execution. No affirmative reliefs like
damages or injunction are issued in a petition for
declaratory relief.
The purpose of the petition is, before breach, to
interpret and determine what are the rights of the
parties with respect to the deed or contract or the
rights of persons under a statute or a law. It only
pertains to judicial interpretation of an
instrument. There is nothing to execute.
The petition for declaratory relief should be filed
before a breach is committed. So it is not brought
to settle issues after a breach.
Which court has jurisdiction with respect to
a petition for declaratory relief?
Since the action is one which is incapable of
pecuniary estimation, the RTC has jurisdiction as
provided for under Section 1.
With respect to the similar remedies like
quieting of title, which court has
jurisdiction?
It depends on the value of the real property.
What are the similar remedies under Rule
63?
1. Reformation of the instrument
2. Quieting of title
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 3. Consolidation of ownership
A declaratory relief must be commenced by a
petition.
Who may be parties to a petition for
declaratory relief?
It depends. If it is merely for declaration of rights
and duties under a contract or deed, parties
should be those who have interest in such
contract. The petitioner is one of the contracting
parties and the respondent also another
contracting party.
May a non-contracting party file for a
declaratory relief? Is interest merely
confined to the contracting parties? Pano
halimbawa, we executed a contract in favor
of a third person. Isn't it that the third
person has an interest?
He should prove that he is an interest whether or
nor he is a contracting party or not.
If the object of the petition is a law or an
executive order or a government regulation
or a local ordinance, who may be parties?
Persons who can prove that their rights will be
affected by such law or ordinance.
And who will be the respondent?
Kung city ordinance, edi yung council. Kung
regulation, edi yung BIR or LTFRB.
If the subject matter of the petition is the
constitutionality of a law or an executive
order, who must be notified?
The Solicitor General.
If it involves the validity of a city or
municipal ordinance?
The prosecutor or attorney of the local
government unit and if it involves the
constitutionality of such ordinance, also the
Solicitor General.
So we are talking about parties here. If you would
notice, parties in interest in an ordinary civil
action would simply be applicable kasi diba
parties should have an interest in a petition for
declaratory relief.
In an ordinary civil action, if the action is
not filed by a real party in interest or
against a real party in interest, what is the
effect of that? Can the complaint be
dismissed?
Yes. Unless the court allows the amendment of
the pleadings especially if it involves
indispensable parties. So as a rule, dismissal.
But with respect to a petition for
declaratory relief, may a non-joinder of
persons who claim an interest in a deed or
contract or who will be affected by the law
or regulation, is that a ground for the
dismissal of the petition?
No. Under Sec. 2 of Rule 63, rights of persons not
parties to the action shall not be prejudiced or
affected.
What are the subject matters of a petition
for declaratory relief? Memorize this!
The list is exclusive:
1. deed
2. will
3. contract
4. other written instrument
5. statute
6. executive order
7. regulation
8. ordinance
9. other governmental regulation
A petition purporting to be a declaratory
relief wherein the subject matter is not
within the enumeration. What is the effect
on the petition?
It will be dismissed.
Can the filiation of a person or paternity be
covered by a petition for declaratory relief?
No.
Kasi sabi natin diba to declare the rights of a
person. E gusto ko nga mapatunayan baka ang
tatay ko nga e si Pnoy. Declaratory relief.
Filiation cannot be established thru a petition for
declaratory relief.
How about a person's citizenship?
No.
When the judgment is not clear. Can it be
the object of a petition for declaratory
relief?
No.
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Can the court thru a petition for declaratory
relief resolve political questions? What is a
political question?
Diba policy making yan of the different
government agencies which cannot be looked into
by the courts, outside the authority and
jurisdiction of courts. Political questions are not
ripe for judicial adjudication because the courts
cannot supplant the policy making powers of the
executive and legislative agencies.
If there is no doubt on the validity or
meaning of a law, will a petition for
declaratory relief prosper?
As you studied in your statcon, if the law is clear,
there is no room for interpretation.
What are the requisites for filing a petition
for declaratory relief since we said na hindi
mo iaapply yung requirement ng cause of
action ng ordinary civil action because we
have studied that every ordinary action
must be based on a cause of action. So ano
ngayon yung magiging standard natin or
requisites for filing a petition for
declaratory relief?
1. There must be a justiciable controversy.
2. It is between parties with adverse
interest.
3. (Di ko maintindihan)
4. Issues are ripe for judicial determination.
Although there's no actual injury yet, but
there is threatened injury.
How would you define justiciable
controversy?
A law was passed by Congress and as a taxpayer
and a citizen, we filed a Issues are ripe for judicial
determination because we are saying "Hey
government, if you would implement this law,
halimbawa yung mga police officers during rallies
ang kanila maximum tolerance sabi sa law they
can use reasonable force when warranted by the
situation, when the people are already violent and
would injure persons and damage property, the
police officers might abuse the implementation of
that law. Even if the rally is peaceful, they would
have justification to arrest persons. In that case,
we want the court to declare the rights or
interpret the validity of that law. Is declaratory
relief proper?
It is not yet proper for declaratory relief because
the issue must be ripe for judicial determination.
In the example, the petition failed to demonstrate
how the rallyist are left to sustain or are in
immediate danger to sustain some direct injury as
a result of the enforcement of the law. It is
imaginary, it is speculative. And the fact that the
petition was filed by a taxpayer or a citizen will
not clothe the court with the authority to take
cognizance of the action. Kasi the SC has ruled,
declaratory actions characterized as double
contingency meaning hindi pa nga nangyayari,
wala pa ngang impending injury, nagfile ka na ng
action as to the activity of the petitioner and as
against the action of the government. Double
contingency bakit? Kasi ang declaratory relief
wala pang injury so there is an impending injury.
Tapos dinagdagan pa na ang petition imaginary.
So talagang it is not ripe for judicial
determination.
Halimbawa ganito naman, there's an
ordinance in Mandaluyong City prohibiting
smoking in public places. So halimbawa si
Mr. Doctor, smoker, siya ang doctor na
smoker. Sabi nya nagssmoke ako sa kotse ko
pag nagdadrive ako binubuksan ko yung
bintana tapos nasa road ako. Is that covered
by the prohibition? In that case, can he file
for a petition for declaratory relief?
Yes. The ordinance is really not clear. Ano ba
yung public places na dinedefine na yan? Does it
include you being in your car habang nasa public
road ka? Because under the Constitution, ang car
mo is part of your private abode e. Pero pag
binusksan mo yan tapos nilalabas mo yung kamay
mo. Diba there is ambiguity there. This is a valid
ground to file a petition for declaratory relief.
E pano kung halimbawa naninigarilyo si Mr.
Doctors sa isang road sa Mandaluyong,
nakaopen yung car window. Hinuli na sya.
Can he file now a petition for declaratory
relief, asking the court to declare or
interpret?
No. There is already a breach or violation.
Ano na ang remedy nya?
Gawin nalang nyang defense yun or iattack
nalang nya talaga ang constitutionality and not
merely a petition for declaratory relief. Itatanong
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mo pa yung right, hindi! Ipapainvalidate mo na
agad yung law.
Let us say it's a contract and there is no
contractual breach yet at malabo sayo yung
terms and conditions of the contract. Can
you file a petition for declaratory relief?
Yes. But after breach, it is no longer proper.
After the breach, what is the proper remedy?
Either to annul the contract, rescission or specific
performance.
What if upon filing of petition for
declaratory relief, there is no breach yet and
the breach happened after the filing of the
petition? What will happen then? Nagfile na
ng petition for declaratory relief tapos
nagkaron na ng breach?
The petition shall be converted into an ordinary
civil action.
Ang problema, ang allegations nyan syempre is
wala pa yung breach. E kung iconvert mo, you
need to amend the pleadings and the court, motu
proprio, should allow the amendment of the
pleadings kasi magiging ordinary action na sya
and you need to allege your causes of action na
meron ng actual injury.
Now Section 5 is interesting, it pertains to the two
types of action. The title is Court Action
Discretionary.
Which type of action under Rule 63 may the
court refuse to take cognizance of or act?
Only on a petition for declaratory relief
And when may the court refuse to act on a
petition for declaratory relief filed before it?
On the following ground
1. Decision would not terminate the
uncertainty or controversy which gave rise
to the action
2. Where the declaration or construction is
not necessary and proper under the
circumstances
In a petition for declaratory relief, when the
court refuses to act on the petition on either
of the two grounds in Section 5, what is the
effect of that on the petition?
It will have the effect of dismissal of the petition.
With respect to similar remedies?
The court has no discretion. Dapat ang court
talaga should act on quieting of title, reformation
of instrument and consolidation of ownership.
May a motion to dismiss be filed against a
petition for declaratory relief?
Yes. Kasi kung ang court may refuse or act on its
own then I don't see any reason why a party, the
respondent, is not allowed to file a motion to
dismiss on any of those grounds (Sec 5).
Can you use any of the grounds under Rule
16?
Yes.
Lack of jurisdiction? Yes.
Can you file a petition for declaratory relief
in the CA? In the SC?
No. Exclusive in the RTC.
REFORMATION OF INSTRUMENT
What is the object of the reformation? Is it
the terms and conditions sa deed?
The reformation is not of the contract but on the
instrument because what we have here is a valid
contract but the true agreement was not reflected
in the instrument.
Can you give me an example of that when
the true agreement is not reflected in the
contract?
Lack of skill of the one who made the contract.
Halimbawa we agreed on a contract of real estate
mortgage. Yun ang agreement natin dalawa, si
Ms. Balingasa sya yung nagtype. Ang nagawa nya
deed of absolute sale kasi nagcopy and paste lang
sya sa legal form. E dba minsan yung title hindi
na tinitignan e, binabasa na agad yung terms and
conditions. Pumirma tayong dalawa but the
agreement was a deed of real estate mortgage,
then reformation is proper because it was by
mistake.
What if we indeed agree on a deed or contract
which both of us signed. Contract of sale. Sabi ko
sayo, o Ms. Dy ibenta mo sakin yung kotse mo,
100 thousand lang. Ang halaga ng kotse 500
thousand. Syempre moral ascendancy, takot ka
sakin professor. Napilitan ka, sige na nga 100
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thousand. Delikado pag hindi pumayag. Pumirma
ka. Pero yung talagang agreement
magbebentahan.
What is the remedy?
Not reformation because there is a vitiation of
consent. The proper remedy is to annul the
contract.
Balik tayo dun sa mortgage. We agreen on a
real estate mortgage. Pero ikaw ang naging
intention mo is papirmahan sakin deed of
absolute sale. Blanko yung title, "Judge
ilalagay nalang ni Ms. Balingasa yung title
pero ano yan mortgage lang yan"?
There is already fraud so annulment is proper.
CONSOLIDATION OF OWNERSHIP
Remember when we discussed about retention in
Rule 39. Pag naibenta yung property ng losing
party to satisfy the judgment.
Within what period may he retain the
property if he wishes to redeem the
property?
Within one year from the registration of the
certificate of sale.
Hindi naredeem. And we said that ownership now
will be absolute and be consolidated to the highest
bidder. At that point in time, there is
consolidation of ownership already.
What is the purpose of consolidation
ownership under Rule 63?
For registration only. By law, ownership is
already consolidated.
Consolidation of property is required under
what law?
Civil Code. Article 1607. Na hindi irerehistro
kahit nalapse na redemption period kung walang
court declaration or court action.
Not only applicable in Rule 39. We are co-
owners and you sold your ideal share which
can be done. I don't want that other person
to be my co-owner so what I did was I
redeemed. Nirepurchase ko yung share mo.
In that case, is ownership consolidated to
me?
Yes. I execrised my right of legal redemption.
Is there a need for judicial declaration of
consolidation of ownership?
No. Rule 63 is only for purposes of registration to
bind third persons as notice to the whole world.
This is not only applicable in legal redemption. It
also applies to conventional redemption.
What is conventional redemption?
Redemption by stipulation of the parties where
they may stipulate a period not exceeding 10 yrs.
Halimbawa naglagay tayo, Ms. Dy talagang
walang wala ako ngayon. I will sell to you my
property. Ayoko kasi ng sanla kasi may interest.
Ibebenta ko sayo yung property ko for 1 million
pero within a span of 6 months or 3 months,
bibilhin ko sayo yun, ibabalik ko yung 1 million.
That is conventional redemption. The right ot
repurchase the property already sold.
QUIETING OF TITLE
Only pertains to real property.
When is quieting of title available as a
remedy?
It is an equitable remedy brought to remove the
cloud on the title.
And the cloud is brought about by what?
It appears valid on its face but in fact, ineffective.
And the sources of a cloud may either be an
instrument, a record, a contract, an encumbrance
or a proceeding.
RULE 64
When we were discussing rule 43, appeals from
decisions of quasi judicial bodies with CA via
petition for review, we have enumerated the
different quasi judicial bodies including a
constitutional commission which is the CSC.
The COMELEC and COA are also constitutional
bodies but are they also considered as quasi
judicial bodies? Based on their powers? A quasi
judicial body involves investigation, it involves a
fact finding and makes decision based on their
field of expertise.
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So COA and COMELEC are they considered
to be performing quasi judicial functions?
Yes they are, and at the same time they are also
constitutional commissions.But they are not
covered or included in the list under rule 43.
So from the decisions and resolutions of the
COA and COMELEC to what court may an
aggrieved party appeal?
To the SC under rule 64.
What mode of review?
Petition for certiorari under rule 65.
Within what period must the petition under
rule 64 be filed?
Within 30 days from notice of judgment or order
or resolution sought to be reviewed.
Is the 30 day period extendible?
No. No provision allowing extending of period, no
extension.
Must petition under rule 64 be verified?
Yes.
Certificate of forum shopping?
Yes.
Apart from that what should accompany the
petition?
A certified true copy of the judgment, or original
or duplicate original.
COMELEC and COA being quasi judicial
bodies, what is the quantum of evidence or
proof required?
Substantial evidence.
Decisions of COA and COMELEC should be based
on substantial evidence.
If factual findings are supported by
substantial evidence, will it warrant a
review under rule 64?
No, this is very clear under section 5. Last
sentence of 1st paragraph.
What is the effect of filing a petition under
rule 64 on decisions of COA or COMELEC
being questioned?
It will not stay the judgment unless the party
applies for a TRO or Preliminary Injunction in the
SC.
The decision of the COMELEC or COA will
not stay. Is this unfair?
No, kasi di pwede magka vacuum sa public office
or sa public service. This is the principle of the
rule.
Under rule 64, the basis is the 1987 constitution,
provision in constitutional commission, under
article 9-a of 1987 consti: any order or ruling of
constitutional commission of COA or COMELEC,
may be brought to SC by certiorari within 30 days
by aggrieved party from receipt of copy of order or
decision.
2 kinds of certiorari under the Rules of
Court, how did the SC interpret the
provision in the constitution?
Petition for certiorari under rule 65, kaya nga
tayo may rule 64 eh, eto ung decision ng SC sa
ARATUC V. COMELEC.
Certiorari under constitution should be interpreted
as under rule 65 and not under rule 45.
What errors or issues may be raised under
rule 64?
Only questions of jurisdiction.
Involving what?
Jurisdictional grounds, either lack or excess of
jurisdiction.
How about lack of due process can that be
raised?
Yes. Because if you are deprived of due process
that goes into the issue of jurisdiction, it is
jurisdictional.
That is rule 64, it only involves COA and
COMELEC.
RULE 65
So what are the special civil actions that are
covered under this rule?
Certiorari, prohibition and mandamus.
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What is the nature of a petition for
certiorari?
It is a special civil action and an independent
action, it is NEVER a mode of appeal.
What is sought to be corrected?
The jurisdiction of the court, errors of jurisdiction.
It could either be lack or excess of jurisdiction.
How about errors of judgment?
No, this should be remedied by appeal.
Distinction of errors of judgment and errors
of jurisdiction?
Errors of judgment there is jurisdiction but
there are errors in the judgment. They have
jurisdiction, it is within their jurisdiction, so it is
important to memorize outline of jurisdiction, to
know if they acted outside their jurisdiction.
What court has jurisdiction for specific
performance?
RTC because it is incapable of pecuniary
estimation, a performance of an obligation.
Any decision rendered by RTC is within its
jurisdicition.
Where would error of judgment come into
play?
When RTC did not consider the evidence
presented, nireject nya, di na consider yung
evidence or did not consider certain factual
matters correctly, that would change the outcome
of the decision. Or it misapplied the law on certain
facts, there is error of judgment but has
jurisdiction.
When do you say that the court committed
an error of jurisdiction?
For example, the trial court motu propio declared
the defendant in default without a motion of the
plaintiff. The trial court acted in excess of its
jurisdiction.
What if in an action for revovery of
possession lasted only for 6 months and RTC
acted on the complaint?
Error of jurisdiction because it is lack of
jurisdiction and it should be within the
jurisdiction of the MTC.
What if the time of the presentation of
defense evidence, it submitted for decision
and no longer allowed the defendant to
present?
Error of jurisdicition. Because in that case, the
court already whimsically or arbitrarily acted or
in a despotic manner.
Remedial law, the ROC should be liberally
construed as a general rule.
Special civil action under Rule 65 is an
independent action and not a mode of
appeal, how do you distinguish certiorari
and appeal?
Certiorari independent action
Appeal is a continuation of the original action
Certiorari filed within 60 days from notice of
judgment or order assailed.
Appeal within 15 days from notice of judgment
or final order.
Appeal, whether discretionary or ordinary
should the court that render the judgment
be pleaded?
No.
In certiorari should be impleaded as nominal
parties. Aggrieved party is the petitioner and the
judge is the public respondent and the adverse
party as the private respondent.
Are the judges required to comment?
No, unless directed. Because it should be the
private respondent who should file the comment.
The order will speak for yourself.
Will the filing of the appeal ordinary or
discretionary under rule 40, 41 and 42, will it
stay the execution of the judgment appealed
from?
Yes.
In certiorari, will it stay the order?
No. unless there is a TRO or preliminary
injunction.
If the order is merely interlocutory, can you
appeal from that?
No.
In certiorari can you file against
interlocutory order?
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Yes. Under rule 65, provided there is grave abuse
of discretion amounting to lack or excess of
jurisdiction.
A complaint filed in RTC, you are plaintiff and
Miss Luna is the defendant and Ms. Luna filed a
Motion to Dismiss but the court denied it. In that
case, the proceedings will continue, you filed a
petition for certiorari in the CA. we said that
certiorari will not stay, Ms. Luna did not file any
answer kc Motion to Dismiss lang na file nya, you
filed a motion to declare her in default because
after notice and hearing she did not file an answer
and the trial court declared her in default.
Ms. Luna now is questioning the declaration
of default since there is a certiorari filed and
the court should wait for the resolution of
the certiorari and after then it will be
determined if I will file an answer or not, so
is the declaration of default proper? Is Ms.
Luna correct?
The declaration of default is proper, because the
proceedings will continue even if a party files a
certiorari because there is no TRO or preliminary
injunction. So she should have filed an answer
since the period was not tolled. Clear in section 7
in expediting proceedings.
SECTION 7 Expediting proceedings;
injunctive relief. The court in which the petition
is filed may issue orders expediting the
proceedings and it may also grant a TRO or PI for
the preservation of the rights of the parties
pending such proceedings. The petition shall not
interrupt the course of the principal case, unless a
TRO or PI has been issued enjoining the public
respondent from further proceeding with the case.
The public respondent shall proceed with the
principal case w/in 10days from filing of a petition
for certiorari with a higher court or tribunal,
absent a TRO or PI or upon its expiration.
Failure of the public respondent to proceed with
the principal case may be a ground for an
administrative charge.
WON to continue with the proceeding and await
petition for certiorari, we are only allowed to wait
for 10days.
After lapse of 10days without TRO or PI, we
should proceed, what is the consequence if
we will not proceed?
Judge may be sanctioned administratively.
Because the SC amended section 7 on expediting
proceedings kc ang nangyayari dati, 10 years na
ang certiorari di pa tapos and naghihintay ang
korte and that is delay.
Does judicial courtesy still apply today?
What is this?
When a lower court awaits the decision of the
higher court.
Before sec 7 was not yet amended, the 2nd par of
sec 7 is a modification. Wala to dati.
Kasi dati kahit walang TRO or PI pag nalaman
may certiorari, as a judicial courtesy, di kami
gagalaw pero ang daming delays. So SC amended
section 7 to expedite the proceedings.
Is certiorari a substitute for a lost appeal?
No.
Can certiorari and appeal co exist? Filing
them simultaneously?
No. Because one of the requisites of rule 65 that
there should be no speedy, adequate or plain
remedy available.
What then are the requisites for filing a
certiorari?
Directed to board tribunal officer exercising
judicial or quasi judicial functions.
Other?
No speedy, plain adequate remedy or appeal in
the ordinary course of law.
Other?
There should be grave abuse of discretion
amounting to lack or excess of jurisdiction, a
whimsical, capricious, arbitrary exercise of
judicial or quasi judicial functions.
You lost a case and filed an ordinary appeal and
granted and available as a remedy, then you also
filed a petition for certiorari, then RTC declared
you in default and rendered a judgment and this
is being questioned by you. Are your remedies
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proper or which is proper? Can appeal and
certiorari exist at the same time?
No. because there should be no appeal available
for certiorari to be proper.
The remedies of appeal and certiorari are
mutually exclusive and not alternative. What you
should have done is to withdraw the petition for
certiorari and raised the error of jurisdiction in
your appeal. And this is illustrated in the case of
IRENE SANDOVAL V. KAILIPAN.
There is an exceptional case that according to SC
when remedy of appeal is inadequate or slow, you
can invoke certiorari but as a rule if remedy of
appeal s available, you cannot.
Respondent in petition for certiorari should
exercise judicial or quasi judicial function if
not will it lie? For example can you file
against exercise of legislative powers?
Against congress?
No, we cannot. It is very clear only judicial or
quasi judicial functions.
How about against LTFRB in its quasi
legislative power?
No.
Certiorari will not lie in acts done in exercise of
rule making powers.
Certiorari will lie where there is grave abuse of
discretion amounting to lack or excess of
jurisdiction, lack of jurisdiction, excess of
jurisdiction or absence of jurisdiction.
How will you distinguish excess from
absence?
In excess the court had jurisdiction over the
subject matter but it exceeded its jurisdiction. Act
performed beyond the bounds of authority.
In absence there is really no jurisdiction but
took cognizance of the action.
Is mere abuse of discretion enough?
No. There should be grave abuse of discretion
amounting to lack or excess of jurisdiction.
When do you say there is grave abuse of
discretion amounting to lack or excess of
jurisdiction?
When tribunal or body exercising judicial or quasi
judicial function, acts in a whimsical, capricious,
arbitrary or despotic manner amounting to lack of
jurisdiction with passion and prejudice.
That is what would grant jurisdiction to grant
certiorari, to show grave abuse of discretion
amounting to lack or excess of jurisdiction and not
plain or mere abuse because this would only be
considered as error of judgment.
TRO lasts only for 20 days, can it be
extended?
No, NEVER by trial court or CA. in CA it is 60
days. In SC until lifted.
TRO is an interlocutory order and is not
appealable. But interlocutory order can be
questioned by petition for certiorari.
If it is patent that TRO is extended, it is violative
of the rules and the judge acted in excess of
jurisdiction and can be considered as grave abuse
of discretion amounting to lack or excess of
jurisdiction.
If court rendered decision favoring plaintiff
and nanalo ng 10M in damages and
defendant appealed, is that a final and
executory?
No because there is a pending appeal since it is
not yet ripe for execution since it is sttill in CA.
Then he moved for execution pending
appeal on ground that he is insolvent, and
this is granted.Is that an order which is
appealable?
No, only petition for certiorari.
Where is grave abuse of discretion
amounting to lack or excess of jurisdiction
here? Is the ground relied upon a good
reason to execute judgment pending appeal?
No, it is not a good reason and there is no basis
and this results to grave abuse of discretion
amounting to lack or excess of jurisdiction on part
of the court.
In judgment by default, what is the extent of
award that can be granted by the court?
Halimbawa ang claim is 5M and judgment by
default is rendered then judge awarded
double the claim 10M, is this valid?
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No.
In that case is there grave abuse of
discretion amounting to lack or excess of
jurisdiction?
Yes.
Is the filing of MR necessary before party
may file a petition for certiorari?
Yes, in all cases.
It is a prerequisite to allow the court an opp to
correct the errors.
If not filed MR, ground for dismissal?
Yes.
But are there exceptions?
When SM is perishable
When SM is of public interest
When it is a patent nullity
When issue raised is purely of law
Deprivation of due process? Dispense with
requirement of MR?
Yes. Of course.
There is no definition of SCA, but what is impt
I said that in a SCA, the salient nature of that is
that there is an urgency and the need to file the
action and this is the office of such remedy where
there is no SAP remedy in ord course of law and
when deprived of due process, you have to act fast
so court can hear your side otherwise you will
waive and estoppel or laches might set in.
What are the material dates that must be
alleged in filing pet for certiorari?
When J/FO is received
When MR or MNT filed, when denied here was
received.
When notice of denial received.
To show the timeliness of the filing.
What should accompany the filing of verified
petition of certiorari?
Kasi maraming kaso na didismiss dahil sa non
compliance of requirements for filing.
So what are these?
Certified true copy of J/FO subj of certiorari.
Certification against non forum shopping
Copies of pertinent pleadings.
Remember mga petition hindi ineelevate unless
inappeal, and petitioner ang mag susupply ng
mga certified true copy or relevant documents, so
these must accompany a petition for certiorari.
What court may petition for certiorari be
filed? If order of MTC?
In the RTC. Only here, di pwede dumiretso sa CA
much less sa SC.
What other courts?
CA, SC
Is it allowed to directly invoke authority of
SC?
No, observe hierarchy of courts.
Sandiganbayan?
Yes in aid of its original or appellate jurisdiction.
COMELEC?
Yes. Pde mag file kasi may election case na
cognizable by MTC = inclusion or exclusion of
voters.
Municipal officials = RTC.
City officials = COMELEC.
COMELEC has appellate jurisdiction in these
cases.
Sanctions against unmeritiorious petitions
for certiorari?
Go over section 8.
SECTION 8 proceedings after comment is
filed. After the comment or the other pleadings
required by the court are filed or the time for the
filing thereof has expired, the court may hear the
case or require the parties to submit memoranda.
If after such hearing or filing of memoranda or
upon expiration of the period for filing, the court
finds that the allegations of the petition are true, it
shall render judgment for such relief to which the
petitioner is entitiled.
However, the court may dismiss the petition if it
finds the same patently without merit or
prosecuted for delay or questions raised are too
unsubstantial to require consideration. (WUD) In
such event, the court may award in favor of the
respondent treble costs solidarily against the
petitioner and counsel, in addition to subjecting
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counsel to administrative sanctions under rules
139 and 139-B of ROC.
The court may impose motu propio, based on res
ipsa loquitur, other disciplinary sanctions or
measures on erring lawyers for patently dilatory
and unmeritorious petitions for certiorari.
Lawyer may be sanctioned: either suspension or
disbarment.
And another is that they may be solidary liable,
treble the costs. So kung amountt involved is 10M
then 30M na.
To discourage the filing of unmeritorious
petitions.
There are 2 types of certiorari, rule 45 and 65.
Distinguish the two.
Rule 65 independent action, filing within 60
days from notice of J/FO assailed. MR or MNT is a
pre requisite for filing of certiorari.
Rule 45 continuation, filing within 15 days from
notice of J/FO appealed from. MR or MNT is not
required.
Will filing under rule 45 stay Judgment
appealed from?
Yes.
Sa rule 45 anong court?
SC only.
In certiorari?
Can be in RTC, CA, sandiganbayan
COMELEC.
Another SCA IS PROHIBITION, purpose?
To order the court to desist from further
proceedings, tribunal board or officer exercising
jud, quasi-jud or ministerial functions.
Legislative or quasi-leg bodies may be the
object?
No. they are not ministerial duties.
Ministerial duty, what is this?
It does not require the exercise of discretion.
What is the period for filing?
Within 60 days from notice of J/FO like certiorari,
this is independent action.
What about mandamus? Purpose?
Ordering tribunal or body to perform a ministerial
act. When respondent unlawfully neglects the
performance of a mandated act by law. Or
unlawfully excludes another from use or right to
enjoy office.
Can sec of justice be compelled by
mandamus to file a criminal information
against a person?
No, because this would require discretion.
What if already 2 years lapsed? And purpose
is to fast track her duty?
Yes, it can be because the purpose of mandamus is
to mandate what was unlawfully neglected.
Antagal tagal na wala paring action. Mandamus
to act and immediately resolve.
If it is not to file or not to do an act?
Mandamus proper?
No, that is a different matter.
For example nag fofollow up kayo sa opisina
since wala paring action?
Yes pede to pero pag kunwari mag issue nang
license di nap de kc kailangan na ito ng discretion.
Only the ministerial cat can be compelled by
mandamus.
DATU ANDAL AMPATUAN V. SECRETARY DE
LIMA case applies here.
What is purpose of mandamus, when it will lie
and not lie. If involves discretion, mandamus
and cannot lie and is not proper.
What are the requisites for issuance of writ
of mandamus?
1. It must be filed against a tribunal or
board exercising ministerial duties.
2. Unlawfully neglects the performance of
ministerial duty
3. Unlawfully excludes another from use or
enjoyment
4. And the subject matter must be a
ministerial duty.
Can the courts compel the president to act
and fast track the case of veloso?
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Pede ba syang I mandamus ng walang utang
na loob na mga magulang? Ung mga
bangsamoro can they compel congress to
pass the BBL?
No, una may clear legal right ba sila? Wala. But
the main reason is that courts cannot file
mandamus to command the executive and
congress to do an act. Because they are co-equal
departments.
Last question, can contractual duties,
performance of these be compelled by
mandamus?
No.
What is your remedy?
1. Breach of contract
2. Specific performance
3. Rescission
You have other remedies in ordinary course of law
so you cannot avail of mandamus.
Mr Cabral
RULE 66
Quo warranto
Is this SCA commenced by filing
complaint or petition?
By a verified petition.
Accompanied by certification against non
forum shopping?
Of course.
What is quo warranto? Purpose?
To oust a person who is holding or usurping a
public office or intrudes into a pub office or
unlawfully exercises pub position or even a
franchise.
It is a latin term, a question, what is this?
By what authority. By what authority are you
occupying your position, or in the franchise.
Section 1 has 3 situations where it may be
brought. What are these?
SECTION 1 action by govt against individuals.
An action for the usurpation of a public office,
position, or franchise may be commenced by a
verified petition brought in the name of RP
against:
1. a person who usurps, intrudes into or
unlawfully holds or exercises a pub office,
position or franchise;
2. a pub officer who does or suffers an act
which by prov of law, constitutes a ground
for the forfeiture of his office;
3. an assoc which acts as corp w/in the phils
w/o being legally incorporated or w/o
lawful authority so to act.
Quo warranto is a prerogative writ by which a
govt can call upon any person to show by what
warrant of authority he is exercising or holds a
pub office or franchise.
Who may file the petition?
Solgen or pub prosecutor.
In whose name?
Rep of Phils
Example Rep of phils v. cabral or RP v. XYZ corp.
Since the govt is asking for you to show your
authority.
Can it be filed by a private person?
of Yes.
Under what condition?
When a person has the lawful or legal right to
question such authority.
For example, ang na appoint si Ms. Balingasa,
then you feel you are more qualified than her, you
can file quo warranto to question the legality of
her appointment.
Solgen or pub prosec may intervene.
Solgen or pub prosec may file not by
instance of pres but by their own instance
by reason of an information relayed to them
by a person, called?
A relator.
In short sumbongero.
SECTION 3 when solgen or pub prosec may
commence action with permission of court.
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Solgen or pub prosec may with the permission of
the court in w/c action is to be commenced, bring
such an action at the request and upon the
relation of another person; but in such case the
officer bringing it may first require an indeminity
for the expenses and costs of the action in an
amount approved by and to be deposited in the
court by the person at whose request and upon
whose relation the same is brought.
File a leave of court, mag hearing muna kung
tama ang sinasabi ng relator, if there is basis to
file a quo warranto.
Who will pay the costs? The govt or relator?
Not govt kasi ang naka isip ang relator, sya mag
bear ng expenses, ung mga filing fees, kasi pano
kung walang basis tas the govt will spend? No.
Before what courts may quo warranto be
filed?
RTC within area of its territorial jurisdiction.
Sandiganbayan?
Yes. In aid of its appellate jurisdiction.
When it is solgen who files, what RTC?
RTC of Manila.
Why?
Because the seat of power w/c is the Malacanang
is in Manila.
Can it be filed in SC or CA?
Yes.
Within what period must it be filed?
Within 1 year from the cause of the ouster of the
petitioner or after right of petitioner to hold such
position came about.
Halimbawa, appointment of Ms. B issued
today and you are questioning that, but she
assumed office 15 days after, where will you
count the 1 year period to file Quo
warranto? Within 1 year from issuance of
her appointment? or assumption of office?
When did cause of your ouster arise?
From period of her appointment and not
assumption since the cause is the appt.
Exhaustion of admin remedies required?
No.
Distinguish Quo Warranto in omnibus election
code and that in Rules of Court.
QW in OEC pertains to elective position and
OEC will govern. Grounds are the ineligibility and
disloyalty to the RP. Filing within 10 days from
commission of that being assailed.
QW in rule 66 pertains to appointive office.
Filed w/in 1 year after the cause of ouster.
Iba ung after 1 year and w/in 1 year, malaking
difference yun. Ang correct is WITHIN 1 year.
As long as time of cause of ouster came about,
question kaagad, need not wait when you feel the
need to when the one appointed is not eligible.
Proceed.
Where is the filing?
Under rule 66 filed with the SC or RTC where
respondent resides.
Under OEC RTC, CA, COMELEC as the case
may be.
Who may file?
Under OEC by any voter
Under rule 66 by a person claiming to be
entitled to the office or the position.
Situations where QW may be filed when govt is
questioning by what authority the franchise is
being exercised, when corp is exercising it, to
prove if registered with SEC or not.
Pet for QW can only be filed aginst a de facto
corp or one to w/c impresses upon public
that it is a registered corp, but not to a de
jure corp.
If you are for example, an officer of priv
corp, and you would like to question another
officer who is exercising as an officer of priv
corp, and you said he is usurping an office in
corp, can it be filed under ule 66? For
example corp of manny pangilinan?
Go over par c in section 1.
C. An assoc which acts as a corp w/in phils
without legally being incorporated or w/o lawful
authority so to act.
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QW is directed to corp itself or entity but officers
w/in that entity to question their authority, QW is
not the proper remedy. Proper lang kung govt
officials. Mangyayari dun intra corporate
dispute. Wala pakialam ang RP or govt dyan kc
sino ba ang nga ask? Diba solgen or pub prosec or
private person entitled to PUBLIC OFFICE.
So par c only situation where corp is acting
without a license.
RULE 67
We now proceed to Rule 67 Expropriation.
Expropriation is the means of exercising one
of the inherent powers of the state and what
is this power?
Eminent domain.
What is eminent domain?
Inherent power of govt to take prop for pub
purpose upon payment of just compensation.
Lets go back to QW, why this is really a SCA,
OCA you must allege you cause of action and
prove it diba, your right was violated and you
suffered injury, in QW mag file govt or pub prosec
or private person entitled to pub office, pero sino
ang mag proprove? Na merong authority to
hold office?
The respondent. Burden of proof is with him,
ipakita mo na meron kang authority. Kaya sya
SCA, baliktad kung sino respondent you prove.
This is the special feature of QW.
Okay back to expropriation.
It is the procedure to exercise power of eminent
domain.
What are the requisites to validly exercise
with respect to power of eminent domain?
1. There is legal authority to take
2. It is for public purpose
3. Just compensation given
4. There must be due process, this is the
most impt thing.
What are the 2 stages in expropriation?
1. The determination of authority to exercise
expropriation
2. The determination of value of just
compensation.
Authority to exercise expropriation, because
under the law, who has the authority?
The state and thru the law, since it is an inherent
power of legislative dept.
Need not even be in consti because eminent
domain, police power and taxation are inherent
powers of the state. Inherently lodged in the
legislative branch of the govt = congress but it
may also be delegated. So you determine kung
meron silang authority to exercise the power of
eminent domain and to expropriate. WON taking
is for public purpose.
2nd stage is determination of amount of just
compensation. These are 2 stages class and
remember this involves multiple appeals and
record on appeal is applicable here.
How is expropriation commenced? By
complaint? By verified complaint? Or by
petition?
By verified complaint.
And the prop which may be the object of
expropriation, what kinds of property?
Real or personal property.
Ung real property, right of way, ung lupa.
Personal property, halimbawa meron kang
program para pang process ng drivers license ung
software pra mas madali ang pag process. Or ung
sa SSS pra unified identification for all of us, you
designed it.
Expropriation is not necessary kung payag na
ibenta sa govt magiging negotiated contract
nalang yan. Kung ayaw mo, that is the time govt
will file complaint for exprop.
Software is a special form of personal property
because it is a product of your intellectual creation
under law of property.
Painting of historical value pede I exprop pra
ilagay sa museum.
A complaint for exprop, what should be
alleged?
The prop subject of exprop must be described.
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What else?
The interest of the person in the property.
Who will be the plaintiff?
The govt or RP example RP thru DOTC or DOH.
Defendant?
Owner of prop to be exprop.
Or anyone who is in interest of prop.
What must be alleged by plaintiff in
complaint?
Allege his interest or claim or right or authority.
Since court will first determine the authority of
plaintiff the expropriator.
And?
That it is for a public purpose.
Yun ang mga impt and material allegation
authority and public purpose and description and
defendant should be owner, possessor or occupant
or person in interest of property SM of exprop.
Should there be summons?
Yes. We apply rules in respect of ordinary civil
action.
What if not RP or national govt will exprop
but a local govt unit, also by verified
complaint? Example, andaming informal
settlers sa private prop? So gagawin ni
mayor bibilhin ung lupa kc sayang daw
botante daw un. So do they have the power?
Yes, delegated power.
In that case, how is exprop commenced? By
complaint?
By enacting a local ordinance, city council must
pass an ordinace before they can exprop.
This is a distinction of exprop by NG and by LGU.
What court has jurisdiction over a complaint
for exprop?
RTC or MTC depending on the jurisdictional
value.
What is the cause of action here?
WON they have authority to exprop and if they
have power of eminent domain.
When defendant is served with summons, usually
di lang isa ito maraming defendants, lalo na nung
ginawa ung SCTEX.
When they are served with summons to
acquire jur over them, they should file
answer. w/in what period?
No period stated, so it is the period stated in the
summons, depends on the judge, 15d or 30d.
Is a motion to dismiss allowed to be filed?
No.
What if the defendant has a ground to
dismiss the complaint?
It may be allowed if for lack of jurisdiction
because it may be raised at any stage even at the
earliest opportunity.
So except lack of jurisdiction, MD is not allowed.
All the other grounds must be set up as defense if
they object to the exprop.
Can the defendant file an answer with
Cunterclaim?
No
Cross calim or third party complaint?
No. Those are prohibited pleadings.
The defenses must be alleged in the answer,
if there is failure to raise in the defense
what is the consequence of that?
The court may still permit amendment for 10d.
Beyond 10d?
No longer allowed.
Effect of failure to file an answer in an
exprop case? Declaration of default?
No. kailangan tlga mag pariticipate ang
defendant, he does not totally lose his standing in
court. Unlike in OCA. Kasi kahit sabihin ng court
na hindi na question ang authority but here is
another stage.
What if sabi ng defendant, okay na bayaran
nalang ako di q na lalabanan ang exprop,
instead of answer, what may be filed by
defendant?
He may manifest that there is no objection. And
enter his appearance with respect to the exprop.
96 | P a g e
Section 2 is very important because here govt can
already take over prop even if there is no final
decree of exprop yet.
When may govt enter upon a prop or take
possession thereof under section 2?
SECTION 2 ENTRY OF PLAINTIFF UPON
DEPOSITING VALUE WITH AUTHORIZED
GOVT DEPOSITARY.
Upon the filing of the complaint or at any time
thereafter and after due notice to the defendant,
the plaintiff shall have the right to take or enter
upon the possession of real prop involved if he
deposits with the authorized govt depositary an
amt equivalent to the assessed value of the prop for
purposes of taxation to be held by such bank
subject to the orders of the court. Such deposit
shall be in money, unless the court authorizes the
deposit of a cert of deposit of a govt bank of RP
payable on demand to the auth govt depositary.
If personal property is involved, its value shall be
provisionally ascertained and amt to be deposited
shall be promptly fixed by the court.
After such deposit is made, the court shall order
the sheriff or other proper officer to forthwith place
the plaintiff in possession of the prop involved and
promptly submit a report to the court with service
of copies to parties.
Initial deposit for assessed value for taxation
purposes and not fair market value, upon filing of
the complaint. Usually mababa to kc mababa ang
sa assessors and not fair market value.
Initial deposit of such upon what
institution?
Land bank lang.
Pde na ba mag take over ang govt sa prop
mo?
Yes.
Is notice and hearing required?
No. Notify lang na may notice na may nagfile na
complaint and nag deposit na ako and mag issue
na ang court ng writ of possession, thats how the
power of eminent domain is, napaka pervasive
diba.
Please remember requirements under section 2.
Deposit of course should be in money.
Purpose of deposit? Can you consider it as
advance payment?
Yes, idededuct na ung initial deposit na un.
Compare rule 67 with republic act 8974.
RA 8974 pertains to act to facilitate right of way
projects for NG infrastructure projects.
Under rule 67 sec 2 payment shall be deposited
for taxation purposes upon filing of complaint, to
authorized govt depositary.
In RA 8974 involvels national government
infrastructure project (NGIP), only here
applicable.
When may govt here enter or take
possession of prop?
Upon payment of the fair market value = 100%
Mag shell out agad ang gobyerno ng pera.
Fair market value or whichever is higher.
Made to the bank?
No, directly to the owner.
So mas maganda tong ra 8974, wala nang
deposit, kung value is 100M it will be given
directly to you upon filing of complaint but applies
only to NGIP and not to all other projects of govt.
REPUBLIC V. GUINGOYON case: SC
exhaustively discussed here the distinction
between the issuance of writ of possession upon
filing of complaint between rule 67 and ra 8974.
So sa ra 8974 there is immediate payment of prop,
100% fair market value upon filing of complaint,
directly to the land owner.
Sec 2 rule 67, initial deposit only to the govt bank,
mas maganda ung ra 8974 but as I have been
emphasizing only applicable to NGIP. Not to LGU
projects.
Under the case the SC defined what are the NGIP
included.
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Engineering works, service contracts, projects
undertaken by gocc, covered by build operate and
transfer law (BOT law) yun lang, outside of that,
sec 2 of rule 67.
Read the case.
So last time, we were discussing about
expropriation. We said that there are two
stages of expropriation. What are they?
First stage is the determination of the propriety of
expropriation, if it is for public purpose or if the
plaintiff has the authority to expropriate. In fact,
order of expropriation may be issued.
Is the order of expropriation appealable?
Yes, by record of appeal. IN expropriation, there
are two issues to be resolved. So while the RTC is
determining the just compensation, an appeal can
already be made on the order of expropriation
through record on appeal.
Now, if there is an appeal for the order of
expropriation, will it affect the proceedings
of the court in the determining just
compensation?
No. So the court will proceed.
By issuing the order of expropriation, last meeting
we were discussing about the plaintiff taking over
the possession of the property already upon filing
of the complaint with due notice to the defendant
and making a deposit.
When there is an appeal on the order of
expropriation, will it now prevent the
government from taking over the property?
No. The plaintiff cannot be prevented from taking
over the property expropriated.
What if on the appeal, the CA decided that
the expropriation was not for a public
purpose?
Sabi ng CA hindi valid yung expropriation, so
restoration and payment of damages.
Now, will the RTC still proceed with the
determination of just compensation? Is there
a need to proceed?
No more. Kasi di nga valid yung expropriation.
Kahit ma-determine yung just compensation,
wala namang authority. So that is the effect.
Now, second stage is the determination of
just compensation by the RTC. What is just
compensation?
Just compensation is equivalent to the fair market
value of the property at the time of its taking or
filing of the complaint whichever comes first. It
includes the consequential damages less the
consequential benefits. But in no case shall the
consequential benefits exceed the consequential
damages, or the owner be deprived of the actual
value of his property so taken.
At what point will the determination of just
compensation be made?
At the filing of the complaint or taking of the
property, whichever comes first. So usually, yung
gobyerno magtatake-over na ng property mo bago
magfifile ng complaint, in that case just
compensation will be determined at the time of
taking. Ngayon nag-file ng complaint, walang
taking, just compensation will be determined from
that point.
Now, how would just compensation be
ascertained by the court?
Through the commissioners appointed by the
court. When we were discussing about trial by
commissioners, one of the actions where trial by
commissioner is mandatory is expropriation for
ascertainment of just compensation.
What are the qualifications of a
commissioner to be appointed?
The commissioner must be competent and
disinterested. So there is no requirement that the
commissioner should be a lawyer. Usually, ang i-
a-appoint is isang nominated ng plaintiff, isa sa
defendant, isa sa court. Usually ang ina-appoint
ng court yung branch clerk of court niya. At least
lawyer yun, alam niya yung rules. Yung sa
defendant, usually accredited appraisers, at isa
sa plaintiff from the government.
Now, the appointment of the commissioner
is mandatory. And what are the duties or
functions of a commissioner in
expropriation proceedings?
One of the functions is to receive evidence. So
meaning, the plaintiff and the defendant should
present evidence before the commissioners.
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After the hearing, what would be the duty
now of the commissioners?
The commissioners shall make a report to the
court of all their proceedings.
And is that report conclusive upon the
court?
No. The court may accept the report, recommit the
same to the commissioners for further report of
the facts, or it may set aside.
What are the requirements so that the court
can reject the report totally?
The court cannot just whimsically reject or set
aside the commissioners report. But as what we
have studied, the court may reject a part or accept
a part of the commissioners report.
Now the determination of just compensation is
purely a judicial function. That is the reason why
the report of the commissioners is not binding or
conclusive upon the court because the court has
its own determination and has to be guided only
by the commissioners report. So the report is
merely recommendatory.
So the judgment on just compensation, is
this appealable?
Yes, by record on appeal. In expropriation, there
are multiple orders which are final the order of
expropriation and decision on just compensation,
which are both appealable and therefore, record
on appeal should be filed.
If the government expropriates a property,
what is the extent of expropriation?
It may be the entire property, or only a portion.
Now, what is the remedy of the land owner if
there is non-payment of just compensation
by the government when there is already a
decision of the court which is final and
executory, and yet the government has not
paid the landowner?
To file a claim to the Commission on Audit for just
compensation. This is the first. As we have
discussed, you cannot file a motion for execution
against public funds. So in this case of non-
payment, the landowner can file claim before the
COA.
But let us say that he has remained unpaid
for a period of more than 5 years, what is the
remedy?
The previous owner can recover the property.
So those are the rules. So if there is non-payment
of just compensation, the landowner is not
entitled to recover the property. The remedy is to
file before the COA. However, the SC, in
Republic vs. Lim, held that if the non-
payment is for more than 5 years for the
time of entry of judgment, the landowner
may now recover the property.
Now, let us say that an order of expropriation was
issued in favor of the government. Ngayon, wala
ng budget ang gobyerno. Can the government
abandon or file a motion to dismiss the
compliant for expropriation?
No. It is very clear under Section 4 of Rule 67. So
the government cannot abandon. Ginamit na nya
property ng tao tapos biglang sasabihing Ay
ayaw ko na, wala na akong pera. So under
Section 4. It is very clear that the government
cannot abandon or move to dismiss the complaint.
Kung sasabihin niya wala ng budget, that could
be a ground but upon a proper motion, not just
abandoning the property.
Pero paano yung deposit?
Hindi na pwedeng kunin ng gobyerno. In that
case, it would just serve as rentals for occupation
of the property. Kaya nga class mas maganda sa
national infrastructure projects, kung ano man
ang mangyari sa project, bayad ka na 100%,
immediately and directly to you.
Let us say that in the property sought to be
expropriated by the government, there are
so many claimants, so there is uncertain
ownership. What is the remedy or
procedure to be taken?
To pay a sum of money before the court
In that case, what would the court do with
the money? Ang sabi mo, deposit would be
deposited before the court, and?
The court should give the money to the person
entitled to it.
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Now, after payment of just compensation,
what are now the rights of the government
over the property?
The government has the right to take possession
of the property.
What about the defendants?
The defendants have the right to be paid of course
just compensation. At kailangan ibigay niya yung
title to the government kasi binayaran na siya ng
government.
RULE 68
Now we proceed to Rule 68 pertaining to
foreclosure of real estate mortgage. So this is
judicial foreclosure of real property, and does not
cover personal property. Because there is real
estate mortgage, this presupposes that there is a
loan. And the loan was not paid. Now, what are
the remedies of the creditor?
Specific performance for collection of money or to
foreclose the real estate mortgage
So if you decide to foreclose the real estate
mortgage, can you still file a complaint for
collection of sum of money?
No.
If you would file both actions against the
same loan, what would be the effect of that
on your action?
Dismissed on ground of multiplicity of suits due to
splitting cause of action
Now, Rule 68 is judicial foreclosure of real
estate mortgage. Can there be extra-judicial
foreclosure of real estate mortgage?
Yes. There must be special power of attorney for
the mortgagee to extra-judicially foreclose the
property. So nag-execute ka ng real estate
mortgage, may SPA ka na binigay ka sa kanya. In
that case, he has the choice whether to foreclose
extra-judicially or judicially.
What if you did not give him SPA to
foreclose the real estate mortgage, what is
his remedy?
Only judicial foreclosure or collection of sum of
money
Pero class, pro-forma na yan. Nakalagay na sa
real estate mortgage, may SPA na yung
mortgagor na kapag di siya nakapagbayad,
ipapa-extra-judicially foreclose yung property.
And ang nag-eextra-judicially foreclosure e notary
public lang.
Now, under the judicial foreclosure, what
procedure will be applied?
Ordinary civil action. So mahaba ang proseso
nyan.
How do you commence an action to foreclose
a real estate mortgage? Petition or
complaint?
Complaint. So pag nagka-ganyan, yung ordinary
civil action ang procedure and gagawin natin. Ang
haba niyan. Yung stages na pinag-aralan natin.
Unlike sa extra-judicial foreclosure, through the
notary public and then in a matter of months
tapos na yun. Ibebenta na yung property in a
public auction.
In a complaint for a foreclosure, what must be
alleged in the complaint?
- Date an due execution of the mortgage
- The assignment of the mortgage if any
- The names and residences of the
mortgagor and the mortgagee
- A description of the mortgaged property
- A statement of the date of the note or
other documentary evidence of the
obligation secured by the mortgage
- The amount claimed to be unpaid thereon
- The names and residences of al persons
having or claiming an interest in the
property subordinate in the right to that
of the holder of the mortgage, all of whom
shall be made defendants in the action
So yung mga allegations na yun ay importante
specifically yung loan obligation kelan siya naging
due for the court to determine kung hindi nga
nabayaran yung loan and is there really a ground
now to foreclose a real estate mortgage. So after
hearing, nadetermine ng court, meron ngang
pagkakautang hindi nabayaran. So hindi naman
nag-file ng collection suit, pinapa-foreclose niya
yung real estate mortgage judicially, the court will
now render judgment.
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Now, when the court renders judgment, does
the court immediately order the foreclosure
of the real estate mortgage?
No. In judicial foreclosure, there is equity of
redemption.
Dun ba sa judgment, let the real mortgage be
foreclosed?
No, there is an equity of redemption.
What is the period to exercise the equity of
redemption?
90-120 days from the entry of judgment.
To do what?
For the mortgagor to redeem the property by
paying the loan obligation. Wherefore judgment is
hereby rendered finding the defendant liable to
pay the loan P5 million plus interest at the rate of
12% per annum from the time the loan became
due and demandable. Not from filing of the
complaint kasi loan to eh. Nakalagay naman sa
real estate mortgage kung kelan nagdue. And
nakalagay dun that the defendant is given a
period. Ako 120 days, kinukumpleto ko na para
maexhaust lahat ng remedies para mabayaran
within that period from entry of judgment. That is
equity of redemption.
If the mortgagor still fails to pay within that
period, will it now warrant a foreclosure of
the real estate mortgage?
Yes.
Equity of redemption in the judicial
foreclosure of real estate mortgage. Is there
right of redemption in a judicial
foreclosure?
GR: there is no right of redemption.
Xpn: if the mortgagor is a bank then there is right
of redemption.
In extrajudicial foreclosure of mortgage is
there right of redemption?
Yes.
Halimbawa, the amount of your loan is P5 million,
and your property is foreclosed but the property at
the public auction was only sold at P3 million, so
ther is still a balance of P2 million.
Under rule 68 judicial foreclosure, can there
be deficiency judgment?
Yes.
How could defeciency judgment be
recovered under rule 68?
Under rule 68, there is no filing of independent
action. A mere motion. Finoreclose mo na nga,
ayaw mo ng collection suit tapos ngaun my
deficiency magccollection suit. Imagine the filing
fees. A mere motion in the same proceeding.
In extrajudicial foreclosure, is there
deficiency judgment?
No, there is no judicial proceeding. Notaryo
publiko ang nagforeclose ng proprty mo. Hindi
siya pwede mag utos.
What is the remedy?
By filing of an independent action for collection of
sum of money. Un ang mas maganda naman sa
judicial foreclosure. Pag my deficuency judgment,
motion ka na lang. Marerecover mo un. Sa
extrajudicial foreclosure, mas madali, pero pag
may kulang, my deficiency, you will file an
independent action for collection suit.
RULE 69
Partition
Under rule 69, this presupposes existence of co
ownership. Under the civil code, if there is co
ownership, later on, co owners can ask for
partition. That is the substantive law. Rule 69 is
the procedural law on how to effect partition.
Which court has jurisdiction?
Mtc or rtc. Depending on the value of the property
subject of partition.
What is the prescriptive period for
partition?
There is no prescriptive period.
Why is that so? When may a co owner
demand partition?
Anytime. Because the law discourages the state of
coownership. It has no juridical personality.
Unlike a corporation or a partnership. A co owner
may demand at anytime a partition of the
property.
Xpns:
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 There is a limit to the partition of the
property which should not exceed 10
years.
If the property is donated or inherited,
there is a prohibition as to the partition,
should not exceed 20 years.
When the partition is impossible or such
would render the property unserviceable.
What kind of properties are covered under
rule 69?
Real and personal properties.
What are the modes of partition?
By agreement of the parties - no filing of
the case. Mag aagree na lang kayo
through extrajudicial foreclosure.
By judicial proceedings.
Who may be the plaintiff in an action for
partition?
A co owner.
Defendant?
All other co owners.
What are the issues in partition?
Is the plaintiff really a co owner. Is there right to
demand partition. The coownership must be
established. The extent of the share of the parties
in the partition.
This involves different stages.
1. If the court determines that the plaintiff is
really a co owner and has the right to the
property and the defendants are co owners,
then the court will issue an order of
partition.
Is it appealable in itself?
Yes, because partition pertains to different stages
and just like expropriation, There are multiple
appeals.
So from the order of partition you said that it is
appealble because it is already a final order. It
determines the right to partition.
In that case what would be filed by the party
appealing? Notice of appeal or record on
appeal?
Record on appeal
2. The judgment of partition on itself.
In the complaint for partition, this is commenced
by filing a verified complaint. What must be
alleged in the complaint.
The ascertainment of the value of the
property. It will vest jurisdiction to the
court.
That the plaintiff has legal right over the
property. That he is a co owner.
Co ownership exists.
The nature of the property.
The restriction of the property.
If the court issued an order of partition,
once the court issued an order of partition,
sasabihin ng court there is really a right to
partition, may the parties even in a judicial
partition, agree among themselves that they
will divide the properties?
Yes. So pag nadetermine na ng court na co owners
kayo may right to partition pwede na kayo mag
agree.
The agreement will be submitted to the
court. What will the court do?
To confirm the agreement. Hindi yan binding
kung hindi yan icconfirm. No need for
confirmation if you do it extrajudicially, pwede n
mag agree lang ang parties. But in judicial
partition every action should have the approval or
confirmation of the court.
If the parties cannot agree on the partition
what will happen now?
The court shall appoint not more than three
disinterested and competent commissioners.
What would be the duty and functions of the
commissioners?
Receive evidence from the parties to show the
extent of their share over the property.
In that case what is the purpose of those
evidence?
That evidence will show how much of the property
belongs to a party. The evidence will show how
much is the share kasi hindi naman lagi equal
yan. Co ownership pressumption equal. Pero there
could be an agreement na mas malaki ung sa
isang co owner at less ung sa isa. In that case that
would be the function of the commissioner. To
determine the share and how should the partition
be effected.
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After the hearing the commissioners will
submit a report to the court. Is that
conclusive?
No. The court may agree to the decisions of the
commissioner or set aside them.
The function of the commissioner really is to effect
partition and determine how much is the share
based on the evidence given by the parties. But
the findings of the commissioner is not binding.
Does the commissioner have the authority to
resolve or rule on the issu eof title or
ownership?
He has no authority to do such. Hindi nya pwd
iresolve un. The least he could do is to report to
the court. Include that as part of the report to the
court. The court will resolve the issue of title or
coownership.
Under the law on property, if the property
cannot be divided without rendering it
unserviceable, what is the remedy?
The property may be assigned to one willing party
who would pay the other co owners for their share
in the property.
That is juridical partition. Partition by law. It also
applicable to properties which could be physically
divided. There is no prohibition. Ung lupa kahit
physically divided the co owners could agree
assigning it to one co owner or just selling it. That
is what provided under section 5.
What is the obligation of that co owner to
other co owners?
The co owner has to pay the other co owners for
their share.
What if walang gustong tumanggap?
The property may be sold to public auction.
Who may sell at public auction?
The commsisioners. Yan ang function ng
commissioners. Kasi ang function nila is to effect
the partition.
What is the effect of the judgment of
partition?
Kung may judgment na tayong 3 meron n taung
mga shares. Halimbawa ng real property was
divided among us 1/3 each. So nagrender na ang
court ng judgment of partition what is the effect of
that judgment.
Produce conclusive right of co ownership between
the parties for their particular share.
So owner na tau ng 1/3. Hindi na lang ideal share.
Is judgment for partition appealable on
itself?
Yes.
By what mode of appeal?
Ordinary appeal through record on appeal.
Multiple appeals.
If there is an order pertaining to accounting, d ba
sa co ownership at the time of the partition,
magkakarun un ng rendering of accounting. What
are the obligations with respect to repairs.
With respect to the improvements. Meron
bang order of accounting?
Yes. That is also appealable on itself.
The judgement on partition, the co
ownership incurred obligation, may utang
tau kay ms. Balingasa, may utang tau kay
mr. Magsombol, because of that partition are
their claims now barred?
No. The existing rights is to be recognized.
Although, under the rule in partition the law is
silent on whether creditor should be notified.
However, logically, the creditors should be notified
so that they could participate during the partition.
So an action in partition these creditors should
also be notified. So that their rights do not be
prejudiced.
Halimbawa hindi sila ninotify that would not
prevent them from claiming or pursuing their
claims especially if they were deprived due
process and defrauded.
RULE 70
Forcible Entry and Unlawful Detainer
What are the kinds of actions for recovery of
possession of real property?
1. Accion interdictal
2. Accion publiciana
3. Accion reinvidicatoria
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What are the actions covered by accion
interdictal?
1. Forcible entry
2. Unlawful detainer
The substantive law is the law on property. An
owner has the right to vindicate his title to
theproperty. One of the rights of the owner is
possession.
They are called ejectment. Ang ejectment is either
forcible entry or unlawful detainer. But they are
different from each other.
What is forcible entry? What is unlawful
detainer?
Forcible entry is effected by force, intimidation,
threat, stealth and statregy. Unlawful detainer is
the unlawful detention by the person of a property
which is originally legal but afterwards after the
expiration of the right to hold the possession
becomes illegal.
In forcible entry, at the inception the possession is
illegal. In unlawful detainer, in the beginning it
was legal but it became illegal by reason of certain
circumstances.
What do you mean by strategy?
One who took over the property employed
techniques in order to take the property.
How about stealth?
Secretly or clandestinely.
How about force?
There will be physical take over of the property
that results to ejectment of the owner. Ung
tresspassing. You need not execute state of war.
The mere factna puamsok ka dun, you are
considered as tresspasser. That is used by force
already.
In forcible entry before you file an action, is
demand necessary?
No.
How about in lawful detainer is demand
necessary?
Yes.
Within what period is the unlawful detainer
be filed?
Within 1 year from the date of last demand.
If you make 5 demands, january, feb, march,
april, may 2015.
When will you count the one year period?
From the last demand.
In unlawful detainer, will demand for
payment be enough?
Let us say for example, mr. Cruz is renting an
apartment from you and he has not been paying
for 5 months, you want to eject him from the
property so demanded payment of unpaid rentals.
Will that be enough for you to file an action
for unlawful detainer?
No, demand must be for payment and vacation. To
pay and vacate the property. If not to vacate to
comply with the terms of the contract. So those
are the two demands that you must do.
Mr Cruz let us say that the demand was only
to pay and you file an unlawful detainer,
what is the effect of that?
In that case the court will dismiss your complaint
outright because that is a jusrisdictional
requirement.
And which court has the exclusive
jurisdiction for cases of unlawful detainer
and forcible entry action?
It is the MTC.
What if you are claiming unpaid rentals of
10M will it still be lodge before the MTC?
Yes still with the MTC regardless of the amount
of the unpaid rentals.
Now what is the issue to be determined and
resolved by the court in action for
ejectment?
Possession only. Physical material possession
How about ownership? Does the MTC have
the jurisdiction to resolve on the issue of
ownership in an ejectment suit?
Yes but only provisional
Let us say that you are the defendant in an
ejectment suit and you raised the defense that you
are the owner of the property, you said I already
have a deed of sale for that. The court then
decided in your favor and the MTC dismissed the
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complaint against you saying that you have a
title over the property since you bought the
property. Question: Mr Ilagan filed a complaint
against you before the RTC, Recovery of
ownership saying that he is the real owner of the
property. Can you now Mr. Cruz file a motion
to dismiss the complaint filed by Mr Ilagan
for res judicata?
Res judicata will not lie when the determination
of ownership was made in the MTC and would not
bar any action between the same parties involving
title to the property if the action is brought
seasonably before the proper court.
Mr Ilagan so we said a while ago that in
action of unlawful detainer demand is
necessary, both demand to pay and vacate or
to comply with the terms of the contract.
What is the form of demand that is
acceptable to the court?
It may be a written notice or an oral demand.
So pwede ung oral demand but how can you
prove oral demand?
Through testimonies of disinterested witnesses
What rule will apply in ejectment action. Do
we apply the procedure of ordinary civil
action?
No. So with ejectment cases, apply the Rule on
summary procedures.
Is there a full blown trial?
No. so sa ejectment cases walang presintahan ng
testigo.
How would you now substantiate your
complaint or defenses?
Position papers, affidavits and counter-
affidavits. Magme-meet lang kau ng kalaban nyo
preliminary conference, mediation , JDR.
Everything will be submission of position papers,
affidavits and counter- affidavits and all
pleadings must be verified, kc nga walng trial at
testigo.
So what are the pleadings allowed?
Complaint, Compulsory counter claim, cross claim
, answer
What is the effect if the defendant failed to
file an answer?
The action will not be dismissed. The court will
render judgment based on the position papers. So
there is no declaration of default. Under Rules on
summary procedure a motion to declare in default
is prohibited.
Now preliminary conference is conducted.
What now is the purpose of preliminary
conference?
Possibility of amicable settlement, necessity of
amending pleadings, obtaining stipulations or
admissions of facts and documents at saka diba
importante limitations of issues
What is the effect of the plaintiffs failure to
appear in the preliminary conference?
It shall be caused for the dismissal of his
complaint.
And how about if the defendant fails to
appear?
Judgment will be rendered based on the evidence
submitted by the plaintiff
Can the court dismissed the case outright?
Basahin mu ung section 5 of rule 70.
Section 5 of Rule 70: The court may from an
examination of the allegations in the complaint
and such evidence as may be attached thereto,
dismiss the case outright on any of the grounds for
the dismissal of a civil action which are apparent
therein. If no ground for dismissal is found, it
shall forthwith issue summons.
So if there is an apparent ground based on the
allegations on the complaint the court can dismiss
outright.
And what are those grounds?
Prescription, Lack of jusrisdiction , res judicata
So halimbawa ako ung plaintiff, may
allegations ako that the defendant failed to
vacate the property from the date of my last
demand May, 12 2013. In that case, is there a
ground to dismiss the case?
Yes.
On what ground?
Prescription kc diba the action must be filed
within one year from the last demand at hindi
lang yun. Pwede ding lack of jusrisdiction kc upon
the lapse of 1 year, it must be taken to RTC.
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Under Section 20 Rule 70, Are provisional
remedies available in Rule 70?
Yes. Under section 20, meron dyang provisional
remedies. The provisional remedy of preliminary
mandatory injunction. And you studied this in
property. Recovery of possession within 5 days
from the filling of complaint, the plaintiff may ask
the court for a preliminary mandatory injunction.
So PMI is a remedy granted under Rule 70.
MTC decided against the defendant and
ordered him to vacate the property? Is that
decision appealable? Yes, what is the mode
of appeal?
By ordinary appeal. Notice of appeal to RTC
With the filling of notice of appeal to the
RTC, is the decision stayed?
No the decision is immediately executory but
nevertheless execution may be stayed under
section 19.
What are the conditions under section 19?
The conditions are: there must be an appeal and a
bond called Supersedeas bond and that must be
approved by the court and at the same time
deposit reasonable value to cover the use and
occupation of the property during the appeal. So
un lang from MTC to RTC.
Ung appeal sa RTC, sabi ng RTC the decision
of the MTC is affirmed. Is the decision of the
RTC appealable? What mode?
Yes appealable. Petition for review to CA under
Rule 42 since RTC here is exercising its appellate
jurisdiction.
Is the decision of RTC stayed upon filling of
the petition for review?
NO
In that case, how is it stayed?
Upon the issuance by preliminary mandatory
injunction.
Is there a need to file supersedeas bond?
Hindi na. Wala nang supersedeas bond. kaya nga
I want to emphasized that magkaiba ung
procedural stay from MTC to RTC. Pag RTC to CA
the only way to stop immediate execution of the
decision of RTC issued in the exercised of its
appellate jurisdiction is to obtain a TRO or
injunction.
And then talo pa rin sa CA so aakyat pa sa SC,
gayun din immediately executory unless SC
issued a TRO.
Now Mr Cruz, let us say that that the amount of
unpaid rentals is 1M pesos, ang problema, hindi
pa nabyaran ng tenant mu ung water and
telephone bills. Can you include that in your
claim against the defendant in action for
unlawful detainer?
No. you need to file a separate action. And the
basis of that is section 17 of rule 70. It is clear
under section 17 of rule 70 that you can only
recover rentals, reasonable cost for the occupation
and use of property and attorneys fees. Hindi
included dun ang mga bills na naiwanan.
Against whom a judgment in ejection
enforceable?
Against any person claiming right from the
defendant, defendant, successors in interest, ung
mga nakikitulog lang dunany person claiming
right from the defendant
RULE 71
CONTEMPT
What is contempt?
Contempt is a disobedience to the authority,
justice or dignity of the court because it interrupts
the court proceedings. It also pertains also to
disorderly behavior or violent language against
the court.
What are the kinds of contempt?
Direct and Indirect
What is direct contempt and indirect
contempt?
Direct contempt are those committed in the
presence of the court while Indirect Contempt are
those which are not committed in the presence of
the court.
Yes, such actions in direct contempt are also
called contempt in facie curiae while in indirect
contempt, constructive contempt.
In Direct contempt, what is the punishment?
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If committed against the MTC, a fine not
exceeding 200 or imprisonment not exceeding 1
day or both

E kung RTC and higher court?

A fine not exceeding 2000 or imprisonment not
exceeding 10 days or both

But under section 1 of Rule 70, what are the

acts which constitute direct contempt?
Misbehavior in the presence of the court,
disrespect towards the court, offensive
personalities towards others

How about refusal to be sworn?

Yes, refusal to be sworn or to answer as a witness
or to subscribe an affidavit or deposition when
lawfully required to do so.

Offensive behavior, inaaway mu ung kapwa

abogado mu, ung mga witness at ung mga tao s
loob ng court or ung judge inaawy mu na, hindi
mu na ginagalng

Now.. insults, threatening language or

derogatory remarks in your pleading. Is that
direct or indirect contempt?
It is direct contempt. Derogatory remarks against
the judge.

And I assigned you a case on that prosecutor

baculi vs judge belen. Fiscal niya saka judge nag-
away. Ang issue dito sa case ung mga pinagsasabi
ng fiscal sa judge sa mga pleadings nya.

So direct contempt is punished summarily.

The decision in direct contempt, is it
appealable?
No it is not appealable. The remedy is certiorari
or prohibition.

The punishment could either be a fine or

imprisonment. If it is imprisonment, pwede kang
mag petition for certiorari but you should post bail
kasi ipapakulong ka or you could file a bond.

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