Pre-Bar Notes in Civil Procedure - Dean Jara

PRE-BAR LECTURES IN REMEDIAL LAW - Dean Virgilio B. Jara CIVIL PROCEDURE Procedure always begins with substantive law. It is impossible to talk a bout procedure without touching on substantive law. The important substantive laws in relation to procedure are the Judiciar y Reorganization Act of 1980 (BP 129), the Judiciary Reorganization Act of 1948, and their amendatory laws. These substantive laws provide for the jurisdiction of the courts. These are the laws that created the courts, which resolve actual controversies between litigants. We have an integrated judicial system, with the Supreme Court being the only Constitutional Court. Take note that the Sandiganbayan is only a Constituti onally-mandated court. The jurisdiction of the Supreme Court is given in the Constitution and n ot in BP 129. But the Judiciary Act of 1948 also speaks of the Jurisdiction of t he Supreme Court. The question arises: Didn t BP 129 repeal the Judiciary Act of 1 948? The answer is NO. The repealing clause of BP 129 only repealed the provisio ns of the Judiciary Act of 1948, which are inconsistent with the provisions of B P 129. There is no conflict between BP 129 and the Judiciary Act of 1948 because BP 129 speaks nothing about jurisdiction of the Supreme Court. Besides, in Sec. 9, BP 129, there is a qualifying phrase therein which provides that the Court of Appeals possesses appellate jurisdiction over cases except those falling within the appellate jurisdiction of the Supreme Court in accordance with the Constitut ion, the provisions of this Act, and of sub-paragraph (1) of the third paragraph and sub-paragraph (4) of the fourth paragraph of Section 17 of the Judiciary Ac t of 1948. Notice that in the Constitution, in the Judiciary Act of 1948 and the Ju diciary Reorganization Act of 1980, jurisdiction is classified into original, ap pellate and concurrent . One of the purposes why BP 129 was enacted is, to do away with concurrent jurisdiction. But although this was the purpose, we cannot reall y do away with concurrence - and by implication, it still applies. An example is, under the Constitution, the Supreme Court exercises origi nal jurisdiction over public ministers and consuls. However, BP 129 grants the s ame to the Regional Trial Courts. Since the Constitution does not use the word ex clusive , hence, both courts exercise concurrent jurisdiction. Another example is the vesting of the Constitution unto the Supreme Cour t of original jurisdiction over certiorari, prohibition, mandamus, quo warranto and habeas corpus cases. BP 129 grants to the Court of Appeals original jurisdic tion over the same cases whether or not in aid of its appellate jurisdiction . Henc e, reading the Constitution and BP 129, three courts have original jurisdiction over certiorari, prohibition, mandamus, quo warranto and habeas corpus cases - t he Supreme Court, Court of Appeals and the Regional Trial Court. This simply mea ns there is coordination and congruence in these courts when it comes to these c ases. The conclusion, therefore, is the three courts exercise original and concu rrent over the above-mentioned cases although BP 129 does not mention the term co ncurrent . The petitioner in any of these cases is given three choices - he may go directly to the Supreme Court, the Court of Appeals or the Regional Trial Court. Should this be the interpretation in light of BP 129? Under Sec. 4, Rule 65, th e petitioner is not given much choice because the Supreme Court has included thi s Principle on the Hierarchy of Courts meaning, the petitioner should first file t he petition for certiorari, prohibition, mandamus, quo warranto and habeas corpu s cases with the Regional Trial Court or the Court of Appeals before resorting t o the Supreme Court although it has original jurisdiction over the same petition . Also, under BP 129, the Court of Appeals has original jurisdiction over certiorari, prohibition, mandamus whether or not in aid of its appellate jurisdic tion . The qualifying phrase whether or not in aid of its appellate jurisdiction is not found in the Constitution. Similarly under BP 129, this phrase is not found

in the original jurisdiction of the Regional Trial Court over the same cases. So why is there such a qualifying phrase? Take note of the Judiciary Act of 1948, where the Court of Appeals was also given original jurisdiction to try certiorari, prohibition, and mandamus but only in aid of its appellate jurisdict ion. When BP 129 was enacted, it desired to give the Court of Appeals original ju risdiction whether or not it is in exercise of its appellate jurisdiction, hence , the change or amendment. Does the law still use the qualifying phrase in aid of its appellate juri sdiction in allocating the power to try certiorari, prohibition, and mandamus? Th e answer is YES, when it comes to the Sandiganbayan which tries petitions for ce rtiorari, prohibition, and mandamus cases, but only in aid of its appellate juris diction. When it comes to the appellate jurisdiction of the Supreme Court, there seems to be an inconsistency between the constitutional provision on this matter , and that contained in the Judiciary Act of 1948. The constitution says, that th e Supreme Court shall have the power to review, revise, modify or affirm on appe al or on certiorari, as the law or the Rules of Court may provide, cases involvi ng , then there is an enumeration of five sentences, such as the constitutionally o r validity of a treaty, law, executive order, where the jurisdiction of an infer ior court is in controversy and so on. In the Judiciary Act of 1948, it is expre ssly provided that the appellate jurisdiction over these cases is exclusive. In other words, while the Constitution gives to the Supreme Court appell ate jurisdiction over these cases, the Constitution does not tell us whether the appellate jurisdiction is exclusive. Unlike in the Judiciary Act of 1948, it se ems that the appellate jurisdiction of the Supreme Court over the cases mentione d in the Constitution - that is, the power to review, revise, reverse, modify or affirm on appeal in cases mentioned in the Constitution - is no longer exclusiv e. It is plainly the appellate jurisdiction of the Supreme Court. It means to sa y, there is nothing wrong if the Court of Appeals, for instance, decides to take cases brought to it on appeal. After all, the decisions of the Court of Appeals can still be reviewed by the Supreme Court through a petition for review on cer tiorari under Rule 45. In the enumeration of cases cognizable by the Court of Appeals, BP 129 makes use of the descriptive words original and exclusive , when it comes to the auth ority of the Court of Appeals to annul judgments of the Regional Trial Court. So BP 129 says, that the Court of Appeals exercise original and exclusive jurisdic tion to annul judgments rendered by the Regional Trial Courts. When the law says original and exclusive - well, the message is simple - it is only the Court of Ap peals that can try and decide at the first instance a case involving the annulme nt of a decision rendered by the Regional Trial Court. In other words, a petition to annul a judgment rendered by a Regional Tr ial Court and filed before the Supreme Court will not be entertained by the Supr eme Court. The Supreme Court does not have jurisdiction to entertain at first in stance a petition to annul a judgment of the Regional Trial Court. It is only th e Court of Appeals which is vested with authority to annul a judgment rendered b y the RTC. Since the Court of Appeals can annul a judgment rendered by the RTC, the n does it follow that the Court of Appeals can also annul the judgment rendered by the Metropolitan Trial Court? The answer is NO. The annotation of jurisdictio n under BP 129 is that a petition to annul a judgment rendered by trial courts t o the Court of Appeals is limited to judgments rendered by the Regional Trial Co urt. It does not extend to annulment of judgments rendered by an inferior court, by the Metropolitan Trial Court. Now for purposes of annulment of judgments, all you have to do is to tur n your Rules of Court to Rule 47. Does it mean to say now that a decision of an inferior court, the Metrop olitan Trial Court, is immune from annulment because BP 129 speaks only about th e Court of Appeals annulling judgments of the Regional Trial Court? Well, if you read Rule 47, the answer is NO. In the last section of Rule 47, it is provided that annulment of judgment rendered by an inferior court (MTC), is cognizable by

the Regional Trial Court. Where did the Supreme Court get the idea that a judgment rendered by an inferior court would also be the subject of petition to annul the judgment and c onfer it upon a Regional Trial Court? If you read BP 129, there is nothing menti oned in BP 129 about the annulment of judgment rendered by an inferior court. BP 129 speaks only about annulment of a judgment rendered by the Regional Trial Co urt. So, it would be logical, and others will agree, that since BP 129 speaks on ly about annulment of a judgment of the Regional Trial Court, there is no such t hing as annulment of judgment rendered by an inferior court. But again, here comes the last Section of Rule 47, which tells us that t here could be a petition for the annulment of a judgment rendered by an inferior court. What is the justification for including this section in Rule 47, conside ring that jurisdiction is substantive law and not a matter of procedure, over wh ich the Supreme Court has authority? Then, the justification is that under BP 12 9, the Regional Trial Court is a court of general jurisdiction. As a court of ge neral jurisdiction, the Regional Trial Court, can try and decide all kinds of ca ses and controversies, which are not allocated especially to other courts. What is now the justification in saying, that a Regional Trial Court is a court of general jurisdiction? Does BP 129 say so? The answer is NO. BP 129 do es not tell us expressly that the Regional Trial Court is a court of general jur isdiction. While BP 129 does not tell us expressly that the Regional Trial Court is a court of general jurisdiction; there is however, a mention that Regional T rial Courts have exclusive original jurisdiction over all types of cases and iss ues, which are not especially allocated to other courts. That is the justificati on for considering that the Regional Trial Court is a court of general jurisdict ion. In this context, the Supreme Court cannot be considered as a court of a general jurisdiction. The Supreme Court is a court of limited jurisdiction. If w ere going to follow also BP 129, the Court of Appeals is a court of limited juri sdiction. Municipal Trial Courts, Metropolitan Trial Courts are also courts of l imited jurisdiction. It is only the Regional Trial Court that is considered as a court of general jurisdiction because of the vesting of allocation of authority unto Regional Trial Courts, over all kinds of cases that have not been especial ly allocated to the other courts. We do not find a similar vesting upon the Supr eme Court, the Court of Appeals or inferior courts. We must also consider, in relation to jurisdiction, that it is axiomatic in procedure that jurisdiction is a matter of substantive law. We have come acr oss this axiom several times that jurisdiction is a matter of substantive law. Tha t is not a very accurate statement of the principle of jurisdiction. It is jurisdiction over the subject matter or the nature of the action that is a matter of substantive law. But when it comes to the jurisdiction over the pe rson of the parties , the jurisdiction over the person of the plaintiff , jurisdictio n over the person of the defendant , jurisdiction over the res , or jurisdiction over t he issues , these aspects of jurisdiction are no longer substantive in character. They are purely procedural. So what is covered only by substantive law is jurisd iction over the subject matter or the nature of the case. The other aspects of j urisdiction, jurisdiction over the person of the litigants, jurisdiction over th e issues, jurisdiction over the res or the thing involved, is a matter of proced ure. That s why we find in the Rules of Court provisions concerning service of sum mons, for service of summons affects jurisdiction of a court over the person of the defendant. That is no longer the turf of substantive law. BP 129 allocates j urisdiction unto the various courts - enumerated in the law, and this refers to jurisdiction over the subject matter of the litigation, or over that nature of t he case. While the Court of Appeals and the Supreme Court exercise appellate juri sdiction, the same is true with Regional Trial Courts. The Regional Trial Courts also exercise original and appellate jurisdiction. In our judicial system there is only one court, which exercises plainly original jurisdiction - that is, the Municipal Trial Court or Metropolitan Trial Court. It is not hard to understand why a Metropolitan Trial court cannot be co

nferred appellate jurisdiction, just like the Regional Trial Court or the Court of Appeals or the Supreme Court. It s because there is no court lower than the Met ropolitan Trial Court so it cannot be allocated appellate jurisdiction power to review decisions rendered by other courts. When it comes to appellate jurisdiction, you will notice that the appell ate jurisdiction of the Court of Appeals is much broader than the appellate juri sdiction of the Supreme Court. Generally, when you are faced with a problem on a ppeal, your first instinct should always be that the proper appellate court is t he Court of Appeals. If you go through BP 129 or the Constitution, the Supreme C ourt exercises appellate jurisdiction over various instances. In fact, when a de cision is rendered by a quasi-judicial body, chances are the decision of this qu asi-judicial body or agency is reviewable not by the Supreme Court but by the Co urt of Appeals, as a general rule. So your first instinct whenever it comes to a question of appellate jurisdiction is that, the Court of Appeals exercises appe llate jurisdiction. For this matter, you have to read Sec. 9 of BP 129, which te lls us the scope of the appellate jurisdiction of the Court of Appeals, compared to the appellate jurisdiction of the Supreme Court. Now we go to the Regional Trial Court. The original jurisdiction of a Re gional Trial Court is divided by BP 129 into two parts - purely original jurisdi ction, and the original and exclusive jurisdiction. So the jurisdiction of the R egional Trial Court, when it comes to purely original jurisdiction, is limited t o cases of certiorari, prohibition, mandamus, quo warranto, habeas corpus and it s original jurisdiction over cases involving ambassadors, public ministers and c onsuls. It is in the exercise of original and exclusive jurisdiction where BP 12 9 enumerates several instances cognizable by the Regional Trial Court. The first civil action cognizable by the Regional Trial Court exercising exclusive original jurisdiction covers cases which are not capable of pecuniary estimation. BP 129 does not give us the standard or yardstick in ascertaining w hether or not a civil action is capable of pecuniary estimation. So we have to d epend on jurisprudence on cases decided by the Supreme Court, where the standard , if we are going to summarize the cases decided by the Supreme Court, is that, if the recovery of money is only incidental to the relief that is prayed for in the complaint, that action is not capable of pecuniary estimation. The usual example given is that, a complaint for specific performance pl us a prayer for recovery of damages. There is a prayer for recovery of damages i t is true, but it is not the principal relief that is sought by the plaintiff so that, where the case is for specific performance, that is a civil action which is not capable of pecuniary estimation, hence, cognizable exclusively by the Reg ional Trial Court. But there are instances where the recovery of money is the principal rel ief that is sought in the complaint or the petition, and yet the case is classif ied as one which is not capable of pecuniary estimation. For instance, in an exp ropriation proceedings or eminent domain, it is not correct to say that the reco very of money is the principal relief. Payment of just compensation is one of th e principal reliefs that will be sought by petitioner. Another example is the foreclosure of real estate mortgage. If a mortgage e files a complaint for the foreclosure of mortgage, and the mortgage is founded upon contract of loan which has not been paid, a contract of loan that has been defaulted, the principal purpose of the mortgagee in filing a petition to forec lose a mortgage is to recover this unpaid loan. In fact, in a foreclosure of rea l estate mortgage, if the debtor pays the loan, the foreclosure proceedings will become academic, they will be mooted and they will have to be dismissed. So in a foreclosure of real estate mortgage that is founded on a contract of loan whic h has not been paid, the complaint foreclosure of mortgage will always carry wit h it a relief for the payment of the loan. In these instances, since it is pretty obvious that the purpose of the pl aintiff is to recover a sum of money, does it not mean to say now that foreclosu re of real estate mortgage is an action which is capable of pecuniary estimation

? Well according to the Supreme Court, even if the principal purpose for the for eclosure of mortgage is to recover an unpaid loan, still, foreclosure of mortgag e is an action which is not capable of pecuniary estimation. We apply that same principle to expropriation proceedings. Even if the purpose is expropriating pro perly is to pay just compensation which is always in terms of pesos and centavos , the complaint for expropriation cannot be considered as an action that is capa ble of pecuniary estimation. The case is still an action, which is not capable o f pecuniary estimation. Why is this so? There are two instances where the recovery of money is th e principal issue that is the sought by the complaint or the petition, and yet w e don t consider these actions as actions that are capable of pecuniary estimation . The answer is, in these two actions, there is another principal issue that is involved. And this other principal issue must first be decided before the recove ry of money, which is another principal issue to be resolved by the Court. In foreclosure of mortgage, the first principal issue that should first b e resolved by the Court is whether or not the mortgagee has the right to foreclo se. Is that capable of pecuniary estimation? Of course that is not capable of pe cuniary estimation. Also in expropriation proceedings, the first principal issue is, whether or not the plaintiff has the right to expropriate. So that is always the issue t hat must be resolved by the Court in expropriation proceedings, whether or not t he plaintiff possesses the right to expropriate the property. Again, that questi on is not capable of pecuniary estimation. So the second principal issue that revolves around the payment of money c annot be determined by the Court unless this first issue is resolved. Can not th e Court in a foreclosure proceeding order the payment of the loan, and then deci de the issue of foreclosure? Is that possible? Before the Court can resolve the issue of payment of the loan, the Court must first adjudicate the issue of wheth er or not the plaintiff has the right to foreclose. Now we apply the same principle in expropriation. Can not the court immed iately order the payment of just compensation and then later on decide whether o r not the plaintiff has the right to expropriate? It is not possible. The court must first determine whether or not the plaintiff has the right to expropriate, and if there is affirmative ruling that is the only instance where the court can rule on the issue of payment of just compensation. One of the cases allocated to the RTC exercising exclusive and original j urisdiction is a real action, a case involving title to or possession of real pr operty where the assessed value exceeds P20,000 or P50,000 as the case may be. Going back to the examples we had a while ago, that is the foreclosure of a real estate mortgage, and expropriation of real property, do we not consider foreclosure of real estate mortgage and expropriation of real property as real a ctions? Don t they involve title to or possession of real property? Of course, the y do because expropriation of real property, the State or the expropriating agen cy of the State takes over the possession of real property. The same is true wit h foreclosure of real estate mortgage. The collateral, the security, is going to be sold at public auction, and the ownership and possession of the collateral w ill be taken over by the highest bidder. So, do we now classify expropriation of real property and foreclosure of real estate mortgage as real actions? The answ er is YES, they are so classified. But then, if they are so classified, why can we not make the case fall within the jurisdiction of the inferior court where th e assessed value of the real property does not exceed P20,000 or P50,000, as the case may be? Well, the answer is we cannot do that because it is also one which is capable of pecuniary estimation. In other words, if an action possesses several characteristics, that, the i ssue is one that is not capable of pecuniary estimation but it is also simultane ously a real action, it is always cognizable by the RTC. In other words, that fe ature of not capable of pecuniary estimation will always prevail over the other ch aracteristics of the action being a real action. That is the reason why foreclos

ure of real estate mortgage or expropriation of real property will always be cog nizable by the RTC. We do not factor in the assessed value of the property in as certaining the jurisdiction of courts. If the real property involved in litigation does not have an assessed val ue, could that happen? The answer is YES. There are several properties in the co untry which have not been assessed for tax purposes. In other words, they don t ha ve any assessed valuation at all in the office of the municipal or city assessor or the provincial assessor. So, how do we now know / determine the jurisdiction of the court if the property involved has no assessed value? Well, all you have to do is to go to the neighboring lots, until you locate the property that has an assessed value. And that will be the basis in ascertaining the jurisdiction o f the court. But we should note that assessed valuation of the property plays an impor tant role in determining the jurisdiction of the court, only if the property is real property. But when the property is personal property, we can forget about a ssessed value as the basis in determining the jurisdiction of the court. You see , in our system, we don t generally base assessed valuation to personal property. So, if the case is for the recovery of a car, the jurisdiction of the cou rt will not be based on the assessed value or even the market value of the car. Now, if the plaintiff seeks to recover property, a car, how do we determine the jurisdiction of the court? Jurisdiction is determined by the valuation given by the plaintiff to the car. So, if the plaintiff in the complaint says that the ca r is worth P500,000, then the case is cognizable by the RTC. Supposing that the valuation given by the plaintiff of P500,000 is really bloated. It is unreasonable. Will the case still fall within the jurisdiction o f the RTC? The answer is YES. Jurisdiction of the court in the recovery of perso nal property will depend on the valuation given by the plaintiff in his complain t. But in our system, after the filing of the complaint, the defendant is given the chance to present his side by responding to the complaint by filing an answe r. Can not the defendant in his answer now set-up the defense that the court does not have jurisdiction because the legitimate value of the car is only P150 ,000? The answer is NO. The jurisdiction of the court when it comes to the recov ery of personal property, or for the recovery of money for that matter, will dep end on the allegations contained in the complaint. Even if the valuation given i s exaggerated or bloated, the jurisdiction of the court will always be ascertain ed by allegations contained in the complaint. Does it mean to say then that in personal actions, the jurisdiction of th e court would rely solely on the whim and caprice of the plaintiff? The answer i s YES. All he has to do is to bloat his claim if he wants to have the case filed before the RTC. If the debtor owes the creditor only P150,000 but in his compla int the creditor says that the debtor owes him P1M, that the case will be cogniz able by the RTC. For the purpose of determining the jurisdiction of the court, w e rely solely on the allegation embodied in the complaint. We do not take into a ccount the truthfulness or falsity of these allegations. The truthfulness or fal sity will be determined later on by the court but that will not affect the juris diction of the court. That is simply the principle of adherence of jurisdiction. Once a court acquires jurisdiction over a case based on the allegations contain ed in the complaint, the court continues to exercise jurisdiction until the case is finally adjudicated. We should always remember that the jurisdiction of the Metropolitan Trial Courts has been expanded. So, even admiralty and maritime cases are now cogniza ble by the inferior courts depending on the amount involved. In the law providin g for expanded jurisdiction of inferior courts, in RA7691 which was enacted in 1 994, there is a section which says that five years from the effectivity of the l aw, the amount will be increased in so far as Metro Manila courts are concerned from P200,000 to P400,000 and then, for inferior courts outside Metro Manila fro m P100,000 to P200,000. That was in 1999. There is also a provision which says t hat for the second five-year period, the jurisdiction of inferior courts shall b e increased to P300,000. I thing we are in the second-five year period. As of no

w, the jurisdiction of inferior courts outside Metro Manila should be raised to P300,000, but with respect to Metro Manila inferior courts the jurisdictional am ount will be P400,000. In classroom examinations, it is a standard question to ask whether or no t a complaint for the recovery of P1M is cognizable by a RTC or by an inferior c ourt. Most of the time, the answer given is the whole claim is cognizable by the RTC. That s NOT correct. Under the expanded jurisdiction of inferior courts, ther e are three items that should be excluded in the determining the court s jurisdict ion when it comes to recovery of money, interests, attorney s fees, damages and ch arges of whatsoever kind should not be included in ascertaining jurisdiction of the court, but they should be included in fixing filing fees. So, if the complaint is for the recovery of the plaintiff of P1M, it is n ot correct to say right away that the case is cognizable by the RTC. That case c ould be cognizable by the inferior court depending on the details of P1M embodie d in the complaint. If the principal sought to be recovered is only P200,000 but the balance of P800,000 covers expenses, attorney s fees, damages and interests, the case is cognizable by an inferior court. So we always factor in the excluded items in determining the jurisdiction of courts whenever it comes to the recovery of money. Do not jump to the conclusion right away that the complaint for the r ecovery of more than P200,000 is cognizable by the RTC. That amount of P400,000 pertains only to the principal sought to be recovered by the plaintiff. If the a mount in excess of P400,000 will already include expenses, attorney s fees, and ot her charges, there is a chance that that case will be cognizable by an inferior court. In certain cases, the problem that comes out where the plaintiff fills a complaint for the recovery of the principal sum of P500,000 before the RTC, and during the hearing, the plaintiff introduces evidence which convinces the court that the plaintiff is entitles not only to P500,000 but to P1M. The first inquir y is, could it be done? Could a complaint for the recovery of P500,000 and up, b ut with an award of P1M because is what the evidence has clearly demonstrated? T he answer is YES. If there is a complaint to recover P500,000, the plaintiff can introduce evidence to show that he is entitled not only to P500,000 but to P1M. That is allowed, if the defendant does not object to the presentation of this e vidence. The pertinent rule is Rule 10 when it comes to this situation, the prov ision in Rule 10 on amendment to conform to evidence. So, if there is a complain t for the recovery of P500,000 and the plaintiff introduces evidence that he is entitled to P1M, and there is no objection that is interposed by the defendant, the court will admit the evidence. And after admitting the evidence, the court c an give an award of P1M, although that is not the figure that is sought by the p laintiff in his complaint. Supposing that in the same case, the plaintiff seeks to recover P500,000. So, the case is filed before the RTC. During the trial, the plaintiff is able t o prove that his entitlement is only P150,000, which is below the jurisdictional amount of the RTC. Can the RTC render validly a judgment for the payment of P15 0,000? The answer is YES. That is the principle of adherence to jurisdiction. On ce the court acquires jurisdiction over the case, the court continues to exercis e jurisdiction until its final adjudication. If we start with a complaint of P50 0,000 but the amount that should be awarded is only P150,000, the RTC has jurisd iction to ve that award of P150,000 even if this amount is below the jurisdictio nal amount given in BP 129. If it is the other way around, then we follow the principle of ancillary jurisdiction. Here is a complaint for the recovery of P150,000. The case is cogn izable by an inferior court. During the trial, the plaintiff presents evidence t o show that he is entitled not only to P150,000, but to P700,000. Can the inferi or court give an award of P700,000? The answer is NO. This time, the inferior co urt cannot give an award of P700,000 because the inferior court will be violatio n its limited jurisdiction. The jurisdiction of the inferior court is limited to either P200,000 or P400,000. So, that rule works only if it is a RTC that s trying the case, the value c ould be reduced. But when the case is before an inferior court and the amount to

be awarded goes beyond the jurisdictional amount given in BP 129, the court can not give an award of P700,000. What should the plaintiff do if he is able to prove that he is entitled t o P700,000 but the court cannot give an award for this amount? Well, one of the options given to the plaintiff is just waive his entitlement to the excess of P4 00,000 because the inferior court can give an award of up to P400,000 or P300,00 0, as the case may be. But if he insists a ward of P700,000, that decision will be null and void because it goes beyond the jurisdictional limits given by BP 12 9 to an inferior court. You should also take note that the jurisdiction of the RTC in cases that used to be adjudicated by the Juvenile and Domestic Relations Court which were a llocated to the RTC has also been changed, given the creation of Family Courts w hich exercise exclusive and original jurisdiction over these cases: guardianship , adoption, family-related cases. They are now cognizable by the Family Courts. They are no longer entertained by the RTC. When it comes to jurisdiction of inferior courts, which we say has alread y been expanded, can we now assert rightfully that inferior courts should also b e treated as courts of general jurisdiction because of their expanded jurisdicti on, i.e., maritime cases, probate, etc. Practically all cases that are triable b y the RTC could not be tried by an inferior court, depending on the amount invol ved. Does it not make these courts, courts of general jurisdiction? The answer i s NO. Even if we take into account the expanded jurisdiction of inferior courts, they are still courts of limited jurisdiction. As we said earlier, it is only t he CFI that is vested with authority to try and decide cases of any kind, which are not allocated to other courts. This provision is not contained in the alloca tion of cases given to inferior courts by BP 129 and the amendatory statutes. In the jurisdiction of inferior courts, in section 33, BP 129, you should memorize the very short provision, the qualifying phrase which embodies the tot ality test in jurisdiction. There is a totality test also contained in the Rules of Court but is a very simple one. The complete totality test in determining ju risdiction is found in BP 129 that is in sec. 33. Now, it says that the totality of all the claims shall be the basis in determining jurisdiction, that is the to tality of all claims embodied in one complaint, shall be the test in determining jurisdiction, whether or not these claims arise out of the same or different tr ansaction, or whether they belong to the same or different persons. That is the c omplete totality test in determining jurisdiction, which is not the totality tes t that is embodied in the Rules of Court. Is it proper for BP 129 to provide the totality test in determining juris diction? The answer is YES, because jurisdiction over the subject matter and nat ure of the action is really substantive law. That is a prerogative given exclusi vely to the legislature. So, if you feel that there is any inconsistency between the totality test contained in the Rules of Court and that contained in BP 129, the totality test in BP 129 should always prevail whether or not the claims bel ong to the same or different persons, and whether or not these claims arise out of the same or different transaction. As long as they embodied properly in one c omplaint, the totality of all the claims shall be the basis in determining the j urisdiction of the court. Inferior courts also are given what we call delegated jurisdiction. That is to try land registration and cadastral cases, regardless of the value, if the case is uncontested. The delegation should be limited to properties the values of which do not exceed P100,000. In the vesting of delegated jurisdiction to inferior courts, we should al so notice that the appeal from these cases should not be to the RTC. The cadastr al and land registration cases are tried by an inferior court. The inferior cour t acts as if it were a RTC. So, if there s an appeal from these cases, it should b e brought to the Court of Appeals. This is the only lone instance in the Rules o n appeal, where appeal from a decision rendered by an inferior court is taken di rectly to the Court of Appeals. Generally, decisions rendered by an inferior cou rt are appealable to the RTC. We follow in appeals the step ladder approach, so fr om the inferior court we go to the RTC, from the RTC we go to the Court of Appea

ls. But not when the inferior court exercises its delegated jurisdiction to try and decide cadastral and land registration cases. There is also the vesting of interlocutory jurisdiction, or what BP 129 c alls special jurisdiction of inferior courts, that is to habeas corpus cases whe n judges of the RTCs in that region are absent. This is an exercise of special j urisdiction by inferior courts. In the matter of jurisdiction, you must have met also the term primary ju risdiction. BP 129 does not use the word or the term primary jurisdiction. This term is used in special legislation, like the Agrarian Reform Code. In the Agrar ian Reform Code, it is provided that primary jurisdiction over land reform cases shall be exercised by the Department of Agrarian Reform. So what does primary j urisdiction mean in relation to the concept of jurisdiction given in BP 129? Pri mary jurisdiction refers to situations where the case is cognizable both by the court of justice and a quasi-judicial or administrative agency. But when that ca se needs for its resolution special skills and expertise of an administrative or quasi-judicial body, then jurisdiction should be given initially to the quasi-j udicial body or administrative agency. The jurisdiction of the court can only co me later after the administrative or quasi-judicial body has decided the case. S o whenever the adjudication of litigation needs expertise, the special skills wh ich are not possessed by regular courts of justice, primary jurisdiction should be given to the administrative agency or quasi-judicial body. We also met the term residual jurisdiction in our study of BP 129. Residu al jurisdiction is one that is left to be exercised by the trial court after the case has been appealed to the higher court. The concept of residual jurisdictio n refers to a situation where a case decided by trial courts has been appealed. Generally, our concept is that when a case has been appealed, the jurisdiction o ver the appealed case is now vested with the appellate court, which is correct. But there are certain incidents that could still be decided by the trial court, notwithstanding the perfection of the appeal. These incidents that would still b e decided by the trial court after the perfection of the appeal are covered by R ule 41 and Rule 42, called as the residual jurisdiction of the trial court. Now, we go to the Rules of Court. I suggest that you read BP 129, and rel ate these several sections of BP 129 with the Judiciary Act of 1948 when you stu dy civil actions. You have concentrated too much on your textbooks. There are ma ny provisions of BP 129 and the Judiciary Act of 1948 which are not really touch ed by our textbooks. Although they are self-explanatory, they should also be rea d. Anyway, these laws are very short. They are not lengthy. The Rules of Court on civil actions, the subject of this lecture, is part one of the Rules of Court, which is a product of the Supreme Court. The Supreme Court is given the authority to promulgate rules on pleading, practice and proc edure. These rules of court are designed to be procedural in nature. Although th ey are procedural in nature, there are some provisions in the Rules of Court whi ch acts upon substantive rights of persons. An example is in Criminal Procedure. There is a rule dedicated only to the rights of the accused. It does not mean t hat the Rules of Court is substantive simply because there are some provisions w hich cover the rights of a person. In the same way that we cannot consider the C ivil Code as procedural, simply because there provisions in the Civil Code which refer to the issuance for instance of injunction whereas the concept of injunct ion is purely procedural. But even if we find them in the Civil Code, it does no t mean to say that the Civil Code is a procedural law. The Civil Code, notwith standing these provisions on some procedural principles, remains to be substanti ve in character. So in the same way in the Rules of Court, they contain provisio ns pertaining to the rights of a person, but it does not mean that the Rules of Court have now been converted to substantive law. It remains to be purely proced ural. The first part of the Rules of Court gives us the manner by which it is g oing to be interpreted. Unlike other laws, the Rules of Court should be liberall y construed not in favor of the plaintiff, not in favor of the defendant, not in favor of anybody but for the sole purpose of providing for a speedy and inexpen sive disposition of the case. So, we interpret the Rules of Court liberally, nei

ther in favor of the plaintiff nor the defendant. But according to the Supreme Court, there are certain provisions of the R ules which cannot be interpreted liberally. There are certain provisions which p ublic policy requires to be applied and interpreted strictly, so that the speedy adjudication of cases will not be impaired. A good example of a procedural prin ciple which will always be applied strictly is the procedure on appeal of cases. The Supreme Court has been very emphatic in saying that when it comes to appeal ed cases, the dates provided to perfect an appeal should be applied strictly. Can the Courts disregard the application of the Rules of Court if the cou rts feel that its application will lead to injustice? The answer is no. It is on ly the Supreme Court that can waive the application of the Rules of Court if the Supreme Court feels that its application will lead to an injustice. But the Cou rt of Appeals, the Regional Trial Courts and the inferior courts cannot disregar d the Rules of Court even if these courts feel that the application of the Rules will lead to an injustice. It is only the Supreme Court that is given the privi lege, the waiver of the application of the Rules of Court. Well it s not that hard to understand why the Supreme Court is given this authority. After all, the Rul es of Court is a product of the Supreme Court. Take note of the limitations concerning the prerogative of the Supreme Co urt to promulgate rules in pleadings, practice and procedure. And the first limi tation is that the rule should be uniform in all courts of the same grade, so th at they should have one set of rules applicable to all trial courts, RTCs or inf erior courts. There are certain instances when special rules can be promulgated by the Supreme Court in the adjudication of cases. A good example is the rule on summary procedure. That applies principally to cases that are triable by inferi or courts. Then another limitation is the Rules of Court should not modify, limit or increase substantive rights given by substantive law. By way of history, we should also note that the rules on civil actions th at took effect on 1 July 1997. Before 1997, we have the interim Rules of Court. The interim rules were promulgated by the Supreme Court following the enactment of the Judiciary Reorganization Act, BP 129. Prior to the interim rules of court , we had the rules of court which took effect on 1 January 1964. And before 1 Ja nuary 1964, we had the rules of court which took effect on 1 July 1940. So betwe en 1940 and 1964, we had the same set of procedural rules. Actions in the rules of Court are classified expressly in Rule 1 into: Crim inal actions, civil actions, and special proceedings. The other classification o f action in the Rules of Court are scattered in the different parts of the Rules . For instance, a real action and personal action are both mentioned in Rule 4, for purposes of venue. An action in rem and an action in personam are mentioned in Rule 39, sec. 47. So, when you meet these terms, personal action and real act ion; action in rem and action in personam, all you have to do is to refer to Rul e 4 when it comes to personal and real actions, and then action in rem and actio n in personam under Rule 39, specifically sec. 47, which is execution of judgmen ts. Although sec. 47 does not use the word in rem , it does not also use the word in personam, but the concept of judgments in rem and in personam are embodied in Ru le 39, sec. 47. Jurisprudence has created sub-classifications, like an action quasi-in rem to distinguish it from an action which is pure in re, and an action which is pur ely in personam. Jurisprudence also created another classification when it comes to real and personal actions into mixed actions. So when an action vests the char acteristics of personal and real actions, court decisions call this action as a mixed action. Is it important for a litigant to know the classification of his action, whether it is a special civil action or special proceeding, or whether the actio n is real or personal, or whether the action is in rem or in personam? The answe r is YES. If the action under real or personal, different rules on venue should have to be applied. If the action is in rem or in personam, the effect of the ju dgment will be different. Can an action be in rem and a personal action at the same time? Can an ac

tion be in rem and real action at the same time? The answer is YES. You see the basis for classifying these actions into real or personal, in rem or in personam are different from one another. As we have mentioned, real and personal action are based on their privity to the kind of property involved, whether the propert y involved is real or personal property. When it comes to in rem or in personam, the basis of classifying these actions is the binding effect of the judgment. I f the judgment will bind anybody who has an interest in the case, then the actio n is one that is in rem. If it is purely in personal, the binding effect of the judgment is limited only to the parties involved or the successors in interest. How do we classify an action for the recovery of real property (that is a ccion reinvidicatoria)? Is it a real or personal action? Of course, it is a real action because it involves title to or possession of real property. Is it in re m or is it in personam, or is it a case that cannot be classified as in rem or i n personam? Accion reinvidicatoria, although it is a real action, is an action i n personam. When the action involves real property, title to or possession of real pr operty, it is always a real action. But it does not mean to say that it is an ac tion in rem, because the judgment in an accion reinvidicatoria will bind only th e plaintiff and the defendant and their successors in interest. Accion reinvidicatoria is filed by A against B, for the recovery of title to a piece of land. Let us say that the judgment is rendered in favor of the pl aintiff as the owner of the land. Judgment is now final and executory. So A is n ow the owner of the land. Later on, can X, a third party, file a complaint again st A for the recovery of the ownership of that same land? The answer is YES, bec ause X is not bound by the judgment in the first case between A and B. Here is a n action that involves title to or possession of real property, which is classif ied still as action in personam. Judgment will bind only the plaintiff and the d efendant and their successors in interest. The usual example in textbooks about an action in rem is a land registrat ion or cadastral proceeding. I think that example is the source of answer to the effect that whenever an action involves title to or possession of real property , it should be classified as an action rem. A land registration and cadastral pr oceeding is really an action in rem. It is also a real action because it involve s title to or possession of real property. But it does not mean to say that all actions involving title to or possession of real property are actions in rem. It is only land registration or cadastral proceeding, which is a real action, coul d be classified as action in rem. All other actions for recovery of title to or possession of real property, accion reinvidicatoria, they are real actions but t hey could not be classified as action in rem. They are simply classified as acti ons in personam. If an action or a proceeding involves personal property; therefore, it is classified as personal property. Could it also be an action in rem? The answer is YES. A good example is the intestate proceeding or the settlement of the esta te of a deceased person. That is an action in rem, because the Civil Code says t hat an action for the probate of a will binds anybody that has an interest in th e estate of the decedent. But if the estate of the decedent consists only of per sonal property, that action in rem should be classified as a personal action bec ause it does not involve title to or possession of real property. The point is, when the Rules classify actions in rem, in personam, real or personal, it does n ot mean to say that when an action has been classified as in rem or in personam, they could no longer be classified into personal or real. Even if an action has been classified as in rem or in personam, they could still be further classifie d as real or personal action depending on the nature of the property. The classification of actions into in rem and in personam is also importa nt in ascertaining whether or not jurisdiction could be obtained by the court af ter publication of summons that is in Rule 14. If an action starts as an action in personam, will it remain to be in per sonam throughout the life of the case? For instance, a good example of an action in personam is a complaint for the recovery of money filed by the creditor agai nst the debtor. This is an action in personam. Will it remain to be in personam

throughout the life of the case? The answer is NO. If an action starts as an act ion in personam, it could converted into an action in rem or quasi-in rem depend ing on the conduct of the lawyer for the plaintiff, depending upon the plaintiff himself. How could we convert this action in personam into an action in rem or qua si-in rem? If you read Rule 57 on preliminary attachment, sec. 1 thereof provide s that preliminary attachment could be issued in cases where the defendant could not be served with summons that is by personal or substituted service. Now, the rule is, in actions purely in personam, if the defendant could not be served wi th summons, either by personal or substituted service, the REMEDY of the plainti ff is to ask for the issuance of a writ of preliminary attachment, and then atta ch the properties of the defendant so that the court will acquire jurisdiction t o try the case at least over the attached properties. The attachment of the defe ndant will convert the action in personam into an action in rem or in quasi-in r em so that after the attachment of the properties of the defendant the plaintiff can now go in court and ask permission from the court to cause the publication of the summons, this will enable the court to acquire jurisdiction not over the person of the defendant but over the property he has been attached and the court can go ahead with the trial of the case. So, here is an instance where an acti on starts as an action in personam but it is converted into quai-in rem or in re m as the case may be. Could it be further re-converted into an action in persona m? The answer again is YES. After the preliminary attachment of the property and the publication of summons, there are two possibilities: the first possibility is that the defendant will NOT answer at all. The other possibility is that the defendant will answer the complaint. If the defendant answers the complaint afte r the publication of the summons, the case is re-converted into in personam. So, a case starts as in personam, it is converted into in rem or quasi-in rem and a fter the filing of the responsive pleading, it is reconverted into an action in personam. But if the defendant does file a responsive pleading at all and the court does acquire jurisdiction over his person, then the case remains to be classifi ed as an action quasi-in rem or in rem. Will it make a difference if this action is classified as in rem or quasi -in rem or it is now classified again as an action in personam? The answer is YE S, it makes a lot of difference insofar as the decision, which the court could e ventually render. If the defendant answers and therefore the case are converted from quasiin rem to in personam, the court can render a judgment that will direct the defe ndant to pay the obligation as proven by the plaintiff. Let s give figures. The complaint is for the recovery of P1M. So the case is being tried by t he RTC. If there s no response from the defendant after the properties of the defe ndant have been attached, the case will be treated as an action quasi-in rem. Th e court has the authority to decide the case. But after the trial, if the plaint iff is able to prove the existence and validity of his claim, the court cannot r ender a judgment directing the defendant to pay P1M to the plaintiff. The award of the court will be limited to the value of the property that has been attached . So if the value of the property that has been attached in only P200,000 that i s the limit, which the court can award in that case. But if we reconvert the action quasi-in rem into an action in personam by virtue of the appearance of the defendant or by virtue of his filing a responsi ve pleading, the court later on can render a judgment directing the defendant to pay P1M. What is the justification for this difference in the manner by which t he court can give the award? The reason is that when the action remains to be qu asi-in rem, the jurisdiction of the court is limited only to the property that h as been attached, so the jurisdiction of the court is limited to awarding to the plaintiff the value of the attached properties. But if the defendant appears or files an answer, the jurisdiction of the court will not be limited to the prope rty attached, the jurisdiction of the court will extend to the person of the def endant and, therefore, the court can render a judgment directing the defendant t o pay the entirety of the claim.

In our system, an action is always commenced by the filing of a complaint and, the rule is very clear, that an action is commenced by the filing of the o riginal complaint. So if the complaint is later on amended under Rule 10, whethe r as a matter of discretion on the part of the court, the commencement of the ac tion is always reckoned not from filing of the amended complaint but from the fi ling of the original complaint. The rules also tell us that if an additional defendant is impleaded there after, in so far as the additional defendant is concerned the filing of the comp laint is reckoned from the date of the filing of the original complaint. The jus tification for this difference in the treatment by the Rules is in order to obse rve the rules on prescription in so far as the additional defendant is concerned the period of prescription should be counted from the time that the amended com plaint is filed by the plaintiff. You are also familiar with the doctrine that even if a complaint has been filed a court will not be able to acquire jurisdiction over the case if the doc ket fees have not been paid. The failure to pay docket fees will deprive the cou rt an authority to hear and decide the case. But in subsequent rulings of the co urt, if there is failure to pay the correct docket fees, as long as the plaintif f pays the correct docket fees within the prescriptive period, the court will ac quire jurisdiction. So, what is strictly followed is the non-payment at all of d ocket fees. If the docket fees are not paid at all the court the court is depriv ed of jurisdiction to try the case, but if docket fees are incorrectly paid the plaintiff is given a chance to rectify his error, pay the correct docket fees an d the court will be considered as having acquired jurisdiction from the time of the filing of the original complaint. Before a plaintiff files a case in court, the natural assumption is that the plaintiff has a grievance against the defendant. A person will not go to cou rt and sue somebody else unless this person feels that his right has been violat ed by this other person, and this situation gives rise to the concept of a cause of action. You will note that the Rules say that for every civil action, that s an ord inary civil action, but in Rule1 there is a classification of civil actions into ordinary and special civil actions. But when it comes to the statement of the d octrine on the existence of a cause of action, the law says that for every ordin ary civil action there must be a cause of action. Does it mean to say that when the action is a special civil action there is no longer a need for a cause of ac tion? That will not be a correct assumption. The only reason why the Rules emphasize that there must always be a cause of action to support an ordinary civil action is because there are certain spec ial civil actions, which can be filed in court even without a cause of action. S o it is not possible to draft a rule which says that in all civil actions there must be a cause of action. It s not possible for the court to do that. The Rules also enumerate the special civil actions, and we will take this up later. There are at least two special civil actions, which can be filed prop erly even if there is no cause of action. Meaning to say, that ever, if the plai ntiff has not suffered any violation of his right, he can nonetheless, file this special civil actions. The first is complaint for interpleader, which is the fi rst special civil action. The other one is a petition for declaratory relief whi ch is another special civil action. In interpleader and declaratory relief, ther e is no cause of action that is alleged in the complaint. In interpleader and de claratory relief, the plaintiff does not allege that he has a right and that thi s right has been violated by the defendant. Do we apply the same principle to the other special civil actions? The an swer is NO. Another special civil action is forcible entry and unlawful detainer . In forcible entry and unlawful detainer, the plaintiff cannot file a complaint for forcible entry unless he alleges the plaintiff alleges that he has a right to possess the property and that this right has been violated by the defendant. So in the existence of a cause of action, if the civil action is an ordin ary civil action there must always be a cause of action, otherwise the complaint is going to be dismissed under Rule 16. Failure to allege a cause of action is

one of the grounds for the dismissal of a civil case. But when the civil action is a special civil action there may or may not be a need for the existence of a cause of action. Again, there are two special civil actions whose filing is appropriate ev en if the plaintiff does not allege that he has a right which has been violated by the defendant. The definition of a cause of action will give us the impression that the defendant must have violated the right of the plaintiff. Is it necessary that th e plaintiff wait for the actual violation of his right before he can file a comp laint in court? The answer is NO. You have to relate the definition of a cause o f action to the definition in Rule 2, to the definition of an action that is con tained in Rule 1. In Rule 1 an action is defined as one filed in court for the p rotection or enforcement of a right or the prevention or redress of a wrong. So even before a wrong is committed, as long as there is a threat to violate the ri ght of the plaintiff, the plaintiff can now go ahead and file a complaint in cou rt. So even if the Rules say that a cause of action consist of a violation of a right by the defendant, the plaintiff does not have to wait until his right is a ctually violated before he could go to court. One of the purposes of a civil action is to prevent the commission of a w rong that will violate the right of the plaintiff. A good example is a complaint for injunction. In injunction, the plaintiff will allege that the defendant is threatening to violate his right. So there is no actual violation yet at the tim e of the filing of the complaint for injunction. The definition in the Rules of a cause of action will give us the idea th at a cause of action consist really of two essentials. The first one is the exis tence of a right, and then the second is of course the violation or a threat to violate the right. Is it necessary or is it essential for the plaintiff also to allege that as a result of the violation of his right, that he has suffered dama ges? The answer is NO. The Rules only require that there is a right and that thi s right has been violated. The plaintiff can go to court properly even if he doe s not allege that he has suffered damages as a result of the violation of the ri ght. We take the provisions of the Civil Code as an example. In the Civil Code that is it right , for breach of contract the remedy suggested by the Civil Code of action suggested by the Civil Code is specific performance or rescission of contract with of contract with damages in either case. The Civil Code does not s ay that if the creditor or the right holder files a complaint for specific perfo rmance or a complaint for rescission of contract, he must always accompany his c laim for the payment of damages that is left entirely to the discretion of the r ight holder. So he can file ac complaint for specific performance without includ ing a claim for the payment of damages. He can also file a complaint for resciss ion of contract even without incorporating in his complaint a claim for damages. So in civil cases, as long as the plaintiff alleges in his complaint that he ha s a right and then that right has been violated by the defendant, then he has ca use of action. If these two essentials are present in the complaint, is it possible that this complaint does not adequately allege cause of action? The answer is also Y ES. Even if the complaint has alleged the two essentials that is the existence o f a right and a violation of the right, it is possible that the complaint has no t adequately alleged a cause of action. Why is this so? Because under our presen t Rules there are several conditions precedent required by these Rules before a cause of action could accrue. For instance, prior barangay conciliation is a condition precedent. Anoth er one is arbitration clause in contracts, which contains this arbitration claus e. Another one is the certificate of non-forum shopping, and another one is the requirement in the Civil Code that if the litigation is between members of the s ame family, earnest efforts towards a compromise must have been made before goin g to the court. So again, in a complaint if the plaintiff alleges that he has a right, his right has been violated, it may not be enough to establish a cause of action, he must also allege in his complaint that conditions precedent that are

required by law to be incorporated must be alleged. So if a creditor files a complaint against the debtor for the recovery of an unpaid loan, and the creditor alleges that he gave a loan, the loan has matu red, but it has been unpaid by the defendant, but his case is covered by the req uirement on prior barangay conciliation, the case will be dismissed for failure to state a cause of action. If the creditor also files this complaint but in the contract of loan there is what we call an arbitration clause and then he goes t o court without observing the provisions of the arbitration clause, the complain t will also be dismissed for failure to state a cause of action. So you should always read carefully questions involving the existence or non-existence of a cause of action. The fact that the complaint has alleged the existence of a right, the violation of the right may not be enough to sufficient ly allege a cause of action. Of course as we go further, we will learn that there are some civil cases , which are not covered by the rule let us say on prior barangay conciliation. T here are certain civil actions, which do not come within the coverage on the req uirement that in litigation between members of the same family, earnest efforts towards a compromise must first be made. But the rule is, you should wary about this conditions precedent that is established by other statutes. It is not enoug h to state in the complaint that a right exists and that this right has been vio lated. For this matter, if a case is covered by prior barangay conciliation and there is no allegation that this condition precedent has been satisfied, the abs ence of the allegation does not deprive the court of jurisdiction. The court sti ll has jurisdiction over the case. The ground for dismissal will be founded on f ailure to state a cause of action. In numerous contracts or relations between an d among citizens, the problem that usually arises is the number of causes of act ion that could be sourced from a violation of the right. Does the rule tell us t hat one wrongful act will give rise to only one cause of action? There is such s tatement in the Rules, so do not be misled by a statement which, for instance, c ould be found in some books, which says that one wrongful act will give rise onl y to one cause of action. One wrongful act could give rise to two or more causes of action, depending on the number of rights that are violated by this wrongful act, as long as these rights belong to different persons. This is illustrated by an old case, which you might have read in your stu dy of Torts and Damages. A train belonging to the then Manila Railroad Company w as passing by a village and sparks started to come out of the railroad tracks. T hese sparks caused three houses to be burned. The question was how many wrongful acts were committed by the Manila Railroad Company? There was only one wrongful act of negligence that is sparks came out of the railroad tracks owned by the M anila Railroad Company. Since three houses were burned, does it mean to say that there are three causes of action that accrued from this one wrongful act? The a nswer will depend on how many persons owned the three houses. If these three hou ses belong to three different individuals, this single wrongful act of the Manil a Railroad Company gives rise to three causes of action because, three independe nt rights belonging to three different persons have been violated. So in this ex ample, since three causes of action have accrued from a single wrongful act mean s to say that three complaints could be filed against the Manila Railroad Compan y. The rule is that for every cause of action, one complaint can be filed, t herefore if there are two causes of action two complaints can be filed, if there are three causes of action three complaints could be filed. Supposing that there is just one contract between A and B but the contrac t between A and B require the performance of an obligation in separate installme nts. B, the debtor borrows money from A, the creditor, P1M. The obligation is pa yable on installment, let us say four equal installments of P250,000 each. The f irst installment will be defaulted. Will the default in the payment of the first installment give rise to one cause of action? The answer is YES. So, if the 1st installment will be defaulted tomorrow, next month the creditor can file 1 comp laint for the recovery not of P1M but of P250,000, which is the amount that has

already matured and is unpaid by the debtor. Cannot the creditor recover the who le of the P1M under the example? The answer is NO, because the only amount that is due and payable is P250,000. The balance has not yet matured and the creditor has no right to enforce the collection of the balance of 750,000. Is it possibl e that the creditor after the default of the 1st installment can file a case for the recovery not of P250,000 but of the entirety of P1M? Well the answer is als o YES, provided that in the contract there is what we cal in Civil Law as an acc eleration clause. The default in one installment will cause the entirety of the obligation to become due. But in the absence of an acceleration clause, the rule is the default in the payment of one installment will give rise to one cause of action, so a complaint could be filed for the recovery of the defaulted install ment. If the 2nd installment is also defaulted, then another complaint can be f iled by the creditor because each installment due and unpaid will give rise to o ne cause of action. But the limitation to this rule is that if at time of the fi ling of the complaint all the installments have become due and are defaulted, on ly one complaint can be filed by the creditor. So in our example, if the P1M obl igation of the debtor payable in installments has become due and demandable in i ts entirety at the time of the filing of the complaint, the creditor can file on ly one complaint for the recovery of P1M. If he files four separate complaints f or the recovery of the four defaulted installments, he will be violating the rul e on splitting a cause of action and it is possible that all the complaints will be dismissed by the court. So, the rule is: each installment due and unpaid will give rise to one ca use of action. But if the time of the filing of the complaint, all installments have already become due only one complaint can thereafter be filed by the credit or. In the example, where the defendant binds himself to pay his P1M loan in four separate equal installments even before the 1st installment becomes due, ca n the creditor file a complaint for the recovery of any of the installments or o f the entire obligation? Of course the answer is NO. He cannot because his right has not yet been violated before the maturity of the 1st installment. The credi tor can expect to enforce payment only when the 1st installment matures. Before the maturity of the 1st installment, the plaintiff does not have a right to enfo rce / to compel payment by the debtor of the 1st installment. May there be a situation where the creditor can file a complaint for the recovery of the whole obligation even before maturity of the 1st installment or of the entire loan, as the case may be? Well, this situation is answered by that old case of Blossom vs. Manila Gas, which gave us the rule on anticipatory brea ch of contract. The general rule is that a creditor cannot compel the debtor to perform his obligation before maturity. But if the debtor tells the creditor bef ore maturity that he has no intention at all of paying his obligation, then civi l law considers that as a breach of contract. That is the principle of anticipat ory breach enunciated in the case of Blossom vs. Manila Gas. In procedural law, it is called anticipatory breach; in civil law, it is simply referred to as one w here the debtor loses the benefit of the period. In obligations with a period, th e rule in civil law is that the period perceivably for the benefit of both the d ebtor and the creditor. If the debtor loses the benefit of a period, the obligat ion becomes due immediately. So this is simply the rule on anticipatory breach; it is simply an application of the civil law principle that if the debtor loses the benefit of the period then the obligation becomes due right away. In filing one complaint, founded on one cause of action, the plaintiff wi ll be complying with the provisions of Rule 2. But if he files two or more compl aints founded on the same cause of action, the plaintiff will be violating the R ules and the procedural principle that is violated is the rule against splitting a cause of action. Splitting a cause of action is the act of dividing one cause of action in to several parts and making each part a basis for a separate complaint. In the i llustration that we have given, if the creditor is entitled to recover from the debtor P1M, the creditor should file just one complaint to recover P1M plus the

interest, other charges and attorney s fees. But if the creditor files, let us say , two complaints to recover P1M. The creditor will be guilty of splitting a caus e of action. If the creditor files a 1st complaint for the recovery of only P200 ,000 out of the P1M obligation and then later on he files another complaint for the recovery of the balance of P800,000, then that is clearly a case of splittin g a cause of action, which is not allowed by the Rules. But if you are going to analyze the act of the creditor in filing the com plaints, one for the recovery of P200,000 and the other for the recovery of P800 ,000, even if we assume that the plaintiff is going to win in those cases he wil l only be recovering from the defendant the amount that is really due to him. If he wins in case #1, he will recover P200,000, if he wins case #2, he will be ab le to recover P800,000. The totality of the amount recoverable by the creditor w ill still be P1M, an amount to which he is rightfully entitled. If he does not s plit his cause of action, he files one complaint to recover P1M and he wins in t he same complaint, he will be able to recover P1M, an amount that is rightfully due to the creditor. So, if in the filing of several complaints founded on the same cause, the plaintiff will be able to recover only the amount that rightfully belongs to hi m. Is there any reason at all why the Rules preclude splitting a cause of action ? If we look at the situation from the point of view of recovery by the creditor , there will be no justification for disallowing splitting a cause of action, be cause as we have said even if in all the cases the plaintiff eventually wins, he will recover from the defendant only the amount which really belongs to him. The REASON why the Rules prohibit splitting a cause of action is, there i s a great danger, there is a great possibility that the different courts trying these different cases found on the same cause might render conflicting decisions , which is not good for the court. If we are to analyze further the two cases fi for the recovery of P200,000 led by the creditor, it is possible that in case #1 , the creditor will win; it is also possible that in case #2 for the recovery of P800,000, the creditor will lose the case. If the creditor wins in case #1 but he loses in case #2, then it is hard to explain why he could win in case #1 and lose in case #2 when the two complaints are founded upon the same cause of actio n. It is founded upon the obligation to pay P1M. That is the danger which the ru le on splitting a cause of action tries to prevent the possibility that differen t courts will be rendering conflicting decisions involving the same cause of act ion. In our example, where the creditor splits his cause of action in violatio n of the Rules, what is the remedy of the defendant? The defendant can, of cours e, file a motion to dismiss since splitting a cause of action could lead either to litis pendencia or res judicata. If one of the cases has been decided, then t hat decision, if it becomes final and executory, could be set up as a justificat ion for the dismissal of the pending cases. But if the two cases have not yet be en decided, they are still pending before these two different courts, then, he c an make use of a motion to dismiss founded on litis pendencia. Supposing the defendant does not invoke litis pendencia, he does not file a motion to dismiss, can the court, on its own, dismiss anyone of the cases bas ed on litis pendencia? Well, the answer is YES, and you have to refer to Rule 9, which enumerates the grounds for dismissal and which are not waivable. So, even if a defendant does not avail or does not invoke the dismissal by reason of lit is pendencia, the court on its own, if it discovers the existence of litis pende ncia, can order the dismissal of one of the cases. You have to memorize the nonwaivable grounds for dismissal in Rule 9. (Absence of jurisdiction over the subj ect matter, litis pendencia, res judicata and prescription). At any time the cou rt discovers that these factors are involved in a pending litigation, the court on its own, even with motion coming from the defending party, can order the dism issal of the cases. So, in our example, if the creditor splits his cause of action but the de fendant does not move at all, he does not file a motion to dismiss founded on li tis pendencia, the court could still order the dismissal of one of the cases. In litis pendencia, you should also note that although the court can on i

ts own order the dismissal of a case, the Rules do not authorize the court to di smiss all the cases. If there are two cases filed by the creditor founded on the same cause of action and the defendant invokes litis pendencia as a ground for dismissal, the court cannot dismiss the two cases. The court can dismiss one of the cases and retain the other case. So, in litis pendencia, although it is a vi olation of a procedural principle, the sanction is not dismissal of all the case s but a dismissal of one or some of the cases; but there should be a case retain ed between the plaintiff and the defendant. In our example, which of the two cases will have to be dismissed? Is it c ase #1 or case #2? Generally, it is the subsequent case that should be dismissed but this is just a product of jurisprudence. The Rules do not tell the court wh ich of the cases is going to be dismissed. It relies solely on the discretion of the defending party and also of the court. So, if the defending party files a m otion to dismiss case #1 instead of case #2, then it is case #1 that will have t o be dismissed, and vice-versa. This situation, where a plaintiff splits his cause of action, should also be evaluated in relation to the principle of forum shopping under Rule 7. It is now settled that the requirements of forum shopping are the same as the require ments of litis pendencia. So, we can say as a matter of course that if there is litis pendencia, then, there is also a violation of forum shopping. Rule 7 tells us the contents of the certificate on non-forum shopping, and I said that you s hould also memorize the contents of a certificate on non-forum shopping. If a complaint or other initiatory pleading is filed without the correlat ive certificate on non-forum shopping, this complaint or initiatory pleading wil l be dismissed. Will the ground for dismissal be absence of jurisdiction ? The answ er is NO. The absence of certificate on non-forum shopping has nothing to do wit h the jurisdiction of the court. The ground for the dismissal of the complaint o r other initiatory pleading does not provide for a certificate of non-forum shop ping is failure to state a cause of action. In Rule 7, it is clearly provided th at this deficiency cannot be cured by amendment. So, if a complaint does not con tain a certificate of non-forum shopping and later on the plaintiff discovers th e error, he cannot file an amended complaint that will incorporate a certificate on non-forum shopping. This is one of the deficiencies in a pleading, which is not curable by amendment. So, if the defending party is faced with a situation where the creditor/p laintiff is guilty of splitting a cause of action, Rule 7 gives him another opti on that is: he can file a motion to dismiss based on the violation of the princi ple of forum shopping. As we said a while ago, the elements of forum shopping ar e identical to the elements of litis pendencia. Therefore, if there is litis pen dencia, there is also a violation of the principle of forum shopping. Will it give any advantage to the defending party if he invokes forum sho pping as a ground for dismissal? The answer is YES. In Rule 7, if there is forum shopping, all the cases will be dismissed; unlike in litis pendencia, where one of the cases will be retained. But in forum shopping, if that is the ground inv oked by the defending party, he can ask for the dismissal of all the cases. So t hat he is left with no case to defend at all. Another advantage of invoking forum-shopping instead of litis pendia is t hat, if the defending party can demonstrate to the court that forum shopping was deliberately resorted to by the plaintiff, the dismissal of all the cases is a dismissal with prejudice. Meaning to say, after the dismissal of all the cases, the plaintiff can no longer file a complaint for the recovery of the same claim contained in the various cases. But before the dismissal could be treated as dis missal with prejudice, it must first be shown that forum shopping was resorted t o deliberately. If not resorted to deliberately, there will still be a dismissal of all the cases but the dismissal will be a dismissal without prejudice. The Supreme Court has come with some new decisions describing to us how f orum shopping could be resorted to. Forum shopping could be violated outright, t hat is upon the filing of two or more complaints simultaneously or successively against the same party and founded on the same cause. Or it could be violated if the case is already on appeal. If the trial court has decided a case and then t

he losing party files more than two appeals involving the same judgment. That is also forum shopping. So, bear in mind that this concept of forum shopping could apply at the outset, upon the filing simultaneously or successively of two or m ore complaints founded on the same cause of action and against the same party, o r even if a case has been decided by the trial court, if two or more appeals are brought by the losing party before the same or different appellate court. That will constitute form shopping. In one case, the Supreme Court made a distinction between practices which may or may not constitute forum shopping. In one case involving Gordon, a petit ion for certiorari was filed before the Supreme Court. The lawyers for the petit ioner studied the petition carefully and then they resolved that the filing befo re the Supreme Court may have been erroneous because they did not follow the pri nciple of hierarchy of courts. They came to the conclusion that the petition for certiorari with temporary restraining order should have been filed either befor e the RTC or Court of Appeals. After they realized their error the possibility t hat they violated the principle of hierarchy of courts, they immediately filed a notice to withdraw the petition before the Supreme Court. An hour after filing the notice of withdrawal before the Supreme Court could approve the withdrawal o f the petition for certiorari, the lawyers filed a similar petition this time wi th the RTC. Was there forum shopping on the part of the petitioner? The Supreme Court said, NO. There was no forum shopping because the petitioner and his counsel realized the error and they wanted to rectify the error so there was no filing successively of cases. But in the same decision, the SC cited another almost identical that the SC said there was forum shopping. A petition for certiorari was filed before the SC. After filing this petition with the SC, the petitioner filed a similar peti tion before a RTC. After the petitioner was able to convince the judge of the RT C that the issuance of the TRO was proper in that petition for certiorari, the p etitioner went to the SC and told the SC we are withdrawing our petition for cert iorari. The SC said that was forum shopping because clearly the petitioner in th is case had in mind filing two or more petitions with the idea of obtaining a fa vorable judgment on one of these cases. In this second case, it was very clear t hat the petitioner acted in bad faith. He filed two cases and when he was assure d that one of them would be resolved in his favor he decided to withdraw the oth er case. But in the case of Gordon, after the counsel realized that he has committ ed an error, he filed a petition to withdraw the one filed before the SC and the reafter filed a similar petition before the RTC so that the SC has always been s trict in implementing the rules on forum shopping. It is called a malpractice by lawyers that is filing simultaneously or successively two or more petitions fou nded on the same cause against the same party for the purpose of obtaining a fav orable judgment in any one of these cases. In the case of Gordon, the SC also clarified that the justification for t heir strict implementation on the rule on forum shopping is similar to that of l itis pendencia. In forum shopping, there is always the danger that the courts wo uld be rendering conflicting decisions founded upon the same cause and against t he same party. So again it is now settled that the elements of forum shopping ar e identical to the elements of litis pendencia. So if the defending party is fac ed with this situation, he is given options. The first is to ask for dismissal b ased on litis pendencia. The second is to ask for dismissal on the ground of vio lation of the rules on forum-shopping. We said earlier that if the defending party fails to invoke litis pendenc ia, the court can still dismiss some of the cases by virtue of the provisions of Rule 9. Litis pendencia is one of the non-waivable defenses. Could we apply thi s to forum shopping? The answer is NO, because forum shopping is not one of the grounds mentioned in Rule 9 as a non-waivable ground for dismissal of a case. Yo u will in Rule 9 there are 4 non-waivable grounds for dismissal, these are: lack of jurisdiction over the subject matter, litis pendencia, res judicata and pres cription. Forum shopping is not one of them and besides a violation of the rule on forum shopping will only affect the existence or non-existence of a cause of

action, and this ground is a waivable ground under Rule 16. Failure to state a c ause of action is really a ground for a motion to dismiss but if it is not so in voked, then the defending party is deemed to have waived this as a ground for di smissal of the case. (Break) The opposite of splitting a cause of action is joinder of causes of acti on. While splitting is prohibited by the Rules, joinder of causes is encouraged by the Rules. And you should note the rule mon joinder of causes of action as em bodied in BP 129. Yesterday, we said that the totality rule on determining juris diction of courts involves joinder of causes of action and it is the totality ru le in BP 129 that should always be reckoned with, not the totality rule in the R ules of Court. The totality rule in BP 129 is quite clear when it says that in ascertain ing the jurisdiction of a court when causes of action are joined in one complain t is the totality of all his claims even if these claims arise out of the same o r different transactions and even if these claims pertain to the same or differe nt parties. These qualifications are not contained in the totality test embodied in the Rules of Court. So in the joinder of causes, the assumption is that there are at least tw o causes belonging to the same plaintiff, to the same right-holder. And as prese ntly envisioned, there is hardly any limitation as to the number of causes that could be joined in one complaint by a plaintiff against the same defendant, exce pt those expressly mentioned now in section 5 so that generally, a plaintiff can join in one complaint accion reinvidicatoria and/or complaint for recovery of d amages, and a complaint for recovery of sum of money arising from a loan. This j oinder will be allowed unless some of the limitations contained in sec. 5 are pr esent. Why does the Rule allow joinder of causes even if they arise out of the s ame or different transactions? Well, principally, it s for the economy of time. I n one complaint a court can decide as many disputes as there presented by the pa rties in the same action. Joinder of causes of action should not be interpreted to mean that it alw ays involves the principle of joinder of parties mentioned in Rule 3 Section 6. Joinder of parties is entirely different from joinder of causes of action, ther e could be joinder of causes of action even without joinder of parties. So if t here is just one plaintiff filing a complaint against one defendant, the plainti ff can allege in one complaint a first cause of action, a second cause of action , a third cause of action without limit as to the number of causes that he will be alleging in that complaint. So the singleness of a plaintiff and a singleness of a defendant will all ow the joinder of as many causes of action as there are which the plaintiff is w illing to allege in his complaint unless again the limitations contained in Sect ion 5 are present. One of the limitations is of course joinder of parties, and if there is just one plaintiff and one defendant then this limitation cannot con ceivably arise because joined of parties is based on the assumption that there i s plurality of plaintiff or plurality of defendant or both, that is plurality of plaintiff and plurality of defendant. But if there is just one plaintiff and j ust one defendant then it is hard to imagine how joinder of parties could be mad e applicable. Can the plaintiff in one complaint allege as his first cause of action a recovery of money in the sum of Php500,000 and then as a second cause accion rei nvindicatoria recovery of a piece of land where the assessed value is Php100,000 , the complaint to be filed with a Regional Trial Court even if the recovery of title of property is totally unrelated to the recovery of sum of money? The ans wer is yes, because the Rules allow the plaintiff to allege as many causes of ac tion as he may have against the same defendant. But if he files a complaint inv olving the same causes of action and one of the causes is not within the jurisdi ction of the court, he can still allege the two causes if the complaint is filed before a Regional Trial Court? The answer is YES. So if the first cause of action is for the recovery of a loan in the sum of Php500,000 which is cognizable by a Regional Trial Court and the second cause

is accion reinvindicatoria but the assessed value of the property is only Php5, 000 which is not cognizable by a RegionalTrial Court, the joinder could still be proper as long as one of the causes is within the jurisdiction of a Regional Tr ial Court. But if the same complaint is filed before an inferior court, a Metro politan Trial Court, the joinder would not be proper. If this complaint is file d before a Metropolitan Trial Court while the, while the MTC has jurisdiction ov er accion reinvindicatoria where the assessed value of the property is only Php5 ,000, it does not have jurisdiction over a claim for the recovery of Php500,000. That is one of the distinguishing features now found in Section 5. Again, the re could be joinder of causes before a Regional Trial Court even if some of the causes are not cognizable by the RTC. But this same complaint cannot be filed b efore an inferior court if one of the causes is beyond the jurisdiction of the i nferior court. In the latter case, if the complaint alleges two causes of action, one of which is not cognizable by an inferior court, the inferior court will not dismi ss the complaint , it will only drop the cause of action which is beyond its jur isdiction. So in our example the MTC will not hear and decide the cause of acti on for the recovery of Php500,000 but it will hear the cause of action for the r ecovery of title or ownership of a piece of land whose assessed value is only Ph p5,000. Supposing that all the causes of action are within the jurisdiction of an inferior court, is it possible that there is misjoinder of causes of action? T he answer is also YES. There could also be a misjoinder of causes even if all t he causes are cognizable by an inferior court if some of the causes follow a spe cial procedure or some of the causes are a part of the enumeration of special ci vil actions. To illustrate, unlawful detainer is of course cognizable by an inf erior court, original and exclusive jurisdiction of an inferior court. A cause of action for the recovery of Php250,000 is also cognizable by an inferior court because it is less than the jurisdictional amount of Php400,000 in Metro Manila . Could we join these two causes in one complaint to be filed before an inferio r court? The answer is NO because unlawful detainer will be governed by summary procedure while the cause of action for the recovery of money will be governed by regular procedure. So the court cannot hear one cause following summary proc edure and hear the other cause following ordinary procedure, there will be confu sion on the part of the parties and also on the part of the court. So even if c auses are cognizable by an inferior court or even for that matter a Regional Tri al Court if one of the causes is governed by a special procedure which is not fo llowed in that other cause of action there will be misjoinder of causes of actio n. But again the penalty for misjoinder of causes is not a dismissal of the who le complaint. It is just that the misjoined causes will have to be separated. The Court will continue hearing the cause of action which falls within its juris diction and which follows ordinary procedure. In joinder of causes which involves joinder of parties, the limitation is that the joinder of parties should arise from a situation where the transaction s arise out of the same contract or series of contracts. In joinder of parties i n sec. 6 of Rule 3, the parties involved here are NOT necessarily indispensable parties. The are several causes of action and, therefore, if there are several c auses of action there is plurality of parties involved, but the causes of action arise out of the same transaction or a series of transactions. This is best illustrated in the case which you have learned, the case of Flores vs. Mallari-Philipps, the facts of which are very simple. There was a dea ler of tires. In one transaction, he sold different tires to A and then in a sep arate transaction he sold another set of tires to B. Both A and B failed to pay their respective obligations. What the dealer did was to file one complaint agai nst A and B for the recovery of their respective obligations. The issue involved was: Was there proper joinder of parties? The Supreme Court held there was NO p roper joinder of parties, because even if the contracts entered into were contra cts of sale, the contracts were totally unrelated to one another. So, in joinder of parties envisioned in Rule 3, the causes of action must arise out of the same transaction or series of transaction. In this situation,

there will be misjoinder of parties and the parties misjoined will have to be se parated by the court in trying the case. We should also note that the rules speak of misjoinder of parties and non -joinder of parties, but the Rules do not speak of non-joinder of causes of acti on although there is also misjoinder of causes of action. There is misjoinder of causes but there is no such thing as non-joinder of causes. There could be misj oinder of parties. There could also be non-joinder of parties. Why don t we have non-joinder of causes of action? Well, the reason is simp le. Joinder of causes of action is purely permissive on the part of the plaintif f. If the plaintiff does not want to join his causes of action, nobody can force him to. He can file one complaint for every cause of action that he may have. B ut in the case of parties, there could be misjoinder of parties, there could be non-joinder of parties because of another procedural principle that is compulsor y joinder of indispensable parties. If a litigant is guilty of violating this rule on non-joinder of indispen sable parties, the sanction that could be imposed by the court is dismissal of t he complaint. The reason for the dismissal is not violation of compulsory joinde r of parties but failure to state a cause of action. So, if the rule says that i ndispensable parties must always be joined and a plaintiff is guilty of violatin g the rule, the reason for the dismissal will be failure to state a cause of act ion. In litigations, there must be a plaintiff and there must be a defendant, or one or more plaintiffs or one or more defendants. Where there is a plurality of plaintiffs and a plurality of defendants, the idea of indispensable parties a nd necessary parties will come in. If there is just one plaintiff and one defend ant, we cannot apply the concept of necessary or proper party. There should be p lurality of plaintiff and plurality of defendant before we can apply the concept of necessary or proper party. To illustrate: In a contract of sale or in a contract of loan, if there i s just one lender and there is just one borrower, both the lender and the borrow er are considered as indispensable parties. It is impossible for the lender to f ile a complaint for recovery of the loan without impleading the borrower. But if in this contract of loan, there is one lender and there are two borrowers, then , there is a possibility to apply the concept of necessary or proper parties. Under the Rules, a party is indispensable if his absence will not justify the court from trying and adjudicating the case. If a complaint is filed with a n indispensable party, as we said, the case should be dismissed for failure to s tate a cause of action. Supposing the court does not dismiss the case for failur e to state a cause of action because the defending party does not file the corre lative motion, can the court go ahead to try and decide the case? The answer is YES. But the decision will never become final and executory. The absence of an i ndispensable party will result to the situation where the judgment of the court will never become final and executory. Going back to the loan where there are two borrowers and just one lender, is the lender an indispensable party? Of course, the answer is YES. He is the o nly one who could file the complaint for the recovery of the loan; nobody else c an file the complaint for the recovery of the loan. How about the two debtors, a re they both indispensable or are both necessary parties only? We have now to an alyze the relationship between the two debtors, and the analysis should be cente red on their relationship under the Civil Code. In the Civil Code, if there is a plurality of debtors, the debtors could either be joint debtors or solidary debtors. But in the Civil Code, the presumpt ion is that when there are two or more debtors, they are assumed to be only join t debtors. Solidarity among the debtors will exist only under exceptional cases. So, if we are going to follow the presumption contained in the Civil Code and a pply it to the situation, our assumption will be that these two debtors are not solidary debtors but they are joint debtors. And under the Civil Code, what does this mean if we apply the presumption that the debtors are simply joint debtors ? The consequence is that the law further presumes that debtor #1 is liable for one-half of the obligation and debtor #2 is liable for one-half of the obligatio

n. So if the obligation is to pay P1M and there are two joint debtors, the assum ption is Civil Law is that debtor #1 is liable to pay P500,000 and debtor #2 is liable to pay the other P500,000. The plaintiff now decides to file a complaint. How many causes of action does the creditor/plaintiff have if his debtors are joint debtors? We should ask further, how many rights are violated and how many wrongs have been committed. Is the right of the creditor to recover money from debtor #1 identical to the ri ght of the creditor to recover P500,000 from debtor #2? The answer is NO. The c reditor, in our example, has two rights: the right to compel debtor #1 to pay P5 00,000, and his other right to compel debtor #2 to pay the other half of the obl igation. Since the creditor has two rights that have been violated by these two debtors, the conclusion is that the creditor has two causes of action. Can the creditor file one complaint to recover P1M against the debtor #1? The answer is NO. Because the liability of debtor #1 is only up to P500,000. So , if the creditor wants to recover the entirely of the P1M, we will be forced to join the causes of action in one complaint. He should file a complaint for the recovery of P1M against debtor #1 and against debtor #2. You will note that in t his complaint, he will be alleging two causes of action. There is an application of the principle of joinder of causes of action; at the same time, an applicati on of the rule on joinder of parties. If the creditor files one complaint against debtor #1 for the recovery of P500,000, will he be precluded later on from filing another complaint for the r ecovery of the other P500,000 from debtor #2? The answer is NO, because he has t wo causes of action. His cause of action against debtor #1 is entirely different from his cause of action to recover the claim against debtor #2. So, in this si tuation, both debtors #1 and #2 are indispensable parties, of course, together w ith the creditor/plaintiff. We change the relationship between the debtors from joint debtors into so lidary debtors. In a solidary relationship in the Civil Code, the law says that anyone of the debtors can be compelled to pay the whole obligation. So the plain tiff can file conceivably a complaint against debtor #1 to recover P1M. Under th is concept, the creditor remains to be an indispensable party. One of the two so lidary debtors will also be an indispensable party because the case cannot be de cided unless one of the solidary debtors is impleaded as a defendant. Could we c onsider debtor #2, who has been left out, as an indispensable party? The answer is NO, because even if only one solidary debtor has been impleaded in the compla int, the Civil Code allows recovery of the entirety of the claim against this so lidary debtor. Will that make the other solidary debtor that is debtor #2, as a proper or necessary party? It seems he is neither proper nor necessary party bec ause the recovery of the whole P1M could be have in the same complaint filed aga inst debtor #1. // But if they were joint debtors, debtor #2 will be considered as a necessary party to the first complaint because without the presence of debt or #2, the entirety of the claim of the recovery of the P1M cannot be have. There are other parties mentioned in Rule 3, like representative parties and pro forma or quasi-parties and there have been changes in concept of a repre sentative party. Before 1997, it was enough for the plaintiff to implead only th e representative party. But under the present rules, it is mandatory for the pla intiff to implead the representative party together with the real party in inter est. Now. who are the representative parties? The trustee of an express trust, the guardian of a ward, the executor or administrator of the estate of a deceas ed person they are the representative parties. So if a claim or complaint is fil ed against the guardian, it is not enough for the plaintiff to place in the capt ion Plaintiff vs. A, as guardian. He should identify in the pleading / in his comp laint of the real party in interest, who is the ward. If a complaint is filed ag ainst the executor or administrator, the plaintiff should identify the real part y in interest, the estate of the deceased person whom the executor or administra tor merely represents. If there is violation of this rule, the court can compel the plaintif f to amend his complaint so that the identification of the real party in interes

t could be obtained. If the plaintiff ignores the order of the court requiring h im to identify the real party in interest, could the court dismiss the complaint ? The answer is YES. But the dismissal will be founded on Rule 17 that is dismis sal for failure of a party to obey an order of the court or to comply with the p rovisions of the Rules of Court. You should also note that in situations like this, where a court dismisse s a complaint by reason of the failure of the plaintiff to obey an order of the court or to comply with the provisions of the Rules of Court, Rule 17 says that the dismissal is a dismissal with prejudice, that will amount to res judicata. S o in instances where there is a representative party who has been sued without i dentifying the real party in interest and the court issues an order directing th e plaintiff to amend his complaint so as to identify the real party in interest and there is failure to comply with the order of the court, the court can dismis s the complaint for failure to obey an order of the court or failure to comply w ith the provisions of the Rules. The dismissal under rule 17, again, is a dismis sal with prejudice. It will amount to res judicata. With respect to agents, we have to correlate the provisions of the Civil Code again and the Rules of court, and determine whether or not an agent is a re al party in interest. Both under the Civil Code and the Rules of Court, if the a gent has acted for a principal who is disclosed, the agent is not a real party i n interest. But if the agent has acted in his own name and his principal is undi sclosed, the agent would be a real party in interest. To illustrate: the principal appoints X, an agent for the purchase of a p iece of land, the purchase is consummated but later on the price is not paid. Th e problem of the seller is who is going to be sued for the recovery of the purch ase price. Is it the principal or is it the agent or both? Since in the example, the agent has acted clearly as an agent with a disclosed principal, the complai nt should be filed only against the principal. Supposing the plaintiff files a case against the agent without including the principal, is the complaint defective? The answer is YES. Of course, the com plaint is defective because it has not been filed against the real party in inte rest, there is no cause of action. Is it possible that the agent will not appear in court, he will not even file a motion to dismiss? That is a possibility beca use the agent knows that he is only an agent, so the court will hear and decide the case and then the court will render a decision ordering the principal to pay the purchase price. Let us say that the decision becomes final and executory, can the princip al be compelled later on to pay the purchase price? The answer is NO, because th e principal has been impleaded in the complaint. The party who has been impleade d in the complaint is only the agent and the agent is not the real party in inte rest. So, that is the danger in filing a complaint or filing a claim against a p erson who is not a real party in interest. Even if the court tries the case, eve n if the court decides the case, even if the court renders a judgment that has b ecome final and executory, the judgment cannot be imposed against the real party in interest, so that it will be a waste of time on the part of the court to hea r and decide a case when the defending party is not a real party in interest. Can not the court motu propio dismiss a complaint if the court discovers that a real party in interest or an indispensable party has not been impleaded? Well the Rules do NOT allow the court motu propio to dismiss a complaint even if the court discovers that there is an absence of indispensable party and the gro und that could be invoked for its dismissal is failure to state a cause of actio n. Again, you should refer to Rule 9. there are only four non-waivable defenses in Rule 9: lack of jurisdiction over the subject matter, litis pendencia, res ju dicata and prescription. Failure to state a cause of action is not one of those enumerated as a non-waivable defense; therefore, the court cannot, on its own, d ismiss a complaint for failure to state a cause of action. There is always a nee d for the defending party to invoke a dismissal of a case for failure to state a cause of action. There are certain instances in Rule 3 where the court recognizes that the defending party may not have committed a wrong against the plaintiff. The gener

al assumption is that in a civil case, the plaintiff is the right holder and the defendant is the person who has violated the right of the plaintiff. In fact, i n this instance, it is possible that the defending party has an interest that is consistent with the interest of the plaintiff and the situation that we are ref erring tom is a case where the plaintiff impleads as a defendant an unwilling co -plaintiff. In a situation where there is an unwilling co-plaintiff, the unwilling co -plaintiff is impleaded as a defendant. If he is an unwilling co-plaintiff, whic h means to say that he has done nothing wrong in so far as the plaintiff is conc erned. The unwilling co-plaintiff has not violated the right of the plaintiff b ut why should he be impleaded as a defendant? He should be impleaded as a defend ant because he cannot be compelled to act as a plaintiff. You see in our system, the filing of a case by the plaintiff is left entirely to the discretion of the plaintiff. If a plaintiff does not want to go to court to protect his right or to enforce his right, there is nothing which the State or which the law could do . In the instance where there is an unwilling co-plaintiff the assumption i s that there are two or more right-holders whose right has been violated, and th ese right-holders have a common interest over the claim. One right-holder decide s to file a complaint for the protection of their rights but the other right-hol der refuses to join him. Since we cannot compel the other right-holder to become a part-plaintiff, the only means available to the right-holder who is insistent in filing the case is to implead the other right-holder as a defendant. By maki ng the other right-holder as a defendant he will now come within the jurisdictio n of the court. It is very clear in this situation that the unwilling co-plaintiff who is impleaded as a defendant does not even have to file a responsive pleading becau se the plaintiff does not allege in his complaint that this unwilling co-plainti ff has violated his rights. He is impleaded only for the purpose of bringing him under the jurisdiction of the court. Since there is a concept of unwilling co-plaintiff should we not also acc ept or adopt the concept of an unwilling co-defendant? Well that is really fooli sh. All defendants are unwilling so there s no such thing as an unwilling co-defen dant. But there is a concept of unwilling co-plaintiff who will be impleaded as a defendant does not have to file a responsive pleading, if he chooses to file a n answer he can also file a counterclaim against the plaintiff. There is no prec lusion, there is no prohibition from this unwilling co-plaintiff playing the rol e of a defendant and setting up his own defenses, setting up his claims against the plaintiff to the case. (We will continue tomorrow) To recapitulate on the procedural mandates contained in Rule 3, a civil a ction must always be prosecuted and defended in the name of the real party in in terest. The exception of course is a representative party. A representative part y is not a real party in interest. For instance, the guardian of the ward is not a real party in interest because he will not be benefited or injured by the out come of the case. The party who will be benefited or injured by the outcome of t he case filed by a guardian on behalf of the ward will be the ward. The same is true with an executor or administrator of the estate of a deceased person. The a dministrator or executor is not the real party in interest. The real party in in terest is the estate of the deceased person. If an action is filed by or against somebody who is not a real party in i nterest, this is clearly a violation of Rule 3. The remedy of the defending part y is to file a motion to dismiss. But the ground for dismissal is found in Rule 16, the complaint falls to state a cause of action that is if that civil case is not prosecuted or defended in the name of the real party in interest. The term real party in interest is a generic name. an indispensable party is always the real party in interest. A necessary party is always a real party in interest. But a real party in interest is not necessarily an indispensable pa rty. A real party in interest is not necessarily the necessary party.

In section 7 of Rule 3, there is a requirement for the compulsory joinder of indispensable parties. The rule uses the word compulsory, meaning to say tha t if an indispensable party is not impleaded in the civil case that complaint is defective. On the other hand, in section 11 of Rule 3, we meet a provision, whi ch seems to be in conflict with the compulsory joinder of indispensable parties. Section 11 provides that non-joinder of parties or misjoinder of parties is not a ground for the dismissal of the case. So we have two sections in Rule 3 which appear to be in conflict with one another. One section says that indispensable parties must be joined while the o ther section provides that non-joinder of parties is not a ground for dismissal. If an indispensable party is not impleaded in a case either as plaintiff or def endant, yesterday we said that the court can dismiss the complaint for failure t o state a cause of action. Will it not contravene section 11 which says that non -joinder of parties is not a ground for dismissal? Section 11 provides the gener al rule that is non-joinder of parties is not a ground for dismissal, unless or except, when the party who has not been joined, is an indispensable party. So we should construe section 7 and 11 in such a manner that section 7 is an exceptio n to the general rule contained in section 11. If an indispensable pert is not impleaded, the defendant can ask for the dismissal of the complaint as we said founded on the ground that the complaint f ails to state a cause of action. If there is such a motion submitted to the cour t, can the court properly deny the motion even if the court is convinced that an indispensable party has not been impleaded? If you are going to read Rule 16 th at is a motion to dismiss, the court can properly deny a motion to dismiss even if it is convinced that an indispensable party has not been impleaded. Under Rul e 16 when a motion to dismiss is submitted to the court for resolution, there ar e three options given to the court: grant the motion, deny the notion or require an amendment to the pleading. So in this situation the court can adopt the thir d option, deny the motion but require the amendment to the pleading, so that the indispensable party would be impleaded. If the court requires that the indispensable party be impleaded but still the plaintiff ignores the order of the court, what can the adverse party do? Th e adverse party can now resort to Rule 17 that is file once more a motion to dis miss this time not founded on Rule 16 but founded on Rule 17 that is section 3. A court is on its own or upon motion of the adverse party can dismiss a c ase if the plaintiff disobeys an order of the court or he fails to comply with t he provisions of rules of court. In fact this recourse would be more advantageou s to the defendant because a dismissal under Rule 17 is a dismissal with prejudi ce, it is an adjudication upon the merits. If we compare the consequences of the granting of a motion to dismiss founded solely on the ground of failure to stat e a cause of action although the complaint could be dismissed, the dismissal by reason of the complaint s failure to state a cause of action is not a dismissal wi th prejudice. A dismissal under Rule 16, on that ground that is failure of the c omplaint to state a cause of action will be a dismissal without prejudice; it wi ll not preclude the plaintiff from filing a similar complaint against the same d efendant founded on the same cause. There are some textbooks which also say that the joinder of necessary par ties is also compulsory. But if you read Rule 3, compulsory joinder is limited t o indispensable parties. The rule does not tell us that when it comes to a neces sary party the joinder is compulsory. So even if a necessary party is not implea ded the complaint cannot be dismissed. The reason is section 11, non-joinder of parties is not a ground for dismissal. But there is a special requirement when i t comes to the non-inclusion of a necessary party. The rule says that if a compl aint is filed without impleading a necessary party, the pleader must state in th e complaint who the necessary party is and why he has not been impleaded. It is now up to the court to determine whether or not to order the inclusion of that n ecessary party. If the court so orders the inclusion of the necessary party, but the plai ntiff disobeys the order of the court, can the defendant now resort to Rule 17, that is ask for the dismissal of the complaint because of the failure of the pla

intiff to obey the order of the court? This time the answer is NO. Even if there is an order of a court to implead a necessary party which is ignored by the pla intiff, Rule 17 will not apply. The reason is in Rule 3 itself, there is already a sanction provided for disobedience to an order of the court for the inclusion of a necessary party. The sanction in Rule 3 for non-inclusion of a necessary p arty if required by the court is simply that the claim against the necessary par ty is deemed waived. So there is just a waiver of a claim against the necessary party. But the complaint itself will not be dismissed. The complaint itself will be tried and decided by the court. So this is an exception to the rule provided in Rule 17 that whenever a party disobeys an order of a court or the provisions of the rules, the penalty will be a dismissal of the complaint, except when the order that has been disobeyed is an order of the court for the inclusion of a n ecessary party. There are also provisions in Rule 3 which talk about a minor or an incomp etent being impleaded in a complaint. If a minor is impleaded of course that min or is a real party in interest, the complaint should be accompanied by a prayer or a motion for the appointment of a guardian ad litem. So, the examiner might ask you, if the minor is a defendant and the claim is only to recover an amount cognizable by an inferior court say P100,000 and i n that complaint there is a petition for the appointment of a guardian ad litem does the inferior court possess the authority to appoint a guardian ad litem, gi ven that under BP 129 a guardianship proceeding is not cognizable by an inferior court? See under our present set-up a guardianship proceeding is cognizable exc lusively by a family court, since an inferior court could not be a family court, will it have the authority to appoint a guardian ad litem? The answer is YES, t he guardianship proceeding that is vested exclusively upon a family court does n ot refer to the appointment of a guardian ad litem. The guardianship that is all ocated to a family court is what we call a general guardianship, a guardianship over the property or persons of a minor. But when the guardian is simply a guard ian ad litem, which is an incident or collateral to the main action itself. So f or purposes of appointing a guardian ad litem even inferior courts possess the a uthority to do so. A situation in Rule 3 that has some similarity to joinder of parties that is permissive joinder of parties in Rule 6 is a provision on a class suit. The main difference between permissive joinder of parties in a class suit is that in permissive joinder of parties we are assuming that there are two or more causes of action that are joined in one complaint and there are plural parties who cou ld claim or defend these various causes of action. In a class suit we also have plural parties. In fact the law requires that the parties are so numerous that i t is not practicable to bring them all before the court. But in a class suit the re is just one cause of action. There is community of interest among several per sons who are so numerous that it is not practicable to bring them all before the court. The distinction between a class suit and permissive joinder of parties is best illustrated in an old case. The owner of a piece of land visited his prope rty one morning only to discover that his property has been possessed by almost one thousand families. There are squatters, in other words. The problem which co nfronted the owner of the property was this: Can the owner file a class suit for unlawful detainer or forcible entry or accion publiciana against a number of th e squatter families? Or should he file one complaint for forcible entry or actio n publiciana against each squatter family, which will require him to file one th ousand complaints? Or can he file just one complaint against one thousand defend ants? If he files one complaint against only a number of the squatter families, that is he will sue the squatter families by way of a class suit, he will not be impleading all the squatter families, because in a class suit only a number of the class can be sued or can sue. On the other, if his suit will not be consider ed as a class available to him. Again in the last two alternatives are: one, to file one thousand complaints against each individual family or number two he can file one complaint against one thousand defendants that is permissive joinder p arties.

The Supreme Court resolved the issue saying that in this instance a class suit is not feasible although there are one thousand families occupying the sam e piece of land. According to the Supreme Court the situation does not meet the first essential requirement that there is community of interests among the sever al defendants. Why is there no community of interests among the several defendan ts? There is no community interest among the several defendants because each squ atter family is interested only in protecting the area that he actually occupies . So the interest of squatter number one is different from the interest of squat ter number two because each of these families are occupying their own individual portions of that property, so there is no community interest in this situation. Now, could there be a permissive joinder of parties that is one complaint to be filed against one thousand defendants? The Supreme Court said this could be a proper instance where joint permissive joinder of parties could be held bec ause although the interests of the squatters differ from one another there is a common question of law or fact that will be presented in the case. So there coul d be proper joinder of parties. Supposing the lawyer of the plaintiff suggests that the plaintiff should file one thousand complaints that is one complaint for each squatter family, is that also feasible? Yes, it is feasible. From the point of view of a lawyer of c ourse he will be earning more if he is going to handle one thousand cases. Will he be required to be attending one thousand trials at any given time? Well the a nswer is no, because the lawyer can easily avail of the rule on consolidation of cases. He can file one thousand cases, earn attorney s fees for each case and the n later on ask for the consolidation of all these cases. So there will be only o ne hearing and still only one decision. But the point is, in this situation a cl ass suit is not allowed because there is no community of interest among the memb ers of the class. A good illustration of a class suit is that well-known case of Attorney O posa, the case of Oposa vs. Factoran where a community filed a class suit for th e protection of their environment. In fact in the complaint filed by Atty. Oposa he cited as members of the class minors. He even included as members of the cla ss generations that are yet unborn, in other words they are not yet in existence and the Supreme Court allowed this class suit to be instituted, so a class suit could include members of a class who are living and who are yet to be born. The only essential as the Supreme Court said is that there must be community of int erests among the members of a class. Another example of a class suit is a derivative suit that is allowed in C orporation Law. A derivative suit could come within the purview of a class suit. You will also note that in the statement in the rules concerning a class suit t here is a qualification that any member of the class has the right to intervene in the action. If we relate this to the Rule on Intervention in Rule 19, this is one instance where intervention is a matter of right. Generally Intervention in Rule 19 is a matter of discretion on the part of the court. The court may or ma y not allow a petition for intervention, but when it comes to a class suit any m ember of the class has the right to intervene in other words the court, the tria l court is not given the discretion whether or not to admit an intervention that is submitted by a member of a class when the action is considered as a class su it. In Rule 3 also, we meet the terms alternative defendants. So the rules al low a plaintiff to sue defendants in the alternative. The situation is simply on e where the plaintiff has a right that has been violated but at the time of the filing of the complaint he is not sure as to who, between two or more persons ha s violated the right and who should be held liable for the violation. So the cap tion of that complaint where defendants in the alternative are impleaded is A vs . B or C. we just use that word or in order to emphasized that the defendants are being sued in the alternative. Since Rule 3 allows defendants to be sued in the alternative, can the pla intiff also file a complaint with causes of action in the alternative? The answe r is also YES. If you read Rule 2, which is section 5 it is clearly provided tha t in one complaint several causes of action may joined in the alternative or oth

erwise. So in the filing of a complaint there could be alternative causes of act ion. If there could be alternative causes of action, could there be alternativ e defenses? The answer is also YES. If there could be alternative causes of acti on there is no reason why a defendant could not also set up alternative defenses . This is expressly allowed in Rule 8, there could be alternative causes, and th ere could be alternative defenses. If there could be an alternative, there could be defendants in the altern ative, there could be alternative causes of action and there could be alternativ e defenses, could a decision of the court be in the alternative? The answer is a lso YES. There could be a decision in the alternative. This is exemplified; this is expressly recognized in Rule 60 that is in replevin. So if you turn your cod es to Rule 60 the last section of Rule 60 allows a court to render a judgment in the alternative, that is the award is in the alternative either deliver the pro perty or to pay the value of the property. So the only problem left is if we can have alternative defendants, we can have alternative causes, we can have alternative defenses, we can even have jud gments in the alternative, can we have plaintiffs in the alternative? That is on e aspect which is not treated by the Rules. There is nothing in the rules so far which expressly or by implication allows the filing of the complaint in the alt ernative. That is a situation where a right has been violated but we cannot be s ure at the time of the filing of the complaint who owns that right and therefore who can file the complaint. But given the principle that procedural laws should be liberally construed, it seems that we can also allow alternative plaintiffs although this is really debatable. In the Federal Rules of Civil Procedure of the United States from which w e copied some of the provision in the Rules of Court it is expressly allowed. A complaint can be filed impleading plaintiffs in the alternative. The example giv en by this provision of the Federal Rules on Civil Procedure is this: A and B is disputing who between them owns a car. There is a conflict between A and B. the conflict is the ownership of the car. Then X a stranger runs away with the car. So the problem is who can file a complaint against X for the recovery of the ca r? Under the Federal Rules on Civil Procedure a complaint can be filed naming A or B plaintiffs, that is for the recovery of the car, A or B plaintiffs against X, the one who has run away with the car. So it would seem that since the Rules allow alternative defendants, alternative cause of action, alternative defenses, and also judgments in the alternative, that complaint can also be commenced by plaintiffs who are named in the alternative. Can an association that has no personality, it is not incorporated, it is not a corporation, it is not a partnership, can it file a complaint in court? T he answer is NO. That is not allowed by Rule 3. Can an entity which has no personality at all, it is not a corporation, i t is not a partnership, can it be impleaded as a defendant, can it be sued? Rule 3 says that these unincorporated associations can be sued. So they can be imple aded as defendants but they cannot be named as plaintiffs in a case. The Rules also allow a defendant to be sued even if his identity is not k nown. So a defendant could be sued as an unknown owner. This usually applies to a case of replevin, that s recovery of a possession of personal property. The Rule s say that a writ of replevin as a provisional remedy, can only be carried out i f the person who is in possession of the car, of the personal property has been identified in the writ of replevin. Usually personal properties are transferred from one hand to another, so the problem of the creditor who tries to recover the property is if he files a c omplaint for replevin against the person who bought the personal property from h im, there is a chance that when the sheriff goes to this defendant, the defendan t is no longer in possession of the property, so the sheriff will not be able to confiscate the property. It is possible that the first possessor of the propert y has transferred the possession in the meantime to another person. In order to avoid this situation where the sheriff will not be able to co nfiscate the property from the known, defendant, the plaintiff in a case of repl

evin will usually implead at least two defendants: the first possessor of the pr operty or the second possessor if known to the plaintiff and then a third defend ant called John Doe. So the complaint for replevin is plaintiff versus X and Joh n Doe. John Doe here is impleaded as an unknown defendant; whoever is in possess ion of the personal property will be the John Doe who is impleaded in that compl aint. Since the Rules again, Rule 3 allows a defendant to be impleaded although his identity or his name is unknown should we not also allow a complaint to be commenced by a plaintiff, whose identity or his name is unknown? That is not rea lly practicable isn t it? Any plaintiff who goes to court should be able to identi fy himself. So while a defendant could be impleaded as an unknown defendant, the re is no such thing as a complaint being commenced by an unknown plaintiff. It i s the duty of the plaintiff to identify him when he files a complaint. Now what happens if during the pendency of the civil case anyone of the parties dies or b ecomes incompetent? Under the present rules the death of a party is no longer tr eated in the same way as incapacity of a party. There are two different set of r ules now governing death of a party and incapacity of a party. In the case of the death of a plaintiff and in a case of death of a defen dant, there are common rules to apply to these situations. Whether it is the pla intiff or the defendant who dies, it is the duty of their counsel to notify the court about these developments. So the lawyer for the plaintiff, the lawyer for the defendant is mandated to inform the court if his client has died. Well the r eason why there is such a mandate to the counsel is a provision in the Civil Cod e on Agency which says that upon the death pf the principal or of the agent, the agency is extinguished. When a lawyer goes to the court in a litigation in repr esentation of a client, the relationship that exists between the lawyer and the client is that one agency. The lawyer is the agent, and the client is the princi pal. If the client dies the agency is cut off. The agent no longer has the autho rity to represent the principal. So this provision in the Rules is just an imple mentation of a Civil Code principle on the extinguishment of agency. So this rul e applies whether it is the plaintiff or it is the defendant who dies. If the court is so informed about the death of a litigant, can the court nonetheless proceed with the trial? The answer is NO. if a court receives inform ation that any one of the litigants has died, the court should require that any one of the heirs of the deceased litigant must be substituted, must act as a sub stitute litigant, that is the heir or heirs should be made as substitute defenda nt as the case may be. If a court issues an order directing a son of the defendant to be named a s a substitute defendant, can the son of the deceased defendant validly refuse t o appear in court as a substitute defendant? The answer is YES. While the trial court is empowered to name an heir of a deceased litigant as a substitute litiga nt, the person so directed to appear as a substitute litigant has the prerogativ e to accept or not to accept the role as a substitute litigant. So a court canno t compel any one of the heirs to go to court and to play the role of a substitut e litigant. If none of the heirs of the deceased litigant accepts the role as such, w hat can the court do? This time the court can require the adverse party to secur e the appointment of an executor or administrator that is in the appropriate set tlement proceedings. If there is now an executor or administrator, can the court issue an orde r requiring the executor or administrator to act as a substitute litigant? The a nswer is also YES. Can the executor or administrator refuse to accept the design ation? This time the executor or administrator cannot refuse to accept the desig nation because that is one of the duties of an executor or administrator. He mus t represent the estate of the deceased person. The general rule when it comes to civil cases where it is the defendant w ho dies is that the case is not affected at all. The case will not be dismissed. It will continue to be tried and decided by the court. In fact if there is a de cision rendered by the trial court and there is an appeal, the appeal will also continue that is until the entry of judgment. The only exception recognized in R

ule 3 is when the action is purely personal in character in which case the death of the defendant will render a complaint moot and academic, that is the complai nt will be mooted and it will be dismissed. But this is an exception to the gene ral rule. The death of the defendant will not result to the dismissal of the cas e. Even if the complaint is for the recovery of money arising from a contract, e ven if the complaint is for the recovery of real or personal property, the death of the defendant will not result to the dismissal of the case. If the defendant in a complaint for recovery of money dies, if we apply t he rules provided in Rule 3 there will be a substitute defendant who will be nam ed. If no substitute defendant is willing to accept the role, the executor or ad ministrator can be compelled by the court to act as the defendant in the case. I f the plaintiff eventually prevails that is the decision is rendered in favor of the plaintiff, and the decision becomes final and executory, can the plaintiffcreditor avail of Rule 39? Can the creditor compel the estate of the deceased de fendant through the executor or administrator to pay the obligation, or if there is no payment, can the plaintiff-creditor levy on properties of the deceased pe rson? Now the answer is NO. We have to complement this provision of Rule 3 with the provisions of Rule 39 and also the provisions of 86 and 88. In Rule 39, I think it is section 6, when a defendant dies that is the ju dgment obligor dies but there is no levy yet of properties of this deceased obli gor the claim cannot be satisfied by applying Rule 39. The claim of the creditor supported by a final and executory judgment will simply be submitted to the set tlement court. It will not longer be tried by the settlement court because it is supported by a final and executory judgment. But it cannot be executed, meaning to say that the creditor cannot levy on properties of the deceased judgment deb tor for the purpose of satisfying his claim. The only instance where there could be a sale at public auction of properties of the deceased judgment obligor is w hen the death of the defendant comes after a levy has been made. If a levy has b een made, that is, the assumption is of course the judgment has become final and executory, if a levy has been made and thereafter the defendant dies, the judgm ent obligor dies, the properties so levied can be sold at public auction for the satisfaction of the indebtedness. But if no levy has been carried out before th e death then the claim of the creditor even if it is supported by a final and ex ecutory judgment will not be paid. But if the judgment is for the recovery of pr operty real or personal, the judgment will still be executed notwithstanding the death of the defendant. The rule that we had earlier applies only when the judg ment is for the payment of money arising from a contract. In Rule 3, the last part that is an indigent litigant which is used to b e called a pauper litigant gives us the first situation where an ex parte motion is expressly recognized by the rules, as an exception to the rule on motions th at is Rule 15. The general rule on motions is that a motion should not be heard ex parte. When it comes to an indigent litigant, the rule expressly allows that a motion presented by a litigant to be allowed to try the case as an indigent co uld be submitted to the court through an ex parte motion. a plaintiff or a defendant, is gainfull At present, in fact that a person y employed does not mean to say that he could not become an indigent litigant. E ven if a person is a salaried employee he could still be considered as an indige nt litigant. The only qualification that is now contained in the rule is that th e litigant can prove that he cannot support himself and his family, even if he i s a salaried employee. So it is no longer required that a person should submit a ffidavits just like in the past, showing he does not own properties, that he has no means of income. Even if a litigant earns salary regularly, he could still b e considered as an indigent litigant. But you will also note that the declaratio n by a court that a litigant may be considered as an indigent litigant is purely interlocutory. It could be assailed later on in the course of the trial by an a dverse party. The next subject is in Rule 4 is venue. We said earlier that it is in Rul e 4 that we meet the classification of civil actions into real and personal acti ons. So the classification of actions into real and personal actions is related to the concept of venue in civil cases. You should know the distinctions between

venue and jurisdiction in civil cases. You should also note that in criminal ca ses there is no difference between venue and jurisdiction. The differences betwe en venue and jurisdiction exist only in a civil case. What is pretty obvious is that venue is procedural because it is part of Rule 4 of the Rules of Court, whi le jurisdiction as we said earlier is substantive law. But the jurisdiction that we are referring to here, is jurisdiction over the subject matter and nature of the action so that there will be a basis in giving the distinctions between ven ue and jurisdiction. Since venue is purely procedural it can be waived by the pa rties unlike jurisdiction over the subject matter which generally is not waivabl e. And of course the other distinction, is that since jurisdiction is part of su bstantive law it is governed or covered by BP 129 and the amendatory statutes. When it comes to venue and you are asked to determine the proper venue of a case, you should not immediately go to Rule 4. Venue is a matter primarily th at is contractual, so the first thing that you should take note of whenever ther e is a problem on venue is the presence or absence of an agreement between the p arties. If there is an agreement between the parties that fixes the venue in cea se of conflict between the contracting parties, then that is the rule that will be followed. But Rule 4 now is quiet emphatic in saying that not all agreements concer ning venue will automatically govern the relationship between the parties. Rule 4 sets up some essential elements for the validity and enforceability of an agre ement on venue. The agreement must be in writing and entered into before the cas e is filed, and it must have a character of exclusivity. So any agreement concer ning venue to be enforceable must comply with these requirements. So if the agre ement concerning venue does not meet all these requirements under Rule 4, that a greement concerning venue can be disregarded by the plaintiff. He can avail of t he rules on venue set up in Rule 4. Of course, by now you know the meaning of exclusivity. The word exclusive need not be used. Any word in the English language which is akin to exclusive w ill do. As long as the agreement is in writing and that it is entered into befor e the commencement of the action. Does Rule 4 say that an agreement concerning venue between the parties th at is in writing, which has the feature of exclusivity but which is entered into after the case is filed is void? The answer is NO. The parties, even after the commencement of the case or during the pendency of the case, can still enter val idly into an agreement concerning venue but the only problem is that the court c annot be forced to enforce this agreement. Once a case is filed in court, the co urt will continue to have authority to try and decide the case notwithstanding a ny agreement on exclusive venue that the parties will enter into later on. So ev en if the parties can enter into an agreement concerning venue during the penden cy of the case, that agreement may or may not be followed at all by the court. I t all depends on the trial court whether or not that agreement will be followed. And if it is so followed by the court and the agreement is to the effect that t he locality fixed in the agreement is not the place where the courts holds trial , the only alternative on the part of the court is to dismiss the complaint. So Rule 4 does not say that an agreement on venue in writing which has fe ature of exclusivity but which has been entered into during the pendency of the case is void. There is no such provision in Rule 4. What Rule 4 tells us is that an agreement concerning venue in writing before the commencement of action and has the feature of exclusivity will govern the relationship of the parties. So i f the parties to a contract of lease, for instance, agree that in case of litiga tion the venue shall be the City of Makati although the land is located in Caloo can City and it has a feature of exclusivity, can a complaint for unlawful detai ner be filed in Caloocan City with violating the rule on venue? The answer is NO , because the parties have already agreed that the exclusive venue in case of li tigation is Makati City. So, that will govern their relationship. If the agreeme nt does have the feature of exclusivity, which means to say that the plaintiff c an ignore the agreement and apply the provisions of Rule 4. We will determine ve nue depending on whether the action is a real action or a personal action. When it comes to the distinction between venue and jurisdiction, you shou

ld be careful in answering questions as to whether or not the defect is jurisdic tional or the defect is only one of improper venue. To give some examples, a case of unlawful detainer involving a piece of l and located in Manila is filed before the inferior court of Tarlac. The land is in Manila, the case is one of unlawful detainer. The complaint for unlawful deta iner is filed before the MTC of Tarlac. Does the MTC of Tarlac have jurisdiction over the case, considering that the land is located in Manila? Well, the answer is YES, the MTC of Tarlac has jurisdiction to try that case of unlawful detaine r involving a piece of land located in Manila. Why do we say that the MTC of Tarlac have jurisdiction over a case of unl awful detainer involving a land located in Manila? Since this involves a questio n of jurisdiction, you should forget about Rule 4. You should resort to BP 129. Under BP 129, a case of unlawful detainer or forcible entry is exclusively cogni zable by an inferior court, which is a municipal trial court or a metropolitan t rial court. BP 129 does not say a MTC of certain locality has exclusive jurisdic tion over actions of unlawful detainer where the property is located in that loc ality. BP 129 simply says a case of unlawful detainer is cognizable by an inferi or court. So, regardless of the location of the real property, an inferior court will have jurisdiction over a case of unlawful detainer regardless of where tha t property is situated. Of course, we are assuming that there is no written agre ement on the exclusive venue. We are just applying the provisions of Rule 4. In this illustration, a case of unlawful detainer involving a piece of la nd located in Manila. The complaint is filed here in Manila but the complaint is submitted to the RTC of Manila. Is venue properly laid? The answer is YES, beca use the land is in Manila and the court sits in Manila. Does the RTC of Manila h ave jurisdiction over the complaint for unlawful detainer involving a piece of l and located in Manila? The answer is NO, because under BP 129, inferior courts h ave original and exclusive jurisdiction over unlawful detainer. Using the same set of facts, a land is located in Manila and then the com plaint for unlawful detainer is filed before the RTC of Quezon City. Is there a defect in jurisdiction? The answer is YES, because a RTC does not have jurisdict ion over complaints for unlawful detainer. Is the venue properly laid? The answe r is NO. Venue is not properly laid because the land is in Manila but the court before which the case has been filed is not situated in Manila. In other words, venue does not refer to a court. We do not say the venue is the RTC of Manila or the venue is the MTC of Manila. We sat that the venue is in Manila without refe rence to a court because venue refers to a locality, to a place where the action should be filed. You will also note in Rule 4 that there is nothing mentioned about venue with respect to the other courts. Venue is limited to real and personal actions that are filed before trial courts. There is nothing mentioned about venue conce rning the Supreme Court and the Court of Appeals although we have learned that t he Supreme Court and Court of Appeals are also courts of original jurisdiction. Under the Constitution and under BP 129 the Court of Appeals and the Supreme Cou rt are also courts of original jurisdiction. Now in the exercise of this origina l jurisdiction should we not also have a rule on venue on the Supreme Court and upon the Court of Appeals? Well it is not possible to state a rule of venue that applies to the Supreme Court or Court of Appeals because unlike trial courts wh ich are distributed throughout the country, we only have one Supreme Court based in Manila and the Court of Appeals that is likewise based in Manila. So the fea tures of trial courts in different regions do not apply when it comes to the SC and CA. You should also note that although the rules allow parties to enter into a stipulation concerning venue there are some instances in the past where the Su preme Court, when that agreement concerning venue could be set aside and declare d null and void. The pertinent case cited in all your books is the case of Sweet Lines. There was an agreement concerning venue but the Supreme Court set aside the agreement because that agreement if enforced will cause inconvenience to the plaintiffs and will practically deprived the plaintiffs of the right to enforce their claim against the shipping company.

When it comes to real actions, the law is quite clear in saying that for purposes of venue, the action should be filed in the locality where the property is situated or a portion thereof is situated. If the real party is situated in Manila the venue should be in Manila. But if the property is located both in Man ila and Quezon City then we also give to the plaintiff a choice. He can file the complaint either in Manila or in Quezon City. Supposing that in this example on ly one square meter of the property is located in Quezon City, can the plaintiff still file the complaint in Quezon City? The answer is yes. The rule does not s ay that a greater portion should be located in the place where the complaint is filed. Rule 4 is very clear. The venue in real actions is the locality or any po rtion thereof is situated, however small that portion is. When it comes to personal actions, it is the plaintiff who is given the c hoice. It s either his place of residence or the place of the residence of the def endant. If there are several defendants, the place of residence of the principal defendant; if there is plurality of plaintiffs, the place of residence of the p rincipal plaintiff. (Coffee Break muna) To continue with Rule 4, that is Venue, in section 3 the section covers a situation where the defendant does not reside in the Philippines and is not fou nd in the Philippines. These two elements must concur, that is the defendant doe s not reside in the Philippines, and he is not found in the Philippines. It is p ossible that the defendant does not reside in the Philippines but he is staying temporarily in the Philippines in which case in this sector, will not apply. So the defendant must be a non-resident who is not found in the Philippines. If the defendant does not reside in the Philippines and is not found in t he Philippines, we cannot file a case against him before a Philippine court. We don t even have to discuss venue when the defendant is not a resident and can t be f ound in the Philippines. The reason is the initial problem that will have to be tackled is one of jurisdiction over his person. If the defendant is not a reside nt and he is not found in the Philippines, the court will not be able to acquire jurisdiction over the person of the defendant. That is why in section 3 there i s a mention of only two (2) instances where a civil case can be filed where the defendant is not a resident and cannot be found in the Philippines. The first on e is when the civil action pertains to the civil status of the plaintiff or it i nvolves a property of the non-resident defendant in the Philippines. The complem entary rule which should be read together with this is found in the Rule on Summ ons that is in Rule 14 when the defendant does not reside and is not found in th e Philippines. You will also note that I Rule 4 while there is a mention about a situati on where the defendant is a non-resident and is not found in the Philippines, no thing is mentioned about a situation where the plaintiff is a non-resident and c annot be found in the Philippines. Will it pose a problem on venue if it is the plaintiff who is a non-resident and is not found in the Philippines? The answer is no. there will be no problem on venue at all. Will there be no problem on jur isdiction and there will be no problem on venue. If is the plaintiff who is a non-resident and is not found in the Philipp ines for purposes of jurisdiction, if the plaintiff is a non-resident and is not found in the Philippines he voluntarily submits himself to the jurisdiction of the court, if he files a complaint. So there is no problem at all when it comes to jurisdiction. When it comes to venue, if it is the plaintiff who is a non-resident and is not found in the Philippines there will be no problem on venue because all we have to do is to determine whether the action is a real or personal action. If the action is a real action then we apply the rule on real actions. If the actio n is a personal action we apply the rule on personal actions. On the first day, we also classified actions into the rem and in personam and quasi in rem in addition to real and personal actions. Now Rule 4 provides venue when the action is real, when the action is real, when the action is perso nal. Probably you have met this question before in your classroom examinations. Supposing the action is in rem or in personam, what is the rule on venue? If the action is in rem or in personam, the rule on venue is still Rule 4. If the acti

on is in rem or in personam all you have to do is to ascertain further if that i n rem action is a real or personal action. If the action in rem is a personal ac tion, then we follow Rule 4. If the action in rem is a real action then we could also follow Rule 4. The only reason why Rule 4 does not mention in rem or in pe rsonam as the basis for fixing venue is that the classification of action into i n rem or in personam is not founded on their privity to real property or contrac t. The classification of actions into in rem or in personam is founded on anothe r basis that is the binding effect of the judgment. So, if the action is in pers onam, we determine whether that in personam, action is real or personal. If the action is in personam and is at the same time a real action, then, we follow Rul e 4. The next rule is about the uniformity of the procedure in Regional Trial Courts and Inferior Courts. But, before we go further, we have to deviate a litt le and spend time with respect to barangay courts. The past bar examinations hav e also embodied questions about barangay courts. The first thing we should know about barangay courts is that a barangay c ourt is not a court of justice. Although we call it a barangay court, it is not really a part of the judicial system. It is part of the executive department. Si nce a barangay court is not a court which forms part of the judicial system, it follows that a barangay court does possess adjudicatory powers like a court of j ustice. There is only one instance where a barangay court can possess an adjudic atory power that is when the parties agree to submit their dispute to a barangay court for arbitration. That is the only time when the barangay court becomes pr actically a court of justice. It can adjudicate the dispute between the parties, it can determine, it can decide the rights of the parties, the obligations of t he parties to the dispute. Another principle that you should always bear in mind when it comes to ba rangay court is that lawyers are precluded from appearing before barangay court. The importance in knowing something about the barangay court is that in t he Local Government Code, the filing of a complaint directly with the court may be precluded, that is, unless prior barnagay conciliation is first met. So, even if there is a cause of action, a right has been violated, and damages are suffe red by the right holder, it is possible that the right holder will not be allowe d to file a complaint in court directly. If he does so, if he violates the rules on prior barangay conciliation, his complaint could be dismissed. Again, the re ason for dismissal of a complaint where the requirements on prior barangay conci liation have not been met is failure to state a cause of action. Failure to sati sfy prior barangay conciliation has nothing to do with the jurisdiction of the c ourt. Prior barangay conciliation is only a condition precedent to the accrual o f a cause of action. Is the requirement on prior barangay conciliation a condition precedent t o cases that are cognizable only by an inferior court or is this condition prece dent applicable to cases cognizable by the RTC? The answer is YES. The Local Gov ernment Code does not make a distinction as to whether a certain cause of action could be filed directly or not with the trial court unless prior barangay conci liation is first satisfied. So even if the civil action is for the recovery of m illions of pesos and therefore is cognizable by a RTC, if the case comes within the overage of prior barangay conciliation this requirement will still apply. If the case is filed with the RTC the case will be dismissed for failure to state a cause of action. Of course the defendant will have to file a motion to dismiss on this ground failure to state a cause of action. The court cannot motu propri o dismiss the complaint on this ground, based on Rule 16. How about cases that is cognizable by the Court of Appeals and by the Sup reme Court exercising their original jurisdiction? Will it also come within the coverage of the requirement on prior barangay conciliation? There is nothing men tioned in the Local Government Code as to whether or not cases cognizable by the Supreme Court and Court of Appeals in the exercise of original jurisdiction are covered by prior barangay conciliation. But it appears that cases cognizable by the Supreme Court and Court of Appeals exercising original jurisdiction are not covered by prior baranagay conciliation. The reason is quite simple. If you go

through the cases cognizable by the Supreme Court and Court of Appeals exercisin g their original jurisdiction, these cases fall within the expected instances. C ases cognizable by the Supreme Court involve petitions for centiorari, prohibiti on, mandamus, quo warranto or habeas corpus. The same is true with the Court of Appeals. A petition for habeas corpus is exempted from the coverage of prior bar angay conciliation. A petition for certiorari or prohibition or mandamus will al ways involve a government official or government office who has acted without ju risdiction, in excess of jurisdiction or with grave abuse of discretion and that is one of the expected instances. Prior barangay conciliation does not cover a case which involves a government office or an agency of the government. So, gene rally, all cases triable by a RTC and an inferior court, as long as the parties are natural persons and the parties are residents of the same city or municipali ty should first undergo prior barangay conciliation, before a complaint could be properly filed in court. Another expected instance which will serve as a remedy to avoid appearing before a barangay court is for the plaintiff to incorporate in his complaint a motion or a petition asking for a provisional remedy. So if a complaint embodies with a prayer for preliminary attachment, preliminary injunction, support pende nte lite or replevin that complaint will not be covered by the requirements of p rior barangay conciliation. All that the plaintiff needs to do therefore is to i nclude in his complaint a prayer for the issueance by the court of any of these provisional remedies. If the dispute should properly be referred to, as required by the Local G overnment Code to a barangay court you should also notice that the Local Governm ent Code allows the barangay court to compel the plaintiff, the injured party to pay a filing fee, just like any other court. There are also rules on venue when it comes to barangay courts because it is possible that the contestants reside in different barangays although they re side in the same city or municipality. And when it comes to venue in barangay co urts, the venue is the place where the respondent or defendant resides. We do no t follow in other words in Rule 4, where the plaintiff is given the choice befor e a barangay court the venue is the residence of the respondent. We also take in to account for purposes of venue the location of the property that is involved i n the dispute between the contestants. If the barangay court is not an adjudicatory body, it is not really a cou rt, then the barangay court does not have authority to compel the parties to agr ee to a settlement. If the parties cannot settle their differences amicably ther e is really nothing which the barangay court can do. All that the barangay court will do is to issue a certification that the dispute has undergone conciliation but the parties could not arrive at a settlement. These parties could also subm it a compromise before the barangay court and if the parties so submit a comprom ise agreement, that compromise agreement will be the law between the contestants unless the compromise agreement is repudiated within the period fixed by the ru les, by the Local Government Code. If there is repudiation, then the barangay co urt will simply submit a certification that the plaintiff is now free to file a complaint in court. There is also a peculiar provision concerning barangay courts which says that if a plaintiff files a complaint before a barangay court, but later on he d oes not appear during the conciliation proceeding, the barangay court has the au thority to dismiss the complaint and the dismissal by the barangay court operate s as a res judicata that is, the complaint can no longer be filed in the court b y the plaintiff. So the plaintiff should be interested always in attending confe rences required by the barangay court. Otherwise, if there is an order of dismis sal can always be used as a ground for the dismissal of a subsequent complaint t hat is filed before a court of justice. If there is a compromise agreement submitted before the barangay court an d it is not repudiated, then as we said, it becomes the law between the parties. There is no more need for the parties to go to court to enforce the compromise agreement within a period of six months. Within a period of six months the baran gay court has a right to execute the judgment. And in executing the judgment the

barangay court can make use of the provisions of Rule 39. so if in the compromi se agreement between the contestants the respondent let us say admits owing to t he plaintiff P100,000 payable on installment and then the defendant defaults in complying with his obligation, the plaintiff can ask the barangay court to execu te the judgment or the compromise agreement. That is as long as six-month period has not yet expired. In executing the judgment, the barangay captain, kapitan ng barangay in T agalog, the barangay captain is given the authority to levy on personal properti es of the defendant. Levy in the same way that there is a levy under Rule 39 tha t is a personal properties of the defendant are taken into the custody of the ba rangay court and later on sold at public auction for the satisfaction of the jud gment. What the law has not given to a barangay court when it comes to execution is the power to levy on real properties. There could be a levy of a barangay c ourt only on personal property. There could be no levy on real properties. Supposing that there is no execution within six-month period, can the com promise agreement be still enforced? The answer is YES. This time the enforcemen t of the compromise cannot be held before the barangay court, but the enforcemen t should now be given to the inferior court of that municipality, the local cour t, as the Local Government Code describes it. The local court refers to the infe rior court, the Metropolitan Trial Court or the Municipal Trial Court. On the other hand if the contestants agree to submit their dispute to the barangay court for arbitration as we said earlier this is the time when the bar angay court will now be empowered to decide on the rights and obligations of the parties. The agreement to make or to constitute the barangay court as an adjudi catory body must be in writing. Can anyone of the parties back out of that written agreement to constitut e the barangay court as an adjudicatory body? The answer is YES. All that anyone of the contestant needs to do is to repudiate that agreement. If there is repud iation, the barangay court ceases to possess adjudicatory powers. if there is no repudiation, then the barangay court can render a decision awarding to the plai ntiff the relief that he has sought or dismissing the complaint as the case may be. In other words, as an adjudicatory body the barangay court can determine the rights and obligations of the plaintiff and the defendant in that dispute. The decision will also become final if it is not repudiated, there has to be repudiation by any one of the contestants. If there is no repudiation it bec omes a final and executory judgment. But for the purpose of enforcing this final and executory judgment, the Supreme Court has ruled that there must be a petiti on for the enforcement of a decision to be filed before a local court, meaning t o say the inferior court. So even if the amount involved in the dispute between the contestants is one (1) million pesos, for the purpose of enforcing the judgm ent, the petition must be filed before the Municipal Trial Court or before a Met ropolitan Trial Court. In Rule 5, although it is provided that there is now uniformity in proced ure before Regional Trial Courts and inferior courts, there is a difference when it comes to cases that are governed by summary procedure. In November 2002, the Rules on Summary Procedure were amended by the Supreme Court in the sense that a civil action which involves not more than P100,000 outside Metro Manila, and i n Metro Manila P200,000 will be covered by summary procedure. In the past, when it comes to civil actions the amount was limited to P10,000, that has been incre ased to P100,000 P200,000 as the case may be. Of course unlawful detainer and fo rcible entry are still covered by summary procedure. So there have been changes in the cases that are governed by summary procedure. Although the summary procedure that we are discussing applies only that w e are discussing only to cases cognizable by inferior courts it does not mean to say that cases triable in Regional Trial Court or by a Family Court do not foll ow summary procedure. There are certain cases cognizable by a Family Court or a RTC which under the Family Code should follow summary procedure. So these disabu se your minds from the thought that only cases cognizable by inferior courts fol low summary procedure. There are also cases in the Family Code cognizable by a F amily Court or a RTC which are governed by summary procedure, identical to the s

ummary procedure that we have now for forcible entry and unlawful detainer. In the enumeration of prohibited pleadings in summary procedure, one of t he prohibited pleadings and motions is a motion to dismiss, except if the motion to dismiss is founded on lack of jurisdiction over the subject matter and/or wh en the ground is failure to comply with the requirements on prior barangay conci liation. Since a motion to dismiss, generally, is a prohibited motion in cases g overned by summary procedure, does it mean to say that Rule 16 is not applicable generally to a case that is governed by summary procedure? The answer is NO. Ev en if the filing of a motion to dismiss is prohibited under summary procedure, t his will not deter the inferior court from applying the provisions of rule 16. I n other words, if cases are governed by summary procedure, the court can dismiss the case outright for any of the grounds in Rule 16. If it appears, for instanc e, from the pleadings, or from the complaint, that venue is improperly laid, the inferior court can dismiss the complaint outright. Summary procedure gives to the trial court the discretion to dismiss a ca se governed by summary procedure on any of the grounds mentioned in Rule 16. So the only difference between the applications of Rule 16 to a case governed by su mmary procedure is that when the case is governed by ordinary procedure, general ly a motion to dismiss is required. In a case governed by summary procedure, the court can motu propio dismiss the complaint as long as any of the grounds for d ismissal of a case under Rule 16 is apparent from the allegations contained in t he pleading. Of course, if the court neglects to dismiss the case although a ground ma y be apparent from the allegations in the complaint, the defendant can still ava il of the grounds for dismissal under Rule 16, even if these grounds do not invo lve absence of jurisdiction over the subject matter or failure to comply with pr ior barangay conciliation. You see, what summary procedure prohibits is the fili ng of a motion to dismiss. The defendant can set up any of the grounds for a mot ion to dismiss by filing an answer with an affirmative defense. The filing of an answer with an affirmative defense is not prohibited in summary procedure and a ny of the grounds for a motion to dismiss in Rule 16 is available to a defending party as an affirmative defense. So if improper venue is apparent but the court has neglected to dismiss the case outright, the defendant can still file an ans wer with improper venue as one of the affirmative defenses. That is not preclude d. That is not prohibited by the Rules. It is up to the trial court to determine initially whether a particular a ction is governed by summary procedure. If the court so determines then we follo w practically the same process as in ordinary civil cases. The court will issue a summons that will be served upon the defendant. But you should note that there is significant difference between the summons issued in summary procedure and t he summons issued in regular procedure. The summons issued in summary procedure requires the defendant to file an answer within a non-extendible period of ten days; in regular procedure, genera lly the summons will require the defendant to file an answer within a period of 15 days. In regular procedure, the summons does not use the phrase non-extendible period, meaning to say that the period to answer in regular procedure could be e xtended by the court. Another significant difference between the summons in regu lar procedure and the summons in summary procedure is that in the latter, there is no threat that is given to the defendant that if he does not answer, he will be declared in default and judgment by default will be taken against him. In sum mons issued in regular procedure in Rule 14, there is always a threat contained in the summons. The threat being that if the defendant does not answer within th e reglementary period, he could be declared in default and that a judgment by de fault could be rendered against him by the court. Why does not the summons in summary procedure contain a threat that if th e defendant does not answer, he will be declared in default? Well, in the enumer ation of the prohibited pleadings and motions in summary procedure, a motion to declare the defendant in default is prohibited. So if a defendant does not answe r when a case is governed by summary procedure, the plaintiff is prohibited from filing a motion to declare the defendant in default. That justifies the absence

of a threat in a summons issued in summary procedure, that if there is no respo nsive pleading filed by the defendant he will be declared in default. Another significant difference between the processes in regular procedure and summary procedure is the limitation of the number of pleadings that could b e filed in summary procedure as compared to the pleadings in Rule 6 that are all owed in regular procedure. In summary procedure, only the complaint, the answer, a compulsory counterclaim and cross-claim are allowed; while in regular procedu re, all the pleadings enumerated in Rule 6 could be availed of by the litigants. So that in summary procedure, intervention is prohibited. A third party complai nt is prohibited. Even a motion for bill of particulars is prohibited. A petitio n for certiorari, prohibition and mandamus against an interlocutory order is als o prohibited in summary procedure. I suggest that you memorize the prohibited pl eadings and motions in summary procedure so that you could appreciate the differ ence between summary procedure and regular procedure. (Let s call it a day. Tomorr ow we meet and probably we could finish up to Rule 40) Good afternoon. We continue with Summary Procedure. Summary procedure covers both civil and criminal cases. The principal dis tinction between the summary procedure applicable to civil cases and the summary procedure applicable to criminal cases is that in the latter there is a right t o cross-examine the witnesses. So it s not purely summary in other words. In civil cases, the parties, and even the court, are not given the privilege to cross-ex amine the witnesses. All that the parties need to do in a civil case governed by summary procedure is to submit the affidavits of witnesses and the respective p osition papers. And thereafter, the case is submitted for decision. But in a cri minal case, the testimony of the witnesses are contained in an affidavit, but th e affidavits will take the place of their testimony on direct examination, and t hen the court will require these witnesses to attend a trial for the purpose of cross-examination of these witnesses. In all other aspects, there is no differen ce between the summary procedure that covers civil and criminal cases. In summary procedure, there is also a preliminary conference, which is ak in to the pre-trial in ordinary procedure. It is also mandatory. But the Supreme Court has ruled that if the trial court fails to conduct a preliminary conferen ce, the proceedings taken thereafter are not necessarily void, although the hold ing of a preliminary conference is mandatory. A party may be considered to have waived this mandatory preliminary conference if he fails to object to its absenc e, or he fails to object to the failure of the trial court to conduct a prelimin ary conference. Now we go to ordinary procedure in relation to the first stage in the lif e of a civil case. The first stage in the life of a civil case is the stage set for the submission of pleadings. And for this purpose, you should read Rule 6 up to Rule 10, because these rules are complimentary to one another when it comes to pleadings. The pleadings enumerated in Rule 6 are available in all civil actions and also in special civil actions, which are governed by ordinary procedure. Of cou rse, in summary procedure, not all these pleadings are available. In fact, some of them are expressly prohibited by summary procedure. May there be civil actions or special civil actions where the availabilit y of the pleadings mentioned in Rule 6, is not given to the parties? The general rule again is that, the pleadings in Rule 6 are available in civil cases and in special civil actions that follow ordinary procedure. The exception is found in Rule 67, that is, in a petition or complaint for expropriation. In expropriatio n proceedings, a counter-claim, a cross-claim, and a third party complaint are e xpressly prohibited. So do not be of the impression that it is only summary proc edure where certain pleadings are prohibited. There is one special civil action where the availment of a counter-claim, a cross-claim and a third party complain t is expressly prohibited by the rule itself. The rules define pleadings as a written statement or allegations of the c ause or defenses submitted to the court for judgment. In other words, we don t rec ognize in our system oral pleadings. The pleadings must always be in writing. An d the rule also directs the pleader the manner by which these pleadings are craf

ted. So in Rule 8, we find the provision which says that, the pleadings must con tain allegations presented in methodical and logical form. That is, in concise a nd direct language, stating the cause of action or defenses. The message given b y these requirements is that a lawyer is presumably skilled in crafting document s, in a methodical and logical manner. And since you have taken up several units in English, you must remember that in writing compositions, the unwritten rule is that a great composition is one that embodies the use of imagination. So even if the rules require that the allegations should be stated in a concise and dir ect manner, you should always leave to the court or to the other party, the use of his imagination when he reads your pleading. The rules also require that when a pleader crafts a pleading, he should n ot relate a story to the court. He should divide the pleadings into paragraphs, to make it short and simple. And the rules also require that the pleading must b e dated. The pleading must also be signed either by the lawyer, or by his client , or both of them. When it is the lawyer who signs the pleading, he submits a ce rtification that he has read the pleading, there are enough grounds to support i t, and that it is not intended to delay the adjudication of the dispute. But whe n it is a client who signs the pleading, the client does not make this certifica tion. When it comes to verification of pleadings, the general rule is that plea dings do not have to be verified. Verification is required only if the rules or the law requires a pleading to be verified. If the law requires a pleading to be verified, but there is no verification made by the client, will that defect be a formal or a substantial defect? As presently worded, if a pleading required to be verified does not contain a verification that now constitutes a substantial defect. The non-verification of a pleading has the same consequence as a unsigne d pleading. An unsigned pleading and an unverified pleading when verification is required, produces no legal effect whatsoever. The absence of verification when required, will not affect the jurisdiction of the court, but it is still a subs tantial defect. So this is a change from the old rule which considered absence o f verification as a mere formal defect. The absence of a signature also is not a mere formal defect. It is a substantial defect of the pleading. In certification on non-forum shopping, there have been conflicting decis ions as to who may sign the certification on non-forum shopping. But last year, the Supreme Court came out with a decision, involving Bank of the Philippine Isl ands, which said that a counsel may sign the certification on non-forum shopping if he is provided with a special authority to do so. So a counsel may sign the certification on non-forum shopping as long as he is especially authorized to do so by the client. You should note that the rules concerning this certification on non-forum shopping are strictly applied. Given the rule that any defect concerning non-fo rum shopping cannot be amended. It is one of the defects which could not be reme died by an amendment to the pleading. The first pleading is of course the complaint. It is a pleading that cont ains the cause of action, excluding evidentiary matters. And what are the ultima te facts that should be alleged in the complaint? Of course, you have to refer n ow to the essentials of a cause of action. The names of the parties, that s the pl aintiff and the defendant; their respective residence; the right of the plaintif f; the violation by the defendant; and also an allegation concerning the complia nce with all conditions precedent. Is it enough if the plaintiff in his complaint will simply allege that al l conditions precedent has been satisfied? That is NOT enough. He should enumera te what these conditions precedent are. So if one of the conditions precedent is prior barangay conciliation, the plaintiff should allege that he has undergone prior barangay conciliation. He cannot simply state in the complaint that all co nditions precedent have been satisfied. The capacity to sue also of the plaintiff must be averred with particular ity. And this has distinct application of artificial persons like a corporation , or a partnership. There must be an allegation that they possess personality to do business in the Philippines. When it comes to a foreign corporation, there m

ust be a particular allegation that is a foreign corporation licensed to do busi ness in the Philippines. Without these particulars in the complaint, again the allegation concerning the capacity to sue is not satisfied, the party may be req uired to amend the pleading, or the court may even dismiss the complaint for ina dequacy of the allegations contained in the complaint. Although the rules preclude evidentiary matters from being alleged in the complaint, or for that matter, in the pleading. There is no sanction at all imp osed by the court if these evidentiary matter are so alleged. What the rules sim ply tells us is that only ultimate facts must be averred excluding evidentiary m atters, there is no penalty if the pleading contains, in addition to the ultimat e facts, certain evidentiary matters. In fact, in summary procedure, in cases go verned by summary procedure, it is advisable to include in the complaint allegat ions concerning evidentiary matters, because there is not trial that is held by the court in cases governed by summary procedure. The complaint must also contain a relief; that is the relief sought by th e plaintiff. But even if the complaint does not contain a paragraph concerning the relief, the court cannot dismiss the complaint on this basis. The absence of a prayer or a relief that is sought by the plaintiff is not a substantial defec t of the complaint. Rule 6 up to Rule 10 give a classification of pleadings. The first classi fication is divided into claim pleadings and responsive pleadings. There are nin e pleadings in Rule 6 available in civil cases. Of the nine pleadings mentioned in Rule 6, seven of them are claim pleadings. That is, these are the pleadings t hat could allege a claim or a cause of action. There are only two responsive ple adings. And the two responsive pleadings are the answer and a reply. So on the part of the defending party, it is quite easy for him to choose the responsive pleading that he should file with the court. He should file only as a responsive pleading, the answer, because a reply, although it is a respons ive pleading is not available to the defending party. A reply as a responsive pl eading is available only to the plaintiff or to the party who has submitted a cl aim. So in far as the defendant is concerned, he has only one responsive pleadin So the pleading that resp g available to set up his defenses. That is the answer. onds to a complaint is the answer. The pleading that responds to a counterclaim is still the answer. The pleading that responds to a cross-claim is still the a nswer. The pleading that responds to a third party complaint is still the answe r. The pleading that responds to a counter counterclaim will still be the answe r. So it is very easy on the part of the defending party to choose the responsi ve pleading that is available to him. In fact, he does not have choice at all. He should always file an answer to a claim pleading. The other classification of pleadings as contained in Rule 7, is the divi sion of pleadings into initiatory pleadings and non initiatory pleadings. The c lassification of pleadings into initiatory and non-initiatory pleadings is found ed on the use of a certification of non-forum shopping. In initiatory pleadings, there should always be a certification on non-forum shopping. In non-initiatory pleadings, there is no more need to affix or to attach a certification on non-f orum shopping. So if the pleading filed by a litigant is an answer, which is not a non-initiatory pleading, he does not have to embody in his answer a certifica tion on non-forum shopping. According the case of Surla, a compulsory countercla im is a non-initiatory pleading. So there is an answer filed by the defendant, w hich also embodies a compulsory counterclaim. That answer which embodies a compu lsory counterclaim does not have to be accompanied by a certification on non-for um shopping. But that case of Surla identified only a compulsory counterclaim as a non-initiatory pleading. A permissive counterclaim is, therefore, considered as an initiatory pleading. So if there is an answer which embodies a permissive counterclaim, then, the permissive counterclaim should contain a certificate on non-forum shopping. Otherwise, that permissive counterclaim will be dismissed. The division of pleadings into initiatory and non-initiatory pleadings al so has something to do with the payment of docket fees. If a pleading is initiat ory in character, docket fees must be paid. Otherwise, the court will not acquir e jurisdiction to hear and decide the claim contained in this initiatory pleadin

g. Since it is only a compulsory counterclaim, that is considered a non-initiato ry pleading, it stands to reason that a compulsory counterclaim is embodied in a n answer, there is no need for the defendant to file docket fees in relation to the compulsory counterclaim. But when the defendant embodies in his answer a per missive counterclaim, a third party complaint, or any other claim pleading that is available to him, he must pay the correlative docket fees, in order to enable the court to acquire jurisdiction over his claim contained in this initiatory p leading. The pleading which responds to a complaint is, as we said, an answer. The defendant cannot file a reply to a complaint. What the defendant should file is an answer to the complaint. Supposing the defendant, instead of filing an answe r to the complaint, files a reply to the complaint, will it cause prejudice to t he defendant? Well, according to the Supreme Court, if the defendant calls respo nsive pleading to the complaint erroneously as a reply, but the allegation conta ined in that document is defenses set-up by the defendant, the Supreme Court sai d that the court may ignore the violation because laws on procedure are liberall y construed. So although the responsive pleading to a complaint is an answer, th ere seems to be no harm if the defendant erroneously calls his responsive pleadi ng as a reply to the complaint. The answer, as a responsive pleading, is designed to contain the defenses to the claim contained in the complaint. And there are two defenses that could be alleged in an answer: a negative defense and an affirmative defense, or both. There is nothing wrong if the defendant avails of both negative and affirmative defenses in his answer. Is it important for the defendant to know how a negativ e defense is presented? In so far as the defendant is concerned, he should know how a negative defense must be presented in court, because if presents a negativ e defense, which is not in accordance with the rules, he is going to lose the ca se. A negative defense, un our rules, pertains to specific denial. And there is a great difference in so far as our laws are concerned, between a specific denia l and a general denial. A general denial is not allowed by the rules and the san ction for using a general denial in the answer is that the general denial will b e considered as an admission of the allegations in the complaint. And you all kn ow that when there is an admission contained in the pleading, that admission is considered a judicial admission. And under our rules on evidence, a judicial adm ission is conclusive upon the admitter. It cannot be rebutted, as a general rule , unless the pleader is able to prove that he has admitted a mistake in making t hat allegation. So the defending party must see to it that in presenting a negat ive defense, he must comply strictly with the manner by which the rules require negative defense to be presented. And how does the rule define what a negative defense or what a specific d enial is? In Rule 8, there are three modes by which a specific denial should be made by the defending party. The first one is to deny each and every allegation in the complaint and as far as practicable, give the reasons upon which he relie s for his defense and the reasons why he is making that denial. The second mode is a part denial and part admission. And the last mode is a specific denial for lack of knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in the complaint. The defending party is expected to make use of any or some or all of thes e modes of denial. The rule does not expressly require that the first mode shoul d be used first, and if it is not practicable, use the second mode, and if it is still not practicable, to use the third mode. As Rule 8 is presently crafted, t he defending party is given the choice as to which mode of specific denial which his answer could use. Although there is no order of priority mentioned in Rule 8, as to the mod e of denial, the Supreme Court has come with several rulings to the effect that the use of the third mode could lead to an admission on the part of the defendan t. You see, the third mode is the most convenient way to make a specific denial because all that the defendant needs to state in his answer is that he is denyin g each and every paragraph in the complaint because he has no knowledge or infor mation concerning the truth or falsity of these allegations. The Supreme Court w

arned defending parties that the exclusive use of the third mode could be prejud icial to the interest of the defending party. The prejudice is in the form of a judicial admission of the allegations contained in the complaint which are denie d for lack of knowledge or information. For example, in a complaint, since you have taken up legal forms already and you are familiar with the contents of a pleading, the first paragraph of any complaint will usually allege the name of the plaintiff, the residence of the p laintiff, the name of the defendant and the residence of the defendant. That is always the first paragraph in any initiatory complaint or at least in a complain t. Then the second paragraph of the complaint will refer to the existence of the right belonging to the plaintiff. The third paragraph will refer to the violati on by the defendant of the right of the plaintiff. And then the fourth paragraph will probably contain an allegation that barangay conciliation has been undergo ne, but the parties were not able to settle there differences amicably. And the fifth paragraph would probably refer to the claim for the payment of attorney s fe es. So in a very simple complaint, there will only be five paragraphs, paragraph 1 to 5. The defendant, if he files an answer using the third mode of specific den ial, that is specific denial for lack of knowledge or information, can simply cr aft an answer in this manner: Defendant specifically denies paragraph 1 for lack of knowledge or information. Defendant denies specifically paragraph 2, again f or lack of knowledge or information. Defendant also specifically denies specific ally paragraph 3 for lack of knowledge of information and so on. That is the for m of denial which he make use of, which is theoretically allowed by Rule 8 becau se Rule 8 does not require the defending party to have a priority in the modes o f denial. If this is the manner by which the negative defense or the specific denia l is presented by the defendant, you will clearly notice, that the defendant is not candid; he is not serious in dealing with the court. If the defendant specif ically denies paragraph 1 of the complaint for lack of knowledge or information, in effect he is telling the court that he does not know his name, he does not e ven know his residence which is foolish, isn t it? That s why the Court has come out with a decision saying that if the defendant avails of a specific denial using the third mode with regard to all the allegations contained in the complaint, wh ich is theoretically allowed, that will lead to a judicial admission of the alle gations in that complaint. In other words, the message given by the Supreme Cour t in these decisions is that the defending party must use the third mode of spec ific denial in good faith. What are the allegations, which could be specifically denied for lack of knowledge or information? An allegation in the complaint where the plaintiff all eges that he has contracted to pay his lawyer attorney s fees. That is expected to be unknown to the defendant. So it is that allegation which could be specifical ly denied for lack of knowledge or information. The allegations contained in the complaint concerning the plaintiff s claim for damages that could also be specifi cally denied for lack of knowledge or information. Supposing that in the answer filed by the defendant, again making use of our complaint, the defendant simply states in his answer, The defendant specifica lly denies paragraph 1 of the complaint. The defendant specifically denies parag raph 2 of the complaint. The defendant specifically denies paragraph 3 of the co mplaint. Will that be a specific denial? The answer is no. that is a general deni al. Even if the defendant makes use of the words specific denial , that will not be an adequate negative defense because what the rule requires, is that after the specific denial, the defendant must state the facts upon which he should rely up on in his defense. That is the reason why in your study of legal forms, a denial by the defendant of a certain paragraph of the complaint, is always accompanied by the phrase the truth being that so and so. And then he states the allegations upon which he relies upon for his defense. Again, the rule is settled that if t he defendant does not adequately allege in his answer, which contains a negative defense, the matters upon which he relies in making a specific denial, the cons equence is that the denial will be considered as a general denial. And a general

denial means a judicial admission of the allegations contained in the complaint . Why is it wrong for the defendant to make a general denial of the allegat ions contained in the complaint? If he makes a general denial, and the law consi ders the allegations in he complaint, as having been judicially admitted, then t he court will have nothing to try at all. Instead, the court upon motion of the plaintiff can simply render a judgment on the pleadings. And a judgment on the p leadings will always be favorable to the plaintiff. So that is the adverse conse quence of an answer, which contains a negative defense, but his negative defense does not satisfy the requirements of a specific denial in Rule 8. This principle of specific denial also gives us the concept of a negative pregnant. The word pregnant does not of course refer to the condition of a woma n. If you go to the dictionary, pregnant means silence, which is suggestive of a n unexpressed feeling. That is the meaning of pregnant in the dictionary. So in pleadings, if there is a negative pregnant, the defendant is really silent as to whether or not he is denying or admitting the allegations in the pleading, whic h is not allowed by the rules. He should state expressly and firmly whether or n ot he is specifically denying certain allegations in the complaint. He should no t leave the matter to the court and let the court guess whether or not he is den ying or admitting certain allegations. That is the duty of the defending party. There are some court decisions to the effect that a mode of specific denial, in mode #3, that is denial for lack of knowledge or information could be considered as a negative pregnant. That is, it will result again to a judicial admission o f the allegations contained in the pleading. An affirmative defense on the other hand, is an allegation, which admits the allegations in the complaint hypothetically. But the defendant sets up new m atters which will avoid his liability in favor the claimant. So contrasted to a negative defense, which denies the allegations in the complaint, an affirmative defense admits the allegations in the complaint. But the defendant still tells t he court, Although the allegations in the complaint are true, I am still not liab le for the claim contained in the complaint. To illustrate, in a complaint for the recovery of money, the plaintiff wi ll of course allege the matters we said awhile ago. The names and residences of the parties, the fact that defendant borrowed money from the plaintiff, that the loan has become due but the loan has been defaulted and so on and so forth, tog ether with the conditions precedent. In a negative defense, the defendant will tell the court I specifically de ny that I borrowed money from the plaintiff, the truth being that... (Then he wi ll state the grounds upon which he is going to rely for his defense.) In an affir mative defense, the defendant will tell the court, I admit that I borrowed from t he plaintiff, but I am not liable to pay the plaintiff because I have paid the l oan. That is an affirmative defense. There is an admission of allegations in the complaint but he is going to introduce new matters that will release him from li ability. Can the defendant, under the circumstances, make use of both a negative a nd an affirmative defense? In other words, can he submit to the court an answer, which says: 1. the defendant specifically denies that he obtained a loan from th e plaintiff (then he gives the basis for his denial, the matters upon which he r elies for that denial). 2. The defendant admits that he obtained a loan from the plaintiff (but he is still not liable for the payment of this loan because of c ertain affirmative defenses)? You will notice immediately that in that answer, t he defendant is making inconsistent statements. In his first defense, he denies having obtained a loan from the plaintiff. But in his second defense, he admits having obtained a loan from the plaintiff. Can the defendant submit to the court an answer containing these inconsistent defenses? The answer is YES. In fact, h e should submit all defenses available to him in his answer because if he fails to allege a defense in his answer, he is deemed to have waived these defenses. So the rules encourage a defendant to incorporate in his responsive plead ing all defenses available to him, although these defenses may be inconsistent w ith one another. So even if a negative defense is inconsistent with an affirmati

ve defense, the defendant must incorporate all the defenses available to him, at the time of the filing of the answer. Otherwise, the defenses that are left out are deemed waived. Meaning to say that these defenses can no longer be proven d uring the trial of the case. Between the plaintiff and the defendant, we also have the rule on actiona ble documents. An actionable document is a document that is the basis of a claim or a defense. So it is not correct to say that an actionable document is availa ble to the plaintiff only. An actionable document is also available to the defen dant. If the defense or the cause of action is founded upon a document, then tha t document is an actionable document. Then how does the pleader allege an action able document? Under the rules, there are two ways by which an actionable docume nt can be alleged. We copy the substance of the actionable document, and then at tach to the pleading a Xerox or the original thereof. So if the actionable docum ent is a promissory note, the plaintiff can give the substance of the promissory note in the complaint, and later on attach to the complaint a Xerox copy of the promissory note as an annex. Or, if the plaintiff does not feel like attaching a copy of the promissory note to his complaint, he can simply copy word for word , verbatim, the contents of the promissory note in his complaint. That will also satisfy the requirements on how an actionable document should be alleged. When it comes to the defending party who is confronted with a complaint w here there is an actionable document that is attached or copied verbatim in the complaint, the law requires that there must be a specific denial under oath of t hat actionable document. So in addition to a specific denial, that denial must b e under oath. In other words, this is one situation or instance, where the plead ing, the answer must be verified, because the law requires that the specific den ial must be under oath. Otherwise, if the defendant neglects to comply with this requirement, the genuineness and due execution of the actionable document are d eemed admitted. Again, the admission here is judicial admission. The judicial admission w ill be conclusive upon the defendant. He can no longer rebut the judicial admiss ion. Well there are two exceptions mentioned in the rules, that is, if in the ac tionable document, it does not appear that the defendant is a party, or if the p laintiff refuses to obey an order for the production of the original of that doc ument, then the defendant is excused from the consequences of a failure to speci fically deny under oath, which will lead to a judicial admission of the genuinen ess and due execution of the actionable document. The counter claim pleading is a counterclaim. A counterclaim as defined b y the rules is any claim, which a defending party has against the adverse party. From that definition, it is very clear, that a counterclaim need not be related to the subject matter of the complaint. So in a complaint for he recovery of a loan, the defendant can set-up a c ounterclaim for the recovery of title to a property. So the complaint may be for money, but the counterclaim can be an accion reinvindicatoria. There is no requ irement that the counterclaim must be related to the subject matter of the compl aint. When it comes to the classification of a counterclaim into permissive and compulsory, a counterclaim may be compulsory before a RTC, but the same counter claim may be permissive before an inferior court. So you should always analyze a problem that presents a counterclaim, so that you ll be able to determine whether the counterclaim is compulsory or permissive. A counterclaim, again, may be compulsory before a RTC, but the same count erclaim will only be a permissive counterclaim before an inferior court. Now the usual example of a compulsory counterclaim set-up by the defending party, is wh en the defendant alleges that the filing of the complaint is malicious, it is wi thout basis. And the filing of such malicious complaint has compelled the defend ant to retain the services of counsel, and he has agreed to pay his counsel a ce rtain amount. That is usually the compulsory counterclaim that is embodied in an answer. Let us say that the case is pending before a RTC, accion reinvindicatoria , and recovery of title to property. The defendant in his answer gives his defen

ses either a negative or affirmative defense, and then he sets-up his compulsory counterclaim. He calls his counterclaim a compulsory counterclaim, and he tells the court the filing of this complaint for the recovery of title is baseless. It is a malicious complaint against me, designed only to degrade my reputation, an d therefore I have suffered damages in the sum of P100,000. And also by reason o f the malicious filing of the complaint, I was forced to hire a lawyer for a fee of another P100,000. The totality of the figures in the compulsory counterclaim is only P200,000 and the case is pending before a RTC. Is the counterclaim compu lsory even if the amount is well below the figure that is triable / cognizable b y a RTC? See in BP129, the claim must exceed P400,000 before the RTC can acquire jurisdiction over the case. If there is a compulsory counterclaim for only P200 ,000, does the RTC acquire jurisdiction to try that compulsory counterclaim? The answer is YES. Even if the amount of the counterclaim is below the jurisdiction of the RTC, as long as it is a compulsory counterclaim, the RTC has jurisdictio n. The basis, according to the Supreme Court, is that the compulsory counterclai m is only incidental. It is on ancillary to the subject matter of the complaint. We change the facts a little bit. The case is now pending before an infer ior court. Still an accion reinvidicatoria, but the assessed value of the proper ty is P5,00o. you know very well in accion reinvidicatoria, where the assessed v alue of the property is only P5,000, it is the inferior court that has original and exclusive jurisdiction to try the case. Do not be of the impression that acc ion reinvidicatoria is always cognizable a RTC. It depends on the assessed value of the property involved. In our example, since the assessed value of the prope rty is only P5,000 even if the complaint involves title to or possession of real property, the case falls within the exclusive and original jurisdiction of the inferior court. So, the case is properly filed before the inferior court. The defendant also files his answer, setting up negative and affirmative defenses. And then, in his answer, he sets up what he calls a compulsory counter claim. The filing of the complaint is malicious and baseless, by reason of which he has suffered damages in the sum of P500,000. He was compelled to retain the services of a lawyer for a fee of P100,000. You will note that the totality of t he amount claimed is now P600,000. But that counterclaim is strictly a compulsor y counterclaim, if the amount sought to be recovered goes beyonf the jurisdictio n of the inferior court, the counterclaim ceases to be a compulsory counterclaim . It is now simply considered as a permissive counterclaim. And therefore, in th e example, the plaintiff can file a motion to dismiss this counterclaim for lack of jurisdiction. What is the basis in making a fine distinction between a compulsory count erclaim filed before a RTC, and a compulsory counterclaim filed before an inferi or court, when the only difference is the amount involved? Both counterclaims ar e related to the subject matter of the complaint. The reason given by the Suprem e Court is that an inferior court is a court of limited jurisdiction. (Break) We continue with the pleadings. The next pleading after counterclaim is crossclaim. The difference between a counterclaim and cross-claim is evident in the rules themselves. A cross-claim is a claim by one party against a co-party. Therefore, before we can make use of a cross-claim in any litigation, there must be at least two defending parties. We cant have a cross-claim if there is only on e defendant. There must be plurality of defendants. And one of the defendants fi les a cross-claim against a co-defendant. Another evident distinction between a cross-claim and a counterclaim is t hat a counterclaim may be totally unrelated to the subject matter of the complai nt. But in a cross-claim, the subject of a cross-claim may be related to the sub ject matter of the complaint. Just like in a third party complaint, or other cla im pleadings, the amount that is sought to be recovered by the cross-claimant fr om the cross defendant will not affect the jurisdiction of the court. For instance, if there is a complaint filed A for the recovery of P700,00 0 against B and C, the co-defendants, and which case is therefore file before th e RTC. B can file a cross-claim against C for the recovery of the entirety of th e P700,000 or B can file a cross-claim against C for the recovery only of P100,0 00. In the latter case, if the cross-claim by B against C is only for the recove

ry of P100,000, although under BP 129, it is clearly provided that a claim for t his amount is exclusively cognizable by an inferior court. The reason is that a cross-claim is only ancillary to the complaint. This is an application of the an cillary jurisdiction of a RTC. All ancillary claims will fall within the jurisdi ction of the court as long as the court has jurisdiction over the subject matter of the complaint. That principle will also apply to a third party complaint, which is a cla im of a defending party against a stranger to the case, for contribution, indemn ity, subrogation or any other relief in respect to the plaintiff s claim. Just lik e in cross-claim, the subject matter of the third party complaint must be relate d to the subject matter of the complaint. You will notice that when it comes to a third party complaint, the rule s ays that the filing of a third party complaint must be with leave of court. That is not a requisite when it comes to the filing of other claim pleadings. The fi ling of a complaint does not need leave of court. The filing of a counterclaim d oes not need permission from the court. The filing of a cross-claim also does no t need permission from the court. But when it comes to a third party complaint, suddenly there is a deviation in the rules. Before a third party complaint could be filed, there must be a permission or leave given by the court. Why do we need leave of court when it comes to the filing of a third part y complaint? The reason is a third party complaint seeks to bring to the action a stranger to the case. The stranger is not yet a litigant, and the only way by wh ich the court can acquire jurisdiction over the person of the stranger is for th e court to issue summons later on. The court will require that before the third party complaint is accepted, the leave of court must first be obtained by the th ird party plaintiff. Again, the jurisdiction of a court to try and decide a thir d party complaint does not depend on the amount which the third party plaintiff seeks to recover from the third party defendant, just like in cross-claim. Even if the amount which the third party plaintiff seeks to recover is below the juri sdiction of the RTC, that RTC will have authority to hear and decide the third p arty complaint. You will also notice that the rule says third party complaint, fourth part y complaint and then etc. does it mean to say that this claim pleadings should en d up with a fourth party complaint, or should the court allow a fifth party comp laint, a sixth party complaint and a seventh party complaint? In other words, we cannot place a limitation as to the number of these complaints that could be fi led in one case? Well, there is no limitation. So there could be a fifth party, sixth party, a seventh party complaint as long as the subject matter of this ple ading is related to the subject matter of the original complaint. The most useless pleading is, of course, the reply which is a responsive pleading. Because the rules, after defining what a reply is, continues with anot her sentence which says, that even if a reply is not filed, the new matters alleg ed in the answer is deemed controverted. So the plaintiff does not have to file a reply to an answer even if the answer contains new matters in avoidance of the claim of the plaintiff. The absence of the reply by the plaintiff means that the plaintiff has controverted the assertions of the defendant. For instance, in the case we had a while ago, where the plaintiff files a complaint for the recovery of money, and the defendant sets up the affirmative defense that the loan has been paid by the defendant. That is a new matter that is introduced in the answer. Should the plaintiff file a reply in order to contr overt that new matter? The answer is NO. Even if the plaintiff fails to file a r eply to controvert this allegation of payment, the allegation of payment is deem ed controverted. Does it mean to say that there is no occasion where the filing of a reply becomes mandatory, that is mandatory in the sense that if no reply is filed by the plaintiff, it could cause him harm or prejudice? The general rule again is that the filing of a reply is not mandatory. But it may be mandatory, t hat is in the sense that if no reply is filed the plaintiff can be prejudiced in his rights, is that when the answer is founded on an actionable document. If the answer of the defendant is founded upon an actionable document, th

e plaintiff must file a reply. Does the rule require him to do so expressly? Wel l, there is also nothing in the Rules which require the plaintiff expressly to f ile a reply if the answer of the defendant is founded upon an actionable documen t. But even in the absence of express requirement, the plaintiff is still mandat ed to file a reply because of the principle that an actionable document must be specifically denied under oath. And the only means by which the plaintiff could make a specific denial under oath is to file a pleading. And the only pleading t hat could be used to make specific denial under oath is a reply. The plaintiff c annot make use of an answer because he is the plaintiff. He cannot make use of t his responsive pleading. So the only pleading that is left for him to use in ord er to make a specific denial under oath of an actionable document alleged in the answer, is a reply. This is the only known instance where the filing of a reply is mandatory. Mandatory in the sense that if the plaintiff does not file a repl y, he is deemed to have admitted the genuineness and due execution of the action able document alleged in the answer. Supposing the answer of the defendant sets up the defense of usury, is th e plaintiff mandated to file a reply because allegations of usury may need speci fic denial under oath just like an actionable document? That is no longer true. Before the 1977 Rules were enacted, that was another instance where the filing of a reply was mandatory. But under the present rules, there is a need for spe cific denial under oath in allegations of usury when these allegations of usury are found in the complaint in other words, the answer must be under oath. But w hen the allegation of usury is contained in the answer, as a defense, the law do es not require that there must be specific denial under oath of the allegation o f usury. But if the allegation of usury by the defendant is contained in a claim p leading like a counterclaim, or a cross-claim, then there must be a specific den ial under oath. But if it is contained in a counterclaim, the responsive pleadi ng to a counterclaim is not a reply. It is still an answer. So under the prese nt dispensation as crafted in the 1997 Rules, it is only an allegation of usury contained in a complaint which needs a specific denial under oath. If the alleg ation of usury is contained in an answer and set up as a defense, there is no ne ed for the plaintiff to make a specific denial under oath. Even if no reply is filed by the plaintiff, the plaintiff is deemed to have controverted this allega tion of usury. Because the preparation of a pleading is absolutely under the control of the pleader, does it mean to say that he can allege any matter which he feels li ke doing so? Well there are certain limitations. The law does not allow scanda lous and indecent matters to be alleged in a pleading. Supposing the plaintiff submits a complaint that contains scandalous or indecent matter, what is the rec ourse of the defendant? Well the defendant can ask the court to strike out the complaint itself. If the complaint is stricken off, then the defendant can ask the court to strike out the indecent allegation or scandalous allegation in that complaint. In this situation, will the running of the period to answer be suspended? The answer is YES although the rules again do not expressly say so. If there is a motion filed by the defendant asking the court to strike out the complaint itself or certain allegations in the complaint because they are indecent or sca ndalous, the period to respond is interrupted until the court has finally resolv ed the motion. If the defendant fails to file a motion to strike out the compla int or a part of the complaint, that contains scandalous or indecent allegations , can the court on its own order the striking out of the complaint or these scan dalous allegations, can the court on its own order the striking out of the compl aint or these scandalous allegations? The answer is YES. The court is given au thority to strike out the pleading, or the portion of that pleading. Containing scandalous or indecent allegations motu proprio. That is, even without the moti on of the adverse party. When it comes to damages, there has also been a change in the rules. In the past, allegations concerning damages are deemed controverted even if there i s no specific denial. Under the present rules, only allegations concerning unli

quidated damages are deemed controverted even if there is no specific denial. S o when there is an allegation concerning liquidated damages, there must be a spe cific denial, otherwise the allegation concerning this liquidated damages are de emed admitted. Rule 9 speaks about the defenses that are non-waivable. And we had the o ccasion to talk about these non-waivable defenses yesterday. And you should kno w by heart these non-waivable defenses in civil cases. Absence of jurisdiction over the subject matter, litis pendencia, res judicata and prescription. They a re called non-waivable defenses because even if the adverse party fails to set t hese up as defenses, the court can always order the dismissal of the complaint a s long as the court is convinced that the court does not have jurisdiction over the subject matter, or prescription has set in , or there is res judicata, or th ere is litis pendencia. All other defenses not set up are deemed waived, except these four defenses in civil cases. It would also be proper for us to compare these non waivable defenses in civil cases to the non-waivable defenses in criminal cases. So you might be ask ed, are there also non-waivable defenses in criminal cases. So you might be ask ed, are there also non-waivable defenses in a criminal case? The answer is YES, and that is supplied in Rule 117 in Criminal Procedure. The non-waivable defen ses in a criminal case are when the allegations in the information do not consti tute an offense, lack of jurisdiction, double jeopardy and prescription. So if you make a comparison between the non-waivable defenses in civil cases and the n on-waivable defenses in criminal cases, double jeopardy would be the equivalent of res judicata, while prescription in criminal cases is a non-waivable defense, prescription is also a non-waivable defense in a civil case. Litis pendencia i s a non-waivable defense in a civil case, but in a criminal case, it is not eve n a defense at all. So, there is no such thing as litis pendencia, as a defense in a criminal case. When the information does not change an offense, the equivalent defense i n a civil case is failure to state a cause of action. You see in the past, befor e the 1997 Rules, failure to state a cause of action could be raised at any stag e of the proceedings. So, in that context, failure o state a cause of action may be treated as a non-waivable defense in the old rules. But under the present ru les, failure to state a cause of action is waivable defense. So even if the complaint on its face does not state a cause of action, an d the court is convinced that the complaint really is inadequate, the court cann ot motu propio dismiss the complaint. The court must wait for a motion coming fr om the defendant asking for the dismissal of the case based on failure to state a cause of action. What is the reason why the court cannot motu propio dismiss a complaint e ven if it is clear that this complaint does not state a cause of action? The rea son is that, this defect could be remedied during the trial of the case. Even if a complaint does not state a cause of action, in the course of the trial, the p laintiff may be able to present evidence that will convince the court that he no w has a cause of action. That is the reason why, failure to state a cause of act ion is no longer considered as a non-waivable defense. Rule 9 speaks about the situation concerning default. In civil cases, the re is default when the court issues an order declaring the defendant in default within the reglementary for his failure to file a responsive pleading the answer period. The period to answer is either 15 days or 30 days or 60 days, as the ca se may be, defending on the status of the defendant as a domestic or a local cor poration, or defending on whether summons has been served through publications. So the period to plead, as we shall see later, is either 15 days, or 30 days or 60 days. Generally, it is 15-day period. If no answer is filed by the defendant an d served upon the plaintiff within the reglementary period, the recourse availab le to the plaintiff is to file a motion to declare the defendant in default. Can the court on its own declare a defendant in default since the absence of an ans wer filed within the reglementary period can easily be determined by going over the expediente, the records of the case? The court does not have that authority.

There must be a motion filed by the plaintiff for the purpose of declaring the defendant in default. If the plaintiff is so neglectful that he does not file a motion to decla re the defendant in default, although he knows that there is no answer filed, ca n the court set the case for pre-trial so that the case will move? The answer is NO. Unless all the pleadings are in , the court has no business setting the cause for pre-trial. In other words, if the plaintiff is so neglectful that he fails t o file a motion to declare the defendant in default, although the plaintiff know s that no such answer has been filed, we will have a situation where the case wi ll not move at all, that the case can only move if the defendant decides to file s an answer even beyond the reglementary period. Does the court have any option at all if the court waits in vain for the plaintiff s motion to declare the defendant in default? Well, the remedy of the co urt is just to dismiss the case under Rule 17 for failure to prosecute. Then the dismissal by the court for failure to prosecute is dismissal with prejudice. It will be res judicata that will bar the plaintiff from filing a subsequent compl aint based on the same cause against the same defendant. So the plaintiff must b e alert in filing a motion to declare the defendant in default if the situation calls for the default of the defendant. Otherwise, he will be confronted with a problem where his complaint will be dismissed with prejudice under the provision s of Rule 17. If the plaintiff is alert enough and accordingly files a motion to dec lare the defendant in default, can he do so through an ex parte motion, given th at the defendant anyway has not filed an answer at all? The present rules do not allow a motion to declare a defendant in default to be heard ex parte. The defe ndant must be notified of this motion. There must be service of a motion to decl are the defendant in default upon the defendant himself. Otherwise, the court wi ll have no authority to issue an order declaring the defendant in default. Isn t this requirement unfair to the plaintiff? Here is a situation where t he defendant does not answer within the reglementary period and then the plainti ff files a motion to declare him in default, and yet, the plaintiff is required to give a copy of his motion to the defendant. If we give a copy of the motion t o the defendant, the defendant can easily preempt the resolution of the motion b y filing the answer right away. Now, after receiving the motion to declare the d efendant in default and the defendant files an answer, can the court still decla re the defendant in default? The answer is YES, because default arises from a si tuation where the defendant fails to answer within the reglementary period. If t he answer is filed beyond the reglementary period, the court can still properly declare him in default. Although if we are going to follow jurisprudence, there is no trial court which will declare the defendant in default if he has filed an answer even beyond the reglementary period, because the instructions of the Sup reme Court to trial courts is to be liberal in matters concerning defaults. So i f there is no answer filed within the reglementary period and the plaintiff file s a motion to declare the defendant in default, and the defendant indeed files h is answer even beyond this period, chances are the court will deny the motion. T he court will not declare the defendant in default. If there is really no answer filed by the defendant and he is declared in default, can the court thereafter render a judgment, a decision by default, eve n without conducting a hearing? Well, the answer is YES, in ordinary procedure; it may also be NO, in ordinary procedure, depending on the discretion of the cou rt. You see, under Rule 9, after the court has declared the defendant in default in ordinary procedure, the court can render judgment by default, even without c onducting a hearing or the court can require the plaintiff to present evidence. And it is only after presentation of evidence when the court will render a judgm ent by default. So in ordinary procedure, the declaration by the court of default does no t necessarily mean that there will be a judgment by default immediately. The cou rt is given discretion to order the plaintiff to present evidence in support of his allegations in the complaint. This should be distinguished from summary proc edure.

In summary procedure, if the defendant does not file an answer within the reglementary period, the plaintiff is prohibited from filing a motion to declar e the defendant in default. A motion to declare the defendant in default is a pr ohibited motion in summary procedure. So if the defendant cannot be ordered in d efault in summary procedure, what will happen to the case? The court will simply render judgment based on the allegations in the complaint. Can the court require the plaintiff to present evidence in support of his allegations in summary procedure? That is NOT possible. The court has no author ity to do so. In summary procedure, if the defendant does answer, judgment by de fault will be rendered by the trial court; but in ordinary procedure, if the def endant is declared in default, the court retains enough discretion to order that the plaintiff first present evidence in support of his allegation in the compla int. It is bad for the defendant to be declared in default? Well, of course, i t is bad for the defendant to be declared in default. Does it mean to say that h e has automatically lost the case? It does not follow also that if the defendant is in default, he will automatically lose the case, because if the court orders the plaintiff to present ex parte to prove his allegations, and the plaintiff i s unable to present his evidence, the court will also be justified in rendering a decision dismissing the complaint. But generally, if the defendant is declared in default, the trial court will be of the impression that the allegations cont ained in the complaint are true. You see, when a defendant does not answer in ordinary procedure, from the point of view of the court, there are two possibilities. The first possibility is that, the defendant is not willing to put up a fight. That is, he admits his liability to the plaintiff. So, by implication, he tells the court go ahead, deci de the case against me. After all, I m not going to put a fight. The second possibi lity is that, the failure of the defendant to file an answer within the reglemen tary period is by reason of extraneous matters fraud, accident, mistake or excus able negligence (FAME). The second possibility is the situation that is contempl ated in that excepting clause, where the court is given enough discretion to ord er that the plaintiff will present evidence in support of his allegations. If the defendant is declared in default, can he participate in the ex par te presentation of evidence? Well, it depends on how he participates. Definitely , the defendant cannot present his own evidence because he has not filed an answ er at all. He has no answer and, therefore, he has not set up any defense at all . But if he is one of several defendant and he is the defaulting defendant, the other defendants can utilize him as a witness in the proceeding. There is nothin g in Rule 9 which says that a defaulting defendant is disqualified from testifyi ng during the trial of the case. But this contemplates a situation where there a re two or more defendants in this civil case. Although the defendant is in default, he will be given notice of the orde rs or resolution that will be rendered by the court. Since it could be very disadvantageous for the defendant to be declared i n default, does he have a remedy at all? Can he assail the validity of the order of default ? Can he challenge the validity of the default order by appealing? The answer is NO. He cannot appeal the order declaring him in default because that o rder is purely interlocutory, what may be appealed are final orders. Can he file a motion for a new trial? The answer is NO. He cannot file a motion for a new trial because a motion for a new trial assumes there has been a trial conducted by the court and there has been judgment rendered by the court. If there is only a default order, there is no judgment by default yet. There is a difference between an order of default and judgment by default. Can the defendant file a motion to lift the order of default? That is the remedy that is given to him by Rule 9. The defendant can file a motion to lift or set aside the order of default, which is at any time before the judgment is r endered. But he has to see to it that in that motion he submits an affidavit of m erit, because the grounds that could be relied upon are fraud, accident, mistake or excusable negligence. And when these grounds are utilized in a motion, the la w requires that there must be affidavits of merit to prove the existence of frau

d, accident, mistake or excusable negligence. Another requirement is that the defaulting defendant must show that he ha s a meritorious defense. How does the defendant show that he has a meritorious d efense? In practice, if the defaulting defendant files a motion to lift the orde r of default, he usually accompanies the motion with his proposed answer. And in that answer, the defenses can be set up, that can easily convince the court whe ther the defenses that are going to be set up are meritorious. Well, if the defe ndant fails to attach to his motion a copy of the proposed answer, he can always embody in the motion itself the defenses he intends to set up, if the motion is granted. Just like any other motion, a motion to set aside or to lift order of def ault can either be denied or granted by the court. If the court grants the motio n, then the default order is lifted. Will the case now be tried by the court? W ell, the answer is NO. if the default order is lifted, the defendant must still file his answer, because the reason why he has been declared in default is that he has failed to file an answer within the reglementary period. But if he has a ccompanied his motion with the proposed answer, then that proposed answer will b e admitted by the court if the court grants his motion. Can the plaintiff assail the lifting or setting aside of the default orde r by appeal? The answer is NO. An order granting or setting aside the order of d efault is also inerlocutory. It is not appealable. If the court denies the motion to set aside the order of default, this ti me, can the defendant appeal? The answer is still NO, because the order denying the motion to set aside the default order is still an interlocutory order. Can the defendant resort to Rule 65, special civil action of certiorari o r prohibition? Possibly. If he can show that the trial court has acted without j urisdiction, in excess of jurisdiction or with grave abuse of discretion amounti ng to lack of jurisdiction. So allhe needs to do when he files a petition under in excess Rule 65 is to use the magic words, the court has acted with jurisdiction, of jurisdiction, or with grave abuse of discretion amounting to lack of jurisdict ion. See, in the Supreme Court, if you fail to include that grave abuse of discret ion amounting to lack of jurisdiction, the Supreme Court will deny the petition, because these are the magic words when you resort to Rule 65. After the issuance of the default, assuming that the defendant does not a ssail the validity of the order of default, the court can now render a judgment by default. Will the defendant be furnished a copy of this judgment by default? Of course, he will be given a copy. The defendant will know that there is alread y a judgment by default rendered against him. This time, can the defendant appeal from that judgment by default? The an swer is YES, he can now appeal from that judgment by default because it is now a judgment and judgments generally are appealable. Can the defaulting defendant resort to Rule 37, that is, file a motion fo r a new trial or a motion for reconsideration? The answer ius also YES, because he is assailing a judgment on the merits. Can he later on file a petition to ann ul judgment under Rule 47? The answer is also YES. May there be a situation where there is a judgment by default rendered ag ainst the defendant but he cannot avail of Rule 37, that is, motion for a new tr ial or reconsideration? Or he cannot avail of Rule 38, that is, petition for rel ief from judgment? The answer is also YES. In other words, the availability of t hese modes to assail a judgment by default depends on the nature of the proceedi ngs. If the case is decided under summary procedure, a judgment by default can not be assailed by Rule 37 a motion for a new trial or a motion for reconsiderat ion. It cannot be assailed through a petition for relief from judgment under Rul e 38. What is our basis in saying that a judgment by default rendered in a case governed by summary procedure cannot be assailed under Rule 37 or under Rule 38? The basis is that a motion for a new trial or a motion for reconsideration unde r Rule 37 is a prohibited motion in summary procedure. The same is true with Rul e 38, it is also a prohibited pleading or motion. So, the availability of remedies to challenge a judgment by default would

depend on the procedure followed by the trial court. If the procedure followed by the court is summary procedure, the only remedy available to the defaulting d efendant would be appeal, which is not prohibited by summary procedure. There is also a chance that he can file a petition to annul the judgment under Rule 47 b ecause the enumeration of prohibited pleadings and motions in summary procedure, Rule 47 is not a part of the enumeration. But if the judgment by default is rendered in a case governed by ordinary rules, the judgment by default may be challenged under Rules 37, 38 and 40 that is, appeal, and even under Rule 47. so be careful when you are confronted with remedies to assail a judgment by default. You must first determine whether or no t the court followed summary procedure or regular procedure. In Rule 9, there is also a mention of partial default. Partial default co ntemplates a situation where there are two or more defendants. We cannot speak o f partial default if there is only one defendant. There must be plurality of def endants. And two or more defendants are sued under a common cause of action. So the caption of this case where we are going to apply partial default is plaintiff vs. defendant 1 and defendant 2. And defendants 1 and 2 are sued under a common cause of action. If defendant 1 does not answer but defendant 2 files an answer, can the t rial court validly declare defendant 1 in default? The answer is YES. If defenda nt 1 does not answer, he can be declared in default as long as the plaintiff fil es a correlative motion. After declaring defendant 1 in default, can the court r ender a judgment by default against defendant 1? This time, the court cannot do so. The authority of the court in partial default is limited only in declaring t he non-answering defendant in default. After declaring the non-answering defenda nt in default, the court cannot render judgment by default against defendant 1. Since the court cannot render a judgment by against the defaulting co-def endant, what should the court do? The court should try the vase based on the ans wer of filed by defendant 2. so there will still be a trial founded on the defen ses set up by defendant 2. If defendant 2 prevails, then the defaulting defendan t will also prevail because they are sued under a common cause of action, unless the defenses set up by defendant 2 are purely personal to defendant 2. There are certain cases enumerated in Rule 9 where we cannot have default although the defendant neglects to answer, and these are family related cases a nnulment of marriage, legal separation, declaration of nullity of marriage. Even if a defendant does not answer, the court cannot order the defendant in default . In annulment of marriage, for instance, if the defendant does not answer and t he court is prohibited from declaring the defendant in default, what should the plaintiff supposed to do since there is no defense set up by the defendant? Well , the plaintiff should file a motion asking the court to order the prosecutor to make an investigation whether or not there is collusion between the parties. Th e fact that there is no answer filed by the defendant in these family-related ca ses, does that mean to say that the case will not move at all? The next step is for the court to determine whether or not there is collusion between the plainti ff and the defendant; whether or not the parties are fabricating evidence in sup port of the petition to annul the marriage. In other words, even if the defendant does not answer in these special in stances, and the court is prohibited from issuing a default order, the court can still schedule the case for pre-trial, as if the answer had been filed by the d efendant. So, it is so much like a case that is not family related where, as we said, if the defendant fails to answer he can be declared in default and thereaf ter render a judgment by default. Rule 10 speaks about amended and supplemental pleadings. In amendment, co mpared to the filing of supplemental pleadings, the filing of an amended pleadin g could be a matter of right. Filing a supplemental pleading can never be a matt er of right. Before a supplemental pleading could be filed, the permission of th e court must first be obtained. But when it comes to filing of an amended pleadi ng, it could be a matter of right, that is, once before a responsive pleading is filed. When Rule 10 speaks about amended and supplemental pleadings, the rule do

es not limit its coverage only to the complaint. The title is amended pleadings , s o it could refer to all pleadings enumerated in Rule 6. So a complaint can be am ended as a matter of right. A counterclaim could also be amended as a matter of right. The same is true with cross-claim, with a third party complaint. Even a r eply could be amended as a matter of right. But although there is a right given to the pleader to amend his pleading, he must exercise this only once. Rule 10 says that a pleading may be amended on ce as a matter or right, before a responsive pleading is submitted. And when we talk about amended pleadings as a matter or right before a responsive pleading i s filed, we have to relate back to Rule 6. What are these responsive pleadings, so that we can determine whether or not the amendment is a matter of right, or a matter of discretion. When we speak about a complaint, a complaint could be amended as a matter of right once before the answer is filed, because it is the answer that respond s to a complaint. When it comes to counterclaim, a counterclaim could also be am ended once as a matter of right before the answer to the counterclaim is filed. So all you have to know is the responsive pleading corresponding to the pleading sought to be amended. But the amendment is a matter of right, if it is the firs t amendment. If the plaintiff files a complaint with one cause of action, can he amend his complaint as a matter of right by introducing three other causes of action? The answer is YES. When the law says that a pleader has a right to amend, the p leader has a right to amend, the pleader is given almost absolute discretion in determining which changes are going to be made in his complaint. He has the free dom to change in its entirety the cause of action in his complaint. So if the co mplaint contains a cause of action for the recovery of title to property, the pl aintiff can amend his complaint by disregarding his claim for accion reinvidicat oria and changing it with recovery of sum of money. The right of a pleader to ch ange the allegations in his pleading is practically limitless when the law gives him the right to do so. But when it is just a matter of discretion, then he has to get permission from the court and in that sense, it is the court which will determine the extent of the amendment that could be introduced. If the defendant files an answer containing a general denial, which is ba d for the defendant, can the defendant amend his answer by converting the genera l denial into a specific denial? The answer is YES, as long as he is given the r ight to amend his answer. Changing of the denial from general denial to a specif ic denial will not harm anybody, that is, if the amendment is made within the pe riod given by law. If it is the defendant who wants to amend his answer by conve rting the general denial into a specific denial, how much time does he have? Wel l, we apply the general principle. He can amend his answer as a matter of right, once before a responsive pleading is filed. And what is the responsive pleading to an answer? It is a reply that serves as a responsive pleading to the answer. So the defendant can amend his answer as a matter of right once before the repl y is filed. How about the reply itself, can the plaintiff amend his reply as a matter of right considering that there is no more responsive pleading to a reply? Well the answer is also YES. Even if there is no more responsive pleading to a reply , Rule 10 says that he is given a period of 10 days within which to amend his re ply as a matter of right. We ll continue tomorrow, good night. Under the Rules, the plaintiff to a civil case can amend his complaint on ce as a matter of right before a responsive pleading is filed by the defendant, so that if the defendant has already been declared in default and the plaintiff decides to amend his complaint, notwithstanding the default order issued by the court, the plaintiff can still amend his complaint as a matter of right even if the default order has been issued, Because no responsive pleading has yet been f iled by the defaulting defendant, the order of default is deemed lifted and the defendant is given a new reglementary period within which to file an answer to t he amended complaint. Another incident that could arise from amendment of complaint after the d efendant has filed a motion to dismiss will have to be resolved in this manner.

It is settled that a motion to dismiss is not a pleading and therefore even if t he defendant has filed a motion to dismiss, the plaintiff still possesses the ri ght to amend his complaint. In a certain case the defendant, after receiving the summons, filed a mot ion to dismiss founded on the failure of the complaint to state a cause of actio n. The plaintiff reviewed/analyzed the motion to dismiss filed by the defendant and he was convinced that there could be some merit to the motion, instead of op posing the motion to dismiss, the plaintiff amended his complaint in order to re medy the defects in that complaint cited by the defendant. Naturally, the defend ant resisted. The court said that a motion to dismiss is not a pleading and ther efore the presence of a motion to dismiss does not prevent the plaintiff from ex ercising his right to amend his pleading. Now in this situation, the court will have no other recourse except to deny the motion to dismiss because the defects cited by the defendant are already remedied by the amendment complaint. Supposing that in this same example the plaintiff is not convinced about the validity of the defendant s motion to dismiss. So the plaintiff does not amend his complaint instead, he files an opposition to the motion to dismiss so the c ourt will now have the rule on the merit of this motion to dismiss. Let us assu me that the court indeed dismisses the complaint because the complaint has faile d to state a cause of action. After receiving the cause of dismissal founded on the absence of cause of action, can the plaintiff still amend his complaint un der Rule 10 as a matter of right? The Supreme Court said YES, even if the compla int has been dismissed by reason of a motion under Rule 16 filed by the defendan t, the plaintiff does not lose his right to amend his complaint because the moti on to dismiss is not a responsive pleading. But this time, the court said, but if there is going to be an amendment to the complaint after the court has ordere d the dismissal of the complaint, the amendment must come before the order of di smissal becomes final, that is, before the lapse of the 15-day period before the order of dismissal is entered. So the dismissal of a complaint by reason of a motion to dismiss filed by the defendant will not deprive the plaintiff of his r ight under rule 10 to amend his complaint as long as the amendment is carried ou t before the lapse of the 15-day period. The 15-day period is the period within which to challenge the order of dismissal. You see, the order of dismissal of a complaint by virtue of a motion to dismiss is a final order. It could be assa iled either by an ordinary appeal or by a petition for certiorari as provided in Rule 41. But even before the plaintiff could avail of any of these remedies he has another remedy. He does not have to go to a higher court, and all he needs to do is to amend his complaint to rectify the errors that are embodied in his o riginal complaint. In Rule 10, we should also pay attention to Section 5 thereof, that is, a mendment to conform to evidence, which is both procedural, in the sense that it is part of civil actions, a Rule on Evidence. The situation envisioned in Section 5 is one where the evidence presented by the plaintiff or by the party is not material to the allegations contained i n then pleading. Generally, in the Rules on Evidence, if the evidence submitted by a party has no relation at all to the fact in issue, that evidence is not rel evant. And if we are going to apply the first axiom of evidence, any evidence th at is not relevant should not be admitted by the court. To illustrate how Section 5 works, here is a complaint for the recovery o f ownership of a piece of land. The case is pending before a RTC. During the tri al, if the only issue is the ownership of the piece of land, during the trial th e plaintiff is expected to present evidence to show he entitled to the ownership . The defendant, on the other hand, is expected to present evidence related to t he fact in issue that is, the ownership of that land. Supposing that in the cour se of the presentation of plaintiff s evidence, the plaintiff submits to the court a promissory note that is totally unrelated to the ownership of the land. The p romissory note will tend to show that the defendant owes the plaintiff P1M. This claim of P1M is totally unrelated to the piece of land. Will the court admit th e evidence? Well, the answer will depend on the attitude of the defendant. If the defendant does not interpose any objection, then the court will ad

mit the evidence because that is the basic rule in evidence. Evidence which ough t not be admitted but which is not objected to by the adverse party will be admi tted by the court. So, if there is no objection on the part of the defendant, th en the court will admit the evidence showing that the plaintiff is entitled to r ecover from the defendant P1M. The trial is concluded and the case is now submitted for decision. Can th e court render a judgment declaring the plaintiff as the owner of the land, whic h is in the first place the fact in issue and, ordering the defendant to pay P1M although that claim is not embodied in the complaint? If we are going to apply Section 5, that is amendment to conform to evidence. The court can render a judg ment directing or ordering the defendant to pay P1M. Can not the defendant later on tell the court, but the recovery of P1M is not alleged in the complaint and, therefore, the court does not have jurisdiction at all to rule on that issue? Acc ording to Section 5, if an issue is tried with the consent of the parties, expre ssly or implied, the pleading is deemed to have been amended. And therefore, if the pleading is deemed to have been amended, the complaint in the eyes of the co urt will be deemed to have contained adequate allegations for the recovery of mo ney. The complaint is deemed amended to conform to the evidence presented by the plaintiff. But if the defendant objects to the presentation of the promissory n ote, the objection will be proper because the issue in our case is only limited to the recovery of ownership of a piece of land. If the court refuses to admit the promissory note being offered by th e plaintiff, what is the remedy of the plaintiff, if there is any? Again, Sectio n 5 gives to the plaintiff the proper remedy. The plaintiff can ask the court to authorize him to amend his complaint, and the plaintiff can amend his complaint by introducing a new cause of action that is, for the recovery of P1M. Once the complaint is amended in such a manner that the claim for P1M is now embodied in the complaint, the presentation of the promissory note will now be relevant evi dence because it has something to do with one of the causes alleged in that amen ded complaint. Since the complaint here has been amended, would it be necessary for the court to issue new summons addressed to the defendant, given that a new cause of action has been introduced? In one case, the Supreme Court said it is NO longer necessary because the amendment anyway is with leave of court and the defendant is furnished a copy of the amended complaint. You see, in the last example, the amendment is carried out during the trial of the case. That means to say that a n answer has already been filed by the defendant, which is why we need permissio n from the court before the amendment could be effected. Rule 11 speaks about the reglementary period for the filing of a responsi ve pleading. If you will recall, there are only two responsive pleadings among t he seven that are enumerated in Rule 6, and these are: the answer and the reply. So Rule 11 is expected to deal only with the reglementary period within which a n answer or a reply should be filed. Why did the Supreme Court fail to provide f or a period for the filing of a complaint, after all a complaint is also a plead ing and, in fact, it is a pleading that commences an action in court? The Suprem e Court does not have authority to fix a period for the filing of a complaint be cause that is matter of substantive law. The Supreme Court only has the authorit y to fix the period for the filing of responsive pleadings and other pleadings a side from the complaint. This is also the reason why in Rule 16, one of the grou nds for a motion to dismiss is prescription, and prescription as a ground for a motion to dismiss has its elements contained in the Civil Code. The prescription here is prescription of action, so that the plaintiff must file his complaint i n court before his cause of action prescribes. If prescription has set in and th e complaint nonetheless is filed, that complaint could be dismissed either upon motion of the defendant or upon the court s own motion. Remember Rule 9, prescript ion is one of the non-waivable defenses. How about the other claim pleadings, i.e., counterclaim, a cross-claim, a third-party complaint? Does the Rules of Court fix a period for the filing of a counterclaim, a cross-claim, a third-party complaint? If we are going to read R ule 11, there is by implication a period fixed for the filing of a counterclaim,

cross-claim, third party complaint and other claim pleadings, particularly a fi ling of a compulsory counterclaim and cross-claim. The reason again is that in t he Rules, a compulsory counterclaim and a cross-claim which are not set-up are d eemed barred. So, there is a period fixed for the filing of a compulsory counter claim and a cross-claim. How about a permissive counterclaim? There is no period fixed in the Rule s for the filing of a permissive counterclaim because whether or not a permissiv e counterclaim will be lost through prescription is a matter again that will hav e to be decided by the Civil Code that is, the prescription of actions. But if n the defendant desires to incorporate a permissive counterclaim or a third party complaint, he must do so during the pendency of the case. Because one of the rul es stated in Rule 11 is, although permissive counterclaim and a third party comp laint are independent pleadings, they cannot be filed separately from the answer . So if the defendant has a third party complaint, or if the defendant has a per missive counterclaim, he must always incorporate them in the answer so that what the plaintiff or what the defendant is going to file is an answer with a permis sive counterclaim or an answer with a third-party complaint. These pleadings, al though independent from the answer, should always be incorporated in the answer itself. And there is a period fixed for the filing of an answer. It is either 15 days, or 30 days or a period of not less than 60 days. In the matter of extending the period to file an answer, it is not always correct to say that the trial court has authority to extend the period to answe r. Again, you have to distinguish whether the case is governed by summary proced ure or by regular procedure. In summary procedure, the period to respond is nonextendible. It is period of 10 days. In other words, the trial court, in a case governed by summary procedure cannot extend the 10-day period within which to fi le an answer. Supposing that in a case governed by summary procedure, the defendant fil es a motion to extend the period to answer, can the court grant the motion? The court cannot grant the motion. If the court grants the motion, is the period dee med extended? Even if the court grants the motion, the period is not deemed exte nded because summary procedure is very clear. The period to answer is a non-exte ndible period. But in regular procedure, the court has discretion to extend the period within which to answer. Since the Rules allow the trial court in ordinary procedure, to extend th e period to answer, does the trial court also possess the authority to reduce th e period to answer provided for in the Rules? In other words, instead of giving the defendant a 15-day period, can the say that the period to answer is only 10 days? The trial court has the authority to extend the period but it does not hav e the authority to reduce the period within which to answer. But this rule is no t absolute. Are there civil actions where the court is given enough authority to reduce the period within which to answer? The answer is YES, in quo warranto pr oceedings. If you turn your code to Rule 66, in quo warranto proceedings, the tr ial court is given authority to reduce the period within which to file an answer . But generally, a trial court following summary procedure, only has the right t o extend a period. The trial court does not have the right to reduce the period fixed in Rule 11, except in quo warranto proceedings under Rule 66. If you go to the provisions of Rule 66, which are very short, the court may, if it deems jus t to fix a period that is shorter than that provided in the Rules of Court. The sanction for not following Rule 11, on the part of the defending part y is, of course, default. If the defendant does not file an answer within the re glementary period as fixed in Rule 11, the usual sanction is that he will be dec lared in default. Does the sanction apply to all claim pleadings? If we going to follow jurisprudence, it does not apply to all claim pleadings. if the counterc laim set-up by the defendant is a compulsory counterclaim, there is no need for the plaintiff to answer a compulsory counterclaim. Even if the plaintiff does no t answer a compulsory counterclaim, he cannot be declared in default. In one case decided in 1999, the SC said that a cross-claim is not answer ed, the cross plaintiff or the cross plaintiff can also file a motion to declare the cross defendant in default. But the SC said the court may or may not grant

the order of default. So, when it comes to cross-claim, it is up to the trial co urt to declare the defendant in default if the cross-claimant fails to answer a cross-claim. When it comes to a third party complaint, since it is practically a new a ction against the third-party defendant, the latter is also required to file an answer to the third-party complaint. How much time does the third-party defendan t have to answer the third-party complaint? Again, it all depends on whether the summons is served through publication, or through personal service, or if the t hird-party defendant is a foreign corporation, which has been served summons thr ough the proper government agency. In other words, when it comes to the period t o respond to a third party complaint, we also give to the [third-party] defendan t a 15-day period, a 30-day period or a 60-day period similar to the period whic h is given to the defendant when he files an answer to a complaint. The next rule after Rule 11 is bill of particulars. Bill of particulars i s also a prohibited pleading in summary procedure together with intervention. A bill of particulars is just a more definite statement of an allegation contained in the pleading which is not alleged with sufficient definiteness or adequacy. In a bill of particulars, the purpose of a litigant in asking for the particular s is to enable him to prepare a responsive pleading. There is great difference between the rule on bill of particulars in crim inal cases and the bill of particulars in civil cases. In a civil case, the purp ose why a bill of particulars may be availed of by a litigant is to enable the l itigant to prepare a responsive pleading. In a criminal case, the purpose of the accused in asking for a bill of particulars is to enable the accused to prepare for trial. So, in a civil case, a litigant cannot go to court and ask the court to issue an order to compel or direct the adverse party to submit a bill of par ticulars for the purpose of enabling the movant to prepare a responsive pleading . If a litigant reads the pleading submitted by the adverse party, and he c oncludes that he cannot really understand what the adverse party has written in the pleading, can not this party ask for the dismissal of the case if it is the complaint that is vague? Can he not go to court and complain to the court: I cann ot possibly submit an intelligent answer because I could not understand what the plaintiff is talking about? Is that not a ground for the dismissal of the compla int? Unfortunately, that is not one of the grounds for the dismissal of a case u nder Rule 16. the fact that the complaint contains vague and indefinite allegati ons is not one of the grounds enumerated in Rule 16 for the dismissal of the com plaint. If the defendant cannot understand what the plaintiff is talking about in his complaint and he convince the court, and the court is also convinced that t he allegations in the complaint could not be well understood, should not the def endant leave the complaint as it is? Can not the defendant also file an answer, which is not easy to understand? So that we have a case where the plaintiff s comp laint is hard to understand, where the defendant s answer is also hard to understa nd, and therefore, the chances are the court will be confused. Well, that may be a sound move because if the court itself is confused, the court cannot understa nd what the plaintiff s claim is all about and what the defendant s defenses are all about, the chances are the court might dismiss the case. But the plaintiff alwa ys has a remedy if the defendant does not ask for the bill of particulars. Any v agueness or indefiniteness in the complaint can always be remedied by the eviden ce to be introduced during the trial. So, if the allegations contained in the co mplaint are vague, the vagueness may be remedied by the evidence submitted by th e plaintiff in the course of the trial. Bill of particulars is not a remedy that is available to the defendant a lone. A bill of particulars is a remedy available to all litigants of a case, to both plaintiff and the defendant, to the third-party plaintiff, and to the thir d-party defendant. but in the cases decided in relations to bill of particulars are centered usually on a motion for bill of particulars filed by the defendant. But if you are going to read the rules, even the plaintiff can avail of a bill of particulars if the allegations contained in the answer are indefinite or vagu

e. A bill of particulars should, of course, be requested in the form of a mo tion. So there is a motion for bill of particulars that is filed by the interest ed party. The feature of a motion for a bill of particulars, which is not a feat ure in other motions, is that the court has the authority to rule on the motion even the date set for hearing. So if the defendant files a motion for bill of pa rticulars, under Rule 15 on motions, he should set his motion for bill of partic ulars for hearing on a motion day. Under the Rules, the court can disregard a he aring set on a particular motion date. Upon receipt of the motion, the court has the authority to rule on the motion right away. The court can either grant or d eny the motion right away. If the defendant asks for a bill of particulars and the court denies the motion, can the defendant assail the denial by going to a higher court? Of cours e, the answer is NO. The denial of a motion for a bill of particulars is a good example of an interlocutory order. So, it cannot be assailed and it cannot be ap pealed, it being an interlocutory order. Supposing that the court grants the motion for a bill of particulars, and the court directs the plaintiff to submit this bill of particulars, either inde pendently or in the form of an amended pleading or amended complaint or suppleme ntal complaint, and the plaintiff ignores the order of the court, is there any s anction that could be imposed by the court? If the plaintiff ignores an order is sued by the court for the submission of bill of particulars, the court can eithe r strike out the complaint. In which case, the complaint will be dismissed. Or i f the court will not strike out the complaint, the court will order the allegati ons in that complaint, which is vague and indefinite, to be stricken out. In the latter case, the complaint itself will not be stricken out, but only the portio ns of the complaint which are allegedly vague will be stricken out. Will that be prejudicial to the plaintiff that is, the complaint is not stricken out but onl y portions of that complaint are ordered stricken out? That order could also be prejudicial to the plaintiff because once some allegations in the complaint are ordered stricken out, the remaining allegation may be inadequate to allege a cau se of action and, therefore, the defendant can file a motion tom dismiss based o n failure to state a cause of action. Let us take the side this time of the plaintiff. As we said, a bill of pa rticulars is also available to the plaintiff, and the bill of particulars will b e addressed to the answer, the responsive pleading which contains also vague and indefinite allegations. The court orders the defendant to submit a bill of part iculars. The defendant ignores the order of the court. Can the plaintiff also mo ve that his complaint be stricken out? Of course, it is foolish for the plaintif f to move that his complaint be stricken out because the order of the court is f or the defendant to submit a bill of particulars concerning his answer. Can the plaintiff move that the answer, this time, be stricken out? This time, the court can properly order that the answer be stricken out. If the answe r is stricken out, what happens to the case? Well, nothing. The case continues. But if the court orders that the answer be stricken out, that means to say that in the eyes of the court the defendant has not filed an answer at all. Since in the eyes of the court the defendant has not filed any answer at all, then this w ill be a proper ground for a motion to declare the defendant in default. So, a b ill of particulars directed to the defendant and ignored by the defendant, the s anction could be that the answer be stricken out and, accordingly, the defendant could be declared in default. Can the court, instead of ordering the answer itself to be stricken out, simply order that only portions of that answer be stricken out, not the answer i tself, but only portions of the answer? Well, that is one of the prerogatives gi ven to the trial court. The trial court can order either the striking out of the pleading or only certain portions of that pleading be stricken out. If the court orders the striking out only of certain portions of the answ er, will that be disadvantageous to the defendant? it could be disadvantageous t o the defendant. it is simply possible that if certain portions of the answer ar e ordered stricken out by the court, what is left in the answer may no longer co

nstitute a specific denial. So, if the remaining portions of the answer will not be enough to meet the requirements of a negative defense, then, it is possible that the plaintiff can now ask for a judgment on the pleadings because the denia l contained in that answer is no longer a specific denial or a general denial. In the matter of service and filing of papers, judgments, motions and ple adings, you might be asked, which comes first? Is it the filing or is it the serv ice? See, that is really a tough question to answer whether it is service which c omes ahead of filing, or whether it is filing that comes ahead of service. Now, to get a correct answer, you have to determine the document that we are referrin g to. If the document referred to is a complaint, which is the pleading that co mmences an action, it is filing that comes ahead of service. If a plaintiff file s a complaint, you don t expect the plaintiff to serve a copy of the complaint upo n the defendant and then file it in court. In the case of a complaint, the compl aint is first filed in court, docket fees are paid and, after the filing of the complaint, it is served upon the defendant together with the summons. But that is in the case of a complaint. How about in the other pleadings in Rule 6? When it comes to a responsive pleading, and pleadings like countercla im and cross-claim, it is service that comes ahead of filing. Because we said a while ago that if there is a counterclaim or a cross-claim, these pleadings must always be embodied in the answer. And in the case of an answer, before the defe ndant could file his answer in court, he must first serve a copy of the answer u pon the plaintiff. In the case of a third-party complaint, it is the filing that personal third-party complaint, it cannot be admitted without leave of court. So, we must first file a motion for leave to admit third party complaint and, t hen, pay the docket fees. And after the third-party complaint is admitted, summo ns is also served upon the third-party defendant together with a copy of the thi rd-party complaint. How about in orders, judgments and resolutions of the court, which comes first? Is it the filing or the service? When it comes to the orders, judgments a nd resolutions of the court, it is the filing which comes ahead of service. When the judge renders his decision, the judge will first submit a copy or the origi nal decision to the clerk of court. That is filing. And it is now the duty of th e clerk of court to serve copies of a judgment or order upon the adverse parties . But whether the filing comes ahead of service or service comes ahead of filing , the litigants must always be aware that under the present rules there is an or der of priority when it comes to service. The order of priority is that personal service must always be resorted to . If personal service is not resorted to, there must be an explanation given by the party why he has not resorted personal service. Is this a serious violatio n of the Rules, that is, personal service is not resorted to but there is no exp lanation given by the litigant? The Supreme Court has always considered this to be a serious violation of the Rules. So if the motion is filed and the motion is served through registered mail without an explanation, the court has every re ason to consider that motion as a useless crap of paper. This rule is strictly followed by the Supreme Court. You must have heard about petitions for certiorar i dismissed by the Supreme Court outright simply because the petitioner has fail ed to give an explanation in his petition why personal service has not been reso rted to. What are the modes or service of these motions, pleadings, orders and jud gments? Of course, the first in priority when it comes to service is personal se rvice, then service by mail and lastly substituted service and service by public ation. It is only in unusual, exceptional circumstances when there is service by publication. But it is also a settled rule that if a litigant is represented by counse l, service must be made upon the counsel. If service is not made upon counsel bu t upon the party himself, it is not proper service. Service must always be made upon the counsel representing a litigant, not upon the litigant himself. You should also take note of the significant difference between substitut ed service of motions and pleadings and other documents and substituted service

of summons under Rule 14. when it comes to service of motions and pleadings, ser vice of said motion or pleading upon the counsel is considered as personal servi ce. In summons, personal service means service upon the defendant himself person ally. In fact, the term used in Rule 14 is not personal service but service in p erson to emphasize that the summons must be delivered or at least tendered to the defendant himself. If summons is tendered properly upon a person other that the defendant, t hen that is substituted service of summons. In pleadings and motions, substitute d service refers to a situation where personal service and service by mail is no t effective. If personal service and service by mail is not effective, the party will go to the clerk of court, present proof that he has tried to serve this do cument through personal service or service by mail to no avail and he submits th e paper to the clerk of court that is the meaning of substituted service in Rule 13. Again, when it comes to Rule 13, always pay attention to the requirement on the order of priority. Personal service must always be availed of ahead of the other modes of service. Otherwise, the service will not be considered as having been properly carried out. Summons in Rule 14. Our usual impression when it comes to summons is that there is a need for summons because this is the only means by which the court c an acquire by compulsion, jurisdiction over the person of the defendant. That is not an accurate statement. A court can acquire jurisdiction over the person of the defendant by compulsion that is, not by voluntary appearance. Even if the pr ocess is not through summons, there could be other modes by which the court can acquire jurisdiction over the person of the defendant. A good example is Rule 65. That is the rule on certiorari, prohibition an d mandamus. Rule 65 is an independent civil action, although we call it a specia l civil action. In Rule 65, the court does not issue a summons. What does the co urt issue in Rule 65? The court simply issues an order addressed to the defendin g party to file a comment. That is a process, which will confer upon the court, by compulsion, jurisdiction over the person of the respondents/defending parties . This is also the reason why in Rule 65, since summons is not issued by the cou rt, if the respondent ignores the order of the court to file a response or a com ment, the court cannot declare the respondents in default because the process is sued is not a summons. So, there are instances in the Rules where jurisdiction over the person o f the defendant is not acquired necessarily through service of summons. It could also be acquired through the service of other processes. But generally, for a c ourt to acquire jurisdiction over the person of the defending party by compulsio n, summons must be served upon the defendant. of course, if the defendant volunt arily appears in court, then there is no more need for the court to cause the se rvice of summons. Upon the voluntary appearance on the part of the defendant wil l enable the court to acquire jurisdiction over his person. In summons, since the main purpose is to enable the court to acquire juri sdiction over the person of the defendant, the modes of service as enumerated in the Rules must be strictly followed. Just like in Rule 13, there is also an ord er of priority when it comes to service of summons that is, service in person wi ll always be preferred over substitute service. And service by publication canno t be had unless the court is convinced that personal service or substitute servi ce has been resorted to but it has not been successfully carried out. In 1999 or year 2000, when it comes to defendant corporation that is dome stic, the Supreme Court came out with the case of Villaroza which ruled that when the defendant is a domestic corporation, service of summons must be made upon a ny one of the officers enumerated in Sec. 11. They are the president, the genera l manager, the managing partner or the treasurer, the corporate secretary or inhouse counsel. According to this case of Villaroza, service upon any other offic er of the corporation will not be sufficient to confer jurisdiction over the per son of this corporation on the part of the court. In other words, the Supreme Co urt in Villaroza gave a very strict interpretation on the manner of service of s ummons upon a domestic corporation. In the case of Villaroza, the summons was se rved upon the branch manager of the defendant corporation. The SC said that is n

ot a proper service because Section 11 of Rule 14 speaks about a general manager or a managing partner. We all thought that sooner or later the Supreme Court will revert to the old doctrine of substantial compliance with the Rules of Court. But in the case of Mason vs. CA, 13 Oct. 2003, the Supreme Court affirmed anew the strict applic ation of the rules on service of summons upon a domestic corporation. So, we now have two decisions of the Supreme Court which apply strictly the rules concerni ng service of summons upon a domestic corporation. Again, in order to have a valid service of summons upon a domestic corpor ation or a partnership, the summons must be served upon anyone of the officers m entioned in Section 11, Rule 14. Otherwise, the court does not acquire jurisdict ion over this defendant-corporation. And if the court is not considered to have acquired jurisdiction over the person of the defendant-corporation, a decision r endered by the court is null and void. For a decision to be valid, the court mus t have jurisdiction over the subject matter, it must have jurisdiction over the person of the litigants and, in some instances, the law requires that the court must also have jurisdiction over the res and the issues submitted to the court. You will also notice that in Rule 14, when the defendant is a minor or an insane person, summons must be served upon the minor or insane person and also upon the guardian. The rule is also quite clear. There must be service of summon s upon both the guardian and the minor or insane person. When the defendant is i nsane, summons must be served both upon the insane person and upon his guardian. Let s have a break. To continue with summons, you read secs. 14, 15 and 16. Service by public ation. Again, there are conflicts concerning the applicability of these three se ctions. Service of summons by mail is NOT a mode of service. If the court direct s that summons be served by mail, that order of the court is void. And if the su mmons is sent by registered mail, even if it is received by the defendant, the c ourt does not acquire jurisdiction over the person of the defendant. There are only three modes of service of summons in Rule 14 service in pe rson, substitute service and service by publication. Service by mail is just com plimentary to service of summons by publication. If you are going to read secs. 14, 15 and 16, which all refer to publication of summons, it is very clear that if the defendant is unknown that is in sec. 14, or his whereabouts are unknown, the court could properly direct that summons be served by publication. In sec. 1 5, which is the old doctrine on the service by publication called extra-territori al service, the situation contemplated is that the defendant is non-resident and is not found in the Philippines. Generally, we cannot sue in the Philippines a d efendant who does not reside in the Philippines and who is not found in the Phil ippines. The cases excepted are those enumerated in sec. 15. The first is the case involves the civil status of the plaintiff, when it relates to a property in the Philippines over which the defendant has an intere st, or it relates to a property and the prayer sought is to exclude the defendan t from an interest over that property, or when properties of this defendant have been attached. On the other hand, the situation contemplated in sec. 16 is that the defe ndant is a resident of the Philippines but he is temporarily out of the Philippi nes. Sec. 16 appears to authorize the court to order the publication of the summ ons in order to enable the court to acquire jurisdiction. So that you must learn ed in Civil Procedure that even if an action is purely in personam, like an acti on to recover a sum of money, as long as anyone of the requirements in secs. 14 or 16 are present and the plaintiff asks for publication of the summons, the cou rt can properly grant the motion which will enable the court to acquire jurisdic tion over the person of the defendant, regardless of the nature of the action wh ether the action is purely in personam. An action that is purely in personam is illustrated by a complaint for th e recovery of money or an unpaid loan. That is an action purely in personam. So that since 1997, everybody is of the belief that if the defendant is out of the Philippines even temporarily, he is sued as an unknown defendant or his whereabo uts are unknown, as long as the plaintiff can show that personal service and sub

stitute service could not be carried out properly, his last recourse is to file a motion in court to leave to publish the summons. In the case of Jose vs. Boyon , October 2003, the Supreme Court has reverted to the old doctrine that when the case is purely min personam, publication of the summons, even if allowed by the trial court, will not enable the court to acquire jurisdiction over the person of the defendant. So, it seems that we should follow the doctrine laid down in t hat old case of Citizen s Surety vs. Herrera. You are familiar probably with that case. In that case of Citizen s Surety vs. Herrera, which was decided long before these 1997 Rules were promulgated, the doctrine was this: if an action is purel y in personam, before the court acquire jurisdiction to try the case and the def endant could not be served by service in person or personal service, before the court could acquire jurisdiction by service of summons through publication, the action in personam must first be converted into an action in rem or quasi in rem . In this 2003 case of Jose vs. Boyon, the Supreme Court has emphasized that old doctrine in Citizen s Surety vs. Herrera, that before we can publish summons, the action in personam must first be converted into an action in rem or quasi in re m. If you have forgotten that case of Citizen s Surety vs. Herrera, the facts are substantially like this: A complaint was filed against the defendant for the recovery of sum of money. So that was clearly an action in personam. The sherif f submitted his to the court, and in the return by the sheriff is was clearly in dicated by him that he could not find the defendant, that he could not summons u pon him personally. The sheriff also submitted a return that substitute service could not be carried out because the sheriff does not know where the defendant l ived. Since summons could not be serve by personal service or substitute service , the plaintiff filed a motion in court asking the latter for permission to publ ish the summons to enable the court to acquire jurisdiction over the case. Of co urse, nobody objected to that motion because the defendant could not be located. Since there was no opposition to the motion and the plaintiff was insistent tha t the court issue an order to publish the summons, the court issued that order. The court told the plaintiff: Alright, you publish the summons once a week for th ree consecutive weeks. And the plaintiff complied with that order. After the publ ication of the summons, the plaintiff returned to the court. This time the plain tiff asked the court to declare the defendant in default because the records did not show that an answer was filed by the defendant. At this point, Judge Herrer a, when confronted with the motion, told the plaintiff: Wait. I will not grant yo ur motion. You first explain why your complaint should not be dismissed, because it seems the court has not acquired jurisdiction over the person of the defenda nt. The plaintiff retorted: But you were the one who authorized me to publish the summons. Now that I have published the summons, you are now asking to explain wh y my complaint should not be dismisses? The judge said: But that is our jurisprude nce. Your complaint is one in personam and you have not converted the action in personam to in rem or quasi in rem. So the court has not acquired jurisdiction o ver the case. Because the plaintiff could not give a decent explanation, which wa s really impossible, the court issued an order dismissing the complaint. Well, t he plaintiff was not satisfied, in fact, the plaintiff was irritated. The plaint iff felt that he was double crossed by the court. The plaintiff went to the Suprem e Court, which held the judge is correct. When the action is purely in personam, before summons could be published in order to enable the court to acquire juris diction, that action in personam must first be converted into in rem or quasi in rem. In reverting to this old doctrine, the Supreme Court further said: and it i s easy to convert an action in personam into an action in rem or quasi in rem. A ll that the plaintiff needs to do is to look for a property in the Philippines b elonging to the defendant and have it attached. Then the plaintiff thought: How co uld I ask the court to attach a property of the defendant when the defendant s whe reabouts area unknown, or he is even an unknown defendant? And why will the cour t issue a writ of preliminary attachment if the court has not acquired jurisdict ion over the defendant in the first place? It seems that the plaintiff forgot Rul e 57, because in that rule it is expressly provided that a preliminary attachmen

t may be issued if the defendant could not be located in the Philippines. So the re was no problem at all. It is quite easy for the plaintiff to convert his acti on in personam into in rem or quasi in rem by the simple expedient of attaching properties of the defendant in the Philippines. If the properties in the Philipp ines could not be located, then it is also useless to ask the court for a writ o f preliminary attachment. But the assumption is that the plaintiff should have e nough resources to look for properties of the defendant in the Philippines that could be the subject of a writ of preliminary attachment. Since the Supreme court have agreed with the trial court, the next proble m confronted by the Supreme Court was this: if we are going to affirm the dismiss al of the case, and the case is eventually dismissed, it is possible that by the time plaintiff is able to locate properties in the Philippines belonging to the defendant, and he files a subsequent complaint as king for preliminary attachme nt, prescription might already set in. So if it takes the plaintiff a very long period of time to properties and the case, in the meantime, has been dismissed, it is possible that by the time properties are located, his cause of action woul d have already prescribed. So, if he files another case, another problem will co nfront the plaintiff. That is the dismissal of the second complaint by reason of prescription, which you know very well is one of the non-waivable defenses. In order to avoid this situation, the Supreme Court modified the judgment of the trial court. The SC said: The trial court is correct in saying that it di d not acquire jurisdiction over the case. But the trial court committed an error in dismissing the case. What the trial court should have done is to archive the c ase, place the matter in the archives of the court. Placing the case in the arch ives of the court is different from dismissing the case. If a case is archived, it remains to be in the records of the court, as an action duly filed in court. Now, how will archiving the case benefit the plaintiff in the sense that archivi ng of the case will prevent prescription from setting in? According the the SC, if a case is sent to the archives, the only consequence is that it will not be c onsidered as an active case. But still, there is a case that is pending in court , and under the Civil Code, prescription does not start to run if there is a cas e that is pending in court. So, that SC decision in Citizen s Surety vs. Herrera r eaffirmed that doctrine that before the court could acquire jurisdiction over a case in personam through publication of summons, that case must first be convert ed into one that is in rem or quasi in rem. Now, if it is not possible to convert the action in personam into in rem or quasi in rem, the remedy of the court is not to dismiss the case but send the records to the archives, to be reactivated when the plaintiff is able to locate properties of the defendant in the Philippines. These were the doctrines in Cit izen s Surety vs. Herrera until again the 1997 Rules came out. And as I said, if y ou are going to read secs. 14, 15 and 16, it would seem that this Herrera case w as abandoned by the 1997b rules. But again, in this 2003 case of Jose vs. Boyon, the SC reitereated that there was no intention on the part of the SC to abandon the Herrera doctrine in adopting the 1997 Rules on civil actions. So, the rule up to the present is that in actions purely in personam, before summons by publi cation could enable the the court to acquire jurisdiction over the case, the act ion must first be converted from in personam into in rem or quasi in rem. And th e conversion easily be done by attaching properties of the defendant found in th e Philippines. Since we have reverted to this doctrine in Citizen s Surety vs. Herrera, we are also reverting to the old precept that when an action is purely in personam converted into quasi in rem because properties of the defendant in the Philippi nes are subject to preliminary attachment, if the defendant does not respond at all, does not file an answer, the case will remain to be an action quasi in rem or in rem, as the case may be. But if the defendant later on files an answer to the complaint, the action will be reconverted from quasi in rem into in personam . So we took this up some time ago. We have a situation where a case starts as i n personam, it is converted into quasi in rem and it is reconverted into in pers onam once more simply because the defendant has filed an answer after publicatio n of the summons.

The next rule is about motions. The noticeable distinction between a moti on and pleading is the number. In Rule 6, there is an enumeration of only nine p leadings. In other words, in our system, we recognize only nine pleadings. but i n Rule 15, you will notice that the SC mentions nothing about the number of moti ons that could be used in a particular case. It is not possible for the SC to en umerate all the possible motions because a motion depends mostly completely upon the creativity of a lawyer. If a lawyer cannot ask for a relief in a pleading, he can always do so in a motion. And it is up to him to give the name of the mot ion. Pleadings cannot be filed while the case is already on appeal before the SC, before the CA or before the RTC. That is, if we consider a RTC as an appella te court. But even if the case is on appeal to these appellate courts, while ple adings can no longer be filed, there is nothing to stop a litigant from filing m otions before appellate courts. So it is utterly impossible for the SC to tell p arties, here is the number of motions that could be utilized in a particular case . There is also a difference in form between a motion that is filed before a trial court and a motion that is filed before the appellate court, like the SC or the CA. In a motion filed before the trial court in Rule 15, the motion gene rally must contain a notice of hearing. Otherwise, according to jurisprudence, a motion without a notice of hearing, a motion which does not comply with the req uirements in Rule 15, is a useless piece of paper it is a scrap of paper. A moti on that filed before the CA or the SC does not have to contain a notice of heari ng. The reason is, in the SC and in the CA, there is no such thing as a motion d ay. If a party files a motion before the CA or the SC, and he embodies in his mo tion a notice of hearing, there is a great chance that this party will be asked to explain why he should not be cited for contempt of court. But before a trial court, compliance with all the requisites of a motion is a must. The requirement s are found in Rule 15 that is, a notice of hearing. Otherwise, the motion is ju st a scrap of paper and the court has no authority to act on that motion. In Rule 15, you should concentrate on the Omnibus Motion Rule, which say s that motion attacking a pleading should contain all the grounds therein availa ble. Otherwise, grounds that are left out are waived, except again the grounds i n Rule 9, the non-waivable grounds. Although the Rules do not enumerate the motions that could be availed of by a litigant in a particular case, there is a special kind of motion that is gi ven concentration by the Rules. A motion that is given particular attention by t he Rules because of its uniqueness, and we are referring to Rule 16 - a motion t o dismiss. You will see that this is one of the few motions to which is devoted a particular rule. Rule 16 is particularly devoted only to a motion to dismiss. There are motions like a motion for postponement, but you do not find any partic ular rule talking about a motion for postponement. Another unique motion that de serves particular attention is that found in Rule 37 that is, motion for new tri al / motion for reconsideration. But we are going to take up this motion that de serves a particular attention given by the SC that is, Rule 16 on a motion to di smiss. The examiner might ask the following question: Can the defendant file a motion to dismiss under Rule 16 one after another? In other words, can the defe ndant file a motion to dismiss today, if it is denied, next week he files anothe r motion to dismiss, and again, if it is denied, the third week he files another motion to dismiss, and if it is denied once more he will file a fourth motion t o dismiss? Do not immediately jump to the conclusion that it is not possible. It can be done. There could be four successive motions to dismiss filed by the defendant notwithstanding the Omnibus Motion Rule. Again, we are just applying Rule 9, which enumerates the non-waivable motions. So that if the defendant is served with summons and after analyzing the complaint, the defendant feels that the 4 grounds are available that is the four non-waivable grounds: lack of juris diction over the subject matter, prescription, litis pendencia and res judicata. He can file first a motion to dismiss based on lack of jurisdiction over the s ubject matter. If that is denied, he can file a second motion to dismiss founde

d on res judicata. If that is again denied he can file a third motion to dismis s founded on res judicata. If that is again denied he can file a third motion t o dismiss based on litis pendencia. And again, if that is denied he can file a fourth motion to dismiss based on prescription. In other words that is the mean ing of a non waivable defense in Rule 9. If these defenses are available, the O mnibus Motion Rule does not apply. The defendant is given the freedom to file s uccessively four motions to dismiss founded on these four grounds. Because agai n Rule 9 clearly says that these are non-waivable defenses. But when it comes to the other grounds for a motion to dismiss enumerated in Rule 16 even if all of them are available at the time of the filing of the m otion to dismiss, these grounds must be invoked in a single motion to dismiss. Otherwise, the Omnibus Motion Rule will apply. A ground that is not incorporate d in a motion to dismiss is deemed waived. Just like any other motion, the court will have to resolve. And in other motions there are only two options given to the court in resolving a motion. E ither grant the motion or deny the motion. In the case of a motion to dismiss t here is a third option that is given to the court - that is, the court will not grant the motion, the court will not deny the motion but instead the court will order amendment to the pleadings. This is also a unique feature of a motion to dismiss. It seems that it is only in a motion to dismiss where a court is given the third option that is order the amendment of a pleading. Another unique feature of a motion to dismiss not found in other motions is that in resolving a motion to dismiss the court is mandated to explain the re asons which support the resolution of the court. In other motions, the court ca n simply say the motion is granted because it is meritorious or finding no merit, t he motion is denied. That is the usual aptitude of courts before other motions. But when it comes to a motion to dismiss, whether the court grants or denies th e motion or orders an amendment to the pleading, the court must give reasons /th e court must explain the basis of its resolution either granting or denying the motion to dismiss. Another feature of a motion to dismiss is that, the court may conduct rea lly a trial / a hearing of this motion to dismiss, although there a re other mot ions also which may require the holding of a trial. For instance, a motion for t he issuance of a preliminary attachment or a motion for the issuance of a tempor ary restraining order or a writ of preliminary injunction, these motions could a lso require the holding of a trial. In Rule 16 also, it is clearly provided that if the court conducts a tria l on a motion to dismiss, the evidence submitted during that hearing and everyth ing that comes during the motion to dismiss are deemed reproduced during the tri al of the case, so that there is no need for repetition of trial that is conduct ed with the court with reference to a motion to dismiss. Can the plaintiff file a motion to dismiss a complaint using Rule 16 moti on to dismiss? The answer is YES as long as the ground used by the court is any one of the non-waivable grounds. If you go back to Rule 9 in the enumeration of non-waivable defenses, the court is given authority to dismiss motu proprio a c ase based on any of the non-waivable grounds. So the court also can dismiss a c ase under Rule 16 but the grounds should be limited to those grounds enumerated in Rule 9. If a motion to dismiss is denied by the court, can the defendant assail t he order of denial by bringing it up to a higher court? Well, the answer is NO. Generally, the denial of a motion to dismiss is an interlocutory order. It ca nnot be questioned by appeal. Can the defendant assail the denial of his motion by availing Rule 65? YES, as long as he can comply with the requirements of Ru le 65, that is, he can file a petition for prohibition under Rule 65. If a motion to dismiss is granted by the court, is the order dismissing t he complaint an interlocutory order. It s no longer an interlocutory order. An or der dismissing a case by reason of a motion to dismiss under Rule 16 is a final order; it cannot be an interlocutory order. Since it is a final order, can the plaintiff therefore appeal from that order of dismissal? Again you have to read Rule 41 to be able to arrive at a correct answer.

You see in Rule 16 itself, it is provided that if the dismissal is founde d upon the grounds enumerated in letters F, H, and I, there could be an appeal. And these grounds are res judicata; prescription; the obligation has been waive d, abandoned or otherwise extinguished; when the court finds that the claim is u nenforceable under the Statute of Frauds. In other words when it comes to the granting of a motion to dismiss and t he question revolves around the remedies available to the plaintiff in assailing the dismissal of his case, do not jump to the conclusion that since it is a fin al order it is appealable to a higher court. Again, if you read Rule 41, there is an enumeration of final orders, that s Section 1 of Rule 41. There is an enume ration of orders which although considered as final, are not appealable. So, no t all final orders are appealable under Rule 41. There are certain orders consi dered to be final which are not appealable and the only remedy that is given to the plaintiff is petition for certiorari under Rule 65. In the enumeration of f inal orders which are not appealable in Rule 41, it is mentioned that an order o f dismissal without prejudice although it is a final order, is not appealable. The remedy in the last paragraph of Section 1 of Rule 41 is not appeal but a pet ition under Rule 65. So our inquiry will be along this line. Is the dismissal of a complaint under Rule 16 a dismissal with prejudice or is it a dismissal wit hout prejudice? If the dismissal is founded upon any of the grounds mentioned i n letters F, H, and I, the dismissal is a dismissal with prejudice and therefore the remedy of the plaintiff is to appeal, not to file a petition under Rule 65. But if the dismissal of a case under Rule 16 is founded on grounds other than letter F, H, and I, the dismissal is a dismissal without prejudice and therefor e the remedy of the plaintiff is not to appeal but to file a petition for certio rari. Well, of course by implication, Rule 41 tells the plaintiff: If the dismissal is without prejudice all that the plaintiff needs to do is to file another complaint again st the same defendant, for the same cause. But if he insists on assailing the o rder of dismissal without prejudice, he is precluded from taking an appeal. His only recourse is to file a petition for certiorari. Well of course by implicat ion, Rule 41 tells the plaintiff: If the dismissal is without prejudice you don t have to make use of Rule 65. Since the dismissal is without prejudice all that the plaintiff needs to do is to file another complaint against the same defenda nt for the same cause. But if he insists on assailing the order of dismissal wi thout prejudice, he is precluded from taking an appeal. His only recourse is to file a petition for certiorari under Rule 65. So if you go through the enumeration of the grounds for a motion to dismi ss: lack of jurisdiction over the subject matter, lack of jurisdiction over the person, improper venue, failure to state a cause of action and so on and so for th. A dismissal founded on anyone of these grounds again excepting letters F, H and I will be considered as a dismissal without prejudice and therefore the rem edy of the plaintiff is to file a petition for certiorari as mandated by Rule 41 . Rule 16 also tells us that instead of filing a motion to dismiss, the def endant could choose to file an answer and incorporate in that answer any or all of the grounds in Rule 16 as an affirmative defense. So, the defendant is given also a choice, either file a motion to dismiss under Rule 16 or file an answer and make use of the available grounds as an affirmative defense. From the point of view of the defendant, will it be advantageous for him if he simply files a motion to dismiss or will it be advantageous for the defend ant to file an answer for affirmative defense? Strictly from a procedural point of view, it will be more advantageous for a defendant to file an answer with af firmative defense. Why? If the defendant files an answer with an affirmative d efense, that is, he makes use of any of the grounds in Rule 16 as an affirmative defense. He can incorporate in that answer already a counterclaim, a permissiv e or compulsory counterclaim. And then he could ask for a preliminary hearing o n these affirmative defenses as if a motion to dismiss has been filed. If the c ourt is convinced that the case should really be dismissed by reason of Rule 16, the court will really order the dismissal of the case. But in Rule 16 it is pr

ovided that the dismissal of the complaint will not prejudice any counterclaim, which the plaintiff has set up. So, the case will be dismissed but a countercla im set up by the defendant in his answer will not be dismissed. It can be tried by the court. If that is the only procedural advantage, cannot the defendant also file a motion to dismiss and embody in that motion to dismiss his counterclaim so tha t if the motion to dismiss is granted he will just ask the court to go ahead and hear the counterclaim? That is not possible. A counterclaim must always be in corporated in another pleading. A motion to dismiss is not a pleading so that i t is not proper for a defendant to file a motion to dismiss with a counterclaim. He can only file a counterclaim if he files an answer and in that answer he ma kes use of any of the grounds in Rule 16 as an affirmative defense. Good afternoon. We continue with Rule 16, motion to dismiss. And we ll take up the grounds for a motion to dismiss. The first ground is, absence of jurisdiction over the subject matter. Whe never you are confronted with problem concerning jurisdiction over the nature of the case or over subject matter, you can forget about the Rules of Court. There is nothing in the rules of court which has provided for jurisdiction of courts over the subject matter. The reference should always be to BP 129. But do not co nsider BP 129 as the only law that will give a correct answer to a problem on ju risdiction. BP 129 is the general law on jurisdiction and, as general law, it wi ll always give way to a special statute or a special legislation. For instance, real actions are cognizable either by a RTC or an inferior court depending upon the assessed value of the property. This is provided in BP 129. But if the real action involves title to or possession of a subdivision lot , and the dispute is between the subdivision develop and the subdivision lot buy er, the case is not cognizable by a RTC or an inferior court. That case is cogni zable exclusively by a quasi-judicial body, the Housing and Land Use Regulatory Board (HLURB) by virtue of PD 957. Another real action, for instance, which is n ot cognizable by courts of justice either by the RTC or an inferior will be a la nd covered by the Agrarian Reform Code. These disputes are cognizable by the age ncies treated by the Department of Agrarian Reform. Another ground is lack of jurisdiction over the person of the defendant. Of course, this is procedural. How can the defendant properly assail lack of jur isdiction over his person on the ground that summons has not been served upon hi m properly when he is compelled under Rule 16 to file a corresponding motion? Do es not the filing of the motion to dismiss itself be considered as recognition b y the defendant that the court has jurisdiction over his person? Well, even if a defendant files a motion to dismiss founded on absence of jurisdiction over the person of the defendant, the mere filing of the motion to dismiss will NOT be c onsidered as voluntary submission by the defendant of his person to the jurisdic tion of the court. That is sometimes known as a special appearance in a motion t o dismiss by the defendant founded on this ground that is, lack of jurisdiction over his person. Under the present rules, if the defendant files a motion to dismiss based on lack of jurisdiction over his person, he can also avail of the other grounds mentioned in Rule 16, which is contrary to past jurisprudence. Under old jurisp rudence, if a defendant files a motion to dismiss founded on lack of jurisdictio n over his person, he should not accompany his motion with any other grounds. Th at has been abandoned by the present rules. So, lack of jurisdiction over the pe rson of the defendant CAN be coupled or accompanied by other grounds for a motio n to dismiss mentioned in Rule 16. The next ground is improper venue. We have taken venue in Rule 4. Another ground is lack of capacity to sue on the part of the plaintiff. Supposing, it i s the defendant who does not have the capacity to be sued, will that be a ground for dismissal under Rule 16? The answer is YES. But the basis will be failure t o state a cause of action, litis pendencia or otherwise known as poter accion pe ndant. Do not confuse litis pendencia with lis pendens which is found in Rule 13 . Notice of lis pendens is a contructive notice in real actions. Notice of lis p endens operates when the case involves title to or possession of real property,

and one of the litigants requests the register of deeds to annotate at the back of the title of the property involved of the fact that there is pending between the plaintiff and the defendant involving this peal property. The concept of a n otice lis pendens, therefore, eliminates its use to personal action that is, whe n the action involved personal property, the litigants cannot make use of the no tice of lis pendens. Again, notice of lis pendens is limited in its application to a dispute involving title to real property. Since there is an action that is already pending in court, does the inter ested party need permission from the court before he can register a notice of li s pendens? The answer is NO. for the purpose of recording a notice of lis penden s even if there is already a pending action, the register of deeds has a ministe rial duty to record this notice of lis pendens. The register of deeds cannot tel l the applicant to produce permission from the court. Will it give any advantage to the interested party if the notice of lis p endens is so registered? Will the notice of lis pendens be an obstacle or will i t prevent this property from being sold during the pendency of the case? A notic e of lis pendens is only a notice to the whole world that there is a pending act ion between the plaintiff and the defendant. The registered owner of the propert y will not be prevented or precluded from disposing the property. So, a property that carries with it an annotation of a notice of lis pendens can be sold, mort gaged or encumbered. The notice of lis pendens will not be considered as obstacl e to the conveyance of the property involved in the litigation. The advantage enjoyed y the applicant is that the subsequent buyer of the property or the person who subsequently acquires a lien over the property canno t be considered as a lien holder or buyer in good faith. So, the sale or the enc umbrance is valid, but the same will be subject to the outcome of the litigation . Since a notice of lis pendens could be recorded even without the permissi on of the court, can the notice of lis pendens be cancelled without permission f rom the court? This time, if it is a cancellation of notice of lis pendens, ther e is a need for an order of the court to carry out the cancellation. So, the reg istration of a notice lis pendens does not require prior leave, but the cancella tion thereof requires permission from the court trying the case. So, that is the concept of a notice of lis pendens. Litis pendencia, on the other hand, simply means the pendency of another case involving the same parties founded on the same cause of action. We had the occasion to talk about litis pendencia when we were discussing spliiting a cause of action. When a cause of action is split by the plaintiff and he, theretofore , files two or more complaints against the same defendant, involving the same su bject matter and founded on the same cause, the rule on splitting a cause of act ion says that one or more of the causes can be dismissed under Rule 16 by reason of pendency of another action. Under Rule 9, we also had a chance to talk about litis pendencia. Under R ule 9, litis pendencia is one of the non-waivable grounds for the dismissal of t he case. In the old case entitled Hongkong and Shanghai Bank vs. Aldecoa, a proper ty was mortgaged to the Bank. The mortgagor filed a complaint against the bank f or the annulment of the mortgage. So, that was case #1, a complaint for the annu lment of the mortgage. During the pendency of the case, the indebtedness became due, and the mortgagor failed to pay the obligation. So, the bank decided, as it did, to file a complaint for the foreclosure of the same mortgage. So, case #2 was a complaint to foreclosure the mortgage. The mortgagor, upon receipt of the summons issued in the second case, filed a motion to dismiss founded on litis pe ndencia. The mortgagor argued that the mortgage cannot be foreclosed during the pendency of his complaint for annulment of the mortgage. The mortgagor said, if t he mortgage is annulled in my complaint, then there is nothing to foreclose on t he part of the bank. So, case #2 should be dismissed and wait for the outcome of case #1. That was a very logical approach. It is really impossible to foreclose the mortgage that is already annulled or set aside. But the Supreme Court said t here is NO litis pendencia. In other words, the two cases could stand together.

So, even if the first complaint is for the annulment of a mortgage and the succe eding case is for the foreclosure of a mortgage, the two cases could stand toget her. The SC said that in litis pendencia, the essential requirement is that the outcome of anyone of the will be res judicata as to the other, regardless of who is going to prevail in anyone of these cases. If we are going to use that standard, the argument of the mortgagor is c orrect only partially. His argument that if the mortgage is eventually annulled, there is nothing to foreclose is correct. But the mortgagor did not take into a ccount the other possibility. The other possibility is that in case #1, the cour t may not annul the mortgage. So, if the mortgage is not annulled in case #1, th ere is noting to stop the bank from foreclosing the mortgage. So, in litis pende ncia, what is essential is that the decision in anyone of the cases will constit ute a res judicata as to the other case. Again, if the mortgage is annulled, cas e #2 can really push through because the foreclosure of the mortgage is predicat ed on the premise that there is a valid and existing mortgage. In 1990, a similar case came out involving, this time, a trust receipt, w hich served as collateral for a loan. The debtor also filed a complaint for the annulment of the contract treating it as trust receipts. Later on, during the pe ndency of the case, the bank filed a complaint for the recovery of the loan foun ded on these trust receipts. The same arguments were presented and the court res olved the matter of litis pendencia in a way similar to that old case of Aldecoa . So, there was no litis pendencia even if it appears initially that the two cas es are inter-related and the two cases involved the same parties and subject mat ter. What is missing, again in these litigations, is the essential requisite tha t the decision on one of the cases must serve as res judicata as to the other ca ses. Going back to lack of jurisdiction over the subject matter, one of the di stinctions between jurisdiction and venue is that venue is essentially waivable because it is procedural, but jurisdiction being part of substantive law, cannot be the subject of an agreement between the parties and cannot be waived. But we all know that absence of jurisdiction over the subject matter could be the subj ect of waiver as exemplified in that well known case of Tijam vs. Sibonghanoy. I assume you are familiar with the doctrine in the Tijam case. Before the case of Tijam was resolved by the SC, the procedural precept w as that jurisdiction, being a matter of substantive law, cannot be the subject o f an agreement between the parties and cannot be the subject of waiver. In other words, this was a rule that did not recognize any exception. But in 1968, the c ase of Tijam was decided and the SC recognized this time an exception to the rul e that is, if a party fails to raise the issue of jurisdiction for a considerabl e length of time, then that party may be estopped by laches from raising the iss ue of jurisdiction. In the Tijam case, the period involved was 15 years. So, if you are going to answer a problem on estoppel by laches concerning jurisdiction, you should always state that in Tijam, the period involved was at least 15 year s. Also, in Tijam, the decision referred to a case that was already on appea l to the SC. The case of Tijam, of course, originated from a CFI. The court clea rly did not have jurisdiction over the case but nobody raised the issue of juris diction. The Court did not even know the extent of its jurisdiction at that time , and under our rules, the court is conclusively presumed to know the extent of its jurisdiction. But the court failed to dismiss the case for absence of jurisd iction. When the court was brought to the CA, several incidents also took place b efore the CA, and nobody raised the issue of jurisdiction. When the case went to the SC, which was the first time when the defeated party asked the SC to dismis s the case on the ground that the judgment was null and void because of the abse nce of jurisdiction over the subject matter. Well, the SC was placed in a quanda ry. The SC had always advocated that when a court decides a case without jurisdi ction, the decision is null and void. And it could be assailed at anytime. But t he SC took into account that the case has been pending for 15 years, and the SC said, if we are going to dismiss this case and remand the case to the CFI with pr

oper jurisdiction, now RTC, it is simply possible that this will finally be deci ded after the lapse of another 15 year period. So the SC said, This is anomalous. We will have a case in our hands involving only the sum of not more than P2,000 to be finally decided after a period of 30 years. So the SC had to look for an ex cuse in refusing to dismiss the case. And the SC invented this theory of estoppe l by laches in questioning the lack of jurisdiction over the subject matter. After the case of Tijam was decided, several cases reached various trial courts and also the SC making use of the doctrine that is, a party can assail th e jurisdiction of the court by virtie of the principle of estoppel by laches. Un til another case came about in 1982, and that was the case of Calimlim vs. Ramir ez. In calimlim vs. Ramirez, the SC finally settled the question. The SC held we still adhere to the old rule that lack of jurisdiction over the subject matter i s a question that can be raised at any time, at any state of the proceedings unl ess the case falls within the coverage of estoppel by laches as enunciated in Ti jam vs. Sibonghanoy. So, the rule is still that a court cannot validly decide a case which does not fall within its jurisdiction. And the defeated party can rai se this issue at anytime, at any stage of the proceedings. The exception is Tija m vs. Sibonghanoy. Another exception appears to have been recognized by the SC even if the 1 5-year period is not involved or is not apparent. In one case, an action was fil ed before the RTC. Let s say an accion reinvindicatoria, where the assessed value of the property is only P5,000. That case is clearly beyond the jurisdiction of the RTC. That complaint is cognizable exclusively by an inferior court. So, the court could properly dismiss that case motu propio. If the court does not dismis s the case motu propio and the defendant files an answer without assailing the j urisdiction of the court and in that answer he embodies a counterclaim for the r ecovery of let us say P1M, which counterclaim is really cognizable by a RTC, the defendant later on cannot raise the issue of jurisdiction over the complaint. I f the defendant seeks an affirmative relief that is, by filing a counterclaim, a nd later on he lose the case, he should suffer the consequence of his action. Th e defendant could have easily asked for the dismissal of the case. But since he decided to fight it out, and even set up a counterclaim cognizable by the RTC, t hen the defendant in this case is estopped. He is barred from raising the issue of jurisdiction with respect to the complaint of the plaintiff. The decision in Tijam vs Sibonghanoy has been made part of the Rules of C ourt. If you are going to read Rule 47 that is, in annulment of judgment, one of the grounds for annulment of judgment is, of course, lack of jurisdiction over the subject matter. Rule 47 expressly recognizes lack of jurisdiction over the s ubject matter could be the basis of annulment unless estoppel by laches has come in. and the term estoppel by laches has obvious reference to that case of Tijam vs, Sibonghanoy. Another ground for a motion to dismiss is res judicata, which we will tak e up in Rule 39 and the statute of limitation, which is prescription. As we have observed several days ago, prescription is not procedural in character. Prescri ption is part of substantive law. In fact, in the Civil Code, there is a separat e chapter devoted alone to prescription of action. Another ground is what we call the Statute of Fraud. Again, this is not p rocedural in character. The statute of fraud is embodied in Article 1403 of the Civil Code. If a contract is covered by the statute of fraud, the contract is no t void. It is only unenforceable by action. And substantially, the statute of fr aud requires that contracts covered by it should be supported by an agreement in writing and subscribed by the parties. For instance, if the lender lends P200,000 to the borrower without any wr itten acknowledgement of the existence of the loan and, if later on, the borrowe r fails to pay the obligation, can the lender file a complaint for the recovery of the defaulted loan? If the lender files a complaint for the recovery of the d efaulted loan, can the defendant-borrower take advantage of Rule 16 that is, can he file a motion to dismiss on the ground that the contract falls within the co verage of the statute of frauds? Well, the answer is NO, because in the Civil Co de, the statute of fraud applies only to executory contracts. If in the contract

of loan, the lender has already delivered the money to the borrower, the agreem ent will not be covered anymore by the statute of fraud. So, the statute of frau d, as a ground for the dismissal of the case, must refer to an action that is ba sed on an executory contract. If the contract has been executed, even partially, then a complaint can be filed, and that complaint cannot be dismissed under Rul e 16 by using the statute of frauds as a ground therefor. Rule 17 is another rule which speaks about dismissal of actions. If you a re going to compare it with Rule 16, the dismissal in the latter rule comes from the initiative of the defendant when he files a motion to dismiss; whereas in t he former, the dismissal comes from the initiative of the plaintiff. It could al so come from the initiative of the defendant, and it could also come from the in itiative of the court itself. So, Rule 17 refers to dismissal of actions by noti ce from the plaintiff, by motion from the plaintiff, by motion from the defendan t or motu propio on the part of the court. But the grounds, of course, will be d ifferent. When it is the plaintiff who files a notice of dismissal under Rule 17, h e does not have to give any reason at all. So the plaintiff can simply file a no tice telling the court, I am dropping my complaint. The court cannot compel the pl aintiff to give a reason why he is dropping or withdrawing his complaint. But th is privilege is given to the plaintiff that is, the privilege to drop his compla int, by mere notice before the defendant files his responsive pleading or before a motion for summary judgment is filed. So, if the plaintiff files a complaint today against the defendant for th e recovery of an unpaid loan and upon receipt of the summons, the defendant goes to the plaintiff and tells the plaintiff: Please, pity me. I am hard up at this time and I cannot really pay the obligation. But if you are going to dismiss the case, I will see to it that the obligation will be paid in due time. If the plai ntiff takes pity and he files a notice to drop the complaint, then the complaint will be dismissed upon confirmation by the court. After this complaint has been dismissed, and the debtor does live up to his commitments, can the creditor fil e a second complaint for the recovery of the same obligation against the same de fendant? The answer is YES, because this is just the second time that the plaint iff has filed a complaint for the recovery of this loan against the same defenda nt. Upon receipt by the defendant of the summons in the second complaint, he goes again to the plaintiff and begs the plaintiff to spare him from embarrassme nt. If the plaintiff again decides to withdraw his complaint but later on the de fendant does not comply with his commitments, can the plaintiff file a third com plaint against the defendant for the recovery of this unpaid loan? If it is just a matter of filing the third complaint, it can be done. The third complaint can be filed by the plaintiff. If it is the physical act of filing the third compla int but if that third complaint is indeed filed, the plaintiff should not expect the defendant to beg him to dismiss the case this time. The defendant will no l onger approach the plaintiff. The defendant will now file a motion to dismiss th e third case based on res judicata because the second dismissal operates as an a djudication upon the merits. But it is essential that before we apply the two-dismissal rule, the cour t must have jurisdiction over the two cases. If any one of these cases was filed before a court without jurisdiction, the dismissal by notice of the plaintiff o r the two-dismissal rule will not have any application at all. If is essential t hat the court must be a court with jurisdiction over the two cases. If this third complaint is filed against the defendant but he neglects al so to file a motion to dismiss by reason of res judicata, can the court on its o wn dismiss the third complaint? If you are going to use Rule 9, the answer is YE S because under Rule 9, res judicata is one of the non-waivable defenses. So, th e third complaint will be dismissed upon motion by the defendant, or even in the absence of a motion by the defendan, the court may motu propio dismiss the case because under Rule 17, the second dismissal operates as an adjudication upon th e merits meaning to say, it is as if the court has rendered a judgment on the me rits and that judgment has become final and executory.

Will the second dismissal operate as an adjudication on the merits outrig ht that is, upon the dismissal of the second complaint, will that operate outrig ht as res judicata? Well, the answer is NO. you also have to observe the 15-day period before that order is entered. So, that order or dismissal is not immediat ely executory. It will be entered after the lapse of 15 days and before entry, t he plaintiff can change his mind. The plaintiff can ask the court to lift the co nsequences of the two-dismissal rule. Can the first dismissal operate as an adjudication upon the merits? Gener ally, NO. Unless it is the plaintiff himself who tells the court, I am withdrawin g this complaint and I am considering my withdrawal as an adjudication upon the merits. So, it all depends now on the attitude of the plaintiff, when he asks for the dismissal for the first time. If he does not qualify the first dismissal as one with prejudice, the first dismissal will always be considered as a dismissa l without prejudice. Can the plaintiff qualify his second dismissal as a dismissal without pre judice? The answer is NO. The second dismissal will always be a dismissal with p rejudice. The second dismissal will always operate as an adjudication upon the m erits, even if the plaintiff tells the court that he is dismissing the second co mplaint without prejudice. In the next section, the plaintiff is still given the prerogative to dism iss the complaint. But this time, the dismissal by the plaintiff should be with the permission from the court that is, with leave of court, after the defendant has filed an answer. If you look at the problem, from a practical point of view, even if the defendant has already filed an answer, but it is the plaintiff who asks for the dismissal of his own complaint. The defendant really should not obj ect to the dismissal of the complaint because that is for the benefit of the def endant. But the defendant may have some reasons for objecting to the dismissal b y the plaintiff himself after he has filed his answer. One good reason is when h e has incorporated or embodied in his answer a counterclaim. If the defendant ha s embodied in his answer a counterclaim, the dismissal by the plaintiff after th e filing of the answer will NOT affect the counterclaim. So, the counterclaim co uld stand. Will this principle be applied even if the counterclaim is compulsory in character? Well, Rule 17 tells us that the counterclaim filed by the defendant WILL STAND regardless of the nature of the counterclaim. So, we meet a situation where a compulsory counterclaim is not affected by the dismissal of the complai nt itself. Generally, if a complaint is dismissed, the ancillary proceedings in that complaint will also be dismissed. But in Rule 17, it recognizes this instan ce where a complaint is dismissed but the ancillary proceeding concerning the co mpulsory counterclaim will not be affected. In fact, Rule 17 gives to the defend ant an option. The defendant can ask the court to try the compulsory counterclai m OR he can ask the court also to dismiss his counterclaim although compulsory i n character, without prejudice to his pursuing the same counterclaim in an indep endent action. The third section of Rule 17 provides for other grounds for the dismissal of a complaint. And the third section speaks about a dismissal upon motion by t he defendant and upon the initiative of the court itself. If the plaintiff does not appear during a trial scheduled for the presentation of his evidence in chie f. The defendant can ask for the dismissal of the case, and such dismissal is on e with prejudice unless the court otherwise qualifies. If the plaintiff fails to obey an order of the court or fails to comply with the provisions of the Rules of Court, the case could also be dismissed and the dismissal again is with preju dice unless otherwise qualified. Rule 17 is emphatic in saying that it is in absence of the plaintiff duri ng the trial scheduled for the presentation of his evidence in chief. So, if the plaintiff does not appear during the trial set for the presentation by the plai ntiff of rebuttal evidence, the defendant cannot ask for the dismissal of the co mplaint because the presentation by the plaintiff of rebuttal evidence means tha t the plaintiff has already submitted his evidence in chief. So, it is not the a bsence of the plaintiff in any stage of the trial that will justify the dismissa

l of the complaint. It is his absence in a trial where the court has scheduled t he presentation by the plaintiff of his evidence in chief. So you should know th e distinction between evidence in chief and rebuttal evidence, so we could prope rly apply the provisions of Rule 17. Another ground is when the plaintiff neglects to prosecute his claim for an unreasonable length of time. In one case, the plaintiff filed a complaint aga inst the defendant for the recovery of money. Somehow, the plaintiff failed to f ollow up the issuance of the summons. So, the summons was already prepared by th e clerk of court but nobody picked up the summons from the office of the clerk. So, that case could not move for a long period of time. When the court inventori ed the cases pending before it, the court discovered this case. It was filed and the summons was prepared by the court but nobody picked up the summons. So the case really became inactive. Could the court dismiss that complaint on the groun d of nolle prosequi that is, failure by the plaintiff to prosecute his claim for an unreasonable length of time? The answer is YES. That is a perfect example of a case where the plaintiff has failed to prosecute his complaint for an unreaso nable length of time. In the rule on pre-trial, in the next Rule, it is also provided that when all the pleadings have been submitted to the court, it is the duty of the plain tiff to file an ex parte motion, to set the case for pre-trial. That is no,longe r the burden of the clerk of court. It is the duty of the plaintiff to file a mo tion setting the case for pre-trial conference. And the motion is one of the few motions, which the court recognizes as one that could be filed ex parte. Here is complaint filed by the plaintiff, the defendant has already filed his answer and the plaintiff chooses not to file a reply. But the plaintiff doe s not file a motion to set the case for pre-trial. So, the court does schedule a ny pre-trial for this particular case. The court waits for the motion coming fro m the plaintiff but the court waits in vain. Can the court now dismiss the compl aint on the ground that the plaintiff failed to prosecute his claim for an unrea sonable length of time? The answer is YES. A motion to set the case for pre-tria l after all the pleadings have been submitted is now the duty of the plaintiff. If he fails to file the correlative motion, he is guilty of violating certain pr ovisions of the Rules of Court. Dismissal by reason of the failure of the plaint iff to prosecute for an unreasonable length of time nolle prosequi, is also a di smissal with prejudice, unless the court in its order specifies that the dismiss al is without prejudice. (We ll have a break) Still on Rule 17, what is the remedy of the defeated party? Just like in Rule 16, before we could give the right remedy, we have to consult Rule 41. So, in reading Rule 16 and Rule 17, we should always refer to Rule 41. we said yeste rday that in Rule 41, an order can always be challenged by the usual mode of app eal. But this concept has been changed entirely by Rule 41. Final order may be a ppealable under Rule 41. and in Rule 17, just like in Rule 16, the order of dism issal is final but it may be a dismissal with or without prejudice. If the order is with prejudice, it is appealable. But if the final order is without prejudic e, it is not appealable under Rule 41. And the remedy given in Rule 41, when it comes to a final order that is without prejudice, is a petition under Rule 65 th at is, a petition for certiorari. And again in Rule 17, the order of dismissal m ay be with prejudice or it may be without prejudice. So, accordingly, the remedy of the defeated party is the one that is mentioned in Rule 41, We should determ ine whether the final order is with prejudice or without prejudice. The next rule marks the start of the second stage of the life of a civil action; the first stage being that of pleadings. The next rule that is, Rule 18, talks about pre-trial. That is the next stage in the life of a civil case. And for purposes of pre-trial, I suggest that you read a new law RA 9285 that instit utionalizes the use of the system of alternative dispute resolution, mediation, conciliation, arbitration, and combination of these ADRs. Another rule which you should read in relation to Rule 18 is Rule 118 tha t is, pre-trial in criminal procedure. And then another one is Rule 48 that is, preliminary conference in cases pending before the appellate courts. And another law that should be read in relation to pre-trial is Title 14 of the Civil Code,

the title on compromises and arbitration. These are all related to Rule 18. We should compare the pre-trial in a civil case and the pre-trial in a cr iminal case in order to avoid confusion given that a pre-trial is mandatory in b oth cases. We should also take note that even in cases governed by summary proce dure, a preliminary conference is mandatory. The message given in the enactment of this new law as well as Rule 118 and then Rule 48 is that an amicable settlem ent of a civil case is a matter of public policy. In fact, if you read the Civil Code, it is provided that the court should always endeavor to convince the liti gants to a civil case to settle their differences amicably, and Rule 18 on pre-t rial is the means by which the courts implement this public policy on compromise s and arbitration. Since pre-trial is mandatory, it means to say that the court cannot simply do away with it even if it is with the consent of the parties. The court must conduct a pre-trial conference in both civil and and criminal cases. The first obvious difference between a pre-trial in criminal and civil ca ses is found in some of the purposes. In a civil case, the primordial purpose is to enable the parties to settle their differences amicably - that is, to enter into a compromise agreement. That is not one of the purposes of a pre-trial in a criminal case because it is the interest of the state, a violation of a penal l aw that is involved. But with respect to the civil liability arising from the cr ime, the Civil Code still encourages that there can be an amicable settlement be tween the accused and the victim, and the compromise will be without prejudice t o the prosecution of the criminal aspect of the violation. Another distinction between a pre-trial in civil and criminal cases is th e absence of a pre-trial brief in criminal cases. In a civil case, the parties a re required to submit a pre-trial brief otherwise the court could impose sanctio ns for each violation. In a criminal case, there is no need for the prosecutor t o submit a pre-trial brief to the court. And therefore, in a criminal case, if t he parties do not submit a pre-trial brief, the court could not impose any sanct ion at all. Another difference between the pretrial in a criminal and civil case is t hat, in a criminal case, while the parties can stipulate on facts and on the adm ission on certain exhibits, criminal procedure requires that the stipulation of facts must be reduced into writing and signed by the accused and his counsel. O therwise, the facts stipulated will not be admissible against the accused. In a civil case, stipulation of facts arrived at during the pre-trial conference nee d not be reduced into writing. After all, courts now are courts of record and t here is always a stenographer who will be around taking down the admissions and stipulations entered into between the parties. In a criminal case of course, th ere is always a court stenographer that is present but for evidentiary purposes, criminal procedure requires that all stipulations in a criminal case must be re duced into writing signed by the counsel and the accused. Otherwise these stipu lations will not bind the accused. In a civil case, one of the purposes of a pre-trial conference aside from the possibility of amicable settlement is for the court to determine the possib ility of suspending the action that is mentioned in Rule 18. But if the court i s given the discretion to determine whether or not the proceeding should be susp ended, there should be at least grounds for the suspension of the action. Rule 18 does not mention the grounds that could justify the suspension of the action. It does not mean to say that there are justifiable grounds. The grounds for t he suspension of the action are contained in the Civil Code, Title 14. There ar e certain articles which enumerate the instances which will justify the court in issuing an order for the suspension of action. During the pre-trial conference which as we said earlier is the duty of t he plaintiff to have it scheduled, generally the Rules require the presence of t he party and the counsel. If a party cannot attend the pre-trial conference, th e party is required to give a power of attorney to anybody or to his counsel. T hat is power of attorney in writing that will empower the attorney in fact, to e nter into stipulations, to submit to arbitration, or other alternative dispute r esolution, or to enter into a compromise agreement. This is a departure from an old ruling of the Supreme Court which held that if a lawyer goes to court to at

tend a pre-trial conference and he is not armed with a written power of attorney , he can always tell the court that he is so empowered and the court can gauge i t as the truth because an officer is an officer of the court. Rule 18 has chang ed the picture. Even if it is a lawyer who appears on behalf of the client duri ng a pre-trial conference, he must be armed, he must have in his possession a po wer of attorney in writing which empowers the lawyer to perform these three (3) acts expressly enumerated in Rule 18. In one case, after the court has terminated the pre-trial conference, the parties received an order scheduling another pre-trial conference. The defenda nt chose not to attend the 2nd pre-trial conference since the 1st one had long b een terminated, the court sanctioned the defendant. The Supreme Court said that after the termination of the pre-trial conference it is arbitrary and capriciou s on the part of the trial court to schedule another pre-trial conference. So i f the parties do not attend the 2nd scheduled pre-trial conference, the trial co urt cannot validly impose sanctions but what is essential is that the first pretrial conference must have been terminated by the trial court. A pre-trial conference plays an important role when it comes to the factu m probanda the issues that are going to be tried. Rule 18 mandates that after t he termination of the pre-trial conference, the court must issue a pre-trial ord er. This is required. And in that pre-trail order the court is also mandated t o state the facts stipulated upon, if there are any re-admission of exhibits by the parties and most importantly the court must indicate in the pre-trial order the issues of fact that will be tried by the court. So the pre-trial order must contain or must enumerate the factum probanda. It is essential that the facts in issue the probanda, contained in the pr e-trial order, be similar to the facts in issue raised in the pleadings. Or cou ld the facts is issue stated in the pre-trial order be different from the facts in issue mentioned in the pleading of the parties? The facts in issue that are given by the court in the pre-trial order are the ones that will prevail for pur poses of trial. So even if the pre-trial order contains facts in issues which a re not raised in the pleadings the court will follow what is contained in the pr e-trial order. So that in determining the facts in issue in a civil case, we ca nnot rely solely on the pleadings, we should rely principally on the pre-trial o rder. Again a fact in issue that is contained in the pre-trial order may not be a fact in issue that is raised in the pleadings of the parties. If you are going to read Rule 30, the rule on Trial, it is also clearly p rovided that the trial of the case shall be limited to the facts in issue that a re enumerated in the pre-trial order. So for purposes of ascertaining what thes e facts in issue are, the parties and the court will be limited by what is conta ined in the pre-trial order. So it is simply possible that the facts in issue t o be contained in the pre-trial order are not even raised at all in the complain t and in the answer, or in the pleadings submitted by the parties. In civil cases, the filing of a pre-trial brief by both sides, the claimi ng party and the defending party, is mandatory. And to show that it is mandator y there are serious sanctions that could be imposed by the court. If it is the plaintiff who fails to submit a pre-trial order the case could be dismissed and the dismissal is a dismissal without prejudice, that is an adjudication on the m erit. Even if the plaintiff appears during the pre-trial conference as long as he has not submitted a pre-trial brief, this sanction could still be imposed. O n the other hand, if the plaintiff submits a pre-trial brief but he does not att end the pre-trial conference, the case could still be dismissed and again the di smissal is dismissal with prejudice. Supposing it is the defendant who violates the rule, it is the defendant who does not submit a pre-trial brief or he does not attend the pre-trial confer ence? Well, the sanction is that the plaintiff will be allowed to present the e vidence ex-parte. The defendant will be deprived of introducing his own evidenc e or in participating during the ex parte presentation of evidence by the plaint iff. You should distinguish the consequence of an ex parte hearing ordered by the court under Rule 18 and an ex parte hearing ordered by the court under Rule

9. Under Rule 9, that is on the section concerning default, if the defendant is declared in default and the court orders the plaintiff to present evidence, the presentation of evidence is also ex parte. In fact, Rule 9 says that the recei pt of his evidence could be delegated to the branch clerk of court. In Rule 18 if the defendant does not attend a pre-trial conference or he fails to submit hi s pre-trial brief, the court could also issue an order directing an ex parte hea ring be conducted for the sole purpose of receiving the plaintiff s evidence. So in both instances under Rule 18, there is going to be an ex parte presentation of evidence. Is there a difference between ex parte presentation of evidence contempla ted in Rule 9 and the ex parte presentation of evidence contemplated in Rule 18? Well, there is a difference, in fact, a very big difference when it comes to t he award that can be issued, that can be given by the court to the plaintiff. In Rule 9 if the plaintiff is allowed the present his evidence ex parte, the award to be given by the court is limited to what has been prayed for in the complain t. That is the rule on default. In other words if in a case for the recovery of P500,000 the defendant is declared in fault and the plaintiff is ordered to pres ent evidence ex parte even if the evidence presented by the plaintiff convinces the court that the plaintiff is entitled to P1,000,000 the award of the court wi ll be limited to P500,000. That is the rule followed in Rule 9. When the defenda nt is in default and the plaintiff is required to submit evidence ex parte. In Rule 18 we do not follow the principle. If the defendant does not atte nd the pre-trial conference or he does not submit a pre-trial brief and the plai ntiff is allowed to present evidence ex parte, using the same example, the claim of the plaintiff is to recover P500,000 but after presentation of evidence the court is convinced that the plaintiff is entitled not only to P500,000 but to P1 ,000,000, the court can award P1,000,000. Why are the two instances treated diff erently? In Rule 18 if there is ex parte presentation of evidence we are going t that is the rule on amendment to pleading to conform to evidence o apply Rule 10 . So if the evidence presented by the plaintiff shows that he is entitled to P1, 000,000 although his complaint seeks to recover only P500,000 his complaint is d eemed amended which will enable him to recover P1,000,000. In Rule 9 we do not apply the principle of amendment to pleading to confo rm evidence because Rule 9 limits the award to the amount that is sought by the plaintiff in his complaint, not more. It could be less, but it could not be more than the relief that is prayed for in the complaint. Another jurisdiction is th at in Rule 9 the defendant is declared in default and therefore he has not filed an answer. And if the defendant is that he is not willing to put up a fight. In Rule 18 the defendant has filed an answer. He has already submitted to the court for consideration negative as well as affirmative defenses, meaning t o say that the defendant is willing to put up a fight, but he is not given the c hance to present evidence to prove his negative and affirmative defenses because he has violated a rule that he should attend the pre-trial conference, that he should submit to the court his pre-trial brief. Always remember the difference b etween the ex parte presentation of evidence in Rule 9 and the ex parte presenta tion of evidence in Rule 18. The next rule is about intervention. As we have always observed an interv enor in a civil case is a very strange fellow. He is a queer person. He is a typ ical Filipino. Intervenor in Tagalog I think is translated into pakialamero someth ing like that isn t it? Here is a person who is not impleaded in the case, he is not a defendant . Since he is niot a defendant he cannot be expected to be bound by the decision to be rendered by the court. Because generally, these actions are in personam a nd a decision to be rendered by the court will bind only the parties and their s uccessors in interest. But we find a situation where a stranger would suddenly d ecide to tell the court, I want to join the contest between the plaintiff and the defendant. I want to be called also a litigant in an existing case . It is very u nnatural for a person to be volunteering as a party in an existing case. In fact , the natural impulse of anybody is to avoid going to court because it will mean waste of time, waste of money, waste of everything else.

So in the matter of intervention, there should really be a compelling rea son why a stranger in the case would really want to play the role either as a pl aintiff or as a defendant in an existing litigation.

?? ?? ?? ??

- 2 -