Premid LAKAS ATENISTA

INTRODUCTION The first thing that we will take up in Civil Procedure are basic concepts. We are going to discuss the legal concept of courts. As you will know, whenever we talk of procedural law, we have no choice but to involve courts in our discussion. Let’s try to have a mental picture of courts. If I (Dean Iñigo) say ‘courts’, please tell me the scene that comes into your mind. What do you see? There is a table, a gavel, there is someone sitting there. Then below, there are lawyers sitting down. That is how everybody pictures a court. But actually, what was pictured out was a courtroom and not a court. Similar example: How can you picture a corporation? A corporation, as you know in Persons, is a juridical entity. It is a creature of the law. It is a person under the law but it has no physical existence. But what you see in a corporation is a building and people who are running the office business. Well, that is the office of the corporation. A corporation cannot run without people running it. But a corporation can own properties, kaya you see the building, the office, the equipments there. The president or the vice-president are the officers of the corporation. But the officers are not the corporation, they run the affairs of the corporation. Ganoon din ang court. A court has no physical existence, only a legal one. Q: What is a court? A: A court is an entity or body vested with a portion of the judicial power. (Lontok vs. Battung, 63 Phil. 1054) Q: Why ‘portion’ only? A: This is because the Constitution provides that “the judicial power shall be vested in one Supreme Court (SC) and in such other lower courts as may be established by law.” (Art. VIII, Section 1, 1987 Constitution. The reason that the law creates different courts is to divide the cases or judicial power among them so that one court may not be burdened with so many cases. So, judicial power is not exercised only by one court, but by several courts. It is like a cake. You slice the cake into parts – this part is for you, this part is mine. So, kanya-kanya tayo ng trabaho. You cannot put the burden only in one court. For example, you want to sue your debtor for not paying a loan. You mean to tell me that you will go to the SC? All cases in the Philippines will have to filed there? NO. You cannot do it. You have to start from certain courts in you city or municipality. Ngayon, pag-sinabi mo kung saan ako mag-file, sa Regional Trial Court (RTC) ba? O sa Municipal Trial Court (MTC)? Of course, depende yan on how much you are claiming. If you are claiming so much, dito ka. If you claim is lower, dito ka naman. Why is that? Because each has its own work. Each one has its own portion – what is yours is yours, what is mine is mine. Thus, each court has its own jurisdiction and may only try cases within its jurisdiction. No court has all the power of the judiciary but only a portion of it. So there is a division of labor. Just as corporations cannot act without its officers, a court cannot function without a judge. But do

not say that the court and the judge mean the same thing. The judge is the person or officer who presides over a court. Q: Distinguish court from judge. A: The following are the distinctions: 1.) Court is the entity, body, or tribunal vested with a portion of the judicial power, while judge is the person or officer who presides over a court. Judges are human beings – they die, they resign, they retire, they maybe removed. The court continues to exist even after the judge presiding over it ceases to do so. 2.) The two concepts may exist independently of each other, for there may be a court without a judge or a judge without a court. (Pamintuan vs. Llorente, 29 Phil. 342) EXAMPLE: The present Supreme Court (SC), the justices presiding over it are not the same justices who presided it in the early part of this century yet the Court in some decisions states that “as early 1905, ‘WE’ have already ruled such as such…” Why do they use ‘WE’? They are talking about the court, they are not talking about themselves. The court is continuous. It does not die alongside with the justices who presided on it. Q: Classify courts in general. A: Generally, courts may be classified as: 1.) Superior Courts and First-Level courts (inferior courts); 2.) Courts of Original jurisdiction and Courts of Appellate jurisdiction; 3.) Civil Courts and Criminal Courts; 4.) Courts of law and Courts of equity; 5.) Constitutional Courts and Statutory Courts. SUPERIOR COURTS vs. FIRST-LEVEL COURTS Q: Distinguish superior courts from inferior courts. A: SUPERIOR COURTS, otherwise known as courts of general jurisdiction, are those which take cognizance of all kinds cases, whether civil or criminal, and possess supervisory authority over lower courts. FIRST-LEVEL COURTS (inferior courts), otherwise known as courts of special or limited jurisdiction, are those which take cognizance of certain specified cases only. (14 Am. Jur. 249) Q: What courts are superior or inferior? A: It DEPENDS on what viewpoint you are looking. If you are looking from the viewpoint of the Constitution, there is only one superior court – the Supreme Court. From the real viewpoint, the Court of Appeals (CA) maybe inferior to the SC but it is a superior court for it exercises supervision over RTC. In the same manner that the RTC might be inferior to the SC and the CA but it has also power of supervision over MTC. The jurisdiction of the RTC is varied. It is practically a jack of all trade. The RTC has also the power of supervision over MTC. A superior court may therefore handle civil, criminal cases while an inferior court may try specified cases only. The SC, CA including the RTC are considered as superior courts. The MTC is a first-level (inferior) court so that its power is limited to specified cases despite of the law which expanded the jurisdiction of the MTC. It is already at the bottom. Wala ng under pa sa

kanya. In 1996 Bar: Explain the hierarchy of courts in the Philippines. Practically, the judicial level is being asked by the examiner. ORIGINAL COURT vs. APPELLATE COURT Q: Distinguish original court from appellate court. A: ORIGINAL COURTS are those where a case is commenced, while APPELLATE COURTS are those where a case is reviewed. (Ballentine's Law Dict., 2nd Ed., p. 91) So, if you are filing a case for the first time, that case is filed in an original court. But the case does not necessarily end there. You may bring the case to the appellate court which has the power to change the decision of the original court. Q: Is the SC an original or appellate court? A: The SC is both an original and an appellate court. Some people have the impression that you cannot file a case there for the first time – that you have to file it somewhere else, then doon (SC) mo iakyat. But when we study the jurisdiction of the SC, we will be able to know that it is not only an appellate court, but also an original court. The SC has original jurisdiction on cases of certiorari, prohibition, mandamus, etc. There are certain cases where one may file directly to the SC. Q: Is the CA an original or appellate court? A: The same is true with the CA. It is both original and appellate court. (Section 9, BP 129) When we study the jurisdiction of the CA, you will see that it is both an original and an appellate court. There are cases which are elevated to it from the RTC, but there are also cases which are filed there for the first time. Q: How about the RTC? Is the RTC an original or appellate court? A: The RTC is also both original and appellate court. You can file certain cases there for the first time, and there are also decisions of the MTC which are appealable to the RTC. Q: How about the MTC? Is the MTC an original or appellate court? A: The MTC however, is a 100% original court. It is the lowest court in the hierarchy. There are no cases appealed to it. There is no such animal as barangay court. The barangay captains do not decide cases, they only conciliate. CIVIL COURTS vs. CRIMINAL COURTS Q: Distinguish civil courts from criminal courts. A: CIVIL COURTS are those which take cognizance of civil cases only, while CRIMINAL COURTS are those which take cognizance of criminal cases only. (14 Am. Jur. 249; Ballentine's Law Dict., 2nd Ed., p. 301) All the courts in the Philippines are both civil and criminal courts. They can handle both types of cases. The SC decides civil and criminal cases. The same thing with the CA, RTC and MTC. So, in the Philippines, there is no such thing as a 100% criminal court or civil court. Unlike before, during the 70's there are some special courts which were existing but were abolished by BP 129. There

was the old Circuit Criminal Court. As the name implies, it is purely a criminal court. But with the abolition of those special courts, all their powers were transferred to the present RTC. Right now, there is no such thing as a 100% civil court or a 100% criminal court. So, all our courts are both civil and criminal courts at the same time. COURTS OF LAW vs. COURTS OF EQUITY Q: Distinguish Courts of Law from Courts of Equity. A: COURTS OF LAW are tribunals only administering the law of the land, whereas COURTS OF EQUITY are tribunals which rule according to the precepts of equity or justice, and are sometimes called “courts of conscience.” (Ballentine’s Law Dict., 2nd Ed., p. 303) Courts Of Law dispose cases according to what the law says – I will decide your case by what the law says. Yan ang court of law! When we say Courts Of Equity, it adjudicates cases based on the principles of equity. Principle of equity means principles of justice, fairness, fair play. Q: Are the Philippines courts, courts of law? Or courts of equity? Do they decide cases based on what the law says? or, do they decide cases based on the principle of justice and fairness? A: In the Philippines, our courts are both courts of law and of equity. In the case of substantive law, there is a thin line which divides the principle of law from the principle of equity because principles of equity are also found in the principles of law. Equity is what is fair and what is just and equitable. Generally, what is legal is fair. As a matter of fact under the Civil Code, when the law is silent, you decide it based on what is just and fair. Kaya nga may kasabihan na EQUITY FOLLOWS THE LAW. In the Philippines you cannot distinguish sometimes the principle of law and the principle of equity because principles of equity are also written in the law. Example: The principle of estoppel, laches or solutio indebiti. One cannot say that they are purely principles of equity since they are also found in our law. Under the Civil Code, when there is no applicable law, courts still have to decide according to customs and general principles. Example: ESTOPPEL. Estoppel is an equitable doctrine – that it is not fair that you disown your own representation after misleading somebody. But if you look a the Civil Code, meron mang chapter diyan ba! – estoppel! So if you apply estoppel, you cannot say that you are applying a principle not found under the law. Example: LACHES – the half-brother of prescription – if you delay a certain right then you must have no right. That is more of equity, rather than of law. Example: SOLUTIO INDEBITI. No one should enrich himself at the expense of another. That is a principle of equity. But if you look at the Civil Code, it's there! The SC, when deliberating, focuses more on justice and equity – where reason can always be found. The SC once said that equity follows the law. In the case of : ALONZO vs. INTERMEDIATE APPELLATE COURT May 28, 1987, J. Cruz

HELD: “The question is sometimes asked, in serious inquiry or in curious conjecture, whether we are a court of law or a court of justice. Do we apply the law even if it is unjust or do we administer justice even against the law? Thus queried, we do not equivocate. The answer is that we do neither because we are a court both of law and of justice. We apply the law with justice for that is our mission and purpose in the scheme of our Republic.” So the SC described it self both as a court of law and court of equity. I have already talked with so many justices of the SC before. And I asked them on how do they deliberate on cases when somebody files an appeal or petition. They told me, if you want to convince the SC to hear your case… because the tendency of some lawyers is that they will file their petition and they will cite the law. Meaning, backed-up by statutory provisions ba. A justice of the SC told me that that is a wrong approach. Do not tell us what is the law. We know more law than you do! When you file a petition, fairness must be on your side! Because when we deliberate and we agree that your side seems to be the correct one, to decide on your favor is more than just to decide on the other side. Then, we will even look for the law to support our decision. So, you don't have to tell us what is the law, we will look for it. And if there is no law, we will make it for you, by interpreting… because we are a court more of equity than of law. But when we look on the equity, we will look for the law and chances are, there is the law to follow. CONSTITUTIONAL COURTS vs. STATUTORY COURTS Q: Distinguish Constitutional Courts from Statutory Courts. A: CONSTITUTIONAL COURTS are created directly by the Constitution itself, while STATUTORY COURTS are created by law or by the legislature. In our country, there is only one Constitutional court – the Supreme Court. Even the Sandiganbayan is not considered a Constitutional court because it was not created by the Constitution directly. The 1973 Constitution ordered Congress to create Sandiganbayan. It was law that created Sandiganbayan (PD 1486). There is a provision in the 1973 Constitution which says, “There should be created a Sandiganbayan.” The CA, RTC, and the MTC are created by the Congress. Thus, Congress has the power to abolish the said courts but it can never abolish the Supreme Court. So there is only one Constitutional court. All the rest, from the CA down and all other special courts, are only creatures of Congress. In political law, the power to create carries with it the power to abolish. That is why, BP 129 abolished all existing courts at that time (CFI, CA, Juvenille, etc.) and RTC, IAC, MTC were created. That was the judicial reorganization of 1980 under BP 129. But there is only court which the Batasan Pambansa could not touch – the Supreme Court. They have no power to abolish the SC because it is created by the Constitution. Pareho lang tayong tabla eh. Congress is also created by the Constitution. So if you want to abolish the SC, you must call for a constitutional convention to change the Constitution. INHERENT POWERS OF THE COURT Before we leave the concepts of courts, you must know that the courts of justice have what we call

inherent powers. Just like the State have certain inherent powers, whether written or not, these things are understood to have them – Police power, power of taxation, and power of taxation. Courts have also inherent powers. Their very existence automatically necessitates the existence of these powers. Now, that was already asked in the Bar before – what are the inherent powers of the court? Q: What are the inherent powers of the court? A: Section 5 Rule 135 of the Rules of Court of the provides: Section 5. Inherent powers of courts. Every court shall have the power: (a) to preserve and enforce order in its immediate presence; (b) to enforce order in proceedings before it, or before a person or persons empowered to conduct a judicial investigation under its authority; (c) to compel obedience to its judgments orders, and processes, and to the lawful orders of a judge out of court, in a case therein; (d) to control, in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a case before it, in every manner appertaining thereto; (e) to compel the attendance of persons to testify in a case pending therein; (f) to administer or cause to be administered oaths in a case pending therein, and in all. other cases where it may be necessary in the existence of its powers; (g) to amend and control its process and orders so as to make them conformable to law and justice; (h) to authorize a copy of a lost or destroyed pleading or other paper to be filed and used instead of the original, and to restore, and supply deficiencies in its records and proceedings.

There are many powers enumerated. Some of them are common sense. Every court has the power to see to it that everything of his order is enforced; to compel obedience to his order. Common sense yan. You are inutile if you cannot even enforce your own judgment! So I've been telling some judges here, eh. Sometimes we talk about this: they say, it seems that I don't have the power under the Rules of Court. It's beyond my power. I made a decision but I cannot see how was it enforced. Parang pampalakas-loob ang Rule 135, Section 5 because you can see there the powers that you do not know you have. These are inherent eh – hindi puwedeng alisin sa iyo iyan. Otherwise, maging inutil ka – I have the power to decide but I do not know how to enforce my decision. That is a sign of impotence (Charles, pinaringgan ka ni Dean!). As a matter of fact, the next section (Section 6, Rule 135) tells us how to carry out your judgment. If you do not know how to carry out your judgment because the law is silent, Section 6 says, look for a way. Hanapan mo ng paraan! SITUATION: Suppose I have the power to decide and I render a decision. I want to enforce the decision, how do I enforce? Well, usually the law provides for the procedure. Q: But suppose the law does not provide for any manner to enforce? For example a judge has rendered a decision, and the law is silent on how to enforce it, do you mean to say that the order is unenforceable because the law is silent? A: NO. Section 6 of Rule 135 answers the question. SEC 6. Means to carry jurisdiction into effect – When by law jurisdiction is conferred on a court or a judicial officer, all auxiliary writs, processes and all other means to carry it into effect maybe employed by such court or officer; and if the procedure to be followed in the exercise of such jurisdiction is not specifically pointed out by law or these rules, any suitable process or mode of proceeding may be adopted which appears conformable to the spirit of said law or rules.

What Section 6 is trying to say is that when you have the power to decide, you have the power to enforce. And if the law is silent, you have to think how to do it. Be creative. Provided you conform with the spirit of the rule. So you do not make the order useless simply because there is no rule. In other words, try to look for a way on how to enforce you judgment. That is part of your power. ENFORCEABILITY OF COURT WRITS AND PROCESSES Another provision that I want to emphasize before we leave this subject of court is Section 3 of the Interim Rules. Question: The court of Davao will issue a writ or a process. Can that writ or process be enforced in Cebu or Manila? Or only in Davao? Or only in Region IX? Hanggang saan ba ang enforceability ng aking writ or processes? You have to distinguish what kind of writ or process you are talking about. Under Section 3, Interim Rules: Sec. 3. Writs and Processes. a) Writs of certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunction issued by a regional trial court may be enforced in any part of the region. b) All other processes whether issued by the RTC or MetTC, MTC, and MTC may be served anywhere in the Philippines, and, the last three cases, without a certification by the judge of the RTC.

Q: What is the area of enforceability of writs and processes of the courts? A: Under Section 3 of the Interim Rules, you have to distinguish what kind of writ or process you are talking about: a) If it is a writ of certiorari, prohibition, mandamus, quo warranto, habeas corpus, injunction, it can be enforced anywhere within the region. So at least, RTC can enforce it within the region and it cannot enforce those writs outside the region. EXAMPLE: If you are illegally detained, you can ask the court to issue a writ of habeas corpus. Now, a person is detained in Bansalan and the family is here in Davao City. They filed a petition for habeas corpus in Makilala, North Cotabato. Makilala is in Region 12 and the RTC of Bansalan is part of the 11th judicial region. Thus, the judge in Makilala cannot issue the writ of habeas corpus due to the fact that Bansalan belongs to the 11th judicial region while Makilala is in the 12th judicial region. The RTC of Tandag, Surigao is Region 12 and therefore can issue a writ of habeas corpus to be enforced in Makilala which is hundreds of miles away because they are of the same judicial region. And yet the RTC of Bansalan cannot issue a writ to be enforced in Makilala, North Cotabato, which is the next town, because that is not part of their region. The law is very clear: writs of certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunction issued by a trial court may be enforced in any part of the region. b) Section 3 further says, all other writs are enforceable anywhere in the Philippines. Suppose the MTC issues a warrant for the arrest of the accused in the criminal case, and he fled to Baguio City, such warrant can be enforced there. This includes summons, writs of execution or search warrants. -oOo-

JURISDICTION IN GENERAL The word JURISDICTION is derived from 2 Latin words: 1.) JURIS – law; 2.) DICO – to speak, or to say. So, in effect, when you say jurisdiction, literally translated, it means, “I speak by the law.” It means that you are saying “I speak with authority” because when you invoke the law, then your act is authorized. Even in old times when the representatives of the king or the sovereign will try to arrest somebody or will try to enter your house, they open up in the name of the law. They will always invoke “in the name of the law.” So when you say, “I speak by the law” I will do it in the name of the law. It connotes authority or power. You cannot be wrong. How can you be wrong if you are doing it in the name of the law? So more or less jurisdiction simply means authority or power. So more or less that is the whole concept of jurisdiction. It simply means authority or power. That is precisely what jurisdiction is all about. JURISDICTION simply means the power of the court to hear try and decide a case. In its complete aspect, jurisdiction includes not only the powers to hear and decide a case, but also the power to enforce the judgment. (14 Am. Jur. 363-364) Q: What is the effect if the court has no jurisdiction? A: If a court has no jurisdiction, it has no power or authority to try a case and that is a concept you already know in Criminal Procedure. Without jurisdiction, the trial is null and void as well as the judgment. Let’s go to a criminal case. Can you file an information for murder before the MTC? Or can you file an information for slight physical injuries before the RTC? There is something wrong there. If a slight physical injury case is filed against you in the RTC, what will you do? If I’m the lawyer of the accused why will I allow my client to be arraigned and to be tried when everything is null and void. Kapoy-kapoy lang ako. So I’ll file a motion to quash under Rule 117. That’s the same thing in civil cases. If you file a civil case before a court that has no jurisdiction, then it can be dismissed for lack of jurisdiction. JURISDICTION vs. EXERCISE OF JURISDICTION Now, let us not confuse jurisdiction with certain terms related to it. Q: Distinguish jurisdiction from exercise of jurisdiction. A: The authority to decide a case, not the decision rendered, is what makes up jurisdiction. It does not depend upon the regularity of the exercise of that power or upon the rightfulness of the decision made. Where there is jurisdiction over of the person and subject matter, the resolution of all other questions arising in the case is but an exercise of jurisdiction. (Herrera vs. Barreto, 25 Phil. 245) In other words, JURISDICTION is the authority. If I have no authority, I cannot act. And if I have authority, I can act. Now, if the court has authority, it will try the case and render judgment. Now, what the court will do later, like try the case and render judgment is merely an EXERCISE OF ITS JURISDICTION. So the trial and judgment are all products of the exercise of jurisdiction. You cannot talk of exercise without having first the authority. It is a useless procedure when you say “I will

exercise something which I do not have.” Q: Why is it important to distinguish jurisdiction from exercise of jurisdiction? A: Definitely, a court acting as such may commit errors or mistakes. That is why the action of the court can be questioned later in a higher court. A court can commit an error which is either an error of jurisdiction or an error of judgment. EXAMPLE: A case of murder was filed in the MTC. The accused, Ken Sur, files a motion to quash because MTC has no jurisdiction over cases of murder. Eh, ‘yong judge iba man ‘yong libro niya, “No, I have jurisdiction.” So the court denied the motion to quash. Meaning, the judge has decided to assume jurisdiction. So, meaning from the very start mali na. Now what do you call that? When the court without authority assumes authority over the case that is called ERROR OF JURISDICTION – the court committed an error of jurisdiction. EXAMPLE: Suppose the case for murder is filed in the RTC where the court has jurisdiction. So walang mali, everything is correct. But in the course of the trial, you cannot avoid mistakes being committed like for example, the court misinterpreting the provision of the RPC saying that this is a requirement, this is not a requirement for the crime. Meaning misapplication or misinterpretation of the RPC as well as misinterpretation of the rules of evidence – wrong interpretation of the law. And the accused was convicted but actually tingin mo mali man ito, di ba! Under the law, this elements was not considered or this element was considered as present. Do you say the decision of the judge is null and void? NO, the judgment is valid kaya lang mali. So, you do not say the court committed an error in the exercise of jurisdiction, and that is called an ERROR OF JUDGMENT. And that was also asked in the bar. ERROR OF JURISDICTION vs. ERROR OF JUDGMENT BAR QUESTION: Distinguish ERRORS OF JURISDICTION from ERRORS OF JUDGMENT. A: The following are the distinctions: c) When a court acquires jurisdiction over the subject matter, the decision or order on all other questions arising in the case is but an exercise of jurisdiction; Errors which the court may commit in the exercise of such jurisdiction are merely ERRORS OF JUDGMENT; whereas, When a court takes cognizance of a case over the subject matter of which it has no jurisdiction, the court commits an ERROR OF JURISDICTION. d)

ERRORS OF JURISDICTION are reviewable by certiorari; whereas, ERRORS OF JUDGMENT are reviewable by appeal.

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

Q: What is the use of distinguishing error of jurisdiction from error of judgment? A: The difference is in the remedy taken. Actually, it is still an error. If it is an error, it can be corrected by a higher court. The importance, however, as we will see later, is that there is a definite procedure for correcting a mistake and other procedures which we will know later where the court commits an error of judgment and an error of jurisdiction. In error of judgment, if the judgment is wrong, it is a valid judgment. Your remedy is to APPEAL the wrong judgment to a higher court. But when a court commits an error of jurisdiction, where it insists on handling a case when it has no authority, I can question its actuation not necessarily by appeal, but by resorting to “extraordinary remedies,” which refer to the remedy of CERTIORARI or PROHIBITION. (Araneta vs. Commonwealth Ins. Co., L-11584, April 28, 1958; Nocon vs. Geronimo, 101 Phil. 735) The principle came out in the bar. This error should have been raised on ordinary appeal, not by certiorari because certiorari is only confined to correcting errors of jurisdiction or grave abuse of discretion. The governing rule is that the remedy of certiorari is not available when the remedy of appeal is available. And when the remedy of appeal is lost, you cannot revive it by resorting to certiorari because certiorari is not a substitute for the lost remedy of appeal. So, the remedies given by the law are different. These are basic terms which you should remember. Q: In whom is jurisdiction is vested? A: Jurisdiction is vested with the court, not in the judge. A court may have several branches, and each is not a court distinct and separate from the others. So, when a case is filed before a branch, the trial may be had or proceedings may continue before another branch or judge. (Tagumpay vs. Moscoso, L-14723, May 29, 1959) EXAMPLE: The RTC of Davao is composed of several branches – eleven to twelve judges. But technically, there is only one court – the RTC of Davao. We do not consider branches as separate courts. Q: Now, if the case is filed and is assigned to Branch 8, can that case later be transferred and continued in Branch 9? A: Ah YES, because you never leave the same court. You are still in the same court. This is because jurisdiction is not with the judge. It is with the court itself. TYPES OF JURISDICTION: Types of jurisdiction: 1.) General Jurisdiction and Special or Limited Jurisdiction; 2.) Original Jurisdiction and Appellate Jurisdiction; and 3.) Exclusive Jurisdiction and Concurrent or Coordinate Jurisdiction; 1. GENERAL JURISDICTION and SPECIAL OR LIMITED JURISDICTION 6.) GENERAL JURISDICTION is the authority of the court to hear and determine all actions and suits, whether civil, criminal, administrative, real, personal or mixed. It is very broad – to hear and try practically all types of cases. (14 Am. Jur. 249; Hahn vs. Kelly, 34 Cal. 391)

7.) SPECIAL or LIMITED JURISDICTION is the authority of the court to hear and determine particular cases only. Its power is limited. (14 Am. Jur. 249; Hahn vs. Kelly, 34 Cal. 391) So, the court is authorized to hear and try certain specified cases. Limitado pa ang power niya. And when you go over the Judiciary Act, studying the jurisdiction of the different courts, in civil cases you will see that the jurisdiction of some courts like the RTC, masyadong far ranging. It covers many things whereas the jurisdiction of the MTC, makipot. Very narrow bah because it is a court of limited or special jurisdiction. 2. ORIGINAL JURISDICTION and APPELLATE JURISDICTION a.) ORIGINAL JURISDICTION is the power of the court to take cognizance of a case at its inception or commencement. (Ballentine’s Law Dict., 2nd Ed., pp. 91 and 917) One can file the case there for the first time. b.) APPELLATE JURISDICTION is the power vested in a superior court to review and revise the judicial action of a lower court. (Ballentine’s Law Dict., 2nd Ed., pp. 91 and 917) If one court has the power to correct the decision of a lower court, the power of this court is appellate. This is because it commenced somewhere else and it is just reviewing the decision of the said lower court. EXAMPLE: Maya Quitain will file a civil case in the RTC and that court will take cognizance and try it. You are invoking the original jurisdiction of the RTC. After trial, Maya lost the case, so Maya decided to appeal the decision of the RTC to the CA. The case is now there. It is now in the CA and you are now invoking its appellate jurisdiction. 3. EXCLUSIVE JURISDICTION and CONCURRENT OR COORDINATE JURISDICTION a.) EXCLUSIVE JURISDICTION is that possessed by a court to the exclusion of all others. Q: Sugar JJ filed a collection case against John Vera, for an unpaid loan of P5,000. The judiciary law says, if you file a civil case to collect an unpaid loan below P200,000, you should file it with the MTC. Can Sugar JJ file it in the RTC? A: NO. Therefore the jurisdiction of the MTC is EXCLUSIVE. It does not share its power with other courts. b.) CONCURRENT or COORDINATE JURISDICTION is that possessed by the court together with another or other courts over the same subject matter, the court obtaining jurisdiction first retaining it to the exclusion of the others, but the choice of court is lodged in those persons duly authorized to file the action. (Villanueva vs. Ortiz, 58 O.G. 1318, Feb. 12, 1962) Example: Thaddeus Tangkad wants to file a case or petition in court. Then, he looks at the law and the law says that you can file it in this court or, kung ayaw mo diyan, puwede din dito, diyan or doon – Thaddeus Tangkad can file it in this court or

in other courts. Therefore, he has the right to choose where to file. So if Thaddeus files it in court #2, and it assumes now jurisdiction, out na ang court #1 and court #3. If he files it in court #3, out na yong #1 and #2. Now this is what you call CONCURRENT jurisdiction because you can file the case in two courts or more at your choice. Now, last time we were classifying courts and you learned that the SC is meron palang original jurisdiction. Ito palang CA also has original jurisdiction. Ang RTC obviously is more of an original court than an appellate court. Q: Are there certain types of cases or petitions where I can file it directly with the SC or file with the CA or file it with the RTC? A: YES and the best example is a petition for HABEAS CORPUS. The SC, CA and RTC share concurrent jurisdiction to entertain petitions for habeas corpus. Makapili ka. I-file mo SC, puwede. Kung gusto mo sa CA, puwede din. Kung i–file mo sa RTC, puwede. In effect, these are the instances when the SC, CA and RTC exercise concurrent jurisdiction.

ELEMENTS OF JURISDICTION IN CIVIL CASES In your study of criminal procedure where you also studied the law on jurisdiction, there are also some elements of jurisdiction in criminal cases. Otherwise, the proceeding will be illegal. Jurisdiction over the subject matter; Jurisdiction over the person of the accused; and the third is territorial jurisdiction, i.e. the case should be filed in the place where the crime was committed. In civil cases meron din iyong counterpart. Q: What are the elements of jurisdiction in civil cases? A: The following: a.) Jurisdiction over the subject matter ; b.) Jurisdiction over the person of the parties to the case; c.) Jurisdiction over the res; and d.) Jurisdiction over the issues. Q: Now, what happens if in a particular case one of these is missing? A: The proceedings become questionable. The proceedings become void. The judgment is not binding. That is the effect of lack of jurisdiction. The proceedings are tainted with illegality and irregularity. Alright, let’s go over them one by one. A. JURISDICTION OVER THE SUBJECT MATTER Q: Define jurisdiction over the subject matter. A: Jurisdiction over the subject matter is the power of the court to hear and determine cases of the general class to which the proceedings in question belongs. (Banco Español-Filipino vs. Palanca, 37 Phil. 291) In other words, it is the jurisdiction over the nature of the action. Now, you know already the

various types of civil cases such as actions for nullity of marriage, action publiciana, action reivindicatoria, etc. This is what we call the NATURE OF THE ACTION. Now, if the nature of the subject matter of the action, e.g. annulment of marriage, where will you file it? It should not be filed in the wrong court or else it will be dismissed. The counterpart of that in Criminal law is e.g. offenses punishable by death penalty cannot be tried with the MTC. Annulment cases should be filed in the RTC otherwise it will be dismissed for lack of jurisdiction over the subject matter. Q: How is jurisdiction over the subject matter acquired or conferred? A: Jurisdiction over the subject matter is conferred by law and is never acquired by consent or submission of the parties or by their laches. This is a matter of legislative enactment which none but the legislature can change. (MRR Co. vs Atty. Gen. 20 Phil. 523; Otibar vs. Vinson, L-18023, May 30, 1962) It cannot be acquired by an agreement between the parties, waiver, failure to object (silence). Q: Now, suppose I want to file a case against you and under the law that should be filed in the RTC. But both of us believe that the judges of the MTC like Judge Cañete knows more, he is more competent than the other judge there. “Maganda siguro dito na lang tayo sa MTC.” “O sige, we sign an agreement, magpirmahan tayo that we will file the case by agreement in the MTC.” By agreement, doon sa MTC natin i-file. Did the MTC acquire jurisdiction over the case because the parties agreed? A: NO, agreements between parties cannot change the law. Jurisdiction is conferred by law, not by agreements of the parties. Jurisdiction over the subject matter cannot be agreed upon. It is acquired by or conferred to the court by law – either the Constitution or the Judiciary Law. The parties cannot agree to have the case submitted to another court. Q: Now, suppose I will file a case against you in a wrong court. Ikaw naman hindi ka kumibo. Actually what you should do there is file a motion to dismiss (or in criminal cases a motion to quash.) But hindi ka nagkibo “Sige lang. I will not complain.” So is it okey? Since you did not object, you did not file a motion to dismiss, you did not file a motion to quash, did the ‘wrong’ court acquired jurisdiction over the case? A: NO. Jurisdiction cannot be conferred by silence of the parties or by waiver. Estoppel or waiver or silence or failure to object cannot vest jurisdiction in the wrong court because jurisdiction over the subject matter is conferred by law. And when the court has no jurisdiction, the court by itself has the power to dismiss, “Why will I burden myself for trying a case, when I have no jurisdiction?” The ONLY exception is when there is estoppel by laches, as laid down in tile TIJAM vs. SIBONGHANOY (April 15, 1968). The issue of jurisdiction was not questioned for an unreasonable length of time. BUT the rule is, it can be raised at any stage of the proceeding even for the first time on appeal. And even the parties may not raise it, the court motu propio has the authority to dismiss it. Q: How is jurisdiction over the subject matter determined? A: It is determined by the allegations of the complaint. It does not depend upon the pleas or defenses of the defendant in his answer or motion to dismiss. (Cardenas vs. Camus, L-19191, July 30, 1962; Edward J. Nell Co. vs. Cubacub, L-20842, June 23, 1965; Serrano vs. Muñoz Motors, L-25547, Nov. 27, 1967) B. JURISDICTION OVER THE PERSON Q: Define jurisdiction over the person.

A: Jurisdiction over the person is the power to render a personal judgment through the service of process or by voluntary appearance of a party during the progress of a cause. (Banco Español-Filipino vs. Palanca, 37 Phil. 291) Q: In criminal cases, how does the court acquire jurisdiction over the person of the accused? A: By having him (1) arrested; (2) by service of the warrant of arrest; or (3) by his voluntary surrender. Q: Even if he is not arrested, can the court try an accused without the accused being arrested? A: Of course not, because the court has not acquired jurisdiction over his person. Arestuhin mo muna. Then puwede siyang mag-bail kung gusto niya. After na-arrest, naglayas, nagsibat? Bahala ka itry in absentia. There will be a valid decision because the court has already acquired jurisdiction. Of course we cannot enforce the decision until we caught him. Pero pagnahuli, ka diretso ka na sa prisuhan. You say, “I was not able to give my side. I was not able to confront and cross-examine the witness against me.” Eh, bakit ka naglayas? Pasensiya ka! That’s the concept of trial in absentia. But for trial in absentia to proceed in criminal cases, you must first arrest him. You cannot try him without being arrested. You must arrest him and arraign him first. The same thing in civil cases. It must be that the court must acquire jurisdiction over this person. Normally, when we say jurisdiction over the parties, we are referring to the PLAINTIFF – the one suing, and the DEFENDAN'T – the one being sued. For the decision to be valid, the court must obtain jurisdiction over the person of the plaintiff and the defendant. Otherwise, the decision will not bind the parties over whom the court has not acquired jurisdiction. That is why jurisdiction over the parties is the power of the court to render a personal judgment which will bind the parties to the case. What is the use of rendering a decision if the parties are not bound? It must have effect. Q: How does the court acquire jurisdiction over the plaintiff? A: Jurisdiction over the person of the plaintiff is acquired from the moment he files his complaint. Upon filing his complaint in court, he is automatically within the jurisdiction of the court. (MRR Co. vs Atty. Gen. 20 Phil. 523) Q: How does the court acquire jurisdiction over the defendant? A: Jurisdiction over the person of the defendant is acquired: 1.) upon service on him of coercive process in the manner provided by law; or 2.) by his voluntary submission to the jurisdiction of the court. (MRR Co. vs Atty. Gen. 20 Phil. 523) First Instance: UPON SERVICE ON HIM OF COERCIVE PROCESS IN THE MANNER PROVIDED BY LAW The first instance when a court acquires jurisdiction over the person of the defendant is through a service upon him of the appropriate court process which in civil law is called service of summons. This is the counterpart of warrant of arrest in criminal procedure. So if the defendant was never served with summons, any judgment rendered by the court will not bind him. Even if he is the loser in the case, judgment cannot be enforced because the court did not

acquire jurisdiction over his person. The same principle holds true in criminal cases. A court cannot try and convict an accused over whose person the court never acquired jurisdiction. In criminal cases, the court acquires jurisdiction over the person through the issuance of a warrant of arrest. The warrant cannot have its effect even if it was issued, if the same had not been served, i.e. by effecting the arrest of the accused by virtue of a warrant. Q: In criminal cases, how can the warrant of arrest be effected? A: Once an information has been filed in court, the court issues a warrant. Then, the arresting officer will arrest the accused. The court acquires jurisdiction by ENFORCEMENT OF SERVICE for effective arrest of the accused pursuant to the warrant of arrest. Second Instance: BY HIS VOLUNTARY SUBMISSION TO THE JURISDICTION OF THE COURT Another way to acquire jurisdiction over the person of the accused even if the accused is not arrested is through VOLUNTARY SURRENDER. Since there is no more need for the warrant, the court will recall the same. In civil cases, it is the voluntary submission of the defendant to the jurisdiction of the court. Q: Defendant was served with summons improperly or irregularly therefore, he could question the jurisdiction of the court over his person. But instead, he did not question the jurisdiction of the court despite the defective service of court process. Did the court acquire jurisdiction over the person of the defendant? A: YES, because jurisdiction over the person can be acquired by: a.) waiver; b.) consent; or c.) lack of objection by the defendant. (MRR Co. vs. Atty. Gen. 20 Phil. 523) This is unlike the jurisdiction over subject matter wherein the case could be dismissed upon filing in the wrong court. The SC said that when you remained silent despite the defects, your silence has cured the defect. Meaning, the jurisdiction over your person was acquired by waiver, or consent, or lack of objection. Q: Distinguish jurisdiction over the subject matter from jurisdiction over the person of the defendant? A: Lack of jurisdiction over the person of the defendant may be cured by waiver, consent, silence or failure to object, whereas jurisdiction over the subject matter cannot be cured by failure to object or by silence, waiver or consent. (MRR Co. vs. Atty. Gen. 20 Phil. 523) C. JURISDICTION OVER THE RES RES is the Latin word for “thing.” Q: Define jurisdiction over the res. A: Jurisdiction over the res is that acquired by the court over the property or the thing in contest, and is obtained by seizure under legal process of the court whereby it is held to abide such order as the court may make. (Banco Español-Filipino vs. Palanca, 37 Phil. 291)

Q: A and B quarreled over a piece of land. What is the res of the case? A: The piece of land is the res of the case. Q: However, res may not be tangible. For example, Weng Kolotski is an illegitimate child. She wants to be acknowledged by her father. Thus, she filed a case against her father for compulsory recognition. What is the res? A: The res is the status of the child because it is the object of the litigation. Q: Why is jurisdiction over the res important? A: Sometimes it is a substitute for jurisdiction over the person. There are instances when the court cannot acquire jurisdiction over the defendant like when he is abroad. But if the court acquires jurisdiction over the res, the case may go on. Even if the court cannot acquire jurisdiction over the person of the defendant, jurisdiction over the res becomes a substitute over the person. EXAMPLE: Even if the defendant is a non-resident who is out of the country and the object of litigation is here in the Philippines, then acquisition of jurisdiction over the res confers jurisdiction to the court even if the defendant is abroad. The res here is where the judgement can be enforced. That is why in Rule 14, there is an extra-territorial service of summons. But based on a SC ruling, the extra-territorial service of summons is not for the purpose of acquiring jurisdiction over the person of the defendant but is merely how to comply with the due process clause. D. JURISDICTION OVER THE ISSUES Q: Define jurisdiction over the issues. A: Jurisdiction over the issue is the authority to try and decide the issues raised by the pleadings of the parties. (Reyes vs. Diaz, 73 Phil. 484) Q: What are pleadings? A: They are governed by Rule 6. Rule 6, Section 1 - Pleadings are the written allegation of the parties of their respective claims and defenses submitted to the court for trial and judgment.

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

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

Jurisdiction over the subject matter is the power to hear and try a particular case, while Jurisdiction over the issues is the power of the court to resolve legal questions involved in the case; 2.) Jurisdiction over the subject matter is acquired upon filing of the complaint, while Jurisdiction over the issues of the case is acquired upon filing of the answer which joins the issues involve in the case. EXAMPLE: I am the plaintiff, I will file a case in court to collect an unpaid loan. From the moment I file the case, the court has acquired jurisdiction over the subject matter. Now, you are summoned. File ka naman ng sagot mo, “Wala akong utang, bayad na.” Then the court has now acquired jurisdiction over the issue. One is acquired upon filing of the complaint and the other one is acquired after the filing of the answer by the defendant.

HIERARCHY OF THE COURTS In the 1996 BAR: One of the questions in Remedial Law was: State the hierarchy of the Courts in the Philippines. a.) Regular courts SUPREME COURT COURT OF APPEALS REGIONAL TRIAL COURTS MetTC

MTCC

MTC

MCTC

Note: MetTC- In Manila MTCC- cities outside Manila e.g. Cebu, Davao MTC- municipalities such as Digos, Panabo MCTC- circuitized areas because it is impractical and expensive to maintain one MTC in every municipalities. b.) Special courts There are also Special Courts which are also considered part of the judiciary. These are: 1. Court of Tax Appeals (RA 1125) 2. Sandiganbayan (PD 1486 as amended) 3. Sharia District Courts and the Sharia Circuit Courts (PD 1083 , also known as the Code of Muslim Personal Law); 4. Family Courts We are concerned only of the jurisdiction of the REGULAR COURTS.

JURISDICTION OF THE SUPREME COURT The highest court of the land is the Supreme Court. It was not affected by the Judiciary Law (BP 129) which reorganized the judiciary in 1983. Being a constitutional court, its jurisdiction is found in the fundamental law itself. The SC is both an original and appellate court. e.) ORIGINAL JURISDICTION OF THE SUPREME COURT Article VIII, Section 5 , paragraph 1 of the 1987 Constitution enumerates the ORIGINAL jurisdiction of the SC: Section 5. The Supreme Court shall have the following powers: [1] Exercise original jurisdiction over cases affecting ambassadors, other public ministers and consuls, over petitions for certiorari, prohibition, mandamus, quo warranto , and habeas corpus.

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

a) All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question. So if the RTC in a certain civil case declares the law as unconstitutional since it has the power to do so, the same has to be appealed directly to the SC. It cannot pass through the CA because the SC has exclusive appellate jurisdiction regarding the matter.

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

Article IX, Section 7, paragraph (a), 1987 Constitution: “Each Commission shall decide by a majority vote x x x. Unless otherwise provided by this Constitution or by law, any decision, order, or ruling of each Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof.”

The COMELEC, COA and the CSC act also as courts of justice. They have powers to decide certain cases within their jurisdiction. Election cases, sa COMELEC man yan ba. Claims against the government – COA. Or disallowance on disbursement by government officers or removal from government service – CSC. Now, according to Section 7, any decision, order or ruling of these commissions may be brought to the SC on certiorari, etc. So you will see that the decisions of the constitutional commissions are reviewable by the SC. However, Congress amended the Judiciary Law particularly Section 9 on the jurisdiction of the CA by now making decisions of the CSC no longer appealable to the SC directly but appealable to the CA. So based on the present law, out of the three constitutional commissions, the only ones whose decisions are appealable directly to the SC are those of the COMELEC and the COA When that law was passed where the decisions of the CSC are appealable to the CA, first I was stunned. I said there is something queer here because the CSC is a constitutional body and the CA is not. So why will a decision of a constitutional body be reviewable by a non-constitutional body? And I said parang it might violate the Constitution. Under the Constitution, decisions of the constitutional commissions are appealable to the SC. Does Congress have the power to change that by making it appealable to the CA? So I had to look at the provision again to find out whether this is possible. But pwede naman pala. You look at the provision, “Unless otherwise provided by this Constitution or by law..” Meaning, the decisions are appealable to the SC unless otherwise provided by law. The Constitution itself gave Congress the power to change it. So there is no problem. Article VII, Section 4, last paragraph, 1987 Constitution: “The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election, returns, and qualifications of the President or Vice-President, and may promulgate its rules for the purpose.”

If there’s an electoral protest for the President and Vice-President, the matter is not to be decided by the COMELEC but by the SC. This is what is called as the SC acting as the Presidential Electoral Tribunal. The only case so far was that filed by Defensor-Santiago but which was dismissed, the SC ruled that when she ran for the Senate, she has already technically abandoned her interest for the Presidency. Article VII, Section 18 (3), 1987 Constitution – Commander-in-Chief Clause “The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or extension thereof, and must promulgate its decision thereon within thirty days from its filing.”

So, the SC, in an appropriate proceeding filed by any citizen review the sufficiency of the factual

basis of the proclamation of martial law. Meaning, the SC can inquire into the basis on why martial law is declared. Which therefore abandons the Political Question doctrine laid down in many earlier cases that it is the prerogative of the President to determination, at his discretion, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof. So this particular provision of the Constitution came about in 1987 to check the supposed excesses during the time of Marcos, though it came too late. It may well take another 100 years to produce another Marcos. Article VIII, Section 2, 1987 Constitution: The Congress shall have the power to define, prescribe, and apportion the jurisdiction of the various courts but may not deprive the Supreme Court of its jurisdiction over cases enumerated in Section 5 hereof.

Congress may change or even remove the jurisdiction of the RTC or CA. The law can change them because jurisdiction over the subject matter is conferred by law. However, Congress does not have the power to lessen or deprive the Supreme Court of its jurisdiction under Section 5, Article VIII. However Article VI, Section 30 states: “No law shall be passed increasing the appellate jurisdiction of the Supreme Court as provided in this Constitution without its advice and concurrence.”

Thus , Congress cannot lessen but it can increase the SC’s powers and jurisdiction, PROVIDED it is with the latter's advice and concurrence. The provision under the Ombudsman Law (RA) with regards to the Ombudsman’s disciplining power appealable directly to the SC, was declared unconstitutional by the SC because it increased the SC’s jurisdiction and was passed without the advise and concurrence of the SC. So more or less, these are the scattered provisions of the Constitution dealing with the SC’s jurisdiction. [Note: PLEASE REFER TO THE HANDOUT HEREIN ATTACHED FOR A COMPLETE OUTLINE OF THE SUPREME COURT'S JURISDICTION.] The ORIGINAL EXCLUSIVE jurisdiction of the SC refers to petitions for the issuance of writs of certiorari, prohibition and mandamus as defined in Rule 65 against the following: the CA, the COMELEC, COA, Sandiganbayan, Central Board of Assessment Appeals, NLRC or the Secretary of Labor under the Labor Code. The cases where its original jurisdiction is CONCURRENT with the CA are likewise petitions for the issuance of writs of certiorari, prohibition, mandamus against the following: the SEC, the CSC, the different boards, tribunals or agencies which replaced the old Public Service Commission (e.g. LTFRB). Also, issuance of writ of certiorari against the RTC and other quasi-judicial agencies, courts, instrumentalities and commissions.

CONCURRENT with the RTC are those actions affecting ambassadors and other public ministers and consuls. This is based on the Judiciary Law and the Constitution. CONCURRENT with the CA and RTC are those involving habeas corpus, quo warranto, and writs of certiorari, prohibition, and mandamus against inferior courts and bodies. For example, a petition for mandamus against the MTC of Davao City can be filed with the SC, CA, or RTC although the policy of the Supreme Court is that it should be filed with the RTC based on the hierarchy of the courts. (Vergara vs. Suelto, 156 SCRA 758) Finally, with the advent of the new law (RA 8249), there is now a CONCURRENCE between the SC and the Sandiganbayan in so far as petitions for certiorari, prohibition, mandamus, habeas corpus, injunction and other ancillary writs in aid of the Sandiganbayan's APPELLATE JURISDICTION. b.) APPELLATE JURISDICTION OF THE SUPREME COURT: 8.) Automatic review of death penalty. So when the RTC imposes the death penalty, whether the accused appeals or not, the case will be elevated to the SC; 9.) Ordinary appeal from the RTC direct to the SC. This only applies to criminal cases where the penalty of reclusion perpetua or life imprisonment is imposed or other offenses which arise out of the same occurrence or committed by the accused on the same occasion; 10.) Appeal by Certiorari under Rule 45. When it comes to appeal by Certiorari, there are three types: 3.1.) From the CA or all appeals from the CA are certiorari which is different from the certiorari in Rule 65. 3.2.) From the RTC direct to the SC. Now, this is not ordinary appeal because this only applies to criminal cases. In civil cases, if you want to go directly to the SC, you can do so by appeal by certiorari, provided that the following conditions are met: 3.) If no question of fact is involved and the case involves the constitutionality or legality validity of any tax, impost, etc., or jurisdiction of the lower courts is in issue ( Article VIII, section 5 par.(2) 4.) only an error or question of law involved (supra); 5.) a judgment rendered upon an award under the Arbitration Law (RA 876) 6.) appeal on pure questions of law in cases of appeal to the RTC from inferior courts. So, from the MTC to the RTC – ordinary appeal. From the RTC, on pure questions of law, to the SC – appeal by certiorari. 3.3.) Appeal from other courts or administrative agencies liked appeal from the Sandiganbayan to the SC, from the Central Board of Assessment Appeal or from the Ombudsman.

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Section 9 – Jurisdiction – The Court of Appeals shall exercise: (1) Original jurisdiction to issue writs of mandamus, prohibition, certiorari, habeas corpus, and quo warranto, and auxiliary writs or processes whether or not in aid of its appellate jurisdiction.

Does the language sound familiar to you? “Original jurisdiction to issue writs of mandamus, prohibition, certiorari, habeas corpus, quo warranto.” Did you hear that before? Under the original jurisdiction of the Supreme Court the language is the same, eh. Now, we take the same provision for the second time. So, if I would like to file a petition for habeas corpus, where will I file it? Q: If I file it with the Supreme Court, is it allowed? A: Yes, because the Constitution says so. Q: But suppose I will instead file it with the CA, is it also allowed? A: Yes, under Section 9, paragraph 1. So what is the conclusion? The SC and the CA exercises concurrent jurisdiction to entertain petitions to issue writs of mandamus, prohibition, certiorari, habeas corpus, and quo warranto. Alright, so I will go to a specific SITUATION: I’m a clever lawyer, and I will file a petition for quo warranto. In order to be sure I will get what I want, I will prepare two identical petitions. Since concurrent man sila, I will file before the SC and the other one with the CA. Sigurista ba – kung madisgrasya sa isa, meron pang isa. Q: Can I do that? Meaning, I will file one petition before the SC, I will file another petition, pareho-pareho – I will invoke the jurisdiction of the two courts at the same time. Now, suppose I will do that, what do you think will happen to me? A: The consequence is found in Section 17 of the Interim Rules. That’s why, as I said, the Interim Rules are still intact. Interim Rules, Sec. 17. Petitions for writs of certiorari, etc. - No petition for certiorari, mandamus, prohibition, habeas corpus or quo warranto may be filed in the IAC if another similar petition has been filed or is still pending in the SC. Nor may such petition be filed in the SC if a similar petition has been filed or is still pending in the IAC, unless it is to review the action taken by the IAC on the petition filed with it. A violation of this rule shall constitute contempt of court and shall be a cause for the summary dismissal of both petitions, without prejudice to the taking of appropriate action against the counsel or party concerned.

So, eto, you believe you are a clever lawyer, so you will file two identical petitions. Do you know what will happen to you according to the provision? Once the CA learns that you filed an identical petition with the SC, the CA will dismiss the petition before it. And once the SC also learns that you also filed before the CA, the SC will also dismiss the one you filed before it. So you end up with nothing because both courts will dismiss. And not only that, both courts will declare you in contempt of court and if you are a lawyer, disciplinary actions may be taken against you. That is what you will get if you think you are clever. It turns out that you placed yourself in a frying pan. In other words, this is what is called abhorrent, contemptible practice of FORUM SHOPPING. Have you heard that term before – forum shopping? ‘Yun bang sabay-sabay kang mag-file ng case. You will invoke the jurisdiction of two or more courts simultaneously. That is an act of contempt of court (Rule 7, Section 5).

EXCLUSIVE JURISDICTION OF THE COURT OF APPEALS [2] Section 9, paragraph 2, BP 129 (2) “Exclusive” jurisdiction over actions for annulment of judgments of Regional Trial Courts;

Yes, you will notice again that this type of action belongs to the original jurisdiction of the CA. But there is something that you will notice. In paragraph 2, it says there – “exclusive jurisdiction.” In paragraph 1, the word “exclusive” is not present. As already explained earlier in paragraph 1, the jurisdiction of the CA is concurrent with the SC. In paragraph 2, the original jurisdiction of the CA is exclusive with the CA. You can only file this type of action before the CA such as an action for annulment of judgments of the RTC’s. Q: Actions for annulment of judgments of RTC’s, an action to annul a judgment of the RTC. Now, is this similar to an appeal? Is this the same as appealing the decision of the RTC to the CA? A: No, because in appeal, you are invoking the appellate jurisdiction of the CA. Here in paragraph 2, it is not appellate jurisdiction. Original ito, eh. Meaning, you are filing an action before the CA for the first time. And the nature of the action is to annul a judgment of the RTC. Well, you are familiar with the Civil Law about actions of annulment of contracts. So, if there is such a case of annulment of contract, there is also such a case as annulment of judgments of the RTC’s and you come to wonder: Q: What would be the ground? What will be the ground to annul the judgment of the RTC and how do you distinguish it from an appeal? A: The present 1997 Civil Procedure now contains a specific rule on this. Before 1997, the guidelines on annulment of judgment of the RTC’s are SC decisions. There is no specific rule, ba. But ‘yung guidelines are based on jurisprudence. Right now, starting July 1, 1997, there is now a specific rule on annulment of judgments of RTC. And that is Rule 47. That is an entirely new rule. So that is enacted precisely to implement Section 9 Paragraph 2. Of course, we will discuss that rule very much later. APPELLATE JURISDICTION OF THE COURT OF APPEALS Now we’ll go the 3rd. Paragraph 3 is the most popular jurisdiction of the CA. Appellate, eh. This is what is often involved. Most of the cases which land in the CA are appealed cases. Alright, so paragraph 3 defines the appellate jurisdiction of the CA. [3] Section 9, paragraph 3, BP 129 (3) Exclusive appellate jurisdiction over all final judgments, decisions, resolutions, orders or awards of the RTCs and quasi-judicial agencies, instrumentalities, boards or commissions, including the Securities and Exchange Commission, the Social Security Commission, the Employees Compensation Commission and the Civil Service Commission, except those falling within the appellate jurisdiction of the SC in accordance with the Constitution, the Labor Code of the Philippines under PD 442, as amended, the provisions of this Act, and of subparagraph (1) of the third paragraph and subparagraph (4) of the fourth paragraph of Sec. 17 of the Judiciary Act of 1948.

Take note, the appellate jurisdiction of the CA is EXCLUSIVE. Now, if you will analyze paragraph 3, you will notice that the CA is a powerful court because it has exclusive appellate jurisdiction over all final judgments, decisions, resolution, orders or awards of RTC’s. So as a general rule, if the RTC, anywhere in the country renders a decision and you want to appeal, whether civil or criminal, chances are it will go the to CA. It is a powerful court, eh – all RTC’s eh – exclusive pa. And not only only RTC’s. The law says “and quasi-judicial agencies, instrumentalities, boards or commissions…” Not only decisions of the RTC but quasi-judicial, this is what you call administrative bodies. Administrative bodies are not actually part of the executive branch but they act just like courts of justice. They can decide cases and there are hundreds of administrative agencies in the Philippines. And therefore, if you lost a case before anyone of these bodies, or tribunals, you appeal the decision not with the SC, but to the CA. The amendments by RA 7902 is even more specific by adding this phrase, “including the SEC, SSS, the Employees Compensation commission and the Civil Service Commission (CSC).” That is the addition. Gi-klaro ba. CSC – this is what I’ve notice before…I told you before. Before this law was passed, under the Constitution, decisions of the CSC are appealed to the SC together with the COMELEC and the COA. But with the passage of RA 7902, the appeal from the CSC has been transferred to the CA, so what is left behind in the Constitution is the COMELEC and the COA na lang. For a while there I thought that this was wrong because the CSC is a constitutional body and its decisions shall be appealed to a non-constitutional body like the CA. So, how do we reconcile this with the Constitution, Article IX-A, Section 7, where it states that the ruling of each commission shall be reviewed by the SC? However, the same provision states that: “Unless otherwise provided by this Constitution or by law.” And the law is the RA 7902. So, this is how we reconcile it, in other words, the Constitution and the law can provide for a different mode. Obviously, the purpose of this statute is to unburden the SC with so many cases. At least transfer some of the workload to the CA. That is the obvious purpose. The phrase “except those falling within the appellate jurisdiction of the Supreme Court…”means all cases should be appealed to the CA except those which belong to the SC under the Constitution. We know that already. When the issue is the constitutionality of the law, treaty, legality of any tax, the jurisdiction of any lower court – yan, hindi puwede sa CA. Diretso yan sa SC. And also “except those falling under the Labor Code of the Philippines.” A labor case is not supposed to be filed in court but with a quasi-judicial agency known as the NLRC and you start in the local level – from the Labor Arbiter, then the decisions of the Labor Arbiter are appealable to the NLRC and then from there, where will you go? Q: Is the decision of the NLRC appealable before the CA? Because it is also a quasi-judicial agency and under the law, all decisions of quasi-judicial agencies are supposed to be appealed to the CA. A: NO. The decision of the NLRC is an exception – except those under the appellate jurisdiction of the SC under the Constitution and in accordance with the Labor Code (PD 422). So conclusion: NLRC decisions cannot be appealed to the CA and the only way to elevate it is to the SC by what we call

certiorari, not appeal. Also, decisions of the Secretary of Labor, under the Labor Code are not reviewable by the CA, but they are reviewable directly by the SC. And then there is the phrase, "the provisions of this Act, and of subparagraph (1) of the third paragraph and subparagraph (4) of the fourth paragraph of Section 17 of the Judiciary Act of 1948.” So, in other words, the new Judiciary Law still makes some reference to the old law. This shows that the entire 1948 Judiciary Law has not been totally repealed. Some provisions are still intact because of the reference. Now what is this subparagraph 1 of the third paragraph? It only applies to criminal cases. EXAMPLE: A person is sentenced to reclusion perpetua, his co-accused is sentenced to reclusion temporal or prison mayor, and all of them will appeal, all of them should be sa SC na. Otherwise, you will be splitting the appeal into two parts. Subparagraph 4 of the fourth paragraph of Section 17. When by appeal from the RTC is on pure legal question, SC yan. Q: Suppose nasagulan ng questions of fact, I will appeal questions of fact and questions of law. A: Under the 1948 Judiciary Law, you cannot appeal directly to the SC. You must appeal to the CA. The same thing on when the issue is on the constitutionality of a treaty, law, legality of tax, when the jurisdiction of the lower court is in issue, as explained here in this paragraph of the Judiciary Act of 1948, if the appeal is 100% constitutional issue, jurisdictional or legality issue – appeal is to the SC under the Constitution. But if it is mixed with questions of fact, do not go to the SC. You go first to the CA. That is what the paragraph is all about. Alright, so that takes care of the jurisdiction of the CA. [4] Section 9, last paragraph, BP 129: The Court of Appeals shall have the power to try cases and conduct hearings, receive evidence and perform any and all acts necessary to resolve factual issues raised in cases falling within its original and appellate jurisdiction, including the power to grant and conduct new trials or further proceedings. Trials or hearings in the CA must be continuous and must be completed within three (3) months unless extended by the Chief Justice. (As amended by RA 7902)

This paragraph shows that the present CA that we have now is a more powerful court than before. It is a unique court. Aside from being an appellate court, it also acts as a trial court. It may receive evidence but only those evidence which were overlooked by the trial court. It can order a new trial or conduct a new trial itself. Q: If an issue of fact is tried before the RTC, can I always ask the CA to allow me to present evidence? Does it mean to say now that since the CA is a very powerful court, it can take the place of the RTC? Meaning, if I’m a party instead of presenting my case before the RTC, I will not, “Doon na lang sa CA.” A: That is already interpreted in the case of LINGER AND FISHER vs. INTERMEDIATE APPELLATE COURT 125 SCRA 522 [1983]

HELD: The power of the CA to receive evidence refers only to incidental facts which were not 100 percent touched upon, or matters which were simply overlooked by the trial court. You cannot opt not to present evidence before the RTC. It only refers to incidental facts. “Evidence necessary in regards to factual issues raised in cases falling within the Appellate Court’s original and appellate jurisdiction contemplates ‘incidental’ facts which were not touched upon, or fully heard by the trial or respondent Court. The law could not have intended that the Appellate Court would hold an original and full trial of a main factual issue in a case, which properly pertains to Trial Courts.”

JURISDICTION OF THE REGIONAL TRIAL COURTS Ito ang third level, ‘no? And by going over their jurisdiction, you will see that it is a court of general jurisdiction and it is actually the workforce of the whole judiciary. ‘Yan…talagang mabigat ang trabaho nitong RTC. Their workload is terrible. Before, somebody asked me, “Dean, gusto mong mag-judge sa RTC?” Inyuha na na! (Burawi nyo!) Inyo na nang trabaho na ‘yan because there are 2 things there when you get the job of the RTC judge: Of course, you want to excel, you want to do your job properly and efficiently, you will die early because of the workload. Or, you end up as one who is lazy. You end up with administrative cases for laziness, left and right. So mabuti pa, huwag ka na lang magtrabaho diyan, kasi mabigat ang trabaho diyan. Q: How many RTC’s are there in the Philippines, from Northern Luzon to Southern Mindanao? In your opinion? A: You look at the opening clause of Section 13: Section 13 (1) Creation of Regional Trial Courts – There are hereby created thirteen (13) Regional Trial Courts, one for each of the following regions: x x

So the Judiciary law has divided the country into 13 areas which is called JUDICIAL REGION. From the 1st to the 12th, the 13th is actually in the National Capital Region (NCR), Metro Manila. Every division is divided into branches and the number of branches keep on increasing by law. So, to what region do we belong? We are in the 11th judicial region. So there is one RTC for the 11th judicial region, pero bakit ‘yun ganoon? Davao City lang, more than 10 na? Well, here is where you will go back to your fundamentals. A court is not the same as a judge. ‘Yan… Actually, what the law says is that, there are 13 RTCs, and every court is divided into branches. So, kung branches siguro, malapit nang maging 1000 throughout the country. So there are 13 courts with almost 1000 judges. Now, as a matter of fact, if you want to know exactly how many there are, you refer to your Section 14. Actually, this has been amended many times because from 1980 up to the present, Congress passed laws. In fact when the law took effect, according to Section 14, there are originally 29 RTC judges commissioned for the 11th judicial region – 29 originally. Now, from what I know, based on the amendment in 1991, it was increased from 29 to 41. So there are supposed to be 41 RTC judges for the 11th judicial region. As I said, unless from 1991 to the present dinagdagan na naman nila. So 41 RTC judges shall be commissioned for the 11th judicial region. There should be 6 branches which sits thereafter for the province of Davao del Norte, which sits at Tagum, Nabunturan and Panabo. Four branches which sit thereat for the province of Davao Oriental which sits at Mati, Bagangga and Butuan. Sixteen branches which sit thereat for the province of Davao del Sur. And the City of Davao which sits at Davao City, Digos, Malita and Bansalan. Then 10 branches whish sit thereat for the province of South Cotabato and the City of General Santos which sit at General Santos City, Koronadal [the City of Eumir, Francis and Mortz], Surallah, and Polomolok. And 5 branches which sit thereat for the province of Surigao del Sur which sit at Tandag, Ginanga, Bislig and Kantilan. So that is how they are distributed within the 11th the juridical region.

Sec. 19 Jurisdiction in civil cases – Regional Trial Courts shall exercise exclusive original jurisdiction: [1] In all civil actions in incapable of pecuniary estimation.

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What does it mean? When the subject of the litigation is not expressed in terms of pesos, centavos. Alright. In most cases that we know, the demand of the plaintiff is expressed in terms of amount, eh. EXAMPLE: A creditor will file a case for the collection of the unpaid loan from the defendant. Ang nakalagay sa demanda niya, that after trial that the court should order the defendant to pay him the sum of P500,000 na utang with interest. So, the subject is expressed in terms of amount of damages ba, the court shall award to the defendant damages amounting to half a million. Karamihan ng kaso ganyan. But here, in this civil case, the subject of the civil case is not capable of pecuniary estimation. It cannot be estimated or calculated in pesos. EXAMPLE is an action for annulment; rescission of contract; an action for specific performance; an action for declaratory relief by express provision of the law now; an action for the permanent injunction against somebody; [2] In all civil actions which involve the title to, or possession of, real property or any interest therein, where the assessed value of the property involved exceeds P20,000 or for civil actions in Metro Manila, where such value exceeds P50,000 except actions for forcible entry into and unlawful detainer of lands and buildings; original jurisdiction over which is conferred upon the Metropolitan Trial Courts, Municipal Circuit Trial Courts;

So real actions outside of forcible entry and unlawful detainer. The best example would be accion publiciana, accion reinvidicatoria, quieting of title, provided the value of the property exceeds P20,000.00 based on the assessed value of the property. So, for a lesser value, MTC has jurisdiction. This is why MTCs now has jurisdiction over accion publiciana when the value of the property is P20,000 or less. But kung forcible entry and unlawful detainer, klaro yan – walang RTC. Now, if in Metro Manila, then value is P50,000. But outside Metro Manila, the assessed value is only P20,000. [3] In all civil actions in admiralty and maritime jurisdiction where the demand or claim exceeds One Hundred Thousand pesos (P100,00.00) [now PhP 200,000.00] or, in Metro Manila, where such demand or claim exceeds Two Hundred Thousand pesos (P200,000.00)[now, PhP 400,000].

EXAMPLE: The shipper will ship to you in Davao goods involving common carrier. While in transit, the goods are lost or they are totally damaged. You would like to file a claim or a case against the carrier, what kind of a case? That is an admiralty or maritime case. Q: If you are going to file a case against the shipping company, where will you file it? RTC or

MTC? A: It depends on how much is your claim. If your claim of the damaged or lost cargo exceeds P200,000, sa RTC; if it is P200,000 or less, sa MTC. In Metro Manila, the jurisdiction is higher – it should be over P400,000. Now do not confuse this with No. 2 because that involves LAND with more than P20,000 value. Take note that prior to August 16, 1999, the claim should exceed P100,000 or P200,000 in Metro Manila as the case may be. Now, the claim is adjusted to P200,000 and P400,000, respectively pursuant to Section 5 of RA 7691 which took effect last August 15, 1995: RA 7691, Sec. 5. After five (5) years from the effectivity of this Act, the jurisdictional amounts mentioned in Sec. 19(3), (4), and (8); and Sec. 33(1) of Batas Pambansa Blg. 129 as amended by this Act, shall be adjusted to Two hundred thousand pesos (P200,000.00). Five (5) years thereafter, such jurisdictional amounts shall be adjusted further to Three hundred thousand pesos (P300,000.00): Provided, however, That in the case of Metro Manila, the abovementioned jurisdictional amounts shall be adjusted after five (5) years from the effectivity of this Act to Four hundred thousand pesos (P400,000,00).

So after August 16, 1999 (5 years from the effectivity of RA 7691) yung P100,000.00 naging P200,000 na. Yung P200,000 in Metro Manila, naging P400,000. Then after another 5 years (2004), aakyat na naman ang jurisdiction ng MTC. So from the original P100,000.00 magiging P300,000 na yan. Automatic ha. [4] In all matters of probate, both estate and intestate, where the gross value of the estate exceeds One Hundred Thousand pesos (P100,000.00) [now P200,000] or, in probate matters in Metro Manila, where such gross value exceeds Two Hundred Thousand pesos (P200,000.00) [now P400,000].

In the subject of Wills and Succession, when a person dies, his estate, his property will be settled for the benefit of his creditors and heirs. That is what you call either as testate or intestate proceedings depending on whether the deceased left a will or none. Q: Where should the estate of the deceased person be settled, RTC or MTC? A: It depends on how much is the gross value of his estate. If it exceeds P200,000, RTC. If it is P200,000 or less, it should be with the MTC. In Metro Manila again, it is doubled, the gross should be more than P400,000. And again, this will automatically increase after 5 years from 1999. [5] In all actions involving the contract of marriage and marital relations.

Most of these cases are under the Family Code. Q: What are the possible actions which you can imagine involve the contract of marriage and marital relations? A: Annulment of marriage, legal separation, declaration of nullity, dissolution of the absolute community of husband and wife, and action for support. These cases are the ones arising under the Family Code, where it arises out of a marital relationship. Take note that these cases are NO LONGER covered by the RTC because under RA 8369 (Family Courts Act of 1997), these cases should now be tried by the FAMILY COURTS.

RA 8369, SECTION 5. Jurisdiction of Family Courts. — The Family Courts shall have exclusive original jurisdiction to hear and decide the following cases: x x x x x x d) Complaints for annulment of marriage, declaration of nullity of marriage and those relating to marital status and property relations of husband and wife or those living together under different status and agreements, and petitions for dissolution of conjugal partnership of gains; x x x x x x

Now, in areas where there are no family courts, the cases shall be adjudicated by the RTC. So certain branches of the RTC will act as family courts (acting family courts. We shall skip first no. 6. We will return to that later. Let’s go to no. 7. [7] In all civil actions and special proceedings falling within the exclusive original jurisdiction of a Juvenile and Domestic Relations Court and of the Court of Agrarian Relations as now provided by law;

Before BP 129, these were special courts existing before 1980. Among these courts were the so called Juvenile and Domestic Relations Courts (JDRC). Then you have the Court of Agrarian Relations (CAR) which tried the cases involving tenancy, agricultural lessor, agricultural lessee, agricultural lands. When BP 129 was enacted, the CAR and the JDRCs were abolished. Cases which they used to handle were automatically transferred to the RTC. That was after BP 129 took effect. What were the cases which were usually falling within the original jurisdiction of the former JDRC? Usually, those involving family and children, like support filed by the child against his father, compulsory recognition, custody of children, adoption proceedings – these are the cases which are usually heard by the JDRC. Under BP 129, all of these are now within the jurisdiction of RTC. HOWEVER, this has been amended again by RA 8369 (Family Courts Act of 1997) These cases are now under the jurisdiction of the FAMILY COURTS: (See Sections 5 [b], [c], [e], [g]) RA 8369, SECTION 5. Jurisdiction of Family Courts. — The Family Courts shall have exclusive original jurisdiction to hear and decide the following cases: x x x x b) Petitions for guardianship, custody of children, habeas corpus in relation to the latter; c) Petitions for adoption of children and the revocation thereof; x x x x g) Petitions for declaration of status of children as abandoned, dependent or neglected children, petitions for voluntary or involuntary commitment of children; the suspension, termination, or restoration of parental authority and other cases cognizable under Presidential Decree No. 603, Executive Order No. 56, (Series of 1986), and other related laws; x x x x x

But the law transferring the jurisdiction of the CAR to the RTC became partially obsolete with the enactment of the Comprehensive Agrarian Reform Law (CARL) or RA 6657 (June 15, 1988). Under the CARL, all agrarian disputes between landlord and tenant, lessor and lessee were transferred to the

DAR particularly the DAR Adjudication Board (DARAB), making them quasi-judicial cases . So, from CAR to RTC, from RTC to DARAB So the RTC has NO jurisdiction, EXCEPT in the following 2 cases: g.) Cases where the issue is PAYMENT OF JUST COMPENSATION, f or, the property which has been taken under CARP law; EXAMPLE: If you are a landowner and your agricultural land is placed under the CARP coverage, the government will fix the payment for you. The trouble is that you did not lot agree on the amount of payment. Agrabiyado ka sa compensation ng gobyerno. Now, you go to RTC and you ask for higher compensation. 1.) Prosecution of criminal offenses for violation of the CARL; So these are the only agrarian cases which still belongs to the RTC. This was explained by the SC in the case of QUISMUNDO vs. COURT OF APPEALS 201 SCRA 609 [1991] HELD: “Wth the enactment of Executive Order No. 229, which took effect on August 29, 1987, the Regional Trial Courts were divested of their general jurisdiction to try agrarian reform matters. The said jurisdiction is now vested in the Department of Agrarian Reform. Said provisions thus delimit the jurisdiction of the regional trial courts in agrarian cases only to two instances: 7.) petitions for the determination of just compensation to landowners; and 8.) prosecution of criminal offenses under said Act. [8] In all cases in which the demand, exclusive of interest, damages of whatever kind, attorney’s fees, litigation expenses, and costs or the value of the property in controversy exceeds One Hundred Thousand pesos (P100,000.00) [now P200,000] or, in such other cases in Metro Manila, where the demand, exclusive of the above-mentioned items exceeds Two Hundred Thousand pesos (P200,000.00)[now P400,000]

The best example is money claim. Most cases which go to court now are money claims – an action to collect sum of money. Q: Unpaid loan – you would like to collect an unpaid loan of your debtor. Where will you file your case? A: It depends on how much are you collecting. If it is over P200,000 outside Metro Manila – RTC, in Metro Manila, double the amount – P400,000. If the amount that you are collecting is only P200,000 or less obviously, you file your case in the MTC. If the value of the claim is > P200,000 – RTC If the value of the claim is = or < P200,000 – MTC So this is the same as number [3] and [4] where the jurisdiction of the MTC was raised from

P20,000 to P100,000. And under the present law, it is now P200,000. But again, this is subject to the automatic increase in jurisdiction by 2004. Q: Suppose the principal amount that you borrowed from me is P200,000, the interest is P30,000. And you are collecting P10,000 for moral damages, another P10,000 for expense of litigation, etc. So my total claim is P250,000. Where will I file the case? A: MTC pa rin. In determining the jurisdictional limit of P200,000, do not include the interest, damages, attorney’s fees, etc. So you deduct those from the principal claim even if you put them in your complaint because the law says, “xxx exclusive of interest, damages of whatever kind, attorney’s fees, litigation expenses, and costs xxx.” Q: What are litigation expenses and costs? A: Costs are not the same as attorney’s fees and litigation expenses. Actually, attorney’s fees and litigation expenses are part of damages. Costs are governed by Rule 141, while attorney’s fees and litigation expenses are governed by the Civil Code. Because there is some confusion there, akala ang costs and litigation expense, pareho. No, they are not the same. ACTIONS PURELY FOR DAMAGES SITUATION: Suppose the action is purely for damages, like breach of contract of carriage. Instead of bringing you to your destination, you ended up in the hospital. You now sue the common carrier for damages and your claim is P1 million for injuries, moral, exemplary, etc. Now, because the law says the jurisdiction of the RTC is above P200,000 but do not include damages. The claim in this case is P1 million, all for damages. Now, where will you file the case? Somebody said it should be in the MTC because in determining the jurisdiction of the RTC, you do not include damages. If that is the interpretation, I said, all damage suits cannot be tried by the RTC because remember, you pay filing fee for these cases but the jurisdiction is limited to the MTC. That is absurd! I do not believe that kung puro damages wala ng jurisdiction ang RTC. Otherwise, all damage suits should be filed in the MTC. This question has been clarified by SC Circular No. 09-94: “Guidelines in the Implementation of RA 7691 Extending the Jurisdiction of the MTCs” where the SC said that the provision excluding damages applies only if the damages are INCIDENTAL to the action. If the main cause of action is 100% damages, you include it in determining tire P200,000 jurisdictional limit of the MTC. EXAMPLE: Ms. Pastor rode on a PAL fight. The plane crashed but she survived. She claims for damages for breach of contract of carriage amounting to P1 million. Q: Where will she file her case? A: RTC because the amount of the claim for damages exceeded P200,000. Since the case is purely for damages, it is included in determining the jurisdiction of the court. The rule is, you only exclude the damages if it is a secondary claim. But if damages is the primary or only claim, you determine whether the total claim for damages is above P200,000, or equal to or less than P200,000. Yaaann! The SC said in this Circular, “the exclusive damages of whatever kind” in determining the jurisdiction under Section 19 paragraph [8] applies to cases where the damages are merely incidental to or a consequence of the main cause of action. However, if the claim for damages is the main cause of

action, the amount of such claim should be considered in determining the jurisdiction. EXAMPLE: Inay will file a case against Janis to recover a piece of land worth P20,000.00 only. But her claim for damages exceeds P300,000. So, you will notice ang claim for damages is incidental lang. Ang main action is to recover a piece of land. Q: In what court will Inay file a civil case where she wants to recover a piece of land with value of only P20,000? A: MTC because of paragraph [2]. But ang damages naman is P300,000? MTC pa rin iyan because such damages, being incidental, is not included in determining the jurisdiction of the RTC. However, if my actions against you is purely damages, like I will file a case against you for damages arising from vehicular collision and I will claim P300,000 for damages, it should be in the RTC. That is the explanation. The term “excluding damages” applies only if the damages are purely incidental to the case. But if the action is purely damages, then you observe the P200,000 jurisdictional limit. Now, the law says, “exclusive of interest, damages of whatever kind, attorney’s fees, litigation expenses, and costs or THE VALUE OF THE PROPERTY IN CONTROVERSY exceeds P200,000….” Q: What is the property in controversy? A: Obviously here, the property is PERSONAL PROPERTY not real. If the property sought to be recovered is real, apply paragraph [2] of Section 19 on recovery of real property. Q: In the subject of Sales, the unpaid seller would like to rescind the sale and get back the unit. Where will the unpaid seller file the case? A: If above P200,000 sa RTC ka. It if is only P200,000 or less, sa MTC. So this is an example of “the value of the [personal] property in controversy.” Q: (By a classmate, Review class) Who shall determine the value or how should the value be determined? A: You will learn the answer when we reach Rule 16 on Motion to Dismiss. In determining the jurisdiction of the court, in the meantime, which will prevail? You will learn later that the allegations of the complaint will prevail. Like for example, I will file a case against you for an unpaid loan of P250,000. Then you say in your motion to dismiss, “No! ang utang ko sa iyo is not P150,000, but only P80,000. Therefore, the RTC has no jurisdiction.” So there is now a conflict with what I’m saying and with what you are saying. With that, we will discuss the conflict later. Now, we do not know who is telling the truth. For the moment, the rule is, you follow the plaintiff because jurisdiction is determined by the allegations of the complaint. It is the complaint which will determined whether the court has jurisdiction over the subject matter. It is not based on what the defendant is saying. That is the answer there. Let us go to some interesting cases on this provision.

ORTIGAS AND CO., LTD PARTNERSHIP vs. HERRERA 120 SCRA 89 [1983] FACTS: A entered into an agreement with B where A deposited the sum of P50,000 with B. After certain conditions are complied B has to return the amount to A. According to A the conditions are already complied with but B still refuses to return the money. So A filed a complaint which he denominated as sum of money and since he is only asking for the return of P50,000, A filed the case in the MTC. ISSUE #1: Whether or note the MTC has jurisdiction over the case. HELD: The MTC has NO jurisdiction. It should be filed in the RTC. It is not an action to collect a loan. You are not recovering a loan. You are compelling him to comply with the agreement – to return the money after certain condition are complied with, di ba? You are trying to enforce your agreement. therefore your action is an action for SPECIFIC PERFORMANCE which should be tried by the RTC under paragraph [1]. “When a party to a contract has agreed to refund to the other party a sum of money upon compliance by the latter of certain conditions and only upon compliance therewith may what is legally due him under the written contract be demanded, the action is one not capable of pecuniary estimation.” So it is cognizable by the RTC. ISSUE #2: But according to the plaintiff, when he filed the complaint, it is entitled “for sum of money” which should fall under paragraph [8]. Is the plaintiff correct? HELD: NO. The plaintiff is wrong. The title of the action is not determinative of the court. Just like the rule on contracts where the nature of the contract is not determined by the title but by stipulation. “The factual allegations in the complaint seeking for the performance of an obligation of a written contract which is a matter clearly incapable of pecuniary estimation prevail over the designation of the complaint as one for the sum of money and damages.” [6] In all cases not within the exclusive jurisdiction of any court, tribunal, person or body exercising judicial or quasi-judicial functions

Practically, this makes the RTC the universal catcher – what does not belong to anyone of you, belongs to me. That’s what this provision is saying. EXAMPLE: An employee, Inday Locsin, files a case against the employer, Kenneth Lim, to claim non-payment of wages, overtime pay, ECOLA and reinstatement for illegal termination. Under the Labor Code, dapat sa NLRC. So it does not belong to RTC but if there is no vesting to NLRC, then it goes to the RTC. A case which does not belong to any other court. Let’s try to connect it with something you know. Q: If you want to file an action for annulment of judgment of RTC, where will you file your action? A: CA only – an exclusive original jurisdiction of the action for annulment of the judgment of the RTC. Q: Suppose Karen will file an action for annulment of judgment of the MTC. Does it belong to the CA?

A: NO! What the law says is: annulment of judgment of RTC, and not MTC. How about Supreme Court? Lalong wala. Saan ka pupunta? There is really no provision in BP 129 which goes that way. I don’t think you can go to NLRC. Wala kang mapuntahan, saan ka tatakbo? Sa RTC because it does not belong to the jurisdiction of any other court. It should fall under paragraph [6] That is why, this, there are problems reaching the SC on jurisdiction – whether a case belongs to this, to the regular court or to a special quasi-judicial body. And we are going to go over some of these cases. SANDOVAL vs. CANEBA 190 SCRA 77 [1990] FACTS: The quarrel in this case involves the owner of the subdivision and the buyer. Later on, the buyer refused to pay the unpaid installments. The subdivision developer filed a case for the collection of unpaid installments over the subdivision lots. Now, if you look at the law, parang money claims sa RTC or MTC. HELD: The regular courts have no jurisdiction. That should be decided by the Housing and Land Use Regulatory Board (HLURB) formerly known as NHA. Under PD 957, it is the HLURB not the RTC or MTC which has the jurisdiction to hear a case involving nonpayment of installments over subdivision lots. The counterpart of this case was the case of CT TORRES ENTERPRISES, INC. vs. HIBIONADA 191 SCRA 268 [1990] FACTS: This is also the case between the buyers of a subdivision lot against the subdivision developer. Only this time baliktad – it is the subdivision lot buyers who are suing the developer of the subdivision. The subdivision lot owners filed against the subdivision developer for not maintaining properly the roads of the subdivision. So they filed a case for specific performance with damages to compel the developer to comply with the contract to maintain the roads. HELD: The jurisdiction is with the HLURB and not with the regular courts. But according to the plaintiff “But I’m also claiming for damages so that it should be filed before the regular courts. How can the HLURB award damages? Only the regular courts can award the damages.” Can the HLURB award damages? According to the SC: “The argument that only courts of justice can adjudicate claims resoluble under the provisions of the Civil Code is out of step with the fast-changing times. There are hundreds of administrative bodies now performing this function by virtue of a valid authorization from the legislature. This quasi-judicial function, as it is called, is exercised by them as an incident of the principal power entrusted to them of regulating certain activities falling under their particular expertise.” So quasi-judicial bodies are now authorized to award damages. As a matter of fact in Labor Relations, the question is asked whether the NLRC is authorized to grant damages also to an employee, moral and exemplary, which normally is only awarded by courts.

The Labor Code says yes. In other words, even damages now can be awarded by administrative bodies such as NLRC. FAJARDO vs. BAUTISTA 232 SCRA 291 [1994] FACTS: Isabelo and Marita Jareno and the owners and developers of a subdivision. Fajardo and others, as buyers, signed separate contracts each designated a contract to sell under which for consideration therein stated, the Jarenos bound themselves to sell to Fajardo et al the of subject thereof, and after the latter shall have paid the purchase price and interest shall execute in favor of Fajardo et al the corresponding deeds of sale. When these contracts to sell are still ongoing the Jarenos sold these lots to other buyers and the title was transferred to the second buyer. So when Fajardo et al learned about it, they filed separate complaints with the RTC for annulment of the sale to the other buyers. Now, according to Fajardo, the jurisdiction of the case belongs to the RTC and not with the HLURB because the title of the lots are transferred to the other buyers. It is no longer under the name of Jareno. Secondly, their action is for the annulment of title to a third person. Thirdly, these third persons are not the developers; fourthly, under the Judiciary Law, actions involving title to a real property are to be tried by the RTC. HELD: The RTC still has NO jurisdiction because the case involved unsound real estate business practice on the part of the subdivision owners and developers. Under the law, unsound real estate business practice is under the HLURB. The practice in the case is not a sound real estate business – I am a developer, I enter into a contract with you and then later on I sold the contract to a third person, that is unsound! “By virtue of P.D. 1344, the HLURB has the exclusive jurisdiction to hear and decide the matter. In addition to involving unsound real estate business practices, the complaints also involve specific performance of the contractual and statutory obligations of the owners or developers of the subdivision.” So it is still with the HLURB and not with the regular courts.

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

MACHETE vs. COURT OF APPEALS 250 SCRA 176 [1995] FACTS: This case involves the collection by the landowner of unpaid back rentals from his leasehold tenants. The landowner filed the money claims before the RTC. HELD: The RTC has no jurisdiction over cases for collection of back rentals for the leasehold tenants. This is an agrarian dispute which exclusively cognizable by the DARAB. “The failure of petitioners to pay back rentals pursuant to the leasehold contract with landowner is an issue which is clearly beyond the legal competence of the trial court to resolve. The doctrine of primary jurisdiction does not warrant a court to arrogate unto itself the authority to resolve a controversy the jurisdiction over which is initially lodged with an administrative body of special competence.” Let’s go to Professional Regulation Commission (PRC). That is the government body which administers all government examination for professionals except members of the law profession. Sa medicine, CPA, engineer, lahat andiyan sa kanila, including plumber and marine officers. Basta lahat ng merong examination sa kanila yan except sa bar which is under the jurisdiction of the SC. Now, this is what happened in the case of LUPANGCO ET AL vs. COURT OF APPEALS 160 SCRA 848 [1988] FACTS: Lupangco et al were BS Accounting graduates and reviewing to take the CPA exams in 1985. There were some anomalies (leakages) in the 1985 CPA Board Examination. By next year, the PRC passed a resolution prohibiting CPA examinees to attend review classes or conferences because of leakages. They are prohibited from receiving any handouts, review materials or any tip from any school, college or university. That was Resolution No. 105 of the PRC. So petitioners Lupangco et al, all CPA reviewers filed an injunction suit against the PRC and to declare the resolution unconstitutional. They filed it with the RTC. The PRC moved to dismiss alleging that the RTC has no jurisdiction over the case because the one which has the jurisdiction is the CA – exclusive jurisdiction to review any decision, order, ruling orresolution of any quasi-judicial body. And the PRC is a quasi-judicial body. So their resolution can only be questioned before the CA and not with the RTC. HELD: The PRC is WRONG because PRC is not only a quasi-judicial body, it is also a quasi-legislative body. It also acts as legislative body by issuing rules and regulations. Now, what kind of resolution is being questioned here? It is a resolution pursuant to it purely administrative function. It is a measure to preserve the integrity of licensure examination. Therefore, it does not belong to the CA. It is not the type of resolution contemplated by Section 9. “The authority of the CA to review all resolutions of all quasi-judicial bodies pursuant to the law does not cover rules and regulations of general applicability issued by the administrative body to implement its purely administrative policies and functions like Resolution No. 105 which was adopted by the PRC as a measure to preserve the integrity of licensure examinations.” So that is not the resolution reviewable by the CA.

Now, under what provision under Section 19 can we justify the jurisdiction of the RTC in the case. The SC said: It is under paragraph 1 where the case is incapable of pecuniary estimation or, it may fall under paragraph 6 where the case is not within the exclusive jurisdiction by any court, tribunal or- body exercising Judicial or quasi-judicial functions. So, if it is not reviewable by the CA, in what court can you question the resolution? Definitely, not the CA, definitely not the SC. I don’t think it’s with the NLRC. So it will fall under the jurisdiction of the RTC. Or, it can also fall under paragraph [1,] where the subject matter of the suit is not capable of pecuniary estimation because what is the nature of the demands is to declare unconstitutional this resolution. So it belongs to the jurisdiction of the RTC. BERNARDO vs. CALTEX PHIL. INC. 216 SCRA 170 [1992] FACTS: Under E.O. No. 172, when there is a dispute between an operator or dealer and an Oil company regarding dealership agreement, the case shall be under the jurisdiction of the Energy Regulatory Board (ERB). So any dispute regarding their relationship agreement except disputes arising out of the relationship as debtor and creditor. So if the dispute arose out of the relationship as bebtor and creditor, it should be filed with the RTC. Now what happened here is that on December 5, 1990, Bernardo, a dealer of Caltex, ordered gasoline from Caltex. So he ordered in the morning. At 6:00 at night on the same day, there was a price increase. So when the gasoline was delivered the following day, Caltex charged Bernardo for the increased price. Bernardo refused to pay and he he filed a case before the RTC. Caltex argued that the case should be filed with the ERB. HELD: The RTC has jurisdiction because “a contract of sale of petroleum products was here perfected between Caltex and its operator/dealer Bernardo; that in virtue of the payment admittedly made by Bernardo, Caltex became a “debtor” to him in the sense that it was obligated to make delivery to Bernardo of the petroleum products ordered by him; and that the only issue is the manner by which Caltex shall perform its commitment in Bernardo’s favor. It is rather one cognizable by the Regional Trial Court, as a dispute indeed ‘arising out of their relationship as debtor and creditor.’” “What the controversy is all about, to repeat, is simply the prices at which the petroleum products shall be deemed to have been purchased from Caltex by Bernardo in December 5, 1990. This is obviously a civil law question, one determinable according to the provisions of the Civil Code and hence, beyond the cognizance of the Energy Regulatory Board.” CONCURRENT ORIGINAL JURISDICTION OF THE RTC Sec. 21. Original jurisdiction in other cases. - Regional Trial Courts shall exercise original jurisdiction: [1] In the issuance of writs of certiorari, prohibition, mandamus, quo warranto, habeas corpus, and injunction which may be enforced in any part of their respective regions;

Q: What is the difference between the original jurisdiction of the RTC in Section 21 and the original jurisdiction of the RTC in Section 19? A: In Section 19, you have the EXCLUSIVE original jurisdiction, whereas in Section 21 you have

the original jurisdiction but CONCURRENT with other courts. Thus “original” jurisdiction stated in Section 21 is also shared with the SC and CA. Therefore , the SC, CA, and RTC have original concurrent jurisdiction under Section 21. Like issuance of writs of certiorari, prohibition, mandamus, quo warranto, habeas corpus, etc. This is concurrent with the CA and the SC. Such writs may be issued by (a) the RTC under Section 19; (b) CA under Section 9; and (c) SC under Article VIII Section 5 of the Constitution. The 3 courts share concurrent jurisdiction over these cases. However the only difference is that writs issued by an RTC can only be enforced in the same region where the RTC belongs. Unlike writs issued by the SC and CA, they can be enforced anywhere in the Philippines. [2] In actions affecting ambassadors and other public ministers and consuls.

The SC and RTC have original concurrent jurisdiction in actions affecting ambassadors, other public ministers and consuls. Section 21 paragraph 2 states only of the concurrent original jurisdiction of the SC and RTC. Section 19 on the jurisdiction of CA does not include the action stated in section 21 paragraph 2 as part of its (CA’s) jurisdiction. APPELLATE JURISDICTION OF THE RTC Sec. 22. Appellate jurisdiction. - Regional Trial Courts shall exercise appellate jurisdiction over all cases decided by MetTCs, MTCs and MCTCs in their respective territorial jurisdictions. Such cases shall be decided on the basis of the entire record of the proceedings had in the court of origin and such memoranda and/or briefs as may be submitted by the parties or required by the RTCs. The decision of the RTCs in such cases shall be appealable by petition for review to the CA which may give it due course only when the petition show prima facie that the lower court has committed an error of fact or law that will warrant a reversal or modification of the decision or judgment sought to be reviewed.

Now take note that the RTC also has appellate jurisdiction under Section 22. These are cases decided by the MTC. So they act as a sort of ‘court of appeals.’ The RTC exercises appellate jurisdiction over all cases decided by the MTC in their respective territorial jurisdiction. Q: How will the RTC decide on the appeal? A: It shall be decided on the basis of the entire record of the proceedings had in the court of origin (MTC) such as memoranda and/or briefs as may be submitted. This means that witnesses will not be made to appear again in the appeal. It is only a matter of reviewing the testimony, stenographic notes, evidence presented, memoranda and briefs by the RTC judge. Q: What are memoranda and briefs? A: It is where the appealing party will argue that the decision is wrong and try to convince the judge that the decision is wrong, and the other party to counter act that the decision is correct. Q: Assuming that the case is originated in the MTC and subsequently dismissed by the RTC on appeal, is the decision by the RTC rendered pursuant to its appellate jurisdiction appealable to the CA?

A: YES, but the mode of appeal is now different. The decision of the RTC in such cases shall be appealable by petition to review to the CA. The CA may or may not give it due course. Q: What is the difference between an appeal made from the RTC to CA and appeal from the MTC to RTC, which is dismissed the same and subsequently appealed to the CA? A: The former (RTC – CA) is in pursuance to the original jurisdiction of the RTC. The latter (MTC-RTC-CA) is in pursuance to the appellate jurisdiction of the RTC. (They are governed by different rules) To illustrate: Pursuant to original jurisdiction of the RTC: COURT OF APPEALS

Pursuant to appellate jurisdiction of the RTC: COURT OF APPEALS

Ordinary appeal (Rule 41) RTC

Petition for Review (Rule 42) RTC Ordinary Appeal (Rule 40) MTC

Unlike in a case under the original jurisdiction of the RTC, where an appeal to the CA is a matter of course. Meaning, for as long as your appeal is on time and properly made, the CA will entertain it. It is different, however, in a case under the appellate jurisdiction of the RTC, even if your appeal is on time and properly made, there is no assurance that the CA will entertain the appeal. The CA may give it due course only when your petition for review shows prima facie evidence that the lower court has committed as error of fact or law that will warrant a reversal or modification of the decision or judgment sought to be reviewed. Now, statistically for the past 20 years, the rate of petitions for review from the RTC which are given due course is only 15%-17%. For every 100 petitions for review, 15 are given due course, 85 are thrown out. They did not pass the test under Section 22. It is really a difficult process. Summary of RTC jurisdiction: 11.) As to the EXCLUSIVE original jurisdiction – Section 19 (BP 129); 12.) As to its original CONCURRENT jurisdiction – Section 21 (BP 129); 13.) As to its APPELLATE jurisdiction – Section 22 (BP 129)

JURISDICTION OF THE MUNICIPAL TRIAL COURTS Actually, when you know the jurisdiction of the RTC, automatically you know the jurisdiction of the MTC. In criminal cases for example, sa RTC, imprisonment of more than 6 years until death penalty. So, necessarily 6 years or below, sa MTC. Same with civil cases. Summary of jurisdiction of MTC: h.) As to original jurisdiction – Section 33 i.) As to delegated jurisdiction – Section 34 j.) As to special jurisdiction – Section 35 A.) EXCLUSIVE ORIGINAL JURISDICTION OF THE MTC Sec. 33. Jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts in civil cases. - Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts shall exercise: 1) Exclusive original jurisdiction over civil actions and probate proceedings, testate and intestate, including the grant of provisional remedies in proper cases, where the value of the personal property, estate, or amount of the demand does not exceed Two hundred thousand pesos (P200,000.00) or, in Metro Manila where such personal property, estate, or amount of the demand does not exceed four hundred thousand pesos (P400,000.00), exclusive of interest, damages of whatever kind, attorney's fees, litigation expenses, and costs, the amount of which must be specifically alleged: Provided, That interest, damages of whatever kind, attorney's fees, litigation expenses, and costs shall be included in the determination of the filing fees: Provided further, That where there are several claims or causes of actions between the same or different parties, embodied in the same complaint, the amount of the demand shall be the totality of the claims in all the causes of action, irrespective of whether the causes of action arose out of the same or different transactions.

Well if you know the jurisdiction of the RTC on money claims and probate cases, automatically you will also know that of the MTC. Under the law, it is only the principal claim or the main claim which is computed. Interest, damages of whatever kind, attorneys fees, litigation expenses and cost are not included in determining the jurisdiction. Even if the amount of damages and attorney’s fees do not determine jurisdiction, they must still be specifically alleged in the complaint for the purpose of payment of docket fees. Thus, the higher the amount one is claiming the higher the filing fee. So with that , we will now go to decided cases involving docket fees. JURISPRUDENCE ON THE FILING FEE IN CIVIL CASES: Rule 111, the filing of criminal action, the civil aspect is deemed instituted. If it claims for moral and exemplary damages, the filing fees should be paid immediately. If not stated, then it will be a lien in the judgment. Compensatory damages are exempt from the filing of the fee.

Technically, a complaint in a civil case is not considered as filed unless you pay the complete amount of the docket fee. Even if a complaint is filed, say, on December 1 and the payment is made only on the December 4, the complaint is deemed officially filed on the December 4 when the payment of the whole amount is effected. This is so material for the purpose of prescription. Suppose today December 1 is the last day for the filing of the complaint and the whole amount is not fully paid. ON December 2, the action is prescribed already. Thus, the court acquires no jurisdiction over the case until the filing of the fee for the whole amount is made. In the case of MANCHESTER DEVELOPMENT CORP. vs. CA 149 SCRA 562 FACTS: The plaintiff files a complaint and paid the docket fee but he did not specify the amount of the damages he was claiming. He contended that he is claiming for moral damages in such amount as the court will grant. Respondent contended, on the other hand, that it cannot be done, there is a necessity to state the exact amount of the damages in order to determine the correct amount of the docket fee. So the plaintiff amended the complaint and paid the balance of the docket fees. ISSUE: Whether or not the subsequent amendment cures the defect? HELD: No, the defect is incurable. Thus, the action has to be dismissed. The court acquires no jurisdiction over the case. The remedy is to re-file the complaint and pay again the complete amount of the docket fee. The prior payment made is forfeited in as much as the defect in the first complaint is incurable. So based on the MANCHESTER ruling, you cannot cure the defect by merely amending the complaints. The moment the case is filed, the court acquires jurisdiction. You cannot by yourself confer jurisdiction. Very harsh noh? However, the SC, after reflecting on what it said in the case of MANCHESTER, realized the harshness of their decision. This Manchester ruling was relaxed in the subsequent case of SUN INSURANCE OFFICE which now the governing law: SUN INSURANCE OFFICE LTD. vs. COURT OF APPEALS 170 SCRA 274 [1989] HELD: Thus, the Court rules as follows: 1. It is not simply the filing of the complaint or appropriate initiatory pleading, but the payment of the prescribed docket fee, that vests a trial court with jurisdiction over the subject matter or nature of the action. Where the filing of the initiatory pleading is not accompanied by payment of the docket fee, the court may allow payment of the fee within a reasonable time but in no case beyond the applicable prescriptive or reglementary period. 2. The same rule applies to permissive counterclaims, third party claims and similar pleadings, which shall not be considered filed until and unless the filing fee prescribed therefore is paid. The court may also allow payment of said fee within a reasonable time but also in no case beyond its applicable prescriptive or reglementary period.

3. Where the trial court acquires jurisdiction over a claim by the filing of the appropriate pleading and payment of the prescribed filing fee but, subsequently, the judgment awards a claim not specified in the pleading, or if specified the same has been left for determination by the court, the additional filing fee therefor shall constitute a lien on the judgment. It shall be the responsibility of the Clerk of Court or his duly authorized deputy to enforce said lien and assess and collect the additional fee. For example, I make a partial payment of the docket fee because of inadequacy of money. Under the SUN INSURANCE ruling, kung kulang ang bayad, huwag namang i-dismiss ang kaso! Give the party a reasonable time to pay the balance. “When the filing of the initiatory (complaint) pleading is not accompanied by the payment of the docket fees, the court may allow the payment of the fee within a reasonable time but in no case beyond the prescriptive period.” Meaning, if by the time you paid the balance, nag prescribe na ang cause of action, ah wala na! So, provided that the action has not prescribed. The same rule applies to permissive counterclaims. So this answers the question: Q: Is the defendant obliged to pay the docket fee? A: It DEPENDS: if the counterclaim is permissive, dapat magbayad ka. If the counterclaim is compulsory, libre yan! And the third rule laid down in Sun Insurance: if the judgment awards a claim not specified in the pleadings, the filing fee therefor shall be a lien in the judgment. It shall be the responsibility of the clerk of Court or his duly-authorized deputy to enforce the lien, assess and collect the additional fee. Q: When can this possibly happen? A: That can happen for example if I ask for damages. A man was hospitalized because of physical injuries. Nag file siya ng kaso. Sabi ng court, may damages ito. So the court acknowledged the claim of P300,000. But after the case is filed, di pa rin siya nakabayad sa hospital. After filing, marami pang gastos! So in other words he might ask from the court another P 50,000. Q: Can the court award the P 50,000? A: Yes, because the additional expenses came only after the filing of the case. The additional expenses occurred only after filing the case. So nagkulang ngayon ang docket fee. Bayaran mo, don’t dismiss the case! The Sun Insurance is a leading case on docket fee. It was followed with a third case in December 1989 which further clarified the SUN INSURANCE ruling. This is the case of TACAY vs. RTC OF TAGUM, DAVAO DEL NORTE 180 SCRA 433 [1989] NOTE: When this case was filed, wala pa yong INSURANCE. The guiding rule was still MANCHESTER. But while this was pending lumabas na yong SUN INSURANCE. FACTS: The case was for recovery of land with damages (accion publiciana). So it is not purely for damages. So how will you assess the filling fees? Based on the value of the land, binayaran ng plaintiff ang docket fee. Defendant moved to dismiss based on MANCHESTER because the plaintiff did not specify in the complaint how much damages

he was claiming. Now the RTC of Tagum denies the motion to dismiss. The defendant goes to the SC citing MANCHESTER. Of course sabi ng SC wala na ang Manchester because of Sun Insurance. But here is another rule: HELD: Dalawa ang filing fee: the assessed value of the land and for the damages. There are two (2) options here: (1.) Kung nabayaran ang docket fee for the recovery of land pero wala ang para sa damages, do not dismiss the entire case! That is crazy if you will dismiss the entire case kasi nagbayad man siya ng docket fee for the recovery of the land. Just do not consider the claim for the damages. Or, (2.) second option, citing SUN INSURANCE, give him reasonable time to pay the balance. So that's the case of TACAY. “Where the action involves real property and a related claim for damages as well, the legal fees shall be assessed on the basis of both (a) the value of the property and (b) the total amount of related damages sought. The court acquires jurisdiction over the action if the filing of the initiatory pleading is accompanied by the payment of the requisite fees, or, if the fees are not paid at the time of the filing of the pleading, as of the time of full payment of the fees within such reasonable time as the court may grant, unless, of course, prescription has set in the meantime.” Now, there are other interesting cases on the issue on docket fees. FILIPINAS SHELL PETROLEUM CORP. vs. COURT OF APPEALS 171 SCRA 674 [1989] FACTS: Adrian dela Paz sued all oil companies (Shell, Caltex, Mobil, etc.) of the Philippines for infringement of patent with prayer for the payment of reasonable compensation for damages. According to him, these companies used in their operation a certain type of machine which he claimed he invented. His patent was infringed. Thus, all these companies are all liable to him for royalties. The estimated yearly royalty due him is P236,572. Since the violation has been for many years already, his claims reached millions. The trial court ordered him to pay P945,636.90 as docket fee. He had no money so he questioned it. So sabi rig court: “We will allow you to file the case and the docket fee is deductible from whatever judgment of damages shall be awarded by the court.” So, parang file now pay later. HELD: There is no such thing as file now pay later. No justification can be found to convert such payment to something akin to a contingent fee which would depend on the result of the case. Hindi pwede sa gobyerno yan! Example is kung matalo ka sa kaso – the case is dismissed. Tabla ang gobyerno? So, di pwede yan! “Filing fees are intended to take care of court expenses in the handling of cases in terms of cost of supplies, use of equipments, salaries and fringe benefits of personnel, etc., computed as to man hours used in handling of each case. The payment of said fees therefore, cannot be made dependent on the result of the action taken, without entailing tremendous losses to the government and to the judiciary in particular.” Alam ninyo, ang dapat sana n'yang ginawa, nag file sya ng motion to allow him to litigate as a pauper. In legal ethics, pwede yan sa abogado – yung contingent fee: “Attorney, will you handle my case? Wala akong pera. I will offer a contingent fee.” “Okay, I’ll handle your case. Pag-talo, wala

kang utang. Pag panalo, kalahati sa akin.” Yan! Pwede yan. Pero sa gobyerno, wala yan because usually the judiciary gets its budget from the filing fees. LACSON vs. REYES 182 SCRA 729 FACTS: There was a case filed and then the lawyer filed a motion to direct the plaintiff to pay him his attorney’s fees – a motion for payment of attorney’s fees. So sabi ng court: “Attorney, magbayad ka ng docket fee.” “Bakit? Motion nga lang yan, may docket fee pa? Grabeeh!” HELD: No, bayad ka uli. “It may be true that the claim for attorney's fees was but an incident in the main case, still, it is not an escape valve from the payment of docket fees because as in all actions, whether separate or as an offshoot of a pending proceeding, the payment of docket fees is mandatory. The docket fee should be paid before the court would validly act on the motion.” SUSON vs. COURT OF APPEALS 278 SCRA 284 [August 21, 1997) FACTS: Mortz filed a case against Charles in Leyte. After filing, the court dismissed the case because it should be filed in Cebu. Mortz wrote a letter to the Office of the Court Administrator (OCA) asking that the docket fee paid in Leyte be considered applicable to Cebu. OCA granted his request. Charles questioned it because of the rule that the payment of docket fee is jurisdictional. HELD: “The OCA has neither the power nor the authority to exempt any party not otherwise exempt under the law or under the Rules of Court in the payment of the prescribed docket fees. It may be noteworthy to mention here that even in the Supreme Court, there are numerous instances when a litigant has had to re-file a petition previously dismissed by the Court due to a technicality (violation of a pertinent Circular), and in these instances, the litigant is required to pay the prescribed docket fee and not apply to the refiled case the docket fees paid in the earlier dismissed case.” “In the case at bar, in the strict sense, Mortz’s complaint cannot be deemed to have been ‘re-filed’ in Cebu City because it was not originally filed in the same court but in the RTC Leyte. Thus, when Mortz’s complaint was docketed by the clerk of court of the RTC Cebu City, it became an entirely separate case from that was dismissed by the RTC of Leyte due to improper venue. As far as the case in Cebu is concerned, while undoubtedly the order of dismissal is not an adjudication on the merits of the case, the order, nevertheless, is a final order. This means that when private respondent did not appeal therefrom, the order became final and executory for all legal intents and purposes.” DE LEON vs. COURT OF APPEALS 287 SCRA 94 [March 6, 1998] FACTS: The question for decision is whether in assessing the docket fees to be paid for

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

a cause of action and discouraging multiplicity of suits.” “Thus, although eventually the result may be the recovery of land, it is the nature of the action as one for rescission of contract which is controlling.” “Since the action of Polgas against Dagul is solely for annulment or rescission which is not susceptible of pecuniary estimation, the action should not be confused and equated with the ‘value of the property’ subject of the transaction; that by the very nature of the case, the allegations, and specific prayer in the complaint, sans any prayer for recovery of money and/or value of the transaction, or for actual or compensatory damages, the assessment and collection of the legal fees should not be intertwined with the merits of the case and/or what may be its end result.” TOTALITY RULE Now, continuing with Section 33, it says there in paragraph [1]: “Provided further, That where there are several claims or causes of actions between the same or different parties, embodied in the same complaint, the amount of the demand shall be the totality of the claims in all the causes of action, irrespective of whether the causes of action arose out of the same or different transactions.”

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

We will now go to paragraph [2] of Section 33. [2] Exclusive original jurisdiction over cases of forcible entry and unlawful detainer: Provided, That when, in such cases, the defendant raises the question of ownership in his pleadings and the question of possession cannot be resolved without deciding the issue of ownership, the issue of ownership shall be resolved only to determine the issue of possession. x x x x”

This is related to the Law on Property – FORCIBLE ENTRY (recovery of physical possession, e.g. squatting) and UNLAWFUL DETAINER (e.g. you eject a lessee does not pay his rent.) – MTC lahat iyan. The two cases should not be confused with accion publiciana which is also the recovery of possession but that is a better right. Now, in unlawful detainer, the plaintiff also prays not only to eject the defendant but also to claim for back rentals or the reasonable amount of the use and occupation of the property in case of forcible entry. Q: Suppose the unpaid rentals already amount to almost half a million pesos – so, unlawful detainer plus back rentals of half a million. Where should the case be filed? A: The case should still be filed with the MTC. What determines jurisdiction is the nature of the action, and not the amount of recoverable rentals. Kahit na one (1) million pa yan, MTC pa rin yan. Q: In an action for forcible entry or unlawful detainer, can the party present evidence of ownership? A: The general rule is NO because the MTC cannot adjudicate ownership. That has to be threshed out in the proper civil action in the RTC. But if evidence of ownership is presented in the forcible entry or unlawful detainer case, it is only incidental and it is only resolved to determine the issue of possession. But the declaration of ownership is not final – that is only prima facie. The question of ownership must be litigated in a separate action in the RTC. Let us now proceed to the third paragraph of Section 33 as amended by R.A. 7691: [3] Exclusive original jurisdiction in all civil actions which involve title to, or possession of, real property or any interest therein where the assessed value of the property or interest therein does not exceed Twenty thousand pesos (P20,000.00) or, in civil actions in Metro Manila, where such assessed value does not exceed Fifty thousand pesos (P50,000.00) exclusive of interest, damages of whatever kind, attorney's fees, litigation expenses and costs: Provided, That in cases of land not declared for tax purposes, the value of such property shall be determined by the assessed value of the adjacent lots. (As amended by RA 7691)

Aside from forcible entry and unlawful detainer, MTCs have now jurisdiction over other real actions like accion publiciana and accion reinvidicatoria cases where the assessed value of the land should be P20,000 or less. In Metro Manila, it is P50,000 or less. That is the amendment brought about by RA 7691 which expanded the jurisdiction of the MTC. B.) DELEGATED JURISDICTION OF THE MTC Sec. 34. Delegated Jurisdiction in Cadastral and Land Registration Cases. - MetTCs, MTCs and MCTCs may be assigned by the Supreme Court to hear and determine cadastral or land registration cases covering lots where there is no controversy or opposition, or contested lots where the value of which does not exceed One hundred thousand pesos (P100,000.00), such value to be ascertained

by the affidavit of the claimant or by agreement of the respective claimants if there are more than one, or from the corresponding tax declarations of the real property. Their decisions in these cases shall be appealable in the same manner as decisions of the RTCs. (As amended by RA 7691)

Review: These are related to your study of Land, Titles and Deeds (The Property Registration Decree) When you file a petition for land registration, the object is to have your property registered and fall under the Torrens System of the Land Registration. Patituluhan ba! Now, what is the difference between a land registration proceeding and a cadastral proceeding? Cadastral is compulsory registration. Q: Now, what is this delegated jurisdiction all about? A: It refers only to cadastral and land registration cases which involve the titling of property under the Torrens system or cadastral land registration. Under the Property Registration Decree, only the RTC has authority to entertain land registration and cadastral cases. But now, Section 34 gives the Supreme Court the authority to DELEGATE MTCs to hear and decide land registration and cadastral cases under the following conditions: 14.) when there is no controversy or nobody is contesting your petition; or 15.) even if the petition is contested where the value of the land to be titled does not exceed P100,000. In which case, these MTCs can decide and their decisions are appealable directly to the CA. Para bang acting RTC sila ba. That’s what it is called delegated jurisdiction. ‘Delegate’ means it really has to be assigned to you. Now do not confuse this P100,000 (Section 34) with the P20,000 under Section 33. Section 34 deals with cadastral and land registration cases. Section 33 involves civil cases (accion publiciana, etc.) C.) SPECIAL JURISDICTION OF MTC Sec. 35. Special jurisdiction in certain cases. - In the absence of all the Regional Trial Judges in a province or city, any Metropolitan Trial Judge, Municipal Trial Judge, Municipal Circuit Trial Judge may hear and decide petitions for a writ of habeas corpus or applications for bail in criminal cases in the province or city where the absent Regional Trial Judges sit.

This is what we call special jurisdiction. That only applies to two (2) types of cases: (1) Habeas corpus and (2) hearing of petitions for bail. Remember that habeas corpus is not within the jurisdiction of the MTC. It is with the RTC. Also, the hearing on petition for bail, RTC yan because the offense may be a heinous one, but under the law on criminal procedure you can file a petition for bail to have your temporary freedom while the case is going on. That’s supposed to be in the RTC. But suppose there is no available RTC judge, all of them are sick or all of them are attending a convention (this actually happened in Davao in 1990) Section 35 provides that the MTC, in the absence of RTC judges, can hear and decide on habeas corpus case petitions and applications or petitions for bail in criminal cases. So acting pa rin yan because they are urgent and the liberty of a person is at stake.

That is allowed because of the urgency of the situation. There is no need for a SC authorization. However, this is only allowed in the absence of the RTC judges. But if the RTC judge comes back, he has to take over the petition. So with that we are through with the jurisdiction of our courts. So we will now proceed to remedial law proper.

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CIVIL PROCEDURE PROPER

Laws are classified as either Remedial or Substantive Law. Remedial Law is also known as Adjective or Procedural Law. REMEDIAL LAW vs. SUBSTANTIVE LAW Q: Distinguish Remedial law from Substantive law? A: SUBSTANTIVE LAW is that branch of the law which creates, defines and regulates rights. (Bustos vs. Lucero, 81 Phil. 640; Ballentine’s Law Dict., 2nd., pp. 66, 1023) Like the Civil Code, the rights of children, husband and wife, creditor and debtor are all found there. REMEDIAL LAW is that branch of law which prescribes the method of enforcing rights or obtaining redress for their invasion. (Ibid) Example of Remedial Law is the Rules of Court. So a right is useless unless you enforce it. And the manner of enforcing rights is now prescribed by remedial law. Like in civil cases, my neighbor borrowed from me but until now, despite several demands, he refused to pay. Under the law on Obligations and Contracts, I have the right to collect. But how do I collect? Is it by writing a letter to the judge, “Dear Judge…”? or Is it by calling him on the phone? I-text ko kaya? Di puwede yan! There must be a procedure. That is where the Civil Code leaves you behind and that is where the Rules of Court will take over. So the 2 laws go hand in hand. That is what the SC said in the 1992 case of DE DIOS vs. COURT OF APPEALS 212 SCRA 519 [1992] Cruz, J. HELD: The 2 laws have a symbiotic relationship. They go hand in hand – one supports the other. They are not antagonistic towards each other. “Procedural rules are designed to insure the orderly and expeditious administration of justice by providing for a practical system by which the parties to a litigation may be accorded a full and fair opportunity to present their respective positions and refute each other's submissions under the prescribed requirements, conditions and limitations. Adjective law is not the counterfoil of substantive law. In fact, there is a symbiotic relationship between them. By complying faithfully with the Rules of Court, the bench and the bar are better able to discuss, analyze and understand substantive rights and duties and consequently to more effectively protect and enforce them.” ASPECTS OF REMEDIAL LAW Q: Give the two (2) aspects of Remedial Law. A: There are 2 aspects of Remedial Law: 9.) PUBLIC ASPECT – one which affords a remedy in favor of the State against the individual (e.g. criminal procedure) or in favor of the individual against the State

(e.g. habeas corpus) on the other hand, 10.)

PRIVATE ASPECT – one which affords a remedy in favor of an individual against another individual, like the rules on civil procedure. (Gamboa’s Introduction to Philippine Law, 6th Ed., pp. 97-99)

BRIEF HISTORY OF THE LAW ON CIVIL PROCEDURE IN THE PHILIPPINES The origin of our law on procedure is American. Forget the law on procedure during the Spanish regime. But the first known ancestor of the law on Civil Procedure was the old Act 190, otherwise known as the Code of Civil Procedure, which was enacted on August 7, 1901 by the United States and Philippine Commission. And that was the law until 1940 because on July 01,1940 the SC enacted the Rules of Court which we now call the Old Rules of Court. That continued for another 24 years until January 01, 1964 when the SC enacted the Revised Rules of Court repealing the Old Rules of Court. And that continued for another 33 years until July 01,1997 where the SC enacted and which took effect on that day (July 01, 1997) the New Rules on Civil Procedure. SUMMARY: 16.) First Law – August 07, 1901 – Act 190 – Code of Civil Procedure (40 years) 17.) Second Law – July 01, 1940 – Old Rules of Court (24 years) 18.) Third Law – January 01, 1964 – Revised Rules of Court (33 years) 19.) Fourth Law – July 01, 1997 – New Rules of Civil Procedure. SOURCES OF THE 1997 RULES OF CIVIL PROCEDURE Well of course the sources are almost the same as the prior law. The old Rules of Court is also a source. Many provisions were taken from the 1964 Rules, substantive law like the Civil Code and jurisprudence. And of course SC circulars. Many circulars are now incorporated under the new rule. So those are the main sources. d.) e.) f.) g.)

SOURCES: Previous Rules of Court; Jurisprudence; New Civil Code; SC Circulars RULE-MAKING POWER OF THE SUPREME COURT

The Rules of Court (1940, 1964, 1997) have all been enacted by tile SC. It is law, not enacted by Congress but enacted by the SC. Q: What is the authority of the SC to enact a law when actually the role of the judiciary is only to interpret the law? Is this not a violation of the separation of powers? A: The authority of the SC in enacting the prior rules and the present rules is what you call its rule-making power which provision was found in the 1935, 1973 and 1987 Constitutions. Based on the

present law, the rule-making power of the SC is expressed in Article VIII, Section 5, paragraph [5] which is substantially the same as the 1935 and 1973 Constitutions. Only everytime they amend the Constitution, it is getting longer and longer. Rut the pertinent portion which has not been changed is that the SC “shall have the power to promulgate rules on pleading, practice and procedure.” That is the authority of the SC in enacting the Rules of Court. But you should know also the limitations. LIMITATIONS TO THE RULE-MAKING POWER OF THE SC The Constitution has also placed limitations on these powers. As currently worded, one limitation provided for by the Article is “the rules of procedure to be enacted by the SC shall provide for a simplified and inexpensive procedure for the speedy disposition of cases.” The second one is: “the rules shall be uniform for all courts of the same grade.” And the third is: “the rules shall not diminish, increase or modify substantive rights.” LIMITATIONS : k.) l.) m.)

The Rules of Court shall provide a simplified and inexpensive procedure for the speedy disposition of cases; The Rules of Court shall be uniform for all courts of the same grade; and The Rules of Court shall not diminish, modify or increase substantive rights.

Substantive rights are created by substantive law so the Rules of Procedure should not increase, diminish or modify them. In effect, the Rules of Court should not amend the substantive law. It can only interpret substantive law but should not change it completely. Those are the limitations. With that we are now ready to tackle the 1997 rules on civil procedure.

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Rule 01

GENERAL PROVISIONS

SECTION 1. Title of the Rules. These Rules shall be known and cited as the Rules of Court. SEC. 2. In what courts applicable. These Rules shall apply in all the courts, except as otherwise provided by the Supreme Court.

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

to

be

Now, some people are asking me, “Akala ko ba civil procedure ito, bakit merong criminal? How come it mentions criminal cases and definitions when it is supposed to be 1997 Rules on Civil Procedure? NO, Rule 1 is the general provision for the entire Rules of Court. You look at the title, “These rules shall be known as the ‘Rules of Court.’” This is the common denominator from the first to the last Rule. That’s why it says there ‘special proceedings,’ ‘civil cases’ and ‘criminal cases.’ Now we are not interested in criminal cases of course. Civil action na larg tayo muna. x x x x x (a) A civil action is one by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong. A civil action may either be ordinary or special. Both are governed by the rules for ordinary civil actions, subject to the specific rules prescribed for a special civil action. x x x x x

Well the definition of a civil action is there. The definition now becomes shorter compared to the previous definition. It’s the same definition. It has only been shortened. A CIVIL ACTION is one by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong. So, that is the purpose of a civil suit – to enforce or protect your right or you sue somebody for the purpose of preventing or redressing a wrong. CLASSIFICATION OF CIVIL ACTIONS

Q: Classify civil actions. A: The following: I. As to NATURE (Section 3 [a]) a.) Ordinary Civil Actions b.) Special Civil Actions II. As to CAUSE or FOUNDATION: e) Real Actions f) Personal Actions g) Mixed Actions III. As to PLACE OF FILING a.) Local Actions b.) Transitory Actions IV. As to OBJECT n.) Action In Personam o.) Action In Rem p.) Action Quasi In Rem I. CIVIL ACTION; CLASSIFICATION AS TO NATURE ORDINARY CIVIL ACTIONS and SPECIAL CIVIL ACTIONS The special civil actions are governed by Rules 62 to 71. And the actions not among those mentioned is automatically ordinary. And even at this stage, you should be able to give already what. are the special civil actions. So, it is a matter of looking at the table of contents. Rules 62 to 71: Interpleader, Declaratory Relief, Certiorari, Prohibition, Mandamus, Quo Warranto, Expropriation, Foreclosure of Mortgage, Partition, Forcible Entry, Unlawful Detainer and Contempt. There is a new one – Review of Final Decisions or Resolutions of the COMELEC and COA under Rule 64. But actually it says there, it is governed by Rule 65. So in other words Certiorari (Rule 65) pa rin although it’s a new rule now. Rule 64 is entitled Review of Decisions of the COMELEC and the COA, but it shall he governed by Rule 65 on Certiorari . Q: What is so important in distinguishing a special civil action from an ordinary civil action? A: What makes an action special is simply because of the fact that there are some specific rules prescribed for them which are not found in other rules. But to say that the rules on ordinary civil actions do not apply to special civil actions is false. The law is very clear. Both are governed by the rules on ordinary civil actions subject to the specific rules. Therefore, in case of conflict between the specific rule governing a particular type of civil action and the ordinary, then you follow the specific provision. But if the rules on special civil actions are silent, apply the ordinary rules. Give an example of a case where in the absence of a special provision in the rules on special civil

actions the court had to apply the rules on ordinary civil actions by analogy. The case of AMBERTI vs. COURT OF APPEALS 195 SCRA 659 [1991] FACTS: This case involved a petition for certiorari (special civil action under Rule 65) and then before the respondent could answer the petition, he withdrew the petition. And then later on he changed his mind. He re-filed the petition. The question that was asked by the SC is when you file a special civil action for certiorari and then before the other party could answer you withdraw it, is the withdrawal with or without prejudice? Can you re-file it? There is no rule in Rule 65 answering that question so the SC had to resort to the ordinary rules by analogy. HELD: Certiorari is similar to appeal although it is not really an appeal. And the SC looked at the law on appeal. What happens when you perfect your appeal and then later on you withdraw your appeal? What will happen to the order or judgment? Rule 50 says that if you withdraw the appeal, the judgment appealed from will now become final and executory. Therefore, since it is now final and executory, you cannot change it anymore. “Applying the foregoing rules in a supplementary manner (or by analogy), upon the withdrawal of a petition in a special civil action before the answer or comment thereto has been filed, the case shall stand as though no appeal has been taken, so that the judgment or order of the lower court being questioned becomes immediately final and executory. Thus, a resolution granting the withdrawal of such a petition is with prejudice and petitioner is precluded from bringing a second action based on the same subject matter.” So that’s a perfect example of the application of ordinary rules in special civil actions. Now, there are other classifications of civil actions which are not expressly stated in Section 3. The only one stated there is ordinary and special. II. CIVIL ACTIONS; CLASSIFICATION AS TO CAUSE OF FOUNDATION: REAL, PERSONAL or MIXED ACTIONS An action is either a real or personal action. And that is important because of Rule 4 – the venue for real actions is different from the venue for personal actions. A REAL ACTION is briefly described as an action where the issue or the subject involved is title, ownership, possession or interest over a real property like accion publiciana, forcible entry, unlawful detainer, foreclosure of mortgage or real property, partition of real property. (c.f. Section 19, BP 129 – controversy relates to real property) On the other hand, when the issue is not one of those – meaning, it is founded on privity of contract, or on quasi-delict, such as actions for a sum of money, or damages, for the enforcement or resolution of a contract, or for recovery of personal property, these are the PERSONAL ACTIONS. (Casilan vs. Tomassi, 90 Phil. 765; Cachero vs. Manila Yellow Taxicab, 101 Phil. 523; Bautista vs. Piguing, L-10006, Oct. 31, 1957)

Some textwriters give a third classification: the MIXED ACTIONS where there is a mixture of real and personal actions. Mixed actions are such as pertain in some degree to both real and personal and, therefore, are properly reducible to neither of them, being brought for the specific recovery of land and for damages sustained in respect of such land. (Dela Cruz vs. Seminary of Manila, 18 P{hil. 330) Like an action for recovery of a piece of land with damages. So that’s a mixed action. Although it is more of real rather than personal. If the damage is only incidental, then it is more of a real action rather than a personal action like the case of TACAY. The claim for damages is incidental, the main purpose is recovery of possession of land. III. CIVIL ACTIONS; CLASSIFICATION AS TO THE PLACE OF FILING: LOCAL ACTIONS and TRANSITORY ACTIONS A LOCAL ACTIONS is an action which can only be instituted in a particular place whereas a personal action follows the residence of the parties. Good examples of local actions are real actions. Real actions are also automatically local actions. They can only be instituted in the place where the property is situated. This is already provided by law (e.g. accion publiciana, forcible entry, unlawful detainer – can only be filed where the land is situated.) TRANSITORY ACTIONS are those which follow the party wherever he may reside. (1 Am. Jur. 430) Personal actions are transitory – it is based on where the plaintiff or where the defendant resides at the option or election of the plaintiff. It is based on the residence of the parties. We will go to the fourth classification as to object of the suit. IV. CIVIL ACTIONS; CLASSIFICATION AS TO OBJECT: ACTIONS IN PERSONAM, IN REM and QUASI IN REM ACTIONS IN PERSONAM vs. ACTIONS IN REM How do we differentiate one from the other? The SC in the past has given the definition in some cases which definition appears in many books as quoted by authors. But the trouble with these definitions, sometimes, the more you read it the more you don’t understand what the definition is all about. For example: “If the technical object of the suit is to establish a claim generally against some particular persons, with a judgment which, in theory, at least, binds his body. or to bar some individual claim or objection, so that only certain persons are entitled to be heard, the action is IN PERSONAM.” (Grey Alba vs. Dela Cruz, 17 Phil. 49; Sandejas vs. Robles, 81 Phil. 421) But, “if the object of the suit is to bar indifferently all who might be minded to make an objection of any sort against the rights sought to be established, and if anyone in the world has a right to be heard on the strength of alleging facts which, if true, show an inconsistent interest, the action is IN REM.” (Grey Alba vs. Dela Cruz, 17 Phil. 49; Sandejas vs. Robles, 81 Phil. 421) To simplify the definition:

ACTION IN PERSONAM – any judgment that the court will render in that case binds only the parties to the action and their privies or their successors-in-interest. ACTION IN REM – any judgment with the court will render in the case binds not only the parties to the case but the whole world, then the action is in rem. To follow the language of the SC in the case of: CHING vs. COURT OF APPEALS 181 SCRA 9 HELD: “Actions in personam and actions in rem differ in that the former are directed against specific persons and seek personal judgments, while the latter are directed against the thing or property or status of a person and seek judgments with respect thereto as against the whole world.” Action in personam; EXAMPLE: ILLUSTRATION: Recovery of land, accion publiciana: Momma Jessa vs. Little Lulu. Sabi ng court: “Alright Momma Jessa, you are the winner and you are entitled to the land.” Now, here comes Baby Maya. Momma Jessa says, “Wala na iyan, tapos na iyan. In the case, that was already decided that I am entitled.” Sabi ni Baby Maya, “Ah, that is between you (Momma Jessa) and Little Lulu. But I’m different. I have evidence to prove that my right is better than yours. I am not bound by that decision.” Q: Is the judgment rendered in the case between Momma Jessa and Little Lulu binding on Baby Maya? A: NO, because Baby Maya is not a party to that case. She cannot be bound by a judgment where she is not a party. Hence, the action between Momma Jessa and Little Lulu is an action in personam. Action in Rem; Example: ILLUSTRATION #1: Action for annulment of marriage or declaration of nullity of marriage. Suppose the husband (Joshua) files a case against his wife (Tekla) to annul their marriage. After trial, the court rendered judgment annulling the marriage of Joshua and Tekla. It became final. Now, the status of the parties is SINGLE na naman because the marriage is annulled. Joshua meets another girl, Maying, and courted her and told Maying, “I would like to marry you.” Maying said, “I cannot marry you because I know you are married. How can I marry you when you are already married?” Joshua said, “Not anymore. I’m no longer married because my marriage with Tekla is already annulled and here is the decision. So, I’m single.” According Maying, “No, I am not bound by that judgment because I was not a party to that case.” Q: When the court ruled in the case between Joshua and Tekla that the marriage is annulled and that now you are single, is the judgment binding on anybody? A: YES. Your status is single and whether you are a party in the case or not, you are bound by the judgment because it is directed against the whole world. Your status is to be respected. ILLUSTRATION #2: When a son, Carlo the Spokes, files a case against the father, Rod the Tenor

( most outstanding student of Pavarotti… ), to be considered a recognized child and the court said, “Yes, you are declared a child of the defendant,” Rod the Tenor is now compelled to recognize you. Your status as a recognized child is not only binding on your father but is binding on the whole world. Your status is no longer unrecognized. Take note, an action in rem and in personam have often been confused with the classification of real and personal action. They sound almost the same. That an action in personam is also a personal action, or, when an action is in rem it is also a real action – it is not true. That is a different classification. An action could be as to cause – it could be real. As to object, it could be in personam. In the same manner, it could be personal action but an action in rem. So, these are two different classification. ILLUSTRATION: Eugenia files a case against Concon to recover the possession of a piece of land. It is a REAL action. In real action, the subject is possession or ownership of real property. Any judgment therein binds only the parties, and not the whole world. So, it is also an action IN PERSONAM. It is a real action as to cause, but as to object, it is in personam. ILLUSTRATION: Papa Paul filed a case to annul his marriage with his wife. It is a PERSONAL action because it does not involved his property. It is about status. But it is also IN REM because the judgment therein is binding the whole world. So, magka-iba yan!!! As a matter of fact, it is not only students but even lawyers and judges interchange one with the other. Last year, I was reading the SCRA, I cannot remember the decision where before deciding, the SC gave a lecture: The trouble with this case, the basic error of the court is that it confused real action with an action in rem and an action in personam with a personal action a real action could be in personam and a personal action could be in rem. So do not be confused. QUASI IN REM Text writers gave a sort of third classification as to object. This is called action quasi in rem. “QUASI” means almost. So, ‘quasi in rem’ is almost in rem. Actually, it is in personam but almost in rem. Q: Define action quasi in rem. A: An action quasi in rem is actually in personam because it is directed only against a particular individual but the purpose of the proceeding is to subject his property to the obligation of lien burdening it. The object of the case is the sale or other disposition of property of the defendant over which you have a right or lien over the property. EXAMPLE: Foreclosure of Mortgage. Somebody borrows money from you and mortgages his land as security for the loan. Then later, he cannot pay. You decide to institute foreclosure proceedings over the mortgage property. I presume you know the object of the foreclosure. If the property is foreclosed, the property over which you have a lien – a right because it is mortgaged to you – that property will be sold at public auction and the proceeds will be given to the mortgagee or creditor in payment of the obligation. ILLUSTRATION: An action to foreclose a mortgage is the best example of a civil action quasi in rem because there is a defendant (mortgagor) and the object of the case is to have the property mortgaged sold or disposed of in order to satisfy the mortgage lien of the mortgagee. It is in personam

because it is directed only against person who mortgaged to you. But once the property is foreclosed, practically everybody has to respect it. Wala ka ng right doon sa property. Naunahan ka na. That’s why it is called quasi in rem. Or, to borrow the language of the SC in simplifying the term quasi in rem, quasi in rem means ‘against the person in respect to the res, against the mortgagor in respect to the thing mortgaged.’ CIVIL ACTIONS vs. SPECIAL PROCEEDINGS Q: Define a special proceeding. A: Rule 1, Section 3 [c]: c) A special proceeding is a remedy by which a party seeks to establish a status, a right, or a particular fact. (2a, R2)

Special proceedings should not be confused with a civil action. Special Proceedings are governed by Rules 72-109 of the Rules of Court. You look at the table of contents and you will see them. That is a third year subject. BAR QUESTION: Distinguish a civil action from a special proceeding. A: The following: 5.

A CIVIL ACTION is one by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong, whereas, A SPECIAL PROCEEDING is a remedy by which a party seeks to establish a status, a right, or a particular fact;

6.

In a civil action, there are two (2) definite and particular adverse parties, the party who demands a right, called a plaintiff, and the other whom the right is sought, called a defendant, whereas, In a SPECIAL PROCEEDING, while there is a definite party petitioner, there is no definite adverse party as the proceeding is usually considered to be against the whole world;

7.

A CIVIL ACTION requires the filing of formal pleadings, whereas In a SPECIAL PROCEEDING, relief may be obtained by mere application or petition;

8.

The period to appeal in CIVIL ACTIONS is generally 15 days and the requirement is the filing of a notice of appeal, whereas In SPECIAL PROCEEDINGS the period to appeal is 30 days and aside from notice of appeal, the law requires the filing of a record on appeal.

Of course the basic distinction is found in Section 3 – a civil action is one by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong. Whereas, a special proceeding is a remedy by which a party seeks to establish a status, a right, or a particular fact. The object of a civil action is to enforce or protect a right or to prevent or redress a wrong. But the object of a special proceeding is only to establish a status, a right or a particular fact.

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

The Rules of Court do not apply to certain proceedings in court. A good example is Section 2 – these rules shall apply in all the courts except as otherwise provided by the SC. Q: What court proceedings where the Rules of Court are not applicable? A: Election cases, land registration cases, cadastral cases, naturalization cases, insolvency proceedings, and other cases not herein provided for except by analogy of for suppletory purposes. In these cases, the Rules of Court are suppletory in character. In case of conflict between election

law and the Rules of Court, forget the Rules of Court. But when the Election Code is silent, you apply the Rules of Court by analogy or for suppletory purposes. There are some election cases which fall within the jurisdiction of the courts, not necessarily COMELEC. For example, violation of election code where the party may be adjudged to go to jail. That is a criminal case. That is governed by the rules on criminal procedure. It is more on imprisonment. Sec. 5. Commencement of an action. - A civil action is commenced by the filing of the original complaint in court. If an additional defendant is impleaded in a later pleading, the action is commenced with regard to him on the date of the filing of such later pleading, irrespective of whether the motion for its admission, if necessary, is denied by the court. (6a)

Q: When is a court action deemed commenced? A: A civil action is commenced by the filing of the original complaint in court . Of course this is not really complete. The filing of the original complaint in court must be accompanied by the payment of the correct docket fee. A complaint is not deemed filed until the docket fee is paid. This is important to determine the exact date that the action has commenced because it is from that moment that the running of the prescriptive period is interrupted. The second sentence of Section 5 states that, “If an additional defendant is impleaded in a later pleading, the action is commenced with regard to him on the date of the filing of such later pleading…” Example: Today (November 19, 1997), I filed a complaint against A. So, the action is commenced on Nov. 19, 1997. However next month, say, December 19, if there is an additional defendant, the date of the commencement of the action with regards to the additional defendant is not the date when the original action is filed, but on the date when he was included in the amended pleading. Last section. How do you interpret or construe the Rules of Court? Sec. 6. Construction. - These Rules shall be liberally construed in order to promote their objective of securing a just, speedy and inexpensive disposition of every action and proceeding. (2a)

So, the Rules of Court shall be interpreted liberally in order to promote their object which is to promote their objective of securing a just, speedy and inexpensive disposition of every action and proceeding. The purpose of Procedural Law is to hasten litigation. So you do not interpret it to prolong a case. That is based on the principle of liberal construction. According to the SC in one case commenting on this: DE GUZMAN vs. SANDIGANBAYAN 256 SCRA 171, (en banc) HELD: “The Rules of Court was conceived and promulgated to set forth guidelines in the dispensation of justice but not to bind and chain the hand that dispenses it, for otherwise, courts will be mere slaves to or robots of technical rules, shorn of judicial

discretion. That is precisely why courts in rendering real justice have always been, as they in fact ought to be, conscientiously guided by the norm that when on the balance, technicalities take a backseat against substantive rights, and not the other way around. Truly then, technicalities, should give way to the realities of the situation.” So, the purpose of procedure is to help the hand that dispenses justice and not to tie these hands. Otherwise, the courts will become mere robots. And, as much as possible, courts should avoid technicalities. To give way to the realities of the situation. In one case, “Lawsuits, unlike duels, are not to be won by a rapier’s thrust.” (Alonzo vs. Villamor, 16 Phil. 315) Hindi yan espadahan na ang unang magsaksak, daog . That is not the concept of litigation. You do not lie in ambush. That’s another pronouncement. That’s why the SC said in another case: SANTOS vs. COURT OF APPEALS 198 SCRA 806 HELD: Procedural “rules are not intended to hamper litigants or complicate litigation but, indeed, to provide for a system under which suitors may be heard in the correct form and manner and at the prescribed time in a peaceful confrontation before a judge whose authority they acknowledge. The other alternative is the settlement of their conflict through the barrel of a gun.” Meaning, the purpose of the rules is for people to fight each other in a civilized way. If you cannot accept the judicial system, what is your alternative? The only alternative is to shoot your opponent. We will settle our conflict through the barrel of a gun. Barilan na lang tayo. So if you do not accept the system of justice, that is your alternative. For all its shortcomings and its defects, the judicial system is still the civilized way of dealing with your opponent. BAR QUESTION: When may lapses in the literal observance in the Rules of Court be excused? A: In the case of ETHEL CASE, ET AL vs. FERNANDO JUGO, ET AL 77 Phil. 523 HELD: Lapses in the literal observance of a rule of procedure will be overlooked: h.) when they do not involved public policy; i.) when they arose from an honest mistake or unforeseen accident; j.) when they have not prejudiced the adverse party; and k.) when they have not deprived the court of its authority. One final note, while it is true that the Rules of Court should be liberally construed as a general rule, there are certain provision which according to the SC, should be strictly construed because they were intended precisely to minimize delay.

A good example would be provisions which prescribe the time during which certain acts are going to be done, like the filing of an answer, because iif you will disregard this, it will promote more delay rather than expediiite litigations. Another example is the filing of a notice of appeal. Hindi mo pwedeng palitan yan. These are the provisions which are to be strictly construed because while it is true that the Rules of Procedure are to be liberally construed, it is not a license to completely ignore these rules. Even the SC made the warning. Like in the cases of ANTONIO vs. COURT OF APPEALS 167 SCRA 127 HELD: “It is the common practice of litigants who have no excuse for not observing the procedural rules to minimize the same as mere technicalities. Then they cry for due process. These procedural rules are in fact intended to ensure an orderly administration of justice precisely to guarantee the enjoyment of substantive rights.”

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



ORDINARY CIVIL ACTIONS Rule 02

CAUSE OF ACTION SECTION 1. Ordinary civil actions, basis of. - Every ordinary civil action must be based on a cause of action. (n)

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

Now, for the first time, Section 2, which is also a new provision, has incorporated the definition of what is a cause of action. However, again, it is not a new principle because even under the 1964 Rules we must such definition is already recognized. Q: Define cause of action. A: CAUSE OF ACTION is an act or omission by which a party violates a right of another. Cause of Action; ELEMENTS: Q: What are the ELEMENTS of cause of action ? A: There are supposed to be 3 main elements: 1. a right pertaining to the plaintiff; 2. a correlative obligations of the defendant; and 3. violation of plaintiff's right by the defendant (also called delict) You remove one of these and there is no cause of action. You think of any case under the sun, it must have all these elements. Now, there is a fourth element added by some cases and commentators – the element of damage suffered by the plaintiff. So based on that, these are the elements of a cause of action: 1. a RIGHT pertaining to the plaintiff; 2. a CORRELATIVE OBLIGATIONS of the defendants; 3. a VIOLATION of plaintiff’s right; and 4. DAMAGE suffered by the plaintiff. Even if there is violation, if there is no damage, then what relief are you asking for? There can be no action where no injury is sustained.

As a matter of fact, in a recent case, the SC remarked that wrong without damage or damage without wrong does not constitute a cause of action since damages are merely part of the remedy allowed for the injury caused by a beach or wrong. There can be damage without injury in those instances in which the loss harm was not the result of a violation of a legal duty. These equations loss are after all called “damnum absque injuria.” Another latin maxim, “accio non datur non damnificato”, which means there could be no action where no injury is sustained. So that is part of the definition of cause of action. Damage without injury does not create any cause of action. So the elements are: right, obligation, violation and damage. These are the four elements of a cause of action. You cannot imagine of any civil case where the 4 elements are not present. EXAMPLE: A debtor borrows money from creditor. Then, it is already due. Ayaw pa ring magbayad. Let’s try to find out the elements. RIGHT - the right of the creditor to get back his money; OBLIGATION – The defendant has the obligation to pay back the loan under the law on contracts; VIOLATION or delict or wrong – the account fell due and the debtor is supposed to pay the creditor, but the former did not pay the latter; DAMAGE. – the creditor cannot get back his money. So, the 4 elements are there. Of course, when you file a complaint against somebody, you do not prepare the complaint by enumerating the elements. In other words, nasa istorya man yan ba. It is up for the defendant to analyze. It is the duty of the lawyer to analyze the complaint whether the 4 elements are present. ANOTHER EXAMPLE: Damages arising from culpa aquiliana. You are crossing the street and a driver just bump you there. And you are hospitalized. You fail to report for work. RIGHT – it is the right of every person not to be molested. You have the right to walk peacefully and not to be harmed; OBLIGATION – it is the obligation of every person driving to be careful so that he will not bump other people. You do not have to enter into a contract with a person saying you will not bump him; DELICT or wrong – because of your recklessness, you violated his right by injuring him; DAMAGE – I have to spend money in the hospital and I lost my income. The 4 elements are present. So there is a cause of action. In other words, you cannot imagine a civil case where the 4 elements are not present. ANOTHER EXAMPLE: Defendant borrowed money from you last year payable in November 1998. And despite demands, still he has not paid you. Now, is there a cause of action? RIGHT – the creditor has the right to collect; OBLIGATION – every debtor has the obligation to pay; DAMAGE – I have not recovered the money; DELICT or wrong – there is NO delict yet.

notice of loss to the carrier and then if the carrier will not honor it, and that is the time the consignee can file a case before the court. Now, he went to court directly without filing a notice of loss to the carrier. ISSUE: Whether or not there is a right of action. HELD: There is NO right of action because the consignee did not comply with the conditions precedent. “The right of action does not arise until the performance of all conditions precedent to the action. Performance or fulfillment of all conditions precedent upon which a right of action depends must be sufficiently alleged, considering that the burden of proof to show that a party has a right of action is upon the person initiating the suit.” “More particularly, where the contract of shipment contains a reasonable requirement of giving notice of loss of or injury to the goods, the giving of such notice is a condition precedent to the action for loss or injury or the right to enforce the carrier’s liability.” BAR QUESTION: Distinguish a CAUSE OF ACTION from a RIGHT OF ACTION. A: The following are the distinctions: 1.) Cause of action is the delict or wrong committed by the defendant, whereas Right of action refers to the right of the plaintiff to institute the action; 2.) Cause of action is created by substantive law (e.g. rights under the Civil Code), whereas Right of action is regulated by procedural law; “Right of action is a remedial right belonging to some persons, while cause of action is a formal statement of the operative facts that give rise to such remedial right.” (De Guzman vs. CA, supra) 3.) Right of action may be taken away by the running of statute of limitations, by estoppel or other circumstances which do not affect at all the cause of action. EXAMPLE: When a debtor borrows money and he does not pay. His failure to pay is the cause of action. After 10 years, the right to collect has prescribed and you cannot recover anything. Actually, what is barred is his right of action, not the cause of action because the moment he does not pay, there is already a wrong and you cannot erase a wrong. The cause of action is not affected by prescription. In fact, the Civil Code provides that the obligation is converted into natural obligation, which is based on equity rather than a right. Because sometimes, you say that the action has prescribed. So you are invoking the law on prescription. But what has prescribed? Is it the cause of action? No. The cause of action does not prescribe. What has prescribed is the right of action. Yaan! SPLITTING A CAUSE OF ACTION Sec. 3. One suit for a single cause of action. - A party may not institute more than one suit for a single cause of action. (3a)

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

Q: And what are the effects of splitting a cause of action? A: Under Section 4, the following are the effects: V.

The filing of one is available as a ground for the dismissal of other. That is what you call LITIS PENDENTIA – there is another action pending between the same parties for the same cause. This is one ground for dismissal of a case (Rule 16 – Motion to Dismiss, Section 1 [e]) So you file a case. And while it is pending, you file another case against the same party with the same cause of action. Under Section 4, one of them is subject to dismissal.

VI.

a judgment upon the merits in any one is available as a ground for the dismissal of the others. That is what you call barred by prior judgment or RES ADJUDICATA, which is also a ground for dismissal under Rule 16, Section 1 [f]. EXAMPLE: A case was already decided a long time ago. Now, you are reviving the

same case – you are filing again. Under Section 4, the judgment in the first case years ago would be cited as a basis for the dismissal of the second case. Q: What is the reason or philosophy for the rule against splitting a single cause of action? A: The rule against splitting a cause of action is intended to prevent repeated litigations between the same parties in regard to the same subject of controversy; to protect the defendant from unnecessary vexation; and to avoid the costs incident to numerous suits. (Bachrach vs. Icariñgal, supra; Bacolod City vs. San Miguel, Inc., L-25134, Oct. 30, 1969) Actually, the reason is common sense eh – to protect the defendant from unnecessary vexation. Why create two cases when you have only one cause of action? And why make me spend more? Magasto yung balik-balik sa court. It becomes an expensive process. And why should you harass somebody when he only committed one wrong? You file a case against him but do not harass him more than once. Nemo debet vis vesare procuna em iyadens cusa – “No man shall be twice vexed for one and the same cause.” SINGLENESS OF A CAUSE OF ACTION Q: How do you determine the singleness of a cause of action? A: The singleness of a cause of action is determined by the singleness of the delict or wrong committed by the defendant and not by the number of remedies that the law grants the injured party. Meaning, a single delict may give rise to two or more possible remedies but it does not mean to say the injured party can avail of all those remedies simultaneously or one after another. (Bachrach vs. Icariñgal, supra; David vs. De la Cruz, L-11656, April 18, 1958) EXAMPLE: Obligations and Contracts: A violation or a breach of contract could give rise to a civil action for specific performance or a civil action for rescission of contract. However, it does not mean to say that the injured party can file both or one after the other. Otherwise, he will be splitting his cause of action. EXAMPLE: There is the Recto Law (on Sales) on the remedies of an unpaid seller of personal properties. I think the law grants three remedies – (1) rescind the contract of sale; (2) exact fulfillment of obligation; and (3) foreclosure of mortgage. But even the law on Sales is very clear: the choice of one automatically bars resort to the other because it will be against splitting the cause of action. EXAMPLE: Credit Transactions: A bank has two (2) possible remedies against a debtor for nonpayment of a loan secured by a mortgaged say, piece of land: (1) foreclose the mortgage on the land; or (2) file an action to collect the loan. Here, the bank cannot file a case the debtor to collect the loan and at the same time file an action to foreclose the mortgage for it will be splitting the cause of action. So it is either you enforce the principal contract of loan, or, you enforce the accessory contract of mortgage. This is what happened in the case of DANAO vs. COURT OF APPEALS 154 SCRA 446 FACTS: The Danao spouses borrowed money from the bank, mortgaged their property and then they failed to pay. The bank filed a civil action to collect the loan. After filing a

civil action to collect the loan, the bank instituted an action to foreclose the mortgage. HELD: “Anent real properties in particular, the Court has laid down the rule that a mortgage creditor may institute against the mortgage debtor either a personal action for debt or a real action to foreclose the mortgage. In other words, he may pursue either of the two remedies, but not both.” “Evidently, the prior recourse of the creditor bank in filing a civil action against the Danao spouses and subsequently resorting to the complaint of foreclosure proceedings, are not only a demonstration of the prohibited splitting up of a cause of action but also of the resulting vexation and oppression to the debtor.” So those are examples of splitting a cause of action and illustrations of the rule that one cause of action may give rise to two or more remedies but it does not follow that you can avail of all those remedies. One is enough, otherwise, you will be splitting again you cause of action. RULES IN DETERMINING THE SINGLENESS OF A CAUSE OF ACTION Now, with respect to splitting a cause of action, you must familiarize yourselves on how this rule is applied to breach of contract and if there are several stipulations. Sometimes it is easy to determine whether there is one cause of action. Sometimes it is difficult. Sometimes you get confused, ‘ano ba ito? Isa lang ba ito o more than one?’ RULE #1 (General Rule): A contract embraces only one cause of action because it may be violated only once, even if it contains several stipulations. (Quioque vs. Bautista, L-13159, Feb. 28, 1962) EXAMPLE: Pauline enters into a contract with Nudj which contains 3 stipulations: (#1) that next month, Pauline will deliver to Nudj 100 sacks of rice; (#2) on the same date, Pauline will also deliver to Nudj 100 sacks of corn; and (#3) on the same date, Pauline will also deliver to Nudj 100 sacks of sugar. When the day arrived, nothing was delivered. So three stipulations were violated. Q: How many causes of action does Nudj have against Pauline? A: ONE. The contract is only one cause of action even if it contains several stipulations. The cause of action is not based on the number of paragraphs violated but on the contract itself. RULE #2 (Exception to the General Rule): A contract which provides for several stipulations to be performed at different times gives rise to as many causes of action as there are violations. (Larena vs. Villanueva, 53 Phil. 923) EXAMPLE: A loan with a promissory note where the principal amount is payable in installment. There is one promissory note where the loan is P300,000. And then the first installment is payable this year (1997). And then the second installment is payable in 1998 and the third installment is payable in 1999 without any acceleration clause. So, there is only one contract of loan but the principal is payable in three installments at different times. For non- payment of the first installment this year (1997), the creditor can file one case. So

P100,000 for 1997 – one cause of action. Q: Next year, he did not pay the second installment, can the creditor file another case? A: YES, because this time it is the exception. Every installment is one cause of action even if there is only one note. Remember that they are to be performed at different times. RULE #3 (Exception to the exception): All obligations which have matured at the time of the suit must be integrated as one cause of action in one complaint, and those not so included would be barred. (Larena vs. Villanueva, 53 Phil. 923) EXAMPLE: In 1997, the debtor did not pay but the creditor did not file any case, pinabayaan lang niya. Then in 1998, the second installment was not also paid. So dalawa na. The total claim now is P200,000. So the creditor said, there are two unpaid installments—1997 and 1998! So dalawa na, I will file two cases.” Q: Is the creditor correct? A: He is wrong. Isahin mo na lang yan. When all the installment are already due and the creditor has not filed any case for the collection of the first installment, this time, when he files for collection of the unpaid second installment, everything must be integrated. So there should only be one complaint for P200,000 representing the first and second installments. If you do not file a claim for one, it is deemed barred. So for example, if you will wait for the entire note to mature, you cannot apply rule 2. You should only file one action for P300,000 and you go back to the general rule. RULE #4 (Exception to Rule #2): However, when the failure to comply with one of several stipulations in a continuing contract constitutes a total breach, a single cause of action for damages, actual as well as prospective, arises from such breach. (Blossom & Co. vs. Manila Gas Corp., 55 Phil. 226) EXAMPLE: This year the first installment fell due. So the creditor demanded payment for the first installment from the debtor which the latter denied,! The signature in the note is not mine!” Now, in that kind of statement, he is not only repudiating the first installment. He is repudiating the entire note. So under rule #4, the creditor can file a case for the entire loan of P300,000 because it has been repudiated. If you only file only one for the P100,000 which fell due, then next year, file na naman, it will be useless because he will still maintain the same position, “Wala akong utang sa iyo! Tigas ng ulo!” So you do not wait anymore for the 2nd and 3rd installments to fall due. You file only one case for the entire breach. There is a total breach for a continuing obligation and there is now only one cause of action for the entire promissory note So theses are the basic principles of cause of action that I want you to remember.

JOINDER OF CAUSES OF ACTION SEC. 5. Joinder of causes of action. - A party may in one pleading assert, in the alternative or otherwise, as many causes of action as he may have against an opposing party, subject to the following conditions: x x x x x

A party may in one pleading assert, in the alternative or otherwise, as many causes of action as he may have against an opposing party (opening paragraph of Section 5) Q: What do you mean by joinder of causes of action? A: Joinder of causes of action is the provision of the Rules which allows a party to join in one pleading two or more causes of actions against the opposing party. PROBLEM: In 1994, the debtor secured a loan of P50,000 payable in 1997. In 1995, a second loan of P50,000 payable in 1997 and then in 1996, another loan of P50,000 payable in 1997. So there are three debts that will fall due in 1997. In 1997 when they became due, the creditor filed 3 cases against the debtor – one case for every promissory note. Q: Were the cases properly filed? A: YES because there were 3 promissory notes. But the creditor can file one complaint to join the three loans. This is called joinder of causes of action. This is different from the case of an installment where there is only one loan although payable in three installments. In the problem above, there are 3 loans, 3 promissory notes in 3 different years. So there are 3 causes of action. And when you file one case for every promissory note, you are not violating the rule against splitting a cause of action. You are actually not filing more than one case because there is one case for every loan. However, while you are allowed to file three cases, Section 5 allows you to file only one case and that is called joinder of causes of action. THE PRINCIPLE: You cannot file more than one case when you have only one cause of action but the law allows you to file one case for more than one cause of action. Q: Under Section 5, is the creditor obliged to file one complaint for the 3 promissory notes? A: NO, because joinder of causes of action is permissive. He may or may not. So the creditor may file 3 complaints for the 3 promissory notes, or, file only one complaint asserting the 3 claims for the 3 promissory notes. ALTERNATIVE and CUMULATIVE Joinder of Causes of Action Q: How may causes of action be joined? A: Causes of action may be joined either: (a) alternatively or (b) cumulatively. An ALTERNATIVE JOINDER exists when your cause of action is either one or the other. You are not seeking relief from both but either one. A CUMULATIVE JOINDER exists when you are seeking relief for all your causes of action. ALTERNATIVE joinder; Example:

Aileen is the importer of the goods that were shipped on board a carrier. Upon reaching Davao City, they were departed with the arrastre or stevedoring operator. The goods were delivered to Aileen in a damaged condition, and then reklamo siya sa arrastre or stevedoring. Then the arraster says, “Damaged na dati yan when it was unloaded from the carrier.” Then when Aileen went to the carrier, Carrier: “No, the damage happened in their (arrastre’s) custody.” Now, the Aileen here has two (2) possible causes of action: (1) an action against the stevedoring operator under the contract of depositary under the law on Credit Transaction; Or, (2) an action against the carrier under the Law on Transportation. So there are 2 possible causes of action. Q: Can Aileen file a complaint incorporating the two (arrastre and the carrier) both as defendants? A: YES, that is allowed. This is alternative joinder because Aileen is not claiming from both of them, but either one or the other. Aileen is not sure so she decided to file a case against both of them. At least isa sa kanila matamaan man ba. ALTERNATIVE joinder; Another Example: Chams is a passenger riding on a public utility vehicle which collided with another vehicle and she is not sure who is at fault. If the fault lies with the other vehicle, and the driver of the bus where Chams was riding is not at fault, then her cause of action against the other vehicle is quasi-delict. But if the fault lies with the driver of the bus where she was riding, her cause of action is culpa contractual. So she has 2 possible causes of action. Q: Is it possible for Chams to file one complaint naming both the drivers or both operators as defendants? A: YES. Either of them is liable to her. That is alternative joinder of causes of action. CUMULATIVE JOINDER; Example: Pches, who is forever on a diet, files a case to collect 3 unpaid promissory notes from the John “The Yellow Man”. Pches is not claiming from either promissory notes but she is claiming all. ANOTHER EXAMPLE: Roy “The Councilor,” an illegitimate child files a case against his father for compulsory acknowledgment as illegitimate child and support. There are two causes of action which are gained: an action for recognition and also for support. This is not alternative actions but rather, these are cumulative. The child is asking for BOTH relief. That is why the manner of joining the defendants alternatively or otherwise should be correlated with Rule 3, Section 13 and Rule 8, Section 2: RULE against all of against

3, SEC. 13. Alternative defendants. - Where the plaintiff is uncertain who of several persons he is entitled to relief, he may join any or them as defendants in the alternative, although a right to relief one may be inconsistent with a right of relief against the other. (13a)

RULE 8, SEC. 2. Alternative causes of action or defenses. - A party may set

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

Q: When is joinder of causes of action allowed? A: Under Section 5, joinder of causes of action is allowed under the following conditions: 9. The party joining the causes of action shall comply with the rules on joinder of parties; 10. The joinder shall not include special civil actions or actions governed by special rules; 11. Where the causes of action are between the same parties but pertain to different venues or jurisdictions, the joinder may be allowed in the Regional Trial Court provided one of the causes of action falls within the jurisdiction of said court and the venue lies therein; and 12. Where the claims in all the causes of action are principally for recovery of money, the aggregate amount claimed shall be the test of jurisdiction. (5a) a.) The party joining the causes of action shall comply with the rules on joinder of parties We will meet joinder of parties when we reach Rule 3, Section 6 which provides that two (2) or more persons can join as plaintiffs in one complaint or can be joined as defendants in one complaint, provided there is a common question of fact or law involved in that case. EXAMPLE: Two or more passengers riding on the same bus, met an accident. All of them were injured. So lahat sila may cause of action noh? Every passenger who gets injured has a cause of action. So they decided to file a damage suit. Q: Can they be joined in one complaint? A: YES because there is a common question of fact or law. They are riding on the same bus, meeting the same accident, against the same operator. So there is a joinder of parties under Rule 3. And if the joinder of parties under Rule 3 is proper, then their causes of action can also be joined under Rule 2 because the condition is: “shall comply with the rules on joinder of parties.” Q: Suppose these passengers were riding on different buses owned by the one operator. They are on different trips. One is going to Mati; one is going to General Santos; and one is going to Cotabato. All of them met an accident. Well of course the same kind of case: damage suit, breach of contract against the same operator. Now, can their causes of action be joined? A: NO. They cannot be joined because there is no common question of fact or law. The defense of the operator here is different from his defense there. Meaning, passenger A has nothing to do with the complaint of passenger B because there is no common denominator between them. So if you cannot join them under Rule 3, the joinder of causes of action under Rule 2 is also improper. b.) The joinder shall not include special civil actions or actions governed by special rules So, a joinder shall not include special civil actions or actions governed by special rules. The reason here is simple: Special Civil Actions are governed by certain rules which do not apply to ordinary civil actions. So a special civil action cannot be joined with an ordinary civil action, or, an ordinary civil

action cannot be joined with an action governed by special rules such as Election cases, naturalization cases, insolvency cases. In the 1983 case of UNION GLASS AND CONTAINER CORP. vs. SEC 126 SCRA 31 FACTS: (This is still a good ruling) A stockholder of a corporation who is also the creditor of the corporation decided to file one complaint against the corporation asserting several causes of action, among them is his rights as a stockholder under the Corporation Code and also his rights as a creditor under the Civil Code. HELD: The joinder is improper. In the first place, one is governed by a quasi-judicial body (SEC). So how can the RTC try a case when the cause of action is pertaining to the SEC and it is governed by the special rules of the SEC? So you cannot join that. c.) Where the causes of action are between the same parties but pertain to different venues or jurisdictions, the joinder may be allowed in the Regional Trial Court provided one of the causes of action falls within the jurisdiction of said court and the venue lies therein PROBLEM: Maceste encroached on two parcels of land belonging to me. In one parcel of land, the assessed value of that is only P20,000. In another parcel of land, the assessed vaue is P1 million. I would like to file a case of action publiciana against him. Dalawa eh – there are 2 lands encroached. The first accion publiciana is triable by the MTC (P20,000). The other accion publiciana is triable by the RTC. Q: Can I join them? A: YES, and it must be filed it in the RTC. The jurisdiction of the RTC will prevail. PROBLEM: Maceste encroached on my land in Tagum with an assessed value of P20,000. And then he encroached in another land of mine in Davao City with an assessed value of P1 million. You will notice that in the Tagum land, the jurisdiction is in the MTC for the case accion publiciana and the venue is Tagum because the property is situated there. In the other case, the jurisdiction is in the RTC and the venue is Davao City. Q: Can I file a case against Maceste joining the 2 cases? A: YES. Q: Where is now the governing venue? A: The venue of the RTC case prevails. Therefore, the case must be filed in Davao City. PROBLEM: Maceste encroached on my land in Tagum with an assessed value of P1 million. And then he encroached in another land of mine in Davao City with an assessed value of P1 million also. You will notice that in the Tagum land, the jurisdiction is RTC for the case accion publiciana. In the other case, the jurisdiction is also in the RTC of Davao City. So both actions, RTC. Q: In which RTC will you file the case joining the causes of action? A: Either Tagum or Davao City because both are RTCs. PROBLEM: Maceste encroached on my land in Tagum with an assessed value of P20,000. And then he encroached in another land of mine in Davao City with an assessed value of P20,000 also. In the Tagum land, the jurisdiction is MTC for the case accion publiciana. In the other case, the jurisdiction is also in the MTC. So both actions, MTC.

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

There is misjoinder when two (2) or more causes of action where joined in one complaint when they should no be joined. EXAMPLE: A case joining an accion publiciana case and a forcible entry case which is not proper because a special civil action (forcible entry) cannot be joined. In this case there is misjoinder of causes of action. Under Section 6, if there is misjoinder, you do not dismiss the case. The remedy is to ask the court that the misjoined case be severed and tried separately. Now, ang counterpart nito which is still present is misjoinder of parties under Rule 3, Section 11: RULE 3, Sec. 11. Misjoinder and non-joinder of parties. - Neither misjoinder nor non-joinder of parties ground for dismissal of an action. Parties may be dropped or added by order of the court on motion of any party or on its own initiative at any stage of the action and on such terms as are

just. A claim against a misjoined party may be severed and proceeded with separately. (11a)

So misjoinder of parties and misjoinder of causes of action are not grounds for dismissal of an action. Just remove the misjoined cause of action or the misjoined party.



Rule 03

PARTIES TO CIVIL ACTIONS CLASSES OF PARTIES: I. Real Parties in Interest II. Representative Parties III. Permissive Parties IV. Indispensable Parties V. Necessary Parties Sec. 1. Who may be parties; plaintiff and defendant. - Only natural or juridical persons, or entities authorized by law may be parties in a civil action. The term "plaintiff" may refer to the claiming party, the counterclaimant, the cross-claimant, or the third (fourth, etc.)-party plaintiff. The term "defendant" may refer to the original defending party, the defendant in a counterclaim, the cross-defendant, or other third (fourth, etc.)-party defendant. (1a)

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

Another example of an entity authorized by law which may not be a natural or juridical person is a labor union under the Labor Code. It is an entity authorized by law to file a case in behalf of the of its members. Although it may not have been incorporated under the Corporation Law but registered under the Labor Code. Q: Who are the plaintiffs, defendants? A: The term PLAINTIFF may refer to the claiming party, the original plaintiff, the counter-claimant, the cross-claimant, the third (fourth, etc.)- party plaintiff. So, the word ‘plaintiff’ covers them. The term DEFENDANT may refer to the original defending party, the defendant in a counterclaim,

the cross-defendant, or other third (fourth, etc.)-party defendant. These are explained in Rule 6, Sections 6, 8 & 11. I. REAL PARTIES IN INTEREST Sec 2. Parties in interest. - A real party in interest is the party who stands to be benefited or injured by the judgment in the suit, or the party entitled to the avails of the suit. Unless otherwise authorized by law or these Rules, every action must be prosecuted or defended in the name of the real party in interest. (2a)

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

So a complaint is dismissible if it is not made in the name of the real party in interest. In an action to recover a piece of land , you do not file a case against tenant. He is not the real party in interest. You must file the case against the owner of the land. When you are riding in a bus which collided and you were injured, do not file a case against the driver for damages. Your contract in not with the drive. Your contract is with the operator. So you file a case of culpa contractual against the owner or operator. GENERAL RULE: In a breach of contract, the real parties in interest are the parties to the contract. So strangers, as a rule, have no business suing in a contract because they are not real parties in interest. EXCEPTION: When there is a stipulation in the contract favorable to a third person (stipulation pour autrui – Art. 1311, NCC) Example: Third-Party Liability (TPL) in insurance. A insured his car with B for TPL. A bumped C. C can file a case against A and B to recover from the insurance contract. BALIWAG TRANSIT vs. COURT OF APPEALS 169 SCRA 649 [1989 BAR] FACTS: A student who was riding in one of the Baliwag buses met an accident. So, an action was filed where the parents and the injured boy were the co-plaintiffs against Baliwag Transit. While the case was going on, the boy entered into amicable settlement with the bus company. Based on the settlement, Baliwag moved to dismiss the case. The parents objected, “We are objecting because we are also plaintiffs. We didn’t know about the settlement. We were the ones who spent money, therefore it should not be dismissed simply

because our son is withdrawing the case.” HELD: The parents are not the real party in interest. The were not the passengers. The real parties in a contract of carriage are the parties to the contract itself. “In the absence of any contract of carriage between the transportation company and the parents of the injured party, the parents are not real parties in interest in an action for breach of contract.” SALONGA vs. WARNER BARNES 88 Phil. 125 [Bar Problem] FACTS: Aiza Guadolope decided to go abroad but she has properties in the Philippines. So she executed a special power of attorney in favor of Ken A. Sabayah: “You have the full power to administer, to collect all my money; to withdraw my money in the bank; with full power to sue these people who owe me; with the authority to hire a lawyer; and enter into a contract. Practically, you are my alter ego.” And then Aiza went abroad. Ken started to manage the property. One of the tenants failed to pay rentals. So in accordance with the authority, he hired a lawyer. In preparation of the complaint, it was stated that, “ Ken, plaintiff vs. Lewee Yoda, defendant.” ISSUE: Is the action properly filed? HELD: NO. The real property in interest is the principal, the owner of the property. Ken is only an attorney-in-fact. An attorney-in-fact cannot use in his own name because he is not the real party in interest. Ken is given the authority to sue, to manage, hire a lawyer but not as the plaintiff because the real party in interest is Aiza. The complaint should be name as “Aiza, plaintiff vs. Leewee Yoda, defendant.” Yaan! Q: Suppose Ken, the lawyer will amend the complaint: “Ken, as attorney-in-fact of Aiza, plaintiff vs. Leewee Yoda, defendant” is the complaint properly filed. A: NO. This is even worse because Ken is admitting that he is only an attorney-in-fact. The more reason na nahalata ka that he is not the real party in interest. If Ken wants to include the his name, it should be: “Aiza, plaintiff, represented by Ken, his attorney-in-fact vs. Leewee Yoda, defendant.” Q: Does the law require Aiza to come here to file the case? A: NO. Take note that the law does not require the principal (A) to come back to file the case because, the law does not say “every action must be prosecuted and defendant BY the real party in interest.” Hindi naman sinabing “by” eh. So an attorney-in-fact can prosecute or defend a party but in the name of the real party in interest. The real party in interest has submitted to the jurisdiction of the court by filing the complaint through his lawyer. II. REPRESENTATIVE PARTY Sec. 3. Representatives as parties. - Where the action is allowed to be prosecuted or defended by a representative or someone acting in a fiduciary capacity, the beneficiary shall be included in the title of the case and shall be deemed to be the real party in interest. A representative may be a trustee of an express trust, a guardian, an executor or administrator, or a party authorized by law or these Rules. An agent acting in his own name and for the benefit of an undisclosed principal may sue or be sued without joining

the principal except principal. (3a)

when

the

contract

involves

things

belonging

to

the

Section 3 is a relaxation of Section 2 because under Section 2, you cannot sue and be sued if you are not the real party in interest. But Section 3 allows one who is not a real party in interest to sue and be sued in behalf of somebody else. It is possible if you can qualify as a representative party. Example: GUARDIAN. Suppose Judee, a minor was injured. A case for damages has to be filed in behalf of the minor. A minor cannot use and be sued but she is the real party in interest. The law allows the parents to come in and also be the plaintiff. The parents are what we the representative party. The law still requires for the minor to be included in the case. The law states that “the beneficiary shall be included in the title of the case and shall be deemed to be the real party in interest.” Example: TRUSTEE; EXECUTOR; ADMINISTRATOR. Another example is a trustee of an express trust, or executor or administrator of the estate of a deceased person. When a person dies, what survives after him is his estate which represent everything that is left behind. This later on will be given to his heirs. But for the meantime under the law on succession, the executor or administrator will take charge of his property. Q: If the estate of the deceased has some collectibles, who will file the case? A: The administrator or executor as the representative party. If you want to sue the estate, you should sue the estate through the administrator or executor. CHING vs. COURT OF APPEALS 181 SCRA 9 FACTS: Angel Maya wanted to sue Devil John who owe her a sum of money. The problem is, she cannot locate John’s whereabouts. Also, Maya was not certain whether John is dead or alive. So, to play it safe, what the Maya did was to file a case against the “defendant and/or the estate of defendant.” Maya obtained a judgment against the ‘defendant and/or the estate of defendant.’ Later on when the judgment was enforced, it turned out that the John was already dead (tsk! tsk!) but he has properties left behind. So, they started to take hold of their properties. Now, the heirs of the John challenged the decision. ISSUE: Whether or not there was a valid judgment against the ‘defendant/or the estate of the defendant.” HELD: The decision is void. “The decision of the lower court insofar as the deceased is concerned, is void for lack of jurisdiction over his person. He was not, and he could not have been validly served with summons. He had no more civil personality. His juridical personality, that is fitness to be subject of legal relations, was lost through death (Arts. 37 and 42 Civil Code).” “The same conclusion would still inevitably be reached notwithstanding joinder of B’s estate as co-defendant. It is a well-settled rule that an estate can sue or be sued through an executor or administrator in his representative capacity.” So, the Court cited Section 3. In order to bind the estate, you should sue the executor or the

administrator of his estate. So, either way, the case cannot prosper. The last sentence of Section 3: An agent acting in his own name and for the benefit of an undisclosed principal may sue or be sued without joining the principal except when the contract involves things belonging to the principal.

The agent cannot sue because the principal is the real party in interest. But when an agent acts in his own name and for the benefit of an undisclosed principal, he may sue and be sued, EXCEPT when the contract involves things belonging to the principal. Under the exception, the principal has really to be included. The agent cannot file a case where the principal will lose his property without being named as part to the case. Sec 4. Spouses as parties. - Husband and wife shall sue or be sued jointly, except as provided by law. (4a)

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

Sec 5. Minor or incompetent persons. - A minor or a person alleged to be incompetent, may sue or be sued, with the assistance of his father, mother, guardian, or if he has none, a guardian ad litem. (5a)

Section 5 is related to Section 3. The minor or incompetent person must be assisted by the parents and considered as representative party. Incompetent persons includes insane people or mentally retarded people. They are supposed to be under the custody of other persons, the guardians. If no guardian, the court has to appoint a guardian called the guardian ad litem.

III. PERMISSIVE PARTY Sec 6. Permissive joinder of parties. - All persons in whom or against any right to relief in respect to or arising out of the same transaction or series of transactions is alleged to exist, whether jointly, severally, or in the alternative, may, except as otherwise provided in these Rules, join as plaintiffs or be joined as defendants in one complaint, where any question of law or fact common to all such plaintiffs or to all such defendants may arise in the action; but the court may make such orders as may be just to prevent any plaintiff or defendant from being embarrassed or put to expense in connection with any proceedings in which he may have no interest. (6)

Section 6 is known as permissive joinder of parties. This is related to Section 5 [a] of Rule 2 on joinder of causes of action because when there is proper joinder of parties, necessarily there is also automatic joinder of causes of action. But there could be joinder of causes of action without joinder of parties. Q: May two or more persons join in one complaint as plaintiffs? Or can two or more persons be joined together as defendants? A: YES, under two conditions, to wit: 1.) There is a right to relief in favor of or against or against the parties joined in respect to or arising out of the same transaction or series of transactions; and 2.) There is a question of law or fact common to the parties joined in the action. PROBLEM: Suppose some passengers riding a particular common carrier are injured because of an accident. All of them want to sue the operator of the carrier for damages arising out of the breach of contract of carriage. Under the Law on Transportation, it possible for each passenger to file his own case because our causes of action are different from each other. But can they be joined together in one complaint against the common carrier? A: YES because there is a common question of law or fact in the causes of actions of the injured passengers: the evidence is identical; the issues whether the carrier is at fault are the came; the witnesses for both parties will be the same; the report will be the same; the defense of the operator against one party will be the same defense as against the other passenger. So, since there is a common denominator on their causes of action, they can be joined. It would be different if the passengers were riding on different buses belonging to the same company, and all of them met an accident. What happened to Passenger No. 1 does not concern Passenger No. 2. The evidence will not be the same. So, there is no common denominator – no common question of fact. Therefore, they cannot be joined. PROBLEM: Suppose a story appeared in the Inquirer where 5 people were called as jueteng kings. They were allegedly involved in jueteng – these are the jueteng kings: Ken, Kenneth, Francis, Thad and Sheriff. Now, the five of them want to sue the Inquirer for damages arising from libel. Is it possible for the five (5) people named in the article to file only one complaint against the editor and publisher of the Inquirer? A: YES because it is of the same story. Their names appeared in the same story. It is not a different issue. So there is a common question of act law in their cause of action.

PROBLEM: Myra, while driving a car, bumped another vehicle, injuring the driver and causing injury to other passengers. So, there are three offended parties : the owner of the vehicle, the driver of the vehicle , and the passenger. There are three(3) causes of action. Can they join in one complaint against Myra, the owner of the car which bumped them? A: YES because there is a common question of fact and law. There is only one accident. Q: But suppose the three of them will file 3 separate cases against Myra, puwede? A: Puwede, because permissive joinder of parties is not mandatory. Kaya nga ‘permissive’ eh! It is not mandatory but optional although the law encourages permissive joinder of parities. Q: Why does the law encourage joinder of parties? A: The following are the reasons: 1.) 2.) 3.) 4.)

to promote convenience in trial; to prevent multiplicity of suits; to expedite the termination of the litigation; and to attain economy of procedure under which several demands arising out of the same occurrence may be tried together thus avoiding the repetition of evidence relating to facts common to the general demands.

Now, take note that when there is joinder of parties, there is automatically a joinder of causes of action. That is why one of the conditions of limitations in joinder of causes of action is you must observe the rule on joinder of parties. If joinder of parties is improper under Rule 3, the joinder of causes of action is also proper under Rule 2, Section 5 Principle: WHEN THERE IS JOINDER OF PARTIES, THERE IS ALSO A JOINDER OF CAUSES OF ACTION. BUT THERE CAN BE A JOINDER OF CAUSES OF ACTION WITHOUT A JOINDER OF PARTIES. Paano yun? EXAMPLE: When there is only one plaintiff and one defendant: Suppose Melissa will secure three (3) loans from me. Q: How many causes of action do I have if Melissa will not pay me? A: Three (3) man ba! Q: Now, can I join them in one complaint? A: Yes. Q: Is there joinder of causes of action? A: Yes. Q: Is there joinder of parties? A: NONE, because there is only one plaintiff and one defendant. So, there can be joinder of causes of action without joinder of parties because there is only one plaintiff and one defendant. But if you join parties in Rule 3, automatically, there is joinder of causes of

action. This is the relationship of these two provisions. Finally, the last two types of parties to the action are the so-called indispensable parties and necessary parties. (Section 7 and Section 8, respectively) INDISPENSABLE PARTY and NECESSARY PARTIES Sec. 7. Compulsory joinder of indispensable parties. Parties in interest without whom no final determination can be had of an action shall be joined either as plaintiffs or defendants. (7) Sec. 8. Necessary party. A necessary party is one who is not indispensable but who ought to be joined as a party if complete relief is to be accorded as to those already parties, or for a complete determination or settlement of the claim subject of the action. (8a)

Take note that under the Old Rules, Section 8, the party there was called ‘proper party.’ Now they change the word from ‘proper party’ to ‘necessary party.’ This readopts the old name under the 1940 Rules. Under the old rules, the parties were either indispensable or necessary. Then under the 1964 Rule, it was changed from ‘necessary’ to ‘proper.’ Now, under the new rule, back to its old name: ‘necessary party.’ Q: Distinguish indispensable from necessary party. A: An INDISPENSABLE PARTY must be joined under any and all conditions, his presence being a sine qua non of the exercise of judicial power, for without him, no final determination can be had of the action. (Borlasa vs. Polistico, 47 Phil. 345) A NECESSARY PARTY ought to be joined whenever possible in order to adjudicate the whole controversy and avoid multiplicity of suits, but if for some reason or another he cannot be joined, the court may proceed without him and the judgment shall not prejudice his rights. (Ibid.) Q: Give examples of indispensable party. A: In an action for partition of land, all the co-owners thereof are indispensable parties. (De Lara vs. De Lara, 2 Phil. 294) In an action for annulment of partition, all of the heirs must be made parties. (Caram vs. CA, 101 Phil. 315) In an action for recovery of ownership of land, the person who claims to be the owner of the land is the indispensable party defendant and not the one in possession as tenant. (Sanidad vs. Cabotaje, 5 Phil. 204; Manza vs. Santiago, 96 Phil. 938) Q: Give examples of necessary party. A: In an action for collection of debt instituted by the creditor against the surety, the principal debtor is merely a necessary party. (Vaño vs. Alo, 95 Phil. 495) In an action for recovery of debt instituted by the creditor against the debtor, the guarantor or surety is merely a necessary property. (Ibid.) In an action for foreclosure of a real estate mortgage instituted by the first mortgagee, the second mortgagee is merely a necessary party. (Somes vs. Gov’t of Phil., 62 Phil. 432) REVIEW: What is the difference between a surety and a guarantor? The liability of guarantor to the creditor is only secondary. Meaning, the guarantor is only liable to the creditor if the principal debtor cannot pay like when the debtor is insolvent. On the other hand, a surety is principally liable to the creditor whether or not the debtor can pay. PROBLEM: In credit transactions, there is a creditor, debtor and surety. Debtor borrowed money

from the creditor, then another acted as the surety. Now, suppose the debtor will not pay, the creditor files now a case against the surety without the debtor. The debtor was not included in the case. Q: Can the case proceed even without the debtor being sued? A: YES, the case may proceed. Now, the surety may be ordered to pay. Pero bag binayaran ng surety iyong creditor, what will he do next? He will now sue the principal debtor for reimbursement. Meaning, there is still a future case. Thus, there could be no complete relief between those who are parties. So, the debtor is a necessary party, and not indispensable. But it is advisable to join the debtor in one case, para pag nag-claim ang creditor from the surety, the latter can automatically claim from the debtor. Pang-one time ba! PROBLEM: Kuya Mortz borrowed money from Doña Eugenia a.k.a. Genie. Ate Maya is the guarantor. The Doña Genie filed a case against Kuya Mortz. She did not include the guarantor. Q: Can the case proceed even without the guarantor? Q: YES because the guarantor is merely a necessary party. And if the debtor turns out to be insolvent, the creditor will now file another case against the guarantor. REVIEW: What is the difference between joint debtors and solidary debtors? In solidary, the creditor can collect the whole obligation from any of the debtors without prejudice to the right of the latter for reimbursement of his share in the obligation from his co-debtors. On the other hand, in joint obligation, the creditor can only get from a debtor the latter’s share in the whole obligation. Meaning, the creditor cannot compel the debtor to pay the share of his co-debtor. Kanya-kanya tayo. PROBLEM: Manuel and Cathy are JOINT debtors of P100,000 (50-50 sharing). Doña Eugenia is the creditor. Both did not pay Doña Eugenia. Q: If Doña Eugenia files a case against Manuel only, can the case proceed without Cathy? A: YES but Doña Eugenia can only collect from Manuel up to P50,000 only because of their joint obligation. Cathy is only necessary insofar as Manuel’s share is concern. But Manuel is indispensable party insofar as his share is concern. Q: But if Doña Eugenia wants to collect the entire P100,000, what should she do? A: She should file a case against both Manuel and Cathy. PROBLEM: Manuel and Cathy are SOLIDARY debtors of P100,000 (50-50 sharing). Doña Eugenia is the creditor. Both did not pay Doña Eugenia. Q: If Doña Eugenia files a case against Manuel only, can the case proceed without Cathy? A: YES and Manuel is required to pay Doña Eugenia the whole amount of the debt because of solidary obligation. Then Manuel can proceed against Cathy for reimbursement. Be is merely necessary party. Sec. 9. Non-joinder of necessary parties to be pleaded. Whenever in any pleading in which a claim is asserted a necessary party is not joined, the pleader shall set forth his name, if known, and shall state why he is omitted. Should the court find the reason for the omission unmeritorious, it may order the inclusion of the omitted necessary party if jurisdiction over his person may be obtained. The failure to comply with the order for his inclusion, without justifiable cause, shall be deemed a waiver of the claim against such party. The non-inclusion of a necessary party does not prevent the court from proceeding in the action, and the judgment rendered therein shall be without prejudice to the rights of such necessary party. (8a, 9a)

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

This is particularly true with INDISPENSABLE parties – the case cannot proceed without you. EXAMPLE : There are 4 brothers and 1 sister. They have to file a case against somebody to recover property which they believe was owned by their parents. Then, brother 4 say to sister 1, “Let us file a case.” But sabi ni sister 1, “Pilitin mo muna ako.” Then she says, “Ayoko nga, hindi mo ako pinilit eh!” Meaning, all of them will suffer because ayaw ni sister 1 mag-file ng kaso. Q: Now, what is the remedy of the 4 brothers? A: Under Section 10, include the one who refused as one of the defendants. If there is unwilling plaintiff, name him as defendant whether he likes it or not. MISJOINDER AND NON-JOINDER OF PARTIES Sec. 11. Misjoinder and non-joinder of parties. Neither misjoinder nor nonjoinder of parties is ground for dismissal of an action. Parties may be dropped or added by order of the court on motion of any party or on its own initiative at any stage of the action and on such terms as are just. Any claim against a misjoined party may be severed and proceeded with separately. (11a)

This is similar to Section 6 of Rule 2 – misjoinder of causes of action is not a ground for dismissal of an action. Misjoinder or non-joinder at parties is not a ground for a motion to dismiss because at any stage of the case, the court can order a misjoined party to be removed or a party not joined to be included. Q: Do you know what ‘MISJOINDER of parties’ mean? A: It means that two or more parties should not be joined but they are improperly joined. A good example is, if there is no common question of fact or law. Meaning, you do not have any business to be

here but you are joined or misjoined. That is what we call misjoinder of parties. It is also known as “spurious class suit.” Well, ‘NON- JOINDER’ is different. A party who should be joined was not joined such as a necessary party. Q: What happens if a party is misjoined or if there is a non-joinder, should the case be dismissed? A: Not, that is not a ground for dismissal. Q: So what is the remedy then? A: The remedy is to order the removal of the party who is misjoined, or to order the inclusion of the party who should be joined. And that is not a defect which should cause the dismissal of the case because the can always issue an order ordering the removal of a misjoined party or the inclusion of joinder of a party who should be included. Q: Does it mean to say therefore, that the plaintiff has the license to include anybody in an action? Like for example, I have a case against somebody in the class, the trouble is in the meantime, I cannot identify who among you who did the wrong to me. So I will file a case against all of you. Anyway later on, I can dump you kung hindi ka talaga sabit. Now, is this allowed? A: NO. That is not a license. What the law contemplates, according to the SC, the party was joined in good faith believing that he was a defendant but actually it turned out to be wrong. So, you have no right to sue anybody just like that. That is not an excuse for suing any party left and right. In the case of REPUBLIC vs. SANDIGANBAYAN 173 SCRA 72 [1989] HELD: Section 11 of Rule 3 “does not comprehend whimsical and irrational dropping or adding of parties in a complaint. What it really contemplates is erroneous or mistaken nonjoinder and misjoinder of parties. No one is free to join anybody in a complaint in court only to drop him unceremoniously later at the pleasure of the plaintiff. The rule presupposes that the original inclusion had been made in the honest conviction that it was proper and the subsequent dropping is requested because it turned out that such inclusion was a mistake.” CLASS SUIT SEC. 12. Class suit. When the subject matter of the controversy is one of common or general interest to many persons so numerous that it is impracticable to join all as parties, a number of them which the court finds to be sufficiently numerous and representative as to fully protect the interests of all concerned may sue or defend for the benefit of all. Any party in interest shall have the right to intervene to protect his individual interest. (12a)

As a GENERAL RULE, if there are several real parties in interest, they shall be included in the case whether indispensable or necessary. Example: There are 30 of us. The general rule is that all parties in interest, indispensable or necessary shall be included. EXCEPTION to the General Rule: Class Suit. Meaning, some of you will sue to represent the rest. That is also known as the “doctrine of virtual representation.” The concept of a class suit was first

enunciated in the old case of BORLAZA vs. POLISTICO 47 Phil. 345 FACTS: This case has something to do with raffle. A group of people decided to form an association which they called “Turnuhang Polistico.” You become a member of this association by contributing a certain sum of money. And then every Sunday after mass, half of the collection will go to the treasurer of the association. The other half will be raffled off. This has been going on for months and years. The time came when the funds of the association became very big. Some of the members, in behalf of all the members, decided to file a case against the officers to render an accounting of all the amounts. The real parties in interest would be the members. ISSUE: Is the suit filed by some members in behalf of some members proper? HELD: YES, because if We will require all the members to appear, it will be quite impossible. Therefore, some members must be made to sue but only in behalf of all the members who are not around and it is impracticable to bring them all to the court. A number of them may sue for the benefit of all. Q: What are the CONDITIONS FOR A VALID CLASS SUIT ? A: Under Section 12, the following are the conditions of a valid class suit: 3.)

The subject matter of the controversy is one of common or general interest to many persons (such as the funds of the association in the case of POLISTICO); and 4.) The parties are so numerous that it is impracticable to bring them all before the court. In which case a number of them which the court finds to be sufficient and numerous and representative as to fully protect the interests of all concerned may sue or defend for the benefit of all. Example is a taxpayer’s suit – filed in behalf of all the taxpayers in the Philippines. And there is no specific number of persons that is provided by law. Now, we will go to some interesting cases on class suit decided by the Supreme Court: SULO NG BAYAN vs. ARANETA, INC. 72 SCRA 347 [1976] FACTS: This concerns the big property of the Araneta’s in Quezon City. It has been the subject matter of litigation for the past years – 3 or 4 decades. It is a big track of land in Quezon City occupied by so many people who want to acquire it. They are questioning the title of the Araneta’s So, Sulo (torch) ng Bayan is the association of squatters. Since the properties of the Araneta is very big, they subdivided it – kanya-kanyang lote. Then a case was filed by Sulo ng bayan Association against Araneta to annul the title of the latter. ISSUE #1: Whether or not the action was file in the name of the real in interest. HELD: Sulo ng Bayan is not the real party in interest. It violates Section 2 – “the action must be prosecuted and defended in the name of the real parties in interest.” The

members occupying the land are the plaintiffs. The association is not the one occupying the lot. So, the first question is, who should be the plaintiff? It should be the members. ISSUE #2: Whether or not the action was properly pleaded as a class suit HELD: NO. This is the more important reason why they cannot qualify as a class suit: In a class suit, the subject matter is of common interest to all. Meaning, lahat tayo is interesado. To illustrate: You are Occupant No. 1, which lot do you occupy? “Here (a particular lot).” Meron ka bang interest diyan? “Meron.” Do you have an interest in that (another lot) portion? “Wala.” If that is so, then the subject matte is not of common interest. The interest of one occupant is only on the lot he occupies. Meaning, “My neighbor does not have an interest on the lot I occupied.” What should be done is that all of them to sue together to cover the entire property, for each one has a lot. So, in that case, Section 6 should be applied – permissive joinder of parties because there is a common question of fact. This is more of permissive joinder of Parties rather than a class suit. That’s why you can confuse Section 6 with Section 12. But the permissive joinder of parties kailangan, lahat kayoi nandiyan. Hindi puwede na I will represent you. Kanya-kanya yan but they can join together. Unlike in a class suit, the subject matter is of interest to everybody and we cannot all be joined because we are so numerous.

BULIG-BULIG KITA KAMAGANAK ASSOCIATION, ET AL vs. SULPICIO LINES May 19, 1989 RE: Doña Paz Tragedy – iyong lumubog na barko owned by Sulpicio Lines. FACTS: There we so many relatives who filed a case against Sulpicio Lines and there was an attempt to file a class suit in behalf of everyone who were drowned including those who were not identified. HELD: That cannot be. The survivors have no interest in the death of other passengers. The interest in this case is individual. What would have been proper is permissive joinder of parties because of common question of tact or law, but not class suit. OPOSA vs. FACTORAN 224 SCRA 12 [1993] FACTS: Oposa et al were all minors. Some were small boys duly represented by their parents. They filed a case against then DENR Secretary Factoran. The prayer in the case is to order the DENR to cancel all existing Timber License Agreements (TLA’s), to cease and desist from proceeding, accepting, processing, renewing all accruing new TLA’s. So, in effect, it prays for a total log ban in the country to preserve the remaining forest all over the Philippines. These young boys sue with their parents. They are suing in their behalf, in behalf of the

other citizens who are of their age because they stand to suffer if the environment will be deteriorated. They say that they are entitled to the full benefit, use and enjoyment of the natural resources of our country’s rich tropical rainforests. They say, the case was tiled for themselves and others for the preservation of our rainforest and we are so numerous that it is impracticable to bring all plaintiffs to court. They say that they represent their generations and generations yet unborn. HELD: The civil case is indeed a class suit. The case however has a special and novel element. The personality of the minors to sue for the succeeding generations is based on the concept of inter-generational responsibility insofar as a balanced and healthful ecology is concerned. Every generation has a responsibility to preserve the ecology. The minors’ right to a sound environment constitute at the same time the performance of the obligation to ensure the protection of the rights or the generations to come. Q: In case of doubt, should a class suit be allowed? A: NO. When the issue is not so clear, a class suit should not be allowed b e cause class suit is an exception to the general rule that all parties should be included. CADALIN vs. POEA ADMINISTRATOR 238 SCRA 721 [1995] HELD: While it is true that class suit is allowed, it should be allowed with caution because the fact that you represent others is only a fiction of law. For all you know, those others may not want to be represented. So okey lang kung manalo ang kaso. Eh kung matalo ang kaso? All others start blaming you. That is why the court is extra-cautious in allowing class suits because they are the exceptions to the condition sine qua non requiring joinder of all indispensable parties. In an improperly instituted class suit, there would be no problem it the decision secured is favorable to the plaintiffs. The problem arises where the decision is adverse to them. In which case, the parties who are impleaded through their self-appointed representatives would surely plead denial of due process. Q: Distinguish a representative suit from a class suit. A: In the case of LIANA’S SUPERMARKET vs. NLRC 257 SCRA 186 [May 31, 1996] FACTS: A labor union filed a case against the employer in behalf of hundreds of employees. Is this a representative suit or a class suit? HELD: “What makes the situation a proper case for a class suit is the circumstance that there is only one right or cause of action pertaining or belonging in common to many persons, not separately or severally to distinct individuals. The object of the suit is to obtain relief for or against numerous persons as a group or as an integral entity, and not as separate, distinct individuals whose rights or liabilities are separate from and independent of those affecting the others.” In a representative suit, there are different causes of action pertaining different persons.

“In the present case, there are multiple rights or causes of action pertaining separately to several, distinct employees who are members of respondent Union. Therefore, the applicable rule is that provided in Rule 3 on Representative Parties. Nonetheless, as provided for in the Labor Code, a legitimate labor organization has the right to sue and be sued in its registered name. This authorizes a union to file a representative suit for the benefit of its members in the interest of avoiding an otherwise cumbersome procedure of joining all union members in the complaint, even if they number by the hundreds.” For convenience, the Labor Code allows a union to file a representative suit.

It is important to note the following: 1. CLASS SUIT 2. REPRESENTATIVE SUIT 3. DERIVATIVE SUIT – only peculiar to the corporation law where the minority files a suit in behalf of the entire corporation because intra-corporate remedy is useless. ALTERNATIVE DEFENDANTS Sec. 13. Alternative defendants. Where the plaintiff is uncertain against who of several persons he is entitled to relief, he may join any or all of them as defendants in the alternative, although a right to relief against one may be inconsistent with a right of relief against the other. (13a)

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

Sec. name of devisee, identity

14. Unknown identity or name of defendant. Whenever the identity or a defendant is unknown, he may be sued as the unknown owner, heir, or by such other designation as the case may require; when his or true name is discovered, the pleading must be amended accord. (14)

Q: Can you sue somebody who is unknown? A: YES, under Section 14. BAR PROBLEM: While Leyva “The Rapper” was walking on the street. He was bumped by a car, say a Toyota Altis, 2001 model, color blue. Now, so far, he could not determine who is the owner. If you are the lawyer of the Leyva, how would you sue the defendant? A: Under Section, I will sue the owner of that car as an unknown defendant. I can place in my complaint, “Leyva ‘the rapper’, plaintiff, vs. the registered owner of Honda motor vehicle with plate number so and so.” And later if you discover the true identity of the owner, we can amend the complaint to place the name of the defendant. Section 14 is similar with Rule 110 in Criminal Procedure – a case may be filed against an unknown accused. RULE 110, SEC. 7. Name of the accused. – The complaint or information must state the name and surname of the accused or any appellation or nickname by which he has been or is known. If his name cannot be ascertained, he must be described under a fictitious name with a statement that his true name is unknown. If the true name of the accused is thereafter disclosed by him or appears in some other manner to the court, such true name shall be inserted in the complaint or information and record. (7a)

ENTITY WITHOUT JURIDICAL PERSONALITY AS DEFENDANT Sec. 15. Entity without juridical personality as defendant. When two or more persons not organized as an entity with juridical personality enter into a transaction, they may be sued under the name by which they are generally or commonly known. In the answer of such defendant, the names and addresses of the persons composing said entity must all be revealed.

Rule 1, Section 1 provides that only natural of juridical persons may be sued. Entity without juridical personality as defendant. Under the old law, this was known as suing two or more persons involved in a business under a common name. When two or more persons transact in a business under a common name, they may be sued under their common name. Q: Who are really the defendants here? A: The persons involved. Now, it is worded in this manner: “When two or more persons not organized as an entity with juridical personality,” instead of a ‘common name.’ You cannot sue the entity because it has no juridical personality. But you do not also know the members of that entity, so the law allows you to file a case against the entity. Under the second paragraph of Section 15, when the defendants file an answer, they must file under

their names as they are really the real parties in interest. When the lawyer answers the complaint, he is duty-bound to provide the names of all the defendants. Q: How do you summon this kind of defendant? A: Rule 14, Section 8: RULE 14, Sec. 8. Service upon entity without juridical personality. When persons associated in an entity without juridical personality are sued under the name by which they are generally or commonly known, service may be effected upon all the defendants by serving upon any one of them, or upon the person in charge of the office or place of business maintained in such name. But such service shall not bind individually any person whose connection with the entity has, upon due notice, been severed before the action was brought. (9a)

Correlate this with Rule 36, Section 6: Sec. 6. Judgment against entity without juridical personality. When judgment is rendered against two or more persons sued as an entity without juridical personality, the judgment shall set out their individual or proper names, if known. (6a)

GENERAL RULE: actions must be filed against real parties in interest. EXCEPTIONS: (When may an action be filed without naming all the parties in involved?) 1. Class suit (Section 12, Rule 3); 2. Entity without juridical personality (Section 15, Rule 3); 3. Any co-owners may bring an action for ejectment (Article 487, New Civil Code) EFFECT OF DEATH OF A PARTY Sec. 16. Death of party; duty of counsel. Whenever a party to a pending action dies, and the claim is not thereby extinguished, it shall be the duty of his counsel to inform the court within thirty (30) days after such death of the fact thereof, and to give the name and address of his legal representative or representatives. Failure of counsel to comply with this duty shall be a ground for disciplinary action. The heirs of the deceased may be allowed to be substituted for the deceased, without requiring the appointment of an executor or administrator and the court may appoint a guardian ad litem for the minor heirs. The court shall forthwith order said legal representative or representatives to appear and be substituted within a period of thirty (30) days from notice. If no legal representative is named by the counsel for the deceased party, or if the one so named shall fail to appear within the specified period, the court may order the opposing party, within a specified time, to procure the appointment of an executor or administrator for the estate of the deceased and the latter shall immediately appear for and on behalf of the deceased. The court charges in procuring such appointment, if defrayed by the opposing party, may be recovered as costs. (16, 17a)

First of all, there are cases when a party to a pending action dies and the claim is not thereby extinguished (this is what they called an action which survives as we will explain later) and there are certain actions where if a party dies, the claim is automatically extinguished. Meaning, the death of a

party causes death of the action. But these are very few. Majority of cases when the party dies, the case or the cause of action continues. It is the duty of the lawyer of the deceased to inform the court within 30 days after the death of the party thereof. He must inform the court and give the name and address of his legal representative/s (e.g. administrator of executor of the estate) Well of course, under the rule in legal ethics, the lawyer-client relationship is automatically terminated by the death of the client because the lawyer-client relationship is personal. But procedurally, you must tell the court and you must give the name of the legal representative. The latter may re-hire the lawyer but under a new contract. The purpose there is for substitution so that the legal representative will be ordered substituted. And there is a new provision under the new rules. That is, failure of the counsel to comply with his duty shall be a ground for disciplinary action. That is not found in the prior rule. So, the lawyer can be subjected to disciplinary action. So the provision continues, “the heirs of the deceased may be allowed to be substituted for the deceased without requiring the appointment of an executor or administrator. And the court may appoint a guardian ad litem for the minor heirs. So, other than the legal representative, before anything else, the representative refers to the executor or administrator, and the other alternative will be the heirs, such as the surviving children, wife or spouse. Although there was a case decided by the SC way back in 1986 in the case of LAWAS vs. COURT OF APPEALS 146 SCRA 173 HELD: “The priority of substitution would be the executor or administrator not the heirs. The heirs would only be allowed to be substituted if there is an (1) unreasonable delay in the appointment of administrator or executor, or (2) when the heirs resort to extrajudicial partition. But outside of those two reason, the law always gives priority to the administrator or executor.” Under the rule, priority is given co the legal representative of the deceased. That is, the executor or the administrator of his estate. Many courts do not enforce it strictly. Normally, patay na, “O! Ito ang heirs o!” “OK! Substitute!” Actually, that is wrong based on LAWAS case. The priority is given to the administrator or executor. It is only when there is unreasonable delay in the appointment, or when the heirs resort to extrajudicial partition because there is no more administrator or executor in extrajudicial settlement. VDA. DE SALAZAR vs. COURT OF APPEALS 250 SCRA 303 [November 23, 1995] FACTS: This is an ejectment. case. The defendant died while the case is going on. What is the procedure? There should be substitution. But there was no substitution in the case for

ten years, until it was decided. The court was not informed of the death of the defendant. Until finally, there was a decision. ISSUE: When there is failure to effectuate the substitution of heirs before the rendition of judgment, is the judgment jurisdictionally detective? Because here, the case continued eh, in which somebody is already dead. HELD: NO, “the judgment is valid where the heirs themselves appeared before the trial court and participated in the proceedings. Therein, they presented evidence in defense of the deceased defendant. It is undeniably evident that the heirs themselves sought their day in court and exercised their right to due process.” In other words, when there was a defect the heirs however cannot used that because they themselves appeared and continued the case. So, in effect, there was estoppel. EFFECT OF DEATH OF A PARTY ON MONEY CLAIMS Now, one of the radical changes again introduced by the new rules is the effect of the death of the defendant in a money claim – action to collect a sum of money. Sec. 20. Action on contractual money claims. When the action is for recovery of money arising from contract, express or implied, and the defendant dies before entry of final judgment in the court in which the action was pending at the time of such death, it shall not be dismissed but shall instead be allowed to continue until entry of final judgment. A favorable judgment obtained by the plaintiff therein shall be enforced in the manner especially provided in these Rules for prosecuting claims against the estate of a deceased person. (21a)

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

Q: And what is that procedure? A: YOU FILE A CLAIM against the estate under Section 5, Rule 86 of the Rules of Court, but there will be no execution. [Note: SEE OUTLINE AT THE LAST PART OF THIS RULE.] Q: We are talking of death of a party in a pending civil action. While there is a case and a party dies, what will happen to the case? A: I will distinguish – Anong klaseng kaso iyar. Is that an ACTION WHICH DOES NOT SURVIVE or an ACTION WHICH SURVIVES? 1.) ACTION WHICH DOES NOT SURVIVE An action which does not survive is an action which is abated upon the death of a party. The case cannot go on once a party dies. And normally, that refers to actions which are purely personal in character like an action for annulment of marriages, an action for declaration of the nullity of marriage or, an action for legal separation, or an action for support. These are the cases arising from the Family Code. Example: The husband files a case against the wife for annulment of marriage or legal separation. One of them dies. Wala nang substitution, TAPOS NA! When one of the parties dies, the marriage is dissolved. There is nothing to annul because the marriage is already dissolved. So, these are the actions which are purely personal . Q: So, what is the effect of the death of the party in actions which does not survived? A: The case is dismissed! However, these cases are very few. Majority of the cases are damage suit, recovery of possession, recovery of land, recovery of unpaid loans, etc. So, these are what you call actions which survive. Meaning , if a party dies, you cannot say that the case is terminated upon the death of the party. So, ano ang mga kaso na iyan? 2.) ACTIONS WHICH SURVIVE – Is it a contractual money claim or non-contractual claim? If it is a contractual claim, who died – is it the plaintiff or is it the defendant? If the defendant is the one who died, when did he die? 2a.) Actions which survive; CONTRACTUAL MONEY CLAIMS: 2a1.) If it is the plaintiff who dies, the case will continue. The heirs or legal representatives will proceed. So, there is substitution. 2a2.) If it is the defendant who dies, the question is: KAILAN NAMATAY? Before entry of final judgment or after entry? This is where Section 20 will come in. 2a2a.) If the defendant died before entry of final judgment, you apply Section 20 of Rule 3. Meaning, the case shall not be dismissed but shall be allowed to continue until entry of final judgment. And the favorable judgment obtained by the plaintiff therein shall be enforced in the manner especially provided in these Rules for prosecuting claims against the estate of a deceased person, and that is Section 5 of Rule 86.

2a2b.) If the defendant died after the entry of the final judgment but before execution (after the judgment became final but before there could be levy or execution) you cannot move to execute. Again, you apply Section 5 of Rule 86 which is the governing rule – you file your judgment as a claim against the estate of the deceased defendant. [Section 5, Rule 86 - Please refer to your codals.] The purpose there is, so that the creditor will share with the other creditors pro-rata in the distribution of the estate. 2a2c) If the defendant died after levy or execution but before the auction sale – meaning, the property was already levied by the sheriff bago pa namatay – we will now apply Section 7[c] of Rule 39: Rule 39, Sec. 7. Execution in case of death of party. In case of the death of party, execution may issue or be enforced in the following manner: x x x x x x (c) In case of the death of the judgment obligor, after execution is actually levied upon any of his property, the same may be sold for the satisfaction of the judgment obligation, and the officer making the sale shall account to the corresponding executor or administrator for any surplus in his hands. (7a)

Meaning, after the levy, namatay, auction sale proceeds as scheduled. And if there is an excess, the excess shall be delivered to the administrator of executor. 2b.) Actions which survive; NON-CONTRACTUAL MONEY CLAIMS: EXAMPLE: an action for recovery of property, real or personal like replevin, forcible entry, unlawful detainer, action publiciana, action reinvidicatoria, or action for damages, (damages that is not the same for transaction of money because damages arising from culpa aquiliana is one not arising from contract.) If a party dies in an action which survives which is a non-contractual money claim, obviously, there is substitution of parties. So, what are these non-contractual money claims which survive? These are those mentioned in Section 7 of Rule 86 and Section 1 of Rule 87. That is in the study of Special Proceedings on settlement of the estate of a deceased person. So, that is the outline in the light of the amendments of the Rules of Court. [PLEASE REFER TO THE OUTLINE HEREIN ATTACHED.] Note: What Section 20 says is that: before the case can be decided and the defendant dies (in actions involving money claims) the case shall not be dismissed but shall instead be allowed to continue until entry of final judgment. BUT CONTINUE AGAINST WHOM? Against the deceased? Now, to my mind, you correlate this with Section 16 --- there should still be substitution. But assuming, there was no substitution and the heirs fought in the case; there is waiver because the defect is procedural. Just like what happened in the case of VDA. DE SALAZAR. Actually, what Section 20 emphasized is that, the action shall not be dismissed but shall continue – to emphasize that it is now different compared with the prior RULE. But obviously, there will always be a substitution Sec. 17. Death or separation of a party who is a public officer. When a public officer is a party in an action in his official capacity and during its

pendency dies, resigns, or otherwise ceases to hold office, the action may be continued and maintained by or against his successor if, within thirty (30) days after the successor takes office or such time as may be granted by the court, it is satisfactorily shown to the court by any party that there is a substantial need for continuing or maintaining it and that the successor adopts or continues or threatens to adopt or continue the action of his predecessor. Before a substitution is made, the party or officer to be affected, unless expressly assenting thereto, shall be given reasonable notice of the application therefor and accorded an opportunity to be heard. (18a)

This applies only when the public officer is party to an action in his official capacity. If he (1) dies; (2) resigns; or (3) cease to hold office, there will be a succession. Q: What will happen to the case? A: The following: 1.) If the successor intends to continue with the policy. EXAMPLE: Mayor Pascua threatened to demolished the building of Mr. Nuere as a hazard. If Mayor Pascua dies, Vice-Mayor Angeles becomes the mayor. If Vice-Mayor Angeles who is now the mayor says that he will continue with the demolition, he will be substituted and he is given 30 days to comment. 2.) If the successor does not adopt the policy, the case will be dismissed. Sec. 18. Incompetency or incapacity. If a party becomes incompetent or incapacitated, the court, upon motion with notice, may allow the action to be continued by or against the incompetent or incapacitated person assisted by his legal guardian or guardian ad litem. (19a)

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

interest. In case of any transfer of interest, the by or against the original party, unless the court person to whom the interest is transferred to be or joined with the original party. (20)

EXAMPLE: Rudolpho files a case against Leweh to recover a piece of land. While the case is pending, Leweh sold the land to Erec. Erec now assumes the risk and takes the property subject to the outcome of the case. Q: Can the case continue against Leweh? A: YES. 1.) If Leweh loses and cannot pay, Erec is subsidiary liable; 2.) Leweh can be removed and Erec will be substituted; or 3.) Leweh can stay and Erec will be added. In all 3 cases, Erec will be bound by the judgment. Sec. 21. Indigent party. A party may be authorized to litigate his action, claim or defense as an indigent if the court, upon an ex parte application and

hearing, is satisfied that the party is one who has no money or property sufficient and available for food, shelter and basic necessities for himself and his family. Such authority shall include an exemption from payment of docket and other lawful fees, and of transcripts of stenographic notes which the court may order to be furnished him. The amount of the docket and other lawful fees which the indigent was exempted from paying shall be a lien on any judgment rendered in the case favorable to the indigent, unless the court otherwise provides. Any adverse party may contest the grant of such authority at any time before judgment is rendered by the trial court. If the court should determine after hearing that the party declared as an indigent is in fact a person with sufficient income or property, the proper docket and other lawful fees shall be assessed and collected by the clerk of court. If payment is not made within the time fixed by the court, execution shall issue for the payment thereof, without prejudice to such other sanctions as the court may impose. (22a)

In criminal cases, the court assigns a counsel de officio. Under the Constitution on Bill of Rights, no person shall be denied access to courts by reason of poverty. In civil cases, a plaintiff need not pay docket fee if he is an indigent if he files an application (exparty application) to allow him to litigate as an indigent litigant. But if the indigent wins, he has to pay the fees – file now, pay later) – the amount shall be a lien on any favorable judgment. The third paragraph is new. The other party may contest the claim of the indigent if he is really an indigent or not. Sec. 22. Notice to the Solicitor General. In any action involving the validity of any treaty, law, ordinance, executive order, presidential decree, rules or regulations, the court, in its discretion, may require the appearance of the Solicitor General who may be heard in person or through a representative duly designated by him. (23a)

EXAMPLE: Inday (the love-is-blind club president) files a case against Kenneth Bruce Lim for declaration of nullity on the ground of psychological incapacity. Kenneth alleges that Article 38 of the Family Code is unconstitutional. So the court will rule on the validity of the law in which case, the Solicitor General has to be involved in the case to defend the validity of the law. REASON: The Solicitor General is the legal counsel of the Republic of the Philippines whose duty is to defend all the official acts of the Government.



Rule 4

VENUE OF ACTIONS Q: Define venue. A: VENUE is the place where the action must be instituted and tried. (Ballentine’s Law Dict., 2nd Ed., p. 1132) EXAMPLE: The venue of the action is in Davao, or the venue of the action is in Manila. If you file the action in other places, that is improper or wrong venue. In criminal cases, that is called territorial jurisdiction – the place where the crime was committed. But in civil cases, venue is not the same with jurisdiction. We do not call it territorial jurisdiction. We call it venue. This is where it is important to determine whether the action is real or personal for the purpose of venue. The venue of real action is stated in Section 1 and the venue for personal action is stated in section 2. VENUE OF REAL ACTIONS Section 1. Venue of real actions. Actions affecting title to of real property, or interest therein, shall be commenced and proper court which has jurisdiction over the area wherein the involved, or a portion thereof, is situated. Forcible entry and detainer actions shall be commenced and municipal trial court of the municipality or city wherein the involved, or a portion thereof, is situated. (1[a], 2[a]a)

or possession tried in the real property tried in the real property

While it is true that the rule on venue is new however, the rule on venue even before 1997 as earlier as August 1, 1995, Rule 4 of the 1964 Rules has already been amended by the administrative Circular No. 13-95, but now it incorporated under the Rules of 1997. Now, when the action is real, we distinguish whether it is forcible entry and unlawful detainer or action publiciana or action reinvidicatoria. If it is accion publiciana or reinvidicatoria, the proper venue is the one which has jurisdiction over the area wherein the real property involved or a portion thereof is situated. Of course, the RTC is divided into areas. every branch has its own designated area of responsibility. Q: Why does the law say “tried in the proper court?” A: It is because proper court will now be the MTC or the RTC, depending on the assessed value of the property. If the assessed value is P20,000 or less, MTC yan. If it is over P20,000, it should be in the RTC. Now in the case of forcible entry and unlawful detainer, paragraph 2 will apply – that is, MTC – it is in the municipality or city wherein the real property involved or a portion thereof is situated. So, kung saan iyong real property, doon din ang venue. Now, it is possible that for a property be in the boundary of two towns. Example: one half is part of Davao City and the other half is in the municipality of Panabo. So, if you would like to file a case for forcible entry against somebody, you have two choices. You can file it in the MTC of Panabo or in the MTC of Davao City. Now, let’s go to personal actions.

VENUE OF REAL ACTIONS Sec. 2. Venue of personal actions. All other actions may be commenced and tried where the plaintiff or any of the principal plaintiffs resides, or where the defendant or any of the principal defendants resides, or in the case of a non-resident defendant where he may be found, at the election of the plaintiff. (2[b]a)

Iyan ang tinatawag natin na TRANSITORY ACTION . The venue will now depend on the residence of the parties. In the civil action, the venue is (1) the place where the plaintiff resides or (2) where the defendant resides, at the election of the plaintiff. So, puwede kang pumili sa dalawa. Now, suppose, there are four (4) plaintiffs and 4 defendants and the 4 plaintiffs reside in 4 different cities or municipalities. So ang choice mo ng venue ay walo (8) becuae the law says, “where the plaintiff or any of the principal plaintiffs or where the defendant or any of the principal defendants reside…” So, kung maraming defendants at iba-iba ang lugar at maraming plaintiffs, the residence of each one could be the proper venue. NOTE: PRINCIPAL PLAINTIFF, PRINCIPAL DEFENDANT. Because there is such a thing as nominal defendant and nominal plaintiff – iyun bang formal lang. EXAMPLE of a nominal party: When a party wants to file a case to annul an execution sale of to annul a levy, normally it pleads the sheriff as party. But the sheriff is not the principal party but is only a NOMINAL PARTY. So, the residence of the sheriff is not considered the sheriff being a nominal party only. So, just imagine if there are 4 plaintiffs and 4 defendants, iba-ibang cities. There 8 choices of venue. That is the original concept of forum shopping. I will cite the original case which traced the history of forum-shopping na kung saan ako convenient, doon sko mag-file. That is the original concept – which is legal and legitimate. The trouble is, the concept of forum shopping degenerated into a malpractice , where a lawyer, mag-file ng case, sabay-sabay. Ayan! That is why there is a SC case which I will later discuss where Justice Panganiban cited the history of forum shopping. (Dean is referring to the case of FIRST PHILIPPINE INTERNATIONAL BANK vs. CA (252 SCRA 259), January 24, 1996) Forum shopping is legitimate and valid but the trouble is, the practice acquired another unsavory meaning, where a lawyer will file simultaneous cases. Kaya nga nasira – from a legitimate practice to an act of malpractice. That is the history of forum shopping. However, there are instances when it is easy to distinguish whether the action is real or personal and there are also instances when it is difficult. EXAMPLE: An action for annulment of a contract of sale or rescission of contract of sale of real property. Generally, an action for annulment or rescission is a personal action. But suppose , I will file a complaint to annul or rescind a contract of a deed of sale over a parcel of land. I’m from Davao and you’re from Davao. But I would like to annul the sale of a land which I made to you one year ago which land is situated in Digos and the purpose of my action is to recover the ownership of that land.

Then, that is a real action because the primary object of the suit is to recover the ownership of real property, di ba? It seems to be personal but in reality it is a real action. So the venue is governed by Section 2. But there are also actions na King tingnan mo parang real but in reality, they are personal actions. Like what happened in the case of LA TONDEÑA DISTILLERS INC vs. PONFERRADA 264 SCRA 540 [1996] FACTS: Judee entered into a contract where she committed herself to sell her land to Maying. And Judee even placed a lis pendens on the property. But later Judee said, “Gua bo ai!” (chinese for ‘ayoko na!’) Nag-back out ba! So Maying will file a case against Judee for specific performance to compel her to sign the deed of sale. Ang question diyan, ano ba ito? real or personal action? Because if it is real action, the complaint should be filed in the place where the land is situated. If the action is personal, it can be filed in Davao City where both of them are residents. ISSUE: Is this real or personal action? HELD: It is a PERSONAL ACTION because you are not questioning my ownership. Here, the plaintiff recognizes that the defendant is still the owner. Kaya nga he is still filing the case to compel him to sell. Thus, it should be filed in the residence of the parties. “The complaint is one for specific performance with damages. Private respondents do not claim ownership of the lot but in fact recognized title of defendants by annotating a notice of lis pendens. In one case, a similar complaint for specific performance with damages involving real property, was held to be a personal action, which may be filed in the proper court where the party resides. Not being an action involving title to or ownership of real property, venue, in this case, was not improperly laid before the RTC of Bacolod City.” (Adamos vs. Tuazon 25 SCRA 30 [1968]) So it is not really an action affecting title or ownership because you are still recognizing the title of the owner of the property. It is different when I’m no longer recognizing it, like recovery or reinvidicatoria. These are gray areas, or sometimes very hard to distinguish whether the action is real or personal. Q: [Taken from Remedial Law Reviewer by Nuevas] Where several or alternative reliefs are sought in an action, and the reliefs prayed for are real and personal, how is venue determined? A: Where several or alternative reliefs are prayed for in the complaint, the nature of the action a s real or personal is determined by the primary object of the suit or by the nature of the principal claim. Thus, where the purpose is to nullify the title to real property, the venue of the action is in the province where the property lies, notwithstanding the alternative relief sought, recovery of damages, which is predicated upon a declaration of nullity of the title. (Navarro vs. Lucero, 100 Phil. 146) Where a lessee seeks to establish his right to the hacienda, which was subsequently sold, for the purpose of gathering the crops thereon, it is unnecessary to decide whether the crops are real or personal property, because the principal claim is recovery of possession of land so that he may gather the fruits thereof. (LTC vs. Macadaeg, 57 O.G. 3317) Now, going back to Section 2.

RESIDENCE OF THE PARTIES We will now go the issue of residence. Where is the residence of the parties? Because residence in law could mean DOMICILE OR LEGAL RESIDENCE, it could be ACTUAL OR PHYSICAL RESIDENCE. Alam mo, iyong legal domicile, you may not be there but there is intention to go back there someday. Alright, with the exception of only one case, the word ‘residence’ and ‘venue’ has been uniformly interpreted by the SC to mean ACTUAL or PHYSICAL RESIDENCE not legal domicile. Alright, there are so many case already: CO vs. CA (70 SCRA 296); FULE vs. CA (14 SCRA 189); HERNANDEZ vs. RURAL BANK OF THE PHIL (81 SCRA 75); RAYMOND vs. CA (166 SCRA 50); ESCUERTE vs. CA (193 3CRA 54). Pareho ang ruling niyan. EXCEPT for one case decided way back in 1956 – the case of CORRE vs. CORRE 100 Phil 221 FACTS: An American who resides in San Francisco who came to the Philippines rented an apartment in Manila to sue his wife who is a Filipina. The wife is from Mindanao. And then the American husband filed the case in Manila because residente man daw siya in Manila – because he rented daw an apartment in Manila. Now, if you follow the rule, tama man ang husband ba. HELD: You are not a resident of Manila. Your residence is in San Francisco – that is your domicile. So that is to compel the American to file the case in the residence of the wife rather than the wife going to Manila. So the case of CORRE is the only exception where the SC said, “residence means domicile.” All the rest, physical! In the case of CORRE, maybe the SC there was just trying to help the Filipina. If we will interpret the rule on venue as physical, it is the Filipina who will be inconvenienced. If we say legal residence is the venue, it is the American husband who would be forced to go to the Mindanao to file. And we should favor our own kababayan. Yan siguro ang nangyari because that was the only exception eh. RESIDENCE OF A CORPORATION Under Rule 1, a corporation can sue and be sued. But what is the residence of a corporation? Under the corporation law, the residence of a corporation is the place where its head or main office is situated – yung head office ba which is usually stated in the articles of incorporation. Now, let’s go to some interesting cases on this issue: CLAVECILLA RADIO SYSTEM vs. ANTILLON 19 SCRA 39 [1967] FACTS: Clavecilla was sued in Cagayan de Oro City. Clavecilla questioned the venue

because its head office is in Manila. The plaintiff argued that it can be sued because it has a branch in Cagayan. ISSUE: Is a corporation a resident of any city or province wherein it has an office or branch? HELD: NO. Any person, whether natural or juridical, can only have one residence. Therefore, a corporation cannot be allowed to file personal actions in a place other than its principal place of business unless such a place is also the residence of a co-plaintiff or defendant. The ruling in the case of ANTALLON was reiterated in the 1993 case of YOUNG AUTO SUPPLY CO. vs. COURT OF APPEALS (223 SCRA 670) Because the law said “where the plaintiff or any of the principal plaintiffs..” So if the corporation is suing with someone from Davao, even if my head office is in Manila, I can file because of the residence of my co-plaintiff or the residence of the defendant. But outside of that, a corporation cannot sue outside of its head office because its residence is there. That is the case of YOUNG AUTO SUPPLY. “OR IN THE CASE OF A NON-RESIDENT DEFENDANTS WHERE HE MAY BE FOUND” Suppose the defendnt is not residing here in the Philippines but is just on vacation and you want to sue him. What is now the point of reference? Did you notice the phrase “or in the case of a non-resident defendants where he may be found.” Now what does that mean? It means to say that the defendant is not actually residing in the Philippines but he is temporarily around because he is found in the Philippines. Example is a balikbayan who is still on vacation. PROBLEM: Suppose a Filipino who is already residing abroad decided to come back this Christmas for a vacation. When he landed at the Manila Domestic Airport and you are his friend and the first thing he requested you is, “wala pa akong Philippine peso, puro pa dollars. So pahiramin mo muna ako. I will pay you in one week’s time once I have my dollars exchanged to pesos.” How much do you want? He borrowed from you P15,000.00. One week later, still he has not paid you and obviously it seems he will not pay you. So you decided to sue him while he is around to collect the case advance of the P15,000 that you gave him. So, where is the venue of the action? A: The law says, generally where the plaintiff resides or where the defendant resides. The trouble is, the defendant has no residence here because he is already residing abroad. But he is temporarily here in the Philippines. You can sue him where he may be found. If he decides to stay in Cebu, that is where the proper venue rather his permanent residence. So where he may be found is the alternative venue. The phrase “where he may be found” means where he may be found here in the Philippines for a non-resident defendant but temporarily staying in the Philippines. Q: Suppose a defendant is a non-resident and he is not even here. Like for example, your neighbor borrowed money from you and the nest thing you heard is that he left the country. He has already migrated to the states. Of course you know his address there. Can you sue him in the Philippine court, a defendant who is no loner residing here and is not found in the Philippines? A: NO, you cannot. Charge it to experience.

Q: Why can you not sue a person not residing here in the Philippines and is not found here in the first place? A: There is no way for Philippine courts to acquire jurisdiction over his person. Otherwise, he will not be bound by the decision. But in our discussion on the element of jurisdiction: subject matter, person, res and issues, I told you that the res or the thing in dispute is important because sometimes it takes the place of jurisdiction over the person of the defendant. So even if the Philippine court cannot acquire jurisdiction over the person of the defendant but the subject of the controversy (res) is in the Philippines, then the nonresident defendant can also be sued in the Philippines. The court can now acquire jurisdiction over the res, subject and since the res is here, the judgment can be enforced. It is not a useless judgement anymore. EXAMPLE: He is there but he is the owner of a piece of land here. I want to file a case to recover ownership over the land here in the Philippines, yaan! Q: Can I sue the non-resident defendant? A: YES under Section 3. Even if the person is abroad, the res of the property in dispute is here and if he loses the case the judgment can be enforced – transfer the property to you. So it is not a useless judgment. That is what Section 3 is all about. Sec. 3. Venue of actions against nonresidents. - If any of the defendants does not reside and is not found in the Philippines, and the action affects the personal status of the plaintiff, or any property of said defendant located in the Philippines, the action may be commenced and tried in the court of the place where the plaintiff resides, or where the property or any portion thereof is situated or found, (2[c]a)

Q: What is the difference between the non-resident defendant in Section 2 and the non-resident defendant in Section 3? A: In Section 2, the non-resident defendant may be found in the Philippines. But in Section 3, he does not reside and is not found in the Philippines. So, physically, he is not around. Q: What actions can be filed against a non-resident defendant who is not even found here in the Philippines? A: There are two (2): 1.) The action that affects the personal status of the plaintiff; or 2.) The action affects the property or any portion thereof of said defendants is located here in the Philippines. ACTION THAT AFFECTS THE PERSONAL STATUS OF THE PLAINTIFF EXAMPLE: A young child was abandoned by his illegitimate father. The illegitimate father left the Philippines for good. The son wants to file a case against the father for compulsory recognition, at least to improve his status. Q: Can the child file a case for compulsory acknowledgment here in the Philippines against the father for compulsory acknowledgment? A: YES because the action involves the person status of the plaintiff. The res is the status of the plaintiff who happens to be in the Philippines.

THE ACTION AFFECTS THE PROPERTY OR ANY PORTION THEREOF OF SAID DEFENDANTS IS LOCATED HERE IN THE PHILIPPINES Example: The defendant who is already abroad owns a piece of land located here in the Philippines and I want to recover the ownership of the piece of land. Q: What is the res? A: The res is the land which is situated here in the Philippines. Therefore I can sue that defendant even if he is there because the court can acquire jurisdiction over the res. In order to validly sue in the Philippine court, a defendant who is no longer residing here and is no longer found here, the action must be: 1.) action in rem; or 2.) at least quasi-in rem, because if the action iis for compulsory recognition, that is actually an action in rem. If the suit in involves a property here in the Philippines, at least that is an action quasi-in rem. But if the action is purely in personam, then there is no way by which you can sue him. Example is an action to collect an unpaid loan. Q: Where is now the proper venue of the action against the non-residents? A: The law says where the plaintiff resides – action which affects the personal status of defendants, where the property of the defendant located here in the Philippines

Sec. 4. When rule not applicable. - this rule shall not apply a)In those cases where a specific rule or law provides otherwise; or b)Where the parties have validly agreed in writing before the filing of the action on the exclusive venue thereof. (3a, 5a)

A.) IN THOSE CASES WHERE A SPECIFIC RULE OR LAW PROVIDES OTHERWISE; So, when there is a special rule or law on venue which applies only to certain types of cases, then that rule will apply rather than Rule 4. Q: What cases which provides for venue of the action which may be different from what Rule 4 says? A: The following: c.) A civil action arising from LIBEL under Article 360 of the Revised Penal Code. Libel could give rise to a civil action for damages. It is considered under the RPC as one of the independent civil actions. The criminal action for libel shall be filed simultaneously or separately with the RTC of the: VII. province or city where the libelous article is printed and first published; or VIII. where any of the offended parties actually resides at the time of the commission of the offense. If one of the offended party is a public officer, whose office is in the City of Manila

at the time of the commission of the offense, the action shall be filed (a) in the RTC of Manila, or (b) in the RTC of the province where he held office at the time of the commission of the offense. d.) Section 5 (4), Article VIII, 1987 Constitution – The SC may order a change of venue or place of trial to avoid a miscarriage of justice as what happened in the case of Mayor Sanchez. So these are the examples on the special rules. Alright… B.) WHERE THE PARTIES HAVE VALIDLY AGREED IN WRITING BEFORE THE FILING OF THE ACTION ON THE EXCLUSIVE VENUE THEREOF. So, it is possible that A and B will enter into contract providing for suits involving the violation of the contract, the venue shall be in this particular place. Take note that the stipulation must be in writing and it is there even before the filing of the action. Alright… EXAMPLE: Contracts of banks and other financing companies. Sometimes it says there that in case of suits arising out of these contract, the action shall be filed in the City of Makati or Manila which is neither the residence of the parties. Q: Now, can we agree to file a case other that were the parties reside? A: YES because the law says, we can agree on a place where the action will be filed provided it is in writing and it is stipulated even before the filing of the action. POLYTRADE CORP. vs. BLANCO 30 SCRA 187 FACTS: Charles and Joshua are both residing here in Davao City. Joshua borrowed money from Charles, and Joshua executed a promissory note in favor of Charles which says, “I promise to pay Charles the sum of P200,000 one year from today. In case of a suit arising from this promissory note, the parties agree to sue and be sued in the City of Manila.” When the note matured, Joshua did not pay. Charles filed a case to collect the unpaid loan here in Davao City. Charles challenged the venue. According to Charles, the venue is correct because both of us are residing here in Davao City and under Rule 4, the venue is where I reside or you reside, at my option. Both of us are residing here so I sued you here. Defendant Joshua says, no since there is a stipulation we both agreed upon that in cases of litigation, the parties agree to sue and be sued in the City of Manila. So Manila is the correct venue. ISSUE: Who is correct in this case? A the plaintiff or B the defendant? HELD: Plaintiff is correct notwithstanding the stipulation. Why? When the parties stipulated on the venue of the civil action, other that those found in the Rule of Court, the stipulated venue is considered merely as an ADDITIONAL venue in addition to where the parties reside. Unless the stipulation contains RESTRICTIVE words which shows the intention of the parties to limit the place stipulated as the exclusive venue.

In other words, the parties agree to sue and be sued in the City of Manila, even if so, the venue of the action is where the plaintiff resides or where the defendant resides in accordance with Rule 4, and the third venue is according to the stipulation of the parties. So, the case here has three (3) venues of action. Mamili ka sa tatlong venues because there is nothing in the agreement that the parties intended that Manila is the only exclusive venue. There is no restrictive word. I will change the PROBLEM: Suppose the stipulation contains this statement, “in case of suit arising out of this promissory note or contract, the parties agree to sue and be sued exclusively in the City of Manila,” yaan! Or, “to sue and be sued in the City of Manila only.” The addition of the words “exclusively” or “only” shows the intention of the parties to limit venue of the action only in that place. Therefore you cannot apply Rule 4, Sections 1-3. So, in this case, Joshua can move to dismiss the case because the venue is exclusive. So in the second exception where there is an agreement in writing on the exclusive venue, the word exclusive is very important as taken in the ruling in POLYTRADE vs. BLANCO. So if the venue is not exclusive, Rule 4 still applies and the stipulated venue is just an additional one. Of course, there are stipulations which you can see clearly the intention of the parties to limit the venue only in that place. But sometimes, there are stipulations in which it is difficult to decipher the real intention of the parties whether exclusive or not. Examples of clear stipulations which calls for the application of the POLYTRADE ruling: in the City of Manila only or the suit shall be filed in the City of Manila and in no other place. However, there are cases in which you cannot find the word exclusive or the word only, and yet the SC said it seems the intention of the parties to limit the venue as exclusive as what happened in the 1994 case of GESMUNDO vs. JRB REALTY CORP 234 SCRA 153 FACTS: This involves a lease contract which contain a stipulation on venue. Here is the language of the lease contract: “venue for all suits, whether for breach hereof or damages or any cause between the LESSOR and the LESSEE, and persons claiming under each, being the courts of appropriate jurisdiction in Pasay City…” In other words, if there is a case, they agreed to file it in the court of Pasay City. ISSUE: Is this intention of the parties to make Pasay City an exclusive venue? HELD: Pasay City is the exclusive venue. “It is true that in Polytrade Corporation v. Blanco, a stipulation that ‘The parties agree to sue and be sued in the City of Manila’ was held to merely provide an additional forum in the absence of any qualifying or restrictive words. But here, by laying in Pasay City the venue for all suits, the parties made it plain that in no other place may they bring suit against each other for breach contract or damages or any other cause between them and persons claiming under each of them.” In other words, the intention of the parties is to make Pasay City the exclusive venue.

There are some cases in the SCRA where there is no restrictive word but the SC interpreted it as restrictive. So it is in conflict with the POLYTRADE ruling because in POLYTRADE, the stipulated place must be exclusive. Among the cases which seems to conflict with the ruling in POLYTRADE are the following: BAUTISTA vs. DE BORJA (18 SCRA 476) HOECHST vs. TORRES (83 SCRA 297) This conflict was resolved in the case of PHIL. BANKING vs. TENSUAN (228 SCRA 385) where the SC ruled that the ruling in BAUTISTA vs. DE BORJA and HOECHST PHILS. vs. TORRES has been rendered obsolete by the POLYTRADE ruling and subsequent cases reiterated it. So the ruling in POLYTRADE is the correct ruling. Forget what the SC said in the abovementioned two cases. SWEET LINES vs. TEVES 83 SCRA 361 FACTS: This is a Cagayan de Oro case which involves Sweet Lines, a shipping company with the head office in Cebu. The respondent Teves is the former City Fiscal of Davao City, former Mayor and became judge of CFI of Cagayan de Oro City. There was a group of passenger who rode on the Sweet Lines bound for Cebu City. During the trip, they were given a crude treatment by the officers of the vessel. When they came back in Cagayan de Oro City, they filed a suit for damages against Sweet Lines. They file dht ecase in the former CFI, now RTC, of Cagayan de Oro City because the plaintiffs are residents of Cagayan de Oro City. Sweet Lines filed a motion to dismiss questioning the venue of the action because in the ticket issued by Sweet Lines, it is stipulated that “…in case of a civil action arising from the contract of carriage, the venue of the action shall be the City of Cebu ONLY and in no other place.” So there is a restrictive word. Obviously the lawyers of Sweet Lines knew about Polytrade because they moved to dismiss the case citing this case. Judge Teves denied the motion to dismiss the case despite the stipulation. According to him, it is unfair. If I will dismiss the case based on this stipulation, the aggrieved parties will be discouraged in going to Cebu. It is very expensive and they will be inconvenienced. But, if the case will go on in Cagayan de Oro, it will not inconvenienced Sweet Lines because they have their branch office, their manage and their own lawyer. ISSUE: Whether or not Cagayan de Oro is the proper venue. HELD: YES. Judge Teves was correct in not dismissing the case. First of all, the stipulation is placed in the ticket. These people never even bothered to read this. Nakalagay na iyan diyan eh. So either you take it or you leave it. Therefore, the passengers did not have a hand in preparing that stipulation. So the contract is a contract of adhesion. Second, again for the sake of equity, to be fair that these poor people will be compelled to go to Cebu to file a case there. They will be discouraged. It is very expensive to go back and forth to Cebu. Whereas, Sweet Lines has the resources, the means, the lawyers here in Cagayan to litigate. Therefore, it would be inequitable to compel them or to apply the stipulation there.

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

So then, what is the main distinction? Q: Distinguish JURISDICTION from VENUE. A: The following are the distinctions: 3.)

JURISDICTION refers to the authority the court to hear the case, whereas VENUE refers only to the place where the action is brought or tried;

4.)

JURISDICTION over the subject matter cannot he waived; whereas VENUE is waivable and can be subject of agreement;

5.)

JURISDICTION is governed by substantive law – Judiciary Law, BP 129; whereas VENUE is governed by procedural law – Rule 4 of the Rules of Court;

6.)

JURISDICTION refers to the relation of the parties to the court; whereas VENUE refers to the relation between the parties; and

7.)

JURISDICTION limits the court’s authority; whereas VENUE limits plaintiff’s rights.

BAR QUESTION: State in what instance the jurisdiction and venue coincide.

A: In CRIMINAL CASES because in criminal cases, venue is territorial jurisdiction. But in civil cases, jurisdiction and venue are two different things. They do not coincide.

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Rule 5

UNIFORM PROCEDURE IN TRIAL COURTS SECTION 1. Uniform Procedure – The procedure in Municipal Trial Courts shall be the same as in the Regional Trial Courts, except (a) where a particular provision expressly or impliedly applies only to either of said courts, or (b) in civil cases governed by the Rule on Summary Procedure. (n)

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

In our structure, we already illustrated the hierarchy of courts. Metropolitan Trial Courts are only in Manila. Municipal Trial Courts are in cities and municipalities. When the Rule says ‘Municipal Trial Court’, it already includes Metropolitan Trial Courts, MTCC, MCTC. So that we will not be repetitious.

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PROCEDURE IN THE REGIONAL TRIAL COURTS Rule 6 KINDS OF PLEADINGS SECTION 1. Pleadings Defined. Pleadings are the written statements of the respective claims and defenses of the parties submitted to the court for appropriate judgment. (1a)

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

Section 2 tells us what are the pleadings allowed by the Rules of Court. In a civil case, there are actually two (2) contending parties: (1) the person suing or filing claim; and (2) the person being sued. Q: If you are the claimant or the plaintiff, in what pleading do you assert your claim? A: Complaint, counterclaim, cross-claim, third-party complaint or fourth-party complaint, etc. These are the different pleadings allowed by the Rules. Of course, maybe, the only thing that you are familiar with is the complaint. As we go over the Rules, you will understand what do you mean by those pleadings. On the other hand, if you are the party sued, you also have to file your pleading or your defense. It

is known as the ANSWER. The defenses of a party are alleged in the answer to the pleading asserting a claim against him. If I file a complaint against you, in response, you will file an answer. In last paragraph, an answer may be responded by a REPLY. I file a complaint. You file an answer invoking your defenses. If I want to respond to your defenses, I will file a REPLY. COMPLAINT

ANSWER

REPLY

That is the pattern. Q: Summarizing all of them, what are the know pleadings recognized by the law on Civil Procedure? A: There are seven (7) types of pleadings: 20.) Complaint; 21.) Answer; 22.) Counterclaim; 23.) Cross-claim; 24.) Reply 25.) Third (Fourth, Fifth, etc.) – Party Complaint; 26.) Complaint-in-Intervention. Let us go over each one of them. How do they function? A.) COMPLAINT Sec. 3. Complaint – The complaint is the pleading alleging the plaintiff’s cause or causes of action. The names and residences of the plaintiff and defendant must be stated in the complaint.

Q: Define complaint. A: COMPLAINT is the pleading where the plaintiff will allege his cause or causes of action. A complaint is also called the INITIATORY PLEADING. Because it is actually the first pleading filed in court. It is the pleading that starts the ball rolling. It is the pleading that initiates the civil action. Of course, the names and residences of the defendants must be stated in the complaint. Do you know the pattern for a complaint? For EXAMPLE: Mr. Pito wants to sue Mr. Peloton to collect an unpaid loan. Mr. Peloton borrowed money from Mr. Pito and refused to pay. Normally, it starts with an introduction: “Plaintiff, through counsel, respectfully alleges that…” Then it is followed by paragraphs which are numbered. For instance: Illustration: 3.) Plaintiff Mr. Pito, of legal age, is a resident of Matina, Davao City; whereas defendant Mr. Peloton also of legal age, a resident of Bajada, Davao City; 4.) On Nov. 7, 1996, defendant secured a loan from plaintiff the sum of P30,000.00 payable within one (1) year form said date with legal interest;

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

I am the plaintiff. I file the complaint. You received the complaint. You are now required to respond. Q: What is the pleading where you respond? A: It is called the ANSWER. That is where you will state your defenses. That is why an ANSWER is called a Responsive Pleading. Q: Why is it called “Responsive Pleading”? A: Because it is the pleading which is filed in response to the complaint. It is where you respond to the cause of action. That is where you state your defenses. It is something which is not found in Criminal Procedure. A: NO, there is no such thing as Answer in Criminal Procedure. Q: If you are charged with a crime, how do you answer? A: By pleading guilty or not guilty. That is the answer. When you plead guilty, tapos na! If you say not guilty, trial will proceed. No writing of defenses. No written answer in criminal cases. It (pleadings) only applies to civil cases where you allege your defenses. Q: What are the defenses under the Rules? A: That is Section 5. Sec. 5 – Defenses – Defenses may either be negative or affirmative. A NEGATIVE DEFENSE – is the specific denial of the material fact or facts alleged in the pleading of the claimant essential to his cause or causes of action. An AFFIRMATIVE DEFENSE – is an allegation of a new matter which, while hypothetically admitting the material allegations in the pleading of the

claimant, would nevertheless prevent or bar recovery by him.

Defenses may either be negative or affirmative. b.) Answer; NEGATIVE DEFENSES; Q: Define an NEGATIVE defense. A: Paragraph [a]: Briefly, it is a defense of specific denial where you deny the statement in the complaint and you state the facts and the reason/s on which your denial is based. In a negative defense, the defendant specifically denies a material fact or facts alleged in the pleading of the claimant essential to his cause of action. EXAMPLE: The complaint says in paragraph 2, “On November 6, 1996, defendant secured a loan from plaintiff in the amount of P30,000.00 payable one (1) year from November 6, 1996. The defendant will say in his answer: “Defendant specifically denies the allegation in Paragraph 2 of the complaint. The truth of the matter being he never secured any loan from plaintiff because he does not even know the plaintiff and he did not see his face before.” That is a negative defense. You said I borrowed money from you. “No, I don’t even know you. I have not seen you before.” He denies the existence of the loan. That is known as the negative defense. It is a denial of a material fact which constitutes the plaintiff’s cause of action. That’s why it is briefly called a “Defense of Specific Denial”. b.) Answer; AFFIRMATIVE DEFENSES Q: Define an AFFIRMATIVE defense. A: In paragraph (b), it is briefly called a defense of confession and avoidance because, while the defendant may admit the material allegation in the complaint, however, he will plead a new matter which will prevent a recovery by the plaintiff. I admit what you are saying in the complaint but still you are not entitled to recover from me. EXAMPLE: The defendant may admit what you are saying in your complaint. I borrowed money from you – admitted! The account is due – admitted! I have not paid you – admitted. “However, you cannot collect from me because the account has already prescribed.” Meaning, I will admit what you are saying but just the same, I am not liable. Kaya nga, you confess, eh. I confess to what you say but I still avoid liability. Examples of affirmative defenses are: fraud, statute of limitations, release, payment, illegality, statute of frauds, estoppel, former recovery, discharge in bankruptcy, and any other matter by way of confession and avoidance. Suppose, you sue me for damages arising from breach of contract. I admit I entered into a contract but I have no obligation to comply because the contract is null and void. Or, the contract is illegal. Or, the stipulation is contrary to public policy, therefore, I am not bound. I admit what you say but I am not liable because of the illegality of the subject matter of the contract.

Or, you sue me because according to you, I entered into a contract and I refused to comply. So, you file a case against me for specific performance or for damages. Then I say: “It’s true that I entered into a contract with you. It’s true I did not comply. But there is nothing you can do because the contract is oral and the contract is covered by the statute of frauds. In order to be enforceable, we should have reduced it into writing. Since we never reduced it into writing, I am not bound to comply.” c.) COUNTERCLAIMS Sec. 6. Counterclaim. - A counterclaim is any claim which a defending party may have against an opposing party. (6a)

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

Q: Why is it that law allows the defendant to counter sue by way of counterclaim the plaintiff? A: The purpose there is apparently TO AVOID MULTIPLICITY OF SUITS. If you have a cause of action against me, I will sue you, in the future it will also lead to another case where you will also sue me. DEBORJA vs. DEBORJA 101 Phil 911 FACTS: A died, of course, what survives after that is the estate. X was appointed as administrator or legal representative. W owes a sum of money to the estate of A and X filed a case against W to collect the unpaid loan. X is called the REPRESENTATIVE PARTY under Rule 3, Section 3. W filed an answer and that W has a claim against X. W filed a counterclaim against X in the case. HELD: The counterclaim is improper. When X sued W, X is not suing in his own personal capacity. He is acting as administrator of the estate of A. The real plaintiff is the estate of A. X is just the legal representative. Therefore, you cannot file a counterclaim against X in the latter’s personal capacity when X is suing W in a representative capacity. The SC said that the plaintiff should be sued in a counterclaim in the SAME CAPACITY that he is suing the defendant. That’s a principle to remember. PERMISSIVE & COMPULSORY COUNTERCLAIMS Sec. 7 – Compulsory counterclaim – A compulsory counterclaim is one which, being cognizable by the regular courts of justice, arises out of or is connected with the transaction or occurrence constituting the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of who the court cannot acquire jurisdiction. Such a counterclaim must be within the jurisdiction of the court both as to the amount and the nature thereof, except that in the original action before the Regional Trial Court, the counterclaim may be considered compulsory.

Under the Rules, there are two types of counterclaim. 1) COMPULSORY COUNTERCLAIM and, 2) PERMISSIVE COUNTERCLAIM. Q: How do you distinguish one from the other? When is a counterclaim compulsory and when is it permissive? A: The ELEMENTS of a COMPULSORY COUNTERCLAIM are found in Section 7. If we will outline Section 7, we will see that a counterclaim is compulsory if the following requisites are present: 1.) It is cognizable by the regular courts of justice; 2.) It arises out of or it is connected with a transaction or occurrence constituting a subject matter of the opposing party’s claim; 3.) It does not require for its adjudication the presence of third parties of who the court cannot acquire jurisdiction; 4.) It must be within the jurisdiction of the court, both as to the amount and the nature thereof, except that in an original action before the RTC, the counterclaim may be considered compulsory regardless of the amount; and

5.) The defending party has a counterclaim at the time he files his answer. The fifth requisite is not found in Section 7 but in Rule 11, Section 8: Rule 11, Sec. 8. Existing counterclaim or cross-claim. - A compulsory counterclaim or a cross-claim that a defending party has at the time he files his answer shall be contained therein. (8a, R6)

Another way of saying it is, the counterclaim has already matured at the time he files his answer. That is the fifth requisite. Q: What happens if one of these requisites is missing? A: If one of the five requisites is missing, the counterclaim is permissive in nature. We will discuss the elements of a compulsory counterclaim one by one. First Element: A COUNTERCLAIM TO BE COMPULSORY MUST BE COGNIZABLE BY THE REGULAR COURTS. In other words, if you file a complaint against me and I have a counterclaim against you in the Labor Code, then it cannot be classified as a compulsory claim because how can I invoke against you a claim which is cognizable by the NLRC before the RTC? Second Element: IT ARISES OUT OF OR IT IS CONNECTED WITH A TRANSACTION OR OCCURRENCE CONSTITUTING A SUBJECT MATTER OF THE OPPOSING PARTY’S CLAIM The second requisite is the most important. A counterclaim, to be compulsory, must arise out of or connected with the transaction or occurrence constituting a subject matter of the opposing party concerned. It must arise out of or is connected with a transaction or occurrence constituting a subject matter of the opposing party’s claim. It must be logically related to the subject matter of the main action. So the rule is, if the counterclaim did not arise out of or is not connected with the transaction or occurrence constituting the subject matter of the opposing party’s concern, the counterclaim must be permissive in nature. PROBLEM: Emily filed a case against Regina for damages arising from a vehicle collision. According to Emily, the case of the accident is the negligence of the defendant in driving her car. Her car bumped the car of Emily and was damaged. So, Emily is holding Regina liable for the damage on her car. Regina denied that she was negligent. According to Regina, “No, I am not negligent. As a matter of fact, you (Emily) were the one negligent, and because of that negligence, my car was also damaged. So you should be the one to pay damages.” Parang ganyan ba. Q: Is the counterclaim of Regina arising out of or is connected with the transaction or occurrence constituting the subject matter of the opposing party? A: YES because we are talking of the same bumping. You bumped my car, you say I bumped your car. So we are talking of the same event or transaction.

PROBLEM: Thea G. (as in ‘Gamay’) files a case against me for recovery of a piece of land. According to her, she is the owner of the land which I’m occupying. Now, I file my answer, and then I said, “Ms. Guadalope, I spent a lot of money for necessary expenses to preserve the land. You are also liable to reimburse me for the necessary improvements expenses I introduced on the land.” Under the law on Property, a defendant or possessor is entitled to reimbursement for necessary improvements and expenses. So she is trying to recover the piece of land, I am now asking her to reimburse me for all necessary expenses that I spent on the land. Q: Is my counterclaim arising out of or connected with the subject matter of your claim or not? A: YES. We are talking of the same subject matter. Thus, the counterclaim is compulsory. PROBLEM: Thea G. files a case against me for recovery of a piece of land. My counterclaim against her is damages arising from a vehicular collision. Q: Is my counterclaim arising out of a subject matter of your action? A: NO. It is completely different. Thus, that is a permissive counterclaim. So, those are the examples. That is why, the second requisite is the most important element – a counterclaim must arise out of or is connected with the subject matter or a transaction or the event or the main action. By the way, the second element is considered the most important element of compulsory counterclaim because according to the SC in the 1992 case of MELITON vs. COURT OF APPEALS 216 SCRA 485 HELD: “It has been postulated that while a number of criteria have been advanced for the determination of whether the counterclaim is compulsory or permissive, the one compelling test of compulsoriness is the logical relationship between the claim alleged in the complaint and that in the counterclaim, that is, where conducting separate trials of the respective claims of the parties would entail a substantial duplication of effort and time, as where they involve many of the same factual and/or legal issues.” Q: What is the importance of determining whether the claim is compulsory or permissive? A: A compulsory counterclaim must be invoked in the same action. Iit cannot be the subject matter of a separate action. Unlike in permissive where you have the choice of invoking it in the same case, or in a separate action, compulsory counterclaim must be invoked in the same action otherwise it will be barred. That is found in Rule 9, Section 2: Rule 9, Sec. 2. Compulsory counterclaim, or cross-claim, not set up barred. - A compulsory counter-claim or a cross-claim, not set up shall be barred. (4a)

So if I do not file a counterclaim against you in the same action, under Rule 9, the counterclaim is barred forever. I cannot claim it against you in any other case in the future. But if the counterclaim is permissive and I will not raise it as a counterclaim, it is not barred. It can still be invoked in another case against you. It can be a subject matter of a separate action. Let us try to apply that principle to the case cited. PROBLEM: Vanessa files a case against me for damages arising from vehicular collision. Her car is damaged, my car is damaged. In my answer, I denied negligence but I did not claim from her the

damage to my vehicle. After the trial, court found the plaintiff at fault. So, the complaint of Vanessa was dismissed. So panalo ako. Balikan ko siya ngayon. This time I will file a case against her to recover damages for the damage to my car since I was able to prove that she was negligent and not me. Q: What will happen to my case now? A: My case will be dismissed because I did not raise that cause of action as a counterclaim. Compulsory yan eh. So since you did not raise, is barred forever. PROBLEM: Aileen files a case against me for recovery of a piece of land. After trial, talo ako. The court said that I should return the land to her. So isinauli ko na. Ngayon, kailangan bayaran niya naman ako for the necessary expenses. So, I will file a case against her. She moved to dismiss – barred, because I should have raised that as a counterclaim. I cannot file another case involving that cause of action. That is the effect of failure to raise the compulsory counterclaim in the case filed against you. PROBLEM: Now, suppose the counterclaim is PERMISSIVE. Pauline files case against me for recovery of land. My cause of action against her is damages arising against a vehicular collision. Obviously, the counterclaim is permissive. Q: Is the counterclaim allowed? A: Yes, allowed. Q: Pauline will file a case against me for damages arising from vehicular collision. My decision is not to file a counterclaim but to file another case against her. Is that allowed? A: Yes, that is allowed. Meaning, I may or may not raise it as a counterclaim because it is permissive. I am permitted to raise it as a counterclaim but I am not obliged. I may decided to file another action against you. That is the importance between a compulsory counterclaim and a permissive counterclaim. Third Requisite: IT DOES NOT REQUIRE FOR ITS ADJUDICATION PRESENCE OF THIRD PARTIES OF WHOM THE COURT CANNOT ACQUIRE JURISDICTION. Meaning, if my counterclaim against you will involve the presence of an indispensable party who is, let’s say, abroad, and therefore, the court cannot acquire jurisdiction over him, and since it involves an indispensable party, I will not raise it as a counterclaim. Q: Will it be barred? A: NO. If I will file my counterclaim, it will involve another party who is indispensable. The trouble is, he is not around. Therefore, the counterclaim is not barred because the third element is missing. Fourth Element: THAT THE COUNTERCLAIM MUST BE WITHIN THE JURISDICTION OF THE COURT BOTH AS TO THE AMOUNT AND NATURE THEREOF. Q: I will file a case against you for forcible entry. I want to recover a piece of land. Where is the jurisdiction of that case? A: MTC. Squatting. I will recover a land from a squatter. Review: In the Law on Property, even if you are a possessor in bad faith, he is entitled to reimbursement for necessary expenses. The theory there is, even if he is a possessor in bad faith, the expenses redounded to the benefit of the land owner. Anyway, you will spend them just the same as the

land owner will have to spend for them. So it will not be fair if he is not reimbursed. That’s our premise, noh? PROBLEM: Now, the defendant would like to claim for reimbursement for the necessary expenses that he spent in my lot. The case I filed against you is forcible entry in the MTC. Your necessary expenses amount to P300,000. Q: Should you raise it as a compulsory counterclaim in the forcible entry case? A: NO. Q: Does it arise out of or connected with the transaction which is the subject matter of the main action? Why not compulsory? A: Because the MTC has no jurisdiction over the P300,000 amount for the necessary expenses. This time, that is the missing element. Q: How will the defendant claim reimbursement? A: He has to file with the RTC a case for reimbursement. He cannot use that as a counterclaim for the forcible entry case because the MTC has no jurisdiction on a counterclaim where the amount is over P200,000.00. I will reverse the problem: PROBLEM: The plaintiff filed against the defendant an action for accion publiciana – recovery for a piece of land where the value of the property is P1 million. So the case should be filed in the RTC. Now, the defendant is claiming for the reimbursement of the improvements thereon (necessary expenses) amounting to P50,000. Q: Should the defendant raise that as a counterclaim in the accion publiciana case? A: YES. In the first example, the counterclaim is above the jurisdiction of the MTC. This time, the amount for the counterclaim is below the jurisdiction of the RTC. So the RTC can claim jurisdiction. Q: How can the RTC try a counterclaim when the claim is only P50,000? A: It is in accordance with the exception under Section 7: “except that in an original action before the RTC, the counterclaim may be considered compulsory regardless of the amount.” This means that the main action is accion publiciana—RTC. The counterclaim is reimbursement for necessary expenses with arose out of the same land. Normally, the RTC cannot try that but the answer to this question is YES. The RTC can award a claim for damages even though the claim is below its jurisdiction. The principle is: Since the counterclaim is compulsory, jurisdiction over the main action automatically carries with it jurisdiction over the compulsory counterclaim. The compulsory counterclaim is merely incidental to the main action. Jurisdiction of the RTC over the main action necessarily carries with it jurisdiction over the compulsory counterclaim which is merely ancillary. But the first example is baliktad. If the main action is with the MTC, it cannot try the counterclaim with the RTC. It is beyond its jurisdiction. It is not covered by the exception. But if it is the main action which is within the jurisdiction of the RTC, it can try a counterclaim which is below its jurisdiction provided it arose out or is connected with the transaction. That exception is not written in the prior rules but it is a recognized exception laid down by the SC

which is now written down in the law. In the case of MACEDA vs. COURT OF APPEALS 176 SCRA 440 HELD: “The jurisdiction of the MTC in a civil action for sum of money is limited to a demand that does not exceed P100,000 (now P200,000) exclusive of interest and costs. A counterclaim beyond its jurisdiction and limit may be pleaded only by way of defense to weaken the plaintiff’s claim, but not to obtain affirmative relief.” Fifth Requisite: THE DEFENDING PARTY HAS A COUNTERCLAIM AT THE TIME HE FILES HIS ANSWER. How can I make a claim against you which is not yet existing? Even if all the other requisites are present, the counterclaim would still not be compulsory because how can one invoke something now which he can acquire in the future? So, those are the five essential elements. You remove one, the counterclaim becomes permissive. Q: Again. What is the importance of distinguishing whether the counterclaim is compulsory or permissive? A: If the counterclaim is compulsory, the defendant is obliged under the law to raise it as a counterclaim in the action where he is being sued. If he fails to invoke it, it is barred forever (Rule 9 Section 2). If the counterclaim is permissive, the defendant has a choice of raising it as a counterclaim in the case filed against him or he may decide to file another action against the plaintiff, raising it as his cause of action. It is permitted but not obliged. COUNTERCLAIMS IN CRIMINAL CASES JAVIER vs. IAC 171 SCRA 605 FACTS: The Javier spouses filed a criminal case against Leon Gutierrez Jr, under BP 22 or the Bouncing Check Law, for issuing a bad check. The criminal case was filed before the RTC of Makati. The complainants did not reserve the civil action. The implication is that the claim for civil liability is deemed instituted with the criminal case. Gutierrez in turn filed a civil action for damages against the Javier spouses in the RTC of Catarman, Northern Samar, where he accused spouses of having tricked him into signing the check. According to him, “because you tricked me into signing the check for which you are suing me, I’m holding you liable for damages”. What happened now is that he was being criminally sued in Makati but defending himself in Catarman, Northern Samar. He is explaining in the Samar court what he should be doing in the Makati court. HELD: The civil case in Samar should be dismissed. It must be in the Makati court that Gutierrez, as accused in the criminal charge of violation of BP 22, should explain why he

issued the bouncing check. He should explain that story in Makati and not in Samar. This should have been done in the form of a counterclaim for damages for the alleged deception by the Javier spouses. In fact, the counterclaim was compulsory and should have been filed by Gutierrez upon the implied institution of the civil action for damages in the criminal case. What the SC is saying is, since the civil action for damages is impliedly instituted in the criminal case, and he wants to hold you liable for filing this case, he should file a counterclaim against you in the criminal case. What is unique was that for the first time in the Philippine Procedural Law, SC laid down the rule that there is such thing as a counterclaim in a criminal case, because, normally, counterclaims are only recognized in civil cases. But since the civil action is deemed instituted in the criminal case, the accused can file a counterclaim against the offended party in the criminal action. The trouble in this ruling is that, it has been subjected to a lot of criticisms by academicians – professors of Remedial Law, authors – they criticized the ruling. It provokes more problems than answers. A justice of the SC remarked, “I think we made a mistake (privately ba) in the Javier ruling. Kaya it was never repeated. The SC, in 1997, had another chance to comment on Javier in the case of— CABAERO vs. CANTOS 271 SCRA 392, en banc NOTE: Here, the Javier ruling was set aside. HELD: “The logic and cogency of Javier notwithstanding, some reservations and concerns were voiced out by members of the Court during the deliberations on the present case. These were engendered by the obvious lacuna in the Rules of Court, which contains no express provision for the adjudication of a counterclaim in a civil action impliedly instituted in a criminal case.” “By the foregoing discussion, we do not imply any fault in Javier. The real problem lies in the absence of clear-cut rules governing the prosecution of impliedly instituted civil actions and the necessary consequences and implications thereof. For this reason, the counter-claim of the accused cannot be tried together with the criminal case because, as already discussed, it will unnecessarily complicate and confuse the criminal proceedings. Thus, the trial court should confine itself to the criminal aspect and the possible civil liability of the accused arising out of the crime. The counter-claim (and cross-claim or third party complaint, if any) should be set aside or refused cognizance without prejudice to their filing in separate proceedings at the proper time.” “At balance, until there are definitive rules of procedure to govern the institution, prosecution and resolution of the civil aspect and the consequences and implications thereof impliedly instituted in a criminal case, trial courts should limit their jurisdiction to the civil liability of the accused arising from the criminal case.” This means SC admitted that the Javier doctrine put more problems and confusions in the absence of specific rules. The counterclaim should not be tried together in a criminal case. The trial court should confine itself in the criminal action and that the counterclaim should be set aside without prejudice to its right in setting up actions in the civil action.

NOTE: The ruling in the case of CABAERO is now incorporated in the last paragraph of Section 1, paragraph [a], Rule 111 of the 2000 Revised Criminal Procedure: “No counterclaim, cross-claim or third-party complaint may be filed by the accused in the criminal case, but any cause of action which could have been the subject thereof may be litigated in a separate civil action.”

D.) CROSS-CLAIMS Sec. 8. Cross-claim. A cross-claim is any claim by one party against a coparty arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein. Such cross-claim may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant.(7)

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

c.)

A COUNTERCLAIM is a complaint by the defendant against the plaintiff, whereas, A CROSS-CLAIM is a claim by a defendant against a co-defendant;

d.)

The life of the CROSS-CLAIM depends on the life of the main action. A cross-claim is merely a consequence of the case filed by the plaintiff against the defendants. No main action, no cross-claim (RUIZ, JR. vs. CA, infra). Whereas, In a COUNTERCLAIM, you can kill the main action, still the counterclaim survives.

e.)

A COUNTERCLAIM may be asserted whether or not it arises out of the same transaction or occurrence that is the subject matter of the action, whereas, A CROSS-CLAIM must always arise out of the same transaction or occurrence that is the subject matter of the action. Example: Pao case filed against Jet to collect a loan. Jet files a COUNTERCLAIM against Pao to recover a piece of land. That is allowed and that is a permissive counterclaim. But suppose Dean files a case to collect a loan against Jet and Pao. Jet files a CROSS-CLAIM against Pao to recover a piece of land. Q: Will it be allowed? A: Not allowed! It has no connection with the subject matter of the main action.

Take note that a cross-claim is any claim by one party against a co-party arising out of the transaction of occurrence that is the subject matter of the original action or of a counterclaim therein. So, a cross-claim may arise our either of the original action or counter-claim therein. EXAMPLE: Jet and Pao file a case against Dean. Dean files his answer with a counterclaim against the plaintiffs Jet and Pao. So Jet and Pao will now become defendants with respect to the counterclaim filed by Dean. So Jet now can file a cross-claim against Pao arising out of the counterclaim. So this is an example of a plaintiff filing a cross-claim against his co-plaintiff because of the counterclaim. HYPOTHETICAL EXAMPLE: 5.) Mortz and Charles, plaintiffs, filed a case against Jet and Pao, defendants. There are two plaintiffs suing two different defendants on a promissory note. Both Jet and Pao signed the promissory note in favor of Mortz and Charles: COMPLAINT (Collection case – Main Action): MORTZ and CHARLES [total: 785 lbs.], plaintiffs -versusJET and PAO, defendants 6.) Now, according to Jet, every centavo of the loan went to Pao. So Jet files a cross-claim against Pao: CROSS-CLAIM ON THE MAIN ACTION Defendant JET [feather weight], now cross-claimant -versusDefendant PAO [heavy weight], now cross-defendant

7.) Jet also says, “Actually may reklamo ako sa inyong dalawa (Mortz and Charles) because you entered my land and gathered some of its product [mga patay gutom!!]”. Nag-file siya ng counterclaim against both Mortz and Charles. In the counter-claim of Jet, ang defendants ay si Mortz and Charles for the accounting of the improvements on the land: COUNTERCLAIM OF JET Defendant JET, now plaintiff -versusPlaintiffs MORTZ and CHARLES, now co-defendants 8.) Mortz now will answer the counterclaim of Jet, “Actually, the damages on land was not caused by me. Si Charles man ang may kasalanan ba! Yun ang patay gutom!!” So Mortz files a crossclaim against co-plaintiff Charles arising out to the counterclaim of Jet: CROSS-CLAIM ARISING FROM THE COUNTERCLAIM OF JET Plaintiff MORTZ, now cross-claimant -versusPlaintiff CHARLES, now cross-defendant 9.) Now, according to Pao, “Actually last month, a car owned by both of you (Mortz and Charles) bumped my car and that my car was damaged.” So, nag-file naman si Pao ng counterclaim against Mortz and Charles for the damage of the car. COUNTERCLAIM OF PAO Defendant PAO, now plaintiff -versusPlaintiffs MORTZ and CHARLES, now defendants 10.) Sabi ni Charles, “I’m not the owner of the car. Si Mortz ang owner. Gago!” So crossclaim naman siya (Charles) kay Mortz: CROSS-CLAIM ARISING FROM THE COUNTERCLAIM OF PAO Plaintiff CHARLES, now cross-claimant -versusPlaintiff MORTZ, now cross-defendant Ilan lahat ang kaso? There are six (6) cases which are to be decided in the same action. This rarely happens, but it is possible under the rules. The obvious PURPOSE of these is to avoid multiplicity of suits and toward these ends. According to the SC, the rules allow in a certain cases and even compel a petitioner to combine in one litigation these conflicting claims most particularly when they arise out of the same transaction. The rule does not only allow a permissive counterclaim but the parties are even compelled to raise them in a compulsory counter-claim. RUIZ, JR. vs. COURT OF APPEALS 212 SCRA 660

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

Section 9 is a new provision. There is such a thing as counter-counterclaim and counter-crossclaim. The concept of counter-counter-claim is not new. As a matter of fact, that was asked in the bar years ago. EXAMPLE: Chams filed against you an action to collect a loan. You filed a counterclaim against her to recover a piece of land. Of course, she have to answer your counterclaim. But she will say, “Actually you have been molesting me with your claim when actually you have no right over my land.” So, nag-file siya ng injunction to stop you from molesting her. In other words, based on your counterclaim against her to recover my land, she will file a counterclaim to stop you from molesting her. In effect, there is counter-claim to a counter-claim. COUNTER-CROSS-CLAIM. Nag cross-claim ka sa akin, mag cross-claim din ako sa iyo. E.) REPLY Sec. 10. Reply. A reply is a pleading, the office or function of which is to deny, or allege facts in denial or avoidance of new matters alleged by way

of defense in the answer and thereby join or make issue as to such new matters. If a party does not file such reply, all the new matters alleged in the answer are deemed controverted. If the plaintiff wishes to interpose any claims arising out of the new matters so alleged, such claims shall be set forth in an amended or supplemental complaint.(11)

ILLUSTRATION: Plaintiff files a complaint against a defendant to collect an unpaid loan. D files his answer and raises a new matter, affirmative defense. According to the defendant, the obligation is already paid. Plaintiff said that you have paid the other loan. In other words, the plaintiff would like to deny or dispute the defendant’s affirmative defense of payment. Q: Can I file a pleading to dispute your defense? A: Yes, that pleading is called a REPLY. Q: How do you classify a reply? A: It is a responsive pleading because it is the response of the plaintiff to the affirmative defense raised in the defendant’s answer. An answer is a response to the complaint and the reply is a response to the answer. Q: Halimbawa, you would like to answer my reply, what pleading would you file? A: None. That is the last pleading. Otherwise, walang katapusan and pleading natin. So, reply is considered as the last pleading. Q: Suppose I filed a complaint, you filed an answer invoking payment. I failed to reply. What is the effect if the plaintiff fails to reply? Is he admitting the correctness of the defense? A: No. The failure to file a reply has no effect. Section 10 says that if a party does file such reply, all the new matters alleged in the answer are deemed controverted. Meaning, all the affirmative defenses raised in the answers are automatically denied. So, whether you file a reply or not, the defenses are deemed automatically disputed. The filing of a reply is OPTIONAL. A reply should not be confused with the answer to a counterclaim which is also filed by the plaintiff. Q: Give the distinctions between ANSWER TO COUNTER-CLAIM and REPLY. A: The following: 4.) A REPLY is a response to the defenses interposed by the defendant in his answer, whereas An ANSWER TO A COUNTERCLAIM is a response to a cause of action by the defendant against the plaintiff; 5.)

The filing of a REPLY is generally optional, whereas The filing of an ANSWER TO A COUNTERCLAIM is generally mandatory under Rule 11 because if the plaintiff fails to file an answer to the counterclaim, he will be declared in default on the counterclaim. OUTLINE OF FLOW OF PLEADINGS

PLAINTIFF 1. 2.

Complaint

3.

a.) Reply to answer b.) Answer to counterclaim

4.

DEFENDANT a.) Answer b.) Counterclaim Reply to answer to counterclaim

F. THIRD (FOURTH, ETC.) – PARTY COMPLAINT Sec. 11. Third, (fourth, etc.) - party complaint. A third (fourth, etc.) party complaint is a claim that a defending party may, with leave of court, file against a person not a party to the action, called the third (fourth, etc.) party defendant, for contribution, indemnity, subrogation or any other relief, in respect of his opponent's claim. (12a)

THIRD PARTY COMPLAINT is the procedure for bringing into a case a third person who is not a party to the case. So, plaintiff files a case against the defendant. Defendant believes that a stranger or somebody else should be brought into the case and therefore files a motion in court that he be allowed to file a thirdparty complaint against such person and therefore the defendant is called third party plaintiff and that third person is a third-party defendant. EXAMPLE : A plaintiff files a case against a defendant to collect a loan when there are two debtors and one of them is compelled to pay everything so the defendant will drag into the picture the co-debtor for contribution or indemnity. Well, you already learned if there are two of them all he has to do is to file a cross-claim against his co-defendant. BUT since he is the only one, the remedy is to avail of Section 11. Take note that filing a third-party complaint is not a matter of right. THERE MUST BE LEAVE OF COURT. So unlike counterclaim or cross-claim, you do not need any motion or leave of court. Just file your answer to the counterclaim of cross-claim and that will do, but not a third-party complaint. The purpose of third-party complaint is for contribution, indemnity, subrogation and other relief in respect of his opponent’s claim. That is why there is a close relationship between a cross-claim and a third-party complaint because a cross-claim must also be arising out of the subject matter of the main action. A third-party complaint must be also related to the main action. It cannot be a cause of action which has no relation to the main action. EXAMPLE: The plaintiff files a case against the surety and the principal debtor, so both of them are defendants, and the surety seeks reimbursement for whatever amount he may be compelled to pay the plaintiff. What kind of pleading would he file against his co-defendant (the principal debtor)? CROSS-CLAIM.

BUT if the plaintiff file a case ONLY against the surety, because anyway the principal debtor is not an indispensable party and the surety would like to seek reimbursement from the person who benefited from the loan, he cannot file a cross-claim against anybody because he is the lone defendant. It is possible for him to just file an answer . If he loses and pays the plaintiff, then he will file another case against the principal debtor for reimbursement. But if he wants everything to be resolved in the same case, what kind pleading will he file? He must resort a THIRD-PARTY COMPLAINT and implead the principal debtor. The PURPOSE of a third-party complaint is for the third party plaintiff to ask the third party defendant for: q.) Contribution; r.) Indemnity; s.) Subrogation; or t.) any other relief in respect to the opponent’s claim. CONTRIBUTION: Example #1: Two debtors borrowed P100,000 from Janis (creditor) and they shared the money 5050. When the debt fell due, the creditor filed a case against one of them. So, one of them is being made to pay the P100,000. Not only his share but also his co-solidary debtor. So if I am the one liable when actually my real liability is only 50,000. What will I do? I will file a third party complaint against my co-debtor for contribution. Example #2: If Andrew and Carlo are guilty of a quasi-delict and the injured party files an action for damages against Andrew only, Andrew may file a third-party complaint against Carlo for contribution, their liability being solidary (Article 2194, New Civil Code) INDEMNIFICATION: Example #1: Two people signed a promissory note in favor of the creditor. But actually the entire amount went to you and none for me. When the note fell due, I was the one sued. So I will file a third-party complaint against you for indemnity. You have to return to me every centavo that I will pay the creditor. Example #2: A surety sued for recovery of debt by the creditor may file a third-party complaint against the principal debtor for indemnity. (Article 2047, New Civil Code) SUBROGATION: Subrogation - You step into the shoes of someone else. Your obligation is transferred to me. EXAMPLE: Where a contract is leased by a lessee and he subleased the property to a third person who is now occupying the property. In effect, the sub-lessee stepped into the shoes of the original lessee. If the property is damaged and the lessor sues the lessee for damages to his leased property, the lessee or sub-lessor can file a third-party complaint and have the sub-lessee for subrogation because

actually, you stepped into the shoes when you occupied the leased property. (Articles 1651 and 1654, New Civil Code) For ANY OTHER RELIEF IN RESPECT TO THE OPPONENTS CLAIM, very broad: EXAMPLE: When I buy the property of Mr. Cruz and after a while, here comes Mr. Dee filing a case against me to claim ownership of the land. But I bought it from Mr. Cruz who warranted that he is the real owner. So I will now file third-party complaint against Mr. Cruz to enforce his warranty – warranty against eviction. (Article 1548, New Civil Code) Take note that there is always a connection between the main complaint and the third-party complaint because the condition is “contribution, indemnification, subrogation and any other relief in respect to your opponents claim.” There is always a relation between the third party-complaint and the main complaint against you. Here is a bar question... BAR QUESTION: Janis files a case against Nudj to recover an unpaid load. Now the reason is that Carlo also owes Nudj. Nudj says, “I cannot pay you because there is a person who has also utang to me. What I will pay you depends on his payment to me.” File agad si Nudj ng third-party complaint against Carlo. Is the third-party complaint proper? A: NO. There is no connection between the main action and the 3rd-party complaint – the loan of Nudj to Janis and the loan of Andrew to Nudj. Walang connection. Anong pakialam ni Janis sa utang ni Andrew kay Nudj? Not in respect to his opponent’s claim. BAR QUESTION: How do you determine whether a 3rd-party complaint is proper or improper? What are the tests to determine its propriety? A: Case of CAPAYAS vs. COURT OF FIRST INSTANCE 77 PHIL. 181 HELD: There are four (4) possible tests to determine the propriety of a third-party complaint. In order for it to be allowed, it must pass one of them. That is the reason when you file it, you need the permission of the court to determine whether it is proper or not and the original plaintiff may object to the propriety of the third-party complaint. There are the FOUR TESTS (any one will do): 1. A third-party complaint is proper if it arises out of the same transaction on which plaintiff is based; EXAMPLE: A creditor sued only one solidary debtor. So you can file a third-party complaint for contribution. Anyway, there is only one loan and our liability arises out of the same promissory note 2. A third-party complaint is proper if the third-party’s complaint, although arising out of another transaction, is connected with the plaintiff’s claim. EXAMPLE: The car owner is sued for culpa aquiliana for damages arising from

vehicular collision and he files a third-party complaint against the insurance company for indemnity based on the contract of insurance. So it is connected with plaintiff’s claim, and that is precisely the purpose of my insurance coverage. 3. Third party defendant would be liable to the original plaintiff's claim. Although the third party defendant's liability arises out of another transaction. EXAMPLE: Sublease. Roy leased his property to Eric. Eric subleased it to Rudolph. If Roy’s property is damaged, Roy will sue Eric. But Eric will also sue Rudolph. The sub-lessor has the right to file a third-party complaint against the sub-lessee for the damaged leased property which is now occupied by the sub-lessee. The third-party defendant Rudolph would be liable to plaintiff’s (Roy’s) claim. Rudolph will be liable to Roy for Roy’s claim against Eric although the liability of Rudolph arises out of another transaction (Sub-lease contract) 4. The third party defendant may assert any defense which the third party plaintiff has or may have against plaintiff’s claim. EXAMPLE: Tato is a registered owner of a car and then sold it to Philip. Philip is the actual owner. However, Philip did not register the sale to the LTO. The registered owner is si Tato lang gihapon although he is no longer the real owner. While Philip was driving that car it bumped the car of Lewee Tanduay. Lewee researched the owner of the car at LTO and ang lumabas ay si Tato. So ang ginawa ni Lewee, ang kinasuhan nya ay si Tato na walang malay...under the law, the registered owner is liable. Of course, when Tato got the complaint, “Wala akong alam sa sinasabi nyo, that car is no longer mine. I sold that two years ago, I have no idea what happened.” So obviously, Tato arrived at the conclusion that si Philip and nakabangga. Tato filed a third-party complaint against Philip because he is the real owner. When Philip got the third-party complaint, and because he knows the story, in fact he was the one driving, ang ginawa niya, nilabanan niya ng diretso si Lewee. Meaning, instead of Tato fighting Lewee, Philip fought Lewee directly. Frontal na ba. Sabi ni Philip, “I was not at fault, you (Lewee) are at fault.” So here is a situation where Lewee sues Tato, Tato sues Philip but Philip fights Lewee, as if he is the real defendant, then the third party complaint must be proper. It must be related. So those are the samples of third party complaint which are correct. Take note that there is a close similarity between a third-party complaint and a cross-claim because as we have learned, a cross-claim must also be related to the same action. So we will go to some interesting case on third-party complaint. SAMALA vs. VICTOR 170 SCRA 453 FACTS: This case involves a vehicular accident. Philip, while riding on a passenger jeep owned by Tato, the jeep was bumped by the truck of Lewee, injuring Philip. Philip filed a case for damages arising from breach of contract against Tato. Tato filed a third-party

complaint against Lewee. After trial, the court found that Tato has not at fault. The fault is entirely against Lewee . So the action against Tato was dismissed, but the court held that Lewee be directly liable to Philip. It was questioned by Lewee. Lewee claims that is should be Tato who is liable to Philip because Philip did not sue me (Lewee), “Bakit ako ang ma-liable hindi naman ako ang dinemanda ni Philip? So procedurally, I am liable to Tato, Tato is liable to Philip.” ISSUE #1: Can Lewee, a third-party defendant, be held liable directly to Philip, the original plaintiff? HELD: YES, that is possible. In a third-party complaint, normally Lewee is liable to Tato. But Lewee can be made liable to Philip, or Lewee can be made liable to both Philip and Tato because that is covered by the phrase “OR ANY OTHER RELIEF” – so broad that it cover a direct liability of a third party defendant to the original plaintiff. ISSUE #2: How can the court award damages to Philip based on the theory of culpa aquiliana when his complaint is based on culpa contractual? Can Lewee be held liable for culpa-contractual? HELD: YES. That is also possible because “the primary purpose of this rule is to avoid circuitry of action and to dispose of in one litigation, the entire subject matter arising from a particular set of fact it is immaterial that the third-party plaintiff asserts a cause of action against the third party defendant on a theory different from that asserted by the plaintiff against the defendant. It has likewise been held that a defendant in a contract action may join as third-party defendants those liable to him in tort for the plaintiff’s claim against him or directly to the plaintiff.” Another interesting case which is to be compared with the abovementioned case is the 1989 case of SHAFER vs. JUDGE OF RTC OF OLONGAPO CITY 167 SCRA 386 NOTE: This case although it refers to third-party complaint is related to criminal procedure. This is similar to the case of JAVIER where the issue is, is there such a thing as a counterclaim in a criminal case where the offended party did not make a reservation. In SHAFER, is there such a thing as a third-party complaint in a criminal case? FACTS: Shafer while driving his car covered by TPL, bumped another car driven by T. T filed a criminal case against S for physical injuries arising from reckless imprudence. T did not make any reservation to file a separate civil action. So obviously, the claim for civil liability is deemed instituted. Shafer was covered by the insurance, so he filed a third-party complaint against the insurance company insofar as the civil liability is concerned. The insurance company questioned the propriety of d third-party complaint in a criminal case, because according to the insurance company, the third-party complaint is entirely different from the criminal liability. ISSUE: Whether or not the filing of a third-party complaint in a criminal case is procedurally correct. HELD: Yes, it is proper. There could be a third party complaint in a criminal

case because an offense causes two classes of injuries – the SOCIAL and the PERSONAL injury. In this case, the civil aspect of the criminal case is deemed impliedly instituted in the criminal case. Shafer may raise all defenses available to him in so far as the criminal and civil aspects are concerned. Shafer’s claim of indemnity against the insurance company are also the claim by the victim in the criminal claim. Therefore Shafer’s claim against the insurance company is related to the criminal case. So similar to Javier that an accused may also file a compulsory counterclaim in a criminal case when there is no reservation. BUT in the light of the ruling in the case of CABAERO vs. CANTOS, supra The SHAFER ruling has to be set aside for the meantime because there is no such thing as third-party complaint in criminal cases now. In other words, forget it in the meantime. Also, forget counterclaims in criminal cases even if they arose out of the main action. This case refers to JAVIER on whether or not there is such a thing as a compulsory counterclaim in criminal cases. SC said, “Huwag muna samok!” If we will allow it in criminal cases it will only complicate and confuse the case. The attention might be divested to counterclaims or cross-claims or third-party complaints, etc. HELD: “The trial court should confine itself to the criminal aspect and the possible civil liability of the accused arising out of the crime. The counter-claim (and cross-claim or third party complaint, if any) should be set aside or refused cognizance without prejudice to their filing in separate proceedings at the proper time.” We will go to the old case of REPUBLIC vs. CENTRAL SURETY CO. 25 SCRA 641 [1968] FACTS : Hannah filed a case against Rina for a liability amounting to P300,000. So it was filed in RTC. Rina filed a third-party complaint against ConCon Insurance Company for indemnity insurance but the maximum insurance is only P50,000. The insurance company moved to dismiss on the ground that the court has no jurisdiction because thirdparty complaint is only for P50,000 which is supposed to be within the competence of the MTC. ISSUE: Is the insurance company correct? HELD: NO. The insurance company is wrong. The third-party complaint is only incidental. The third-party complaint need not be within the jurisdiction of the RTC where the principal action is pending because the third-party complaint is really a continuation and an ancillary to the principal action. If the court acquires jurisdiction over the main action, automatically, it acquires jurisdiction over the third-party complain which is mainly a continuation of the principal action.

Now, the same situation happened in another case. The case of EASTER ASSURANCE vs. CUI 105 SCRA 642 FACTS : Carol is a resident of Davao City. Cathy is a resident of Cebu City. Carol filed a case before the RTC of Davao City against Cathy. Cathy files a thirdparty complaint against Joy, a resident of Manila. Is the venue proper? HELD: The venue is proper because the venue of the main action is proper. So automatically third-party complaint is also proper. The third-party has to yield to the jurisdiction and venue of the main action. Now of course, if there’s such a thing as 3rd party complaint, there is also a 4th, 5th, 6th or 7th complaint. That is possible but everything is with respect to his opponent’s claim. EXAMPLE: A A files a complaint against B

B

C

B files a 3rd party complaint against C

C files a 4th party complaint against D

D

E

D files a 5th party complaint against E

A’s car was bumped by B. But B contented that the reason that he bumped A’s car was because he was bumped by C and the same goes to C, D, E. B then files a 3rd party complaint against C. C files a 4th party complaint against D. D files a 5th party complaint against E. Meaning, pasahan, ba. They will throw the liability to the one who did it. That is a good hypothetical example of how a fourth, fifth, sixth party complaint can come into play. Sec. 12. Bringing new parties. - When the presence of parties other than those to the original action is required for the granting of complete relief in the determination of a counterclaim or cross-claim, the court shall order them to be brought in as defendants, if jurisdiction over them can be obtained.

The best example of Section 12 is the case of: SAPUGAY vs. COURT OF APPEALS 183 SCRA 464 FACTS: Mobil Philippines filed a case against Sapugay, its gasoline dealer. Sapugay filed a answer and interposed a counterclaim for damages against Mobil and included Cardenas (the manager of Mobil) who is not a plaintiff. ISSUE: Whether or not the inclusion of Cardenas in the counterclaim is proper where he is not a plaintiff in the Mobil case. HELD: The inclusion of Cardenas is proper. The general rule that the defendant cannot by a counterclaim bring into the action any claim against persons other than the plaintiff,

admits of an exception under this provision (Section 12) – meaning, if it is necessary to include a 3rd person in a counterclaim or cross-claim, the court can order him to be brought in as defendants. In effect, the bringing of Cardenas in the case is sanctioned by the Rules. The case of SAPUGAY should not be confused with the case of: CHAVEZ vs. SANDIGANBAYAN 198 SCRA 282 FACTS: Petitioner Francisco Chavez (former solicitor general) represented the government for PCGG. The case arose out of PCGG cases wherein Enrile was sued for accumulation of his ill-gotten wealth. Enrile filed an answer to the complaint. Enrile contends that the case is harassment suit whose mastermind was the Solicitor General himself. Enrile files a counterclaim against Chavez. (Enrile’s lawyer maybe well aware of the Sapugay case the one sued is the lawyer.) Chavez questioned such counterclaim contending that he was not a plaintiff. Sandiganbayan denied such contention. HELD: The inclusion of plaintiff’s lawyer is improper. “To allow a counterclaim against a lawyer who files a complaint for his clients, who is merely their representative in court and not a plaintiff or complainant in the case would lead to mischievous consequences. A lawyer owes his client entire devotion to his genuine interest, warm zeal in the maintenance and defense of his rights and the exertion of his utmost learning and ability. A lawyer cannot properly attend to his duties towards his client if, in the same case, he is kept busy defending himself.” Q: Is the SC suggesting that a lawyer who sued in a harassment case can get away with it? Does that mean to say that the lawyer is immune from suit? A: NO, the SC does not say a lawyer enjoys a special immunity from damage suits. However, when he acts in the name of the client, he should not be sued in a counterclaim in the very same case where he has filed only as a counsel and not as party. Only claims for alleged damages or other causes of action should be filed in a separate case. Thus, if you feel that the lawyer is acting maliciously, you file a complaint but in a separate case. That’s why the case of Sapugay should not be confused with Chavez. Sec. 13. Answer to third (fourth, etc.) party complaint. - A third (fourth, etc.)-party defendant may allege in his answer his defenses, counterclaims or cross-claims, including such defenses that the third (fourth, etc.)-party plaintiff may have against the original plaintiff in respect of the latter's claim against the third-party plaintiff. (n)

ILLUSTRATIONS: A files a case against B B files a 3rd party complaint against C

C A vs. B; B vs. C. Normally, B will defend himself against the complaint of A and C will defend himself in the complaint of B. That is supposed to be the pattern. Normally, C does not file a direct claim against A. But the law allows C in defending himself, to answer the claim of A. The law allows him to file a direct counterclaim against A. If C has the right to frontally meet the action filed by A – meaning, C will fight A directly – if C has the right to assert any defense which B has against A and even for C to litigate against A, then it must be a proper third party complaint. That has happened several times. EXAMPLE: B owns a car which was already sold to C. The trouble is that B never registered the transaction. On the record, B is still the registered owner. Then C, while driving the car, meets an accident and injures A. When A looked at the record, the owner is B. So A files a case against B. So B will file a third party complaint against the real owner (C). Now, C can frontally meet the complaint filed by A. That is the best example where you have the right against the original plaintiff or even assert a counterclaim against him. As a matter of fact, that last test is now incorporated as a new provision (Section 13). In the case of: SINGAPORE AIRLINES vs. COURT OF APPEALS 243 SCRA 143 [1995] FACTS: Aying filed a case against Bugoy. Bugoy filed a third party complaint against and Cyle who wants to frontally meet the main complaint filed by Aying HELD: If that is your purpose, you have to file two (2) answers – you file an answer to the third party complaint and you file a second answer to the main complaint filed by Aying. “A third-party complaint involves an action separate and distinct from, although related to, the main complaint. A third-party defendant who feels aggrieved by some allegations in the main complaint should, aside from answering the third-party complaint, also answer the main complaint.” Normally, Cyle answers the 3rd party complaint of Bugoy and does not answer to the complaint of Aying. But according to SINGAPORE case, if Cyle feels aggrieved by the allegations of Aying, he should also answer the main complaint of Aying. Practically, he shall answer the 3rd party complaint and the main complaint.

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Rule 7 PARTS OF A PLEADING This is more on Legal Forms, a third year subject. That is a bar subject. That is the last subject given on the fourth Sunday. The last subject in the bar is Legal Ethics and Practical Exercises where an examinee will be asked to prepare pleadings like answer, complaint, information. Sec. 1 – Caption. The caption sets forth the name of the court. The title of the action, and docket number if assigned. The title of the action indicates the names of the parties. They shall all be named in the original complaint or petition; but in subsequent pleadings it shall be sufficient if the name of the first party on each side be started with an appropriate indication when there are other parties. Their respective participation in the case shall be indicated.

ILLUSTRATION: CAPTION

Juan dela Cruz, Plaintiff

TITLE

-versus-

Republic of the Philippines 11th Judicial Region Regional Trial Court of Davao Branch 12

Civil Case #12345 For: Annulment of Contract

Osama bin Laden Defendant

COMPLAINT

BODY

Plaintiff, through counsel respectfully alleges that: a.) x x x x x x; b.) x x x x x x; c.) x x x x x x

So, there must be a caption, title. Take note, the title of the action indicates the names of the parties. They shall all be named in the original complaint or petition; but in the subsequent pleadings, it shall be sufficient if the name of the first party of each side be stated without the others. You only write the first name of plaintiff and defendant and followed by the word ‘ET AL”. Q: Suppose there are 20 plaintiffs and 20 defendants in the concept of permissive joinder of parties. Now is it necessary that they shall be named? A: In the complaint, YES. They shall all be named. It is possible that the title alone will reach 3 or more pages.

BUT in subsequent pleadings like the answer, reply, it is not necessary to write the name of everybody. What the law requires is to write the name of the first plaintiff followed by the term ‘ET AL”. Example: Ms. Quitain, et al, plaintiffs vs. Ms. Pastor, et al, defendants. So the rule is, it is only in the complaint where the name of all the parties are required to be stated, but in subsequent pleadings, no need. But there is an EXCEPTION to this rule. There are instances where the law does not require the name of the parties to be stated even in the complaint. Q: What are the instances where the law does not require the name of the parties to be stated even in the complaint? A: These are the following: 27.) Subsequent Pleading (e.g. answer, reply, etc.) (Section 1); 28.) Class suit (Rule 3, Section 12); 29.) When the identity or name of the defendant is unknown (Rule 3, Section 14); 30.) When you sue an entity without judicial personality (Rule 3, Section 15); 31.) If a party is sued in his official capacity. Official designation is sufficient. [e.g. Mr. Acelar vs. City Mayor of Davao.] (Unabia vs. City Mayor, 99 Phil. 253) Sec. 2. The body. - The body of the pleading sets forth its designation, the allegations of the party's claims or defenses, the relief prayed for, and the date of the pleading. (n) a) Paragraphs - the allegations in the body of a pleading shall be divided into paragraphs so numbered as to be readily identified, each of which shall contain a statement of a single set of circumstances so far as that can be done with convenience. A paragraph may be referred to by its number in all succeeding pleadings. (3a) (b) Headings - When two or more causes of action are joined, the statement of the first shall be prefaced by the words "First cause of action", of the second by "second cause of action," and so on for the others. (c) Relief - The pleading shall specify the relief sought, but it may add a general prayer for such further or other relief as may be deemed just or equitable. (3a, R6) (d) Date - Every pleading shall be dated. (n)

In the body, you state your allegations or defenses. Then at the end, you state the relief which we call PRAYER – what you are asking the court: “Wherefore, it is respectfully prayed that judgment be rendered ordering defendant to pay plaintiff his loan of P1 million with interest of 10% p.a. from this date until fully paid.” Then, you end up with the date of the pleading: “Davao City, Philippines, December 10, 1997.” A pleading is divided into paragraphs so numbered as to be readily identified. Normally, a complaint starts: “Plaintiff, thru counsel, respectfully alleges that x x x.” Then first paragraph, second paragraph and so on. The first paragraph is normally the statement of the parties and their addresses which is required under Rule 6 where a complaint must state the names: 1. Plaintiff Juan dela Cruz is of legal age, a resident of Davao City whereas defendant Pedro Bautista, is also of legal age and a resident of Davao City. 2. On such and such a date, defendant secured a loan from plaintiff in the amount of so much payable on this date. 3. The loan is now overdue but defendant still refused to pay. So every paragraph is numbered so that it can easily be identified in the subsequent pleadings. Pag-

sagot ng Answer, he will just refer to the #, “I admit the allegations in paragraph #5) Paragraph [b] is related to Rule 2 on joinder of causes of action. Can you file one complaint embodying two or more causes of action? YES. EXAMPLE: Angelo wants to file a case against Ina to collect three unpaid promissory notes. So, there are three causes of action. The lawyer of Angelo decided to file only one complaint collecting the three promissory notes. Now, how should he prepare the complaint containing the three promissory notes? Plaintiff respectfully alleges: 1. that he is of legal age x x x. FIRST CAUSE OF ACTION: In 1995, there was a loan secured amounting to so much and it is not paid until now; SECOND CAUSE OF ACTION: In 1995, there was a second loan…became payable and is not paid. THIRD CAUSE OF ACTION: x x x x. In other words, hiwa-hiwalayin mo. You indicate your different causes of action. That is how you prepare your complaint. On the other hand, the defendant will answer: ANSWER: ANSWER TO THE FIRST CAUSE OF ACTION x x x, ANSWER TO THE SECOND CAUSE OF ACTION x x x, ANSWER TO THE THIRD CAUSE OF ACTION x x x. Do not combine them together in one paragraph. Even in trial when you present your exhibits, you might get confused because you combined all the three causes of action in one paragraph. But with this one, the presentation is clearer, the outline is clearer and it is more scientifically arranged than joining them in one story. Under paragraph [c], the pleading must state the relief sought. But it may add a general prayer for such further other relief as may be just and equitable like yung mga pahabol na “Plaintiff prays for such further or other relief which the court may be deemed just or equitable.” Meaning, aside from the relief sought, Kung meron ka pang gustong ibigay, okay lang. That is the general prayer. Q: Is the prayer or relief part of the main action? A: NO, it is part of the complaint or answer but it may indicate what is the nature of the cause of action. Cause of actions are mere allegations. Prayer is not part of the action but it is important because it might enlighten us on the nature of the cause of action. That is the purpose of relief or prayer. EXAMPLE : Angelo filed a case against Ina for annulment of a contract of sale. If you look at the caption, it is a personal action which should be instituted in the place where the parties reside. But if you look at the prayer: “Wherefore, it is respectfully prayed that after trial, the deed of sale shall be annulled on the ground of intimidation, and the ownership of the land sold to the defendant in Digos be ordered returned.” Actually, you are trying to recover the ownership of the land. So in other words, it is not a personal action but a real action.

Sec. 3. Signature and Address.- Every pleading must be designed by the party or counsel representing him, stating in either case his address which should not be a post office box. x x x x x

Signature and address – every pleading must be signed by the party or the counsel representing him. Take note of the prohibition now: You must state your address which should not be a post office box because one difficulty is that the exact date when you claim your mail cannot be determined if it is a P.O. box. But if it is served to his office, the exact date can easily be determined. Before, I met a situation where the lawyer filed a motion or a pleading stating only his telephone number. My golly! that is worse! How will I send my reply? Through telephone also? (sa text kaya?) IMPLIED CERTIFICATION IN A PLEADING Section 3, second paragraph: “The signature of counsel constitutes a certificate by him that he has read the pleading; that to the best to his knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay.”

Q: When a lawyer signs a pleading, what is he certifying? A: Second paragraph says, he is certifying that he has read the pleading, that to the best of his knowledge, information and belief, there is a good ground to support it, and it is not interposed for delay. That is called as and IMPLIED CERTIFICATION IN A PLEADING (Arambulo vs. Perez, 78 Phil. 387). That was already asked in the bar once. BAR QUESTION: What is the meaning of the phrase “Implied Certification in a Pleading”? A: “Implied Certification in a Pleading” means that when a lawyer signs a pleading he is certifying that he has read it, to the best of his knowledge, information and belief there is a good ground to support it, and it is not interposed for delay. Section 3, last paragraph: An unsigned pleading produces no legal effect. However, the court may, in its discretion, allow such deficiency to be remedied if it shall appear that the same was due to mere inadvertence and not intended for delay. Counsel who deliberately files an unsigned pleading, or signs a pleading in violation of his Rule, or alleges scandalous or indecent matter therein, or fails to promptly report to the court a change of his address, shall be subject to appropriate disciplinary action. (5a)

So, when a pleading is not signed it produces no legal effect. It is as if no pleading has been filed. Q: Now, suppose it was just an inadvertent omission, it was not intentional maybe because he was hurrying to file the pleading, the lawyer had it filed when actually he has not signed it yet. A: Well, actually if that is in good faith, the court may forgive the counsel because the law says, “however, the court, may in its discretion, allow such deficiency to be remedied if it shall appear that the same was due to mere inadvertence and not intended for delay.” Maybe, alright, you sign it now in order that it will produce a legal effect. However, if the lawyer files a pleading which is UNSIGNED DELIBERATELY, sinadya, then,

according to the rules, he shall be subject to appropriate disciplinary action. That is practically unethical ‘no? Not only that, he is also subject to disciplinary action if he signs a pleading in violation of this Rule or alleges scandalous or indecent matter therein, or fails to promptly report to the court a change of his address. These are the grounds no. Now, this ground – fails to promptly report to the court a change of his address has been inserted in 1997 Rules, this was not found in the prior Rules. Siguro, the SC has discovered that this has been the cause of delay in litigation. Q: What do you mean by this? A: A lawyer will file a pleading in court, he will say this is his address, and then he moves his office without telling the court or the opposing counsel of his new address. So, the court will be sending notices and orders to his old address and it is returned to sender because the lawyer already moved to another place. So, it causes delay ba. So, in order to penalize the lawyer, subject to disciplinary action, it is his obligation to inform the court and even the opposing counsel about his new address so that all court orders, decisions and all pleadings will be served on his address. I think what prompted the SC to insert this is the fact that it has been the cause of delays in many cases. VERIFICATION Sec. 4. Verification.- Except when otherwise specifically required by law or rule, pleadings need not be under oath, verified or accompanied by affidavit. (5) A pleading is verified by an affidavit that the affiant has read the pleading and that the allegations therein are true and correct of his knowledge and belief. A pleading required to be verified which contains a verification based on "information and belief," or upon "knowledge, information and belief," or lacks a proper verification, shall be treated as an unsigned pleading. (6a)

Q: What do you understand by verification in a pleading? A: It means that there is an affidavit accompanying the pleading that the pleader will certify that he prepared the pleading, that all allegations therein are true and correct. For example: In the pleading the plaintiff will say: I, Juan de la Cruz of legal age, after being sworn in accordance with law, hereby say that: I am the plaintiff in the above entitled case. I caused the preparation of this complaint; I read the allegations therein; And they are true and correct of my own knowledge. Signed Affiant Subscribed and sworn to before me on this 2nd day of October 2001, in the City of Davao, Philippines.

Panfilo Corpuz Notary Public That is what you call verification of a pleading. That the pleader, whether plaintiff or defendant, will attest that the allegations in his complaint or in his answer are true and correct of his own knowledge. And then, he will sign it, and then below that, there will be the so-called “JURAT” Subscribed and sworn to before me on this ___ day of December 1997, in the City of Davao, Philippines. Then, signed by the notary public. Meaning, statements, in the pleading are confirmed to be correct, under oath, by the defendant. That is called, the verification of a pleading. The purpose of verification is to insure good faith in the averments of a pleading. Although lack of verification in a pleading is a formal defect, not jurisdictional defect, and can be cured by amendment. (Phil. Bank of Commerce vs. Macadaeg, L-14174, Oct. 31, 1960) Q: What do you think will happen if a pleading is verified by a party and it turns out that the allegations are false? And that he deliberately made those allegations false and under oath. A: Well, you know your Criminal Law. That will be a ground for the prosecution for the crime of perjury, because that is a false affidavit. But if the pleading is not verified, even if they are false, there is no perjury, because perjury requires a sworn statement by the accused. Q: How is a pleading verified? A: The law says, a pleading is verified by affidavit, that the affiant has read the pleading and that the allegations therein are, true and correct of his knowledge and belief. Q: Suppose I will say, “the allegations there are true and correct based on my ‘information’ and ‘belief’.” A: According to the paragraph 3, verification is not sufficient, because you can always claim na “Ganoon pala, hindi pala totoo. Sorry ha? That is my information eh.” Meron kang lusot ba. So, you must say ‘they are true and correct based on my own knowledge.’ ‘Information’ will not suffice. Under the prior rule, a proper verification must be based on “knowledge” – the allegations therein are true and correct of my own knowledge. Now, “knowledge and belief”, and yet the third paragraph says, “based on knowledge, information and belief” is bawal. So, “knowledge, information and belief” is improper, but “knowledge and belief” only is proper. So tanggalin mo lang yung ‘information’ to make it proper. Q: What happens if a pleading is not verified when the law requires it to be verified? Is that a fatal defect? A: The pleading is defective but it is only a formal defect. The court still has jurisdiction over the case. If the defect is formal, it can be cured by amending the pleading and verifying. So, it is a defective pleading but the defect is formal, it is not substantial or jurisdictional. Therefore, the case should not be dismissed. The pleading can be amended to include verification. Q: Does the law require every pleading to be verified? A: NO. The GENERAL RULE is, pleadings need not be under oath, EXCEPT when otherwise specifically required by law or this rule. When the law or rules require a pleading to be verified, then it must be verified, otherwise it is formally detective. If the law is silent, verification is not necessary and the pleading is filed properly.

Now, if you ask me, what are the pleadings which the law or the Rules of Court require to be verified, there are many. They are scattered throughout the Rules and we will meet some in the course of going over the Rules. I think that question has already been asked 3 times in the BAR. The last time was in 1995. Meaning, the examiner was asking for the exceptions. You cannot find one rule or one section where you will get all the answers in that section because they are scattered, sabog eh. So, practically, it requires the Bar candidate to have a grasp of the entire Rules so that he will be able to recall as many pleadings as there are, which require. From time to time we will go on, we will meet them. BAR QUESTION: Name as many pleadings as you can which must be verified. A: The following: (taken from the 4th year Remedial Law transcription) 3.) Rule 8 – when you deny the due execution of an actionable document; 4.) Summary Rules – all pleadings under summary rules should be verified; 5.) Special Civil Actions – petitions for certiorari, prohibition and mandamus. I remember that years ago, there was a student who asked me this question: Q: Now, on the other hand, suppose a pleading does not require verification but the lawyer had it verified. What is the effect? A: There is no effect, just surplusage! A pleading in general is not required to be verified. But I will verify it. Is there something wrong with it? Technically, none. But if it is required to be verified and you omit the verification, it is formally defective. So he said, “In other words Sir, it is better pala that you will verify every pleading para sigurado. No harm man kaya? At least, even if there is a verification, when it is not required, no harm.” That’s true, no harm but if a lawyer does that, that only shows he does not know the rules. He cannot identify which pleading requires to be verified because he will automatically verify everything. And the second effect, if a pleading is not verified, and the statement is false, there is no perjury. Now I verify it, and it turns out to be deliberately false, you are courting a criminal prosecution for your client for perjury. In other words, you create a crime of perjury when actually there should be none in the first place. The policy may be playing it safe but it produces other effects. Ignorance of the rules! CERTIFICATION OF NON-FORUM SHOPPING Sec. 5. Certification against forum shopping.-- The plaintiff or the principal party shall certify under oath in the complaint or other initiatory pleading asserting a claim for relief, or in a sworn certification annexed thereto and simultaneously filed therewith: a)that he has not theretofore commence any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency and, to the best of his knowledge, no such other action or claim is pending therein; b)if there is such other pending action or claim, a complete statement of the status thereof; and c)if he should thereafter learn that the same or similar action or claim has been filed or pending, he shall report that fact within (5) days therefrom the court wherein his aforesaid complaint or initiatory pleading has been filed. Failure to comply with the foregoing requirements shall not be curable by mere amendment of the complaint or other initiatory pleading but shall be cause for the dismissal of the case without prejudice, unless otherwise

provided, upon motion and after hearing. The submission of a false certification or non-compliance with any of the undertakings therein, shall constitute indirect contempt of court, without the prejudice to the corresponding administrative and criminal actions. If the acts of the party or his counsel clearly constitute willful and deliberate forum shopping, the same shall be ground for summary dismissal with prejudice and shall constitute direct contempt, as well as a cause for administrative sanctions. (n)

You know what is forum shopping? I think you have an idea about that, no? Forum Shopping is an unethical practice when a lawyer or a party files identical cases in two or more tribunals hoping that if he may fail in one case, he will succeed in another forum. Now, maybe this practice has become rampant before, not so much in Davao City but maybe in Metro Manila because most of the abuses in the bar happen in Metro Manila not in the provinces. Maybe because of these abuses, the SC has decided to put down this provision in order to assure good faith. So everytime you file a complaint you must certify under oath that you have not filed any other case of this nature in any other court. More or less, you will follow the language found in the first paragraph. And this requirement was originally found in a Circular 04-94 of the SC. It is now incorporated in the new rules in Section 5. Q: What is the effect if a complaint or a third-party complaint is filed in court without the certification on non-forum shopping? A: That is a ground by itself for an automatic dismissal of the complaint. Now take note that the certification of non-forum Shopping is not only required in the complaint but the law says: “Complaint or other initiatory pleadings” such as counterclaims, cross-claims, thirdparty complaints. Therefore, all these pleadings require certification against forum shopping. Now let’s go to the second paragraph. Again, what is the possibility if the complaint is filed without the certification against forum shopping? That is a ground by itself for the dismissal of the complaint. Q: Now, suppose I will amend the complaint because at first there was no certification of nonforum shopping, therefore, automatically the defect is cured. Now, is it automatic? A: Look at the 2nd paragraph, it says, “failure to comply with the foregoing requirements shall not be curable by mere amendment of the complaint or other initiatory pleading, but shall be cause for the dismissal of the case without prejudice.” Meaning, you can still re-file the case with the inclusion of the certification against forum shopping. Pwede mong ulitin, you re-file the same complaint. That is the meaning of ‘without prejudice.’ “Unless otherwise provided, upon the motion after hearing” – meaning, it is now discretionary on the court to determine whether to dismiss or not to dismiss. Of course, it is a ground for dismissal, but the court may say, “Okay, we will just amend it. We will not dismiss.” But definitely, you cannot insist that because I already amended, everything is cured. That is for the court to determine whether to dismiss or not to dismiss. So, mere amendment does not cure automatically the missing certification. I think this provision that mere amendment does not cure automatically the missing certification for non-forum shopping was taken by the SC from its ruling in the 1995 case of KAVINTA vs. CASTILLO, JR.

249 SCRA 604 HELD: “The mere submission of a certification under Administrative Circular No. 0494 after the filing of a motion to dismiss on the ground of non-compliance thereof does not ipso facto operate as a substantial compliance; otherwise the Circular would lose its value or efficacy.” As a matter of fact, if the certification is deliberately false there are many other sanctions – contempt, possible administrative actions against the lawyer or criminal case for perjury. Now, in permissive counterclaims, there must be a certification of non-forum shopping, otherwise the case will be dismissed. Some lawyers argue that the certification is not required in compulsory counterclaims. It is only required in permissive counterclaims because in permissive counterclaims, the claimant has two choices: (1.) to file a counterclaim in the same case, or (2.) to file a separate case. Another view is that, since Section 5 does not distinguish, we should not distinguish. However, that issue is now resolved in the 1998 case of SANTO TOMAS UNIVERSITY HOSPITAL vs. SURLA 294 SCRA 382 [Aug. 17, 1998] HELD: The certification of non-forum shopping applies only to permissive counterclaims because there is no possibility of forum shopping in compulsory counterclaims. “The proviso in the second paragraph of Section 5, Rule 7, of the 1997 Rules of Civil Procedure, i.e., that the violation of the anti-forum shopping rule ‘shall not be curable by mere amendment . . . but shall be cause for the dismissal of the case without prejudice,’ being predicated on the applicability of the need for a certification against forum shopping, obviously does not include a claim which cannot be independently set up.”

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Rule 8 MANNER OF MAKING ALLEGATIONS IN PLEADINGS Sec. 1 In general – Every pleading shall contain in a methodical and logical form, a plain, concise and direct statement of the ultimate facts on which the party pleading relies for his claim or defense, as the case may be, omitting the statement of mere evidentiary facts. If a defense relied on is based on law, the pertinent provisions thereof and their applicability to him shall be clearly and concisely stated.

In so far as pleadings are concerned, it must only state the ultimate facts where you relied your defense or complaint. You must omit the statement of mere evidentiary facts. The basic question here is, what do you mean by ultimate facts? What are evidentiary facts? Distinguish ultimate facts from evidentiary facts. ULTIMATE FACTS vs. EVIDENTIARY FACTS Q: What are ultimate facts? A: Ultimate facts are those which is are essential to one’s cause of action or defense. Q: How do you determine whether a fact is essential to your cause of action or defense? A: The test to determine whether the fact is essential to your cause of action is: if the statement in the pleading cannot be deleted. Because if you delete it, the statement of your cause of action or defense become incomplete, a certain element of cause of action disappears then it must be a statement of ultimate fact. Pagtinanggal mo, wala ka ng cause of action. But if you delete it and there is still a cause of action, then it is not an ultimate fact. Q: What are the essential elements of a cause of action? A: The following: 8.) Statement of the right; 9.) Statement of the obligation; 10.) Statement of the violation; and 11.) Statement of damage. You analyze a complaint from the first to the last paragraph, you find out whether the four are present. Now, for example a complaint has 20 paragraphs. Yan bang 20 paragraphs, importante ba lahat? We will shorten it by analyzing sentence by sentence. I will remove paragraph #2. Are the elements of the cause of action still present out of the remaining paragraph? If the answer is yes, then, paragraph #2 is not a statement of ultimate fact. We will remove paragraph #5, the story is still complete, there is still a cause of action, then, the paragraph or the statement that you removed is not a statement of ultimate facts. Suppose I will remove paragraph #7, kulang na man, the allegation of the violation of the right is no longer present, then, the paragraph #7 cannot be deleted, otherwise, if you delete it the statement or the story or the cause of action disappear. Then, that is an ultimate fact. So if the statement can be deleted and the cause of action is still complete, then it is not a statement of ultimate fact. It is only a statement of evidentiary fact. Q: What are evidentiary facts? A: Evidentiary facts are the facts which will prove the ultimate facts. They should not be stated in

the pleading. They should be brought out during the trial. They are proper during the trial but they have no place in your pleading. In the law on Evidence, ultimate facts are called facturn probandum as distinguished from factum probans (evidentiary facts). EXAMPLE: In a land dispute, the question is: Who has been in possession of the land for a long time? I claim I’m the one. So, I will say, “plaintiff has been in possession of this land continuously for the past 30 years.” That is a statement of ultimate fact because that shows your right – your right over the property – that you cannot be driven out. Thirty years na gud iyan. Suppose the lawyer wants to impress the court that the statement is true, the pleading describing continues possession for the past 30 years from 1967 to 1997. And therefore, the lawyer will now prepare the complaint in this manner: Plaintiff has been in possession of the said property continuously, openly for the past 30 years from 1967 to 1997 as may be born out by the following: He entered the property in 1967. He cleared the property by cutting the grass. In 1968, he planted 20 coconut trees. In 1969, he planted 50 coconut trees. In 1970, he planted mango trees. In 1971, he planted guava. He will recite everything from 1967 to 1997.

That will really prove that he have been there for the past 30 years because continuous eh, - every year you are reciting your activities including the taxes that you paid, the receipt, “‘yan o, eto and resibo ko!” Now, if a lawyer will do that, his complaint will reach 100 pages. Do you know why? Because he violated Section 1. He did not only state the ultimate facts but he also stated the evidentiary facts. So, what should be the correct pattern? Complaint: Plaintiff has been in continuous possession of the property for 30 years from 1967 up to the present.

That is the ultimate fact. You do not have to recite exactly what you did because that is what I intend to prove. Now, of course, during the trial, how can I convince the court that I have been in possession of the property for 30 years? Kailangan you have to convince, di ba? Then, during the trial, you present the plaintiff and you ask the plaintiff: Mr. Plaintiff, when did you occupy the property? – “1967” – When you first occupied the property, describe it. – “Ah, bagnot! I have to clean it. So I clean it in 1967.” – In 1968, were you still there? – “Oh yes!” – What did you do in 1968? – “I planted coconut trees.” – Did you pay taxes in 1968? – “Yes!” – Where’s the receipt? – “Eto o!” Yaan! From 1967, isa-isahin mo yan. Doon na tayo mag-istorya sa court. The evidentiary facts should be brought out in court not in the pleadings, otherwise your pleading become kilometric. That is what is meant by the phrase that you only state the ultimate facts omitting the statement of evidentiary facts. Another Example: Collection case. Sabihin mo: “The defendant borrowed money and then it fell due. I made demands for him to pay, but despite repeated demands he refused to pay.”

Tama na iyon. You do not have to state in your complaint that “when the account fell due last November 5, I called him up by telephone. He promised to pay in November 7 and called him again and he promised to pay tomorrow…” Hindi na kailangang sabihin mo iyan! Those are evidentiary facts. But during the trial, you can narrate that I have been writing, “eto o, andami kong sulat, I have been calling him by telephone but he kept on promising.” So, mag-istorya ka na ng detail sa husgado. Those are what you call evidentiary facts. But in your complaint you do not have to recite all those. Under Section 1, you state the ultimate facts on which you rely your claim or defense. How do you state the facts? Section 1 says that statement of ultimate facts must be stated in a methodical and logical form and you must use plain, concise and direct statements or language. The simpler the language, the better. A pleading is not a vehicle for you to show your mastery of the English language. The judge might throw away your complaint for not using simple language. I was reading an article about the use of plain, concise and direct language. I remember- Do not use this word, rather use this word. For example, do not use the word ‘conflagration,’ use ‘fire.’ The latter is simpler. How do you present the facts? Methodical and logical form. It is a matter of writing style. Every person has his style of writing. Corollary, every person expects you to write in a methodical or logical form. We have said earlier that a pleading actually tells a story. Plaintiff tells the court his story. Defendant tells his story, too. How will the court understand your story? Your presentation must be methodical and logical. Writing style is a gift, no? Some people tell their story clearly, others don’t understand. Sasabihin mo, sabog ka mag-storya. Ang labo mo! It is not methodical and logical. Courts expect lawyers to present case in a methodical and logical form. What is the first test whether you style is methodical or logical? The best exercise is your own answer in examinations. In a problem, you answer and you try to argue why. You try to present your answer in a clear manner. It must be methodical and logical. In your examinations, you may wonder why you got a different score with your classmates where in fact the substance of your answers is the same. Precisely because the presentation of the answer also matters. Siya 80, ikaw 75. Tingnan mo ang kanyang presentation, mas maganda. To know the answer is not enough, you must know HOW to answer. Especially in the Bar exams where the corrector is correcting more than 4,000 notebooks, your notebook must project itself as if your notebook is telling the corrector: Read me! Read me!! That is the formula to pass law school and the Bar. PRINCIPLE: Only ultimate facts should be alleged and not the evidentiary facts. Q: Apart from evidentiary facts, what are the other matters that should not be stated in the pleading? A: The following: 6.) Facts which are presumed by law; 7.) Conclusions of fact or law; 8.) Matters which are in the domain of judicial notice need not be alleged. FACTS WHICH ARE PRESUMED BY LAW

So statement of law is not allowed although there is an exception under the second paragraph of Section 1 which says that “if a defense relied on is based on law, the pertinent provisions thereof and their applicability to him shall be clearly and concisely stated.” At least now you can quote the law. Sometimes a defendant when he files his answer, his answer is purely based on law. He must cite the legal provision in his answer and explain WHY is it applicable to him. ALLEGATION OF ALTERNATIVE CAUSES OF ACTION OR DEFENSES Sec. 2. Alternative causes of action or defenses. - A party may set forth two or more statements of a claim or defense alternatively or hypothetically, either in one cause of action or defense or in separate causes of action or defenses. When two or more statements are made in the alternative and one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. (2)

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

inconsistent. I told him to look at Section 2, Rule 8 very well. The law allows defendant to plead his defenses hypothetically or alternatively. He asked, what if they are inconsistent with each other? I said, you look at SC decisions. The SC said a party may plead 2 or more causes of action or 2 or more defenses alternatively. They may be inconsistent with each other but what is important is each defense is consistent in itself. Meaning, each defense, when taken alone, is a good defense. You look at them separately. Do not compare them. For EXAMPLE: Plaintiff files a case against a defendant to collect an unpaid loan. The basic allegation is that the defendant obtained a sum of money by way of loan and never paid it. Here is defendant’s answer: a.) “That is not true. I never borrowed any money from the plaintiff.” That is a defense of denial. b.) “Assuming that I received money from the plaintiff, that money was not a loan but plaintiff’s birthday gift to me.” In other words, it was a donation. c.) “Assuming that the money I received from the plaintiff was really a loan. However, such amount was completely paid.” Defense of payment. So, I have 3 defenses. How can you reconcile these 3 defenses? They are inconsistent with each other but it should not be taken against the defendant. What is important is that each defense is consistent in itself. Look at them separately. That is also called a “SHOTGUN ANSWER”. Sabog ba! In all directions. However, during that trial, you have to choose among them which you think is true based on evidence. The problem is that you choose one but it turned out that a different defense would be correct. Hindi mo na magamit. There is a prejudice because during the trial, I will choose among them with the evidence I have. Anyway, pleading man lang yon. I can abandon the others. And that is even better because you might confuse the plaintiff of what really is your defense. Thus, a lawyer should not be afraid to hypothetically or alternatively plead defenses which are inconsistent with each other. That is perfectly allowed as it is alternative and during trial the pleader may show the best one rather than not stating it in the pleading and during the trial you waive the best defense because according to the next rule, Rule 9, defenses or objections not pleaded in the answer are deemed waived. Take note that you have to correlate this topic on the related provisions we have already taken up: For EXAMPLE: c.) Rule 2, Section 5 – where a party may, in one pleading state in the alternative or otherwise, as many causes of action; d.) Rule 3, Section 6 – on permissive joinder of parties. When may 2 persons or more be joined as plaintiffs or defendants and how are they joined? They are joined jointly, severally, or alternatively; and e.) Rule 3, Section 13 – on alternative defendants. When you are uncertain who is the real defendant, you may join them alternatively although the relief against one may be inconsistent with the other.

Remember this provisions because they are interrelated. Thus, when you study the Rules, don’t limit yourself to a particular provision. Look for other related provisions so you may see the entire picture. That’s called co-relation – “You don’t only see the tree but the entire forest.” This is very helpful in the bar exam. HOW ALLEGATIONS IN A PLEADING ARE MADE Q: How do you make allegations or averments in a pleading? Can you do it in a general manner or do you need to be specific? How do you allege your ultimate facts? Is it in particular or general terms? A: It depends on what matters you are alleging in your complaint – whether is a condition precedent, capacity to sue or be sued, fraud, mistake, malice, judgment, or official document or act. ALLEGATION OF A CONDITION PRECEDENT Sec. 3. Conditions Precedent. - In any pleading, a general averment of the performance or occurrence of all conditions precedent shall be sufficient. (3)

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

compliance of conditions precedent. Therefore, an averment of the performance or occurrence of all conditions precedent may be made generally and it shall be sufficient. ALLEGATION OF CAPACITY TO SUE OR BE SUED Sec. 4. Capacity - Facts showing the capacity of a party to sue or to be sued or the authority of a party to sue or to be sued in a representative capacity or the legal existence of an organized association of persons that is made a party, must be averred. A party desiring to raise an issue as to the legal existence of any party or the capacity of any party to sue or be sued in a representative capacity, shall do so by specific denial, which shall include such supporting particulars as are peculiarly within the pleader's knowledge. (4)

When you file a case against somebody you must have capacity to sue and defendant must have capacity to be sued. Q: Is it necessary for me to say that plaintiff has capacity to sue? And the defendant has capacity to be sued? A: YES because Section 4 says you must show capacity to sue and be sued. It means that capacity to sue and be sued must be averred with particularity. A general statement of it is not sufficient. As a matter of fact, that is the first paragraph of a complaint: “Plaintiff, Juan dela Cruz, of legal age, single, a resident of Davao City…” There is no presumption of capacity or incapacity to sue. You may say, “I am suing as guardian of the plaintiff.” That is a representative party – to sue and be sued in a representative capacity. Can you say, “I am suing as a guardian?” NO. Neither can you say, “I am appointed as the guardian.” Q: How should it be done? A: “I am the court’s appointed guardian of the plaintiff minor having been afforded guardian by the court in this case based on an order.” You have to emphasize that the court appointed you. Section 4 says, “the legal existence of an organized association of persons that is made a party...” It means that the defendant is a corporation existing by virtue of the Philippine Corporation Law. There is no presumption that you are corporation. That is the reason why facts showing capacity to sue and be sued, etc. must be averred with particularity. There’s a case which you will study in Corporation Law whether a foreign corporation can sue in Philippine court. Under the law, it can sue provided it is licensed to do business in the Philippines. The SC emphasized that if a foreign corporation is suing somebody in Philippine courts, the complaint must specifically allege that a foreign corporation is doing business in the Philippines with a license to do. Otherwise, it cannot sue. Yaan! “A party desiring to raise an issue as to the legal existence of any party or the capacity of any party to sue or be sued in a representative capacity, shall do so by specific denial, which shall include such supporting particulars as are peculiarly within the pleader's knowledge…” (section 4, 2nd sentence)

EXAMPLE: You are the plaintiff corporation with juridical capacity. I am the defendant. Suppose I will deny your capacity to sue. I will deny that you are a corporation licensed to do business in the

Philippines. Now, the law requires me to deny your legal capacity and I must state the reason or basis of such denial – why you are not of legal age, why you are not a corporation. This is so because the law says that when you deny or when you question the legal existence of a party or the capacity of any party to sue and be sued, you shall do so by specific denial which shall include such supporting particulars as are peculiarly within the defendant’s knowledge. You cannot plead a general statement that you deny. Your denial must be particular. You must be more specific about what you are denying. ALLEGATION OF FRAUD OR MISTAKE Sec. 5. Fraud, mistake, condition of the mind.- In all averments of fraud or mistake, the circumstances constituting fraud or mistake must be stated with particularity. Malice, intent, knowledge or other condition of the mind of a person may be averred generally. (5a)

EXAMPLE: In annulment of a contract, fraud is one ground. Suppose the consent was secured through fraud and plaintiff files a case that the defendant employed fraud in obtaining his consent. Q: Is this statement sufficient? A: No, because the circumstances constituting fraud or mistake must be stated with particularity. The complaint must state how the fraud was committed. It must be described in detail how the fraud took place. Q: In the second sentence, why is it that malice, intent, etc. may be averred generally? A: A general averment of malice or intent suffices because one cannot describe or particularize what is in the mind of a party. I cannot describe in detail the malice or the knowledge in your mind. I can only say it in general terms. Fraud, on the other hand, is employed openly, by overt acts. How you are deceived is not only in the mind. Those are manifested by external acts. Therefore, one can describe how a fraud was committed by the other party. Sec. 6. Judgment. In pleading a judgment or decision of a domestic or foreign court, judicial or quasi-judicial tribunal, or of a board or officer, it is sufficient to aver the judgment or decision without setting forth matter showing jurisdiction to render it. (6)

Sometimes a party invokes a judgment of a court or cite a previous case like res adjudicata to dismiss a case. Q: Suppose you will ask the court to dismiss the case because there was already judgment rendered by the court years ago and you simply says, “There was a previous judgment.” Is this sufficient? A: YES because the law presumes that the judgment is valid. And the presumption is that the court had jurisdiction. You do not have to say that the court had jurisdiction over the subject matter, issues, etc. when it tried the case years ago. So, it can be averred generally. Sec. 9. Official document or act. In pleading an official document or official act, it is sufficient to aver that the document was issued or the act done in compliance with law. (9)

One can just plead the existence of a document made by the government. EXAMPLE: official letter

of the President, or official communication by a government agency. It is sufficient to aver that the document was issued or an act done. SUMMARY: Q: What averment or allegations in pleadings may be done GENERALLY? A: The following: 1.) Rule 8, Section 3– Conditions precedent; 2.) Rule 8, Section 5, 2nd sentence – Conditions of the mind; 3.) Rule 8, Section 6 – Judgment; 4.) Rule 8, Section 9 – Official document or act Q: What averments must be done with PARTICULARITY? A: The following: 1.) Rule 8, Section 4, first sentence – Capacity to sue and be sued; 2.) Rule 8, Section 4, 2nd sentence – Legal existence of any party to sue or be sued; 3.) Rule 8, Section 5, first sentence – Fraud or mistake ACTIONABLE DOCUMENTS Sec. 7. Action or defense based on document. Whenever an action or defense is based upon a written instrument or document, the substance of such instrument or document shall be set forth in the pleading, and the original or a copy thereof shall be attached to the pleading as an exhibit, which shall be deemed to be a part of the pleading, or said copy may with like effect be set forth in the pleading. (7)

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

A: There are two (2) options: 6.) The substance of such instrument or document, shall be set forth in the pleading and the original or a copy thereof shall be attached as an exhibit. 7.) The copy of the document may with like effect quoted in the pleading in which case, there is no need to attach the copy. In the first one, there is no need to copy it. Just mention the substance or features of he promissory note. The entire document must be quoted in the pleading. EXAMPLE: PROMISSORY NOTE: December 31, 1997 For value received, I promise to pay “B” P1 million not later than one year from date with 2 percent per annum. Signed: “A”

Q: Using the above promissory note, how should the pleading be worded? A: Two ways of pleading of actionable document: 1.) The substance shall be set forth in the pleading and the original or a copy thereof shall be attached to the pleading as an exhibit, which shall be deemed as part of the pleading. Party simply cites only important parts of the document, then attached the document. EXAMPLE:

COMPLAINT

1. Plaintiff B is xxx of legal age xxx; Defendant A is xxxgayxxxx; 2. Sometime in December 31, 1997, defendant A secured a loan from plaintiff B for a sum of P1 million payable not later than December 31, 1998 with 2% interest per annum. Copy of said Promissory Note hereto attached as EXHIBIT A; 3. The account is now overdue and despite demands of defendant A still failed to pay B xxx.

So, the main features of the promissory note are recited in your pleading – the date when the loan was secured, the amount, the interest, etc. But still you have to attach a copy of the promissory note, either xerox copy or the original. 2.) Said copy may with like effect be set forth in the pleading. Document is quoted verbatim. EXAMPLE: COMPLAINT 3.)

Plaintiff B is xxx of legal age xxx; Defendant A is xxxgayxxxx;

4.) On Dec. 31, 1997 def. A secured a loan from plaintiff B which is covered by a promissory note worded as follows:

PROMISSORY NOTE:

December 31, 1997 For value received, I promise to pay “B” P1 million not later than one year from date with 2 percent per annum. Signed: “A” 5.) The account is now overdue and despite demands of defendant A still failed to pay B xxx.

So, you copy the entire promissory note verbatim. There is no need to attach a copy of the promissory note. That is the second way. Now, if the document is not classified as actionable, then there is no need to follow Section 7. Just imagine if you will apply Section 7 to all documents in your possession. If you intend to present in evidence 50 documents and only one is actionable, ang 49 hindi, so you will have 49 annexes. So, ang pleading mo, kakapal. (parang mukha mo!) Q: Suppose in the first way, the promissory note was not attached. What will happen? A: The party violates Rule 8, Section 7. The adverse party may move to dismiss the complaint for violation of the rules, if such document could not be secured. If an actionable document is properly pleaded in your pleading in the manner mentioned in Section 7, the adverse party is now obliged to follow Section 8 if he wants to contest such document. Sec. 8. How to contest such documents. When an action or defense is founded upon a written instrument, copied in or attached to the corresponding pleading as provided in the preceding section, the genuineness and due execution of the instrument shall be deemed admitted unless the adverse party, under oath, specifically denies them, and sets forth what he claims to be the facts; but the requirement of an oath does not apply when the adverse party does not appear to be a party to the instrument or when compliance with an order for an inspection of the original instrument is refused. (8a)

Q: Does every pleading have to be under oath? A: GENERAL RULE: NO. EXCEPTION: Except when the law requires it. Example: Section 8, Rule 8. EXAMPLE: If the plaintiff sues you based on a promissory note which is properly pleaded under Section 7 and you would like to contest the genuineness and due execution of the note like when the figure was altered to P20,000 instead of P1,000 only, so there is falsification, then you must deny the genuiness and due execution in your answer specifically and most importantly your answer must VERIFIED AND UNDER OATH. If the denial is not verified and under oath, the genuineness and due execution of the promissory note is deemed admitted.

Q: When you say “you have admitted the genuiness and due execution of the document,” what are the specific facts that you have deemed admitted? A: The answer is found in the landmark case of HIBBERD vs. RHODE (32 Phil. 476): IX.

The party whose signature it bears signed it;

X.

If signed by another, it was signed for him and with his authority; Q: Pretty Maya told Papa Paul that her housemate Sexy Regina wanted to borrow money from him. Paul agreed. Maya signed the promissory note: “Regina as principal, signed by Maya.” But actually, Regina never ordered Maya to use her (Regina’s) name. When the note fell due without payment, Paul sued Regina. Regina denied agency but failed to verify her answer. What is the effect? A: Pretty Maya becomes agent of Sexy Regina. So, the defense of unauthorized signature is automatically out.

XI.

At the time it was signed, it was in words and figures exactly as set out in the pleading of the party relying upon it; Q: Mr. Quiachon sued Mr. Tiamzon to collect a loan of P50,000 on a promissory note. Mr. Tiamzon admitted liability but only to the amount of P5,000. Mr. Tiamzon used falsification as a defense but his answer was not verified. What is the effect? A: Mr. Tiamzon admits the genuiness of the promissory note – that it was really P50,000.

XII.

The document was delivered; and

XIII.

The formal requisites of law, such as seal, acknowledgement (notarization) or revenue stamp which it lacks, are waived by it.

So kung may konting diperensiya like there is notarial seal, no acknowledgment, no revenue stamp, all these defects are deemed cured. The SC said in HIBBERD that if you admit the genuineness and due execution of the actionable document, defenses which are inconsistent with genuineness and due execution are deemed automatically waived. Meaning, any defense which denies the genuineness or due execution of the document is deemed automatically waived. Q: What are the defenses which are no longer allowed once you admit the genuineness and due execution of the actionable document? A: The following: VI. The signature appearing in the document is a forgery; VII. In case it was signed by an agent in behalf of the corporation or partnership, or a principal, the signature was unauthorized; VIII. The corporation was not authorized under its charter to sign the instrument;

IX. The party charged signed it in some other capacity than that alleged in the pleading; and X. It was never delivered. (Hibberd vs. Rhode, supra) Q: Does it mean to say that when you admit impliedly the genuineness and due execution of the actionable document, you have no more defense? A: NO. What are no longer available are defenses which are inconsistent with your own admission of the genuineness and due execution of the actionable document like forgery, because you cannot admit that the document is genuine and at the same time allege that it is forged. According to the SC in HIBBERD, you may still invoke defenses provided the defenses are NOT inconsistent with your admission of the authenticity of the document. Q: What defenses may be interposed notwithstanding admission of genuiness and due execution of an actionable document as aforesaid? A: In the case of HIBBERD, the following: 1.) payment; 2.) want or illegality of consideration; 3.) fraud; 4.) mistake; 5.) compromise; 6.) statute of limitation; 7.) estoppel; 8.) duress; 9.) minority; and 10.) imbecility Now, if you do not verify you denial, there is already an advantage in my favor. So you cannot anymore interpose the defense of for example, forgery because that is inconsistent with your own admission of the genuineness and due execution of the actionable document. But what if the you presented evidence to prove forgery? Can I waive the benefit of implied admission? Q: May the benefit of the admission of genuineness and due execution of an actionable document? If so, in what instances? A: YES. In the following cases, the implied admission is deemed waived: 1.) Where the pleader presented witnesses to prove genuiness and due execution and the adversary proved, without objection, the contrary. (Yu Chuck vs. Kong Li Po, 46 Phil. 608); 2.) Where the pleader fails to object to evidence controverting the due execution. (Legarda Koh vs. Ongsiaco, 36 Phil. 185) In other words, the lawyer of the defendant does not remember Section 8 and therefore the denial is improper. But the lawyer of the plaintiff did not also remember Section 8 that when there was evidence of forgery, he failed to object. So, the incompetence of the both lawyers cancel each other. That is what happens if the lawyer does not know. Bobo! Maayo pa ang bulalo, naay utok! WHEN DENIAL NOT UNDER OATH STILL VALID Q: When may a simple denial suffice? Meaning, what are the instances where the denial of the genuineness of the document, which is not under oath, is valid? A: Section 8 says, the requirement of an oath does not apply:

1.) When the adverse party does not appear to be a party to the instrument; EXAMPLE: Ms. Guadalope filed a case against Ms. Castillo based on a contract entered by them. But before Ms. Guadalope filed the case, Ms. Castillo died (simba ko!… tok-tok!). So Ms. Guadalope filed against the heirs. The heirs realized that the signature of Ms. Castillo in contract as forged. Even if the answer of the heirs is not under oath, they can still prove forgery because they are not party to the instrument. 2.) When compliance with an order for an inspection of the original instrument is refused; 3.) When the document to be denied is not classified as an actionable document but merely an evidentiary matter. This is because when the document if not actionable, there is no need to follow Section 7. REPLY; GENERAL RULE: OPTIONAL; EXCEPTION: SECTION 8 Normally, the person who is presenting the actionable document is the plaintiff. PROBLEM: But suppose it is the defendant who is invoking an actionable document for his defense. He claims to have paid the loan and have attached a copy of the RECEIPT to his answer. The plaintiff looks at the document and realizes that his signature in the receipt is forged. Q: What should the plaintiff do? A: Based on Section 8, the plaintiff must deny the genuineness of the receipt specifically under oath Q: In what pleading should the plaintiff file where he will deny under oath the genuiness and due execution of the receipt? A: Plaintiff should file a REPLY and it must be under oath. If he will not file a reply, the receipt is impliedly admitted to be genuine. Q: But the plaintiff may argue that under Rule 6, Section 10 the filing of a reply is optional. How do we reconcile it with Section 8? A: Rule 6 is the general rule. Section 8 should prevail over Rule 6 because the former is a specific provision that applies only to actionable document. It has been asked in the Bar: Q: When is the filing of the reply compulsory? A: When the defendant anchors his defense on an actionable document and plaintiff will deny the genuineness and due execution of such document. SPECIFIC DENIAL We will relate Section 10 with Section 5 of Rule 6: Sec. 5. Defenses. - Defenses may either be negative or affirmative. a. A negative defense is the specific denial of the material fact or facts

alleged in the pleading of the claimant essential to his cause or causes of action. x x x

In an answer, defenses may either be negative or affirmative. Q: Define negative defense. A: Briefly, it is a defense of SPECIFIC DENIAL where the defendant denies the statement in the complaint by stating the facts and the reason/s on which his denial is based. Q: How is a specific denial done? A: Rule 8, Section 10: Sec. 10. Specific denial. A defendant must specify each material allegation of fact the truth of which he does not admit and, whenever practicable, shall set forth the substance of the matters upon which he relies to support his denial. Where a defendant desires to deny only a part of an averment, he shall specify so much of it as is true and material and shall deny only the remainder. Where a defendant is without knowledge or information sufficient to form a belief as to the truth of a material averment made in the complaint, he shall so state, and this shall have the effect of a denial. (10a)

Q: So what are the modes of specific denial? A: Under Section 10, there are three (3) MODES OF SPECIFIC DENIAL: FIRST MODE: A defendant must specify each material allegation of fact the truth of which he does not admit and, whenever practicable, shall set forth the substance of the matters upon which he relies to support his denial

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

Sometimes an allegation may consist of 2 or more parts. Therefore the answer may admit part 1 but part 2 is denied. Or, the substance of the allegation is actually admitted by the qualification there is denied. EXAMPLE: Plaintiff alleges that the “Defendant is in possession of the property under litigation in

bad faith.” Now, the defendant may admit that the property is in his possession but he denies the qualification in bad faith – possession is not in bad faith. Based on that, the defendant should say, “Defendant admits that portion of paragraph no. 2 that he is in possession of the property in question; but denies that he is a possessor in bad faith” or something to that effect. Therefore, when you say “I deny the entire paragraph” when actually you are not denying the entire paragraph but only the qualification, that is called a NEGATIVE PREGNANT. Actually, in the legal point of view, what is only denied is the qualification to the averment. The substance of the allegation is actually admitted. THIRD MODE: Where a defendant is without knowledge or information sufficient to form a belief as to the truth of a material averment made in the complaint, he shall so state, and this shall have the effect of a denial

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

11. Allegations not specifically denied deemed admitted. Material in the complaint, other than those as to the amount of unliquidated shall be deemed admitted when not specifically denied. Allegations of a complaint to recover usurious interest are deemed admitted if not

denied under oath. (1a, R9)

While the law says ‘material averment in the complaint,” this rule extends to counterclaims, crossclaims and third-party complaints. (Valdez vs. Paras, L-11474, May 13, 1959) The reason for the rule on specific denial is that, if there is a material averment in the complaint and was not specifically denied, it is deemed admitted. However under Section 11, there are averments in the complaint which are not deemed admitted even when not specifically denied. GENERAL RULE: Material averment in a complaint shall be deemed admitted when not specifically denied. EXCEPTION: Instances when averments in the complaint are not deemed admitted even when not specifically denied: 1.) 2.) 3.) 4.)

Amount of unliquidated damages; Immaterial averments (Worcester vs. Lorenzana, 56 O.G. 7932, Dec. 26, 1960) Evidentiary matters; because a party is only obliged to aver ultimate facts; (Agaton vs. Perez, L-19548, Dec. 22, 1966) Conclusions of facts or law.

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

made by a party before responding to a pleading or, if no responsive pleading is permitted by these Rules, upon motion made by a party within twenty (20) days after the service of the pleading upon him, or upon the court's own initiative at any time, the court may order any pleading to be stricken out or that any sham or false, redundant, immaterial, impertinent, or scandalous matter be stricken out therefrom. (5, R9)

Before answering, the defendant can file a motion to strike out a pleading or a portion of a pleading. Striking a pleading means that the pleading will be deemed erased as if it was never filed. Or if a portion of the pleading be ordered stricken out or expunged where a pleading or a portion thereof is sham or false, redundant, immaterial, impertinent, or a scandalous matter is inserted in the pleading, is deemed erased. This is related to Rule 7, Section 3, third paragraph: RULE 7, Sec. 3. Signature and address. x x x x An unsigned pleading produces no legal effect. However, the court may, in its discretion, allow such deficiency to be remedied if it shall appear that the same was due to mere inadvertence and not intended for delay. Counsel who deliberately files an unsigned pleading, or signs a pleading in violation of this Rule, or alleges scandalous or indecent matter therein, or fails to promptly report to the court a change of his address, shall be subject to appropriate disciplinary action.

So, if your pleading contains scandalous or indecent matters, the lawyer who files it may be subjected to appropriate disciplinary actions. Q: What if it is the reply is the one which contains scandalous matter? A: A motion to strike may still be filed by the defendant within 20 days after the reply.

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Rule 9 EFFECT OF FAILURE TO PLEAD General Rule: DEFENSES AND OBJECTIONS NOT PLEADED EITHER IN A MOTION TO DISMISS OR IN THE ANSWER ARE DEEMED WAIVED Section 1. Defenses and objections not pleaded. Defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived. However, when it appears from the pleadings or the evidence on record that the court has no jurisdiction over the subject matter, that there is another action pending between the same parties for the same cause, or that the action is barred by a prior judgment or by statute of limitations, the court shall dismiss the claim. (2a)

GENERAL RULE: Defenses or objections not pleaded in a motion to dismiss or on answer are deemed waived. If you do not plead your defense, the same is deemed waived. The court has no jurisdiction over the issues. EXAMPLE: In a collection case against you, you did not raise the defense of payment in your answer. But during the trial, you attempted to prove that the loan has already been paid. Now, that cannot be done because the defense of payment is deemed waived because you did not raise it in your answer. In other words, the court never acquired jurisdiction over the issue. So, there is no such thing as a surprise defense because the defense must be pleaded. If you want to surprise the plaintiff during the trial by not raising your defense in your answer, you will be the one who will be surprised because the court will not allow you. When the parties go to court, the plaintiff already knows what are the defenses. They are already in the answer. EXCEPTIONS: Q: What defenses or objections can be taken cognizance of by the court despite the fact that they are not raised in the motion to dismiss or answer? A: Under Section 1, Rule 9, the following: 11.) That the court has no jurisdiction over the subject matter; 12.) That there is another action pending with the same parties for the same cause (litis pendentia; 13.) That the action is barred by prior judgment (res adjudicata); and 14.) That the action is barred by statute of limitation (prescription). Take note that the exceptions can be raised at any time during or after the trial, or even for the first time on appeal. Now, the traditional rule to remember notwithstanding the SIBUNGHANOY Doctrine, is that, when there is a defect in the jurisdiction of the court over the subject matter, the defect can be raised at any stage of the proceeding even for the first time on appeal (Roxas vs. Raferty, 37 Phil. 957). This is because everything is null and void. Jurisdiction over the subject matter cannot be conferred by agreement between the parties, by WAIVER, by silence of the defendant.

LITIS PENDENTIA. You file a another case while another action is pending between the same parties for the same cause. That is actually splitting a cause of action because there is already an action and then you file another action. The action can be dismissed on the ground that there is a pending action. RES ADJUDICATA. There was already a prior final judgment then you file another case regarding the same issue. That is also splitting a cause of action. PRESCRIPTION is not found in the old rule but is taken from decided cases. Among which are the cases of PNB vs. PEREZ (16 SCRA 279) PEPSI COLA vs. GUANZON (172 SCRA 571) HELD: “The rule on waiver of defenses by failure to plead in the answer or in a motion to dismiss does not apply when the plaintiff’s own allegations in the complaint show clearly that the action has prescribed in such a case the court may motu propio dismiss the case on the ground of prescription.” Q: Can the court dismiss the action based on any of these grounds without the filing of a motion to dismiss? A: YES. It would seem so because the second sentence says, “When it appears from the pleadings or the evidence on record … the court shall dismiss the claim.” (This is an important change) Under the 1964 Rules, one of the grounds that you can raise at any stage of the proceeding before judgment is failure to state a cause of action, but it disappears under the new rules. Does it mean to say that you cannot raise it anymore? NO. It can still be raised because it can be taken care of by another rule – Rule 33 on Demurrer. Sec. 2. Compulsory counterclaim, or cross-claim, not set up barred. compulsory counterclaim, or a cross-claim, not set up shall be barred. (4a)

A

See discussions on Rule 6, Sections 7 and 8 on counterclaim and cross-claims, respectively. RULE ON DEFAULT Sec. 3. Default; declaration of. If the defending party fails to answer within the time allowed therefor, the court shall, upon motion of the claiming party with notice to the defending party, and proof of such failure, declare the defending party in default. Thereupon, the court shall proceed to render judgment granting the claimant such relief as his pleading may warrant, unless the court in its discretion requires the claimant to submit evidence. Such reception of evidence may be delegated to the clerk of court. (1a, R18) x x x x x x

A defending party is declared in DEFAULT if he fails to answer the complaint within the time allowed therefor. The rule on answer is found in Rule 11. And under Rule 11 as a rule, you have 15 days to file an answer counted from the time you are furnished a copy of the complaint together with the summons

If the period to answer lapsed and there is no answer, the plaintiff will move to declare the defendant in default on the ground of failure to file an answer to the complaint. So, the court will issue an order of default declaring you as a defaulted defendant. And from the time a party is declared in default, he loses his standing in court, although he is still entitled to notice of subsequent proceedings. He cannot participate in the trial. He cannot object to plaintiff’s evidence. He cannot present his own evidence. In effect, the case will be decided only on the basis of plaintiff’s side without anymore hearing the defendant. And of course, the plaintiff will win. It is like a boxing bout ba where the rule is, isa lang ang mag-suntok. My golly! How can you win in that situation? That is the effect of default. Take note that the word ‘defending’ party applies not only to the original defendant but even to the cross-defendant or defendant in a counterclaim. Q: May a court declare a defendant in default without any motion? A: NO, because the law says, “upon motion of the claiming party.” Now, “with NOTICE to the defending party” is a new one. You must furnish a copy to the defending party of your motion to order the defendant in default which abrogates previous rulings. Q: Suppose the defendant filed an answer but during the trial, he failed to appear. May he be declared in default? A: NO, because the ground for default is failure to file an answer. The correct procedure is for the trial to proceed without him. (Go Changjo vs. Roldan Sy-Changjo, 18 Phil. 405) That is what you call EX-PARTE reception of evidence. Only one side will be heard. BAR QUESTION: If the defendant is declared in default for failure to file an answer is deemed to have admitted the allegations in the complaint to be true and correct? A: YES, because the law NOW says, “the court shall proceed to render judgment granting such claimant such relief as his pleading may warrant.” The reception of plaintiff’s evidence is already dispensed with. Wala ng reception of evidence. That is the GENERAL RULE. That is the same as the summary rules and judgment on the pleadings and the court can grant the relief without presentation of evidence. HOWEVER under Section 3, it is discretionary upon the court to require the claimant to submit evidence. EX-PARTE RECEPTION of evidence is OPTIONAL for the court. And such reception of evidence may be delegated to the clerk of court. This is related to Section 9, Rule 30: Rule 30, Sec. 9. Judge to receive evidence; delegation to clerk of court. The judge of the court where the case is pending shall personally receive the evidence to be adduced by the parties. However, in default or ex parte hearings, and in any case where the parties agree in writing, the court may delegate the reception of evidence to its clerk of court who is a member of the bar. The clerk of court shall have no power to rule on objections to any question or to the admission of exhibits, which objections shall be resolved by the court upon submission of his report and the transcripts within ten (10) days from termination of the hearing. (n)

The reception of evidence maybe delegated to the clerk of court but the clerk of court must be a lawyer, that is the condition. So if he is not a member of the bar, he is not authorize to conduct or hear

an ex-parte reception of evidence. SUMMARY: Steps when the defendant fails to file an answer within the time allowed: 4.) 5.) 6.)

Motion to declare defendant in default; Order of default; Judgment based on the complaint of the plaintiff UNLESS court requires the claimant to submit evidence (ex-parte presentation of plaintiff’s evidence)

However, when should the court dispensed with the ex-parte presentation of evidence and when should it require the claimant to submit evidence being discretionary? May ibang judges who likes kapoy na, judgment kaagad! May iba naman, reception muna which will take time. In my personal view, cases which are simple, presentation of evidence ex-parte can be dispensed with like collection cases ba. Walang laban ang defendant talaga. But in controversial cases, like recovery of a piece of land – medyo mahirap yan. The judge will not automatically decide in your favor simply because of failure to answer by the defendant. The judge may still want to hear plaintiff’s evidence. To my mind, that should be the policy regarding this rule. Q: If a defendant files an answer but did not furnish a copy of the answer to the plaintiff, can the plaintiff move to declare the defendant in default? A: YES, because the answer is deemed to have not been legally filed. It was not in accordance with the Rules of Court. (Gonzales vs. Francisco, 49 Phil. 47) So the defendant must furnish the plaintiff a copy of the answer because in the case of RAMIREZ vs. COURT OF APPEALS 187 SCRA 153 HELD: “The failure to furnish a copy of the answer to the adverse party in itself is sufficient or valid basis for defendant’s default.” Q: May a defendant be declared in default while a motion to dismiss (Rule 16) or a motion for bill of particulars (Rule 12) remains pending and undisposed of? A: NO, because under the filing of a motion to dismiss or motion for bill of particulars interrupts the running of the period to answer. It will run again from the moment he receives the order denying his motion to dismiss or for bill of particulars. (Hernandez vs. Clapis, 87 Phil. 437) In the case of DEL CASTILLO vs. AGUINALDO 212 SCRA 169 [1992] FACTS: The defendant filed a motion to dismiss under Rule 16 but his motion to dismiss did not contain notice of time and place of hearing and the motion was denied. Can he file an answer after filing the motion to dismiss? HELD: NO. He can be ordered in default. The motion is a useless piece of paper with no legal effect. “Any motion that does not comply with Rule 16 should not be accepted for filing and if filed, is not entitled to judicial cognizance and does not affect any reglementary period. Not

Meaning, even if you are a victim of FAME, if you have no meritorious defense, the court will not lift the order of default. You are wasting my time. Kahit na pagbigyan kita, talo ka pa rin. There is no chance for you to win anyway. But if you have a meritorious defense, there is no guarantee that you will win but at least you have a fighting chance ba that your standing will be restored. Upon proof, the court will set aside or lift the order of default and will give the defendant an opportunity to answer, where he will plead his supposed meritorious defenses. In effect, he regains his standing in court. Q: When can the defendant avail of this remedy? A: He may file a motion to set aside the order of default at any time after notice thereof and before judgment. SUMMARY: Steps the defendant should take to set aside the order of default: XIV. File a motion to lift or set aside the order of default. The motion must be verified and under oath; XV. He must explain why he failed to file an answer due to FAME; and XVI. He must also show that he has a meritorious defense. PARTIAL DEFAULT (c) Effect of partial default. - When a pleading asserting a claim states a common cause of action against several defending parties, some of whom answer and the others fail to do so, the court shall try the case against all upon the answers thus filed and render judgment upon the evidence presented. (4a, R18)

This presupposes that there are two or more defendants. Say, one or some of the defendants made an answer and the others did not. So, one or some of the defendants were declared in default, the others were not. EXAMPLE: Gary sued Bentong and Bayani. Bentong filed an answer. Bayani did not. Bayani was declared in default but there can be no judgment against Bayani in the meantime because under paragraph [c], the case will go to trial based on the answer of Bentong. The case will be tried against both Bentong and Bayani based on the answer of Bentong. The principle here is that, the answer filed by the answering defendant will automatically benefit the non-answering defendant. The defense of Bentong will also be Bayani’s defense. Anyway there is a common or identical cause of action. The best example would be a promissory note signed by both Bentong and Bayani and they bound themselves solidarily. Both of them were sued. Bentong answered while Bayani did not, hence he is in default. Can there be a default judgment against Bayani? NO, there will still be a trial based on the answer of Bentong. In effect, Bentong will defend not only himself but also Bayani. Q: Suppose during the trial, Bentong proved that the obligation has been extinguished, which is also applicable to Bayani, and the complaint is dismissed, what is the effect? A: Both Bentong and Bayani will win the case. So Bayani will be benefited by the answer of his codefendant Bentong. Hence, there is still a possibility that a defaulted defendant can win based on our example.

On the other hand it is absurd if the answer of Bentong will not benefit the defaulting defendant. EXAMPLE: Gary filed a case against Bentong and Bayani based on a promissory note on a loan secured by both, and Bayani defaulted. Bentong answered alleging payment. Suppose, Bentong proved such defense, the effect is both Bentong and Bayani are absolved. If you say that Bayani should lose because the answer of Bentong will not benefit Bayani, there will be two conflicting decisions: “Bayani is in default and thus, should pay the loan; and there is no more loan as far as Bentong is concerned.” Do you mean a loan is paid and at the same time unpaid? That’s absurd! But take NOTE that to apply the principle, there must be a common cause of action. If there is no cause of action, while there may be a trial, the answer of Bentong is only for him. After the trial, Bentong might be absolved from liability but the defaulting defendant Bayani will be held liable because Bentong’s answer does not cover Bayani. That is when there is no common cause of action. In the case of CO vs. ACOSTA (134 SCRA 185 [1985]) reiterating the case of LIM TANHU vs. RAMOLETE (66 SCRA 425) FACTS: Bentong and Bayani were (solidary debtors) sued by Gary for a loan evidenced by a promissory note. Bentong filed an answer but Bayani defaulted. The case was tried based on Bentong’s answer. Gary move to drop Bentong from the case but retained Bayani, the defaulted defendant so that Gary can secure an immediate judgement. ISSUE: Is the motion of Gary proper? HELD: NO. When there is a common cause against two or more defendants, if you drop the case against one, you drop the case against all. Selection is not allowed. To drop Bentong means that the cause of action against him is weak. Why should one drop somebody if a case against such person is meritorious? If such is the fact, necessarily the cause of action against the other is also weak the fact there is actually a common cause of action. However, the ruling in ACOSTA should not be confused with the ruling in IMSON vs. COURT OF APPEALS [1996 BAR] 239 SCRA 58 [1994] FACTS: Imson was driving a Toyota Corolla when he was bumped by a Hino Truck causing injury to Imson and totally wreaking his car. So he filed an action for damages against several defendants. He impleaded all of them – the driver, the bus company owner and the insurance company. The insurance company filed an answer but the owner and the driver did not. So both the owner and the driver were declared in default. Subsequently, lmson and the insurance company entered into a compromise agreement wherein the latter paid him P70,000 which was its total liability under the insurance contract. The claim was very big so the insurance company offered to give the amount, “Bahala ka sa sobra.”

So when the case (between Imson and the insurance company) was eventually dismissed because of the compromise agreement, the bus company owner also moved to dismiss the case against him and the driver, arguing that since they are all indispensable parties under a common cause of action, the dismissal of the case against the insurance company should likewise result to the dismissal of the case against them citing the case of ACOSTA and RAMOLETE. ISSUE #1: Is there a common cause of action among the three of them? HELD: The owner is wrong. There is NO common cause of action. The cause of action against the driver is based on quasi-delict under Article 2178 of the Civil Code. The liability against the owner is also based on quasi-delict but on another provision of the Civil Code – Article 2180 (the liability of the employer for the delict or wrong of the employee) So, the liability of the owner and the driver is based on quasi -delict but under separate provisions of the Civil Code. Now, the cause of action against the insurance company is not based on quasidelict but based on contract because he seeks to recover liability from the insurance company based on the third-party liability clause of the insurance contract with the company. So, there no common cause of action among them. Yaaann! ISSUE #2: Is the insurance company an indispensable party? Because if it is so and he is removed from the case, the case cannot proceed without him. HELD: NO. The insurance company is not an indispensable party. “It is true that all of Imson’s claims in civil case is premised on the wrong committed by defendant truck driver. Concededly, the truck driver is an indispensable party to the suit. The other defendants, however, cannot be categorized as indispensable parties. They are merely necessary parties to the case. It is easy to see that if any of them had been impleaded as defendant (meaning, the insurance company or the owner were impleaded), the case would still proceed without prejudicing the party not impleaded.” “Thus, if petitioner did not sue the insurance company, the omission would not cause the dismissal of the suit against the other defendants. Even without the insurer, the trial court would not lose its competency to act completely and validly on the damage suit. The insurer, clearly, is not an indispensable party.” It is a necessary party. (d) Extent of relief to be awarded. - A judgment rendered against a party in default shall not exceed the amount or be different in kind from that prayed for nor award unliquidated damages. (5a, R18)

This is what we call LIMITATIONS on a default judgment: 6.) The default judgment should not exceed the amount prayed for in the complaint; 7.) The default judgment should not be different in kind from that prayed for in the complaint; 8.) The default judgment should not award unliquidated damages. Q: In the complaint, the claim is P300,000. The defendant defaulted. The court required the plaintiff to present his evidence and during the trial, the latter proved P500,000 total claim. Can the court award P500,000 claim as proved?

A: NO. It should only be P300,000 as prayed for in the complaint. Q: Suppose during the trial, only P200,000 was proved. What should be the amount of the default judgment? A: Only P200,000 as proved because it did not exceed the amount prayed for in the complaint. Therefore, the rule is, the default judgement cannot exceed the amount prayed for in the complaint although it may be less than it. Yaannn! FUNDAMENTAL REASON ON THE RULE ON DEFAULT What is the reason behind this? You have to know the philosophy on default to understand the reason behind paragraph [d]. Default means the defendant failed to file an answer despite the fact that he was properly summoned. Q: If a defendant failed to file an answer, what may be the reasons behind that? Why did he not file an answer? A: In the case of LIM TOCO vs. GO FAY, (80 Phil 166), there are two (2) possible reasons: 4.) Defendant deliberately did not answer because he believed that he had no good defense, and that the claim is fair. And if he will make an answer, still he will not win and would just incur expenses; 5.) He had a meritorious defense and he wanted to answer but for one reason or another beyond his control, he failed to file his answer. Q: In the second possibility – the defendant had a defense and wanted to file an answer but failed to file an answer, what is the remedy of such defendant? A: It is paragraph [b] – file a motion to lift the order of default and state the reasons beyond one’s control – fraud, mistake, accident, or excusable negligence (FAME) and that there is a meritorious defense. Now suppose he did not answer because he thinks the claim is fair and so he will just pay. Then, the contingency is paragraph [d] – rest assured that the judgment will not exceed the amount or be different in kind from that prayed for. At least, you will not be surprised. Just imagine, if you file a case against me for P200,000 damages and then I thought its fair. So I allowed myself to be defaulted because anyway its only P200,000 because if I file my answer, the costs could increase. And then during the trial, you proved that the damages were in fact P2 million. So, when I received the judgment it was already P2 million when the complaint was only for P200,000. Now, if you knew that would be the case, then you would have fought it out. In other words, its unfair. Hence, the reason. Q: If the defendant filed an answer but failed to appear during trial, what will happen? A: The case will proceed and there will be a presentation of evidence EX-PARTE. Now if a person is declared in default, it is also possible that an Ex Parte presentation of evidence will be ordered.

MANGELIN vs. COURT OF APPEALS 215 SCRA 230 [1992] ISSUE: What is the difference between ex-parte presentation of evidence by virtue of default judgment AND ex-parte presentation of evidence by failure to appear during the trial HELD: In reception of evidence due to DEFAULT ORDER, paragraph [d] applies – the judgment cannot exceed the amount or be different in kind from that prayed for in the complaint. BUT if there’s an ex-parte reception of evidence against a defendant who filed an answer but FAILED TO APPEAR during the trial, the limitations in paragraph [d] does not apply. Therefore in this case, a greater amount than that prayed for in the complaint, or a different nature of relief may be awarded so long as the same are proved. “It may be pointed out that there is a difference between a judgment against a defendant based on evidence presented ex-parte pursuant to a default order and one based on evidence presented ex-parte and against a defendant who had filed an answer but who failed to appear at the hearing. In the former, Section 3 [d] of Rule 9 provides that the judgment against the defendant should not exceed the amount or be different in kind from that prayed for. In the latter, however, the award may exceed the amount or be different in kind from that prayed for.” This is because when there is an ex parte presentation of evidence due to failure to appear in trial, one’s standing in court is not lost. HE can still present evidence later to refute the plaintiff’s evidence. He simply waived the rights attached on particular hearing but not to all subsequent trials. In judgement by default, he actually loses his standing in court. They added new (third) limitation – Unliquidated damages cannot be awarded in default judgment. Obviously liquidated ones can be. Q: What is the difference between UNLIQUIDATED damages and LIQUIDATED damages? A: UNLIQUIDATED DAMAGES are those which are still subject to evidence before it can properly be awarded such as the presentation of receipts in terms of actual damages, or taking of testimonies to determine mental anguish or besmirched reputation in cases of moral damages. LIQUIDATED DAMAGES are those which are already fixed and proof or evidence to establish the same are not required. An example is an obligation with a penal clause like an agreement to construct a house and upon failure to finish the same within a stipulated period, the contractor is liable for P10,000 for every day of delay. The amount is already fixed based on the contract price and the penalty provided and such other circumstances as stipulated. Now, this third limitation is one of the provisions that I criticized. It should not be here. Something is wrong here. Last September 1997 during the BAR exams, the secretary of the committee which drafted this, the former clerk of court of the SC, Daniel Martinez asked for comments on the New (1997) Rules. I told him about the new Rules on Default, asking him who placed the provision there. He said it was Justice Feria’s idea. J. Feria said, “Kawawa naman kasi yung tao, na-default na titirahin mo pa ng unliquidated damages.” But I said that there is something wrong here. For EXAMPLE: You filed a case against me

na puro damages – compensatory , moral , etc. and I believe I will lose the case if I go to trial. So, my strategy now would to have myself declared in default because anyway, those unliquidated damages cannot be awarded by default. In other words, they have placed the defaulted defendant in a better position when he will file an answer because if he files an answer and goes to trial, he might lose. So, if he allows himself to be defaulted, the court can never award the damages. This is the effect of the new limitation. That is why I’m against this change here. So, in an action for damages, I will never answer para pag ma-default ako, the court can never award those damages. Because if I will answer, eh baka ma-award pa. In other words, I will win the case simply because there is no way for the court to award the damages. And most damages are usually those unliquidated damages. (e) Where no defaults allowed. - If the defending party in an action for annulment or declaration of nullity of marriage or for legal separation fails to answer, the court shall order the prosecuting attorney to investigate whether or not a collusion between the parties exists, and if there is no collusion, to intervene for the State in order to see to it that the evidence submitted is not fabricated. (6a, R18)

This refers to marital relations referred to in the Family Code: Annulment of marriage; Declaration of nullity of marriage; Legal Separation. And the policy of the State is to preserve the marriage and not encourage break-ups. Now, in the absence of this provision, husband and wife quarrels and then they decide to separate. Wife will file a case for legal separation with the agreement that the husband will not answer. Being in default, there will be a judgement in default and in a month’s time marriage will be severed for the meantime. The provision then prohibits default in marital relations cases to preserve and uphold public policy. Q: What if the party did not really file an answer? A: The court is bound to find out whether there is a collusion between the parties – whether the act is deliberate without agreement. We already know that there should be presentation of evidence. And the law requires the State to intervene. The fiscal is responsible to see to it that the evidence is not fabricated, the same is legitimate. Relate this provision of the rule to Articles 48 and 60 of the Family Code: Family Code, Art. 48. In all cases of annulment or declaration of absolute nullity of marriage, the court shall order the prosecuting attorney or fiscal assigned to it to appear on behalf of the State to take steps to prevent collusion between the parties and to take care that the evidence is not fabricated or suppressed. In the cases referred to in the preceding paragraph, no judgment shall be based upon a stipulation of facts or confession of judgment. Family Code, Art. 60. No decree of legal separation shall be based upon a stipulation of facts or a confession of judgment. In any case, the court shall order the prosecuting attorney or fiscal assigned to it to take steps to prevent collusion between the parties and to take care that the evidence is not fabricated or suppressed.

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Rule 10 AMENDED AND SUPPLEMENTAL PLEADINGS Part I. AMENDMENTS Sec. 1. Amendments in general. - Pleadings may be amended by adding or striking out an allegation or the name of any party, or by correcting a mistake in the name of a party or a mistaken or inadequate allegation or description in any other respect, so that the actual merits of the controversy may speedily be determined, without regard to technicalities, and in the most expeditious and inexpensive manner. (1)

What do you understand by amendment? The general meaning of amendment is change. Now can we amend pleadings, change it? Yes. Q: How do you amend a pleading? A: Well, any type of change – you can add a word or a sentence or you strike out an allegation or you add or strike out a party; you correct a mistake in the name of a party or inadequate allegation or description in any other respect. As a matter of fact, if you correct only one letter, that is already an amendment. So you can amend by removing something, adding something, or changing something by substituting another word. You can amend by removing an entire paragraph, an entire sentence, a phrase, or a word. So that is what amendment is all about. As a matter of fact, before reaching Rule 10, there are provisions where amendments have already been touched upon, one of which is Rule 1, Section 5: Sec. 5. Commencement of action.- A civil action is commenced by the filing of the original complaint in court. If an additional defendant is impleaded in a later pleading, the action is commenced with regard to him on the date of the filing of such later pleading, irrespective of whether the motion for its admission, if necessary, is denied by the court.

So in other words, if I file a complaint against A, then later on I will include another defendant, the inclusion of an additional defendant party is an amendment. Q: Suppose I will file a case against Jacques today, January 9, then one month from today I will file another complaint to include an additional defendant, Tikla. When is the case deemed commenced? A: According to Rule 1, Section 5, as far as Jacques is concerned, the original defendant, the case against him is commenced today. But as far as Tikla is concerned, the additional defendant, the case is commenced not upon the filing of the original complaint, but on the date when he is included in the amended complaint. So, the amendment does not retroact to the date of the filing of the original action. Q: What is the policy of the law on amendments? Should it be encouraged or discouraged? If a party wants to amend his complaint or answer, should the court be liberal in allowing the amendment or should it restrict, as a general rule, and not allow the amendment? A: Section 1 says that the purpose of amendment is that the actual merits of the controversy may speedily be determined without regard to technicalities, and in the most expeditious and inexpensive manner. According to the SC, amendments to pleadings are favored and should be liberally allowed in order (a) to determine every case as far as possible on its actual merits without regard to technicalities,

(b) to speed up the trial of cases, and (c) to prevent unnecessary expenses. (Verzosa vs. Verzosa, L25603, Nov. 27, 1968; Cese vs. GSIS, L-135814, Aug. 31, 1960) EXAMPLE: The plaintiff files his complaint or the defendant files his answer and then later on he realizes that his cause of action is wrong or that his defense is wrong. He would like to change his complaint or change his answer. All he has to do is amend his complaint or answer. The court cannot stop him from changing his complaint or changing his answer because the purpose of litigation is: the real nature of controversy will be litigated in court. You cannot normally stop the party from ventilating his real cause of action or his real defense so that the rule is that amendments should be liberally allowed in the furtherance of justice and that the real merits of the case will come out in court. That is what you have to remember about concept of amendments and the policy of the rules on amendments. TYPES OF AMENDMENTS: The following are the important points to remember here: FIRST, there are two types of amendment of pleadings under the rules: 1.) An amendment as a matter of right; or 2.) An amendment as a matter of judicial discretion SECOND, an amendment could be f.) a formal amendment; or g.) a substantial amendment These are the same classification under the Rules on Criminal Procedure under Rule 110. Amendment as a MATTER OF RIGHT; and Amendment as a MATTER OF JUDICIAL DISCRETION AMENDMENT AS A MATTER OF RIGHT simply means that the party has the unconditional action or right to amend his pleading. The court has no right to prevent him from amending. The opposite party has no right to oppose the amendment. AMENDMENT AS A MATTER OF JUDICIAL DISCRETION simply means that the court may or may not allow the amendment. So the other party has the right to oppose. AMENDMENT AS A MATTER OF RIGHT Q: When is amendment a matter of right? A: Section 2: Sec. once as or, in served.

2. Amendments as a matter of right. - A party may amend his pleading a matter of right at any time before a responsive pleading is served the case of a reply, at any time within ten (10) days after it is (2a)

PROBLEM: I am the plaintiff, I file a complaint. I want to amend my complaint. When is the amendment a matter of right?

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

When the amendment is fairly formal, it can be done anytime. As a matter of fact it can be summarily corrected by the court at any stage of the action, upon motion or even without motion, the court will order the amendment. Because anyway that is a harmless correction. NOTE: Change of amount of damages is only formal because there is no change in the cause of action. SUMMARY: Amendment as a matter of right: 1.) Before an answer is filed (Complaint); 2.) Before a reply is filed or before the period for filing a reply expires (Answer); 3.) Any time within 10 days after it is served (Reply); and 4.) Formal amendment AMENDMENT AS A MATTER OF JUDICIAL DISCRETION So we will now go to substantial amendments which are a matter of judicial discretion, that is Section 3: Sec. 3. Amendments by leave of court. - Except as provided in the next preceding section, substantial amendments may be made only upon leave of court. But such leave may be refused if it appears to the court that the motion was made with intent to delay. Orders of the court upon the matters provided in this section shall be made upon motion filed in court, and after notice to the adverse party, and an opportunity to be heard. (3a)

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

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

be dilatory. Now if you will notice, there is another limitation found in the old rules that is gone here, and that is : That the amendment will not be allowed if it will SUBSTANTIALLY alter the cause of action or defense (Torres vs. Tomacruz, 49 Phil. 913) The implication here is that, since amendment is favored, even if you alter you cause of action or defense, you should not prevent the other party provided that it is not dilatory. And the definition of this limitation is a confirmation of what the SC said in some cases like the case of MARINI-GONZALES vs. LOOD 148 SCRA 452 HELD: “While the Rules of Court authorize the courts to disallow amendment of pleadings when it appears that the same is made to delay an action or that the cause of action or defense is substantially altered thereby, the rule is not absolute.” It is discretionary. “Courts are not precluded from allowing amendments of pleadings even if the same will substantially change the cause of action or defense provided that such amendments do not result in a substantial injury to the adverse party. This is due to the permissive character of said rule [which provides: “may refuse”]. In fact, this Court has ruled that amendments to pleadings are favored and should be liberally allowed in the furtherance of justice.” That is why these are enough reason to delete that limitation. But if you are going to change your cause of action or defense when the trial is almost over, hindi na puwede because that will be dilatory. But if you want to change it before the trial, that it still allowed, even if it is substantial in nature. That’s why this limitation disappeared. But despite the fact that there is only one limitation now left, it is conceded that there are still limitations not found in the law which have remained intact. 2.) WHEN THE AMENDMENT IS FOR THE PURPOSE OF MAKING THE COMPLAINT CONFER JURISDICTION UPON THE COURT In other words, based on the original complaint the court has no jurisdiction over the subject matter. So I will amend the complaint so that the court will have jurisdiction. Well, that will not be allowed. So, jurisdiction by the court cannot be conferred by amendment when the original complaint shows that the court has no jurisdiction. For EXAMPLE: I will file a complaint for an unpaid loan and the amount is exactly P200,000 only. Where should I file the complaint? MTC. But by mistake I file it in the RTC and later I realized that the case should have been filed in the MTC because the jurisdiction of the RTC should be above P200,000. So I will amend my complaint and change the complaint and say that my claim is P100,001.00. The obvious purpose of the amendment is to make the case fall within the jurisdiction of the RTC. According to the SC, it cannot be done. The rule here is when in its face, the complaint shows that the court has no jurisdiction over the subject matter, the court has no authority to act in the case. And if you move to amend it and ask the court to allow the amendment, you are assuming that the court has the authority to act on the case. But the court can’t allow it because the court has no authority to act. So the court even is not authorized to allow the amendment because it has no authority to act in the first place. How can you allow something when you do not have the authority to act? My golly!

So according to the SC, when its on very face the complaint shows that the court has no jurisdiction, the court has only one authority and its only authority is to dismiss the case. So with that an amendment cannot confer jurisdiction. 3.) WHEN THE AMENDMENT IS FOR THE PURPOSE OF CURING A PREMATURE OR NONEXISTING CAUSE OF ACTION Meaning, on its very face, there is no cause of action, there is no case. There is no delict or there is no wrong. Now how can you create a delict or wrong by amending your complaint? In effect, you are creating something out of nothing. BAR QUESTION: How do you distinguish a NON-EXISTENT cause of action from IMPERFECT cause of action? A: The following are the distinctions: 9.)

In a NON-EXISTENT cause of action, there is yet no delict or wrong committed by the defendant (Limpangco vs. Mercado, 10 Phil. 508) whereas In an IMPERFECT cause of action, a delict or wrong has already been committed and alleged in the complaint, but he cause of action is incomplete (Alto Surety vs. Aguilar, L-5625, March 16, 1945); and

10.)

a NON-EXISTENT cause of action is not curable by amendment (Limpangco vs. Mercado, 10 Phil. 508; Surigao Mine vs. Harris, 68 Phil. 113) whereas an IMPERFECT cause of action is curable by amendment (Alto Surety vs. Aguilar, L-5625, March 16, 1945; Ramos vs. Gibbon, 67 Phil. 371).

BAR QUESTION: Suppose the filing of the complaint will lapse on January 20 and I will file the complaint today so the running of the period will be interrupted. Suppose I will amend my complaint next month, on February. Question: Is prescription properly interrupted? When an original complaint is amended later, when is the prescriptive period for filing the action interrupted? Upon the filing of the original complaint or upon the filing of the amended complaint? A: It DEPENDS upon the nature of the amendment: u.) If the amendment introduces a new and different cause of action, then the prescriptive period is deemed interrupted upon the filing of the amended complaint; (Ruymann vs. Dir. of Lands, 34 Phil. 428) v.) But where the amendment has not altered or changed the original cause of action, no different cause of action is introduced in the amended complaint, then the interruption of the prescriptive period retroacts on the date of the filing of the original complaint. (Pangasinan Trans. CO. vs. Phil. Farming Co., 81 Phil. 273; Maniago vs. Mallari, 52 O.G. 180, October 31, 1956) EXAMPLE: I will file today a case for damages arising for quasi-delict. And then one or two months from now I will amend my complaint from damages arising from culpa aquiliana to damages arising from culpa contractual. Is that a different cause of action? Yes, so the prescriptive period for culpa contractual is deemed filed next month, not this month, because that is a different cause of action.

EXAMPLE: But suppose I file a case against you for culpa aquiliana, and my claim is one million. Next month I amend my complaint for damages from one million pesos to two million pesos. Did I change my cause of action? No, it is still the same cause of action—culpa aquiliana. Therefore, the prescriptive period is deemed interrupted as of the date of the filing of the original complaint. AMENDMENTS TO PLEADINGS IN CRIMINAL CASES Now, the classifications of amendments under the rule on criminal procedure are the same because there is such a thing as amendments on the criminal complaints or informations as a matter of right on the part of the prosecution and amendments as a matter of judicial discretion. And under the rules of criminal procedure, an amendment can either be formal or substantially received. There is some difference in the rules. How do you differentiate the amendment of a pleading, under the rules on civil procedure and the amendment of a criminal complaint or information in criminal cases? Take note that there is no Answer in criminal cases. The accused is not obliged to file answer but the counterpart of answer in criminal cases is the plea, where he pleads either guilty or not guilty. Under the rules on criminal procedure, at anytime before the arraignment or before he enters plea, the amendment of information is a matter of right, either in form or in substance. EXAMPLE: The prosecution files an information against you for homicide and then the prosecution wants to agree to murder. Can it be done? YES, for as long as the accused has not yet entered his plea. So it is almost the same as in civil cases. For as long as there is no responsive, pleading the amendment is a matter of right whether in substance or in form. Q: Now in criminal cases, AFTER the accused had already entered his plea to the original charged, is amendment still allowed? Can the prosecution still amend? A: YES. But what is allowed is only formal amendment. Substantial amendment is 100% prohibited in criminal cases. But in civil cases, puwede. OBJECTIONS AND DEFENSES NOT RAISED ARE DEEMED WAIVED; EXCEPTION Sec. 5. Amendment to conform to or authorize presentation of evidence. When issues not raised by the pleadings are tried with the express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so with liberality if the presentation of the merits of the action and the ends of substantial justice will be subserved thereby. The court may grant a continuance to enable the amendment to be made. (5a)

Q: May issues not raised in the pleadings be tried in court during the trial? A: As a GENERAL RULE, a defendant during the trial is not allowed to prove a defense that is not raised in the pleadings based on Rule 9, Section 1. The court has no jurisdiction over the issue. That’s why there is no such thing as surprise defense because a defense that is not raised is deemed waived.

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

subserved thereby.” EXAMPLE: The defendant during the trial attempted to prove the obligation that it is paid. The lawyer of the plaintiff is alert and objected thereby, “You cannot prove that defense because you never raise a defense of payment in your answer.” Is the objection correct? YES because of Rule 9, Section 1. The court affirmed the plaintiff that one cannot prove the defense of payment because you never raised it in your answer. There is no express or implied consent. Q: But the defendant said, “If that is so your honor, may we be allowed to amend our answer so that we will now raise the defense of payment and prove it in court?” Can the court allow the defendant to amend his answer in the middle of the trial just to prove a defense that is not raised? A: The rule says YES, the court may allow the pleadings to be amended and shall do so with liberality if the presentation of the merits of the action and the ends of substantial justice will be subserved thereby. That is why you can say that the power of the court in enforcing the Rules of Court is very wide. For example, I am the judge and the defendant never raised the issue of payment in his answer and he is now rising such defense. The plaintiff’s lawyer will now object and alleged that he cannot prove such defense for he never raised it in his answer. The judge sustained the objection, “You cannot prove a defense that is never raised in your answer.” Q: Is my ruling correct? A: YES because of Rule 9, Section 1 – objections and defenses not raised in the answer are deemed waived. The defendant will now move to be allowed to amend the pleading so that I raised that defense. The plaintiff will object to the amendment. The judge will ask the plaintiff, “is the obligation paid?” “NO. The defendant never paid it,” answered the plaintiff. So if the defense is false, why are you afraid? Anyway, he cannot prove it. So I will allow the amendment. However, if the plaintiff will answer that the defendant has already paid the obligation but that he never raised such matter in his answer. The plaintiff now will be in bad faith. So I will allow the amendment. So in other words, in any way my ruling is correct because I know how to apply the rule. So the court will allow the amendment and shall do so with liberality… so LIBERALITY should be the rule on amendment. Section 5 is a rule more on equity. While, Rule 9, Section 1 is a rule of law. Section 5 is a relaxation of that law on technicality. The last sentence, “the court may grant a continuance to enable the amendment to be made.” ‘Continuance’ means postponement. It means, postponement of the case to allow the defendant to amend his answer first. Part II. SUPPLEMENTAL PLEADINGS Sec. 6. Supplemental pleadings. - Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit him to serve a supplemental pleading setting forth transactions, occurrences or events which have happened since the date of the pleading sought to be supplemented. The adverse party may plead thereto within ten (10) days from notice of the order admitting the supplemental pleading. (6a)

The second part of Rule 10 is the supplemental pleading, for the first part is the amended pleadings. Q: How do you distinguish an AMENDED pleading from a SUPPLEMENTAL pleading? A: Of course, the similarity between the two is the existence of ORIGINAL PLEADING. The following are the distinctions: FIRST DISTINCTION: As to the allegations An AMENDED pleading contains transactions, occurrences or events which already happened at the time the original pleading was filed and could have been raised at the original pleading, but which the pleader failed to raise in the original pleading because, oversight or inadvertence or inexcusable negligence. If he wants to raise it, he must amend the pleading. Whereas, A SUPPLEMENTAL pleading contains transactions, occurrences or events which were not in existence at the time the original pleading was filed but which only happened after the filing of the original pleading and therefore, could not have been raised in the original pleading. That is the distinction emphasized in the New Rule – Rule 11, Sections 9 and 10: Rule 11, Section 9. Counterclaim or cross- claim arising after answer. – A counterclaim or cross-claim which either matured or was acquired by a party after serving his pleading may, with the permission of the court, be presented as a counterclaim or cross-claim by supplemental pleading before Judgment. Rule 11, Section 10. Omitted counterclaim or cross-claim. – When a pleader fails to set up a counterclaim or a cross-claim through oversight, inadvertence, or excusable neglect, or when justice requires, he may, by leave of court, set up the counterclaim or cross-claim by amendment before judgment.

These provisions emphasize the difference between an amended pleading and a supplemental pleading – how do you raise a counterclaim or cross-claim which was not raised earlier? Is it by amending the pleading or by filing d supplemental pleading ? And that applies also to an answer where the defense or the transaction or the cause of action supervened later. SECOND DISTINCTION: As to effect In an AMENDED pleading, the amended pleading supersedes the original pleading. The original pleading is deemed erased. The amended substitutes the original. So from the viewpoint of the law, the original pleading no longer exists. Whereas, When a SUPPLEMENTAL pleading is filed, it does not supersede the original pleading. In effect, there are now two (2) pleadings which stand side by side in the case – the original and the supplemental pleadings. EXAMPLE: Mortz borrowed from Nanding P200,000 payable in 2 yearly installments. Mortz failed to pay the first installment. Nanding filed a case. While the case is pending, the other installment became due. Nanding will now file a supplemental pleading and as a result, there will be two (2) complaints for P100,000 each.

Rule in EVIDENCE: In an amended pleading, all your admissions and evidence no longer exist because remember under the rules on Evidence, any admission that you make in your pleading binds you under the doctrine of judicial admission where the evidence need not be given - as if it is taken judicial notice of. The rule is, if a pleading is amended and the amended pleading does not contain the admissions contained in the original pleading, the judicial admission is now converted into an extra-judicial admission and therefore the court will no longer take judicial notice of that. But if I want to bring it to the attention of the court an admission which is not found there (in the amended pleading), I have to formally offer in evidence the original pleading. Normally, you do not offer in evidence a pleading because the court takes judicial notice of everything stated in there. But if the original pleading is now superseded, the original must be offered in evidence to prove an admission found in the original but not anymore in the amended one. That principle in now found in Section 8: Section 8. Effect of amended pleadings. - An amended pleading supersedes the pleading that it amends. However, admissions in superseded pleadings may be received in evidence against the pleader; and claims and defenses alleged therein not incorporated in the amended pleading shall be deemed waived.

That is related to the rule in evidence that what need not be proved: judicial notice, judicial admissions. THIRD DISTINCTION: The filing of an AMENDED pleading could be a matter of right or of judicial discretion under Sections 2 and 3; whereas The filing of a SUPPLEMENTAL pleading is always a matter of judicial discretion under Section 6. There is always leave of court. Now, let us cite cases which are relevant to our topic on supplemental pleadings. LEOBRERA vs. COURT OF APPEALS 170 SCRA 711 FACTS: Karen went to the bank and obtained a loan – housing loan. A promissory note was issued payable next year. After few months, Karen went back to the bank and secured a second loan – agricultural loan with another promissory note. When the first note became due, Karen failed to pay. So the bank sued Karen on the first promissory note. When the case was still going on, the second loan became due. So the bank sought to file a supplemental complaint against Karen to collect the second loan. The maturity of the second loan happened after the filing of the first pleading sought to be supplemented. ISSUE: Is there a proper supplemental complaint? HELD: NO. It is improper. Although the plaintiff and the defendant are the same, there are two separate loans independent of each other as a matter of fact the stipulations are not identical. It cannot be the subject matter of a supplemental complaint. In this case, there are many types of loans secured in different terms and conditions. “A supplemental complaint must based on matters arising subsequent to the original complaint RELATED to the claim presented therein and founded on the same cause of

action.” It cannot be used to try of another matter or a new cause of action. A good EXAMPLE for a supplemental complaint is when I borrow money from you for P600,000 payable in three installments. First installment is on February for P200,000; second installment is on April; and the last installment is on June for the last P200,000. There is no acceleration clause. When the first installment fell due, I did not pay. So the plaintiff filed a case against me to collect the first installment. In April, the case is still not yet decided. In fact the second installment again fell due. Plaintiff moved to file for the supplemental pleading. While the two cases are still pending, the last installment fell due and again there is failure to pay, so there is another supplemental complaint. Q: Is that proper? A: YES because these are not two separate loans but one loan and the installments are interrelated. SUPERCLEAN SERVICES INC. vs. COURT OF APPEALS 258 SCRA 165 [1996] FACTS: Superclean Service Corp. is a company engaged in janitorial services. A government corporation, the Home Development and Mutual Fund (HDMF) sought a public bidding on who will be the company who shall provide janitorial services to the offices of the HDMF for the year 1990. Superclean won as it was the lowest bidder. It was suppose to start providing the service for the year 1990. However, the HDMF refused to honor the award. So, on November 8, 1989, Superclean filed in the RTC of Manila a complaint for mandamus and certiorari against HDMF alleging that at public bidding for janitorial services for the year 1990, it won as the lowest bidder but HDMF refused without just cause, to award the contract to 'hem, The problem was that 1990 already ended and the case was still on-going. So it was already rendered moot and academic. What Superclean did was to file a supplemental complaint in 1991 alleging that because the contract of service was the furnishing of janitorial services for the year 1990, the delay in the decision of the case has rendered the case moot and academic without Superclean obtaining complete relief to redress the wrong committed against it by HDMF which relied now consists of unrealized profits, exemplary damages and attorney’s fees. So, money claim na lang dahil moot and academic na eh. Instead of pursuing its prayer for mandamus, Superclean sought the payment of damages to it. ISSUE: Is the filing of supplemental complaint proper in order to seek a different relief in view of developments rendering the original complaint impossible of attainment? HELD: “The transaction, occurrence or event happening since the filing of the pleading, which is sought to be supplemented, must be pleaded in aid of a party's right of defense as the case may be. [That’s the purpose of the supplemental pleading – in aid of the party’s cause of action or defense] But in the case at bar, the supervening event is not invoked for that purpose but to justify the new relief sought.” “To begin with, what was alleged as a supervening event causing damage to Superclean was the fact that the year for which the contract should have been made had passed without the resolution of the case. The supervening event was cited not to reinforce or aid the original demand, which was for the execution of a contract in petitioner's favor, but to say that, precisely because of it, petitioner's demand could no longer be enforced, thus justifying petitioner in changing the relief sought to one for recovery of damages. This being the case,

petitioner's remedy was not to supplement, but rather to amend its complaint.” You are actually changing the relief so that the correct remedy is not a supplemental complaint but an amended complaint. “Be that as it may, the so-called Supplemental Complaint filed by petitioner should simply be treated as embodying amendments to the original complaint or petitioner may be required to file an amended complaint.” So, meaning, you call it a supplemental complaint, the court will call it as an amended complaint or the other alternative, require him to file an amended complaint. Sec. 7. Filing of amended pleadings. - When any pleading is amended, a new copy of the entire pleading, incorporating the amendments, which shall be indicated by appropriate marks, shall be filed. (7a)

When a party files an amended pleading, the amendments should be indicated by appropriated marks, normally, the amended portion is underlined. EXAMPLE: A party would to insert an entirely new paragraph. That paragraph would be underlined. The purpose for such marking is for the court and the opposing party to immediately see and detect the amendment. If no appropriated mark is provided the court and the lawyer has to compare everything, paragraph by paragraph, sentence by sentence, line by line. Now, if there are underlines, the court will just concentrate on the underlined portion. This is for convenience for the parties and the court. Section 8. Effect of amended pleadings. - An amended pleading supersedes the pleading that it amends. However, admissions in superseded pleadings may be received in evidence against the pleader; and claims and defenses alleged therein not incorporated in the amended pleading shall be deemed waived.

(Section 8: See discussion on Section 6 on distinctions between an amended and supplemental pleading; second distinction) The first sentence is one of the distinctions between an amended pleading and a supplement pleading. From procedural viewpoint, the original pleading is already non-existent. The court will no longer consider anything stated there. EXAMPLE: You say something favorable to me. However, in his amended pleading, he removes such statement, so that the court will not consider it anymore. Such statement is out of the picture. Now, if you want to bring to the attention of the court the statement found in the original pleading, you must offer the original pleading in evidence to consider it all over again. This rule will be considered in the study of EVIDENCE.

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Rule 11 WHEN TO FILE RESPONSIVE PLEADINGS What are discussed in this rule are periods. The question when a defendant wants to file an answer is, “How many days does he have?” There must be a deadline. Rule 11 applies to all persons – natural and juridical such as a corporation. SECTION 1. Answer to the complaint. The defendant shall file his answer to the complaint within fifteen (l5) days after service of summons, unless a different period is fixed by the court. (1a)

Section 1 is the GENERAL RULE – the defendant has a period of 15 days after service of summons within which to file his answer. The procedure is when a plaintiff files a complaint in court, the court will issue summons (which is the counterpart of warrant of arrest in criminal cases). The sheriff of the court will look for the defendant and serve him a copy of the complaint. From that day on, the defendant has 15 days to file his answer. The rules says, “unless a different period is fixed by the court.” That would be the EXCEPTION to the 15-day period to file answer. Now, when are these instances when the court may fix a different period? They are those mentioned in Rule 14, Sections 14, 15, and 16 – yung tinatawag service of summons by publication. Let’s give example to the general rule. EXAMPLE: If the defendant is served with a copy of the complaint and summons today (January 13,1998), the last day to file an answer will be January 28, 1998. Just add 15 days to January 13. In computing the a period, you follow the rule known as “exclude the first, include the last day rule” under Article 13 of the New Civil Code. I think you know how to apply that. When you receive the complaint today or when you are summoned today, you start counting the period tomorrow. Such rule is also found in Section 1 of Rule 22 on Computation of Time: Rule 22, Sec. 1. How to compute time. - In computing any period of time prescribed or allowed by these Rules, or by order of the court, or by any applicable statute, the day of the act or event from which the designated period of time begins to run is to be excluded and the date of performance included. If the last day of the period, as thus computed, falls on a Saturday, a Sunday, or a legal holiday in the place where the court sits, the time shall not run until the next working day. (n)

(The following discussions on Rule 22 are taken from the Remedial Law Review Transcription [1997-1998]:) So you see, ito (Section 1, Rule 22) yung the act itself from which the designated period of time where the case will run is to be excluded. Meaning, when you receive the summons, you count one but today is excluded and of course the last day is included. And if the last day is the next working day. A: It is done on the next business day. Here, there is an automatic extension. Sec. 2. Effect of interruption. Should an act be done which effectively interrupts the running of the period, the allowable period after such

interruption shall start to run on the day after notice of the cessation of the cause thereof. The day of the act that caused the interruption shall be excluded in the computation of the period. (n)

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

December 10 Defendant filed a Motion to Dismiss

December 15 Motion to Dismiss is denied.

December 21 Deadline to file the Answer

Alright, let’s go back to Rule 11: Sec. 2. Answer of a defendant foreign private juridical entity. Where the defendant is a foreign private juridical entity and service of summons is made on the government official designated by law to receive the same, the answer shall be filed within thirty (30) days after receipt of summons by such entity. (2a)

The defendant here is a foreign private juridical entity. Meaning, a foreign corporation doing business in the Philippines. In the first place, one cannot sue a foreign private corporation which is not doing business in the Philippines because there is no way that the court can acquire jurisdiction over the person of such corporation. If the foreign private corporation is doing business in the Philippines, then one can sue it here in the Philippines. EXAMPLES: Sun Life of Canada; China Airlines (CAL), Cathay Pacific, etc. Q: Now, what is the period to answer when the defendant is a foreign private corporation doing business in the Philippines? A: It DEPENDS: 7.) When the foreign corporation has a designated resident agent, the summons shall be served to the resident agent, and he has 15 days to answer, just like any defendants in Section 1. 8.) On the other hand, if the foreign corporation does not have any designated resident agent in the Philippines, then under the Corporation Code, the summons shall be served to the government official designated by law to receive the same, who is duty bound to transmit it to the head office of the corporation abroad. And the corporation now has 30 days from receipt of summons to file its answer. So it is either 15 or 30 days. Q: Now, who is this proper government official designated by law to receive summons? A: Generally, it is the Secretary of the Department of Trade and Industry. But for some types of business, the law may designate any other official. Like the foreign corporation to be sued is a foreign insurance company (e.g. Sun Life of Canada), under Insurance Code, you serve it to the Insurance Commissioner. Or if it is a foreign bank which has branch here, you serve the summons to the Superintendent of the Bangko Sentral ng Pilipinas. Sec. 3. Answer to amended complaint. Where the plaintiff files an amended complaint as a matter of right, the defendant shall answer the same within fifteen (l5) days after being served with a copy thereof. Where its filing is not a matter of right, the defendant shall answer the amended complaint within ten (10) days from notice of the order admitting the same. An answer earlier filed may serve as the answer to the amended complaint if no new answer is filed. This Rule shall apply to the answer to an amended counterclaim, amended cross-claim, amended third (fourth, etc.) party complaint, and amended complaint-in-intervention. (3a)

Now, what is the period to file an answer to an amended complaint? Under Section 3, there are two (2) periods – first paragraph, 15 days; second paragraph, 10 days. Now what is the difference?

Suppose the complaint is amended as a matter of right because defendant has not yet filed an answer. Meaning, the complaint is served on you and even before you answer it was amended and another complaint is served, then you have 15 days to file your answer counted from the day of service of the amended complaint. So forget the original period and you have 15 days all over again. But suppose the defendant has already answered the original complaint and then the plaintiff decides to amend his complaint which under the previous rule, is a matter of judicial discretion. Now, suppose the court issued an order admitting the amended complaint and the defendant is furnished of the copy of the order admitting the amended complaint. Therefore, if he wants to answer the amended complaint, he has 10 days to do it and not 15 days. The 10-day period will be counted from service of the order admitting the amended complaint, not from the service of the amended complaint because the same may not be admitted. You wait for the order of the court admitting the amended complaint. So, there are two (2) periods to file an answer to an amended complaint. Q: Suppose I will not file an answer to the amended complaint. I filed an answer to the original complaint but I did not file an answer to the amended complaint, can I be declared in default? A: NO, because Section 3 provides that the answer earlier filed may serve as an answer to the amended complaint if no answer is filed. Like when the amendment is only formal, why will I answer? In other words, my defenses to the original complaint is still applicable. So the principle is: if no answer is filed to the amended complaint, the answer to the original complaint automatically serves as the answer to the amended complaint and therefore the defendant cannot be declared in default. Alright, the third paragraph of Section 3 is new. So, kasama na iyung amended counterclaims, amended cross-claims. Sec. 4. Answer to counterclaim or cross-claim. A counterclaim or crossclaim must be answered within ten (l0) days from service. (4)

Now, if you answer a counterclaim or cross-claim, you have Section 4. The period to file an answer to a counterclaim or cross-claim is only ten (10) days from the time it is served. Q: What happens if the plaintiff does not answer the counterclaim of the defendant? A: He can be declared in default on the counterclaim. He has still standing to prove his cause of action in the main case but he loses his standing to defend himself in the counterclaim. Q: Are there instances where an answer to a counterclaim is optional? Meaning, the plaintiff does not answer and he cannot be declared in default. A: YES, that is when the counterclaim is so intertwined with the main action – they are so intertwined that if the plaintiff would answer the counterclaim, it would only be a repetition of what he said in his complaint. In this case, even if the plaintiff will not answer, he cannot be declared in default. EXAMPLE: The plaintiff filed a case against the defendant for damages arising from a vehicular collision. According to the plaintiff, because of the negligence of the defendant, the plaintiff’s vehicle was damaged amounting to that much. So the cause is quasi-delict. Now in his answer, defendant says no and he denied the liability and he files a counterclaim saying, “As a matter of fact, it is the plaintiff

who is negligent. And since my vehicle was damaged, I am now claiming damages against him.” So practically, the issue on negligence is being thrown back. Now, the plaintiff did not answered the counterclaim, can he be declared in default? NO, because if you require the plaintiff to file an answer, what will he say? The same, “NO, you were the one at fault!” So, uulitin na naman niya 'yung sinabi niya in his complaint. It is already repetitions. Yan, so that is one of the exceptions. Sec. 5. Answer to third (fourth, etc.)- party complaint. The time to answer a third (fourth, etc.)- party complaint shall be governed by the same rule as the answer to the complaint. (5a) Sec. 6. Reply. A reply may be filed within ten (l0) days from service of the pleading responded to. (6)

If you want to file a reply, you have ten (10) days to file. But as a general rule, the filing of a reply is optional. Sec. 7. Answer to supplemental complaint. A supplemental complaint may be answered within ten (10) days from notice of the order admitting the same, unless a different period is fixed by the court. The answer to the complaint shall serve as the answer to the supplemental complaint if no new or supplemental answer is filed. (n)

It follows the same rule as in Section 3, second paragraph. A supplemental complaint may be answered in ten (10) days. The computation is again from notice of the order admitting the same. Suppose I will not answer the supplemental complaint? The same principle – the answer to the original complaint shall serve as the answer to the supplemental complaint. So it follows the same principle as the amended complaint in the second paragraph of Section 3. Sec. 8. Existing counterclaim or cross-claim. A compulsory counterclaim or a cross-claim that a defending party has at the time he files his answer shall be contained therein. (8a, R6)

One of the requisites to make a counterclaim compulsory is that the defending party has the counterclaim at the time he files his answer. This is related with Section 7, Rule 6. Sec. 9. Counterclaim or cross-claim arising after answer. A counterclaim or a cross-claim which either matured or was acquired by a party after serving his pleading may, with the permission of the court, be presented as a counterclaim or a cross-claim by supplemental pleading before judgment. (9, R6) Sec. 10. Omitted counterclaim or cross-claim. When a pleader fails to set up a counterclaim or a cross-claim through oversight, inadvertence, or excusable neglect, or when justice requires, he may, by leave of court, set up the counterclaim or cross-claim by amendment before judgment. (3a, R9)

Existing counterclaims or cross-claims, tapas na ito ano? We already discussed this before. As a matter of fact, Sections 9 and 10 illustrates the distinction between an amended pleading to a supplemental pleading.

If the counterclaim or cross-claim was acquired by a party after serving his pleading, he may raised it by way of supplemental pleading. But if a pleader fails to set up a counterclaim or a cross-claim which is already matured when he filed his pleading due to inadvertence or excusable neglect, then he way raise it by way of amended pleading. Sec. 11. Extension of time to plead. Upon motion and on such terms as may be just, the court may extend the time to plead provided in these Rules. The court may also, upon like terms, allow an answer or other pleading to be filed after the time fixed by these Rules. (7)

The period to file is 15 or 10 days, but the general rule is 15 days. Q: Now, is the 15-day period extendible? A: YES, upon motion and on such terms as may be just, the court may extend the time to plead. Normally, the lawyer will file a motion for extension of time to answer on the 15th, the 14th, or the 13th day. That’s very common. The common reason of the lawyers for the extension is pressure of work – maraming trabaho ba. Others are because of the traditional mañana habit. We usually act during the deadline. Take note that when you file your motion for extension, do it within the original 15-day period. Do not file your motion on the 16th day because there is nothing to extend. So the extension is usually filed within the 15-day period. Q: Now what happens if the lawyer fails to file such a motion? So naglampas na yung 15 days. And then on the 18th, he will now file an answer. Practically out of time na yan because the 15-day period already expired and he did not ask any motion for extension. Now what should the lawyer do? A: The lawyer can use the second paragraph, “The court may also, upon like terms, allow an answer or other pleading to be filed after the time fixed by these Rules.” The correct motion is “MOTION TO ADMIT LATE ANSWER.” EXAMPLE: The deadline is 3 days ago. I failed to file my answer but now it is ready. So, “motion to admit belated answer.” Normally, the courts here are liberal in allowing extensions. The general rule is that the court frowns on default. As such as possible both sides must be heard. So in the spirit of liberality, courts are usually liberal in allowing these extensions in time to file answers. I still have to see a judge na i-deny yan. Standard na yan, eh. SUMMARY OF TIME TO FILE RESPONSIVE PLEADINGS PLEADING PERIOD 1.) Answer

15 days

2.) Answer of a private foreign corporation a.) with designated Philippine representative b.) no designated Philippine representative

15 days 30 days

3.) Answer to an amended complaint a.) if as a matter of right b.) if as a matter of judicial discretion

15 days 10 days

4.) Answer to counterclaim or cross-claim 5.) Answer to third (fourth, etc.) party complaint 6.) Reply 7.) Answer to supplemental complaint

10 days 15 days 10 days 10 days

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

Q: Define Bill of Particulars. A: A bill of particulars is a more definite statement of any matter which is not averred with sufficient definiteness or particularity in a pleading so as to enable the opposing party to prepare his responsive pleading. (Section 1) Alright. So, let’s go to the application of this remedy. EXAMPLE: The plaintiff filed a complaint against you and you are now furnished with a copy by the lawyer of the plaintiff. So, you have to file your answer. You have to understand what the cause of action is all about. So you read the complaint – you notice that the allegations are vague, ambiguous, and uncertain. So, you cannot understand the allegations. So, you have a hard time preparing your answer. Now, you do not want to answer something that you cannot understand. Q: So what is your remedy? A: The remedy is, instead of answering, you file a motion for a bill of particulars and according to Section 1, your motion will point out the defects complained of, the paragraphs where they are contained and the details desired. Because according to you, the allegations are not averred with

sufficient definiteness or particularity to enable you properly to prepare your responsive pleading that is what it is all about. So the defendant resorts to the Bill of Particulars if the allegations of ultimate facts in the complaint are vague and ambiguous that the defendant will have difficulty in preparing his answer. So, he can not understand and will ask for more details to clear the ambiguities. He will file a motion for Bill of Particulars, citing the detects and ask for the details, because how can he prepare an answer if he does not understand the complaint? Aber? BAR QUESTION: Suppose a complaint is ambiguous, uncertain, indefinite or vague, can the defendant file a motion to dismiss? A: NO! A complaint cannot be dismissed simply because it is vague, ambiguous. (Pañgan vs. Evening News, L-13308, Oct. 29, 1960) The correct remedy is for the defendant to file a motion for bill of particulars, which will ask for more details on these vague portions of the complaint. (Amoro vs. Sumaguit, L-14986, July 31, 1962) According to the SC in the case of TAN vs. SANDIGANBAYAN 180 SCRA 34 [1989] HELD: “The proper office of a bill of particulars is to inform the opposite party and the court of the precise nature and character of the cause of action the pleader has attempted to set forth, and thereby to guide his adversary in his preparations for trial and reasonably protect him against surprise at the trial. It complements the rule on pleadings in general, that is, that the complaint should consist of a concise statement of the ultimate facts.” “Its primary objective is to apprise the adverse party of what the plaintiff wants — to preclude the latter from springing a surprise attack later.”

According to the SC, the primary purpose of the bill of particulars is to apprise the adverse party of what a plaintiff wants. To preclude the latter from springing a surprise attack later. Why? Because the plaintiff may deliberately make his allegations vague. Sinadya ba niya? To confuse you – to mislead you – because you might adopt a different interpretation. If the interpretation turns out to be different, your defenses might be wrong. So, he deliberately make his complaint ambiguous. Now, the other party should thwart that by asking for a bill of particulars to compel the plaintiff to make the allegations of his cause of action clearer. So, that is what the bill of particulars is all about. Now, we will do to a specific situation and let’s find out whether the defendant could file for a bill of particulars. PROBLEM: Now, suppose the pleader says in his complaint that he has been in the possession of the litigated property continuously for forty (40) years. The defendant flied a motion for a bill of particulars, “The allegations is very broad, very general, very vague. Please tell by way of particulars what are the improvements you introduced for the past 40 years. I would like to ask for these details to clarify your allegations that you have been in continuous possession of the land for 40 years.” Q: Is that a proper motion for a Bill of Particulars? A: NO, because it is asking for evidentiary matters. In the first place, the plaintiff has no obligation

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

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

Q: Is this remedy available in criminal cases? A: YES. If it is the information which is vague, you cannot understand the allegations in the information, you cannot plead, “Paano, I cannot enter a plea of guilty or not guilty kasi hindi ko maintindihan eh” the accused can file a motion for bill of particulars to require the prosecution to clarify vague portions of a complaint or information. There is an identical provision in Rule 116, Section 9 of the Rules on Criminal Procedure. RULE 116, SEC. 9. Bill of particulars. – The accused may, before arraignment, move for a bill of particulars to enable him properly to plead and prepare for trial. The motion shall specify the alleged defects of the complaint or information and the details desired. (10a)

The concept is the same. If the allegations in the information are also vague and ambiguous, “I cannot understand it, so I cannot intelligently enter my plea.” The accused, before arraignment, can move for a bill of particulars to enable him to prepare properly for the trial. Then he must specify the defects. CINCO vs. SANDIGANBAYAN (criminal case) 202 SCRA 726 [1991] FACTS: A motion for bill of particulars was filed by the lawyer of the respondent in the fiscal’s office when the case was under preliminary investigation. (In preliminary investigation, you are given the affidavit of the complainant and his witnesses. And then you are given 10 days to submit your counter-affidavits.) Here, the affidavit is vague according to the accused, so he is filing a bill of particulars. He wanted to compel the complainant to make his affidavit clearer. ISSUE: Is Section 9 applicable when the case is still in the fiscal’s office for preliminary investigation? HELD: NO. It is only applicable when the case is already in court for trial or arraignment. But suppose during the preliminary investigation, “I cannot understand what the complainant is saying in his affidavit?” The SC said, that is simple! If you cannot understand what the complainant is saying in his affidavit, chances are, the fiscal also will not understand it. And consequently, he will dismiss the case. Eh di mas maganda! Wag ka na lang mag-reklamo! [tanga!] Sec. 2. Action by the court. Upon the filing of the motion, the clerk of court must immediately bring it to the attention of the court which may either deny or grant it outright, or allow the parties the opportunity to be heard. (n)

So pag-file mo ng motion for bill of particulars, the clerk has the obligation to bring it immediately to the attention of the court and the court can deny or grant the motion immediately. But of course, it is up to the court to call for a hearing or not. Q: Now, what do you think is the reason behind that? Why do you think is this provision here, which is not found in the old rules?

A: Many lawyers have abused Rule 12. In what way? A complaint is filed. The allegations are clear. Pero sadyain niya – he will file a motion for bill of particulars that he cannot understand. Then, pag file niya ng motion, he will set the motion for hearing 2 weeks from now. Then the motion is denied because it has no merit, then, file ka ng answer. In other words, the period to file for an answer has been denied because it has no merit. Then, file ka ng answer. The period to file for an answer has been delayed. The defendant has succeeded in delaying the period for filing an answer by pretending that he cannot understand pero actually klaro man ba. So in order to prevent that kind of dilatory tactic, when the motion is filed, the court is now authorized to immediately act on the motion without delaying the filing of the answer. That is the reason why this provision was inserted because the filing of the motion for bill of particulars can cause delay. Sec. 3. Compliance with order. If the motion is granted, either in whole or in part, the compliance therewith must be effected within ten (l0) days from notice of the order, unless a different period is fixed by the court. The bill of particulars or a more definite statement ordered by the court may be filed either in a separate or in an amended pleading, serving a copy thereof on the adverse party. (n)

Q: Suppose the court grants the motion and the defendant or the plaintiff will be required to submit the bill of particulars. How will you comply with the order to file a bill of particulars? A: There are two (2) ways: XVII. Just submit the details of the vague paragraphs; or XVIII. Amend the whole complaint and clarify the vague paragraphs Sec. 4. Effect of non-compliance. If the order is not obeyed, or in case of insufficient compliance therewith, the court may order the striking out of the pleading or the portions thereof to which the order was directed or make such other order as it deems just. (1[c]a)

Q: Alright, suppose the motion is granted, the court ordered the plaintiff to submit a bill of particulars. The plaintiff refused to comply with the order. What is now the remedy? A: The court may order the striking out of the pleading or portions thereof which is the object of the bill of particulars. Like for example: Ayaw mong i-clarify ang complaint mo, ayaw mo. Alright, I will now issue an order to strike out the entire complaint. It is as if the complaint was never filed. Practically, your complaint was dismissed. In effect your complaint was dismissed because if the complaint was ordered stricken out, then it is equivalent to dismissal of the case itself. Sec. 5. Stay of period to file responsive pleading. After service of the bill of particulars or of a more definite pleading, or after notice of denial of his motion, the moving party may file his responsive pleading within the period to which he was entitled at the time of filing his motion, which shall not be less than five (5) days in any event. (1[b]a)

Q: What is the effect for a motion for a bill of particulars when you file a motion? What is the effect on that on the 15-day period to file the answer? A. The 15-day period to answer is stopped or interrupted upon the filing of the motion for bill of particulars. The period continues to run from the date that you received the bill of particulars, if your motion is granted, or from the receipt of the order denying your motion if it was denied. From there, the

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

Ah, yes. It is very clear ‘no? When you file a bill of particulars clarifying the paragraphs in the complaint which are vague, the bill of particulars becomes part of the complaint with its supplements.



Rule 13

FILING AND SERVICE OF PLEADINGS, JUDGMENTS AND OTHER PAPERS Section 1. Coverage. This Rule shall govern the filing of all pleadings and other papers, as well as the service thereof, except those for which a different mode of service is prescribed. (n)

As a general rule, service of all pleadings is governed by Rule 13. So, this rule governs pleadings “except those for which a different mode of service is prescribed.” An example of the exception is the service of complaint which is governed by Rule 14. So Rule 13 applies to all pleadings except complaint. What is the difference between filing and service of pleadings? Section 2: Sec. 2. Filing and service, defined. Filing is the act of presenting the pleading or other paper to the clerk of court. Service is the act of providing a party with a copy of the pleading or paper concerned. If any party has appeared by counsel, service upon him shall be made upon his counsel or one of them, unless service upon the party himself is ordered by the court. Where one counsel appears for several parties, he shall only be entitled to one copy of any paper served upon him by the opposite side. (2a)

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

RETONI, JR. vs. COURT OF APPEALS 218 SCRA 468 [1993] HELD: “Usually, service is ordered upon the party himself, instead of upon his attorney, [1] when it is doubtful who the attorney for such party is, or [2] when he cannot be located or [3] when the party is directed to do something personally, as when he is ordered to show cause.” There are rare circumstances however where service to the lawyer does not bind the client. These are cases of negligence; where the lawyer is in bad faith for gross negligence; where he deliberately prejudiced his client. So it is unfair that the party may be bound by the service to the lawyer because of those circumstances. One such instance happened in the case of BAYOG vs. NATINO 258 SCRA 378 [1996] HELD: “Notice to the lawyer who appears to have been unconscionably irresponsible cannot be considered as notice to his client. The application to the given case of the doctrine that notice to counsel is notice to parties should be looked into and adopted, according to the surrounding circumstances; otherwise, in the court’s desire to make a short cut of the proceedings, it might foster, wittingly or unwittingly, dangerous collusions to the detriment of justice. It would then be easy for one lawyer to sell one’s rights down the river, by just alleging that he just forgot every process of the court affecting his clients, because he was so busy.” So, sasabihin lang niya, “Sorry ha, nakalimutan ko,” and then you are bound – Masyadong masakit naman iyan. Q: Now, if there are 5 defendants in the same case and there is only one (1) lawyer for all, is the lawyer entitled to 5 copies also? A: NO, the lawyer is not entitled to 5 copies but only one (1). Last sentence, “Where one counsel appears for several parties, he shall only be entitled to one copy of any paper served upon him by the opposite side.” But if the 5 defendants are represented by different lawyers, that is another story. Every lawyer has to be furnished a copy. Q: Suppose you are represented by three or more lawyers. Mga collaborating lawyers, ba. Bawat abogado ba may kopya? A: NO, service on one is sufficient. Section 2 says, “…service shall be made upon his counsel or one of them…” Service to one is service to all. You can do it if you want to but service on one will suffice. A. FILING OF PLEADINGS, JUDGMENTS AND OTHER PAPERS Now, how do you file pleadings? Section 3: Sec. 3. Manner of filing. The filing of pleadings, appearances, motions,

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

Under Section 3, there are two (2) modes of filing – either XI. Personally; or XII. by registered mail First Mode of Filing: PERSONAL FILING This mode of filing is done personally to the clerk of court. You go to the court and the court will mark it RECEIVED on January 15, 1998, 9:00 a.m. Then, that is deemed filed. That is personal filing. Section 3 says, “…by presenting the original copies thereof, plainly indicated as such personally to the clerk of court…” There was a lawyer before who referred to me. He said he filed a complaint. There are many copies of it. The court will usually receive 2 or 3 copies – 1 for itself, 1 for the defendant to be sued in summons, then any balance, ibalik sa iyo. Sabi niya, ayaw daw tanggapin kasi wala raw nakalagay na “ORIGINAL.” Sabi ng lawyer, lahat naman ito original, kasi naka-computer. So, everything is original. Sabi na clerk of court, “Eh di, dapat sulatan mo ng ‘original’!” Where did the clerk of court got that rule? Maski klaro na, sulatan pa rin ng original? Sabi ng clerk of court, “Nasa 1997 Rules and requirement na iyan.” So I started to think. And I think, itong provision (Section 3) ang ibig sabihin ng clerk of court, “The filing of pleadings… shall be made by presenting the original copy thereor plainly indicated as such.” Meaning, “original,” “duplicate,” “original,” “duplicate.” To my mind, huwagn amang masyadong istrikto. Nasubrahan ng basa ba! When you read too much, you become very technical. Why refuse to accept? Simply because walang word na ‘original’? Eh, di ikaw ang maglagay! So the clerk of court, with that phrase “plainly indicated as such,” becomes too strict. Second Mode of Filing: FILING BY REGISTERED MAIL The other mode is by registered mail. It is not ordinary mail. It is registered mail. Q: What is the importance of registered mail on filing of pleadings and motions in court? A: The importance is the rule that in registered mails, the date of filing is the date of mailing. If you send the pleading through the Post Office by registered mail, the date of filing is not the date on which the letter reached the court but on the day that you mailed it. So the date on the envelope is officially the date of filing. Q: Now, suppose I will file my pleading not by registered mail but throught messengerial service like LBC or JRS Express delivery, or by ordinary mail? What is the rule if instead of the registered service of the Post Office, you availed the private messengerial service or by ordinary mail? A: The mailing in such cases is considered as personal filing and the pleading is not deemed filed until it is received by the court itself.

When it is by registered mail, the date of mailing as shown by the Post Office stamp is considered as the date of filing. The envelope is attached. The post office is automatically a representative of the court for the purpose of filing. In other words, the law treats the messengerial company only as your process helper. That is why in the 1994 case of INDUSTRIAL TIMBER CORP. vs. NLRC 233 SCRA 597 [1994] HELD: “Where a pleading is filed by ordinary mail or by private messengerial service, it is deemed filed on the day it is actually received by the court, not on the day it was mailed or delivered to the messengerial service.” What about filing by FAX machine? In the case of GARVIDA vs. SALES, JR. April 18, 1997 HELD: “Filing a pleading by facsimile transmission is NOT sanctioned by the Rules of Court. A facsimile is not a genuine and authentic pleading. It is, at best, an exact copy preserving all the marks of an original. Without the original, there is no way of determining on its face whether the facsimile pleading is genuine and authentic and was originally signed by the party and his counsel. It may, in fact, be a sham pleading.” Q: Now, how do you prove that really the pleading was filed? A: Section 12. This is a new rule on how to prove that a pleading is filed – Sec. 12. Proof of filing. The filing of a pleading or paper shall be proved by its existence in the record of the case. If it is not in the record, but is claimed to have been filed personally, the filing shall be proved by the written or stamped acknowledgment of its filing by the clerk of court on a copy of the same; if filed by registered mail, by the registry receipt and by the affidavit of the person who did the mailing, containing a full statement of the date and place of depositing the mail in the post office in a sealed envelope addressed to the court, with postage fully prepaid, and with instructions to the postmaster to return the mail to the sender after ten (10) days if not delivered. (n)

Q: Suppose I filed it in court PERSONALLY, but it is not there, therefore, there is no showing that I filed it in court personally. So how do I prove it? A: Just show your copy which is duly stamped and received by the court. Definitely, the fault is not yours but with the clerk of court. Q: If filed by REGISTERED MAIL. Suppose the court has no copy of it, it had been lost between the post office and the court? A: Prove it by presenting the registry receipt and the affidavit of the server, containing a full

statement of the date and place of depositing the mail in the post office in a sealed envelope addressed to the court. It must be stressed that the affidavit is very important. B. SERVICE OF PLEADINGS, JUDGMENTS AND OTHER PAPERS Sec. 4. Papers required to be filed and served. Every judgment, resolution, order, pleading subsequent to the complaint, written motion, notice, appearance, demand, offer of judgment or similar papers shall be filed with the court, and served upon the parties affected. (2a)

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

So, the judge has to file his own decision to make it official. Sec. 5. Modes of service. Service of pleadings, motions, notices, orders, judgments and other papers shall be made either personally or by mail. (3a)

Q: How do you SERVE a pleading to the opposite party? A: Either: 11.) personally or 12.) by mail; or 13.) Substituted service under Section 8 in case of failure of the personal service or by

Now, when a decision against PCI Bank was served, the lawyer claimed they are not bound because there was no proper service. ISSUE: Was there proper service? HELD: While is true that the service was improper, but the trouble is, it was going on for some time and you are not complaining. So, the ground floor becomes your adopted address. Naloko na! “They cannot now disown this adopted address [iyung ground floor] to relieve them from the effects of their negligence, complacency or inattention. Service, therefore, of the notice of judgment at the ground floor of the building, should be deemed as effective service.” So, the judgment became final. There was no appeal. Those are examples of personal service. Q: So, when is personal service complete? A: It is completed upon actual delivery. Section 10: Sec. 10. Completeness of service. Personal service is complete upon actual delivery. Service by ordinary mail is complete upon the expiration of ten (10) days after mailing, unless the court otherwise provides. Service by registered mail is complete upon actual receipt by the addressee, or after five (5) days from the date he received the first notice of the postmaster, whichever date is earlier. (8a)

SERVICE OF PLEADINGS BY MAIL Sec. 7. Service by mail. Service by registered mail shall be made by depositing the copy in the office, in a sealed envelope, plainly addressed to the party or his counsel at his office, if known, otherwise at his residence, if known, with postage fully pre-paid, and with instructions to the postmaster to return the mail to the sender after ten (l0) days if undelivered. If no registry service is available in the locality of either the sender or the addressee, service may be done by ordinary mail. (5a; as amended by En Banc Resolution, Feb. 17, 1998)

Now, SERVICE BY MAIL. You can also serve your pleadings by mail. You will notice this time although the law prefers service by registered mail, however, the last sentence of Section 7 says, “If no registry service is available in the locality of either the sender or the addressee, service may be done by ordinary mail.” Take note, comparing Section 7 with Section 3, service by ordinary mail may be allowed for purposes of service (Section 7), but for purposes of filing (Section 3), wala! For purposes of filing, the law does not recognize the ordinary mail. If you do it, it will be treated as personal filing. In registered mail, the date of receipt is considered the date of filing not the date of mailing. Q: Now, when is service by mail deemed complete? A: Section 10: Sec. 10. Completeness of service. Personal service is complete upon actual delivery. Service by ordinary mail is complete upon the expiration of ten (10) days after mailing, unless the court otherwise provides. Service by registered mail is complete upon actual receipt by the addressee, or after five (5) days from the date he received the first notice of the postmaster, whichever date

is earlier. (8a)

So that is for the people who refuse to claim their mail even if they are already notified. He knows it is an order he expects to be adverse so he will try to defeat the service by not claiming it. NO, you are at a disadvantage because after the expiration of so many days, service is deemed completed. That is what you call CONSTRUCTIVE SERVICE. So, a party or a lawyer cannot defeat the process of the law by simply not claiming his mail. You can be bound by a decision which you never read. That is constructive service. SUBSTITUTED SERVICE OF PLEADINGS Sec. 8. Substituted service. If service of pleadings, motions, notices, resolutions, orders and other papers cannot be made under the two preceding sections, the office and place of residence of the party or his counsel being unknown, service may be made by delivering the copy to the clerk of court, with proof of failure of both personal service and service by mail. The service is complete at the time of such delivery. (6a)

Kung somehow there was an attempt of personal service or registered service at walang nangyari, you can resort to by serving a copy to the clerk of court with proof of failure of personal and mailing service. And by fiction of law, the adverse party has already been served. SERVICE OF DECISIONS, ORDERS, ETC. Sec. 9. Service of judgments, final orders or resolutions. Judgments, final orders or resolutions shall be served either personally or by registered mail. When a party summoned by publication has failed to appear in the action, judgments, final orders or resolutions against him shall be served upon him also by publication at the expense of the prevailing party. (7a)

There are three (3) modes again of serving court orders or judgments to parties: 9.) personally; 10.) registered mail; or 11.) service by publication So court orders or judgments orders have to be served also, either personally or by registered mail. That’s why if you go to the court, there are employees there who are called process servers. Everyday, they go around from law office to law office to serve court orders, notices and judgments. And that is personal service. But if the lawyer is a Manila lawyer, or is out of town, chances are the clerk of court will apply registered mail. Under Section 9, there is a third mode of service of court orders and judgments and that is service by publication. That is if the parties were summoned by publication under Rule 14 and they did not appear. The judgment is also served to them by publication at the expense of the prevailing party. Sec. 11. Priorities in modes of service and filing. Whenever practicable, the service and filing of pleadings and other papers shall be done personally. Except with respect to papers emanating from the court, a resort to other modes must be accompanied by a written explanation why the service or filing was not done personally. A violation of this Rule may be cause to consider the paper as not filed. (n)

That is a radical provision. In other words, there are two (2) ways of service: personal or by mail. And the law says, personal service is preferred to mail. Meaning, personal service is prioritized. Q: Suppose you served the opposing counsel by mail. A: The law requires that you must give an explanation why you resorted to mail and not to personal service. Q: Suppose I will file it without any explanation. A: The law says, “A violation of this rule may be cause to consider the paper as not filed.” And that is a very radical rule.. For EXAMPLE: the opposing counsel is in Manila, and the case is in Davao. He will mail to you the pleading or motion and then, nakalagay doon sa pleading : “Explanation: I have to resort to registered mail because it is expensive for me to resort to personal service. It is expensive if I will send my messenger to Davao just to serve whereas if I send by registered mail, it will only cost me P5.00.” They have to state that. Takot sila eh because without it, the pleading is not considered as filed. Of course this rule should be interpreted based on common sense. To my mind, the rule should be construed reasonably. If I am the judge, even if there is no explanation, I will allow it. Common sense eh! Alangan papuntahin pa dito ang messenger at pa-eroplanuhin mo pa! Now, I think the purpose of this new provision has been provoked by some malpractices of the lawyers. There were some instances before which have been confirmed especially in Metro Manila. The opposing counsel is just across the street ang opisina. He will send a motion to be received today. Instead of serving you, he will mail it. Mas malayo pa ang Post Office para hindi mo matangap. They will deliberately do it because it could not reach you on time. I think if you do that, I will not consider your motion. Or, kunwari may motion ka. You will send me a copy by mail and you are along C.M. Recto St. Bakit ka nag-mail eh mas malayo pa ang Post Office kaysa office ko? Unless you explain, I will deny your motion. Pero kung klaro naman or obvious, I do not think they should be construed strictly. Pero para maniguro, you explaint na lang: “Explanation: Because of time constraint and distance, I had to resort to registered mail.” That is now the standard explanation which appears in many pleadings or motions. It is a radical provision. Take note that courts are not covered by Section 11. It only applies to lawyers and parties. The court does not have to explain why it resorted to registered mail because Section 11 says, “Whenever practicable, the service and filing of pleadings and other papers shall be done personally EXCEPT WITH RESPECT TO PAPERS E EMANATING FROM THE COURT.” So the court is not obliged to give any explanation, only the parties and their lawyers. SOLAR TEAM ENTERTAINMENT vs. RICAFORTE 293 SCRA 661 [August 5, 1998] J. Davide FACTS: Solar Team filed before the RTC a complaint against Felix Co. Summons

and copies of the complaint were forthwith served on Co. Co then filed his answer. A copy thereof was furnished counsel for Solar Team by registered mail; however, the pleading did not contain any written explanation as to why service was not made personally upon Solar Team, as required by Section 11 of Rule 13. Solar Team filed a motion to expunge the answer and to declare Co in default, alleging therein that Co did not observe the mandate of Section 11. RTC issued an order stating that under Section 11 of Rule 13, it is within the discretion of the RTC whether to consider the pleading as filed or not, and denying, for lack of merit, Solar Team’s motion to expunge. HELD: “Pursuant to Section 11 of Rule 13, service and filing of pleadings and other papers MUST, whenever practicable, be done personally; and if made through other modes, the party concerned must provide a written explanation as to why the service or filing was not done personally. Note that Section 11 refers to BOTH service of pleadings and other papers on the adverse party or his counsel as provided for in Sections 6, 7 and 8; and to the filing of pleadings and other papers in court.” “Personal service will do away with the practice of some lawyers who, wanting to appear clever, resort to the following less than ethical practices: serving or filing pleadings by mail to catch opposing counsel off-guard, thus leaving the latter with little or no time to prepare, for instance, responsive pleadings or an opposition; or, upon receiving notice from the post office that the registered parcel containing the pleading of or other paper from the adverse party may be claimed, unduly procrastinating before claiming the parcel, or, worse, not claiming it at all, thereby causing undue delay in the disposition of such pleading or other papers.” “If only to underscore the mandatory nature of this innovation to our set of adjective rules requiring personal service whenever practicable, Section 11 then gives the court the discretion to consider a pleading or paper as not filed if the other modes of service or filing were resorted to and no written explanation was made as to why personal service was not done in the first place. The exercise of discretion must, necessarily, consider the practicability of personal service, for Section 11 itself begins with the clause ‘whenever practicable.’” “We thus take this opportunity to clarify that under Section 11: Personal service and filing is the GENERAL RULE, and resort to other modes of service and filing, the EXCEPTION. Henceforth, whenever personal service or filing is practicable, in light of the circumstances of time, place and person, personal service or filing is mandatory. Only when personal service or filing is not practicable may resort to other modes be had, which must then be accompanied by a written explanation as to why personal service or filing was not practicable to begin with.” “Of course, proximity would seem to make personal service most practicable, but exceptions may nonetheless apply such as when: the adverse party or opposing counsel to be served with a pleading seldom reports to office and no employee is regularly present to receive pleadings, or service is done on the last day of the reglementary period and the office of the adverse party or opposing counsel to be served is closed, for whatever reason.” “However in view of the proximity between the offices of opposing counsel and the absence of any attendant explanation as to why personal service of the answer was not effected, indubitably, Co’s counsel violated Section 11 and the motion to expunge was prima facie meritorious. However, the grant or denial of said motion nevertheless remained within the sound exercise of the RTC's discretion.” “To Our mind, if motions to expunge or strike out pleadings for violation of Section 11

were to be indiscriminately resolved under Section 6 of Rule 1, then Section 11 would become meaningless and its sound purpose negated. Nevertheless, We sustain the challenged ruling of the RTC, but for reasons other than those provided for in the challenged order.” “The 1997 Rules of Civil Procedure took effect only on 1 Jul 1997, while the answer was filed only on 8 Aug 1997, or on the 39th day following the effectivity of the 1997 Rules. Hence, Co’s counsel may not have been fully aware of the requirements and ramifications of Section 11. It has been several months since the 1997 Rules of Civil Procedure took effect. In the interim, this Court has generally accommodated parties and counsel who failed to comply with the requirement of a written explanation whenever personal service or filing was not practicable, guided, in the exercise of our discretion, by the primary objective of Section 11, the importance of the subject matter of the case, the issues involved and the prima facie merit of the challenged pleading.” “However, as we have in the past, for the guidance of the Bench and Bar, strictest compliance with Section 11 of Rule 13 is mandated one month from promulgation of this Decision.” “WHEREFORE, the instant petition is DISMISSED considering that while the justification for the denial of the motion to expunge the answer (with counterclaims) may not necessarily be correct, yet, for the reasons above stated, the violation of Section 11 of Rule 13 may be condoned.” Sec. 13. Proof of service. Proof of personal service shall consist of a written admission of the party served, or the official return of the server, or the affidavit of the party serving, containing a full statement of the date, place and manner of service. If the service is by ordinary mail, proof thereof shall consist of an affidavit of the person mailing of facts showing compliance with section 7 of this Rule. If service is made by registered mail, proof shall be made by such affidavit and the registry receipt issued by the mailing office. The registry return card shall be filed immediately upon its receipt by the sender, or in lieu thereof the unclaimed letter together with the certified or sworn copy of the notice given by the postmaster to the addressee. (10a)

Q: How do you prove that you furnished the opposing lawyer a copy by PERSONAL SERVICE? A: It is through the written admission of the party served as admitted that he had been furnished with a copy. The other alternative is that you file the affidavit of your employee, or messenger, that he served the copy in the office of so and so. (containing full statement of facts). Or, the official return of the server. The procedure is that there is a pleading and in the last portion there is that part which states: Copy received

: By

:

January 16, 1998

(Signed) Atty. X Counsel of Plaintiff

Q: If it is by ORDINARY MAIL, how do you prove in court that you served a copy? A: If it is ordinary mail, proof thereof shall consist of an affidavit of the person mailing of facts showing compliance with Section 7. Q: If it is by REGISTERED MAIL, how do you prove in court that you served a copy?

A: If service is made by registered mail, proof shall consist of the affidavit of the mailer and the registry receipt issued by the mailing office. The registry return card shall be filed immediately upon its receipt by the sender. Or, in lieu thereof, of the unclaimed letter together with the certified or sworn copy of the notice given by the postmaster – that is a constructive service ‘no? Now in practice among lawyers when we serve by registered mail, we only attach the original in the registry receipt and there is a quotation there in the original pleading, “Copy sent by registered mail, this 17th day of January, 1998 to Atty. Juan dela Cruz, counsel for the plaintiff per registry receipt no. 123 hereto attached,” and nobody complains. But in reality, the law does not allow that. There must be an affidavit of the person who mailed it. The surrender of a registry receipt alone is not sufficient because if you send the registry receipt, it is not reflected to whom that letter is addressed so how will the court know that the registry receipt really corresponded to the pleading that you mailed? It might be another letter like a love letter for your girlfriend or a letter to your creditor. The registry receipt will not indicate kung ano ang na-mailed to his address. But we just allow it because it is too tedious – everytime you file, affidavit?!! But take note, the CA and the SC enforce this strictly. Even if you mail a petition at may nakalagay na “Copy sent by registered mail” without the affidavit, outright dismissal yan for lack of proof of service. The SC and the CA are very strict about this requirement. Let’s go to this topic of CONSTRUCTIVE SERVICE that if the registered mail was not received and therefore you want to avail of the rules on constructive service – it is deemed served upon the expiration of so many days. What you will file in court is the unclaimed letter together with a certified or sworn copy of the notice given by the postmaster to the addressee. Let us see what happened in the case of JOHNSON AND JOHNSON PHILS. vs. COURT OF APPEALS 201 SCRA 768 [1991] FACTS: The CA Johnson and Johnson Philippines a decision in an envelope by registered mail. After a while, the same envelope was returned to the CA. On the face of the envelope, it as written, “Return to Sender, Unclaimed.” On the back of the envelope, there is an annotation “Return to CA”. With that, the CA applied the rule on constructive service – considered the decision as already served. Johnson and Johnson Philippines questioned it. It never received any notice from the post office. But according to the CA, it is very obvious. It is there in the envelope still sealed. ISSUE: Is there proper application of the rules on constructive service? HELD: There is NO constructive service because there is no certification by the postmaster that is claimed. This is what the law requires not just a one sentence statement. One cannot even ascertain who wrote the statement. Certification should include the details of delivery and not just state that notice was issued. “A certification from the postmaster would be the best evidence to prove that the notice has been validly sent. The mailman may also testify that the notice was actually delivered. The postmaster should certify not only that the notice was issued or sent but also as to how,

when and to whom the delivery thereof was made.” “There is nothing in the records of the present case showing how, when and to whom the delivery of the registry notices of the subject registered mail of petitioner was made and whether said notices were received by the petitioner. The envelope containing the unclaimed mail merely bore the notation “RETURN TO SENDER: UNCLAIMED” on the face thereof and “Return to: Court of Appeals” at the back. The respondent court should not have relied on these notations to support the presumption of constructive service.” The case of JOHNSON was reiterated in SANTOS vs. COURT OF APPEALS 293 SCRA 147 [Sept. 3, 1998] FACTS: Jesus Santos, was sued for damages on by Omar Yapchiongco before the CFI. CFI dismissed the complaint for lack of merit. CA reversed and declared Santos liable for damages. On 15 June 1995, the decision of the CA was sent by registered mail to Santos’ counsel, Atty. Magno. On the same day, the corresponding notice of registered mail was sent to him. The mail remained unclaimed and consequently returned to the sender. After 3 notices, the decision was returned to the sender for the same reason. On 27 September 1995, a notice of change of name and address of law firm was sent by Atty. Magno to CA. On 28 March 1996, the same decision of CA was sent anew by registered mail to Atty. Magno at his present address which he finally received on 3 April 1996. On 17 April 1996, Magno withdrew his appearance as counsel for Santos. On 18 April 1996, Santos’ new counsel, Atty. Lemuel Santos, entered his appearance and moved for reconsideration of CA's decision of 6 June 1995. Yapchiongco opposed the motion on the ground that the period for its filing had already expired. HELD: “The rule on service by registered mail contemplates 2 situations: (1.) Actual service - the completeness of which is determined upon receipt by the addressee of the registered mail; (2.) Constructive service - the completeness of which is determined upon the expiration of 5 days from the date of first notice of the postmaster without the addressee having claimed the registered mail.” “For completeness of constructive service, there must be conclusive proof that Santos’s former counsel or somebody acting on his behalf was duly notified or had actually received the notice, referring to the postmaster's certification to that effect.” “Here, Santos failed to present such proof before CA but only did so in the present proceedings. Clearly then, proof should always be available to the post office not only of whether or not the notices of registered mail have been reported delivered by the letter carrier but also of how or to whom and when such delivery has been made.” “Consequently, it cannot be too much to expect that when the post office makes a certification regarding delivery of registered mail, such certification should include the data not only as to whether or not the corresponding notices were issued or sent but also as to how, when and to whom the delivery thereof was made. Accordingly, the certification in the case at bar that the first and second notices addressed to Atty. Magno had been "issued" can hardly suffice the requirements of equity and justice. It was incumbent upon the post office to further certify that said notices were reportedly received.”

This last section, Section 14, has something to do with real actions, land titles – notice of lis pendens. Sec. 14. Notice of lis pendens. In an action affecting the title or the right of possession of real property, the plaintiff and the defendant, when affirmative relief is claimed in his answer, may record in the office of the registry of deeds of the province in which the property is situated a notice of the pendency of the action. Said notice shall contain the names of the parties and the object of the action or defense, and a description of the property in that province affected thereby. Only from the time of filing such notice for record shall a purchaser, or encumbrancer of the property affected thereby, be deemed to have constructive notice of the pendency of the action, and only of its pendency against the parties designated by their real names The notice of lis pendens hereinabove mentioned may be cancelled only upon order of the court, after proper showing that the notice is for the purpose of molesting the adverse party, or that it is not necessary to protect the rights of the party who caused it to be recorded. (24a, R14)

This used to be in Rule 14 of the 1964 Rules of Court where it was misplaced. I do riot know why notice of lis pendens which refers to lands, titles and deeds appears under the rules on Summons. It was misplaced so they place it under Rule 13 which is also misplaced. NOTICE OF LIS PENDENS – notice of pending action or litigation. This is part of the Property Registration Law. The essence of notice of lis pendens is a notice against the whole world against sale or mortgage of the property under litigation. And whoever deals with it is accepting the risk. Anybody who buys it is gambling an the outcome of the case. He cannot claim he is the mortgagee or buyer in good faith because there is a notice. I will file a case for recovery of a piece of land and the title is in your name. There is a danger that you will sell the land to others who know nothing about the case. So if I win the case and try to recover it to the buyer, the buyer will say he bought the land in good faith, “I did not know that there is a pending action concerning this land.” And under the law, he is protected because he is a buyer in good faith and for value. This is if there is no notice of lis pendens. The other risk is that the owner of the land will mortgage his property. A person buying a property with a notice of lis pendens is buying it subject to the outcome of the case. So you are gambling. Now, as GENERAL RULE, the one who registers a notice of lis pendens is the plaintiff. Exception: Q: Under Section 14, can the defendant register a notice of lis pendens? A: YES. The law states that “The plaintiff and the defendant may register when affirmative relief is claimed in this answer.” In such case, a defendant may register and normally it is done when there is a counterclaim. The defendant is also interposing a defense with the same property. Take note that the action in this case affects the right of possession over real property.

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



Rule 14 SUMMONS Section 1. Clerk to issue summons. Upon the filing of the complaint and the payment of the requisite legal fees, the clerk of court shall forthwith issue the corresponding summons to the defendants. (1a)

Ano ang plural ng “summons”? Meron bang plural yan? “Summonses”? I think it is still “summons,” whether singular or plural. The verb is, of course, to summon – tawagin mo. Summons is a noun, a legal term. But actually, there is a similarity in meaning because you are being called to answer in a case. Summons in civil cases is the counterpart of warrant of arrest in criminal cases. Under the Rules on Criminal Procedure, when an information is filed in court, the judge will issue a warrant of arrest. In civil cases, when a complaint is filed in court, the court will issue what is known as a summons under Section 1. Section 2 states the contents of a summons: Sec. 2. Contents. The summons shall be directed to the defendant, signed by the clerk of court under seal, and contain: (a) the name of the court and the names of the parties to the action; (b) a direction that the defendant answer within the time fixed by these Rules; (c) a notice that unless the defendant so answers, plaintiff will take judgment by default and may be granted the relief applied for. A copy of the complaint and order for appointment of guardian ad litem, if any, shall be attached to the original and each copy of the summons. (3a)

Q: Define Summons. A: SUMMONS it is a writ or process issued and served upon a defendant in a civil action for the purpose of securing his appearance therein. (Ballentine’s Law Dict., 2nd Ed., p. 1250) Q: What is the purpose of summons? A: The service of summons enables the court to acquire jurisdiction over the person of the defendant. (Echevarria vs. Parsons Hardware, 51 Phil. 980) Q: How does the court acquire jurisdiction over the person of the plaintiff? A: Jurisdiction over the person of the plaintiff is acquired from the moment he files his complaint. Upon filing his complaint in court, he is automatically within the jurisdiction of the court. (MRR Co. vs Atty. Gen. 20 Phil. 523) Q: What is the effect if a defendant is not served with summons? A: The judgment is void. The court never acquired jurisdiction over his person. (Pagalaran vs. Ballatan, 13 Phil. 135; De Castro vs. Cebu Portland Cement Co., 71 Phil. 479) Q: If a complaint is amended and an additional defendant is included, is there a necessity of issuing new summons on the additional defendant? A: YES. When an additional defendant is included in the action, summons must be served upon him for the purpose of enabling the court to acquire jurisdiction over his person. The case is commenced against the additional defendant upon the amendment in the complaint (Fetalino vs. Sanz,

44 Phil. 691) Q: Suppose a defendant, who has already been summoned, died, and there was substitution of party (under Rule 3), his legal representative was substituted in his place, is there a necessity of issuing new summons on the substituted defendant? A: NO. The order of the court ordering him to be substituted is already sufficient. Anyway he is only a continuation of the personality of the original defendant. Just serve the copy of the order, where he is ordered to be substituted. (Fetalino vs. Sanz, 44 Phil. 691) BAR QUESTION: If a defendant is served with summons and later on the complaint is amended by the plaintiff, is there a necessity that another summons be issued and served based on the amended complaint? Or is the summons of the original complaint sufficient? ANS: It depends on whether the amendment was made before or after defendant’s appearance in the action: Q: What do you mean by the phrase “appearance in the action”? A: The best example is, whether the defendant files an answer to the complaint. Appearance in civil cases does not mean that you are there and show your face to the judge. That is not the meaning of the word “appearance”. Appearance means filing something in court which would show that the court has jurisdiction over your person, like the filing of an answer. When the defendant filed an answer through his lawyer, there is now appearance of the defendant. 15.) If the defendant has not filed answer to the original complaint there must be another summons issued on the amended complaint. A new summons must be served all over again based on the amended complaint. (Atkins, Kroll & Co. vs. Domingo, 44 Phil. 680) 16.) If the defendant has already filed an answer to the original complaint or he has already appeared in the action, and after that the complaint is amended, there is no need of issuing new summons on the amended complaint. (Ibid; Ong Peng vs. Custodio, L-14911, March 1961) Q: Connecting the question with Rule 11 (on periods to file pleadings), suppose the defendant was served with summons on the original complaint and before he could answer, there is now an amended complaint, so there will be new summons on the amended complaint, what is the period to file an answer? A: The period to file an answer is 15 days all over again. there will be another period of 15 days to file an answer to the amended complaint upon receipt of the amended complaint and the summons. Q: Suppose the defendant has already filed an answer to the original complaint and after that there is an amended complaint, what must the plaintiff do? A: This time, there no need of summons. All that the plaintiff has to do is to furnish the defendant a copy of the amended complaint together with the motion to admit it. Just serve the defendant a copy of the amended complaint with a copy of the order admitting the filing of the amended complaint. Q: Suppose that the court allowed the admission of the amended complaint, what is the period for the defendant to file an answer to the amended complaint? A: Going back to Rule 11, ten (10) days only. Ten (10) days, not from the receipt of the amended complaint, but from receipt of the order allowing the amended complaint. Appearance in an action is best manifested by the filing of an answer by the defendant. However, according to the SC in the case of:

PAN ASIATIC TRAVEL CORP. vs. COURT OF APPEALS 164 SCRA 623 HELD: Appearance in the action is not only limited to the filing of an answer. When defendant files a motion for extension of time to file his answer, that is already an appearance in the action. If a defendant files a motion for Bill Of Particulars under Rule 12, that is already considered as an appearance in the action. SEC. 3 By whom served – the summons may be served by the sheriff, his deputy, or other proper court officers, or for justifiable reasons by any suitable person authorized by the court issuing the summons (5a)

Q: Who can serve summons? Who are authorized by law to serve summons? A: Under Section 3, the following: e.) Sheriff; f.) Deputy sheriff; g.) Other proper court officer (court employees); h.) For justifiable reasons, by any suitable person authorized by the court NOTE: Policemen cannot validly serve summons unless authorized by court. (Sequito vs. Letrondo, L-11580, July 20, 1959) EXAMPLE: I will sue somebody who is living on top of Mt. Apo. I don’t think the sheriff would like to go there. But there are people who go there, like the natives. So Barangay Captain Acelar will be asked to be deputized by the court to serve and he will be taught how to do it. So, he will become a sort of special court officer for that purpose. But there must be a court order. Before, there was a complaint which had to be served in Brgy. Tapak, Paquibato. Have you heard of that place? It is still part of Davao City but I don’t think you have been there. To go there you have to pass to Panabo first. You have to get out of Davao City and then re-enter Davao City and then up to certain point land, maglakad na ng isang araw before you can reach that place. Mag-horse back ka. Makita mo doon mga natives. I don’t think a sheriff would bother to go there. Baka mawala pa siya. He has not even heard of the place. So, he can recommend a barangay captain or a policeman. These are allowed during abnormal situations. SEQUITO vs. LETRONDO L-11580, July 20, 1959 FACTS: The summons was served by a policeman in a remote area and the question that was asked is whether he is authorized. HELD: NO, he is not authorized. The policeman is not a sheriff, he is not a deputy sheriff, and he is not a proper court officer. He belongs to the PNP. And PNP is under the executive branch and not a part of the judiciary. However, there is no problem if he is the only one in that area whom we can depend on. All you have to do is get a court order deputizing the police officer. So he will fall under no. 3. But without such court order, he is not among those mentioned in Section 3.

Q: When summons is served, lets say, by the sheriff, must it be on a weekday and not on Saturday, Sunday, or holiday, and must be within office hours? Can you challenge the validity of the service of summons on the ground that it was not effected on a working day or during office hours? A: In the case of LAUS vs. COURT OF APPEALS 214 SCRA 688 HELD: The service of summon is valid because the service of summons is MINISTERIAL. Service of summons may be made at night as well as during the day, or even on a Sunday or holiday because of its ministerial character. SEC. 4 Return – When the service has been completed, the server shall, within five (5) days therefrom, serve a copy of the return, personally or by registered mail, to the plaintiff’s counsel and shall return the summons to the clerk who issued it, accompanied by proof of service (6a)

The person who served the summons is the sheriff or his deputy. After that, it is the duty of the sheriff to inform the court what has happened – was he able to serve the copy of the complaint, together with the summons to the defendant? If so, on what day? The duty of the sheriff after service of summons is that he should make a report to the court as to what happened. That is what is called a sheriff's return. EXAMPLE: “Respectfully returned to the court with the information that defendant was personally served with summons on this date and on this time as shown by his signature on the face of this original copy.” Or, “Respectfully returned to the court with the information that defendant cannot be served with summons because the defendant had already moved from the address indicated in the complaint and therefore he cannot be located.” There must be a report because that will determine when the period to file an answer will start to run. Or, if he failed to serve it for one reason or another, like for example, the defendant is no longer residing in that place and you cannot find him, at least you must also return the summons to the court and make a report that you cannot serve the summon. That is what you call the Sheriff’s Return under Section 4, Rule 14. He must also furnish a copy of his report to the plaintiff’s lawyer so that the plaintiff’s lawyer can determine what is the deadline for the defendant to file his answer. SEC. 5 Issuance of Alias Summons – if a summons is returned without being served on any or all of the defendants, the server shall also serve a copy of the return on the plaintiff’s counsel, stating the reasons for the failure of service, within five (5) days therefrom, in such case, or if the summons has been lost, the clerk, on demand of the plaintiff, may issue an alias summons (4a)

Now Section 5 contains this new requirement that the serving officer shall also serve a copy of the return on the plaintiff's counsel stating the reasons for the failure of service within 5 days therefrom. Because most sheriff, they did not tell the lawyer what happened eh! They should tell the lawyer what happened so that if the summons was not served, the lawyer can file a motion for issuance of an alias summons, like he cannot serve the summons because the defendant is not already in the address given, lumipat na. That becomes the problem of the plaintiff and his lawyer. So that is now the requirement.

Q: What happens if the summons is returned unserved on any or all of the defendants? A: The server shall serve also a copy of the return on the plaintiff’s counsel, stating the reasons for the failure of service Q: For what purpose? A: So that the plaintiff’s lawyer will have to look now for the defendant and once he finds the correct address, he has to inform the court of the new address so that a new summons can be issued on the new address. The second summons is what lawyers call an ALIAS SUMMONS – if the first summons was lost, upon being informed, the clerk of court will issue another summons known as an ALIAS SUMMONS. MODES OF SERVICE OF SUMMONS TO INDIVIDUAL DEFENDANTS: Now let’s go to the general modes on service of summons. This is a very important portion of Rule 14. Q: How is summons served? A: There are three (3) modes of service of summons (on individual defendant): 12.) 13.) 14.)

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

SEC. 6. Service in person on defendant – Whenever practicable, the summons shall be served by handing a copy thereof to the defendant in person, or if he refuses to receive and sign for it, by tendering it to him (7a)

Q: How is service in person done? A: It is effected by (a) handing a copy thereof to the defendant in person, or (b) if he refuses to receive and sign for it, by tendering it to him. The summons must be served in person. This is literal, ha? No substitute – to the defendant mismo. Hindi puwedeng ibigay sa asawa, sa anak or sa kasambahay. Q: Do you have to serve it to the defendant in his office or in his house? A: NO. You can serve it wherever he may be found. And the law does not care where to do it. EXAMPLE: I am the sheriff. I’m looking for you to serve summons in a case and while walking along New York Street, I saw you inside a restaurant. I entered the restaurant and served the summons there. Then you say, “Not here. Give it to me at home”. Under the law, service is in person. There is no need for me to go to your house. I can serve the summons wherever I find you. Q: Now suppose, normally, you give the copy and you ask him to sign the original summons but he refuses, what will I do?

A: I will write here in my return that I saw you, I offered but you refused. That is enough. Under the law, you are served. The court has already acquired jurisdiction over your person. The common impression kasi of laymen na pag hindi tanggapin, walang sabit. No, that is of course false. You cannot defeat a court process by refusing to accept it. May mga sheriff pa nga na bastos: “Dili ka magtanggap? Basta ilagay ko ito sa tabi mo, i-report ko sa court na binigyan kita, ayaw mong tanggapin, ayaw mong mag-pirma.” And under the law, from that moment, you are bound. So, matakot man yang defendant ba. Kunin niya yun tapos mag-consult siya ng lawyer. Then his lawyer will tell him na he is bound despite his refusal to accept it. Now, under the 1964 rules, this mode of service of summons was called PERSONAL SERVICE. Under the 1997 Rules, the ’personal service’ was changed to ‘SERVICE IN PERSON’. They just changed the words so that it cannot be confused with Rule 13 because in Rule 13, there is also personal service. But that is not service of summons but service of pleadings, motions, etc. Para huwag magkagulo, the personal service was changed to service in person. Because service under Rule 13 is also personal service to the secretary but here in Rule 14, it is literal. That is to avoid confusion. Dapat pinalitan din iyong Section 7 –substituted service – because in Rule 13, there is also substituted service. Why did they not change to avoid confusion? Maybe they overlooked it. Second Mode: SUBSTITUTED SERVICE (Section 7) What is substituted service? SEC. 7 Substituted Service – If, for justifiable causes, the defendant cannot be served within reasonable time as provided in the preceding section, service may be effected (a) by leaving copies of the summons at the defendant’s residence with some person of suitable age and discretion then residing therein, or (b) by leaving the copies at defendant’s office or regular place of business with some competent person in charge thereof (8a)

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

sheriff kailangang tantiyahin din niya. Ito bang anak may buot na ni or wala pa? SEQUIOTO vs. LETRONDO L-11580, July 20, 1959 FACTS: Summons was served by the sheriff on the defendant’s daughter, a 12-year old and a grade four pupil. The child threw the summons away. The father did not receive the summons, and he was declared in default. HELD: The service of summons is void because defendant’s daughter, under the circumstances, is not a person of suitable discretion. Q: Suppose, the sheriff goes to the defendant’s house and says, “Is this the residence of Mr. Juan dela Cruz?” “Yes.” “Is he around?” “No, he left for work, but he will be back 5 hours from now.” The sheriff left the summons to the wife, sufficient of age and discretion. In other words, the sheriff resorted to substituted service of summons under Section 7. Is there a valid substituted service of summons? Can a sheriff resort to Section 7 (substituted service) immediately? A: NO. Section 7 cannot be applied unless you attempt Section 6 (Service in person). The sheriff has to try several times to reach the defendant in person. Sheriff is not allowed to resort to substituted service without attempting service in person several times. The law is very clear – “if for the justifiable causes, the defendant cannot be served within a reasonable time…” So, that is the condition. Q: So what is the condition? A: Substituted service of summons can only be applied by the sheriff if there is failure of personal service within reasonable time for justifiable causes [under Rule 14, Section 7]. So is the wife says, “come back tomorrow,” so you have to come back tomorrow and you cannot yet serve substituted service of summons. Q: But suppose, the sheriff has gone to your house 5 times, everytime he goes there you are not around, is substituted service of summons allowed? A: YES. I will now serve it on you (through your wife) and that is valid. The law prefers service in person than substituted. Substituted service according to SC, should only be resorted to if there is failure of personal service within reasonable time for justifiable causes. (Mapa vs. CA, 214 SCRA 417) MAPA vs. COURT OF APPEALS 214 SCRA 417 HELD: If a sheriff resorts to substituted service under Section 7 and when he makes his return, his return must specify that “I have tried many times to resort to personal service, but he cannot do it”. He must outline his efforts to apply Section 6, otherwise the return is defective. “Impossibility of prompt service should be shown by stating the efforts failed. This statement should be made in the proof of service. This is necessary because substituted service is in derogation of the usual method of service.”

Now, of course, if I tried several times to serve you personally but I failed, and then I make a return but I did not explain, there is still a valid service but you must explain in court. There is a presumption that you did not exert efforts. To make it a complete return, you must outline several attempts to make personal service. [Substituted service of summons may still be considered as VALID even if the sheriff failed to state in his return of the facts of the impossibility of prompt service if the server subsequently explains in court, by giving testimony, the facts why he resorted to a substituted service. The plaintiff should not be made to suffer for the lapses committed by an officer of the court] TOYOTA CUBAO INC. vs. COURT OF APPEALS October 23, 1997 HELD: “A law prescribing the manner in which the service of summons should be effected is jurisdictional in character and its proper observance is what dictates the court’s ability to take cognizance of the litigation before it. Compliance therewith must appear affirmatively in the return. It must so be as substitute service is a mode that departs or deviates from the standard rule. Substitute service must be used only in the way prescribed, and under circumstances authorized by law.” DISTINCTIONS BETWEEN SERVICE OF PLEADINGS [RULE 13] AND SERVICE OF SUMMONS [RULE 14] Now, do not confuse substituted service of summons under Rule 14 with substituted service of pleadings, orders and other papers under Rule 13. Let us read Section 6, Rule 13: Rule 13, SEC. 6. Personal service. - Service of the papers may be made by delivering personally a copy to the party or his counsel, or by leaving it in his office with his clerk or with a person having charge thereof. If no person is found in his office, or his office is not known, or he has no office, then by leaving the copy, between the hours of eight in the morning and six in the evening, at the party's or counsel's residence, if known, with a person of sufficient age and discretion then residing therein. (4a)

FIRST DISTINCTION: In Rule 13, that is known as personal service. In Rule 14, that is known as substituted service. Service of summons is governed by a different rule (Rule 14) from service of pleadings, judgments and other papers (Rule 13). Now, what is substituted service in Rule 13? Let us go back to Section 8, Rule 13. Rule 13, SEC. 8. Substituted service. - If service of pleadings, motions, notices, resolutions, orders and other papers cannot be made under the two preceding sections, the office and place of residence of the party or his counsel being unknown, service may be made by delivering the copy to the clerk of court, with proof of failure of both personal service and service by mail. The service is complete at the time of such delivery. (6a)

SECOND DISTINCTION: In Rule 14, substituted service means if you cannot serve the defendant in person, then you serve the summons at the residence of the defendant with some person of suitable age and discretion residing therein or by leaving copies at the defendant’s office or regular place of business with some competent person in charge thereof. That is substituted service of summons under Rule 14. But in Rule 13, substituted service of other pleadings, judgments, orders, etc., if personal service or service by registered mail have failed, then serve it on the clerk of court. And that is known as substituted service. In Rule 14, there is NO such thing as service of summons through registered mail. So how can a summons be served to a defendant in Manila? The Davao sheriff will mail the summons to the Manila sheriff who will serve the summons to the defendant in Manila. So, iba ang meaning. That is why I am emphasizing this to avoid confusion. Nakakalito, eh because of the similarity of terms. Substituted service of summons in Rule 14 is different from substituted service of pleadings, judgments and other papers in Rule 13. Third Mode: SERVICE OF SUMMONS BY PUBLICATION : (Sections 14, 15, and 16) SERVICE BY PUBLICATION UNDER SECTION 14 (Suing an Unknown Defendant) Going back to Section 9, Rule 13: Rule 13, SEC. 9. Service of judgments, final orders or resolutions. Judgments, final orders or resolutions shall be served either personally or by registered mail. When a party summoned by publication has failed to appear in the action, judgments, final orders or resolutions against him shall be served upon him also by publication at the expense of the prevailing party. (7a)

Under Rule 13, when a party summoned by publication has failed to appear in the action, meaning the defendant failed to file an answer, the decision can also be served upon him by publication. Q: What are the instances where a defendant may be served with summons by publication? A: Sections 14, 15 & 16 of Rule 14. And the first one is service upon defendant whose identity or whereabouts are unknown. That is what you call suing an unknown defendant. Or, the defendant is known pero hindi na makita. He may be in Davao, Cebu or in Manila. Bali-balita lang. But definitely, he is in the Philippines. That is the important condition. So, let us read Section 14: Sec. 14. Service upon defendant whose identity or whereabouts are unknown. In any action where the defendant is designated as an unknown owner, or the like, or whenever his whereabouts are unknown and cannot be ascertained by diligent inquiry, service may, by leave of court, be effected upon him by publication in a newspaper of general circulation and in such places and for such time as the court may order. (16a)

Under this provision, service of summons is allowed:

f.) where the defendant is designated as unknown owner. Well, we have discussed that in Rule 3 – when you file a case against an unknown defendant is allowed. But of course, he is unknown, you have no idea where he is staying; and g.) where the defendant is known but his whereabouts are unknown and cannot be ascertained by diligent inquiry. EXAMPLE: If you want to file a case against somebody, and you can no longer find him. You do not know where he moved. Maybe you have been receiving reports that he is in Manila or Cebu but the exact address is unknown and you want to sue him. Q: In the above case, is the plaintiff authorized to have the summons effected by publication? A: Take note that to avail of summons by publication, there must be leave of court. You must file a motion, under Rule 14, for permission to have defendant summoned by publication and the court will issue an order allowing the defendant be served with summons by publication where the complaint and the summons be ordered published. The service may be effected upon him by publication in a newspaper of general circulation and in such places and for such time as the court may order. “Of general circulation and in such places and for such time as the court may order.” Hindi naman kailangan sa Daily Inquirer. Puwede man sa local paper, ba. For example, sabihin mo: “We learned that he is in Cebu pero saan sa Cebu, we do not know.” The court may order the publication to be published in a local newspaper of general circulation in Cebu. Of course, kasama diyan ang complaint. How many times? Bahala na ang court. Say, tatlong issues. So, every Monday for three weeks. Basta the presumption is mabasa yan ng defendant or at least somebody who must have read it will inform the defendant. So, the law requires that you must file a motion and ask the court to allow service of summons by publication. Now, one thing that you have to remember is, the whereabouts of the defendant is unknown, but he is in the Philippines. That is the condition. If he is in the United States, this will not apply. What is contemplated by Section 14 is that the address of the defendant is unknown but it is positive that he is in the Philippines. ILLUSTRATION: Suppose your friend borrowed money from you. Never paid you and just disappeared and the last time you heard, he is residing somewhere in General Santos City. So you wanted to sue by having the summons under Section 14 because his exact whereabouts is unknown. So you file a motion for leave to serve summons by publication under this rule. The question is, should the court allow it? Of course the tendency is to say “yes” because his whereabouts is unknown and cannot be ascertained by diligent inquiry. Q: Now what kind of an action is an action to collect an unpaid loan where the defendant cannot be located anymore? A: That is an action in personam. Q: If the defendant is in the Philippines and his whereabouts is unknown and the action is in personam, can the plaintiff resort to service summons by publication? A: In the cases of FONTANILLA vs. DOMINGUEZ 73 Phil. 579

HELD: In this case, SC said service of summons is possible even if the action is in personam because service by publication when the whereabouts of the defendant is unknown is allowed whether the case is in personam or in rem. It is proper in all actions without distinction provided, the defendant is residing in the Philippines but his identity is unknown or his address cannot be ascertained. So if we will follow this case what will be our answer? YES, because it is allowed in any action without distinction. PANTALEON vs. ASUNCION 105 Phil 755 HELD: NO, because service of summons by publication under this section is allowed only where the action is in rem or quasi in rem, not in personam. In order to bind the defendant there must be service of summons on him. Personal, he must know. But in actions in rem quasi in rem, pwede. “It is a well settled rule in constitutional law that an action in personam, personal service of summons within the Philippines (forum) is essential in the acquisition of jurisdiction over the person of the defendant who does not voluntarily submit himself to the authority of the court.” In other words, summons by publication is not consistent with the due process clause of the bill of rights because it confers court jurisdiction over said defendant who is not in the Philippines. So service of summons by publication of the defendant who cannot be found in the Philippines will be violative of the due process clause that he must be informed personally. He must be given a chance under due process – to be deprived of his property with due process of law. So if we will follow the ruling in this case, the answer would be NO because the action is in personam (collection case). So nag-conflict na. CITIZEN’S INSURANCE SURETY vs. MELENCIO-HERRERA 38 SCRA 369 ISSUE: What is the remedy if you are a creditor and you want to sue your debtor and serve summons by publication but you cannot do it because your case is in personam? HELD: (Reiterates Pantaleon vs. Asuncion) You convert your case from in personam to in rem or quasi in rem. How? If you cannot find the defendant but he has properties left, you can have that properties attached under Rule 57, Section 1 so that you can acquire a lien over said properties. Now that it is attached, civil action is converted from in personam to quasi in rem because you already acquire a lien over the property so it is quasi in rem. You can now ask the court to effect summons by publication.. “The proper recourse for a creditor in the same situation as petitioner is to locate properties, real or personal, of the resident defendant debtor with unknown address and cause them to be attached under Rule 57, Sec. l(f), in which case, the enactment converts the action into a proceeding in rem or quasi in rem and the summons by publication may then accordingly be deemed valid and effective.” So kahit isang bisekleta para lang ma-convert ang action. MAGDALENA ESTATE INC. vs. NIETO 125 SCRA 758

SC traced the history of this question…we reiterate CITIZEN and PANTALEON, the action must be in rem or quasi in rem. [That is why just read this case because it is a complete summary of what the SC said earlier. And of course after it, from time to time, this issue re-surfaces.] CONSOLIDATED PLYWOOD vs. BREVA 166 SCRA 589 (Davao case) HELD: Judge Breva fell into the error of allowing service of summons by publication by allowing it in an ordinary collection case. SC said you cannot do that, the action must be in rem or quasi in rem. Therefore the default judgment was rendered null and void because of lack of proper service of summons to the defendant. Q: What is the important doctrine based from the foregoing cases? A: The SC said that Section 14 can only be availed of when the action is in rem or quasi in rem. If the action is in personam, like of collection of a sum of money, service of summons by publication to the defendant is improper. The action should be action in rem or quasi in rem. Q: Therefore if your action is in personam, like collection of an unpaid obligation, and you cannot find the defendant and you want to avail of Section 14, what is you remedy? A: As explained by the SC, you convert the action to in rem or quasi in rem. How? By looking for any property of the said defendant and have it attached under Rule 57 [i], the last ground for attachment. Now, your action is converted to quasi in rem. You can now file a motion for service of summons by publication. (Pantaleon vs. Asuncion, 105 Phil. 765; Citizen’s Surety & Insurance Co., vs. Melencio-Herrera, 38 SCRA 369; Magdalena Estate, Inc. vs. Nieto, 125 SCRA 758; Plywood Industries vs Breva, 166 SCRA 589) In all these cases, the SC ruled that to validly serve summons by publication on a defendant who is in the Philippines but whose name is not known or whereabouts is not known, the action must be in rem or quasi in rem. But a minor insignificant amendment to Section 14 has cast doubt on the validity of those doctrine. Why? You read the opening of Section 14: “In any action…” you notice, “in any action where the defendant is designated as an unknown… ” You look at the old rules. Can you find the phrase “in any action”? You look and compare it. Let us look the 1964 Rules: 1964 Rules, Rule 14, SEC. 16 “Whenever the defendant is designated as an unknown owner, or the like, or whenever the address of a defendant is unknown and cannot be ascertained by diligent inquiry, service may, by leave of court be effected upon him by publication in a newspaper of general circulation and in such places and for such time as the court may order.”

In other words, there is a case and the defendant is unknown, but what kind of cases? It is not stated there (Section 16, old rules). Kaya nga, it was clarified in the cases of MAGDALENA ESTATE, PANTALEON, etc. that the action must be in rem or quasi in rem. But look at the new rule on Section 14 – “in any action.” What does that mean – na puwede na ang action in personam? Is the intention of this clause to abrogate the previous ruling in PANTALEON,

MAGDALENA ESTATE, CONSOLIDATE PLYWOOD? If that is the intention, we are going back to the original ruling laid down in the earlier case of FONTANILLA vs. DOMINGUEZ which preceded all the other cases. In the FONTANILLA case, the SC said that service of summons by publication is proper in all actions without distinctions provided the defendant is residing in the Philippines but he is unknown or his address cannot be ascertained. But the FONTANILLA ruling was abrogated by PANTALEON vs. ASUNCION, CITIZEN’S SURETY, MAGDALENA ESTATE cases. That is why to me, this is a very controversial issue whether Section 14 of Rule 14 applies only to cases in rem or quasi in rem in these decisions or it is now obsolete, or it is now applicable whether in personam or in rem or quasi in rem. Actually, I asked that question in remedial law review. I don’t care how they answered it. I just want to find out if they can detect the amendment ba. Pagsabi nila it is only applicable in rem, OK, tama ka. Pagsinabi nila “in any action,” OK, tama ka rin. Some even said, based on decided cases but there is an amendment in the law, in other words nakita niya. But 70% did not say the issue. Kung anoanu ang sinagot! 30% saw the point. Some answered based on MAGDALENA, some on FONTANILLA by saying with the amendment, the ruling in MAGDALENA is wala na yan. To my mind, either way, I will take it as a completely correct answer because it is not pointed out what is the really correct answer. So I was wondering what is the meaning of this – “in any action” – whether there is an intent to return to the old rule and cancel the rulings in MAGDALENA. To me, this is a question mark. Even Justice Jose Feria, in his note, cannot answer it. Sabi niya, “in any action but there is a case, decided in MAGDALENA...” He is the author, one of the authors, but he cannot explain the intention. Sabi niya: “the SC earlier ruled…” I asked, “but why did you insert that?” Kaya to my mind, it is still a question mark. Maybe it is just an inadvertent amendment without any intention to abrogate the ruling in MAGDALENA, PANTALEON, etc. But maybe that is the intention. So, let us wait for the proper case at the right time to find what is the intention of the phrase “in any action.” BALTAZAR vs. COURT OF APPEALS December 8, 1988 FACTS: Good Earth Enterprises, a domestic corporation was sued. Sheriff went to the address of the corporation but the corporation was no longer there. It moved to another place. Subsequently, the sheriff returned the summons to the court. Plaintiff Baltazar filed a motion for leave to serve the summons and a copy of the complaint upon defendant Good Earth by publication ISSUE: Can there be a proper service by publication in this case? HELD: NO. Service by Publication (Section 14) will not apply because there was no diligent inquiry made by the sheriff. “Under Section 14, therefore, petitioner must show that the address of Good Earth was ‘unknown’ and that such address could not be ascertained by diligent inquiry. More importantly, We do not believe that the acts of the sheriff satisfied the

standard of ‘diligent inquiry’ established by Section 14 of Rule 14. The sheriff should have known what every law school student knows, that Good Earth being a domestic corporation must have been registered with the Securities and Exchange Commission and that the SEC records would, therefore, reveal not just the correct address of the corporate headquarters of Good Earth but also the addresses of its directors and other officers.” SERVICE BY PUBLICATION UNDER SECTION 15 (Extraterritorial Service) When the defendant is not residing in the Philippines and he is not physically around he must be served with summons even if he is abroad and that is what is called extraterritorial service. We go back to the basic question: Q: Can you sue in the Philippines a defendant who is not residing in the Philippines and who is not around physically? A: NO, you cannot because there is no way for the court to acquire jurisdiction over his person EXCEPT when action is in rem or quasi in rem, like when the action is the personal status of the plaintiff who is in the Philippines or the properties of the defendant are in the Philippines. And the venue is where the plaintiff resides or where the property is situated. That is found in Section 3, Rule 4: Rule 4, SEC. 3. Venue of actions against nonresidents – If any of the defendants do not reside and is not found in the Philippines, and the action affects the personal status of the plaintiff or any property of said defendant located in the Philippines, the action may be commenced and tried in the court of the place where the plaintiff resides, or where the property or any portion thereof is situated or found.

Q: If the defendant who is not around and is not residing in the Philippines can be sued under Rule 4, how will you serve summons? A: This is answered by Section 15: Sec. 15. Extraterritorial service. When the defendant does not reside and is not found in the Philippines, and the action affects the personal status of the plaintiff or relates to, or the subject of which is, property within the Philippines, in which the defendant has or claims a lien or interest, actual or contingent, or in which the relief demanded consists, wholly or in part, in excluding the defendant from any interest therein, or the property of the defendant has been attached within the Philippines, service may, by leave of court, be effected out of the Philippines by personal service as under section 6; or by publication in a newspaper of general circulation in such places and for such time as the court may order, in which case a copy of the summons and order of the court shall be sent by registered mail to the last known address of the defendant, or in any other manner the court may deem sufficient. Any order granting such leave shall specify a reasonable time, which shall not be less than sixty (60) days after notice, within which the defendant must answer. (17a)

Q: In what instances can you sue in the Philippine courts a defendant who does not reside and is not found in the Philippines? The other way of asking is, when may a defendant be sued and served with summons by extraterritorial service?

A: Let us break up Section 15. There are four (4) instances when a defendant who does not reside and is not found in the Philippines may be sued and summons served by extraterritorial service, provided the case is in rem or quasi in rem: 3.) the action affects the personal status of the plaintiff; EXAMPLE: A child left behind files a case against his father for compulsory recognition or acknowledgement at least to improve his status because the res is the status of the plaintiff. 4.) when the action relates to or the subject of which is, property within the Philippines, in which the defendant has or claims a lien or interest, actual or contingent; 5.) when the action relates to or the subject of which is, property within the Philippines in which the relief demanded consists, wholly or in part, in excluding the defendant from any interest therein; or 6.) When the property of the defendant has been attached within the Philippines – that is the MAGDALENA case. NOTE: The action must be either action in rem or quasi in rem. So an action in personam can never be filed against a non-resident defendant. That is the similarity between Section 14 and 15 on the assumption of the ruling in the MAGDALENA is still intact. Even if the defendant is not in the Philippines, the action must be in rem or quasi in rem. That is their similarity – the action must be classified as in rem or quasi in rem. That is if we follow the MAGDALENA ESTATE ruling. Q: What is the difference between Section 14 and Section 15? A: The difference between Section 14 and 15 is that in Section 14, the defendant is in the country but his exact whereabouts is unknown, whereas in Section 15, he is really out of the country and is no longer residing here. MODES OF EXTRATERRITORIAL SERVICE Q: How do you serve summons for such a defendant in Sect. 15? A: Service may, with leave of court, be effected in the Philippines: 6.) By personal service under Section 6; 7.) by publication in a newspaper of general circulation in such places and for such time as the court may order, in which case a copy of the summons and order of the court shall be sent by registered mail to the last known address of the defendant; or 8.) In any other manner the court may deem sufficient. (Carriaga vs. Malaya, 143 SCRA 441) a.) modes of extraterritorial service; PERSONAL SERVICE c.f. Section 6 Rule 14 – Sheriff, deputy sheriff, officer of the court, other persons authorized by court with valid order. The court will order that he will be served with summons just like in Section 6. Paano? We will ask the court to allow summons to be served outside the Philippines by personal service by sending the sheriff to America. Bigyan siya ng visa, round trip ticket with pocket money. That is personal service. But that is very expensive. That could be done pero impractical.

Or, I would like to sue a defendant who is there. I have a friend who is a balikbayan and he knows where that defendant is residing. So I will ask the court that the defendant who is residing in California be served with summons personally through this person. As if he is deputized or he can send the summons to the Philippine embassy with a request for an employee of the embassy to serve the summons personally. b.) modes of extraterritorial service; BY PUBLICATION IN A NEWSPAPER OF GENERAL CIRCULATION IN SUCH PLACES AND FOR SUCH TIME AS THE COURT MAY ORDER, IN WHICH CASE A COPY OF THE SUMMONS AND ORDER OF THE COURT SHALL BE SENT BY REGISTERED MAIL TO THE LAST KNOWN ADDRESS OF THE DEFENDANT The second manner is by publication which is similar to Section 14. The court will order the summons and complaint to be published in a newspaper of general circulation in such places and for such time as the court may order. In which case a copy of the summons and order of the court shall be sent by registered mail to the last known address of the defendant. So, aside from publication, another copy will be sent by registered mail to his last known address. So, meron ng publication, meron pang registered mailing of copy of the summons. SAHAGUN vs. COURT OF APPEALS 198 SCRA 44 FACTS: Defendant is residing permanently in LA, this is an action in rem. By leave of court, summons was served through publication by ordering to be published for 3 weeks in the Philippine Daily Inquirer. Another copy will be sent to his last address. Here defendant questioned the publication. According to him, publication should be in a newspaper in LA, not the Philippines. How can I be expected to read it when it is published in the Philippines, nobody will bring it to my attention. But if it is published here, the probability that I read it is stronger or my neighbor will bring it to my attention. ISSUE #1: Is the contention of the defendant correct? HELD: NO, he is wrong because nothing in the law requires the publication to be in a foreign newspaper. What is says is a newspaper of general circulation in such places and for such time as the court may order. Well, if the court will order that it should be published in a newspaper in LA, puwede rin. If it orders that it should be in a local newspaper, puwede rin because the law does not say ‘only such places’. ISSUE #2: What would happen if we will follow the argument of the defendant which is wrong? HELD: Another reason why the defendant is wrong is, if we will require courts to order the publication in a foreign newspaper, then we will require the court to have a list of all the newspaper in LA and our courts will be required to know the rules and rates of publication in LA and suppose the same thing happens to a

defendant in San Francisco, the courts are required to have a list, rules and rates of publication in said place. And you can imagine if we have to do that in every city in every country in the world. Naloko na. Imagine the trouble? It is requiring the court too much. “In fine, while there is no prohibition against availing of a foreign newspaper in extraterritorial service of summons, neither should such publication in a local newspaper of general circulation be altogether interdicted since, after all, the rule specifically authorizes the same to be made in such places and for such time as the court concerned may order. If the trial court should be required to resort to publication in a foreign newspaper it must have at hand not only the name and availability of such newspaper or periodical. we can very well anticipate the plethora of problems that would arise if the same question on nonresident defendants is replicated in the other countries of the world.” ISSUE #3: Is extraterritorial service of summons under Section 15 a mode of acquiring jurisdiction over the person of the defendant? HELD: NO, even if you will publish the summons a hundred times in a newspaper, still the Philippine court will not acquire jurisdiction over the person of the defendant because it is simply out of the country. Even if he is served with summons, our processes have no effect outside Philippine territory. Actually, there is no need to acquire jurisdiction over the person of the defendant. What is important is that res is in the country so we can enforce the judgment so that ownership may be transferred to plaintiff. So, hindi kailangan ang jurisdiction over his person. ISSUE #4: What is then the purpose of the requirement of publication? Why will I be required to publish but just the same the court will not acquire jurisdiction over his person? HELD: The purpose of publication is to comply with the requirement of due process. He should be informed before he loses his property. Remember that he has properties in the Philippines which you can want to take away form him. Remember the principle that if there is no way for the court to acquire jurisdiction over the person of the defendant, the substitute is jurisdiction over the res, and the res is property here. So, the judgment will not be useless and it can be enforced. But at least, the owner who is abroad should be informed about it. “Service of summons on a nonresident defendant who is not found in the country is required, not for purposes of physically acquiring jurisdiction over his person but simply in pursuance of the requirements of fair play, so that he may be informed of the pendency of the action against him and the possibility that property in the Philippines belonging to him or in which he has an interest may be subjected to a judgment in favor of a resident, and that he may thereby be accorded an opportunity to defend in the action, if he be so minded. The only relief that may be granted in such an action against such a nonresident defendant, who does not

choose to submit himself to the jurisdiction of the Philippine court, is limited to the res.” That is why also in the case of SAHAGUN, the SC emphasized that if the summons is served by publication, any judgment that the court can render is only good for the res. But if he submits now to the jurisdiction of the court by filing an answer or by hiring a lawyer in the country, the court can now render also a judgment in personam against him. But if he will not submit, ok lang because anyway, the res is here. [bahala siya… kung san siya masaya, ti suportahan ta!] EXAMPLE: I will file a case against a non-resident defendant for recovery of a piece of land and damages. Well, the claim for recovery of land is in rem. The claim for damages is in personam. He is summoned by publication and based on the SAHAGUN ruling, the court can only render judgment insofar as the land is concerned. It cannot render judgment on the damages because that is in personam. But if he files an answer, he is now submitting his person to the jurisdiction of the court. There could now be a valid judgment not only on the res but also on the damages. That was the explanation in the case of SAHAGUN. The relief is limited to the res so there could be no relief for damages unless he voluntarily submits himself to the jurisdiction of the court. c.) modes of extraterritorial service; IN ANY OTHER MANNER WHICH THE COURT MAY DEEM SUFFICIENT That is a very general term. A good example of that was what happened in the case of CARRIAGA, JR. vs. MALAYA 143 SCRA 441 FACTS: Plaintiff files a case against his father in the US who has no intention of coming back in the Philippines, for compulsory acknowledgement or recognition as an illegitimate child. And he is suing as an indigent litigant. My golly! How can you ask him to resort to publication? He cannot even pay the filing fee! Suppose the court will say, “Do you know the address of your father in the U.S.?” Plaintiff, “Yes, and I even know the zip code.” Judge, “If we will mail the complaint and the summons by registered mail in the post office, that will cost you P15 to P30. Kaya mo ba?” Plaintiff, “Siguro. I will raise that amount.” That is what happened in the case of MALAYA. They mailed the summons abroad and the defendant received it. The defendant questioned. ISSUE: Is there a valid service of summons under Section 15 through registered mail? HELD: YES. It would fall under “In any other manner the court may deem sufficient.” And that is what exactly happened in this case at bar where the court allowed the service of summons abroad by a registered mail. Of course, the defendant received the letter but still challenged the jurisdiction of the court, the manner of service of summons on the ground that it is not by personal service or publication but by registered mail.

And since the defendant has received the summons, due process has been served and the case can now proceed. So in other words, it is very queer. The SC said extraterritorial service of summons by registered mail may fall under the third mode of service under Section 17 (now, Section 15) “In any other manner the court may deem sufficient.” There is no denial of due process to be informed because you were informed so you cannot resort to technicality. Q: Is there such a thing as service of summons by registered mail under Rule 14? A: NONE. Only personal service or by publication. Unlike in Rule 13, when you serve and file a pleading there is such a thing as service by registered mail. Q: But how come in MALAYA case it is allowed? A: Because it was considered as falling under the general phrase, “In any other manner the court may deem sufficient” not because it is allowed but the court considered it as deemed covered under the phrase. Q: If the court allows service of summons abroad, then what is the period to file an answer? A: The non-resident is given not less than 60 days to file an answer. It is given a longer period in order to give him more time. This is related with Section 1 rule 11: “The defendant shall file his answer to the complaint within 15 days after service of summons, UNLESS a different period is fixed by the court.” And take note that under Section 17, there must be a motion to effect service of summons by publication. Sec. 17. Leave of court. Any application to the court under this Rule for leave to effect service in any manner for which leave of court is necessary shall be made by motion in writing, supported by affidavit of the plaintiff or some person on his behalf, setting forth the grounds for the application. (19)

He must file a motion under Section 17 to effect service of summons by publication. The court will then issue an order. Now in 1996, there was a case decided by the SC on the extraterritorial service of summons. The case of VALMONTE vs. COURT OF APPEALS 252 SCRA 92 [1996] J. Mendoza FACTS: Here, the defendant is Lourdes Valmonte who is a foreign resident. She is residing abroad. Her husband, Alfredo Valmonte, who is also her attorney, has a law office in the Philippines. He is Atty. Valmonte – yung mga Valmonte sa checkpoint cases in Constitutional law. He is an activist-lawyer. So, his wife is residing abroad but he is here, because he is practicing in the Philippines. Now, the sister of Mrs. Valmonte filed a case against her for partition of real property. You know that you have to implead all the co-owners. The summons intended for Lourdes was served on her husband in the latter’s law office because anyway, the husband is here. ISSUE : Was there a valid service of summons on Lourdes Valmonte?

HELD: There is NONE. There was no valid service of summons. REASON #1: First of all, the case at bar is an action for partition and accounting under Rule 69. So, it is an action quasi in rem. Since this is an action quasi in rem and Lourdes Valmonte is a non-resident who is not found in the Philippines, summons on her must be in accordance with Rule 14, Section 15. So you must follow the modes of service under Section 15 because the action is quasi in rem. In this case, the service of summons was not effected personally because it was served on the husband. There was also no publication. The only possibility is the third one, “in any other manner the court may deem sufficient.” But the third mode applies only when you are serving the summons abroad. You cannot apply this when you are serving the summons in the Philippines. So it does not also fall under the third mode. This mode of service, like the first two, must be made outside of the Philippines such as through the Philippine Embassy in the foreign country where the defendant resides. REASON #2: Under Section 17, leave of court is required when serving summons by publication. There must be a motion where the court will direct that the summons be served in that manner. In this case, was there any motion filed here? Wala man ba. Was there any order of the court authorizing it? Wala rin. So it does not comply with Sections 15 and 17. REASON #3: The third most important reason is that, when the defendant is a non-resident and being served abroad under Section 15, the law guarantees a minimum of sixty (60) days to answer the complaint pursuant to Section 15. And here, she was only given fifteen (15) days to file the answer. Therefore, there was an erroneous computation of the period to answer. “Finally, and most importantly, because there was no order granting such leave, Lourdes Valmonte was not given ample time to file her Answer which, according to the rules, shall be not less than sixty (60) days after notice. It must be noted that the period to file an Answer in an action against a resident defendant differs from the period given in an action filed against a nonresident defendant who is not found in the Philippines. In the former, the period is fifteen (15) days from service of summons, while in the latter, it is at least sixty (60) days from notice.” So those are the three main reasons cited by the SC on why there was improper service of summons on Lourdes Valmonte under the rules. SERVICE OF SUMMONS BY PUBLICATION UNDER SECTION 16 Sec. 16. Residents temporarily out of the Philippines. When any action is commenced against a defendant who ordinarily resides within the Philippines, but who is temporarily out of it, service may, by leave of court, be also effected out of the Philippines, as under the preceding section. (18a)

Q: What is the main difference between defendant in Section 15 and in Section 16?

A: In section 15, defendant is residing abroad and not even found in the Philippines, while in Section 16 defendant is residing in the Philippines but temporarily out of the Philippines. EXAMPLE: Suppose Ms. Torres is in a world tour. She is considered a resident defendant temporarily out of the Philippines. I can sue her but it will take months before she come back. The problem is, your action will already prescribe. Q: How will you serve summons to him? A: According to Section 16, you can serve summons just like in Section 15 – through personal service, by publication, and in any other manner the court may deem sufficient. So one option is to wait for him to come back and then serve the summons personally. One of the leading case on this type of defendant was in the old case of: MONTALBAN vs. MAXIMO 22 SCRA 1070 FACTS: In this case, the defendant is residing in the Philippines but on a world tour and he will be out for so many months. Naga-tour ba! It was at that time when the summons was served in his residence. Well of course, he is not there. But there was somebody left in the house. So, the sheriff said, “Who are you?” And the person said that he is the one in charge here. “When is your boss coming back?” Mga four or five months pa. So, the sheriff served upon the person in charge the summons. So, the sheriff resorted to substituted service under Section 7. And there was a default judgment. Pagbalik ng tao, defaulted na siya, meron ng execution. So he questioned the service of summons because under Section 16, in relation to Section 15, summons must be served with leave of court by personal, publication or in any other manner. ISSUE #1: Can substituted service of summons be applied to a defendant who is residing in the Philippines but temporarily out? HELD: YES. Substituted service is also applicable. Unlike Section 15 where the defendant has no residence here, you have a residence man. The sheriff resorted to substituted service by leaving it to the person in charge, a person of sufficient age and discretion because for justifiable reasons, substituted service is also applicable even if the defendant is outside of the Philippines. It is true that personal service of summons is preferred. But if the personal service cannot be effected within a reasonable time, the sheriff can resort to substituted service. And in your case, the sheriff cannot serve personally because you will be out of the country for the next four or five months. So the sheriff has to resort to substituted service. ISSUE #2: Second, sabi niya, “Equity na lang. That is unfair, eh, because I really had no knowledge about the case. I failed to answer because you see, during the five months when I was abroad, I never had the opportunity to call up the one I left behind. So there was no opportunity for me to ask him what has been happening there. He has also no opportunity to tell me about what happened because he does not know where I was. So I only learned about it after five months. So in the name of equity please set aside the judgment.” HELD: In the name of equity, we will not set aside the judgment. You did not even bother to call and tell the person left where you were. When you called up perhaps the person left could notify you about the summons. You are very irresponsible! What kind of a

person are you? You will leave for abroad and you will not even bother to call up to find out what is going on. So, wala! So the case of MONTALBAN provides that the service of summons under Section 16 on the defendant doesn’t prevent the application of Section 7 in addition to Section 15. Summons can be served abroad just like in Section 15 but it does not mean to say that you cannot apply Section 7 because anyway it does not say MUST, it uses MAY. And one thing that you will notice in Section 16 is that the action is IN PERSONAM. It is purely an action for damages. So in Section 16, when residents are temporarily outside of the Philippines, there could be also substituted service of summons in addition to Section 15 and the action could be in personam as distinguished from Sections 14 and 15 where the action must be in rem or quasi in rem. So the action in Section 16 need not be an action in rem or quasi in rem because he is actually residing in the Philippines and only temporarily out. SERVICE OF SUMMONS IN EXCEPTIONAL CASES 1.) SERVICE OF SUMMONS UPON AN ENTITY WITHOUT JURIDICAL PERSONALITY Sec. 8. Service upon entity without juridical personality. When persons associated in an entity without juridical personality are sued under the name by which they are generally or commonly known, service may be effected upon all the defendants by serving upon any one of them, or upon the person in charge of the office or place of business maintained in such name. But such service shall not bind individually any person whose connection with the entity has, upon due notice, been severed before the action was brought. (9a)

Section 8 is related to Rule 3, Section 15: Rule 3, Sec. 15. Entity without juridical personality as defendant. When two or more persons not organized as an entity with juridical personality enter into a transaction, they may be sued under the name by which they are generally or commonly known. In the answer of such defendant, the names and addresses of the persons composing said entity must all be revealed. (15a)

Q: Since you can sue someone without juridical personality, how do serve summons upon him? A: Under Section 8, by serving summons upon anyone of them, that is sufficient. Service upon any of those defendants is service for the entire entity already. You may also serve summons upon the person in charge of the office of the place of business. He may not necessarily be the owner but incharge of the office, he can be served with summons. 2.) SERVICE OF SUMMONS UPON SOMEBODY WHO IS A PRISONER Sec. 9. Service upon prisoners. When the defendant is a prisoner confined in a jail or institution, service shall be effected upon him by the officer having the management of such jail or institution who is deemed deputized as a special sheriff for said purpose. (12a)

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

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

What do you mean by domestic? A corporation or association organized under Philippine laws. Majority of our corporations in the Philippines, almost 95%, are domestic private corporation. Like banks – BPI, Security Bank - they can be sued because they are persons in the eyes of the law. Now, how do you serve summons to a corporation? Actually, they have no physical existence, they only exist by legal friction. Ordinarily summons must be served to a human being, to somebody who is supposed to be the representatives. Therefore, common sense will tell that in case of a corporation, you have to serve the summons through people who run the corporation. Q: To whom do you serve summons if it is a corporation? A: In the case of a corporation, summons is served upon its officers. Q: Who are these officers? A: President, managing partner, general manager, corporate secretary, treasurer, in-house counsel. PRESIDENT. Sometimes, the president of a corporation is called the Chief Executive Officer or

CEO. MANAGING PARTNER. This is in case of a partnership. GENERAL MANAGER. Under the prior law, the word there is simply “manager.” Now they added the word “general.” But even in the old law, the word “manager” is interpreted as general manager. In a corporation, there are so many managers like branch managers. General manager is the over-all manager of the corporation throughout the Philippines. He is usually based in the head office. CORPORATE SECRETARY. The prior law only used the word “secretary” but it has been interpreted as corporate secretary, not the typist secretary. The corporate secretary is the custodian of the records of the corporation. He is also a stockholder, because you cannot be a corporate secretary unless you are a stockholder. The new law has already emphasized ‘corporate secretary.’ Before illiterate sheriffs used to serve summons on secretary-typist. TREASURER. The prior law says “cashier” now they have changed the word to ‘treasurer.’ It is because treasurer is actually an officer also. He is just like a budget secretary of the government. Cashiers are ordinary employees which is more on clerical works. IN-HOUSE COUNSEL. He is the lawyer of the company. He is actually employed by the corporation. He takes care of the legal problems. In Manila, for instance, most of the corporations there have in-house counsels. Not so much here in Davao. Like Ayala Corporation in Manila, they have internal legal counsel more or less 10 while Bank of Philippine Island has around 15. But these corporations hire lawyers from the outside when it comes to sensitive cases. They are referred as external legal counsel. The rule that summons may be served on internal legal counsel, although appearing for the first time in the 1997 rules, is actually an old rule. It has been ruled already in some cases that service of summons upon an in-house counsel of a corporation is valid. It binds the corporation under the ruling in the case of PHILIPPINE OIL MKTG. CORP. vs. MARINE DEV’T CORP. (117 SCRA 879) and FAR CORPORATION vs. FRANCISCO(145 SCRA 197) that the in-house counsel if served with summons, there is a valid service, because anyway, if you serve it to the general manager or the President, chances are it will also be referred to him kay siya man ang abogado. So the in-house counsel is new and it confirms what the SC said. Two (2) Persons in the OLD RULE not mentioned in the new rules: But here is the change. In the previous law, you can serve the summons on any of the directors of the corporation – MEMBERS of the BOARD ba. Now, wala na yan ngayon. I think the only member of the Board here is the Corporate Secretary. So, the directors, hindi na puwede. But here is the most radical change. The word ‘AGENT,’ nawala na! Did you notice under the old law, there is agent. The word agent was so broad and so general that the SC has actually included there so many people. Like in the case of R TRANSPORT CORPORATION vs. CA, (241 SCRA 77 [1995]), the summons was served to the Operations Manager of the corporation and the SC said the service was valid because he is considered as an agent.

In the 1993 case of GESULGON vs. NLRC (219 SCRA 561), the summons was served on the Assistant General Manager of the corporation and the SC said that the service was valid because he is an agent. In the case of FAR CORPORATION vs. FRANCISCO (146 SCRA 197), the summons was served on the Chief of Finance and Administrative Section of the corporation and the SC said that he will fall under the word agent. In the cases of DELTA MOTORS vs. MASAGUN (70 SCRA 598) and ATM TRUCKING vs. BUENCAMINO (124 SCRA 434) the service of summon an employee employed in a corporation does not bind the corporation because an ordinary employee who is not an officer is not considered as agent. However, there are cases were the service of summons to an ordinary employee who is not an officer was valid. Among which are: The case of SUMMIT TRADING vs. ABENDANO (135 SCRA 397 [1985]), the summons was served on the confidential secretary of the President and the SC said the service is valid. She is qualified as agent. And in the cases of J AND J CORPORATION vs. CA (158 SCRA 466), reiterated in the case of GOLDEN FARMS vs. SUN BAR DEVELOPMENT CORPORATION (214 SCRA 295), the summons was served on a mere clerk of the corporation. So, he is not even an officer. But the clerk gave it to the President. The SC said that the defect is cured. The clerk could be considered as an agent. The need for speedy justice must prevail over technicality. So, the word ‘agent’ has become very broad and it practically covers all corporate officers who are presumed to be responsible. Now, in the 1997 rules, the word ‘agent’ disappeared. And the law is very clear: President, managing partner, general manager, corporate secretary, treasurer, in-house counsel. Now, suppose you will serve it to the Branch manager? Of course the corporation will say that there is no valid service of summons. OK, it is void. But look at the case of GESULGON, etc. But that is under the 1964 rules when you are deemed to be an agent. But now, it is very specific. The intention of the new rules is to limit the service to anyone of these. That is why they removed the word ‘agent.’ And if that interpretation prevails that the intention of the rules is to limit to these people, it is now very difficult to sue a corporation based in Makati if you are here in Davao because your summons has to be coursed through them. And these people are not here! The President is not here; The General Manager, etc. They are all based in the head office. Corporate Secretary, treasure, in-house counsel – Doon man ang opisina nila ba. The ones based here are branch managers and they are now disqualified. If that is the intention of the law, my golly! That is another headache! It can be argued both sides eh. Despite this, we should stick to the principle that technicalities should not give way. Suppose I will serve it on the Branch Manager. He forwarded it to their President in Manila. Eh ano pa ngayon ang reklano ninyo? Anyway you already acquired it, you learned about it. Can you insist that the court has no jurisdiction when actually you are well aware already of the suit? You can say, let us go to reality. But it can also be argued under the old law. Precisely, if the intention is to make

everybody a responsible officer, then the word ‘agent’ should have been retained. The intention of the law is to limit only to these people. So, both sides can be defended. Section 11 thus becomes another controversial provision. Whether this change has abrogated GESULGON, FAR EAST CORP., SUMMIT TRADING na pwede. All those doctrines have now been rendered obsolete because of this change. All those cases were decided based on the word ‘agent’ – are they agents? At least there is basis, eh. Now, the word ‘agent’ is no longer there. That is why this is a controversial provision. E.B. VILLAROSA LTD vs. BENITO 312 SCRA 65 [Aug. 6, 1999] FACTS: E.B. Villarosa & Partners is a limited partnership with principal office address at 102 Juan Luna St., Davao City and with branch offices at Parañaque and Cagayan de Oro City (CDO). Villarosa and Imperial Development (ID) executed an Agreement wherein Villarosa agreed to develop certain parcels of land in CDO belonging to ID into a housing subdivision. ID, filed a Complaint for Breach of Contract and Damages against Villarosa before the RTC allegedly for failure of the latter to comply with its contractual obligation. Summons, together with the complaint, were served upon Villarosa, through its Branch Manager Wendell Sabulbero at the address at CDO but the Sheriff’s Return of Service stated that the summons was duly served "E.B. Villarosa & Partner thru its Branch Manager at their new office Villa Gonzalo, CDO, and evidenced by the signature on the face of the original copy of the summons." Villarosa prayed for the dismissal of the complaint on the ground of improper service of summons and for lack of jurisdiction over the person of the defendant. Villarosa contends that the RTC did not acquire jurisdiction over its person since the summons was improperly served upon its employee in its branch office at CDO who is not one of those persons named in Sec. 11, Rule 14 upon whom service of summons may be made. ID filed a Motion to Declare Villarosa in Default alleging that Villarosa has failed to file an Answer despite its receipt allegedly on May 5, 1998 of the summons and the complaint, as shown in the Sheriff's Return. HELD: “We agree with Villarosa. Earlier cases have uphold service of summons upon a construction project manager; a corporation's assistant manager; ordinary clerk of a corporation; private secretary of corporate executives; retained counsel; officials who had charge or control of the operations of the corporation, like the assistant general manager; or the corporation's Chief Finance and Administrative Office. In these cases, these persons were considered as "agent" within the contemplation of the old rule.” “Notably, under the new Rules, service of summons upon an AGENT of the corporation is NO LONGER authorized.” “The designation of persons or officers who are authorized to accept summons for a domestic corporation or partnership is now limited and more clearly specified in Section 11, Rule 14. The rule now states "general manager" instead of only "manager"; "corporate secretary" instead of "secretary"; and "treasurer" instead of "cashier." The phrase "agent, or any of its directors" is conspicuously deleted in the new rule.” “A strict compliance with the mode of service is necessary to confer jurisdiction of the court over a corporation. The officer upon whom service is made must be one who is named in the statute; otherwise the service is insufficient. . . The liberal construction rule cannot be invoked and utilized as a substitute for the plain legal requirements as to the manner in

which summons should be served on a domestic corporation. .” “Service of summons upon persons other than those mentioned in Section 13 of Rule 14 (old rule) has been held as improper. Accordingly, we rule that the service of summons upon the branch manager of Villarosa at its branch office at CDO, instead of upon the GM at its principal office at Davao City is improper. Consequently, the RTC did not acquire jurisdiction over the person of Villarosa. The fact that Villarosa filed a belated motion to dismiss did not operate to confer jurisdiction upon its person. There is no question that the Villarosa’s voluntary appearance in the action is equivalent to service of summons.” “Before, the rule was that a party may challenge the jurisdiction of the court over his person by making a special appearance through a motion to dismiss and if in the same motion, the movant raised other grounds or invoked affirmative relief which necessarily involves the exercise of the jurisdiction of the court, the party is deemed to have submitted himself to the jurisdiction of the court. This doctrine has been abandoned in the case of La Naval Drug Corporation vs. CA which became the basis of the adoption of a new provision in Section 20 of Rule 14.” “Section 20 now provides that the inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant shall not be deemed a voluntary appearance. The emplacement of this rule clearly underscores the purpose to enforce strict enforcement of the rules on summons. Accordingly, the filing of a motion to dismiss, whether or not belatedly filed by the defendant, his authorized agent or attorney, precisely objecting to the jurisdiction of the court over the person of the defendant can by no means be deemed a submission to the jurisdiction of the court.” “There being no proper service of summons, the trial court cannot take cognizance of a case for lack of jurisdiction over the person of the defendant. Any proceeding undertaken by the trial court will consequently be null and void.” “WHEREFORE, the petition is hereby GRANTED. The assailed Orders of the public respondent trial court are ANNULLED and SET ASIDE.” 5.) SERVICE OF SUMMONS UPON FOREIGN PRIVATE JURIDICAL ENTITY Sec. 12. Service upon foreign private juridical entity. When the defendant is a foreign private juridical entity which has transacted business in the Philippines, service may be made on its resident agent designated in accordance with law for that purpose, or, if there be no such agent, on the government official designated by law to that effect, or on any of its officers or agents within the Philippines. (14a)

Q: What is the difference between corporation or entity in Section 11 and Section 12? A: The entity or corporation under Section 11 is domestic while under Section 12, the corporation is a foreign corporation but doing business in the Philippines because the law says, when the defendant is a foreign private juridical entity which transacted business in the Philippines…” When a foreign corporation is not doing business in the Philippines, it cannot be sued, just like a non-resident defendant. The best example of a foreign corporation doing business in the Philippines are air line companies, foreign banks. Q: To whom do you serve summons in this case? A: Well, that is already touched in Rule 11, Section 2. If it has a designated resident agent, you must serve it to him. If it has none, then to the appropriate Philippine government officer who will transmit it

to the head office. Q: What is the period to file answer? A: Under Rule 11, Section 2, the period to file an answer is longer if summons is served on a government official designated by law for that purpose, the period is 30 days. But if the foreign corporation has a designated resident agent in the Philippines and summons is served on him, the period to answer is only 15 days just like any other defendant. NORTHWEST ORIENT AIRLINES vs. COURT OF APPEALS 241 SCRA 192 [1995] HELD: When there is a designated resident agent to receive summons, service of summons to that person is exclusive. He is the only one to be served with summons in behalf of the corporation sued. So, if there is a designated agent, siya lang. He is the only person authorized to receive the summons. “If a foreign corporation has designated an agent to receive summons the designation is exclusive. Service of summons is without force and gives to a court no jurisdiction unless made upon him.” BALTAZAR vs. COURT OF APPEALS 168 SCRA 354 [1988] FACTS: The summons was to be served on the corporation at an address. But when the sheriff went to that address, he was told by the security guard that the corporation was no longer holding office there. Lumipat na sa ibang lugar. Therefore, we do not know already. So, ni-report niya, “Hindi ko makita.” Therefore, the plaintiff filed a motion in court to be allowed to serve summons by publication under Section 14 when the whereabouts of the defendant is unknown. So there was service of summons by publication. ISSUE: Was there a valid service of summons by publication? HELD: There was NONE. The deputy sheriff should have known what every law school student knows! – that defendant, being a domestic corporation must have been registered with the SEC and that the SEC records would therefore reveal, not just the correct address of the corporate headquarters of the defendant, but also the address of its officers. A litigant or process server who has not gone through the records of the SEC cannot claim to have carried out the ‘diligent inquiry’ required under the law for valid service of summons by publication upon a domestic corporation.” So there was no diligent inquiry. You should have gone to the SEC and look at the records kung saan lumipat. Also with the address of the officers like the President, you can go to his place and serve the summons to him. So there was improper service of summons by publication. Another case was REBULIDO vs. COURT OF APPEALS 170 SCRA 800 FACTS: A corporation committed a wrong and then pagdemanda, dissolved na. When

the action was filed, the corporation was already dissolved – wala ng juridical personality. ISSUE #1: Can you still sue a dissolved corporation? HELD: YES. Otherwise, if we will say that a corporation which is already dissolved can no longer be sued, it is very easy for a corporation to avoid liability by simply dissolving itself after it commits a wrong. And secondly, under the Corporation Law, even if you are already dissolved, there is still a period for winding up where you can collect. So, it is still functioning. And to say that it is already dissolved or that it is no longer functioning is not also true. ISSUE #2: If that is so, to whom will you now serve the summons? HELD: You serve it on the last set of officers. The same people mentioned – there must be a last President or a last Corporate Secretary, etc. They are the people who whom summons should be served. When a corporation was placed under a Voting Trust Agreement (VTA), the summons should be served on the trustee. The President has no more personality – that is an exception to Section 11. So, when a corporation is placed under VTA, the summons should be served on the person in whose favor the VTA was executed because the officers of the corporation have no more personality to manage the affairs of the corporation. FOREIGN ENTITY TRANSACTING BUSINESS IN THE PHILIPPINES Finally, going back to foreign private juridical entity, take note that under the law, the foreign private juridical entity is one doing business in the Philippines. So, if a foreign corporation is not doing business in the Philippines, it cannot be sued, just like a non-resident defendant because the court can never acquire jurisdiction over that person or foreign corporation. We know that ‘no? And the perennial debate is, when is a foreign private corporation doing or not doing any business in the Philippines? I think the Corporation Law has so many cases along that line. EXAMPLE: A Filipino businessman wanted to buy machines where there is only one manufacturer and supplier which is a corporation in Europe. This corporation has no office in the Philippines. The Filipino businessman contracted with the foreign corporation. He ordered machineries. The foreign corporation sent its people to deliver the machineries. They stayed in the Philippines gor a while to check the machines and to teach the Filipinos how to run it. Q: Now, can that corporation be used in the Philippine courts? A: NO, because that foreign corporation is not doing business in the Philippines. Section 12 does not refer to a foreign corporation with a single isolated, casual transaction. In the cases of PACIFIC MICRONISIAN LINE, INC. vs. DEL ROSARIO G.R. No. L-7154. October 23, 1954 HELD: “‘Doing business’ is construed to mean such continuity of conduct and intention to establish a continuous business. An isolated transaction, or transactions

which are occasional, incidental or casual and which do not evince intent to conduct continuous business do not constitute ‘doing business in the Philippines.’” “In order that a foreign corporation may be regarded as doing business in the Philippines, there must be continuity of conduct and intention to establish a continuous business, such as the appointment of a local agent, and not one of a temporary character.” FAR EAST INTERNATIONAL vs. NANKAI KOGYO CO., LTD. November 30, 1962 HELD: “Where a single act or transaction of a foreign corporation is not merely incidental or casual, but is of such character as distinctly to indicate a purpose on the part of the corporation to do other business in the Philippines, and to make the Philippines a base of operations for the conduct of a part of the corporation’s ordinary business, the corporation may be said to be ‘doing business in the Philippines.’” So, under the rules, a foreign corporation not doing business in the Philippines cannot be sued. If it enters into a contract with a Filipino business man, it is not actually doing business. Isa lang eh! So, technically, that foreign corporation cannot be sued in the Philippines. Your remedy is to go to Europe and sue that corporation there. In the case of LINGER AND FISCHER vs. IAC 125 SCRA 522 FACTS: A Philippine corporation entered into a contract with a foreign corporation and then their agreement says the foreign corporation agrees to be sued in the Philippines. So practically, puwede. And the problem now is, to whom will you serve the summons? When a foreign corporation not doing business in he Philippines agrees to be sued in the Philippines, how do you serve summons? Is Section 12 applicable? HELD: NO, Section 12 is not applicable because in Section 12, the premise is, the foreign private corporation is doing business in the Philippines. So Section 12 does not apply. So, how shall we serve the summons? In the first place, the foreign corporation, which cannot be sued, agrees to be sued. Their agreement is similar to venue where we can agree on the venue of the case. Now, since it is not doing business, it is more accurate to apply the rules on Section 15 on extraterritorial service of summons on a non-resident defendant who is not physically here. So, summons should be served not in accordance with Section 12 but in accordance with Section 15 on extraterritorial service. 6.) SERVICE OF SUMMONS UPON PUBLIC CORPORATION Sec. 13. Service upon public corporations. When the defendant is the Republic of the Philippines, service may be effected on the Solicitor General; in case of a province, city or municipality, or like public corporations, service may be effected on its executive head, or on such other officer or officers as the law or the court may direct. (10a)

An example of a public corporation is the Republic of the Philippines. As a rule, they cannot be sued. But in cases where it can be sued, summons may be effected on the Solicitor General being the representative of the Republic. Kung provinces, cities or municipalities, like the City of Davao, service may be effected on the executive heads such as the provincial governor, municipal or city mayor. Summons may also be effected on “such other officer or officers as the law or the court may direct.” So the court may order that the summons be served on the city legal officer. Here, there is still a valid service of summons. Sec. 18. Proof of service. The proof of service of a summons shall be made in writing by the server and shall set forth the manner, place, and date of service; shall specify any papers which have been served with the process and the name of the person who received the same; and shall be sworn to when made by a person other than a sheriff or his deputy. (20)

This is called a SHERIFF’S RETURN where the sheriff will state the manner (personal or substituted, publication); place and date; to whom served. Then you specify that you serve also the complaint. Name of person who received the same. Q: Must the return be sworn to? A: NO NEED, except when made by a person other than a sheriff or his deputy. Remember that summons can be served by other person authorized by the court to do so. Sec. 19. Proof of service by publication. If the service has been made by publication, service may be proved by the affidavit of the printer, his foreman or principal clerk, or of the editor, business or advertising manager, to which affidavit a copy of the publication shall be attached, and by an affidavit showing the deposit of a copy of the summons and order for publication in the post office, postage prepaid, directed to the defendant by registered mail to his last known address. (21)

VOLUNTARY AND SPECIAL APPEARANCE Sec. 20. Voluntary appearance. The defendant's voluntary appearance in the action shall be equivalent to service of summons. The inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant shall not be deemed a voluntary appearance. (23a)

The first mode of acquiring jurisdiction over the person of the defendant is service of summons. However, even when there is no service of summons, or if there is improper service of summons, if the defendant files an answer, then in effect, he is submitting himself to the jurisdiction of the court and the court acquires jurisdiction over his person by voluntary appearance. Voluntary appearance is not necessary an answer. Like a motion for an extension of time to file an answer, or a motion for bill of particulars – that is indicative of his submission to the jurisdiction of the court.

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

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