Lex Reviews & Seminars, Inc.

& National Bar Review Center

05-06 Decisions in REMEDIAL LAW By Dean ED VINCENT S. ALBANO
Jurisdiction contemplated therein. The exceptional circumstance
involved in Sibonghanoy which justified the
Jurisdiction is conferred by law; can be raised at departure from the accepted concept of non-
anytime; exception. waivability of objection to jurisdiction has been
Once again the SC in Francel Realty Corp. ignored and, instead a blanket doctrine had been
vs. Sycip, G.R. No. 154684, September 8, 2005, it repeatedly upheld that rendered the supposed ruling
was said that the general rule remains that a court’s in Sibonghanoy not as the exception, but rather the
lack of jurisdiction may be raised at any stage of the general rule, virtually overthrowing altogether the
proceedings, even on appeal. The reason is that, time-honored principle that the issue of jurisdiction is
jurisdiction is conferred by law, and lack of it affects not lost by waiver or by estoppel.”
the very authority of the court to take cognizance of
and to render judgment on the action. Moreover, Beyond pecuniary estimation.
jurisdiction is determined by the averments of the In a case, Roberto Galicia and Carmen
complaint, not by the defenses contained in the Arciaga are business partners. Galicia was asked by
answer. his partner to co – sign a check for P50, 000.00
The exception is the principle of estoppel to which his partner rediscounted at 8% discount.
question jurisdiction, where it has been held that a When presented for payment, the check was
party may be barred from questioning a court’s dishonored on the ground of insufficiency of funds.
jurisdiction after being invoked to secure affirmative Galicia filed a complaint for declaration of nullity of
relief against its opponent. In fine, laches prevents the check and the agreement to pay interest. It was
the issue of lack of jurisdiction from being raised for filed with the RTC but a motion to dismiss was filed
the first time on appeal by a litigant whose purpose on the ground of lack of jurisdiction since the amount
is to annul everything done in a trial in which it has was only P50, 000.00, hence, within the MTC’s
actively participated. (Ermin vs. De Leon, 428 Phil. jurisdiction. It was contended on the other hand, that
172 (2002); Tijam vs. Sibonghanoy, 23 SCRA 29 the action was beyond pecuniary estimation.
(1968). The SC ruled that the action is one beyond
The ruling in Sibonghanoy on the matter of pecuniary estimation since the action primarily
jurisdiction is, however, the exception rather than the sought to annul the agreement to pay interest on the
rule. (Lopez vs. David, Jr., 426 SCRA 535 (2004). amount of the rediscounted check. What was being
Estoppel by laches may be invoked to bar the issue assailed was the payment of interest. The plaintiff
of lack of jurisdiction only in cases in which the was not seeking recovery of a sum of money. (De
factual milieu is analogous to that in the cited case. Galicia vs. Mercado, G.R. No. 146744, March 6,
In such controversies, laches should be clearly 2006).
present; that is, lack of jurisdiction must have been
raised so belatedly as to warrant the presumption Action for damages, the total amount determines
that the party entitled to assert it had abandoned or the court that has jurisdiction.
declined to assert it. That Sibonghanoy applies only A complaint for damages was filed due to
to exceptional circumstances is clarified in Calimlim disconnection of electrical service. It alleged that
vs. Ramirez, 204 Phil 25 (1982) where it was said: plaintiff was entitled to moral, nominal and
“A rule that had been settled by unquestioned exemplary damages. It also prayed for consignation.
acceptance and upheld in decisions so numerous to Holding that the RTC has jurisdiction, the SC said
cite is that the jurisdiction of a court over the subject that since in this case, the total amount is within the
matter of the action is a matter of law and may not jurisdiction of the RTC, then, it has to be filed with
be conferred by consent or agreement of the parties. the said court. The allegation on consignation is a
The lack of jurisdiction of a court may be raised at mere factual premise. The nature of an action is
any stage of the proceedings, even on appeal. This determined by the material averments in the
doctrine has been qualified by recent complaint and the character of the relief sought,
pronouncements which stemmed principally from the irrespective of whether or not the plaintiff is entitled
ruling in the cited case of Sibonghanoy. It is to be to recover all or some of the claims or reliefs sought
regretted, however, that the holding in said case had therein. Jurisdiction should not be affected by the
been applied to situations which were obviously not pleas or the theories set up by the defendant in an

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answer or a motion to dismiss. Otherwise, after the amendment is made, and whether any
jurisdiction would become dependent almost entirely evidence defendant might have would be equally
upon the whims of the defendant. (Davao Light & applicable to the information in the one form as in
Power Co., Inc. vs. Hon. Judge of the RTC, Davao the other. A look into Our jurisprudence on the
City, et al., G.R. No. 147058, March 10, 2005; matter shows that an amendment to an information
Austria-Martinez, J; Mangalig vs. Pastoral, G.R. No. introduced after the accused has pleaded not guilty
143951, October 25, 2005; Sta. Clara Homeowners’ thereto, which does not change the nature of the
Assn. vs. Gaston, 425 Phil. 221 (2002). crime alleged therein, does not expose the accused
to a charge which could call for a higher penalty,
Court that has jurisdiction over a consignation does not affect the essence of the offense or cause
case. surprise or deprive the accused of an opportunity to
It depends upon the amount to be deposited. If it is meet the new averment had each been held to be
within the jurisdiction of the RTC, then file it there. one of form and not of substance – not prejudicial to
Otherwise, it is within the jurisdiction of the RTC. the accused, and therefore, not prohibited by
(Ascue vs. CA, 196 SCRA 804; Davao Light & Section 13, Rule 110 (now Section 14) of the
Power Co., Inc. vs. Hon. Judge, RTC, Davao City, et Revised Rules of Court).”
al., supra.). The original information is sufficient in form.
Allowing the amendment does not alter the defense
Formal amendment to information. of the accused. Indeed, it only states with precision
Facts:An information was filed with the RTC of that which is already contained in the original
Makati, accusing Conrado Banal III and Sylvia information. (Conrado Banal III vs. Hon.
Cancie for libel in connection with the column Panganiban, et al., G.R. No. 167474, November 15,
“Breaktime” of the Philippine Daily Inquirer attacking 2005).
the honesty, virtue and reputation of Ma. Teresa
Winternitz thus, exposing her to public hatred, Facts:An information for estafa was filed with the
contempt, ridicule. A Motion to Quash was filed RTC, Makati. It was based on the affidavit of the
alleging that the RTC, Makati had no jurisdiction complainant that the checks were delivered in
since there were no allegations that the article was Makati. The direct and cross – examinations
first published in Makati and the residence of the however, showed that the checks were not delivered
complainant. It was granted, but on motion for in Makati but in Parañaque. Does the Makati Court
reconsideration and moved for the amendment of have jurisdiction? Why?
the information to allege that the article was first Held: No, since the elements of the crime were
published in Makati. The RTC ruled that the perpetrated in Parañaque. Venue in criminal cases
amendment was a formal one, hence, it was granted is an essential element of jurisdiction. (Agustin vs.
as it merely clarified that the libelous article was Pamintuan, G.R. No. 164938, August 22, 2005).
printed and first published in Makati. Is the ruling It is a fundamental rule that for jurisdiction to
correct? Why? be acquired by courts in criminal cases the offense
Held: Yes. The amendment was merely formal. An should have been committed or any one of its
amendment is only in form when it merely adds essential ingredients took place within the territorial
specifications to eliminate vagueness in the jurisdiction of the court. Territorial jurisdiction in
information and not to introduce new and material criminal cases is the territory where the court has
facts, and merely states with additional precision jurisdiction to take cognizance or to try the offense
something which is already contained in the original allegedly committed therein by the accused. Thus, it
information and which, therefore, adds nothing cannot take jurisdiction over a person charged with
essential for conviction for the crime charged. an offense allegedly committed outside of that
(Poblete vs. Sandoval, G.R. No. 150610, March 24, limited territory. Furthermore, the jurisdiction of a
2004, 426 SCRA 346). In the case of People vs. court over the criminal case is determined by the
Casey, 103 SCRA 21, the test in determining allegations in the complaint or information. And once
whether an amendment is a matter of form or it is so shown, the court may validly take cognizance
substance, has been laid down, thus: of the case. However, if the evidence adduced
“The test as to whether a defendant is during the trial show that the offense was committed
prejudiced by the amendment of an information has somewhere else, the court should dismiss the action
been said to be whether a defense under the for want of jurisdiction. (Uy vs. CA, 276 SCRA 367
information as it originally stood would be available (1997); Macasaet vs. People, G.R. No. 156747,
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February 23, 2005, 452 SCRA 255; Fukuzume vs. would amount to refusal to give effect to the Local
People, G.R. No. 143647, November 11, 2005). Government Code and to wiping it off the statute
Where life or liberty is affected by its books insofar as ejectment and other cases
proceedings, the court must keep strictly within the governed by the Rule on Summary Procedure are
limits of the law authorizing it to take jurisdiction and
concerned. The Court has no authority to do that.
to try the case and to render judgment. (Pangilinan Reliance on the ruling of the Court in Diu vs.
vs. CA, 321 SCRA 51). CA, 251 SCRA 472 (1995) is misplaced. In that
case, there was a confrontation by the parties before
The lack of jurisdiction over the subject matter the Barangay Chairman and no agreement was
may be raised for the first time in the CA. reached. Although no pangkat was formed, the
The rule is settled that an objection based on the Court held in that instance that there was substantial
ground that the court lacks jurisdiction over the compliance with the law. In any event, the issue in
offense charged may be raised or considered motu that case was whether the failure to specifically
proprio by the court at any stage of the proceedings allege that there was no compliance with the
or on appeal. Moreover, jurisdiction over the subject barangay conciliation procedure constitutes a waiver
matter in criminal case cannot be conferred upon the of that defense. Moreover, no such confrontation
court by the accused, by express waiver or before the Lupon occurred with respect to the
otherwise, since such jurisdiction is conferred by the unlawful detainer suit against Josephine Pablo
sovereign authority which organized the court, and is before the MTC.
given only by law in the manner and form prescribed
by law. (US vs. Castañares, 18 Phil. 210 (1911). No need for barangay conciliation.
While an exception to this rule was recognized In a case, the principal is a resident of the USA and
beginning with the landmark case of Tijam vs. the agent is a resident of the Philippines. If a suit is
Sibonghanoy, 23 SCRA 26 (1968), wherein the filed by the latter, there is no need for barangay
defense of lack of jurisdiction by the court which conciliation. If the parties are not actual residents in
rendered the questioned ruling was considered to be the same city or municipality or adjoining barangays,
barred by laches, the factual circumstances involved there is no requirement for them to submit their
in said case, a civil case, which justified the dispute to the lupon. (Tavora vs. Veloso, 117 SCRA
departure from the general rule are not present in 613; Vercide vs. Hernandez, 330 SCRA 49 (2000).
the instant criminal case. (Fukuzume vs. People, To construe the express statutory
G.R. No. 143647, November 11, 2005). requirement of actual residency as applicable to the
attorney – in – fact of the party – plaintiff, as
Barangay Conciliation contended by defendant would abrogate the
meaning of a “real party in interest”.
Barangay conciliation is mandatory. Since the plaintiff, the real party in interest, is
Once again, the SC in Berba vs. Pablo, et al., not an actual resident of the barangay where the
G.R. No. 160032, November 11, 2005, ruled that defendant resides, the local lupon has no jurisdiction
filing a complaint with the barangay for mandatory over their dispute, hence, prior referral to it for
conciliation proceedings is a condition precedent conciliation is not a pre-condition to its filing in court.
that must be complied with to afford the parties an (Pascual vs. Pascual, G.R. No. 157830, November
opportunity to settle the case amicably. However, 17, 2005; Banting, et al. vs. Sps. Maglapuz, et al.,
the complaint was filed directly with the MTC. G.R. No. 158867, August 22, 2006).
Clearly then, the complaint was premature. The
execution of the June 5, 1999 Agreement between RULE 1
the parties did not amount to substantial compliance Liberal Interpretation
to the requirements of the Local Government Code The rules of procedure ought not to be
on mandatory barangay conciliation proceedings. applied in a very rigid, technical sense, for they have
Indeed, considering that the MTC had already been adopted to help secure – not override –
rendered a decision on the merits of the case, it is substantial justice. For this reason, courts must
not without reluctance that the Court reaches the proceed with caution so as not to deprive a party of
conclusion which would require the petitioner to start statutory appeal; rather, they must ensure that all
again from the beginning. The facts of the present litigants are granted the amplest opportunity for the
case, however, do not leave the Court any choice. proper and just ventilation of their causes, free from
To grant the petition under these circumstances the constraint of technicalities. (Atty. Calo, et al. vs.
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Sps. Villanueva, G.R. No. 153756, January 20,
2006).
Well – settled is the rule that procedural laws are
construed to be applicable to actions pending and
undetermined at the time of their passage, and are
deemed retroactive in that sense and to that extent.
As a general rule, the retroactive application of
procedural laws cannot be considered violative of
any personal rights because no vested right may
attach to nor arise therefrom. (In Re: Contempt of
Hon. Datumanong, Jimmie Tel – Equen, petitioner,
G.R. No. 150274, August 4, 2006).
RULE 2
Cause of Action
What determines the nature of an action.
Well-settled is the rule that what determines the
nature of the action as well as the court which has
jurisdiction over the case are the allegations in the
complaint. In actions for forcible entry, the law tells with the rest of their causes of action for damages
us that two allegations are mandatory for the
municipal court to acquire jurisdiction: First, the
plaintiff must allege prior physical possession of the Section 5(c), Rule 2 of the Rules of Court applies
property. Second, he must also allege that he was
deprived of his possession by any of the means
provided for in Section 1, Rule 70 of the Rules of
Court. To effect the ejectment of an occupant or
deforciant on the land, the complaint should embody therein.
such statement of facts as to bring the party clearly
within the class of cases for which the statutes
provide a remedy, as these proceedings are
summary in nature. The complaint must show
enough on its face to give the court jurisdiction
without resort to parol evidence.
A look at the Amended Complaint filed by
petitioner clearly show a case for forcible entry.
Petitioner alleged therein that he has been in
possession of the subject land for the last nineteen
years and that respondents, in the first week of
August 1998, without his permission and consent,
entered the land by means of force, strategy and
stealth and started the construction of a building
thereon; and upon being informed thereof, he
requested them to stop their construction but
respondents refused to vacate the land forcing him
to file the instance case to recover possession
thereof. (Domalsin vs. Sps. Valenciano, G.R. No.
158687, January 25, 2006).
RULE 2 and 4
Facts:A contract of sale over a real property located states that where the causes of action are between
in Parañaque City was entered into, the value of
which was payable in six (6) installments via
postdated checks. The sellers obliged themselves to
transfer the property upon the execution of the
contract, subject to the condition that if two of the
checks would be dishonored, the buyer would
recovery the property to the sellers. Due to the
dishonor of the checks, the sellers filed a complaint
for annulment of the contract, recovery of
possession and damages before the RTC of
Bulacan. The defendant filed a motion to dismiss on
the grounds of lack of jurisdiction over the subject
matter and improper venue. It was contended that
the principal action for rescission of the contract and
the recovery of the possession of the property is a
real action and not personal, hence, the action
should be filed in Parañaque, where the property is
located. In opposition, it was contended that the
action for damages and attorney’s fees is a personal
action, not real, hence, it can be filed in Bulacan.
Their second cause of action for recovery of
possession is a real action, hence, it can be joined
pursuant to Section 5(c), Rule 2.
By way of reply, the respondents averred that
only when one or more of multiple causes of action
falls within the exclusive jurisdiction of the first level
courts, and the other or others are within the
exclusive jurisdiction of the RTC, and the venue lies
The motion was denied for lack of merit. A
motion for reconsideration was filed and it was
granted, hence, the complaint was dismissed. It was
ruled that the principal action was a real action and
should have been filed in the RTC of Parañaque City
where the property subject matter of the complaint
was located. However, since the case was filed in
the RTC of Bulacan where the petitioners reside,
which court had no jurisdiction over the subject
matter of the action, hence, it was dismissed, hence,
petition for certiorari was filed with the SC where the
sole issue was whether or not venue was properly
laid by the petitioners in the RTC of Malolos,
Bulacan. The resolution of this issue is, in turn,
anchored on whether Section 5, Rule 2 of the Rules
of Court invoked by the petitioners is applicable in
this case.
Under the said Rule, 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 conditions therein
enumerated, one of which is Section 5(c) which
the same parties but pertain to different venues or
jurisdiction, the joinder may be allowed in the RTC
4
provided one of the causes of action falls within the
jurisdiction of said court and the venue lies therein.
(Rule 2). Decide.
Held: Rule 2, Section 5(c) does not apply because
the plaintiffs had only one cause of action, the
breach of the contract when the buyer refused to
pay the first two installments in payment of the
property as agreed upon, and turn over to the sellers
the possession of the real property, as well as the
house constructed thereon. The claim for damages
for reasonable compensation for the buyer’s use and
occupation of the property, in the interim, as well as
moral and exemplary damages suffered by the
sellers on account of the breach of contract of the
buyers are merely incidental to the main case of
action, and are not independent or separate causes
of action.
The action of the sellers for the rescission of
the contract on account of the buyer’s breach
thereof and the latter’s failure to return the premises
subject of the complaint to the sellers, and the
buyer’s eviction therefrom is a real action. (Punsalan
vs. Vda. De Lacsamana, G.R. No. 55729, March 28,
1983, 121 SCRA 331; Tenorio vs. Hon. Paño, 230
Phil. 17 (1986). As such, the action should have
been filed in the proper court where the property is
located, namely, in Parañaque City, conformably
with Section 1, Rule 4 of the Rules of Court which
reads:
“Actions affecting title to or possession of real
property, or interest therein, shall be commenced
and tried in the proper court which has jurisdiction
over the area wherein the real property involved, or
a portion thereof, is situated.”
Since the sellers who were residents of
Malolos, Bulacan, filed their complaint in the RTC of
Bulacan, venue was improperly laid; hence, the trial
court acted conformably with Section 1(c), Rule 16
of the Rules of Court when it ordered the dismissal
of the complaint. (Sps. Decena vs. Sps. Piquero,
G.R. No. 155736, March 31, 2005, Callejo, J).
Cause of action; its elements.
A cause of action is an act or omission of one party
in violation of the legal right of the other which
causes the latter injury. The essential elements of a
cause of action are the following: (1) the existence of
the legal right of the plaintiff; (2) a correlative legal
duty of the defendant to respect one’s right; and (3)
an act or omission of the defendant in violation of
the plaintiff’s right. (Sps. Decena vs. Sps. Piquero,
G.R. No. 155736, March 31, 2005).
A cause of action should not be confused with
the remedies or reliefs prayed for. A cause of action
is to be found in the facts alleged in the complaint
and not in the prayer for relief. It is the substance
and not the form that is controlling. A party may
have two or more causes of action against another
party.
Concept of joinder of causes of action and the
tests.
A joinder of causes of action is the uniting of two or
more demands or right of action in a complaint. The
question of the joinder of causes of action involves
in particular cases a preliminary inquiry as to
whether two or more causes of action are alleged. In
declaring whether more than one cause of action is
alleged, the main thrust is whether more than one
primary right or subject of controversy is present.
Other tests are whether recovery on one ground
would bar recovery on the other, whether the same
evidence would support the other different counts
and whether separate actions could be maintained
for separate relief; or whether more than one distinct
primary right or subject of controversy is alleged for
enforcement or adjudication. (Sps. Decena vs. Sps.
Piquero, G.R. No. 155736, March 31, 2006).
A party still have a single cause of action even if
he seeks for a variety of remedies.
A cause of action may be single although the plaintiff
seeks a variety of remedies. The mere fact that the
plaintiff prays for multiple reliefs does not indicate
that he has stated more than one cause of action.
The prayer may be an aid in interpreting the petition
and in determining whether or nor not more than one
cause of action is pleaded. If the allegations of the
complaint show one primary right and one wrong,
only one cause of action is alleged even though
other matters are incidentally involved, and although
different acts, methods, elements of injury, items of
claims or theories of recovery are set forth. Where
two or more primary rights and wrongs appear, there
is a joinder of causes of action. (Sps. Decena vs.
Sps. Piquero, G.R. No. 155736, March 31, 2006).
RULE 3
Parties to Civil Action
Nature of indispensable party.
An indispensable party is a party in interest
without whom no final determination can be had of
an action. (China Banking Corp. vs. Oliver, 439 Phil.
50 (2002), and who shall be joined either as plaintiffs
or defendants. The joinder of indispensable parties
is mandatory. (Domingo vs. Scheer, G.R. No.
154745, January 29, 2004, 421 SCRA 468). The
5
presence of indispensable parties is necessary to
vest the court with jurisdiction, which is “the authority
to hear and determine a cause, the right to act in a
case”. (Metrobank vs. Alejo, 417 Phil. 303 (2001).
Thus, without the presence of indispensable parties
to a suit or proceedings, judgment of a court cannot
attain real finality. (BPI vs. CA, 450 Phil. 532 (2003)
citing BA Finance Corp. vs. CA, 327 Phil. 16). The
absence of an indispensable party renders all
subsequent actions of the court null and void for
want of authority to act, not only as to the absent
parties but even as to those present. (Galindo vs.
Roxas, G.R. No. 147969, January 17, 2005).
Non – joinder of indispensable party not a
ground for Motion to Dismiss.
In Domingo vs. Scheer, 421 SCRA 468 it was
held that the non – joinder of indispensable parties is
not a ground for the dismissal of an action and the
remedy is to implead the non – party claimed to be
indispensable. Parties may be added by order of the
court on motion of the party or on its own initiative at
any stage of the action and/or such times as are
just. If the petitioner refuses to implead an
indispensable party despite the order of the court,
the latter may dismiss the complaint/petition for the
petitioner/plaintiff’s failure to comply therefor. (Lotte
Phil. Co., Inc. vs. Dela Cruz, et al., G.R. No. 166302,
July 28, 2005).
Necessary party.
Section 8, Rule 7 of the Rules of Civil Procedure
defines a necessary party as “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.
Necessary parties are those whose presence is
necessary to adjudicate the whole controversy, but
whose interests are so far separable that a final
decree can be made in their absence without
affecting them.
An example of a necessary party may be
found in Seno vs. Mangubat. Petitioner therein sold
her property through a deed of sale to three
vendees. Two of the vendees then sold their shares
to the third buyer, who then sold the property to
another set of persons. Thereafter, petitioner, who
claimed that the true intent of the first sale was an
equitable mortgage, filed a complaint seeking the
reformation of the deed of sale and the annulment of
the second sale. The SC ruled that they were only
necessary parties and said:
“In the present case, there are no rights of
defendants Andres Evangelista and Bienvenido
Mangubat to be safeguarded if the sale should be
held to be in fact an absolute sale nor if the sale is
held to be an equitable mortgage. Defendant Marcos
Mangubat became the absolute owner of the subject
property by virtue of the sale to him of the shares of
the aforementioned defendants in the property. Said
defendants no longer have any interest in the
subject property. However, being parties to the
instrument sought to be reformed, their presence is
necessary in order to settle all the possible issues of
the controversy. Whether the disputed sale be
declared an absolute sale or an equitable mortgage,
the rights of all the defendants will have been amply
protected. Defendants-spouses Luzame in any
event may enforce their rights against defendant
Marcos Mangubat.
In Seno, the persons deemed by the Court as
necessary parties may have had already disposed of
their interests in the property. However, should the
lower court therein grant the prayer for the
reformation of the deed of sale, the ruling will
undoubtedly have an effect on such parties, on
matters such as the purchase price which they may
have received, and on whatever transmission of
rights that may have occurred between them and the
vendor. (Chua vs. Torres, et al., G.R. No. 151900,
August 30, 2005).
Indispensable parties.
Effect if indispensable parties are not impleaded.
The presence of indispensable parties is necessary
to vest the court with jurisdiction. The absence of an
indispensable party renders all subsequent
actuations of the court null and void, because of that
court’s want of authority to act, not only as to the
absent parties but even as to those present.
(Metrobank vs. Alejo, 364 SCRA 812 (2001). Thus,
whenever it appears to the court in the court of a
proceeding that an indispensable party has not been
joined, it is the duty of the court to stop the trial and
order the inclusion of such party. (De Castro vs. CA,
384 SCRA 607 (2002); Chua vs. Total Office
Products & Services (Topros) Inc., G.R. No. 152808,
September 30, 2005).
A person is not an indispensable party,
however, if his interest in the controversy or subject
matter is separable from the interest of the other
parties, so that it will not necessarily be directly or
injuriously affected by a decree which does
complete justice between them.
6
Q- Roberto de Galicia and Carmen Arciaga policy. (Oco vs. Limbaring, G.R. No.161298,
were business partners. Carmen asked him to co January 31, 2006).
– sign a check for P50, 000.00. Carmen had it
rediscounted at 8% interest. When the check Meaning of the term interest.
was presented for payment, it was dishonored. Interest within the meaning of the Rules means
De Galicia filed a complaint for annulment of the material interest or an interest in issue to be affected
check and the agreement to pay interest against by the decree or judgment of the case, as
Mercado, but did not implead Carmen. Can the distinguished from mere curiosity about the question
case be dismissed on the ground of failure to involved. One having no material interest to protect
implead an indispensable party? Why? cannot invoke the jurisdiction of the court as the
Answer: Yes, because Carmen is an indispensable plaintiff in an action. When the plaintiff is not the real
party. Her interest is intertwined with the rights and party in interest, the case is dismissible on the
interests of both parties to the suit. She is involved in ground of lack of cause of action. (Oco vs.
the suit being a co – signer of the check and being Limbaring, G.R. No. 161298, January 31, 2006).
privy to the agreement to pay interest. Had the case
been decided, any judgment made would have RULE 4
affected her, otherwise, she cannot be bound. It is a Venue of Actions
well – accepted rule that the joinder of all
indispensable parties be made under any and all Venue of personal actions.
conditions, their presence being a sine qua non for Facts: In Antonio Chua vs. Total Office Products &
the exercise of judicial power. (De Galicia vs. Services (Topros) Inc., G.R. No. 152808, September
Mercado, G.R. No. 146744, March 4, 2006). 30, 2005, there was a complaint to nullify contracts
of loan and real estate mortgage alleging that there
Rule that a person who is not a party to a was no authority granted to Chua by the corporation
contract is not a real party in interest ; rule is not to enter into a contract of loan. It was alleged that
absolute. the contracts were fictitious. A Motion to Dismiss on
As an exception, parties who have not taken part in the ground of improper venue was filed alleging that
a contract may show that they have a real interest the action should have been filed in Quezon City,
affected by its performance or annulment. (Uy vs. not Pasig City since the properties are located in
CA, 372 Phil. 743; Earth Minerals Exploration Inc. Quezon City, and that the action affected title to or
vs. Macaraig, 194 SCRA 1). In other words, those possession over the parcels of land subject of the
who are not principally or subsidiarily obligated in a real estate mortgage. The Motion to Dismiss was
contract, in which they had no intervention, may who denied ruling that an action to annul the loan and the
in their detriment that could result from it. Contracts mortgage contracts is a personal action, hence,
pour autrui are covered by this exception. In this venue lies in the RTC of Pasig City, where the
latter instance, the law requires that the “contracting parties reside. In affirming the CA, the SC
parties must have clearly and deliberately conferred Held: Well – settled is the rule that an action to
a favor upon a third person.” A “mere incidental annul a contract of loan and its accessory real estate
benefit is not enough.” (Oco vs. Limbaring, G.R. No. mortgage is a personal action. In personal action the
161298, January 31, 2006). plaintiff seeks the recovery of personal property, the
enforcement of a contract or the recovery of
Reasons why actions must be prosecuted in the damages. In contrast, in a real action, the plaintiff
name of the real party in interest. seeks the recovery of real property, or, as indicated
This provision has two requirements: (1) to institute in Section 2(a), Rule 4 of the then Rules of Court, a
an action, the plaintiff must be the real party in real action is an action affecting title to real property
interest; and (2) the action must be prosecuted in or for the recovery of possession, or for partition or
the name of the real party in interest. Necessarily, condemnation of, or foreclosure of mortgage on real
the purposes of this provision are (1) to prevent the property.
prosecution of actions by persons without any right,
title or interest in the case; (2) to require that the Rule in Pascual vs. Pascual, 73 Phil. 561 not
actual party entitled to legal relief be the one to applicable; reason.
prosecute the action; (3) to avoid a multiplicity of In the Pascual case, relied upon by petitioner, the
suits; and (4) to discourage litigation and keep it contract of sale of the fishpond was assailed as
within certain bounds, pursuant to sound public fictitious for lack of consideration. We held that there
7
being no contract to begin with, there is nothing to
annul. Hence, the action for annulment of the said
fictitious contract therein was held as one
constituting a real action for the recovery of the
fishpond subject thereof.
The foregoing doctrine cannot be applied to
the instant case. In Pascual, title to and possession
of the subject fishpond had already passed to the
vendee. There was, therefore, a need to recover the
said fishpond. But in the instant case, ownership of
the parcels of land subject of the questioned real
estate mortgage was never transferred to petitioner,
but remained with TOPROS. Thus, no real action for
the recovery of real property is involved. This being
the case, TOPROS’ action for annulment of the
contracts of loan and real estate mortgage remains
a personal action.
Banco Español – Filipino vs. Palanca, 37 Phil.
921 not applicable; reason.
Reliance on the Banco Español – Filipino case is
misplaced. That case involved a foreclosure of real
estate mortgage against a nonresident. It was held
therein that jurisdiction is determined by the place
where the real property is located and that personal
jurisdiction over the nonresident defendant is
nonessential and, in fact, cannot be acquired.
Needless to stress, the instant case bears no
resemblance to the Banco Español – Filipino case.
In the first place, this is not an action involving
foreclosure of real estate mortgage. In the second
place, none of the parties here is nonresident.
Venue stipulation.
In a contract where a person opened a
current account with a bank, it was agreed that “in
case of litigation hereunder, venue shall be in the
City Court or RTC of Manila as the case may be for
determination of any and all questions arising
thereunder.” The complaint for damages was,
however, filed in Quezon City which dismissed for
improper venue. The CA reversed it as there was no
qualifying or restrictive words, hence, the stipulation
was only an additional forum. In agreeing with the
ruling of the CA, the SC observed and said that the
parties failed to show that the stipulation is
exclusive. Without the words expressing the parties’
intention to restrict the filing of a suit in a particular
place, courts will allow the filing of a case in any of
the venues prescribed by law or stipulated by the
parties, as long as the jurisdictional requirements
are followed. (Mangila vs. CA, 435 Phil. 870 (2002).
The subject clause contains no qualifying nor
restrictive words, such as “must”, or “exclusive”, as
would indicate the parties’ intention “mandatorily to
restrict the venue of actions to the courts of Manila
only. In Langaan Realty Dev. Inc. vs. United
Coconut Planters Bank, G.R. No. 139437,
December 8, 2000, 347 SCRA 542), where the
venue stipulation contained the word “shall”, it was
held that the stipulations of the parties “lack
qualifying or restrictive words to indicate the
exclusivity of the agreed forum”, and therefore “the
stipulated place is considered only as an additional,
not a limiting venue”. Consequently, the dismissal by
the RTC of the complaint on ground of improper
venue is erroneous, and was correctly reversed by
the Court of Appeals. (Phil. Bank of
Communications, et al. vs. Trazon, G.R. No.
165500, August 30, 2006).
RULE 6
Nature of affirmative defenses.
An answer may allege affirmative defenses which
may strike down the plaintiff’s cause of action. An
affirmative defense is one which is not a denial of an
essential ingredient in the plaintiff’s cause of action,
but one which, is established, will be a good defense
– i.e. an “avoidance” of the claim. Affirmative
defenses include fraud, statute of limitations, release
payment, illegality, statute of frauds, estoppel,
former recovery, discharge in bankruptcy, and any
other matter by way of confession and avoidance.
When the answer asserts affirmative defenses, there
is proper joinder of issues which must be ventilated
in a full – blown trial on the merits and cannot be
resolved by a mere judgment on the pleadings.
Allegations presented in the answer as affirmative
defenses are not automatically characterized as
such. Before an allegation qualifies as an affirmative
defense, it must be of such nature as to bar the
plaintiff from claiming on his cause of action.
(Mangao vs. Pryce Properties Corp., G.R. No.
156474, August 16, 2005).
RULE 7
Parts of Pleading
Misjoined party; effect if he did not sign
certificate of non – forum shopping.
In Chua v. Torres, et al., G.R. 151900, August 20,
2005, there was a misjoined party. The absence of
his signature in the verification or certificate of non –
forum shopping a ground for dismissal of the action
has no bearing on the action.
The reason is obvious. A misjoined party has no
business participating in the case as plaintiff and it
would make little sense to require the misjoined
8
party in complying with the requirements expected of
plaintiffs.
It should then follow that any act or omission
committed by a misjoined party plaintiff should not
be cause for impediment to the prosecution of the
case, much less for the dismissal of the suit. After
all, such party should not have been included in the
first place, and no efficacy should be accorded to
whatever act or omission of the party. Since the
misjoined party plaintiff receives no recognition from
the court as either an indispensable or necessary
party – plaintiff, it then follows that whatever action
or inaction the misjoined party may take on the
verification or certification against forum – shopping
is inconsequential. (Chua vs. Torres, et al., G.R. No.
151900, August 30, 2005).
Factor that determines whether a party violated
the rule on forum shopping.
To determine whether a party violated the rule
against forum shopping, the most important
question to ask is whether the elements of
litis pendentia are present or whether a final
judgment in one case will result to res judicata in
another. Otherwise stated, to determine forum
shopping, the test is to see whether in the two or
more cases pending, there is identity of parties,
rights or causes of action and reliefs sought. (Villaluz
v. Ligon, G.R. No. 143721, August 31, 2005).
When there is forum shopping.
In a case, a judgment was rendered on February 27,
2003. A motion for reconsideration was filed. Twenty
– four hours later, a petition for review was filed with
the SC.
The SC said that there is forum shopping, explaining
that there is forum shopping when a party
repetitively avails himself of several judicial
remedies in different courts, simultaneously or
successively, all substantially founded on the same
transactions and the same essential facts and
circumstances, and all raising substantially the same
issues either pending in, or already resolved
adversely by, some court. A party should not be
allowed to present simultaneously remedies in two
different forums for it degrades and wreaks havoc to
the rule on orderly procedure. Thus:
“…A party may avail of the remedies
prescribed by the Rules of Court for the myriad
reliefs from the court. However, such party is not
free to resort to them simultaneously or at his
pleasure or caprice. Such party must follow the
sequence and hierarchical order in availing such
remedies and not resort to shortcuts in procedure or
playing fast and loose with the said rules. Forum
shopping, an act of malpractice, is considered as
trifling with the court and abusing their processes. It
is improper conduct and degrades the administration
of justice. Its the act of the party or its counsel
clearly constitutes willful and deliberate forum
shopping, the same shall constitute direct contempt,
and a cause for administrative sanctions, as well as
a ground for the summary dismissal of the case with
prejudice. (Balite vs. CA, G.R. No. 140931,
November 26, 2004; 444 SCRA 410; Gaudencio
Navarro Vda. De Taroma, et al., G.R. No. 160214,
December 16, 2005; Huibonhua vs. Concepcion, et
al., G.R. No. 153785, August 3, 2006, citing Villaluz
vs. Ligon, G.R. No. 143721, August 31, 2005, 468
SCRA 486, 498).”
Rationale against forum shopping.
The rationale against forum shopping is that a party
should not be allowed to pursue simultaneous
remedies in two different fora. Filing multiple
petitions or complaints constitutes abuse of court
processes, which tends to degrade the
administration of justice, wreaks havoc upon orderly
judicial procedure, and adds to the congestion of the
heavily burdened dockets of the courts. Thus, the
rule proscribing forum shopping seeks to promote
candor and transparency among lawyers and their
clients in the pursuit of their cases before the courts
to promote the orderly administration of justice,
prevent undue inconvenience upon the other party,
and save the precious time of the courts. It also aims
to prevent the embarrassing situation of two or more
courts or agencies rendering conflicting resolutions
or decisions upon the same issue. (Huibona vs.
Concepcion, et al., G.R. No. 153785, August 31,
2006).
How forum shopping determined.
To determine whether a party violated the rule
against forum shopping, the most important question
to ask is whether the elements of litis pendentia are
present or whether a final judgment in one case will
result to res judicata in another. Otherwise stated, to
determine forum shopping, the test is to see whether
in the two or more cases pending, there is identity of
parties, rights or causes of action, and reliefs
sought. (Huibona vs. Concepcion, et al., G.R. No.
153785, August 31, 2006).
Relaxation of the rule on forum shopping.
In a case, it was contended that the failure to
attach a board resolution making a person an
authorized signatory of certification against forum
9
shopping was a fatal error and cannot be rectified by
subsequent submission thereof. Is the contention
correct? Why?
Held: No. The rule has been relaxed in some cases.
In Shipside Inc. vs. CA, 352 SCRA 344
(2001), a petition for certiorari was filed with the
Court of Appeals which contained the requisite
certification on non – forum shopping but failed to
attach proof that the person signing the certification
was authorized to do so. The Court of Appeals
dismissed the petition. The petitioner subsequently
submitted a motion for reconsideration which
attached a secretary’s certificate attesting to the
signatory’s authority to sign certificates against
forum shopping on behalf of the petitioner. When the
Court of Appeals, denied the motion for
reconsideration, the petitioner sought relief with the
Court. In its decision reversing the decision of the
Court of Appeals, the Court recognized that the
belated filing of certifications against forum shopping
is permitted in exceptional circumstances. It further
held that with more reason should a petition be
given due course when this incorporates a
certification on non – forum shopping without
evidence that the person signing the certification
was an authorized signatory and the petitioner
subsequently submits a secretary’s certificate
attesting to the signatory’s authority in its motion for
reconsideration.
Similarly, in Ateneo De Naga University vs.
Manalo, 458 SCRA 325 (2005), the Court
acknowledged that it has relaxed, under justifiable
circumstances, the rule requiring the submission of
these certifications and has applied the rule of
substantial compliance under justifiable
circumstances with respect to the contents of the
certification. It also conceded that if the Court has
allowed the belated filing of the certification against
forum shopping for compelling reasons in previous
rulings, with more reason should it sanction the
timely submission of such certification though the
proof of the signatory’s authority was submitted
thereafter.
In Pascual & Santos Inc. vs. Tramo Wakas
Neighborhood Association, 442 SCRA 438 (2004) it
was held that the subsequent submission of proof of
authority to act on behalf of a petitioner corporation
justifies the relaxation of the Rules for the purpose of
allowing its petition to be given due course.
Since there was substantial compliance, it is
deemed more in accord with substantial justice that
the case be decided on the merits. (China Banking
Corp. vs. Mondragon Int’l. Phils. Inc., et al., G.R. No.
164798, November 17, 2005).
Three (3) ways of committing forum shopping.
Q- What are the three ways of committing
forum shopping?
Answer: They are:
(1) filing multiple cases based on the
same cause of action and with the
same prayer, the previous case not
having been resolved yet (litis
pendentia);
(2) filing multiple cases based on the
same cause of action and with the
same prayer, the previous having been
resolved with finality (res judicata);
(3) filing multiple cases based on the
same causes of action but with
different prayers (splitting of cause of
action, where the ground for dismissal
is also either litis pendentia or res
judicata (Ao-As vs. CA, et al., G.R. No.
128464, June 20, 2006, 491 SCRA
339).
Effect if there is forum shopping.
If the forum shopping is not considered willful and
deliberate, the subsequent cases shall be dismissed
without prejudice. However, if the forum shopping is
willful and deliberate, both (or all, if there are more
than two) actions shall be dismissed with prejudice
(Ao-As vs. CA, et al., G.R. No. 128464, June 26,
2006, 491 SCRA 339).
RULE 9
Effect of Failure to Plead
Rule 9 of the Rules of Court requires that all
defenses and objections – except lack of jurisdiction
over the subject matter, litis pendentia, bar by prior
judgment and/or prescription – must be pleaded in a
motion to dismiss or in an answer; otherwise, they
are deemed waived. (Rule 9, Sec. 1; Obando vs.
Figueras, 379 Phil. 150 (2000). As to the excepted
grounds, the court may dismiss a claim or a case at
any time “when it appears from the pleadings or the
evidence on record” that any of those grounds
exists.
Rule if an answer has not been filed on time.
The court should admit the answer instead of
declaring the defendant in default. To admit or to
reject an answer filed after the prescribed period is
addressed to the sound discretion of the court. In
fact, the Rules authorize the court to accept answer
though filed late when it provides that upon motion
10
and on such terms as may be just, the court may They maintained that by adding together said
extend the time to plead provided in the Rules. The amounts, the sum thereof is sufficient to pay their
court may also, upon like terms allow an answer or loan and to consider the real estate mortgage as
other pleading to be filed after the time fixed by the discharge. Rule on the contention. Explain
Rules. (Sec. 11, Rule 11; Ernestina Crisologo – Jose Held: The contention is not correct. There was no
vs. LBP, G.R. No. 167399, June 22, 2006). allegation that said amounts were withdrawn from
An answer should be admitted where it has their accounts and that same were not applied as
been filed before the defendant was declared in payments for their loan. They did not ask in their
default and no prejudice has been caused to the prayer that said amounts be returned to them or that
plaintiff. (Indiana Aerospace Univ. vs. CHED, G.R. they be used to offset their indebtedness to the
No. 139371, April 4, 2001, 36 SCRA 367). bank. Moreover, when plaintiffs tried to prove this
allegation, counsel for bank objected and attempted
Policy on defaults. to have the testimony thereon stricken off the record
Default orders should be avoided, even if there is on the ground of allegata et probate. (A rule of
late filing of an answer. A declaration of default procedure whereby only matters alleged in the
should not issue unless the claiming party asked for pleading may be proved. (Robles vs. Del Rosario,
it, for the court cannot motu proprio declare a party 100 Phil. 891, cited in Phil. Law Dictionary by
in default. (Trajano vs. Cruz, 80 SCRA 712). There Moreno, 2nd Ed., p. 35).
must be a motion for a declaration of default by the Under Section 5, Rule 10 of the Revised
plaintiff with proof of failure by the defendant to file Rules of Court, if evidence is objected to at the trial
his responsive pleading despite due notice. on the ground that it is not within the issues made by
(Ernestina Crisologo – Jose vs. LBP, G.R. No. the pleadings, the Court may allow the pleadings to
167399, June 22, 2006). be amended freely when the presentation of the
merits of the action will be subserved thereby and
RULE 10 the admission of such evidence would not prejudice
Amended and Supplemental Pleadings the objecting party in maintaining his action or
defense upon the merit.
Amendment, a matter of discretion after answer. When there is an objection on the evidence
In Valenzuela, et al. vs. CA, et al., G.R. No. presented because it is not within the issues made
149449, February 20, 2006, Azcuna, J., the SC said by the pleadings, an amendment must be made
that amendment to pleadings is a matter of before accepting such evidence. If no amendment is
discretion after answer has been filed, with pre-trial made, the evidence objected to cannot be
on going. It was said that amendments to pleadings considered. In this case there being an objection on
are allowed at any stage before the rendition of final evidence being presented by the bank, the plaintiff
judgment. (Espiritu vs. Crossfield, 14 Phil. 588 failed to order the amendment of the complaint,
(1909). This is most especially permitted during pre- thus, the court cannot consider evidence regarding
trial as one of its goals is to consider the “necessity the P30, 000.00 and P118, 00.00 allegedly
or desirability of amendments to the pleadings”. withdrawn from their accounts. With this ruling, it
Nevertheless, whether an amendment will be follows that the outstanding loan of plaintiffs in the
allowed is still discretionary upon the trial court, amount of P58, 297.16 remains unpaid. (Cagungun,
taking into account the circumstances of each case et al. vs. Planters Dev. Bank, G.R. No. 158674,
with particular attention to the possibility that the October 17, 2005).
motion was made with intent to delay.
RULE 13
Facts:An action for damages was filed against a Service of notice to lawyer.
bank due to unauthorized withdrawals from the In a case, it was contended that the lawyer
account of the depositor. While holding the bank was considered as having been served with a copy
liable for damages, the CA however, deleted the of the writ of execution during his telephone
portions of the RTC decision declaring their conversation with the Sheriff.
mortgage paid and enjoining the foreclosure. They The SC ruled that there was no service.
contended that they were able to prove that the Knowledge by the lawyer of the existence of an
amounts of P30, 000.00 and P118, 000.00 were order of execution during his telephone conversation
respectively withdrawn from their account and that with the sheriff does not amount to service under
the same were not applied as payment for their loan. Rule 13, Section 13. Service upon him took place
11
only when he, in fact, received the said order thru system of dispensing justice. When no substantial
registered mail. (Phil. Radiant Products Inc. vs. rights are affected and the intention to delay is not
Metrobank, G.R. No. 163569, December 9, 2005). manifest with the corresponding motion to transfer
the hearing having been filed accordingly, it is sound
Presumption if a mail matter is sent by judicial discretion to allow the same to the end that
registered mail. the merits of the case may be fully ventilated. Thus,
When a mail matter is sent by registered mail, there in considering motions for postponements, two
exists a presumption, set forth under Section 3(v), things must be borne in mind: (1) the reason for the
Rule 131 of the Rules of Court, (Protector’s Services postponement, and (2) the merits of the case of the
Inc. vs. CA, 386 Phil. 611 (2000), that it was movant. Unless grave abuse of discretion is shown,
received in the regular course of mail. The facts to such discretion will not be interfered with either by
be proved in order to raise this presumption are: (a) mandamus or appeal. (People vs. Leviste, 325 Phil.
that the letter was properly addressed with postage 525; Simon, et. al. vs. Canlas, G.R. No. 148273,
prepaid; and (b) that it was mailed. While mailed April 19, 2006).
letter is deemed received by the addressee in the
ordinary course of mail, this is still merely a Rule on disposition of cases.
disputable presumption subject to controversion, The Court is as aware as anyone of the need
and a direct denial of the receipt thereof shifts the for the speedy disposition of cases. However, it must
burden upon the party favored by the presumption to be emphasized that speed alone is not the chief
prove that the mailed letter was indeed received by objective of a trial. It is the careful and deliberate
the addressee. (Barcelon Roxas Securities, Inc. vs. consideration for the administration of justice, a
Com. Of Internal Rev., G.R. No. 157064, August 7, genuine respect for the rights of all parties and the
2006, citing Rep. vs. CA, 149 SCRA 351). requirements of procedural due process, and an
adherence to the Court’s standing admonition that
Service of judgments. the disposition of cases should always be predicated
Judgments, final orders and resolutions are on the consideration that more than the mere
appealable. It is necessary that it be served convenience of the courts and of the parties in the
personally or, if not possible, by registered mail case, the ends of justice and fairness would be
accompanied by a written explanation why the served thereby. These are more important than a
service was not done personally, in order that the race to end the trial. Indeed, court litigations are
period for taking an appeal may be computed. primarily for the search for truth, and a liberal
As a rule, personal service of judgment is interpretation of the rules by which both parties are
done by delivering them personally to the party or given the fullest opportunity to adduce proofs is the
his counsel, or when they are left in his office, with best way to ferret out such truth. (Simon vs. Canlas,
his clerk or with a person having charge thereof. In G.R. No. 148273, April 19, 2006).
case this is not possible, the copy of the judgment
may be left at the party’s or his counsel’s residence Nature of the requirement of notice when a
with a person of sufficient age or discretion residing motion reconsideration is filed.
therein. (DBP vs. COA, G.R. No. 166933, August The requirement of notice under Sections 4 and 5 of
10, 2006). Rule 15 in connection with Section 2, Rule 37 of the
Rules of Court is mandatory. (National Bank of
RULE 15 Saudi Arabia vs. CA, 396 SCRA 541 (2003).
Motions Absence of the mandatory requirement renders the
motion a worthless piece of paper which the clerk of
Grant or denial of motion for postponement, a court has no right to receive and which the court has
matter of discretion. no authority to act upon. (Pallada vs. RTC, Kalibo,
As a rule, the grant or denial of a motion for Aklan, 304 SCRA 440). Being a fatal defect, in
postponement is addressed to the sound discretion cases of motion to reconsider a decision, the
of the court which should always be predicated on running of the period to appeal is not tolled by their
the consideration that more than the mere filing or pendency. (Nuñez, et al. vs. GSIS Family
convenience of the courts or of the parties in the Bank, et al., G.R. No. 163988, November 17, 2005).
case, the ends of justice and fairness should be
served thereby. After all, postponements and RULE 16
continuances are part and parcel of our procedural Motion to Dismiss
12

Remedy or remedies that may be resorted to if a
motion to dismiss is denied.
The defendant should file an answer, go to trial and
appeal from the judgment raising as an issue the
denial of the motion to dismiss. It has long been
settled that an order denying a motion to dismiss is
an interlocutory order. It neither terminates nor
finally disposes of a case, as it leaves something to
be done by the court before the case is finally
decided on the merits, and as such, the general rule
is that the denial of a motion to dismiss cannot be
questioned in a special civil action for certiorari. In
order to justify the grant of extraordinary remedy of
certiorari, the denial of the motion to dismiss must
have been tainted with grave abuse of discretion
amounting to lack or excess of jurisdiction. (Davao
Light and Power Co., Inc. vs. Hon. Judge, RTC,
Davao City, et al., G.R. No. 147058, March 10,
2005; Lu Ym vs. Nabua, 452 SCRA 298 (2005).
Rule is not absolute.
The rule admits of other exceptions, such as when
an appeal would not prove to be a speedy and
adequate remedy as when an appeal would not
promptly relieve a defendant from the injurious
effects of the patently mistaken order maintaining
the plaintiff’s baseless action and compelling the
defendant needlessly to go through a protracted trial
and clogging the court dockets by another futile
case. (Balo vs. CA, G.R. No. 129704, September
30, 2005, citing Bank of America NT & SA vs. CA,
400 SCRA 156, 166).
Effect if there is a Motion to Dismiss on the
ground of failure to state a cause of action.
The rule is that in a motion to dismiss, a defendant
hypothetically admits the truth of the material
allegations of the plaintiff’s complaint. This
hypothetical admission extends to the relevant and
material facts pleaded in, and the inferences fairly
deducible from the complaint. Hence, to determine
whether the sufficiency of the facts alleged in the
complaint constitutes a cause of action, the test is as
follows: admitting the truth of the facts alleged, can
the court render a valid judgment in accordance with
the prayer? (Davao Light and Power Co., Inc. vs.
Hon. Judge, RTC, Davao City, et al., G.R. No.
147058, March 10, 2005).
Defendant may not file a motion to dismiss after
filing an answer; exceptions.
As a rule, no, because under the Rules, within the
time for pleading a motion to dismiss may be made
on any of the grounds provided for by the Rules.
(Sec. 1, Rule 16).
“Within the time for pleading” means within
the time to answer. (JM Tuason & Co. vs. Rafor, 55
SCRA 478). Since the motion to dismiss was filed
after answer, it was filed out of time. (Heirs of
Mariano Lagutan vs. Icao, G.R. no. 58057, June 30,
1993, 224 SCRA 9). In fact, after the answer has
been filed, the defendant is estopped from filing a
motion to dismiss. (Ruiz, Jr. vs. CA, G.R. No.
101566, March 6, 1993, 220 SCRA 490).
The rule is not absolute.
The only exceptions to the rule are: (1) where the
ground raised is lack of jurisdiction of the court over
the subject matter; (2) where the complaint does not
state a cause of action; (3) prescription; and (4)
where the evidence that would constitute a ground
for the dismissal of the complaint was discovered
only during the trial. (Phil. Ville Dev. & Housing
Corp., et al. vs. Javier, G.R. No. 147738, December
13, 2005).
Effect of the filing of Motion to Dismiss on the
ground of failure to state a cause of action.
A motion to dismiss based on lack of cause of action
(should failure to state a cause of action)
hypothetically admits the truth of the allegations in
the complaint. The allegations in a complaint are
sufficient to constitute a cause of action against the
defendants if, hypothetically admitting the facts
alleged, the court can render a valid judgment upon
the same in accordance with the prayer therein.
(Phil. Bank of Communications vs. Trazon, G.R. No.
165500, August 30, 2006).
RULE 18
Pre-Trial
Effect if a party fails to appear at the pre-trial.
At the pre – trial conference, the defendants
did not appear. They did not even file a motion for
postponement stating the reasons therein. Worst,
they did not file a pre – trial brief. The court allowed
the plaintiff to present evidence ex parte.
Upholding the validity of the act of the court,
the SC said that under the Rules, if the defendant
fails to appear at the pre – trial conference, it shall
be cause for the plaintiff to present evidence ex
parte and the court to render judgment on the basis
thereof. (Sec. 5, Rule 18). Failure to file the trial brief
shall have the same effect as failure to appear at the
pre – trial. (Sec. 6, Rule 18). Since the defendants
failed to appear without any justifiable reason, the
act of the court is proper. (Khonghun vs. United
13
Coconut Planters Bank, G.R. No. 154334, July 31, consul general, consul, vice consul, or consular
2005). agent of the Republic of the Philippines; (b) before
such person or officer as may be appointed by
Valid ground to excuse non-appearance at the commission or under letters rogatory; or (c) before
pre-trial conference. any person authorized to administer oaths as
What constitutes a valid ground to excuse litigants stipulated in writing by the parties. While letters
and their counsels at the pre – trial is subject to the rogatory are requests to foreign tribunals,
sound discretion of a judge. They could not question commissioners are directives to official of the issuing
the discretion of the court absent any showing that it jurisdiction. (Dulay, et al. vs. Dulay, G.R. No.
did so whimsically or capriciously. The decision to 158857, November 11, 2005).
allow the plaintiff to present its evidence ex parte
was prompted by the fact that defendants and their When is leave of court required when deposition
counsel failed to appear at the pre – trial without is taken abroad.
informing the court of the reasons for their absence. Leave of court is not required when the deposition is
They did not even file any motion for postponement to be taken before a secretary of embassy or
of the pre – trial. Neither did they send their legation, consul general, consul, vice consul or
representatives to apprise the court of their consular agent of the Republic of the Philippines and
predicament. Worse, they failed to file a pre – trial the defendant’s answer has already been served.
brief. (Sps. Khonghun vs. UCPB, G.R. No. 154334, However, if the deposition is to be taken in a foreign
July 31, 2006). country where the Philippines has no secretary of
embassy or legation, consul general, consul, vice
RULE 23 consul or consular agent, it may be taken only
Depositions before such person or officer as may be appointed
by commission or under letters rogatory. (Dulay, et
Concept of deposition. al. vs. Dulay, G.R. No. 158857, November 11, 2005;
Deposition is chiefly a mode of discovery, the citing Dasmariñas Garments, Inc. vs. Reyes, G.R.
primary function of which is to supplement the No. 108229, August 22, 2003, 225 SCRA 622).
pleadings for the purpose of disclosing the real
points of dispute between the parties and affording RULE 23, Section 4
an adequate factual basis during the preparation for Depositions
trial. It may be taken with leave of court after
jurisdiction has been obtained over any defendant or Judicial policy or attitude on depositions.
over property that is the subject of the action; or, A deposition should be allowed, absent any showing
without such leave, after an answer has been that taking it would prejudice any party. (Jonathan
served. A party’s right to avail itself of this procedure Landoil International Co. Inc. vs. Mangudadatu, G.R.
is “well – nigh unrestricted” if the matters inquired No. 155010, August 16, 2004, 436 SCRA 559, 575).
into are otherwise relevant and not privileged, and It is accorded a broad and liberal treatment and the
the inquiry is made in good faith and within the liberty of a party to make discovery is well – nigh
bounds of the law. (Jonathan Landoil Int’l. Corp., Inc. unrestricted if the matters inquired into are otherwise
vs. Mangundadatu, G.R. No. 155010, August 16, relevant and not privileged, and the inquiry is made
2004, 436 SCRA 559). Nevertheless, the use of in good faith and within the bounds of the law.
discovery procedures is directed to the sound (Ayala Land, Inc. vs. Tagle, G.R. No. 153667,
discretion of the trial courts, (People vs. Webb, 371 August 11, 2005, 466 SCRA 521, 532). It is allowed
Phil. 491 (1999), which, in general, are given wide as a departure from the accepted and usual judicial
latitude in granting motions for discovery in order to proceedings of examining witnesses in open court
enable the parties to prepare for trial or otherwise to where their demeanor could be observed by the trial
settle the controversy prior thereto. (Security Bank judge, consistent with the principle of promoting just,
Corp. vs. CA, 38 Phil. 299 (2000); Dulay, et al. vs. speedy and inexpensive disposition of every action
Dulay, G.R. No. 158857, November 11, 2005, Tinga, and proceeding; and provided it is taken in
J). accordance with the provisions of the Rules of
Court, i.e., with leave of court if summons have been
How depositions in a foreign country is taken. served, and without such leave if an answer has
Depositions in foreign countries may be taken: (a) been submitted; and provided further that a
on notice before a secretary of embassy or legation, circumstance for its admissibility exists (Sec. 4, Rule
14
23, Rules of Court). The rules on discovery should
not be unduly restricted, otherwise, the advantage of
a liberal discovery procedure in ascertaining the
truth and expediting the disposal of litigation would
be defeated. (Hyatt Industrial Mfg. Corp., et al. vs.
Ley Construction and Dev. Corp., et al., G.R. No.
147143, March 10, 2006).
Cases may the court disallow depositions.
Depositions may be disallowed by trial courts if the
examination is conducted in bad faith; or in such a
manner as to annoy, embarrass, or oppress the
person who is the subject of the inquiry, or when the
inquiry touches upon the irrelevant or encroaches
upon the recognized domains of privilege. (Hyatt
Industrial Mfg. Corp., et al. vs. Ley Construction and
Dev. Corp., et al., G.R. No. 147143, March 10,
2006).
Availability of a witness to testify is not a ground
to deny the taking of deposition.
The availability of the proposed deponent to testify in
court does not constitute “good cause” to justify the
court’s order that his deposition shall not be taken.
That the witness is unable to attend or testify is one
of the grounds when the deposition of a witness may
be used in court during the trial. But the same
reason cannot be successfully invoked to prohibit
the taking of his deposition.
The right to take statements and the right to
use them in court have been kept entirely distinct.
The utmost freedom is allowed in taking depositions;
restrictions are imposed upon their use. As a result,
there is accorded the widest possible opportunity for
knowledge by both parties of all the facts before the
trial. Such of this testimony as may be introduced at
the trial; the remainder of the testimony, having
served its purpose in revealing the facts to the
parties before trial, drops out of the judicial picture.
xxx. Under the concept adopted by the new
Rules, the deposition serves the double function of a
method of discovery – with use on trial not
necessarily contemplated – and a method of
presenting testimony. Accordingly, no limitations
other than relevancy and privilege have been placed
on the taking of depositions, while the use at the trial
is subject to circumscriptions looking toward the use
of oral testimony wherever practicable. (Hyatt
Industrial Mfg. Corp., et al. vs. Ley Construction and
Dev. Corp., et al., G.R. No. 147143, March 10, 2006;
citing Fortune Corp. vs. CA, 229 SCRA 355 (1994).
Deposition is not admissible in evidence if the
defendant is available to testify.
While depositions may be used as evidence in court
proceedings, they are generally not meant to be a
substitute for the actual testimony in open court of a
party or witness. Stated a bit differently, a deposition
is not to be used when the deponent is at hand.
Indeed, any deposition offered during a trial to prove
the facts therein set out, in lieu of the actual oral
testimony of the deponent in open court, may be
opposed and excluded on the ground of hearsay.
(Sales vs. Sabino, G.R. No. 133154, December 9,
2005).
Exceptions to the rule.
Depositions may be used without the deponent
being called to the witness stand by the proponent,
provided the following conditions are met, like:
1. that the witness is dead;
2. that the witness resides at a distance
more than one hundred (100) kilometers
from the place of trial or hearing, or is out
of the Philippines, unless it appears that
his absence was procured by the party
offering the deposition; or
3. that the witness is unable to attend or
testify because of age, sickness, infirmity,
or imprisonment; or
4. that the party offering the deposition has
been unable to procure the attendance of
the witness by subpoena; or
5. upon application and notice, that such
exceptional circumstances exist and with
due regard to the importance of
presenting the testimony of witnesses
orally in open court, to allow the
deposition to be used. (Sales vs. Sabino,
G.R. No. 133154, December 9, 2005, Sec.
4(c) Rule 23).
Effect of participating in deposition taking.
The act of participating and even cross – examining
the deponent during the taking of the deposition
cannot be considered a waiver of the right to object
to its admissibility as evidence in the trial proper. In
participating, therefore, in the taking of the
deposition, but objecting to its admissibility in court
as evidence, he did not assume inconsistent
positions. He is not estopped. Under the Rules,
while error and irregularities in depositions as to
notice, qualifications of the officer conducting the
deposition, and manner of taking the deposition are
deemed waived if not objected to before or during
the taking of the deposition, objections to the
competency of a witness or the competency,
relevancy, or materiality of testimony may be made
15
for the first time at the trial and need not be made at Alleging that there was negligence of the
the time of the taking of the deposition, unless they lawyer, the SC said:
could be obviated at that point. (Sec. 29, Rule 23; “It has been held time and again that blunders
Sales vs. Sabino, G.R. No. 133154, December 9, and mistakes made in the conduct of the
2005). proceedings in the trial court as a result of the
ignorance, inexperience or incompetence of counsel
Objection to the admissibility of a deposition in do not qualify as a ground for new trial. If such were
evidence. to be admitted as valid reasons for reopening cases,
As a rule, the inadmissibility of testimony taken by there would never be an end to litigation so long as
deposition is anchored on the ground that such a new counsel could be employed to allege and
testimony is hearsay, i.e., the party against whom it show that the prior counsel had not been sufficiently
is offered has no opportunity to cross – examine the diligent, experienced or learned. This will put a
deponent at the time his testimony is offered. But as premium on the willful and intentional commission of
jurisprudence teaches, it matters not that opportunity errors by counsel, with a view to securing new trials
for cross – examination was afforded during the in the event of conviction.” (Rivera vs. CA, 405
taking of the deposition; for normally, the opportunity SCRA 61 (2003).
for cross – examination must be accorded a party at
the time the testimonial evidence is actually RULES 34/35
presented against him during the trial or hearing. When judgment on the pleadings proper.
(Sales vs. Sabino, G.R. No. 133154, December 9, Facts:A complaint for quieting of title and for
2005; citing Dasmariñas Garments, Inc. vs. Reyes, declaration of nullity of Free Patent No. 495269,
225 SCRA 622 (1993)). OCT No. 711 and TCT No. 186516 was filed against
the defendants. The complaint was amended
RULE 30 alleging that the plaintiff were the co – owners of a
Relief from Judgments, Orders, or other parcel of land located in Marikina Rizal, Metro
Proceedings Manila covered by TCT No. 257152. Said title was
transfer from TCT No. 22395 in the name of Antonio
Remedy if a petition for relief from judgment is Araneta and among the lots covered by TCT No.
denied. 257152 was Lot No. 89. It was contended that the
In Sps. Regalado vs. Regalado, et al., G.R. title, TCT No. 27219, is void because it covered Lot
No. 134154, February 28, 2006, the SC once again No. 89 belonging to them. They impleaded the
said that the appropriate remedy in case of denial of buyer, herein petitioner which contended that it was
a petition for relief from judgment is special civil a buyer in good faith and for value since there was
action for certiorari; not appeal. (Rule 41, Section no annotation of lis pendens at the back of the title.
1(b); Trust Int’l. Paper Corp. v. Pelaez, G.R. No. Answering the complaint, they alleged that Lot No.
146871, August, 22, 2006). 89 was covered by another title OCT No. 734 not
It went further and said that a petition for relief OCT No. 730. The plaintiffs however, filed a motion
from judgment is an equitable remedy; it is allowed for judgment on the pleadings. Is the motion proper?
only in exceptional cases where there is no other Why?
available or adequate remedy. When a party has Held: No, considering that the answer generated the
another remedy available to him, which may be following issues: (1) whether the respondents’ TCT
either a motion for new trial or appeal from an No. 257152 is valid or not; (2) whether Lot No. 89 is
adverse decision of the trial court, and he was not covered by TCT No. 257152; (3) whether the buyers
prevented by fraud, accident, mistake or excusable were purchasers in good faith. This is clearly not a
negligence from filing such motion or taking such case for judgment on the pleadings considering that
appeal, he cannot avail himself of this petition. the answers tendered factual issues. (Tan, et al. vs.
Indeed, relief will not be granted to a party who De La Vega, et al., G.R. No. 168809, March 10,
seeks avoidance from the effects of the judgment 2006).
when the loss of the remedy at law was due to his In a proper case for judgment on the
own negligence; otherwise the petition for relief can pleadings, there is no ostensible issue at all because
be used to revive the right to appeal which had been of the failure of the defending party’s answer to raise
lost thru inexcusable negligence. (citing Tuason vs. an issue. The answer would fail to tender an issue,
CA, 256 SCRA 158). of course, if it does not deny the material allegations
in the complaint or admits said material allegations
16
of the adverse party’s pleadings by confessing the
truthfulness thereof and/or omitting to deal with them
at all. Now, if an answer does not in fact specifically
deny the material averments of the complaint and/or
asserts affirmative defenses (allegations of new
matter which, while admitting the material
allegations of the complaint expressly or impliedly,
would nevertheless prevent or bar recovery by the
plaintiff), a judgment on the pleadings would
naturally be improper. (Tan, et al. vs. De La Vega, et
al., G.R. No. 168809, March 10, 2006, citing
Mangao vs. Pryce Properties Corp., G.R. No.
156474, August 6, 2005, 467 SCRA 201).
Distinctions between summary judgment and
judgment on the pleadings.
In Narra Integrated Corp. vs. CA, 398 Phil. 733
(2000), the distinctions between a proper case of
summary judgment and judgment on the pleadings
were laid down, thus:
The existence or appearance of ostensible
issues in the pleadings, on the one hand, and their
sham or fictitious character, on the other, are what
distinguish a proper case for summary judgment
from one for a judgment on the pleadings. In a
proper case for judgment on the pleadings, there is
no ostensible issue at all because of the failure of
the defending party’s answer to raise an issue. On
the other hand, in the case of a summary judgment,
issues apparently exist – i.e. facts are asserted in
the complaint regarding which there is as yet no
admission, disavowal or qualification; or specific
denial or affirmative defenses are in truth set out in
the answer – but the issues thus arising from the
pleadings are sham, fictitious or not genuine, as
shown by affidavits, depositions, or admission. x x x.
In any case, a summary judgment is likewise
not warranted in this case as there are genuine
issues which call for a full blown trial. A “genuine
issue” is an issue of fact which requires the
presentation of evidence as distinguished from a
sham, fictitious, contrived or false claim. When the
facts as pleaded appear uncontested or undisputed,
then there is no real or genuine issue or question as
to the facts, and summary judgment is called for.
The party who moves for summary judgment has the
burden of demonstrating clearly the absence of any
genuine issue of fact, or that the issue posed in the
complaint is patently unsubstantial so as not to
constitute a genuine issue for trial. Trial courts have
limited authority to render summary judgments and
may do so only when there is clearly no genuine
issue as to any material fact. When the facts as
pleaded by the parties are disputed or contested,
proceedings for summary judgment cannot take the
place of trial. (Tan vs. De La Vega, et al., G.R. No.
168809, March 10, 2006).
RULE 37
Second Motion for Reconsideration.
Rule 37, Section 5 proscribes the
entertainment of a second motion for
reconsideration of a judgment or final resolution by
the same party. (Padillo vs. Apas, et al., G.R. No.
156615, April 10, 2006).
Requisites of a newly discovered evidence.
The requisites for newly discovered evidence under
Section2, Rule 121 of the Revised Rules of Criminal
Procedure are: (a) the evidence was discovered
after the trial; (b) such evidence could not have been
discovered and produced at the trial with reasonable
diligence; and (c) that it is material, not merely
cumulative, corroborative or impeaching, and is of
such weight that, if admitted, will probably change
the judgment. (Dinglasan, Jr. vs. CA, et al., G.R. No.
145420, September 19, 2006).
The Berry Rule and state its origin.
It is actually requirements of a newly discovered
evidence or the standards of a newly discovered
evidence.
These standards, also known as the “Berry
Rule”, trace their origin to the 1851 case of Berry vs.
State of Georgia, 10 Ga. 511 (1851), as cited in
Custodio vs. SB, G.R. Nos. 96027-28, March 8,
2005, 453 SCRA 24, 34), where the Supreme Court
of Georgia held:
“Applications for new trial on account of newly
discovered evidence, are not favored by the Courts.
x x x. Upon the following points there seems to be a
pretty general concurrence of authority, viz; that it is
incumbent on a party who asks for a new trial, on
the ground of newly discovered evidence, to satisfy
the Court, 1st. That the evidence has come to his
knowledge since the trial. 2d. That it was not owing
to the want of due diligence that it did not come
sooner. 3d. That it is so material that it would
produce a different verdict, if the new trial were
granted. 4th. That it is not cumulative only – viz;
speaking to facts, in relation to which there was
evidence on the trial. 5th. That the affidavit of the
witness himself should be produced, or its absence
accounted for. And 6th, a new trial will not be
granted, if the only object of the testimony is to
impeach the character or credit of a witness.”
(Dinglasan, Jr. vs. CA, G.R. No. 145420, September
19, 2006).
17
 that the period for the finality of judgments shall run,
Threshold question in resolving a motion for thereby, prolonging the disposition of cases.
new trial on the ground of a newly discovered Moreover, such a ruling would allow a party to
evidence. forestall the running of the period finality of judgment
The threshold question in resolving a motion for new by virtue of filing a prohibited pleading; such a
trial based on newly discovered evidence is whether situation is not only illogical but also unjust to the
the proferred evidence is in fact a “newly discovered winning party. (Dinglasan, Jr. vs. CA, et al., G.R. No.
evidence which could not have been discovered by 145420, September 19, 2006).
due diligence”. The question of whether evidence is
newly discovered has two aspects: a temporal one, RULE 39
i.e., when was the evidence discovered, and a Executions, Satisfactions and Effects of
predictive one, i.e., when should or could it have Judgments
been discovered. (Dinglasan, Jr. vs. CA, G.R. No.
145420, September 19, 2006). Two aspects of the doctrine of res judicata.
The reason for the rule is that, it is contrary to The doctrine of res judicata has two aspects. The
human experience to have overlooked an evidence first, known as “bar by prior judgment”, or “estoppel
which was decisively claimed to have such by verdict”, is the effect of a judgment as a bar to the
significance that might probably change the prosecution of a second action upon the same claim,
judgment. If it is not a newly discovered evidence as demand or cause of action. The second, known as
it was already existing and known to the party at the “conclusiveness of judgment” or otherwise known as
time of the trial, it is not truly a newly discovered the rule of auter action pendant, ordains that issues
evidence, hence, a motion for new trial should be actually and directly resolved in a former suit cannot
denied. again be raised in any future case between the
same parties involving a different cause of action. It
Effect of second Motion for Reconsideration. has the effect of preclusion of issues only. (Sps.
After conviction in a criminal case for violation Rasdas, et al. vs. Estenor, G.R. No. 157605,
of BP 22, the accused went to the extent of filing a December 13, 2005).
second motion for reconsideration. He contended
that the finality of the judgment should be computed Reasons behind the principle of conclusiveness
from the time he received the order denying the of judgment.
second motion for reconsideration. Is the contention The reasons for establishing the principle of
correct? Why? “conclusiveness of judgment” are founded on sound
Held: No, considering that the second motion for public policy, and to grant this petition would have
consideration, as such motion is merely an attempt the effect of unsettling this well – settled doctrine. It
to raise again a defense which was already weighed is allowable to reason back from a judgment to the
by the appellate court. A contrary ruling may open basis on which it stands, upon the obvious principle
the floodgates to an endless review of decisions, that where a conclusion is indisputable, and could
where losing litigants, in delaying the disposition of have been drawn only from certain premises, the
cases, invoke evidence already presented, whether premises are equally indisputable with the
through a motion for reconsideration or for a new conclusion. When a fact has been once determined
trial, in a guise of newly discovered evidence. in the course of a judicial proceeding, and a final
(Dinglasan, Jr. vs. CA, et al., G.R. No. 145420, judgment has been rendered in accordance
September 19, 2006). therewith, it cannot be again litigated between the
This prohibition is justified by public policy same parties without virtually impeaching the
which demands that at the risk of occasional errors, correctness of the former decision, which, from
judgments of courts must become final at some motives of public policy, the law does not permit to
definitive date fixed by law. (GSIS vs. CA, 334 Phil. be done. (Sps. Rasdas, et al. vs. Estenor, G.R. No.
163 (1997). 157605, December 13, 2005).
To rule that finality of judgment shall be
reckoned from the receipt of the resolution or order Effect if a judgment has become final and
denying the second motion for reconsideration executory; exceptions.
would result to an absurd situation whereby courts It is settled that when a judgment is final and
will be obliged to issue orders or resolutions denying executory, it becomes immutable and unalterable.
what is prohibited motion in the first place, in order (Mayon Estate Corp. vs. Altura, 440 SCRA 337
18
(2004). The judgment may no longer be modified in Under the doctrine of conclusiveness of
any respect, except to correct clerical errors or to judgment, facts and issues actually and directly
make nunc pro tunc entries. The court which resolved in a former suit cannot again be raised in
rendered judgment has the ministerial duty to issue any future case between the same parties, even if
a writ of execution by raising new issues of fact or the latter suit may involve a different claim or cause
law, except under the following circumstances: of action. The identity of causes of action is not
1. the writ of execution varies the judgment; required but merely identity of issues. (Tan vs. Ca,
2. there has been a change in the situation 363 SCRA 450 (2001).
of the parties making execution Conclusiveness of judgment clearly exists in
inequitable or unjust; the present case, because respondents again seek
3. execution is sought to be enforced against to enforce a right based on a sale which has been
property exempt from execution; nullified by a final and executory judgment. Recall
4. it appears that the controversy has been that the question of validity of the sale had long been
submitted to the judgment of the court; settled. The same question, therefore, cannot be
5. the terms of the judgment are not clear raised again even in a different proceeding involving
enough and there remains room for the same parties.
interpretation thereof; or The doctrine of res judicata provides that a
6. it appears that the writ of execution has final judgment on the merits rendered by a court of
been improvidently issued, or that it is competent jurisdiction, is conclusive as to the rights
defective in substance, or issued against of the parties and their privies and constitutes an
the wrong party, or that the judgment debt absolute bar to subsequent actions involving the
has been paid or otherwise satisfied, or same claim, demand, or cause of action.
the writ was issued without authority. (Phil.
Considering that the sale on which respondents
Economic Zone Authority vs. Hon. based their right to reversion has long been nullified,
Borreta, et al., G.R. No. 142669, March they have not an iota of right over the property and
15, 2006). thus, have no legal personality to bring forth the
action for reversion of expropriated property. Lack of
Res Judicata legal personality to sue means that the respondents
Facts:Respondents filed an action for reversion of are not the real parties – in – interest. This a ground
an expropriated property. The Republic denied the for the dismissal of the case, related to the ground
right to reacquire by respondents on the ground of that the complaint evidently states no cause of
res judicata and lack of cause of action. Res judicata action. (Taganas vs. Emuslan, 410 SCRA 237
was interposed based on Valdehueza vs. Republic, (2003); Rep. vs. Yu, et al., G.R. No. 157557, March
17 SCRA 107 and Yu vs. Republic, CA – G.R. No. 10, 2006).
01223, October 30, 1986. In the first case,
expropriation of a property in Lahug, Cebu was A final and executory judgment may not be
affirmed and that Francisca Valdehueza, et al. were amended.
not entitled to recover possession but only to A decision that has acquired finality, as in this case,
demand its fair market value. In the second, the CA becomes immutable and unalterable. (Phil. Veterans
annulled the subsequent sale of the lot by Francisca Bank vs. Estrella, 453 Phil. 45 (2003). A final
Valdehueza, et al. to Yu and held that the judgment may no longer be modified in any respect,
purchasers were in bad faith. There was no appeal, even if the modification is meant to correct
hence, it became final and executory. erroneous conclusions of fact or law. (Ramos vs.
The case was dismissed on the ground of res Ramos, 447 Phil. 114 (2003). In short, once a
judicata. The respondents contended that there was judgment becomes final and executory, it can no
no res judicata because the abandonment of the longer be disturbed no matter how erroneous it may
government of the public purpose constitutes a new be (Natalia Realty Inc. vs. Rivera, G.R. No. 164914,
cause of action. They contended that the October 3, 2005) and nothing further can be done
determination their right to reacquire or repossess therewith except to execute it. (Florentino vs. Rivera,
the lot necessitates a full blown trial. Is the G.R. No. 167968, January 23, 2006, citing King
contention correct? Integrated Security Services, Inc. vs. Gatan, 453
Held: No. There is conclusiveness of judgment in Phil. 296 (2003).
the case at bar.
Operative part of the decision.
19
It is settled rule that “the operative part in every
decision is the dispositive portion or the fallo, and
where there is conflict between the fallo and the
body of the decision, the fallo controls. This rule
rests on the theory that the fallo is the final order
while the opinion in the body is merely a statement,
ordering nothing”. (Florentino vs. Rivera, et al., G.R.
No. 167968, January 23, 2006 citing Mendoza, Jr.
vs. San Miguel Foods, Inc., G.R. No. 158684, May
16, 2005, 458 SCRA 664).
Conflict between the dispositive portion of the
decision and the body of the same.
Where there is a conflict between the dispositive
portion of the decision and the body thereof, the
dispositive portion controls irrespective of what
appears in the body of the decision. While the body
of the decision, order or resolution might create
some ambiguity in the manner the court’s reasoning
preponderates, it is the dispositive portion thereof
that finally invests rights upon the parties, sets
conditions for the exercise of those rights, and
imposes the corresponding duties or obligations.
(Florentino vs. Rivera, G.R. No. 167968, January 23,
2006; Light Rail Transit Authority vs. CA, 444 SCRA
125 (2004).
Basic foundations of the principle of res
judicata.
It is to the interest of the public that there should be
an end to litigation by the parties over a subject fully
and fairly adjudicated. The doctrine of res judicata is
a rule which pervades every well – regulated system
of jurisprudence and is founded upon two grounds
embodied in various maxims of the common law,
namely: (1) public policy and necessity, which
makes it to the interest of the State that there be an
end to litigation – republicate ut sit litium, and (2) the
hardship on the individual that he should be vexed
twice for the same cause – nemo debet bis vexari et
eadem causa. A contrary doctrine would subject the
public peace and quiet to the will and neglect of
individuals and prefer the gratification of the litigious
disposition on the part of suitors to the preservation
of the public tranquility and happiness. (Heirs of the
Late Faustina Adalid vs. CA, G.R. No. 122202, May
26, 2005, 459 SCRA 27).
It is almost trite to say that execution is the
fruit and end of the suit and is the life of the law. A
judgment, if left unexecuted, would be nothing but
an empty victory for the prevailing party. Litigation
must end sometime and somewhere. An effective
and efficient administration of justice requires that
once a judgment has become final, the winning party
be not deprived of the fruits of the verdict. Courts
must, therefore, guard against any scheme
calculated to bring about that result. Constituted as
they are to put an end to controversies, courts
should frown upon any attempt to prolong them.
(Florentino vs. Rivera, et al., G.R. No. 167968,
January 23, 2006 citing Ho vs. Lacsa, G.R. No.
142664, October 5, 2005).
Ejectment suit and annulment of judgment; no
res judicata.
A complaint for sum of money was filed by
Travel 2000 International against Aida Lugayan with
the MTC, Manila. The defendant was declared in
default for failure to file an answer. The house of the
defendant was levied upon and sold at an auction
sale. She failed to redeem from the highest bidders,
the spouses Tizons who later filed a complaint for
ejectment against Rona and Arturo Lugayan, Aida’s
children. Aida and Diosdado Lugayan appeared as
voluntary defendants and alleged that they are the
real parties in interest since Aida is the owner of the
property and that it was constituted as a family
home. They contended that the spouses Tizon had
no cause of action against them due to the
pendency of an action of annulment of the judgment
in the sum of money case. They further contended
that litis pendentia barred the civil action for
ejectment.
Brushing aside the contention, the SC ruled,
no, because between the two cases; ejectment suit
and annulment of judgment, there is no identity of
parties, subject matter and causes of action. The
parties in the annulment case are Travel 2000
International and Aida. The subject matter are
different because in the first it was non – payment of
debt and in the second, it was unlawful possession
of the property. There is likewise no identity of
causes of action since in the first was for sum of
money and in the second, it was for illegal detainer.
Hence, there is no res judicata, especially so that
the elements of res judicata, also known as “bar by
prior judgment”, are: (a) the former judgment over
the subject matter and the parties; (b) the court
which rendered it had jurisdiction over the subject
matter and the parties; (c) it must be a judgment on
the merits; and (d) there must be, between the first
and second actions, identity of parties, subject
matter, and causes of action. (Lugayan, et al. vs.
Tizon, G.R. No. 147958, March 31, 2005, Gutierrez,
J, citing Tolentino vs. Natanauan, 416 SCRA 273;
Sta. Lucia Realty & Dev. Corp. vs. Cabrigas, 358
SCRA 715 (2001)).
20
Facts:In one case it was alleged that a property
subject of a co – ownership was taken possession of
by another with the use of strategy and stealth,
hence, a complaint to recover it was filed. The
possessor filed an answer that the property was
donated to him. It was contended that the donation
was void especially so that the donor was sick and
bed – ridden when the owner allegedly signed the
deed; that his signature was obtained with the use of
fraud. After trial, the donation was declared valid
which was affirmed by the CA on appeal. The SC
affirmed the decision. The plaintiffs again filed an
action to declare the donation void, hence, a Motion
to Dismiss on the ground of res judicata was filed. It
was granted.
Holding that there is res judicata, the SC
Held: Yes. The issue in both cases as shown by the
allegations in the complaints, is the validity or nullity
of the deed of donation. Thus, if the judgment in the
first case declares that the document is valid, then
the second case should dismissed under the
principle of res judicata. (Balanay, et al. vs. Atty.
Jose Paderanga, et al., G.R. No. 136963, August
25, 2006).
against the sheriff, of course, and such other parties
as may be alleged to have colluded with the sheriff
in the supposedly wrongful execution proceedings,
such as the judgment creditor himself. (Capa vs. CA,
et al., G.R. No. 160082, September 19, 2006; citing
Sy vs. Discaya, 181 SCRA 378 (1990).
Remedy of a judgment obligee if there is a
frivolous or spurious third – party claim.
The remedy to a judgment oblige when a frivolous
and plainly spurious claim was filed by a third – party
claimant, i.e., to file his claim for damages in the
same court where the third – party claimant filed his
third – party claim or to file a separate action. The
claim for damages must be flied in the trial court,
whether in the same case where a third – party
claim has been filed or in a separate action for
damages which he may institute. This is so in order
to require the filing of proper pleadings and to hold
trial so as to give the parties the chance to submit
their respective evidence. (Capa vs. CA, et al., G.R.
No. 160082, September 19, 2006).
RULE 39, SECTION 9

No need for absolute identity. Rule to be followed whenever a judgment for

The contention that there is no identity of parties sum of money is being executed.
between the two cases since the notary public was The officer executing the writ of execution shall
impleaded as additional defendant in the second demand from the judgment obligor the immediate
case does not hold water. There is no need for payment of the full amount stated in the writ of
absolute identity of parties in res judicata, a execution and all legal fees. The payment shall be in
substantial identity of parties is sufficient. cash, certified bank check payable to the judgment
Well – settled is the rule that only substantial,
obligee, or in any form acceptable to the latter. If the
and not absolute, identity of parties is required for judgment obligor cannot pay all or part of the
res judicata to lie. There is substantial identity of obligation in case, certified bank check or other
parties when there is a community of interest mode acceptable to the judgment oblige, he is given
between a party in the first case and a party in the the option to immediately choose which of his
second case albeit the latter was not impleaded in property or part thereof, not otherwise exempt from
the first case. (Balanay, et al. vs. Atty. Jose execution, may be levied upon sufficient to satisfy
Paderanga, et al., G.R. No. 136963, August 28, the judgment. If the judgment obligor does not
2006). exercise the option immediately, it is only then that
the sheriff/officer enforcing the judgment for money
Third – party claim. can garnish debts due the judgment obligor and
other credits, or levy on the personal or real property
Object of a third – party claim. of the latter.
A third – party claimant or any third person may It is evidence from the comment of Sheriff
vindicate his claim to his property wrongfully levied Regalado that when the demand to pay was served
by filing a proper action which is distinct and on EPCIB by Sheriff Bellones, he was not there
separate from that in which the judgment is being because he was serving the Notice of Garnishment
enforced. Such action would have for its object the on Citibank, N.A. Thus, he served a Notice of
recovery of the possession of the property seized by Garnishment to EPCIB even before he has
the sheriff, as well as damages resulting from the knowledge as to how EPCIB will pay the judgment
allegedly wrongful seizure and detention thereof debt. The sheriff should have waited for EPCIB to
despite the third – party claim; and it may be brought inform him of the mode of payment it will employ in
21
satisfying the money judgment. Despite having no 65; no petition for relief. Whether the defendants can
knowledge thereof, he immediately served a Notice be made to answer for that amount or not, the SC
of Garnishment in clear violation of Section 9. There Held: No, otherwise, there would be a clear case of
being no choice yet on the part of EPCIB as to how unjust enrichment and deprivation of property
to pay, whether it be in cash, certified bank check or without due process of law. The order approving the
any other form acceptable to the judgment oblige, or Bill of Costs must therefore, be set aside for it is
through levy of property and sale thereof, or through patently void and calls for a suspension of the rules,
garnishment of debts and credits, Sheriff Regalado otherwise, there would be deprivation of the right to
should have waited before making any move. due to process. (Macasasa, et al. vs. Sicad, et al.,
If, after being served with the demand to pay, G.R. No. 146547, June 20, 2006).
immediately exercised its option to choose which of This case is akin to Buan vs. CA, G.R. No.
its properties will be levied for the satisfaction of the101614, August 17, 1994, 235 SCRA 424; Flores vs.
money judgment. As admitted by Sheriff Regalado, Conanan, 415 Phil. 123 (2001) where in an action,
he was informed by Atty. Yusi that EPCIB was judgment for P20, 729.00 was rendered. Two
offering certain real properties, all located in Bacolod parcels of land were levied upon belonging to the
City, to be levied upon. Thus, it is clear that when defendant which were sold for P33, 958.54. It was
the bank offered its real properties, it exercised its held that it was mathematically conclusive that by
option because it cannot immediately pay the full reason of the sale, the judgment award was already
amount stated in the writ of execution and all lawful satisfied. Consequently, the notice of levy annotated
fees in case, certified bank check or any other mode on the other parcel of land should be cancelled.
of payment acceptable to the judgment obligee. It was held in Buan vs. CA, that it is beyond
(Equitable PCI Bank, Inc. vs. Bellones, et al., A.M. question that as per the applicable laws and
No. P-05-1973, March 18, 2005). jurisprudence on the matter, the levy and a
attempted execution of the second parcel of land is
Judgment obligor determines whether he can void for being in excess and beyond the original
pay immediately or not; not the sheriff. judgment award granted in favor of the La Torre
It is determined by the judgment obligor himself spouses. For, as held in the case of Mutual Security
whether he can pay or not. The sheriff cannot and Insurance Corp. vs. CA, 153 SCRA 678 (1987),
should not be the one to determine if the judgment “where the writ of execution is not in harmony with
obligor cannot immediately pay because it is the the exceeds the judgment which gives it life, the writ
judgment obligor who is in the best position to know has pro tanto no validity”. Stated categorically, an
if he can immediately pay by way of cash, certified execution has been regarded as void when issued
bank check or any other mode of payment for a greater sum than is warranted by the judgment.
acceptable to the judgment obligee. If this (Windor Steel Manufacturing Co., Inc. vs. CA, 102
determination is given to the sheriff, then the right of SCRA 275 (1981).
the judgment obligor to exercise its option to choose
can be negated by the former if the later insists that No modification of final and executory judgment;
the judgment obligor can immediately pay through exceptions.
cash, certified bank check or any other mode of Indeed, in Barnes vs. Padilla, G.R. No.
payment acceptable to the judgment obligee. 160753, September 30, 2004, 439 SCRA 675 it has
(Equitable PCI Bank vs. Bellones, et al., A.M. No. P- been held that:
05-1973, March 18, 2005). “A final and executory judgment can no longer
be attacked by any of the parties or be modified,
Ejectment suit; no prayer for rentals; defendant directly or indirectly, even by the highest court of the
cannot be made to pay. land.
A judgment for ejectment ordered the vacation of the However, the Court has relaxed this rule in
premises and to pay P5, 000.00 as attoney’s fees. It order to serve substantial justice considering (a)
did not provide for rentals for the use of the matter of life, liberty, honor or property; (b) the
premises but a “Bill of Costs” was filed for P1.2M. It existence of special or compelling circumstances, (c)
was not even prayed for that it be approved although the merits of the case, (d) a cause not entirely
the defendants were furnished a copy. There was no attributable to the fault or negligence of the party
hearing for its approval but it was granted/approved favored by the suspension of the rules, (e)a lack of
by the court. There was no Motion for any showing that the review sought is merely
Reconsideration; no petition for certiorari under Rule frivolous and dilatory, and (f) the other party will not
22
be unjustly prejudiced thereby.” (See: Macasaoa v.
Sicad, et al., G.R. No. 146547, June 20, 2006). Assignment of errors or appeal.
Well – settled is the rule that an appellate
Third party claim. court is clothed with ample authority to review
rulings even if they are not assigned as errors. This
Proper remedy if a third party claim is denied. is especially so if the court finds that their
Appeal or petition for certiorari is not the proper consideration is necessary in arriving at a just
remedy from a denial of a third – party claim. (Serra decision of the case before it. (Cuaton vs. Salud,
vs. Roderiguez, G.R. No. 25546, April 22, 1974, 56 G.R. No. 158382, January 27, 2004, 421 SCRA
SCRA 538). 278). It has been consistently held that an
A third – party claimant has two remedies, unassigned error closely related to an error properly
such as, an action for damages against the sheriff to assigned, or upon which a determination of the
be brought within 120 days from the filing of the question raised by the error properly assigned is
bond, and a separate and independent action to dependent, will be considered by the appellate court
vindicate his claim to the property. (Northern Motors, notwithstanding the failure to assign it as an error.
Inc. vs. Coquia, G.R. No. L-40018, March 21, 1975, (Dumo, et al. vs. Espinas, et al., G.R. No. 141962,
63 SCRA 200). January 26, 2006).
Since the third – party claimant is not one of
the parties to the action, he could not, strictly Rule on the perfection of appeal.
speaking, appeal from the order denying its claim, Jurisprudence teems with pronouncements that the
but should file a separate reivindicatory action perfection of an appeal in the manner and within the
against the execution creditor or a complaint for period permitted by law is not only mandatory, but
damages against the bond filed by the judgment also jurisdictional. Failure to perfect the appeal
creditor in favor of the sheriff. (Bayer Phils., Inc. vs. renders the judgment of the court final and
Agana, 63 SCRA 355). The rights of a third – party executory. Just as a losing party has the privilege to
claimant should be decided in a separate action to file an appeal within the prescribed period, so does
be instituted by the third person. In fine, the appeal the winner also have the correlative right to enjoy
that should be interposed, if the term “appeal” may the finality of the decision. Furthermore, a denial of a
be properly employed, is a separate reivindicatory petition for being time – barred is a decision on the
action against the execution creditor or complaint for merits. (Tan vs. CA, et al., G.R. no. 157194, June
damages to be charged against the bond filed by the 20, 2006).
judgment creditor in favor of the sheriff. (Solidum vs.
CA, et al., G.R. No. 161647, June 22, 2006, citing Fresh 15-day period to appeal from receipt of
Bayer Phils., Inc. vs. Agana, L-37801, April 8, 1975, order denying motion for reconsideration.
63 SCRA 355). A complaint for reformation of Instrument, etc.
A Motion to Dismiss was filed on the ground that the
RULE 40 complaint failed to state a cause of action; the claim
Appeals is unenforceable; it has prescribed. The same was
granted and the other was received by plaintiff on
Effect if an appellant fails to file a memorandum September 19, 1995. Motion for Reconsideration
on appeal as required in an appeal from the MTC was filed on October 2, 1995 but it was denied and
to the RTC. the plaintiff was furnished with a copy of the order on
The appeal is deemed abandoned when petitioners April 25, 1996. On May 3, 1996, a notice of appeal
failed to their memorandum on appeal despite was filed by the plaintiff which was given due course
sufficient time given to them by the court. A on May 17, 1996. Docket fee was paid and brief of
memorandum on appeal or an appeal brief is vital to the appellant was submitted on May 2, 1997. On
an appeal for only errors specifically assigned and June 3, 1997, a motion to dismiss appeal was filed
properly argued in the brief or memorandum will be contending that the notice of appeal was filed five (5)
considered in the decision on the merits, except days late as it should have been filed on April 28,
those affecting jurisdiction over the subject matter as 1997, not May 3, 1997. In reversing the CA, the SC
well as plain and clerical errors. Hence, the lack of a Held: The period to appeal is computed from the
memorandum on appeal is ground for the dismissal date of receipt of the order denying the Motion for
of an appeal. (Banting, et al. vs. Maglapuz, et al., Reconsideration, because it is the denial of the
G.R. No. 158867, August 22, 2006). motion for reconsideration which constituted the final
23
order which finally disposed of the issues involved in
the case. While the case was filed under the old
Rule, the fresh 15 – day period within which to file
notice of appeal counted from notice of the denial of
the motion for reconsideration may be applied to the
case inasmuch as rules of procedure may be given
retroactive effect to actions pending and
undetermined at the time of their passage. (citing
Santiago vs. Bergensen D.Y. Phils., G.R. No.
148333, November 17, 2004, 442 SCRA 486; Rep.
vs. CA, 447 Phil. 385 (2003); Neypes vs. CA, G.R.
No. 141524, September 14, 2005, 469 SCRA 633;
Sumaway, et al. vs. Urban Bank, Inc., et al., G.R.
No. 142534, June 27, 2006).
Purpose of the fresh 15 – day period to appeal.
To standardize the appeal periods provided in the
Rules and to afford litigants fair opportunity to
appeal their cases, the Court deems it practical to
allow a fresh period of 15 days within which to file
the notice of appeal in the RTC, counted from
receipt of the order dismissing a motion for a new
trial or motion for reconsideration.
This “fresh period rule” shall also apply to
Rule 40 governing appeals from the Municipal Trial
Courts to the RTC; Rule 42 on petitions for review
from the Regional Trial Courts to the Court of
Appeals; Rule 43 on appeals from quasi – judicial
agencies to the Court of Appeals and Rule 45
governing appeals by certiorari to the Supreme
Court. The new rule aims to regiment or make the
appeal period uniform, to be counted from receipt of
the order denying the motion for new trial, motion for
reconsideration (whether full or partial) or any final
order or resolution. (Sumaway, et al. vs. Urban
Bank, Inc., et al., G.R. No. 142534, June 27, 2006
citing Neypes vs. CA, G.R. No. 141524, September
14, 2005, 469 SCRA 633).
RULE 41
Effect if a complaint is dismissed on the ground
of prematurity and failure to state a cause of
action, what is its nature and the remedy against
such order.
The order of the trial dismissing a complaint on the
ground that it is premature and states no cause of
action is final because it terminated the proceedings
so that nothing more can be done in the trial court.
The order ended the litigation. There are two modes
of appeal from a final order of the trial court in the
exercise of its original jurisdiction – (1) by writ of
error under Section 2(a), Rule 41 of the Rules of
Court if questions of fact or questions of fact and law
are raised or involved; or (2) appeal by certiorari
under Section 2(c), Rule 41, in relation to Rule 45,
where only questions of law are raised or involved.
The period to appeal by writ of error is
provided in Section 3, Rule 41 of the Rules of Court
which is 15 days from notice of the judgment. Where
a record on appeal is required, the appellant shall
file a notice of appeal and a record on appeal within
thirty (30) days from notice of the judgment or final
order.
The period of appeal shall be interrupted by a
timely motion for new trial or reconsideration. No
motion for extension of time to file a motion for new
trial or reconsideration shall be allowed.
Under Section 5 of the same rule, “the notice
of appeal shall indicate the parties to the appeal,
specify the judgment or final order or part thereof
appealed from, specify the court to which the appeal
is being taken, and state the material dates showing
the timeliness of the appeal”.
On the other hand, an appeal by certiorari is
via a petition for review to be filed with the Supreme
Court within fifteen (15) days from notice of the final
order or resolution appealed from or of the dismissal
of petitioner’s motion for new trial or reconsideration
filed in due time after notice of the final order or
resolution. (First Bancorp., Inc. vs. CA, et al., G.R.
No. 15132, June 22, 2006).
Effect of perfection of appeal; execution pending
appeal.
Facts:A complaint for damages was filed due to the
loss of a vessel on account of collision. Judgment
was rendered for the plaintiff. Defendant filed a
notice of appeal on April 18, 2001 which was given
due course on June 6, 2001. On April 18, 2001, the
plaintiff filed a Motion for Execution Pending Appeal
which was granted. Levy was made on a vessel
belonging to the defendant, but a Third – Party
Claim was filed. It was however, denied due to the
non – approval of the indemnity bond. The RTC did
not act on Motion for Execution Pending Appeal as it
ruled that it has lost jurisdiction over the case with
the perfection of the appeal. After the disapproval of
the bond by the CA, the plaintiff filed a Motion to
Deny Third – Party Claim for Damages. The CA did
not act on the Motion on the ground that it should
have been filed with the RTC, Cebu, hence, a
petition for certiorari and mandamus was filed with
the SC, contending that the CA committed grave
abuse of discretion when it did not act on Motion to
Deny Third – Party Claim with Motion to Admit Claim
for Damages on the ground that the same should
have been filed with the RTC of Cebu, Branch VIII,
24
Cebu City. In ruIing that the petition for certiorari
lacks merit, the SC
Held: As long as the motion for execution pending
appeal is filed within the period for perfecting the
appeal and prior to the transmittal of the records to
the CA, the trial court may order execution pending
appeal upon good reasons to be stated in the Order
granting execution pending appeal. The trial court
granted the motion for execution pending appeal;
issued the court of execution and the sheriff levied
upon a property of the defendant. However, the
owner of the property levied upon availed of the
remedy of terceria (Sy vs. Discaya, 181 SCRA 378
(1990) by serving on the officer making the levy an
affidavit of his title and a copy thereof upon
petitioners. Upon receipt of such affidavit the sheriff
who was not bound to keep the properties because
of such third party claim, notified petitioners of such
claim and required them to post an indemnity bond
to answer for any liability he may incur by reason of
such. The matter of the invalidity of the affidavit of
the third – party claimant was never raised by
plaintiffs in the trial court which could have still ruled
on the same since the records were still with it at the
time such third party claim was filed. Moreover,
plaintiff even filed an indemnity bond. The petition
for mandamus should likewise be denied due to the
CA’s lack of jurisdiction. (Capa, et al. vs. CA, et al.,
G.R. No. 160082, September 19, 2006).
RULE 42
Petition for Review to CA
A judgment for ejectment was rendered by
the MTC of Las Piñas, Metro Manila. Appeal was
made to the RTC which dismissed the appeal for
failure of the appellants to file their memorandum on
appeal. The appellants filed a notice of appeal to the
CA.
The SC ruled that this is not the appropriate
remedy.
Appeal by petition for review under Rule 42
filed with the CA is the appropriate remedy from
decisions or final orders issued by the RTC in the
exercise of its appellate jurisdiction. Section 1 of
Rule 42 provides that a party desiring to appeal from
a decision of the RTC rendered in the exercise of its
appellate jurisdiction may file a verified petition for
review with the Court of Appeals x x x. The petition
shall be filed and served within fifteen (15) days from
notice of the decision sought to be reviewed or of
the denial of petitioner’s motion for new trial or
reconsideration filed in due time after judgment.
An order of the RTC dismissing an appeal
from a decision of the MTC for failure to file a
memorandum on appeal is one such a final order.
(Ang vs. Grageda, G.R. No. 166239, June 8, 2006).
It is appealable, by petition for review under Rule 42.
(Banting, et al. vs. Sps. Maglapuz, et al., G.R. No.
158867, August 22, 2006 citing Gonzales vs.
Gonzales, 483 SCRA 57 (2006).
Effect of the wrong mode of appeal.
If the mode of appeal was faulty, recourse to it did
not toll the running of the period within which to file a
petition for review. It is axiomatic that a fatally
defective or erroneous appeal or motion will not toll
the running of a period to appeal. A detour from the
proper course of an appeal will not earn for the
errant party a fresh start. (Banting, et al. vs. Sps.
Maglapuz, et al., G.R. No. 158867, August 22,
2006).
Application of the fresh 15-day period to appeal.
The fresh 15 – day period pursuant to Neypes vs.
CA, 469 SCRA 633 (2005) applicable if the RTC
dismissed an appeal from the MTC. Or, stated
otherwise, it is applicable in a petition for review
from a decision of the RTC where the original
jurisdiction is with the MTC. The reason is, because
the fresh 15-day principle which is a uniform period
for appeals is applicable to Rules 40, 42, 43 and 45.
The period to appeal at 15 days from notice of the
decision or final order appealed from or, where a
motion for new trial or reconsideration is seasonably
filed from the said decision or final order was set
within a fresh period of 15 days from receipt of the
order denying the motion for new trial or
reconsideration. (Banting, et al. vs. Sps. Maglapuz,
et al., G.R. No. 158867, August 22, 2006).
RULE 45
Effect if a special civil action for certiorari is
filed 32 days later.
In a case, a special civil action for certiorari was
belatedly filed. Justice and equity are not good
reasons to exempt it because the period of 60 days
to file a petition for certiorari is reasonable and
sufficient. It provides for ample time for a party to
mull over and prepare a petition asserting grave
abuse of discretion by a lower court, tribunal, board
or officer. It was specifically set to avoid any
unreasonable delay that would violate the
constitutional rights of parties to a speedy
disposition of their cases. Hence, the 60-day period
must be considered non – extendible, except where
a good and sufficient reason can be shown to
warrant an extension. (LBP vs. Hon. Bernardo V.
25
Saludanes, et al., G.R. no. 146581, December 13, The special civil action for certiorari cannot be
2005 citing Yutingco vs. CA, 386 SCRA 85 (2002). used as a substitute for an appeal which the
petitioner already lost. Time and again it has been
RULES 45/65 said that a special civil action for certiorari under
Facts:From a judgment in a foreclosure of a Rule 65 lies only when “there is no appeal nor plain,
mortgage the aggrieved parties filed a Petition for speedy and adequate remedy in the ordinary course
Review under Rule 45 with a Petition for Certiorari of law. Certiorari cannot be allowed when a party to
under Rule 65. While they treated it as one for a case fails to appeal a judgment to the proper
Review on Certiorari, they manifested that it was forum despite the availability of that remedy,
filed pursuant to Rule 65 of the Rules of Court in certiorari not being a substitute for lost appeal.
relation to Rule 45 of the Rules. Mere errors of judgment cannot be the proper
The SC ruled that the mode of appeal is not subject of a special civil action for certiorari. Where
proper. the issue or question involved affects the wisdom or
In Ligon vs. CA, 294 SCRA 73 where the legal soundness of the decision – not the jurisdiction
therein petitioner: “An appeal under Rule 45 and at of the court to render said decision – the same is
the same time as a special civil action of certiorari beyond the province of a special civil action for
under Rule 65 of the Rules of Court is frowned upon. certiorari. Erroneous findings and conclusions do not
It has been described as a “chimera” and the Court render the appellate court vulnerable to the
reiterated that the remedies of appeal and certiorari corrective writ of certiorari, for where the court has
are mutually exclusive and not alternative nor jurisdiction over the case, even if its findings are not
successive. (Nuñez vs. GSIS Family Bank, et al., correct, they would, at the most, constitute errors of
G.R. No. 163988, November 17, 2005, citing Ligon law and not abuse of discretion correctible by
vs. CA, 294 SCRA 73). certiorari. (New York Managers, Inc. vs. CA, 319
Phil. 538).
SC consider a petition under Rule 65 as one filed
under Rule 45. When a special civil action for certiorari be
In accordance with the liberal spirit which pervades availed of.
the Rules of Court and in the interest of justice, the As a general rule, the special civil action of certiorari
SC may treat a petition for certiorari as having been may only be availed when the lower court or any of
filed under Rule 45, more so if the same was filed its officers, acted without or in excess of jurisdiction
within the reglementary period for filing a petition for or with grave abuse of discretion, and there is no
review. (Nuñez vs. GSIS Family Bank, et al., G.R. plain, speedy, and adequate remedy in the ordinary
No. 163988, November 17, 2005, citing Delsan course of law. When an appeal is in itself a sufficient
Transport Lines, Inc. vs. CA, 268 SCRA 597; and adequate remedy that would promptly relieve
International Exchange Bank v. CA, et al., G.R. No. the petitioner from the injurious effects of the order
165403, February 27, 2006). or judgment complained of, existence of that appeal
would bar the institution of the remedy of certiorari.
DECLARATORY RELIEF (Santos, et al. vs. Cruz, et al., G.R. No. 170096-97,
March 3, 2006).
When SC may entertain petition for declaratory
relief. Meaning of the phrase “plain and adequate
The judicial policy remains that the Supreme Court remedy”.
will not entertain direct resort to it, except when the The case of Cervantes vs. CA, G.R. No. 159022,
redress sought cannot be obtained in the proper February 23, 2005, clarified that “plain” and
courts or when exceptional and compelling “adequate remedy” referred to in the foregoing Rule
circumstances warrant availment of a remedy within is a motion for reconsideration of the assailed Order
and calling for the exercise of the Court’s primary or Resolution, the filing of which is an indispensable
jurisdiction. (Ortega vs. The Quezon City condition to the filing of a special civil action for
Government, et al., G.R. No. 161400, September 2, certiorari, (Acance vs. CA, 453 SCRA 458 (2005),
2005, citing John Hay Peoples Alternative Coalition subject to certain exceptions, to wit:
vs. Lim, 414 SCRA 356 (2003). (a) where the order is a patent nullity, as
where the court a quo has no jurisdiction;
RULE 65 (b) where the questions raised in the certiorari
Certiorari, Prohibition and Mandamus proceedings have been duly raised and
26
 passed upon by the lower court, or are the No evidence was presented to explain these patent
same as those raised and passed upon in irregularities and non – production of the originals.
the lower court; The SC ruled that mandamus will not issue to
(c) where there is an urgent necessity for the enforce a right, or to compel compliance with a duty,
resolution of the question and any further which is questionable or over which a substantial
delay would prejudice the interests of the doubt exists. They failed to establish the veracity of
Government or of the petitioner or the their respective Certificates of Canvass upon which
subject matter of the action is perishable; they anchored their petition.
(d) where, under the circumstances, a motion As an extraordinary, mandamus may be
for reconsideration would be useless; availed of only if the legal right to be enforced is well
(e) where petitioner was deprived of due defined, clear and certain. It lies only to compel an
process and there is extreme urgency for officer to perform a ministerial duty, not a
relief; discretionary one. The duty is ministerial only when
(f) where, in a criminal case, relief from an its discharge requires neither the exercise of official
order of arrest is urgent and the granting discretion nor judgment.
of such relief by the trial court is Further, it is settled that in order that a writ of
improbable; mandamus may aptly issue, it is essential that, on
(g) where the proceedings in the lower court the one hand, the person petitioning for it has a clear
are a nullity for lack of due process; legal right to the claim that is sought and that, on the
(h) where the proceedings was ex parte or in other hand, the respondent has an imperative duty
which the petitioner had no opportunity to to perform that which is demanded of him.
object; and Mandamus will not issue to enforce a right, or to
(i) where the issue raised is one purely of law compel compliance with a duty, which is
or public interest is involved. questionable or over which a substantial doubt
exists. The principal function of the writ is to
Writ of certiorari not demandable as a matter of command and to expedite, not to inquire and to
right. adjudicate; thus, it is neither the officer nor the aim
In Cervantes vs. CA, the further stressed that a writ of the writ to secure a legal right but to implement
of certiorari is a prerogative writ, never demandable that which is already established. Unless the right to
as a matter of right, never issued except in the the relief is unclouded, mandamus will not issue.
exercise of judicial discretion. Hence, he who seeks (Olama, et al. vs. PNB, et al., G.R. No. 169213,
a writ of certiorari must apply for it only in the June 22, 2006).
manner and strictly in accordance with the
provisions of the law and the Rules. Petitioner may Reason why Motion for Reconsideration is
not arrogate to himself the determination of whether necessary before a special civil action for
a motion for reconsideration is necessary or not. To certiorari.
dispense with the requirement of filing a motion for The reason is to give the judge the opportunity to
reconsideration, petitioner must show a concrete, correct or alter his case disposition on a motion for
compelling, and valid reason for doing so. reconsideration, it being the purpose of such
(Cervantes vs. CA, G.R. No. 166755, November 18, recourse to provide the court an opportunity to
2005; Santos vs. Cruz, et al., G.R. No.170096-97, cleanse itself of an error unwittingly committed, or,
March 3, 2006). with like effect, to allow the aggrieved party the
chance to convince the court that its ruling is
Mandamus, will not issue to enforce a right. erroneous. A motion for reconsideration before
A petition for mandamus was filed seeking to compel resort to certiorari is required precisely to afford the
the PNB to release their IRA, claiming that they were public respondent an opportunity to correct any
duly elected in a special barangay and Sangguniang actual or fancied error attributed to it by way of re –
Kabataan elections. The PNB’s refusal to release examination of the legal and factual aspects of the
their IRA was due to the refusal of the Local case. (Lim, et al. vs. Hon. Benjamin Vianzon, et al.,
Government Operations Officer to issue the G.R. No. 137187, August 3, 2006; citing Sony Music
certifications requested of him. They, however, Entertainment (Phils.) Inc. vs. Español, G.R. No.
presented xerox copies of supposedly certified 156804, March 14, 2005).
copies of Certificate of Canvass of Votes and
Proclamation which bear the same serial numbers.
27
Resort to SC directly under Rule 65 must be
shown to be under special circumstances;
reason.
The rule is so, otherwise, there would be disregard
of the doctrine of judicial hierarchy which the Court
enjoins litigants and lawyers to strictly observe. The
SC’s original jurisdiction to issue writs of certiorari,
prohibition, mandamus, quo warranto, habeas
corpus and injunction is shared by it with the
Regional Trial Courts and Court of Appeals. A direct
invocation of the Supreme Court’s original
jurisdiction to issue these writs should be allowed
only when there are special and important reasons
therefor, clearly and specifically set out in the
petition. This is an established policy necessary to
avoid inordinate demands upon the Court’s time and
attention which are better devoted to those matters
within its exclusive jurisdiction, and to preclude the
further clogging of the Court’s docket. (Lim, et al. vs.
Hon. Vianzon, et al., G.R. No. 137187, August 3,
2006).
RULE 70
Forcible Entry and Unlawful Detainer
MTC in an unlawful detainer case decide the
issue of ownership.
The sole issue for resolution in an unlawful detainer
case is physical or material possession. But even if
there was a claim of juridical possession or an
assertion of ownership by the defendant, the MeTC
may still take cognizance of the case. All that the
trial court can do is to make an initial determination
of who is the owner of the property so that it can
resolve who is entitled to its possession absent other
evidence to resolve ownership. Courts in ejectment
cases decide questions of ownership only as it is
necessary to decide the question of possession. The
reason for this rule is to prevent the defendant from
trifling with the summary nature of an ejectment suit
by the simple expedient of asserting ownership over
the disputed property. (Arambulo, et al. vs. Gungab,
G.R. No. 156581, September 30, 2005).
This determination of ownership is not final. It
is only an initial determination of ownership for the
sole purpose of settling the issue of possession. It
would not prejudice the pending action between the
same parties involving title to the property. (Victoria
Arambulo, et al. vs. CA, et al., G.R. No. 156581,
September 30, 2005).
Forcible entry case filed after two years.
Considering that the unlawful possession occurred
two years prior to the filing of the complaint, the
same should have been filed with the RTC or MTC
depending upon the assessed value of the property.
The MTC has no jurisdiction. Well – settled is the
rule that jurisdiction over the subject matter cannot
be waived by the parties or cured by their silence,
acquiescence, or even express consent. The failure
to insist on the defense does not vest jurisdiction in
the MTC over the case. (Lilia Peralta – Labrador vs.
Bugarin, G.R. No. 165177, August 25, 2005, Ynares
– Santiago, J).
Nature of a forcible entry case.
An action for forcible entry is a quieting process, and
that the restrictive time bar is prescribed to
complement the summary nature of such process.
Indeed, the one – year period within which to bring
an action for forcible entry is generally counted from
the date of actual entry to the land. However, when
entry is made through stealth, then the one – year
period is counted from the time the plaintiff learned
about it. After the lapse of the one – year period, the
party dispossessed of a parcel of land may file either
an accion publiciana, which is a plenary action to
recover the right of possession; or an accion
reinvindicatoria, which is an action to recover
ownership as well as possession. (Lilia Peralta –
Labrador vs. Bugarin, G.R. No. 165177, August 25,
2005, citing Bongato vs. Malvar, G.R. No. 141614,
August 14, 2002, 387 SCRA 327).
After one year, the action is accion publiciana.
After the lapse of the one – year period, the suit
must be commenced in the RTC via an accion
publiciana, a suit for recovery of the right to possess.
It is an ordinary civil proceeding to determine the
better right of possession of realty independently of
title. It also refers to an ejectment suit filed after the
expiration of one year from the accrual of the cause
of action or from the unlawful withholding of
possession of the realty independently of title.
Likewise, the case may be instituted before the
same court as an accion reivindicatoria, which is an
action to recover ownership as well as possession.
(Lilia Peralta – Labrador vs. Bugarin, G.R. No.
165177, August 25, 2005; Bongato vs. Malvar, 387
SCRA 327; Lopez vs. David, Jr., G.R. No. 152145,
March 30, 2004, 426 SCRA 535).
Forcible entry; when there is.
In Sps. Rev. Bañes, et al. vs. Lutheran
Church in the Phils., et al., G.R. No. 142308,
November 15, 2005, a suit for forcible entry was filed
alleging that there were men in the subject property
restricting the occupant’s mobility. The MTC and the
28
CA, however ruled that there was none considering
that months after the owner sought the ouster of the Nature of ejectment proceedings.
petitioners from the property, the latter expressed Ejectment proceedings are summary proceedings
willingness to vacate the premises upon finding intended to provide an expeditious means of
another place to live in, hence, no force was protecting actual possession or right to possession
employed. They concluded that there was no of property. Title is not involved. The sole issue to be
forcible entry. The SC ruled no. The mere fact that resolved is the question as to who is entitled to the
there was an expression of intention to vacate did physical or material possession of the premises or
not negate the initial use of force by respondents possession de facto. (David vs. Cordova, 464 SCRA
which constituted forcible entry. Regardless of the 384).
actual condition of the title to the property, the party Regardless of the actual condition of the title
in peaceable quiet possession shall not be thrown to the property, the party in peaceable, quiet
out by a strong hand, violence or terror. (Pajuyo vs. possession shall not be thrown out by a strong hand,
CA, G.R. No. 146364, June 3, 2004, 430 SCRA violence or terror. Neither is the unlawful withholding
492). The owner who has title over the property of property allowed. Courts will always uphold
cannot take the land into his hands to regain respect for prior possession. Thus, a party who can
possession of said property. He has to go to court. prove prior possession can recover such possession
even against the owner himself. Whatever may be
Nature of possession by tolerance. the character of his possession, if he has in his favor
The rule is that possession by tolerance is lawful, prior possession in time, he has the security that
but such possession becomes unlawful when the entitles him to remain on the property until a person,
possessor by tolerance refuses to vacate upon with a better right lawfully ejects him. (Domalsin vs.
demand made by the owner. A person who occupies Valenciano, et al., G.R. No. 158687, January 25,
the land of another at the latter’s tolerance or 2006 citing Pajuyo vs. CA, G.R. No. 146364, June 3,
permission, without any contract between them, is 2004, 430 SCRA 492).
necessarily bound by an implied promise to vacate The fact that the parties do not and cannot
upon demand, failing which, a summary action for own the property under litigation does not mean that
ejectment is the proper remedy. (Heirs of Jesus the issue to be resolved is no longer priority of
Magpily vs. De Jesus, et al., G.R. No. 167748, possession. The determining factor for one to be
November 8, 2005; Santos vs. Ayon, G.R. No. entitled to possession will be prior physical
137748, May 6, 2005). possession and not actual physical possession.
Since title is never in issue in a forcible entry case,
Unlawful detainer case is within MTC’s the court should base its decision on who had prior
jurisdiction; effect if there is allegation of physical possession. The main thing to be proven in
tenancy. an action for forcible entry is prior possession and
When a tenancy is merely averred as a special and that same was lost through force, intimidation,
affirmative defense to a complaint for unlawful threat, strategy and stealth, so that it behooves the
detainer, the MTC does not automatically lose its court to restore possession regardless of title or
jurisdiction over the said action. The MTC is duty – ownership.
bound to conduct a preliminary conference and, if
necessary, to receive evidence to determine if such RULE 71
tenancy relationship had, in fact, been shown to be Facts:A District Engineer of the DPWH in Mountain
the real issue. The MTC may even opt to conduct a Province was charged with dishonesty, falsification,
hearing on the special and affirmative defense of the grave misconduct before the Ombudsman. He was
defendant, although under the Rules on Summary convicted in the administrative case. He appealed to
Procedure, such a hearing is not a matter of right. If the CA which affirmed his conviction. While his case
it is shown during the hearing or conference that, was pending in the SC, Sec. Datumanong issued an
indeed, tenancy is the issue, the MTC should order dropping him from the roll or dismissing him,
dismiss the case for lack of jurisdiction. (Ramos vs. hence he filed a motion to cite Datumanong in
Stateland Investment Corp., G.R. No. 161973, contempt, contending that his action was
November 11, 2005 citing Hilado vs. Chavez, G.R. contumacious, a gross and blatant display of abuse
No. 134742, September 22, 2004, 438 SCRA 623; of discretion and an unlawful interference with
see also Heirs of Rafael Magpily vs. De Jesus, et al., proceedings before the Court, thereby directly or
G.R. No. 167748, November 8, 2005). indirectly impeding, obstructing and degrading the
29
administration of justice, and pre – empting the decisions rendered by the Office of the
Court’s sole right to make a decision based on the Ombudsman. (In Re: Contempt of Datumanong,
evidence and the law. Is the motion proper? Why? Jimmie Ter – Equen, G.R. No. 150274, August 4,
Held: No. The power to declare a person in 2006).
contempt of court and in dealing with him
accordingly is an inherent power lodged in courts of RULE 80
justice, to be used as a means to protect and Special Administrator
preserve the dignity of the court, the solemnity of the
proceedings therein, and the administration of Extent of the power of the court in the
justice from callous misbehavior, offensive appointment of a special administrator.
personalities, and contumacious refusal to comply The appointment of a special administrator lies in
with court orders. This contempt power, however the sound discretion of the probate court. (De Gala
plenary it may seem, must be exercised judiciously vs. Gonzales, 53 Phil. 104 (1929). A special
and sparingly with utmost self – restraint with the administrator is a representative of a decedent
end in view of utilizing the same for correction and appointed by the probate court to care for and
preservation of the dignity of the court, not for preserve his estate until an executor or general
retaliation or vindication. It should not be availed of
administrator is appointed. (Fule vs. CA, 74 SCRA
unless necessary in the interest of justice. (Quinio 189). When appointed, a special administrator is
vs. CA, 390 Phil 852 (2000). regarded not as a representative of the agent of the
The issuance of the Memorandum Order by parties suggesting the appointment, but as the
Secretary Datumanong was not a contumacious administrator in charge of the estate, and, in fact, as
conduct tending, directly or indirectly, to impede, an officer of the court. (De Guzman vs. Guadiz, 96
obstruct or degrade the administration of justice. A SCRA 938). As such officer, he is subject to the
conduct, to be contumacious, implies willfulness, supervision and control of the probate court and is
bad faith or with deliberate intent to cause injustice,
expected to work for the best interests of the entire
which is not so in the case at bar. If it were estate, especially its smooth administration and
otherwise, petitioner should have been dismissed earliest settlement. (Valarao vs. Pascual, G.R. No.
immediately after the Administrative Adjudication 50164, November 26, 2002, 392 SCRA 695). The
Bureau of the Office of the Ombudsman rendered its principal object of appointment of temporary
decision on March 28, 1994. It was only after the administrator is to preserve the estate until it can
Court of Appeals rendered its decision on March 2, pass into hands of person fully authorized to
2000 affirming the dismissal that Secretary administer it for the benefit of creditors and heirs. In
Datumanong issued the memorandum and after many instances, the appointment of administrators
ascertaining that no injunction or restraining order for the estates of decedents frequently become
was issued by the Court. involved in protracted litigations, thereby exposing
At most, it may be considered only an error of
such estates to great waste and losses unless an
judgment or a result of confusion considering the authorized agent to collect the debts and preserve
different rules regarding execution of decisions the assets in the interim is appointed. The occasion
pending appeal. (In Re: Contempt of Datumanong, for such an appointment, likewise, arises where, for
Jimmie Ter – Equen, G.R. No. 150274, August 4, some cause, such as a pendency of a suit
2006). concerning the proof of the will, regular
administration is delayed. (Heirs of Belinda Dahlia
Nature of the decisions of the CSC. Castillo vs. Dolores Lacuata – Gabriel, G.R. No.
Decisions of the Civil Service Commission under the 162934, November 11, 2005).
Administrative Code of 1987 are immediately
executory even pending appeal because the New Rules broadened the basis for the
pertinent laws under which the decisions were appointment of an administrator.
rendered mandate them to be so. (Lapid vs. CA, 390 The New Rules have broadened the basis for the
Phil. 236 (2000). Thus, “where the legislature has appointment of an administrator, and such
seen fit to declare that the decision of the quasi – appointment is allowed when there is delay in
judicial agency is immediately final and executory granting letters testamentary or administration by
pending appeal, the law expressly so provides.” any cause, e.g., parties cannot agree among
Otherwise, execution of decisions takes place only themselves. Nevertheless, the discretion to appoint
when they become final and executory, like
30
a special administrator or not lies in the probate
court. In De Guzman vs. Guadiz, Jr., it was said:
Under the above rule, the probate court may
appoint a special administrator should there be a
delay in granting letter testamentary or of
administration occasioned by any cause including an
appeal from the allowance or disallowance of a will.
Subject to this qualification, the appointment of a
special administrator lies in the discretion of the
court. This discretion, however, must be sound, that
is, not whimsical, or contrary to reason, justice,
equity or legal principle.
The basis for appointing a special
administrator under the Rules is broad enough to
include any cause or reason for the delay in granting
letters testamentary or of administration as where a
contest as to the will is being carried on in the same
or in another court, or where there is an appeal
pending as to the proceeding on the removal of an
executor or administrator, or in cases where the
parties cannot agree among themselves. Likewise,
when from any cause general administration cannot
be immediately granted, a special administrator may
be appointed to collect and preserve the property of
the deceased.
It is obvious that the phrase “by any cause”
includes those incidents which transpired in the
instant case clearly showing that there is a delay in
the probate of the will and that the granting of letter
testamentary will consequently be prolonged
necessitating the immediate appointment of a
special administrator.
When the court appoints a special administrator
it does not determine the shares of the heirs in
the estate.
In the appointment of a special administrator (which
is but temporary and subsists only until a regular
administrator is appointed), the probate court does
not determine the shares in the decedent’s estate,
but merely appoints who is entitled to administer the
estate. The issue of heirship is one to be determined
in the decree of distribution, and the findings of the
court on the relationship of the parties in the
administration as to be the basis of distribution. (Uy
vs. CA, et al., supra).
Rules govern the appointment of a special
administrator as distinguished from the
appointment of a regular administrator.
Section 6, Rule 78 of the Rules of Court refers to the
appointment of regular administrators of estates;
Section 1, Rule 80, on the other hand, applies to the
appointment of a special administrator. It has long
been settled that the appointment of special
administrator is not governed by the rules regarding
the appointment of regular administrator. (Ozeata
vs. Pecson, et al., 93 Phil. 416).
It is well – settled that the statutory provisions
as to the prior or preferred right of certain persons to
the appointment of administrator under Section 1,
Rule 81, as well as the statutory provisions as to
causes for removal of an executor or administrator
under Section 653 of Act No. 190, now Section 2,
Rule 83, do not apply to the selection or removal of
special administrator. As the law does not say who
shall be appointed as special administrator and the
qualifications the appointee must have, the judge or
court has discretion in the selection of the person to
be appointed, discretion which must be sound, that
is, not whimsical or contrary to reason, justice or
equity. (Roxas vs. Pecson, 82 Phil. 407; Uy vs. CA,
et al., G.R. No. 167979, March 16, 2006).
RULE 102
Habeas Corpus
Basic function of a writ of habeas corpus.
A writ of habeas corpus extends to all cases of
illegal confinement or detention by which any person
is deprived of his liberty, or by which the rightful
custody of any person is withheld from the person
entitled to it. (Sec. 1, Rule 10). Its essential object
and purpose is to inquire into all cases of involuntary
restraint and to relieve a person from it if such
restraint is illegal. (Ilusorio vs. Bildner, G.R. No.
139789 & 139808, May 12, 2000; 332 SCRA 169; In
Re: Habeas Corpus of Atty. Fernando Arguelles, Jr.,
et al. vs. Maj. Gen. Jose Balajadia, Jr., G.R. No.
167211, March 14, 2006, Azcuna, J). The singular
function of a petition for habeas corpus is to protect
and secure the basic freedom of physical liberty.
Main function of a probate court.
The main function of a probate court is to settle and
liquidate the estates of deceased persons either
summarily or through the process of administration.
(Uy vs. CA, et al., G.R. No. 167979, March 16, 2006
citing Intestate Estate of Don San Pedro vs. CA, 333
Phil. 597; Mañningal vs. Castillo, 75 Phil. 532).
Peference in the appointment of administrator of
an estate.
Under the Rules, the preference to whom letters of
administration may be granted are as follows:
If no executor is named in the will, or the
executor or executors are incompetent, refuse the
31
trust, or fail to give bond, or a person dies intestate, proceedings is not prohibited. In Gabriel vs. CA,
administration shall be granted. G.R. No. 101512, August 7, 1992, 212 SCRA 413, it
(a) To the surviving husband or wife, as was held that jurisprudence allows the appointment
the case may be, or next of kin, or of co – administrators under certain circumstances,
both, in the discretion of the court, or to to wit:
such person as such surviving Under both Philippine and American
husband or wife, or next of kin, jurisprudence, the appointment of co –
requests to have appointed if administrators has been upheld for various reasons,
competent and willing to serve; viz: (1) to have the benefit of their judgment and
(b) If such surviving husband or wife, as perhaps at all times to have different interests
the case may be, or next of kin, or the represented; (2) where justice and equity demand
person selected by them, be that opposing parties or factions in the management
incompetent or unwilling, or if the of the estate of the deceased; (3) where the estate is
husband or widow, or next of kin, large or, from any cause, an intricate and perplexing
neglects for thirty (30) days after the one to settle; (4) to have all interested persons
death of the person to apply for satisfied and the representatives to work in harmony
administration or to request that for the best interests of the estate; and (5) when a
administration be granted to some person entitled to the administration of an estate
other person, it may be granted to one desire to have another competent person associated
or more of the principal creditors, if with him in the office. (Uy vs. CA, et al. G.R. No.
competent and willing to serve; 167979, march 16, 2006).
(c) If there is no such creditor competent
and willing to serve, it may be granted Appointment of an administrator be re – opened
to such other person as the court may without removing the incumbent administrator.
select. (Sec. 6, Rule 78, Rules of The argument that the trial court cannot re – open
Court; Uy vs. CA, et al., G.R. No. the issue of the appointment of an administrator
167979, March 16, 2006). without removing the incumbent administrator is
erroneous. In probate proceedings, considerable
Order of preference not absolute. latitude is allowed a probate court in modifying or
It is well – settled that a probate court cannot revoking own orders as long as the proceedings are
arbitrarily and without sufficient reason disregard the pending in the same court and timely applications or
preferential rights of the surviving spouse to the motion for such modifications or revocations are
administration of the estate of the deceased spouse. made by the interested parties. (Oñas vs. Javillo, 54
But, if the person enjoying such preferential rights is Phil. 602). In the instant case, the estate of the
unsuitable, the court may appoint another person. deceased has not yet been settled and the case is
The determination of a person’s suitability for the still within the jurisdiction of the court. (Uy vs. CA, et
office of administrator rests, to a great extent, in the al., G.R. No. 167979, March 16, 2006).
sound judgment of the court exercising the power of
appointment and such judgment will not be Basis of grant of habeas corpus is illegal
interfered with on appeal unless it appears detention of a person.
affirmatively that the court below was in error. In connection with the killing of Dorothy Jones, alias
Unsuitableness may consist in adverse Nida Blanca, Philipp Medel, Jr. executed a
interest of some kind or hostility to those statement saying that Michael Martinez introduced
immediately interested in the estate. (Sioca vs. him to Rod Strunk, the husband of the deceased
Garcia, 44 Phil. 711; Silverio, Sr. vs. CA, 364 Phil. and the suspected mastermind in her killing. In an
188; Uy vs. CA, et al., G.R. No. 167979, March 16, interview, he said that he saw Michael at the CIDG,
2006). Camp Crame, being detained. In view thereof, the
parents of Michael filed a petition for habeas corpus
Duties of a co – administrator. against Gen. Leandro Mendoza and other for them
A co – administrator performs all the functions and to produce the body of Michael or to justify his
duties and exercises all the powers of a regular detention. They were required to show cause why a
administrator, only that he is not alone in the writ of habeas corpus should not be issued. In the
administration. (De Borja vs. Tan, 97 Phil. 872). The return, they denied any participation or involvement
practice of appointing co – administrators in estate in the alleged abduction or disappearance of
32
Michael as he was never confined or detained by
them. After hearing, the court issued an order
directing them to produce the body of Michael.
The SC ruled that habeas corpus is not the remedy.
Ostensibly, his disappearance has been established.
However, the grant of relief in a habeas corpus
proceeding is not predicated on the disappearance
of a person, but on his illegal detention. Habeas
corpus generally applies to “all cases of illegal
confinement or detention by which any person is
deprived of his liberty or by which the rightful
custody of any person is withheld from the person
entitled thereto.” (Rule 102, Sec. 1).
“The ultimate purpose of the writ of habeas
corpus is to relieve a person from unlawful restraint.
It is devised as a speedy relief from unlawful
restraint. It is a remedy intended to determine
whether a person under detention is held under
lawful authority.” (Ngaya – an vs. Balweg, 200
SCRA 149 (1991).
If the respondents are neither detaining nor
restraining the applicant or the person on whose
behalf the petition for habeas corpus has been filed,
then it should be dismissed. This remedy has one
objective – to inquire into the cause of detention of a
person:
“The purpose of the writ is to determine
whether a person is being illegally deprived of his
liberty. If the inquiry reveals that the detention is
illegal, the court orders the release of the person. If,
however, the detention is proven lawful, then the
habeas corpus proceedings terminate. The use of
habeas corpus is thus very limited.” (Martinez vs.
Dir. Gen. Leandro Mendoza, et al., G.R. No.
153795, August 17, 2006, citing Alejandro vs.
Cabuay, 468 SCRA 188 (2005).
Habeas corpus may not be used to obtain
evidence on the whereabouts of a person.
No. Habeas corpus may not be used as a means of
obtaining evidence on the whereabouts of a person,
or as a means of finding out who has specifically
abducted or caused the disappearance of a certain
person.
When respondents making the return of the
writ state that they have never had custody over the
person who is the subject of the writ, the petition
must be dismissed, in the absence of definite
evidence to the contrary. “The return of the writ must
be taken on its face value considering that, unless it
is in some way (convincingly) traversed or denied,
the facts stated therein must be taken as true” for
purposes of the habeas corpus proceedings.
(Martinez vs. Dir. Gen. Mendoza, et al., supra.).
Forcible taking and disappearance; remedy.
When forcible taking and disappearance – not arrest
and detention – have been alleged, the proper
remedy is not habeas corpus proceedings, but
criminal investigation and proceedings. (Martinez vs.
Dir. Gen. Mendoza, et al., supra.).
CRIMINAL PROCEDURE
Before a court may act on any motion, court
must have jurisdiction over him.
In a case, the accused were at large. They
were never arrested and arraigned. They filed a
demurrer to evidence which the SB granted. The SC
Held: Basic is the rule that before a court can act
upon the case of an accused, it must first acquire
jurisdiction over his person. Jurisdiction over the
accused is acquired by (a) his arrest, or (b) his
voluntary submission. If the accused is a fugitive
from justice, the court cannot even proceed with a
trial in absentia, unless he has been previously
arraigned. Hence, the Sandiganbayan committed
grave abuse of discretion in acquitting both accused
for lack of jurisdiction over their persons. Clearly,
they could not validly file a demurrer to evidence.
(People vs. SB, et al., G.R. No. 137707-11,
December 17, 2004, Gutierrez, J).
When offense considered as committed in
relation to an office.
An offense is said to have been committed in
relation to the office if the offense is “intimately
connected” with the office of the offender and
perpetrated while he was in the performance of his
official functions. (Esteban vs. SB, et al., G.R. No.
146646-49, March 11, 2005, Gutierrez, J).
This is in accordance with the rule that the
factor that characterizes the charge is the actual
recital of the facts in the complaint or information.
(Esteban vs. SB, et al., G.R. No. 146646-49, March
11, 2005, Gutierrez, J; citing People vs. Mendoza,
G.R. No. 67610, July 31, 1989, 175 SCRA 743;
People vs. Cosare, 95 Phil. 657 (1954).
Requirement or allegation in the information in
order that an offense committed by a public
officer may fall within the jurisdiction of the
Sandiganbayan.
There must be an allegation of the intimate
relationship or connection between the offense
charged and the discharge of official functions,
otherwise, the SB has no jurisdiction. (Lacson vs.
Executive Secretary, G.R. no. 128095, January 20,
33
1999, 301 SCRA 298; People vs. Magallanes, 249
SCRA 212 (1995); Rep. vs. Asuncion, 231 SCRA
211).
RULE 119, SECTION 23 (RULE 33)
Demurrer to Evidence
Facts:Accused was charged with violation of RA
3019, Section 3(e) for having given undue
advantage to a certain Cresente Umbao, having
appointed him within the prohibitive period of one
year and in violation of the constitution. He pleaded
not guilty when arraigned. There was stipulation of
facts between the prosecution and the accused but
the latter failed and refused to sign it despite the
orders of the SB. The prosecutor rested the case
based on the stipulation of facts and waived the
presentation of additional evidence. The accused
filed a Motion for Leave to File a Demurrer to
Evidence which was denied, hence, he filed a
special civil action for certiorari alleging that the SB
committed a grave abuse of discretion amounting to
lack or excess of jurisdiction in denying the same. Is
the petition proper? Explain.
Held: No, he should have gone to trial. If the
accused disagrees with the denial of his motion for
leave to file demurrer to evidence, his remedy is not
to file a petition for certiorari but to proceed with the
presentation of his evidence and to appeal any
adverse decision that may be rendered by the trial
court. The last sentence of Section 23, Rule 119 of
the Rules of Court, provides that “the order denying
a motion for leave of court to file a demurrer to
evidence or the demurrer itself shall not be
reviewable by appeal or certiorari before judgment.”
(Rodolfo Valencia vs. SB, G.R. No. 165996, October
17, 2005).
When to file demurrer to evidence.
A demurrer to evidence can only be filed after the
prosecution has rested its case. Under the Rules,
after the prosecution rests its case, the court may
dismiss the action on the ground of insufficiency of
evidence upon demurrer to evidence filed by the
accused with or without leave of court. (Rule 119,
Section 23). Prior to the case being rested, the
motion is premature. (Valencia vs. SB, supra).
Admission of additional evidence after case is
rested is discretionary.
The admission of additional evidence is addressed
to the sound discretion of the trial court.
Considerable latitude is allowed and such discretion
will not be disturbed absent a finding that the
accused was denied due process. Even after the
case is rested the court can still allow the
presentation of additional evidence since the case is
still under the control and jurisdiction of the court
especially if the furtherance of justice would be
secured. (Hon. Vega vs. Hon. Panis, etc., et al., 202
Phil. 587; Valencia vs. SB, supra.).
Reopening of the case, does not violate the right
to due process.
Reopening of a case does not violate the due
process clause, because he will have the
opportunity to contest the evidence adduced against
him and to prove his defenses after the prosecution
concludes the presentation of its evidence.
Moreover, the order of the trial court granting the
reception of additional evidence for the prosecution
is not technically a “reopening” of the case inasmuch
as the latter had yet to formally rest its case. A
motion to reopen presupposes that either or both
parties have formally offered and closed their
evidence. If the Court sanctions the admission of
additional evidence after the case had been
submitted for resolution but before judgment, with
more reason therefore that the introduction of
additional evidence in the case he sustained
because the prosecution had not yet concluded the
presentation of its evidence. The State is also
entitled to due process in criminal cases, that is a
fair opportunity to prosecute and convict. (People vs.
Navarro, 63 SCRA 264; Valencia vs. SB, supra.).
State deprived of due process.
In the trial of a case, the prosecutor rested the
case without adducing evidence for the State and
without ensuring that the accused had signed the
stipulation of facts before it was submitted to the SB.
It resulted in the acquittal of the accused on
demurrer to evidence. The judgment may be
declared void on appeal because the State should
not be prejudiced and deprived of its right to
prosecute cases simply because of the ineptitude or
nonchalance of the Special Prosecutor. A contrary
ruling would result in a void proceedings.
In Merciales vs. CA, 429 Phil. 70 (2002), the
acquittal of the accused was nullified based on the
demurrer to evidence filed by the defense. It was
held that the prosecutor’s failure to present sufficient
evidence to convict the accused and the indifference
displayed by the trial court in not requiring the
prosecutor to present additional evidence resulted in
the denial of the State’s right to due process
warranting the reversal of the judgment of acquittal
on the ground of absence of jurisdiction. (Valencia
vs. SB, supra.).
34
 dismissed due to failure to prosecute. The
RULE 111 complainant filed a Petition for Certiorari questioning
Prejudicial Question the order of dismissal.
In brushing aside the petition, the SC
If the two cases are civil in nature, there is no Held: He has no more interest in the civil aspect of
prejudicial question. the case.
In a case, there was an action to annul a While it is settled that a private complainant,
certificate of sale while a petition for the issuance of in his or her own name, has the right or personality
a writ of possession is pending. It was contended to file through a private prosecutor a petition for
that there was a prejudicial question. The SC said, certiorari questioning the dismissal of a criminal
none, since the two cases are both civil in nature case (Flores vs. Joven, 394 SCRA 339 (2002), such
which can proceed separately and take their own right or personality is premised on his or her interest
direction independently of each other. in the civil aspect of the case. (Dela Rosa vs. CA,
A prejudicial question is one that arises in a 253 SCRA 449 (1996).
case the resolution of which is a logical antecedent The Motion to Withdraw as Private Prosecutor
of the issue involved therein, and the cognizance of having been granted on the ground that complainant
which pertains to another tribunal. It generally reserved his right to litigate the civil aspect of the
comes into play in a situation where a civil action case in a separate case. As such, he was not a
and a criminal action are both pending and there party aggrieved by the court’s dismissal of the
exists in the former an issue that must be criminal case (Cabral vs. Puno, et al., 162 Phil. 814
preemptively resolved before the criminal action may (1976) and has no standing to file the petition at bar.
proceed, because howsoever the issue raised in the (Padillo vs. Apas, et al., G.R. No. 156615, April 10,
civil action is resolved would be determinative juris 2006, citing Macias vs. Lim, 431 SCRA 20 (2004).
et de jure of the guilt or innocence of the accused in
the criminal case. x x x. (Pahang vs. Vestil, G.R. No. SPEEDY TRIAL
148595, July 12, 2004, 434 SCRA 139).
After the one – year period to redeem the Delays not deducted from the period under the
foreclosed properties has lapsed title to the Rule.
foreclosed properties had already been consolidated Facts:A criminal case was dismissed on the ground
under the name of the buyer. As the owner of the of denial of the right to speedy trial as one hundred
properties, respondent is entitled to its possession eleven (111) days have already lapsed from the time
as a matter of right. The issuance of a writ of the accused was arraigned up to the time the motion
possession over the properties by the trial court is to dismiss was filed. It was questioned invoking the
merely a ministerial function. As such, the trial court rule that certain periods of delay are excluded like
neither exercises its official discretion nor judgment. extraordinary remedies against interlocutory orders.
Any question regarding the validity of the mortgage There were motion for postponement which were
or its foreclosure cannot be a legal ground for unjustified, filed by the prosecution. But it was
refusing the issuance of a writ of possession. contended that there was no inordinate delay on the
Regardless of the pending suit for annulment of the part of the prosecution to justify dismissal of the
certificate of sale, respondent is entitled to a writ of cases based on violation of the right to speedy trial.
possession, without prejudice of course to the Is the contention correct? Explain.
eventual outcome of said case. (Sps. Yu vs. Phil. Held: The contention is not correct. Under the Rules,
Commercial International Bank, G.R. No. 147902, delay resulting from extraordinary remedies against
March 16, 2006, citing Idolor vs. CA, G.R. No. interlocutory orders must be read in harmony with
161028, January 31, 2005, 450 SCRA 396). Section 7, Rule 65 of the Rules of Court which
provides that the “petition [under Rule 65] shall not
Complainant who reserved right to prosecute interrupt the course of the principal case unless a
civil aspect has no right to question the temporary restraining order or a writ of preliminary
dismissal of the criminal case. injunction has been issued against the public
In a case, an information for estafa was filed respondent from further proceeding in the case”.
against the accused. There was a private prosecutor This was clearly spelled out by respondent Judge
but withdrew as the complainant was going to file a when, in addition to granting a 30-day continuance
separate action to prosecute the civil aspect of the in view of the manifestation of the prosecution that it
criminal case. It was granted. The criminal case was would file an appeal from the interlocutory order of
35
the trial court with a higher court, the trial court, in its
Order, gave warning that “in the event that the
prosecution shall not be able to get any restraining
order to stop the proceedings in this case, the
hearing shall proceed as scheduled.” Despite
warning, however, the Prosecutor did not appear for
the prosecution on the hearing set by the trial court
and the court only received a call from the secretary
of said Prosecutor that the latter had his tooth
extracted and would not be in a position to appear at
the hearing.
Speedy trial; violation.
Since the prosecution, by repeated motion for
postponement, caused the delay of the proceedings
from the time the information was filed on February
28, 1996 from which time the test of the violation of
the right to speedy trial is to be counted, the
dismissal of the case, on motion of the accused,
amounts to acquittal. (Padillo vs. Apas, et al., G.R.
No. 156615, April 10, 2006, citing People vs.
Tacneng, et al., 105 Phil. 1298).
EVIDENCE
Facts:Accused was convicted of the criminal of rape
of his daughter. He questioned the conviction due to
the inconsistencies between the testimony of the
complainant and the mother, whether she cried out
or not. Is this inconsistency sufficient to acquit the
accused? Explain.
Held: No, especially so that the victim was only
eight (8) years old when the rapes happened. A
child of her tender years cannot be expected to be
able to recount the details of her torment with
exactitude. In People vs. Villar, 379 Phil. 417 (2000)
it was held that it cannot impose the burden of
exactness in the victim’s recollection of her
harrowing experience more so because the victim
was an innocent and tender nine (9) – year old lass
when she was first raped. Citing People vs. Sagucio,
342 Phil. 863 (1997) it was likewise held that
errorless testimony cannot be expected especially
when a witness is recounting the details of a
harrowing experience. (People vs. Cabalquinto, G.R.
No. 167693, September 19, 2006).
Note: Persons who witness an event may perceive
it from different points of reference, hence they may
have different accounts of how the incident took
place. What is important is that their testimonies
reinforce each other on the essential facts and that
their versions corroborate and substantially coincide
with each other to make a consistent and coherent
whole. (People vs. Magbanua, G.R. No. 133004,
May 20, 2004, 428 SCRA 617). The fact therefore
that the statements of AAA and ABC differ on some
minor details does not in any way affect their
credibility or detract from the integrity and
truthfulness of their declarations. The variations in
their testimonies present a believable narration of
what actually happened, made more so precisely
because of their imperfections. (People vs. Ancheta,
G.R. No. 143935, June 4, 431 SCRA 42; People vs.
Cabalquinto, supra.).
ARBITRATION
Facts: Paragraph 7.4 of the Contract of the parties
mandates that should petitioner dispute any amount
of energy fees in the invoice and billings made by
respondent, the same “shall be resolved by
arbitration of three (3) persons, one (1) by mutual
choice, while the other two (2) to be each chosen by
the parties themselves.”
There was a disputed in the amount of energy
fees demanded by respondent. However,
respondent, without prior recourse to arbitration as
required in the Contract, filed directly with the trial
court its complaint, thus, it was contended that there
was a violation of the arbitration clause in the
Contract. Is the contention correct? Explain.
Held: Yes, in fact, it was made mandatory by the
parties. Since that agreement is binding between
them, they are expected to abide by it in good faith.
(LM Power Engineering Corp. vs. Capitol Industrial
Construction Groups, Inc., G.R. No. 141833, March
26, 2003, 399 SCRA 562, 571-572, citing Toyota
Motor Philippines Corp. vs. CA, 216 SCRA 236
(1992). And because it covers the dispute between
them in the present case, either of them may compel
the other to arbitrate. Thus, it is well within
petitioner’s right to demand recourse to arbitration.
The respondent cannot directly seek judicial
recourse by filing an action against petitioner simply
because both failed to settle their differences
amicably. Suffice it to state that there is nothing in
the Contract providing that the parties may dispense
with the arbitration clause. (Fiesta World Mall Corp.
vs. Linberg Phils. Inc., G.R. No. 152471, August 18,
2006).
Agreement on arbitration valid.
It should be noted that in this jurisdiction, arbitration
has been held valid and constitutional. Even before
the approval on June 19, 1953 of Republic Act No.
876 (The Arbitration Law), the Court has
countenanced the settlement of disputes through
arbitration (Puromines, Inc. vs. CA, G.R. No. 91288,
March 22, 1993, 220 SCRA 281-290). Republic Act
36
No. 876 was adopted to supplement the New Civil under Rule 65 of the Rules of Court on the ground
Code’s provisions on arbitration (Chung Fu that the Arbitration Committee acted without or in
Industries Phils., Inc. vs. CA, G.R. No. 92683, excess of its jurisdiction or with grave abuse of
February 25, 1992, 206 SCRA 545, 551). Its discretion amounting to lack or excess of jurisdiction.
potentials as one of the alternative dispute resolution Since this case involves acts or omissions of a quasi
methods that are now rightfully vaunted as “the – judicial agency, the petition should be filed in and
wave of the future” in international relations, is cognizable only by the Court of Appeals. (Rule 43,
recognized worldwide. To brush aside a contractual Secs. 1 & 3, Insular Savings Bank and FEBTC, G.R.
agreement calling for arbitration in case of No. 141818, June 22, 2006).
disagreement between the parties would therefore
be a step backward. (Fiesta World Mall Corp. vs. Nature of an arbitration award under the PCHC
Linberg Phils. Inc., G.R. No. 152471, August 18, Rules.
2006). As provided in the PCHC Rules, the findings of facts
of the decision or award rendered by the Arbitration
Contract provides that the parties, for Committee shall be final and conclusive upon all the
arbitration; effect if case is directly filed with the parties in said arbitration dispute. Under Article 2044
court. of the New Civil Code, the validity of any stipulation
If the case has already filed a complaint with the trial on the finality of the arbitrators’ award or decision is
court without prior recourse to arbitration, the proper recognized. However, where the conditions
procedure to enable an arbitration panel to resolve described in Articles 2038, 2039 and 2040, NCC,
the parties’ dispute pursuant to their Contract is for applicable to both compromises and arbitrations are
the trial court to stay the proceedings. After the obtaining, the arbitrators’ award may be annulled or
arbitration proceeding has been pursued and rescinded. (Chung Fu Industries (Phils.) Inc. vs. CA,
completed, then the trial court may confirm the 206 SCRA 545 (1992). Consequently, the decision
award made by the arbitration panel. (Fiesta World of the Arbitration Committee is subject to judicial
Mall Corp. vs. Linberg Phils. Inc., G.R. No. 152471, review. (Insular Savings Bank vs. FEBTC, G.R. No.
August 18, 2006; citing BF Corp. vs. CA, 288 SCRA 141818, June 22, 2006).
267 (1998)).
The Philippine Clearing House Corp. was A petition for review with the RTC from a denial
created to facilitate the clearing of checks of of a motion for reconsideration of an arbitration
member banks. Among these member banks exists award; not the appropriate remedy.
a compromissoire, or an arbitration agreement The proper recourse of petitioner from the denial of
embedded in their contract wherein they consent its motion for reconsideration by the Arbitration
that any future dispute or controversy between its Committee is to file either a motion to vacate the
PCHC participants involving any check would be arbitral award with the RTC, a petition for review
submitted to the Arbitration Committee for with the Court of Appeals under Rule 43 of the Rules
arbitration. Petitioner and respondent are members of Court, or a petition for certiorari under Rule 65 of
of PCHC, thus they underwent arbitration the Rules of Court. A petition for review with the
proceedings. RTC is not proper, when the same should have
been filed with the Court of Appeals under Rule 43
Remedies against an arbitration award of the Rules of Court. Thus, the RTC would dismiss
considering that the same is final and conclusive the petition for review for lack of jurisdiction but not
upon all the parties. on the ground that petitioner should have filed a
A party has several judicial remedies available at its separate case but on the necessity of filing the
disposal after the Arbitration Committee denied its correct petition in the proper court. It is immaterial
Motion for Reconsideration. It may petition the whether petitioner filed the petition for review as an
proper RTC to issue an order vacating the award on appeal of the arbitral award or whether it filed a
the grounds provided for under Section 24 of the separate case in the RTC, considering that the RTC
Arbitration Law. Petitioner likewise has the option to will only have jurisdiction over an arbitral award in
file a petition for review under Rule 43 of the Rules cases of motions to vacate the same. Otherwise, the
of Court with the Court of Appeals on questions of Court of Appeals retains jurisdiction in petitions for
fact, of law, or mixed questions of fact and law. (Sec. review or in petitions for certiorari. (Insular Savings
41, Alternative Dispute Resolution Act of 2004). Bank vs. FEBTC, G.R. 141818, June 22, 2006).
Lastly, petitioner may file a petition for certiorari
37

EVIDENCE
Marital Disqualification
Facts: Maximo and Esperanza Alvarez are married.
Maximo was charged with the crime of arson, having
set fire on the house of his sister – in – law. At the
trial, Esperanza testified against her husband,
hence, a motion to disqualify her was filed. It was
granted, thus, a petition for certiorari was filed
questioning the order of the lower court disallowing
the testimony on the ground of marital privilege. At
the time of the commission of offense, they were
already separated for six (6) months as the
relationship was already strained. Is the ruling
correct? Why?
Held: As a rule, no, because of the disqualification
by reason of marriage. Under the Rules, during the
marriage, neither the husband nor the wife may
testify for or against the other without the consent of
the affected spouse, except in a civil case by one
against the other, or in a criminal case for a crime
committed by one against the other or the latter’s
direct descendants or ascendants. (Rule 130, Sec.
22, Rules of Court; Alvarez vs. Ramirez, G.R. No.
143439, October 14, 2005, Gutierrez, J).
Reasons given for the rule.
The reasons given for the rule are:
1. There is identity of interests between
husband and wife;
2. If one were to testify for or against the other,
there is consequent danger of perjury;
3. The policy of the law is to guard the security
and confidences of private life, even at the
risk of an occasional failure of justice, and to
prevent domestic disunion and unhappiness;
and
4. Where there is want of domestic tranquility
there is danger of punishing one spouse
through the hostile testimony of the other.
(Alvarez vs. Ramirez, G.R. No. 143439,
October 14, 2005, Gutierrez, J).
Rule not absolute.
The above-cited rule is not absolute. Like all other
general rules, the marital disqualification rule has its
own exceptions, both in civil actions between the
spouses and in criminal cases for offenses
committed by one against the other. Like in the rule
itself, the exceptions are backed by sound reasons
which outweigh those in support of the general rule.
For instance, where the marital and domestic
relations are so strained that there is no more
harmony to be preserved nor peace and tranquility
which may be disturbed, the reason based upon
such harmony and tranquility fails. In such a case,
identity of interests disappears and the consequent
danger of perjury based on that identity is non –
existent. Likewise, in such a situation, the security
and confidences of private life, which the law aims at
protecting, will be nothing but ideals, which through
their absence, merely leave a void in the unhappy
home. (Alvarez vs. Ramirez, G.R. No. 143439,
October 14, 2005; citing People vs. Francisco, L –
568, July 16, 1947, 78 Phil. 694).
Relationship already strained; the spouse can
testify against the other.
If the relationship of spouses is already strained,
there is no longer any reason to apply the marital
disqualification rule. The offense of arson directly
impaired the conjugal relation between him and his
wife. His act eradicated all the major aspects of
marital life such as trust, confidence, respect and
love by which virtues the conjugal relationship
survives. The identity of their interest was no longer
existent. The security and confidences of private life
which the law aims to protect are nothing but ideals
which through their absence, merely left a void in the
unhappy home. (People vs. Castaneda, 271 SCRA
504).
In Ordoño vs. Daquigan, L – 39012, January
31, 1975, 62 SCRA 270 it was said that when an
offense directly attacks, or directly and vitally
impairs, the conjugal relation, it comes within the
exception to the statute that one shall not be a
witness against the other except in a criminal
prosecution for a crime committed by one against
the other.
Role of handwriting experts.
In De Jesus vs. CA, et al., G.R. No. 127857,
June 20, 2006, it was said that it is true that the
opinion of handwriting experts are not necessarily
binding upon the court, the expert’s function being to
place before the court data upon which the court can
form its own opinion. Handwriting experts are
usually helpful in the examination of forged
documents because of the technical procedure
involved in analyzing them. But resort to these
experts is not mandatory or indispensable to the
examination or the comparison of handwriting. A
finding of forgery does not depend entirely on the
testimonies of handwriting experts, because the
judge must conduct an independent examination of
the questioned signature in order to arrive at a
reasonable conclusion as to its authenticity. As held
38
in Estacio vs. Jaranilla, G.R. No. 149250, December
8, 2003, 417 SCRA 250, to wit:
“It bears stressing that the trial court may
validly determine forgery from its own independent
examination of the documentary evidence at hand.
This the trial court judge can do without resorting to
experts, especially when the question involved is
mere handwriting similarity or dissimilarity, which
can be determined by a visual comparison of
specimen of the questioned signatures with those of
currently existing ones. Section 22 of Rule 132 of
the Rules of Court explicitly authorizes the court, by
itself, to make a comparison of the disputed
handwriting with writings admitted or treated as
genuine by the party against whom the evidence is
offered, or proved to be genuine to the satisfied of
the judge.
Request for Admission
Effect if request for admission is not answered
or facts are denied.
A complaint was filed. The defendant filed an
answer denying liability. The plaintiff sent a request
for admission of a fact already denied. It was
contended that since there was no denial, the same
has been proved.
The SC held that the contention is not correct.
A party should not be compelled to admit matters of
fact already admitted by his pleading and concerning
which there is no issue (Sherr vs. East, 71 A2d, 752,
Terry 260, cited in 27 C.J.S. 91), nor should he be
required to make a second denial of those already
denied in his answer to the complaint. A request for
admission is not intended to merely reproduce or
reiterate the allegations of the requesting party’s
pleading but should set forth relevant evidentiary
matters of fact, or documents described in and
exhibited with the request, whose purpose is to
establish said party’s cause of action or defense.
Unless it serves that purpose, it is, “pointless,
useless” and “a mere redundancy”. (Reyes vs. RCPI
Employees Credit Union, Inc., G.R. No. 146535,
August 18, 2006 citing Po vs. CA, 164 SCRA 668
(1988).
RULE 130, Section 3
Best Evidence Rule
Basic purpose of the best evidence rule.
The best evidence rule is designed to guard against prove the loss or destruction thereof. Such fact must
incomplete or fraudulent proof and the introduction
of altered copies and the withholding of the originals. such loss. (Lee vs. People, et al., G.R. No. 159288,
But the modern justification for the rule has
expanded from the prevention of fraud to a
recognition that writings occupy a central position in
the law. The importance of the precise terms of
writings in the world of legal relations, the fallibility of
the human memory as reliable evidence of the
terms, and the hazards of inaccurate or incomplete
duplicate are the concerns addressed by the best
evidence rule. (Lee vs. People, et al., G.R. No.
159288, October 19, 2004).
Best evidence rule not applicable to proof of
collateral facts.
The best evidence rule does not apply to proof of
facts collateral to the issues such as the nature,
appearance or condition of physical objects or to
evidence relating to a matter which does not come
from the foundation of the cause of action or
defense; or when a party uses a document to prove
the existence of an independent fact, as to which the
writing is merely collated or incidental. (Lee vs.
People, et al., G.R. No. 159288, October 19, 2004).
Duties of an offeror of secondary evidence.
The offeror of secondary evidence is burdened to
prove the predicates thereof: (a) the loss or
destruction of the original without bad faith on the
part of the proponent/offeror which can be shown by
circumstantial evidence of routing practices of
destruction of documents; (b) the proponent must
prove by a fair preponderance of evidence as to
raise a reasonable inference of the loss or
destruction of the original copy; and (c) it must be
shown that a diligent and bona fide but unsuccessful
search has been made for the document in the
proper place or places. It has been held that where
the missing document is the foundation of the action,
more strictness in proof is required than where the
document is only collaterally involved. (Tan vs.
People, et al., G.R. No. 159288, October 19, 2004).
Certification of the custodian of a document that
was lost not sufficient for secondary evidence to
be admissible.
If the document is one in which other persons are
also interested, and which has been placed in the
hands of a custodian for safekeeping, the custodian
must be required to make a search and the
unfruitfulness of such search must be shown before
secondary evidence can be admitted. The certificate
of the custodian of the document is incompetent to
be proved by some person who has knowledge of
October 19, 2004).
39

Procedure in the proof of a private document as
authentic.
Rule 132, Section 20 of the Revised Rules of Court
provides the procedure on how the authenticity and
due execution of a private document which is offered
as authentic may be proved:
Proof of private document. – Before any
private document offered as authentic is received in
evidence, its due execution and authenticity must be
prove either:
a. By anyone who saw the document
executed or written;
b. By evidence of the genuineness of
the signature or handwriting of the
maker.
Any other private document need only be identified
as that which it is claimed to be.
The testimony of an eyewitness as to the
execution of a private document must be positive.
He must state that the document was actually
executed by the person whose name is subscribed
thereto. The admission of that party against whom
the document is offered, of the authenticity and due
execution thereof, is admissible in evidence to prove
the existence, authenticity and due execution of
such document. (Lee vs. People, et al., G.R. No.
159288, October 19, 2004).
EVIDENCE
Guidelines in appreciating age as an element of
a crime or as a qualifying circumstance.
In a prosecution for rape, state the guidelines
that should be followed in appreciating the age of a
victim as an element of the crime or as a qualifying
circumstance.
Answer: They are the following:
1. The best evidence to prove the age of the
offended party is an original or certified
true copy of the certificate of live birth of
such party.
2. In the absence of a certificate of live birth,
similar authentic documents such as
baptismal certificate and school records
which show the date of birth of the victim
would suffice to prove age.
3. If the certificate of live birth or authentic
document is shown to have been lost or
destroyed or otherwise unavailable, the
testimony, if clear and credible, of the
victim’s mother or a member of the family
either by affinity or consanguinity who is
qualified to testify on matters respecting
pedigree such as the exact age or date of
birth of the offended party pursuant to
Section 40, Rule 130 of the Rules on
Evidence shall be sufficient under the
following circumstances:
a. If the victim is alleged to be below
three (3) years of age and what is
sought to be proved is that she is
less than seven (7) years old;
b. If the victim is alleged to be below
(7) years of age and what is sought
to be proved is that she is less than
twelve (12) years old;
c. If the victim is alleged to be below
twelve (12) years of age and what
is sought to be proved is that she is
less than eighteen (18) years old.
4. In the absence of a certificate of live birth,
authentic document, or the testimony of
the victim’s mother or relatives concerning
the victim’s age, the complainant’s
testimony will suffice provided that it is
expressly and clearly admitted by the
accused.
5. It is the prosecution that has the burden of
proving the age of the offended party. The
failure of the accused to object to the
testimonial evidence regarding age shall
not be taken against him. (People vs.
Pruna, 439 Phil. 440 (2002).
To paraphrase Pruna, the best evidence to prove
the age of a person is the original birth certificate or
certified true copy thereof; in their absence, similar
authentic documents may be presented such as
baptismal certificates and school records. If the
original or certified true copy of the birth certificate is
not available, credible testimonies of the victim’s
mother or a member of the family may be sufficient
under certain circumstances. In the event that both
the birth certificate or other authentic documents and
the testimonies of the victim’s mother or other
qualified relative are unavailable, the testimony of
the victim may be admitted in evidence provided that
it is expressly and clearly admitted by the accused.
(People vs. Cayabyab, G.R. No. 167147, August 3,
2005).
Effect of no objection to photocopy of birth
certificate.
In a prosecution for rape, the court found the
victim to be six (6) years old on the basis of the
photocopy of her birth certificate. It was not objected
to when it was presented. State the effect of the
failure to object. Explain.
40
Held: Since the photocopy of her birth certificate Facts:One of the elements that should be proven in
was not objected to when it was presented, it is a prosecution for violation of BP 22 is the knowledge
deemed admitted “as to the fact of birth”. of the maker, issuer, drawer that at the time of issue
While in another case, People vs. Mantis, he does not have sufficient funds in or credit with the
G.R. No. 150613-14, June 29, 2004, 433 SCRA 236, drawee bank for the payment of the check in full
it was held that a mere photocopy of the birth upon its presentment. State the meaning of the
certificate, in the absence of any showing that the element. Explain.
original copy was lost or destroyed, or was Held: Knowledge involves a state of mind which is
unavailable, without the fault of the prosecution, difficult to establish, thus the statute itself creates a
does not prove the victim’s minority, for said prima facie presumption that the drawer had
photocopy does not qualify as competent evidence knowledge of the insufficiency of his funds in or
for that purpose, the rule, however is not absolute. credit with the bank at the time of the issuance and
There are other exceptions to the “best on the check’s presentment if he fails to pay the
evidence rule” as expressly provided under Section amount within five (5) days from notice of dishonor.
3, Rule 130 of the Rules of Court. For this presumption to arise, the prosecution
Without doubt, a certificate of live birth is a
must prove the following: (a) the check is presented
public record in the custody of the local civil registrar
within ninety (90) days from the date of the check;
who is a public officer. Clearly, therefore, the (b) the drawer or maker of the check receives notice
presentation of the photocopy of the birth certificate
that such check has not been paid by the drawee;
of the victim is admissible as secondary evidence to and (c) the drawer or maker of the check fails to pay
prove its contents. Production of the original may bethe holder of the check the amount due thereon, or
dispensed with, in the trial court’s discretion, make arrangements for payment in full within five (5)
whenever the opponent does not bona fide dispute banking days after receiving notice that such check
the contents of the document and no other useful has not been paid by the drawee. In other words, the
purpose will be served by requiring production. presumption is brought into existence only after it is
In the case at bar, the defense did not dispute
proved that the issuer had received a notice of
the contents of the photocopied birth certificate; indishonor and that within five days from receipt
fact it admitted the same. Having failed to raise a thereof, he failed to pay the amount of the check or
valid and timely objection against the presentation of
to make arrangements for its payment. The
this secondary evidence the same became a presumption or prima facie evidence as provided in
primary evidence, and deemed admitted and the this section cannot arise, if such notice of
other party is bound thereby. (People vs. Cayabyab, nonpayment by the drawee bank is not sent to the
G.R. No. 167147, August 3, 2005; citing People vs. maker or drawer, or if there is no proof as to when
Boras, 384 SCRA 638 (2000)). such notice was received by the drawer, since there
would simply be no way of reckoning the crucial 5-
BURDEN OF PROOF day period. Furthermore, the notice of dishonor must
be in writing; a verbal notice is not enough. (Tan vs.
Effect if in the prosecution for violation of BP 22, People, G.R. No. 145006, August 30, 2006; citing
there is failure to present evidence that a Ongson vs. People, 466 SCRA 456).
demand letter has been sent and received by the
accused. RULE 131, Section 2
The failure to present such evidence is fatal to the
prosecution as the second element that the accused Lessee may not contest the title of the lessor;
had knowledge of the insufficiency of funds has not reason.
been established. Notice of dishonor received by the The lessee may not contest the title of the lessor,
maker or drawer of the check is indispensable because having admitted the existence of a lessor –
before a conviction can ensue. (Dico vs. CA, G.R. lessee relationship, he is barred from the lessor’s
No. 141669, February 28, 2005, 452 SCRA 441). title of better right of possession as a lessor. Under
The reason for the rule is that the guilt of the Rule 131, Section 2, the tenant is not permitted to
accused must be proved beyond reasonable doubt, deny the title of his landlord at the time of the
otherwise, he is presumed innocent. commencement of the relationship of landlord and
tenant between them.
EVIDENCE As long as the lessor – lessee relationship
between the lessee – lessor exists the former, as
41
lessees, cannot by any proof, however strong, documentary evidence to be considered by the
overturn the conclusive presumption that the lessor court, it must have been presented during trial and
has valid title to or better right of possession to the formally offered. (Pigao vs. Rabanillo, G.R. No.
subject leased premises than they have. 150172, May 2, 2006).
Any ruling which the court may render on this
issue will, at the very least, be an obiter dictum, if RULE ON CUSTODY OF MINORS
not outrightly ultra vires. (Datalift Movers, Inc. and/or
Jaime Aquino vs. Belgravia Realty & Dev. Corp., et Q- Where is the petition to be filed?
al., G.R. No. 144268, August 30, 2006). Answer: The petition for custody of minors shall be
filed with the Family Court of the province or city
Medical certificate not necessary in prosecution where the petitioner resides or where the minor may
for rape. be found. (Sec. 3, A.M. No. 03-04-04-SC, Proposed
A medical certificate is not necessary to prove Rule on Custody of Minors and Writ of Habeas
the commission of rape and a medical examination Corpus in Relation to Custody of Minors).
of the victim is not indispensable in prosecution for
rape. (People vs. Balbarona, G.R. No. 146854, April Q - What are some rules on the petition?
28, 2004, 428 SCRA 127). Medical evidence is not Answer:
indispensable; an accused can still be convicted of 1. A verified petition for the rightful custody
rape on the basis of the sole testimony of the private of a minor may be filed by any person
complainant. (People vs. Cabalse, 436 SCRA 629). claiming such right. The party against
The testimony of the victim is enough to prove that whom it may be filed shall be designated
rape has been consummated. as the respondent. (Sec. 2, A.M. No. 03-
The gravamen of the offense of rape is sexual 04-04-SC, Proposed Rule on Custody of
congress with a woman by force and without Minors and Writ of Habeas Corpus in
consent. If the woman is under 12 years of age, Relation to Custody of Minors).
proof of force is not an element of statutory rape, but 2. The verified petition shall allege the
the absence of a free consent is presumed. following:
Conviction will therefore lie, provided sexual a. The personal circumstances of the
intercourse is proven. But if the woman is 12 years petition and of the respondent;
of age or over at the time she was violated, sexual b. The name, age and present
intercourse must be proven and also that it was whereabouts of the minor and his
done through force, violence, intimidation or threat. or her relationship to the petitioner
(People vs. Arango, G.R. No. 168442, August 30, and the respondent;
2006). c. The material operative facts
constituting deprivation of custody;
OFFER OF EVIDENCE and
d. Such other matter which are
Effect if evidence is not objected to when it is relevant to the custody of the
presented. minor.
Objection to the admissibility of evidence, if not The verified petition shall be accompanied by a
made at the time such evidence is offered, shall be certificate against forum shopping, which the
deemed waived. (People vs. Eufermo, G.R. No. petitioner must sign personally. (Sec. 4, A.M. No.
148682-85, November 30, 2005, 476 SCRA 515). 03-04-04-SC, Proposed Rule on Custody of Minors
However, in all cases where said rule had been and Writ of Habeas Corpus in Relation to Custody of
applied, the assailed testimonial or object evidence Minors).
had been duly presented during the course of the 3. If the court is satisfied that the petition is
trial. (Tan vs. People, G.R. No. 145006, August 30, sufficient in form and substance, it shall
2006). direct the clerk of court to issue summons,
In this case, the very first time said demand which shall be served together with a copy
letter was ever mentioned or appeared in the record of the petition personally on the
was in the formal offer of evidence. Such respondent. (Sec. 5, A.M. No. 03-04-04-
circumstance, to say the least, is tainted with SC, Proposed Rule on Custody of Minors
irregularity because such document was never and Writ of Habeas Corpus in Relation to
presented or identified in any of the hearings. For Custody of Minors).
42

Q- Is a motion to dismiss allowed?
Answer: No, as a rule. A motion to dismiss the
petition is not allowed. Any other ground that might
warrant the dismissal of the petition may be raised
as an affirmative defense in the answer.
However, it shall be allowed if on the ground
of lack of jurisdiction over the subject matter or over
the parties. (Sec. 6, A.M. No. 03-04-04-SC,
Proposed Rule on Custody of Minors and Writ of
Habeas Corpus in Relation to Custody of Minors).
Q- When should an answer be filed?
Answer: The respondent shall file an answer to the
petition, personally verified by him, within five days
after service of summons and a copy of the petition.
(Sec. 7, A.M. No. 03-04-04-SC, Proposed Rule on
Custody of Minors and Writ of Habeas Corpus in
Relation to Custody of Minors).
Q- What are to be done after an answer is filed?
Answer:
1. Upon the filing of the verified answer or the
expiration of the period to file it, the court may
order a social worker to make a case study of
the minor and the parties and to submit a
report and recommendation to the court at
least three days before the scheduled pre –
trial. (Sec. 8, A.M. No. 03-04-04-SC,
Proposed Rule on Custody of Minors and Writ
of Habeas Corpus in Relation to Custody of
Minors).
2. Within fifteen days after the filing of the
answer or the expiration of the period to file
answer, the court shall issue an order: 1)
fixing a date for the pre – trial conference; (2)
directing the parties to file and serve their
respective pre – trial briefs in such manner as
shall ensure receipt thereof by the adverse
party at least three days before the date of
the pre – trial; and (3) requiring the
respondent to present the minor before the
court. (Sec. 9, A.M. No. 03-04-04-SC,
Proposed Rule on Custody of Minors and Writ
of Habeas Corpus in Relation to Custody of
Minors).
Q- What is the nature of pre – trial in the rule and the parties. If the issue is not settled through
what are the contents of the pre – trial brief?
Answer: The pre – trial is mandatory.
a) A statement of the willingness of the
parties to enter into agreements that may the petition. (Sec. 12, A.M. No. 03-04-04-SC,
be allowed by law, indicating its terms;
b) A concise statement of their respective
claims together with the applicable laws
and authorities;
c) Admitted facts and proposed stipulations
of facts;
d) The disputed factual and legal issues;
e) All the evidence to be presented, briefly
stating or describing its nature and
purpose;
f) The number and names of the witnesses
and their respective affidavits which shall
serve as the affiant’s testimony on direct
examination; and
g) Such other matters as the court may
require to be included in the pre – trial
brief.
Failure to file the brief or to comply with its required
contents shall have the same effect as failure to
appear at the pre – trial. (Sec. 10, A.M. No. 03-04-
04-SC, Proposed Rule on Custody of Minors and
Writ of Habeas Corpus in Relation to Custody of
Minors).
Q- What are the effects of failure to appear at the
pre – trial?
Answer:
(a) If the petitioner fails to appear personally at
the pre – trial, the case shall be dismissed,
unless his counsel or a duly authorized
representative appears in court and proves a
valid excuse for the non – appearance of the
petitioner.
(b) If the respondent has filed his answer but
fails to appear at the pre – trial, the petitioner
shall be allowed to present his evidence ex
parte. The court shall then render judgment
on the basis of the pleadings and the
evidence thus presented. (Sec. 11, A.M. No.
03-04-04-SC, Proposed Rule on Custody of
Minors and Writ of Habeas Corpus in
Relation to Custody of Minors).
Q- What may be done at the pre – trial?
Answer: At the pre – trial, the parties may agree on
the custody of the minor. If the parties fail to agree,
the court may refer the matter to a mediator who
shall have five days to effect an agreement between
mediation, the court shall proceed with the pre – trial
conference, on which occasion it shall consider such
other matters as may aid in the prompt disposition of
Proposed Rule on Custody of Minors and Writ of
Habeas Corpus in Relation to Custody of Minors).
43

Q- What are the rules on the provisional order
awarding custody?
Answer: After an answer has been filed or after
expiration of the period to file it, the court may issue
a provisional order awarding custody of the minor.
As far as practicable, the following order of
preference shall be observed in the award of
custody:
a) Both parents jointly;
b) Either parent, taking into account all relevant
considerations, especially the choice of the
minor over seven years of age and of
sufficient discernment, unless the parent
chosen is unfit;
c) The grandparent, or if there are several
grandparents, the grandparent chosen by the
minor over seven years of age and of
sufficient discernment, unless the
grandparent chosen is unfit or disqualified;
d) The eldest brother or sister over twenty – one
years of age, unless the former is unfit or
disqualified; or
e) Any other person or institution the court may
deem suitable to provide proper care and
guidance for the minor. (Sec. 13, A.M. No.
03-04-04-SC, Proposed Rule on Custody of
Minors and Writ of Habeas Corpus in Relation
to Custody of Minors).
Q- What are the factors to consider in
determining custody?
Answer: In awarding custody, the court shall
consider the best interest of the minor and shall give
paramount consideration to his material and moral
welfare. The court shall also consider the following:
a) Any extrajudicial agreement which the parties
may have bound themselves to comply with
respecting the rights of the minor to maintain
direct contact with the non custodial parent
on a regular basis, except when there is an
existing threat or danger of physical, mental,
sexual or emotional violence which
endangers the safety and best interests of
the minor;
b) The desire and ability of one parent to foster
an open and loving relationship between the
minor and the other parent;
c) The health, safety and welfare of the minor;
d) Any history of child or spousal abuse by the
person seeking custody or who has had any
filial relationship with the minor, including
anyone courting the parent;
e) The nature and frequency of contact with
both parents;
f) Habitual use of alcohol, dangerous drugs or
regulated substances;
g) Marital misconduct;
h) The most suitable physical, emotional,
spiritual, psychological and educational
environment for the holistic development and
growth of the minor; and
i) The preference of the minor over seven years
of age and of sufficient discernment, unless
the parent chosen is unfit. (Sec. 14, A.M. No.
03-04-04-SC, Proposed Rule on Custody of
Minors and Writ of Habeas Corpus in
Relation to Custody of Minors).
Q- What is meant by the best interest of the
child?
Answer: The best interests of the minor refer to the
totality of the circumstances and conditions as are
most congenial to the survival, protection, and
feelings of security of the minor encouraging to his
physical, psychological and emotional development.
It also means the lest detrimental available
alternative for safeguarding the growth and
development of the minor. (Sec. 14, A.M. No. 03-04-
04-SC, Proposed Rule on Custody of Minors and
Writ of Habeas Corpus in Relation to Custody of
Minors).
Q- When may temporary visitation rights be
awarded?
Answer: The court shall provide in its order
awarding provisional custody appropriate visitation
rights to the non – custodial parent or parents,
unless the court finds said parent or parents unfit or
disqualified.
The temporary custodian shall give the court
and non custodial parent or parent at least five days’
notice of any plan to change the residence of the
minor or take him out of his residence for more than
three days provided it does not prejudice the
visitation rights of the non – custodial parent or
parents. (Sec. 15, A.M. No. 03-04-04-SC, Proposed
Rule on Custody of Minors and Writ of Habeas
Corpus in Relation to Custody of Minors).
Q- A is a minor child subject of a custody battle
between X and Z. X sought to bring him to Bangkok
for a vacation. May this be allowed?
Answer: No. The minor child subject of the petition
shall not be brought out of the country without prior
order from the court while the petition is pending.
(Sec. 16, A.M. No. 03-04-04-SC, Proposed Rule on
44
Custody of Minors and Writ of Habeas Corpus in
Relation to Custody of Minors). Q- What is the order of preference in the order of
awarding the custody of a child?
Q- What is the procedure for the issuance of a Answer: The parents or either of them shall first be
hold departure order? considered. If it appears that both parties are unfit to
Answer: The court, motu proprio or upon application have the care and custody of the minor, the court
under oath, may issue ex parte a hold departure may designate either the paternal or maternal
order, addressed to the Bureau of Immigration and grandparent of the minor, or his eldest brother or
Deportation, directing it not to allow the departure of sister, or any reputable person to take charge of
the minor from the Philippines without the such minor, or commit him to any suitable home for
permission of the court. (Sec. 16, A.M. No. 03-04- children. (Sec. 18, A.M. No. 03-04-04-SC, Proposed
04-SC, Proposed Rule on Custody of Minors and Rule on Custody of Minors and Writ of Habeas
Writ of Habeas Corpus in Relation to Custody of Corpus in Relation to Custody of Minors).
Minors).
Q- What may be contained in the judgment?
Q- When may a protection order be issued? Answer: In its judgment, the court may order either
Answer: The court may issue a Protection Order or both parents to give an amount necessary for the
requiring any person: support, maintenance and education of the minor,
a) To stay away from the home, school, irrespective of who may be its custodian. In
business or place of employment of the determining the amount of support, the court may
minor, other parent or any other party, or from consider the following factors: (1) the financial
any other specific place designated by the resources of the custodial and non – custodial
court; parent and those of the minor; (2) the physical and
b) To cease and desist from harassing, emotional health, special needs, and aptitude of the
intimidating, or threatening such minor or minor; (3) the standard of living the minor has been
other parent or any other person to whom accustomed to; and (4) the non – monetary
custody of the minor is awarded; contributions that the parents would make toward
c) To refrain from acts of commission or the care and well – being of the minor.
omission that create an unreasonable risk to The court may also issue any order that is just
the health, safety, or welfare of the minor; and reasonable permitting the parent who is
d) To permit a parent, or a party entitled to deprived of the care and custody of the minor to visit
visitation by a court order or a separation or have temporary custody. (Sec. 18, A.M. No. 03-
agreement, to visit the minor at stated 04-04-SC, Proposed Rule on Custody of Minors and
periods; Writ of Habeas Corpus in Relation to Custody of
e) To permit a designated party to enter the Minors).
residence during specified period of time in
order to take personal belongings not Q- Only when shall an appeal be allowed as an
contested in a proceeding pending with the act?
Family Court; and Answer: No appeal from the decision shall be
f) To comply with such other orders as are allowed unless the appellant has filed a motion for
necessary for the protection of the minor. reconsideration or new trial within fifteen days from
(Sec. 17, A.M. No. 03-04-04-SC, Proposed notice of judgment. (Sec. 19, A.M. No. 03-04-04-SC,
Rule on Custody of Minors and Writ of Proposed Rule on Custody of Minors and Writ of
Habeas Corpus in Relation to Custody of Habeas Corpus in Relation to Custody of Minors).
Minors).
Q- Within what period may appeal be filed?
Q- What should be the consideration of the court Answer: An aggrieved party may appeal from the
in awarding the custody of the minor? decision by filing a Notice of Appeal within fifteen
Answer: After trial, the court shall render judgment days from notice of the denial of the motion for
awarding the custody of the minor to the proper reconsideration or new trial and serving a copy
party considering the best interests of the minor. thereof on the adverse parties. (Sec. 19, A.M. No.
(Sec. 18, A.M. No. 03-04-04-SC, Proposed Rule on 03-04-04-SC, Proposed Rule on Custody of Minors
Custody of Minors and Writ of Habeas Corpus in and Writ of Habeas Corpus in Relation to Custody of
Relation to Custody of Minors). Minors).
45
 members and, if so granted, the writ shall be
PETITION FOR WRIT OF HABEAS CORPUS IN enforceable anywhere in the Philippines. The writ
THE CUSTODY OF MINORS may be made returnable to a Family Court or to any
regular court within the region where the petitioner
Q- Where may the writ be filed? resides or where the minor may be found for hearing
Answer: A verified petition for a writ of habeas and decision on the merits.
corpus involving custody of minors shall be filed with Upon the return of the writ, the court shall
the Family Court. The writ shall be enforceable decide the issue on custody of minors. The appellate
within its judicial region to which the Family Court court, or the member thereof, issuing the writ shall
belongs. be furnished a copy of the decision. (Sec. 20, A.M.
However, the petition may be filed with the No. 03-04-04-SC, Proposed Rule on Custody of
regular court in the absence of the presiding judge of Minors and Writ of Habeas Corpus in Relation to
the Family Court, provided, however, that the regular Custody of Minors).
court shall refer the case to the Family Court as
soon as its presiding judge returns to duty. Q- What is the rule on the proceedings?
The petition may also be filed with the Answer: The hearings on custody of minors may, at
appropriate regular courts in places where there are the discretion of the court, be closed to the public
no Family Courts. and the records of the case shall not be released to
The writ issued by the Family Court or the non – parties without its approval. (Sec. 21, A.M. No.
regular court shall be enforceable in the judicial 03-04-04-SC, Proposed Rule on Custody of Minors
region where they belong. and Writ of Habeas Corpus in Relation to Custody of
The petition may likewise be filed with Minors).
Supreme Court, Court of Appeals, or with any of its

46