2AA NOTES IN CIVIL PROCEDURE When is a case ready for trial?

A.Y. 2014-2015 A case is ready for trial when there is already a

joinder of issues and, so that means that the last
Rule 30-71 pleading has already been submitted to the court
and then the court determines that there is a
genuine issue of fact that needs to be resolved.
RULE 30 Okay, now, under section 3 of rule 30. I want you
to go over sec.3 of rule 30. Postponement of a trial
So tapos na tayo sa commencement of an action, on the ground of absence of evidence.
pre-trial, trial.
What are the requisites wherein there is a valid
Now, what is a trial? postponement of trial based on the ground of
A trial is a judicial proceeding wherein the court absence of evidence based on section 3?
investigates and determines the controversies in a First there must be a motion for the
case. It is called the reception of evidence, on both postponement, and there must have been an
sides and based on those evidence the court will affidavit or a sworn statement showing the
render a decision based on facts and the law. materiality or relevancy of the evidence and that
such evidence could not be produced despite due
So if you would notice, trial involves investigation, diligence
determination of facts and presentation of
evidence. Those are the stages that comprise a So under sec. 3 we have a situation where, for
trial. example, today is the scheduled presentation of
the evidence, however, ung ebidensya na gustong
Is hearing the same as trial? ipresenta ng witness ng plaintiff, hindi available,
They are used interchangeably but there are walang ebidensya kasi hindi niya na-obtain.
differences. Like number one in trial it is called
reception of evidence, but in hearing it involves a So under sec.3, the trial may be postponed on
broader scope. certain conditions. But sec.3 has already been
modified by the Judicial Affidavit Rule which was
So which is broader a hearing or trial? effective January 1, 2013.
Hearing
Under the judicial affidavit rule, the parties shall
So a hearing pertains to the stage of pre-trial, file to the court and serve on the adverse party
trial, and trial wherein you said there is reception personally or by licensed courier not later than 5
of evidence so hearing is broader than trial. days before pre-trial or the schedules hearing,
first the judicial affidavits of their witnesses
When is trial necessary? which shall take the place of the witnesses direct
When there is a genuine issue submitted before testimonies and attached to the judicial affidavits
the court. are the parties’ documentary or object evidence.

What issue would need trial? Is it factual or legal So under the judicial affidavit rule, 5 days before
issue? pre-trial, kung 10 ang witnesses mo, you should
Factual. Because there is investigation and submit the judicial affidavits of your 10 witnesses
presentation of evidence. So factual issue would and attached to those affidavits are the evidence,
entail presentation of evidence. So when the issue documentary or object which will be identified by
is factual there is a need to conduct trial because the witnesses during the scheduled trial.
when the issue is mere legal there is no need to
present evidence. What the court would do is to So ngayon halimbawa, it is my turn to present
resolve based on applicable law, rules, regulations evidence and my witness is Mr. Cruz, dapat nung
or jurisprudence. nag pre-trial meron nang judicial affidavit at ung
mga ebidensya na i-aaydentify niya ay naka-
attach na sa judicial affidavit.

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So pag nag-hearing today, there is no more reason denied the motion to postpone. Hindi lahat ng
to postpone because of absence of evidence kasi illness pwede, well kung sore eyes, or na-stroke,
kailangan yun naka-attach na sa judicial or high blood, mahirap ung court room syempre
affidavit. That is what we do right now kaya baka tumaas ung BP mamatay, so delikado yun.
mabilis kami mag-rule sa civil cases, magresolve So it must be a valid, should be a valid, the non
ng civil cases. attendance should be excusable.

Okay, halimbawa, what is the effect if the parties Siguro kung pinutol ung paa, saka ung bunot sa
fail to submit the judicial affidavit? ngipin, paano naman makakapagsalita. Syempre
Hindi ako nag-file ng judicial affidavit ni Mr. Cruz masakit ang ngipin mo, lahat yan , masakit na.
at siya ay listed as my witness sa pre-trial, hindi sore eyes, I really. Kasi lahat kami magkakaron
ko siya pwede i-presenta. Ung mga ebidenysa ng sore eyes.
niya, hindi ko na rin pwedeng i-presenta. I am
deemed to have waived his presentation and I am Under section 5, this confirms the importance and
deemed to have waived the presentation of the significance of a pre-trial. Why?
evidence that he is about to identify. Mam because the issues that will be discussed
and that will be taken upon by the court will only
So under sec.3 there is no reason to postpone for be the ones taken up in the pre-trial.
absence of evidence, unless, under exceptional
circumstances. Because the court should not So, only issues, so trial shall be limited to the
admit as evidence documents or objects which are issues set forth in the pre-trial only. Sabi ko nga,
not attached to the judicial affidavit. So yun ung the pre-trial shall control the court proceedings. If
tatandaan niyo. No excuse na, your honor the the parties would present evidence which are
witness ir not around or the documents he is irrelevant or immaterial to the issues then it
about to present, he failed to bring. Hindi na should not be allowed.
pwede kasi dapat naka-attach na yan.
The order of trial is, who should present first
Can there be a postponement on the ground of evidence?
illness of a party or a lawyer? It is the plaintiff who produce evidence first.
Yes. There can be a postponement but there must
be a motion to that effect and there must also be So plaintiff, halimbawa, ikaw ung plaintiff 10 ung
an affidavit or a certification showing that the testigo mo, tatapusin mo lahat yun, with the
appearance of that party is indispensable and that judicial affidavits and the documentary and object
the nature and character of his illness is evidence and after that you will rest your case and
excusable. make a formal offer of evidence. So lahat yung
mga ebidensya, ifoformal offer mo, because
Okay, and it is a practice in court that a party evidence that is not formally offered cannot be
absent due to an illness should submit a notarized admitted and considered by the court although it
medical certificate I do not accept med cert that is is identified. Kasi class pag nagpaidentify ka ng
not notarized. Ang daling makakuha ng med cert ebidensya, it doesn’t mean iooffer mo na yun, kasi
diba? Kaibigan niyo doctor, pahingi nga ng pina-idenitfy mo yun pala hindi mo naman
medcert. So it should be notarized. kailangan or unfavorable to you, wag mong i-offer.

Is postponement a matter of right? That if there is So after the plaintiff has rested his case. Ano ba
a motion to postpone on the ground of illness the yung rest?
court should automatically grant it? Meaning wala ka nang ibang ippresent na
No mam, it is on the sound discretion of the court. evidence and you will formally offer your evidence.

May experience ako notarized med cert, hindi After that, who would be next?
maka-attend ung plaintiff who will be presented It would be the turn of the defendant to present
as witness, ang nakalagay sa med cert, my evidence
ingrown sabi ko, ako nga pumapasok na may So ung defendant if he has 5 witnesses and then
ingrown, ang sinusuot ko nalang open shoes, so I rest his case, formal offer of evidence.

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And after that, what happens? On what grounds?
After that mam, if there is third party defendant It may be suspended when the parties would like
he may also produce his evidence to enter into a compromise

So ung third party defendant… by the way, yung Eto kasi especially when we discussed JDR, diba
defendant, kung nag-file siya ng third party nagtatrial na, nagppresent na ng ebidensya ang
complaint, magpipresent siya ng evidence against plaintiff nagmove ngayon ung defendant. Your
the plaintiff for his defense. He will present his honor move to suspend the proceedings because
evidence against third party defendant. Sabay there is an on going settlement among the parties,
sabay na yun para hindi paulit ulit na babalik, ok, eh papayagan yang korte kasi that is an ADR
so third party defendant and so on, kung may para hindi na humaba ang trial. But there must
cross claim, ung cross claimant. be a sincere and valid intent to enter a
compromise not merely to delay the case so
Now, after that, can there be presentation of especially if sabi nung isang party, your honor, we
rebuttal evidence? would like to have a mid-trial JDR, the court will
Yes mam. The parties may be allowed to present have to accommodate that for purposes of entering
just rebutting evidence and not any evidence. into a settlement and eventually enforcing or
entering into an agreement.
Halimbawa, during a cross examination or during
the presentation of witnesses by the defendant, Now who must receive evidence during trial?
sabi nung plaintiff may irerebut siya, gusto niya It must be received personally by the judge who is
icontrovert ung mga pinresent na evidence ng trying the case
defendant, but that is discretionary upon the
court. Rebuttal evidence. So pwede bang halimbawa absent ako, sasabihin
ko dun sa aking branch clerk of court, naka-leave
It is not only the plaintiff who may present, also ako, may naka-set tayong hearing ikaw na muna
the defendant may present rebuttal evidence. And ang umupo at pakinggan mo ung ebidensya?
there could be sur-rebuttal, ako I allow, kung The reception of evidence can be delegated to the
merong motion for rebuttal I only allow one branch clerk of court if it is ex parte.
setting kung hindi ka nakapag-presenta on one
setting, lahat ng ebidensya mo on rebuttal will be When can there be an ex parte presentation of
already waived. evidence?
When there is a declaration of default and when
My position is you should present everything there is a written agreement by the parties
during your evidence in chief, same is true with
the defendant, under such such circumstances So it is the judge who must receive evidence,
lang ako nagaallow ng rebuttal but it is testimonial, kailangan ako ang makinig dun in
discretionary upon the court. open court and documentary evidence, it should
be the judge personally.
So itatanong ko, ano ba ung nature ng evidnce na
iipepresenta mo on rebuttal. Sasabihin your There could only be delegation of reception of
honor, kasi eto po, yung sinabi po ng defendant na evidence when there was a declaration of default
ganyan na invalid yung aming contract, oh? and presentation will be made by the plaintiff ex
Irerebut mo pa ba yun eh nagpresent ka na nga parte, so it will be delegated to the branch clerk of
ng evidence on the validity of the contract, court.
irerebut mo pa ba yun eh you already cross
examined the defendant and during cross Halimbawa yung branch clerk of court ko ay hindi
examination, you already presented evidence? So siya lawyer, bachelor of laws lang or OIC lang
in that case I do not allow rebuttal. siya. Can the reception of evidence be delegated
upon a clerk of court who is not a lawyer?
Now, may an action be suspended, halimbawa No mam because the rules are clear that the
nagtatrial na tayo, can it be suspended? branch clerk of court must be a lawyer
Yes mam.

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Can the branch clerk of court rule on objections madali naman iresolve yun eh kaya lang ang
during the ex parte presentation of evidence? daming tenants, sa isang kaso pamilya, ang
No. only the judge could do so. daming heirs, mula nung mumulat mata nung
ninuno nila so ilan anak nun napaka-rami, pag

RULE 31 naghihearing kami puno ang court room. So

consolidated, malas lang yung judge na may
lowest case docket.
Rule 31 pertains to consolidation or severance.
Now yung severance, halimbawa yung 10 na yun,
When may there be consolidation of cases? So na-consolidate, when can there be severance of
halimbawa, limang civil cases ang involved, when cases?
may there be consolidation of cases? There can be severance of case if it involves only
There may be a consolidation when there is a one case but there are several claims in that
common question of law or fact in those several particular case
cases
Halimbawa nanganak na, third party complaint,
Halimbawa, you are the owner of 5 apartments, 5 fourth party complaint, fifth party complaint,
ung tenants mo, lahat yun ineeject mo, gusto mo cross claim, may compulsory counter claim pa.
na paalisin pero iba ibang tao yun. You want to well ung compulsory counter claim at cross claim,
eject them form your property because of non pwede bang i-severe yun?
payment of rentals. Can these cases be No mam it must be tried in the same action.
consolidated?
Yes mam. Kasi may common question of law diba? May permissive counterclaim be severed?
Is there a ground for the action to recover Yes.
possession? ____ there are similar factual
circumstances, lahat sila tenants mo, lahat sila Yung third party complaint pwede ba isevere un?
nagrerenta, lahat sila, hindi nagbabayad, so there Yes. Kasi madedelay na ung purpose ng main
can be consolidation, and yung limang cases na action. That is the purpose of severance of cases.
yun lets say for example, kasi pag nagfile ka
naman ng case iba ibang docket numbers yan so
pag niraffle yan sa iba ibang courts mapupunta or RULE 32
pwede ding sa isang court lang but most probably
sa iba ibang courts yan. Now, let us proceed to, rule 32. Trial by
commissioner.
Dun sa example natin sabi mo consolidation is
proper, so lima, saang court ngayon In this proceeding there must always be a hearing
macoconsolidate ung lima? Pwede bang pumili na, and who will conduct the hearing?
ay dun kay judge mas ok yun? The commissioner

Mam it will be consolidated in the court where is And who is a commissioner under the rules of civil
is already commenced to be tried. procedure? Kasi madami tayong commissioners in
our government eh, commissioner ng different
Eh pare-pareho naman ng stage yan eh. Well in bodies, mga government agencies.
practice what we do is cases will be consolidated Mmam a commissioner is a person upon whom a
to the case with the lowest docket number so, case being tried in a court is delegated upon him.
kung ako ung court na 01, 02, 03, kung ako ung So that he will get the testimony of witnesses.
na-raffle ung 01, sakin mapupunta ung napaka-
malas, lima agad ung kaso. Kaya kami minsan Under section 1 of rule 32, who are included as a
naguusap usap, deny mo na ung consolidation, commissioner? What may be included in the term
lalo na ako ung lowest, kaya sabi ko nako, commissioner?
magpapa-consolidate, minsan kasi 10 cases A referee, an examiner and auditor.
naconsolidate lahat, ako ung lowest docket
number. Appeal in an ejectment case, 10 tenants,

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Well hindi ito ung referee na ano ha… referee kasi Mam when it is necessary to take the long account
may referral eh, so it was referred to him, auditor, of the party, or parties, and when taking of such
well when you look at the dictionary, and auditor account is necessary before judgment can be
is nakikinig eh pakikinggan mo, yung book of rendered and then when an issue or a question
accounts mo inaaudit, and examiner, ineexamine arises during the trial itself and when it is
kung ano yung mga issues involved that will be necessary to effect judgment.
referred by a court to a commissioner.
For carrying a judgment or order. So you would
Now what are the 2 modes of referring a case to a notice for carrying a judgment, referral to a
commissioner? commissioner may be done even after the trial.
Number 1 mam by motion or by agreement of both Lalo na kung sa writ of execution at
parties nagkakaproblema kung ano ba yung mga
properties na ieexecute, magkano ba yung mag
So both parties must agree for a referral to a properties na ieexecute, so to carry into effect the
commissioner and the second one is if one party judgment.
wants to refer to the commissioner ____ and there
is a third mode [when the court appoints a What are the powers of the commissioner?
commissioner]. Lalo na pag accounting ng mga Mam depending on the order of the court because
mana, ung settlement of estate magsusubmit ung the court may limit it or limit the powers but
executor, halimbawa nagpasubmit ako, render an generally his power involves number one, hearing
acoounting, jusko napaka-ano nyan… regarding the case and then he may rule upon the
admissibility of evidence.
Lalo na kung wala kang background sa
accounting, and you know class even if a judge So there is authority to rule upon the
has a background in accounting, kasi yung admissibility of evidence. Should a commisisioner
pagtingin mo sa mga papeles na yun, would divert be a lawyer?
you from judicial functions, magheahearing ka, Not necessarily mam
magsusulat ka ng decisions, so you refer to the
experts or to a commissioner. But with respect to a branch clerk of court
receiving evidence?
But there are actions wherein trial by The branch clerk of court must be a lawyer
commissioner is mandatory. And what are those
actions? The branch clerk of court has authority to rule on
Expropriation cases under rule 67. objections?
No. Ito ung absurd jan, pwede mag-rule ng
What else? admissibility ang commissioner who is not a
Special civil action. lawyer but a branch clerk of court who is a lawyer
is not authorized to rule. But that is what is
What kind of special civil action? provided for under the rules of court.
Kasi ang expropriation is a special civil action,
ano pa yung isang special civil action that would The commissioner before entering and performing
require mandatory referral to a commissioner. his duties must be sworn, he must be under oath.
Partition under rule 69, and in partition
proceedings. Settlement of estate of deceased Kung walang oath, what would be the
persons when the claims are contested, and consequence of that on the proceedings that he
submission of accounting by administrators or has conducted?
executors. It will be void. Void kasi he should be under oath.
Inappoint lang siya ng court eh.
When may there be a referral to a commissioner?
What are the situations when there may be
referral either by agreement of the parties or by
motion or by the court motu proprio?

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What would be the effect of the failure of the Can there be affidavits?
parties to appear before a commissioner? Yes mam
The commissioner may either proceed ex parte or
he may adjourn the proceedings with notice to the Can there be depositions?
other party Yes mam

Does the commissioner have the authority to issue So the factual finding and the depositions and
subpoena ad testificandum or subpoena duces affidavits must be attached to the report
tecum?
Yes mam Now the question is what is the value of that
report on the judge?
So he has the authority and if the party fails to It is not binding upon the judge such that the
obey the subpoena, does he have the power to cite judge may adopt it in full or in part or may modify
the disobedient party in contempt of court? it or reject it totally.
Mam it will be contempt of the court which issued
the order to refer the case of to the commissioner Can the judge refer it back to the commissioner
and require him to conduct further hearings?
So the commissioner will report to the court and it Yes mam
is the court who will cite the disobedient party of
contempt. The commissioner has no authority by Okay, so you mentioned that the court may totally
himself to cite a disobedient party in contempt of reject the report but the rejection should not be
court. whimsical there must be valid grounds for the
rejection.
What must be contained in the commissioner
report? So after hearing, halimbawa ikaw na- One ground is when the commissioner submitted
appoint ka ng commissioner, you are required by a report without conducting a hearing? What is
the court to conduct a hearing on the accounting the effect if there is no hearing conducted before
submitted submitted by the executor in the the commissioner?
settlement of estate, so magcoconduct ka ngayon The proceeding will be void
ng hearing jan, kaya magiissue ka ng subpoena,
before you magaappear ang plaintiff and Yes. Kaya nga trial by the commissioner. There
defendant, meron din jang mga cross examination. must always be a hearing.
Parang trial before the court but it is being
conducted by the commissioner, after the So would you say that the repost of the
termination of the hearing before the commissioner is merely recommendatory upon the
commissioner, he will submit a report. court?
Yes mam.
What should be contained in the report?
Mam the report must contain his ruling on the So that is trial by commissioner. We will be
issues. discussing in detail what really happens in a trial
by commissioner when will be discussing
Ruling? Is a commissioner allowed to rule? expropriation and partition because in these
Bo mam his findings of issues that are submitted special civil actions, trial by commissioner is
before him. So factual findings of the issues mandatory.
submitted before him.

Apart from that what else? Is presentation of RULE 33

evidence made before a commissioner?
In civil cases what is demurrer to evidence?
Yes. The commissioner can receive evidence. Ung Demurrer to evidence is a kind of motion to
accounting, it will be presented before the dismiss based on the ground that the plaintiff was
commissioner. not able to show that he has a cause of action or
that he is not entitled to the relief.

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He has no right, he has shown no right to relief files his answer while in a demurrer to evidence it
based on the evidence presented. is filed after the plaintiff rests his case and as to
the grounds, the motion to dismiss under rule 16,
It is different to say when the plaintiff has no there 10 grounds for it but in demurrer to
cause of action it may be that the plaintiff has a evidence the ground could be that the plaintiff
cause of action but based on the evidence wasn’t able to show that he is entitled to a relief.
presented he was not able to prove his cause of
action. So, in a motion to dismiss, you should file it
within 15 days within the same period for filing
Halimbawa nangutang ako sayo, you have a cause an answer. In a demurrer to evidence, you file it
na hindi ako nagbayad and you filed a case after the plaintiff has presented his evidence and
against me, may cause of action ka pero nung has rested his case.
presentation of evidence hindi mo naman
naipresenta ung promissory note, so you have no If the demurrer to evidence is granted, what is the
right, you did not present sufficient evidence to effect of that?
establish your right to relief. Then the case will be dismissed because the court
would rule that the plaintiff was not able to
Does demurrer to evidence under rule 33 apply to substantiate his right of action.
election cases?
No. it is very clear when we started discussing the If the demurrer to evidence is denied, what is the
rules of court. It does not apply, the rules of court effect?
does not apply to election cases. If it is denied mam, then the defendant will have
to present his evidence. So the trial will proceed.
When do you file the demurrer to evidence?
The demurrer to evidence is filed by the defendant Let us say the trial court granted the demurrer to
after the plaintiff has rested his case. evidence and you said the case would be dismissed
what is the remedy from the dismissal of the case
With respect to demurrer to evidence in civil upon a demurrer to evidence?
cases, is leave of court required before you can file
it? So dinissmiss ng court, insufficiency of evidence,
No mam. So there is no requirement for leave of anong remedy ngayon ng plaintiff syempre
court. nadismiss ang kaso niya?
He may appeal.
But in criminal cases, do you need to file
demurrer to evidence with leave of court? The plaintiff appealed, on appeal the court of
It may be with or without leave of court. appeals reversed the dismissal. Sabi ng court of
appeals, well based on the evidence presented by
What is the consequence if there is no leave of the plaintiff, he has sufficiently proved his case.
court in criminal cases and a demurrer to So there is no ground to dismiss and to grant the
evidence was filed? demurrer to evidence.
If the demurrer to evidence was denied then the
defendant will not be able to present his evidence. Ngayon, what is the consequence of that?
Then mam the defendant will not be permitted to
So, how would you distinguish, because you present his evidence because he is deemed to have
mentioned a while ago that a demurrer to waived that right.
evidence is a dismissal of the case based on
insufficiency of evidence. So pag nareverse on appeal, yung dismissal, the
defendant shall be deemed to have waived his
How would you distinguish a demurrer to right to present evidence and the court of appeals
evidence from a motion to dismiss which we have would rule or decide the appeal based on the
discussed under rule 16? evidence presented by the plaintiff.
First mam, with respect to the time of filing, the
motion to dismiss is filed before the defendant

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So in civil cases, it is really a risk to file a So hindi dapat maginhibit ung judge. Kaya nga
demurrer to evidence. Kasi pag na-grant tuwang very careful ung terminology nung Judge.
tuwa ka nadismiss, ngayon pag nareverse, wala Without presentation of defendant’s evidence.
na. so you do not file a demurrer to evidence
unless you are sure that really there is
insufficiency of evidence on the part of the RULE 34
plaintiff.
Now miss galura, judgment on the pleadings
Usually class kasi halimbawa, in resolving a under rule 34.
demurrer to evidence, the judge should be careful
kasi, in this situation, the judge has only When may judgment on the pleadings be availed
determined the case or has assessed the case only of?
on the basis of the plaintiffs evidence, hindi mo pa When there is no legal issue at all. For example
naririnig ung depensa ng defendant. mam…

So whenever I rule on a demurrer to evidence No legal issue at all??? Under rule 34 section 1,
whether in civil or criminal cases, halimbawa, when can judgment on the pleadings be availed
based on the evidence presented by the plaintiff, of?
sans or without presentation of defendants Diba when an answer, fails to tender an issue. To
evidence yet, it appears that the plaintiff has tender an issue. Whether legal or factual. So
established his cause of action. Kasi kung walang issue talaga whether legal or factual. Or
maglalagay ako ng complete or definitive the answer admits all the material allegations in
statement, eh tapos na ung boxing diba. Hindi ko the complaint, the admission may either be by
pa nalalaman ung ebidensya ng defendant eh may reason of?
definitive ruling na ako. So it has to be always
indicated that the defendant has not yet By stipulation.. of… when the defendant has…
presented evidence.
Remember ito on the pleadings, wala pang
Kasi, nagpresenta ang plaintiff, may utang ang stipulation dito. Answer palang ang naififile so
defendant sakanya in the amount of 20million when can there be admissions? First, when there
pesos, pinresenta ang contract of loan, may is a definite allegation on the answer, diba?
promissory note, nagissue ng cheke, naipresenta Indicating or admitting the material allegations
naman lahat yun, ang idedetermine ko lang, na- on the complaint or there is an implied admission
establish ba ung elements of the cause of action. because the answer did not specifically deny the
material allegations in the complaint. In that
Una, is there a contract of loan, second, meron case, there could be a judgment on the pleadings.
bang failure to pay, third, may promissory note.
So meron talagang contract and failure to pay, And who between the plaintiff and the defendant
valid ung collection suit. Magpipresenta ngayon may move for a judgment on the pleadings?
ung defendant so idedeny ko ung demurrer, pwede The motion will be filed by the plaintiff
bang panghawakan ng plantiff na panalo na ako
kasi idedeny na yun ni Judge Quiambao? Hindi. The plaintiff or the claiming party. Kasi ang sabi
when an answer fails to tender an issue. So it is
Eh kung magpresenta ung defendant sakin ng the plaintiff who could move for a judgment of the
official receipt, wala na diba. What will defeat the pleadings.
cause of action of the plaintiff? Usually kasi pag
dineny mo ung demurrer to evidence, ipapainhibit And if you are the defendant filing an answer with
na yung judge. Sasabihin may pre-judgment, counterclaim, dun sa counterclaim mo ikaw ang
meron nang bias kasi hindi pa nagppresent ung plaintiff pwede ka ding magmove or if you are a
defendant meron nang conclusion ang judge. Eh third party complainant diba based on the
very clear naman dito na it is one of the remedies pleadings that we have studied.
provided for under the rules.

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Now, so the answer fails to tender and issue May the court render judgment on the pleadings
whether legal or factual. on its own? Halimbawa ako binasa ko pleadings,
ayy wala naman issue puro admission lang,
My question is, is evidence being considered by magrender na nga ako judgment on the pleadings
the court in rendering a judgment on the para madali.
pleadings? No mam it must be on motion
No mam. Just based on the pleadings.
It must always be on motion but I would like you
And what are the pleadings we are talking about to refer to rule 18 section 2 paragraph (g). Will
here? you please read, ung purposes ng pre-trial.
The complaint and the answer.
The propriety of rendering judgment on the
So remember that the judgment on the pleadings pleadings, or summary judgment, or of dismissing
may only be sought by the plantiff or the the action should a valid ground therefor be found
claimant. to exist.

Is judgment on the pleadings proper when no This is one exception wherein the court could
answer is filed? Walang answer, so ang plantiff render judgment on the pleadings motu proprio.
magmmove siya ng judgment on the pleadings?
No mam Halimbawa during pre-trial sabi natin
stipulations and admissions of facts. Lahat
What is the proper remedy if no answer has been inadmit na ng defendant, wala nang gagawing
filed by the defendant despite proper service of trial in that case the court on its own on the
summons? pleadings. If during pre trial it has been
Declare the defendant in default. Now, judgment determined that there is no more issue factual or
on the pleadings does not entail appreciation or legal, what would be resolved? Remember that.
consideration of any evidence. Section 2 rule 18 paragraph (g). Let us say that
the complaint speaks no cause of action. Is
When the plaintiff or the claimant filed a motion judgment on the pleadings proper?
for judgment on the pleadings what would happen No mam
to his claim for damages? Halimbawa kung claim
for specific performance with damages, the Anong remedy mo if you are the defendant and
answer of the defendant did not raise any factual the complaint states no cause of action?
or legal issue so the plaintiff moved for judgment Motion to dismiss
on the pleadings, in his action for specific
performance with damages, what will happen now What are the cases where judgment on the
to his claim for damages? Pwede bang magrule pleadings is not applicable? Not allowed?
ang court thru a judgment on the pleadings to the When the action is for the declaration of nullity of
plaintiff? marriage, and for legal separation and for
No mam annulment of marriage.

Why not? Hindi pwede dito ang judgment on the pleadings

Because the defendant was not able to present his because there could be no declaration of default
evidence, because the plaintiff was not able.. well and because here kahit na hindi sumagot yung
in judgment on the pleadings sabi nga natin spouse, the government, the office of the solicitor
complaint lang at answer, pag nagcclaim ka ng general will have to, for the republic as parens
damages you have to prove it, you have to present patriae will have to oppose or controvert the
evidence so, sabi nga natin you do not appreciate petition for annulment or the declaration of
evidence here. nullity of marriage.

So what will happen?

The plaintiff will waive the claim for damages.

9|Page
 RULE 35 No genuine factual issue. What do you mean by a
genuine issue? Kelan ba may genuine issue?
Mam there is a genuine factual issue when a fact
Now summary judgments. Summary judgment is is being controverted and the parties are required
also known as accelerated judgment. to…

When is summary judgment proper? Now let us say that during pre trial the due
Summary judgment is proper when there is no execution and genuineness of a document is
genuine issue to resolve. admitted. Halimbawa ung contract of loan which
is the subject matter of the case, halimbawa ang
Genuine issue on what? action is annulment of the contract of loan or
No genuine issue on factual matters except the recisision of the contract of loan, the defendant
amount of damages. Absence of genuine factual admitted the due execution and genuineness of
issue. the contract of loan. Is summary judgment
proper?
Who may move for summary judgment? No mam
The defendant mam
Why not?
Only the defendant? Because what the defendant admitted is just the
Either mam. Either the plaintiff or the defendant. genuineness and due execution of the contract of
loan but then there will be other factual issues
Within what time may a motion for summary that are relevant and that needs to be proved.
judgment be filed? If it is the plaintiff or the
claimant, when should he file? Halimbawa sinabing ok, talagang yang contract of
Upon the receipt of the answer of the defendant. loan na yan talagang it is not a forgery it is
So any time from receipt of, or service of answer, genuine in fact nakapirma naman ako jan but the
okay. problem is I was forced to sign. So that is another
issue. There is a factual issue because
How about the defendant, within what time? intimidation or vitiation of consent was raised.
The same goes for the defendant mam, any time Summary judgment is not proper because there is
during the trial of the case. still factual issue which is relevant.

So if it is the defendant, at any time. Kahit na When there is no factual issue but there is a legal
hindi pa niya narereceive, at any time he can file. issue, may summary judgment be rendered?
Pero kung claimant ka, at any time after receipt Yes mam
of the answer.
May the court on its own render a summary
What are the requisites for a valid summary judgment on a case without any motion?
judgment? No mam it must also be on motion.
Number one mam, there must be no genuine
factual issue to be resolved, and then number two, Can there be a rendition of a partial summary
there must be a motion for the summary judgment? Halimbawa may 5 issues, sabi ng court
judgment. eh ung 3 naman, well the other party claimed the
the 3 issues are not genuine factual issues kasi
And when we say motion, it must comply with the admitted na yan, so dalawa nalang ung
requirements under section 15, notice and controverted issues, in that case can the court
hearing. render summary judgment based on these 3
issues?
What else are the requisites? Yes mam the court may do so
Under section 3 of rule 35 it provides that the
moving party must be entitled to a judgment as a
matter of law.

10 | P a g e
And in that case what should the court do? In judgment on the pleadings it is filed by the
The court will render judgment on those three plaintiff or the claiming party while in summary
issues and then continue the trial regarding those judgment either part may move for that.
issues that are in good faith controverted and the
court should specify and indicate the facts without When is judgment on the pleadings availed of?
controversy wherein the court is rendering partial Judgment on the pleadings is available when the
summary judgments and what facts are answer fails to tender an issue and if there are
controverted wherein trial would proceed. material admissions as to the material allegations
in the compliant. While in summary judgment, it
What could be the bases of the court in rendering is filed when there is no genuine factual issue to
summary judgment? Remember sa judgment on be resolved.
the pleadings talagang complaint and answer
lang, no evidence is allowed. Ok, now. In judgment by default, kasi this is
another kind of judgment. What is the basis of the
In summary judgment what could be the bases of court in rendering judgment by default?
the court in rendering summary judgment? Can In judgment by default, the basis of the court is
the court appreciate evidence? the evidence submitted by the plaintiff
Yes mam.
And here is an answer filed?
And what are those evidence that could be No. So there is no answer, the court will just base
appreciated and considered by the court in its decision on the evidence presented by the
summary judgment? plaintiff ex parte.
Testimonial

Testimonial which may be in the form of? RULE 36

Written affidavits
Judgment. When you say judgment, based on the
What else? rules of court, what do you mean by judgment?
Depositions & admissions under rule 26. Judgment is the determination of the court as to
Admissions by the adverse party. Answers to the issues and controversies presented before it
interogatorries. So those could be used by the and it lays down the obligations and the rights of
court as bases for rendition of a summary the parties in the case.
judgment.
So it is the final determination of ruling by the
And these affidavits, depositions, answers to court of competent jurisdiction regarding rights of
interrogatories, the purpose of these is to show parties or matters submitted before it.
that there is no genuine issue as to any material
fact and that the movant is entitled to a judgment Is judgment the same as decision?
as a matter of law. In summary judgments, even if No mam.
the answer tenders an issue but it is not genuine,
judgment could be rendered. But that is not the How will you differentiate that?
case in judgment on the pleadings. Mam I change my answer. They are the same

How would you distinguish summary judgment on They are the same, depende lang yan sa kung
judgment on the pleadings? anong gusto ng judge. Pareho lang yan. Well
Mam in judgment on the pleadings, the court usually, ako talaga decision. I use judgment pag
considers only the complaint and the answer of nag-plea of guilty. Kasi in that case wla naman
the parties while in summary judgments the court ako ng factual determination, so ang nakalagay
in addition to that may also consider the evidence na agad dun na-arraign, may information, tapos
of the parties depositions, admissions, and nung una nagplea of not guilty tapos nagplea of
affidavits. guilty, eto na ngayon ang kanyang sintensya.
Judgment. Parang abbreviated. Pag decision kasi
What else?

11 | P a g e
after a thorough… but the effect is the same. Its
just a matter of terminology.

What are the requisites under our constitution for

a valid judgment?
Diba this is constitutional eh. The court that is
rendering judgment must have competent
jurisdiction, jurisdiction over the parties and the
subject matter. Both parties must be provided
with the opportunity to present their case and
their evidence. Those evidence presented must
have been considered by the judge in rendering
the decision and number 5 is that the judgment or
the decision must clearly state the facts and law
as basis for such decision.

Can there be an oral judgment?

It must be written mam

It must be in writing and personally prepared by

the judge. Kailangan written. And there must be
findings of fact and statement of issues and
conclusions. Those are the requisites for a valid
judgment.

What are the parts of a judgment or decision?

The body and the fallo

Which part is subject of execution?

The fallo or the dispositive portion, yung
wherefore. So yun ung titignan mo.

In case of conflict between the dispositive portion

and the body of the decision, which will prevail?
The general rule is that the fallo will prevail but
an exception is when there is just a mistake in the
fallo but the ration decidendi is very conclusive,
the ratio decidendi will be followed.

Halimbawa nakalagay sa body na entitled ung

plantiff to 10million of actual damages. Sa fallo
ang nalagay 1million lang, atsaka talagang sa
body yun yung intention 10 million.

Well in that case which will prevail?

The ration decidendi. Oo kasi talagang un ang
intent but as a genral rule or as a rule the
dispositive portion should prevail.

12 | P a g e
13. KUYA LJ mean it will be executed. Which is another aspect
of Finality.
To begin. what must the trial court render to
make decision? Yung mga trial courts, how many Finality can be of two aspects.
days? 1. Judgment that can be executed and
Within 90 days. 2. Finality in a sense that theres nothing
more to be done. In this case, it could be
How about court of appeals? appealed because it is already final as
12 months from date of submission of decision. against an interlocutory order.

How about supreme court? When a motion to dismiss is denied, is that a final
Within 24 months. judgment or merely an interlocutory order?
When the motion to dismiss is denied, meaning
So the decision should be rendered by the judge. the case will proceed. So its merely an incident.
Personally rendered by the judge. And in our But when the motion to dismiss is granted and
constitution, it must be in writing with the finding the case is dismissed, is that a final order or is
of facts and law and the conclusion. there finality to that? Yes because there is
nothing more to be done by the court.
What if the judge who tried the case, already
retired from the service or the judge died and a Within the Philippines, is conditional judgment
new judge was appointed. So hindi natapos ng allowed?
dating judge yung pag gawa ng decision. Inabot sa No. Halimbawa sabi ko, in a complaint for
bagong judge yung pag gawa ng decision. Is the collection of a sum of money. “Wherefore the
decision valid? defendant is directed to pay the plaintiff the
The supreme court has ruledthat the decision is amount of P1m provided that the defendant still
valid. have properties.” Is that a valid judgment? That is
a conditional judgment. That is void.
What is the value of the decisions rendered by the
Supreme Court? Ano ba yung judgment sin perjuicio or Judgment
So it is basic that the decisions of the Supreme without prejudice?
Court forms part of the legal system. And these Judgment without stating the facts in support of
decisions of the Supreme Court are accorded the conclusion. Halimbawa, you filed a case in a
mandatory judicial notice. Kahit sa opinion natin, court that has no jurisdiction. The other party
mali ang decision ng Supreme Court, it is the law. filed a motion to dismiss for lack of jurisdiction.
Jurisprudence yan and must be adhered to based And the court granted it. Talaga naman wala
on the principles of stare decisis. siyang jurisdiction. Ano ba yung judgment na
yun? Is it with prejudice or without prejudice?
When does a judgment or decision become final? Without prejudice. Meaning pwede pang i-file yun
In that case, it is final and can be executed. That in a court with proper jurisdiction. So walang
is one aspect of finality. That there is no appeal, statement of facts like an entire decision. But
or the appeal was made, kahit na nag-appeal, there is already a conclusion. Because the issue is
there was a final decision made by the Supreme mainly lack of jurisdiction.
court or the appellate court and the judgment can
now be executed. Final and exeutory. But there are other judgment without prejudice or
judgment sine prejuicio that are not allowed in
But there is another aspect of finality. In terms of our jurisdiction. Halimbawa nilagay ko lang sa
whether the court still has something to be done decision ko, “Plaintiff John Ree Doctor, filed
with respect to the case. So when the trial court complaint for specific performance against Apple
renders a decision, it is final in a sense that the Cruz, the defendant. After perusal of the evidence
judgment disposes of a case in a manner that presented by both parties, the Court finds the
there is nothing more to be done by the court with plaintiff is entitled to P1m. Wherefore, the
respect to that stage. But being final does not defendant, Apple Cruz, is directed to pay John
Ree Doctor P1m plus damages.”

13 | P a g e
Is it a valid judgment? pwede mag appeal? April 29. Then hindi ka nag
No. The judgment will not be binding in favour of appeal, syempre panalo ka. Pero may ibang
Mr. Cruz and it will not favor you kahit nanalo plaintiff walang satisfaction, sasabihin nila
ka. masyado maliit. So ayun, hindi ka nag appeal,
pero hindi lang ikaw ang party, may defendant.
Judgment upon compromise? Nareceive ng defendant yung decision April 20,
When we were discussing about mediation and and he has 15 days to appeal. So May 5. Exclude
judicial dispute resolution, we said that the the first, include the last. Dumating ang May 5,
purpose of this dispute resolution or court hindi na sya nag-appeal.
diversion, is for the parties to settle the conflict
amicably. And when it is successful, the In our example, kelan ang date of entry na yun?
compromise agreement will be executed by the May 5. Because the other party still has the right
parties. And that compromise agreement will be to appeal.
submitted to the Court. If the compromise
agreement is not contrary to law, public policy or
morals, the court will approve it. RULE 37
Once approved, what is the value of that We said that when the judgment becomes final
compromise agreement? and executory, wala na talaga. But what are the
A valid judgment. Kaya ang title nun ay remedies of the losing or aggrieved party before a
Judgment on compromise agreement. To judgment becomes final and executor?
differentiate it from a regular decision issued by You can file a
the Court. At ang ginagawa dun, both parties 1. Motion for new trial,
have entered in a compromise agreement dated, 2. Motion for reconsideration or
kokopyahin ang entire compromise agreement. 3. Appeal
Yun ang judgment upon compromise.
Within what period must the motion for
Halimbawa tayong dalawa, we entered into a reconsideration be filed?
compromise agreement, after mediation, Within the period for perfecting of appeal. So 15
inapporve ng court, can I appeal the judgment of a days or 30 days
compromise agreement?
No. When the motion for reconsideration was filed,
sabi mo within the period to appeal, what is the
What is the effect of a judgment of a compromise effect of filing the motion for reconsideration on
agreement? the period to appeal?
Immediately executory. Bakit? Parehas na kasi It tolls the running of the reglementary period for
nag-agree. It means you have settled all the filing of the appeal.
conflicts and controversies between you.
What are the grounds for motion for
Eh judge, paano po pag yung isang party, was reconsideration?
misled. Or the consent was vitiated. Hindi na 1. Damages awarded are excessive,
appealable. 2. The evidence is insufficient to support the
judgment or final order,
What is the remedy of the aggrieved party? 3. The decision or final order is contrary to
Petition for certiorari. Kasi di na siya appelable. law.
Or to annul the judgment on compromise.
Can a motion for extension, to file a motion for
Entry of Judgment. When is the date of entry of reconsideration be filed? maglalapse na yung 15
judgment? days, pwede mo ba ipaextend?
Date of finality of judgment. Halimbawa, Denied agad yan ng court. Kasi kung may ground
nagrender ako ng decision, ikaw yung plaintiff, ka, alam mo na yun, bakit ka pa magpapaextend.
nanalo ka, nareceive mo yung decision April 14,
you have 15 days to appeal, hanggang kelan ka And what are the requirements of motion?

14 | P a g e
So notice and hearinging are the mandatory 2. Newly discovered evidence, which he could
requirements for motion. Otherwise, they are not, with reasonable diligence, have
proforma and will not be given due course by the discovered and produced at the trial, and
Court. which if presented would probably alter
the result.
And apart from the requirements of notice and
hearing, what must be specified in the motion for What kind of fraud?
reconsideration? Extrinsic fraud.
So it must be specified what is contrary to law,
what is the evidence which was overlloked, How would you distinguish you distinguish
evidence that must not be considered by the court. extrinsic fraud from intrinsic fraud?

When the motion for reconsideration, is granted, Extrinsic fraud connotes any fraudulent scheme
what is the effect of that on the decision? executed by the prevailing party outside the trial
So there will be an amendment, damages kunyari against the losing party who because of such fraud
is excessive, ibababa. So it would now change the is prevented from presenting his side of the case.
outcome of the decision. (e.g. preventing witness from testifying) Intrinsic
fraud on the other hand refers to acts of a party
The consideration may be total or partial. And during the trial which does not affect the
there is nothing wrong with the court if it presentation of evidence. (e.g. presentation of
partially reconsidering its decision. forged promissory note.

How many motion for reconsideration is allowed When the ground is fraud, accident mistake or
for every party? excusable negligence which have impaired the
Only one. A party should not be allowed to file a rights of the parties during trial, what should
second motion for reconsideration to a judgment support the motion for new trial based on this
or a final order. It is very clear under section 5 of ground?
Rule 37. An affidavit of merit. It should prove or shown to
the court that if a new trial would be allowed, he
Within what period must a motion for new trial has a meritorious defense or a meritorious cause
can be filed? of action. Kasi kung hindi niya i-spespecify yun,
Within the period for perfecting of appeal. So 15 sasabihin ng court wala naman kwenta. You have
days or 30 days. to show the merit of your case orr cause of action.

Is a motion for new trial allowed in cases covered When should a new trial based on a newly
by summary procedures and small claims? discovered evidence be denied?
No. If the decision will be the same, then the new trial
will not be allowed.
What is the effect in filing a motion for new trial
on the period of appeal? A newly discovered evidence is different from
The same as the effect of the motion for forgotten evidence. Ang newly discovered
reconsideration. evidence, nung during trial, wala, not in custody
of the parties. Or nahihirapan sya to secure or
So being a motion, it should comply with the obtain the evidence despite diligence and nung
requirements of Rule 15. nag decision niya, dun lang niya nakuha.
What if yung plaintiff, after nung decision “Ay
What are the grounds for a motion for new trial? nasa akin pala yung receipt…” It is material and
1. Fraud, accident, mistake or excusable proves payment. It is a forgetten evidence.
negligence which ordinary prudence could
not have guarded against and by reason of If in a motion for reconsideration, a second motion
which such aggrieved party has probably is not allowed. In a new trial, is a second motion
been impaired in his rights; or allowed?

15 | P a g e
Second motion is allowed so long as it is based on
grounds not existing or available at the time the But when must it be filed?
1st motion was made. Bago mag decision ang judge.
So medyo lenient sa new trial, pwede ka mag For what grounds?
second motion. Lalo na if yung ground mo newly Justice and equity.
discovered evidence. Kasi nga on grounds not
available or existing at the time the first motion Now in the Neypes case, I would like to point out
was filed. that fresh period rule applies in Rule 40, Rule 41,
Rule 42, and Rule 43 and even in Rule 45.
Now in a motion for reconsideration, if it is
granted the decision is modified or amended.
RULE 38
If a new trial is already granted, what is the effect
of that? Relief from judgments.
It will stand for trial de novo.
Is this available not only to the parties to the
What do you mean by trial de novo? action but to third persons whom have an interest
Magkakaroon ng re-hearing. Ibig sabihin ba nun, in the action but was not able to intervene?
mag prepresent ulit ng mga evidence? Yes but No, it is available only to the parties to the action.
those evidence already presented which are
material and relevant will no longer be presented. What is the nature of the relief from judgment?
You said upon filing for the motion for Ano na yung stage ng proceedings dito?
reconsideration, or a motion for new trial, the Final and executory na kasi wala ng appeal,
period to appeal is interrupted? Halimbawa ako, walang MR, ieexecute na ng court. So, this is an
nagfile ako ng motion for reconsideration, on the equitable remedy.
15th day, denied ng court, so wala na yung motion
for reconsideration ko. Ang remaining remedy ko Is the relief from judgment available if there is a
na lang is appeal. remedy of appeal?
No. It is only available when there is no other
Question, how many days do I have left in order to available adequate remedies under the Rule.
file an appeal?
Fresh period of 15 days. Dati kasi kung ano lang What are the grounds for a petition for relief from
yung remaining period, kung nag MR ka on last judgment?
day, and nadeny, may isang araw ka lang to It may be fraud, accident or mistake which
appeal. Exclude the first include the last. Kung prevented the party during the trial to present his
nag MR ka on the 5th day, meron ka pa 10 days. evidence rr fraud, mistake or accident which
Pero ngaun because of the NEYPES case. Fresh prevented the party from appealing the decision.
period rule. So there are two aspects of Relief of Judgment.

But what are you appealing? The denial for the In the first one, during trial the parties rights
motion for reconsideration? Or the judgment or were impaired by fraud accident and mistake and
decision? the purpose is to set aside the judgment.
The judgment not the denial of the motion for The second aspect, is when he was prevented to
reconsideration. appeal by reason of fraud, accident or mistake.
And the purpose is, relief from judgment so that
In criminal procedures, mayron din motion for his appeal will be given in due course.
new trial. Meron dun re-opening of new trial
under Rule 119. Sec 23 or 24. Are you saying that a relief from judgment can be
filed after entry of judgment?
Is there such a thing as reopening of trial in civil Yes.
cases?
So in civil cases, pwede ka mag motion of When must the petition for relief from judgment
reopening for new trial. be filed?

16 | P a g e
60 days after discovery of entry of judgment 2. Even there was an appeal and the
provided that the 60 day period is also within the judgment now has become final and ready
6 months rule. So those two periods must concur. for execution.
Halimbawa, nalaman mo today, pero nagkaroon
ng entry of judgment 2 years ago. Halimbawa yung kaso, nanggaling sa trial court
and sa CA, talo pa din yung aggrieved party.
Can you still file petition for relief of judgment? Umakyat sa SC, panalo pa din sa SC. So final and
No. Kasi beyond 6 months rule. executory na yun.

Must the petition for the relief of judgment be Before what court must the motion (Matter of
verified? right na to) for execution be filed?
Yes. Kasi final and executory na tapos pipigilan Before the court of origin. Ang trial court ang
mo. Iququestion mo by reason of fraud, accident or mageexecute. Dun ka magfifile ng motion. Sa SC,
mistake. kasi walang sherrif.

Now we are looking at a situation here. And the decision becomes final and executory,
Naieexecute na yung decision, so is the party wala na gagawin yung court pag naging final na
filing a petition for relief of judgment entitled to yung decision. Now, once a judgment becomes
ask for a prelinary injucntion in order to stop the final and executor, it becomes the ministerial duty
execution? of the court to execute the decision.
Yes. It is availble pending the procedures for the
relief of judgment. Bakit if hindi magiisue ang But how shall execution be issued?
court ng injunction, mawawalan na ng kwenta First there must be a motion for execution. And
yung relief from judgment. Executed na yung being a motion, it comply with notice and
judgment, what more is to be prevented? hearing. Because there might be circumstances or
supervening events that could have changed the
Decisions of the Supreme Court and the Court of circumstances of the parties.
Appeals, can the petition of relief of judgment be
filed against decisions of these courts? For example, sa sobrang tagal eh nagbayaran na
Hindi. So in that case and petition for relief of ang parties. So pag nag motion of execution ang
judgment is available only before the trial courts. isang party, sasabihin ng isang party, hey excuse
Not with respect of Court of Appeals and the me binayaran ko na yan.
Supreme Court. The motion for execution should be filed before the
court of origin. Ito na naman ang isang issue, ang

RULE 39 entire records niyan nasa SC, may decision and

SC… final and executory, ang sabi natin dito ka
magfifile ng motion sa trial court. Eh hindi pa
Pag sinabi mong execution, in civil case, what binabalik ni SC and court records?
does that mean?
So it is the fruit of the suit. Enforcement of Must the prevailing party wait for the records to
judgment be remanded to the court of origin before the
prevailng party can move to the execution of the
Which part of the decision is subject to execution? decision?
The falio or dispositive portion. No.

When may execution issue as a matter of right? In that case, what must be done? What are the
On motion of the parties, after the judgment has requisites? Alangan naman sabihin sa trial court
become final and executory. na nanalo ako sa SC, tapos na yung kaso. What
And we have defined a final and executory must be attached for the motion of execution?
judgment. Certified copy of judgment accompanied by the
1. No appeal or copy of the entry of judgment.

17 | P a g e
Is there a situation when a motion for execution There must be a bond. Halimbawa pag dating sa
may be filed with the appellate court? SC, nareverse. Nanalo yung kabilang party, eh
Yes. It can be done when ayaw pa din mag issue nadeliver na sayo. The bond will answer for
ng trial court after ng notice and hearing. So damages.
pupunta siya ng SC, or CA. The purpose is not for
these courts to issue the writ of execution but for And what is the amount of the bond?
these courts to direct the lower court to issue the Halimbawa the value of the computers is P10m,
writ of execution. P10m din dapat ang value ng bond. It would not
be lesser or greater. So equivalent to the value of
What we discussed is the execution as a matter of the subject of the writ of execution pending
right, when there is final and executory judgment. appeal.
But there is another kind of execution. Under sec
2 of Rule 39. Which is discretionary execution or Let us say, nag issue ang court ng execution
execution pending appeal. pending appeal, so sinabihan yung defendant,
ideliver mo yung computers based on the decision
What are the requisites of a discretionary of the trial court. Can that execution pending
execution? appeal be stopped? Can the discretionary
So this situation, there’s no final and executory execution be stayed?
judgment. So hindi ito execution as a matter of Sec 2 of rule 39. So sabi ng court oh Mr. Cruz,
right. Halimbawa nag issue ako ng decision, nag nanalo naman si Mr. Doctor, i-deliver mo sa knya
appeal ngaun, there could be an execution yung computers kasi may good reason sya. Wala
pending appeal under Sec 2. But there must be ng kwenta yan, after ma-decide yung appeal.
good reasons, for the court to issue an execution Nagpost ng bond si Mr. Doctor ng P10m, ikaw
pending appeal and the court shall be very strict naman ayaw mo ideliver. So ang remedy mo is
in issuing a writ of execution pending appeal. Kasi you would, upon application before the court, post
hindi pa tapos yung kaso tas papa execute mo na. supersedeas bond Equivalent to P10m. So
So there must be good reasons. mangyayari, hindi ka magdedeliver. May bond ka
din. So pareho kayo. That would be the situation.
And what would confer the discretionary power So by filing a supersedeas bond which must be
upon the court to issue a writ of execution pending first approved by court. Without its approval,
appeal? Ano yung basis ng Court? execution will not proceed.
Good reasons. Example of good reasons na hindi
pa tapos yung kaso naka appeal pa.. eh pina We said that the final judgment could be
execute na ng korte. If the defendant or the appealed. Yun hindi pa executory, yung final lang
judgment debtor is insolvent. Pero if insolvent ay ung aspect na nothing is left to be done by the
yung prevailing party, so nag motion for execution court. Like a decsion, it could be appealed as a
pending appeal, based on the ground of the rule. But, there are judgment that are declared by
insolvency of the prevailing party. Is that a good the rules or certain laws which are immediately
reason? executory. Now, what are these judgment?
NO. Judgment on accounting , injunction, support and
receivership.
Halimbawa we are talking of computers, bumili
ka ng mga computers, version 2014 or 2013, So kung manonotice niyo, receivership is a special
natapos ang decision ng korte 2015, eh nag civil action, accounting is a special proceeding.
appeal. So ang cause of action mo, ideliver sayo Ang support is a provisional remedy.
yung computers kasi nag bayad ka naman na.
Nanalo ka, sabihin mo mag court of appeals kami Naremember niyo yung time na yung SC nag
and then SC. Mag wowork pa ba yung computers? issue ng injunction with respect yung kay GMA.
That is a good reason. Ang argument nun ni Sec. De Lima, pwede ba sila
mag MR on injucntion. Hindi. Its immediately
Would good reason be enough for the court to executory. Theres no such thing as a preliminary
issue writ of execution pending appeal? What injunction that is appealable. Kasi because of the
should accompany a good reason? urgency. And in the family code, nakalagay dun

18 | P a g e
that the decision is immediately executory with losing party. Hence, there can still be execution
respect to the declaration of presumptive death. beyond the 5 year period.
Immediately executory so its not appealable.
Yesterday we are talking about the different
Bakit? Sino mag aappeal dun? periods and the modes of execution of judgment.
Declaration of presumptive death is immediately We said that execution may be through motion or
executory kasi ano ba ang purpose nun. Urgent an independent action.
para mkapag asawa ule. The petition should be
dismissed. Kailangn may allegation ka dun that So again within what period may a final and
you are asking for the declaration of presumptive executory judgment be executed by mere motion?
death of your spouse because you are getting Within 5 years after entry of judgment.
married. Kung hindi ka magaasawa, hindi yan
idedeclare. After the lapse of 5 years, how can the judgment
be executed?
Yung computers, so execution pending appeals, By filing an independent action as long as it is
dineliver ng court from Mr. Cruz sayo, nag appeal within the 10 years period from the entry of
si Mr. Cruz, nanalo sya. Eh nadeliver na sayo judgment.
yung computers, what would happen now?
Court will order restitution or reparation of I mentioned that, the 5 year period of executiong
damages. So kung P10m yung value, ibbalik mo judgment by a mere motion can be relaxed, okay?
ngayon ung P10m. And that beyond the 5 year period, the judgment
may still be executed by a mere motion but that is
What are the modes of execution of judgment? the only exception case when there is a delay in
1. By motion within 5 years from date of the execution within that 5 year period because of
entry of judgment. the respondent or the judgment debtor. For the
2. By complaint. If within the 5 year period, advantage of the judgment debtor, because of the
no motion for execution was filed, after the acts of the judgment debtor di maexecute yung
5 year period, an independent action will judgment within 5-year period through no fault of
be filed. Complaint na and not mere the prevailing party. So in that case the SC
motion so magbabayad na ule ng filing allowed the filing of a mere motion even beyond
fees. Complaint for revival of judgment. the 5 year period but the exception is applicable
only when the delay is occasioned by the actions of
Within what period may an independent action the judgment debtor. Please remember that.
for the revival of judgment be filed?
Within 10 years from the entry of judgment. I think I assigned to you a case with respect to
that, the case of RCBC vs. Castro.
What if after revival, the 5 year period for
execution lapse again. Can there be another So if the judgment was not executed within the 5-
revival? year period within the 10-year period an
Yes, so long as you pay again the filling fees. independent action for revival of the judgment
must be filed, however under Section 34 of Rule
In an independent action for the revival of 39. If you would notice, it also mentions revival of
judgment, can the issues be reopened and judgments. Please read Section 34.
relitigated?
No. The only issue in the action is whether or not Section 34. Recovery of price if sale not effective;
the party are entitled to revival of judgment. revival of judgment. — If the purchaser of real
property sold on execution, or his successor in
What if the reason for non-execution of judgment interest, fails to recover the possession thereof, or
is the hiding of the other party? Then the 5 year is evicted therefrom, in consequence of
period lapsed? irregularities in the proceedings concerning the
The 5 year period for execution is interrupted sale, or because the judgment has been reversed
since the non execution is due to the fault of the or set aside, or because the property sold was
exempt from execution, or because a third person

19 | P a g e
has vindicated his claim to the property, he may squatters pala. So he can not take possession or
on motion in the same action or in a separate recover possession of the properties which he
action recover from the judgment obligee the price purchase during the public auction.
paid, with interest, or so much thereof as has not
been delivered to the judgment obligor, or he may, Under Sec. 34 anu yung remedies? Based on what
on motion, have the original judgment revived in you read, what are the remedies granted to the
his name for the whole price with interest, or so purchaser?
much thereof as has been delivered to the File a separate action against me (Judge Q) to
judgment obligor. The judgment so revived shall recover the 15 million pesos, that is 1 remedy. Eh
have the same force and effect as an original panu kung wala ng ibabayad si Judge Quiambao.
judgment would have as of the date of the revival
and no more. What is another remedy available to you?
That is where revival of judgment will come in,
I would like to emphasize that under Rule 39 that is another remedy given to a purchaser who
there are 2 kinds of revival of judgment, first is cannot recover possession of the property that he
contemplated under Section 6, you revive a bought. So that is the revival contemplated under
dormant judgment because it was not executed Section 34.
within the 5 year period from the date of entry of
judgment. And the second one or the other kind is Now, we now proceed, we go back to section 7.
provided for under Section 34 as one of the
remedies wherein the purchaser during a public In case the prevailing party dies. Can a writ of
auction may recover the purchase price from the execution still be issued by the court?
judgment obligor. Yes, upon motion of the succeeding party in
interest, executor or administrator.
Let us say for example that, you are the plaintiff
in action for collection of sum of money I am the Kasi class you won naman kahit buhay ka o patay
defendant. So, you filed a case against me ka, your right has alredy been established, so a
amounting to 10 million pesos. And the Trial writ of execution dahil may final and executory
Court ruled in your favor, sabi, bayaran mo yan, judgment na may still be issued.
yan ang pagkakautang mo 10 million plus legal
rate of interest. Appeal ako sa CA panalo ka parin But who will file the motion for the issuance of the
pagdating sa SC panalo ka parin. So what you did writ of execution?
was to have the judgment executed. Now, within 5 Executor, administrator and the succeeding party
years nagmotion ka for execution nagissue ngayon and the writ of execution will issue in any case, in
ng writ of execution. So sinisingil na ko ng sheriff any event.
sa 10 million plus interest, wala akong cash on
hand at wala rin akong cheke dahil wala naman What would be significant is if it is the loosing
akong pera sa bangko kaya nga hindi ako party who dies.
nakabayad sayo. So what the sheriff did was to
levy my properties, real and personal properties to If the loosing party dies, can a writ of execution be
come up with the sufficient amount to cover the still issued against the loosing party who died?
subject judgment. Let us say ang nakuha sakin is Yes it will still be issued, after levy of real or
dalawang bahay at lupa with improvements, and personal property but if it is for collection of sum
that properties were sold at a public auction para of money the winning party must file a separate
mabayaran ka ng 10 million plus interest. So si action for recovery from the estate of the
Mr. Doctor kunware ang highest bidder, sya ang deceased.
nanalo. So yung 10 million plus 5 million, let us
say inabot ng 15 million, binigay na ngayon sayo First we should what levy is, what do you mean
ng korte. Si Mr. Doctor should be now in by levy?
possession and the owner of the 2 properties. Sya Taking of the officer of the property of the party in
ang highest bidder eh, bayad ka na rin naman. his custody for the satisfaction of judgment. So it
The problem is when he was about to occupy or to is the sheriff who implements the writ of
take possession of those 2 properties, may mga execution. When we say levy the sheriff sets apart

20 | P a g e
whole or part of the property of the losing party in interest from the filing of the complaint. Yun ang
order to satisfy the judgment. In laymans term nasa dispositve portion, sa writ of execution ang
hahatakin ni sheriff ang mga properties nyo, but I ginawa lang ng judge for the defendant to pay the
would like to point out that hindi basta basta plaintiff 10 million pesos and to pay damages in
pwedeng maghatak si sheriff ng property. The the amount of 6%. Is that a valid writ of
levying of property is applicable only if the execution?
judgment debtor or the losing party cannot satisfy No ma’am.
the judgment in cash.
Why not?
So you said that if the losing party dies the writ of Because it is not certain, there is room for
execution may still issue in any case after the levy interpretation. Sa una 12 tapos nung papaexecute
has been made. na 6% nalang. The writ of execution should not
vary the terms of the judgment, hindi pwedeng 10
But the question is what if the losing party dies million pwedeng bayaran ng installment kung di
before levy? Bago maghatak ng property si sheriff, naman nakalagay sa dispositive portion,
can a writ of executin be still issued? otherwise the writ of execution is void.
No ma’am, the remedy is to file a claim against
the estate of the deceased. Execution of money judgmewent eto yung mga
pledge of sum of money, damages dahil sa
If the judgment is for a sum of money yun. injuries.

Pero what if the judgment involves recovery of How may judgments for money be excuted?
real or personal property, can a writ of execution By first demand for payment.
be issued even before levy?
Yes. Correct. Who will demand?
The court sheriff. Hindi pwedeng ako na may
So now, a writ of execution you said that it is the dalang writ of execution, oh magabayad ka! The
fruit and the end of the suit. sheriff would demand payment.

And what is being executed in the decision? Does the sheriff have the discretion, if you cannot
The dispositive portion. pay the full amount pay it by installment, balikan
nalang kita kinsenas katapusan. Pwede ba yun?
So now what should be the content or the form of No. So dapat the full payment including the
the writ of execution? lawful fees.
It shall contain the name of the court, the case
number dispositive portion and the instruction to Full payment, paano yung full payment? Anu
the officer to satisfy the judgment. So the writ of yung how could payment be made? Can it be
execution should conform with the dispositve trough a promissory note?
portion of the decision. Otherwise the execution is As a general rule it should be in cash but parties
void. may agree as to the means of payment, for
example cashiers cheque.
Example, in the judgment the judge awarded in
favor of the plaintiff a house and lot in Ayala A certified bank check is what is provided under
Alabang covered by TCT 1234 with an area of 100 the Rules, eh kung papayag naman yung kabilang
sqm nakadescribe. But in the writ of execution the party na cashiers check or managers check eh di
property that was indicated is a house and lot in pwede.
Forbes Park Makati in that case is that a valid
writ of execution? Kung promissory note?
No, it may be quashed. Parties may agree. Di na nga nakapagbayad ng
utang, nagantay ka ng 10 years tapos papayag ka
Let us say that the judge in the dispositve portion promissory note? Well kung papayag ka, at talaga
directed the defendant to pay the plaintiff the naming busilak ang puso mo, but my God
amount of 10 million pesos plus 12% legal rate of promissory note nanaman eh kung di naexecute

21 | P a g e
eh di another kaso nanaman yan. So it should be Si Ms. Balingasa panu magagarnish yung
in cash or certified bank check. pautang ko sakanya?
Halimbawa ako di ako nakapagbayaad, may writ Same procedure. Inonotify sya isusurrender
of execution 10 million wala akong cash at nya.Eh ang sabi ni Ms. Balingasa nagbayad na
certified bank cheque. Eh meron akong judgment sya, di sya pwedeng pilitin. O nagreport ang
in favor of me 10 million din, what can the sherfiff bangko sa Court meron sya 200 pesos nalang
do now? below the maintaining balance, kukunin nalang
The sheriff may levy my properties. yan ng bangko so most of the time paper judgment
nlang. Paper victory. Lalo na kung 20 years ka
In that case kung anu mahahatak ni sheriff yun nagantay ng kaso, but that is the procedure for
ang hahatakin nya, but the judgment obligor execution for money jdugments, and with respect
should be given the option kung aling properties to the garnishment, the 3rd person who are in
ang ipapahatak nya. Nagpunta si sheriff 10 custody or possession of the property of the
million ang sinisingil wala akong pera sabi ni judgment debtor is now considered a forced
sheriff, eh alin ho ba ng pwedeng properties na intervenor.
pwede mo ibigay na hahatakin ko. Eh sa gulo ng
isip ko di na ako nakasagot, bahala ka na kung We mentioned a while ago that if the judgment
anung gusto mo. debtor or the losing party cannot pay in cash or
check, real properties of the losing party may be
In that case what shall the sheriff levy first? levied upon by the sheriff. How do you levy, real
The sheriff sal first levy the personal properties properties like land and building? Kasi class kung
then if it is not sufficient levy the real properties. personal property kukunin lang yang TV mo kotse
mo ref washing machine kukunin ni sheriff.
What if wala akong cash, properties lang ang
meron ako Samsung cerllhone lang. Pero meron Eh yung building at lupa panu hahatakin ni
ako deposit sa bangko, may pautang ako kay ms. sheriff yun?
Balingasa what would the sheriff do? The sheriff will notify the registry of deeds by
Garnishment. giving a copy of the writ of execution and describe
the real propert. At kung mayruong occupants
How do you define garnishment? yung bahay at lupa the sheriff should also notify
It is taking of the property of the losing party in the person or occupants a copy of the order.
the hands of a third person. So you garnish the
property of the judgment debtor in the hands of If this procedure of levying real properties are not
3rd person. complied with what is the status of the levy made
by the sheriff?
So may deposit ako sa bangko, 3rd person ba yung Status is void, it is defective. It will invalidate the
bank? levy as if it was not levied.
Yes.
So money judgment.
May pautang ako kay Ms. Balingasa, 3rd person
ba siya? What if the judgment involves specific acts?
Yes. 3rd person in the sense that they are not Under Section 10 of Rule 39. Judgment directs the
parties to the action. losing party to restore the prevailing party in
possession and to convey the land in favor of the
So how shoud the sheriff garnish my bank prevailing party or to deliver to the prevailing
deposit? party, the properties subject of the execution.
The sheriff must first send notice to the garnishee
then the garnishee will determine if the amount How can this be executed?
would suffice and 3rd if the amount will suffice the
garnishee shall deliver directly to the judgment Sabi ng Court the defendant Jeniffer Munsayac is
creditor the amount. directed to deliver to the plaintiff, Jeff Magsombol
the title of the land TCT 1234 located at Sampaloc
Manila, and to restore the plaintiff Jeff

22 | P a g e
Magsombol in possession of said property. May No, the sheriff is not authorize to demolish the
money judgment involved ba? building and the property.
Wala.
But can the prevailing party move and ask the
So ito it involves doing of acts, panu ko ieexecute court for the issuance of writ of demolition?
to? Panu ieexecute ni sheriff? Yes, but there must be a motion and hearing and
So si sheriff pupunta kay Mr. Magsombol that the party failed to remove what is requested
mayruon po kayong writ of execution, naghearing to be demolished.
naman na po kayo alam nyu na po ito. So ito po
ang nakalagay dyan, ibigay mo yung titulo sa So remember, break open, demolition, removal of
plaintiff at makakaalis na po kayo. Yan yun eh. improvements there should be a special order of
Okay. the court after notice and hearing. Sheriff cannot
just barge in. The sheriff cannot just barge in,
So in that case, what if Mr. Magsombol refuses to and remove the improvements. Even with the
deliver the title? behement refusal of the losing party or occupant
It may be conveyed by another person, at his therein.
expense and it shall have the effect of a valid
conveyance. So in this situatuions under, we mentioned that if
the specific act can be done by another person and
Ako as a judge I will direct the registry of deeds to not only the losing party, contempt is not
transfer the title to the registry of deeds and available. Hindi pwedeng icontempt, however, if
cancel the title in possession of the debtor. in case of special judgments as contemplated
under section 11, when dpo you say that the
Can the court cite Mr. Magsombol in contempt? judgment is special? Parang halo halo, may
No, because the order is directed to the sheriff not special at regular.
directly to him.
A judgment is special if it can be performed only
What if the judgment involves, selling a real or by the person, by reason of the qualifications of
personal property, how can it be executed? him. Sya lang pwedeng magperform ng act subject
Kasi it is the act, ibenta mo yan. Eh di susundin of the judgment.
ng losing party at yung proceeds ibibigay nya sa
prevailing party. In that case if the loosing party refuses to perform
the act in the judgment, is contempt now
In my first example, pinapadeliver yung title, available?
pwedeng ibang tao gumawa nun? My question is Yes.
may isa pang judgment for Mr. Magsombol to
vacate the property and restore the prevailing Let us say for example sim Mr. Magombol, in an
party in possession. Antigas ng ulo nya sinarado action for support, let us say kunyare, may anak
nya ang bahay ayaw nya papasukin si sheriff, can ka na ba Mr. Magsombol? Bigyan natin ng anak,
the sheriff barge in and break open the property? sample lang. Nagfile ng support, anak lang
No. Kung abandoned na pwede naman. Pero dito walang asawa uso na yan ngayon eh.
kasi andun si Magsombol.
So. Mr. Magsombol nagrefuse, pwede bang
What if there is a break open order? bestfirend nya nalang magsupport?
Sheriff has the authority to break open, break No, it is a special judgment.
open lang nya wag nyang ibibreak open yung jaw
ni Mr. Magsombol. Don’t be like *** nung Why?
dinedemolish binugbug nya yung sheriff. Because it cannot be performed by somebody else.
Kasi ang qualification ng support can only be
So may break open na si sheriff, ayaw talaga demanded from parent. Eh yung bestfirend
umalis he does not want to vacate the property. naman nya hindi sya yung magulang ng bata. It is
Can the sheriff demolish? only him that can perform the act subject of the
judgment.

23 | P a g e
So halimbawa, yung bahay at lupa ng loosing surveyors, clergymen, teachers, and other
party, the sheriff levied the house and lot. So professionals, not exceeding three
hinatak na. Yung house and lot mo ngayon hundred thousand pesos in value;
nakasanla sa ibang tao. Nakasanla sa bangko 8. One fishing boat and accessories not
bago pa man malevy ng sheriff, ang sabi natin ang exceeding the total value of one hundred
purpose kasi ng levy para ibenta yun ni sheriff thousand pesos owned by a fisherman and
mabayaran yung pagkakautang nya sa winning by the lawful use of which he earns his
party. Ang question ngayon, ay ibebenta na rin livelihood;
ngayun yung property sa public auction to the 9. So much of the salaries, wages, or
highest bidder to satisfy the judgment. earnings of the judgment obligor for his
personal services within the four months
What would happen now to the real estate preceding the levy as are necessary for the
mortgage which is existing? support of his family;
A lien is created. Even if the sheriff already levied 10. Lettered gravestones;
the house and lot the existing mortgage could be 11. Monies, benefits, privileges, or annuities
respected and recognized. accruing or in any manner growing out of
any life insurance;
So ang question ngayon, ibinenta na diba, alin 12. The right to receive legal support, or
ngayun ang unang babayaran? money or property obtained as such
Yung real estate mortgage, saka yung prevailing support, or any pension or gratuity from
party. the Government;
13. Properties specially exempted by law.
Eh panu pag nabenta, eh tama lang to pay the
mortgage? What will happen? Yung furniture, eh panu yung TV na 100,000 ang
The sheriff will again look for another property na value diba? So in this day and age kelangan
pwedeng hilain. imodify na itong amounts na ito eh.

What are the properties exempt from execution? How about jewelries? Are they exempt?
1. The judgment obligor's family home as No, the list is exclusive.
provided by law, or the homestead in
which he resides, and land necessarily Yung sweldo can it be the object of a writ of
used in connection therewith; execution? Mga earnings kung may business ka.
2. Ordinary tools and implements personally Yes, in excess of the need of the family for 4
used by him in his trade, employment, or months. After 4 months pwede ng maging subject
livelihood; of the writ of execution.
3. Three horses, or three cows, or three
carabaos, or other beasts of burden, such Life insurance pwede ba?
as the judgment obligor may select Hindi.
necessarily used by him in his ordinary
occupation; Ako meron nyan, para ngang brossure eh sabi ko
4. His necessary clothing and articles for sa asawa ko ayaw ko namang pangit yun
ordinary personal use, excluding jewelry; kalalagyan ko pag dumating na yung araw na
5. Household furniture and utensils yun. Gusto ko naman yung maganda ang design,
necessary for housekeeping, and used for dati takot ako, after so many deaths
that purpose by the judgment obligor and namumrublema kung saan kukuha ng
his family, such as the judgment obligor pangkabaong, saan ililibing. Maging praktikal
may select, of a value not exceeding one nalang, ma-outlive ko naman yan eh kasi pag at
hundred thousand pesos; the age of 60 di ko pa magagamit may rebate.
6. Provisions for individual or family use Pero atleast prepared, may brosure namimili,
sufficient for four months; ayaw ko naman yung basta nalang ako ilagay
7. The professional libraries and equipment kung saan. Well its part of life, its inevitable. The
of judges, lawyers, physicians, only thing permanent in life is death and taxes.
pharmacists, dentists, engineers, From the day you are born may taxes and yung

24 | P a g e
papasukan ng kabaong mo may taxes din. Death Well sa Muntinlupa duon sa may quadrangle sa
and tax. may munisipyo.

So yung life insurance hindi pwedeng subject ng Let us say that a car was levied by the sheriff on
writ of execution, lupa ni Judge sa St. Peter akin the premise that that car is owned by the losing
na, hindi pwede yun. party kunware si Ms. Balingasa, sabi nya kotse ko
nalang hatakin mo sheriff it turned out the car is
Yung pension ng isang retiree can it be a subject not owned by Ms. Balingasa kay Mr. Doctor pala.
of a writ of execution? Syempre shocked si Mr. Doctor.
No.
What now are the remedies of Mr. Doctor?
Eh yung retirement benefits? Third party claim.
No.
In what form?
What is the lifetime of a writ of execution? Execute an affidavit of ownership, stating the
5 years. grounds he relies that he has ownership. First is
he would execute an affidavit that he is the owner
Is there anything under Rule 39 that mentions of the car.
the lifetime of a writ of execution?
This is the same as period to execute a judgment To whom?
and it is very clear under section 14 the writ of To the sheriff, and this is called terceria ibibigay
execution shall continue in effect, during the nya kay sheriff. Si sheriff naman magrereport sa
period within which the judgment may be court na ang nahatak nya ay being claimed by a
enforced merely by motion. Within 5 years from third person.
entry of judgment.
What else are the remedies available to Mr.
Now, under Section 15, after levy the property Doctor?
will be sold on execution and under Section 15 He can file a motion before the court in order to
there are three preferred places on which notices determine whether the sheriff acted correctly or
of a sale at public auction may be made. wrongly in levying his car, and it would only be a
summary hearing the purpose is to determine,
Saan dapat ipost ni sheriff yung notice of public whether, because class it is very basic sinasabi ko
auction? sa sheriff ko na siguraduhin mo na yung
Conspicuous places, city hall town hall or hahatakin mo ay pag aari ng losing party kung
municipal hall. Public market, hindi pwedeng sa hindi ay admin ka.
savemore, dapat public market, judge public
naman yun. A public market is operated and Dahil a sheriff who levies a property of a third
maintained by the local government.Diba yung person acts beyond his authority in the writ of
mga munisipyo, kunware Dagupan public market, execution, he oversteps his authority. So
bilihang bayan ganyan. kailangan sigurado ka na yan ay property ng
judgment debtor. So yan ang 2nd remedy, he can
What else? file a motion before the court. Ang idedetermine
Post office. dyan ay kung may basis ang kanyang claim na
kanya yun, is that a conclusive determination of
Dapat talaga baguhin na ang rules, wala ng the court of the ownership of property mistaken in
pumupunta sa post office. Sabi ko nga dapat levy?
pwede na posting ng notice through online. Dapat No, it is a mere summary hearing eh.
may website, as long as this is not amended, we
should follow the 3 preferred public places. So if Mr. Doctor really wants to settle his claims of
ownership, he should file, another remedy given to
The notice should specify san magaganap ang him, an independent action to establish his
public auction the exact time and the date. ownership. So tatlo,

25 | P a g e
So can he file an action for damage against the The excess of 5 million will be given to the
bond? judgment debtor.
Yes.
Eh pano naman kung 5 million lang yung
Can he file an action to annul the levy with property, 10 million yung judgment, can the
damages? prevailing party not pay the said amount in case
Yes. he is the highest bidder at 5 million?
Yes. The judgment is not obliged to pay if the
Those are the 5 remedies given to a third person property sold is of lesser value to the amount of
whose property was mistakenly levied by the judgment.
sheriff.
Now, let us say that the highest bidder is not the
Ang question ko ngayun eh property nya naman judgment obligee, a third person and that highest
yun ngayun, can he file a motion for intervention? bidder refuses to pay, what would be the remedy
No, because the judgment is already final and against him?
executory. Sell again the property to the highest bidder and
the sheriff can file an action to claim for the loss
Eh kelan ba nagiintervene? incurred from the highest bidder who refuses to
Before judgment. pay.

So ngayun sabi ni Mr. Doctor, akin yang kotseng Can the highest bidder be cited in contempt of
yan sheriff nagfile sya ng affidavit. Should the court?
sheriff continue with the levy? Yes and he will be black listed, hindi na sya
No dahil may doubt na eh, unless there is a bond pwedeng magbid. Kasi magbibid sya tapos di
posted by the prevailing party. Don’t worry sige naman nagbabayad, remember that the public
kunin mo. auction is part of the official proceedings of the
court. Kaya parang may mockery on the part of
So in that case can the sheriff continue with the the court kapag ganun.
levy?
Yes. So if he proves that he really is the owner he Now, if the property sold is personal property,
can file a claim against the bond. kunware a car and there is a highest bidder. The
delivery is very practical in this case, together
So we said a while ago in case of levying real or with the manual delivery what shall the sheriff
personal properties of the judgment debtor or the give and issue to the highest bidder?
loosing party, we now discuss the procedure The sheriff shall issue a certificate of sale. This is
during a public auction. very important because the issuance of the
certificate of sale or the COS yun yung language
During a public auction to whom shall the sheriff ng mga sheriff COS, without this kasi the sale will
sell the property? not be effective.
To the highest bidder.
What if the property sold is a real property, how
Can the prevailing party, bid during the auction? can it be delivered?
Yes. The sheriff shall also issue a certificate of sale
describing the property stating the price of the lot
If the prevailing party is the highest bidder then or parcel of lot or land and shall also state that
the property would be given to him. Let us say for the sale is subject to 1 year redemption .
example the award given is 10 million pesos and
the sheriff sold the property during the public So it must be provided for in the certificate of sale
auction at 15 million pesos. So that is the highest of real properties that it is subject to redemption
bid. within a 1 year period, proforma na yan nasa
COS. Nasa ilalim.
So judgment is only for 10 million pesos, what will
happen to the excess of 5 million pesos? Who will exercise redemption?

26 | P a g e
Judgment obligor or the redemptioner.
Halimbawa yung judgment obligor hindi nya
Is there redemption if the property is personal? inexercise his right of redemption within that 1
No. Redemption is applicable only to real year period, can the bank redeem the property?
property, kaya COS ng personal property walang Yes.
nakalagay duon na redemption period.
Within what period?
With respect to COS involving real property, for it Within the 1 year period.
to be effective what must be done by the sheriff?
The COS must be registered with the registry of What if the judgment obligor, redeemed the
deeds. Withot the registration then, it is not property within the 1 year period, can there be a
effective. subsequent redemption by the bank?
No, there is no further redemption because the
Why do you think it is not effective if not judgment obligor will already be restored to his
registered? Because when do you count the period property, wala na.
of redemption?
The 1 year period of redemption is counted from Judge eh panu naman ho yun? May utang sya sa
the registration not from the issuance of COS. So bangko nakamortgage, anung remedy?
it is very important that the sheriffs registers the The remedy of the bank is to foreclose the
COS kasi kung hindi niregister yan ng sheriff, mortgage.
then, at anytime pwedeng iredeem yan. Kasi
sasabihin pwede koi redeem yan kasi di naman Let us say that the judgment obligor did not
nakaregister, Kasi the 1 year period will not redeem the property, ang nagredeem is the bank,
commence to run. Within 1 year from the date of so siya yung first redemption within the 1 yr, it
registration of COS, not from the issuance of the turned out, the losing party ay pagkakautang pa
COS. of 5million pesos in a lending institution, can that
lending institution exercise subsequent
It was mentioned a while ago that the right of redemption?
redemption can be exercised either by a Yes judge within 60 days from the last
redemptioner or the judgment obligor, who is a redemption, within 60 days at pwede pa yung
redemptioner? ibang creditors, pero ang period is already 60 days
He is a creditor who has a lien over the property no longer the 1 year period granted to the first
by virtue of attachment, judgment or mortgage redemptioner or the judgment obligor.
and such lien is subsequent to the lien by which
the property was originally ___. What we are talking about here, the 1 year
redemption period is redemption mandated by
In our example, a house and lot which is levied by law, it is provided by rules so it is legal
the sheriff is sold for execution is mortgaged to redemption. Can it be extended? Halimbawa
the bank, that mortgage is a lien. And for makikiusap yung judgment debtor na pwede po b
purposes of the house and lot, the bank here is a n bigyan niyo pa ako ng another year, or 2 years
creditor, is it not? to redeem?
No, it cannot be extended, this is legal redemption
So the house and lot was sold at a public auction but if it is conventional redemption, there could be
and the prevailing party was the highest bidder, an extension.
in that case who may redeem the house and lot, in
that case who may redeem the house and lot? Pending the 1 year redemption period, let us say
The judgment obligor within 1 year period. the house and lot, ang highest bidder ikaw ang
judgment debtor si Ms. Balingasa, nabili mo na
Who else? may certificate of sale ka na nakaregister na
The bank. ,during that one year period, can you now take the
posssesion of the house and lot can you occupy
Who is called? and live there?
The redemptioner.

27 | P a g e
No judge the possession would still be with the na sya nagredeem consolidated na yung
judgment debtor, so he has still the right, hindi ownership.
lang yan accomodation by the Rules, he has the
right to stay there because the ownership of the When will that consolidation of ownership be
highest bidder is not yet consolidated. Conditional reckoned with? After the expiration of the 1 year
pa din eh, pwede pa niyang iredeem yung period or at the time when the sheriff levied the
property. property?
From the time when the sheriff levied the
Halimbawa si Ms. Balingasa ung dalawang property. So it retroacts.
kwarto pala nung bahay pinaparentahan niya,
who will be entitled to collect the rents over the We have already discussed Section 34 with
property. Is it the highest bidder or still Ms. respect to revival of judgment.
Balingasa?
It's still Ms. Balingasa. Sections 36 to 43, isipin nyu napakahaba, yan
yung remedy, these are the remedies if the
So can Ms. Balingasa still make ordinary repairs judgment was returned unsatisfied despite the
on the property, yes judge. issuance of writ of execution, bakit ba unsatisfied?

Yung luxurios ipmrovements pwede niyang Una, walang ibabayad yung judgment debtor,
gawin? wala ng makuhang properties yung sheriff wala
Ah yes judge, since she is still the owner. ng mahanap na property whether real or personal
property kaya magrereport ang sheriff judgment
In this case class, as we have discussed the is unsatisified.
property she has the right of possession and you,
you can have the right to possession but according Now, in that case, under Section 36 what can the
to the rules, siya pa rin, because she has still the judgment creditor do?
right to exercise redemption within the one year The judgment creditor can ask the court to order
period. the appearance of the judgment obligor, for
investigation whether he has other property that
Kung halimbawang this is not applicable to can be subjected to satisfy the judgment. Its just
personal property, halimbawa kotse, right then saying that, ang court ang pipiga, o wala ka na ba
and there after the public auction, who will be talagang ibang properties? The court will cause
entitled? the examination, kaya sya magaappear dahil
The highest bidder. under oath yan ng court, di sya
makakapagyabang dahil perjury aabutin nyan.
Upon the expiration of the redemption period of That is given to the judgment creditor.
one year, if there is no redemption, what is the
effect? How about the judgment debtor, what can he do
The highest bidder or purchaser is entitled to kung wala ka ng mapigang properties at pera
conveyance and possession of property. talaga, under Sectuion 37?
Those owing to the judgment debtor can be also
So will this ownership be now absolute? asked to appear before the court. Pati yung mga
It will be consolidated upon the issuance of may utang magtuturuan na yan, kai ang 2aa may
sharing of certificate of non-redemption, so mga utang sakin yan eh, yang mga yan andami ng
everything will be acquired by the highest bidder, utang sakin nyan. Eh nung ginagarnish nung
he has the title and all the rights and claim of the sheriff sabi nyo wala kayong utang, the court will
judgment obligeor of the property will no longer be call all of you and examine you.
existing.
What if after examination of the judgment debtor
So everything will be the acquired by the higest and the 3rd persons who owe the judgment debtor
bidder, he has the title, all the rights the claim of money, what can the court do? So nalaman ng
the judgment obligor will no longer be existing. court, may property pa pala tong judgment debtor
Wala ng karapatan yung judgment obligor kasi di

28 | P a g e
eh, tinatago mo atsaka may mga pautang ka pa lang naman di applicable ang command
pala eh. responsibility eh. But in all other government
agencies, applicable yan except him, so he says.
This properties can be subject to levy and if there
are other debts owed to the judgment obligor, the So, those are the remedies granted to a judgment
obligor of the judgment obligor may be ordered to obligee and even to the judgment obligor kung
pay directly to the judgment creditor. talagang the writ of execution cannot be
implemented. Despite attempts of levy of property
Can the court direct the judgment debtor, eh kung or attempts to collect cash for money judgment.
wala ka ng ibayad, hulug hulugan mo nalang.
Biruen mo 10 million pesos hulug hulugan Let us proceed to Section 47. Remember when we
nanaman. were discussing, Rule 16 grounds for motion to
Yes as long as, the Court will not touch the four dismiss res judicata, one of the ground of the
months salary diba? Which is excluded from the motion to dismiss is when there is res judicata
writ of execution. This is provided for under during that time we discuss about the concepts of
Section 40, so may court order, bayaran mo by res judicata which I mentioned to you is based on
installment. Section 47 Rule 39.

Now, what else can the court do if the court after The two concepts of res judicata are provided for
examination determined na marami pa palang under Section 47, so what are the effects of final
properties si judgment debtor sa ibat ibang parte judgment or final order?
ng pilipinas. At nagpaplan yung debtor na A judgment or a final order against a specific
idispose, dinidiscipate nya na yung properties? claim is conclusive to the title of a thing.
The court can prevent the disposal of the property
to defraud the judgment creditor. For example recovery of ownership of a parcel of
land located at Sampaloc Manila with TCT # 1234
Can the court appoint a receiver? with an area of 100 meters nakadescribe yun. If
Yes judge to preserve the property. the court adjudged in your favor that property,
that is conclusive, and there is res judicata.
Can the sheriff be appointed as a receiver?
No. Pag ginawa mong receiver yan the following What else?
day wala na yung properties na yan. Hindi naman A judgment or final order with respect to a
lahat ng sheriff ganun, nakakita na ba kayo ng probate of a will or the administration of the
sheriff? Alam nyu agad eh, may kwintas na gold, estate of a deceased person is conclusive to the
relo na gold, iba talaga pag sa court, alam nyo na will and the administration, however, probate of a
yun yung sheriff kasi imagine nagiimplement ng will or a letter of grant of administration of the
writ of execution nanghihila ng mga properties, estate of a person is a prima facie evidence only of
yung mga di nababayarang kotseng hinihila. So a death of person.
lahat ng ahh, nagdidemolish may budget yan.
So panu ba yun? Conclusive upon the will pero di
Well kaya ang sabi ko sa sheriff ko, wag ka lang conclusive na patay na yung gumawa?
magkakamalai, kasi kung di ka pa-filan ng kaso Kasi syempre during lifetime pwede naman
nung mga litigante I will make sure na ako tayong gumawa ng will diba? Effective upon our
magpafile ng kaso laban sayo. Kasi ang problema death, in probate of a will ang dinidetermine lang
class, pag naadmin yujng sheriff mo because of naman ng court ay is the testator of sound mind
irregularity in the writ of execution damay ako eh and has the capacity to dispose of his property at
command responsibility because it is under my the time of the making the will? Does the will
signature, under the courts name na ineexecute comply with the requirements of a will? May
nya yun. witness notarized ba yan?

Very strict kasi ang Supreme Court pag Yun lang dinedetermine jan kasi class even if the
nagkamali ang staff mo, damay yung judge by the testator is still alive, he can apply for the probate
principle of command responsibility. Kay Pnoy of his will habang buhay pa tayo at may will tayo,

29 | P a g e
pwede tayong magpetition sa Court for the duties and responsibilities. Pero most of the time,
probate of the will to determine if we have the madaming pagkakataon na talagang, at hindi
capacity to dispose of our property and determine lang ito sa piskal. Meron sa Cebu ganyan din
whether during the execution of that will we are ilang beses na, nagpakasal, nakakarami may
of sound mind. nagdidiborsyo pa sa Amerika kasi ang basis nyan
is the Church, the annulemtn. Kasi diba ang
So pag namatay ka wala ng problema, di na Catholic Church ay forgiving, sabi nga may
pagaawayan ng mga anak mo at tagapagmana chance daw. But kung titignan mo yung statistics,
mo, wala ng problema, so conclusive lang yun na kung nadeclare na psychologically incapacitated
may will ka and you were of sound mind when you yung tao nay un at magkaruon ng relationship
executed the will, but it does not conclusively magkakaproblema parin yun ang example nga si
mean that the testator is really dead so ang res Kris Aquino. Sinu ba yung asawa nya na
judicata lang is, yung last will and testament nagbabasketball?
valid or not valid depending on decision of the Si James Yap.
court.
Meron pa si Mayor Herbert, parang imaginary
What else? anu lang naman sya, para sakanya sila may
Judgment or final order with respect to personal, relationship, yung lalaki di nila alam na
political, legal condition or status of a person or karelasyon na pala nila si Kris. Not of
his relation to another is conclusive upon the psychological incapacity na ito, eto ay
status, condition or relationship of the person. psychological imbalance na. Diba sabi sa Family
Code psychological incapacity is not a sickness of
Declaration of nullity of marriage between A and the mind. Hindi naman sakit sa utak, although
B, sabi ng court null and void because of kailangan ng psychiatrist ang psychological
psychological incapacity. Is that res judicata? imbalance ay iba talagang illness of the mind yun
Yes between A and B. which could alo be the basis of psychological
incapacity.
Pag magasawa ulit si A, nadeclare na syang
psychologicaly incapacitated pwede ba sya Very vague nga yan eh na kahit anu pwede mong
magasawa ulit, pag nagasawa sya valid yun diba? gamitin.
Yes.
So, what else?
So res judicata with respect to B, pero pwede sya Any other case judgment or final order, with
magasawa at hindi pwede sabihing uy res judicata respect to the matter directly adjuged or in
ka na psychoilogically incapacitated. Res judicata relation thereto is conclusive between the parties
only with respect to the relationship of A and B. and their successor in interest by title subsequent
to the commencement of the action or special
May kilala ako piskal, thrice married. 1st proceeding, litigating for the same thing, and
nagpadeclare ng nullity under Article 36. 2nd time, under the same title and in the same capacity.
ganun din nagasawa ulit, ganun din
psychologicaly incapacitated tapos ngayun So all those cases which you have enumerated, the
nagasawa nanaman. judgment in those cases are covered by paragraph
of A and B of Section 47. And those pertain to bar
Kaya nga ang sabi ko dapat yung family code by prior judgment as a concept of res judicata and
iammend eh na pag psychologically incapacitated the last paragraph pertains to conclusiveness of
la, dapat res judicata nay un. Eh kasi diba judgment.
juridical antecedent, it is incurable, so kahit sinu
ang partner mo may tama ka talaga. Tignan mo si What do you mean by conclusiveness of judgment
Kris Aquino, hilan na baa ng nagging “boylet” under Section 47?
nya. Kahit judge ako, di naman ako nagjajudge Any right fact or matter that is already adjudge or
ng.... pero class ang psychological incapacity di necessarily included in an action is settled and
naman relative yan eh, na pag sya ang partner mo cannot be litigated anymore.
eh you cannot perform your marital obligations

30 | P a g e
Ang example ko nga nun yung unlawful detainer. Ms. Monsayac a while ago mentioned about
In an ejectment case yung possession hindi mo na quashing a writ of execution, when the writ of
pwedeng irelitigate yun pero yung ownership is a execution does not conform with the dispositive
different matter. So there is conclusiveness of portion or it varies the terms of the dispositive
judgment on the issue of possession alone. So portion of the decision. So that is 1 ground to
there is res judicata on the issue of possession but quash a writ of execution.
not the issue of ownership with respect to
ejectment cases. What are the other grounds to quash a writ of
execution?
Now, foreign judgments or final orders, may 1. If the property subject of the execution is
epeketo ba yung foreign judgment dito sa excempt from execution. Oo, correct, tapos
Pilipinas? For example Filipina married to an papaexcute diba?
Amaerican citizen, the American citizen filed for 2. If the property levied or if the property
divorce and it was granted. He was granted with a subject of the writ of execution is owned
decree of divorce. What is the effect of that foreign by a third person, ang ginawa ng court
decree in our country in our jurisdiction? yun ang pinapaexecute nya kay sheriff.
It is not binding in our jurisdiction. So it cannot Kasi implementing or enforcing a writ of
be recognized in our jurisdiction. execution to a property of a third person is
very patent, it can be quashed.
In your study of the family code, if it is the foreign
spouse who filed for divorce, against the Filipino Halimbawa the judgment was already satisfied
spouse, that could be valid diba in our jurisdiction, and the judge still issues a writ of execution?
so yun ang effect nun, but when could it be It is subject to quashal.
recognized? That decree of divorce, you should file
an action for recognition of judgment here in So those are some of the grounds by which a writ
Manila, and could we apply section 47 yung res of execution can be quashed. Basta ang very basic
judicata? That with respect to the marital ground is yung sinabi ko that it does not conform
relationship between the foreign spouse and with the dispositive portion and it varies the
Filipino spouse that decree of divorce is res terms of the dispositive portion.
judicata? If that foreign judgment is recognized
here in the Philippines? So that is writ of execution.

Yes. Sa ating jurisdiction irerecognize natin na

divorced nga sila. RULE 40
My question is, pero kung halimbawa, ang We now proceed to appeals.
Filipino spouse ang nagfile ng divorce, is it valid
in our jurisdiction? Is the right to appeal part of due process?
No, not valid kailangan yung foreign spouse. It is not part of due process but a mere statutory
privilege. It is granted by law not by the
At hindi naman pwedeng basta basta magasawa Constitution.
yung Filipino spouse diba, kasi kung sa foreign
country even after divorce ay hindi naman parin What specific law grants the right to appeal?
pwede magasawa ay hindi talaga parin pwede The Rules of Court.
mag asawa kunware yung Filipina, pero kung sa
US na pwedeng mag-asawa magbebenefit din What particular law? Because the basis of the
naman yung Filipina spouse pwede syang rules of court is part of the rule making power of
magasawa. the Supreme Court, but the basis really is a Law,
which specifically provided for the right to appeal,
So effects of foreign judgment or orders. Pwede mo kaya mayruon tayong Rules 40-45.
sabihin, eh judge we do not recognize divorce in
our country, but that is provided for in the family
code.

31 | P a g e
Lagi natin sinasabi the right to appeal is not part What are the modes of appeal? There are two
of due process but only a statutory appeal. But modes of appeal.
what law granted this? 1. Ordinary appeal
BP 129 in the same way that jurisdiction is 2. Discretionary appeal
conferred by law, it is conferred by BP 129
particularly Section 39. Mr. Magsombol, please Ordinary appeal is covered by rules 40 and 41.
read BP 129 Sec. 39 to show the basis of the Rules
of Court and the right to appeal. Is ordinary appeal a matter of right?
Yes. You say that your appeal is a matter of right
BP 129. Sec. 39. Appeals. The period for appeal with respect to your first appeal.
from final orders, resolutions, awards, judgments,
or decision of any court in all cases, shall be 15 An ordinary appeal is perfected by filing either?
days from the notice of the final order, resolution, A notice of appeal or a record on appeal.
award, judgment, or decision appealed from……
Discretionary appeal is provided for under Rules
Nung panahon pa ni Marcos so Batas Pambansa, 42 and 45 which is through?
wala pa tayong kongreso nuon ang mayruon Ordinary appeal and Appeal by certiorari or
general assembly kaya ang congressman nuon petition for review on certiorari.
ang tawag ay Assembly Man. Yan yung walang
senate at House of Representatives, ang mayruon Iba yung petition for review on certiorari under
nuon Batasang Pambansa, dun din sa Congress Rule 45 at petition for certiorari under Rule 65.
ang opisina nila nun. BP 129. Ang Rule 65 is a special civil action not a mode of
appeal unlike Rule 45 which is a mode of appeal.
Yng mga judges nuon nareorganize tanggal sila
lahat, wala ng Curt of First Instance kaya Now, Mr. Magsobol sinu ba pwede magappeal?
nagkaruon ng RTC kaya may provision on Either of the parties. If the parties still feel
Jurisdiction. aggrieved he can appeal, sabi ko nga sainyo
mayruong plaintiff nanalo na walang satisfaction
Can you find that in the Constitution? mag-aappeal pa kasi hindi satisfied sa amount of
No. damages. Gusto nya 10 million ang binigay lang
ng Court 50,000 or 1 million lang kasi yun lang
Among the rights in the Bill of Rights kasama ba naman naprove nya.
yung right to appeal?
No. It is not part of due process. So, any party aggrieved or prejudiced by the
judgment.
For purposes of the exercise of the statutory right Ang sabi natin kanina ordinary appeal is
to appeal, payment of docket fees is required. perfected by filling a notice of appeal or a record
on appeal. Within what period must a notice of
What is the effect if docket fees are not filed, but a appeal be filed?
notice of appeal is filed or a petition for review is It must be filed within 15 days from the notice of
filed? judgment or final order.
It is a ground for the dismissal of the appeal.
How about a record on appeal?
So kapag di nakabayad, may the court outrightly Within 30 days from notice of judgment.
dismiss the appeal?
There must be a motion. When is a record on appeal required?
It is required in case of special proceedings and in
Well, and it is discretionary upon the Court. The other cases wherein multiple or separate appeals
Court will give the appellant time to pay the is allowed by the Rules.
docket fee, so the non-payment appeal docket fees
is a ground for dismissal but it is a discretionary Ahm, change of name, correction of entry,
dismissal not automatic upon the Court. settlement of estate, guardianship yung mga
special proceedings record on appeal, and multiple

32 | P a g e
appeal. Kagay ng expropriation, in expropriation
there are two issues to be resolved, first the So pag nareceive ko ang record on appeal, ang
propriety of the exprpration. So the court will first gagawin ko ngayin is to direct my branch of clerk
determine, eto bang expropriation na ito ay for of court to prepare the records of the case and
public purpose? And is it being filed by the proper elevate it, the entire recrds to the Court of
authority? Pag sinabi ng court that the Appeals.
expropriation is for a public purpose and it is valid
pwede ka na mag-appeal dun. Pwede ka na Sasabihan ko sa appellant, paphotocopy mo lahat
magapela, sasabihin mo hindi naman yan for ng mga records na kailangan mo and we will
public purpose eh gagawa ka ng subdivision for elevate that. Nakaindex lahat yan.
private use naman.
What is the consequence of the failure to appeal
Kaya lang mayruon pang iang issue, just on time?
compensation na kilangang irefer mo sa isang The appellant can no longer file an appeal, and
commissioner, so in that case importante ang the judgment will become final and executory.
record on appeal.
In case of an appeal, is a new trial conducted by
So the defendant, ay iaapela nya ang first issue an appellate court?
which was adjudge by the court eh ang record di No. Irireview lang kasi ng appellate court.
mo ba pwede i-elevate sa appellate court dahil
may ihi-hearing pa kayo na issue on just Can new parties be impleaded during the appeal?
compensation. So kaya anu ba ang record on No. The title of the cse ill remain the same,
appeal? plaintiff versus defendant, dadagdagan mo lang
Lahat ng record ng kaso isi-xerox mo lahat ng kung ang defendant ang nagappeal, lalagay mo
orders, at yun ang ieelevate mo kaya record on defendant appealantm yung plaintiff, plaintiff-
appeal. Kaya mas matagal ang record on appeal appellee pareho parin yun.
30 days.
What are the issues that may be considered by the
And it is also important that when you file a appellate court in an appeal?
notice of appeal or a record on appeal, specify the Only those assigned errors in the appellants brief,
material dates. kasi class nagfile ka ng notice of appeal sa trial
court so ieelevate naming yng records. Pag
And what are the material dates that should be natanggap na ngayin ng CA ang entire records
specified? inonotify ngayon yung appellant na eto yung
Notice of the party of the final judgment or order. record on appeal, now the appellant will file an
So yun ay kung kailan mo natanggap yung appelants brief at duon nakalagay, assigned
desisyon. errors.

Bakit? In civil case, if an error or issue is not assigned,

Because the 15 day period will start from that can the CA resolved those issues not assigned as
notice. errors?
As a general rule the CA cannot resolve those
Class ang notice of appeal napakasimple lang, one issues, except:
page lang yan nakalaga, the defendant through
counsel files this notice of appeal against the 1. Errors on jurisdiction over the subject
decision of the Court, dated, which was received matter.
on for being contrary to law and evidence. Period. 2. Errors affecting the validity of judgment.
3. Errors affecting the proceeding.
Where do you file the notice of appeal? 4. Errors directly connected to the assigned
Before the trial cour.t. errors.
5. Plain clerical errors.
How about the record on appeal?
Also before the trial court.

33 | P a g e
In a criminal case, kasi sa criminal case may
appellants brief din and if the CA finds an error in
the decision of the Court pero hindi assigned
errors, can the appellate court rule on that?
No. it is different in criminal cases , in a criminal
case unlike in a civil case, the entire case is open
for review ganyan sa criminal case and even if the
errors is not assigned the same may be resolved
by the appellate court. Remember that, yun ang
distinction ng civil at criminal case with respect to
assigned errors.

34 | P a g e
15. CLEA
J: Of all the parties?
Judge (J): Miss Tiambeng, so we started
discussing appeals. So, we discussed the two To be accurate, hindi siya “OR”. The court which
modes of appeal: ordinary and discretionary render the judgment loses jurisdiction over the
appeal. So, an ordinary appeal is an appeal as a case upon the perfection of the appeal AND the
matter of right, while a discretionary appeal is no expiration of the time to appeal of the other
longer a matter of right. And we have discussed parties. So both must conclude. Kasi, kapag
that an ordinary appeal may be perfected either naperfect yung appeal, nakapag-appeal yung mga
by filing a notice of appeal or a record on appeal. parties, hindi naman automatic na mawawala na
yung jurisdiction. Because as long as the entire
Now, when is appeal by notice of appeal records are still with the court of origin, and the
perfected? entire records are not yet elevated to the appellate
court, the court does not lose jurisdiction, even if
Student (S): An appeal by notice of appeal is the appeal is already perfected.
deemed perfected upon the filing of the notice of
appeal and the payment of the appellate docket Record on appeal. You mentioned that the appeal
fees and other legal fees. is perfected as to the party filing the record on
appeal upon approval of the record on appeal.
J: In due time. Within the period prescribed by
law. Question: when does the court which rendered the
judgment lose jurisdiction over the case? Not
And how about the record on appeal? When is it really over the case, but only over the subject
perfected? matter. Kasi diba sabi natin, ang record on appeal
is applicable when there is multiple appeal or a
S: An appeal by record on appeal is deemed special proceedings.
perfected upon the approval of the record on When does the court lose jurisdiction over the case
appeal which was filed in due time and upon the if it is through a record on appeal?
payment of the required fees.
S: upon the approval of the record on appeal or
J: So, there are two parties in an action, and when upon the expiration of the period on which to file
a decision is rendered, the aggrieved party will the _____.
appeal. Well yung winning party class, kahit
nanalo siya, maybe there are some matters that J: So remember, if it is through notice of appeal
he does not agree with the court. Laging ang and through record on appeal, magkaiba. It is
nagiging contention diyan nung winning party different when the court loses jurisdiction over the
kulang yung award ng court. So magaappeal din CASE if it is through notice of appeal or over the
yan. So, a perfected appeal is, as you said, if it is SUBJECT MATTER of appeal with respect to a
through a notice of appeal, is by filing a notice of record on appeal.
appeal in due time as to the one party. So as to
her or as to him, perfected yan. But remember, Now, when is an appeal by petition for review or
the other party also may appeal. So it is perfected discretionary appeal perfected?
as to the other party when he files a notice of
appeal in due time. S: Upon the filing of the petition for review and
upon the expiration of the period of which to file
Okay, now question. When does the court which the said petition.
will render the judgment loses jurisdiction over
the case? When the mode of appeal is through a J: We are talking here of mere perfection. When
notice of appeal. you say perfected, you took the appeal. When an
appeal is perfected, it does not necessarily mean
S: Upon the filing of the notice of appeal or upon that the court already lose jurisdiction.
the expiration of the period to appeal or to file the
notice of appeal.

35 | P a g e
So, the appeal is perfected by petition for review small claims cases the judgment is immediately
upon filing of the petition and payment of executory.
appropriate docket fees.
What is the effect of judgment on those who did
Losing jurisdiction is a different matter from not appeal? For example, I am the plaintiff you
perfection. Kasi, if you would.. oh complaint, in are the defendant, and I won. So you appealed. Of
appeal by petition for review, when does the court course nanalo na ko, hindi na ako nagappeal.
lose jurisdiction over the case?
S: Maam, with regard to affirmative reliefs, the
S: Maam upon the filing of the petition for review person who did not appeal, he cannot ask for
and upon the expiration of the time to appeal by affirmative reliefs on the appealed case. And with
the other courts. regard to reversal of judgments, the general rule
is that only those who appealed will be covered by
J: Please take note of that. Now, prior to the reversal of judgments. And the exception is if they
transmittal of the entire record to the appellate are, if the parties’ defenses and claims are
court, does the court still have remaining interwoven…
jurisdiction over the case? J: If the parties’ claims and defenses are
interwoven. Akala ko if the parties are
S: Yes maam. The trial court has residual powers intertwined eh.
and it may order the, it may allow that the
preservation of the rights of the parties be… If the parties’ defenses or claims are
J: In the exercise of residual powers, what may interwoven/intertwined that it cannot be
the trial courts still do even if the appeal was separated.
already perfected?
Okay, so those are the effects.
S: The trial court may issue an order for the
protection of the rights of the parties with regard Now, under section 1 of Rule 41, what are the
to an issue or a matter not included in litigation in cases or orders that are not appealable?
the appeal or it may allow compromises, uhm…
You can go over section 1 of Rule 41.
J: Can it still dismiss the appeal for being filed S:” Section 1. Subject of appeal. — An appeal may
out of time? be taken from a judgment or final order that
completely disposes of the case, or of a particular
S: Yes maam. matter therein when declared by these Rules to be
appealable.
J: Yes. That is part of the residual power. Now, No appeal may be taken from:
what is the effect if the appeal is perfected? Is the (a) An order denying a motion for new trial or
judgment vacated or is the judgment stayed? reconsideration;
(b) An order denying a petition for relief or any
S: The judgment is stayed and the court may similar motion seeking relief from judgment;
affirm, reverse or modify the judgment. (c) An interlocutory order;
J: So an interlocutory order, I think we defined
J: But what if the judgment is one rendered in a what is an interlocutory order, so it is not
case covered by the rules of summary procedure? appealable. It is explicit under Rule 41. So what is
Will an appeal stay the judgment in summary the remedy of an aggrieved party in an
procedure? interlocutory order? Like for example, ano ba
yung mga interlocutory order, denial of a motion
S: No maam. It is the exception to the general to dismiss, meaning magpoproceed sa trial yan.
rule. It will not stay the judgment. What is the remedy of an aggrieved party kung
hindi siya pwede mag-appeal?
J: If a judgment rendered in small claims cases, is
it appealable? Based on what we’ve studied. In S: An appeal via Rule 65.

36 | P a g e
J: Okay next.
Now, under Rule 40, this is an appeal from the
S: (d) An order disallowing or dismissing an decision of what court?
appeal;
S: From the decision of the Municipal Trial Court.
(e) An order denying a motion to set aside a
judgment by consent, confession or compromise on J: And the appeal is brought to?
the ground of fraud, mistake or duress, or any
other ground vitiating consent; S: The Regional Trial Court.

(f) An order of execution; J: Regional Trial Court. What is the mode of

appeal here? Is it by ordinary appeal or by
(g) A judgment or final order for or against one or discretionary appeal?
more of several parties or in separate claims,
counterclaims, cross-claims and third-party S: By ordinary appeal.
complaints, while the main case is pending, unless
the court allows an appeal therefrom; and J: Always by ordinary appeal. Kasi wala namang
(h) An order dismissing an action without appellate jurisdiction yung MTC. So the decision
prejudice. rendered by the first level court is always in the
exercise of its original jurisdiction. So by ordinary
In all the above instances where the judgment or appeal by filing what? Either?
final order is not appealable, the aggrieved party
may file an appropriate special civil action under S: A Notice of appeal or a record on appeal.
Rule 65.”
J: Now, where should you file the notice of appeal?
J: So, in those enumerated instances, appeal is Before the MTC or the RTC?
not a remedy. At the last paragraph of section 1,
Certiorari is a remedy. But there are conditions. It S: Before the MTC.
must be shown that there was grave abuse of
discretion and we will be discussing that J: The Municipal Trial Court. And within what
exhaustively in Rule 65. period must the appeal be perfected?

Apart from those enumerated in Section 1 of Rule S: It must be perfected within 15 days from the
41, we said judgments in small claims and notice of the judgment or order.
summary procedure are not appealable, judgment
on a compromise and judgment declaring the J: If it is by notice of appeal. But if it is by record
presumptive of the spouse, they are immediately on appeal?
executory. And what is the remedy?
S: By record on appeal, it must be within 30 days
Certiorari. from the notice of the judgment.

Okay now, what is the remedy of an aggrieved J: Okay. So, ang notice of appeal napakasimple
party from an order denying a motion for lang class. Defendant is filing a notice of appeal
reconsideration or new trial? from the decision of the municipal trial court, or
metropolitan trial court of manila, to the regional
S: The remedy of the aggrieved party is to appeal trial court. The decision was received on such a
from the judgment. date. Or eto, the defendant is filing a notice of
appeal from the decision of the metropolitan trial
J: Okay. You appeal from the judgment when the court, copy of which was received on so and so, on
motion for reconsideration is denied; you do not such and such a date, on the ground that the
appeal the denial of your motion for decision is contrary to law and evidence. Yun
reconsideration, that is an improper remedy. Ang lang. And he filed before the municipal trial court.
iaappeal mo yung desisyon nung judgment.

37 | P a g e
Pag binasa mo yun, yung judge ng mtc, if it is malalaman ng judge ano ba ang contrary to law.
within the 15-day period, it is the MTC who will Isang sentence lang yan eh. So, in the
allow the notice of appeal. Ang magiging order memorandum on appeal, doon makikita ano yung
lang, considering that the defendant has grounds ng appeal, yung discussion. Ano yung
seasonably filed a notice of appeal on such and part of the decision which is contrary to law.
such a date, let the entire records of this case be
elevated to the Regional Trial Court. Yun lang. Now, what would be the effect if the appellant
fails to file a memorandum on appeal?
If the appeal is not filed on time, then the notice of
appeal is denied for being not filed on time. That S: It would be a ground for dismissal of the
is why in the notice of appeal, it is important to appeal.
indicate the material dates. And what are the
material dates? J: Ground for dismissal of the appeal, and this is
very clear under section 7 of Rule 40. So you take
S: It is the date when the judgment or order was note of Section 7 of Rule 40.
received.
Now, what would be the title of the case which
J: So para makita agad ng court. Oh nareceive was appealed from the first level court to the
niya last month pa ngayon lang siya nagappeal. regional trial court?
So denied outright. That is the importance of
indicating the “Material Data Rule”, material S: It will be the same title but the party who will
dates. So, syempre pag inelevate yan sa RTC be filing the appeal will be named as the appellant
contrary to law. Ano yung portions ng decision na and the …
contrary to law? Isang page lang kasi yung notice
of appeal eh. J: If it is the defendant who appealed? What
would be the title?
In that case, what should the appellant file before
the RTC under rule 40? S: ahh

So, nandun na yung notice of appeal and the J: Plaintiff-appellee?

regional trial court will notify the appellant that
the RTC already received the notice of appeal. S: Plaintiff-appellee vs. Defendant-appellant
And what should the appellant file then?
J: So halimbawa ito yung plaintiff, si Ms. Mesina
S: A memorandum on appeal. ang defendant, so ang mangyayari, “Jemimah
Tiambeng, Plaintiff-Appellee vs. Julie Ann
J: Memorandum on appeal by the appellant. Mesina, Defendant-Appellant”.
Within what period must the memorandum be
filed? Baliktarin natin. Ang nanalo yung defendant,
natalo ka plaintiff, ang mangyayari, “Jemimah
S: Within 10 days. TIambeng, Plaintiff-Appellant vs. Julie Ann
Mesina, Defendant-Appellee”.
J: Within 10 days?
That would be the title. As I have mentioned, the
S: Within 15 days maam. material date shall be indicated AGAIN in the
memorandum of appeal.
J: From when?
Should there be payment of appellate docket fees?
S: From the notice of the transmittal of the
S: Yes maam.
J: Notice of the appeal. 15 days. The appellee may
file also a memorandum for the appellee. Kasi J: At what court should it be paid? At the
class, kung simpleng notice of appeal, paano appellate court (RTC) o sa MTC?

38 | P a g e
 S: No.
S: MTC maam.
J: Why not?
J: Where do you file the memorandum on appeal,
MTC or RTC? S: Because the cause of action should be Accion
Publiciana.
S: RTC maam.
J: Correct. Within 1 year, wala na, accion
J: At the RTC. Ang ifa-file mo sa MTC yung publiciana. And what is the court of proper
Notice of appeal. jurisdiction with respect to accion publiciana? The
regional trial court. So this is very clear. The
Section 8, I would like you to read section 8 metropolitan trial court has no jurisdiction.
because this is important. Please read it.
Now, the defendant or tenant filed a motion to
S: Appeal from orders dismissing case without dismiss on the ground of lack of jurisdiction which
trial; lack of jurisdiction. — If an appeal is taken the metropolitan trial court of manila granted.
from an order of the lower court dismissing the Sabi niya, wala akong jurisdiction it should be the
case without a trial on the merits, the Regional regional trial court. The plaintiff appealed. Saan
Trial Court may affirm or reverse it, as the case siya magaappeal?
may be. In case of affirmance and the ground of
dismissal is lack of jurisdiction over the subject Regional trial court. Rule 40. By ordinary appeal,
matter, the Regional Trial Court, if it has notice of appeal, appeal as a matter of right.
jurisdiction thereover, shall try the case on the
merits as if the case was originally filed with it. In Okay, sabi ng RTC, “Correct. The metropolitan
case of reversal, the case shall be remanded for trial court is correct in dismissing the case
further proceedings. because it lacks jurisdiction. This is now an accion
publiciana or recovery of possession, within the
If the case was tried on the merits by the lower jurisdiction of the regional trial court.”
court without jurisdiction over the subject matter,
the Regional Trial Court on appeal shall not Question: Walang jurisdiction nga ang mtc, nag-
dismiss the case if it has original jurisdiction appeal sa rtc, inaffirm ng rtc yung dismissal,
thereof, but shall decide the case in accordance should the regional trial court dismiss the action?
with the preceding section, without prejudice to
the admission of amended pleadings and S: No maam. The regional trial court shall not be
additional evidence in the interest of justice. (n) confined with the affirmance of the appeal but
should also try the case as if it was originally filed
J: Okay, para maintindihan natin, let us have an with it.
example pertaining to section 8.
J: Why should it try the case? Eh dinismiss na
You, as the plaintiff, filed a complaint for nga sa mtc. What gives it authority to try the
ejectment. Kasi first level court diba? Exclusive case?
jurisdiction. Ejectment, specifically unlawful
detainer. Kasi nagpaparenta ka hindi na S: Maam because it already has the proper
nagbayad yung tenant mo. So, you filed a jurisdiction to try the case.
complaint for unlawful detainer against your
tenant before the metropolitan trial court of J: Kasi it has jurisdiction. So the rtc should not
manila, is the jurisdiction proper? Okay. Kasi dismiss the case and try it as if it is originally
yung property tsaka yung residence mo sa Manila. filed before it. Recovery of possession na ang
However, you filed the case more than one year treatment niya dyan. Bakit gagawin yun? Kasi
from the time of the last demand. Question, does pag dinismiss niya kawawa naman yung patry
the metropolitan trial court still has jurisdiction magrerefile nalang, bayad nanaman ng fees,
over the action? docket fees.

39 | P a g e
The second situation, same facts. Okay, assuming In Rule 41, the regional trial court there is in the
that there was no motion to dismiss filed by the exercise of what kind of jurisdiction?
defendant. Tutulog-tulog yung lawyer nung
defendant. Nagproceed ang kaso. And the Original jurisdiction.
metropolitan trial court rendered a decision in
favor of the plaintiff ejecting the defendant. The So the appeal will be taken from the RTC to what
defendant appealed to the regional trial court. court?
And on appeal, the regional trial court reversed
the metropolitan trial court and said, “the S: To the court of appeals.
metropolitan trial court has no jurisdiction.
Because the case was filed beyond 1 year from the J: Court of appeals. And what are the other modes
time of the last demand.” In this situation, should of appeal?
the rtc dismiss the case?
S: Yes maam. The dismissal shall be on the merits S: Petition for review under rule 42.
of the case already.
J: Is that what is provided for under the second J: Okay. It would be filed where?
paragraph of section 8 that if the case was tried S: To the court of appeals.
on the merits… the rtc…. J: To the court of appeals. Here, the regional trial
(Bat ganyan ka magbasa ng codal, pa-side? Ah. court is exercising what kind of jurisdiction?
Kasi pa-side yung basa niya nagulat ako eh.)
S: Appellate jurisdiction.
S: Maam it shall decide the case on the basis of
the entire records and the memorandum without J: Appellate jurisdiction. So ang situation dito,
prejudice to the admission of additional evidence. MTC nagappeal sa RTC and then RTC has a
J: So remember, sa second situation may trial on decision, mag-aappeal sa court of appeals.
the merits, but the metropolitan trial court tried
the case without jurisdiction. Nagprisinta ng What are the other mode of appeal from the
evidence, may mga position paper, affidavits, decision of the regional trial court?
counter-affidavits. Pagdating sa RTC, kasi nag-
appeal yung defendant, sabi ng RTC “bakit S: Petition for review on certiorari under rule 45.
nagpatuloy sa proceedings itong metropolitan J: And this is filed in what court?
trial court wala siyang jurisdiction”. In that case, S: Supreme Court.
nireverse niya. But, the regional trial court should J: Supreme Court. So remember, there are three
not dismiss the case. At it shall proceed. (3) modes of appeal from the decision of the
Considering that it was tried on the merits. Well, regional trial court. Covered by Rules 41, 42 and
the rtc in this situation shall not dismiss the case 45.
but shall decide the case using the evidence
presented before the metropolitan trial court Now, under rule 41, the rtc here exercised its
without prejudice to the admission of amended original jurisdiction in rendering the decision. So
pleadings and additional evidence in the interest the appeal is to the court of appeals by notice of
of justice. So that is rule 40. appeal or record on appeal.
Now, what are the errors that may be raised

RULE 41 under rule 41?

S: The errors on the questions of law or fact, or

But before we proceed to that, what are the modes mixed questions of law and fact.
of appeal from the decisions of the regional trial
court? J: What if the question is purely questions of law?

S: Ordinary appeal under rule 41. S: Then maam the remedy will be Rule 45.
J: Under rule 41. So ordinary appeal by notice of
appeal or record on appeal.

40 | P a g e
J: And bring it to the Supreme Court. Now, where Is this an appeal as a matter of right or
do you file the notice of appeal under rule 41? discretionary appeal?
Before the RTC or the CA?
S: Discretionary.
S: The regional trial court.
J: Of course. It is already a discretionary appeal.
J: Before the regional trial court. And within what Kasi, hindi na siya first appeal, second na. So it is
period? already a discretionary appeal. And within what
period must the petition for review be filed?
S: within 15 days from the notice of the judgment.
S: 15 days from the notice of the judgment or
J: If it is through record on appeal? order

S: 30 days. J: And where do you file the petition for review

J: 30 days. Now, the notice of appeal, again, before the regional trial court or at the court of
should contain the material dates and what is the appeals?
ground for the appeal.
S: At the court of appeals.
Again, when is the appeal perfected?
J: Should the petition be verified?
S: In the notice of appeal, upon the filing of the
notice of appeal and upon the payment of the S: The petition should be verified.
docket fees and other lawful fees.
J: Should it be accompanied by a certification
J: Okay. Now, when will the court lose against non-forum shopping?
jurisdiction, when will the regional trial court lose
jurisdiction over the case? S: Yes maam.

S: Upon the filing of the notice of appeal and upon J: You mentioned a while ago that the petition for
the expiration of the period to file. review should be filed within 15 days from the
notice of the decision from the RTC. Can this
J: And if it is through record on appeal, upon period be extended?
approval of the record on appeal. And again, prior
to the transmittal of the entire records, the S: Yes maam. But there should be good cause with
regional trial court can exercise residual powers regard to the extension.
that we have discussed a while ago.
J: Hindi nga lang good cause eh. Because under

RULE 42 rule 42, it should be for the MOST compelling

reason. For how many more days?
S: 15 days.
Let us now proceed to Rule 42.
J: 15 days. And that is the last extension. So all in
Rule 42 pertains to? all, 15 + 15 is equal to 30 days. So in a petition for
review, the period can be extended for filing it. In
S: Petition for review from the RTC to the CA, the a notice of appeal or record on appeal, 15 days or
RTC exercising its appellate jurisdiction. 30 days, by ordinary appeal, can the periods be
J: Okay. So a decision was rendered by the further extended?
metropolitan trial court, or by the municipal trial
court, appealed to the regional trial court, the S: No maam.
decision of the regional trial court would be J: Never. It cannot be extended. If you did not file
appealed to the court of appeals under rule 42 by an appeal within those periods, what would be the
petition for review. effect of that?

41 | P a g e
S: The judgment will be final and executory. petition. Yun ang importante in petition for
review. Because, the issue should be specified.
J: Correct. So, under rule 42, petition for review,
the period may be extended for another 15 days. Under section 2, yung number of copies,
So motion to extend. It must be based on the most napakarami diba? Ilang kopya ang kailangan?
compelling reason. But remember, pag nagfile Seven. I would like to point out that the number
kayo ng motion to extend to file petition for of copies under section 2 of rule 42 has already
review, must the appellate docket fees be fully been MODIFIED.
paid?
Under the Efficient Use of Paper Rule issued by
OO. Maraming nadidismissan diyan ng appeal. the, yes there’s such a rule, effective January 1,
Magfafile nga ng extension, hindi naman 2013 class. Ang trust ng rule na ito, for every, ano
magbabayad ng docket fees. Outrightly. Not given ba yun, 500 reams of paper, a certain number of
due course. Okay? And it is very clear under the trees are being cut. Ang dami. So the Supreme
rules. FULL PAYMENT. Court would like to preserve the environment,
kaya nilimit nalang yung number of copies to be
Class iba yung sa commencement of an action. filed. So ito modified na ito.
Diba dun liberal pa ang korte? Na pwede kang
magbayad. You will be given a certain period as Under the efficient use of paper rule, A.M. No. 11-
long as it’s not beyond the prescriptive period to 9-4-SC, effective January 1, 2013, if the copies to
file an action. Pero kapag sa appeal if you would be filed on pleadings submitted or filed before the
notice, full payment of the appellate docket fees. court of appeals, kasi ito diba court of appeals ang
This is because talo ka na, pinagbibigyan ka rule 42, copies to be filed: 1 original nalang, and 2
nalang ng korte, kaya ito discretionary appeal, copies with annexes. So tatlo nalang. Bakit?
tapos hindi ka pa magbabayad, hindi ka pa Efficient use of paper rule. Kung gaya nitong
magcocomply sa rules. pitong kopya, class alam niyo hindi naman
kailangan ng napakaraming kopya. Kung
Remember class, is an appeal part of due process? mapapansin yung kapal ng record, yun pala ang
dami daming kopya ng complaint, ng decision na
No. it is merely a statutory right which may be hindi naman kailangan, eh pinapatanggal ko rin
taken away from you. Oh pagka na-repeal yung naman yung mga duplicates eh, isang kopya lang
provision na yan, or iniba itong rules on appeal, naman ang babasahin eh ng judge at tsaka ng
edi wala ka ng right to appeal, because it is not a justices. Hindi naman yan sa paramihan ng
constitutional right. kopya. So yun yung ifafile nyo, 1 original and 2
copies with annexes. Pero syempre kailangan
Now. So, in the title of the petition, pareho din ba bigyan niyo ng kopya yung kalaban, so
siya ng title dun sa MTC at sa RTC? Sa Petition magdagdag kayo based on kung ilan yung
for review, plaintiff-appellee, defendant appellee, kalaban niyo. That is sa court of appeals and
susundin ba natin yun? sandiganbayan.

Remember, this is through a verified petition. So Ngayon sa regional trial courts, yung sa lower
the title will now change. Petitioner-Respondent. courts, 1 original copy with annexes. Eh dati
nararanasan ko limang kopya, ganyan. So
I-implead mo ba yung MTC at RTC? No. only the ipatatanggal ko yun. Anong gagawin ko dun sa 4
parties. Petitioner vs. respondent. copies? Gagawin kong scratch, gagamitin ko yung
likod, hindi kailangan yun eh. So saying ang papel
Now, under section 2 of rule 42, form and contents diba?
of the petition. Diba sabi ko nga sainyo kanina it
should be verified and should be accompanied Now, kung sa supreme court, ilang kopya? Under
with a certification against forum-shopping. And the efficient use of paper rule, 1 original copy and
of course it is very important to point out the 4 copies. So isang original, apat na photocopies.
errors of law and the grounds relied upon in the Unless, the case is referred to the en banc. Pag
na-En banc, 1 original plus 10 copies. Syempre

42 | P a g e
yung petitioner may mga annexes, kailangan ba inis na inis ako eh. Tapos pag kailangan may
judge yung sa apat na kopya at yung sa en banc internet. So, kaya, well it would really take a lot
sampung copy lahat meron yung annexes? Hindi. of resources, financial resources. Ang NCR hindi
Two sets of annexes lang. Maghiraman nalang naman ito internet capable, eh ang lapit lang ng
sila dun. Efficient use of paper rule, please read it. muntinlupa.

Nakalagay din dun yung ano, dapat ang font nila Now, sabi nila, sa supreme court… eh iba kasi ang
ngayon ang size is 14. Single space pero malaki. supreme court. Syempre kung anong gusto ng
Napakasarap basahin yung size 14 kasi dati ang mga hari susundin yan. Pag hindi pa nakapasok
liliit ng font. Ang hirap nakakainis tapos ang yung mga justices sa internet, syempre andiyan
haba pa ng pleadings. So ngayon ang sarap na agad yung mga taga-IT. Diba? Kasi justice yan ng
magbasa. Tapos 1.5 ang space so talagang…sabi supreme court. Eh kami? Ay maghintay ho kayo
ko nga efficient use of paper rule pero 14 ang font marami pa hong sineserbisyuhan. Tapos pag hindi
size tapos 1.5. Pero alam niyo, napakasarap ka agad nakapag-submit, explain. That’s the
magbasa ng ganun kalalaki na may space. Kasi problem. And just imagine, yung aming mga bond
diba, subukan niyo na single space tapos ang font papers, yung supply, ubos na. Ano palang ngayon?
is 11 or 12 jusko, sabi ko kung hindi nga lang ako April. For one year, ilan lang ang mga
maaadmin dito pag ganito ayaw ko na basahin dumadating saming bond paper. So ang
talo ka na eh. Ang hirap kasi. tumutulong na sa amin yung local government.
And that is allowed under the local government
So the efficient use of paper rule, so section 2, code. Because we are serving the constituents.
yung number od copies modified na yan class.
So sumulat uli kami. Alam niyo, nagdeliver,
And another thing, class, when you file pleadings tatlong balot, tatlong ream. Ay sabi ko, isang
in the supreme court, you are required, parties linggo lang namin gagamitin yan. Sabi ko nag-
are required to submit simultaneously with the aksaya pa kayo ng delivery van. Tapos yung folder
court-bound pleadings. So yung 1 original and 4 100pcs., sabi ko eh ang case load ko ilan. Isang
copies or 1 original and 10 copies sa supreme linggo lang yang ano na yan. Tapos gusto nila
court. The parties are required to submit soft tanggalin yung assistance ng local? And then they
copies. Meaning, pati yung annexes. In PDF expect us to deliver? Class ako nga, ako nalang
format. Either by e-mail or by USB or CD. Hindi yung bumibili ng mga supplies sa court. And then,
tatanggapin kung yun lang court-bound paper. pag nag-request ka sakanila, mag-bibidding pa po.
Dapat may CD or USB or may acknowledgment Jusko. So sa isang taon pa kami maghihintay,
kayo na na-email niyo. Kaya lang pag e-mail kailangan pa ng, ay nako. That is our life. And yet
nagcra-crash ang ano ng supreme court. So may sasabihin mabagal ang hustisya. And we can only
okay na yung i-USB mo nalang or yung CD. do so much. With the resources that we have. And
Magastos nga lang sa usb. Even yung annexes, so how many staff do we have? Meron kang isang
ii-scan niyo yun. Kaya mas lalong malakas lawyer, yung branch clerk of court. May legal
maningil ang lawyers pag sa supreme court. researcher. Stenographers na apat. Isang sheriff.
Isang process server. Isang utility. Dalawang
Now, under rule 42… Pero sa lower courts, kami _______. Eh yung desisyon, ah, wala kaming
wala kaming internet. Binigyan kami nung sa confidential staff.
internet pero hindi nagwowork. Pinasauli ko nga
eh kasi binabayaran nila yun eh, yung monthly Eh sa supreme court, ilan ang lawyer,
pero it’s not working. Eh ano ba yung sinasabi, labindalawa. Yun ang mga nagda-draft ng mga
meron silang configuration something, sabi ko desisyon. Eh kami, kami lang. nagta-trial ako sa
ewan ko sainyo sa trabaho ko nga lang hindi na umaga, sa hapon magpipirma ng order, plus you
ako makapahinga magcoconfigure pa, ano yun? will supervise your staff. So judicial and
Sabi judge ganito po ang gawin niyo, icli-click niyo administrative matters, nagkakasal ka pa. Kaya
po, ganyan, sabi ko ay nako, ibabalik ko nalang sabi ko nga, sana alisin nalang yung kasal sa
sainyo, anong icli-click pa namin. Hindi ako IT judge. Kasi nakaka-ano eh. And we are required
expert. Tapos, nafollow niyo na po yung kapag nagkasal, parang pari, magsesermon kami.
instructions? Sabi ko yung filling-up of forms nga Parang ganun din. Alangan naman tanungin, oh

43 | P a g e
ikaw tinatanggap mo ba… kasi kasal yan eh, appellate court docket fees, and the petition
importante sakanila yan. Kaya bibigyan mo ng should specify the grounds. Okay, what would be
importansya. So, pagkatapos ng hearing, the effect of failure to comply with these
matatapos ng 11:30 or 12, may kasal na requirements?
naghihintay po judge. Kasi nira-raffle yung kasal.
Hindi ka naman makakatanggi. Kaya hate na S: It shall be a ground for dismissal.
hate naming mga judges, February, June, May J: So, based on that, if you do not follow the form,
(kasi mid-year), December. Yan ang talagang and the contents, and the payment of the docket
maraming nagpapakasal. January. December- fees, your appeal, your petition for review under
January. rule 42 may be dismissed. And when is a petition
for review under rule 42 perfected? Remember
Going back, ganun ang buhay sa korte. hindi ito a matter of right or notice of appeal.
Nakapunta na ba kayo ng rtc manila? Sinong
nakapunta na? Imaginine niyo. Tignan niyo yung When is it perfected? Upon filing of?
kalunos-lunos na kalagayan nila dun. Ako nung
naghea-hearing ako dati dun, katabi ko na yung S: Upon filing of the petition and upon payment of
mga records. Tapos yung may plastic sa kisame, the docket fees.
pag umuulan yun yung sahod. Pag napuno,
tatanggalin ng utility. Maswerte na nga lang J: And when will the regional trial court lose
kami, sa muntinlupa, may hall of justice na jurisdiction over the case?
maganda. Pero yung manila, yung other courts,
nakakaawa. Sabi nga namin dun sa mga kasama S: Upon the filing of the petition and the
namin, parang nakaka-degrade yun sa expiration of the period to file said petition.
institusyon, na mamaya papatakan ka ng kung
ano. But we have to perform our duties. J: Now, before the court of appeals gives due
course to the petition, can the regional trial court
Now, under rule 42, may the court of appeals still exercise residual powers? Is there such a
outrightly dismiss the petition for review? thing as residual powers if the appeal is through a
petition for review?
S: Yes, maam.
J: Okay, on what grounds? Under section 4, ano S: No. (YES)
yung sabi? You can go over rule 42.
J: Check section 8, paragraph 3.
S: Section 4. Action on the petition. — The Court
of Appeals may require the respondent to file a S: However, before the Court of Appeals gives due
comment on the petition, not a motion to dismiss, course to the petition, the Regional Trial Court
within ten (10) days from notice, or dismiss the may issue orders for the protection and
petition if it finds the same to be patently without preservation of the rights of the parties which do
merit, prosecuted manifestly for delay, or that the not involve any matter litigated by the appeal,
questions raised therein are too insubstantial to approve compromises, permit appeals of indigent
require consideration. litigants, order execution pending appeal in
accordance with section 2 of Rule 39, and allow
J: So, there are 3 grounds or situations when, the withdrawal of the appeal.
court of appeals, even without motion, can
outrightly dismiss a petition for review when it is J: So, does the regional trial court have residual
patently without merit, when it is manifestly for powers before the court of appeals gives due
delay, and the issues raised are too unsubstantial, course to the petition? Yes.
walang kakwenta-kwenta to merit consideration
by the court. Pero class, compare this to when the mode of
appeal is by notice of appeal or record on appeal.
Now, we said that a petition for review is The trial court loses jurisdiction when the entire
perfected by filing a verified petition. With the records are elevated to the appellate court. Pero
certification of non-forum shopping, payment of dito, before the court of appeals gives due course.

44 | P a g e
 rules, or in the present set-up, in a decision of the
Kasi in a petition for review, hindi ine-elevate ang court of tax appeals en banc, is it still covered by
records sa appellate court. rule 43?

What should accompany the petition for review? S: No maam.

The certified true copy of the decision, hindi yung
entire records. Hindi ie-elevate. Kaya the exercise J: So where should the appeal be directly filed?
of residual powers under rule 42 remains with the
rtc before the court of appeals gives due course to S: To the supreme court.
the petition.
J: To the supreme court under what rule?

RULE 43 Rule 45.

What is rule 43? So remember yung court of tax appeals hindi na

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

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

S: Yes. J: Correct. The decisions of the NLRC, is it

appealable to the court of appeals under rule 43?
J: It must be verified. Should it be accompanied
by the certification against non-forum shopping? S: No maam. It is appealable to the court of
appeals via rule 45.
S: Yes maam.
J: Rule 45 ba?
J: Should the quasi-judicial body be impleaded?
Halimbawa ikaw yung petitioner: Jemimah S: Ah, 65.
Tiambeng, petitioner versus uhm… ang
nirereklamo mo ay yung decision in favor of ms. J: 65. Remember, St. Martin’s Funeral Homes.
Mesina... versus Julie Ann Mesina, respondent. I- You studied this in your labor. Diba?
include mo ba for example yung civil service
commission as a respondent? Well, because under the labor code, ang nakalagay
dun kasi is by certiorari eh diba. So it was
S: Yes. (No.) interpreted by the supreme court, ang nakalagay
dun by the appropriate certiorari, ininterpret yan
J: Is that what is provided for under rule 43? No. ng supreme court in the case of St. Martin
You need not, you do not have to implead the Funeral Homes, yan yung landmark case. Kasi
quasi-judicial body, but only the private may dalawang where to file a certiorari under the
respondent in the action. rules. First is rule 45, petition for review on
certiorari which is an appeal. And another is
Now there are enumerations, di ba? petition for certiorari under rule 65 which is an
Enumerations under rule 43. Nakalagay dun independent special civil action.
unang-una court of tax appeals. In the present

45 | P a g e
So sabi ng supreme court, it cannot be rule 45,
kasi purely questions of law. So, ang magiging S: 15 days.
appeal is by rule 65. At dapat daw sa court of
appeals, hindi sakanila. Talagang mautak ang J: On what ground?
mga justices ayaw magtrabaho, binaba. S: For good cause and justifiable reason.

Itong civil service commission. The civil service J: Most compelling reason. Kagaya din ng rule 42,
commission is a constitutional body, diba? Just most compelling reason, pareho sila 15 + 15. Most
like commission on audit and the commission on compelling reason.
elections. But the civil service commission, the Sa ordinary appeal at sa petition for review under
decisions of the case and final orders, where is it rule 42, when the appeal is perfected, we
appealable? Is it covered by rule 43? Tignan mo. discussed that the appeal stays the execution.
Tignan mo ang rule 43.
Under rule 43, when a petition for review under
S: Ay yes maam. rule 43 is filed, will it stay the execution of the
judgment of the quasi-judicial agency? Under
J: Of course, diba? Ang COMELEC at COA ang section 12, rule 43.
hindi. Ang civil service commission, under rule 43,
sa court of appeals. Pero alam niyo ba class, bago For example, civil service commission, ang
ng 1997 rules of civil procedure, sa supreme court desisyon ng civil service commission is that the
din ang court of appeals? At ang labor cases sa government employees be dismissed from the
supreme court din. But because of the rule- service. Nag-file ngayon yung government
making power of the supreme court, binaba nila employee from the order of dismissal ng petition
sa court of appeals. Ang civil service nilagay nila for review under rule 43 sa court of appeals. Upon
dun sa court of appeals under rule 43. filing of the petition for review, is the judgment of
dismissal immediately executory or is it stayed by
Now, COA and COMELEC. The decisions of COA the appeal?
and COMELEC, saan ka magaappeal? How could
you assail the decisions of COA and COMELEC? S: It is immediately executory.
Under rule 64, in relation to rule 65. Don’t worry
we will discuss that. I’m just discussing this kasi, J: Immediately executory, unless the court of
iisipin niyo, eh bakit yung civil service appeals issues a temporary restraining order or a
commission, na constitutional commission, and preliminary injunction.
under your study of administrative law diba,
quasi-judicial body siya eh diba, ang civil service, What is substantial evidence rule? You’re taking
COMELEC, COA. Bakit hiniwalay ang civil up administrative law right now, diba? Tapos niyo
service commission? Nilagay sa rule 43. na ba yung admin law o nasa public officers or
election law palang kayo?
Now, what are the issues that may be raised
under rule 43? S: Public officers.

S: Questions of law or facts, or mixed. J: Public officers. Pabaliktad kayo.

J: Okay. And within what period must the The quantum of proof, quantum of evidence, in a
petition for review under rule 43 be filed? civil cases is? Preponderance. Sa criminal cases?
Proof beyond reasonable doubt.
S: 15 days from the notice of judgment.
In administrative cases, substantial evidence. And
J: Can it be extended? under the substantial evidence rule, the findings
of facts of the quasi-judicial agency concerned
S: Yes. when supported by substantial evidence, shall be
binding with the court of appeals. So, sa petition
J: For how many more days? for review under rule 43, it must be shown that

46 | P a g e
the decision of the quasi-judicial body is not based
on substantial evidence, that the quantum of
evidence was not complied with. Otherwise, ang
findings of quasi-judicial bodies binding yan sa
court of appeals.

Now, does the court of appeals have jurisdiction to

review the decision of the ombudsman in criminal
cases? Ang decision na sinasabi ko dito ay hindi
yung guilty or not guilty, but the decision of the
ombudsman to file an information and charge a
person in court or before the sandiganbayan.

S: Maam only administrative cases.

J: What is the remedy if the decision being

questioned is rendered by the ombudsman in
criminal cases? Nagdecide ang ombudsman na
mag-file ng charges, for example, for plunder,
against a government official. Kagaya ni Jinggoy,
nag-file ng charges ang ombudsman against him,
that is a criminal case. So, what is the remedy of
Senator Jinggoy?

S: Avail a petition for certiorari.

J: Under?

S: Under rule 65.

J: In Administrative cases, halimbawa the

ombudsman decided to dismiss a certain employee
for gross misconduct or abuse of authority, saan
mag-aappeal ang government employee ngayon?

S: Court of appeals.

J: Under rule?

S: Rule 43

J: Rule 43. Correct. So there is a distinction

between the final orders of the ombudsman in
criminal cases and in administrative cases. Kasi
class, the ombudsman has the authority to
discipline all government employees, to
investigate, and to impose penalties upon
government employees administratively. So kahit
halimbawa nasa executive ka, pwede kang
madismiss ng ombudsman, kung hindi umaakto
yung head of agency mo.
Okay let us end there.

47 | P a g e
Miss Mesina, What are the modes of appeal to the Questions of fact or law, which must be indicated
CA? in the assignment of errors.
Under rule 41, which is an ordinary appeal.
When should the appellant’s brief be filed?
From what court?
It should be filed within 45 days from the notice of
RTC, exercising original jurisdiction over the the clerk of court that all oral and documentary
place and may be taken by notice of appeal and evidence are attached.
record on appeal.
When is the appellee’s brief filed?
What are the other modes?
Within 45 days from receipt of appellant’s brief
Rule 42, petition for review.
What if, what was filed was original cases like,
From what court? petition for certiorari, prohibition, mandamus,
they are not appeals but they are original special
RTC, exercising appellate jurisdiction. civil actions, question is in lieu of appellant’s
brief, what should be filed by the party?
Last mode?
They should file their respective memorandum
Petition for review under rule 43, appeal from within a non-extendible period of 30 days from the
decisions or resolutions from quasi judicial bodies notice of appeal.
to the CA.
What is the effect if they fail to file a
Under rule 42, it is a discretionary appeal. memorandum in these cases?

BTW, before we proceed to the procedure, It should be a ground for the dismissal of the
remember that the mode under rule 41 and 42, action.
the distinction really lies, under rule 41, it is an
ordinary appeal, rtc to CA and under rule 42, it is In ordinary appealed cases, you mentioned that
a discretionary appeal, rtc to CA. appellant’s brief must be filed within 45 days from
the notice of the clerk of court that all oral and
Distinction is based on the nature of the powers documentary evidence are attached to the records.
they are exercising. What should be the contents of the appellant’s
brief?
Under rule 41 – original jurisdiction
Rule 42 – appellate jurisdiction The subject index, so there should be a table of
contents, proceed
Those are the modes of appeal to the CA
The assignment of errors, that is very important

RULE 44 so that the CA would know what are the parts of

the decision you are questioning and what are the
supposed errors committed by the trial court,
In ordinary appealed cases in rule 44, would the these are your grounds of appeal, kasi sa notice of
title of the case remain the same? appeal nilagay nyo lang na contrary to law and
evidence to be specific it should be stated in the
Yes, it will remain the same but the appealing assignment of errors and take note in civil cases,
party will be referred to as the appellant and the can the appellate court resolve errors and issues
adverse party as the appellee. not raised in appeal?

What are the questions that may be raised here? NO, except what?

Errors pertaining to the lack of jurisdiction.

48 | P a g e
 modes of ordinary appeal in reclusion perpetua,
So, if you don’t put it in the assignment of errors, life imprisonment and automatic review, has been
how would the CA know that the decision of trial modified in the case of PEOPLE v. MATEO, did
court is contrary to law and evidence, but that is you discuss this in your crimpro?
in civil cases, in criminal cases, based on your
study in criminal procedure, there is also appeal You should have discussed this, because this is
and requirement to file appellant or appellee’s the basis of the modification in the appeal in crim
brief, in criminal cases, if an error is not assigned cases, under the present rules now, the death
or an error not raised in appeal, can appellate penalty imposition is prohibited, we cannot
court decide that issue or error? impose, instead reclusion perpetua is imposed by
the court, now if Life imprisonment or reclusion
YES, because in criminal cases, once an appeal is perpetua is imposed by trial court, where will the
filed, the case is open for review, WON the error is appeal be?
assigned, the whole case is open for review.
It should be in the SC under the constitution but
The appellant’s brief, aside from the assignment because of the decision of PEOPLE V. MATEO,
of errors, there should be? decided in 2004 class, kasi wlang death penalty,
so of RP or LI, notice of appeal to the CA basahin
A statement of facts, statement of the case, issues, nyo sa crimpro sa roc.
arguments
If the CA, affirms the conviction, and the
Appellee’s brief would counter whatever was imposition of RP or LI, then the next step is
stated in the appellant’s breief, appellee would appeal it to the SC, rule 45. You review your
indicate the counter statement of facts. appeals in crimpro, yan na ung procedure ngayon.

For example, at the trial court level, the So kung Death penalty, bawal na.
defendant who is the losing party now the
appellant has now raised in the trial court the Justice Vitug is the ponente of the case and it was
issue of payment of the obligation, example a his valedictory decision, sabi nya it does not
collection suit for a sum of money, so sa trial court violate the consti because appeal in CA when RP
na raise na niya yung defense, now talo siya in or LI or even death is an intermediate review
the appeal, can he still raise issues that have because SC is not a trier of facts, and sabi nya ung
already been raised below and rejected or decided thrust nya eh kung ejectment pag natalo sa MTC,
against? to RTC, then aakyat sa CA then sa SC eh eto pa
kayang habang buhay na pagkakakulong or
YES, ofcourse, because that is the very purpose of death, pagkagaling mo ng RTC, isa lang mode of
an appeal. appeal mo, rtc to Sc kaagad so meron nang
intermemediate review sa CA, so yan na ung basis

RULE 45 now ng appeals in crim cases, review crimpro in

appeals.

What are the modes of appeal before the SC, if Now rule 45, in this case is a mode of appeal to
there is any? the SC, petition for review on certiorari, what are
the questions that may be raised?
Petition for review on certiorari under rule 45.
Only questions of law, purely questions of law.
Under our constitution, in crim cases?
Where filed?
Is there an ordinary appeal by notice of appeal in
crim cases when the penalty is reclusion perpetua, The SC, exclusive. Exclusive jurisdiction of SC,
or life imprisonment, so by ordinary appeal in our cannot be before the rtc or ca, only SC.
constitution and if the penalty is death, there is
an automatic review before the SC, however these

49 | P a g e
Purely questions of law, how do you distinguish a 30 days
question of law and a question of fact?
So 15 + 30 = 45 days.
When for example it is with the applicability of
the law with regard to the case, this is question of Can it be further extended?
law and the question of fact depending on the
evidences presented. So there is a need to review Not anymore.
the evidence, whether oral, documentary or object
evidence. So rule 45= at the most 45 days.
Rule 42= 15 +15
Halimbawa ung factual issue, WON there was 43 = 15 + 15
payment of the obligation. so 45 days only rule 45.

How do you determine? Present evidence: official When may the court, may the SC allow an
receipts. But if the issue is WON the court has extension?
jurisdiction, it is legal issue, question of law.
For valid reasons.
In a petition for review on certiorari, what would
be the title of the case now? Under rule 42 and 43, most compelling reason.
Pare pareho rin naman yan but must be stated
The one who filed the petition, petitioner and the and when you file a motion for extension it must
against the respondent. be accompanied already by the payment of the full
docket fees.
The judge who rendered the questioned decision
or order, is it necessary to implead the court or What should be contained in the petition?
judge?
18 copies should be filed, we have discussed this
NO, it is a case between petitioner and yesterday, the efficient use of paper rule, already
respondent. discussed that the number of copies to be filed is
already modified by the efficient use of paper rule,
Must it be verified? it is no longer 18 copies, so remember that.

YES Apart from required number of copies, what must

be contained in the petition?
Accompanied by a certification against non forum
shopping? The full names of the parties

YES What should be the meat of the petition?

May a petition under rule 45, include a petition The arguments and issues relied upon, so that the
for the issuance of a TRO or a prelim injunction? SC would know if you are raising questions of law
only or are raising factual issues not within the
YES office of rule 45.

When must pet for review on certiorari be filed? Now, should under rule 45 also, it is required just
like other modes of appeal it is required that
Within 15 days from the notice of the judgment or material dates be indicated, WHY?
final order
In order for the court to know if it was filed on
Can it be extended? time and impt also if it is discretionary rule 42,
Yes 43 and 45, the certified true copies of the decision
assailed from must be attached.
How many more days?

50 | P a g e
What is the effect of failure to comply with What will happen to the decision or final
requirements in content of petition and payment judgment appealed from?
of full appellate docket fees?
Becomes final and executory
Ground for dismissal of petition.
Under rule 45, it is explicit that only questions of
May the SC outrightly deny the pet for review on law are to be raised, but there are cases where SC
certiorari, even if no motion from any party? allows question of facts to be raised in a pet for
YES. rev on certiorari under rule 45, what are those 2
cases?
On what ground?
If there is no merit Writ of amparo and writ of habeas data

And? You will take these up in special proceedings

If it is prosecuted for delay
Decisions of rtc and ca of writ of amparo and
And? habeas data is appealable to SC via rule 45, but
If issue is too unsubstantial to warrant factual issues may also be raised, same is true for
consideration as provided for in section 5 petitions for issuance of writ of habeas data.
These are the only exceptions.
So those are the grounds for outright dismissal
under rule 45. Appeals from decisions of sandiganbayan? Saan
un?
Is the rule 45, a matter of right or discretionary
appeal? SC only. It is thru rule 45. Very clear in section 1.

It is subject to the sound discreyion of the court Can the other courts, include quasi-judicial
and should be granted only according to section 6 bodies?
on what ground? YES

On special and important reasons. Halimbawa ung rule 43, umakyat kayo sa CA
then nag decision, this can be appealable to SC
What are these? via rule 45.

1. The lower court decided on question of

substance not yet decided by SC RULE 46
2. It decided on question of law not in accord
with the law Original cases, anong court covered here?
CA
The time of SC is very important, we should not
waste the time of the court in filing petitions on In CA, it has jurisdiction in certain cases filed
which the issues are too unsubstantial and unless before it for the frist time, it has orig jurisdiction,
there are important and special reasons to do so, what cases covered here?
SC is not a trier of facts and may only review Original actions for certiorari, prohibition,
questions of law. mandamus and quo warranto

Can rule 45 apply also to criminal cases? These are the orig cases covered by rule 46,
YES, from decision of CA affirming trial court annulment of judgment?
decision can be to the SC but purely legal issues Yes but covered by rule 47
only.
Orig cases what would apply is procedure under
What is the effect of dismissal of the petition for rule 46.
review on certiorari on the judgment assailed?

51 | P a g e
How is jurisdiction over the person of the 2 grounds: extrinsic fraud and lack of jurisdiction
respondent acquired in CA?
Upon service of the decision or resolution, lack of jurisdiction over?
indicating the initial action to be taken. Subject matter and over the person of the
defendant
No service of summons. And upon voluntary
submission. Within what period must petition for annulment
be filed, if ground is extrinsic fraud?
In trial court, there is service of summons but 4 years from the discovery of fraud and if ground
here in rule 46, orig cases in ca, no service of is lack of jurisdiction?
summons, the ca will acquire jurisdiction by Before barred by estoppel of laches.
requiring respondent to file comment and by
voluntary submission pag nag comment. Because jurisdiction may be raised at any time as
long as not barred by estoppel or laches.
May CA conduct hearing?
YES, nag heahearing dyan lalo na pag writ of It is an extraordinary action and different from
amparo, habeas data and habeas corpus and petition for review = reckoning is 60 days but not
remember merong new trial. So it acts as if it is a later than 6 months from entry of judgment, impt
trial court, no problem with this because what are here is the entry. But if you would notice in rule
raised are questions of fact and law and factual 47, is entry of judgment relevant?
issues include appreciation and assessment of NO.
evidence.
Is it only available to the parties to the action?

RULE 47 NO.

What would justify filing for non parties?

this is an extra ordinary action, pertains to what Provided that he may prove the fraud or lack of
remedy? jurisdiction and that he is affected by the
Annulment of judgments judgment.

How commenced? Remember under rule 47, if remedies of appeal,

By filing a verified petition with CA new trial, pet for relief are available, if they were
exhausted, can still file?
Is this in exercise of concurrent or exclusive NO, clear in section 1, last part, that if these
jurisdiction of CA? remedies are available then petition for
Exclusive jurisdiction if CA. annulment of judgment, the party or 3rd person is
not entitled for rule 47.
Can you file this before the SC?
NO. What procedure would apply?
Ordinary civil action procedure, specially in
What judgments may be the object for petition for reception of evidence before CA.
annulment?
Judgments of final orders of what court? What would be the effect of judgment under rule
Read section 1, decisions of RTC only. 47?
If ground is lack of jurisdiction = it shall be set
If decision sought to be annulled is MTC, where to aside and rendered null and void.
file?
To the RTC. Remedy? For above situation?
May refile case in proper court.
In criminal actions can be?
NO only decisions of RTC in civil actions. Ground is extrinsic fraud, effect?

What are the grounds?

52 | P a g e
Court may motu propio or motion of any party, Binding effect? Of whatever was taken druing
conduct a new trial. That is why the procedure prelim conference before CA?
would be observed is on OCA. It shall control subsequent proceedings parang
pre trial, what was agreed upon or taken during
If, the pet for annulment of judgment is given due pre trial shall control proceedings.
course, how could the CA now acquire jurisdiction
over person of respondent for new trial? Rule 49 pertains to oral argument in CA, in SC
By service of summons, this is required in this nag oral argument so pde din sa CA, you will
particular case and CA would issue this. appear before 3 justices since division of CA is 3
justices.
Apart from annullment of judgment, other
available reliefs under rule 47? Motion may be file before CA, is it not?
Refile the case YES, pde Motion for recon and motion for new
trial
Can damages be awarded by CA?
YES Should these motions comply with rule 15 where
there should be notice and hearing?
If it involves a prop real or personal, can hearing is not required on motions filed before CA.
restitution be ordered?
YES what are the grounds for dismissal of appeal
before CA?
These are the remedies under rule 47. rule 50.
Non payment of docket fees, lagi kasama yan di
Now, decisions of CA and SC, will rule 47 apply? gagalaw pag wala, kc gagamit ng papel, resources,
NO, di pde ipa annul mamagagalit ang SC. Just dcket fees are non refundable.
revisit. Appeal is not filed in time whether by notice of
appeal or record on appeal.
They are proposing to do away with condonation, Failure to file a notice of appeal or record on
Pascual case, basis of Aguinaldo doctrine, in appeal on time
election law. In admin cases, pag binoto ka ng Unauthorized omission or alteration of the
electorate, wipe out na. at time of election, they pertinent documents, these are those to be
are aware you are facing admin charges but they elevated to the CA. there is table of contents for
are still voting for you but in this case diba during those to be given and you cannot add, that is
last election, di nila alam, it just came out. Kahit alteration and tampering you will be charged and
na it is really bad precedence as sabi ni justice appeal is dismissed.
serreno, it violate and wala sa 1987 consti, the Failure to file the required contents, specifically
basis of condonation doctrine is 1935 consti and the material dates, arguments, issues and of
pascual case basis of Aguinaldo case, devided in course the assignment of errors.
1959. Failure of the appellant to appear without
justifiable cause
Can RTC, annul judgment of another RTC?
NO, but may mga judges na gumagawa nian, and You will be given time to correct or complete and
they were sanctioned by SC. it is not whimsical but failure to still comply, it
will be dismissed, remember appeal is a remedy
May there be a preliminary conference during which is a statutory right and not a matter of
appeal? constitutional right.
YES, rule 48
Section 2 of rule 50, pertains to an improper
Purposes? appeal, when it is improper, what would be the
So they will still consider amicable settlement, effect of that to the appeal?
limitation of issues and witnesses It shall be dismissed.

53 | P a g e
We must know, what is the meaning of improper
appeal, when do you say it is improper? Provided But under 2nd situation, dapat pet for review, but
in section 2, go over section 2, the 2 situations are finile mo is notice of appeal, mali ang mode of
improper appeals. appeal mo, so this is erroneous appeal.

SECTION 2 - an appeal under rule 41, from rtc to That is the distinction.
ca raising only quest of law shall be reviewable by
said court. Also appeal by notice of appeal instead What is the harmless error rule? Alam mo sa JBC
of petition for review from appellate judgment of tinatanong to sa interview pag nag apply ka ng
rtc shall be dismissed. judge, I was asked and Judge Aguinaldo natanong
An appeal erroneously taken to CA shall not be din.
transferred to appropriate court but shall be
dismissed outright. So what is this?
Those that which does not affect the substantial
First situation is: rule 41, ordinary appeal by rights of the parties, the admission or exclusion of
notice of appeal, ano ba ang issues under rule 41 certain evidence would not really affect the
that may be raised? Questions of facts or mixed substantial rights of parties.
questions of facts and law, if under rule 41, you
raised pure questions of law, that is improper For example the appellant is questioning the
appeal. So under rule 41 only quest of facts or jurisdiction of court in not admitting a
mixed quest of facts or law. documentary evidence and assigned it as error
and the trial court misappreciated the facts
Second situation? Second paragraph. because it did not admit one document, eh kung it
This is an erroneous appeal, not merely an will not change the outcome of the case it is a
improper appeal. Why erroeneous because what harmless error rule. Kung di inadmit and di ma
should have been filed is a petition for review aapektuhan dahil sa dami ng document to support
which is a discretionary appeal from mtc to rtc in his cause of action.
appellate jurisdiction and pet for review to CA but
you did instead is a notice of appeal as a matter of Mr aggabao, MR may also be filed from CA
right and hindi na dapat kc 2nd appeal na, dapat decision, is it not?
pet for review and is an erroneous appeal that Is a 2nd MR allowed?
should be outrightly dismissed by CA, pde ba No, it is prohibited, just like those made by the
sabihin ng CA na itama mo nalang ung erroneous trial court.
appeal?
NO. 2nd motion for new trial is it allowed?
YES
Can mtc diretso to CA, pde ba irefer sa rtc ng CA?
NO. What is the ground allowed?
Ground of newly discovered evidence not been
Take note of section 2 able to be procured in trial court with due
1st situation = improper appeal diligence that would alter the outcome of the
2nd situation = erroneous appeal decision.

may distinction kaya ang improper sa erroneous? That is the only ground that is allowed for MNT
YES different. before CA

How to distinguish? When filed?

1st situation = sa rule 41, ang mode of appeal is At any time after the appeal from LC is perfected
notice of appeal, ordinary appeal and tama ang and before the CA loses jurisdiction over the case.
mode mo, mode of appeal is correct and improper
is kc you raised pure questions of law na mali, Under rule 37 and under rule 53 distinctions?
dapat quest of fact or mixed quest of law and
facts.

54 | P a g e
Under rule 37 there are 2 grounds, FAMEN and
Newly discovered evidence but under rule 53, only
newly discovered evidence is the ground.

So can a 2nd MNT be filed under rule 37?

YES provided that ground did not exist in filinf
the 1st.

So is a 2nd MNT allowed under rule 53 before CA?

NO, because there is only 1 allowable ground
which is newly discovered evidence.

When do you file under rule 37?

Within period of appeal.

Procedure before the SC, what are the cases that

may be originally filed before SC?
Petitions for certiorari, prohibition, mandamus,
quo warranto, habeas corpus, disciplinary
proceedings against members of the judiciary and
attys and cases affecting ambassadors, other
public ministers and consuls.

There are 7 cases enumerated under section 1 of

rule 56, but there are 2 additional and those are:
writ of amparo and habeas data.

What is the mode of appeal allowed in SC? Rule

45

Grounds for dismissal of appeal before SC?

Lack of merit
Non payment of docket fees
Case is not appealable

What if it is appealed beyond period allowed?

Ground for dismissal.

What if appeal is erroneous?

Also ground

Improper appeal?
Also ground

These are the grounds for dismissal of the appeal

in SC. Mode of appeal is rule 45. Petition for
review on certiorari.

55 | P a g e
 DEPOSIT. For example, I purchased a piece of
land from you and we have a contract of sale. I
PROVISIONAL REMEDIES (Note: all italicized already paid you the amount as stated in the deed
are the answers of the student, those which are of sale, but you still failed to deliver to me the title
not are from Judge Q) of the property. So, I filed an action against you
for a specific performance for you to deliver to me
When you say provisional, what does that mean? the title. During the pendency of the action,
Ma’am, when you say provisional, it means syempre the money is with you already, eh kung
temporary or ancillary to the main action. abutin ng sampung taon ang kaso, what will
So, provisional remedies under the rules of court happen to the money that I gave to you? So, what
are that: it is temporary, preliminary, and will be the provisional remedy can I avail of so
ancillary to the main action. They are remedies in that the money that I gave to you, paid to you will
the interim during the pendency of the main be protected? The provisional remedy is by
action. DEPOSIT in a bank, during the pendency of the
What are the purposes of provisional remedies? action. And when it is determined by the court
a. To preserve or protect their rights or that indeed there is failure to deliver the property.
interests while the main action is pending; Halimbawa, di mo na maideliver kasi naibenta mo
b. To secure judgment; na sa iba, I can always withdraw the money from
c. To preserve the status qou; the bank wherein that money was deposited.
d. To preserve the subject matter of the With respect to cases involving corporate
action. rehabilitation, during the pendency of the case
And also to secure judgment especially in before the special commercial court, the
preliminary attachment, so that, the decision in provisional remedies that may be issued would be
favor of the prevailing party will not be a paper the appointment of a receiver, during the
victory. Nanalo lang sya sa papel, sa decision pero rehabilitation of the corporation, kung nalulugi na
di naman maiimplement. Kasi, hindi ma-satisfy yung corporation, with a state order, meaning
yung judgment. during the pendency of the action, yung mga
What are the different kinds of provisional officers of the corporation cannot dispose of the
remedies under the rules of court? properties of the corporation.
1. Preliminary attachment (Rule 57); Under the rules on environmental cases, a
2. Preliminary Injunction (Rule 58); temporary environmental protection order. Under
3. Receivership (Rule 59); the Human Security Act, an Inspection Order.
4. Replevin (Rule 60); Writ of Amparo, Witness Protection Order. So
5. Support pendente lite (Rule 61). those are the other provisional remedies that may
Those are the provisional remedies under the be availed of during the pendency of the main
rules of court. But class, under the special laws, action.
there are other provisional remedies allowed. Like Now, Mr. Aggabao, which court has the authority
for example, in a case between spouses, like to grant provisional remedies?
annulment of marriage and they have children. The court which has the jurisdiction over the
During the pendency of the action, when there is main action
no decision yet by the court, has a provisional Can the RTC grant a provisional remedy?
remedy. The court may order the temporary Yes.
custody of the minor children to be vested in one Can the CA grant the provisional remedies?
of the spouses. Yes.
In violence against women and children, lagi The SC?
n’yong naririnig ‘yan. What is the provisional Yes.
remedy? The wife asks for a temporary protection How about the MTC?
order. Yes. Provided the main action is pending before it.
Is a hold departure order issued by Regional Trial Now, based on your readings on the provisional
Courts in criminal cases pending before the RTC, remedies under the rules 57-61, you would know
is that a provisional remedy? that there are common requirements on the
Yes. A hold departure order is a provisional issuance of the provisional remedies. What are
remedy. those common requirements?

56 | P a g e
Ma’am first, there must be a verified petition. Who is the applicant?
A verified petition which must be supported by? It may be the plaintiff or the defendant.
Affidavits and other supporting documents. The defendant with respect to his counter-claims
So, affidavits, EXCEPT in receivership. What or third party-party complaint. So the plaintiff or
else? any proper party. The defendant may also be an
Apart from affidavit, there must a BOND. If you applicant for preliminary attachment.
would notice, bond in the provisional remedies, When may a preliminary attachment be applied
EXCEPT in support pendente lite. for?
So those are the common requirements, there are It can be applied at the commencement of the
two: action or any time before the entry of judgment.
1. Affidavits, except in receivership; and This is very clear in Section 1 of Rule 57. At the
2. Bond, except in support pendente lite. commencement of the action... So when you file a
Let us now discuss preliminary attachment under complaint, usually it must be incorporated. The
rule 57. application must be incorporated in the complaint
What is the nature of a preliminary attachment, itself. Example: recovery of possession with
is it an action in personam, and action in rem or application for preliminary attachment. It should
an action quasi in rem? be incorporated in the complaint when it is
The nature is an action quasi in rem. availed of at the commencement of the action.
Why do you say that it is an action quasi in rem? If not availed at the commencement of the action,
Because, the court need not acquire the can it be availed at any other time?
jurisdiction over the person but only the Yes Ma’am, before entry of judgment.
jurisdiction over the res or the property. It is before entry of judgment, NOT AFTER
So, the object of a preliminary attachment is the judgment. Kasi kung meron nang judgment, it is
property of the defendant. no longer preliminary. It defeats the purpose of
Preliminary attachment presupposes the being a preliminary attachment.
pendency of a main action. It is not an What are the kinds of attachments?
independent action in itself. There is a main 1. Preliminary attachment under Rule 57;
action. Kaya sabi natin, it is a provisional remedy. 2. Garnishment;
It is not a distinct proceeding from the main 3. Levy on execution.
action. Garnishment and Levy, we had already discussed
If the property is held by the sheriff under under Rule 39. In Garnishment and Levy, the
preliminary attachment, what are the effects of properties are being attached diba, for the
the preliminary attachment? purposes of satisfaction of a judgment, there is a
It places the property under custodia legis. judgment already but in preliminary attachment,
So the property will now be in custodia legis or in there is no judgment yet.
custody of the court or the law. With respect to garnishments and attachments,
For what purpose? can the public funds be attached, or garnished, or
For the security of a pending litigation... for the levied on execution?
satisfaction of judgment. No Ma’am.
And there is a lien created on the property Pwede bang halimbawa, kontratista ka ng DPWH
attached. And the second effect is? kinasuhan mo ang DPWH kasi hindi binayaran
That the court acquires jurisdiction over the res or yung kontrata, so kinasuhan mo ang government,
property. pwede bang sabihin mo ipapa-attach ko yung
So, when availed of in an action in personam, the funds ng DPWH sa Landbank, can it be done?
preliminary attachment converts the action to one No, why not?
that is quasi in rem. And the effect of that is there Can attachment, execution lie against public
is no need to acquire jurisdiction over the person funds? No. The remedy is for you to file a claim
of the defendant. So those are the consequences of before the Commission on Audit. So yun funds ng
placing the property under the preliminary regular departments or offices of the government
attachment. or the Republic of the Philippines.
Who may avail of the remedy of preliminary Can you attach funds of public corporations, like
attachment? LGUs, can you attach funds of City of Manila?
The applicant...

57 | P a g e
Well, it is different. Pwede mong i-attach yung Action for recovery of money or property
funds ng public corporations. They are not embezzled or converted by a public officer, a
exempt. Especially, in matters where they are lawyer, and other persons acting in fiduciary
exercising not purely for public purposes. capacity.

What are the grounds for which a preliminary So there must be an element of trust and there is
attachment may issue? a wilful violation of duty. Talagang special
First Ma’am, action for recovery of specified mention pa ang attorney jan, why? Because, an
amount of money or damages, except moral and attorney-client relationship is based on trust and
exemplary damages. confidence.
What else? How about cause of action arising from Next?
contract? Action to recover the possession of property ...
Yes Ma’am. Arising from contract, law, quasi- ...That the property was unjustly or fraudulently
contract, delict or quasi-delict. taken or detained. What else?
Delict or crime. So, in civil aspects of a criminal In contracting the debt or obligation, there was
action, there could be a preliminary attachment. fraud and even in the performance of the
In criminal cases, and you studied this. Under Sec obligation, there was fraud. What else?
2 of Rule 127, can you please read it Mr. Aggabao An action against a party who removed or
Sec. 2 Rule 127. Attachment. When a civil action disposed of the property with the intent to defraud
is properly instituted in the criminal action as his creditors.
provided in Rule 111, the offended party may have And lastly?
the property of the accused attached as security An action against non-residents not found in the
for the satisfaction of any judgment that may be Philippines, or person cannot be served with
recovered from the accused in the following cases: summons personally, substituted service but
(a) When the accused is about to abscond summons may be served by publication.
from the Philippines; So in this case class, the last ground, paragraph
(b) When the criminal action is based on a 10, that is what converts an action in personam to
claim for money or property embezzled or an action quasi in rem.
fraudulently misapplied or converted to the use of If you would notice, in all these grounds for the
the accused who is a public officer, officer of a issuance of a writ of a preliminary attachment
corporation, attorney, factor, broker, agent or there is a common denominator, and what is that
clerk, in the course of his employment as such, or that would justify the issuance of writ of
by any other person in a fiduciary capacity, or for preliminary attachment? What is that? The
a wilful violation of duty; ELEMENT OF....?
(c) When the accused has concealed, removed, FRAUD.
or disposed of his property, or is about to do do; The element of fraud. If you would notice from
and paragraphs a to e, there is always an element of
(d) When the accused resides outside the fraud. EXCEPT paragraph f, which converts the
Philippines. action into an action quasi in rem. So that the
So, there could be a preliminary attachment element of fraud justifies or warrants the issuance
issued in the civil aspect of criminal cases under of a writ of preliminary attachment in all these
Sec 2 of Rule 127. So actions arising from law, cases.
contracts, delict, quasi-delict and quasi-contract. Is the enumeration exclusive?
But, what would be the condition so that a YES.
preliminary attachment may be issued in these Yes, so, if a writ of preliminary attachment is
cases? issued on other grounds except these six grounds,
The party must have the intent to defraud the under Section 1 of rule 57, what is the status of
creditors. the writ of preliminary attachment?
When the party has the intent to defraud the It is INVALID.
creditors or the party is about to depart from the The rule on issuance of a writ of preliminary
Philippines. attachment should be STRICTLY CONSTRUED,
What is the next ground? why? Because, preliminary attachment is a
STATUTORY RIGHT. It is issued only on specific

58 | P a g e
grounds. Why does strict construction class? With respect to the bond, what is the purpose of
Because, it is a RIGOUROUS REMEDY. That the bond in the writ of the preliminary
exposes the debtor to humiliation. In fact, attachment?
imaginine nyo class, di pa nga tapos ang kaso It is payment for the injury that may be suffered
hahatakin na agad yung mga properties mo. by the adverse party or the defendant.
So there must be a VALID and JUSTIFIABLE Kasi halimbawa, plaintiff-defendant, na-grant
grounds based Section 1 of Rule 57 such that it yung writ of preliminary attachment, so kukunin
should not be abused to cause unnecessary na yung properties mo hindi pa tapos ang kaso.
prejudice to a party during the pendency of a case So, I am required to post a bond so that in the
and where there is no decision yet. event that there is damage or injury on the
Is the insolvency of a defendant a ground for the property, the bond would be liable for that,
issuance of a writ of preliminary attachment? especially in the judgment could be adverse to the
No. It is not a ground. If you would analyze plaintiff, the applicant for the issuance of a writ of
paragraphs a to f of Section 1 Rule 57. preliminary attachment.
May a writ of preliminary attachment be issued And how much is the bond?
ex parte without any notice and hearing? ..fixed by the court or equal to the value of the
Yes Ma’am. property.
Why? Let us say that the property that is attached is
So that it will pre-empt the disposition of the valued at P10M, so that would be the amount of
property by the defendant that will result to the... the bond. It cannot be less. It would be in cash or
Kung malalaman ng defendant na inonotify, uy it would be in surety.
ibabatak ko na ang mga properties ko, then?
It would render the attachment nugatory. Why? Why do you want to become a lawyer?
Pwede kong itago ang mga properties ko para
hindi makita ni sheriff. Well, you know under Aba, napaisip sya.
Section 2 the issuance may be either EX PARTE
or ON MOTION with notice and hearing. But, you Break muna classmate, half the battle is won!
know there is nothing wrong and it is sanctioned Your on the right track! Inhale exhale ka muna,
by the rules that a preliminary attachment be take a break, nasa kalahati ka naman na ng
issued ex parte and not by motion, to preserve the transcription notes natin. Good job! Apir!
element of surprise. Oh ayan na si sheriff,
iseserve na ang writ of preliminary attachment. “There are no secrets to success. It is the result of
As long as there is a VALID ground provided for preparation, hard work, and learning from
in any of those enumerated under Section 1 of failure”.
Rule 57. -Colin Powell
What are the requirements for the issuance of a
writ of a preliminary attachment? O sige na, aral ka na ulit. #focus
First, there must be a verified petition; second,
there must shown a sufficient cause of action; Now, Section 5 is very important because this
third,... pertains to the different stages involving the writ
The common requirement..? of a preliminary attachment. Mr. Aggabao, I want
The BOND ma’am. you to read section 5:
The Bond and? How would you show that the Section 5. Manner of attaching property. The
applicant has the sufficient ground or cause of sheriff enforcing the writ shall without delay and
action? with all reasonable diligence attach, to await
Affidavit Ma’am... judgment and execution in the action, only so
By an affidavit within the personal knowledge of much of the property in the Philippines... [the
the affiant. And that there must be a BOND, and important part] No levy on attachment pursuant
of course, the grounds must be any of those to the writ issued under Section 2 hereof shall be
provided under Section 1 of Rule 57. The affidavit enforced unless it is preceded, or
must show the circumstances of fraud and the contemporaneously accompanied, by the service of
affiant must have personal knowledge of such. summons, together with a copy of the complaint,
the application for attachment, the applicant’s

59 | P a g e
affidavit and bond, and the order and writ of preliminary attachment may be done even
attachment, the applicant’s affidavit and bond, without the service of summons. What are those?
and the order and writ of attachment, on the Ma’am, first is that the service of summons cannot
defendant within the Philippines. be done personally or through substituted service
The requirement of prior or despite due diligence.
contemporaneous service of summons shall not And it must be shown that diligent efforts were
apply where the summons could not be served exerted to no avail in the service of summons.
personally or by substituted service despite Second, that the defendant is a resident of the
diligent efforts, or the defendant is a resident of Philippines temporarily absent therefrom;
the Philippines temporarily absent therefrom, or Third, that the defendant is a non-resident of the
the defendant is a non-resident of the Philippines, Philippines;
or the action is one in rem or qausi in rem. Fourth, that the action is one in rem or quasi in
rem.
So there are three stages involving the Diba, we mentioned that there is no need to
proceedings or the implementation of a writ of acquire jurisdiction over the person of the
preliminary attachment. So the first stage is? defendant in actions in rem and actions quasi in
First: The order granting the writ of preliminary rem. And the last, how could you serve summons
attachment. upon the defendant who is in hiding? Ok, so those
Second: The issuance of a writ of preliminary are the instances wherein service of summons is
attachment. not required before implementing the writ of
Third: The implementation of the writ. preliminary attachment.
We mentioned a while ago that a writ may be Mr. Aggabao, there is application for the issuance
issued ex parte, meaning there is no service of of a writ of preliminary attachment and there is
summons yet. So at what stage may, in the an affidavit and there is a bond. With these
proceeding involving writ of preliminary situations or circumstances, should the court now
attachment, may...is jurisdiction over the person grant automatically the writ of preliminary
of the defendant not necessary by service of attachment?
summons? Is the grant of preliminary attachment a matter of
At first stage Ma’am. right?
First only? No, Ma’am. It rests on the sound discretion of the
First and Second stage Ma’am. court.
That the order granting the issuance of the writ And the court should determine if the situation
and the issuance of the writ of attachment proper. falls within any of the grounds in Section 1 of
So on the first and second stage, the writ of Rule 57. And I would like to point out, diba ang
preliminary attachment may be issued without common denominator, fraud? ‘Pag inallege lang
service of summons. ang fraud, that is not enough. T should be proved
But, at what stage should there be service of and showed through the affidavits, diba? Fraud
summons? should be alleged with particularity and be
In the third stage. In the implementation of the specific. And, most importantly, it must be proved.
writ. Because it is explicit as what Mr. Aggabao Then that’s the time that the court now will issue
read in Section 5 of Rule 57 that no levy on the writ of preliminary attachment.
attachment pursuant to the writ issued under If the requisites do not exist, then there is no
Section 2 hereof shall be enforced UNLESS it is authority for the court to issue the preliminary
preceded, (ibig sabihin before the implementation) attachment.
or contemporaneously accompanied (kasabay), by Now, assuming you are the defendant, and there
the service of summons, together with a copy of is a writ if preliminary attachment but before the
the complaint, the application for attachment, the writ of preliminary attachment has not yet been
applicant’s affidavit and bond. implemented, na-issue na nya, nalaman mo, how
So hindi mo pwedeng iimplement kung hindi pa would you now, what is your remedy so that the
naseserved ng summons ang defendant. writ of preliminary attachment will not be
But, under the last paragraph of Section 5, there implemented against you?
are situations or instances wherein the Ma’am, by cash deposit and filing a counter bond.
implementation or enforcement of the writ of

60 | P a g e
By filing a counterbond, either depositing in Hindi pwedeng sabihin mo na partial lang ‘to. If
cash.... halimbawa P10M, oh edi magdeposit ka ng there is irregularity, then totally, the writ of
P10M in cash or bond. So, you file a counterbond. preliminary attachment is invalid.
Paano, Mr. Aggabao, kung na-implement na yung Another ground would be if the attachment is
writ of preliminary attachment? Na-attach na ni excessive. Kunyari yung prayer ng plaintiff is
sheriff yung mga properties mo, do you still have P10M, aba nag-attach si sheriff P100M na ang
any remedy against the writ? value. So, the attachment is excessive and you can
Yes Ma’am. file a motion to discharge the attachment OR if
Then what is your remedy? the sheriff attached a property that is exempt
I will file a motion to discharge the writ of from execution.
preliminary attachment. Now, yung personal property, movable, so i-
So, motion to discharge the writ of preliminary aattach ni sheriff, kukunin nya ‘to, hahatakin
attachment. And how could do that? How could nya, wala pang judgment and then what would
you move to dishcrge? Magpa-file ka ng motion. Is the sheriff do with respect to the property under
that enough by filing a motion? preliminary attachment, should the sheriff sell it
...On the ground of... that the writ of preliminary at the public auction?
attachment is issued improperly and the bond is No, Ma’am....
excessive and there must be notice and hearing. What is the purpose of preliminary attachment?
So, in this case, kailangan mo ba magfile ng For the security of the judgment.
counter bond? So, unlike a final attachment which we discussed
No Ma’am. either garnishment or levy, ang purpose ni sheriff
No. But what if the writ of preliminary ng paghila nya to sell it at a public auction to
attachment was issued in accordance with the satisfy the judgment, eto hindi, just to preserve
requirements of Section 1 of Rule 57, it was issued and protect the property. So the sheriff will safely
regularly and properly? What is your remedy? keep the personal property.
Ma’am, my remedy is to... my ground is that the How will the sheriff attach a real property? Kung
bond is excessive. movable kukunin lang nya, eh paano kung house
Ha? Ikaw as a defendant, na-attach na ni sheriff and lot?
ang property mo. So ang remedy mo, for you to By filing the writ of attachment in the Register of
question the writ of preliminary attachement, ang Deeds.
sabi mo kanina you would move to discharge the Involving real property, so before the Registry of
writ of preliminary attachment on the ground that Deeds. Ipapa-annotate nya yung writ of
it was improperly issued, it was irregularly issued preliminary attachment. So that is how
and you will (?) there is no requirement to post a attachment is made by the sheriff.
counterbond. Kinukwestyon mo nga eh, irregular
ang pag-issue. Now, with respect to the discharge of the writ of
Ang question ko ngayon, paano kung regular attachment, let us say that the motion to
naman ang issuance ng writ of preliminary discharge the writ of preliminary attachment is
attachment? It was regularly issued in accordance based on the unenforceability of the contract. So
with Section 1 of Rule 57, merong bond na pinost sabi nung defendant, bakit mo iaattach? Ipapa-
yung plaintiff or applicant. discharge ko ‘yan. Hindi naman enforceable ang
So in that case, you would file a motion to kontrata natin eh. So is that a ground to
discharge but you must file a counterbond. Bakit discharge the writ of preliminary attachment?
ka magka-counterbond? Kasi, regular naman No Ma’am.
naman yung issuance eh, para lang, in that case No, because it already pertains to the merits of
maibabalik sayo ang properties na na-attach ni the case. Ang ground lang naman kung may fraud
sheriff. You file a counterbond or you deposit in eh, diba? Eh kung na-iprove yung fraud sa
cash. entering into the contract or in the performance of
Class, please take note that the discharge could be the obligation, so the attachment is proper. Pero
total or partial. When you file a counterbond or kung ku-kwestyunin mo na ang validity ng
deposit in cash. But, if your ground is that, the contract, that is another story and you are now
writ of preliminary attachment was issued going into the merits of the case.
irregularly or improperly, it’s total or nothing.

61 | P a g e
May a property which is already in custodia legis The third party may avail of the remedy of
be attached? Halimbawa, yung kotse na-attach na TERCERIA.
ng ibang korte, can it be attached again by What is Terceria?
another court? It is making or executing an affidavit evidencing
Yes, Ma’am. his right to possession in the property.
Yes, there is no prohibition on that. That is What else?
provided in Section 7 of Rule 57. He may file a separate action...
But what is the condition? Reindivicatory action, what else? Can the third
The writ must be filed in the proper court or the person claim damages against the bond?
agency... Yes Ma’am.
So, according to Section 7 of Rule 57, a copy of the What else?
writ of attachment should be filed dun sa court The third party may move for summary hearing.
kung saan sya unang na-attached or who has Yes, so that the property will be released in his
custody of the property. And notice of the favour. So pareho lang class ang remedies of a
attachment should be served to the custodian. third person whose property is attached under
Kasi class, kapag naman nag-attach, hindi naman writ of preliminary attachment and under Rule
sa korte nilalagay, mapupuno na ang korte sa 39.
dami ng inaattach. Imaginine mo mga furnitures, Now, how would you now distinguish between
mga tv, refrigerators, kotse, so meron kang preliminary attachment under Rule 57 and the
pinaglalagyan. final attachment under the Rule 39?
Now, Section 10 of Rule 57, this is similar to Rule Ma’am the writ of preliminary attachment under
39. Yung walang ma-attach si sheriff in a Rule 57 is availed of at the commencement of
preliminary attachment, so just like in Rule 39, action or before the entry of judgment while in
there is examination of (?) whose property is Rule 39, it is availed of only after entry of
attached, so same procedure. judgment.
You mentioned a while ago Mr Aggabao, that in a What else? With respect to the sale of property
writ of preliminary attachment that there is no attached?
sale of property attached before entry of In preliminary attachment under Rule 57, it
judgment, Is there an exemption to this? cannot be sold immediately while in Rule 39 it is
Yes Ma’am. There is exemption. always sold.
What is that? That is the very purpose, to sell at the public
When the property is perishable. auction. What else?
Perishable property, yung mga food items. Yung In Rule 57, it is an ancillary remedy for the
mga mamahaling pagkain na ina-attach. purpose of securing the property before rendering
Halimbawa ikaw ay may ari ng hotel, so yung the judgment while in rule 39, it is a means of
mga mamahaling chocolate, mga alak, mga execution.
perishable goods could be sold. And the proceeds If under Rule 57, you said that if the property is
of the sale, to whom will it now go? perishable, it can be sold. To whom will the
To the applicant, Ma’am. proceeds of the sale go?
That would be the one that is going to be That will be under custodia legis.
preliminarily attached. Halimbawa, yung Under Rule 39, after the sale at a public auction,
computer, sabi ko nga next month or next year to whom the proceeds of the sale will go?
wala na, iba na ang version nyan. That is The proceeds of the sales will go to the judgment
considered to be perishable, not in a sense of creditor.
consumability, di mo naman kakainin yan but Judgment creditor. Now, we studied lis pendens,
with respect to the use. Ngayon, ito ang version notice of lis pendens. A notice of lis pendens, when
but next year a higher version will come out to the there is a pending litigation that is recorded at the
market and a present version of computer would back of your title. Real property, so pupunta kayo
be no use. sa Registry of Deeds, you will provide the Register
Just like under rule 39, what are the remedies of Deeds with a copy of the complaint and the
available to the third person whose property is Register would annotate the lis pendens.
attached by the sheriff in the implementation of Now, itong preliminary attachment, Mr. Aggabao,
the attachment? diba, you said for it to be valid or for a preliminary

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attachment to be effective with respect to real To preserve the status quo until the rendition of
property, it is also annotated at the back of the judgment.
title and it is being done by the Register of Deeds So until the rendition of Judgment or until the
upon giving him a copy of the writ of preliminary merits of the case are fully resolved. That is the
attachment. purpose of a preliminary injunction.
So let us say, may dalawang entry na yun, You mentioned about status quo, what is status
mayrong notice of lis pendens, same case, same quo?
specific performance with damages, civil case No. It is the last actual peaceable situation which
1234 pending at RTC Manila, nakatatak dun sa precedes the pending controversy.
title, uy mayron palang kaso. May writ of So it is the situation existing at the time of the
preliminary attachment na naissue in the same filing of the case. It is the LAST ACTUAL
case or in another case. For example, with respect PEACEABLE UNCONTESTED STATUS.
to real property, naka-annotate dun sa title. Madaling tandaan, LAPUS. Last actual peaceable
Question ngayon, which would prevail? uncontested status preceding the pending
Ma’am, there will be priority of liens... controversy.
Alin ang magpe-prevail, notice of lis pendens or Injunction may either be preliminary, which we
the registered writ of attachment? are discussing under Rule 58, and final injunction,
Ma’am, the registered writ of attachment. which is also provided for under Section 9 of Rule
Why? 58.
Bacause..., The purpose of a writ of preliminary prohibitory
Remember we studied under Rule 39, after the injunction is to what?
sale at public auction, mag-iissue ng certificate of To refrain from doing a particular act.
sale, kung hindi na-redeem, yung property na na- So you are asking or you are directing a person,
attach or na-levy, magkakaroon ng consolidation the court or tribunal to refrain from performing
of ownership to the highest bidder after 1 year. an act to prevent further injury. It is not for the
Yung ownership na yun, when will it be purpose of correcting a wrong already done but to
considered effective, from the time of auction sale correct further injury.
or will it retroact from the date of levy? The purpose of preliminary mandatory injunction
It retroacts from the date of levy, so kung kalian is what?
mo na-attach. Same is true, ang notice of lis To command the person to perform a particular
pendens, kung kalian mo lang yan pina-rehistro, act.
dyan lang yan magiging effective. Pero ang writ of To perform a particular act in order to re-establish
attachment, it retroacts from the time na and maintain a pre-existing relation.
inattach. So the writ of preliminary attachment or Is a preliminary mandatory injunction issued to
the final attachment, for that matter, would establish a new relation to the parties?
prevail over the notice of lis pendens. No, Ma’am.
So that is the writ of preliminary attachment. Let No. It is only to maintain what was pre-existing
us now proceed to preliminary injunction. prior to the controversy.
What is the nature of the writ of preliminary When may preliminary injunction, whether
injunction? prohibitory or mandatory, be issued by the court?
It is a remedy... At the commencement of the action or before the
Does it presuppose a main action? rendition of the judgment.
Yes, Ma’am. So at any stage of the proceeding, it may be at the
Yes. It is a preservative remedy availed of during commencement or during the proceeding but
the pendency of the main action. What are the two before the rendition of the judgment.
kinds of preliminary injunction? What court has the authority to issue the writ of
The two kinds are prohibitory and mandatory. preliminary injunction?
What is a preliminary prohibitory injunction? The court which has jurisdiction over the main
It orders the person to refrain from doing an act. action.
How about the preliminary mandatory injunction? So RTC can issue, MTC, CA and the SC and also
It orders the performance of an act. the Sandiganbayan may issue the writ o
What is the purpose of a preliminary injunction? preliminary injunction.

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What are the grounds for the issuance of a writ of No.
preliminary injunction, under Section 3 of rule 58? There is no valid ground or justification to issue
First, the applicant is entitled to the relief... the writ of injunction.
So the relief may either be restraining, the What do you mean by irreparable injury? This is
commission of the act, or performance of the act. the very core. This is the very basis why the writ
What else are the grounds? of injunction is issued by the court. When you say
Second, the continuance of the act would work irreparable injury, there is inadequacy of
injustice to the applicant. pecuniary estimation; it cannot be quantified into
Third, the continuance of the act would probably money. Hindi mo pwedeng i-kompyut ang injury
be in violation of the applicant’s rights and na masu-sustain if an injunction will not be issued
tending to render the judgment ineffective. by the court. Damage is not quantifiable in a
So those are the three (3) grounds under Section 3 monetary consideration. So it must prove
of Rule 58 for the issuance of the writ of irreparable injury if the act will not be restrained
preliminary injunction. or if the person will not do the act.
Siguro class nanonotice ninyo na ang preliminary Let us say for example, that the damages that is
attachment is a writ, ang preliminary injunction being claimed by the party would adequately
is also a writ. Because, this is an order of the compensate the injuries caused, should the
court, this is a process of the court, kaya writ. preliminary injunction be issued?
What are the essential requisites for the issuance No, Ma’am. If the damage that will be sustained
of the writ of preliminary injunction, whether by the applicant can be compensated by the bond
prohibitory or mandatory? filed by the adverse party, it is ground not to issue
There must be a verified application and bond. preliminary injunction.
So, verified application and bond. So the writ of injunction should never issue when
But, what should be established with respect to the action for damages could adequately
the verified application? What are the requisites? compensate the injuries caused. As I have said a
(1) It must show the facts that the applicant while ago, the very foundation of the authority
is entitled to the relief. and jurisdiction of the court to issue the writ of
He is entitled to the relief, meaning there is a preliminary injunction is IRREPARABLE
right, existence of a right that needs to be INJURY. It is not capable of pecuniary
protected. It must an unmistakeable right, clear estimation. Eh kung ang hinihinge mong damages
legal right. is actual damages kasi na-ospital ka, limang
Next? milyon, eh makwa-quantify mo nayun bakit pa
There must be a bond executed in favour of the mag-iissue ng injunction ang court when there is
adverse party. an injury that can be quantified by money.
(2) The second is that the acts against which an What is the quantum of evidence for the issuance
injunction is directed are violative of the rights of writ of preliminary injunction?
existing in favour of the applicant. Preponderance of evidence Ma’am...
Next? If you are requiring preponderance of evidence,
(3) There is probability of irreparable injury. then you are already applying the evidence
(4) And lastly, there is no ordinary, speedy, required in the main action, in the merits or the
adequate remedy to prevent that irreparable merits. Well, sabi nga natin dito, the probability
injury. of the irreparable injury. In that case, the
So those are the four (4) requisites for the quantum of evidence is merely PRIMA FACIE,
issuance of a writ of preliminary injunction. And ostensible right to a final relief. Kasi eto nga, this
you are correct that there must be a verified is merely a provisional remedy. The evidence need
application and bond, unless exempted by the not be conclusive and complete yet, because you
court. are just trying to prevent the doing of an act or
Irreparable injury. I mentioned a while ago that you are asking the court to require the doing of an
there must be an existing right, a clear legal right, act otherwise there is irreparable injury on your
it must be unmistakeable right. So if a right is part.
doubtful and it could be determined only after a What acts may be the subject of injunction? Can
full blown trial, is there a valid justification to acts already consummated be subject of
issue a preliminary writ of injunction? injunction?

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Yes Ma’am if the act is a continuing act. file ng injunction against MTC, idedemolish, hindi
So as a rule, kung consummated na, wala nang na. TRO usually, one setting, para lang may due
reason to issue an injunction. However, yun nga process, one setting, oh anu yun, anu yun, wala
by exception, if the acts are continuing, then the eh, no clear legal right. Correct, may irreparable
writ of preliminary injunction may still issue. injury, masisira ang bahay but no clear legal
There has been several decisions of the Supreme right. “Damno absque injuria” “you are injured
Court about it. So, although the general rule is but you have no cause of action, in accordance
that a writ of preliminary injunction cannot be with law.
issued against consummated acts, it has been held Halimbawa, yung case ni Mayor Binay. I am not
that acts consummated or already done which are saying na ito ang tama ha, but this is just for
continuing in nature may still be enjoined by the academic discussion. Preventive suspension, kasi
court. magiging issue jan kung ang CA may authority
Yung issue ngayon, yung Binay. This is pending eh, pero iset aside muna natin yan ngayon. Pero
before the SC class but for academic discussion. ngayon nga, Preventive Suspension, immediately
Kasi maraming mga intricacies ito but i-limit lang executory. Question, ang remedy certiorari, nag
natin sa rule. Consummated acts not subject to certiorari sya kaya immediately executory.
injunction unless continuing. Example ganito, Ngayon, meron bang clear legal right? Yes, mayor
wag na natin masyadong idiscuss ang Binay. In sya diba? Irreparable injury? Maaring meron,
an environmental case, yung SM nagputol ng hindi lang sa kanya, yung constituents, yun ang
puno. Ngayon nag-file ang isang NGO ng case maaari. Papasok ngayon, may consummated act
against SM with an application for temporary nab a? Consummated nab a yung act dahil nag-
restraining order and/or writ of preliminary oath na yung vice-mayor? Well, merong
injunction to restrain SM from cutting down trees. nagsasabiing consummated na, nag-oath na eh so
Can writ of preliminary injunction or TRO still there’s nothing to enjoin, meron ding iba
issue? nagsasabing hindi. So you must know. Ano ba,
Yes Ma’am. irreversible ba yung situation? Ano ba ang
Yung sa pagputol ng puno doon sa area na ‘yun, pinapa-enjoin? Preventive suspension. Nung nag-
pwede pa ba? Ano pa ba ang i-enjoin, naputol na oath ba yung vice-mayor, nagko-continue pa ba
ang puno. The act is already irreversible. Kasi yung preventive suspension?
halimbawa, nagputol yung SM doon sa area nay Yes, Ma’am.
un, diba may specific area, doon sa area nay an. Correct, diba? Continued pa rin yung 6 months.
So, ang pinaeenjoin, pagbawalan ang pagputol ng So the act is still continuing, kahit sabihin pa na
puno sa area na yun. Pero nung nag-file sya ng may acting mayor na. So, in that case, injunction
case, putol na lahat ng puno doon sa area na yun. may be proper. Kasi hindi naman yan kagaya ng
In that case, meron ka pa bang ipapaenjoin, Mr. nagputol ng puno, na wala ka nang i-enjoin dahil
Aggabao? Putol na yung puno. Hindi naman ang tapos na. Ito, although meron ka nang acting
injunction mo eh, for SM be enjoined from cutting mayor, yung preventive suspension nya 6 months,
down trees all over the Philippines. Hindi ganun, continuing pa rin. So what I’m saying is, based on
syempre it should be specific. So ang pinatitigil the requisites of a preliminary injunction, the
mo, magputol ang SM ng puno doon, specific area. injunction MIGHT be proper. Yun lang, up to that
Nakpagputol na, naputol na ang lahat, meron ka point. But the other question, issue would be
pa bang i-enjoin? Wala na. Continuing bay un? which we would discuss tomorrow in relation to
Irreversible nay un eh. Naputol na. Fait accompli. the Ombudsman Law, does the CA have the
Pero kung hindi pa nakapagputol, pwede pang authority? Yun ang another issue. Pero yung
magkaroon ng injunction, diba? Same is true, based on the requisites, kung sa SC yan, parang
ikaw defendant ka in an ejectment case, natalo meron diba? And papasok pa rin dyan, yung
ka, idedemolish na ang bahay mo, nademolish na. preventive suspension is immediately executor eh.
Nagfile ka ng injunction, is there something to It is an interlocutory order.
enjoin? Wala na, nademolish na, irreversible nay And another point that I would like to clarify with
un. Pero kung hindi pa, pwede pa siguro kasi it you, ang injunction class, TRO and preliminary
would amount to an irreparable injury, as long as injunction, once it issued, it is immediately
you could prove before the court that you have a executory. Hindi yung maghihintay ka pa ng 15
CLEAR LEGAL RIGHT. Kaya sa akin pag nagpa- days para makapag-appeal ka, hindi ganun. It is

65 | P a g e
immediately executory, otherwise, madedefeat
yung purpose eh. Sasabihing, ah hindi ako
magpuputol ng puno ha pero I have 15 days to file
a motion for reconsideration, so hindi pa yan
effective, putulin ko. We will be discussing more
about it tomorrow. Siguro narinig ninyo na
iaappeal pa daw nila yung injunction, hindi nila
binasa yung Rule 58. So let us end there.

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 the jurisdiction of the Ombudsman.” The
investigation is within the authority of the
So we were discussing yesterday preliminary Ombudsman. So, that is another issue as against
injunction. As a review, what are the requisites the injunction issued against the preventive
for the issuance of a preliminary injunction? suspension by the Ombudsman. And, under Sec
First, that the applicant has the right to relief 14 also second paragraph, it is provided that no
demanded; ... that the commission of the act court shall hear any appeal or application for
would work injustice to the applicant...and that remedy against the decision or findings of the
there is probability that the right of the applicant Ombudsman except the Supreme Court on pure
will be violated... (sorry, I can barely hear the question of law.
answer) So, is the Court of Appeals the proper court in
And there is probability of irreparable injury. So, questioning the preventive suspension order
those are the requisites for the issuance of a issued by the Ombudsman? However class, in one
preliminary injunction. Yesterday we were case, Office of the Ombudsman v. Jose T.
discussing about consummated acts. If the acts Capulong (GR No. 201643, March 12, 2014), the
are consummated, it is no longer proper to issue a issue also here is the preventive suspension
writ of preliminary injunction or a temporary issued by the Ombudsman against Capulong.
restraining order. But there is exception to this, Capulong questioned the preventive suspension
and what would that be Mr. Mauricio? meted against him by the Office of the
Because we discussed yesterday that as a General Ombudsman before the Court of Appeals via a
Rule, a writ of preliminary injunction cannot be petition for certiorari under Rule 65, the same
issued against acts which are already thing that Mayor Binay did. With the petition for
consummated. But, the Supreme Court has also certiorari, Capulong applied for the issuance of a
laid down an exception. That although the acts temporary restraining order and/or writ of
are consummated but which are continuing in preliminary injunction. So parang si Mayor Binay
nature, the act may still be enjoined by the court. din, certiorari with TRO and injunction. The CA
As far as I can remember, we were discussing issued also the TRO and the injunction. So the CA
about the preventive suspension issued by the acted on that.
Ombudsman against Mayor Binay. We had So, yung sa Capulong case, sabi ng SC, pwede.
academic discussion without prejudice of course to But in the Binay case, we don’t know what would
the ruling of the Supreme Court. Based on the be the ruling of the Court. Ang sabi ng Supreme
elements, we said that there might be irreparable Court, sa Capulong case, a preventive suspension
injury not only to Mayor Binay but also to the order is an interlocutory order which cannot be
constituents of Makati. Is there a clear legal appealed from. So, the aggrieved party may seek
right? There is, on the ground that he is elected by redress through a petition for certiorari under
the people and as Mayor of Makati. Also, there is Rule 65. In that case, the CA found that the Office
no adequate remedy in order to address the of the Ombudsman exceeded its authority.
situation. Why? Because, preventive suspension According to the CA, what are the requisites of
order is immediately executory and it is an the issuance of the preventive suspension? First,
interlocutory order and the remedy is to file a determine whether the evidence of guilt is strong.
petition for certiorari under Rule 65. That’s what Second, it is in an administrative case involving
Mayor Binay did - question the preventive dishonesty, oppression, grave misconduct, or gross
suspension order through a petition for certiorari. neglect of duty. And the charges would warrant
Question is, did Mayor Binay file the petition for removal from office. So, in that case, ang sabi ng
certiorari before the proper court? Or, should it be SC, the courts can substitute the Ombudsman
filed before the Supreme Court? That is another judgment if there is grave abuse of discretion. So
issue that should be resolved in that case. in the Capulong case, nirecognize ng SC na pwede
Because, under the Ombudsman Law Sec 40 of ang CA na 6mag-issue ng TRO at injunction
RA 6770, it is explicitly stated that, “no writ of against the preventive suspension order of the
injunction shall be issued by any court to delay an Ombudsman. I don’t know what would be the
investigation being conducted by the Ombudsman treatment now by the SC because the issue, yun
UNLESS there is a PRIMA FACIE evidence that nga yung Sec 14, that it is only the SC which can
the subject matter of the investigation is outside review the findings of the Office of the

67 | P a g e
Ombudsman. So this is only for academic Never, you cannot extend the TRO. The judge who
discussion, yun yung mga points. We will have to extends the TRO is grossly ignorant of the law.
wait for the decision of the SC. Because, you know Hindi pwede.
the complexity would be different. Kasi, there is What if the 20 days lapsed without the court
also the issue of condonation eh. So baka iyun ang issuing the preliminary injunction, is there a need
mag-iba. In that case, the SC might rule that for a motion to declare the TRO no longer
Binay has no clear legal right to seek for an effective?
injunction. And the issue now, sana maresolve ng There is no need Ma’am.
SC, which court has the authority to enjoin or to What if, so 20 days yung TRO, on the 10 th day
issue a TRO or injunction against the preventive after the issuance of the TRO, the judge issue a
suspension issued by the Ombudsman. So those writ of preliminary injunction, what would
are the points that I want you to really look into happen to the TRO?
especially when the SC decision already decides Ma’am the TRO would be...
the case. But we will go to the basic. What are the What if the judge denied the writ of the
requisite of a preliminary injunction: preliminary injunction prior to the lapse of the 20-
(1) clear legal right; day period of the TRO, what will happen to the
(2) there is the probability of irreparable TRO?
injury; ...
(3) there is a violation of the right of the What is the duration of the TRO for the CA?
applicant; and, 60 days.
(4) there is no adequate or speedy remedy How about for the SC?
provided for under the rules except for the Ma’am it depends upon the Supreme Court.
issuance of the injunction. It could be indefinite until further orders.
I assigned to you also another case. The case of May a TRO issued without notice and hearing?
Ombudsman v. Dechavez. When a government Can it be issued ex parte?
employee meted the penalty of dismissal in an Yes Ma’am.
administrative case, diba we discussed under Rule When? Under instance?
43 that that is immediately executory, is it not? It ...
is immediately executory; therefore, preliminary Who will issue the TRO even without hearing?
injunction will not lie. That is under the case of Is it the SC? Is it not that under the Rules, the
Ombudsman v. Dechavez. TRO should be issued after notice and hearing.
Mr Mauricio, in the issuance of the writ of However, as an exception and you are correct, if
preliminary injunction, can it be issued ex parte there is an extreme urgency, the executive judge
without notice and hearing? could issue a TRO for the duration of 72 hours
No, Ma’am. A writ of preliminary injunction before it is raffled to a branch of the court. So in
cannot be issued without a prior notice and that case, there is a 72-hour TRO.
hearing. What must be done within that 72 hours TRO
Now, a species of preliminary injunction is a issued by the executive judge ex parte?
temporary restraining order. What is a temporary ...
restraining order? In that case class, within the 72 hours, the judge
A temporary restraining order is an order of the whom the case is raffled shall conduct a summary
court to maintain the status quo between or hearing to determine whether a TRO should
among the parties until the determination of the really be issued until the application for
prayer for a writ of preliminary injunction. preliminary injunction is resolved. Dun sa 72
When may a temporary restraining order issue? hours nay un. So halimbawa yung executive
What would warrant or justify the issuance of a judge, naku, idedemolish itong bahay hindi
temporary restraining order? naman ito squatter. Kapag nademolish nay un,
The applicant .... (I really cannot hear the answer irreversible na. Talagang it would cause
of the student. T_T) irreparable injury. So ang judge, because there is
Pending the hearing on the application for the an extreme urgency, nag-issue ng TRO valid for
preliminary injunction. Now, what is the 72 hours. Nai-raffle sa akin. Within that 72 hours,
duration of the TRO for the RTC and MTC? so ilang araw yun, 3 days, magko-conduct ako ng
20 days. Can it be extended?

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hearing on the TRO and to determine kung makikialam ang sheriff, wala, parang walang
talagang mag-iissue ako ng TRO. nangyari. As if there was really no case. What you
Now, after hearing I decided to issue the TRO, were doing at the time of the filing of the
you said that the TRO is for 20 days, so may 72 complaint. Kung gusto mong parentahan ang
hours na, how many more days... should the 72 bahay mo, pwede. Yun ang status quo. Hindi ka
hours be included in the 20-day TRO period? pipigilang..oh sige pwede ka jan pero at any time
Yes, Ma’am. ha pwede kang paalisin, or yung renta mo dapat
Kasi, we have been discussing about temporary ibigay mo rito sa adverse party. Parang walang
restraining order and Status Quo. Again, what is gagalaw. Yun lang yun.
a status quo? A TRO is usually issued against the adverse
So pag sinabi natin maintain the status quo, ano party. So ire-restrain ka pero akong nag-apply
ang minimaintain natin? The Last Actual walang restraint sa akin. Yun yung TRO. Sa isang
Peaceable Uncontested Status at the time of the party lang may pagbabawal. Pero sa status quo
filing of the case, yun ang status quo. How would ante, pareho tayo. Dapat pareho tayong walang
you distinguish now the status quo from TRO, gagawin, irerespeto natin kung anong meron tayo
kasi magkaiba ito when the court issues a TRO at ginagawa natin yung mga karapatan natin
and when the court issues a status quo ante order. nung nag-file tayo ng kaso.
ang SC ang mahilig mag-issue ng ganito, ng Ang TRO kasi class, one sided. Yung isa lang ang
status quo ante. bawal gumalaw yung isa pwedeng gumalaw. In
Is it required that before a status quo order may status quo, pareho kayo.
be issued there must be notice and hearing? With respect to injunctions, can an injunction be
No, Ma’am. issued against government infrastructure
So it can be issued by the court motu proprio. projects? Halimbawa yung Ayala Bridge, diba
How about the TRO? nire-repair? Hirap na hirap na yung mga
There must be notice and hearing. dumadaan dun. Can the residents of the City of
What is the purpose of TRO? Manila or the Mayor of Manila file an action to
Ma’am, the purpose of the TRO is in order for the stop, to have the repair of the Ayala Bridge
court to intervene the granting of the writ of enjoined because it is causing irreparable injury
preliminary injunction. to the residents in the area?
So when a TRO is issued, diba restrained, you are Ma’am, no.
prevented to do an act. Hwag mong i-demolish Can we enjoin Kim Henares, can we stop her from
ang bahay. collecting taxes from us or from implementing the
How about a status quo ante order? Value Added Tax?
When you say status quo ante, ibig sabihin hwag No, Ma’am.
kang gagalaw, wag kang magde-demolish. Status In criminal prosecution, can the filing of an
quo order neither directs the doing or undoing of information against an accused be stopped
an act. So irespeto mo kung ano ang status mo at through a preliminary injunction?
the time of the filing of the complaint. Yun ang No. Merong isang kaso, a judge in Pasig, he issued
status quo. It is as if na para bang walang kasong an injunction against the filing of an information
finile. So halimbawa, ikaw nakatira ka doon, against Delfin Lee, yung Globe Asiatique. Yung
irespeto mo yun, pwede ka pa ring tumira doon. TRO, imagine, tini-RO nya yung mga fiscal na
Respect the staus at the time of the filing of the wag mag-conduct ng investigation, pina-stop yung
complaint. Hindi ka pagbabawalan na wag kang preliminary investigation and even the filing of
tumira, there is no restraint. the information. Kaya nga nakapagtago si Delfin
In TRO, is there a need to post a bond before its Lee diba, nahuli na lang this year or last year.
issuance? That is very basic, you do not enjoin criminal
Yes Ma’am. prosecution.
How about the status quo ante order? Can injunction be the principal action?
There is no need to post a bond Ma’am. Yes, Ma’am.
Ang status quo kasi para hindi magkagulo. Yes, because of the last provision of Rule 58. It
Parang walang pakialaman. Ang TRO talagang pertains to the final injunction
halimbawa anjan na ang sheriff, magde-demolish By the way, going back to preliminary mandatory
na, pipigilan mo. Ang status quo, hindi injunction, can the court compel one of the

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spouses to cohabit with and render conjugal rights We now proceed to Rule 59. Rule 59 pertains to
to the other? what provisional remedy?
Halimbawa, hiwalay na, gusto nang bumalik, may Receivership.
clear legal right ba? Diba meron? Bilang mag- Receivership, this provisional remedy presupposes
asawa, you have the obligations eh. Second, is a main action pending. And the property subject
there a violation of that right? That would be the of the action requires preservation.
issue, may violation ba? Eh paano kung binugbog What is the concept of receivership, what is
mo or what. The family code provides for the receivership?
rights of spouses to cohabit, diba? Obligation to Ma’am, Receivership is a provisional remedy
cohabit and render the obligations of marriage. wherein the court would appoint a representative
May right naman. But will the refusal of the as a receiver to preserve the real or personal
spouse amount to the violation of that right that properties during the pendency of the action...
would cause grave injustice to the other spouse? Is it only available during the pendency of an
Because you compel the other spouse to do so, you action?
are violating the constitutional right of the other No Ma’am, it is also available even after
spouse. Hindi mo pwedeng pilitin, that would judgment.
amount to servitude already. Parang slave na ang After the judgment in aid of execution. Is it also
treatment mo sa asawa mo. That is why AN available during the pendency of an appeal?
INJUNCTION WILL NOT LIE. Yes. So the provisional remedy of receivership is
Another point that I would like to emphasize, Mr available during the pendency of the action,
Mauricio, for example naka-receive ka ng writ of during appeal and in aid of execution after the
preliminary injunction or TRO today. Sabi mo, ah final and executory judgment if the judgment is
hindi pa ito effective, meron pa akong 15 days to returned unsatisfied.
file a motion for reconsideration. That’s what Sec. Can receivership be also a principal action?
De Lima was saying during the time of GMA in Yes.
2010. Kasi GMA was about to...basta merong Remember class, the receivership under Rule 59 is
issue nun eh. Sabi ni Sec. De Lima, hindi pa not the same as the receivership under the
nagla-lapse yung period to appeal on the TRO or Banking Laws. They are different. The rules are
injunction, so hindi pa final yun, hindi pa different. So we only limit ourselves to the
kailangang i-implement. Is that correct? receivership as a provisional remedy available
That is not correct Ma’am because the writ of under the Rules of Court.
preliminary injunction is immediately executory. What court can grant receivership?
Yes, and it is very clear under Sec 5 of Rule 58. Ma’am, the court where the action is pending.
Yung first paragraph of Sec 5. A temporary Can the CA and SC grant the receivership?
restraining order to be effective only for a period Yes, ma’am.
of 20 days from service on the party or person So they can. All courts can grant the provisional
sought to be enjoined. So, this means that when remedy of receivership.
you are served, once you are served with the TRO, What would justify the grant of an application for
that is immediately effective. It is an interlocutory receivership? In what instances where
order, not appealable. So hindi ka maghihintay. receivership may be granted by the proper court.
Isipin nyo na lang yung TRO, sasabihin ninyo Ma’am it could be granted where the applicant
hindi pa naman ito effective, mag-i-MR pa ako has...
within 15 days. So pwede kong i-demolish yan. So the applicant must have what?
Diba? Na-defeat yung purpose ng provisional Interest Ma’am.
remedy of Temporary restraining order. And also, On What?
the last paragraph which would confirm that a On the subject matter
TRO and injunction is immediately executory. If Ok, What else?
issued by the CA, a TRO shall be effective 60 days Ma’am the judgment debtor is to apply property
from service to the party or person enjoined. So, for the satisfaction of the judgment. Also, in the
ang injunction or a TRO is effective upon service execution of....
to the party or person enjoined. So that is Yes, but what situation would warrant the
preliminary injunction and TRO. appointment of the receiver? You said that the
applicant must have interest in the property or on

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subject of the action. But what situation would not less. How about the receiver who will be
warrant the appointment of the receiver? Kasi, appointed by the court, is he required to post a
when the receiver is appointed during the bond?
pendency of the action, the properties of the party Yes Ma’am.
ay kukunin sa kanya and will be safely kept and So in receivership, how many bonds are involved?
will be under custodia legis and under the Two, Ma’am.
supervision of the person who is appointed as a One is the?
receiver so that later on it would satisfy the Applicant’s...
judgment. And One is the?
What situations would warrant the appointment Receiver’s...
of a receiver as provided under Sec 1 of rule 59? The receiver appointed by the court, before the
Ma’am if the properties is in danger of being lost receiver discharges his functions, what is the
or... condition or requirement aside from posting a
So lost, wasted or dissipated and it must be shown bond?
by the applicant. By the way, should the He must be under oath. Why? Because once he is
application be verified? under oath, he now becomes an officer of court
Yes, Ma’am. and he is accountable and liable to the court.
It should be verified. What else are the situations I would like to point out that apart from these
that would warrant the appointment of a receiver? requisites that we have mentioned for the
Well, you said a while ago that receivership may appointment of the receiver, the court must only
be availed of in aid of execution of judgment. So if consider the grounds or reasons given by the
the judgment was returned unsatisfied, I think we applicant although that is what is provided under
had discussed this under Rule 39 that if the Sec 1 of Rule 59. But remember, that also Sec 1 of
judgment is returned unsatisfied, one of the Rule 59 a receiver may be appointed if it is the
remedies is to appoint a receiver. Diba maraming most convenient and the most feasible thing to do.
remedies, examination of judgment debtor, So it is not only from the point of view of the
examination of the third persons who have applicant that the court should determine the
obligations or debts to the judgment debtor and propriety of appointing a receiver. And what
one remedy is to appoint a receiver and, if the should be considered by the court?
appointment of a receiver is the most feasible and The court should determine whether injury
convenient thing to do in order to preserve, resulting from such appointment would probably
administer or dispose of the property in litigation be greater than the injury ensuing if the status
because in receivership, you are preventing the quo is left undisturbed. So iisipin ng court, mas
other party to dispose of the properties during the makakabuti bang mag-appoint ako ng receiver o
pendency of the action and even during appeal. hahayaan ko na lang na walang receiver.
Kasi, the adverse party should be the owner of the The court should determine whether the
property and as the owner, you have the right to appointment of a receiver would prejudice the
dispose of your property diba? Pwede nyang gawin rights of the other parties or imperil the rights of
yun. So as a protection and for the satisfaction of the other parties as much as those of the
judgment, then a receiver may be appointed under applicant. Lalo na class kung ang property ay
Sec 1 of Rule 59. pinag-away awayan ng mga co-owners or ng mga
We said a while ago that application for the magkakapatid. So iisipin yan ng korte, pag ako ba
appointment of a receiver must be verified. What ang-appoint ng receiver at yun ang mag-
are the requirements for the court to appoint a mamanage ng property, mas magiging maayos ba
receiver upon filing of a verified application? itong mga parties na ito. Kasi you have to
Ma’am aside from the application the applicant consider, babayaran mo yung receiver. Mas
must also show that he has interest in the mamanage ban g maganda or sila-sila na lang ang
property and that the property is in danger of magma-manage.
being lost, wasted, or dissipated. So those are the considerations that must be
Is there a need to post a bond in receivership? taken, addressed and appreciated by the court.
Yes Ma’am. What are the powers of a receiver assuming he
So the applicant must post a bond equal to the has already posted a bond nad he has already
value of the property subject of receivership but taken his oath as a receiver?

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Ma’am, first to file suits in his own name... So under Sec 7 of Rule 59, the party who refuses
So in his own name, he does not have to implead to deliver the property to the court appointed
the applicant. receiver may be cited in contempt of court and he
Also ma’am he has the power to collect debts due could be liable for damages. Kung magtatanong
either debts due to him or to property. Also, he kayo, Judge eh bakit kailangan pa ng receiver?
has the power to receive rents; also he has the Bakit hindi na lang preliminary attachment, mas
power to do acts respecting the property as the maganda. Class, ang preliminary attachment is
court may authorize. available only at the commencement of the action
May the party to the action be appointed as and before judgment. Ngayon, pag nagkaroon na
receiver? ng decision or appeal, wala na yung preliminiary
Yes, ma’am but only if all of the parties consented attachment. Nadi-dissolve na yung preliminary
to such appointment. attachment issued by the trial court. So ano ang
May an action be filed against a receiver? pwedeng remedy? Eh di receivership on appeal.
Halimbawa, yung isang property given to the Rule 60. REPLEVIN
receiver to manage the property. Meron isang tao Ma’am Replevin is a provisional remedy wherein
not party to the action claiming that he is the the applicant... to recover a property...
owner of the property. Can he file an action What kind of property? Real or personal?
against the receiver, for example, recovery of Personal property Ma’am.
possession? Replevin applies only to personal property.
No, Ma’am. Rule 60, Replevin, may be a main action or purely
As a general Rule, an action cannot be filed a provisional remedy. So if there is a main action,
against the receiver unless there is leave of court. that would be recovery of possession. Pero class,
So the third person would ask leave of court so ang ano jan, talagang Replevin ang title if you
that he can file an action DIRECTLY against the want to recover a personal property. Replevin as a
receiver. main action with a provisional remedy of replevin.
What are grounds to discharge a receiver or When must the application for replevin be filed?
terminate receivership? Ma’am at the commencement of the action or
Ma’am if there is insufficiency or ineffectiveness before answer.
the....??? Commencement of the action or before answer. So
And there is no longer a need for the appointment that is the requirement. A party praying for the
of the receiver or the need no longer exists. provisional remedy of replevin must file an
We said a while ago that a receiver may be application for writ of replevin at the
appointed during the pendency of an appeal. commencement of the action or at any time before
Where should the verified application for the the defendant answers.
appointment of a receiver during appeal be filed? What must accompany the application for the
Should it be before the appellate court or before issuance of the writ of replevin?
the court of origin? Ma’am it must accompany the affidavit of the
Ma’am it should be filed before the court of origin. applicant describing the property...
Court of origin. So doon ka magpa-file kahit na Apart from describing the property, what must
andun sa court of appeals. Who will appoint the the applicant show? Remember, the applicant
receiver? The CA or the court of origin? wants to recover a personal property at ang
Ma’am the court of origin. gustonng mangyari ng applicant dito ay ang
So this is part of the residual powers of the court. personal property mapasakanya na so that the
Diba sabi natin, the court could exercise residual applicant will have the custody of the personal
powers. If you would notice, yung isa sa mga property during the pendency of the action, that is
residual powers that the court could exercise are the purpose of replevin.
those matters for the protection of the parties in Ma’am, the applicant must show that he is the
the action. owner of the property and that he is entitled to
What is the liability of a party who refuses or the possession.
neglects deliver the property to a receiver? Can i So, is it absolute that only owners of the personal
be cited in contempt of court? property may file an application for Replevin?
Yes, Ma’am.

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No Ma’am. It is not absolute. As long as the And what must you show? So that you’ll be
applicant could show that he is entitled to the entitled to the writ of replevin.
possession of the property. S: That the defendant did not return it.
With respect to the defendant, it must be shown Judge Q: You must show the OR and CR, your
by the applicant that the defendant is in ACTUAL title, your ownership, the basics of why you want
possession of the personal property because if the to recover possession of the personal property
defendant is not in actual possession, the writ of atsaka you must state the actual value of the
replevin will not issue. Kasi kung wala naman sa property. Is there a requirement to post a bond in
defendant, nasa ibang tao, paano ang gagawin replevin?
mo? The writ of replevin would be useless. So it is S: Yes mam. There is a requirement to post a
important class that the defendant is in actual bond.
possession of the personal property subject of the Judge Q: How much?
writ of replevin. S: Double the value of the property.
The applicant must also show that the defendant Judge Q: Kaya sa amin yung mga nagpopost ng
wrongfully detained the personal property. bond, halimbawa yung Montero, dalawang buwan
Usually class itong replevin yung mga bumibili ng hindi nakabayad, so mga 1 million pa yun, pa
kotse on instalment. Bibili kayo ng kotse, maglo- nagpost ng bond yung bangko mga 2 million, kaya
loan kayo sa banko. So yung banko babayaran ang laki ng kita ng mga surety. Let us say mga
yung Toyota or Honda, so sa banko kayo ngayon Toyota, 700,000 double up , kaya sa replevin mas
may utang. Magbabayad kayo ng amortization sa malaki yung bond, double the value of the
banko. Kung hindi kayo makabayad... ang mga property.
banko ngayon maghigpit two months lang, Judge bakit naman double the value? Eh kapag
irereplevin na. Ang daming repelvin cases. You nag-preliminary attachment ng real property,
know in one week nagra-raffle kami sa equal to the value. Bakit class? Because ang
Muntinluoa ng mga 50 cases of replevin. Ganun personal property, its mobile, ang dali kaya
katindi. Ang sabi ko, ganun pala kadaming niyang i-dispose. Kaya double the value, so ang
Pilipinong nangungutang para makabili ng kotse. mangyayari, what if judge later on, it was decided
May Montero, fortuner, vios, altis yng mga high by the court that the applicant is not entitled to
end. Dalawang buwan lang hindi mkabayad, pa- the possession of that personal property, then
filan na. Kasi nauuso yung mga down payment eh whatever damages suffered by the defendant will
kaya madamin nangungutang. So two months be answered by the bond. At halimbawa, etong
hindi nakabayad, nagpa-file ng Replevin as a bako, kasi class, kapag iyan ay nahatak, na-
main action with an application for a writ of replevin, pwede nilang ibenta yan. So, ang
replevin. mangyayari nagyon, kapag nanalo yung
defendant, ano ngayon yung ibabalik, edi yung
Judge Q: So 2 months hindi nakabayad magpa-file nasa bond. That is the purpose of the bond. Now,
ng replevin main action tapos may action for the let us distinguish, kasi in preliminary attachment,
writ of replevin, so ganyan ang gagawin, recovery dib a naghahatak din si sheriff, dito sa replevin,
of personal property, ang kotse of course is a kukunin din ni sheriff yung property, yung
personal property, so ang question ngayon is how personal property. How would you now
could the applicant or the bank show, the distinguish replevin from preliminary
defendant is wrongfully detaining the property, attachment?
what must be shown? Una, nangutang siya sa S: In replevin, the purpose is recovery of personal
bangko para bumili ng kotse and then hindi siya property. For preliminary attachment during the
nagbabayad ng amortization for 2 months, pendency of the action, the purpose is to secure
meaning he has the defendant has no right the award from the judgment.
anymore to take possession of the property, JudgeQ: Replevin is only available if the
because he already failed in his amortization, that defendant is in actual possession of the personal
is how you show it. property. How about in preliminary attachment?
Let us say for example, hindi utang sa bangko, S: Even if the property is in the hands of a 3 rd
ikaw pinahiram mo yung kotse mo sa kaibigan person, still the property may be attached.
mo, hindi na isinauli sayo, can you file an action JudgeQ: Ok now, Can you attach a property which
for replevin? Can recover possession of that? Yes. is already in custodia legis?

73 | P a g e
S: yes mam. 60. Please read (Refer to Sec.3 Rule 60, Rules of
Judge Q: In replevin, can you avail replevin? Court).
Pwede mo pang marecover yung property? Judge Q: So, it is very clear upon the filing, mere
Personal property, if it is already in custodia filing of the affidavit and the approval of the bond
legis? will warrant the approval of writ of replevin,
S: No mam. provided of course that in the affidavit, the
Judge Q: Hindi. Kasi halimbawa, RTC QC, andun applicant has the right to or title to recover
na yung kotse, na-attach na daw, itong si sheriff, possession and take custody of the personal
magrereplevin, kukunin niya, ipapakita niya yung property during the pendency of the action. So a
order of replevin, it cannot be done. Unlike in the writ of replevin may be issued ex-parte. There is
preliminary attachment, wherein the sheriff will no need for a notice and hearing. Now, I mention
only show the court the writ of preliminary a while ago that replevin may be the main action,
attachment. Ok. and under Sec. 9 of Rule 60, this pertains to the
Judge Q: Yung example natin kanin, may utang issuance of the judgment wherein the court after
ka sa bangko dahil namili ka ng kotse, car loan, 2 the trial on the merits now determines who is
months ka ng hinid nakababayad, before the bank entitled to, who has the right of possession to or
can file the action for replevin and apply for the the value of the property subject of litigation.
issuance of a writ of replevin. Is there a
requirement that the bank should make a demand RULE 61: SUPPORT PENDENTE LITE
from you? To turn over the possession and to pay Judge Q: What do you mean by pendente lite?
their obligation. Bago makapag-file nf replevin, S: Support while pending action.
kailangan ba muna mag-demand sa iyo ang Judge Q: Now, support pendente lite, can it be
bangko na isauli mo na sa amin ang kotse kasi granted without notice and hearing?
hindi ka na nakakabayad. Is demand necessary S: No mam.
before you file an application for the issuance of a Judge Q: So, there must be a notice and hearing.
writ of replevin? Support here is merely provisional, ok during the
S: Yes mam. pendency of the action and support pendente lite
Judge Q: go over Sec. 2 Rule 60 which provides for may be granted in two instances. And what are
the requirement, di ba the basic requirements those instances?
would be affidavit and bond. Is there anything in S: In actions for support and second, in criminal
Sec 2, that requires demand for the return of cases wherein the civil action or the civil liability
possession, before the application for the return of in a criminal action is reserved or is not waived by
the writ of replevin can be file or even the main the aggrieved party.
action for replevin? Judge Q: So in action for support in a family case,
S: None. for example in legal separation, annulment of
Judge Q: There is none. So demand under sec.2, marriage or the main action is support,
there is nothing under Rule 60 which requires a declaration of nullity of marriage, those are the
demand on the possessor of the property before an cases wherein support pendente lite may be
action for replevin could be filed. Lets take a granted by the court. And the second situation
break. that you have mentioned is in a criminal action
Judge Q: Mr. Mauricio, May replevin and wherein the civil liability includes support to the
attachment be availed of in the same case? So at offspring as a consequence of rape. So, those are
the commencement of the action, there is an the two instances wherein support pendente lite is
application for the writ of preliminary available. Is bond required? Wala na ngang pang-
attachment, it was granted, there was a writ of suporta sa sarili, magrerequire ka pa ng bond,
preliminary attachment. Can replevin be availed napaka-harsh naman at napaka-mean naman ng
of in the same case? rules, ok before the court grants your support
S: No mam. during the pendency of the action, you must first
Judge Q: So you cannot avail those provisional post a bond equal to the support that you are
remedies in the same case because the purposes claiming. Ok now, that is injustice and unfair.
are different. Can a writ of replevin be issued Now, when may the application for support
without notice and hearing? Under sec. 3 of Rule pendente lite may be filed?
S: Upon the commencement of the action.

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Judge Q: Must the application be verified? ang tatay ang mag-support. Remember, dib a,
S: Yes mam. support of the family is the obligation of both
Judge Q: If the right to support is in issue or the spouses, sa kultura lang natin yung lalaki ang
basis of the right to support is not established, susuporta sa babae, but under the family code,
meaning there is question as to the filiation or support of the family is the obligation of both
paternity of the child, isa yun sa issue. Can spouses.
support pendente lite be granted? So, in that case, the financial conditions of the
S: No mam. applicant and the other party should be
Judge Q: No. So it must be based on a legal considered, the financial condition of the parent
ground for support, halimbawa ikaw, isa kayo sa who has custody of the child should be considered.
mga magulang at wala namang question The physical and health condition of the child,
talagang hindi mo idine-deny na anak mo iyon, baka laging maysakit, laging ansa ospital, special
support pendente lite will be granted, pero child ba siya, kailangan ng special attention,
halimbawa, yung tatay sinasabi niya, hindi ako papasok sa school of SPED dib a, iba yung
ang tatay niyan magpapa-DNA muna tayo, at pangangailangan nun, mas maarami at ams
that point in time, the application for support mahal ang kaialngan nun. The standard of living
pendente lite should not be granted. For example, that the child was accustomed to. At syempre,
the court fixed 15,000 a month as support icoconsider din nung court kung magkano ba yung
pendente lite, is that already conclusive or res kita nung party against whom support is being
judicata that upon the termination of the main claimed. Eh judge seaman po kasi yun, malaki
action yun na talaga ang magiging suporta para ang kita niyan, mga kumikita yan ng 100K pesos
sa applicant. net, so in that case judge kailangan ibigay niya sa
S: No mam because it is only for the pendency. amin yung 100K pesos nay un. Paano naman
Judge Q: And remember even yung support na in- mabubuhay yun, din a ba iyon kakain? Why kill
adjudge in the court in the main action, that could the goose that lays the golden eggs? Di ba. Kaya
also be modified depending on the changing needs, kapag may kumokonsulta sken, usually ganyan,
financial needs of the applicant for support. The nasa abroad yung asawa, may iba na daw
procedure of support pendente lite is summary in pamilya, sila suporta lang ang kailangan.
nature. Now, Mr. Mauricio, we said that the Tatanungin ko. Ano ba gusto mo, ipakulong yung
application for support pendente lite must be asawa mo, suporta o ma-annul yung kasal niyo?
verified. What must be set forth in the application Support lang po, oo kasi kapag pinakulong mo
for support pendente lite? yung asawa mo, lalo kayong mawawalan. Ok.
S: The financial capabilities of the parties. Magkano ba ang gusto mo, yun 100K daw po ang
Judeg Q: Ok. Of both parties, yung applicant at kita, kesa mapunta pos a kerida, ipadala na lang
yung hinihingan mo ng suporta, and it should be pos a amin ang lahat,. Hindi yun. Those factors
accompanied b y affidavits, kung may depositions, should be considered.
nasa abroad, depositions or other authentic Ang spousal support, wala kayong anak o kahit
documents, in support of the claim. Ano ba ito? may anak kayo, syempre kailangan mo din ng
Birth certificate. Marriage contract. Because suporta. Well, the factors that should be
support may either be child support or spousal considered. Meron bang sapat na mapagkukunan
support. yung asawa mo, para siya ay mabuhay? Are there
With respect to child support class, there are adequate provisions or source of income yung
several conditions or factors that must be asawa mo? Remember class, mag-asawa kayo,
considered by the court, so ang applicant, kailangan suportahan niyoa ng isa’t isa, hindi
halimbawa yung asawa, yung babae, para sa pwede na pag nagalit kayo, mamatay ka sa
anak, ok, yung husband, in that case, ang gutom, hindi naman kita kaanu-ano, bakit kita
dinedetermine ng court, hindi lang yung financial pinapakain, pinatitira sa isang bahay, di tayo
condition ng lalaki na hinihingan ng suporta, the magkaanu-ano. We are not even blood relatives.
financial conditions of both parents must be Minsan ganun. Judge biruin mo, pinakakain ko
considered by the court, kasi for example the one siya, batugan, hindi ko nga siya kaanu-ano eh.
in custody of the child is the mother, may trabaho Alam mo kung nagging kadugo mo iyan,
naman yung nanay. Yung tatay halimbawa ay makasalanan ka, incestuous yun. But that’s the
construction worker, eh gusto ng nanay lahat na

75 | P a g e
reality, so child and spousal support. Maraming in interpleader, you have no interest, you’re not
conditions na kaialngan i-consider ang court. interested as a plaintiff, yung declaratory relief,
Now, provisional remedies. What provisional there is no breach yet but you will file a petition
remedies that we discussed are applicable in for declaratory relief. So, the element of the
criminal cases? causes of action in an ordinary civil action will not
Kasi under Sec. 1 of Rule 127, if you still recall apply, really. Nagtingin na rin ako sa rules ng
your criminal procedure, di ba, it was stated there US, no definition of what a special civil action is.
provisional remedies in civil actions in so far as But what I know is this, a special civil action
they are applicable may be availed of in although there is an urgency which must be
connection with the civil action deemed instituted immediately addressed and relief should be given,
with the criminal action. So ano iyon? Ano yung and special civil actions are availed of, when there
mga remedies in civil cases that are applicable in are no other speedy, adequate remedy in the
criminal cases? ordinary course of law. Ok.
S: Support pendente lite. Rule 62: Interpleader
S: Receivership. Judge Q: Rule 62 pertains to interpleader, and it
Judge Q: Yes in civil action and in estafa during is commenced by a complaint not by a petition.
the pendency of the case. Baka naibenta na, The special civil actions that are initiated by
estafador nga eh, di manloloko na naman yun. complaint are: Interpleader, expropriation,
Ibebenta na yun. Kaya ako pag nag-JDR ng partition, foreclosure or real estate mortgage and
estafa, talagang yung akusado, napakatamis ng of course forcible entry and unlawful detainer.
dila, pati ako nakukumbinse na kaya niya Initiated by petition: Certiorari, Quo Warranto,
magbayad ng 10M sa loob ng isnag buwan. Contempt, Prohibition,Declaratory Relief and
Parang ang gandang mangako talaga. Mandamus.
So, attachment can be availed of in criminal cases. Judge Q: Now, we proceed to interpleader. In
Judge Q: So we are now in special civil actions. In interpleader, what is interpleader based on sec.
the beginning of our study of civil procedure, we 1of Rule 62.
said that a civil action is of two types. One is? S: It is a special civil action filed when there are
S: Ordinary civil action. two conflicting claims upon the same subject. It is
Judge Q: And the second is? to compel claimants to litigate their claims.
S: Special civil action. Judge Q: who is the plaintiff in an interpleader.
Judge Q: Now, Rule 62 up to Rule 71 of the Rules The plaintiff is the person upon whom the
of Court, they are special civil actions, and we conflicting claims is made upon the same subject
have added another one , the Writ of Kalikasan, matter. And does that plaintiff have any interest
under the environmental Rules and Procedure. on the subject matter? None. Kaya hindi
We have defined an ordinary civil action. And how applicable yung elements of cause of action, he
do you define an ordinary civil action? has no interest, or if he has, that interest is not
S: It is when the part seeks the enforcement or a disputed by the claimants.
right or redress of a wrong. And who will be the defendants? The two
Judge Q: So that is ordinary civil action, how conflicting claimants. And the purpose of
about a special civil action, how do we define it? interpleader, is that these two claimants would
S: They are for the same purpose mam but the interplead and litigate their conflicting claims
special civil action is…. among themselves.
Judge Q: Is there even a definition from Rule 1 to What then are the requisites for a complaint for
71, kasi ang ordinary civil action ay naka-define interpleader?
eh. Is there even a definition of the special civil S: There must be two or more claimants with
action. It si not capable of definition. Special nga conflicting claims. The plaintiff in the action for
kasi siya. Yung tipong, it cannot be _______ with interpleader has no claim upon the subject matter
an ordinary civil action, kasi in an ordinary civil of the adverse claim, and if he has it is not
action, we have to have a cause of action, you disputed. That such should be one and the same
should have a clear legal right, you should have case.
an interest. But in our study of special civil action, Judge Q: Oh, lets have an example. Ito lagi ang
dib a may mga special civil action na, wala ka nangyayari. You are renting an apartment, yung
namang interest, there is no cause of action, like dalawang magkapataid, nag-aaway. Halimbawsa,

76 | P a g e
nagbabayad ka kay Ms. Tiambeng, si Ms. S: On the grounds of Rule 16.
Munsayak kapatid niya. Si Ms. Munsayak Judge Q: So any of the grounds under Rule 16
sinisingil ka rin. Bakit ka nagbabayad dun? Sa and?
akin ka lang magbabayad, ako yung may mas S: impropriety of the action for interpleader.
karapatan ditto sabi nung tatay namin nung Judge Q: Sabi ni Ms. Tiambeng, eh hindi naman
nabubuhay pa siya. Ako ang mas may karapatan, kami nag-aaway eh, there was just a
kasi ako ang bunsi sabi ni Ms. Tiambeng, edi misunderstanding, hati naman kami sa renta. In
pumunta ka dun sa sementeryo, humingi ka ng that case, the complaint for interpleader may be
kasulatan kay tatay. So ngayon ikaw, can you file dismissed. Now, by the way, you mention a while
a complaint for interpleader in that case? ago that nay of the grounds under Rule 16 may be
First, are there claimants which who have used to dismiss a complaint for interpleader, so
conflicting claims? Yes. the motion to dismiss on the ground of failure to
Second, do you have an interest on the property? state a cause of action under Rule 16 may be used
Is it disputed? Ang interest mo doon di ba to dismiss a complaint for interpleader. Question.
nagrerent ka, yung ang interest mo. Pero Ano ba ang cause of action? What is the meaning
kinukuwestiyon ba niya? Hindi nila of a cause of action? What are the elements of a
mkinukuwestiyon. Ang gusto lang nila magbayad cause of action?
ka ng renta sa kanila. Ok. So, they have adverse S: First, the plaintiff has a right. Second, the right
claim, over the apartment, over the rentals that was violated by the defendant which right, the
you are paying, so it is really right for an defendant has the obligation to respect. And
interpleader. because of the violation there is an injury.
Being the plaintiff, so this is commenced by a Judge Q: Yun ang elements ng cause of action.
complaint, who will pay the filing fees? Pag wala yung isang element, you can file a
Judge Q: Syempre ikaw, being the plaintiff, you motion to dismiss. Ang tanong ko in an
will pay the docket fees. But it will constitute a interpleader, yun bang plaintiff ano bang right
lien in the judgment. Who will be the defendants? niya ang na-violate and that he was injured. Mag-
Silang dalawa. But you know the purpose of aapply ba yung elements ng ordinary cause of
interpleader, kapag nakapag-file ka na ng action sa interpleader? Definitely not, because the
complaint, ang mag-aanswer na silan g dalawa na plaintiff has no interest or claim over the subject
ang sasagot niyan, sila na ngayon ang mag- matter. So doon na lang hindi na applicable, so
aaway, parang pinagsabong mo lang sila. Kasi, Rule 16, the failure to state a cause of action,
anong pakialam mo, wala ka namang interest, cannot be used as a ground to dismiss. Ano pong
manuod ka na lan, kung sino ang idedeclare ng pwedeng gamitin judge? Impropriety of the action
court na rightful owner or the possessor of the instead of failure to state a cause of action, dahil
property at doon ka magbabayad. That is the wlaa naman talaga eh. Because the meaning of
purpose of interpleader. Pero ang principal na cause of action in an ordinary civil action is not
mag-aaway, magsasagutan, yung dalawang applicable in a special civil action.
claimants, ang role mo lang is to fiel a complaint So, since this is a complaint, the two conflicting
and you we will just wait kung sino mananalo sa claimants who are now defendants in the action
dalawa. for interpleader must file an answer. Within what
The same is true dun sa mga warehouse. period must the answer be filed?
Halimbawa, galling sa pier yung mga trucks, S: Within 15 days from service of summons.
dineliver dun sa warehouse sa Paranaque, may Judge Q: So, yung answer na iyon kanino nila
consignee, nakapangalan, eh eto yung isa, hindi ifufurnish? Sino dapat ang bigyan nila ng kopya?
akin yan, nag-aaway ngayon, hindi malaman Tow hom must the answer be served? Silang
ngayon ng warehouseman, kung kanino dalawa ang dapat na magbigayan ng kopya ng
irerelease yung mga goods. It is proper to file an answer, ikaw kasi wlaa kang interest eh, because
action to file an interpleader. Ok. Now. they should litigate against each other.
Judge Q: When a complaint for interpleader is What would be the effect if there is failure to file
filed, can a motion to dismiss be filed by the an answer?
conflicting claimants? S: there will be a declaration of default.
S: Yes Mam. Judge Q: So, meron din declaration of default. The
Judge Q: On what grounds? party who fails to file an answer will lose his

77 | P a g e
standing in court. Apart from that, what is the How would you distinguish interpleader from
consequence of failure to file an answer? intervention?
S: The defendant will be barred from pursuing his S: Intervention is merely filing of a motion of a
claim. party who has legal interest in the action. In
Judge Q: So, ang purpose nga ng interpleader eh interpleader, the party filing has no interest.
para ayusin na nila yung gusot nilang dalawa eh, Judge Q: So, interpleader is an independent civil
di pa nag-answer yung isa. Ano mangyayari? action.
Default. So, sabi ni Ms. Tiambeng, hindi bale S: And also, in interpleader the defendants are
interpleader, wala namang anu yan, special civil merely brought just to…
action. I will just file an independent civil action, Judge Q: Yung dalawang conflicting claimants,
recovery of possession form Ms. Munsayak, can kaya naman sila nadamay dahil nag-file ka ng
she do that? interpleader against them, that’s why they are
It is very clear under the rule on interpleader, Ms. defendants. In intervention?
Tiambeng is already barred from pursuing her S: In intervention mam, there is the defendants
claim. Subukan lang niya to file an independent there….
action, for sure the other party will file a motion Judge Q: The parties are already impleaded.
to dismiss for failure to answer the complaint for Intervenor, ikaw ang makiki-join, sa interpleader,
interpelader. That is the effect of that. kayo yung ijinojoin, yung dalawa as defendants.
Now, with respect to the complaint for But the most important distinction is that in
interpleader. Can the two conflicting claimants interpleader, the party filing the complaint has no
file an answer with counterclaim? Pwede bang interest in the subject matter or even if he has
mag-counterclaim? Under Sec. 5 of Rule 62, pwede interest it is not disputed. But in intervention, it
ba? is an essential requisite that the intervenor has
S: Yes mam. legal interest in the subject matter of litigation,
Judge Q: Yes, pwede mag-counterclaim. Cross- success of either parties or against ah the either
claim, third-party complaint. In an interpleader, parties or he will be adversely affected by the
is pre-trial also conducted? Yes, there is also pre- disposition of the property subject of the litigation.
trial. Let us end there.
S: Yes.
Judge Q: So pwede din diyan mediation and ADR.
Now, which court has jurisdiction over a
complaint for an action for interpleader? Is it the
RTC or MTC?
S: It depends mam, if it is personal property and
the value is not more than 300,000 outside Metro
Manila, and in Metro Manila, at not more than
400,000, the Municipal Trial Court.
Judge Q: Ok. How about with respect to real
actions?
S: With real actions, if the amount is not more
than 20,000…
Judge Q: If the value of the property is not more
than 20,000 outside Metro Manila, and in Metro
Manila at not more than 50,000, the Municipal
Trial Court.
Judge Q: Interpleader, may pinag-aralan pa
tayong isang inter…Intervention, di pa yung may
sumasali, parang pareho, eto naman ayaw sumali
ng dalawa, pinilit mong sumali, para yang ganun,
may kaibigan ka , nag-aaway, pinagsabong mo,
sige dyan kayo. Ikaw nanonood ka lang kung sino
mananalo, eh di dun ka kakampi.

78 | P a g e
 parties with respect to the deed or contract or the

RULE 63 rights of persons under a statute or a law. It only

pertains to judicial interpretation of an
instrument. There is nothing to execute.
ANOTHER SPECIAL CIVIL ACTION:
DECLARATORY RELIEF AND SIMILAR The petition for declaratory relief should be filed
REMEDIES. before a breach is committed. So it is not brought
to settle issues after a breach.
What are the two types of actions covered by Rule
63? Which court has jurisdiction with respect to a
1. Petition for declaratory relief petition for declaratory relief?
2. Similar remedies: Reformation of the Since the action is one which is incapable of
instrument, consolidation of ownership, pecuniary estimation, the RTC has jurisdiction as
and quieting of title provided for under Section 1.

What are the specific features of a petition for With respect to the similar remedies like quieting
declaratory relief? of title, which court has jurisdiction?
A petition for declaratory relief is a special civil It depends on the value of the real property.
action filed by persons who are interested for their
rights to be declared under a contract, will, deed What are the similar remedies under Rule 63?
or other written instruments and persons whose 1. Reformation of the instrument
rights may be affected may also question the 2. Quieting of title
construction or validity of a statute, executive 3. Consolidation of ownership
order or regulation, ordinance or any other
governmental regulation and this should be done A declaratory relief must be commenced by a
before any breach is done. petition.

Is there a need for the existence of a cause of Who may be parties to a petition for declaratory
action for filing a petition for declaratory relief? relief?
There is no need because in an ordinary civil It depends. If it is merely for declaration of rights
action, there is a requirement of actual injury or and duties under a contract or deed, parties
damage and that is not so in a petition for should be those who have interest in such
declaratory relief. That requirement of actual contract. The petitioner is one of the contracting
injury in ordinary civil action is substituted by an parties and the respondent also another
impending damage or injury and there should be contracting party.
no breach in order to file a petition for declaratory
relief on the instruments or contract subject of the May a non-contracting party file for a declaratory
petition. relief? Is interest merely confined to the
contracting parties? Pano halimbawa, we
Does a petition for declaratory relief, when the executed a contract in favor of a third person. Isn't
court renders the decision or resolves the petition, it that the third person has an interest?
entail an executory process wherein the winning He should prove that he is an interest whether or
party or the prevailing party may move for the nor he is a contracting party or not.
issuance of a writ of execution?
No. Pag nanalo ka, the court will only declare the If the object of the petition is a law or an executive
rights under the contract or deed or under the order or a government regulation or a local
law. It is not proper for you to ask for the issuance ordinance, who may be parties?
of writ of execution. No affirmative reliefs like Persons who can prove that their rights will be
damages or injunction are issued in a petition for affected by such law or ordinance.
declaratory relief.
And who will be the respondent?
The purpose of the petition is, before breach, to Kung city ordinance, edi yung council. Kung
interpret and determine what are the rights of the regulation, edi yung BIR or LTFRB.

79 | P a g e
If the subject matter of the petition is the Can the filiation of a person or paternity be
constitutionality of a law or an executive order, covered by a petition for declaratory relief?
who must be notified? No.
The Solicitor General.
Kasi sabi natin diba to declare the rights of a
If it involves the validity of a city or municipal person. E gusto ko nga mapatunayan baka ang
ordinance? tatay ko nga e si Pnoy. Declaratory relief.
The prosecutor or attorney of the local Filiation cannot be established thru a petition for
government unit and if it involves the declaratory relief.
constitutionality of such ordinance, also the
Solicitor General. How about a person's citizenship?
No.
So we are talking about parties here. If you would
notice, parties in interest in an ordinary civil When the judgment is not clear. Can it be the
action would simply be applicable kasi diba object of a petition for declaratory relief?
parties should have an interest in a petition for No.
declaratory relief.
Can the court thru a petition for declaratory relief
In an ordinary civil action, if the action is not filed resolve political questions? What is a political
by a real party in interest or against a real party question?
in interest, what is the effect of that? Can the Diba policy making yan of the different
complaint be dismissed? government agencies which cannot be looked into
Yes. Unless the court allows the amendment of by the courts, outside the authority and
the pleadings especially if it involves jurisdiction of courts. Political questions are not
indispensable parties. So as a rule, dismissal. ripe for judicial adjudication because the courts
cannot supplant the policy making powers of the
But with respect to a petition for declaratory executive and legislative agencies.
relief, may a non-joinder of persons who claim an
interest in a deed or contract or who will be If there is no doubt on the validity or meaning of a
affected by the law or regulation, is that a ground law, will a petition for declaratory relief prosper?
for the dismissal of the petition? As you studied in your statcon, if the law is clear,
No. Under Sec. 2 of Rule 63, rights of persons not there is no room for interpretation.
parties to the action shall not be prejudiced or
affected. What are the requisites for filing a petition for
declaratory relief since we said na hindi mo
What are the subject matters of a petition for iaapply yung requirement ng cause of action ng
declaratory relief? Memorize this! ordinary civil action because we have studied that
The list is exclusive: every ordinary action must be based on a cause of
1. deed action. So ano ngayon yung magiging standard
2. will natin or requisites for filing a petition for
3. contract declaratory relief?
4. other written instrument 1. There must be a justiciable controversy.
5. statute 2. It is between parties with adverse interest.
6. executive order 3. (Di ko maintindihan)
7. regulation 4. Issues are ripe for judicial determination.
8. ordinance Although there's no actual injury yet, but there is
9. other governmental regulation threatened injury.

A petition purporting to be a declaratory relief How would you define justiciable controversy?
wherein the subject matter is not within the
enumeration. What is the effect on the petition? A law was passed by Congress and as a taxpayer
It will be dismissed. and a citizen, we filed a Issues are ripe for judicial

80 | P a g e
determination because we are saying "Hey E pano kung halimbawa naninigarilyo si Mr.
government, if you would implement this law, Doctors sa isang road sa Mandaluyong, nakaopen
halimbawa yung mga police officers during rallies yung car window. Hinuli na sya. Can he file now a
ang kanila maximum tolerance sabi sa law they petition for declaratory relief, asking the court to
can use reasonable force when warranted by the declare or interpret?
situation, when the people are already violent and No. There is already a breach or violation.
would injure persons and damage property, the
police officers might abuse the implementation of Ano na ang remedy nya?
that law. Even if the rally is peaceful, they would Gawin nalang nyang defense yun or iattack
have justification to arrest persons. In that case, nalang nya talaga ang constitutionality and not
we want the court to declare the rights or merely a petition for declaratory relief. Itatanong
interpret the validity of that law. Is declaratory mo pa yung right, hindi! Ipapainvalidate mo na
relief proper? agad yung law.

It is not yet proper for declaratory relief because Let us say it's a contract and there is no
the issue must be ripe for judicial determination. contractual breach yet at malabo sayo yung terms
In the example, the petition failed to demonstrate and conditions of the contract. Can you file a
how the rallyist are left to sustain or are in petition for declaratory relief?
immediate danger to sustain some direct injury as Yes. But after breach, it is no longer proper.
a result of the enforcement of the law. It is
imaginary, it is speculative. And the fact that the After the breach, what is the proper remedy?
petition was filed by a taxpayer or a citizen will Either to annul the contract, rescission or specific
not clothe the court with the authority to take performance.
cognizance of the action. Kasi the SC has ruled,
declaratory actions characterized as double What if upon filing of petition for declaratory
contingency meaning hindi pa nga nangyayari, relief, there is no breach yet and the breach
wala pa ngang impending injury, nagfile ka na ng happened after the filing of the petition? What
action as to the activity of the petitioner and as will happen then? Nagfile na ng petition for
against the action of the government. Double declaratory relief tapos nagkaron na ng breach?
contingency bakit? Kasi ang declaratory relief The petition shall be converted into an ordinary
wala pang injury so there is an impending injury. civil action.
Tapos dinagdagan pa na ang petition imaginary.
So talagang it is not ripe for judicial Ang problema, ang allegations nyan syempre is
determination. wala pa yung breach. E kung iconvert mo, you
need to amend the pleadings and the court, motu
Halimbawa ganito naman, there's an ordinance in proprio, should allow the amendment of the
Mandaluyong City prohibiting smoking in public pleadings kasi magiging ordinary action na sya
places. So halimbawa si Mr. Doctor, smoker, siya and you need to allege your causes of action na
ang doctor na smoker. Sabi nya nagssmoke ako sa meron ng actual injury.
kotse ko pag nagdadrive ako binubuksan ko yung
bintana tapos nasa road ako. Is that covered by Now Section 5 is interesting, it pertains to the two
the prohibition? In that case, can he file for a types of action. The title is Court Action
petition for declaratory relief? Discretionary.
Yes. The ordinance is really not clear. Ano ba
yung public places na dinedefine na yan? Does it Which type of action under Rule 63 may the court
include you being in your car habang nasa public refuse to take cognizance of or act?
road ka? Because under the Constitution, ang car Only on a petition for declaratory relief
mo is part of your private abode e. Pero pag
binusksan mo yan tapos nilalabas mo yung kamay And when may the court refuse to act on a
mo. Diba there is ambiguity there. This is a valid petition for declaratory relief filed before it?
ground to file a petition for declaratory relief. On the following grounds:
1. Decision would not terminate the uncertainty
or controversy which gave rise to the action

81 | P a g e
2. Where the declaration or construction is not What if we indeed agree on a deed or contract
necessary and proper under the circumstances which both of us signed. Contract of sale. Sabi ko
sayo, o Ms. Dy ibenta mo sakin yung kotse mo,
In a petition for declaratory relief, when the court 100 thousand lang. Ang halaga ng kotse 500
refuses to act on the petition on either of the two thousand. Syempre moral ascendancy, takot ka
grounds in Section 5, what is the effect of that on sakin professor. Napilitan ka, sige na nga 100
the petition? thousand. Delikado pag hindi pumayag. Pumirma
It will have the effect of dismissal of the petition. ka. Pero yung talagang agreement
magbebentahan.
With respect to similar remedies?
The court has no discretion. Dapat ang court What is the remedy?
talaga should act on quieting of title, reformation Not reformation because there is a vitiation of
of instrument and consolidation of ownership. consent. The proper remedy is to annul the
contract.
May a motion to dismiss be filed against a petition
for declaratory relief? Balik tayo dun sa mortgage. We agreen on a real
Yes. Kasi kung ang court may refuse or act on its estate mortgage. Pero ikaw ang naging intention
own then I don't see any reason why a party, the mo is papirmahan sakin deed of absolute sale.
respondent, is not allowed to file a motion to Blanko yung title, "Judge ilalagay nalang ni Ms.
dismiss on any of those grounds (Sec 5). Balingasa yung title pero ano yan mortgage lang
yan"?
Can you use any of the grounds under Rule 16? There is already fraud so annulment is proper.
Yes.
CONSOLIDATION OF OWNERSHIP
Lack of jurisdiction? Yes.
Remember when we discussed about retention in
Can you file a petition for declaratory relief in the Rule 39. Pag naibenta yung property ng losing
CA? In the SC? party to satisfy the judgment.
No. Exclusive in the RTC.
Within what period may he retain the property if
REFORMATION OF INSTRUMENT he wishes to redeem the property?
Within one year from the registration of the
What is the object of the reformation? Is it the certificate of sale.
terms and conditions sa deed?
The reformation is not of the contract but on the Hindi naredeem. And we said that ownership now
instrument because what we have here is a valid will be absolute and be consolidated to the highest
contract but the true agreement was not reflected bidder. At that point in time, there is
in the instrument. consolidation of ownership already.

Can you give me an example of that when the true What is the purpose of consolidation ownership
agreement is not reflected in the contract? under Rule 63?
Lack of skill of the one who made the contract. For registration only. By law, ownership is
Halimbawa we agreed on a contract of real estate already consolidated.
mortgage. Yun ang agreement natin dalawa, si
Ms. Balingasa sya yung nagtype. Ang nagawa nya Consolidation of property is required under what
deed of absolute sale kasi nagcopy and paste lang law?
sya sa legal form. E dba minsan yung title hindi Civil Code. Article 1607. Na hindi irerehistro
na tinitignan e, binabasa na agad yung terms and kahit nalapse na redemption period kung walang
conditions. Pumirma tayong dalawa but the court declaration or court action.
agreement was a deed of real estate mortgage,
then reformation is proper because it was by Not only applicable in Rule 39. We are co-owners
mistake. and you sold your ideal share which can be done. I
don't want that other person to be my co-owner so

82 | P a g e
what I did was I redeemed. Nirepurchase ko yung fact finding and makes decision based on their
share mo. In that case, is ownership consolidated field of expertise.
to me?
Yes. I execrised my right of legal redemption. So COA and COMELEC are they considered to be
performing quasi judicial functions?
Is there a need for judicial declaration of Yes they are, and at the same time they are also
consolidation of ownership? constitutional commissions.But they are not
No. Rule 63 is only for purposes of registration to covered or included in the list under rule 43.
bind third persons as notice to the whole world.
This is not only applicable in legal redemption. It So from the decisions and resolutions of the COA
also applies to conventional redemption. and COMELEC to what court may an aggrieved
party appeal?
What is conventional redemption? To the SC under rule 64.
Redemption by stipulation of the parties where
they may stipulate a period not exceeding 10 yrs. What mode of review?
Petition for certiorari under rule 65.
Halimbawa naglagay tayo, Ms. Dy talagang
walang wala ako ngayon. I will sell to you my Within what period must the petition under rule
property. Ayoko kasi ng sanla kasi may interest. 64 be filed?
Ibebenta ko sayo yung property ko for 1 million Within 30 days from notice of judgment or order
pero within a span of 6 months or 3 months, or resolution sought to be reviewed.
bibilhin ko sayo yun, ibabalik ko yung 1 million.
That is conventional redemption. The right ot Is the 30 day period extendible?
repurchase the property already sold. No. No provision allowing extending of period, no
extension.
QUIETING OF TITLE
Must petition under rule 64 be verified?
Only pertains to real property. Yes.

When is quieting of title available as a remedy? Certificate of forum shopping?

It is an equitable remedy brought to remove the Yes.
cloud on the title.
Apart from that what should accompany the
And the cloud is brought about by what? petition?
It appears valid on its face but in fact, ineffective. A certified true copy of the judgment, or original
And the sources of a cloud may either be an or duplicate original.
instrument, a record, a contract, an encumbrance
or a proceeding. COMELEC and COA being quasi judicial bodies,
what is the quantum of evidence or proof

RULE 64 required?
Substantial evidence.

When we were discussing rule 43, appeals from Decisions of COA and COMELEC should be based
decisions of quasi judicial bodies with CA via on substantial evidence.
petition for review, we have enumerated the
different quasi judicial bodies including a If factual findings are supported by substantial
constitutional commission which is the CSC. evidence, will it warrant a review under rule 64?
No, this is very clear under section 5. Last
The COMELEC and COA are also constitutional sentence of 1st paragraph.
bodies but are they also considered as quasi
judicial bodies? Based on their powers? A quasi What is the effect of filing a petition under rule 64
judicial body involves investigation, it involves a on decisions of COA or COMELEC being
questioned?

83 | P a g e
It will not stay the judgment unless the party It is a special civil action and an independent
applies for a TRO or Preliminary Injunction in the action, it is NEVER a mode of appeal.
SC.
What is sought to be corrected?
The decision of the COMELEC or COA will not The jurisdiction of the court, errors of jurisdiction.
stay. Is this unfair? It could either be lack or excess of jurisdiction.
No, kasi di pwede magka vacuum sa public office
or sa public service. This is the principle of the How about errors of judgment?
rule. No, this should be remedied by appeal.

Under rule 64, the basis is the 1987 constitution, Distinction of errors of judgment and errors of
provision in constitutional commission, under jurisdiction?
article 9-a of 1987 consti: any order or ruling of Errors of judgment – there is jurisdiction but
constitutional commission of COA or COMELEC, there are errors in the judgment. They have
may be brought to SC by certiorari within 30 days jurisdiction, it is within their jurisdiction, so it is
by aggrieved party from receipt of copy of order or important to memorize outline of jurisdiction, to
decision. know if they acted outside their jurisdiction.

2 kinds of certiorari under the Rules of Court, how What court has jurisdiction for specific
did the SC interpret the provision in the performance?
constitution? RTC because it is incapable of pecuniary
Petition for certiorari under rule 65, kaya nga estimation, a performance of an obligation.
tayo may rule 64 eh, eto ung decision ng SC sa Any decision rendered by RTC is within its
jurisdicition.
ARATUC V. COMELEC.
Certiorari under constitution should be Where would error of judgment come into play?
interpreted as under rule 65 and not under rule When RTC did not consider the evidence
45. presented, nireject nya, di na consider yung
evidence or did not consider certain factual
What errors or issues may be raised under rule matters correctly, that would change the outcome
64? of the decision. Or it misapplied the law on certain
Only questions of jurisdiction. facts, there is error of judgment but has
jurisdiction.
Involving what?
Jurisdictional grounds, either lack or excess of When do you say that the court committed an
jurisdiction. error of jurisdiction?
For example, the trial court motu propio declared
How about lack of due process can that be raised? the defendant in default without a motion of the
Yes. Because if you are deprived of due process plaintiff. The trial court acted in excess of its
that goes into the issue of jurisdiction, it is jurisdiction.
jurisdictional.
What if in an action for revovery of possession
That is rule 64, it only involves COA and lasted only for 6 months and RTC acted on the
COMELEC. complaint?
Error of jurisdiction because it is lack of

RULE 65 jurisdiction and it should be within the

jurisdiction of the MTC.

So what are the special civil actions that are What if the time of the presentation of defense
covered under this rule? evidence, it submitted for decision and no longer
Certiorari, prohibition and mandamus. allowed the defendant to present?

What is the nature of a petition for certiorari?

84 | P a g e
Error of jurisdicition. Because in that case, the case, the proceedings will continue, you filed a
court already whimsically or arbitrarily acted or petition for certiorari in the CA. we said that
in a despotic manner. certiorari will not stay, Ms. Luna did not file any
answer kc Motion to Dismiss lang na file nya, you
Remedial law, the ROC should be liberally filed a motion to declare her in default because
construed as a general rule. after notice and hearing she did not file an answer
and the trial court declared her in default.
Special civil action under Rule 65 is an
independent action and not a mode of appeal, how Ms. Luna now is questioning the declaration of
do you distinguish certiorari and appeal? default since there is a certiorari filed and the
Certiorari – independent action court should wait for the resolution of the
Appeal – is a continuation of the original action certiorari and after then it will be determined if I
Certiorari – filed within 60 days from notice of will file an answer or not, so is the declaration of
judgment or order assailed. default proper? Is Ms. Luna correct?
Appeal – within 15 days from notice of judgment The declaration of default is proper, because the
or final order. proceedings will continue even if a party files a
certiorari because there is no TRO or preliminary
Appeal, whether discretionary or ordinary should injunction. So she should have filed an answer
the court that render the judgment be pleaded? since the period was not tolled. Clear in section 7
No. in expediting proceedings.

In certiorari – should be impleaded as nominal SECTION 7 – Expediting proceedings; injunctive

parties. Aggrieved party is the petitioner and the relief. The court in which the petition is filed may
judge is the public respondent and the adverse issue orders expediting the proceedings and it
party as the private respondent. may also grant a TRO or PI for the preservation of
the rights of the parties pending such proceedings.
Are the judges required to comment? The petition shall not interrupt the course of the
No, unless directed. Because it should be the principal case, unless a TRO or PI has been issued
private respondent who should file the comment. enjoining the public respondent from further
The order will speak for yourself. proceeding with the case.

Will the filing of the appeal ordinary or The public respondent shall proceed with the
discretionary under rule 40, 41 and 42, will it stay principal case w/in 10days from filing of a petition
the execution of the judgment appealed from? for certiorari with a higher court or tribunal,
Yes. absent a TRO or PI or upon its expiration.
Failure of the public respondent to proceed with
In certiorari, will it stay the order? the principal case may be a ground for an
No. unless there is a TRO or preliminary administrative charge.
injunction.
WON to continue with the proceeding and await
If the order is merely interlocutory, can you petition for certiorari, we are only allowed to wait
appeal from that? for 10days.
No.
After lapse of 10days without TRO or PI, we
In certiorari can you file against interlocutory should proceed, what is the consequence if we will
order? not proceed?
Yes. Under rule 65, provided there is grave abuse Judge may be sanctioned administratively.
of discretion amounting to lack or excess of
jurisdiction. Because the SC amended section 7 on expediting
proceedings kc ang nangyayari dati, 10 years na
A complaint filed in RTC, you are plaintiff and ang certiorari di pa tapos and naghihintay ang
Miss Luna is the defendant and Ms. Luna filed a korte and that is delay.
Motion to Dismiss but the court denied it. In that

85 | P a g e
Does judicial courtesy still apply today? What is
this? There is an exceptional case that according to SC
When a lower court awaits the decision of the when remedy of appeal is inadequate or slow, you
higher court. can invoke certiorari but as a rule if remedy of
appeal s available, you cannot.
Before sec 7 was not yet amended, the 2nd par of
sec 7 is a modification. Wala to dati. Respondent in petition for certiorari should
exercise judicial or quasi judicial function if not
Kasi dati kahit walang TRO or PI pag nalaman will it lie? For example can you file against
may certiorari, as a judicial courtesy, di kami exercise of legislative powers? Against congress?
gagalaw pero ang daming delays. So SC amended No, we cannot. It is very clear only judicial or
section 7 to expedite the proceedings. quasi judicial functions.

Is certiorari a substitute for a lost appeal? How about against LTFRB in its quasi legislative
No. power?
No.
Can certiorari and appeal co exist? Filing them
simultaneously? Certiorari will not lie in acts done in exercise of
No. Because one of the requisites of rule 65 that rule making powers.
there should be no speedy, adequate or plain
remedy available. Certiorari will lie where there is grave abuse of
discretion amounting to lack or excess of
What then are the requisites for filing a jurisdiction, lack of jurisdiction, excess of
certiorari? jurisdiction or absence of jurisdiction.
Directed to board tribunal officer exercising
judicial or quasi judicial functions. How will you distinguish excess from absence?
In excess – the court had jurisdiction over the
Other? subject matter but it exceeded its jurisdiction. Act
No speedy, plain adequate remedy or appeal in performed beyond the bounds of authority.
the ordinary course of law. In absence – there is really no jurisdiction but
took cognizance of the action.
Other?
There should be grave abuse of discretion Is mere abuse of discretion enough?
amounting to lack or excess of jurisdiction, a No. There should be grave abuse of discretion
whimsical, capricious, arbitrary exercise of amounting to lack or excess of jurisdiction.
judicial or quasi judicial functions.
When do you say there is grave abuse of discretion
You lost a case and filed an ordinary appeal and amounting to lack or excess of jurisdiction?
granted and available as a remedy, then you also When tribunal or body exercising judicial or quasi
filed a petition for certiorari, then RTC declared judicial function, acts in a whimsical, capricious,
you in default and rendered a judgment and this arbitrary or despotic manner amounting to lack of
is being questioned by you. Are your remedies jurisdiction with passion and prejudice.
proper or which is proper? Can appeal and
certiorari exist at the same time? That is what would grant jurisdiction to grant
No. because there should be no appeal available certiorari, to show grave abuse of discretion
for certiorari to be proper. amounting to lack or excess of jurisdiction and not
plain or mere abuse because this would only be
The remedies of appeal and certiorari are considered as error of judgment.
mutually exclusive and not alternative. What you
should have done is to withdraw the petition for TRO lasts only for 20 days, can it be extended?
certiorari and raised the error of jurisdiction in No, NEVER by trial court or CA. in CA it is 60
your appeal. And this is illustrated in the case of days. In SC until lifted.
IRENE SANDOVAL V. KAILIPAN.

86 | P a g e
TRO is an interlocutory order and is not When it is a patent nullity
appealable. But interlocutory order can be When issue raised is purely of law
questioned by petition for certiorari.
Deprivation of due process? Dispense with
If it is patent that TRO is extended, it is violative requirement of MR?
of the rules and the judge acted in excess of Yes. Of course.
jurisdiction and can be considered as grave abuse
of discretion amounting to lack or excess of There is no definition of SCA, but what is impt…
jurisdiction.

If court rendered decision favoring plaintiff and I said that in a SCA, the salient nature of that is
nanalo ng 10M in damages and defendant that there is an urgency and the need to file the
appealed, is that a final and executory? action and this is the office of such remedy where
No because there is a pending appeal since it is there is no SAP remedy in ord course of law and
not yet ripe for execution since it is sttill in CA. when deprived of due process, you have to act fast
so court can hear your side otherwise you will
Then he moved for execution pending appeal on waive and estoppel or laches might set in.
ground that he is insolvent, and this is granted.Is
that an order which is appealable? What are the material dates that must be alleged
No, only petition for certiorari. in filing pet for certiorari?
When J/FO is received
Where is grave abuse of discretion amounting to When MR or MNT filed, when dec here was
lack or excess of jurisdiction here? Is the ground received.
relied upon a good reason to execute judgment When notice of denial received.
pending appeal?
No, it is not a good reason and there is no basis To show the timeliness of the filing.
and this results to grave abuse of discretion
amounting to lack or excess of jurisdiction on part What should accompany the filing of verified
of the court. petition of certiorari?
Kasi maraming kaso na didismiss dahil sa non
In judgment by default, what is the extent of compliance of requirements for filing.
award that can be granted by the court?
Halimbawa ang claim is 5M and judgment by So what are these?
default is rendered then judge awarded double the Certified true copy of J/FO subj of certiorari.
claim 10M, is this valid? Certification against non forum shopping
No. Copies of pertinent pleadings.
Remember mga petition hindi ineelevate unless
In that case is there grave abuse of discretion inappeal, and petitioner ang mag susuppl ng mga
amounting to lack or excess of jurisdiction? certified true copy or relevant documents, so these
Yes. must accompany a pet for certiorari.

Is the filing of MR necessary before party may file What court may pet for certiorari be filed? If order
a petition for certiorari? of MTC?
Yes, in all cases. In the RTC. Only here, di dpe dumiretso sa CA
It is a prerequisite to allow the court an opp to much less sa SC.
correct the errors.
What other courts?
If not filed MR, ground for dismissal? CA, SC
Yes.
Is it allowed to directly invoke authority of SC?
But are there exceptions? No, observe hierarchy of courts.
When SM is perishable
When SM is of public interest Sandiganbayan?

87 | P a g e
Yes in aid of its orig or appellate jurisdiction.
Rule 45 – continuation, filing within 15 days from
COMELEC? notice of J/FO appealed from. MR or MNT is not
Yes. Pde mag file kasi may election case na required.
cognizable by MTC = inclusion or exclusion of
voters. Will filing under rule 45 stay J appealed from?
Mun official = RTC. City officials = COMELEC. Yes.
COMELEC has appellate jurisdiction in these
cases. Sa rule 45 anong court?
SC only.
Sanctions against unmeritiorious petitions for
certiorari? In certiorari?
Go over section 8. Can be in RTC, CA, sandiganbayan and
COMELEC.
SECTION 8 – proceedings after comment is filed.
Another SCA IS PROHIBITION, purpose?
After the comment or the other pleadings required To order the court to desist from further
by the court are filed or the time for the filing proceedings, tribunal board or officer exercising
thereof has expired, the court may hear the case jud, quasi-jud or ministerial functions.
or require the parties to submit memoranda. If
after such hearing or filing of memoranda or upon Legislative or quasi-leg bodies may be the object?
expiration of the period for filing, the court finds No. they are not ministerial duties.
that the allegations of the petition are true, it
shall render judgment for such relief to which the Ministerial duty, what is this?
petitioner is entitiled. It does not require the exercise of discretion.
However, the court may dismiss the petition if it
finds the same patently without merit or What is the period for filing?
prosecuted for delay or questions raised are too Within 60 days from notice of J/FO like certiorari,
unsubstantial to require consideration. (WUD) In this is independent action.
such event, the court may award in favor of the
respondent treble costs solidarily against the What about mandamus? Purpose?
petitioner and counsel, in addition to subjecting Ordering tribunal or body to perform a ministerial
counsel to administrative sanctions under rules act.
139 and 139-B of ROC. When respondent unlawfully neglects the
The court may impose motu propio, based on res performance of a mandated act by law.
ipsa loquitur, other disciplinary sanctions or Or unlawfully excludes another from use or right
measures on erring lawyers for patently dilatory to enjoy office.
and unmeritorious petitions for certiorari.
Can sec of justice be compelled by mandamus to
Lawyer may be sanctioned: either suspension or file a crim information against a person?
disbarment. No, because this would require discretion.
And another is that they may be solidary liable,
treble the costs. So kung amt involved is 10M then What if already 2 years lapsed? And purpose is to
30M na. fast track her duty?
To discourage the filing of unmeritorious Yes, it can be because the purpose of mandamus is
petitions. to mandate what was unlawfully neglected.
Antagal tagal na wala paring action. Mandamus
There are 2 types of certiorari, rule 45 and 65. to act and immediately resolve.
Distinguish the two.
If it is not to file or not to do an act? Mandamus
Rule 65 – independent action, filing within 60 proper?
days from notice of J/FO assailed. MR or MNT is a No, that is a different matter.
pre requisite for filing of certiorari.

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For example nag fofollow up kayo sa opisina since
wala apring action?
Yes pde to pero pag kunwari mag issue nang
license di nap de kc kailangan na ito ng discretion. Mr Cabral
Only the ministerial cat can be compelled by
mandamus. Rule 66 – Quo warranto

DATU ANDAL AMPATUAN V. SECRETARY DE Is this SCA commenced by filing of complaint or

LIMA case applies here. petition?
What is purpose of mandamus, when it will lie By a verified petition.
and not lie.
If involves discretion, mandamus cannot lie and is Accompanied by certification against non forum
not proper. shopping?
Of course.
What are the requisites for issuance of writ of
mandamus? What is quo warranto? purpose?
It must be filed against a tribunal or board To oust a person who is holding or usurping a
exercising ministerial duties. public office or intrudes into a pub office or
Unlawfully neglects the performance of unlawfully exercises pub position or even a
ministerial duty franchise.
Unlawfully excludes another from use or
enjoyment It is a latin term, a question, what is this?
Ad the SM must be a ministerial duty. By what authority. By what authority are you
occupying your position, or in the franchise.
Can the courts compel the president to act and
fast track the case of veloso? Section 1 has 3 situations where it may be
Pde ba syang I mandamus ng walang utang na brought. What are these?

Ung mga bangsamoro can they compel congress to SECTION 1 – action by govt against individuals.
pass the BBL?
No, una may clear legal right ba sila? Wala. But An action for the usurpation of a public office,
the main reason is that courts cannot file position, or franchise may be commenced by a
mandamus to command the executive and verified petition brought in the name of RP
congress to do an act. Because they are co-equal against:
departments.
a. a person who usurps, intrudes into or
(pardon me, walang utang na loob kwento / pnoy unlawfully holds or exercises a pub office, position
ang or franchise;
b. a pub officer who does or suffers an act
which by prov of law, constitutes a ground for the
last question, can contractual duties, performance forfeiture of his office;
of these be compelled by mandamus? c. an assoc which acts as corp w/in the phils
No. w/o being legally incorporated or w/o lawful
authority so to act.
What is your remedy?
Breach of contract (Mr cabr
Specific performance
Rescission quo warranto is a prerogative writ by which a govt
can call upon any person to show by what warrant
You have other remedies in ordinary course of law of authority he is exercising or holds a pub office
so you cannot avail of mandamus. or franchise.

Who may file the petition?

89 | P a g e
Solgen or pub prosecutor.
Sandiganbayan?
In whose name? Yes. In aid of its appellate jurisdiction.
Rep of Phils
When it is solgen who files, what RTC?
Example Rep of phils v. cabral or RP v. XYZ corp. RTC of Manila.
Since the govt is asking for you to show your
authority. Why?
Because the seat of power w/c is the malacanang
Can it be filed by a private person? is in Manila.
Yes.
Can it be filed in SC or CA?
Under what condition? Yes.
When a person has the lawful or legal right to
question such authority. w/in what period must it be filed?
w/in 1 year from the cause of the ouster of the
For example, ang na appoint si ms balingasa, then petitioner or after right of petitioner to hold such
you feel you are more qualified than her, you can position came about.
file quo warranto to question the legality of her
appointment. Halimbawa, appt of ms B issued today and you
are questioning that but she assumed office 15
Solgen or pub prosec may intervene. days after, where will you count the 1 year period
to file QW?
Solgen or pub prosec may file not by instance of w/in 1 year from issuance of her apt? or
pres but by their own instance by reason of an assumption of office?
information relayed to them by a person, called? When did cause of your ouster arise?
A relator. From period of her appointment and not
assumption since the cause is the appt.

SECTION 3 – when solgen or pub prosec may Exhaustion of admin remedies required?
commence action with permission of court. No.

Solgen or pub prosec may with the permission of

the court in w/c action is to be commenced, bring
such an action at the request and upon the so you discussed QW in election law.
relation of another person; but in such case the
officer bringing it may first require an indeminity Miss espino pls help mr cabral.
for the expenses and costs of the action in an amt
approved by and to be deposited in the court by Distinguish QW in omnibus election code and that
the person at whose request and upon whose in ROC.
relation the same is brought.
QW in OEC – pertains to elective position and
File a leave of court, mag hearing muna kung OEC will govern. Grounds are the ineligibility and
tama ang sinasabi ng relator, if there is basis to disloyalty to the RP. Filing within 10 days from
file a quo warranto. commission of that being assailed.

Who will pay the costs? The govt or relator? QW in rule 66 – pertains to appointive office.
Not govt kasi ang naka isip ang relator, sya mag Filed w/in 1 year after the cause of ouster.
bear ng expenses, ung mga filing fees, kasi pano
kung walang basis tas the govt will spend? No. Iba ung after 1 year and w/in 1 year, malaking
difference yun. Ang correct is WITHIN 1 year.
Before what courts may quo warranto be filed?
RTC within area of its territorial jurisdiction.

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 Expropriation is the means of exercising one of
as long as time of cause of ouster came about, the inherent powers of the state and what is this
question kaagad, need not wait when you feel the power?
need to when the one appointed is not eligible. Eminent domain.
Proceed.
What is eminent domain?
Where is the filing? Inherent power of govt to take prop for pub
Under rule 66 – filed with the SC or RTC where purpose upon payment of just compensation.
respondent resides.
Under OEC – RTC, CA, COMELEC as the case Lets go back to QW, why this is really a SCA,
may be. OCA you must allege you cause of action and
prove it diba, your right was violated and you
Who may file? suffered injury, in QW mag file govt or pub prosec
Under OEC – by any voter or private person entitled to pub office, pero sino
Under rule 66 – by a person claiming to be ang mag proprove? Na merong authority to hold
entitled to the office or the position. office?
The respondent. Burden of proof is with him,
Situations where QW may be filed when govt is ipakita mo na meron kang authority.
questioning by what authority the franchise is Kaya sya SCA, baliktad kung sino respondent you
being exercised, when corp is exercising it, to prove. This is the special feature of QW.
prove if registered with SEC or not.
Okay back to expropriation.
Pet for QW can only be filed aginst a de facto corp
or one to w/c imprsses upon public that it is a It is the procedure to exercise power of eminent
registered corp, but not to a de jure corp. domain.

If you are for example, an officer of priv corp, and What are the requisites to validly exercise with
you would like to question another officer who is respect to power of eminent domain?
exercising as an officer of priv corp, and you sadi There is legal authority to take
he is usurping an office in corp, can it be filed It is for public purpose
under ule 66? For example corp of manny Just compensation given
pangilinan? There must be due process, this is the most impt
Go over par c in section 1. thing.

C. an assoc which acts as a corp w/in phils What are the 2 stages in expropriation?
without legally being incorporated or w/o lawful 1. the determination of authority to exercise
authority so to act. expropriation
2. the determination of value of just
QW is directed to corp itself or entity but officers compensation
w/in that entity to question their authority, QW is
not the proper remedy. Proper langn kung govt Authority to exercise exprop, because under the
officials. Mangyayari dun intra corp dispute. Wala law, who has the authority?
pakialam ang RP or govt dyan kc sino ba ang nga The state and thru the law, since it is an inherent
ask? Diba solgen or pub prosec or private person power of legislative dept.
entitled to PUBLIC OFFICE. Need not even be in consti because eminent
domain, police power and taxation are inherent
So par c only situation where corp is acting powers of the state. Inherently lodged in the
without a license. legislative branch of the govt = congress but it
may also be delegated. So you determine kung
We now proceed to Rule 67 – Expropriation. meron silang authority to exercise the power of
eminent domain and to expropriate. WON taking
is for public purpose.

91 | P a g e
2nd stage is determination of amount of just Yun ang mga impt and material allegations:
compensation. These are 2 stages class and authority and public purpose and description ad
remember this involves multiple appeals and defendant should be owner, possessor or occupant
record on appeal is applicable here. or person in interest of property SM of exprop.

How is expropriation commenced? By complaint? Should there be summons?

By verified complaint? Or by petition? Yes. We apply rules in respect of OCA.
By verified complaint.
What if not RP or national govt will exprop but a
And the prop which may be the object of local govt unit, also by verified complaint?
expropriation, what kinds of property? Example, andaming informal settlers sa private
Real or personal property. prop? So gagawin ni mayor bibilhin ung lupa kc

Ung real property, right of way, ung lupa. So do they have the power?
Personal property, halimbawa meron kang Yes, delegated power.
program pra pang process ng drivers license ung
software pra mas madali ang pag process. Or ung In that case, how is exprop commenced? By
sa SSS pra unified identification for all of us, you complaint?
designed it. By enacting a local ordinance, city council must
pass an ordinace before they can exprop.
Exprop is not necessary kung payag na ibenta sa
govt magiging negotiated contract nalang yan. This is a distinction of exprop by NG and by LGU.
Kung ayaw mo, that is the time govt will file
complaint for exprop. What court has jurisdiction over a complaint for
Software is a special form of personal property exprop?
because it is a product of your intellectual creation RTC or MTC depending on the jurisdictional
under law of property. value.

Painting of historical value pde I exprop pra What is the cause of action here?
ilagay sa museum. WON they have authority to exprop and if they
have power of eminent domain.
A complaint for exprop, what should be alleged?
The prop subject of exprop must be described. When defendant is served with summons, usually
di lang isa ito maraming defendants, lalo na nung
What else? ginawa ung SCTEX.
The interest of the person in the property.
When they are served with summons to acquire
Who will be the plaintiff? jur over them, they should file answer. w/in what
The govt or RP example RP thru DOTC or DOH. period?
No period stated, so it is the period stated in the
Defendant? summons, depends on the judge, 15d or 30d.
Owner of prop to be exprop.
Or anyone who is in interest of prop. Is a MD allowed to be filed?
No.
What must be alleged by plaintiff in complaint?
Allege his interest or claim or right or authority. What if the defendant has a ground to dismiss the
Since court will first determine the authority of complaint?
plaintiff the expropriator. It may be allowed if for lack of jurisdiction
because it may be raised at any stage even at the
And? earliest opportunity.
That it is for a public purpose.
So except lack of jurisdiction, MD is not allowed.

92 | P a g e
All the other grounds must be set up as defense if deposit of a cert of deposit of a govt bank of RP
they object to the exprop. payable on demand to the auth govt depositary.
If PP is involved, its value shall be provisionally
Can the defendant file an answer with CC? ascertained and amt to be deposited shall be
No promptly fixed by the court.
After such deposit is made, the court shall order
C-C or TPC? the sheriff or other proper officer to forthwith
No. place the plaintiff in possession of the prop
Those are prohibited pleadings. involved and promptly submit a report to the
court with service of copies to parties.
The defenses must be alleged in the answer, if
there is failure to raise in the defense what is the Initial deposit for assessed value for taxation
consequence of that? purposes and not fair market value, upon filing of
The court may still permit amendment for 10d. the complaint. Usually mababa to kc mababa ang
sa assessors and not fair market value.
Beyond 10d?
No longer allowed. Initial deposit of such upon what institution?
Land bank lang.
Effect of failure to file an answer in an exprop
case? Declaration of default? Pde na ba mag take over ang govt sa prop mo?
No. kailangan tlga mag pariticpate ang defendant, Yes.
he does not totally lose his standing in court.
Unlike in OCA. Kasi kahit sbhn ng court na hindi Is notice and hearing required?
na question ang authority but here is another No. notify lang na may notice na may n file na
stage. complaint and nag deposit na ako and mag issue
na ang court ng writ of possession, that’s how the
What if sabi ng defendant, okay na bayaran power of eminent domain is, napaka pervasive
nalang ako di q na lalabanan ang exprop, instead diba.
of answer, what may be filed by defendant?
He may manifest that there is no objection. And
enter his appearance with respect to the exprop.
please remember requirements under section 2.
Section 2 is very important because here govt can
already take over prop even if there is no final Deposit of course should be in money.
decree of exprop yet.
Purpose of deposit?
When may govt enter upon a prop or take Can you consider it as advance payment?
possession thereof under section 2? Yes, idededuct na ung initial deposit na un.

SECTION 2 – ENTRY OF PLAINTIFF UPON Compare rule 67 with republic act 8974.
DEPOSITING VALUE WITH AUTHORIZED
GOVT DEPOSITARY. RA 8974 pertains to act to facilitate right of way
projects for NG infrastructure projects.
Upon the filing of the complaint or at any time
thereafter and after due notice to the defendant, Under rule 67 sec 2 – payment shall be deposited
the plaintiff shall have the right to take or enter for taxation purposes upon filing of complaint, to
upon the possession of real prop involved if he authorized govt depositary.
deposits with the authorized govt depositary an
amt equivalent to the assessed value of the prop In ra 8974 – inv. NGIP, only here applicable.
for purposes of taxation to be held by such bank When may govt here enter or take possession of
subject to the orders of the court. Such deposit prop?
shall be in money, unless the court authorizes the Upon payment of the fair market value = 100%
Mag shell out agad ang gobyerno ng pera.

93 | P a g e
Fair market value or whichever is higher.

Made to the bank?

No, directly to the owner.

So mas maganda tong ra 8974, wala nang

deposit, kung value is 100M it will be given
directly to you upon filing of complaint but applies
only to NGIP and not to all other projects of govt.

REPUBLIC V. GUINGOYON case: SC

exhaustively discussed here the distinction
between the issuance of writ of possession upon
filing if complaint between rule 67 and ra 8974.

So sa ra 8974 there is imm payment of prop, 100%

fair market value upon filing of complaint,
directly to the land owner.

Sec 2 rule 67, initial deposit only to the govt bank,

mas maganda ung ra 8974 but as I have been
emphasizing only applicable to NGIP. Not to LGU
projects.

Under the case the SC defined what are the NGIP

included.
Engineering works, service contracts, projects
undertaken by gocc, covered by build operate and
transfer law (BOT law) yun lang, outside of that,
sec 2 of rule 67.

Read the case.

94 | P a g e
 compensation will be determined at the time of
J: So last time, we were discussing about taking. Ngayon nag-file ng complaint, walang
expropriation. We said that there are two stages taking, just compensation will be determined from
of expropriation. What are they? that point.
S: First stage is the determination of the propriety
of expropriation, if it is for public purpose or if the Hi! Almost there! Wag mo na bilangin ilang pages
plaintiff has the authority to expropriate. In fact, nalang natitira . Malapit ka na matapos! #focus
order of expropriation may be issued.
Is the order of expropriation appealable? Now, how would just compensation be ascertained
Yes, by record of appeal. IN expropriation, there by the court?
are two issues to be resolved. So while the RTC is Through the commissioners appointed by the
determining the just compensation, an appeal can court. When we were discussing about trial by
already be made on the order of expropriation commissioners, one of the actions where trial by
through record on appeal. commissioner is mandatory is expropriation for
Now, if there is an appeal for the order of ascertainment of just compensation.
expropriation, will it affect the proceedings of the What are the qualifications of a commissioner to
court in the determining just compensation? be appointed?
No. So the court will proceed. The commissioner must be competent and
By issuing the order of expropriation, last meeting disinterested. So there is no requirement that the
we were discussing about the plaintiff taking over commissioner should be a lawyer. Usually, ang i-
the possession of the property already upon filing a-appoint is isang nominated ng plaintiff, isa sa
of the complaint with due notice to the defendant defendant, isa sa court. Usually ang ina-appoint
and making a deposit. When there is an appeal on ng court yung branch clerk of court niya. At least
the order of expropriation, will it now prevent the lawyer yun, alam niya yung rules. Yung sa
government from taking over the property? defendant, usually accredited appraisers, at isa
No. The plaintiff cannot be prevented from taking sa plaintiff from the government.
over the property expropriated. Now, the appointment of the commissioner is
What if on the appeal, the CA decided that the mandatory. And what are the duties or functions
expropriation was not for a public purpose? Sabi of a commissioner in expropriation proceedings?
ng CA hindi valid yung expropriation, so One of the functions is to receive evidence. So
restoration and payment of damages. Now, will meaning, the plaintiff and the defendant should
the RTC still proceed with the determination of present evidence before the commissioners.
just compensation? IS there a need to proceed? After the hearing, what would be the duty now of
No more. Kasi di nga valid yung expropriation. the commissioners?
Kahit ma-determine yung just compensation, The commissioners shall make a report to the
wala namang authority. So that is the effect. court of all their proceedings.
Now, second stage is the determination of just And is that report conclusive upon the court?
compensation by the RTC. What is just No. The court may accept the report, recommit the
compensation? same to the commissioners for further report of
Just compensation is equivalent to the fair market the facts, or it may set aside.
value of the property at the time of its taking or What are the requirements so that the court can
filing of the complaint whichever comes first. It reject the report totally?
includes the consequential damages less the The court cannot just whimsically reject or set
consequential benefits. But in no case shall the aside the commissioners’ report. But as what we
consequential benefits exceed the consequential have studied, the court may reject a part or accept
damages, or the owner be deprived of the actual a part of the commissioners’’ report.
value of his property so taken. Now the determination of just compensation is
At what point will the determination of just purely a judicial function. That is the reason why
compensation be made? the report of the commissioners is not binding or
At the filing of the complaint or taking of the conclusive upon the court because the court has
property, whichever comes first. So usually, yung its own determination and has to be guided only
gobyerno magtatake-over na ng property mo bago by the commissioners’ report. So the report is
magfifile ng complaint, in that case just merely recommendatory.

95 | P a g e
So the judgment on just compensation, is this Let us say that in the property sought to be
appealable? expropriated by the government, there are so
Yes, by record on appeal. In expropriation, there many claimants, so there is uncertain ownership.
are multiple orders which are final – the order of What is the remedy or procedure to be taken?
expropriation and decision on just compensation, To pay a sum of money before the court
which are both appealable and therefore, record In that case, what would the court do with the
on appeal should be filed. money? Ang sabi mo, deposit would be deposited
If the government expropriates a property, what before the court, and?
is the extent of expropriation? The court should give the money to the person
It may be the entire property, or only a portion. entitled to it.
Now, what is the remedy of the land owner if Now, after payment of just compensation, what
there is non-payment of just compensation by the are now the rights of the government over the
government when there is already a decision of property?
the court which is final and executory, and yet the The government has the right to take possession
government has not paid the landowner? of the property.
To file a claim to the Commission on Audit for just What about the defendants?
compensation. This is the first. As we have The defendants have the right to be paid of course
discussed, you cannot file a motion for execution just compensation. At kailangan ibigay niya yung
against public funds. So in this case of non- title to the government kasi binayaran na siya ng
payment, the landowner can file claim before the government.
COA.
But let us say that he has remained unpaid for a
period of more than 5 years, what is the remedy? RULE 68
The previous owner can recover the property.
So those are the rules. So if there is non-payment Now we proceed to Rule 68 pertaining to
of just compensation, the landowner is not foreclosure of real estate mortgage. So this is
entitled to recover the property. The remedy is to judicial foreclosure of real property, and does not
file before the COA. However, the SC, in Republic cover personal property. Because there is real
vs. Lim, held that if the non-payment is for more estate mortgage, this presupposes that there is a
than 5 years for the time of entry of judgment, the loan. And the loan was not paid. Now, what are
landowner may now recover the property. the remedies of the creditor?
Now, let us say that an order of expropriation was Specific performance for collection of money or to
issued in favor of the government. Ngayon, wala foreclose the real estate mortgage
ng budget ang gobyerno. Can the government So if you decide to foreclose the real estate
abandon or file a motion to dismiss the compliant mortgage, can you still file a complaint for
for expropriation? collection of sum of money?
It is very clear under Section 4 of Rule 67. So the No.
government cannot abandon. Ginamit na nya If you would file both actions against the same
property ng tao tapos biglang sasabihing “Ay loan, what would be the effect of that on your
ayaw ko na, wala na akong pera.” So under action?
Section 4. It is very clear that the government Dismissed on ground of multiplicity of suits due to
cannot abandon or move to dismiss the complaint. splitting cause of action
Kung sasabihin niya wala ng budget, that could Now, Rule 68 is judicial foreclosure of real estate
be a ground but upon a proper motion, not just mortgage. Can there be extra-judicial foreclosure
abandoning the property. of real estate mortgage?
Pero paano yung deposit? Yes. There must be special power of attorney for
Hindi na pwedeng kunin ng gobyerno. In that the mortgagee to extra-judicially foreclose the
case, it would just serve as rentals for occupation property. So nag-execute ka ng real estate
of the property. Kaya nga class mas maganda sa mortgage, may SPA ka na binigay ka sa kanya. In
national infrastructure projects, kung ano man that case, he has the choice whether to foreclose
ang mangyari sa project, bayad ka na 100%, extra-judicially or judicially.
immediately and directly to you. What if you did not give him SPA to foreclose the
real estate mortgage, what is his remedy?

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Only judicial foreclosure or collection of sum of Dun ba sa judgment, let the real mortgage be
money foreclosed?
Pero class, pro-forma na yan. Nakalagay na sa No, there is an equity of redemption.
real estate mortgage, may SPA na yung
mortgagor na kapag di siya nakapagbayad, What is the period to exercise the equity of
ipapa-extra-judicially foreclose yung property. redemption?
And ang nag-eextra-judicially foreclosure e notary 90-120 days from the entry of judgment.
public lang.
Now, under the judicial foreclosure, what To do what?
procedure will be applied? For the mortgagor to redeem the property by
Ordinary civil action. So mahaba ang proseso paying the loan obligation. Wherefore judgment is
nyan. hereby rendered finding the defendant liable to
How do you commence an action to foreclose a real pay the loan P5 million plus interest at the rate of
estate mortgage? Petition or complaint? 12% per annum from the time the loan became
Complaint. So pag nagka-ganyan, yung ordinary due and demandable. Not from filing of the
civil action ang procedure and gagawin natin. Ang complaint kasi loan to eh. Nakalagay naman sa
haba niyan. Yung stages na pinag-aralan natin. real estate mortgage kung kelan ngdue. And
Unlike sa extra-judicial foreclosure, through the nakalagay dun that the defendant is given a
notary public and then in a matter of months period. Ako 120 days, kinukumpleto ko na para
tapos na yun. Ibebenta na yung property in a maexhaust lahat ng remedies para mabayaran
public auction. within that period from entry of judgment. That is
In a complaint for a foreclosure, what must be equity of redemption.
alleged in the complaint?
- Date an due execution of the mortgage If the mortgagor still fails to pay within that
- The assignment of the mortgage if any period, will it now warrant a foreclosure of the
- The names and residences of the real estate mortgage?
mortgagor and the mortgagee Yes.
- A description of the mortgaged property
- A statement of the date of the note or Equity of redemption in the judicial foreclosure of
other documentary evidence of the real estate mortgage. Is there right of redemption
obligation secured by the mortgage in a judicial foreclosure?
- The amount claimed to be unpaid thereon GR: there is no right of redemption.
- The names and residences of al persons Xpn: if the mortgagor is a bank then there is right
having or claiming an interest in the of redemption.
property subordinate in the right to that
of the holder of the mortgage, all of whom In extrajudicial foreclosure of mortgage is there
shall be made defendants in the action right of redemption?
So yung mga allegations na yun ay importante Yes.
specifically yung loan obligation kelan siya naging
due for the court to determine kung hindi nga Halimbawa, the amount of your loan is P5 million,
nabayaran yung loan and is there really a ground and your property is foreclosed but the property at
now to foreclose a real estate mortgage. So after the public auction was only sold at P3 million, so
hearing, nadetermine ng court, meron ngang ther is still a balance of P2 million.
pagkakautang hindi nabayaran. So hindi naman
nag-file ng collection suit, pinapa-foreclose niya Under rule 68 judicial foreclosure, can there be
yung real estate mortgage judicially, the court will deficiency judgment?
now render judgment. Yes.
Now, when the court renders judgment, does the
court immediately order the foreclosure of the real How could defeciency judgment be recovered
estate mortgage? under rule 68?
No. In judicial foreclosure, there is equity of Under rule 68, there is no filing of independent
redemption. action. A mere motion. Finoreclose m n nga, ayaw
m ng collection suit tapos ngaun my deficiency

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magccollection suit. Imagine the filing fees. A 69?
mere motion in the same proceeding. Real and personal properties.

In extrajudicial foreclosure, is there deficiency What are the modes of partition?

judgment?  By agreement of the parties - no filing of
No, there is no judicial proceeding. Notaryo the case. Mag aagree na lang kayo
publiko ang nagforeclose ng proprty mo. Hindi cia through extrajudicial foreclosure.
pwd mag utos. What is the remedy?  By judicial proceedings.
By filing of an independent action for collection of
sum of money. Un ang mas maganda naman sa Who may be the plaintiff in an action for
judicial foreclosure. Pag my deficuency judgment, partition?
motion ka na lang. Marerecover mo un. Sa A co owner.
extrajudicial foreclosure, mas madali, pero pag
may kulang, my deficiency, you will file an Defendant?
independent action for collection suit. All other co owners.

What are the issues in partition?

RULE 69 Is the plaintiff really a co owner. Is there right to
demand partition. The coownership must be
Partition established. The extent of the share of the parties
in the partition.
Under rule 69, this presupposes existence of co
ownership. Under the civil code, if there is co This involves different stages.
ownership, later on, co owners can ask for 1. If the court determines that the plaintiff is
partition. That is the substantive law. Rule 69 is really a co owner and has the right to the property
the procedural law on how to effect partition. and the defendants are co owners, then the court
will issue an order of partition.
Which court has jurisdiction?
Mtc or rtc. Depending on the value of the property Is it appealable in itself?
subject of partition. Yes, because partition pertains to different stages
and just like expropriation, There are multiple
What is the prescriptive period for partition? appeals.
Ther is no prescriptive period.
So from the order of partition you said that it is
Why is that so?When may a co owner demand appealble because it is already a final order. It
partition? determines the right to partition.
Anytime. Because the law discourages the state of
coownership. It has no juridical personality. In that case what would be filed by the party
Unlike a corporation or a partnership. A co owner appealing? Notice of appeal or record on appeal?
may demand at anytime a partition of the Record on appeal
property.
2. The judgment of partition on itself.
Xpns: In the complaint fir partition, this is commenced
 There is a limit to the partition of the by filing a verified complaint. What must be
property which should not exceed 10 alleged in the complaint.
years.  The ascertainment of the value of the
 If the property is donated or inherited, property. It will vest jurisdiction to the
there is a prohibition as to the partition, court.
should not exceed 20 years.  That the palintiff has legal right over the
 When the partition is impossible or such property. That he is a co owner.
would render the property unserviceable.  Co ownership exists.
 The nature of the property.
What kind of properties are covered under rule  The restriction of the property.

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 iresolve un. The least he could do is to report to
If the court issued an order of partition, once the the court. Include that as part of the report to the
court issued an order of partition, sasabihin ng court. The court will resolve the issue of title or
court there is really a right to partition, may the coownership.
parties even in a judicial partition, agree among
themselves that they will divide the properties? Under the law on property, if the property cannot
Yes. So pag nadetermine n ng court n co owners be divided without rendering it unserviceable,
kayo may right to partition pwede na kayo mag what is the remedy?
agree. The property may be assigned to one willing party
who would pay the other co owners for their share
The agreement will be submitted to the court. in the property.
What will the court do?
To confirm the agreement. Hindi yan binding That is juridical partition. Partition by law. It also
kung hindi yan icconfirm. No need for applicable to properties which could be physically
confirmation if you do it extrajudicially, pwede n divided. There is no prohibition. Ung lupa kahit
mag agree lang ang parties. But in judicial physically divided the co owners could agree
partition every action should have the approval or assigning it to one co owner or just selling it. That
confirmation of the court. is what provided under section 5.

If the parties cannot agree on the partition what What is the obligation of that co owner to other co
will happen now? owners?
The court shall appoint not more than three Thec o owner has to pay the other co owners for
disinterested and competent commissioners. their share.

What would be the duty and functions of the What if walang gustong tumanggap?
commissioners? The property may be sold to public auction.
Receive evidence from the parties to show the
extent of their share over the property. Who may sell at public auction?
The commsisioners. Yan ang function ng
In that case what is the purpose of those commissioners. Kasi ang function nila is to effect
evidence? the partition.
That evidence will show how much of the property
belongs to a party. The evidence will show how What is the effect of the judgment of partition?
much is the share kasi hindi naman lagi equal Kung may judgment na tayong 3 meron n taung
yan. Co ownership pressumption equal. Pero there mga shares. Halimbawa ng real property was
could be an agreement na mas malaki ung sa divided among us 1/3 each. So nagrender n ang
isang co owner at less ung sa isa. In that case that court ng judgment of partition what is the effect of
would be the function of the commissioner. To that judgment.
determine the share and how should the partition Produce conclusive right of co ownership between
be effected. the parties for their particular share.

After the hearing the commissioners will submit a So owner na tau ng 1/3. Hindi na lang ideal share.
report to the court. Is that conclusive?
No. The court may agree to the decisions of the Is judgment for partition appealable on itself?
commissioner or set aside them. Yes.

The function of the commissioner really is to effect By what mode of appeal?

partition and determine how much is the share Ordinary appeal through record on appeal.
based on the evidence given by the parties. But Multiple appeals.
the findings of the commissioner is not binding.
Does the commissioner have the authority to If there is an order pertaining to accounting, d ba
resolve or rule on the issueof title or ownership? sa co ownership at the time of the partition,
He has no authority to do such. Hindi nya pwd magkakarun un ng rendering of accounting. What

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are the obligations with respect to repairs. With which is originally legal but afterwards after the
respect to the improvements. Meron bang order of expiration of the right to hold the possession
accounting? becomes illegal.
Yes. That is also appealable on itself.
In forcible entry, at the inception the possession is
The judgement on partition, the co ownership illegal. In unlawful detainer, in the beginning it
incurred obligation, may utang tau kay ms. was legal but it became illegal by reason of certain
Balingasa, may utang tau kay mr. Magsombol, circumstances.
because of that partition are their claims now
barred? What do you mean by strategy?
No. THe existing rights is to be recognized. One who took over the property employed
Although, under the rule in partition the law is techniques in order to take the property.
silent on whether creditor should be notified.
However, logically, the creditors should be notified How about stealth?
so that they could participate during the partition. Secretly or clandestinely.
So an action in partition these creditors should
also be notified. So that their rights do not be How about force?
prejudiced. There will be physical take over of the property
that results to ejectment of the owner. Ung
Halimbawa hindi sila ninotify that would not tresspassing. You need not execute state of war.
prevent them from claiming or pursuing their The mere factna puamsok ka dun, you are
claims especially if they were deprived due considered as tresspasser. That is used by force
process and defrauded. already.

In forcible entry before you file an action, is

RULE 70 demand necessary?
No.
Forcible Entry and Unlawful Detainer
How about in lawful detainer is demand
What are the kinds of actions for recovery of necessary?
possession of real property? Yes.
1. Accion interdictal
2. Accion publiciana Within what period is the unlawful detainer be
3. Accion reinvidicatoria filed?
Within 1 year from the date of last demand.
What are the actions covered by accion If you make 5 demands, january, feb, march,
interdictal? april, may 2015. When will you count the one year
1. Forcible entry period?
2. Unlawful detainer From the last demand.

THe substantive law is the law on property. An In unlawful detainer, will demand for payment be
owner has the right to vindicate his title to enough?
theproperty. One of the rights of the owner is Let us say for example, mr. Cruz is renting an
possession. apartment from you and he has not been paying
for 5 months, you want to eject him from the
They are called ejectment. Ang ejectment is either property so demanded payment of unpaid rentals.
forcible entry or unlawful detainer. But they are Will that be enough for you to file an action for
different from each other. unlawful detainer?

What is forcible entry? What is unlawful detainer? No, demand must be for payment and vacation. To
Forcible entry is effected by force, intimidation, pay and vacate the property. If not to vacate to
threat, stealth and statregy. Unlawful detainer is comply with the terms of the contract. So those
the unlawful detention by the person of a property are the two demands that you must do.

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 Q: So pwede ung oral demand but how can you
Q: And in unlawful detainer, Will demand for prove oral demand?
payment of unpaid rentals enough? A: Through testimonies of disinterested witnesses
A: No, the demand must include demand to pay Q: What rule will apply in ejectment action. Do we
and to vacate the property or kung hindi naman apply the procedure of ordinary civil action?
to vacate to comply with terms of the contract. So A: No. So with ejectment cases, apply the Rule on
those are the 2 demands that you must do. summary procedures.
Q: Mr Cruz let us say that the demand was only to Q: Is there a full blown trial?
pay and you file an unlawful detainer, what is the A: No. so sa ejectment cases walang presintahan
effect of that? ng testigo.
A: In that case the court will dismiss your Q: How would you now substantiate your
complaint outright because that is a complaint or defenses?
jusrisdictional requirement. A: Position papers, affidavits and counter-
Q: And which court has the exclusive jurisdiction affidavits. Magme-meet lang kau ng kalaban nyo
for cases of unlawful detainer and forcible entry preliminary conference, mediation , JDR.
action? Everything will be submission of position papers,
A: It is the MTC. affidavits and counter- affidavits and all
Q:What if you are claiming unpaid rentals of 10M pleadings must be verified, kc nga walng trial at
will it still be lodge before the MTC? testigo.
A: Yes still with the MTC regardless of the Q: So what are the pleadings allowed?
amount of the unpaid rentals. A: Complaint, Compulsory counter claim, cross
Q; Now what is the issue to be determined and claim , answer
resolved by the court in action for ejectment? Q: What is the effect if the defendant failed to file
A:Possession only. Physical material possession an answer?
Q:How about ownership? Does the MTC have the A: The action will not be dismissed. The court will
jurisdiction to resolve on the issue of ownership in render judgment based on the position papers. So
an ejectment suit? there is no declaration of default. Under Rules on
A: Yes but only provisional summary procedure a motion to declare in default
Q: Let us say that you are the defendant in an is prohibited.
ejectment suit and you raised the defense that you
are the owner of the property, you said “ I already O eto na! Malapit na talaga! Konting push pa,
have a deed of sale for that”. The court then civpro expert ka na! #focus
decided in your favor and the MTC dismissed the
complaint against you saying that you have a Study well!
title over the property since you bought the
property. Question: Mr Ilagan filed a complaint Q: Now preliminary conference is conducted.
against you before the RTC, Recovery of What now is the purpose of preliminary
ownership saying that he is the real owner of the conference?
property. Can you now Mr. Cruz file a motion to A: Possibility of amicable settlement, Necessity of
dismiss the complaint filed by Mr Ilagan for res amending pleadings, obtaining stipulations or
judicata? admissions of facts and documents at saka diba
A: Res judicata will not lie when the importante limitations of issues
determination of ownership was made in the MTC Q: What is the effect of the plaintiff’s failure to
and would not bar any action between the same appear in the preliminary conference?
parties involving title to the property if the action A: It shall be caused for the dismissal of his
is brought seasonably before the proper court. complaint.
Q:Mr Ilagan so we said a while ago that in action Q: And how about if the defendant fails to appear?
of unlawful detainer demand is necessary, both A: Judgment will be rendered based on the
demand to pay and vacate or to comply with the evidence submitted by the plaintiff
terms of the contract. What is the form of demand Q: Can the court dismissed the case outright?
that is acceptable to the court? Basahin mu ung section 5 of rule 70.
A: it may be a written notice or an oral demand. A: Section 5 of Rule 70: The court may from an
examination of the allegations in the complaint

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and such evidence as may be attached thereto, A: Yes appealable. Petition for review to CA under
dismiss the case outright on any of the grounds Rule 42 since RTC here is exercising its appellate
for the dismissal of a civil action which are jurisdiction.
apparent therein. If no ground for dismissal is Q: Is the decision of RTC stayed upon filling of the
found, it shall forthwith issue summons. petition for review?
So if there is an apparent ground based on the A: NO
allegations on the complaint the court can dismiss Q: In that case, how is it stayed?
outright. A: Upon the issuance by preliminary mandatory
Q: And what are those grounds? injunction.
A: Prescription, Lack of jusrisdiction , res judicata Q: Is there a need to file supersedeas bond?
Q: So halimbawa ako ung plaintiff, may A: Hindi na. Wala nang supersedeas bond. kaya
allegations ako that the defendant failed to vacate nga I want to emphasized that magkaiba ung
the property from the date of my last demand procedural stay from MTC to RTC. Pag RTC to CA
May, 12 2013. In that case, is there a ground to the only way to stop immediate execution of the
dismiss the case? decision of RTC issued in the exercised of its
A: Yes. appellate jurisdiction is to obtain a TRO or
Q: On what ground? injunction. And then talo pa rin sa CA so aakyat
A: Prescription kc diba the action must be filed pa sa SC, gayun din immediately executory unless
within one year from the last demand at hindi SC issued a TRO.
lang yun. Pwede ding lack of jusrisdiction kc Q: Now Mr Cruz, let us say that that the amount
upon the lapse of 1 year, it must be taken to RTC. of unpaid rentals is 1M pesos, ang problema, hindi
Q: Under Section 20 Rule 70, Are provisional pa nabyaran ng tenant mu ung water and
remedies available in Rule 70? telephone bills. Can you include that in your claim
A: Yes. Under section 20, meron dyang provisional against the defendant in action for unlawful
remedies. The provisional remedy of preliminary detainer?
mandatory injunction. And you studied this in A: No. you need to file a separate action. And the
property. Recovery of possession within 5 days basis of that is section 17 of rule 70. It is clear
from the filling of complaint, the plaintiff may under section 17 of rule 70 that you can only
ask the court for a preliminary mandatory recover rentals, reasonable cost for the occupation
injunction. So PMI is a remedy granted under and use of property and attorneys fees. Hindi
Rule 70. included dun ang mga bills na naiwanan.
Q: MTC decided against the defendant and Q: Against whom a judgment in ejection
ordered him to vacate the property? Is that enforceable?
decision appealable? Yes, what is the mode of A: Against any person claiming right from the
appeal? defendant, defendant, successors in interest, ung
A: By ordinary appeal. Notice of appeal to RTC mga nakikitulog lang dun…any person claiming
Q: With the filling of notice of appeal to the RTC, right from the defendant
is the decision stayed?
A: No the decision is immediately executory but
nevertheless execution may be stayed under CONTEMPT
section 19. Q:What is contempt?
Q: What are the conditions under section 19? A: Contempt is a disobedience to the authority,
A: The conditions are: there must be an appeal justice or dignity of the court because it
and a bond called Supersedeas bond and that interrupts the court proceedings. It also pertains
must be approved by the court and at the same also to disorderly behavior or violent language
time deposit reasonable value to cover the use and against the court.
occupation of the property during the appeal. So Q:What are the kinds of contempt?
un lang from MTC to RTC. A: Direct and Indirect
Q: Ung appeal sa RTC, sabi ng RTC the decision Q: What is direct contempt and indirect contempt?
of the MTC is affirmed. Is the decision of the RTC A: Direct contempt are those committed in the
appealable? What mode? presence of the court while Indirect Contempt are
those which are not committed in the presence of
the court……..Yes,such actions in direct contempt

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are also called contempt in facie curiae while in
indirect contempt, constructive contempt
Q: In Direct contempt, what is the punishment?
A: If committed against the MTC, a fine not
exceeding 200 or imprisonment not exceeding 1
day or both
Q: e kung RTC and higher court?
A: A fine not exceeding 2000 or imprisonment not
exceeding 10 days or both
Q: But under section 1 of Rule 70, what are the
acts which constitute direct contempt?
A: Misbehavior in the presence of the court,
disrespect towards the court, offensive
personalities towards others…
Q: How about refusal to be sworn?
A: Yes, refusal to be sworn or to answer as a
witness or to subscribe an affidavit or deposition
when lawfully required to do so
Offensive behavior, inaawy mu ung kapwa
abogado mu, ung mga witness at ung mga tao s
loob ng court or ung judge inaawy mu na, hindi
mu na ginagalng
Q: Now.. insults, threatening language or
derogatory remarks in your pleading. Is that
direct or indirect contempt?
A: It is direct contempt. Derogatory remarks
against the judge.
And I assigned you a case on that prosecutor
baculi vs judge belen. Fiscal niya saka judge nag-
away. Ang issue ditto sa case ung mga
pinagsasabi ng fiscal sa judge sa mga pleadings
nya.
Q: So direct contempt is punished summarily.
The decision in direct contempt, Is it appealable?
A: No it is not appealable. The remedy is
certiorari or prohibition.
The punishment could either be a fine or
imprisonment. If it is imprisonment, pwede kang
mag petition for certiorari but you should post bail
kasi ipapakulong ka or you could file a bond.
Let us end there. We will continue contempt.

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