Survey of Recent Cases in Remedial Law

LIBERAL CONSTRUCTION OF THE RULES

Q. When may the rules be relaxed?[There is a] range of reasons which may provide justification for a court to resist a strict

adherence to procedure, such as: (a) matters of life, liberty, honor or property; (b) the existence of special or compelling circumstances, (c) the merits of the case, (d) a cause not entirely attributable to the fault or negligence of the party favored by the suspension of the rules, (e) a lack of any showing that the review sought is merely frivolous and dilatory, and (f) the other party will not be unjustly prejudiced thereby.

A suspension of the Rules is warranted in a case where the procedural infirmity was not entirely attributable to the fault or negligence of the petitioner. The lawyer’s negligence without any participatory negligence on the part of the petitioner is a sufficient reason to set aside the resolution of the CA.

[Barnes vs. Quijano Padilla, G.R. No. 160753.  June 28, 2005, AUSTRIA-MARTINEZ, J.]

Procedural rules may be waived or dispensed with in absolutely meritorious cases. [Aujero v. Philippine Communications Satellite Corp., G.R. No. 193484, 18 January 2012]

Q. State the principle behind the liberal application of procedural rules.There is nothing sacred about processes or pleadings, their forms or contents. Their

sole purpose is to facilitate the application of justice to the rival claims of contending parties. They were created, not to hinder and delay, but to facilitate and promote, the administration of justice. They do not constitute the thing itself, which courts are always striving to secure to litigants. They are designed as the means best adapted to obtain that thing. In other words, they are a means to an end. When they lose the character of the one and become the other, the administration of justice is at fault and courts are correspondingly remiss in the performance of their obvious duty.

[Pamplona Plantation Co., Inc. v. Tinghil, G.R.No. 159121, Feb. 3, 2005]

The emerging trend in our jurisprudence is to afford every party-litigant the amplest opportunity for the proper and just determination of his cause free from the constraints of technicalities.

[Aujero v. Philippine Communications Satellite Corp., G.R. No. 193484, 18 January 2012]

Q. What are the requisites for the relaxation of the rules of procedure?The two pre-requisites for the relaxation of the rules are: (a) justifiable cause or

plausible reason for non-compliance; and (b) compelling reason to convince the court that outright dismissal of the petition would seriously impair the orderly administration of justice.

[Tible and Tible Co, Inc. v. Royal Savings and Loan Assn., G.R. No. 155806, April 8, 2008]

JURISDICTION

Q. When may a court exercise its power of adjudication?For a court to exercise its power of adjudication, there must be an actual case or

controversy — one which involves a conflict of legal rights, an assertion of opposite legal claims susceptible of judicial resolution; the case must not be moot or academic or based on extra-legal or other similar considerations not cognizable by a court of justice. Where the issue has become moot and academic, there is no justiciable controversy, and an adjudication thereof would be of no practical use or value, as courts do not sit to adjudicate mere academic questions to satisfy scholarly interest, however intellectually challenging. Courts exist to decide actual controversies, not to give opinions upon abstract propositions.

[Albay Electric Cooperative, Inc. v. Santelices, G.R. No. 132540, April 26, 2009]

Q. Considering that the Supreme Court, Court of Appeals and the Regional Trial Courts have concurrent jurisdiction to issue writs of certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunction, may a party litigant go directly to the Supreme Court at will?

This concurrence of jurisdiction is not to be taken as according to parties seeking any of the writs an absolute, unrestrained freedom of choice of the court to which application therefor will be directed.  There is after all a hierarchy of courts.  That hierarchy is determinative of the venue of appeals, and also serves as a general determinant of the appropriate forum for petitions for the extraordinary writs.  A becoming regard for that judicial hierarchy most certainly indicates that petitions for the issuance of extraordinary writs against first level (“inferior”) courts should be filed with the Regional Trial Court, and

Atty. Jerome J. JaralesCagayan de Oro City

those against the latter, with the Court of Appeals.  A direct invocation of the Supreme Court’s original jurisdiction to issue these writs should be allowed only when there are special and important reasons therefor, clearly and specifically set out in the petition.  This is [an] established policy . . necessary to prevent inordinate demands upon the Court’s time and attention which are better devoted to those matters within its exclusive jurisdiction, and to prevent further over-crowding of the Court’s docket.

Q. What is the rationale behind this rule? The rationale for this rule is two-fold: (a) it would be an imposition upon the precious

time of this Court; and (b) it would cause an inevitable and resultant delay, intended or otherwise, in the adjudication of cases, which in some instances had to be remanded or referred to the lower court as the proper forum under the rules of procedure, or as better equipped to resolve the issues because this Court is not a trier of facts.

Q. What are the exceptions to the rule on observing hierarchy of courts?The judicial hierarchy of courts is not an iron-clad rule. Cases which depend on disputed

facts for decision cannot be brought immediately before appellate courts as they are not triers of facts. Therefore, a strict application of the rule of hierarchy of courts is not necessary when the cases brought before the appellate courts do not involve factual but legal questions. 

[Mangaliag v. Hon. Edelwina Catubig-Pastoral, G.R. No. 143951, October 25, 2005)]

Exceptional and compelling circumstances were held present in the following cases: (a) Chavez vs. Romulo on citizens’ right to bear arms; (b) Government of the United States of America vs. Purganan on bail in extradition proceedings; (c) Commission on Elections vs. Quijano-Padilla on government contract involving modernization and computerization of voters’ registration list; (d) Buklod ng Kawaning EIIB vs. Zamora on status and existence of a public office; and (e) Fortich vs. Corona [37] on the so-called “Win-Win Resolution” of the Office of the President which modified the approval of the conversion to agro-industrial area. [HEIRS OF HINOG V. MELICOR, G.R. No. 140954.  April 12, 2005]

Q. R-II Builders' original complaint dated 23 August 2005 was initially classified as an intra-corporate case and docketed as Civil Case No. 05-113407 before Branch 24 of the Manila RTC, a designated Special Commercial Court. With HGC's filing of a motion for a preliminary hearing on the affirmative defenses asserted in its answer and R-II Builders' filing of its Amended and Supplemental Complaint dated 31 July 2007, said court issued an order dated 2 January 2008 ordering the re-raffle of the case upon the finding that the same is not an intra-corporate dispute. In a clarificatory order dated 1 February 2008, the same court significantly took cognizance of its lack of jurisdiction over the case, and ruled that the more prudent course to take was for the Court to declare that it does not have the authority to hear the complaint it being an ordinary civil action. Is the action of RTC-24 tenable?

As to ruling that it has no jurisdiction over the complaint, being outside the jurisdiction of Special Commercial Courts, the RTC-24 correctly that cases which are civil in nature, like the one commenced by R-II Builders, should be threshed out in a regular court.

As to remanding the case for re-raffle, however, Branch 24 of the Manila RTC with its acknowledged lack of jurisdiction over the case should have ordered the dismissal of the complaint, since a court without subject matter jurisdiction cannot transfer the case to another court. Instead, it should have simply ordered the dismissal of the complaint, considering that the affirmative defenses for which HGC sought hearing included its lack of jurisdiction over the case.

In one case, the issue was whether a branch of the Regional Trial Court which has no jurisdiction to try and decide a case has authority to remand the same to another co-equal Court in order to cure the defects on venue and jurisdiction. The Court ruled that, such being the case, the RTC did not have the requisite authority or power to order the transfer of the case to another branch of the Regional Trial Court. The only action that the branch of the RTC could take on the matter was to dismiss the petition for lack of jurisdiction.

Q. Will the re-raffle of the case to a court having jurisdiction over the complaint cure the jurisdictional defect?No. A re-raffle which causes a transfer of the case involves courts with the same

subject matter jurisdiction; it cannot involve courts which have different jurisdictions exclusive of the other. More apt in this case, a re-raffle of a case cannot cure a jurisdictional defect.

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The directive to re-raffle is an exercise of authority over the case, which authority the court had in the same breath declared it did not have. There was absolutely no reason which could justify a re-raffle of the case considering that the order that was supposed to have caused the re-raffle was not an inhibition of the judge but a declaration of absence of jurisdiction.

Q. On Motion for Reconsideration, among the issues raised was that the complaint was raffled to Branch 24 through no fault of plaintiff; that despite the determination subsequently made by Branch 24 of the Manila RTC that the case did not actually involve an intra-corporate dispute, the Manila RTC did not lose jurisdiction over the same and its Executive Judge correctly directed its re-raffling to Branch 22 of the same Court; and that the re-raffle does not affect a court's jurisdiction which, once acquired, continues until the case is finally terminated. Decide.While it is true that R-II Builders had no hand in the raffling of the case, it cannot be

gainsaid that Branch 24 of the RTC Manila had no jurisdiction over the case. Rather than ordering the dismissal of the complaint, however, said court issued the 2 January 2008 order erroneously ordering the re-raffle of the case. In cases which involved Special Commercial Courts trying and/or deciding cases which were found to be civil in nature, the Supreme Court ordered the dismissal of the complaint for lack of jurisdiction instead of simply directing the re-raffle of the case to another branch.

[HOME GUARANTY CORPORATION v. R-II BUILDERS INC., G.R. No. 192649, 22 June 2011;

See however, the dissent of Justice Velasco Jr.]

Q. Are the Ombudsman’s administrative decisions merely recommendatory?No. The Ombudsman’s order to remove, suspend, demote, fine, censure, or

prosecute an officer or employee is not merely advisory or recommendatory but is actually mandatory. It has long been settled that the power of the Ombudsman to investigate and prosecute any illegal act or omission of any public official is not an exclusive authority but a shared or concurrent authority in respect of the offense charged. By stating therefore that the Ombudsman “recommends” the action to be taken against an erring officer or employee, the provisions in the Constitution and RA 6770 intended that the implementation of the order be coursed through the proper officer.

[Ledesma v. Court of Appeals, G.R. No. 161629, July 29, 2005.Ynares-Santiago, J.; Office of the Ombudsman v. CA, G.R. No. 159395, May 7, 2008]

Q. Between the COA and the RTC, which has primary jurisdiction to pass upon a money claim against a provincial LGU?

It is the COA. The doctrine of primary jurisdiction holds that if a case is such that its determination requires the expertise, specialized training and knowledge of an administrative body, relief must first be obtained in an administrative proceeding before resort to the courts is had even if the matter may well be within their proper jurisdiction. It applies where a claim is originally cognizable in the courts and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative agency. In such a case, the court in which the claim is sought to be enforced may suspend the judicial process pending referral of such issues to the administrative body for its view or, if the parties would not be unfairly disadvantaged, dismiss the case without prejudice.

Q. Petitioner argues that respondent could no longer question the RTC’s jurisdiction over the matter after it had filed its answer and participated in the subsequent proceedings. Decide.

The court may raise the issue of primary jurisdiction sua sponte and its invocation cannot be waived by the failure of the parties to argue it as the doctrine exists for the proper distribution of power between judicial and administrative bodies and not for the convenience of the parties. [Euro-Med Laboratories, Phil., Inc. v. The Province of Batangas, G.R. No. 148106, July

17, 2006]

Q. Does RTC have jurisdiction to entertain boundary dispute between two LGUs?The law in point is Section 118 of the LGC, which provides:

Section. 118. Jurisdictional Responsibility for Settlement of Boundary Disputes. — Boundary disputes between and among local government units shall, as much as possible, be settled amicably. To this end:

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(a) Boundary disputes involving two (2) or more barangays in the same city or municipality shall be referred for settlement to the sangguniang panlungsod or sangguniang bayan concerned.

(b) Boundary disputes involving two (2) or more municipalities within the same province shall be referred for settlement to the sangguniang panlalawigan concerned.

(c) Boundary disputes involving municipalities or component cities of different provinces shall be jointly referred for settlement to the sanggunians of the province concerned.

(d) Boundary disputes involving a component city or municipality on the one hand and a highly urbanized city on the other, or two (2) or more highly urbanized cities, shall be jointly referred for settlement to the respective sanggunians of the parties.

(e) In the event the sanggunian fails to effect an amicable settlement within sixty (60) days from the date the dispute was referred thereto, it shall issue a certification to that effect. Thereafter, the dispute shall be formally tried by the sanggunian concerned which shall decide the issue within sixty (60) days from the date of the certification referred to above.

Even in the absence of any specific provision of law, “RTCs have general jurisdiction to adjudicate all controversies except those expressly withheld from their plenary powers. They have the power not only to take judicial cognizance of a case instituted for judicial action for the first time, but also to do so to the exclusion of all other courts at that stage. Indeed, the power is not only original, but also exclusive.”

[Municipality of Pateros v. CA, G.R. No. 157714, June 16, 2009]

Q. Petitioners maintain that until and unless a petition for review on certiorari is given due course by the Supreme Court, the Court of Appeals never loses jurisdiction over a case pending before it. The respondents counter that when they filed with the Supreme Court their petition for review on certiorari the Court of Appeals lost jurisdiction over the case, specifically over petitioners’ Motion for Reconsideration then pending before it. The Court of Appeals thus deferred to the exercise by the Supreme Court of its jurisdiction. Moreover, had the Court of Appeals resolved petitioners’ Motion for Reconsideration, there could be a possibility that its Resolution and of the Supreme Court might be diametrically opposite to each other.

Does the filing with the Supreme Court of a petition for review on certiorari divest the Court of Appeals of its jurisdiction?

Upon the filing of the Petition for Review on Certiorari, the Supreme Court assumed jurisdiction over the case, regardless of whether or not the said petition would be given due course. Clearly then, the Court of Appeals had no more jurisdiction over the case. Thus, in issuing its Resolution declaring it had lost jurisdiction over the case since the matter was elevated to this Court by respondents in a petition for review on certiorari, the Court of Appeals committed no reversible error. To rule otherwise would be contrary to the orderly administration of justice. As respondents correctly pointed out, it could result in an absurd situation where the Court of Appeals and the Supreme Court might render conflicting or opposing Resolutions. [Fajardo v. Mayor Alfredo S. Lim, G.R. No. 132388, April 10, 2006]

Q. In an action for breach of contract and damages filed before the court, the Court of Appeals held that the provision in the contract to sell mandating membership of the buyer of the housing unit in a housing corporation was a strong indication that the property purchased by respondent Carrion from petitioner was part of a tract of land subdivided primarily for residential purposes. Thus, the appellate court concluded that the HLURB has jurisdiction over the controversy because the property subject thereof was part of a subdivision project. Is the CA correct?

No. Not every controversy involving a subdivision or condominium unit falls under the competence of the HLURB in the same way that the mere allegation of relationship between the parties, i.e., that of being subdivision owner/developer and subdivision lot buyer, does not automatically vest jurisdiction in the HLURB. For an action to fall within the exclusive jurisdiction of the HLURB, the decisive element is the nature of the action as enumerated in Section 1 of P.D. No. 1344. . . . i.e., the complaint is aimed at compelling the subdivision developer to comply with its contractual and statutory obligations.

Q. Respondents claim that, as raised in their motion to dismiss, the resolution of the case ultimately calls for the interpretation of the contract

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to sell and the determination of whether petitioner is guilty of committing unsound real estate business practices, thus, the proper forum to hear and decide the matter is the HLURB. Is respondent correct?Jurisdiction of the court over the subject matter is determined by the allegations of

the complaint irrespective of whether or not the plaintiff is entitled to recover upon all or some of the claims asserted therein. As a necessary consequence, the jurisdiction of the court cannot be made to depend upon the defenses set up in the answer or upon the motion to dismiss, for otherwise, the question of jurisdiction would almost entirely depend upon the defendant. What determines the jurisdiction of the court is the nature of the action pleaded as appearing from the allegations in the complaint. The averments in the complaint and the character of the relief sought are the matters to be consulted. Thus, the allegations in respondents’ motion to dismiss on the unsound real estate business practices allegedly committed by petitioner, even if proved to be true, cannot serve to oust the RTC of its jurisdiction over actions for breach of contract and damages which has been conferred to it by law.

[Cadimas v. Carrion, G.R. No. 180394, September 29, 2008]

KATARUNGANG PAMBARANGAY LAW

Q. What is the object of the Katarungang Pambarangay Law?The object of the Katarungang Pambarangay Law is the amicable settlement of

disputes through conciliation proceedings voluntarily and freely entered into by the parties. Through this mechanism, the parties are encouraged to settle their disputes without enduring the rigors of court litigation. Nonetheless, the disputing parties are not compelled to settle their controversy during the barangay proceedings before the Lupon or the Pangkat, as they are free to instead find recourse in the courts in the event that no true compromise is reached.

The key in achieving the objectives of an effective amicable settlement under the Katarungang Pambarangay Law is the free and voluntary agreement of the parties to submit the dispute for adjudication either by the Lupon or the Pangkat, whose award or decision shall be binding upon them with the force and effect of a final judgment of a court. Absent this voluntary submission by the parties to submit their dispute to arbitration under the Katarungang Pambarangay Law, there cannot be a binding settlement arrived at effectively resolving the case.

Q. The MCTC remanded the case to the Lupon ng Tagapamayapa and insisted that the arbitration proceedings continue, despite the clear showing that the spouses Manacnes refused to submit the controversy for arbitration. Is the MCTC correct?

[The MTCC’s order remanding the case] is contrary to the very nature of the proceedings under the Katarungang Pambarangay Law which espouses the principle of voluntary acquiescence of the disputing parties to amicable settlement.

What is compulsory under the Katarungang Pambarangay Law is that there be a confrontation between the parties before the Lupon Chairman or the Pangkat and that a certification be issued that no conciliation or settlement has been reached, as attested to by the Lupon or Pangkat Chairman, before a case falling within the authority of the Lupon may be instituted in court or any other government office for adjudication. In other words, the only necessary pre-condition before any case falling within the authority of the Lupon or the Pangkat may be filed before a court is that there has been personal confrontation between the parties but despite earnest efforts to conciliate, there was a failure to amicably settle the dispute. x x x Therefore, upon certification by the Lupon ng Tagapamayapa that the confrontation before the Pangkat failed because the [parties] refused to submit the case for arbitration and insisted that the case should go to court, the MCTC should have continued with the proceedings in the case for recovery of possession which it suspended in order to give way for the possible amicable resolution of the case through arbitration before the Lupon ng Tagapamayapa.

Q. Petitioner, in arguing that the remand is proper, asserts that the parties must be bound by their respective counsels’ agreement to submit the case for arbitration and thereafter enter into an amicable settlement. Decide. What was agreed to by the parties’ respective counsels was the remand of the case

to the Lupon ng Tagapamayapa for conciliation proceedings and not the actual amicable settlement of the case. As stated earlier, the parties may only be compelled to appear before the Lupon ng Tagapamayapa for the necessary confrontation, but not to enter into any amicable settlement, or in the case at bar, to sign the Agreement for Arbitration. x x x [Pang-et v. Manacnes-dao-as, G.R. No. 167261, March 2, 2007]

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Q. Will the failure of the parties to resort to barangay conciliation proceedings cause the dismissal of the complaint?

Section 408 of the aforesaid law and Administrative Circular No. 14-93 provide that all disputes between parties actually residing in the same city or municipality are subject to barangay conciliation. A prior recourse thereto is a pre-condition before filing a complaint in court or any government offices. Non-compliance with the said condition precedent could affect the sufficiency of the plaintiff’s cause of action and make his complaint vulnerable to dismissal on ground of lack of cause of action or prematurity; but the same would not prevent a court of competent jurisdiction from exercising its power of adjudication over the case before it, where the defendants failed to object to such exercise of jurisdiction. [Santos v. Lumbao, G.R. No. 169129, March 28, 2007]

Q. What procedural steps should the defendant do if the action was filed without the requisite barangay conciliation proceedings?

[The defendant should object to the court’s taking cognizance of the case.] Non-compliance with the condition precedent under Presidential Decree No. 1508 does not prevent a court of competent jurisdiction from exercising its power of adjudication over a case where the defendants fail to object to such exercise of jurisdiction.  But such objection should be seasonably made before the court first taking cognizance of the complaint, and must be raised in the Answer, or in such other pleading allowed under the Rules of Court. [Espino v. legarda, G.R. No. 149266, march 17, 2006]

. . . It is also well-settled that the non-referral of a case for barangay conciliation when so required under the law is not jurisdictional in nature and may therefore be deemed waived if not raised seasonably in a motion to dismiss. Hence, herein petitioners can no longer raise the defense of non-compliance with the barangay conciliation proceedings to seek the dismissal of the complaint filed by the respondents Spouses Lumbao, because they already waived the said defense when they failed to file a Motion to Dismiss. [Santos v. Lumbao, G.R. No. 169129, March 28, 2007; See also Aquino v. Aure, G.R. No. 153567, February 18, 2008]

Q. The parties appeared before the Barangay Lupon for conciliation proceedings. The only matter referred to the Barangay Lupon for conciliation was the rental increase. In a subsequent action for ejectment petitioner posed the question of whether the Certification dated 18 January 2002 issued by the Barangay Lupon stating that no settlement was reached by the parties on the matter of rental increase sufficient to comply with the prior conciliation requirement under the Katarungang Pambarangay Law to authorize the respondents to institute the ejectment suit against petitioner. Decide.

The Court rules affirmatively.While it is true that the Certification to file action dated 18 January 2002 of the

Barangay Lupon refers only to rental increase and not to the ejectment of petitioner from the subject property, the submission of the same for conciliation before the Barangay Lupon constitutes sufficient compliance with the provisions of the Katarungang Pambarangay Law. Given the particular circumstances of the case at bar, the conciliation proceedings for the amount of monthly rental should logically and reasonably include also the matter of the possession of the property subject of the rental, the lease agreement, and the violation of the terms thereof. [Wee v. De Castro, G.R. No. 176405, August 20, 2008]

Q. May a corporation be impleaded as party to a barangay conciliation proceeding?

No. Section 1, Rule VI of the Katarungang Pambarangay Rules implementing the Katarungang Pambarangay Law provides:

"Section 1. Parties. - Only individuals shall be parties to these proceedings either as complainants or respondents. No complaint by or against corporations, partnerships or other juridical entities shall be filed, received or acted upon." [Universal Robina Sugar Milling Corp. v. Heirs of Teves, G. R. No. 128574. September

18, 2002]

DOCKET FEES

Q. State the rule on payment of docket fees for jurisdictional purposes.1.  It is not simply the filing of the complaint or appropriate initiatory pleading, but

the payment of the prescribed docket fee, that vests a trial court with jurisdiction over the subject-matter or nature of the action.  Where the filing of the initiatory pleading is not accompanied by payment of the docket fee, the court may allow

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payment of the fees within a reasonable time but in no case beyond the applicable prescriptive or reglementary period.

2.  The same rule applies to permissive counterclaims, third-party claims and similar pleadings, which shall not be considered filed until and unless the filing fee prescribed therefor is paid.  The court may also allow payment of said fee within a reasonable time but also in no case beyond its applicable prescriptive or reglementary period.

3.  Where the trial court acquires jurisdiction over a claim by the filing of the appropriate pleading and payment of the prescribed filing fee but, subsequently, the judgment awards a claim not specified in the pleading, or if specified the same has been left for determination by the court, the additional filing fee therefor shall constitute a lien on the judgment.  It shall be the responsibility of the Clerk of Court or his duly authorized deputy to enforce said lien and assess and collect the additional fee.

Plainly, while the payment of the prescribed docket fee is a jurisdictional requirement, even its non-payment at the time of filing does not automatically cause the dismissal of the case, as long as the fee is paid within the applicable prescriptive or reglementary period, more so when the party involved demonstrates a willingness to abide by the rules prescribing such payment. Thus, when insufficient filing fees were initially paid by the plaintiffs and there was no intention to defraud the government, the Manchester rule does not apply.

[HEIRS OF HINOG V. HON. ACHILLES MELICOR, G.R. No. 140954.  April 12, 2005]

It cannot be gainsaid from the above guidelines that, with the exception of pauper litigants, without the payment of the correct docket or filing fees within the reglementary period, jurisdiction over the subject-matter or nature of the action will not vest in the trial court. In fact, a pauper litigant may still have to pay the docket fees later, by way of a lien on the monetary or property judgment that may accrue to him. Clearly, the flexibility or liberality of the rules sought by the petitioners cannot apply in the instant case.

[Rizal v. Naredo, G.R. No. 151898, 14 March 2012]

Q. In the complaint, which was filed on September 7, 1998, respondent prayed for “accrued interest… subsequent to August 15, 1998 until fully paid.” In paying the docket fees therefor, respondent merely relied on the assessment made by the clerk of court which turned out to be incorrect. Respondent was able to pay only the filing fee corresponding to its claim for interest from August 16, 1998 until the filing of the complaint on September 7, 1998.  Petitioners allege that there was underpayment of the docket fees, hence, the trial court did not acquire jurisdiction over the case. Decide.

Under the circumstances, the clerk of court has the responsibility of reassessing what respondent must pay within the prescriptive period, failing which the complaint merits dismissal. As the complaint currently stands, respondent cannot claim the interest from August 16, 1998 until September 7, 1998, unless respondent is allowed by motion to amend its complaint within a reasonable time and specify the precise amount of interest petitioners owe from August 16, 1998 to September 7, 1998 and pay the corresponding docket fee therefor.  

However, while the payment of the prescribed docket fee is a jurisdictional requirement, even its non-payment at the time of filing does not automatically cause the dismissal of the case, as long as the fee is paid within the applicable prescriptive or reglementary period, more so when the party involved demonstrates a willingness to abide by the rules prescribing such payment.  Thus, when insufficient filing fees were initially paid by the plaintiffs and there was no intention to defraud the government, the Manchester rule does not apply.            With respect to the interest accruing after the filing of the complaint, the same can only be determined after a final judgment has been handed down.  Respondent cannot thus be made to pay the corresponding docket fee therefor.  Pursuant, however, to Section 2, Rule 141, as amended by Administrative Circular No. 11-94, respondent should be made to pay additional fees which shall constitute a lien in the event the trial court adjudges that it is entitled to interest accruing after the filing of the complaint.            Regarding awards of claims not specified in the pleading, the same refers only to damages arising after the filing of the complaint or similar pleading as to which the additional filing fee therefor shall constitute a lien on the judgment. The amount of any claim for damages, therefore, arising on or before the filing of the complaint or any pleading should be specified. While it is true that the determination of certain damages as exemplary or corrective damages is left to the sound discretion of the court, it is the duty of the parties claiming such damages to specify the amount sought on the basis of which the court may

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make a proper determination, and for the proper assessment of the appropriate docket fees. The exception contemplated as to claims not specified or to claims although specified are left for determination of the court is limited only to any damages that may arise after the filing of the complaint or similar pleading for then it will not be possible for the claimant to specify nor speculate as to the amount thereof. [Proton Pilipinas Corp. v. Banque Nationale de Paris, G. R. No. 151242, June 15, 2005]

Q. FDC claims that there was a failure to pay the correct amount of docket fee because the complaint did not specify the amounts of moral damages, exemplary damages, and attorney's fees; that the payment of the prescribed docket fee by Agcaoili was necessary for the RTC to acquire jurisdiction over the case; and that, consequently, the RTC did not acquire jurisdiction over this case. Decide.

. . . The non-specification of the amounts of damages does not immediately divest the trial court of its jurisdiction over the case, provided there is no bad faith or intent to defraud the Government on the part of the plaintiff. The prevailing rule is that if the correct amount of docket fees are not paid at the time of filing, the trial court still acquires jurisdiction upon full payment of the fees within a reasonable time as the court may grant, barring prescription. The "prescriptive period" that bars the payment of the docket fees refers to the period in which a specific action must be filed, so that in every case the docket fees must be paid before the lapse of the prescriptive period, as provided in the applicable laws, particularly Chapter 3, Title V, Book III, of the Civil Code, the principal law on prescription of actions.

Q. Will the court still have jurisdiction if the clerk of court fails to make a deficiency assessment? where the clerk of court fails to make a deficiency assessment, and the deficiency is

not paid as a result, the trial court nonetheless continues to have jurisdiction over the complaint, unless the party liable is guilty of a fraud in that regard, considering that the deficiency will be collected as a fee in lien within the contemplation of Section 2, Rule 141 (as revised by A.M. No. 00-2-01-SC). The reason is that to penalize the party for the omission of the clerk of court is not fair if the party has acted in good faith.

[In this case] the docket fees paid x x x were insufficient considering that the complaint did not specify the amounts of moral damages, exemplary damages and attorney's fees. Nonetheless, it is not disputed that plaintiff paid the assessed docket fees. Such payment negated bad faith or intent to defraud the Government. Nonetheless, plaintiff must remit any docket fee deficiency to the RTC's clerk of court.

[FEDMAN DEVELOPMENT CORPORATION v. AGCAOILI, G.R. No. 165025, 31 August 2011] Q. The prevailing jurisprudence notwithstanding, what is the rule regarding payment of docket fees?

Consistent with Section 1, Rule 141 of the Revised Rules of Court which provides that the prescribed fees shall be paid in full "upon the filing of the pleading or other application which initiates an action or proceeding", the well-entrenched rule is to the effect that a court acquires jurisdiction over a case only upon the payment of the prescribed filing and docket fees.

[HOME GUARANTY CORPORATION v. R-II BUILDERS INC., G.R. No. 192649, 09 March 2011]

Effective August 16, 2004 under Sec. 7, Rule 141, as amended by A.M. No. 04-2-04-SC, docket fees are now required to be paid in compulsory counterclaim or cross- claims.

[Korea Technologies Co. Ltd. v. Lerma, G.R. No. 143581, 07 January 2008]

ACTION

Q. Is a complaint for forcible entry an action quasi in rem? No. The action for forcible entry is a real action and one in personam. By its very nature

and purpose, an action for unlawful detainer or forcible entry (as provided for under sections 1, 15, and 17 of Rule 70) is a real action and in personam because the plaintiff seeks to enforce a personal obligation or liability on the defendant under Article 539 of the New Civil Code, for the latter to vacate the property subject of the action, restore physical possession thereof to the plaintiff, and pay actual damages by way of reasonable compensation for his use or occupation of the property.

[FILOMENA DOMAGAS v. VIVIAN LAYNO JENSEN, G.R. No. 158407.  January 17, 2005]

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Q. Petitioner raises the issue of whether a complaint for support can be converted to a petition for recognition. Petitioner claims that the order and resolution of the trial court effectively converted the complaint for support to a petition for recognition which is supposedly proscribed by law. According to petitioner, Martin, as an unrecognized child, has no right to ask for support and must first establish his filiation in a separate suit under Article 283 in relation to Article 265 of the Civil Code and Section 1, Rule 105 of the Rules of Court. Is petitioner’s contention correct?

The petitioner’s contentions are without merit.  The assailed resolution and order did not convert the action for support into one for

recognition but merely allowed the respondents to prove their cause of action against petitioner who had been denying the authenticity of the documentary evidence of acknowledgement.  But even if the assailed resolution and order effectively integrated an action to compel recognition with an action for support, such was valid and in accordance with jurisprudence. Whether or not respondent Martin is entitled to support depends completely on the determination of filiation.  A separate action will only result in a multiplicity of suits, given how intimately related the main issues in both cases are. The declaration of filiation is entirely appropriate to these proceedings.   

[Arnel L. Agustin v. Court of Appeals, G.R. No. 162571, June 15, 2005, CORONA, J.]

Q. What is a moot and academic case?A moot and academic case is one that ceases to present a justiciable controversy by

virtue of supervening events, so that a declaration thereon would be of no practical use or value. Generally, courts decline jurisdiction over such case or dismiss it on ground of mootness.

The “moot and academic” principle is not a magical formula that can automatically dissuade the courts in resolving a case. Courts will decide cases, otherwise moot and academic, if: first, there is a grave violation of the Constitution; second, the exceptional character of the situation and the paramount public interest is involved; third, when constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and the public; and fourth, the case is capable of repetition yet evading review.

[David v. Macapagal-Arroyo, G.R. No. 171396, and others, May 3, 2006]

CAUSE OF ACTION

Q. May a complaint that lacks a cause of action at the time it was filed be cured by the accrual of a cause of action during the pendency of the case?

It is a rule of law to which there is, perhaps, no exception, either at law or in equity, that to recover at all there must be some cause of action at the commencement of the suit. As observed by counsel for appellees, there are reasons of public policy why there should be no needless haste in bringing up litigation, and why people who are in no default and against whom there is yet no cause of action should not be summoned before the public tribunals to answer complaints which are groundless. We say groundless because if the action is immature, it should not be entertained, and an action prematurely brought is a groundless suit.

Q. May this defect be cured by an amendment?Amendments of pleadings are allowed under Rule 10 of the 1997 Rules of Civil

Procedure in order that the actual merits of a case may be determined in the most expeditious and inexpensive manner without regard to technicalities, and that all other matters included in the case may be determined in a single proceeding, thereby avoiding multiplicity of suits. Section 5 thereof applies to situations wherein evidence not within the issues raised in the pleadings is presented by the parties during the trial, and to conform to such evidence the pleadings are subsequently amended on motion of a party. Thus, a complaint which fails to state a cause of action may be cured by evidence presented during the trial.

However, the curing effect under Section 5 is applicable only if a cause of action in fact exists at the time the complaint is filed, but the complaint is defective for failure to allege the essential facts. For example, if a complaint failed to allege the fulfillment of a condition precedent upon which the cause of action depends, evidence showing that such condition had already been fulfilled when the complaint was filed may be presented during the trial, and the complaint may accordingly be amended thereafter. Thus, in Roces v. Jalandoni, this Court upheld the trial court in taking cognizance of an otherwise defective complaint which was later cured by the testimony of the plaintiff during the trial. In that case, there was in fact a cause of action and the only problem was the insufficiency of the allegations in the complaint.

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It thus follows that a complaint whose cause of action has not yet accrued cannot be cured or remedied by an amended or supplemental pleading alleging the existence or accrual of a cause of action while the case is pending. Such an action is prematurely brought and is, therefore, a groundless suit, which should be dismissed by the court upon proper motion seasonably filed by the defendant. The underlying reason for this rule is that a person should not be summoned before the public tribunals to answer for complaints which are immature.

It is true that an amended complaint and the answer thereto take the place of the originals which are thereby regarded as abandoned and that “the complaint and answer having been superseded by the amended complaint and answer thereto, and the answer to the original complaint not having been presented in evidence as an exhibit, the trial court was not authorized to take it into account.” But in none of these cases or in any other case have we held that if a right of action did not exist when the original complaint was filed, one could be created by filing an amended complaint. In some jurisdictions in the United States what was termed an “imperfect cause of action” could be perfected by suitable amendment and this is virtually permitted in some cases decided by the Court That, however, which is no cause of action whatsoever cannot by amendment or supplemental pleading be converted into a cause of action: Nihil de re accrescit ei qui nihil in re quando jus accresceret habet.

We are therefore of the opinion, and so hold, that unless the plaintiff has a valid and subsisting cause of action at the time his action is commenced, the defect cannot be cured or remedied by the acquisition or accrual of one while the action is pending, and a supplemental complaint or an amendment setting up such after-accrued cause of action is not permissible.

[Abacan, Jr. vs. Northwestern University, Inc., G.R. No. 140777. April 8, 2005]

Q. When a motion to dismiss is for an alleged lack of cause of action, the test of sufficiency of a cause of action rests on whether, hypothetically admitting the facts alleged in the complaint to be true, the court can render a valid judgment upon the same, in accordance with the prayer in the complaint. Is there an exception to this rule?

The rule is subject to well-recognized exceptions, such that there is no hypothetical admission of the veracity of the allegations if:

1. the falsity of the allegations is subject to judicial notice;2. such allegations are legally impossible;3. the allegations refer to facts which are inadmissible in evidence;4. by the record or document in the pleading, the allegations appear unfounded; or 5. there is evidence which has been presented to the court by stipulation of the

parties or in the course of the hearings related to the case.[Heirs of Maramag v. Maramag, G.R. No. 181132, June 5, 2009]

Q. In their complaint petitioners raised two causes of action. First, the petitioners raised the refusal of their co-heirs, Florante, Rita and Panfila, to partition the properties which they inherited from Spouses Baylon. Second, in their supplemental pleading, the petitioners assailed the donation inter vivos of Lot No. 4709 and half of Lot No. 4706 made by Rita in favor of Florante pendente lite. Is the joinder of actions proper?

The actions of partition and rescission cannot be joined in a single action.While parties to an action may assert in one pleading, in the alternative or otherwise,

as many causes of action as they may have against an opposing party, such joinder of causes of action is subject to the condition, inter alia, that the joinder shall not include special civil actions governed by special rules. Here, there was a misjoinder of causes of action. The action for partition filed by the petitioners could not be joined with the action for the rescission of the said donation inter vivos in favor of Florante. Lest it be overlooked, an action for partition is a special civil action governed by Rule 69 of the Rules of Court while an action for rescission is an ordinary civil action governed by the ordinary rules of civil procedure. The variance in the procedure in the special civil action of partition and in the ordinary civil action of rescission precludes their joinder in one complaint or their being tried in a single proceeding to avoid confusion in determining what rules shall govern the conduct of the proceedings as well as in the determination of the presence of requisite elements of each particular cause of action.

Q. What is the effect of misjoinder of causes of action?A misjoined cause of action, if not severed upon motion of a party or by the court sua

sponte, may be adjudicated by the court together with the other causes of action. Indeed, the courts have the power, acting upon the motion of a party to the case or

sua sponte, to order the severance of the misjoined cause of action to be proceeded with

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separately. However, if there is no objection to the improper joinder or the court did not motu proprio direct a severance, then there exists no bar in the simultaneous adjudication of all the erroneously joined causes of action.

Q. Is the rule applicable to all cases of misjoinder of action?It should be emphasized that the foregoing rule only applies if the court trying the

case has jurisdiction over all of the causes of action therein notwithstanding the misjoinder of the same. If the court trying the case has no jurisdiction over a misjoined cause of action, then such misjoined cause of action has to be severed from the other causes of action, and if not so severed, any adjudication rendered by the court with respect to the same would be a nullity. [Ada v. Baylon, G.R. No. 182435, 13 August 2012]

COMPLAINT

Q. The complaint for unlawful detainer states that the defendants’ entry into the property was unlawful from the very beginning. Plaintiffs, nonetheless, claimed that it merely tolerated petitioners’ presence in the property. Will the case prosper? 

The unlawful detainer action does not lie. To justify an action for unlawful detainer, the permission or tolerance must have been present at the beginning of the possession.  Otherwise, if the possession was unlawful from the start, an action for unlawful detainer would be an improper remedy. "A close assessment of the law and the concept of the word 'tolerance' confirms the view heretofore expressed that such tolerance must be present right from the start of possession sought to be recovered, to categorize a cause of action as one of unlawful detainer not of forcible entry…”

 The case cannot be considered as an unlawful detainer case, the “tolerance” claimed by plaintiffs not being that contemplated by law in unlawful detainer cases; neither can the case be considered as one for forcible entry because the entry of petitioners was not alleged to have been by means of force, intimidation, threats, stealth or strategy. Since the complaint did not satisfy the jurisdictional requirement of a valid cause for unlawful detainer or forcible entry, the MTC had no jurisdiction over the case.

Q. On appeal, the RTC found that the MTC had no jurisdiction over the case. What should the RTC do with the case?The RTC should follow the mandate of Sec. 8, Rule 40, which provides that if   an

appeal is taken from an order of the lower court dismissing the case without a trial on the merits, the Regional Trial Court may affirm or reverse it, as the case may be.  In case of affirmance and the ground of dismissal is lack of jurisdiction over the subject matter, the Regional Trial Court, if it has jurisdiction thereover, shall try the case on the merits as if the case was originally filed with it.  In case of reversal, the case shall be remanded for further proceedings. If the case was tried on the merits by the lower court without jurisdiction over the subject matter, the Regional Trial Court on appeal shall not dismiss the case if it has original jurisdiction thereof, but shall decide the case in accordance with the preceding section, without prejudice to the admission of amended pleadings and additional evidence in the interest of justice. 

[Crispina Unida v. Heirs of Ambrosio Urban, G.R. No. 155432, June 9, 2005]

FORUM SHOPPING

Q. After petitioner filed with the BPTT two cases for cancellation of trademark registration against respondent, the latter filed an action for infringement against the former before the regular court. When petitioner filed a counterclaim for infringement, respondent alleged that petitioner is guilty of forum shopping. Decide.

An action for infringement or unfair competition, including the available remedies of injunction and damages, in the regular courts can proceed independently or simultaneously with an action for the administrative cancellation of a registered trademark in the BPTTT.  Petitioner’s prior filing of two inter partes cases against the respondent before the BPTTT for the cancellation of the latter’s trademark registrations x x x does not preclude petitioner’s right (as a defendant) to include in its answer (to respondent’s complaint for damages in the civil case) a counterclaim for infringement with a prayer for the issuance of a writ of preliminary injunction.

[Levi Strauss (Phils.), Inc. v. Vogue Traders Clothing Co., G.R. No. 132993, June 29, 2005]

Q. When may the rule on certification against forum shopping be relaxed?

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A liberal construction of the rule on the accomplishment of a certificate of non-forum shopping is allowed in the following cases: (1) where a rigid application will result in manifest failure or miscarriage of justice; (2) where the interest of substantial justice will be served; (3) where the resolution of the motion is addressed solely to the sound and judicious discretion of the court; and (4) where the injustice to the adverse party is not commensurate with the degree of his thoughtlessness in not complying with the procedure prescribed.

[San Miguel Corporation vs. Prospero A. Aballa, G.R. No. 149011.  June 28, 2005]

Q. It is undisputed that two cases involve the same parties and the same property. Civil Case No. 5996 is an action for injunction filed by respondents against petitioner DBP. It seeks to declare the sale of the property to Torrefranca void and to order petitioner DBP "to respect respondents' right of pre-emption;" and maintain the status quo between the parties. Upon the other hand, Civil Case No. 6097 is a petition for the issuance of a writ of possession filed by petitioner DBP, being the purchaser of the lot at the public auction. Does litis pendentia exist under these circumstances?

No. Clearly, the rights asserted and the reliefs sought by the parties in both cases are not identical. Thus, respondents' claim of litis pendentia is unavailing.

For litis pendentia to lie as a ground for a motion to dismiss, the following requisites must be present: (1) that the parties to the action are the same; (2) that there is substantial identity in the causes of action and reliefs sought; and (3) that the result of the first action is determinative of the second in any event and regardless of which party is successful.

[DBP vs. Sps. Wilfredo Gatal, et al., G.R. No. 138567, March 4, 2005]

PARTIES

Q. May a sole proprietorship sue in its own behalf?The rule is that only natural or juridical persons or entities authorized by law may be

parties in a civil case. A sole proprietorship is not vested with juridical personality and cannot sue or file or defend an action. There is no law authorizing sole proprietorship to file a suit. A sole proprietorship does not possess a judicial personality separate and distinct from the personality of the owner of the enterprise.

[Berman Memorial Park, Inc. 1 v. Cheng, G.R. No. 154630. May 6, 2005]

Q. Who are required to be impleaded in an action for partition?Section 1, Rule 69 of the Rules of Court provides that in an action for partition, all

persons interested in the property shall be joined as defendants.Section 1.  Complaint in action for partition of real estate.-  A person having the

right to compel the partition of real estate may do so as in this rule prescribed, setting forth in his complaint the nature and extent of his title and an adequate description of the real estate of which partition is demanded and joining as defendants all the other persons interested in the property.Thus, all the co-heirs and persons having an interest in the property are indispensable

parties; as such, an action for partition will not lie without the joinder of the said parties.  The mere fact that one of the co-owners has repudiated the co-ownership between him and the respondent does not deprive the trial court of jurisdiction to take cognizance of the action for partition, for, in a complaint for partition, the plaintiff seeks, first, a declaration that he is a co-owner of the subject property; and, second, the conveyance of his lawful shares.

Q. What is the effect of not joining an indispensable party?Section 7, Rule 3 of the Rules of Court provides:

SEC. 7. Compulsory joinder of indispensable parties. – Parties in interest without whom no final determination can be had of an action shall be joined either as plaintiffs or defendants.

The joinder of indispensable parties is mandatory. Without the presence of indispensable parties to the suit, the judgment of the court cannot attain real finality.  Strangers to a case are not bound by the judgment rendered by the court.

Q. In an action challenging the validity of the withholding or released of IRA funds, who should be impleaded therein?The Barangay concerned.The IRA funds for which the bank accounts were created belong to the barangays.

The barangays are the only lawful recipients of these funds. Consequently, any transaction or claim involving these funds can be done only through the proper authorization from the barangays as juridical entities.

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The determination, therefore, of whether or not the IRA funds were unlawfully withheld or improperly released to third persons can only be determined if the barangays participated as parties to this action. These questions cannot be resolved with finality without the involvement of the barangays. After all, these controversies involve funds rightfully belonging to the barangays. Hence, the barangays are indispensable parties in this case.

The prescribed legal framework governing the release and disbursement of IRA funds to the respective barangays disabuses from the notion that a barangay chairman, relying solely on his authority as a local executive, has the right to demand physical possession of the IRA funds allocated by the national government to the barangay. The right to demand for the funds belongs to the local government itself through the authorization of their Sanggunian.

[MACLARING M. LUCMAN v. ALIMATAR MALAWI, et al., G.R. No. 159794, December 19, 2006]

Q. What is the effect if after the death of a party-litigant his heirs failed to be substituted in behalf of the deceased?

The rule on substitution is for the protection of the right of every party to due process.  It is to ensure that the deceased party would continue to be properly represented in the suit through the duly appointed legal representative of his estate. Non-compliance with the rule on substitution would render the proceedings and judgment of the trial court infirm because the court acquires no jurisdiction over the persons of the legal representatives or of the heirs on whom the trial and the judgment would be binding. Thus, proper substitution of heirs must be effected for the trial court to acquire jurisdiction over their persons and to obviate any future claim by any heir that he was not apprised of the litigation. . .

[HEIRS OF BERTULDO HINOG V. HON. ACHILLES MELICOR, G.R. No. 140954.  April 12, 2005]

LOCUS STANDI

Q. Under what circumstances may the rule on locus standi be waived?Taxpayers, voters, concerned citizens, and legislators may be accorded standing to

sue, provided that the following requirements are met:(1)  the cases involve constitutional issues; (2)  for taxpayers, there must be a claim of illegal disbursement of public funds or

that the tax measure is unconstitutional;(3)  for voters, there must be a showing of obvious interest in the validity of the

election law in question;(4)  for concerned citizens, there must be a showing that the issues raised are of

transcendental importance which must be settled early; and(5)  for legislators, there must be a claim that the official action complained of

infringes upon their prerogatives as legislators. [David, et al. v. Gloria Macapagal-Arroyo, et al. G.R. No. 171396, etc, May 3, 2006]

JOINDER OF PARTIES

Q. What are the requisites for application of the rule on permissive joinder of parties?

Permissive joinder of parties requires that: (a) the right to relief arises out of the same transaction or series of transactions; (b) there is a question of law or fact common to all the plaintiffs or defendants; and (c) such joinder is not otherwise proscribed by the provisions of the Rules on jurisdiction and venue. [Pantranco North Express, Inc. v. Standard Insurance Co., Inc, G.R. No. 140746, March 16, 2005]

Q. At what time should a party challenge any alleged defects in the joinder of parties?

Then, too, there is the rule that objections to defects in parties should be made at the earliest opportunity, that is, at the moment such defect becomes apparent, by a motion to strike the names of the parties wrongly impleaded. For, objections to misjoinder cannot be raised for the first time on appeal.

[Lapanday Agricultural & Dev’t Corp. v. Estita, G.R. No. 162109, January 21, 2005]At any stage of a judicial proceeding and/or at such times as are just, parties may be

added on the motion of a party or on the initiative of the tribunal concerned. If the plaintiff refuses to implead an indispensable party despite the order of the court, that court may

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dismiss the complaint for the plaintiff's failure to comply with the order. The remedy is to implead the non-party claimed to be indispensable.

[Pamplona Plantation Company, Inc. v. Tinghil, G.R. No. 159121. February 3, 2005.]

Q. Respondents filed a single application for registration of two Lots even though they were not co-owners as they were seeking the individual and separate registration of Lots No. 8422 and 8423, respectively. Petitioner Republic believes that the procedural irregularity committed by the respondents was fatal to their case, depriving the MTC of jurisdiction to proceed with and hear their application for registration of the Subject Lots. Decide.

The procedural lapse committed by the respondents should not affect the jurisdiction of the MTC to proceed with and hear their application for registration of the Subject Lots.

The Property Registration Decree recognizes and expressly allows the following situations: (1) the filing of a single application by several applicants for as long as they are co-owners of the parcel of land sought to be registered; and (2) the filing of a single application for registration of several parcels of land provided that the same are located within the same province. The Property Registration Decree is silent, however, as to the present situation wherein two applicants filed a single application for two parcels of land, but are seeking the separate and individual registration of the parcels of land in their respective names.

Since the Property Registration Decree failed to provide for such a situation, then this Court refers to the Rules of Court to determine the proper course of action.  Section 34 of the Property Registration Decree itself provides that, “[t]he Rules of Court shall, insofar as not inconsistent with the provisions of this Decree, be applicable to land registration and cadastral cases by analogy or in a suppletory character and whenever practicable and convenient.”

Considering every application for land registration filed in strict accordance with the Property Registration Decree as a single cause of action, then the defect in the joint application for registration filed by the respondents with the MTC constitutes a misjoinder of causes of action and parties.  Instead of a single or joint application for registration, respondents Jeremias and David, more appropriately, should have filed separate applications for registration of Lots No. 8422 and 8423, respectively.

Q. Does misjoinder of causes of action and parties involve jurisdictional question?

No. Misjoinder of causes of action and parties do not involve a question of jurisdiction of the court to hear and proceed with the case. They are not even accepted grounds for dismissal thereof. Instead, under the Rules of Court, the misjoinder of causes of action and parties involve an implied admission of the court’s jurisdiction.  It acknowledges the power of the court, acting upon the motion of a party to the case or on its own initiative, to order the severance of the misjoined cause of action, to be proceeded with separately (in case of misjoinder of causes of action); and/or the dropping of a party and the severance of any claim against said misjoined party, also to be proceeded with separately (in case of misjoinder of parties). [Republic v. Herbieto, G.R. No. 156117. May 26, 2005]

Q. What are the requisites for the exercise of the right to file a third-party complaint?

A prerequisite to the exercise of such right is that some substantive basis for a third-party claim be found to exist, whether the basis be one of indemnity, subrogation, contribution or other substantive right. The bringing of a third-party defendant is proper if he would be liable to the plaintiff or to the defendant or both for all or part of the plaintiff’s claim against the original defendant, although the third-party defendant’s liability arises out of another transaction. The defendant may implead another as third-party defendant (a) on an allegation of liability of the latter to the defendant for contribution, indemnity, subrogation or any other relief; (b) on the ground of direct liability of the third-party defendant to the plaintiff; or (c) the liability of the third-party defendant to both the plaintiff and the defendant. There must be a causal connection between the claim of the plaintiff in his complaint and a claim for contribution, indemnity or other relief of the defendant against the third-party defendant. 

The third-party complaint does not have to show with certainty that there will be recovery against the third-party defendant, and it is sufficient that pleadings show possibility of recovery. In determining the sufficiency of the third-party complaint, the allegations in the original complaint and the third-party complaint must be examined. A third-party complaint must allege facts which prima facie show that the defendant is entitled to contribution, indemnity, subrogation or other relief from the third-party defendant.

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Q. What is the test to determine if a third-party complaint is proper?In Capayas v. Court of First Instance, the Court made out the following tests: (1)

whether it arises out of the same transaction on which the plaintiff’s claim is based; or whether the third-party claim, although arising out of another or different contract or transaction, is connected with the plaintiff’s claim; (2) whether the third-party defendant would be liable to the plaintiff or to the defendant for all or part of the plaintiff’s claim against the original defendant, although the third-party defendant’s liability arises out of another transaction; and (3) whether the third-party defendant may assert any defenses which the third-party plaintiff has or may have to the plaintiff’s claim.

[Asian Construction and Dev’t Corp. v. Court of Appeals, G.R. No. 160242. May 17, 2005]

VENUE

Q. How should venue stipulations be construed?Exclusive venue stipulation embodied in a contract restricts or confines parties thereto

when the suit relates to breach of the said contract.  But where the exclusivity clause does not make it necessarily all encompassing, such that even those not related to the enforcement of the contract should be subject to the exclusive venue, the stipulation designating exclusive venues should be strictly confined to the specific undertaking or agreement.  Otherwise, the basic principles of freedom to contract might work to the great disadvantage of a weak party-suitor who ought to be allowed free access to courts of justice.

Restrictive stipulations are in derogation of the general policy of making it more convenient for the parties to institute actions arising from or in relation to their agreements. Thus, the restriction should be strictly construed as relating solely to the agreement for which the exclusive venue stipulation is embodied. Expanding the scope of such limitation on a contracting party will create unwarranted restrictions which the parties might find unintended or worse, arbitrary and oppressive.

Moreover, since convenience is the raison d’etre of the rules on venue, venue stipulation should be deemed merely permissive, and that interpretation should be adopted which most serves the parties’ convenience. Contrawise, the rules mandated by the Rules of Court should govern. [San Miguel Corp. v. Troy Francis L. Monasterio, G.R. No. 151037.  June 23, 2005, QUISUMBING, J.]

Q. Saludo, as plaintiff, filed complaint for damages with the court in Maasin City, Southern Leyte. He alleged in his complaint that he was a member of the House of Representatives and a resident of Ichon, Macrohon, Southern Leyte. However, the appellate court, adopting respondents’ theory, made the finding that petitioner Saludo was not a resident of Southern Leyte at the time of the filing of his complaint and based mainly on the fact that petitioner Saludo’s community tax certificate, indicated in his complaint’s verification and certification of non-forum shopping, was issued at Pasay City. His law office in Pasay City was also taken by the appellate court as negating petitioner Saludo’s claim of residence in Southern Leyte. Has the venue for the action been properly laid?

Saludo’s complaint for damages is a personal action which under Section 2, Rule 4 of the Rules of Courts may be commenced and tried where the plaintiff or any of the principal plaintiffs resides, or where the defendant or any of the principal defendants resides, or in the case of a non-resident defendant where he may be found, at the election of the plaintiff.

There is no dispute that Saludo was the congressman or the representative of the lone district of Southern Leyte at the time of filing of his complaint with the court a quo. As a member of the House of Representatives, Saludo was correctly deemed by the court a quo as possessing the requirements for the said position, including that he was then a resident of the district which he was representing, i.e., Southern Leyte.

Since petitioner Saludo, as congressman or the lone representative of the district of Southern Leyte, had his residence (or domicile) therein as the term is construed in relation to election laws, necessarily, he is also deemed to have had his residence therein for purposes of venue for filing personal actions. Put in another manner, Southern Leyte, as the domicile of petitioner Saludo, was also his residence, as the term is understood in its popular sense. This is because “residence is not domicile, but domicile is residence coupled with the intention to remain for an unlimited time.”

Q. For purposes of determining the proper venue of the action, what does the term “resides” mean?The term “resides” as employed in the rule on venue on personal actions filed with

the courts of first instance means the place of abode, whether permanent or temporary, of

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the plaintiff or the defendant, as distinguished from “domicile” which denotes a fixed permanent residence to which, when absent, one has the intention of returning.

Q. But Saludo has declared in his CTC that he is a resident of Pasay City. Does this disqualify him from filing his complaint in Southern Leyte for improper venue?The fact then that Saludo’s community tax certificate was issued at Pasay City is of

no moment because granting arguendo that he could be considered a resident therein, the same does not preclude his having a residence in Southern Leyte for purposes of venue. A man can have but one domicile for one and the same purpose at any time, but he may have numerous places of residence.

Saludo’s residence in Southern Leyte, the district he was the representing, could be taken judicial notice of. The court a quo cannot be faulted for doing so because courts are allowed “to take judicial notice of matters which are of public knowledge, or are capable of unquestionable demonstration, or ought to be known to judges because of their judicial functions.” Courts are likewise bound to take judicial notice, without the introduction of evidence, of the law in force in the Philippines, including its Constitution.

Saludo’s residence in Southern Leyte could be properly taken judicial notice of by the court a quo. It is bound to know that, under the Constitution, one of the qualifications of a congressman or representative to the House of Representatives is having a residence in the district in which he shall be elected.

Q. Given the fact that Saludo may be allowed to have two residences, does his filing of the complaint in Southern Leyte constitute forum shopping?Saludo’s act of filing his complaint with the court a quo cannot be characterized as a

“specie of forum-shopping” or capricious on his part because, under the rules, as plaintiff, he is precisely given this option. [SALUDO, JR. v. AMERICAN EXPRESS INTERNATIONAL, INC., G.R. No. 159507, April 19, 2006]

Q. Petitioner argues that since he, not his attorney-in-fact Sagario, is the real party in interest, and since he actually resides abroad, the lupon would have no jurisdiction to pass upon the dispute involving real property. Respondent submits, on the other hand, that Section 408, paragraph (f), of the Local Government Code, is qualified by paragraph (c) of Section 409 of the same Code the latter of which provides that “[a]ll disputes involving real property or any interest therein shall be brought in the barangay where the real property is located,” hence, the use of the word “shall” makes it mandatory for the bringing of the dispute before the lupon.  That attorney-in-fact Sagario is a resident of the same barangay as that of respondent brings the matter under the jurisdiction of the lupon, for Sagario, following Section 3 of Rule 3 of the 1997 Rules of Civil Procedure, being a substitute, becomes the real party-in-interest. Is respondent correct? 

Respondent’s submissions do not lie.Where the parties are not actual residents in the same city or municipality or

adjoining barangays, there is no requirement for them to submit their dispute to the lupon as provided for in Section 6 vis a vis Sections 2 and 3 of P.D. 1508 (Katarungang Pambarangay Law).           To construe the express statutory requirement of actual residency as applicable to the attorney-in-fact of the party-plaintiff, as contended by respondent, would abrogate the meaning of a “real party in interest” as defined in Section 2 of Rule 3 of the 1997 Rules of Court vis a vis Section 3 of the same Rule which was earlier quoted but misread and misunderstood by respondent.           In fine, since the plaintiff-herein petitioner, the real party in interest, is not an actual resident of the barangay where the defendant-herein respondent resides, the local lupon has no jurisdiction over their dispute, hence, prior referral to it for conciliation is not a pre-condition to its filing in court.

[Pascual v. Pascual, G.R. No.  157830, November 17, 2005]

PLEADINGS

Q. when is a pleading sufficient in form and when is it sufficient in substance?Form is the methodology used to express rules of practice and procedure. It is the

order or method of legal proceedings. It relates to technical details. It is ordinarily the antithesis of substance. It is an established method of expression or practice. It is a fixed or formal way of proceeding.

A pleading is sufficient in form when it contains the following:1. A Caption, setting forth the name of the court, the title of the action

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indicating the names of the parties, and the docket number which is usually left in blank, as the Clerk of Court has to assign yet a docket number;

2. The Body, reflecting the designation, the allegations of the party’s claims or defenses, the relief prayed for, and the date of the pleading;

3. The Signature and Address of the party or counsel;4. Verification . This is required to secure an assurance that the allegations

have been made in good faith, or are true and correct and not merely speculative;

5. A Certificate of Non-forum Shopping, which although not jurisdictional, the same is obligatory;

6. An Explanation in case the pleading is not filed personally to the Court. Likewise, for pleading subsequent to the complaint, if the same is not served personally to the parties affected, there must also be an explanation why service was not done personally.

Likewise, for all other pleadings, not initiatory in nature, there must be:A Proof of Service, which consists in the written admission of the party

served, or the official return of the server, or the affidavit of the party serving, containing a full statement of the date, place and manner of service. If the service is by ordinary mail, proof thereof shall consist of an affidavit of the person mailing. If service is by registered mail, proof shall be made by such affidavit and the registry receipt issued by the mailing office.

In case a party is represented by counsel de parte, additional requirements that go into the form of the pleading should be incorporated, viz.:

1. The Roll of Attorney’s Number;2. The Current Professional Tax Receipt Number; and3. The IBP Official Receipt No. or IBP Lifetime Membership Number.4. MCLE Compliance or Exemption Certificate Number and Date of Issue (effective

January 1, 2009)X x x x

Substance is that which is essential and is used in opposition to form. It is the most important element in any existence, the characteristic and essential components of anything, the main part, the essential import, and the purport. It means not merely subject of act, but an intelligible abstract or synopsis of its material and substantial elements, though it may be stated without recital of any details. It goes into matters which do not sufficiently appear or prejudicially affect the substantial rights of parties who may be interested therein and not to mere informalities.

As used in reference to substance of common-law actions, substance comprehends all of the essential or material elements necessary to sufficiently state a good cause of action invulnerable to attack by general demurrer.

Substance is one which relates to the material allegations in the pleading. It is determinative of whether or not a cause of action exists. It is the central piece, the core, and the heart constituting the controversy addressed to the court for its consideration. It is the embodiment of the essential facts necessary to confer jurisdiction upon the court.

Q. In an action for mandamus, the averments in the complaint state that plaintiff aimed to compel respondent to issue a deed of sale and the corresponding title over the property awarded to plaintiff. Relying on the provisions of Rule 65 Section 3 of the 1997 Rules of Civil Procedure, the trial court dismissed the action on the ground that in the title or caption of the petition there was no reference to any law which respondent NHA, by reason of its office, trust or station, is specifically enjoined as a duty to perform. It declared that there was no allegation in the petition that respondent is unlawfully excluding petitioners from using or enjoying any right or office which said petitioners are entitled to. Is the dismissal of the action valid?

Although the complaint was captioned as Mandamus, petitioners’ averments, as well as the relief sought, called for an action for specific performance. x x x

Evidently, the action commenced by petitioners before the trial court, although designated as mandamus, is in reality an action to perform a specific act. The averments of the complaint are clear. The essential facts are sufficiently alleged as to apprise the court of the nature of the case. The relief sought to be obtained aims to compel respondent to issue a deed of sale and the corresponding title over the property awarded to plaintiff. Thus, the complaint is sufficient in substance.

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The designation or caption is not controlling, more than the allegations in the complaint, for it is not even an indispensable part of the complaint.

There is no need to make reference to any law which respondent by reason of its office is enjoined as a duty to perform. Respondent’s duty arose from its contractual obligation under the “Land for the Landless Program.”

The trial court is reminded that the caption of the complaint is not determinative of the nature of the action. The caption of the pleading should not be the governing factor, but rather the allegations in it should determine the nature of the action, because even without the prayer for a specific remedy, the courts may nevertheless grant the proper relief as may be warranted by the facts alleged in the complaint and the evidence introduced. [Munsalud v. NHA, G.R. No. 167181, December 23, 2008, REYES, R.T., J.]

AMENDED AND SUPPLEMENTAL PLEADINGS

Q. Petitioner objects to the admission of a supplemental complaint which introduced causes of action which are "entirely new, totally independent, separate and distinct" from those of the original complaint. Rule on the objection.

As its very name denotes, a supplemental pleading only serves to bolster or adds something to the primary pleading. A supplement exists side by side with the original. It does not replace that which it supplements. Moreover, a supplemental pleading assumes that the original pleading is to stand and that the issues joined with the original pleading remained an issue to be tried in the action. It is but a continuation of the complaint. Its usual office is to set up new facts which justify, enlarge or change the kind of relief with respect to the same subject matter as the controversy referred to in the original complaint.

The purpose of the supplemental pleading is to bring into the records new facts which will enlarge or change the kind of relief to which the plaintiff is entitled; hence, any supplemental facts which further develop the original right of action, or extend to vary the relief, are available by way of supplemental complaint even though they themselves constitute a right of action.

The parties may file supplemental pleadings only to supply deficiencies in aid of an original pleading, but not to introduce new and independent causes of action. . . . When the cause of action stated in the supplemental complaint is different from the causes of action mentioned in the original complaint, the court should not admit the supplemental complaint. However, a broad definition of causes of action should be applied.

[Planters Devt Bank v. LZK Holdings and Devt Corp., G.R. No. 153777. April 15, 2005]

Q. The original complaint for partition was amended through a supplemental pleading, whereby the plaintiff sought the rescission of a donation inter vivos. The CA pointed out that the said action for rescission should have been filed by the petitioners independently of the proceedings in the action for partition because the action for rescission could not be lumped up with the action for partition through a mere supplemental pleading. Is the CA correct?

A supplemental pleading may raise a new cause of action as long as it has some relation to the original cause of action set forth in the original complaint. Section 6, Rule 10 of the Rules of Court provides that upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit him to serve a supplemental pleading setting forth transactions, occurrences or events which have happened since the date of the pleading sought to be supplemented. The adverse party may plead thereto within ten (10) days from notice of the order admitting the supplemental pleading.

. . . a supplemental pleading may properly allege transactions, occurrences or events which had transpired after the filing of the pleading sought to be supplemented, even if the said supplemental facts constitute another cause of action.

While a matter stated in a supplemental complaint should have some relation to the cause of action set forth in the original pleading, the fact that the supplemental pleading technically states a new cause of action should not be a bar to its allowance but only a matter that may be considered by the court in the exercise of its discretion. In such cases, we stressed that a broad definition of “cause of action” should be applied.

Here, the issue as to the validity of the donation inter vivos is a new cause of action that occurred after the filing of the original complaint. However, the petitioners’ prayer for the rescission of the said donation inter vivos in their supplemental pleading is germane to, and is in fact, intertwined with the cause of action in the partition case. Lot No. 4709 and half of Lot No. 4706 [subject of donation inter vivos] are included among the properties that were sought to be partitioned. The petitioners’ supplemental pleading merely amplified the original cause of action, on account of the gratuitous conveyance of Lot No. 4709 and half of Lot No. 4706 after the filing of the original complaint and prayed

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for additional reliefs, i.e., rescission. Indeed, the petitioners claim that the said lots form part of the estate of Spouses Baylon, but cannot be partitioned unless the gratuitous conveyance of the same is rescinded. Thus, the principal issue raised by the petitioners in their original complaint remained the same.

[Ada v. Baylon, G.R. No. 182435, 13 August 2012]

Q. When the Court of Appeals dismissed the petition on the ground that not all the petitioners signed the verification certification on non-forum shopping, petitioners filed an Amended Petition within the 60-day reglementary period for the filing of a petition for certiorari under Rule 65. The Court of Appeals subsequently denied the motion, holding that petitioners merely substantially complied with the requirements for the verification and certification of non-forum shopping. Is the dismissal correct?

No. The new certification had long been filed with and submitted to the Court of Appeals, as in fact, the same had been filed with the said Court even before the issuance of its Resolution; hence, there was no “subsequent compliance” to speak of because the petitioners filed the Amended Petition as a matter of right, the same having been filed well within the 60-day period provided by the Rules. 

Under section 2 of Rule 10, a party is given the right to file an amended pleading within the time and upon the conditions specified and without the necessity of obtaining leave of court since a party may amend his pleading once, whether a new cause of action or change in theory is introduced, as a matter of right at any time before a responsive pleading is served. Amendment of pleadings is favored and should be liberally allowed in the furtherance of justice in order to determine every case as far as possible on its merits without regard to technicalities. This principle is generally recognized in order that the real controversies between the parties are presented, their rights determined and the case decided on the merits without unnecessary delay to prevent circuity of action and needless expense.

[Andres v. Justice Secretary, G.R. No. 150869, June 9, 2005]

MANNER OF MAKING ALLEGATIONS IN PLEADINGS

Q. How must specific denials be averred in the pleading? A denial is not specific simply because it is so qualified by the defendant. A general

denial does not become specific by the use of the word “specifically.” When the matters of whether the defendant alleges having no knowledge or information sufficient to form a belief, are plainly and necessarily within the defendant’s knowledge, his alleged ignorance or lack of information will not be considered as a specific denial. In one case, it was held that when a respondent makes a “specific denial” of a material allegation of the petition without setting forth the substance of the matters relied upon to support its general denial, when such matters were plainly within its knowledge and the defendant could not logically pretend ignorance as to the same, said defendant fails to properly tender an issue.

Petitioners’ “specific denial” in this case is ineffective and amounts to an admission pursuant to Rule 8, Sec. 11 of the Rules of Court. Although petitioners put their unmistakably sparse denial of respondent’s allegations relative to the execution of the deed of sale in its favor and its possession of the Owner’s Copy under the heading “SPECIFIC DENIALS” and anteceding it with the adverb “specifically,’ the same cannot function as an operative denial within the purview of the Rules.

[FELIX CAMITAN v. THE HONORABLE COURT OF APPEALS, G.R. No. 128099, December 20, 2006]

Q. What is the effect of the failure of the party to verify the pleading when it is so required by the rules to be verified?

The Court has consistently held that the requirement regarding verification of a pleading is formal, not jurisdictional. Such requirement is simply a condition affecting the form of the pleading, non-compliance with which does not necessarily render the pleading fatally defective. Verification is simply intended to secure an assurance that the allegations in the pleading are true and correct and not the product of the imagination or a matter of speculation, and that the pleading is filed in good faith. The court may order the correction of the pleading if verification is lacking or act on the pleading although it is not verified, if the attending circumstances are such that strict compliance with the rules may be dispensed with in order that the ends of justice may thereby be served.

[BPI v. CA, G.R. No. 170625, October 17, 2008]

Q. NOPA justifies its verification based on knowledge and belief citing cases promulgated before 1 May 2000, when Section 4 of Rule 7 was amended by A.M.

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No. 00-2-10. Before the amendment, said Section 4 stated: Except when otherwise specifically required by law or rule, pleadings need not be under oath, verified or accompanied by affidavit. A pleading is verified by an affidavit that the affiant has read the pleading and that the allegations therein are true and correct of his knowledge and belief. Is NOPA’s justification correct?

As amended, said Section 4 now states: A pleading is verified by an affidavit that the affiant has read the pleading and that the allegations therein are true and correct of his personal knowledge or based on authentic records. Clearly, the amendment was introduced in order to make the verification requirement stricter, such that the party cannot now merely state under oath that he believes the statements made in the pleading. He cannot even merely state under oath that he has knowledge that such statements are true and correct. His knowledge must be specifically alleged under oath to be either personal knowledge or at least based on authentic records.

Unlike, however, the requirement for a Certification against Forum Shopping wherein failure to comply with the requirements is not curable by amendment of the complaint or other initiatory pleading, Section 4 of Rule 7, as amended, states that the effect of the failure to properly verify a pleading is that the pleading shall be treated as unsigned. An unsigned pleading produces no legal effect. However, the court may, in its discretion, allow such deficiency to be remedied if it shall appear that the same was due to mere inadvertence and not intended for delay. Counsel who deliberately files an unsigned pleading, or signs a pleading in violation of this Rule, or alleges scandalous or indecent matter therein, or fails to promptly report to the court a change of his address, shall be subject to appropriate disciplinary action.

A pleading, therefore, wherein the Verification is merely based on the party’s knowledge and belief produces no legal effect, subject to the discretion of the court to allow the deficiency to be remedied. In the case at bar, the Court of Appeals, in the exercise of this discretion, refused to allow the deficiency in the Verification to be remedied, by denying NOPA’s Motion for Reconsideration with attached Amended Petition for Certiorari.

Q. May an appellate court reverse the exercise of discretion by a lower court?

Yes it can, but only in exceptional cases when there is grave abuse of this discretion or adverse effect on the substantial rights of a litigant. The general rule, therefore, and indeed one of the fundamental principles of appellate procedure is that decisions of a trial court which "lie in discretion" will not be reviewed on appeal, whether the case be civil or criminal at law or in equity.

There being no "positive law or fixed rule" to guide the judge in the court below in such cases, there is no "positive law or fixed rule" to guide a court of appeal in reviewing his action in the premises, and such courts will not therefore attempt to control the exercise of discretion by the court below unless it plainly appears that there was "inconsiderate action" or the exercise of mere "arbitrary will," or in other words that his action in the premises amounted to "an abuse of discretion." But the right of an appellate court to review judicial acts which lie in the discretion of inferior courts may properly be invoked upon a showing of a strong and clear case of abuse of power to the prejudice of the appellant, or that the ruling objected to rested on an erroneous principle of law not vested in discretion.

[Negros Oriental Planters Assn, Inc v. Presiding Judge of RTC-Negros Occidental, Branch 52, Bacolod City, G.R. No. 179878, December 24, 2008]

Q. The OSG alleges that the petition is defectively verified, being based on petitioner’s “personal knowledge and belief and/or authentic records,” and having been “acknowledged” before a notary public who happens to be petitioner’s father, contrary to the Rules of Court and the Rules on Notarial Practice of 2004, respectively. Is the contention correct?

This technicality deserves scant consideration where the question at issue, as in this case, is one purely of law and there is no need of delving into the veracity of the allegations in the petition, which are not disputed at all by respondents. The purpose of verification is simply to secure an assurance that the allegations of the petition or complaint have been made in good faith; or are true and correct, not merely speculative. This requirement is simply a condition affecting the form of pleadings, and non-compliance therewith does not necessarily render it fatally defective. Indeed, verification is only a formal, not a jurisdictional requirement. In the same vein, the Court brushes aside the defect, insofar as the petition is concerned, of a notarial act performed by one who is disqualified by reason of consanguinity, without prejudice to any administrative complaint that may be filed against the notary public.

[Topacio v. Ong, G.R. No. 179895, December 18, 2008]

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Q. Petitioner avers that the allegations in his pleading were based on authentic records. He argues that such was substantial compliance with the rule on verification because there was no further need for him to state in the verification that the allegations were also based on his personal knowledge, and to require him to do so would be contrary to law. Rule on the contention.

The veracity of the allegations in a pleading may be affirmed based on either one's own personal knowledge or on authentic records, or both, as warranted. The use of the preposition "or" connotes that either source qualifies as a sufficient basis for verification and, needless to state, the concurrence of both sources is more than sufficient. Bearing both a disjunctive and conjunctive sense, this parallel legal signification avoids a construction that will exclude the combination of the alternatives or bar the efficacy of any one of the alternatives standing alone.

The range of permutation is not left to the pleader's liking, but is dependent on the surrounding nature of the allegations which may warrant that a verification be based either purely on personal knowledge, or entirely on authentic records, or on both sources.

“Authentic records” as a basis for verification bear significance in petitions wherein the greater portions of the allegations are based on the records of the proceedings in the court of origin and/or the court a quo, and not solely on the personal knowledge of the petitioner.

Whether the verification should be based on the pleader’s personal belief or on authentic records, or both, depends largely on the nature of the allegations. It is not a matter of simple preference. Otherwise, the rationale of the rule will be trivialized and its resoluteness diminished.

The requirement is not merely technical for it served a purpose that is relevant to the nature of the action. In an appeal by petition for review under Rule 43 of the Rules of Court, the petition may be resolved on the basis of the pleadings before the appellate court without the necessity of elevating the records from the quasi-judicial officer, tribunal or body where the case began. This is in contrast with an appeal by writ of error under Rule 41 according to which the appellate court may not act on the appeal until after the elevation of the records from the lower court.

It was important therefore for petitioner to have stated in his verification that (1) his allegations in the petition were true and correct of his personal knowledge and (2) if the petition relied on documents and records attached to the petition, that his allegations were based on records whose authenticity he warranted.

[Marohomsalic v. Cole, G.R. No. 169918, February 27, 2008]

SUMMONS

Q. In its Resolution No. 07-300, the HRET justified its service of summons by registered mail in this wise: “In cases filed before the Tribunal involving distant legislative districts and provinces, it has been its practice to serve the summons through registered mail, it being impracticable to send the same by personal service to protestees or respondents who reside in said far provinces. Since protestee resides in Sultan Kudarat, summons was served to him through registered mail.” Is HRET’s summons by registered mail valid?

No. Indeed in ordinary civil cases, personal service of summons is preferred and resort to substituted service not only must be fully justified but also comply strictly with requirements of the Rules of Court for substituted service.

Summons by registered mail is not among the modes of service under Rule 14 of the Revised Rules of Court. Besides, under Section 5 of aforesaid rule, the summons "may be served by the sheriff or other proper officer of the province in which the service is to be made, or for special reasons by any person especially authorized by the judge of the court issuing the summons." The postmaster of, not being a sheriff or court officer, or a person authorized by the court to serve the summons cannot validly serve the summons.

Indeed, if in ordinary civil cases (which involve only private and proprietary interests) personal service of summons is preferred and service by registered mail is not allowed on jurisdictional and due process grounds, with more reason should election cases (which involve public interest and the will of the electorate) strictly follow the hierarchy of modes of service of summons under the Rules of Court.

The Court sees no reason why the HRET cannot make use of its own process servers to personally serve the summons, or alternatively, delegate the matter to the process server of a court with territorial jurisdiction over the place of residence of the respondent/protestee in the election case, at the expense of the petitioner/protestant. Considering that the proper service of summons on the respondent/protestee is a jurisdictional requirement and goes to

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heart of due process, we cannot allow service of summons by a method not sanctioned by the HRET Rules in relation to the Rules of Court.

[Mangudadatu v. HRET, G.R. No. 179813, December 18, 2008, En banc]

Q. Explain the doctrine of substantial compliance regarding service of summons.The doctrine of substantial compliance requires that for there to be a valid service of

summons, actual receipt of the summons by the defendant through the person served must be shown. We further require that where there is substituted service, there should be a report indicating that the person who received the summons in the defendant’s behalf was one with whom petitioner had a relation of confidence ensuring that the latter would receive or would be notified of the summons issued in his name. [Pablo B. Casimina vs. Hon. Emilio B. Legaspi, et al., G.R. No. 147530.  June 29, 2005, CORONA, J.]

Q. May liberality of the rules be invoked to justify non-compliance with these rules?

NO. Modes of service of summons must be strictly followed in order that the court may acquire jurisdiction over the person of the defendant. The purpose of this is to afford the defendant an opportunity to be heard on the claim against him. If the summons intended for defendant is invalid, the trial court does not acquire jurisdiction over the person of the defendant and could not render a valid judgment against him. [Pacaña-Gonzales v. CA, G.R. No. 150908. January 21, 2005]

Q. There was no valid proof of service of summons, but the defendant appeared in court where he, upon motion by the plaintiff, was declared in default. Is the court’s act valid?

The Rules of Court provides that a defendant's voluntary appearance in an action shall be equivalent to service of summons. Further, the lack of jurisdiction over the person of the defendant may be waived either expressly or impliedly. When a defendant voluntarily appears, he is deemed to have submitted himself to the jurisdiction of the court. If he does not wish to waive this defense, he must do so seasonably by motion, and object thereto.

[Gonzales v. Balikatan Kilusang Bayan Sa Pananalapi, Inc., G.R. No. 150859. March 28, 2005]

Q. How should the summons in an ejectment case be served upon the defendant therein?

In an ejectment case being an action in personam, jurisdiction over the person of the defendant is necessary for the court to validly try and decide the case. Jurisdiction over the person of a resident defendant who does not voluntarily appear in court can be acquired by personal service of summons as provided under Section 7, Rule 14 of the Rules of Court.   If he cannot be personally served with summons within a reasonable time, substituted service may be made in accordance with Section 8 of said Rule.  If he is temporarily out of the country, any of the following modes of service may be resorted to: (a) substituted service set forth in Section 8; (2) personal service outside the country, with leave of court; (3) service by publication, also with leave of court; or (4) any other manner the court may deem sufficient.

Q. Petitioner asserts that since her action of forcible entry against the respondent was in personam, summons may be served on the respondent by substituted service because the respondent was in Oslo, Norway, having left the Philippines on February 17, 1999. The Sheriff’s Return of Service showed that as of April 5, 1999, the house where the Sheriff found respondent’s brother, Oscar Layno, a person of suitable age and discretion, was that of the respondent. It turned out that the occupant of the house was a lessor, Eduardo Gonzales, and that Oscar Layno was in the premises only to collect the rentals from him. Petitioner contends that the Sheriff is presumed to have performed his duty of properly serving the summons on the respondent by substituted service. Was respondent validly served with summons?

No. The service of the summons on a person at a place where he was a visitor is not considered to have been left at the residence or place or abode, where he has another place at which he ordinarily stays and to which he intends to return. Hence, the respondent was not validly served with summons and the MTC failed to acquire jurisdiction over the person of the respondent; as such, whatever decision of the MTC in said case is null and void.

Strict compliance with the mode of service is required in order that the court may acquire jurisdiction over the person of the defendant. The statutory requirement of substituted service must be followed faithfully and strictly and any substituted service other than that authorized by the statute is rendered ineffective. The pertinent facts and

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circumstances attendant to the service of summons must be stated in the proof of service or Officer’s Return; otherwise, any substituted service made in lieu of personal service cannot be upheld. This is necessary because substituted service is in derogation of the usual method of service.  It is a method extraordinary in character and hence may be used only as prescribed and in the circumstances authorized by statute.  x x x Failure to faithfully, strictly, and fully comply with the requirements of substituted service renders said service ineffective.

It has been ruled that the term “dwelling house” or “residence” are generally held to refer to the time of service; hence, it is not sufficient to leave the summons at the former’s dwelling house, residence or place of abode, as the case may be.  Dwelling house or residence refers to the place where the person named in the summons is living at the time when the service is made, even though he may be temporarily out of the country at the time.  It is, thus, the service of the summons intended for the defendant that must be left with the person of suitable age and discretion residing in the house of the defendant.  Compliance with the rules regarding the service of summons is as much important as the issue of due process as of jurisdiction.

[FILOMENA DOMAGAS v. VIVIAN LAYNO JENSEN, G.R. No. 158407.  January 17, 2005]

MOTION

Q. State the three courses of action the court may take in resolving a motion to dismiss an action.

Sec. 3, Rule 16 of the Rules provides: Sec. 3. Resolution of motion. — After the hearing, the court may

dismiss the action or claim, deny the motion or order the amendment of the pleading.

The court shall not defer the resolution of the motion for the reason that the ground relied upon is not indubitable.

In every case, the resolution shall state clearly and distinctly the reasons therefor.

Under this provision, there are three (3) courses of action which the trial court may take in resolving a motion to dismiss, i.e., to grant, to deny, or to allow amendment of the pleading. Deferment of the resolution of a motion to dismiss if the ground relied upon is not indubitable is now disallowed in view of the provision requiring presentation of all available arguments and evidence. Thus, there is no longer any need to defer action until the trial as the evidence presented, and such additional evidence as the trial court may require, would already enable the trial court to rule upon the dubitability of the ground alleged. [Lu Ym v. Nabua, G.R. No. 161309. February 23, 2005.]

Q. Petitioners contend that when the respondent orally moved in open court for the declaration of default due to petitioners' failure to file an answer to the complaint despite their appearance in court, they were not notified thereof in contravention of the Revised Rules of Civil Procedure which states that "[i]f the defending party fails to answer within the time allowed therefor, the court shall, upon motion of the claiming party with notice to the defending party, and proof of such failure, declare the defending party in default." Rule on the contention.

Petitioners ought to be guided by Rule 15, Section 2, which provides that "[a]ll motions shall be in writing except those made in open court or in the course of a hearing or trial." Moreover, every written motion shall be set for hearing by the applicant, with the exception of motions which the court might act upon without prejudicing the rights of the adverse party. As a general rule, a notice is required where a party has a right to resist the relief sought by the motion. Principles of natural justice demand that his right should not be affected without an opportunity to be heard. Such, however, does not appear to be the situation here.

In this case, the motion to declare petitioners in default was made in open court and in their presence. By their presence, notice to them is fairly constituted. What the law really eschews is not the lack of previous notice of hearing but the lack of opportunity to be heard. Petitioners were not without such opportunity to contest the motion for and the order of default then and there at the trial court.[Gonzales v. Balikatan Kilusang Bayan Sa Pananalapi, Inc., G.R. No. 150859. March 28, 2005]

Q. Distinguish "the lack of legal capacity to sue" from "the lack of personality to sue".

Among the grounds for a motion to dismiss under the Rules of Court are lack of legal capacity to sue and that the complaint states no cause of action. Lack of legal capacity to

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sue means that the plaintiff is not in the exercise of his civil rights, or does not have the necessary qualification to appear in the case, or does not have the character or representation he claims. On the other hand, a case is dismissible for lack of personality to sue upon proof that the plaintiff is not the real party-in-interest, hence grounded on failure to state a cause of action. The term "lack of capacity to sue" should not be confused with the term "lack of personality to sue." While the former refers to a plaintiff's general disability to sue, such as on account of minority, insanity, incompetence, lack of juridical personality or any other general disqualifications of a party, the latter refers to the fact that the plaintiff is not the real party-in-interest. Correspondingly, the first can be a ground for a motion to dismiss based on the ground of lack of legal capacity to sue; whereas the second can be used as a ground for a motion to dismiss based on the fact that the complaint, on the face thereof, evidently states no cause of action.

MODE OF SERVICE

Q. The Court of Appeals dismissed outright petitioners’ petition for review on the sole technical ground that it does not contain the affidavit of service as required by Section 11 in relation to Section 13, Rule 13 of the 1997 Rules of Civil Procedure, as amended. Petitioners promptly filed a motion for reconsideration, readily acknowledging their procedural lapse and attaching therewith the required affidavit of service. The affidavit of service shows that the petition for review was filed with the Court of Appeals in Manila through registered mail. As to the service of copies of the petition, the same was personally served on respondents’ counsel and the RTC in Cagayan de Oro City. Was there substantial compliance with the rule under consideration?

Yes. The mode of filing by registered mail is permitted under Section 11 of Rule 13 since it s obviously impractical for petitioners and their counsel, who are all residents of Cagayan de Oro City, to personally file their petition in Manila. Hence, the affidavit of service is a substantial compliance with the requirement under Section 11.  It bears stressing that petitioners’ procedural lapse in not appending such affidavit to their petition did not in any way thwart the laudable objective of Section 11, i.e., to quell the lawyers’ unethical practice of deliberately resorting to delays in the filing and service of pleadings, motions and other papers.  Indeed, the evil sought to be prevented by the new rule is absent here.  Also, there is absolutely no indication from petitioners’ omission that they demonstrated their contempt for the Rules.

The discretionary power of the court must be exercised properly and reasonably, taking into account the following factors: (1) the practicability of personal service; (2) the importance of the subject matter of the case or the issues involved therein; and (3) the prima facie merit of the pleading sought to be expunged for violation of Section 11.

To clarify, under Section 11, Rule 13 of the Rules of Civil Procedure, personal service and filing is the general rule, and resort to other modes of service and filing, the exception. Henceforth, whenever personal service or filing is practicable, in light of the circumstances of time, place and person, personal service or filing is mandatory.  Only when personal service or filing is not practicable may resort to other modes be had, which must then be accompanied by a written explanation as to why personal service or filing was not practicable to begin with.  In adjudging the plausibility of an explanation, a court shall likewise consider the importance of the subject matter of the case or the issues involved therein, and the prima facie merit of the pleading sought to be expunged for violation of Section 11. 

[Ello v. Court of Appeals, G.R. No. 141255, June 21, 2005]

Q. Marohomsalic assumed that the CA would understand that, because of the distance between Manila and South Cotabato, the petition could not be filed personally. He thus considers as grave abuse of discretion the CA’s dismissal of his petition on technical grounds, namely, the absence of a written explanation as to why his petition was filed via registered mail instead of personally.

Indeed the action of the CA was predicated on legal, albeit “technical,” grounds. The CA, however, was correct in holding that under Section 11, Rule 13 of the Rules of Court, personal service of petitions and other pleadings is the general rule while resort to the other modes of service and filing is the exception. When recourse is made to the exception, a written explanation of why the service and the filing are not done personally becomes indispensable. If no explanation is offered to justify resorting to the other modes ( i.e., the exception), the discretionary power of the court to expunge the pleading comes into play. [Marohomsalic v. Cole, G.R. No. 169918, February 27, 2008]

Q. Petitioner submits that the dismissal by the Honorable Court of Appeals of his

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Petition for Certiorari on purely technical ground grossly violated his right to due process and unduly deprived him of the opportunity to establish the merits of his petition.

Petitioner is misinformed. Section 11, Rule 13 of the Rules of Court was crafted not to be just some silly rule the

parties can ignore when convenient, and the courts disregard when expedient. The rule was designed to serve a very real purpose: to ensure that pleadings, motions and other papers reach the courts directly and promptly, so that they may be acted upon expeditiously; and to forestall the deplorable practice among some lawyers of serving or filing pleadings by mail to catch their opposing counsel off-guard. Thus, these lawyers leave the opposing counsel with little or no time to respond accordingly; or, upon receiving notice from the post office of the registered parcel containing the pleading or other papers from the adverse party, the latter may unduly procrastinate before claiming said parcel -- or, worse, not claim it at all -- and thereby cause undue delay in the disposition of such pleading or other papers.

Under said rule, personal service and filing of pleadings and other papers is a mandatory mode, especially when the peculiar circumstances of the case -- such as the proximity of the office of a party's counsel to the court or to the office of the opposing party's counsel -- make such mode practicable. If another mode is employed, there must be attached to the pleading or paper, a written explanation of such recourse. Omission of a written explanation will give the court cause to expunge the pleading or paper not personally served or filed. [Cadornigara v. NLRC, G.R. No. 158073, November 23, 2007]

Q. When may the lack of written explanation be excused?Ordinarily, the exercise of discretion by the court will not be overruled on appeal,

except when: a) on the face of the affidavit of service, it is patent that personal service and filing is impractical, such as when the parties or their counsels live in different provinces; b) there is prima facie merit in the pleading or paper expunged; and c) the issue raised therein is of substantial importance. Under these exceptional circumstances the lack of written explanation may be excused and the pleading or paper served or filed, accepted. [Cadornigara v. NLRC, G.R. No. 158073, November 23, 2007]

//Considering the prima facie merit of the pleading involving the issues whether the petitioners’ house is a public nuisance; whether the subject house is constructed on an abandoned road; and whether the alleged nuisance is specially injurious to respondent; and, considering further the fact that the MTC and the RTC decisions are conflicting, the CA had valid grounds to refrain from dismissing the appeal solely on technical grounds.

[Peñoso v. Dona, G.R. No. 154018, April 3, 2007]

PRE-TRIAL

Q. Is the court justified in dismissing the case for failure of plaintiff to move for the pre-trial of the case?

The dismissal of respondent’s complaint is too severe a sanction for her failure to file a motion to set the case for pre-trial.  It must be pointed out that respondent prosecuted her action with utmost diligence and with reasonable dispatch since filing the complaint – she filed an opposition to petitioners’ motion to dismiss the complaint; a comment to petitioners’ motion for reconsideration of the December 4, 2000 Order of the trial court; and an Answer to Counterclaim of petitioners. When the trial court issued an order dismissing the case, respondent filed without delay a motion for reconsideration; and upon its denial, she immediately filed a Notice of Appeal. Moreover, contrary to petitioners’ claim that respondent was silent for one year since she filed her Answer to Counterclaim until the trial court’s dismissal order, records show that between said period, both parties and the trial court were threshing out petitioners’ motion for reconsideration of the December 4, 2000 Order.

While “heavy pressures of work” was not considered a persuasive reason to justify the failure to set the case for pre-trial in Olave v. Mistas, however, unlike the respondents in the said case, herein respondent never failed to comply with the Rules of Court or any order of the trial court at any other time. Failing to file a motion to set the case for pre-trial was her first and only technical lapse during the entire proceedings. Neither has she manifested an evident pattern or a scheme to delay the disposition of the case nor a wanton failure to observe the mandatory requirement of the rules. Accordingly, the ends of justice and fairness would best be served if the parties are given the full opportunity to litigate their claims and the real issues involved in the case are threshed out in a full-blown trial. Besides, petitioners would not be prejudiced should the case proceed as they are not stripped of any affirmative defenses nor deprived of due process of law.

A.M. No. 03-1-09-SC or the new Guidelines To Be Observed By Trial Court Judges And Clerks Of Court In The Conduct Of Pre-Trial And Use Of Deposition-Discovery Measures, which took effect on August 16, 2004, aims to abbreviate court proceedings, ensure prompt

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disposition of cases and decongest court dockets, and to further implement the pre-trial guidelines laid down in Administrative Circular No. 3-99 dated January 15, 1999. A.M. No. 03-1-09-SC states that: “Within five (5) days from date of filing of the reply, the plaintiff must promptly move ex parte that the case be set for pre-trial conference. If the plaintiff fails to file said motion within the given period, the Branch COC shall issue a notice of pre-trial.” As such, the clerk of court of Branch 17 of the Regional Trial Court of Malolos should issue a notice of pre-trial to the parties and set the case for pre-trial.

[Polanco v. Cruz, G.R. No. 182426, February 13, 2009]

Q. On November 19, 1996, respondent Ernesto Rigor filed with the Regional Trial Court (RTC), Branch 22, Malolos, Bulacan a complaint for sum of money with damages against petitioner Dr. Emmanuel Vera. During the pre-trial conference, the parties failed to reach an amicable settlement, hence, the trial court terminated the pre-trial and set the case for initial hearing on March 6, 1997 at nine o'clock in the morning. However, upon motion of respondent's counsel, the trial was reset to May 20, 1997, then to July 17, 1997. During the hearing on this date, the trial court, upon manifestation of petitioner's counsel, realized that respondent failed to file a pre-trial brief. On July 28, 1997, petitioner filed a motion to dismiss the complaint raising as ground respondent's failure to file a pre-trial brief. On September 30, 1997, the trial court issued a Resolution granting the motion and dismissing the complaint. Respondent filed a motion for reconsideration but it was denied by the trial court in a Resolution dated February 4, 1998. Upon appeal by respondent, the Court of Appeals, on July 25, 2000, rendered a Decision in his favor. Petitioner filed a motion for reconsideration but it was denied in a Resolution dated August 14, 2000. Hence, this petition for certiorari filed under Rule 65 of the 1997 Rules of Civil Procedure, as amended. Was the ruling of the Court of Appeals correct?

Section 6, Rule 18 of the 1997 Rules of Civil Procedure, as amended, provides that the parties shall file with the court and serve on the adverse party, in such manner as shall ensure their receipt thereof at least three (3) days before the date of the pre-trial, their respective pre-trial briefs. Failure to file the pre-trial brief shall have the same effect as failure to appear at the pre-trial. Corollarily, Section 5 of the same Rule states: “The failure of the plaintiff to appear when so required pursuant to the next preceding section shall be cause for dismissal of the action. The dismissal shall be with prejudice, unless otherwise ordered by the court. Clearly, the above Rule mandatorily requires the parties to seasonably file their briefs and failure to do so shall be cause for the dismissal of the action.

As mentioned earlier, respondent did not file a pre-trial brief in violation of the above Rule. But what surprised us is the fact that the trial court conducted the pre-trial conference on January 21, 1997 despite the lack of respondent's pre-trial brief and thereafter terminated the same. It was only on July 17, 1997 during the initial hearing (after two postponements) that the trial judge came to know, after being apprised by petitioner's counsel, that respondent did not file a pre-trial brief.

While the trial judge erroneously proceeded with the trial conference, the fact remains that respondent did not file a pre-trial brief. Pursuant to Section 6, Rule 18 quoted above, such failure is a cause for dismissal of the action. We have to emphasize that pre-trial and its governing rules are not technicalities which the parties may ignore or trifle with.

Obviously, since respondent did not file a pre-trial brief, it follows that the trial judge failed to conduct the pre-trial conference in accordance with Rule 18. In fact, he did not issue the required pre-trial order stating the various matters which should have been included therein. Indeed, the trial judge showed his ignorance of the Rules, specifically Rule 18. And by failing to take appropriate steps to enable the parties reach an amicable settlement, the trial judge showed his gross inefficiency.

In conclusion, we rule that the Court of Appeals did not commit grave abuse of discretion in taking cognizance of respondent's appeal. However, it erred in reversing the RTC judgment dismissing respondent's complaint for his failure to file a pre-trial brief.

[Vera v. Rigor, G.R. No. 147377, 10 August 2007]

Q. Petitioner contends that Section 6, Rule 18 of the Rules of Court does not require another pre-trial, as well as the filing of another pre-trial brief, when the complaint is amended to implead another defendant. Decide.

Petitioner’s contention is not correct.The pre-trial brief serves as a guide during the pre-trial conference so as to simplify,

abbreviate and expedite the trial if not to dispense with it. It is a devise essential to the speedy disposition of disputes, and parties cannot brush it aside as a mere technicality. In addition, pre-trial rules are not to be belittled or dismissed, because their non-observance

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may result in prejudice to a party's substantive rights. Like all rules, they should be followed except only for the most persuasive of reasons when they may be relaxed to relieve a litigant of an injustice not commensurate with the degree of his thought[less]ness in not complying with the procedure.

In the present case, petitioner had a separate cause of action against PNB. A separate cause of action necessarily means additional cause of action. Moreover, the defenses adopted by PNB are completely different from the defenses of Lim and Rodriguez, necessitating a separate determination of the matters enumerated under Section 6, Rule 18 of the Rules of Court insofar as PNB and petitioner are concerned. On these bases, we find no error in the ruling of the CA which sustained the trial court's dismissal of the amended complaint against PNB for failure of petitioner to file her pre-trial brief.

Q. Petitioner contends that the trial court deviated from the issues identified in the Pre-Trial Order and that the case was decided on issues different from those agreed upon during the pre-trial. Rule on the contention.

Settled is the rule that a pre-trial order is not meant to be a detailed catalogue of each and every issue that is to be or may be taken up during the trial. Issues that are impliedly included therein or may be inferable therefrom by necessary implication are as much integral parts of the pre-trial order as those that are expressly stipulated. In the case before us, a cursory reading of the issues enumerated in the Pre-Trial Order of the RTC would readily show that the complete and proper resolution of these issues would necessarily include all other matters pertinent to determining whether herein petitioner is the lawful owner of the subject property and is, therefore, entitled to reconveyance. It would be illogical not to touch on the question of whether the mortgage contract between Lim and PNB is binding on petitioner and her husband or whether PNB lawfully foreclosed and acquired ownership of the subject property because a resolution of these issues is determinative of whether there are no impediments in petitioner and her husband's acquisition of ownership of the disputed lot.

[Balatico Vda. de Agatep v. Rodriguez, G.R. No. 170540, 28 October 2009]

DEFAULT

Q. What is the effect if a co-defendant who fails to file answer is declared in default and his other co-defendants have filed answer to the complaint?

The effects of a failure to file a separate Answer when other co-defendants (against whom a common cause of action was alleged) had already filed theirs, are limited to the following:

1. While the non-answering defendants may be declared in default, the court would still try the case against them on the assumption that they are deemed to have adopted the Answer of the answering defendants; and

2. If declared in default, the defaulting party is deprived of no more than the right to take part in the trial. Consequently, the result of the litigation, whether favorable or unfavorable, shall affect and bind the defaulting party and the answering defendant with equal force and effect.

[REMIGIA GRAGEDA v. HON. NIMFA C. GOMEZ, G.R. No. 169536, September 21, 2007]

CONSOLIDATION OF CASES

Q. What are the requisites for consolidation of cases?A court may order several actions pending before it to be tried together where they

arise from the same act, event or transaction, involve the same or like issues, and depend largely or substantially on the same evidence, provided that the court has jurisdiction over the cases to be consolidated and that a joint trial will not give one party an undue advantage or prejudice the substantial rights of any of the parties.

Q. What is the purpose of consolidation of cases?The rule allowing consolidation is designed to avoid multiplicity of suits, to guard

against oppression or abuse, to prevent delays, to clear congested dockets, and to simplify the work of the trial court; in short, the attainment of justice with the least expense and vexation to the parties- litigants.

Thus, the Supreme Court disregarded the technical difference between an action and a proceeding, and upheld the consolidation of a petition for the issuance of a writ of possession with an ordinary civil action in order to achieve a more expeditious resolution of the cases . . . and in order to promote the ends of justice.

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Q. When may a motion for consolidation of cases de denied?The consolidation sought [should be denied when it] serves none of the purposes

cited above or on the contrary, it defeats the very rationale of consolidation. In a case. . . a motion for consolidation of a petition for issuance of a writ of possession with a civil action [was denied], as it would prejudice the right of one of the parties. Consolidation should be denied when prejudice would result to any of the parties or would cause complications, delay, cut off, or restrict the rights of a party.

[PNB v. Gotesco Tyan Ming Development, Inc, G.R. No. 183211, June 5, 2009]

Q. Petitioner claims that the Court of Appeals erred in sustaining the trial court's order consolidating Civil Case No. 53967 [ordinary civil action] with LRC Case No. R-3951 [land registration case], arguing that consolidation is proper only when it involves actions, which means an ordinary suit in a court of justice by which one party prosecutes another for the enforcement or protection of a right, or a prevention of a wrong. Petitioner posits that LRC Case No. R-3951, being summary in nature and not being an action within the contemplation of the Rules of Court, should not have been consolidated with Civil Case No. 53967. Rule on the contention.

The contention is incorrect. In another case, the Court also deemed it proper to consolidate an ordinary civil action with a petition for the issuance of a writ of possession. The Court held that while a petition for a writ of possession is an ex parte proceeding, being made on a presumed right of ownership, when such presumed right of ownership is contested and is made the basis of another action, then the proceedings for writ of possession would also become groundless. The entire case must be litigated and if need be must be consolidated with a related case so as to thresh out thoroughly all related issues

In the instant case, the consolidation of Civil Case No. 53967 with LRC Case No. R-3951 is more in consonance with the rationale behind the consolidation of cases which is to promote a more expeditious and less expensive resolution of the controversy than if they were heard independently by separate branches of the trial court. Hence, the technical difference between Civil Case No. 53967 and LRC Case No. R-3951 must be disregarded in order to promote the ends of justice.

[Philippine Savings Bank v. Mañalac, G.R. No. 145441. April 26, 2005.]

JUDGMENT

Q. State the rule when there is conflict between the dispositive portion of a Decision and the opinion of the court contained in the text or body thereof. Is the rule absolute?

It is basic that when there is a conflict between the dispositive portion or fallo of a Decision and the opinion of the court contained in the text or body of the judgment, the former prevails over the latter. An order of execution is based on the disposition, not on the body, of the Decision. This rule rests on the theory that the fallo is the final order while the opinion in the body is merely a statement ordering nothing.

Indeed, the foregoing rule is not without an exception. We have held that where the inevitable conclusion from the body of the decision is so clear as to show that there was a mistake in the dispositive portion, the body of the decision will prevail.

[REMIGIA GRAGEDA v. HON. NIMFA C. GOMEZ, G.R. No. 169536, September 21, 2007]

Q. What is the effect of the judgment of the appellate court if not all of the plaintiffs (or defendants) appealed from the adverse decision of the trial court?

The general rule is that in appellate proceedings, the reversal of the judgment on appeal is binding only on the parties in the appealed case and does not affect or inure to the benefit of those who did not join or were not made parties to the appeal. An exception to the rule exists, however, where a judgment cannot be reversed as to the party appealing without affecting the rights of his co-debtor, or where the rights and liabilities of the parties appealing are so interwoven and dependent on each other as to be inseparable, in which case a reversal as to one operates as a reversal as to all. This exception which is based on a communality of interest of said parties is recognized in this jurisdiction.

[Republic v. Institute for Social Concern, G.R. No. 156306. January 28, 2005]

Q. What is a nunc pro tunc judgment?The office of a judgment nunc pro tunc is to record some act of the court done at a

former time which was not then carried into the record, and the power of a court to make such entries is restricted to placing upon the record evidence of judicial action which has

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been actually taken.  It may be used to make the record speak the truth, but not to make it speak what it did not speak but ought to have spoken. If the court has not rendered a judgment that it might or should have rendered, or if it has rendered an imperfect or improper judgment, it has no power to remedy these errors or omissions by ordering the entry nunc pro tunc of a proper judgment. Hence a court in entering a judgment nunc pro tunc has no power to construe what the judgment means, but only to enter of record such judgment as had been formerly rendered, but which had not been entered of record as rendered.  In all cases the exercise of the power to enter judgments nunc pro tunc presupposes the actual rendition of a judgment, and a mere right to a judgment will not furnish the basis for such an entry.  (15 R. C. L., pp. 622-623.)

The object of a judgment nunc pro tunc is not the rendering of a new judgment and the ascertainment and determination of new rights, but is one placing in proper form on the record, the judgment that had been previously rendered, to make it speak the truth, so as to make it show what the judicial action really was, not to correct judicial errors, such as to render a judgment which the court ought to have rendered, in place of the one it did erroneously render, nor to supply nonaction by the court, however erroneous the judgment may have been.  (Wilmerding vs. Corbin Banking Co., 28 South., 640, 641; 126 Ala., 268.) [Briones-Vasquez v. Court of Appeals, G.R. No. 144882. February 4, 2005]

Q. Complainant faults the court for allegedly not discussing all the issues presented in the pleading. Rule on the contention.

Assuming that certain issues were not discussed, the force and effect of the ponencia remained the same. It is not incumbent upon the Court to discuss each and every issue in the pleadings and memoranda of the parties, specially those it did not deem necessary for the full disposition of the case. Neither is the Court bound to consider or accept each and every piece of evidence presented by the parties as some may be immaterial or irrelevant while others, even if admissible, may not be sufficiently credible.

Q. The complainant likewise alleges that the disposition of his various motions and pleadings through minute resolutions amounted to a deprivation of due process. Is the argument correct?

The Court is not duty-bound to issue decisions or resolutions signed by the justices all the time. It has ample discretion to formulate ponencias, extended resolutions or even minute resolutions, depending on its evaluation of a case, as long as a legal basis exists. When a minute resolution (signed by the Clerk of Court upon orders of the Court) denies or dismisses a petition or a motion for reconsideration for lack of merit, it is understood that the challenged decision or order, together with all its findings of fact and legal conclusions, are deemed sustained. [Complaint of Aurelio Indencia Arrienda, A.M. No. 03-11-30-SC. June 9, 2005, Corona, J.]

Q. Explain the meaning of “law of the case”.According to the principle of the law of the case, “whatever is once irrevocably

established as the controlling legal rule or decision between the same parties in the same case continues to be the law of the case.” To this the Court must adhere, whether the legal principles laid down were “correct on general principles or not,” or “whether the question is right or wrong.”

This principle, however, was not applied in a case where the determination of interests or dividends was deferred pending a report to be submitted by the Liquidator. It was only in the 12 May 1998 Order of the liquidation court that an interest was awarded, giving rise to a new question of law.  Therefore, the award of interest is not a controlling legal rule or decision that had been previously established as between the parties, since the parties did not have the chance to argue on that issue.

[The Pres. of PDIC v. Wilfredo D. Reyes, G.R. NO. 154973.  JUNE 21, 2005, Davide, Jr., C.J.]

Q. May the court grant a relief not specifically prayed for in the complaint?The prayer seeking “other remedies just and equitable under the premises” is broad and

comprehensive enough, according to jurisprudence, to justify the extension of a remedy different from that requested. Indeed, a court may grant relief to a party, even if the party awarded did not pray for it in his pleadings.

[Jesus D. Morales v. Court of Appeals, G.R. No. 112140.  June 23, 2005, TINGA, J.]

MOTION FOR RECONSIDERATION

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Q. Is it correct to say that the motion for reconsideration is pro forma in nature ostensibly because it merely restated the arguments previously raised and passed upon by the court?

The mere restatement of arguments in a motion for reconsideration does not per se result in a pro forma motion. A motion for reconsideration may not be necessarily pro forma even if it reiterates the arguments earlier passed upon and rejected by the appellate court. A movant may raise the same arguments precisely to convince the court that its ruling was erroneous. Furthermore, the pro forma rule will not apply if the arguments were not sufficiently passed upon and answered in the decision sought to be reconsidered.

[MCC INDUSTRIAL SALES Corp. v. SSANGYONG CORPORATION, G.R. No. 170633, October 17, 2007]

NEW TRIAL

Q. What is known as the Berry Rule?The Berry Rule refers to the standards set for the allowance of new trial based on

newly discovered evidence. The requisites for newly discovered evidence under Section 2, Rule 121 of the Revised Rules of Criminal Procedure are: (a) the evidence was discovered after the trial; (b) such evidence could not have been discovered and produced at the trial with reasonable diligence; and (c) that it is material, not merely cumulative, corroborative or impeaching, and is of such weight that, if admitted, will probably change the judgment.

These standards, also known as the "Berry Rule," trace their origin to the 1851 case of Berry v. State of Georgia 1 where the Supreme Court of Georgia held:

Applications for new trial on account of newly discovered evidence, are not favored by the Courts. x x x Upon the following points there seems to be a pretty general concurrence of authority, viz; that it is incumbent on a party who asks for a new trial, on the ground of newly discovered evidence, to satisfy the Court, 1st. That the evidence has come to his knowledge since the trial. 2d. That it was not owing to the want of due diligence that it did not come sooner. 3d. That it is so material that it would produce a different verdict, if the new trial were granted. 4th. That it is not cumulative only - viz; speaking to facts, in relation to which there was evidence on the trial. 5th. That the affidavit of the witness himself should be produced, or its absence accounted for. And 6th, a new trial will not be granted, if the only object of the testimony is to impeach the character or credit of a witness.

These guidelines have since been followed by our courts in determining the propriety of motions for new trial based on newly discovered evidence. [Dinglasan v. CA, G.R. No. 145420, 19 September 2006]

Q. What is the threshold in resolving a motion for new trial based on newly discovered evidence?

The threshold question in resolving a motion for new trial based on newly discovered evidence is whether the proferred evidence is in fact a “newly discovered evidence which could not have been discovered by due diligence.” The question of whether evidence is newly discovered has two aspects: a temporal one, i.e., when was the evidence discovered, and a predictive one, i.e., when should or could it have been discovered. It is to the latter that the requirement of due diligence has relevance. We have held that in order that a particular piece of evidence may be properly regarded as newly discovered to justify new trial, what is essential is not so much the time when the evidence offered first sprang into existence nor the time when it first came to the knowledge of the party now submitting it; what is essential is that the offering party had exercised reasonable diligence in seeking to locate such evidence before or during trial but had nonetheless failed to secure it.

The Rules do not give an exact definition of due diligence, and whether the movant has exercised due diligence depends upon the particular circumstances of each case. Nonetheless, it has been observed that the phrase is often equated with “reasonable promptness to avoid prejudice to the defendant.” In other words, the concept of due diligence has both a time component and a good faith component. The movant for a new trial must not only act in a timely fashion in gathering evidence in support of the motion; he must act reasonably and in good faith as well. Due diligence contemplates that the defendant acts reasonably and in good faith to obtain the evidence, in light of the totality of the circumstances and the facts known to him.

[Custodio v. Sandiganbayan, G.R. Nos. 96027-28, 08 March 2005]

1 10 Ga. 511 (1851), as cited in Custodio v. Sandiganbayan, G.R. Nos. 96027-28, 8 March 2005, 453 SCRA 24, 34

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APPEAL

Q. When a decision is appealed, when does the jurisdiction of the trial court end and that of the Court of Appeals commence?

The Revised Rules of Court is clear on this point. Rule 41, Section 9 of the Rules states that "(i)n appeals by notice of appeal, the court loses jurisdiction over the case upon the perfection of the appeals filed in due time and the expiration of the time to appeal of the other parties." When a party files a notice of appeal, the trial court’s jurisdiction over the case does not cease as a matter of course; its only effect is that the appeal is deemed perfected as to him. As explained by our former colleague, Justice Florenz Regalado —

. . . [I]n the meantime, the trial court still retains jurisdiction over the case. However, where all the parties have either thus perfected their appeals, by filing their notices of appeal in due time and the period to file such notice of appeal has lapsed for those who did not do so, then the trial court loses jurisdiction over the case as of the filing of the last notice of appeal or the expiration of the period to do so for all the parties.

The Rules cannot be any clearer: until the filing of the last notice of appeal and the expiration of the period to perfect an appeal by all the parties, the lower court still has jurisdiction over the case. It is only after the occurrence of these two incidents when the jurisdiction of the Court of Appeals begins and at which time the OSG is supposed to take charge of the case on behalf of the government.

[Macasaet v. People, G.R. No. 153747. February 23, 2005]

Q. Does it automatically follow that the case should be dismissed in the event that one of the issues raised therein has become moot?

A case should not be dismissed simply because one of the issues raised therein had become moot and academic by the onset of a supervening event, whether intended or incidental, if there are other causes which need to be resolved after trial. When a case is dismissed without the other substantive issues in the case having been resolved would be tantamount to a denial of the right of the plaintiff to due process. It must be stressed that the material allegations in the complaint and the character of the relief sought determine the nature of an action. The designation of the nature of an action, or its title, is not meaningless or of no effect in the determination of its purpose and object.

[RAFAELITO M. GARAYBLAS v. JOSE L. ATIENZA, JR., G.R. No. 149493, June 22, 2006]

Q. Is the filing with the Supreme Court of a petition for certiorari under Rule 65 from the decision of the CA dismissing the petition for a writ of habeas corpus appropriate?

No. Following the rule, the petitioner should have appealed to this Court from the CA decision denying his petition for a writ of habeas corpus, as well as the denial of his motion for reconsideration thereof; instead, the petitioner filed a petition for certiorari under Rule 65 of the Rules of Court, as amended. The well-settled rule is that certiorari is not available where the aggrieved party's remedy of appeal is plain, speedy and adequate in the ordinary course, the reason being that certiorari cannot co-exist with an appeal or any other adequate remedy. The existence and availability of the right to appeal are antithetical to the availment of the special civil action for certiorari. These two remedies are mutually exclusive. An appeal in this case would still have been a speedy and adequate remedy. Consequently, when the petitioner filed his petition in this Court, the decision of the CA was already final and executory.

It bears stressing that a decision in a habeas corpus action stands in no different position than with any other proceeding and if the appealed decision is to be reviewed by an appellate court, the remedy is by writ of error because the error committed by the court is an error of judgment and not an error of jurisdiction.

[Caballes v. Court of Appeals, G.R. No. 163108. February 23, 2005]

Q. Is payment of an appeal fee within the prescriptive period a jurisdictional requirement? Why?

Yes. It is well-established that the payment of docket fees within the prescribed period is mandatory for the perfection of an appeal. This is so because a court acquires jurisdiction over the subject matter of the action only upon the payment of the correct amount of docket fees regardless of the actual date of filing of the case in court. The payment of the full amount of the docket fee is a sine qua non requirement for the perfection of an appeal. The court acquires jurisdiction over the case only upon the payment of the prescribed docket fees.

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The requirement of an appeal fee is not a mere technicality of law or procedure but an essential requirement without which the decision appealed from would become final and executory as if no appeal was filed at all. Corollarily, the right to appeal is merely a statutory privilege and may be exercised only in the manner prescribed by, and in accordance with, the provision of the law.  The failure to perfect an appeal within the prescribed period is not only mandatory but also jurisdictional and failure to do so renders the questioned decision final and executory, and deprives the appellate court of jurisdiction to alter the final judgment much less to entertain the appeal.

[Meatmasters Intl Corp. v. Lelis Integrated Development Corp., G.R. No. 163022. Feb. 28, 2005]

Q. What are the other appellate jurisdictional requirements in case of appeal?As we are dealing here with the jurisdiction of an appellate court, additional rules are

required for jurisdiction to attach therein, to wit: (1) the petitioner must have invoked the jurisdiction of the Court of Appeals within the time for doing so; (2) he must have filed his petition for review likewise within the time for doing so; (3) he must have paid the necessary docket fees; and (4) the other parties must have perfected their appeals in due time.

The Rule requires that in an appeal by way of Petition For Review, the appeal is deemed perfected as to the petitioner upon the timely filing of the petition and the payment of docket and other lawful fees. In the discussion of the Committee on the revision of the Rules of Court, it was emphasized that to perfect the appeal, the party has to file the petition for review and to pay the docket fees within the prescribed period.  The law and its intent are clear and unequivocal that the petition is perfected upon its filing and the payment of the docket fees.

Q. Will the appellate court acquire jurisdiction over the case by the mere filing of a motion for extension of time to file a petition?Thus, it may be argued, and rightly so, that the Court of Appeals has not yet acquired  

jurisdiction over the case because Fernandez merely filed a motion for extension of time to file petition but not the petition itself.  Withal, sans the petition, it cannot be said that the Court of Appeals has acquired jurisdiction over the case as to say that the trial court is without authority to act on a motion for new trial.  It is axiomatic that if a statute is clear, plain and free from ambiguity, it must be given its literal meaning and applied without attempted interpretation. Indeed, when the law speaks in clear and categorical language, there is no room for interpretation, vacillation or construction, but only for application. On this point we fully agree in the position taken by Fernandez that when he filed the motion for extension of time to file petition for review, jurisdiction of the Court of Appeals had not yet attached, such that his failure to file the petition itself would normally have the effect of rendering the decision of the lower court final and executory.

Q. The defendant filed with the Court of Appeals a motion for extension of time to file petition for review but which was later withdrawn. Instead defendant filed a motion for new trial before the trial court. Did the filing of the motion for extension of time to file petition for review automatically divest the trial court of its jurisdiction over the case, as to entertain a motion for new trial?Assuming that Fernandez filed his motion for new trial on time, we hold that the trial

court still had jurisdiction to rule on the matter as the jurisdiction it originally acquired had not yet been lost.

The appellate jurisdiction of the trial court is to be juxtaposed with its residual jurisdiction as set forth in Rule 42, Section 8(a), 3rd paragraph of the Rules of Court.  Before the Court of Appeals gives due course to a Petition for Review, the RTC retains jurisdiction for specified instances enumerated therein, to wit:

(1)  To issue orders for the protection and preservation of the rights of the parties which do not involve any matter litigated by the appeal, such as, the appointment of a receiver, and the issuance of writs of preliminary attachment or preliminary injunction.

(2)  To approve compromises.(3) To permit appeals of indigent litigants.(4)  To order execution pending appeal in accordance with section 2 of Rule 39.(5)  To allow withdrawal of the appeal.

Q. Discuss the residual jurisdiction of the trial court?The residual jurisdiction of the trial court is available at a stage in which the court is

normally deemed to have lost jurisdiction over the case or the subject matter involved in the appeal.  This stage is reached upon the perfection of the appeals by the parties or upon the

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approval of the records on appeal, but prior to the transmittal of the original records or the records on appeal. Considering that no appeal was perfected in this case and the records of the case have not yet been transmitted to the Court of Appeals, the case has not as yet attained the residual jurisdiction stage so as to say that the trial court already lost the jurisdiction it first acquired and that it is left with only its residual powers.

Q. May period of time to file motion for new trial be extended?No. The fifteen (15)-day period for filing a motion for new trial cannot be extended. 

Motions for extension of time to file a motion for new trial or reconsideration may no longer be filed before all courts, lower than the Supreme Court.  The rule applies even if the motion is filed before the expiration of the period sought to be extended because the fifteen (15) days period for filing a motion for new trial or reconsideration with said court is non-extendible.  Thus, motions for extension of time to file a motion for new trial or reconsideration may be filed only in connection with cases pending before the Supreme Court, which may in its sound discretion either grant or deny the extension requested.  No such motion may be filed before any lower courts.

[Fernandez v. Court of Appeals, G.R. No. 131094, May 16, 2005]

Q. Is it reversible error of the RTC in dismissing petitioners’ appeal for their failure to submit their memorandum on time?

No. It is clear from the provisions of Section 7, Rule 40 of the 1997 Rules of Civil Procedure that petitioners’ failure to file their memorandum seasonably is a ground for the dismissal of their appeal.

Q. Petitioners advance the excuse that their counsel was burdened by “heavy workload”. Is the contention meritorious? The argument lacks merit. The Supreme Court cautioned lawyers to handle only as

many cases as they can efficiently handle. The zeal and fidelity demanded of a lawyer to his client’s cause require that not only should he be qualified to handle a legal matter, he must also prepare adequately and give appropriate attention to his legal work. Since a client is, as a rule, bound by the acts of his counsel, a lawyer, once he agrees to take a case, should undertake the task with dedication and care. Failure of a lawyer to file a pleading constitutes inexcusable negligence on his part.

[SALCEDO v. MARINO, G.R. No. 170102, July 27, 2007]

Q. May issues not raised during trial be brought for the first time on appeal?No. As a rule, no issue may be raised on appeal unless it has been brought before the

lower tribunal for its consideration. Higher courts are precluded from entertaining matters neither alleged in the pleadings nor raised during the proceedings below, but ventilated for the first time only in a motion for reconsideration or on appeal.

Q. Is this rule absolute?As with most procedural rules, this maxim is subject to exceptions. Indeed, our rules

recognize the broad discretionary power of an appellate court to waive the lack of proper assignment of errors and to consider errors not assigned.  Section 8 of Rule 51 of the Rules of Court provides that “No error which does not affect the jurisdiction over the subject matter or the validity of the judgment appealed from or the proceedings therein will be considered, unless stated in the assignment of errors, or closely related to or dependent on an assigned error and properly argued in the brief, save as the court may pass upon plain errors and clerical errors.”

Thus, an appellate court is clothed with ample authority to review rulings even if they are not assigned as errors in the appeal in these instances: (a) grounds not assigned as errors but affecting jurisdiction over the subject matter; (b) matters not assigned as errors on appeal but are evidently plain or clerical errors within contemplation of law; (c) matters not assigned as errors on appeal but consideration of which is necessary in arriving at a just decision and complete resolution of the case or to serve the interests of justice or to avoid dispensing piecemeal justice; (d) matters not specifically assigned as errors on appeal but raised in the trial court and are matters of record having some bearing on the issue submitted which the parties failed to raise or which the lower court ignored; (e) matters not assigned as errors on appeal but closely related to an error assigned; and (f) matters not assigned as errors on appeal but upon which the determination of a question properly assigned, is dependent.

x x x xIt has been stated that the proviso requiring assignments of error, permitting the

court, at its option, to notice a plain error not assigned, was and is intended, in the interest of justice, to reserve to the appellate court the right, resting in public duty, to take

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cognizance of palpable error on the face of the record and proceedings, especially such as clearly demonstrate that the suitor has no cause of action. The rule does not intend that we are to sift the record and deal with questions which are of small importance, but only to notice errors which are obvious upon inspection and of a controlling character.  The underlying purpose of this reservation in the rule is to prevent the miscarriage of justice from oversight.[Soledad Mendoza vs. Purita Bautista, G.R.No. 143666, March 18, 2005, AUSTRIA-MARTINEZ, J.]

Q. Does the Court of Appeals have jurisdiction over an appeal from the decision of the PRC?

Sec. 1, Rule 43 of the Rules of Court provides:Section 1. Scope. - This Rule shall apply to appeals from judgments or final

orders of the Court of Tax Appeals, and from awards, judgments, final orders or resolutions of or authorized by any quasi-judicial agency in the exercise of its quasi-judicial functions. Among these agencies are the Civil Service Commission, Central Board of Assessment Appeals, Securities and Exchange Commission, Office of the President, Land Registration Authority, Social Security Commission, Civil Aeronautics Board, Bureau of Patents, Trademarks and Technology Transfer, National Electrification Administration, Energy Regulatory Board, National Telecommunications Commission, Department of Agrarian Reform under Republic Act No. 6657, Government Service Insurance System, Employees Compensation Commission, Agricultural Inventions Board, Insurance Commission, Philippine Atomic Energy Commission, Board of Investments, Construction Industry Arbitration Commission, and voluntary arbitrators authorized by law. (Emphasis supplied)Indeed, the PRC is not expressly mentioned as one of the agencies which are expressly

enumerated under Section 1, Rule 43 of the Rules of Court. However, its absence from the enumeration does not, by this fact alone, imply its exclusion from the coverage of said Rule. The Rule expressly provides that it should be applied to appeals from awards, judgments final orders or resolutions of any quasi-judicial agency in the exercise of its quasi-judicial functions. The phrase “among these agencies” confirms that the enumeration made in the Rule is not exclusive to the agencies therein listed.

Clearly, the enactment of B.P. Blg. 129, the precursor of the present Rules of Civil Procedure, lodged with the CA such jurisdiction over the appeals of decisions made by the PRC.

[Cayao-Lasam v. Ramolete, G.R. No. 159132, December 18, 2008]

Q. In a petition for liquidation of an insolvent corporation petitioner, RBO filed Notice of Appeal on June 17, 2003, and the RTC gave due course to the appeal after it found that the same was filed within the reglementary period. However, upon respondent's motion for reconsideration, where it argued that petitioner failed to file a record on appeal, considering that the decision was rendered in a petition for liquidation of RBO which was a special proceeding, the RTC reversed itself as no record on appeal was filed, and dismissed petitioner's appeal for having been taken out of time. Did the court correctly dismiss the appeal?

A petition for liquidation of an insolvent corporation is classified as a special proceeding. The RTC decision, which petitioner sought to appeal from, was rendered in the special proceeding for the liquidation of RBO's assets; thus, applying the above-quoted provisions, an appeal in a special proceeding requires both the filing of a notice of appeal and the record on appeal within thirty days from receipt of the notice of judgment or final order.

. . . The RTC did not commit a grave abuse of discretion in dismissing petitioner's appeal, since it is clearly stated under the Rules that filing of the notice of appeal must be accompanied by a record on appeal to perfect one's appeal in a special proceeding. In fact, the RTC's dismissal of petitioner's appeal was expressly allowed under Section 13 of Rule 41.

Q. Is the Court of Appeals justified in taking cognizance of an appeal from a special proceeding action without the required record on appeal being timely filed?No. In a case the Supreme Court nullified the CA decision for lack of jurisdiction in

taking cognizance of an appeal from the RTC decision which had already lapsed into finality for failure of the party to file a record on appeal within the reglementary period. The perfection of an appeal in the manner and within the period laid down by law is not only mandatory but also jurisdictional. The failure to perfect an appeal as required by the rules has the effect of defeating the right to appeal of a party and precluding the appellate court from acquiring jurisdiction over the case. The right to appeal is not a natural right nor a part of due process; it is merely a statutory privilege, and may be exercised only in the manner

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and in accordance with the provisions of the law. The party who seeks to avail of the same must comply with the requirement of the rules. Failing to do so, the right to appeal is lost.

Q. What is the rationale for the rule?The reason for rules of this nature is because the dispatch of business by courts would

be impossible, and intolerable delays would result, without rules governing practice. Public policy and sound practice demand that judgments of courts should become final and irrevocable at some definite date fixed by law. Such rules are a necessary incident to the proper, efficient and orderly discharge of judicial functions. Thus, we have held that the failure to perfect an appeal within the prescribed reglementary period is not a mere technicality, but jurisdictional. Just as a losing party has the privilege to file an appeal within the prescribed period, so does the winner also have the correlative right to enjoy the finality of the decision. Failure to meet the requirements of an appeal deprives the appellate court of jurisdiction to entertain any appeal. There are exceptions to this rule, unfortunately respondents did not present any circumstances that would justify the relaxation of said rule.

Q. Petitioner argues that it was counsel’s honest belief that their claim against the RBO assets and the civil case filed by RBO against petitioner for the annulment of mortgage were ordinary civil actions and a mere notice of appeal would be sufficient to perfect his appeal. Does the argument warrant relaxation of the mandatory rule on the filing of a record on appeal?No. Petitioner's ratiocinations that he failed to submit a Record on Appeal on time xxx

as excusable neglect due to serious complications surrounding the case leading him to an error of judgment where "an ordinary human being, courts, not excepted, is susceptible to commit, is highly unsustainable. Petitioner counsel's honest belief that the claim of petitioner and the civil case for annulment of mortgage were ordinary actions and, as such, mere filing of a notice of appeal would be sufficient, is far from being persuasive. This is not the excusable neglect as envisioned by the rules in order to sidestep on the strict compliance with the rules on appeal. Petitioner was fully aware that Sp. Proc. No. 170-0-85 is a petition for liquidation because they filed their claim in the case claiming to be a preferred creditor, participated in the trial thereof in every step of the way, and filed the disputed Notice of Appeal under the title of the said case. We cannot find any reason to accept petitioner's feigned ignorance that the case they were appealing is a liquidation petition. In fine, such miscalculation of the petitioner cannot justify an exception to the rules, and to apply the liberal construction rule.

If we are to accept such reason and grant petitioner's petition would be putting a premium on his counsel's ignorance or lack of knowledge of existing Rules. An erroneous application of the law or rules is not excusable error. Petitioner is bound by the mistake of his counsel.

[Ong v. PDIC, G.R. No. 175116, 18 August 2010]

Q. On what matters or cases shall the Supreme Court act En Banc?The Internal Rules of the Supreme Court (IRSC) states that the Court en banc shall

act on the following matters and cases:(a) cases in which the constitutionality or validity of any treaty, international or

executive agreement, law, executive order, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question;

(b) criminal cases in which the appealed decision imposes the death penalty or reclusion perpetua;

(c) cases raising novel questions of law;(d) cases affecting ambassadors, other public ministers, and consuls;(e) cases involving decisions, resolutions, and orders of the Civil Service Commission,

the Commission on Elections, and the Commission on Audit;(f) cases where the penalty recommended or imposed is the dismissal of a judge, the

disbarment of a lawyer, the suspension of any of them for a period of more than one year, or a fine exceeding forty thousand pesos;

(g) cases covered by the preceding paragraph and involving the reinstatement in the judiciary of a dismissed judge, the reinstatement of a lawyer in the roll of attorneys, or the lifting of a judge's suspension or a lawyer's suspension from the practice of law;

(h) cases involving the discipline of a Member of the Court, or a Presiding Justice, or any Associate Justice of the collegial appellate court;

(i) cases where a doctrine or principle laid down by the Court en banc or by a Division my be modified or reversed;

(j) cases involving conflicting decisions of two or more divisions;(k) cases where three votes in a Division cannot be obtained;

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(l) Division cases where the subject matter has a huge financial impact on businesses or affects the welfare of a community;

(m) Subject to Section 11 (b) of this rule, other division cases that, in the opinion of at least three Members of the Division who are voting and present, are appropriate for transfer to the Court en banc;

(n) cases that the Court en banc deems of sufficient importance to merit its attention; and

(o) all matters involving policy decisions in the administrative supervision of all courts and their personnel. 2

The enumeration is an amalgamation of SC Circular No. 2-89 (February 7, 1989), as amended by En Banc Resolution of November 18, 1993, and the amplifications introduced by Resolution of January 18, 2000 in A.M. No. 99-12-08-SC with respect to administrative cases and matters.

Q. Is the Supreme Court infallible?No. Should any error of judgment by the Supreme Court be perceived, the Supreme

Court does not blindly adhere to such error, and the parties adversely affected thereby are not precluded from seeking relief therefrom, by way of a motion for reconsideration. In this jurisdiction, rectification of an error, more than anything else, is of paramount importance.

Q. What is the implication of the Supreme Court En Banc entertaining for resolution and disposition a case already disposed of by one of its division?Where the Court En Banc entertains a case for its resolution and disposition, it does

so without implying that the Division of origin is incapable of rendering objective and fair justice. The action of the Court simply means that the nature of the cases calls for en banc attention and consideration. Neither can it be concluded that the Court has taken undue advantage of sheer voting strength. It was merely guided by the well-studied finding and sustainable opinion of the majority of its actual membership- that, indeed, subject cases are of sufficient importance meriting the action and decision of the whole Court. It is, of course, beyond cavil that all the members of this highest Court of the land are always embued with the noblest of intentions in interpreting and applying the germane provisions of law, jurisprudence, rules and Resolutions of the Court- to the end that public interest be duly safeguarded and rule of law be observed.

Q. It is argued that under the doctrine of immutability of decisions the assailed Resolutions in the present cases have already become final, since a second motion for reconsideration is prohibited except for extraordinarily persuasive reasons and only upon express leave first obtained; and that once a judgment attains finality, it thereby becomes immutable and unalterable, however unjust the result of error may appear.The contention misses an important point. The doctrine of immutability of decisions

applies only to final and executory decisions. Since the present cases may involve a modification or reversal of a Court-ordained doctrine or principle, the judgment rendered by the Special Third Division may be considered unconstitutional, hence, it can never become final. It finds mooring in the deliberations of the framers of the Constitution:

On proposed Section 3(4), Commissioner Natividad asked what the effect would be of a decision that violates the proviso that "no doctrine or principle of law laid down by the court in a decision rendered en banc or in division may be modified or reversed except by the court en banc." The answer given was that such a decision would be invalid. Following up, Father Bernas asked whether the decision, if not challenged, could become final and binding at least on the parties. Romulo answered that, since such a decision would be in excess of jurisdiction, the decision on the case could be reopened anytime. 3

That a judgment must become final at some definite point at the risk of occasional error cannot be appreciated in a case that embroils not only a general allegation of "occasional error" but also a serious accusation of a violation of the Constitution

The Court has the power and prerogative to suspend its own rules and to exempt a case from their operation if and when justice requires it, as in the present circumstance where movant filed a motion for leave after the prompt submission of a second motion for reconsideration but, nonetheless, still within 15 days from receipt of the last assailed resolution.

2 A.M. No. 10-4-20-SC (May 4, 2010), Rule 2, Sec. 33 Bernas, The Intent of the 1986 Constitution Writers, (1995), p. 517

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Q. If the Supreme Court is not infallible, is it possible for it to render an invalid decision? If yes, what is the effect of entry of judgment with respect to such decision?A decision rendered by a Division of this Court in violation of this constitutional

provision would be in excess of jurisdiction and, therefore, invalid. Any entry of judgment may thus be said to be "inefficacious" since the decision is void for being unconstitutional.

Well-entrenched doctrines or principles of law that went astray need to be steered back to their proper course.

Note: The Court en banc exercises no appellate jurisdiction over its Divisions, but Justice Minerva Gonzaga-Reyes opined in Firestone and concededly recognized that "[t]he only constraint is that any doctrine or principle of law laid down by the Court, either rendered en banc or in division, may be overturned or reversed only by the Court sitting en banc."

[Lu v. Lu Ym Sr G.R. No. 153690, 15 February 2011]

ANNULMENT OF JUDGMENT

Q. What is the nature of an action for annulment of judgment?Annulment of judgment is a recourse equitable in character, allowed only in

exceptional cases as where there is no available or other adequate remedy. An action for annulment of judgment is grounded only on two justifications: (1) extrinsic fraud; and (2) lack of jurisdiction or denial of due process. The purpose of such action is to have the final and executory judgment set aside so that there will be a renewal of litigation. [CAMITAN v COURT OF APPEALS, G.R. No. 128099, December 20, 2006]

RES JUDICATA

Q. Does a previous final judgment denying a petition for declaration of nullity on the ground of psychological incapacity bar a subsequent petition for declaration of nullity on the ground of lack of marriage license? Should the matter of the invalidity of a marriage due to the absence of an essential requisite prescribed by Article 4 of the Family Code be raised in the same proceeding where the marriage is being impugned on the ground of a party's psychological incapacity under Article 36 of the Family Code?

Section 47 of the Rules of Civil Procedure outlines the dual aspect of res judicata. Section 47 (b) pertains to it in its concept as "bar by prior judgment" or "estoppel by verdict," which is the effect of a judgment as a bar to the prosecution of a second action upon the same claim, demand or cause of action. On the other hand, Section 47 (c) pertains to res judicata in its concept as "conclusiveness of judgment" or otherwise known as the rule of auter action pendant which ordains that issues actually and directly resolved in a former suit cannot again be raised in any future case between the same parties involving a different cause of action. Res judicata in its concept as a bar by prior judgment obtains in the present case.

Res judicata in this sense requires the concurrence of the following requisites: (1) the former judgment is final; (2) it is rendered by a court having jurisdiction over the subject matter and the parties; (3) it is a judgment or an order on the merits; and (4) there is -- between the first and the second actions -- identity of parties, of subject matter, and of causes of action.

Petitioner does not dispute the existence of the first three requisites. What is in issue is the presence of the fourth requisite. In this regard, the test to determine whether the causes of action are identical is to ascertain whether the same evidence will sustain both actions, or whether there is an identity in the facts essential to the maintenance of the two actions. If the same facts or evidence would sustain both, the two actions are considered the same, and a judgment in the first case is a bar to the subsequent action.

Based on this test, petitioner would contend that the two petitions brought by him seeking the declaration of nullity of his marriage are anchored on separate causes of action for the evidence necessary to sustain the first petition which was anchored on the alleged psychological incapacity of respondent is different from the evidence necessary to sustain the present petition which is anchored on the purported absence of a marriage license.

Petitioner, however, forgets that he is simply invoking different grounds for the same cause of action. By definition, a cause of action is the act or omission by which a party violates the right of another. In both petitions, petitioner has the same cause - the declaration of nullity of his marriage to respondent. What differs is the ground upon which the cause of action is predicated. These grounds cited by petitioner essentially split the

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various aspects of the pivotal issue that holds the key to the resolution of this controversy, that is, the actual status of petitioner and respondent's marriage.

In sum, litigants are provided with the options on the course of action to take in order to obtain judicial relief. Once an option has been taken and a case is filed in court, the parties must ventilate all matters and relevant issues therein. The losing party who files another action regarding the same controversy will be needlessly squandering time, effort and financial resources because he is barred by law from litigating the same controversy all over again.

Therefore, having expressly and impliedly conceded the validity of their marriage celebration, petitioner is now deemed to have waived any defects therein. For this reason, the Court finds that the present action for declaration of nullity of marriage on the ground of lack of marriage license is barred by the decision dated November 11, 1997 of the RTC, Branch 29, of San Pablo City, in Civil Case No. SP 4341-95. [Mallion v. Alcantara, G.R. No. 141528, 31 October 2006]

Q. What are the requisites for the application of res judicata in the concept of “bar by prior judgment”?

Res judicata applies in the concept of “bar by prior judgment” if the following requisites concur: (1) the former judgment or order must be final; (2) the judgment or order must be on the merits; (3) the decision must have been rendered by a court having jurisdiction over the subject matter and the parties; and (4) there must be, between the first and the second action, identity of parties, of subject matter and of causes of action.

[Agustin v. Delos Santos, G.R. No. 168139, January 20, 2009]

EXECUTION OF JUDGMENT

Q. Discuss the nature of the court’s duty concerning execution of its final judgment.

The general rule is that it is the ministerial duty of the court to order the execution of its final judgment. However, Rule 135, Section 5(g) of the Rules of Court provides that the trial court may amend and control its process and orders so as to make them conformable to law and justice. It has the inherent power to control, in furtherance of justice, the conduct of its ministerial offices, and of all other persons in any manner connected with a case before it, in every manner appertaining thereto. The inherent power of the court carries with it the right to determine every question of fact and law which may be involved in the execution. The court may stay or suspend the execution of its judgment if warranted by the higher interest of justice. It has the authority to cause a modification of the decision when it becomes imperative in the higher interest of justice or when supervening events warrant it. The court is also vested with inherent power to stay the enforcement of its decision based on antecedent facts which show fraud in its rendition or want of jurisdiction of the trial court apparent on the record. In another case, the Court held that an execution will ordinarily be stayed pending the termination of the proceedings connected with the principal case.

[Mejia vs. Gabayan, G.R. No. 149765. April 12, 2005]

Q. After the decision of the Director of Lands became final, the prevailing party moved for the execution of the decision. When the order for execution failed for some reason, the prevailing party moved ex parte for amendment of the order of execution earlier issued, which motion was granted, this time with an order for demolition. The validity of the amended order was challenged. Decide.

The contention that the enforcement of the Amended Order of Execution does not need a hearing and court order which Sec. 10(d) of Rule 39 of the Rules of Court requires does not lie. That an administrative agency which is clothed with quasi-judicial functions issued the Amended Order of Execution is of no moment, since the requirement in Sec. 10 (d) of Rule 39 of the Rules of Court echoes the constitutional provision that “no person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of the laws.”

Q. May the Bureau of lands order the court sheriff to execute its Orders?In a case, it was held that x x x the power to order the sheriff to remove

improvements and turn over the possession of the land to the party adjudged entitled thereto, belongs only to the courts of justice and not to the Bureau of Lands.

[THE CITY OF BAGUIO v. FRANCISCO NIÑO, G.R. No. 161811, April 12, 2006]

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