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CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

COMPILATION AND UPDATES ON MODES OF DISCOVERY notice-giving, issue-formulation and fact revelation
theretofore performed primarily by the pleadings.
*From the notes of Atty. Jess Zachael Espejo
The various modes or instruments of discovery are
MODES OF DISCOVERY IN GENERAL meant to serve (1) as a device, along with the pre-trial
hearing under Rule 20, to narrow and clarify the basic
MEANING OF DISCOVERY (Riano) issues between the parties, and (2) as a device for
In general, a discovery is a device employed by a party to obtain ascertaining the facts relative to those issues. The
information about relevant matters on the case from the adverse evident purpose is, to repeat, to enable the parties,
party in preparation for the trial. As contemplated by the Rules, the consistent with recognized privileges, to obtain the
device may be used by all the parties to the case. It is the term used fullest possible knowledge of the issues and facts
to describe a category of procedural devices employed by a party before civil trials and thus prevent that said trials are
to an action, prior to trial, to require the adverse party to disclose carried on in the dark.
information that is essential for the preparation of the requesting
party's case and that the other party alone knows or possesses.
LIBERAL APPLICATION AND TREATMENT
Discovery devices narrow the issues of a lawsuit, obtain evidence SUBJECT TO BASIC EVIDENTIARY REQUIREMENTS
not readily accessible to the applicant for use at trial, and ascertain Jurisprudence seems to imply that discovery measures are allowed
the existence of information that might be introduced as evidence and will be given a liberal treatment if the subject of discovery
at trial. fulfills basic evidentiary requirements.

A court will deny discovery if the party is using it as a fishing Rule 128, Section 3 of the Rules of Court provides that evidence is
expedition to ascertain information for the purpose of starting an admissible when it is relevant to the issue and is not excluded by
action or developing a defense. A court is responsible for protecting the Constitution, the law or the Rules of Court.
against the unreasonable investigation into a party's affairs and
must deny discovery if it is intended to annoy, embarrass, oppress, Evidence is relevant if has such a relation to the fact in issue as to
or injure the parties or the witnesses who will be subject to it. A induce belief in its existence or non-existence (Rule 128, Section 4).
court will stop discovery when used in bad faith. Applied to discovery, the subject thereof must be related to the
facts in issue. The use of the various modes of discovery may yield
AIM OR PURPOSE OF DISCOVERY PROCEDURES: evidentiary facts or facta probantia, which are facts necessary for
LITIGATION SHOULD NOT BE CARRIED IN THE DARK the determination of the ultimate facts or facta probanda.
SECURITY BANK CORPORATION versus COURT OF APPEALS Relevancy describes the relationship between the facta probanda
G.R. No. 135874, January 25, 2000 and the facta probantia.

In Republic v. Sandiganbayan, 204 SCRA 213, November 21, Evidence is competent and admissible if there is no law or Rule that
1991, the Court discussed exhaustively the significance of the declares it to be otherwise. For example, factual matters declared
various modes of discovery XXX. In sum, the Court held that the by law to be privileged information or communication cannot be
said Rule aims to enable the parties to inform themselves, even inquired upon and are thus beyond the scope of discovery.
before the trial, of all the facts relevant to the action, including
those known only to the other litigants. Through this procedure, Discovery rules are to be accorded a broad and liberal treatment
"civil trials should not be carried on in the dark." We quote: and should not be unduly restricted if the matters inquired into are
otherwise relevant and not privileged, and the inquiry is made in
... Indeed, it is the purpose and policy of the law that good faith and within the bounds of law. Otherwise, the advantage
the parties - before the trial if not indeed even before of a liberal discovery procedure in ascertaining the truth and
the pre-trial — should discover or inform themselves expediting the disposal of litigation would be defeated (MARTIRES
of all the facts relevant to the action, not only those versus HEIRS OF SOMERA, G.R. No. 210789, December 03, 2018)
known to them individually, but also those known to
their adversaries; in other words, the desideratum is Courts are given wide latitude in granting motions for discovery in
that civil trials should not be carried on in the dark; order to enable parties to prepare for trial or otherwise to settle
and the Rules of Court make this ideal possible the controversy prior thereto. Thus, what is chiefly contemplated is
through the deposition-discovery mechanism set the discovery of every bit of information which may be useful in the
forth in Rules 24 to 29. The experience in other preparation for trial, such as the identity and location of persons
jurisdictions has been that ample discovery before having knowledge of relevant facts; those relevant facts
trial, under proper regulation, accomplishes one of themselves; and the existence, description, nature, custody,
the most necessary ends of modern procedure: it not condition, and location of any books, documents, or other tangible
only eliminates unessential issues from trials thereby things. Hence, "the deposition-discovery rules are to be accorded a
shortening them considerably, but also requires broad and liberal treatment. No longer can the time-honored cry of
parties to play the game with the cards on the table so 'fishing expedition' serve to preclude a party from inquiring into the
that the possibility of fair settlement before trial is facts underlying his opponent's case. Mutual knowledge of all the
measurably increased.... relevant facts gathered by both parties is essential to proper
litigation. To that end, either party may compel the other to
As just intimated, the deposition-discovery procedure disgorge whatever facts he has in his possession. The deposition-
was designed to remedy the conceded inadequacy discovery procedure simply advances the stage at which the
and cumbersomeness of the pre-trial functions of disclosure can be compelled from the time of trial to the period
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CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

preceding it, thus reducing the possibility of surprise (REPUBLIC relevant facts from any adverse parties shall file and serve upon the
versus SANDIGANBAYAN, 204 SCRA 213, November 21, 1991). latter written interrogatories to be answered by the party served
or, if the party served is a public or private corporation or a
DUTY OF THE COURT IN RELATION TO partnership or association, by any officer thereof competent to
THE MODES OF DISCOVERY (Riano) testify in its behalf (Rule 25, Section 1).

The modes of discovery are considered by the Supreme Court as ADMISSION BY ADVERSE PARTY
vital components of case management in pre-trial courts. Hence, At any time after issues have been joined, a party may file and serve
aside from preparing the summons within one (1) day from the upon any other party a written request for the admission by the
receipt of the complaint, the court is required to issue an order latter of the genuineness of any material and relevant document or
requiring the parties to avail of interrogatories to parties under Rule of the truth of any material and relevant matter of fact (Rule 26,
25 and request for admission by adverse party under Rule 26 or at Section 1). This mode of discovery allows a party to request his
their discretion make use of depositions under Rule 23 or other opponent to admit certain material and relevant matters which
measures under Rules 27 and 28 within five (5) days from the filing may, in all probability, not be disputed during trial. Any such
of the answer. A copy of this order shall be served upon the matters admitted are withdrawn from contention and from the
defendant together with the summons. A copy of the order shall necessity of proof, thereby simplifying and limiting the
also be served upon the plaintiff (A.M. No.-03-1-09-SC, July 13, presentation of evidence. The matters admitted would be
2004). considered judicial admissions that require no proof (Rule 129,
Section 4).
MODES OF DISCOVERY UNDER THE RULES OF COURT
PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS
The following are the modes of discovery under the Rules of Court: Upon motion of any party showing good cause therefor, the court
a. Depositions pending action (Rule 23); in which an action is pending may order any party to produce and
b. Depositions before action or pending appeal (Rule 24); permit the inspection and copying of any designated documents or
c. Interrogatories to parties (Rule 25); order any party to permit entry upon designated land or other
property in his possession or control for the purpose of inspecting
d. Admission by adverse Party (Rule 26);
or photographing the property or any designated relevant object or
e. Production or inspection of documents and things (Rule operation thereon (Rule 27, Section 1).
27); and
f. Physical and mental examination of persons (Rule 28). PHYSICAL AND MENTAL EXAMINATION OF PERSONS
Under Rule 28, in an action in which the mental or physical
DEPOSITION condition of a party is in controversy, the court in which the action
Deposition refers to the testimony of a witness taken upon is pending may in its discretion order him or her to submit to a
interrogatories, not in open court, but in pursuance of a physical or mental examination by a physician.
commission to take testimony issued by a court, or under a general
law on the subject, and reduced to writing and duly authenticated, APPLICABILITY TO CRIMINAL CASES (Riano)
and intended to be used upon the trial of an action in court. It is a The accused in a criminal case has the right to avail of the various
written declaration under oath, made upon notice to the adverse modes of discovery. There is nothing in the Rules of Court which
party for the purpose of enabling him to attend and cross-examine; limit the defendant's right to avail of the various modes of discovery
or upon written interrogatories. (Black's Law Dictionary, Revised only to civil cases. Corollarily, there are "modes of discovery" under
4th Edition). It is the giving of notice to the adverse party which Rule 119 of the Rules on Criminal Procedure although they are not
especially distinguishes a deposition from an ordinary affidavit called depositions, etc. but are called other names. For instance,
(Zinner v. Louis Meyers & Son, 181 Misc. 344, 43 N.Y.S.2d 319, 320). the procedure under Sections 12 and 15 of Rule 119, although
similar to depositions, is called conditional examination of
With specific reference to a deposition under the Rules of Court, it witnesses. (See Sections 12 to 15, Rule 119).
refers to the written testimony of a witness given in the course of a
judicial proceeding, in advance of the trial or hearing, upon oral
examination or in response to written interrogatories, and where
an opportunity is given for cross-examination.

INTERROGATORIES
An interrogatory is a set or series of written questions drawn up for
the purpose of being propounded to a party or a witness whose
testimony is taken on deposition. It refers to a series of formal
written questions used in the judicial examination of a party or a
witness.

Interrogatories are either direct or cross, the former being those

which are put on behalf of the party calling a witness; the latter are
those which are interposed by the adverse party. (Black's Law
Dictionary, Revised 4th Edition).

Interrogatories under Rule 25 are served by a party to an action

upon his opponent. Any party desiring to elicit material and
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CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

RULE 23 CROSS-EXAMINATION IN DEPOSITION TAKING

DEPOSITIONS PENDING ACTION Section 3 provides that:
*From the notes of Atty. Jess Zachael Espejo Section 3. Examination and cross-examination. —
Examination and cross-examination of deponents may
Section 1. Depositions pending action, when may be taken. - proceed as permitted at the trial under Sections 3 to
Upon ex parte motion of a party, the testimony of any person, 18 of Rule 132. (3)
whether a party or not, may be taken by deposition upon oral
examination or written interrogatories. The attendance of Correlatively, Section 6 of Rule 132 provides that:
witnesses may be compelled by the use of a subpoena as Section 6. Cross-examination; its purpose and extent.
provided in Rule 21. Depositions shall be taken only in - Upon the termination of the direct examination, the
accordance with these Rules. The deposition of a person witness may be cross-examined by the adverse party
confined in prison may be taken only by leave of court on such on any relevant matter, with sufficient fullness and
terms as the court prescribes. (1a) freedom to test his or her accuracy and truthfulness
and freedom from interest or bias, or the reverse, and
DEPOSITION DEFINED to elicit all important facts bearing upon the issue. (a)
DEPOSITION is the written testimony of a witness given in the
course of a judicial proceeding, in advance of the trial or hearing,
upon oral examination or in response to written interrogatories, As a rule in Evidence, there must be an opportunity to cross-
and where an opportunity is given for cross-examination (REPUBLIC examine a witness also to determine whether or not he is testifying
versus SANDIGANBAYAN, G.R. No. 112710, May 30, 2001). on facts based on his own personal knowledge or facts derived from
his own perception. It is required that a witness must be subjected
Simply, it is the testimony of a witness reduced to writing in due to cross examination by opposing counsel to test the perception,
form of law, taken by virtue of a commission or other authority of memory, veracity and articulateness.
a competent tribunal.
The opportunity to cross-examine a witness is as important in the
PEOPLE versus WEBB taking of a deposition as it is important to testimonies made in open
G.R. No. 132577, August 17, 1999 court. While the rules of evidence are applied in the taking of a
deposition, the deposition officer, or the person before whom the
As defined, a deposition is the testimony of a witness taken deposition is taken, has no power to rule on objections regarding
upon oral question or written interrogatories, not in open court, the admissibility of evidence.
but in pursuance of a commission to take testimony issued by
court, or under a general law or court rule on the subject, and Thus, it is vital that the adverse party must register timely
reduce to writing and duly authenticated, and intended to be objections and have the same recorded so that the objection can
used in preparation and upon the trial of a civil or a criminal be ruled upon later on in court.
prosecution. A pretrial discovery device by which one party
(through his or her attorney) ask oral questions of the other It must be noted, however, that despite the taking of a deposition,
party or of a witness for the other party. The person who is it is not intended as a substitute for a testimony made in court.
deposed is called the deponent. The deposition is conducted Hence, if the purpose of the taking of a deposition is to have the
under oath outside of the court room, usually in one of the same in advance of a trial or hearing where the deponent is
lawyer's offices. A transcript — word for word account - is made intended as a witness, he must still testify in court and repeat his
of the deposition. Testimony of (a) witness, taken in writing, testimony there. In effect, the deponent may be cross-examined
under oath or affirmation, before some judicial officer in answer twice: first, during the taking of his deposition and second, during
to questions or interrogatories. his time testifying in court.

PURPOSES OF DEPOSITION-TAKING Q: However, are there instances when the deponent is not
The purposes of taking depositions are to: subjected to cross-examination at all and his testimony is not
1. Give greater assistance to the parties in ascertaining the considered hearsay?
truth and in checking and preventing perjury; A: YES. Under Section 4(c), the deposition of a witness may be used
2. Provide an effective means of detecting and exposing as his direct testimony. For instance, the deponent's testimony was
false, fraudulent claims and defenses; taken but he died before he was allowed to testify in court. Also,
under Section 4, the deposition of a witness may be taken without
3. Make available in a simple, convenient and inexpensive
and used against the adverse party for as long as he was duly
way, facts which otherwise could not be proved except notified of the taking of the deposition but simply ignores the
with great difficulty; notice and fails to appear. The adverse party thus loses the right to
4. Educate the parties in advance of trial as to the real value cross-examine. Despite lack of cross-examination, the deposition
of their claims and defenses thereby encouraging will not constitute hearsay and is thus admissible as the deceased
settlements; witness' testimony.
5. Expedite litigation;
TYPES OF DEPOSITIONS (Riano)
6. Safeguard against surprise;
A deposition is the taking of the testimony of any person, whether
7. Prevent delay; he be a party or not, but at the instance of a party to the action.
8. Simplify and narrow the issues; and This testimony is taken out of court. It may be either by: (a) an oral
9. Expedite and facilitate both preparation and trial. examination, or by (b) a written interrogatory (Sec. 1, Rule 23, Rules
of Court). A deposition may be sought for use in a future action
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CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

(Rule 24), during a pending action (Rule 23) or for use in a pending
appeal (Rule 24). The opposite applies in depositions sought to be taken before
service of an answer. In this case, the defendant can still file a
If the deposition is for use during a pending trial action, it is motion to dismiss on the ground of lack of jurisdiction over his
commonly called a deposition DE BENNE ESSE and is governed by person. He can still refuse to be deposed. Thus, the taking of a
Rule 23. If it is to perpetuate a testimony for use in future deposition must still be subject to the discretion of the court, again,
proceedings as when it is sought before the existence of an action, to ensure that resort to such mode of discovery will not
or for cases on appeal, it is called a deposition IN PERPETUAM REI unnecessarily waste time and expense or lead to delays.
MEMORIAM.
Note also that a deposition can be taken at the instance of any
WHEN LEAVE OF COURT IS REQUIRED FOR TAKING A party, the plaintiff or defendant. If the defendant is allowed to have
DEPOSITION PENDING ACTION the deposition of a person taken before he files his answer without
Leave of court for taking a deposition is not required after an leave of court, the process can be abused and unduly taken
answer has been served. However, in the following instances, leave advantage of by him. He can simply take the deposition of the
of court would be required: plaintiff and the plaintiff's witnesses and tailor-make his answer
(a) Leave of court is required before the service of an answer based on the testimonies and evidence he will discover. Thus,
but after jurisdiction has been acquired over the deposition-taking ought to be regulated by the court during the
defendant or over the property subject of the action; stage when the defendant still has not filed and served his answer.
(b) When it is the deposition of a prisoner that is to be taken,
WHO MAY APPLY FOR THE TAKING OF A DEPOSITION?
his deposition may be taken only with leave of court and Section 1 provides that the taking of a deposition may be at the
upon such terms as the court may prescribe (Sec. 1, Rule instance of ANY PARTY (i.e. the plaintiff and defendant). As to who
23, Rules of Court). may be a deponent, Section 1 provides that it may be any person,
whether a party or not.
REASONS BEHIND REQUIREMENT OF LEAVE OF COURT
Why is there a need for leave of court to take the deposition of a CAN A NON-RESIDENT FOREIGN CORPORATION APPLY FOR
person when there is still no service of an answer and why is leave DEPOSITION-TAKING?
of court not required when an answer has been served? The Yes, for as long as it is a party. Thus, in the case of:
distinction, it is posited, lies in PRACTICALITY and ECONOMY.
SAN LUIS versus ROJAS, ET AL.
When an answer has been served, the issues are already joined. The G.R. No. 159127, March 3, 2008
defendant has already laid down his defenses, admissions and
denials. Since the taking of a deposition serves the purpose of Unequivocally, the rule does not make any distinction or
narrowing and clarify the basic issues in the case, the parties restriction as to who can avail of deposition. The fact that
already know what issues need narrowing and clarification. private respondent is a non-resident foreign corporation is
immaterial. The rule clearly provides that the testimony of any
When an answer has not yet been served, the taking of a deposition person may be taken by deposition upon oral examination or
may be premature and superfluous. Since the defendant has not written interrogatories, at the instance of any party, Depositions
yet revealed his defenses, admissions and denials, the party seeking serve as a device for ascertaining the facts relative to the issues
to perpetuate testimony through a deposition, will figuratively be of the case. The evident purpose is to enable the parties,
groping in the dark as to what specific evidentiary matters he needs consistent with recognized privileges, to obtain the fullest
to clarify and narrow down. Thus, leave of court is required to possible knowledge of the issues and facts before civil trials and
ensure that resort to such mode of discovery will not unnecessarily thus prevent the said trials from being carried out in the dark.
waste time and expense or lead to delays rather than promote
speed and efficiency. WHEN MAY DEPOSITIONS BE TAKEN?
Depositions may be taken before action, at pre-trial, while the
Furthermore, there appears to be a deeper reason for the action is pending or even pending appeal. They may also be taken
difference in requirement under the previous incarnations of the during the period of execution of a final judgment.
Rules of Court. Under the 1997 Rules, if the defendant wants to
question the jurisdiction of the court over his person because EAGLERIDGE DEVELOPMENT CORP. versus CAMERON
summons was improperly served, he should not file an answer. GRANVILLE
Rather, he should file a motion to dismiss on the ground of lack of G.R. No. 204700, November 24, 2014
jurisdiction of the court over his person. This is a ground he cannot
set up as an affirmative defense in an answer. If he files an answer, In Dasmariñas Garments, Inc. v. Reyes, G.R. No. 108229, August
there is deemed to be a voluntary appearance which waives the 24, 1993, this court declared that depositions, as a mode of
necessity of formal notice (Rule 14, Section 20). discovery, “may be taken at any time after the institution of any
action (as there is) no prohibition against the taking of
Hence, where the defendant files an answer, it means that he is not depositions after pre-trial.” Thus:
questioning the jurisdiction of the court over his person. Any
deposition may thus be taken without leave of court. The Dasmariñas also contends that the "taking of
defendant cannot then refuse to be deposed by setting up lack of deposition is a mode of pretrial discovery to be availed
jurisdiction over his person. The court need not worry about the of before the action comes to trial." Not so.
deposition being frustrated by such lack of jurisdiction because the Depositions may be taken at any time after the
defendant already filed an answer. institution of any action, whenever necessary or
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CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

convenient. There is no rule that limits deposition- While it is true that leave of court in certain instances is not
taking only to the period of pre-trial or before it; no required for the purpose of taking a deposition, depositions under
prohibition against the taking of depositions after pre- Rule 23 relate to pending actions over which the court has control.
trial. Indeed, the law authorizes the taking of The court is authorized to issue orders to protect the parties and
depositions of witnesses before or after an appeal is deponents under Section 16 or to terminate or limit the
taken from the judgment of a Regional Trial Court "to examination under Section 18 of this Rule.
perpetuate their testimony for use in the event of
further proceedings in the said court”, and even Section 4. Use of depositions. - At the trial or upon the hearing
during the process of execution of a final and of a motion or an interlocutory proceeding, any part or all of a
executory judgment (East Asiatic Co. v. C.I.R., 40 SCRA deposition, so far as admissible under the rules of evidence, may
521, 544). be used against any party who was present or represented at
the taking of the deposition or who had due notice thereof, in
accordance with any one of the following provisions:
Section 2. Scope of examination. — Unless otherwise ordered (a) Any deposition may be used by any party for the
by the court as provided by section 16 or 18 of this Rule, the purpose of contradicting or impeaching the testimony
deponent may be examined regarding any matter, not of the deponent as a witness;
privileged, which is relevant to the subject of the pending (b) The deposition of a party or of any one who at the
action, whether relating to the claim or defense of any other
time of taking the deposition was an officer, director,
party, including the existence, description, nature, custody,
condition, and location of any books, documents, or other or managing agent of a public or private corporation,
tangible things and the identity and location of persons having partnership, or association which is a party may be
knowledge of relevant facts. (2) used by an adverse party for any purpose;
(c) The deposition of a witness, whether or not a party,
SUBJECT MATTER OF DEPOSITIONS may be used by any party for any purpose if the court
The deponent may be examined regarding any matter, whether finds: (1) that the witness is dead; or (2) that the
relating to the claim or defense of any other party, including the
witness resides at a distance more than one hundred
existence, description, nature, custody, condition, and location of
(100) kilometers from the place of trial or hearing, or
any books, documents, or other tangible things and the identity and
location of persons having knowledge of relevant facts. is out of the Philippines, unless it appears that his or
her absence was procured by the party offering the
WHILE THE DEPONENT MAY BE EXAMINED AS TO ANY MATTER, deposition; or (3) that the witness is unable to attend
THIS VERY BROAD SCOPE OF EXAMINATION IS SUBJECT TO THE or testify because of age, sickness, infirmity, or
FOLLOWING LIMITATIONS: imprisonment; or (4) that the party offering the
1. The matter inquired into must not be privileged;
deposition has been unable to procure the
Privileged communications can be found in Section 24 of Rule 130.
attendance of the witness by subpoena; or (5) upon
They are: (a) communication between husband and wife; (b)
communication between attorney and client; (c) communication application and notice, that such exceptional
between physician and patient; (d) communication between priest circumstances exist as to make it desirable, in the
and penitent; and (e) privileged communications relating to public interest of justice and with due regard to the
office. In addition, trade secrets are considered privileged importance of presenting the testimony of witnesses
information (Section 26, Rule 130). orally in open court, to allow the deposition to be
used; and
There are, however, other privileged matters that are not
(d) If only part of a deposition is offered in evidence by a
mentioned by Rule 130. Thus, newsmen may not be compelled to
disclose the source of published news. Voters may not be party, the adverse party may require him or her to
compelled to disclose for whom they voted. Bank deposits are also introduce all of it which is relevant to the part
privileged under the Secrecy of Bank Deposit Act. Information introduced, and any party may introduce any other
contained in tax census returns are also considered confidential. parts. (4a)
Finally, matters discussed during the conduct of alternative modes
of dispute resolution are also confidential. WHEN MAY A DEPOSITION BE USED IN A PENDING ACTION?
Any part or all of a deposition may be used:
2. The matter inquired into must be relevant to the subject 1.) At the trial itself, as when the parties are presenting
matter of the pending action, Thus, a deponent must be their respective evidence-in-chief;
examined only with respect to matters that constitute 2.) During a hearing of a motion;
relevant evidence, or evidence which has a tendency in
reason to establish the probability or improbability of the An example of this is Rule 35 on Summary Judgment.
fact in issue in the case. Section 1. Summary judgment for claimant. — A party
seeking to recover upon a claim, counterclaim, or cross-
3. The examination is always subject to reasonable claim or to obtain a declaratory relief may, at any time
after the pleading in answer thereto has been served,
regulation of the court under Sections 16 and 18 of Rule
move with supporting affidavits, depositions or
23. admissions for a summary judgment in his or her favor
upon all or any part thereof.
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CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

opportunity for cross-examination must be accorded a party at the

3.) During a hearing of an interlocutory proceeding. time that the testimonial evidence is actually presented against him
during the trial or hearing.
An example of this is Rule 61 on Support Pendente Lite.
Section 1. Application. — At the commencement of the (a) Any deposition may be used by any party for the purpose of
proper action or proceeding, or at any time prior to the contradicting or impeaching the testimony of the deponent as a
judgment or final order, a verified application for support witness;
pendente lite may be filed by any party stating the
grounds for the claim and the financial conditions of both In both the taking of a deposition and the presentation of
parties, and accompanied by affidavits, depositions or testimonial evidence in court, the deponent or witness is sworn to
other authentic documents in support thereof. (la) an oath to tell the truth. Any falsehood in these occasions opens
the witness to perjury.
AGAINST WHOM MAY A DEPOSITION BE USED? The deposition of an intended witness in court may be taken in
advance. In essence, the taking of his deposition under oath
Any part or all of a deposition may be used against: preserves the testimony for later use in trial. It is only a means of
1.) Any party who was present; or knowing what the witness will testify about.
2.) A party who was represented at the taking of the
deposition; or IMPEACHMENT
3.) A party who did not appear or represented but was duly Suppose that the deponent is presented as a witness. The parties,
notified of the scheduled deposition taking. adverse or not, may espouse a reasonable expectation that the
deponent will testify exactly according to how he testified when his
The procedure for deposition taking is first, to notify the other party deposition was taken. Suppose further that the deponent reversed
of the date, place and time of the deposition taking of a person. The his story and totally contradicted his own deposition. Any party may
other party is free to go there and participate. So if person then use his deposition to contradict or impeach the testimony of
appeared and participated, he is bound by the deposition. If he fails the deponent as a witness, in relation to Rule 132, Section 11:
to appear but sent a representative, the person is still bound.
Suppose a person received the notice and never bothered to go or Section 11. Impeachment of adverse party's witness.
participate, he is still bound because the law says, for as long as you - A witness may be impeached by the party against
are notified, you are bound. So whether you will come or not, you whom he or she was called, by contradictory evidence,
are bound by the deposition taking. In this case, you might as well by evidence that his or her general reputation for truth,
show up. honesty, or integrity is bad, or by evidence that he or
she has made at other times statements inconsistent
USES OF DEPOSITION with his or her present testimony, but not by evidence
Note, that a deposition is never intended as an easy substitute for of particular wrongful acts, except that it may be
actual testimony in court. The principle therefore to remember is shown by the examination of the witness, or record of
that the deponent's testimony must be repeated in court for it to the judgment, that he or she has been convicted of an
be admitted as evidence. The deponent is not exempt from offense. (11a)
testifying in court, as a general rule. An exception to this is when
the deponent is the adverse party under paragraph (b). Note that under Rule 132, Section 11, it is the adverse party who
can impeach the witness. The party who presented the witness has
Depositions are principally made available by law to the parties as no right to impeach his own witness, as a general rule, under Rule
a means of informing themselves of all the relevant facts; they are 132, Section 12:
not therefore generally meant to be a substitute for the actual Section 13. Party may not impeach his or her own
testimony in open court of a party or witness. The deponent must witness. - Except with respect to witnesses referred to
as a rule be presented for oral examination in open court at the trial in paragraphs (d) and (e) of Section 10 of this Rule, the
or hearing (DASMARIÑAS GARMENTS, INC. versus REYES, G.R. No. party presenting the witness is not allowed to impeach
108229, August 24, 1993). This is a requirement of the rules of his or her credibility.
evidence. Section 1, Rule 132 of the Rules of Court provides:
A witness may be considered as unwilling or hostile only
SECTION 1. Examination to be done in open court. — if so declared by the court upon adequate showing of his
The examination of witnesses presented in a trial or or her adverse interest, unjustified reluctance to testify,
hearing shall be done in open court, and under oath or or his or her having misled the party into calling him or
affirmation. Unless the witness is incapacitated to her to the witness stand.
speak, or the question calls for a different mode of
answer, the answers of the witness shall be given The unwilling or hostile witness so declared, or the
orally. witness who is an adverse party, may be impeached by
the party presenting him or her in all respects as if he or
Any deposition offered to prove the facts therein set out during a she had been called by the adverse party, except by
trial or hearing, in lieu of the actual oral testimony of the deponent evidence of his or her bad character. He or she may also
in open court, may be opposed and excluded on the ground that it be impeached and cross-examined by the adverse party,
is hearsay: the party against whom it is offered has no opportunity but such cross-examination must only be on the subject
to cross-examine the deponent at the time that his testimony is matter of his or her examination-in-chief. (12a)
offered. It matters not that opportunity for cross-examination was
afforded during the taking of the deposition; for normally, the
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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

Based on the above provision, a party can only impeach his own hearing, or is out of the Philippines, unless it appears that his or
witness if the witness is an unwilling or hostile one or if his witness her absence was procured by the party offering the deposition; or
is an adverse party or an officer, director, or managing agent of a (3) that the witness is unable to attend or testify because of age,
public or private corporation or of a partnership or association sickness, infirmity, or imprisonment; or (4) that the party offering
which is an adverse party. the deposition has been unable to procure the attendance of the
witness by subpoena; or (5) upon application and notice, that such
Q: Can the party who caused the taking of the deposition and who exceptional circumstances exist as to make it desirable, in the
presented the deponent as witness impeach his own witness? interest of justice and with due regard to the importance of
A: YES. Such party may have the witness declared as an unwilling presenting the testimony of witnesses orally in open court, to
or hostile witness. allow the deposition to be used;

How is the deponent-witness impeached by the inconsistencies Paragraph [c] is an exception to paragraph [a]. Paragraph [a] applies
between his deposition and his testimony in open court? We apply only to a deposition of a witness for contradicting or impeaching his
Section 14 of Rule 132: testimony. It is only in paragraph [b] which applies the use of
Section 14. How witness impeached by evidence of deposition for any purpose but it refers to the deposition of the
inconsistent statements. – Before a witness can be adverse party.
impeached by evidence that he or she has made at other
times statements inconsistent with his or her present Paragraph [c] allows the use of the deposition of a WITNESS for any
testimony, the statements must be related to him or her, purpose. Stated otherwise, and by necessary implication, the
with the circumstances of the times and places and the instances referred to under paragraph [c] are also exceptions to the
persons present, and he or she must be asked whether principle that a deponent is not exempt from testifying in court. A
he or she made such statements, and if so, allowed to deposition taken under paragraph [c] can be used as a substitute
explain them. If the statements be in writing, they must for oral testimony.
be shown to the witness before any question is put to
him or her concerning them. (13a) These situations highlight the importance of cross-examination and
making timely objections during deposition-taking. If the
(b) The deposition of a party or of any one who at the time of deposition is admitted as a substitute for oral testimony, there is
taking the deposition was an officer, director, or managing agent no more opportunity to cross-examine or object later during trial.
of a public or private corporation, partnership, or association At least, when there was prior cross-examination and objections
which is a party may be used by an adverse party for any purpose; during deposition-taking, the admission of the deposition in place
of oral testimony will always be subject to the said objections.
Note that paragraph (b) presents a situation where the deponent is
himself a party. His deposition may be used by the adverse party The principle conceding admissibility to a deposition when the
for any purpose, including impeachment. Because the use of the deponent is dead, out of the Philippines, or otherwise unable to
deposition is not limited to impeachment, this paragraph is an come to court to testify, is consistent with another rule of evidence,
exception to the rule that the deponent must still testify in court. found in Section 49, Rule 132 of the Rules of Court, to wit:
Hence, any admission made by the party-deponent in his
deposition can be used as evidence against him without having to Section 49. Testimony or deposition at a former
present him as a witness in court. Take further note that, if the proceeding. - The testimony or deposition of a witness
party-deponent makes admissions that are favorable to him, such deceased or out of the Philippines or who cannot, with
admissions do not bind the adverse party. These admissions are in due diligence, be found therein, or is unavailable or
the concept of a self-serving admission and are therefore otherwise unable to testify, given in a former case or
inadmissible. proceeding, judicial or administrative, involving the
same parties and subject matter, may be given in
REQUISITES OF SELF-SERVING EVIDENCE: evidence against the adverse party who had the
(1) The testimony is favorable to the declarant; opportunity to cross-examine him or her.
(2) It is made extrajudicially; and
(3) It is made in anticipation of litigation. SANTAMARIA versus CLEARY
G.R. No. 197122, June 15, 2016
REASONS FOR INADMISSIBILITY As regards the taking of depositions, Rule 23, Section 1 is clear
1.) A man may be safely believed if he declares against his that the testimony of any person may be taken by deposition
own interest, but not if he advocates his interest. upon oral examination or written interrogatories at the instance
(Lichauco v. Atlantic Gulf & Pacific Co., 84 Phil. 342) of any party.

2.) It is excluded on the same ground as any hearsay San Luis explained that this provision "does not make any
evidence, that, the lack of opportunity for cross- distinction or restriction as to who can avail of deposition." Thus,
examination by the adverse party. (National this Court found it immaterial that the plaintiff was a non-
Development Co., v. Workmen's Compensation resident foreign corporation and that all its witnesses were
Commission, 19 SCRA 865) Americans residing in the United States.

(c) The deposition of a witness, whether or not a party, may be On the use of depositions taken, we refer to Rule 23, Section 4
used by any party for any purpose if the court finds: (1) that the of the Rules of Court. This Court has held that "depositions may
witness is dead; or (2) that the witness resides at a distance more be used without the deponent being actually called to the
than one hundred (100) kilometers from the place of trial or witness stand by the proponent, under certain conditions and
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CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

for certain limited purposes." These exceptional cases are PARAGRAPH PARAGRAPH PARAGRAPH
enumerated in Rule 23, Section 4(c) as follows: A B C
Deponent The deponent The deponent The deponent
(c) The deposition of a witness, whether or not a party, may be is any witness, is a party or an is any witness,
used by any party for any purpose if the court finds: (1) that the whether a officer of a whether a
witness is dead; or (2) that the witness resides at distance more party or not party. party or not,
than one hundred (100) kilometers from the place of trial or who is dead,
hearing, or is out of the Philippines, unless it appears that his not bound by
absence was procured by the party offering the deposition; or a subpoena,
(3) that the witness is unable to attend or testify because of age, incapacitated
sickness, infirmity, or imprisonment; or (4) that the party by age, sick,
offering the deposition has been unable to procure the infirm, or
attendance of the witness by subpoena; or (5) upon application imprisoned,
and notice, that such exceptional circumstances exist as to make or unable to
it desirable, in the interest of justice and with due regard to the attend
importance of presenting the testimony of witnesses orally in despite being
open court, to allow the deposition to be used. (Emphasis subpoenaed.
supplied) Use of The The deposition The
Deposition deposition may be used deposition
The difference between the taking of depositions and the use of may be used by an may be used
depositions taken is apparent in Rule 23, which provides by ANY PARTY ADVERSE by ANY PARTY
separate sections to govern them. Jurisprudence has also to impeach PARTY for any for any
discussed the importance of this distinction and its implications. the testimony purpose, purpose, but
The availability of the proposed deponent to testify in court of the including logically
does not constitute "good cause" to justify the court's order that deponent as a impeachment. excluding
his deposition shall not be taken. That the witness is unable to witness. impeachment
attend or testify is one of the grounds when the deposition of a as the witness
witness may be used in court during the trial. But the same cannot testify
reason cannot be successfully invoked to prohibit the taking of in court.
his deposition. Need for The deponent The deponent A deposition
Testimony must be need not be taken under
The right to take statements and the right to use them in court in Court subsequently presented so paragraph [c]
have been kept entirely distinct. The utmost freedom is allowed presented as that any can be used
in taking depositions; restrictions are imposed upon their use. witness in admission as a
As a result, there is accorded the widest possible opportunity for court to serve contained in substitute for
knowledge by both parties of all the facts before the trial. Such the purpose of the deposition oral
of this testimony as may be appropriate for use as a substitute impeachment. may be used testimony.
for viva voce examination may be introduced at the trial; the against him.
remainder of the testimony, having served its purpose in Any admission
revealing the facts to the parties before trial, drops out of the embodied in
judicial picture. the deposition
is evidence per
Under the concept adopted by the new Rules, the deposition se.
serves the double function of a method of discovery —with use
on trial not necessarily contemplated — and a method (d) If only part of a deposition is offered in evidence by a party, the
of presenting testimony. Accordingly, no limitations other than adverse party may require him or her to introduce all of it which
relevancy and privilege have been placed on the taking of is relevant to the part introduced, and any party may introduce
depositions, while the use at the trial is subject to any other parts.
circumscriptions looking toward the use of oral testimony
wherever practicable. Paragraph [d] simply means that no party may limit the full use of
a deposition simply because only some part of it is favorable to him.
The rules and jurisprudence support greater leeway in allowing The rule allows the following remedies available to the adverse
the parties and their witnesses to be deposed in the interest of party:
collecting information for the speedy and complete disposition 1.) To require the proponent to introduce all of the
of cases. deposition relevant to the part introduced;
2.) To introduce any other parts himself.
Rule 23, Section 4(c)(2) of the Rules of Court, which was invoked
by respondent, governs the use of depositions taken. This allows Section 5. Effect of substitution of parties. - Substitution of
the use of a deposition taken when a witness is "out of the parties does not affect the right to use depositions previously
Philippines." taken; and, when an action has been dismissed and another
action involving the same subject is afterward brought between
the same parties or their representatives or successors in
COMPARATIVE TABLE REGARDING USES OF DEPOSITIONS interest, all depositions lawfully taken and duly filed in the
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CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

former action may be used in the latter as if originally taken

therefor. (5) NO ESTOPPEL
A party cannot be estopped by resorting to depositions as a mode
IMMUTABILITY OF DEPOSITIONS of discovery. Since it is precisely a mode of discovery, a party who
Section 5 provides in substance that a deposition, once lawfully discovers nothing useful or favorable, through the deposition of a
taken, is immutable, for lack of a better term. A deposition may person, is not bound to present the said deponent as a witness. Had
thus be used notwithstanding: the rule been otherwise, the law will in effect penalize resort to the
1. The substitution of parties; modes of discovery.
2. The dismissal of the action and the subsequent filing of
another action involving the same subject between the Take note, however, that there is no prohibition on the part of the
same parties or their representatives or successors in adverse party to use the deposition against the party who applied
interest. for its taking or to make the deponent his witness.

Hence, all depositions lawfully taken and duly filed in the former Section 8. Effect of using depositions. - The introduction in
action may be used in the latter as if originally taken therefor. evidence of the deposition or any part thereof for any purpose
other than that of contradicting or impeaching the deponent
Section 6. Objections to admissibility. - Subject to the provisions makes the deponent the witness of the party introducing the
of Section 29 of this Rule, objections may be made at the trial or deposition, but this shall not apply to the use by an adverse party
hearing to receiving in evidence any deposition or part thereof of a deposition as described in paragraph (6) of Section 4 of this
for any reason which would require the exclusion of the evidence Rule. (8)
if the witness were then present and testifying. (6)
USE, NOT TAKING, OF DEPOSITION MAKES A DEPONENT A
SANTAMARIA versus CLEARY PARTY'S WITNESS
G.R. No. 197122, June 15, 2016 Simply taking a person's deposition does not make him the party's
witness. However, once the deposition is offered in court, the
In any case, Rule 23 of the Rules of Court still allows for deponent becomes the party or proponent's witness.
objections to admissibility during trial. The difference between
admissibility of evidence and weight of evidence has long been By way of exception, offering a deposition still does not make the
laid down in jurisprudence. These two are not to be equated. deponent a party's witness:
Admissibility considers factors such as competence and 1. When the deposition is offered to contradict or impeach the
relevance of submitted evidence. On the other hand, weight is deponent as witness;
concerned with the persuasive tendency of admitted evidence. 2. When the deposition of the adverse party is the one offered.

The pertinent sections of Rule 23 on admissibility are: By way of exception, offering a deposition still does not make the
deponent a party’s witness:
SEC. 6. Objections to admissibility. - Subject to the 1. When the deposition is offered to contradict or impeach
provisions of section 29 of this Rule, objection may be the deponent as witness;
made at the trial or hearing to receiving in evidence 2. When the deposition of the adverse party is the one
any deposition or part thereof for any reason which offered.
would require the exclusion of the evidence if the
witness were then present and testifying. FORTUNE CORPORATION v. COURT OF APPEALS
G.R. No. 108119 | January 19, 1994
SEC. 29. Effect of errors and irregularities in
depositions XXX HELD: The right to take statements and the right to use them in
court have been kept entirely distinct. The utmost freedom is
(c) As to competency and relevancy of evidence. - allowed in taking depositions, restrictions are imposed upon
Objections to the competency of a witness or the their use. As a result, there is accorded the widest possible
competency, relevancy (sic), or materiality of opportunity for knowledge by both parties of all the facts before
testimony are not waived by failure to make them the trial. Such of this testimony as may be appropriate for use as
before or during the taking of the deposition, unless a substitute for viva voce examination may be introduced at the
the ground of the objection is one which might have trial; the remainder of the testimony, having served its purpose
been obviated or removed if presented at that time. in revealing the facts to the parties before trial, drops out of the
judicial picture.
As regards weight of evidence, "the admissibility of the
deposition does not preclude the determination of its probative Under the concept adopted by the new Rules, the deposition
value at the appropriate time." In resorting to depositions, serves the double function of a method of discovery - with use
respondent takes the risk of not being able to fully prove his on trial not necessarily contemplated - and a method of
case. presenting testimony. Accordingly, no limitations other than
relevancy and privilege have been placed on the taking of
depositions, while the use at the trial is subject to
circumscriptions looking toward the use of oral testimony
Section 7. Effect of taking depositions. – A party shall not be
wherever practicable.
deemed to make a person his or her own witness for any
purpose by taking his or her deposition. (7a)
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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

authorized to administer oaths by written stipulation of the parties

Section 9. Rebutting deposition. – At the trial or hearing any (Sec. 14, Rule 23, Rules of Court)
party may rebut any relevant evidence contained in a deposition
whether introduced by him or her or by any other party. Section 12. Commission or letters rogatory. – A commission or
letters rogatory shall be issued only when necessary or
Section 10. Persons before whom depositions may be taken convenient, on application and notice, and on such terms, and
within the Philippines. – Within the Philippines depositions may with such direction as are just and appropriate. Officers may be
be taken before any judge, notary public, or the person referred designated in notices or commissions either by name or
in Section 14 hereof. descriptive title and letters rogatory may be addressed to the
appropriate judicial authority in the foreign country.

DISTINCTIONS BETWEEN LETTERS ROGATORY AND

BEFORE WHOM TAKEN WITHIN THE PHILIPPINES (DEPOSITIONS COMMISSIONS
PENDING ACTION) LETTER ROGATORY COMMISSION
Within the Philippines, a deposition need not be taken before a Letters rogatory are requests Commissions are directives to
judge, although it may be taken before one. It may also be taken to foreign tribunals. officials of the issuing
before a notary public (Sec. 10, Rule 23, Rules of Court) or before jurisdiction.
any person authorized to administer oaths if the parties so stipulate A letter rogatory is a request A commission is an instrument
in writing (Sec. 14, Rule 23, Rules of Court). Examples of other to a foreign court to give its issued by a court of justice, or
persons authorized to administer oaths can be found in the Revised aid, backed by its power, to other competent tribunal,
Administrative Code of 1987, as follows: secure desired information. directed to a magistrate by his
official designation or to an
Section 41. Officers Authorized to Administer Oath. – individual by name,
The following officers have general authority to authorizing him to take the
administer oaths: President; Vice-President; Members depositions of the witnesses
and Secretaries of both Houses of the Congress; named therein.
Members of the Judiciary; Secretaries of Departments, In letters rogatory, the Commissions are taken in
provincial governors and lieutenant-governors, city methods of procedure are accordance with the rules laid
mayors, municipal mayors; bureau directors, regional under the control of the down by the court issuing the
directors; clerks of courts, registrars of deeds; other foreign tribunal. commission.
civilian officers in the public service of the government
of the Philippines whose appointments are vested in the PFEGER DULAY v. DULAY
President and are subject to confirmation by the G.R. No. 158857 | November 11, 2005
Commission on Appointments; all other constitutional
officers, and notaries public FACTS: In a complaint for recovery of his bank deposit with
prayer for a writ of attachment and damages, Rodrigo S. Dulay,
Take note of Section 14: a naturalized American citizen, alleged that upon his petition
Section 14. Stipulations regarding taking of sometime in October of 1996, his brother Godofredo S. Dulay,
depositions. – If the parties so stipulate in writing, Sr. and nephew Pfeger R. Dulay immigrated to the United States
depositions may be taken before any person authorized of America. Having nurtured affection, love and trust for his
to administer oaths, at any time or place, in accordance nephew Pfeger, Rodrigo opened a trust account with the Bank
with these Rules and when so taken may be used like of Boston on 27 January 1997 with a deposit of Two Hundred
other depositions. Thirty Thousand U.S. Dollars ($230,000.00), naming Pfeger as
trustee thereof. Pfeger emptied the account. Rodrigo filed a
This provision applies also to depositions taken outside the petition for the issuance of letters rogatory in order to get the
Philippines. depositions of several witnesses residing abroad through the
Clerk of Court of Boston, Ma., USA. Petitioners, on the other
Section 11. Persons before whom depositions may be taken in hand, moved to be allowed to file cross-examination questions
foreign countries. – In a foreign state or country, depositions to respondent's written interrogatories, which the trial court
may be taken (a) on notice before a secretary of embassy or granted.
legation, consul general, consul, vice-consul, or consular agent
of the Republic of the Philippines; (b) before such person or Meanwhile, petitioners filed a motion to dismiss the complaint
officer as may be appointed by commission or under letters on the ground of failure to prosecute. This was however denied
rogatory; or (c) the person referred to in Section 14 hereof. by the trial court, which instead allowed Rodrigo to complete his
depositions. As it turned out, however, the depositions could
BEFORE WHOM TAKEN (DEPOSITIONS PENDING ACTION) not be taken before the Clerk of Court of Massachusetts, but
OUTSIDE THE PHILIPPINES were taken instead before a notary public in New York.

Outside the Philippines, a deposition may be taken before (a) a On 2 February 2000, Rodrigo submitted to the trial court his
secretary of an embassy or legation, consul general, consul, vice- answers to the interrogatories and cross interrogatories of
consul, or consular agent of the Republic of the Philippines (Sec. 11, petitioners given before a notary public in the United States.
Rule 23, Rules of Court); (b) such person or officer as may be Thereafter, petitioners filed their Motion Reiterating Motion to
appointed by commission or letters rogatory; or (c) a person Dismiss Dated July 10, 2000, which the trial court denied in its
28 September 2000 Order. In the same Order, the trial court
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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

directed respondent to have the written and cross In our jurisdiction, depositions in foreign countries may be
interrogatories taken by the notary public authenticated by the taken: (a) on notice before a secretary of embassy or legation,
consulate. Thus, respondent filed a motion to withdraw the consul general, consul, vice consul, or consular agent of the
answers so that he could have them authenticated by a Republic of the Philippines; (b) before such person or officer as
Philippine consul in the United States. may be appointed by commission or under letters rogatory; or
(c) before any person authorized to administer oaths as
On 10 January 2001, petitioners filed an Omnibus Motion, stipulated in writing by the parties. While letters rogatory are
praying that the written interrogatories be declared requests to foreign tribunals, commissions are directives to
inadmissible and reiterating their prayer for the dismissal of the officials of the issuing jurisdiction.
complaint. The lower court denied the motion on 20 February
2001, at the same time directing the archival of the case while Leave of court is not required when the deposition is to be taken
waiting for the documents from the United States. According to before a secretary of embassy or legation, consul general,
the trial court, the dismissal of the case is improper considering consul, vice-consul or consular agent of the Republic of the
that Rodrigo had already commenced presenting his evidence Philippines and the defendant's answer has already been
and that it is mandated to hear the evidence on the served. However, if the deposition is to be taken in a foreign
counterclaims of the petitioners. Anent the objection to the country where the Philippines has no secretary of embassy or
admission of the answers to the written interrogatories, the trial legation, consul general, consul, vice consul or consular agent, it
court stated that the deposition taken before the Notary Public may be taken only before such person or officer as may be
from New York, whose authority was duly certified by the appointed by commission or under letters rogatory.
Philippine Consul in New York, substantially complied with the
Rules of Court. In the instant case, the authentication made by the consul was
a ratification of the authority of the notary public who took the
In their petition for review, petitioners argue that the Court of questioned depositions. The deposition was, in effect, obtained
Appeals erred when it refused to dismiss the case at the trial through a commission, and no longer through letters rogatory.
court level despite respondent's failure to prosecute his case It must be noted that this move was even sanctioned by the trial
with reasonable diligence. According to petitioners, the major court by virtue of its Order dated 28 September 2000. With the
delays in the litigation of the case were caused by respondent's ratification of the depositions in issue, there is no more
failure to send on time the needed documents to the trial court. impediment to their admissibility.
In addition, petitioners allege that contrary to the ruling of the
Court of Appeals the documents submitted by respondent were Besides, the allowance of the deposition can not be said to have
not taken in substantial compliance with the directive of the trial caused any prejudice to the adverse party. They were given the
court itself but in violation of Sections 11, 12, and 14, Rule 23 of opportunity to cross-examine the witnesses through their cross-
the Rules of Court. interrogatories, which were in turn answered by the deponents.
Save for the complaint of delay in the proceedings, petitioners
HELD: While the letters rogatory issued by the trial court were unable to point out any injury they suffered as a result of
specifically directed the Clerk of Court of Boston to take the the trial court's action.
depositions needed in the case, it became impossible to follow
the directive since the Clerk of Court of Boston merely brushed The ends of justice are reached not only through the speedy
it aside and refused to cooperate. Respondent cannot be faulted disposal of cases, but more importantly, through a meticulous
for the resultant delay brought about by this circumstance. and comprehensive evaluation of the merits of the case. The
Neither can the trial court be faulted for allowing the admission parties' right to be given full opportunity to ventilate their cases
of the depositions taken not in strict adherence to its original should not be hindered by a strict adherence to technicalities.
directive, nor for directing the petitioner to have the depositions After all, as this Court has so often enunciated, rules of
authenticated. Obviously, it was not within the trial court's procedure are not inflexible tools designed to hinder or delay,
power, much less the respondent's to force the Clerk of Court of but to facilitate and promote the administration of justice. A
Boston to have the deposition taken before it. It would be strict and rigid application of rules, resulting in technicalities that
illogical and unreasonable to expect respondent to comply with tend to frustrate rather than promote substantial justice, must
the letters rogatory without the cooperation of the very be avoided.
institution or personality named in the letters rogatory and
requested to examine the witnesses. After all, while a court had
the authority to entertain a discovery request, it is not required COMMISSION AND LETTERS ROGATORY DEFINED
to provide judicial assistance thereto. This reality was DASMARINAS GARMENTS, INC. v. REYES
recognized by the trial court when it ordered respondent to G.R. No. 108229 | August 24, 1993
have the questioned depositions authenticated by the
Philippine consulate. Indeed, refusing the allowance of the HELD: A commission may be defined as "(a)n instrument issued
depositions in issue would be going directly against the purpose by a court of justice, or other competent tribunal, to authorize a
of taking the depositions in the first place, that is, the disclosure person to take depositions, or do any other act by authority of
of facts which are relevant to the proceedings in court. such court or tribunal" (Feria, J., Civil Procedure, 1969 ed., p.
415, citing Cyclopedic Law Dictionary, p. 200). Letters rogatory,
More importantly, the Court finds that respondent substantially on the other hand, may be defined as "(a)n instrument sent in
complied with the requirements for depositions taken in foreign the name and by the authority of a judge or court to another,
countries. requesting the latter to cause to be examined, upon
interrogatories filed in a cause pending before the former, a
witness who is within the jurisdiction of the judge or court to
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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

whom such letters are addressed" (Feria, J., op. cit., citing The Philippine Government requested the Indonesian
Cyclopedic Law Dictionary, p. 653). Section 12, Rule 24 just Government to suspend the scheduled execution of Mary Jane.
quoted states that a commission is addressed to "officers ... It informed the Indonesian Government that the recruiters and
designated ... either by name or descriptive title," while letters traffickers of Mary Jane were already in police custody, and her
rogatory are addressed to some "appropriate judicial authority testimony is vital in the prosecution of Cristina and Julius. On
in the foreign state." Noteworthy in this connection is the April 28, 2015, or a few hours before the scheduled execution of
indication in the Rules that letters rogatory may be applied for Mary Jane, President Widodo of Indonesia granted her an
and issued only after a commission has been "returned indefinite reprieve as he received reports about the on-going
unexecuted" as is apparent from Form 21 of the "Judicial legal proceedings in the Philippines with respect to the case of
Standard Forms" appended to the Rules of Court, which requires Mary Jane, and that her recruiters were already in police
the inclusion in a "petition for letters rogatory" of the following custody.
paragraph, viz.:
The Indonesian authorities also allowed the Philippines' request
XXX XXX XXX to take Mary Jane's testimony but imposed the following
conditions:
3. A commission issued by this Court on the
________ day of____ ,19_, to take the testimony of (a) Mary Jane shall remain in detention in Yogyakarta, Indonesia;
(here name the witness or witnesses) in (here name (b) No cameras shall be allowed;
the foreign country in which the testimony is to be (c) The lawyers of the parties shall not be present; and
taken), before _____________ (name of officer), was (d) The questions to be propounded to Mary Jane shall be in
returned unexecuted by _____________ on the writing.
ground that _____________ all of which more fully
appears from the certificate of said _____________ Thereafter, the State filed a "Motion for Leave of Court to Take
to said commission and made a part hereof by the Testimony of Complainant Mary Jane Veloso by Deposition
attaching it hereto (or state other facts to show Upon Written Interrogatories." It posited that the taking of Mary
commission is inadequate or cannot be executed) Jane's testimony through the use of deposition upon written
(emphasis supplied). interrogatories is allowed under Rule 23 of the Revised Rules of
Court because she is out of the country and will not be able to
testify personally before the court due to her imprisonment.
CAN DEPOSITION TAKING UNDER SECTION 12 TAKE PLACE IN A
COUNTRY NOT RECOGNIZED BY THE PHILIPPINES? Cristina and Julius objected to the motion asserting that the
DASMARINAS GARMENTS, INC. v. REYES deposition should be made before and not during the trial. The
G.R. No. 108229 | August 24, 1993 depositions under Rules 23 and 25 of the Rules of Court are not
designed to replace the actual testimony of the witness in open
HELD: Petitioner would however prevent the carrying out of the court and the use thereof is confined only in civil cases. They
commission on various grounds. The first is that the deposition- further argued that such method of taking testimony will violate
taking will take place in "a foreign jurisdiction not recognized by their right to confront the witness, Mary Jane, or to meet her
the Philippines in view of its 'one-China policy."" This is face to face as provided under Section 14(2) of the 1987
inconsequential. What matters is that the deposition is taken Constitution. The RTC granted the prosecution's motion. The CA,
before a Philippine official acting by authority of the Philippine however, reversed the RTC.
Department of Foreign Affairs and in virtue of a commission duly
issued by the Philippine Court in which the action is pending, and ISSUES: (1) Does Rule 23 apply to criminal cases?
in accordance, moreover, with the provisions of the Philippine (2) Will allowing deposition of Mary Jane violate the
Rules of Court pursuant to which opportunity for cross- constitutional right of the accused to confront
examination of the deponent will be fully accorded to the witnesses?
adverse party.
HELD: Under Section 15, Rule 119 of the revised Rules of
APPLICABILITY OF RULE 23 TO CRIMINAL CASES; WHEN
Criminal Procedure, in order for the testimony of the
DISCOVERY NOT VIOLATIVE OF RIGHT TO CONFRONTATION
prosecution witness be taken before the court where the case is
PEOPLE v. SERGIO
being heard, it must be shown that the said prosecution witness
G.R. No. 240053 | October 9, 2019
is either: (a) too sick or infirm to appear at the trial as directed
by the order of the court, or; (6) has to leave the Philippines with
FACTS: Mary Jane Veloso, Cristina Sergio and Julius Lacanilao
no definite date of returning.
were friends and Mary Jane Veloso. neighbors in Talavera,
Nueva Ecija. Taking advantage of her dire situation and
Surely, the case of Mary Jane does not fall under either category.
susceptibility, Cristina and Julius offered Mary Jane a job as a
Therefore, a liberal interpretation of the Rules should be
domestic helper in Malaysia. Cristina gave Mary Jane her plane
allowed. We should not silence Mary Jane and deny her and the
ticket as well as a luggage to bring on her trip. She then asked
People of their right to due process by presenting their case
Cristina why the luggage was heavy but the latter simply replied
against the said accused. By the CA's belief that it was rendering
that because it was new. The luggage was the same bag she used
justice to the respondents, it totally forgot that it in effect
on her trip to Indonesia. It was only after she was apprehended
impaired the rights of Mary Jane as well as the People. By not
at the airport when Mary Jane realized that it contained
allowing Mary Jane to testify through written interrogatories,
prohibited drugs.
the Court of Appeals deprived her of the opportunity to prove
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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

her innocence before the Indonesian authorities and for the questions must be written verbatim, and a transcribed copy of
Philippine Government the chance to comply with the the same would be given to the counsel of the accused who
conditions set for the grant of reprieve to Mary Jane. would, in turn, submit their proposed cross interrogatory
questions to the prosecution. Should the prosecution raised any
Interestingly, nowhere in the present Rules on Criminal objection thereto, the trial court judge must promptly rule on
Procedure does it state how a deposition, of a prosecution the same, and the final cross interrogatory questions for the
witness who is at the same time convicted of a grave offense by deposition of Mary Jane will then be conducted. Mary Jane's
final judgment and imprisoned in a foreign jurisdiction, may be answers in the cross interrogatory shall likewise be taken in
taken to perpetuate the testimony of such witness. The Rules, in verbatim and a transcribed copy thereof shall be given to the
particular, are silent as to how to take a testimony of a witness prosecution.
who is unable to testify in open court because he is imprisoned
in another country. The second purpose of the constitutional right to confrontation
has likewise been upheld. As aptly stated in the terms and
Depositions, however, are recognized under Rule 23 of the Rules conditions for the taking of deposition, the trial court judge will
on Civil Procedure. Although the rule on deposition by written be present during the conduct of written interrogatories on
interrogatories is inscribed under the said Rule, the Court holds Mary Jane.
that it may be applied suppletorily in criminal proceedings so
long as there is compelling reason. Verily, in light of the unusual Indubitably, the constitutional rights of Cristina and Julius are
circumstances surrounding the instant case, the Court sees no equally safeguarded. The parameters laid down by the trial court
reason not to apply suppletorily the provisions of Rule 23 of the are sufficient in detail ensuring that Mary Jane will give her
Rules on Civil Procedure in the interest of substantial justice and testimony under oath to deter lying by the threat of perjury
fairness. Hence, the taking of testimony of Mary Jane through a charge. She is still subjected to cross-examination so as to
deposition by written interrogatories is in order. determine the presence of any falsehood in her testimony.
Lastly, the guidelines enable the trial court judge to observe her
The deposition by written interrogatories is pursuant to Mary demeanor as a witness and assess her credibility.
Jane's right to due process

Furthermore, to disallow the written interrogatories will curtail Section 13. Disqualification by interest. — No deposition shall
Mary Jane's right to due process. The benchmark of the right to be taken before a person who is a relative within the sixth
due process in criminal justice is to ensure that all the parties degree of consanguinity or affinity, or employee or counsel of
have their day in court. It is in accord with the duty of the any of the parties, or who is a relative within the same degree,
government to follow a fair process of decision-making when it or employee of such counsel; or who is financially interested in
acts to deprive a person of his liberty. But just as an accused is the action.
accorded this constitutional protection, so is the State entitled
to due process in criminal prosecutions. It must likewise be given NOTE
an equal chance to present its evidence in support of a charge. Under Section 13, there are certain individuals who cannot act as
deposition officers due to their interest in the case or relationship
No violation of the constitutional right to confrontation of a to the parties or counsel. Thus a person who is a relative within the
witness sixth degree of consanguinity or affinity or employee or counsel of
any of the parties cannot take the deposition. A deposition cannot
Similarly, the deposition by written interrogatories will not also be taken before a relative within the same degree, or
infringe the constitutional right to confrontation of a witness of employee of such counsel. Finally, anyone who is financially
Cristina and Julius. The right to confrontation is part of due interested in the action cannot be a deposition officer.
process not only in criminal proceedings but also in civil
proceedings as well as in proceedings in administrative tribunals Section 15. Deposition upon oral examination; notice; time and
with quasi-judicial powers. It has a two-fold purpose: (1) place. — A party desiring to take the deposition of any person
primarily, to afford the accused an opportunity to test the upon oral examination shall give reasonable notice in writing to
testimony of the witness by cross-examination; and (2) every other party to the action. The notice shall state the time
secondarily, to allow the judge to observe the deportment of the and place for taking the deposition and the name and address
witness. of each person to be examined, if known, and if the name is not
known, a general description sufficient to identify him or her or
True, Cristina and Julius have no opportunity to confront Mary the particular class or group to which he or she belongs. On
Jane face to face in light of the prevailing circumstance. motion of any party upon whom the notice is served, the court
However, the terms and conditions laid down by the trial court may for cause shown enlarge or shorten the time. (15a)
ensure that they are given ample opportunity to cross examine
Mary Jane by way of written interrogatories so as not to defeat Section 16. Orders for the protection of parties and deponents.
the first purpose of their constitutional right. To recall, the trial — After notice is served for taking a deposition by oral
court requires Cristina and Julius, through their counsel, to file examination, upon motion seasonably made by any party or by
their comment and may raise objections to the proposed the person to be examined and for good cause shown, the court
questions in the written interrogatories submitted by the in which the action is pending may make the following orders:
prosecution. The trial court judge shall promptly rule on the
objections. Thereafter, only the final questions would be asked (a) That the deposition shall not be taken;
by the Consul of the Philippines in Indonesia or his designated
representative. The answers of Mary Jane to the propounded
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CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

(b) That the deposition may be taken only at some cannot be successfully invoked to prohibit the taking
designated place other than that stated in the of his deposition.
notice;
(c) That the deposition may be taken only on written
interrogatories; SANTAMARIA v. CLEARY
(d) That certain matters shall not be inquired into; G.R. No. 197122 | June 15, 2016
(e) That the scope of the examination shall be held with
no one present except the parties to the action and HELD: Rule 23, Section 16 of the Rules of Court is on orders for
their officers or counsel; the protection of parties and deponents from annoyance,
(f) That after being sealed the deposition shall be embarrassment, or oppression. XXX The provision includes a full
opened only by order of the court; range of protective orders, from designating the place of
(g) That secret processes, developments, or research deposition, limiting those in attendance, to imposing that it be
need not be disclosed; or taken through written interrogatories. At the extreme end of
(h) That the parties shall simultaneously file specified this spectrum would be a court order that completely denies the
documents or information enclosed in sealed right to take deposition. This is what the trial court issued in this
envelopes to be opened as directed by the court. case.

The court may make any other order which justice requires to While Section 16 grants the courts power to issue protective
protect the party or witness from annoyance, embarrassment, orders, this grant involves discretion on the part of the court,
or oppression. (16a) which "must be exercised, not arbitrarily, capriciously or
oppressively, but in a reasonable manner and in consonance
AVAILABILITY OF DEPONENT TO TESTIFY: NOT A "GOOD CAUSE" with the spirit of the law, to the end that its purpose may be
TO ORDER THAT HIS DEPOSITION SHALL NOT BE TAKEN attained."
HYATT INDUSTRIAL v. LEY CONSTRUCTION
GR No. 147143 |March 10, 2006 A plain reading of this provision shows that there are two (2)
requisites before a court may issue a protective order: (1) there
FACTS: The RTC cancelled scheduled depositions on the ground must be notice; and (2) the order must be for good cause shown.
of delay and that the taking of depositions would cause In Fortune Corporation v. Court of Appeals, this Court discussed
unnecessary duplicity as the intended deponents shall also be the concept of good cause as used in the rules:
called as witnesses during trial.
The matter of good cause is to be determined by the
RULING: While it is true that depositions may be disallowed by court in the exercise of judicial discretion. Good cause
trial courts if the examination is conducted in bad faith; or in means a substantial reason—one that affords a legal
such a manner as to annoy, embarrass, or oppress the person excuse. Whether or not substantial reasons exist is for
who is the subject of the inquiry, or when the inquiry touches the court to determine, as there is no hard and fast
upon the irrelevant or encroaches upon the recognized domains rule for determining the question as to what is meant
of privilege, such circumstances, however are absent in the case by the term "for good cause shown."
at bar.
The requirement, however, that good cause be shown
The RTC cites the delay in the case as reason for canceling the for a protective order puts the burden on the party
scheduled depositions. While speedy disposition of cases is seeking relief to show some plainly adequate reasons
important, such consideration however should not outweigh a for the order. A particular and specific demonstration
thorough and comprehensive evaluation of cases, for the ends of facts, as distinguished from conclusory statements,
of justice are reached not only through the speedy disposal of is required to establish good cause for the issuance of
cases but more importantly, through a meticulous and a protective order. What constitutes good cause
comprehensive evaluation of the merits of the case. Records furthermore depends upon the kind of protective
also show that the delay of the case is not attributable to the order that is sought.
depositions sought by LCDC but was caused by the many
pleadings filed by all the parties including petitioners herein. In light of the general philosophy of full discovery of relevant
facts and the board statement of scope in Rule 24, and in view
The argument that the taking of depositions would cause of the power of the court under Sections 16 and 18 of said Rule
unnecessary duplicity as the intended deponents shall also be to control the details of time, place, scope, and financing for the
called as witnesses during trial, is also without merit. protection of the deponents and parties, it is fairly rare that it
will be ordered that a deposition should not be taken at all. All
The case of Fortune Corp. v. Court of Appeals, G.R. No. 108119, motions under these subparagraphs of the rule must be
January 19, 1994, which already settled the matter, explained supported by "good cause" and a strong showing is required
that: before a party will be denied entirely the right to take a
The availability of the proposed deponent to testify in deposition. A mere allegation, without proof, that the
court does not constitute "good cause" to justify the deposition is being taken in bad faith is not a sufficient ground
court's order that his deposition shall not be taken. for such an order. Neither is an allegation that it will subject the
That the witness is unable to attend or testify is one of party to a penalty or forfeiture. The mere fact that the
the grounds when the deposition of a witness may be information sought by deposition has already been obtained
used in court during the trial. But the same reason through a bill of particulars, interrogatories, or other
depositions will not suffice, although if it is entirely repetitious a
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CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

deposition may be forbidden. The allegation that the deponent Section 19. Submission to witness; changes; signing. — When
knows nothing about the matters involved does not justify the testimony is fully transcribed, the deposition shall be
prohibiting the taking of a deposition, nor that whatever the submitted to the witness for examination and shall be read to or
witness knows is protected by the "work product doctrine," nor by him or her, unless such examination and reading are waived
that privileged information or trade secrets will be sought in the by the witness and by the parties. Any changes in form or
course of the examination, nor that all the transactions were substance which the witness desires to make shall be entered
either conducted or confirmed in writing. upon the deposition by the officer with a statement of the
reasons given by the witness for making them. The deposition
shall then be signed by the witness, unless the parties by
Section 17. Record of examination; oath; objections. — The stipulation waive the signing or the witness is ill or cannot be
officer before whom the deposition is to be taken shall put the found or refuses to sign. If the deposition is not signed by the
witness on oath and shall personally, or by some one acting witness, the officer shall sign it and state on the record the fact
under his or her direction and in his or her presence, record the of the waiver or of the illness or absence of the witness or the
testimony of the witness. The testimony shall be taken fact of the refusal to sign together with the reason given
stenographically unless the parties agree otherwise. All therefor, if any, and the deposition may then be used as fully as
objections made at the time of the examination to the though signed, unless on a motion to suppress under Section
qualifications of the officer taking the deposition, or to the 29(f) of this Rule, the court holds that the reasons given for the
manner of taking it, or to the evidence presented, or to the refusal to sign require rejection of the deposition in whole or in
conduct of any party, and any other objection to the part. (19a)
proceedings, shall be noted by the officer upon the deposition.
Evidence objected to shall be taken subject to the objections. In NOTE
lieu of participating in the oral examination, parties served with After the deposition of the deponent is taken, the deposition officer
notice of taking a deposition may transmit written shall submit the deposition to the deponent for examination. He
interrogatories to the officers, who shall propound them to the may change his answers but he must state the reason for the
witness and record the answers verbatim. (17a) change. And he signs it, unless the parties by stipulation waive the
signing, or the witness is ill, or cannot be found or refuses to sign.
NOTE In the latter cases, the deposition will be signed by the deposition
Answers to depositions not objected to cannot be objected to in officer.
court during the trial, unless the objection is based on a new ground
which only come up after the deposition. Section 20. Certification and filing by officer. — The officer shall
certify on the deposition that the witness was duly sworn to by
Section 18. Motion to terminate or limit examination. — At any him or her and that the deposition is a true record of the
time during the taking of the deposition, on motion or petition testimony given by the witness. He or she shall then securely
of any party or of the deponent and upon a showing that the seal the deposition in an envelope indorsed with the title of the
examination is being conducted in bad faith or in such manner action and marked "Deposition of (here insert the name of
as unreasonably to annoy, embarrass, or oppress the deponent witness)" and shall promptly file it with the court in which the
or party, the court in which the action is pending or the Regional action is pending or send it by registered mail to the clerk
Trial Court of the place where the deposition is being taken may thereof for filing. (20a)
order the officer conducting the examination to cease forthwith
from taking the deposition, or may limit the scope and manner GEORG v. HOLY TRINITY COLLEGE, INC.
of the taking of the deposition, as provided in Section 16 of this G.R. No. 190408 | July 20, 2016
Rule. If the order made terminates the examination, it shall be
resumed thereafter only upon the order of the court in which HELD: First, petitioner questions the admission of the alleged
the action is pending. Upon demand of the objecting party or deposition conducted upon Sr. Medalle when the same was not
deponent, the taking of the deposition shall be suspended for presented in evidence by respondent's counsel. Petitioner adds
the time necessary to make a notice for an order. In granting or that there was no order from the trial court allowing such
refusing such order, the court may impose upon either party or deposition. Petitioner also claims that the requisite certification
upon the witness the requirement to pay such costs or expenses that should accompany the deposition is defective.
as the court may deem reasonable. (18)
Between the two parties, we are inclined to give credence to
LIMITATIONS petitioner. First, the trial court did not give probative weight to
Given the liberal policy of the law on the modes of discovery, the the deposition of Sr. Medalle basically stating that respondent's
Courts ought to allow and encourages their use by litigants. counsel failed to conform to Section 20, Rule 23 of the Rules of
However, this liberal treatment is not without limitation. Thus, Court XXX.
deposition taking will be disallowed when it can be shown that:
Indeed, there is no record of any certification from Notary Public
1. The examination is being conducted in bad faith; or Romeo Juayno stating that the witness, Sr. Medalle in this case,
2. The examination is being conducted in such a manner as was sworn to by him and that the deposition is a true record of
to annoy, embarrass, or oppress the person subject to the the testimony given by Sr. Medalle. Furthermore, petitioner
inquiry; or correctly noted that respondent's counsel did not seek a leave
3. The inquiry touches upon the irrelevant; or of court to conduct a deposition in violation of Section 1, Rule
4. The inquiry encroaches upon the recognized domains of 23 XXX
privilege.
In Republic of the Phils. v. Sandiganbayan, we held that:
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CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

interrogatories upon the party proposing to take the deposition.

Depositions pending action may be conducted by oral (25a)
examination or written interrogatories, and may be
taken at the instance of any party, with or without DEPOSITION UPON WRITTEN INTERROGATORIES
leave of court. Leave of court is not necessary to take A deposition need not be conducted through an oral examination.
a deposition after an answer to the complaint has It may be conducted through written interrogatories which shall be
been served. It is only when an answer has not yet served upon every other party. The party served may also serve
been filed (but jurisdiction has been obtained over any cross-interrogatories upon the party proposing to take the
defendant or over property subject of the action) that deposition within ten (10) days from service of the written
prior leave of court is required. The reason for this is interrogatories. The latter may, within five (5) days serve re-direct
that before filing of the answer, the issues are not yet interrogatories and within three (3) days the other party may serve
joined and the disputed facts are not clear." re-cross interrogatories (Sec. 25, Rule 23, Rules of Court). Copies of
all these interrogatories shall be delivered to the officer before
In this case, respondent's counsel filed a Notice of Deposition for whom the deposition is taken and who shall take the responses and
the Taking of Deposition on 28 October 2002. The Answer with prepare the record (Sec. 26, Rule 23, Rules of Court).
Counterclaim was only filed on 21 February 2005. In this
instance, respondent should have asked for leave of court.
Considering that the trial court has the discretion to decide CROSS-INTERROGATORIES: EQUIVALENT TO CROSS-
whether a deposition may or may not be taken, it follows that it EXAMINATION
also has the discretion to disregard a deposition for non- SAN LUIS v. ROJAS, ET AL.
compliance with the rules. G.R. No. 159127 | March 3, 2008

Section 21. Notice of filing. — The officer taking the deposition HELD: We also find no merit in petitioner's claim that his right to
shall give prompt notice of its filing to all the parties. (21) cross-examine private respondent's witnesses will be curtailed
since petitioner is fully accorded the opportunity for cross-
Section 22. Furnishing copies. — Upon payment of reasonable examination under Section 25, Rule 23 of the Rules of Court, to
charges therefor, the officer shall furnish a copy of the wit:
deposition to any party or to the deponent. (22)
SEC. 25. Depositions upon written interrogatories,
Section 23. Failure to attend of party giving notice. — If the service of notice and of interrogatories. - A party
party giving the notice of the taking of a deposition fails to desiring to take the deposition of any person upon
attend and proceed therewith and another attends in person or written interrogatories shall serve them upon every
by counsel pursuant to the notice, the court may order the party other party with a notice stating the name and address
giving the notice to pay such other party the amount of the of the person who is to answer them and the name or
reasonable expenses incurred by him or her and his or her descriptive title and address of the officer before
counsel in so attending, including reasonable attorney's fees. whom the deposition is to be taken. Within ten (10)
(23a) days thereafter, a party so served may serve cross
interrogatories upon the party proposing to take the
Section 24. Failure of party giving notice to serve subpoena. — deposition. Within five (5) days thereafter, the latter
If the party giving the notice of the taking of a deposition of a may serve re-direct interrogatories upon a party who
witness fails to serve a subpoena upon him or her and the has served cross interrogatories. Within three (3) days
witness because of such failure does not attend, and if another after being served with re-direct interrogatories, a
party attends in person or by counsel because he or she expects party may serve re-cross interrogatories upon the
the deposition of that witness to be taken, the court may order party proposing to take the deposition.
the party giving the notice to pay such other party the amount
of the reasonable expenses incurred by him or her and his or her Thus, petitioner may submit cross-interrogatories upon private
counsel in so attending, including reasonable attorney's fees. respondent with sufficient fullness and freedom.
(24a)

Section 25. Deposition upon written interrogatories; Section 26. Officers to take responses and prepare record. — A
service of notice and of interrogatories. — A party desiring to copy of the notice and copies of all interrogatories served shall
be delivered by the party taking the deposition to the officer
take the deposition of any person upon written interrogatories
designated in the notice, who shall proceed promptly, in the
shall serve them upon every other party with a notice stating the
name and address of the person who is to answer them and the manner provided by Sections 17, 19 and 20 of this Rule, to take
name or descriptive title and address of the officer before whom the testimony of the witness in response to the interrogatories
the deposition is to be taken. Within ten (10) calendar days and to prepare, certify, and file or mail the deposition, attaching
thereto the copy of the notice and the interrogatories received
thereafter, a party so served may serve cross- interrogatories
upon the party proposing to take the deposition. Within five (5) by him or her. (26a)
calendar days thereafter the latter may serve re-direct
interrogatories upon a party who has served cross- Section 27. Notice of filing and furnishing copies. —When a
interrogatories. Within three (3) calendar days after being deposition upon interrogatories is filed, the officer taking it shall
served with re-direct interrogatories, a party may serve recross- promptly give notice thereof to all the parties and may furnish
copies to them or to the deponent upon payment of reasonable
charges therefor. (27)
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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

(f) As to manner of preparation. — Errors and irregularities

Section 28. Orders for the protection of parties and deponents. in the manner in which the testimony is transcribed or the
— After the service of the interrogatories and prior to the taking deposition is prepared, signed, certified, sealed, indorsed,
of the testimony of the deponent, the court in which the action transmitted, filed, or otherwise dealt with by the officer
is pending, on motion promptly made by a party or a deponent, under Sections 17, 19, 20 and 26 of this Rules are waived
and for good cause shown, may make any order specified in unless a motion to suppress the deposition or some part
Sections 15, 16 and 18 of this Rule which is appropriate and just thereof is made with reasonable promptness after such
or an order that the deposition shall not be taken before the defect is, or with due diligence might have been,
officer designated in the notice or that it shall not be taken ascertained. (29a)
except upon oral examination. (28)

PROTECTIVE ORDERS IN DEPOSITIONS UPON WRITTEN

INTERROGATORIES
1. Order to enlarge or shorten the time within which to take the
testimony of the deponent (Section 15);
2. Order that the testimony in answer to the written
interrogatories shall not be taken, etc. (Section 16)
3. Order to terminate or limit the taking of testimony (Section
18);
4. Order that the deposition shall not be taken before the officer
designated (Section 28);
5. Order that the testimony shall not be taken except upon oral
examination (Section 28).

Section 29. Effect of errors and irregularities in depositions. —

(a) As to notice. — All errors and irregularities in the notice

for taking a deposition are waived unless written
objection is promptly served upon the party giving the
notice.

(b) As to disqualification of officer. — Objection to taking a

deposition because of disqualification of the officer
before whom it is to be taken is waived unless made
before the taking of the deposition begins or as soon
thereafter as the disqualification becomes known or
could be discovered with reasonable diligence.

(c) As to competency or relevancy of evidence. — Objections

to the competency of a witness or the competency,
relevancy, or materiality of testimony are not waived by
failure to make them before or during the taking of the
deposition, unless the ground of the objection is one
which might have been obviated or removed if presented
at that time.

(d) As to oral examination and other particulars. — Errors

and irregularities occurring at the oral examination in the
manner of taking the deposition, in the form of the
questions or answers, in the oath or affirmation, or in the
conduct of the parties and errors of any kind which might
be obviated, removed, or cured if promptly prosecuted,
are waived unless reasonable objection thereto is made
at the taking of the deposition.

(e) As to form of written interrogatories. — Objections to the

form of written interrogatories submitted under Sections
25 and 26 of this Rule are waived unless served in writing
upon the party propounding them within the time
allowed for serving succeeding cross or other
interrogatories and within three (3) calendar days after
service of the last interrogatories authorized.
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CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

RULE 24 The title is NOT:

DEPOSITIONS BEFORE ACTION OR PENDING APPEAL Juan dela Cruz v. Piolo Pascual
Because there is no case to be filed yet.
SECTION 1. Depositions before action; petition. —A person
who desires to perpetuate his or her own testimony or that of So it could be:
another person regarding any matter that may be cognizable in In Re: Request for Taking of Deposition
any court of the Philippines, may filed a verified petition in the Juan dela Cruz, Petitioner
court of the place of the residence of any expected adverse
party. (1a) Or

DISCUSSION In the Matter of the Request for the Taking of the Deposition
Pending Action
Why do we need this? For example, you filed a case then maybe you Juan dela Cruz, Petitioner
are dying or maybe during the course of the proceedings you
haven’t reached the presentation of evidence yet, so you are not
Then take note of the contents and the matters that you need to
available or maybe your witnesses are not available to perpetuate allege in your petition.
their testimony. This is your remedy.
SECTION. 3. Notice and service.—The petitioner shall serve a
There is no limitation as to what is the subject matter of your
notice upon each person named in the petition as an expected
deposition as long as it is cognizable in the courts of the Philippines.
adverse party, together with a copy of the petition, stating that
the petitioner will apply to the court, at a time and place named
How do you ask for deposition? You file a verified petition in the
therein, for the order described in the petition. At least twenty
court of the place of the residence of any expected adverse party.
(20) calendar days before the date of the hearing, the court shall
The basis here is the court of the place of the residence.
cause notice thereof to be served on the parties and prospective
deponents in the manner provided for service of summons. (3a)
How about if supposed or intended case is a real action? Isn’t it in
real action the venue is the place where the property is located?
Yes, but this is not yet the action you are filing. Because what you DISCUSSION
want here is only deposition. So where do you file your petition to Here, upon filing of the petition, the petitioner shall serve a notice.
take a deposition? The venue would be the residence of any
expected adverse party. Q: To whom shall it be served?
A: It shall be served upon each person named in the petition as an
Take note: It is different from the usual civil action. For example in expected adverse party, together with a copy of the petition,
personal action the venue would be the residence of the plaintiff or stating that the petitioner will apply to the court, at a time and
the residence of the defendant at the option of the plaintiff. In here, place named therein, for the order described in the petition.
petitioner has no option; he has to file it in the court of the place of This is different from the Complaint, as an initiatory pleading,
the residence of any expected adverse party. When you say verified where you don’t need to serve the copy of the complaint to the
petition meaning it has verification. adverse party because it is the court through the summons with the
attached copy of the complaint which will be served to the adverse
SECTION. 2. Contents of petition.—The petition shall be party.
entitled in the name of the petitioner and shall show: (a) that
the petitioner expects to be a party to an action in a court of the But under Rule 24, Sec. 3, Petition for the Taking of Deposition
Philippines but is presently unable to bring it or cause it to be before Action, you have to serve it with the adverse party.
brought; (b) the subject matter of the expected action and his
or her interest therein; (c) the facts which he or she desires to Take note, it is the expected adverse party, NOT the person to
establish by the proposed testimony and his or her reasons for whom you will get the deposition, unless he is also the expected
desiring to perpetuate it; (d) the names or a description of the adverse party. Generally, not to the witness, but the adverse party.
persons he or she expects will be adverse parties and their
addresses so far as known; and (e) the names and addresses of 20 days before the date of hearing, the court will notify the parties
the persons to be examined and the substance of the testimony and the prospective deponents. It is now the court who will serve
which he or she expects to elicit from each, and shall ask for an to the prospective deponents or to the witnesses that you want to
order authorizing the petitioner to take the depositions of the depose.
persons to be examined named in the petition for the purpose
of perpetuating their testimony. (2a) SECTION. 4. Order and examination. —If the court is satisfied
that the perpetuation of the testimony may prevent a failure or
DISCUSSION delay of justice, it shall make an order designating or describing
the persons whose deposition may be taken and specifying the
The rule says, the petition shall be entitled in the name of the
subject matter of the examination and whether the depositions
petitioner. Of course, there is a caption because you are filing this
shall be taken upon oral examination or written interrogatories.
in the court.
The depositions may then be taken in accordance with Rule 23
before the hearing. (4)
Republic of the Philippines
Regional Trial Court
11th Judicial Region Take note the procedure now is in accordance with rule 23.
(No branch yet since we still do not know where it will be raffled.)
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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

SECTION. 5. Reference to court.—For the purpose of applying Q: What if the period to take an appeal has expired?
Rule 23 to depositions for perpetuating testimony, each A: You cannot file this anymore because the decision of the court is
reference therein to the court in which the action is pending already final and executory. It could no longer be one pending
shall be deemed to refer to the court in which the petition for appeal.
such deposition was filed. (5)
Form of the Motion – The rule says it is the same as if an action is
pending therein. Under Sec. 1, Rule 23 – ex parte motion.
SECTION. 6. Use of deposition.—If a deposition to perpetuate
testimony is taken under this Rule, or if, although not so taken,
it would be admissible in evidence, it may be used in any action Remember: what contents of the motion, the names and the
addresses of the persons to be examined, the substance of the
involving the same subject matter subsequently brought in
testimony if he or she expects to elicit from each and the reason for
accordance with the provisions of Sections 4 and 5 of Rule 23.
(6) perpetuating their testimony.

What is the use? – same as we discussed in Rule 23 – deposition

DISCUSSION
pending action
What is the use of deposition under this rule? This is on the premise
that as of now, even if there is still no case pending, you already JUDICIAL AFFIDAVIT RULE
take the deposition of this person so that in the future, his
testimony in that deposition can be used. That is why it is termed There is a need to discuss JAR because somehow, we can relate this.
“to perpetuate the testimony”. In fact, there are cases which we will discuss there is this mention
of the rule on mode of discovery and judicial affidavit. They are
What is the meaning of the phrase, “is taken under this Rule, or if, discussed in relation to each other.
although not so taken, it would be admissible in evidence…”?
Meaning, if you take the deposition of that person in accordance
Section 1. Scope. - (a) This Rule shall apply to all actions,
with Rule 24, or even if you did not follow Rule 24 but under any
proceedings, and incidents requiring the reception of evidence
under law applicable, that deposition or testimony is still
before:
admissible; that deposition can be used in any action involving the
same subject matter.
The Metropolitan Trial Courts, the Municipal Trial Courts in
Cities, the Municipal Trial Courts, the Municipal Circuit Trial
For what purpose? It could be in accordance with the provisions of
Courts, and the Shari' a Circuit Courts but shall not apply to small
Sec. 4 and 5, Rule 23.
claims cases under A.M. 08-8-7-SC;

SECTION. 7. Depositions pending appeal.—If an appeal has The Regional Trial Courts and the Shari' a District Courts;
been taken from a judgment of a court, including the Court of
Appeals in proper cases, or before the taking of an appeal if the The Sandiganbayan, the Court of Tax Appeals, the Court of
time therefor has not expired, the court in which the judgment Appeals, and the Shari' a Appellate Courts;
was rendered may allow the taking of depositions of witnesses
to perpetuate their testimony for use in the event of further The investigating officers and bodies authorized by the Supreme
proceedings in the said court. In such case the party who desires Court to receive evidence, including the Integrated Bar of the
to perpetuate the testimony may make a motion in the said Philippine (IBP); and
court for leave to take the depositions, upon the same notice
and service thereof as if the action was pending therein. The The special courts and quasi-judicial bodies, whose rules of
motion shall state (a) the names and addresses of the persons procedure are subject to disapproval of the Supreme Court,
to be examined and the substance of the testimony which he or insofar as their existing rules of procedure contravene the
she expects to elicit from each; and (b) the reason for provisions of this Rule.
perpetuating their testimony. If the court finds that the
perpetuation of the testimony is proper to avoid a failure or (b) For the purpose of brevity, the above courts, quasi-judicial
delay of justice, it may make an order allowing the depositions bodies, or investigating officers shall be uniformly referred to
to be taken, and thereupon the depositions may be taken and here as the "court."
used in the same manner and under the same conditions as are
prescribed in these Rules for depositions taken in pending
DISCUSSION
actions. (7a)
Q: In what courts or tribunals does the JAR apply?
A: Section 1. (a) This rule shall apply to all actions, proceedings, and
DISCUSSION
incidents requiring the reception of evidence xx
Q: Within what period will you file the motion to take a deposition
pending appeal? Kinds of Evidence:
A: Either: 1. Testimonial
(a) when you already filed an appeal – so when the appeal is 2. Documentary
pending, you file the motion; or 3. Object
(b) before you appeal, if the time has not yet expired
Q: What kind of evidence is referred to?
A: It refers to evidence that requires testimony.
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CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

Testimonial evidence – because the judicial affidavit pertains to the DISCUSSION

testimony of the witness. We already mentioned before that in a hearing, and if you are the
lawyer, you need to present your witness. You will conduct direct
Q: How about documentary evidence? Do we need judicial examination of your witness, then the opponent will conduct cross-
affidavits? examination and then you again will conduct re-direct and the
A: Well, you cannot also introduce a documentary evidence if that opponent will conduct re-cross.
evidence is not identified by a witness. Necessarily, it also requires
testimonial evidence. Because there should be a witness who shall Under the Judicial Affidavit Rule, the direct examination, should
testify on the document. already be in the form of a judicial affidavit. All the things you need
to ask in court regarding the supposed direct examination of your
Q: How about Object evidence? witness, you must reduce that in a judicial affidavit.
A: Same thing, because there will be a witness who will identify and
testify on this object. What is this evidence all about. What is the The judicial affidavit is in a question-and-answer form but just
relevance of the object evidence to the case? Although we have the written.
Res Ipsa Loquitor or the thing speaks for itself but it’s not a literal
application, there has to be somebody who will speak about the Q: When are you supposed to file your judicial affidavit?
thing so that the thing can speak for itself. A: The rule says not later than five days before pre-trial or
preliminary conference or the scheduled hearing with respect to
Q: What courts? motions and incidents.
1. MeTCs, MTCCs, MTCs, MCTCs, Sharia courts
This has been modified already by the 2019 amended rules because
DISCUSSION we have already discussed, under the amended rules, if you are the
Remember, it will not apply to small claims cases. Why? Because complainant, your complaint should already attach to it the judicial
there is no lawyer in small claims cases and when you have a judicial affidavit. If you are the defendant, still the same, your answer
affidavit there needs to be a lawyer who will present the witness in should already have the judicial affidavit attached to it or if you’re
the witness stand and ask the witness to identify the judicial filing a counter-claim, a cross-claim, a third or fourth etc party
affidavit then cross examine, then redirect, and then recross. This complaint, your pleading should already be accompanied by the
does not happen in small claims. judicial affidavit.

2. RTC Q: Are there instances wherein five (5) days before pre-trial is still
3. Sandiganbayan, Court of Tax Appeals , CA, and the Sharia applicable?
Appellate Courts A: Not later than five (5) days, meaning it should be a maximum of
4. Investigating officers and bodies authorized by the SC to five (5) days. You can submit it within six (6), seven (7) but not later
receive evidence, including the IBP and than five (5) days before pre-trial.
5. The special courts and quasi-judicial bodies, whose rules
of procedure are subject to disapproval of the SC, insofar There are still other incidents, like when you file a motion to dismiss
as their existing rules of procedure contravenes the for example under the rules, the four (4) famous grounds. For
provisions of this rule. example, it was set for hearing, you should already submit your
judicial affidavit, not later than five (5) days before the date of that
For the purpose of brevity, the above courts, quasi-judicial bodies, scheduled hearing. Or if you can remember, during pre-trial, you
or investigating officers shall be uniformly referred to here as the reserve the testimony of a witness, you reserve the name of a
“court”. witness, meaning you have not done any judicial affidavit before
pre-trial, meaning he will testify in the future, that also applies, you
Sec. 2. Submission of Judicial Affidavits and Exhibits in lieu of should submit the judicial affidavit of that reserved witness not
direct testimonies. – later than five (5) days when he is supposed to testify.

(a) The parties shall file with the court and serve on the adverse In court, you will no longer ask what, where, when, how because
party, personally or by licensed courier service, not later than usually, this will be the content of your direct examination.
five days before pre-trial or preliminary conference or the
scheduled hearing with respect to motions and incidents, the In the trial, you would only need to ask your witness, if he
following: remembers having executed a judicial affidavit and of course, he
should say yes. Then, you would ask him:
The judicial affidavits of their witnesses, which shall take the
place of such witnesses' direct testimonies; and “okay Mr. Juan dela Cruz, I’m showing to you a judicial affidavit,
executed on August 1, 2019, is this the judicial affidavit that you
The parties' documentary or object evidence, if any, which shall were referring to?”,
be attached to the judicial affidavits and marked as Exhibits A, “Yes ma’am/sir or Yes, Atty.”
B, C, and so on in the case of the complainant or the plaintiff, “Okay, please go over your judicial affidavit and see if the contents
and as Exhibits 1, 2, 3, and so on in the case of the respondent of this judicial affidavit are the same as the one that you have
or the defendant. executed.”
“Yes ma’am”
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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

“Did you read the contents of this judicial affidavit? Do you Now the lawyer for the defendant will examine both documents
understand the contents of this judicial affidavit? Did you and then if he sees it is the same, he will say “I will stipulate, your
voluntarily execute this judicial affidavit?” honor.” in the case the evidence that will be marked by the court is
“There are signatures on the first three (3) pages on the left-hand the photocopy and then because it is already stipulated on as the
margin. Whose signature is this?” faithful reproduction of the original, during trial, the original need
“Mine ma’am/sir” not be brought, the photocopy will be enough.
“There is also a signature on the last portion on page 4, whose
signature is this?” Q: What if he was also not able to bring the original copy of the
“This is my signature Atty. “ document during pre-trial or preliminary conference?

Now, you have already asked the witness to identify his judicial During trial itself, when the witness will testify, you will bring the
affidavit. original, and then again, you don’t want to offer the original, then
during that pre-trial, when the witness identifies that love letter,
There are also documents, if you have documentary exhibits, these you will ask the lawyer “Your honor, I would like the counsel for the
documents should also be identified by the witness. defendant to examine and stipulate if this photocopy of the love
letter is faithful reproduction of the original” so if the lawyer for the
Now, you will ask the witness after he identified the judicial defendant says “I stipulate, you honor” again the court will only
affidavit you would ask him, “you mentioned in page 1 of your mark the photocopy and the original copy will be returned to the
judicial affidavit about exhibit ‘A’ which is the birth certificate. I’m owner, when the formal offer of the exhibits will be done, the
showing to you a copy of a birth certificate, is this the same birth photocopy will already enough, there is no need to attach the
certificate that you mentioned in your judicial affidavit? original.
“Yes ma’am, that’s the same.”
This is without prejudice to the introduction of secondary evidence
Every document attached to the judicial affidavit; you have to let in place of the original when allowed by existing rules.
the witness identify that during his supposed direct examination in
court. You will no longer ask what, where, when how, why, it will Before this is called the “best evidence rule” now it is called the
only be identification of judicial affidavit and documents attached, “original document rule”.
so that is the meaning of Section 2.
Q: What if the original was really lost? Does it mean that you
(b) Should a party or a witness desire to keep the original cannot prove your case anymore?
document or object evidence in his possession, he may, after A: You can still prove your case, as long as you establish the reasons
the same has been identified, marked as exhibit, and why you cannot present original and why you have to present in
authenticated, warrant in his judicial affidavit that the copy or lieu of the original the photocopy, you will learn that in evidence.
reproduction attached to such affidavit is a faithful copy or
reproduction of that original. In addition, the party or witness Sec. 3. Contents of judicial Affidavit. - A judicial affidavit shall
shall bring the original document or object evidence for be prepared in the language known to the witness and, if not in
comparison during the preliminary conference with the English or Filipino accompanied by a translation in English or
attached copy, reproduction, or pictures, failing which the latter Filipino, and shall contain the following:
shall not be admitted. By virtue of the Supreme Court's
authority under Section 5 (5), Article VIII, of the 1987 (a) The name, age, residence or business address, and
Constitution to disapprove rules of procedure of special courts occupation of the witness;
and quasi-judicial bodies.
(b)The name and address of the lawyer who conducts or
This is without prejudice to the introduction of secondary supervises the examination of the witness and the place where
evidence in place of the original when allowed by existing rules. the examination is being held;

DISCUSSION c.) A statement that the witness is answering the questions

For example, your attachments in your judicial affidavit is a very asked of him, fully conscious that he does so under oath, and
important document for the witness like a love letter for his one that he may face criminal liability for false testimony or perjury;
true love, of course he would want to keep the original, so the one
you attached in your judicial affidavit is only the photocopy, so d.) Questions asked of the witness and his corresponding
there should be a statement in your judicial affidavit, wherein the answers, consecutively numbered, that:
witness warrants that those documents which are identified,
marked and authenticated are the faithful reproduction of the 1. Show the circumstances under which the witness acquired
original, the witness will give that kind of warranty in his judicial the facts upon which he testifies;
affidavit.
2. Elicit from him those facts which are relevant to the issues
During pre-trial also, the lawyer should bring the original because that the case presents; and
during the pre-trial or preliminary conference, you can make
stipulations with the other lawyers that “I have here the original 3. Identify the attached documentary and object evidence
copy of the love letter, dated February 14, 2019, I also have here and establish their authenticity in accordance with the Rules of
the photocopy. I would like the counsel for the defendant to Court;
stipulate that this photocopy is a faithful reproduction of the
original.” e) The signature of the witness over his printed name; and
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CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

party nor a hostile witness, unjustifiably declines to execute a

f) A jurat with the signature of the notary public who judicial affidavit or refuses without just cause to make the
administers the oath or an officer who is authorized by law to relevant books, documents, or other things under his control
administer the same. available for copying, authentication, and eventual production
in court, the requesting party may avail himself of the issuance
DISCUSSION of a subpoena ad testificandum or duces tecum under Rule 21
Q: What are the contents of a judicial affidavit? of the Rules of Court. The rules governing the issuance of a
First, the judicial affidavit must be in a language known to the subpoena to the witness in this case shall be the same as when
witness. If the witness is a Bisaya, the judicial affidavit shall also be taking his deposition except that the taking of a judicial affidavit
in Bisaya however there should also be an English translation, shall be understood to be ex parte.
because we don’t know if it will reach the Supreme Court and not
all Justice can understand Bisaya so we have to use the official DISCUSSION
language. We mentioned that a judicial affidavit is prepared beforehand and
it is in the form of a question and answer, in a written form. Where
Letter (b)The name and address of the lawyer who conducts or are judicial affidavits made? Of course, if you are the lawyer of your
supervises the examination of the witness and the place where the witness or the adverse party, then it will be in your office. It’s not
examination is being held; actually this is already pro forma. in court, not In the office of your opponent, it’s not in a mutual
place, of course it’s not neutral, because you are preparing the
However, you have to be very careful with this because sometimes judicial affidavit in favor of your client or the judicial affidavit of
there are other lawyers, during cross-examination, just to test the witnesses to favor your client. It’s necessarily ex parte. The adverse
credibility of the witness will ask “asa man ni gi conduct imohang party will have no participation in the making of the judicial
examination? Asa man ni gi buhat imong judicial affidavit?” the affidavit.
witness will answer “sa office sa lawyer.” then the lawyer will ask
“Asa ang office sa lawyer? Unsa ang itsura? Etc.” just to be very For example, you have a witness who is a government employee or
sure that the witness is not lying. official, or any witness, who does not give consent but such was
taken, also judicial affidavit or to have an interview, who is neither
Please remember what the contents of a judicial affidavit are, I will the witness nor a hostile witness, as long as he is not a witness of
show you an example of an judicial affidavit. the adverse party or a hostile witness.

Sec. 4. Sworn attestation of the lawyer. – For example, Register of Deeds, you want to get his judicial
affidavit, but he refuses without just cause. So, what is your
(a) The judicial affidavit shall contain a sworn attestation at the remedy?
end, executed by the lawyer who conducted or supervised the
examination of the witness, to the effect that: The Rules says, you could ask for a subpoena ad testificandum and
duces tecum, if you have documents, papers, books that is in
He faithfully recorded or caused to be recorded the questions possession of that government official that you want him to
he asked and the corresponding answers that the witness gave; produce.
and
The same rules in the issuance of a subpoena, except the taking of
Neither he nor any other person then present or assisting him a judicial affidavit shall be understood to be ex parte. Same rules
coached the witness regarding the latter's answers. to subpoena when you take a deposition, except in a deposition
there is a need for a notification, here there is no need of a notice
(b) A false attestation shall subject the lawyer mentioned to and the court can issue a subpoena because a judicial affidavit is
disciplinary action, including disbarment. necessarily executed ex parte.

DISCUSSION The rule says who neither the witness of the adverse party nor a
hostile witness. What will happen if you want to get the judicial
A judicial affidavit should also contain a sworn attestation of the
affidavit of your enemy, because you know that he will not testify
lawyer (the lawyer who conducted the direct examination) which is
in court because he is afraid that he will tell the truth in court and
the content of the judicial affidavit. This would be the certification
may end up losing, but you really want him to go to court , you want
of the lawyer.
him to testify because he is afraid to tell a lie because there is a
threat of perjury.
Again, careful. The witness should really know his judicial affidavit,
that it was really his statement, that he was not coerced or coached
Q: What will we do?
in his answers. There are some lawyers who will ask “Diba witness
A: We have Rule 23, Section 4 deposition, you want to take
dili ba tinood kanang Judicial Affidavit gi prepare na daan sa imong
deposition of an adverse party, you can avail on the rules of
lawyer unya imo rang gi pirmahan?” and the witness will answer
deposition and then we discussed before that when an adverse
“Yes ma’am/sir.”
party’s deposition has been taken, there is no need to bring him in
court to testify again, you just need to offer his deposition as your
A false attestation shall subject the lawyer mentioned to
evidence. That is in case of an adverse party or a hostile witness.
disciplinary action, including disbarment.
Sec. 6. Offer of and objections to testimony in judicial
Sec. 5. Subpoena. - If the government employee or official, or
affidavit.- The party presenting the judicial affidavit of his
the requested witness, who is neither the witness of the adverse
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CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

witness in place of direct testimony shall state the purpose of In judicial affidavits, the questions and the answers are already
such testimony at the start of the presentation of the witness. provided and that as the lawyer for the adverse party, you will be
The adverse party may move to disqualify the witness or to given a copy of the judicial affidavit, so before the hearing, you are
strike out his affidavit or any of the answers found in it on able to read the content of the judicial affidavit of your opponent,
ground of inadmissibility. The court shall promptly rule on the so you will see in his answers what are those that are objectionable,
motion and, if granted, shall cause the marking of any excluded so the moment he is called to the witness stand and the lawyer
answer by placing it in brackets under the initials of an already makes an offer of the testimony and then the court will ask
authorized court personnel, without prejudice to a tender of you if you have any comment on the judicial affidavit submitted,
excluded evidence under Section 40 of Rule 132 of the Rules of you should already raise your objections.
Court.
The court shall also promptly rule on the motion and if granted shall
DISCUSSION cause the marking of any excluded answer by placing it in brackets.
So, those which are stricken out, it is either, you will not allow the
Q: What is the nature of the testimony which is embodied in a
witness to testify because the witness is incompetent or maybe the
judicial affidavit? Is it a testimonial evidence? Or is it a
witness is competent however based on your initial cross-
documentary evidence?
examination of the witness, you discovered that he was just
A: When you say judicial affidavit, it takes the place of the direct
coached by the lawyer of the adverse party and that the judicial
examination of your witness. The judicial affidavit constitutes the
affidavit was already prepared and he was not able to read it
direct testimony and the direct examination; therefore, it is a
properly, so you can move to strike out the judicial affidavit. Or
testimonial evidence.
maybe there are certain questions or answers in the judicial
affidavit that you just want to strike out because it is irrelevant or
Q: When are you supposed to offer the testimony of the witness?
hearsay, or you have a ground for objection, so those are the
A: When he is already called to the witness stand to testify. Before
possible scenarios.
you let your witness identify his judicial affidavit, you must first
state the purpose of his testimony and you offer his testimony.
“without prejudice to a tender of excluded evidence under Section
40 of Rule 132 of the Rules of Court.”
“Your honor, I’m calling Mr. Juan dela Cruz to the witness stand for
the following purpose” or
You will discuss this in your evidence, but basically tender of
“I’m offering the testimony of Mr. Juan dela Cruz to establish the
excluded evidence, for example, you are the defendant and the
following and for the following purposes”
plaintiff presented his witness and then after hearing the offer of
the plaintiff, you objected because according to you the testimony
You enumerate what are the purposes of the testimony of Mr. Juan
of the of the witness of the plaintiff is irrelevant, everything
dela Cruz. So, that’s the time when you will make the offer.
contained in his judicial affidavit is not material at all to the
resolution of the case and then the court agreed with you, so it will
Q: How about in documentary evidence?
strike out the judicial affidavit of the witness, but then the plaintiff
A: During his testimony in court, he will just identify the judicial
can still tender the excluded evidence.
affidavit that he executed, that he voluntarily executed the judicial
affidavit, that he understood the content, he was not coerced and
Q: Will the court consider it?
then he will identify the documents.
A: No, because the court already excluded. So, what is the purpose
of tender of excluded evidence? Just In case there is a need to
The documents that are attached in the judicial affidavit, you will
appeal, at least you did not forego your right in that excluded
offer it after the presentation of the testimonial evidence because
evidence, so it can still be considered upon review. So, that’s the
it is possible that for example you have three (3) witnesses, the
purpose
documents that are attached in their judicial affidavits are the
same, so you will offer the documents after the testimony of these
witnesses. Sec. 7. Examination of the witness on his judicial affidavit. –
The adverse party shall have the right to cross-examine the
Q: When can you object if you’re the adverse party? witness on his judicial affidavit and on the exhibits attached to
A: For example, you’re the counsel for the defendant and the the same. The party who presents the witness may also examine
plaintiff already called to the witness stand Mr. Juan dela Cruz and him as on re-direct. In every case, the court shall take active part
the witness offered the testimony of Mr. Juan dela Cruz, then you in examining the witness to determine his credibility as well as
objected because based on the offer made by the lawyer of the the truth of his testimony and to elicit the answers that it needs
plaintiff, you have objections, such as Juan dela Cruz is not for resolving the issues.
competent to testify, maybe Juan dela Cruz is the lawyer of the
defendant, so their communication is covered by the Attorney- DISCUSSION
Client privilege, so it’s not allowed to be divulged in court without This is already mentioned, when the witness already identifies his
the consent of the client, or martial disqualification rule, or maybe judicial affidavit, he will be subjected to cross-examination and
based on the purpose of the offer that was stated by the plaintiff is then re-direct examination and then re-cross-examination, the
just hearsay, or maybe the witness was called to the witness stand court can also ask questions from the witness.
to testify on a contract which is supposed to be in writing to be
enforceable, covered by the statute of frauds. So, if you’re the Sec. 8. Oral offer of and objections to exhibits. –
lawyer for the defendant, you should immediately and promptly
raise your objection, so you can move to disqualify the witness or Upon the termination of the testimony of his last witness, a
to strike out his affidavit or any of the answers found on the ground party shall immediately make an oral offer of evidence of his
of inadmissibility.
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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

documentary or object exhibits, piece by piece, in their submission. The court may, however, allow only once the late
chronological order, stating the purpose or purposes for which submission of the same provided, the delay is for a valid reason,
he offers the particular exhibit. would not unduly prejudice the opposing party, and the defaulting
party pays a fine of not less than P1,OOO.OO nor more than
After each piece of exhibit is offered, the adverse party shall P5,OOO.OO.
state the legal ground for his objection, if any, to its admission,
and the court shall immediately make its ruling respecting that Again as we have said, the rules has already been changed because
exhibit. upon the submission, upon the filing of the complaint you should
already have your judicial affidavits or upon the filing of the
Since the documentary or object exhibits form part of the answers, so if it is not attached, the rule says you are deemed to
judicial affidavits that describe and authenticate them, it is have waived the presentation of that particular testimony, unless
sufficient that such exhibits are simply cited by their markings there is a justifiable reason.
during the offers, the objections, and the rulings, dispensing
with the description of each exhibit. Q: What if you are able to submit the judicial affidavit of witness
Juan dela Cruz, however during the trial, he was not able to
DISCUSSION attend, and he has no justifiable reason for his absence?
A: The rule says, the court shall not consider the affidavit of any
Section 8, as already mentioned, after the testimonial evidence had
witness who fails to appear at the scheduled hearing of the case as
already been concluded, that’s when you will make your formal
required.
offer of exhibits.
Q: How about if you are able to submit the judicial affidavit of
The rule says oral offer, “You honor, I’m offering the following
witness Juan dela Cruz, however, you as the counsel was not able
exhibits:
to attend?
Exhibit ‘A’(Plaintiff) Birth Certificate to prove that the plaintiff is the
A: The rule says, Counsel who fails to appear without valid cause
child of the defendant.
despite notice shall be deemed to have waived his client's right to
Exhibit ‘B’ and so on and so forth.
confront by cross-examination the witnesses there present.
It must be in chronological order.
Q: What if you are the lawyer of the adverse party, for example
Please remember, there are also cases that the exhibits or
you opponent (lawyer of the plaintiff) and you as the lawyer for
documents are too many (isa ka karton), it would be better in that
the defendant, so trial, your opponent is present, his witness is
particular situation, your formal offer of exhibits be in writing.
present, they were able to submit beforehand a judicial affidavit,
however you were not able to. What are the consequences?
Sec. 10. Effect of non-compliance with the judicial Affidavit A: He can still be presented in court, he will identify his judicial
Rule. affidavit, and the documents attached, however you lost the right
to cross-examine the witness.
A party who fails to submit the required judicial affidavits and
exhibits on time shall be deemed to have waived their What if your judicial is wrong, the form is not proper, there is no
submission. The court may, however, allow only once the late attestation for example, there are no warranties why you only
submission of the same provided, the delay is for a valid reason, submitted a photocopy and not the original, there is no statement
would not unduly prejudice the opposing party, and the there that he is aware that he will be committing perjury if
defaulting party pays a fine of not less than P1,OOO.OO nor deliberately commits falsehood?
more than P5,OOO.OO, at the discretion of the court.
A: The rule says, the court shall not admit as evidence judicial
The court shall not consider the affidavit of any witness who fails affidavits that do not conform to the content requirements of
to appear at the scheduled hearing of the case as required. Section 3 and the attestation requirement of Section 4.
Counsel who fails to appear without valid cause despite notice
shall be deemed to have waived his client's right to confront by Q: Can you submit an amended affidavit?
cross-examination the witnesses there present. A: The court may, however, allow only once the subsequent
submission of the compliant replacement affidavits before the
The court shall not admit as evidence judicial affidavits that do hearing or trial provided the delay is for a valid reason and would
not conform to the content requirements of Section 3 and the not unduly prejudice the opposing party and provided further, that
attestation requirement of Section 4 above. The court may, public or private counsel responsible for their preparation and
however, allow only once the subsequent submission of the submission pays a fine of not less than P1,OOO.OO nor more than
compliant replacement affidavits before the hearing or trial P5,OOO.OO, at the discretion of the court.
provided the delay is for a valid reason and would not unduly
prejudice the opposing party and provided further, that public
or private counsel responsible for their preparation and
submission pays a fine of not less than P1,OOO.OO nor more
than P5,OOO.OO, at the discretion of the court.

Q: What is the effect of non-compliance with the Judicial Affidavit

Rule?
A: The rule says, a party who fails to submit the required judicial
affidavits and exhibits on time shall be deemed to have waived their
 25
CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

RULE 25
or to state with sufficient definiteness allegations in a pleading. A
INTERROGATORIES TO PARTIES
bill of particulars therefore, is directed to a pleading (Sec. 1, Rule
12, Rules of Court). Interrogatories to parties are not directed to a
DISCUSSION
particular pleading. Instead, they seek to disclose all material and
This concept has already been basically explained. Here, the party relevant facts from a party (Sec. 1, Rule 23, Rules of Court).
sends sets of questions to the other party to be answered by the
adverse party. So, this is the concept.
INTERROGATORIES vs. BILL OF PARTICULARS
It is different from the written interrogatories in deposition. In
deposition, there is a scheduled date of deposition but prior to that, Q: Now, how do we distinguish interrogatories from Bill of
if they opt to do it by written interrogatories, the other party will particulars?
send a direct examination question and then the other will send a A: When we say interrogatories, as we have already mentioned, the
re-direct examination question and then the other party will send purpose here is to elicit material and relevant facts from any
cross then re-cross. All of these questions will be given to the adverse party.
deposition officer who will propound these questions to the
deponent. When you say “Material and Relevant facts”, these are not
necessarily mentioned in the pleading. So for example, you are the
defendant. The complaint may not mention those facts or other
Section 1. Interrogatories to parties; service thereof.- Upon ex matters which you want to discover. Which you want the other
parte motion, any party desiring to elicit material and relevant party to answer or to admit or clarify.
facts from any adverse parties shall file and serve upon the latter
written interrogatories to be answered by the party served or, if BILL OF PARTICULARS
the party served is a public or private corporation or a partnership When you say “Bill of particulars, you are the defendant then you
or association, by any officer thereof competent to testify in its have the complaint, then there are certain matters in the complaint
behalf. which are vague or which are not clear or which you want to be
clarified on for you to be able to properly interpose your defense.
DISCUSSION So, when you say bill of particulars, you are just limited to what is
missing in the complaint. Or what is vague in the complaint.
What is important here is ‘When do you serve the interrogatories
to parties?”
INTERROGATORIES
But, when you say interrogatories, we are NOT limited to the
there are questions that you would like the other party to answer,
complaint. As long as those matters or those facts which you want
so when do you send them? The rule says upon ex-parte motion.
the other party to clarify or to answer are material and relevant to
There is NO mention here of a particular time. Unlike in the old
the case and which are not covered by the limitations.
rules where the procedure is similar with the old procedure of
deposition pending action. Meaning, before, it should be by leave
INTERROGATORIES TO PARTIES vs. WRITTEN INTERROGATORIES
of court after jurisdiction has been obtained over the defendant.
IN A DEPOSITION
Meaning, after summons had been served to the defendant you file
a motion before the court to allow you to serve interrogatories to DEPOSITION UPON WRITTEN INTERROGATORIES TO
parties. INTERROGATORIES PARTIES

Now, when the defendant has already answered, no need for you The deposition is taken before a There is no deposition
to file a motion to serve interrogatories. You can just send directly. deposition officer who will ask officer. This is strictly a
But now, there is no such distinction. HOWEVER, it requires a the questions. party to party activity.
motion, although ex-parte motion. Meaning you don’t need to
furnish the other party with a copy of your motion. You file it Questions are prepared Questioning is direct.
directly in court. So, that’s what is important in section 1. beforehand. They are submitted Plaintiff questions
to the deposition officer who defendant, defendant
WHAT ARE INTERROGATORIES? will ask the deponent the questions the plaintiff.
questions and he will record the There is no third person
Interrogatories are simply written questions. Instead of questions
answers. who will intervene
and answers orally made, interrogatories are in writing to be
answered as well by the recipient of the interrogatory in writing.
The deposition of any person You can send
may be taken, whether he is a interrogatories only to
party or not. parties, not to witness or
PURPOSE OF INTERROGATORIES TO PARTIES strangers.
This mode of discovery which is availed of by a party to the action
is for the purpose of ELICITING MATERIAL AND RELEVANT FACTS DISCUSSION
FROM ANY ADVERSE PARTY (Sec. 1, Rule 25, Rules of Court). Q: How do we distinguish interrogatories to parties from written
interrogatories.
DISTINGUISHED FROM A BILL OF PARTICULARS A: Written interrogatories in a deposition are NOT SERVED upon
the adverse party directly. Although, you will also furnish the other
A bill of particulars is designed to clarify ambiguities in a pleading party with a copy of your interrogatories, which could be your
direct-examination or the cross-examination, redirect, recross,
 26
CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

everything in the form of a WRITTEN interrogatory (in writing). They DISCUSSION

are delivered to the officer before whom the deposition is to be SECTION 2 IS RARE
taken and then the deposition officer during the deposition will be Section 2 is a rare provision. In general, when the Rules allow a
the one to propound all these questions to the deponent. period within which to comply, the party who is required to make
compliance is entitled to the entire period and he may even ask for
On the other hand, interrogatories to parties are SERVED DIRECTLY reasonable extensions of time for as long as not dilatory and
upon the adverse party. So, for example the defendant was the one consistent with the interest of justice. Section 2, however, allows
who sent interrogatories to the plaintiff, he will directly send it to shortening of a period within which compliance must be made.
the plaintiff. Then, the plaintiff also if he has answers under oath, Since shortening a period is not the norm, there must be a motion
will have to send that directly to the defendant. and a good cause for the abbreviation of time.

Those are the main distinctions. Just read the other distinctions. Again, if you want to move to shorten the time for the other party
to answer, then there must be a good cause. (like if you only sent 1
page interrogatory or you only have maybe 2 questions. That would
SEC. 2. Answer to interrogatories.—The interrogatories shall be
not take him/her 15 days to answer that. It can be answered in 1
answered fully in writing and shall be signed and sworn to by the
day or 2 days.)
person making them. The party upon whom the interrogatories
have been served shall file and serve a copy of the answers on the
party submitting the interrogatories within fifteen (15) calendar SEC. 3. Objections to interrogatories.—Objections to any
days after service thereof, unless the court, on motion and for good interrogatories may be presented to the court within ten (10)
cause shown, extends or shortens the time. (2a) calendar days after service thereof, with notice as in case of a
motion; and answers shall be deferred until the objections are
resolved, which shall be at as early a time as is practicable. (3a)
DISCUSSION
For example, you are now the party who received the
interrogatories, your answer should be in writing. Then, you shall DISCUSSION
sign the document where you wrote your answer. Then, sworn to. Objections to interrogatories. For example, you received
Meaning, there must be jurat. interrogatories. You are the defendant and the plaintiff served
interrogatories on you. So, you have to answer those questions
How many days to answer? It says within 15 calendar days after embodied in the interrogatory. However, you have objections.
service thereof, unless the court, on motion and for good cause
shown, extends or shortens the time. Q: So, what would be the possible grounds for objection?

You have received written interrogatories. You have to answer that a.) impropriety;
in writing, signed and sworn to, and should serve that within 15 b.) immateriality;
days from the time that you have received a copy of that written c.) inadmissibility; or
interrogatories. d.) Privilege communications (the question that the
plaintiff is desiring you to answer)
TAKE NOTE: The rule says “unless the court, on motion and for good
cause shown, extends or shortens the time”. So, if a party moves to Q: When should you raise your objections to interrogatories?
shorten or extends the time, it could be ‘only in 10 days’ or it could A: The rule says within 10 calendar days after service. So, from the
also be ‘in 20 days’. The only peculiar thing here is there’s a time that you received the interrogatories, if you have any
provision to ‘shorten’. Usually, the rules provide for extension, but objections, you have 10 days within which to manifest your
here it could be shortened from the time that was provided by the objections.
rules. Who will move? Of course that party which filed or served
interrogatories to you. He will move to either shorten. As to the form of your objections, the rule says thereof, with notice
as in case of a motion. Meaning, it should be in writing and that you
On the other hand, you may also move to extend because 15 days must also serve the other party with the copy of your objections.
is not enough for you. I don’t think if you receive an interrogatory But of course, you file your objections in court. Although, again, the
you will move to shorten the time. Of course, you would ask to interrogatories itself must be served directly to the party (though
extend if you are a party to answer. But if you are the party who you could furnish the court with a copy, but it’s not required by the
served, you may also ask for the shortening of the period maybe rules). And if you answer, that must also be sent directly to the
because ‘15 days is too long for them to answer’ when you only other party. However, if there are objections, you have to furnish
gave 1 page interrogatory. the court because the court will rule on your objections. It will not
be the other party who will rule on your objections. Of course, if
REQUIREMENTS: ANSWER TO INTERROGATORIES the other party will rule on it, they will most likely deny it.
Under Section 2, the answer to the interrogatory must be:
1.) Fully in writing; In the meantime the court has not yet resolved the objections, the
2.) Signed by the party answering; answer shall be deferred until the objections are resolved. So,
3.) Made under oath or sworn to by the party answering; your 15 days can still be extended within which to answer.
4.) Filed and served on the party submitting the
interrogatories within 15 days after service, unless the SEC. 4. Number of interrogatories.—No party may, without
court on motion and for good cause, extends or leave of court, serve more than one set of interrogatories to be
shortens the time. answered by the same party. (4)
 27
CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

GR: One set of interrogatories only. Here A did not take the witness stand since A does not want it to
XPN: When after serving the interrogatories, you can serve be known that there was already partial payment because when a
more than one set but with leave of court. person takes the witness stand, the testimony is under oath and
such person can be held liable for perjury when it turns out later on
that the person lied.
SEC. 5. Scope and use of interrogatories.—Interrogatories may
relate to any matters that can be inquired into under Section 2
Here, B wants to take the testimony of A, B should then serve
of Rule 23, and the answers may be used for the same purposes
provided in Section 4 of the same Rule. written interrogatories providing there in the questions B wants to
A answer.
Q: What can you ask to your interrogatories?
Actually, if A testifies, there is no need for B to serve written
A: Matters relevant subject to some limitations, just like
interrogatories since if A will take the witness stand, the lawyer of
depositions.
B can cross-examine A in order to ask A about the payment.
As to the purposes, same purposes we discussed under Rule 23,
The written interrogatories are only important where the adverse
Section 4.
party does not take the witness stand and there is no opportunity
DISTINCTION: HOW TO OBJECT
to cross-examine such adverse party, you can compel him to take
DEPOSITION UPON WRITTEN INTERROGATORIES TO the witness stand as the adverse party witness.
INTERROGATORIES PARTIES
Objections made in the course Objections are presented TESTIMONY OF ADVERSE PARTY
of the deposition taking are directly to the court. Q: Can a party be made to testify by the adverse party?
taken note of by the A: Yes. This is allowed under the Rules on Evidence but it is rarely
deposition officer. He does done because one cannot expect his opponent to give testimony in
not rule on it (objections). Take note: you will not answer his favor, however if you really want your adverse party to testify
yet to the interrogatories if and take the witness stand to be cross-examined, you can compel
Take note: The deposition will the court has not ruled on the him to testify but again you must serve written interrogatories
still take place, the court will objections to the otherwise you cannot compel the adverse party to give testimony
rule on the objections during interrogatories. in open court.
the trial.
Again, the plaintiff, for example, cannot be compelled by the
SEC. 6. Effect of failure to serve written interrogatories.— defendant to testify in open court if the defendant did not serve
Unless thereafter allowed by the court for good cause shown him not serve the plaintiff with written interrogatories.
and to prevent a failure of justice, a party not served with
written interrogatories may not be compelled by the adverse Q: Can he (adverse party witness) be asked leading questions?
party to give testimony in open court, or to give a deposition A: Yes. Under Rule 132, Section 10 leading questions are allowed to
pending appeal. (6). be asked if he is the adverse party. An adverse party cannot be
This is important. expected to voluntarily give information, leading questions are
allowed since the adverse party will not be cooperative.
Q: What if you failed to serve written interrogatories to the Leading questions are answerable by yes or no where you are
adverse party? suggesting to the witness the answer to the question.
A: The rule says that you cannot compel that adverse party to give
testimony in open court or to give a deposition pending appeal, Example
unless there is a good cause shown and it is to prevent a failure of Is it correct if I say that you already received payment of 800,000
justice. pesos from the defendant? The answer here is only yes or no.

DISCUSSION This is to be distinguished from a direct examination. In direct

In that particular exception even if you did not serve written examinations, you usually ask question like: what, when, where,
interrogatories to the adverse party, you can make him testify in why. You do not give the witness any clue. You cannot ask him
open court. leading questions, he must be on his own to be able to testify freely
and recall with clarity what are those facts or circumstances he
Q: Why would you even want your adversary to testify well? witnessed.
A: There might be instances where the testimony is actually
favorable to you. Q: Can he (adverse party witness) be impeached?
A: Yes. Under Rule 132, Section 12 to be discussed further under
Example: the Rules on Evidence. This is the exception to the general rule.
In a collection case where A files a case against B, the amount being
collected in 1 million. Here, A will be the one who will present the GR: If you bring a witness to testify in the witness stand, there
evidence first – A would have witnesses and documents. After the is an implied guarantee that the witness is credible is not a liar
formal offer, B will present his own evidence. and that he can be believed since the reason of bringing him on
the first place is to shed light and it it turns out that your own
B as the defendant contends that, yes, in the promissory note P1 witness’ testimony is not favorable to you, you cannot just say
million is the amount indicated but B already paid P800,000 but that such witness is actually a liar, because again it is your duty
there’s no receipt. How will B prove it? to present a witness in court.
XPN: If he is an adverse party, you can actually impeach him
 28
CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

Q: Can he (adverse party witness) be deposed? One of the purposes of the above rule is to prevent fishing
A: Yes, under Rule 23, Section 1 and related provisions. expeditions and needless delays; it is there to maintain order
and facilitate the conduct of trial. It will be presumed that a
Q: What are the uses of his (adverse party witness) deposition? party who does not serve written interrogatories on the adverse
A: He can be impeached by the statements he made in the party beforehand will most likely be unable to elicit facts useful
deposition as evidence that he has made a previous inconsistent to its case if it later opts to call the adverse party to the witness
statement. His deposition may also be used for any purpose such stand as its witness. Instead, the process could be treated as a
as proving that he made an admission adverse to his interest. fishing expedition or an attempt at delaying the proceedings; it
produces no significant result that a prior written
GR: It is not enough that there is a deposition, for his testimony interrogatories might bring.
not to be categorized as hearsay, he should be presented in
court and testify. Besides, since the calling party is deemed bound by the adverse
XPN: If he is the adverse party, there is no need to bring him in party’s testimony, compelling the adverse party to take the
court to testify again. witness stand may result in the calling party damaging its own
case. Otherwise stated, if a party cannot elicit facts or
SPOUSES AFULUGENCIA vs. METROPOLITAN information useful to its case through the facility of written
BANK & TRUST CO. interrogatories or other mode of discovery, then the calling of
G.R. No. 185145 | February 5, 2014 the adverse party to the witness stand could only serve to
weaken its own case as a result of the calling party’s being bound
Section 6, Rule 25 of the Rules of Court (Rules) provides that "a by the adverse party’s testimony, which may only be worthless
party not served with written interrogatories may not be and instead detrimental to the calling party’s cause.
compelled by the adverse party to give testimony in open court,
or to give a deposition pending appeal." The provision seeks to DICUSSION
prevent fishing expeditions and needless delays. Its goal is to The court here cited Section 6, Rule 25 of the Rules of Court, where
maintain order and facilitate the conduct of trial. the procedure of calling the adverse party to the witness stand is
not allowed unless written interrogatories are first served.
FACTS: Petitioners, spouses Afulugencia, filed a Complaint for
nullification of mortgage, foreclosure, auction sale, certificate of One of the purposes of these rules to prevent fishing expeditions
sale and other documents, with damages, against respondents since those questions, those documents that you wish to the
Metropolitan Bank & Trust Co. (Metrobank) and Emmanuel L. witness to bring you could have sought by serving interrogatories,
Ortega (Ortega). The Supreme Court said that calling an adverse party into the
witness stand without a prior written interrogatory could produce
After the filing of the parties’ pleadings and with the conclusion no significant results that a priority and interrogatories might bring.
of pre-trial, petitioners filed a Motion for Issuance of Subpoena Here, it was just an attempt to delay the proceedings.
Duces Tecum Ad Testificandum to require Metrobank’s officers
to appear and testify as the petitioners’ initial witnesses during Besides, if you did not serve prior interrogatories to the adverse
the August 31, 2006 hearing for the presentation of their party, you have no way of knowing what to be his testimony in open
evidence-in-chief, and to bring the documents relative to their court if you compel him to testify on your behalf. It could just
loan with Metrobank, as well as those covering the extrajudicial weaken your case and the Supreme Court said that it could only be
foreclosure and sale of petitioners’ 200-square meter land in worthless and instead detrimental to the calling parties cause.
Meycauayan, Bulacan covered by Transfer Certificate of Title
No. 20411 (M). HELD: … Another reason for the rule is that by requiring prior
written interrogatories, the court may limit the inquiry to what
Metrobank essentially argues that being its officers, the persons is relevant, and thus prevent the calling party from straying or
sought to be called to the stand are themselves adverse parties harassing the adverse party when it takes the latter to the stand.
who may not be compelled to testify in the absence of prior Thus, the rule not only protects the adverse party from
written interrogatories; they are not ordinary witnesses whose unwarranted surprises or harassment; it likewise prevents the
presence in court may be required by petitioners at any time and calling party from conducting a fishing expedition or bungling its
for any reason. own case. Using its own judgment and discretion, the court can
RULING: hold its own in resolving a dispute, and need not bear witness to
Metrobank is correct. Contrary to petitioners’ submission, the the parties perpetrating unfair court practices such as fishing for
case of Adorio cannot apply squarely to this case. In Adorio, the evidence, badgering, or altogether ruining their own cases.
request for subpoena duces tecum was sought against bank Ultimately, such unnecessary processes can only constitute a
officials who were not parties to the criminal case for violation waste of the court’s precious time, if not pointless
of Batas Pambansa Blg. 22. The situation is different here, as entertainment.
officers of the adverse party Metrobank are being compelled to In the present case, petitioners seek to call Metrobank’s officers
testify as the calling party’s main witnesses; likewise, they are to the witness stand as their initial and main witnesses, and to
tasked to bring with them documents which shall comprise the present documents in Metrobank’s possession as part of their
petitioners’ principal evidence. principal documentary evidence. This is improper. Petitioners
may not be allowed, at the incipient phase of the presentation
As a rule, in civil cases, the procedure of calling the adverse party of their evidence-in-chief at that, to present Metrobank’s
to the witness stand is not allowed, unless written officers – who are considered adverse parties as well, based on
interrogatories are first served upon the latter. This is embodied the principle that corporations act only through their officers
in Section 6, Rule 25 of the Rules. and duly authorized agents – as their main witnesses; nor may
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CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

they be allowed to gain access to Metrobank’s documentary amended rules which provides that even in one’s complaint, he
evidence for the purpose of making it their own. This is should attach the documentary exhibits, all the evidence. You have
tantamount to building their whole case from the evidence of to allege not only the ultimate facts but also the evidentiary facts.
their opponent. The burden of proof and evidence falls on You cannot rely on your opponent to win the case.
petitioners, not on Metrobank; if petitioners cannot prove their
claim using their own evidence, then the adverse party The Supreme Court also said that it is unfair to grant the subpoena
Metrobank may not be pressured to hang itself from its own regarding the request to compel Metrobank to bring the subject
defense. documents because based on the allegations of plaintiffs, they
It is true that under the Rules, a party may, for good cause shown were not furnished with copies of the documents. If this is true, this
and to prevent a failure of justice, be compelled to give would be very violative of the rules because both parties must know
testimony in court by the adverse party who has not served the contents of the agreement. Now, if Metrobank will give these
written interrogatories. But what petitioners seek goes against documents to the plaintiff, it also already tantamount to
the very principles of justice and fair play; they would want that Metrobank admitting that they have not furnished the other party
Metrobank provide the very evidence with which to prosecute with documents. The stance pf Metrobank is that they have already
and build their case from the start. This they may not be allowed provided the other party the documents so they should not be
to do. asking for the documents now.
Finally, the Court may not turn a blind eye to the possible
consequences of such a move by petitioners. As one of their NG MENG TAM vs. CHINA BANKING CORPORATION
causes of action in their Complaint, petitioners claim that they G.R. No. 214054, August 05, 2015
were not furnished with specific documents relative to their
loan agreement with Metrobank at the time they obtained the FACTS: On March 15, 2011, petitioner served interrogatories to
loan and while it was outstanding. If Metrobank were to willingly parties pursuant to Sections 1 and 6, Rule 25 of the Rules of
provide petitioners with these documents even before Court to China Bank and required Mr. George C. Yap, Account
petitioners can present evidence to show that indeed they were Officer of the Account Management Group, to answer.
never furnished the same, any inferences generated from this
would certainly not be useful for Metrobank. One may be that On June 22, 2011, George Yap executed his answers to
by providing petitioners with these documents, Metrobank interrogatories to parties.
would be admitting that indeed, it did not furnish petitioners
with these documents prior to the signing of the loan Because he found Yap’s answers to the interrogatories to parties
agreement, and while the loan was outstanding, in violation of evasive and not responsive, petitioner applied for the issuance
the law. of a subpoena duces tecum and ad testificandum against
George Yap pursuant to Section 6, Rule 25 of the Revised Rules
DISCUSSION of Court.
The Supreme Court also explained that the reason why we require
prior written interrogatories before we can call the adverse party On April 29, 2014, when the case was called for the presentation
to the witness to testify on our behalf so that the court may limit of George Yap as a witness, China Bank objected citing Section 5
the inquiry to what is relevant and thus prevent the calling party of the Judicial Affidavit Rule (JAR). China Bank said that Yap
from straying or harassing the adverse party when he takes the cannot be compelled to testify in court because petitioner did
latter to the stand. This is aside from the need to prevent fishing not obtain and present George Yap’s judicial affidavit. The RTC
expeditions and unwanted surprises or harassment. required the parties to submit their motions on the issue of
whether the preparation of a judicial affidavit by George Yap as
The Supreme court here clarified that the officers of Metrobank are an adverse or hostile witness is an exception to the judicial
actually considered adverse parties based on the principle that affidavit rule.
corporations act only through officers or duly authorized agents. If
you are suing a corporation, the corporation has no physical Petitioner contended that Section 5 does not apply to Yap
existence, it only acts through its officers. Necessarily those officers because it specifically excludes adverse party witnesses and
are part of the term adverse party. It is unfair in this case that the hostile witnesses from its application. Petitioner insists that Yap
plaintiffs’ filed a case but they don’t have any documents, evidence, needed to be called to the stand so that he may be qualified as
or witnesses to build their case. Metrobank may not be pressured a hostile witness pursuant to the Rules of Court.
to hang itself from its own defense. You can compel the officers to
testify only if you serve prior written interrogatories which was not China Bank, on the other hand, stated that petitioner’s
done in this case. characterization of Yap’s answers to the interrogatories to
parties as ambiguous and evasive is a declaration of what type
How about the exception to the rule that a party may, for good of witness Yap is. It theorizes that the interrogatories to parties
cause shown and to prevent a failure of justice, be compelled to answered by Yap serve as the judicial affidavit and there is no
give testimony in court by the adverse party who has not served need for Yap to be qualified as a hostile witness.
written interrogatories? Here in this case, there is no good cause
shown according to the Supreme Court and what was intended by
the plaintiff complainants here was not actually to prevent a failure In its May 28, 2014 Order, the RTC denied for lack of merit
of justice. In fact, it would even cause injustice because here, they petitioner’s motion to examine Yap without executing a judicial
want Metrobank to provide the very evidence with which to affidavit. The RTC in interpreting Section 5 of the JAR stated that
prosecute and build their case from the start. The Supreme Court Section 5 did not apply to Yap since he was an adverse witness
said that this may not be allowed. If one is filing a case, he should and he did not unjustifiably decline to execute a judicial
be ready with his own evidence with more reason with our present affidavit.
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CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

express mention of one person, thing, or consequence implies

HELD: SECTION 5 OF THE JAR DOES NOT the exclusion of all others.
APPLY TO ADVERSE PARTY WITNESSES
The JAR primarily affects the manner by which evidence is Here, Yap is a requested witness who is the adverse party’s
presented in court. Section 2(a) of the JAR provides that judicial witness. Regardless of whether he unjustifiably declines to
affidavits are mandatorily filed by parties to a case except in execute a judicial affidavit or refuses without just cause to
small claims cases. These judicial affidavits take the place of present the documents, Section 5 cannot be made to apply to
direct testimony in court. It provides: him for the reason that he is included in a group of individuals
expressly exempt from the provision’s application.
Sec. 2. Submission of Judicial Affidavits and Exhibits in lieu of
direct testimonies. – (a) The parties shall file with the court and The situation created before us begs the question: if the
serve on the adverse party, personally or by licensed courier requested witness is the adverse party’s witness or a hostile
service, not later than five days before pre-trial or preliminary witness, what procedure should be followed?
conference or the scheduled hearing with respect to motions
and incidents, the following: The JAR being silent on this point, we turn to the provisions
governing the rules on evidence covering hostile witnesses
(1) The judicial affidavits of their witnesses, which shall take the specially Section 12, Rule 132 of the Rules of Court which
place of such witnesses’ direct testimonies; and provides:
SEC. 12. Party may not impeach his own witness. – Except with
(2) The parties’ documentary or object evidence, if any, which respect to witnesses referred to in paragraphs (d) and (e) of
shall be attached to the judicial affidavits and marked as Exhibits Section 10, the party producing a witness is not allowed to
A, B, C, and so on in the case of the complainant or the plaintiff, impeach his credibility.
and as Exhibits 1, 2, 3, and so on in the case of the respondent
or the defendant.
DISCUSSION
xxxx Here, the petitioner served interrogatories to parties pursuant to
Sections 1 and 6, Rule 25 of the Rules of Court to China Bank.
Section 3 of the JAR enumerates the content of a judicial Meaning, they have served questions to the other party for the
affidavit. other party to answer. They required the account officer, George
Yap, of the account management group of China Banking
Under Section 10, parties are to be penalized if they do not Corporation to answer the interrogatories. Mr. George Yap
conform to the provisions of the JAR. Parties are however answered the interrogatories and then when the petitioners saw
allowed to resort to the application of a subpoena pursuant to the answers, they found Yap’s answers evasive and not responsive.
Rule 21 of the Rules of Court in Section 5 of the JAR in certain So, petitioner applied for the issuance of a subpoena duces
situations. Section 5 provides: tecum and ad testificandum against George Yap pursuant to
Sec. 5. Subpoena. – If the government employee or official, or Section 6, Rule 25 of the Revised Rules of Court.
the requested witness, who is neither the witness of the adverse
party nor a hostile witness, unjustifiably declines to execute a George Yap attended the scheduled hearing. When the case was
judicial affidavit or refuses without just cause to make the called for the presentation of George Yap as witness, China Bank
relevant books, documents, or other things under his control objected contending that George Yap cannot be presented as
available for copying, authentication, and eventual production witness because the judicial affidavit of George Yap was not
in court, the requesting party may avail himself of the issuance submitted, and that Sec. 5 of the Judicial Affidavit rule was violated
of a subpoena ad testificandum or duces tecum under Rule 21 of which provides that the direct examination of a witness should be
the Rules of Court. The rules governing the issuance of a in the form of a Judicial affidavit. China Bank said that George Yap
subpoena to the witness in this case shall be the same as when cannot be compelled to testify in court because his Judicial Affidavit
taking his deposition except that the taking of a judicial affidavit was not obtained. The court now urged the parties to submit
shall be understood to be ex parte. position papers to answer the question of whether or not George
Yap first execute a judicial affidavit before he can testify in court.
While we agree with the RTC that Section 5 has no application
to Yap as he was presented as a hostile witness we cannot agree Petitioners contends that there is no need for Yap to have his
that there is need for a finding that witness unjustifiably refused Judicial Affidavit because his case is an exception to the Judicial
to execute a judicial affidavit. Affidavit Rule because he is an officer of China Bank therefore an
adverse party and according to Section 5 of Judicial Affidavit Rule is
Section 5 of the JAR contemplates a situation where there is a that, when it is adverse party or a hostile witness, there is no need
(a) government employee or official or (b) requested witness to present his judicial affidavit before he will be compelled to give
who is not the (1) adverse party’s witness nor (2) a hostile his testimony in open court.
witness. If this person either (a) unjustifiably declines to
execute a judicial affidavit or (b) refuses without just cause to Issue: WON Section 5 excludes an adverse party witness and hostile
make the relevant documents available to the other party and witness from its application
its presentation to court, Section 5 allows the requesting party
to avail of issuance of subpoena ad testificandum or duces Meaning if the adverse party or hostile witness is excluded from the
tecum under Rule 21 of the Rules of Court. Thus, adverse party application, you can immediately call such adverse party even
witnesses and hostile witnesses being excluded they are not without submitting judicial affidavit beforehand.
covered by Section 5. Expressio unius est exclusion alterius: the
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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

George Yap here is an adverse party because he is an officer of can only be used if the witness is a government official or employee
China Banking and pursuant to Section 6 Rule 25, that there is a or any witness who unjustifiably declines to execute judicial
need for written interrogatories to be served before he can be affidavit or refuses without just cause. Your remedy is to subpoena
compelled to testify in favor of the calling party. There is no them pursuant to the rule on deposition and compel them to
question that the interrogatories were served. Yap can be execute ex parte their judicial affidavit. This does not include the
compelled to testify by the calling party. The question here is Can adverse party witness or the hostile witness.
Yap testify even without having previously executed or submitted
the judicial affidavit of Yap. If the requested witness is the adverse party’s witness or the hostile
witness, what procedure should be followed?
The Supreme Court said YES, Yap can testify even without prior
executed judicial affidavit. Section 5 of the JAR does not apply to The Judicial Affidavit Rule is silent on this point, the Supreme Court
the adverse party witness. The JAR primarily affects the manner by said, “we refer to the provisions governing hostile witnesses
which evidence is presented in court. Section 2(a) of the JAR specifically Section 12, Rule 132 of the Rules of Court.”
provides that judicial affidavits are mandatorily filed by parties to a
case except in small claims cases. Judicial affidavits take the place
of direct testimony in court.

Sec. 5. Subpoena. – If the government employee or official, or the

requested witness, who is neither the witness of the adverse party
nor a hostile witness, unjustifiably declines to execute a judicial
affidavit or refuses without just cause to make the relevant books,
documents, or other things under his control available for copying,
authentication, and eventual production in court, the requesting
party may avail himself of the issuance of a subpoena ad
testificandum or duces tecum under Rule 21 of the Rules of Court.
The rules governing the issuance of a subpoena to the witness in
this case shall be the same as when taking his deposition except
that the taking of a judicial affidavit shall be understood to be ex
parte.

If the government employee or official, or the requested witness,

who is neither the witness of the adverse party nor a hostile
witness, unjustifiably declines to execute a judicial affidavit, you
can apply for the issuance of a subpoena ad testificandum or duces
tecum and you can compel him to give his judicial affidavit. This
judicial affidavit is understood to be ex parte.

It is clearly mentioned under Section 5 that “ who is neither the

witness of the adverse party nor a hostile witness.” Those people
who refused to execute judicial affidavit without just cause other
than the adverse party or hostile witness, they are compelled to
execute their judicial affidavit. Meaning if you are the adverse party
or hostile witness, there is no need to submit judicial affidavit
before you can testify in open court.

RTC said that Section 5 has no application to Yap as he was

presented as a hostile witness, we cannot agree that there is need
for a finding that witness unjustifiably refused to execute a judicial
affidavit. However, there is still no finding that Yap unjustifiably
refused to execute a judicial affidavit. Therefore, it was premature
that he will be presented in court without any judicial affidavit and
without even showing beforehand that he refused unjustifiably to
execute a judicial affidavit. But the Supreme Court said that if you
look at Section 5, if you are an adverse party or a hostile witness,
they are excluded from the coverage of Section 5. They are not
required to execute judicial affidavit before they can be allowed to
testify in open court. There is also no need to subpoena them for
them to give their depositions and for them to execute their judicial
affidavit ex parte. Expressio unius est exclusion alterius: the express
mention of one person, thing, or consequence implies the exclusion
of all others.

The requirement that “he unjustifiably declines to execute a judicial

affidavit or refuses without just cause to present the documents”,
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CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

RULE 26 The purpose of this mode of discovery is to allow one party to

ADMISSION BY ADVERSE PARTY request the adverse party in writing to admit certain material and
relevant matters which most likely will not be disputed during the
SECTION 1. Request for admission.— At any time after issues have trial. To avoid unnecessary inconvenience to the parties in going
been joined, a party may file and serve upon any other party a through the rigors of proof, before the trial, a party may request
written request for the admission by the latter of the genuineness the other to:
of any material and relevant document described in and exhibited (a) admit the genuineness of any material and relevant document
with the request or of the truth of any material and relevant matter described in and exhibited with the request; or
of fact set forth in the request. Copies of the documents shall be (b) admit the truth of any material and relevant matter of fact set
delivered with the request unless copies have already been forth in the request (Sec. 1, Rule 26, Rules of Court).
furnished. (1)
DISTINCTIONS LAÑADA V. CA
DISCUSSION NESTLE PHILIPPINES v. CA
February 1, 2002
This is different from the interrogarities which we discussed in Rule
25. In interrogatories, you serve to the adverse party the questions
The rule on admission as a mode of discovery is intended “to
and then the answers called for by the question are narrations of
expedite trial and to relieve parties of the costs of proving facts
facts. Whereas here, you also file and serve to the adverse party,
which will not be disputed on trial and the truth of which can be
questions, but the questions are answerable only by yes or no.
ascertained by reasonable inquiry.” Thus, if the request for
admission only serves to delay the proceedings by abetting
So when do you file and serve this request for admission? The rules
redundancy in the pleadings, the intended purpose for the rule
says that at anytime after issues have been joined. So what do we
will certainly be defeated.
mean by “after issues have been joined?” This simply means that
the answer of the defendant had already been filed and served. So
LEAVE OF COURT
there is already an answer. So that is when issues have been joined.
Leave of court is not required to avail of a request for admission.
What do you want the other party to admit? So it could the
Copies of the documents shall be delivered with the request unless
admission by the adverse party of the genuiness of any materil or
copy have already been furnished.
relevant document which are described in and exhibited with the
An example of this is an actionable document. By way of review,
request. So any document you would like the adverse party to
actionable documents are required to be attached in the pleading.
admit like for example, you are the plaintiff and you serve the
defendant with a request for admission. So do the defendants
APPLICATION:
admit the genuineness and due execution of the document
In an action for collection of a sum of money plus interest, the
denominated as Deed of Absolute Sale dated October 1, 2005,
defendant made the following request for admission:
which is attached as annex B to the complaint. Okay, so that’s an
Request is hereby made of the following particulars:
example.
1. Do you admit that the debt has been paid?
2. If you admit that the debt has been paid, do you admit
So do the defendants admit that they are familiar with the
having issued a receipt?
signature of Juan de la Cruz? Or do the defendants admit that Juan
3. If you admit 1 and 2, do you admit the genuineness and
de la Cruz was not in physical possession of the lot covered by the
due execution of the attached receipt dated September
TCT of the Lot No. 14344 since October 5,2010 until the present?
29, 2009?
So this is an example of a request for admission regarding material
4. Do you admit the genuineness and due execution of the
and relevant matter of fact. Copies of the document should be
contract of loan dated March 10, 2009?
delivered with the document unless copies have already been
5. Do you admit that there is no stipulation as to payment of
furnished.
interest in the said contract of loan?
Remember that, like for example, a title in my previous illustration
of a question wherein you are asking the other party to admit the
genuineness of a document. So, if that document was not INTERROGATORIES TO REQUEST FOR ADMISSION
previously given to the party against whom a request was made, so PARTIES RULE 26
you attach that to your request for admission. But there are certain RULE 25
documents that needs to be attached to the pleading like if it is for In both, the answers must be under oath.
example, a deed of sale, promissory note, or if it is one described In both, it is purely between parties to the action
under the rule as an actionable document. An actionable document
Specific details or evidentiary Admissions are sought. Thus,
is the foundation of your cause of action or defense. So if you are
matters are sought. The the questions are answerable
the plaintiff, perhaps, it would be the promissory note. Take note
questions asked are WHO, by YES or NO.
that if an actionable document is your basis, you should already
WHAT, WHEN, WHERE, etc.
attach that to the complaint.
Can be availed of at any time Can be availed of if there is an
So in that case, you don’t need to furnish the adverse party a copy
by filing an ex-parte motion. answer served with leave of
of that actionable document, of that promissory note because it
court in the latter case.
was already previously attached in your complaint and the adverse
party already has copy of that document. So that is section 1.

PURPOSE OF ADMISSION BY ADVERSE PARTY

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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

SEC. 2. Implied admission.—Each of the matters of which an 2. In court, as in the case of testimony made as a witness, either in
admission is requested shall be deemed admitted unless, within a direct, cross, re-direct, re-cross examination;
period designated in the request, which shall not be less than
fifteen (15) calendar days after service thereof, or within such 3. In the pleadings, as in the case of an admission in an answer or
further time as the court may allow on motion, the party to whom any other paper submitted before the court;
the request is directed files and serves upon the party requesting
the admission a sworn statement either denying specifically the DISCUSSION
matters of which an admission is requested or setting forth in detail Take note that if it is an admission, it can and will be used against
the reasons why he or she cannot truthfully either admit or deny the party who made the admission.
those matters.
Objections to any request for admission shall be submitted to the These are the instances. Number 1, Out of court, so it will be called
court by the party requested within the period for and prior to the an extrajudicial admission, whether by act or omission. Under that
filing of his or her sworn statement as contemplated in the category, the admission is only admissible if it is against the interest
preceding paragraph and his or her compliance therewith shall be of the admitter. Because you will not usually say something which
deferred until such objections are resolved, which resolution shall is against you. But if you say something which is in your favor, you
be made as early as practicable. (2a) cannot say that the other party also has to utilize your admission.
Because in so far as you are concerned, it is self-serving. It is more
DISCUSSION usual for a person to admit something which is favorable to him
For example, there is a request for admission served upon you. than something that is against him. Usually, if it is against him,
When are you supposed to answer it? The rules says, within 15 days chances are, it’s the truth.
after service. So within 15 days, you should already serve to the
other party, your answer to each of those matters included in the Number 2, in court. So in case of testimony in court like in a direct
request for admission. So you either admit or deny. It’s just yes or examination, your statements there are admissible. Or in a cross
no. Or if the questions are such that it’s impossible for you to admit examination, re-direct, re-cross.
or to say yes or no because either way, it will be detrimental to you.
So you can just state the reason why you cannot truthfully either Number 3, in the pleadings, like in the answer, you admitted
admit or deny those matters. Now if you have objections also to something. In your answer, you generally denied an allegation of
those questions which are the subject of the request for admission, the plaintiff. As we have already discussed, it is also equivalent to
can you object? Yes you can file an objection, within the period to an admission.
file the request for answer so also within 15 calendar days. Now
what if you objected to the request for admission because maybe In a pleading or in any other paper submitted before the court. So
those questions pertain to matters which are privileged or they are those are binding against the pleader.
irrelevant, so what will happen to the period within which to file
your answer supposedly to the request for admission? The rule says 4. By failing to make a proper denial, as in the case of a general
that it will be deferred until the objections are resolved. So the denial when a specific one is required or in the case of a denial of
period within which to file answer will be suspended. an actionable document not under oath.

What happens if you will just ignore the request for admission? You For example, for an allegation that defendant is “without
did not do anything at all. You did not admit or deny. Take note that knowledge or information sufficient to form a belief as to
your answer here should be under oath. What if you answered but the truth of a material averment made in the complaint”
not under oath or you did not answer at all? to constitute denial, it must be shown that the defendant
indeed was in no position to know the truth of the
The rule says each of the matters of which an admission is averment in the complaint. But if it can be demonstrated
requested, shall be deemed admitted. There is admission on your that he in fact was in a position to know, then the denial
part of all those matters that you did not answer under oath in the is ineffective and the averment is deemed admitted.
request for admission of the other party.
5. During the pre-trial stage;
As discussed before, in the pre-trial stage, there are
ADMISSIONS BY ADVERSE PARTY stipulations of facts. When one stipulate on a fact, that’s
The adverse party may make admissions: already an admission. You don’t have to prove it
anymore, because it was already binding against the
1. Out of court, as in the case of extrajudicial admissions, whether party who admitted.
by ct or omission;
6. By silence;
EXTRAJUDICIAL ADMISSION. Rule 130, Section 32. Admission by silence. - An act or
Under this rule, the admission is admissible only if it is against the declaration made in the presence and within the hearing
interest of the admitter (otherwise it is a self-serving statement). or observation of a party who does or says nothing when
the act or declaration is such as naturally to call for action
Example: Flight is considered a disserving act, since it is prejudicial or comment if not true, and when proper and possible for
to the interest of the accused. Flight is considered as circumstantial him to do so, may be given in evidence against him. (23a)
evidence of the guilt of the accused. BUT non-flight cannot be used
as evidence to prove his innocence, because that will be considered 7. Through others, as in the case of the exceptions to the RES
as an act that is favorable to the interest of the accused. INTER ALIOS ACTA rule in evidence;
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CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

For example, made by your partner, co-conspirator or

agent. These are binding to you as exempted under the A party should not be compelled to admit matters of fact already
RES INTER ALIOS ACTA rule. admitted by his pleading and concerning which there is no issue
(Sherr vs. East, 71 A2d 752, Terry 260, cited in 27 C.J.S. 91), nor
8. Expressly in an answer to a request for admission under Rule should he be required to make a second denial of those already
26; denied in his answer to the complaint.

9. Impliedly under Rule 26, Section 2. A request for admission is not intended to merely reproduce or
If there is a request for admission, then you did not reiterate the allegations of the requesting party's pleading but
answer that. You did not admit, you did not deny, you did should set forth relevant evidentiary matters of fact, or documents
not object – that will be considered as an admission. Each described in and exhibited with the request, whose purpose is to
of the matter to which an admission is requested shall be establish said party's cause of action or defense. Unless it serves
deemed admitted. that purpose, it is, as correctly observed by the Court of Appeals,
That’s the very important effect of failure to respond to a "pointless, useless," and "a mere redundancy."
request for admission. – THERE IS AN IMPLIED
ADMISSION. DISCUSSION
Actually, my observation here is that, of course, it could be possible
Q: Can a party be made to admit the same allegation twice? that your complaint, there are allegations there that you will put
A: Yes. For example, there is an actionable document. Its again for admission. And again, the questions can be repeated, and
genuineness and due execution must be denied under oath in the the defendant can be repeat on denying (or admitting).
pleadings, otherwise its genuineness and due execution are
admitted. The adverse party may then ask the other to admit its Just take note that, the answer as a pleading does not have to be
genuineness and due execution under oath using a request for under oath. It is only required to be under oath if there are
admission. This is not prohibited under the Rules. The same effect actionable document, which is attached to the complaint, because
applies. Failure to comply with Section 2 of Rule 26 amounts to an you have to deny it under oath. Otherwise, again, you are deemed
implied admission. Thus, a party may, IN THEORY, be asked to admit to have admitted the genuineness and due execution of that
the same thing twice. actionable document.
For a request for admission, your answers should be under oath.
HOWEVER, TAKE NOTE OF: So, how to reconcile? – Well, if you have an answer and it is not
PRISCILLA SUSAN PO v. COURT OF APPEALS under oath, (although you denied the matters set forth in the
G.R. No. L-34341 | August 22, 1988 complaint) and then there is another request for admission which
is served by the complainant against you as the defendant, now you
FACTS: The petitioner filed in 1971 a complaint for P35,000 have to answer the request for admission under oath (deny or
damages against the private respondent Jose P. Mananzan. After admit).
Mananzan had answered the complaint, petitioner served upon
him a request for admission. You cannot say that you have already answered the same questions
raised in the request for admission when you filed your answer to
On February 27, 1971, Mananzan asked for an extension of time to the complaint. Your answer (denials or admissions) are not under
answer the request for admission. The petitioner opposed the oath. It should be under oath. That’s why you need to respond for
motion for extension of time on account of alleged defects in the the request for admission under oath. Otherwise, you are deemed
notice of hearing. to have admitted all the matters set forth in the request for
admission.
On March 4, 1971, the petitioner filed a motion for summary
judgment on the ground that there exists no genuine or substantial Q: Can a party to whom the request is directed answer a request
controversy on any issue of fact raised in the complaint because the for admission through his lawyer? Can a lawyer answer a request
defendant, by failure to answer her request for admission within for admission on behalf of his client?
the reglementary period (Sec. 2, Rule 26, Rules of Court) is deemed A: Yes.
to have admitted the facts set forth in the request.
LAÑADA v. COURT OF APPEALS
On April 16, 1971, respondent Judge Lustre denied the motion for NESTLE PHILIPPINES VS. COURT OF APPEALS
summary judgment, observing that: "the interrogatories ... are February 1, 2002
nothing but a reiteration of a portion of the plaintiff’s allegations in
the complaint, which have already been answered and denied by Q: May the counsel of a party to whom a written request for
the defendant in his answer" hence, they "need not be answered admission is addressed under Section 1, Rule 26 of the Rules of
again if asked in the form of interrogatories." Court, answer such request for his client? (YES)

ISSUE: WON there is an implied admission. – NO! FACTS: The issue for resolution thus calls for an interpretation
of the phrase “the party to whom the request is directed.” This
HELD: An examination of petitioner's complaint and her request for is not the first time that the Court is faced with the issue of
admission confirms Judge Lustre's finding (which the Court of whether a party requested to make admissions may reply or
Appeals upheld) that the "fact" set forth in the request for answer through his counsel. In PSCFC Financial Corporation v.
admission, including the amount of damages claimed, are the same Court of Appeals (216 SCRA 838), the petitioner therein served
factual allegations set forth in her complaint which the defendant upon the Banco Filipino Savings and Mortgage Bank, a written
either admitted or denied in his answer. request for admission of the truth of certain factual matters.
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CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

Through Philip Sigfrid A. Fortun, who was not yet a lawyer when on behalf of the party, there is no problem. Unless however, if it is
Banco Filipino inaugurated its financing plan in 1968, Banco the client himself who will object to such answer by his lawyer.
Filipino made the requested admissions but denied that the That is the rule for a request for admission which is answered by
financing corporation had availed of the Home Financing Plan the counsel.
subject of controversy. Obviously objecting to the reply, the
petitioner therein made a second request for admission. In Q: If a lawyer is allowed to make the answer, can the request for
resolving the issue of whether or not the answer to the request admission be served upon him instead?
for admission under Rule 26 “should be made by the party A: No.
himself and nobody else, not even his lawyer,” the Court issued
a Resolution stating as follows: SALVADOR D. BRIBONERIA vs. COURT OF APPEALS
G.R. No. 101682 | December 14, 1992
ISSUE: WON the answer to the request for admission under Rule
26 should be made by the party himself and nobody else, not Under Section 1, Rule 26 of the Rules of Court, the request for
even his lawyer. – NO! admission must be served directly upon the party; otherwise,
the party to whom the request is directed cannot be deemed to
HELD: The argument is untenable. have admitted the genuineness of any relevant document in and
exhibited with the request or relevant matters of fact set forth
RULE 138, SECTION 21. Authority of attorney to appear. – An therein, on account of failure to answer the request for
attorney is presumed to be properly authorized to represent any admission.
cause in which he appears, and no written power of attorney is
required to authorize him to appear in court for his client.
DISCUSSION
Petitioner has not shown that the case at bar falls under any of You have to file your request for admission to the party himself, and
the recognized exceptions as found in Art. 1878 of the Civil Code not to his lawyer. It is up to him if he will answer that on his own or
which enumerates the instances when special powers of he will give it to his lawyer to relay the answer.
attorney are necessary, or in Rule 20 of the Rules of Court on
pre-trial where the parties and their attorneys are both directed This is one of the instances where a notice to the lawyer does not
to appear before the court for a conference; so that for counsel bind the client. As discussed before, the general rule is that notices,
to appear at the pre-trial in behalf of his client, he must clothe papers, etc. must be served to the lawyer, and not to the client if
the former with an adequate authority in the form of a special the latter is represented by a counsel. So notice to the client is not
power of attorney or corporate resolution. notice to the lawyer. It will not prejudice the client. Notice to the
lawyer is a notice to the client; it is binding against the client. But if
RULE 138, SECTION 23 provides that “attorneys have authority it is a request for admission, notice to the lawyer alone without
to bind their clients in any case by any agreement in relation notifying the client is not binding against the client or the party.
thereto made in writing, and in taking appeals, and in all matters
of ordinary judicial procedure x x x .”
GR: Notice to the lawyer is a notice to the client; it is binding
against the client.
Thus, when Rule 26 states that a party shall respond to the
XPN: If it is a request for admission, notice to the lawyer alone
request for admission, it should not be restrictively construed to without notifying the client is not binding against the client or
mean that a party may not engage the services of counsel to the party.
make the response in his behalf. Indeed, the theory of petitioner
must not be taken seriously; otherwise, it will negate the
DISTINCTIONS BETWEEN INTERROGATORIES TO PARTIES AND
principles on agency in the Civil Code, as well as Sec. 23, Rule
REQUEST FOR ADMISSION
138, of the Rules of Court.
INTERROGATORIES TO REQUEST FOR ADMISSION
PARTIES RULE 25 RULE 26
Nonetheless, even assuming arguendo that Atty. Philip Sigfrid
Fortun overstepped his authority, it is only his client, respondent In Both, any objection to the questions are submitted directly
Banco Filipino, which has the prerogative to impugn his acts and to the court.
not petitioner, the adverse party. Interestingly, Banco Filipino In Both, the answers may be deferred pending the court’s
has not objected to the response made by its counsel in its ruling of the objections.
behalf. The period to object is 10 days The period to object is not less
after service of the than 15 days from the date of
In the case at bar, neither is there a showing that petitioners interrogatories. service of the request for
Nestle and Santos did not authorize their respective counsel to admission.
file in their behalf the respective answers requested of them by Period to answer may be Period to answer may be
private respondents in the latter’s written request for shortened or extended extended but not shortened.
admission. As this Court has said, there is no reason to strictly
construe the phrase “the party to whom the request is directed” Rule 26, Section 3. Effect of admission.— Any admission made
to refer solely or personally to the petitioners themselves. by a party pursuant to such request is for the purpose of the
pending action only and shall not constitute an admission by
DISCUSSION
him or her for any other purpose nor may the same be used
In short, if there is a request for admission, supposedly the one who
should answer is the party. But if it is the lawyer who answered such against him or her in any other proceeding.
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CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

As we already said, when there is admission, it is already binding request for admission on the adverse party, it has the effect of
against the admitter but what is the extent of such admission? The barring you from later on presenting evidence on such facts. This is
rule says that it is the purpose of the pending action only and shall a very harsh consequence, example: Let’s say there is a fact that the
not constitute an admission by him or her for any other purpose plaintiff wants to prove, and he knows that it is within the
nor the same be used against him in any other proceeding. knowledge of the defendant. Under Rule 26, the plaintiff has to
Meaning, there is an exclusive use of the admission made, only for send the defendant a request for admission. Suppose the plaintiff
that action and not in another proceeding. did not send the defendant a request for admission because
according to the plaintiff, he will just prove this during the trial.
EXCLUSIONARY RULE OF EVIDENCE
Section 3 provides that any admission made by a party pursuant Now, during trial the adverse party can actually object because
to such request is for the purpose of the pending action only and under section 5, the plaintiff cannot present evidence to prove
shall not constitute an admission by him for any other purpose something which the defendant could have admitted in a request
nor may the same be used against him in any other proceeding. for admission. This is something which the party could have
admitted had the other party resorted to a request for admission
DISCUSSION under rule 26. So, because the plaintiff did not serve a request for
Take note against of the nature of the admission made under rule admission upon the defendant, the defendant can now prevent him
26, it is exclusive only for that proceeding. Remember also that in from proving such particular fact. This is a very dangerous provision
rule 23, deposition. The deposition is not only limited to that certain because it practically places the other party in estoppel.
proceeding. A deposition under section 5 of rule 23 may still be
used notwithstanding: The adverse party can therefore bar the other from proving
1. The substitution of parties; and anything simply because he failed to avail of the modes of
2. The dismissal of the action and subsequent filing of discovery. However, the Rules allow an exception: “Unless
another action involving the same subject between the otherwise allowed by the court for good cause and to prevent a
same parties or representatives or successors-in-interest. failure of justice.”

All depositions lawfully taken and duly filed in the former action What if denied by the defendant in his answer, still need to send
may still be used in another/ subsequent action as if originally taken request for admission?
therefrom. This is not in section 3 Rule 26, so we can say that
Section 3 of Rule 26 is an exclusionary rule of evidence. DISCUSSION
There is an exception, take note unless otherwise allowed by the
Rule 26, Section 4. Withdrawal – The court may allow the party court for good cause shown and to prevent a failure of justice. So
making an admission under this Rule whether express or you have to prove to the court or pray to the court to allow you to
implied, to withdraw or amend it upon such terms as may be present evidence on this fact otherwise there will be failure of
just. justice.

DISCUSSION Q: Now what if those matters had already been denied by the
defendant in his answer? Do you still need to send request for
Can you still withdraw the admission whether it is express or
admission?
implied admission? Yes, under section 4 it provides that the court
A: As already mentioned, if the answer of the defendant is not
may allow the party making an admission under rule 26 to
under oath then you need to send a request for admission because
withdraw or amend the admission. Now what are those terms that
the answer in a request for admission has to be under oath. So the
may be just, or which would justify the withdrawal or amendment
answers in the answer, the admissions, denials in the answer will
of the admission? We can relate this to section 4 of Rule 129 on
not serve the same purpose as the answer to the request for
Judicial Admission. Actually, if you make an admission, it may be
admission if the answer itself is not under oath.
contradicted by showing that it was made through palpable
mistake or that no such admission has been made. In relation to
PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS
rule 129, you can withdraw or amend such admission upon showing
that it was made through palpable mistake or that there is no Rule 27 Section 1. Motion for production or inspection; order.
admission made in the first place. Just remember that when you – Upon motion of any party showing good cause therefor, the
withdraw or amend your answers to the request for admission, it court in which an action is pending may
requires leave of court. it is because the rule says, “may allow”, (a) order any party to produce and permit the inspection and
meaning it is discretionary, you have to file a motion, you have to copying or photographing, by or on behalf of the moving party,
ask for leave of court. of any designated documents, papers, books, accounts, letters,
photographs, objects or tangible things not privileged, which
constitute or contain evidence material to any matter involved
Rule 26 Section 5. Effect of failure to file and serve request for
in the action and which are in his or her possession, custody or
admission.—Unless otherwise allowed by the court for good
cause shown and to prevent a failure of justice, a party who fails control; or
(b) order any party or permit entry upon designated land or
to file and serve a request for admission on the adverse party of
other property in his or her possession or control for the
material and relevant facts at issue which are, or ought to be,
purpose of inspecting, measuring, surveying, or photographing
within the personal knowledge of the latter, shall not be
permitted to present evidence on such facts. the property or any designated relevant object or operation
thereon. The order shall specify the time, place and manner of
DISCUSSION
making the inspection and taking copies and photographs and
What is the effect if you failed to file and serve a request for may prescribe such terms and conditions as are just.
admission? Please take note of section 5. Failure to file and serve a
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CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

DISCUSSION
In so far as this motion for Production or inspection is concerned SEE: SECURITY BANK CORPORATION vs. COURT OF APPEALS
the following are the two purposes by which a party is allowed to (G.R. No. 135874, January 25, 2000)
seek an order from the court in which the action is pending,
meaning we presuppose here that there is already an action that is “MODE OF DISCOVERY”
ongoing, so what are the purposes of this mode of discovery? UNDER THE AMPARO RULE

The purpose of this mode of discovery is to allow a party to seek GEN. ALEXANDER B. YANO vs. SANCHEZ and MEDINA
an order from the court in which the action is pending to: G.R. No. 186640, February 11, 2010
a) Order any party to produce and permit the inspection
and copying or photographing, by or on behalf of the In line with this, Section 14 of the Amparo Rule provides for
moving party, of any designated documents, papers, interim or provisional reliefs that the courts may grant in order
books, accounts, letters, photographs, objects or to, inter alia, protect the witnesses and the rights of the parties,
tangible things, not privileged, which constitute or and preserve all relevant evidence, viz:
contain evidence material to any matter involved in
the action and which are in his possession, custody or SEC. 14. Interim Reliefs. — Upon filing of the petition or at
control; anytime before final judgment, the court, justice or judge may
b) Order any party to permit entry upon designated land grant any of the following reliefs:
or other property in his/her possession or control for
the purpose of inspecting, measuring, surveying, or (b) Inspection Order. — The court, justice or judge, upon verified
photographing the property or any designated motion and after due hearing, may order any person in
relevant object or operation thereon. possession or control of a designated land or other property, to
permit entry for the purpose of inspecting, measuring, surveying,
Rule 27 sets an unequivocal proviso that the documents, papers, or photographing the property or any relevant object or
books, accounts, letters, photographs, objects or tangible things operation thereon.
that may be produced and inspected SHOULD NOT BE
PRIVILEGED. The motion shall state in detail the place or places to be
inspected. It shall be supported by affidavits or testimonies of
SEE: AIR PHILIPPINES CORPORATION vs. PENNSWELL, INC. witnesses having personal knowledge of the enforced
(G.R. No. 172835, December 13, 2007) disappearance or whereabouts of the aggrieved party.

DISCUSSION If the motion is opposed on the ground of national security or of

Please again take note that the documents, papers, etc., that may the privileged nature of the information, the court, justice or
be produced and inspected under Rule 27 must not be privileged judge may conduct a hearing in chambers to determine the merit
against disclosure. On the ground of public policy, the rules must of the opposition.
only be limited to those which are not confidential and which are
not privileged in character because even this evidence cannot be The movant must show that the inspection order is necessary to
admitted also. This condition is in addition to the requisite that establish the right of the aggrieved party alleged to be
items must be specifically described so that you will not inspect or threatened or violated.
remove or get any other items. It must be described, and must
consititute or contain evidence that is material to any matter The inspection order shall specify the person or persons
involved in the action. Again, materiality, meaning not just any authorized to make the inspection and the date, time, place and
document because even if it is described, if it is not material to the manner of making the inspection and may prescribe other
case, then you cannot ask for the production of that document. And conditions to protect the constitutional rights of all parties. The
which are in the parties’ custody or control. Of course, why would order shall expire five (5) days after the date of its issuance,
you ask for an order if the custody is not with them? It’s going to be unless extended for justifiable reasons.
useless.
(c) Production Order. — The court, justice, or judge, upon verified
A party may be compelled to produce or allow the inspection of motion and after due hearing, may order any person in
documents if six procedural requisites are complied with, viz.: possession, custody or control of any designated documents,
1. The party must file a motion for the production or papers, books, accounts, letters, photographs, objects or
inspection of documents or things, showing good cause tangible things, or objects in digitized or electronic form, which
therefor; constitute or contain evidence relevant to the petition or the
2. Notice of the motion must be served to all other parties return, to produce and permit their inspection, copying or
of the case; photographing by or on behalf of the movant
3. The motion must designate the documents, papers,
books, accounts, letters, photographs, objects or tangible The motion may be opposed on the ground of national security
things which the party wishes to be produced and or of the privileged nature of the information, in which case the
inspected; court, justice or judge may conduct a hearing in chambers to
4. Such documents, etc. are not privileged; determine the merit of the opposition.
5. Such documents, etc. constitute or contain evidence
material to any matter involved in the action; and The court, justice or judge shall prescribe other conditions to
6. Such documents, etc. are in the possession, custody or protect the constitutional rights of all the parties.
control of the other party.
 38
CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

DISCUSSION their Motion for Production/Inspection of Documents to compel

Under the Amparo Rule, there is a more or less similar rule. It’s in the respondents to produce the STB.
Section 14, the interim reliefs, the inspection order. It is basically
the same but it requires a verified motion and after due hearing any The RTC did not act on the motion on the ground that "the Stock
person is possession or control of a designated land, to permit entry and Transfer Book is one of the corporate books which may be
for the purpose of inspecting, measuring, surveying, or examined only by a stockholder-of-record."
photographing the property or any relevant object or operation
thereon, so more or less the same with Rule 27.
Ruling:
The RTC is wrong. The rules of discovery, including Section 1,
DISTINCTIONS
Rule 27 of the Rules of Court governing the production or
Production or Inspection of Subpoena Duces Tecum inspection of any designated documents, papers, books,
Documents or Things under under Rule 21 accounts, letters, photographs, objects or tangible things not
Rule 27 privileged, which contain or constitute evidence material to any
matter involved in the action and which are in the other party’s
A mode of discovery A means of compelling possession, custody or control, are to be accorded broad and
production of evidence which liberal interpretation.
must be brought to court
What is chiefly contemplated is the discovery of every bit of
Limited to parties in the action May be directed to any information which may be useful in the preparation for trial,
person, whether a party or not such as the identity and location of persons having knowledge
The order under Rule 27 is A subpoena duces tecum of relevant facts; those relevant facts themselves; and the
issued only upon motion with under Rule 21 may be issued existence, description, nature, custody, condition, and location
notice to the adverse party. upon an ex-parte application. of any books, documents, or other tangible things. Hence, the
"deposition-discovery rules are to be accorded a broad and
liberal treatment. No longer can the time-honored cry of ‘fishing
EAGLERIDGE DEVELOPMENT CORPORATION vs. CAMERON expedition’ serve to preclude a party from inquiring into the
GRANVILLE 3 ASSET MANAGEMENT, INC. facts underlying his opponent’s case.
G.R. No. 204700, November 24, 2014 Mutual knowledge of all the relevant facts gathered by both
parties is essential to proper litigation. To that end, either party
The availment of a motion for production, as one of the modes may compel the other to disgorge whatever facts he has in his
of discovery, is not limited to the pre-trial stage. Rule 27 does possession. The deposition-discovery procedure simply
not provide for any time frame within which the discovery mode advances the stage at which the disclosure can be compelled
of production or inspection of documents can be utilized. The from the time of trial to the period preceding it, thus reducing
rule only requires leave of court "upon due application and a the possibility, of surprise,".
showing of due cause."
In light of the foregoing, the RTC should have favorably acted on
Since the rules are silent as to the period within which modes of the petitioners’ Motion for Production/Inspection of
discovery (in that case, written interrogatories) may still be Documents in order to enable the petitioners, consistent with
requested, it is necessary to determine: (1) the purpose of the recognized privileges and disabilities, to enable them to
discovery; (2) whether, based on the stage of the proceedings obtain the fullest possible knowledge of the issues and facts to
and evidence presented thus far, allowing it is proper and would be determined in Special Civil Action Case No. 2070, and thereby
facilitate the disposition of the case; and (3) whether substantial prevent the trial from being carried on in the dark, at least from
rights of parties would be unduly prejudiced. This court further their side.
held that "[t]he use of discovery is encouraged, for it operates
with desirable flexibility under the discretionary control of the Doing so would not have caused any prejudice to the
trial court." respondents, for, after all, even had the petitioners not filed
the Motion for Production/Inspection of Documents, the
respondents would themselves also be expected to produce the
Therefore, it should have just been filed as a separate action. STB in court in order to substantiate their affirmative defense
that the petitioners were not stockholders-of-record of Abra
INSIGNE, ET. AL. vs. ABRA VALLEY COLLEGES, INC. Valley.
G.R. No. 204089, July 29, 2015

The petitioners filed a Motion for Production/Inspection of Verily, that there was no entry or record in the STB showing the
Documents, asking that the RTC direct the respondents to petitioners to be stockholders of Abra Valley was no valid
produce Abra Valley’s Stock and Transfer Book (STB); and that justification for the respondents not to produce the same.
petitioners be allowed to inspect the same. Otherwise, the disputable presumption under Section 3 (e) of
Rule 131 of the Rules of Court that "evidence willfully
Petitioners alleged that considering that Abra Valley’s STB was suppressed would be adverse if produced" could arise against
not in the possession of the petitioners, or at their disposal, they them.
could not be reasonably expected or justly compelled to prove
that their stock subscriptions and purchases were recorded
therein. This, more than any other, was precisely why they filed
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CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

RULE 28 and if a physician fails or refuses to make such a report, the

PHYSICAL AND MENTAL EXAMINATION OF PERSONS court may exclude his or her testimony if offered at the trial.
(3a)
SECTION 1. When examination may be ordered.— In an action
in which the mental or physical condition of a party is in DISCUSSION
controversy, the court in which the action is pending may in its ----------------------------------------------------------------------------------------
discretion order him or her to submit to a physical or mental Meaning of Sec. 3.
examination by a physician.
Example: A files a case against B for declaration of nullity of
DISCUSSION marriage on the ground of psychological incapacity of B.
APPLICABILITY
In that particular case, for example, A files a motion in court for the
Q: When shall an examination be ordered? mental examination of B, and the court granted the mental
A: It is when the mental or physical condition of a party is in examination of B, the respondent. Then the psychiatrist/
controversy. So, there should be a motion to compel the mental or psychologist conducts the examination on B, then the results are
physical examination to know the mental or physical condition of released. B requested a copy of the psychological evaluation report.
the party because the rule says “the court in its discretion” Once A gives B a copy of the results and findings of the
psychological examination conducted on B, what is now the
Q: What are these particular cases where the mental or physical consequence? A may now ask B for a copy of any examination
condition is in controversy? conducted before or after of the same mental condition. B cannot
A: The following are the cases: say he will not give A copies of such for the reason that it is privilege
This mode of discovery applies to an action in which the mental or communication (in reality, it is privilege communication).
physical condition of a party is in controversy (Sec. 1, Rule 28, Rules
of Court). Examples of this action would be: Here, we are applying the rule on physical or mental examinations
1. An action for annulment of a contract where the ground of persons under Rule 28. B cannot refuse to furnish A copies of any
relied upon is insanity or dementia; examination he underwent before and after he undergoes the
examination requested by A.
2. A petition for guardianship of a person alleged to be
insane; For example, B does not give copies of the results of the
psychological examination. the rule says that the court on motion
3. An action to recover damages for personal injury where and notice may make an order requiring delivery. He may be
the issue is the extent of the injuries of the plaintiff; compelled to deliver to A a copy of such medical report, or if the
physician of B does not want to make the report later on, and B
4. Action for declaration of nullity of marriage on the ground wants to prove that he is not psychologically incapacitated,
of psychological incapacity; although the results of the mental examination conducted by the
doctor, which was acquired by A from the motion she had filed for
5. Action for annulment under Article 45 of the Family Code
the mental examination of B, it showed that B is psychologically
on the grounds of insanity, physically incapacity of incapacitated. But the psychological examination that B went
consummating the marriage with the other and such through on his own, it showed that he was not psychologically
incapability continues and appears to be incurable and incapacitated. A now asks for a copy of the examination that B had
affliction with a sexually-transmissible disease found to conducted through his own efforts.
be serious and appears to be incurable;
To dispute the result of the medical examination which was
6. An action for damages based on quasi-delict that led to requested by A, B will present his doctor or his result. He cannot do
physical injuries that. That is the consequence. B cannot present testimony of his
doctor because he did not furnish A a copy of his results when she
SECTION 2. Order for examination – The order for examination asked for such.
may be made only on motion for good cause shown and upon
notice to the party to be examined and to all other parties, and PROCEDURE
shall specify the time, place, manner, conditions and scope of A motion must be filed showing good cause for the examination,
the examination and the person or persons by whom it is to be with notice to the other parties as well aside from the party to be
made. examined. The motion shall likewise specify the time, place,
manner, conditions and scope of the examination and 'by the
SECTION. 3. Report of findings— person or persons by whom it is made (Sec. 2, Rule 28, Rules of
If requested by the party examined, the party causing the Court).
examination to be made shall deliver to him or her a copy of a
detailed written report of the examining physician setting out The party examined may request the party causing the examination
his or her findings and conclusions. After such request and to be made to deliver to him a copy of a detailed written report of
delivery, the party causing the examination to be made shall be the examining physician setting out his findings and conclusions.
entitled upon request to receive from the party examined a like After such request and delivery, the party causing the examination
report of any examination, previously or thereafter made, of the to be made shall be entitled upon request to receive from the party
same mental or physical condition. If the party examined examined a like report of any examination, previously or thereafter
refuses to deliver such report, the court on motion and notice made, of the same mental or physical condition. If the party
may make an order requiring delivery on such terms as are just, examined refuses to deliver the report, the court may make an
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CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

order requiring the delivery on such terms as are just. If it is the RULE 29
physician who fails or refuses to make a report, the court may REFUSAL TO COMPLY WITH MODES OF DISCOVERY
exclude his testimony (Sec. 3, Rule 28, Rules of Court).
Under Rule 29, we have here the consequences of refusal to comply
SEC. 4. Waiver of privilege. — By requesting and obtaining a with the modes of discovery. Just read the different sections and in
report of the examination so ordered or by taking the deposition Section 3, we have there an illustration of a case showing you what
of the examiner, the party examined waives any privilege he or are the possible sanctions. At the end, we also have a summary of
she may have in that action or any other involving the same all the consequences of refusal to comply with the modes of
controversy, regarding the testimony of every other person who discovery. Just familiarize yourself with those consequences.
has examined or may thereafter examine him or her in respect
of the same mental or physical examination. (4a) SEC. 1. Refusal to answer.— If a party or other deponent
refuses to answer any question upon oral examination, the
DISCUSSION examination may be completed on other matters or adjourned
as the proponent of the question may prefer. The proponent
Are you familiar with, for example, patient-physician privileged
may thereafter apply to the proper court of the place where the
communication? For example, you have an examination done with
deposition is being taken, for an order to compel an answer. The
a doctor, the doctor cannot divulge the result of that examination
same procedure may be availed of when a party or a witness
without your consent as the patient.
refuses to answer any interrogatory submitted under Rules 23
or 25.
In this Section 4, in effect, there is a waiver of the privilege in
relation to Section 3 which we already discussed. Again, in my
If the application is granted, the court shall require the refusing
example, we have A and B and then on motion of A, he compelled
party or deponent to answer the question or interrogatory and
the mental examination of B, B now asked for a copy of the results
of the mental examination conducted on him on motion of A. Under if it also finds that the refusal to answer was without substantial
justification, it may require the refusing party or deponent or
Section 4, by requestion and obtaining a report of the examination
the counsel advising the refusal, or both of them, to pay the
so ordered, B now waives any privilege which he may have in that
proponent the amount of the reasonable expenses incurred in
action or any other case regarding the testimony of every other
obtaining the order, including attorney’s fees.
person who has examined like in my example, even before the case
that B has obtained a check-up or mental examination or
If the application is denied and the court finds that it was filed
psychiatric examination already and there is a result already, B
without substantial justification, the court may require the
cannot invoke the privileged communication anymore. If A asks for
proponent or the counsel advising the filing of the application,
a copy of the results of that previous examination conducted on B
or both of them, to pay to the refusing party or deponent the
even before the case was filed but relating to the same mental
amount of the reasonable expenses incurred in opposing the
condition, he cannot invoke the rule on privilege examination
application, including attorney’s fees. (1)
anymore or any other examination conducted thereafter.

Again, “by requesting and obtaining a report of the examination so SEC. 2. Contempt of court.— If a party or other witness refuses
ordered or by taking the deposition of the examiner”, with the same to be sworn or refuses to answer any question after being
illustration, this time, after B was examined on order of the court directed to do so by the court of the place in which the
by motion of A, B takes the deposition of the doctor, he motioned deposition is being taken, the refusal may be considered a
to take the deposition of that doctor who examined him upon contempt of that court. (2)
motion of A. By taking the deposition of that doctor, B waives the
privilege which he may have in that case or in any other case which Just take note that there are two kind of contempt:
involves the same mental condition, for example. He cannot invoke 1. Direct Contempt
the patient-physician privilege. A now has access and can now take 2. Indirect Contempt
or request for the copy of all the mental examinations conducted
by any other doctor upon B. Again, under these the two conditions: When you say Direct Contempt of Court, the refusal or the
1. B requested a report of the examination made upon him disobedience is being done in the presence of or so near a judge.
by order of the court; or, You are shouting inside the court and you are not respecting it.
2. If B took the deposition of the examiner or doctor who
conducted the examination upon him. Indirect Contempt, which we’ll discuss also in Section 3, means that
it is not committed in the presence of a judge or the court. Like for
example, refusal to comply with a subpoena or refusal to follow or
obey any order of the court, like in Rule 39 on execution, so there
are also cases there where the sanction would be indirect
contempt. Now, when you say indirect contempt, it is either the
court holds you in contempt moto proprio – on its own, without any
motion on your part – or it could be by petition where the aggrieved
party files a petition to cite the disrespectful party in indirect
contempt of court.

SEC. 3. Other consequences.— If any party or an officer or

managing agent of a party refuses to obey an order made under
Section 1 of this Rule requiring him or her to answer designated
 41
CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

questions, or an order under Rule 27 to produce any document The Court ordered the defendants to strictly comply with the
or other thing for inspection, copying, or photographing or to order. Failure of the defendants to comply with all the
permit it to be done, or to permit entry upon land or other requirements of the order dated September 10, 2002 will result
property, or an order made under Rule 28 requiring him or her in the court citing all the defendants in contempt of court and
to submit to a physical or mental examination, the court may to order defendants solidarily to pay a fine of ₱10,000.00 for
make such orders in regard to the refusal as are just, and among every day of delay to comply with the order of September 10,
others the following: 2002 until the defendants shall have fully and completely
(a) An order that the matters regarding which the complied with the said order.
questions were asked, or the character or description
of the thing or land, or the contents of the paper, or ISSUE: Is the order providing for contempt and payment of fine
the physical or mental condition of the party, or any valid?
other designated facts shall be taken to be established
for the purposes of the action in accordance with the RULING: Yes, the order is valid.
claim of the party obtaining the order;
(b) An order refusing to allow the disobedient party to A person guilty of disobedience of or resistance to a lawful order
support or oppose designated claims or defenses or of a court or commits any improper conduct tending, directly or
prohibiting him or her from introducing in evidence indirectly, to impede, obstruct, or degrade the administration of
designated documents or things or items of justice may be punished for indirect contempt. In particular,
testimony, or from introducing evidence of physical or Section 4, Rule 3 of the Interim Rules states that, in addition to
mental condition; a possible treatment of a party as non-suited or as in default, the
(c) (c) An order striking out pleadings or parts thereof, or sanctions prescribed in the Rules for failure to avail of, or refusal
staying further proceedings until the order is obeyed, to comply with, the modes of discovery shall apply. Under
or dismissing the action or proceeding or any part Section 3, Rule 29 of the Rules, if a party or an officer or
thereof, or rendering a judgment by default against managing agent of a party refuses to obey an order to produce
the disobedient party; and any document or other things for inspection, copying, or
(d) (d) In lieu of any of the foregoing orders or in addition photographing or to permit it to be done, the court may make
thereto, an order directing the arrest of any party or such orders as are just. The enumeration of options given to the
agent of a party for disobeying any of such orders court under Section 3, Rule 29 of the Rules is not exclusive, as
except an order to submit to a physical or mental shown by the phrase "among others."
examination. (3a)
To ensure that availment of the modes of discovery is otherwise
CAPITOL HILLS GOLF & COUNTRY CLUB, INC. vs. SANCHEZ untrammeled and efficacious, the law imposes serious sanctions
G.R. No. 182738 | February 24, 2014 on the party who refuses to make discovery, such as dismissing
the action or proceeding or part thereof, or rendering judgment
FACTS: During the January 11, 2007 inspection, the only by default against the disobedient party; contempt of court, or
document produced by the Acting Corporate Secretary, Atty. arrest of the party or agent of the party; payment of the amount
Antonio V. Meriz, and one of the staff, Malou Santos, was the of reasonable expenses incurred in obtaining a court order to
Stock and Transfer Book of the Corporation. They alleged that compel discovery; taking the matters inquired into as
they could not find from the corporate records the copies of the established in accordance with the claim of the party seeking
proxies submitted by the stockholders, including the tape discovery; refusal to allow the disobedient party support or
recordings taken during the stockholders’ meetings, and that oppose designated claims or defenses; striking out pleadings or
they needed more time to locate and find the list of stockholders parts thereof; staying further proceedings.
as of March 2002, which was in the bodega of the Corporation.
This prompted respondent to file a Manifestation with If adjudged guilty of indirect contempt, the respondent who
Omnibus Motion praying that an order be issued in accordance committed it against a Regional Trial Court or a court of
with Section 3, Paragraphs (a) to (d) of Rule 29 of the Rules of equivalent or higher rank may be punished with a fine not
Court (Rules), in relation to Section 4, Rule 3 of the Interim exceeding thirty thousand pesos, or imprisonment not
Rules of Procedure Governing Intra-Corporate Controversies exceeding six (6) months, or both. In this case, the threatened
under Republic Act No. 8799 (Interim Rules). sanction of possibly ordering petitioners to solidarily pay a fine
of ₱10,000.00 for every day of delay in complying with the
On September 3, 2007, the trial court issued a Resolution, the September 10, 2002 Order is well within the allowable range of
concluding portion of which ordered the defendants to penalty.
produce and make available for inspection and photocopying
by the plaintiff the following documents:
1. The list of stockholders of record as of March 2002;
2. All proxies, whether validated or not, which have been
received by the defendants; DISCUSSION
3. The specimen signatures of all stockholders as In the enumeration of sanctions, there is contempt. “Contempt”
contained in the Stock and Transfer Book or on the here is actually indirect contempt because it is not committed in
stub of the stock certificate; and the presence of a judge.
4. The tape recording of the stockholders’ meeting on
April 23, 2002 and May 21, 2002. SECTION 4. Expenses on refusal to admit. — If a party after
being served with a request under Rule 26 to admit the
genuineness of any document or the truth of any matter of fact,
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CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

serves a sworn denial thereof and if the party requesting the b. The court may issue an order refusing to allow the
admissions thereafter proves the genuineness of such disobedient party to refuse or support designated
document or the truth of any such matter of fact, he or she may claims or defenses or prohibiting him from
apply to the court for an order requiring the other party to pay introducing in evidence designated documents or
him or her the reasonable expenses incurred in making such things or items of testimony, or from introducing
proof, including reasonable attorney’s fees. Unless the court evidence of physical or mental condition (Sec. 3[b],
finds that there were good reasons for the denial or that Rule 29, Rules of Court).
admissions sought were of no substantial importance, such
c. The court may issue an order striking out pleadings
order shall be issued. or parts thereof, or staying further proceedings until
the order is obeyed, or dismissing the action or
SECTION 5. Failure of party to attend or serve answers. — If a
proceeding or any part thereof, or rendering a
party or an officer or managing agent of a party wilfully fails to judgment by default against the disobedient party
appear before the officer who is to take his or her deposition,
(Sec. 3[c], Rule 29, Rules of Court).
after being served with a proper notice, or fails to serve answers
to interrogatories submitted under Rule 25 after proper service d. The court may direct the arrest of any party or agent
of such interrogatories, the court on motion and notice, may of a party for disobeying any of the orders of the
strike out all or any part of any pleading of that party, or dismiss court, except an order to submit to a physical
the action or proceeding or any part thereof, or enter a examination.
judgment by default against the party, and in its discretion,
C. Refusal to be sworn
order him or her to pay reasonable expenses incurred by the
other, including attorney’s fees. (5a) A refusal of a party to be sworn after being directed by
the court may be considered as contempt of court (Sec.
SECTION 6. Expenses against the Republic of the Philippines. — 2, Rule 29, Rules of Court).
Expenses and attorney’s fees are not to be imposed upon the
Republic of the Philippines under this Rule. (6) D. Refusal to admit
If a party refuses to admit the genuineness of any
document or the truth of any matter of fact and serves a
REFUSAL TO COMPLY WITH THE MODES OF DISCOVERY sworn denial thereof and if the other party later on
The sanctions for refusal to comply with the modes of discovery proves the genuineness of the document or the truth of
may be summarized as follows: such matter of fact, the court upon proper application,
may order the former to pay the reasonable expenses in
A. Refusal to answer any question
making such proof, including attorney's fees (Sec. 4, Rule
a. The court may upon proper application, compel a 29, Rules of Court).
deponent who refuses to answer an oral
E. Failure to attend depositions or to serve answers to
examination. The same applies to a witness who
interrogatories
refuses to answer an interrogatory submitted (Sec.
The court may:
1, Rule 29, Rules of Court). A refusal to answer after
(a) strike out all or any part of the pleading of that party,
being directed by the court may be considered as a
or dismiss the action or proceeding or any part
contempt of court (Sec. 2, Rule 29, Rules of Court).
thereof, or
The court may order the deponent, a party, or the (b) enter a judgment by default against that party, and
counsel advising the refusal, or both of them, to pay in its discretion,
the proponent the amount of reasonable expenses (c) order him to pay reasonable expenses incurred by
incurred in obtaining the order, including attorney's the other, including attorney's fees (Sec. 5, Rule 29,
fees (Sec. 1, Rule 29, Rules of Court). Rules of Court).
The consequences under Sec. 5 of Rule 29 will apply if a
b. If the application for an order to compel a deponent party refuses to answer the whole set of written
to answer is denied because of the absence of a interrogatories, and not just a particular question. Where
substantial justification, the court may require the the party upon whom the written interrogatories is
proponent or the counsel advising the application, served, refuses to answer a particular question in the set
or both of them, to pay to the refusing party or of written interrogatories and despite an order
deponent the amount of reasonable expenses compelling him to answer the particular question, still
incurred in opposing the application, including refuses to obey the order, Sec. 3(c) of Rule 29 will apply
attorney's fees (Sec. 1, Rule 29, Rules of Court). (ZEPEDA vs. CHINA BANKING CORPORATION, G.R. No.
B. Refusal to answer designated or particular questions or 172175, October 9,2006).
refusal to produce documents or things or to submit to
physical or mental examination The following are the consequences provided for in Sec. 3(c) of Rule
29:
a. The court may order that the matters regarding (a) The court may issue "an order striking out pleadings or
which the questions were asked shall be taken as parts thereof;
established for purposes of the action in accordance (b) The court may issue an order staying further proceedings
with the claim of the party obtaining them (Sec. 3[a], until the order is obeyed; or
Rule 29, Rules of Court). (c) The court may issue an order rendering a judgment by
default against the disobedient party.
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CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

RULE 30
The matter of how, and when, the above sanctions should be TRIAL
applied is one that primarily rests on the sound discretion of the
court where the case is pending, having always in mind the STAGES IN LITIGATION
paramount and overriding interest of justice. For while the modes
of discovery are intended to attain the resolution of litigations with 1. Preparation and Filing Stage - The plaintiff gathers his initial
great expediency, they are not contemplated, however, to be evidence, causes the preparation of his complaint and files it.
ultimate causes of injustice. It behooves trial courts to examine well
the circumstances of each case and to make their considered DISCUSSION
determination thereafter (Zepeda vs. China Banking Corporation, Remember that the judiciary is initially a passive system, that unless
supra). there is a plaintiff who wants to file a case, meaning if there is no
plaintiff, there is no case. Therefore, what does the plaintiff do in
order to set the judicial machinery in motion? Of course, if he
intends to file a case, he needs to gather his initial evidence. What
would be the evidence? What testimony would he need? What
documents would he need in order to credibly file his case in court
especially now with the requirement that the case you file must
already include the evidence and that your judicial affidavits should
already be attached. The plaintiff also preferably goes to a lawyer
for the preparation of his complaint ad then he files his complaint.
That actually ends the preparation stage.

But now, it is takes much longer time. Why? Because again you
need to have your judicial affidavits prepared already. You must
know already, when you file the case, who are your witnesses and
what are your evidences or objects.

What follows after preparation and filing?

2. Pleading Stage – This begins with service of summons, filing of

allowed motions and responsive pleadings and culminating in
the filing of the last pleading. Litigation can end here.

DISCUSSION
This is where we devote most of our rules, in the pleading stage.
Because it begins with the service of summons (Rule 14), the filing
of allowed motions (Rule 15), and responsive pleadings, so what are
the pleadings allowed by the court? And then culminating in the
filing of the last pleading and we know that to be normally, a reply.
Only when the answer alleges an actionable document because
then, you need to deny the genuineness and due execution of the
actionable document attached in the answer.

And if there is an actionable document that is pleaded in the reply,

you can also file a rejoinder. But you need to remember that even
if it’s still the pleading stage, litigation can actually end there.

For example, you filed a complaint and you did not attach or comply
with the rule on certification against forum shopping, what would
be the effect? The court can dismiss the case. If the defendant, for
example, files a motion to dismiss based on the four grounds under
Rule 15, Sec. 12, then what will happen? Litigation can actually end
there, even without progressing to the next stage, which is pre-trial.

3. Pre-trial – Pre-trial can lead to the end of litigation without

going to the next phase.

DISCUSSION
We know the purposes of pre-trial, part of which, as we know, is
the simplification of issues, exploring the possibility of amicable
settlement, in fact the court can actually declare that the case can
actually be decided under Rule 34 or 35, judgement on the
pleadings or summary judgement. And then, it could end there. It
is possible that in the pre-trial, it will already end there.
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CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

Remember that among all these stages, you always apply Rule 17, 4. Execution – This is the stage when the judgment is
plaintiff can file a notice of dismissal, or the case can be dismissed satisfied, whether post-judgment remedies are availed
due to the fault of the plaintiff under Rule 17, Sec. 3. of.
Now we have execution stage or the stage when the judgment is
So, it is not automatic that we go through all the stages of litigation. actually satisfied. So, if the defendant was ordered to pay Php 1M,
Assuming that the case will proceed after pre-trial, that is where that is the time he is obliged to pay that order.
trial begins.
We will go to that when we reach rule 39 which is one of the most
4. Trial – The parties present their evidence. The Rules of difficult rules to discuss in all civil procedure.
Evidence (i.e., officers and objections) regulates what happens
in this stage. Now, let us go to Rule 30, and it talks about trial.

DISCUSSION: This is where the parties actually present their DEFINITION OF TRIAL
evidence already in support of their cause of action or defense
respectively. What we need to remember here is the fact that when According to Black’s Law Dictionary, TRIAL is the judicial
it comes to trial, it will always be the Rules of Evidence that is examination, in accordance with law, of a cause either civil or
supreme. That regulates what happens in the trial stage in criminal, of the issues between the parties, whether of law or fact,
litigation. before a court that has jurisdiction over it.

FROM TRIAL: It includes all proceedings from time when issues are joined until
the time of its final determination.
1. Trial
DISCUSSION
The trial has already ended. There is no presentation of evidence Remember, the trial will always be subject to the law of the land
anymore. Definitely, the Court is ready to render judgment (that is and what would that be? Of course, the Rules of Court. In fact,
under Rule 36). when you read the Constitution, there is also rules there that would
actually affect trial.
After the parties present their evidence, the next phase would be:
For example: We know that under Article 3 in the Constitution, the
2. Judgement – The court will consider the evidence accused has a right to speedy trial. So, what happens if a trial that
presented by the parties and proceed to determine which is going on before that court took so much time and, in the
among them is entitled to prevail. meantime, the prosecution failed to present evidence and the
accused is detained? He can actually invoke his right to a speedy
DISCUSSION trial. And therefore, when you talk about trial being done in
An exception there would be when the Court would look at only the accordance with law, it is not limited to the Rules of Court. You also
evidence of the plaintiff as when the defendant is declared in consult for example, the Constitution and other laws that tend to
default. cover the matter of trial.

After judgement what happens? Of course, there will be a So, the final determination after trial, you call that a judgment.
prevailing and a losing party. When there is already a judgment, can
the losing party still do something? Yes. We call that the post- Take note that the trial presupposes that the court has jurisdiction
judgement or the remedies after the judgement has already been over an action.
rendered.
Thus, where the court has no jurisdiction over the subject matter
3. Post-Judgement – The losing party can avail of several of an action, the trial and all proceedings held in the case are null
remedies like appeal, review, new trial or consideration, and void, as a general rule. Except when there is jurisdiction by
relief from judgement, annulment of judgement and the estoppel. That is why we need to go back to the case of Tijam vs.
Rule 65 petitions. Sibonghanoy. And when that case shows up in the exam or the Bar
exam, what you need to remember is the factual circumstances
DISCUSSION that attended the case of Tijam vs. Sibonghanoy the jurisdiction by
Certiorari, prohibition, mandamus, it can be availed of because estoppel.
there is already a judgment.
Q: Is the term “trial synonymous with the term “hearing”?
Assuming that all these appeal, review, new trial, reconsideration
and etc are resolved, what will happen? So, let us leave it hanging TRIAL VS HEARING; DISTINCTIONS
for now.
TRIAL HEARING
Now, assuming as well that after judgment there is no post These terms are often used interchangeably but they are
judgment remedy that was availed of by the party, you actually still actually not synonymous.
reach the same stage. In other words, whether there is a judgment Trial refers primarily to the A hearing is not confined to a
that was not appealed and therefore became final or there is post reception of the evidence for trial and presentation of
judgment that was taken and yet you still lost. What would be the the parties. evidence but embraces several
effect now? stages of litigation, including
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CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

pre-trial and determining time, compromise is allowed. Take note, even if the
whether to grant or deny a plaintiff and the defendant have rested, all the
motion. (Trocio vs. Labayo G.R. evidence for the both of them have been presented
No. L-35701, September 19, already, compromise is still allowed.
1973)
It refers to the period for the It does not necessarily imply Q: What if there is already a judgment, there is already a writ
introduction of evidence by presentation of evidences in of execution to execute the judgment?
both parties. open court, but the parties are A: Still compromise is allowed, you are allowed to talk it with the
nevertheless afforded the plaintiff if you are the defendant.
opportunity to be heard.
o Even if you are the one who lost in the case, you can
If you go back to your administrative law for example, or even in still appeal for a compromise. Compromise is actually
labor law, the term hearing in the context of an illegal dismissal, it encouraged in all stages of the litigation. But for
does not require an adversarial court type of hearing, it is enough example, there is a compromise prior to trial, there
that an employee has opportunity to be heard before he is actually shall be no trial anymore after that.
dismissed. So that is what hearing means. There is no need to
present evidence or adversarial. So that is with respect to labor 4. Where the complaint has been dismissed (i.e., Rule 15,
cases. Section 12; Rule 17);
o Will there be a trial if the complaint has been dismissed
TRIAL MAY OR MAY NOT FOLLOW AFTER PRE-TRIAL. already? For example, under Rule 15 Section 12, let’s
It is not automatic that when we are done with pre-trial, we should say res judicata, there will be no trial anymore. Or
proceed to trial. Why? Take note, if you recall the object of pre-trial under Rule 17, whether by motion or by notice, or due
are the possibility of an amicable settlement and the propriety of to the fault of the plaintiff, that is still dismissal. If it
rendering judgment on the pleadings, or summary judgment, or of happens before trial, there will be no more trial that is
dismissing the action should a valid ground therefor be found to required.
exist. That is very clear on the Rule 18 Section 1.
5. When the parties to any action agree, in writing, upon the
If a case is settled during pre-trial, the parties “avoid a litigation or facts involved in the litigation, and submit the case for
put an end to one already commenced” by reason of the judgment on the facts agreed upon, without the introduction
compromise. In such a case, trial will no longer be conducted. of evidence (Rule 30, Section 7);

If, during pre-trial, the court orders that the case be decided under 6. Where the civil case falls under the operation of the Rules on
Rules 34 (Judgment on the pleading) or 35 (summary judgment), Summary Procedure (Rule 17); and,
there would be no need for trial. o What will happen there? You can remember that the
testimony will consist of affidavits of the parties and
So, let’s go to the general rule here. One thing that you need to then the case is actually resolved by the submission of
remember because this is actually mandated by the requirements position papers for both the plaintiff and the
of due process, that, trial is necessary when an issue exists. If the defendant. This is what happens during Summary
plaintiff and the defendant cannot come into an agreement, Procedure. So, there is no trial. There is no
meaning there is that issue, there is contest, there is conflict with presentation of evidence that is customary in ordinary
respect to the facts of the case between the plaintiff and the cases or cases that are subject to ordinary rules.
defendant, there should be trial. And remember, that judgments
should not be made without a trial. There should be reception of 7. When the case falls under the Rule on Small Claims.
evidence, in other words. But there are exceptions. o For example, it is covered by the Rule on Small Claims,
what will happen there? Will there be a trial or
GR: Trial is necessary when an issue exists. Judgments should presentation of evidence? NO. The plaintiff will merely
not be made without trial. fill up a form and then the court will summon them,
XPNs: (When is trial or reception of evidence no longer and they will just discuss the case. Then, the court will
necessary) now look upon the case, based on the attachments of
the plaintiff, if he has a cause of action and then they
1. Where the pleadings of the parties tender no issue at will look on the evidence or the attachments of the
all, a judgment on the pleadings may be directed by defendant. There is really no need to go to Rule 132 of
the court (Rule 34); the rules relating to the presentation of evidence
because it is just a small claim.
2. Where from the pleadings, affidavits, depositions
and other papers, there is actually no genuine issue, Again, in these cases, trial can actually be avoided. No need for
the court may render a summary judgment (Rule 35); presentation of evidence in these cases.

3. Where the parties have entered into a compromise Section 1. Schedule of trial. – The parties shall strictly observe
or an amicable settlement either during the pre-trial the scheduled hearings as agreed upon and set forth in the pre-
or while the trial is in progress (Rule 18); trial order.
o We need to remember that compromise is always a. The schedule of the trial dates, for both plaintiff and
encouraged, such that even while you are in the defendant, shall be continuous and within the
middle of a trial, or presentation of evidence, at any following periods:
 46
CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

I. The initial presentation of plaintiff’s Now, based on the evidence-in-chief presented by the defendant,
evidence shall be set not later than thirty if the plaintiff wants to counteract the effect of that evidence, he
(30) calendar days after the termination of will now present a rebuttal evidence.
the pre-trial conference. Plaintiff shall be Q: What is surrebuttal evidence?
allowed to present its evidence within a A: Surrebuttal evidence is the evidence presented by the
period of three (3) months or ninety (90) defendant in answer to evidence introduced in rebuttal by the
calendar days which shall include the date plaintiff.
of the judicial dispute resolution, if
necessary; LIMITATIONS ON REBUTTAL
II. The initial presentation of defendant’s
evidence shall be set not later than thirty 1. With respect to the plaintiff’s rebuttal evidence, he is
(30) calendar days after the court’s ruling on not allowed to present new evidence on his main claim
plaintiff’s formal offer of evidence. The (that evidence tending to establish his main cause of
defendant shall be allowed to present its action) because rebuttal is limited to evidence meant to
evidence within a period of three (3) counteract the defendant’s evidence-in-chief.
months or ninety (90) calendar days;
III. The period for the presentation of evidence You cannot introduce evidence in this stage that is totally unrelated
on the third (fourth, etc.)-party claim, to the main evidence of the defendant whether it is on the main
counterclaim, or crossclaim shall be defense of the defendant or in the counterclaim. You cannot
determined by the court, the total of which present a rebuttal that is not related with the evidence-in-chief of
shall in no case exceed ninety (90) calendar the defendant.
days; and,
IV. If deemed necessary, the court shall set the 2. In the same vein, in surrebuttal, the defendant is only
presentation of the parties’ respective allowed to present evidence except such as would
rebuttal evidence, which shall be completed counteract the plaintiff’s rebuttal evidence.
within a period of thirty (30) calendar days.
b. The trial dates may be shortened depending on the If the rebuttal evidence is one that counteracts the defendant’s
number of witnesses to be presented, provided that evidence-in-chief, the surrebuttal evidence also can counteract
the presentation of evidence shall be terminated only the rebuttal evidence of the plaintiff. That is what will happen
within a period of ten (10) months or three hundred there. It is not allowed to include something that was not covered
(300) calendar days. If there are no third (fourth, etc.)- previously in the immediate stage prior to that. And then later on,
party claim, counterclaim or cross-claim, the when you go to third year in evidence, that is also applicable. There
presentation of evidence shall be terminated within a is a mini-incarnation of these stages in the examination of a
period of six (6) months or one hundred eighty (180) witness.
calendar days.
c. The court shall decide and serve copies of its decision Let’s say for example, first, there is direct examination. You also
to the parties within a period not exceeding ninety have cross-examination. After the cross-examination and there is
(90) calendar days from the submission of the case for still a need to counteract the points established during the cross-
resolution, with or without memoranda. examination, then you conduct a redirect examination, but the
redirect examination cannot go beyond the scope of the cross-
We’ll just simplify this very long Section 1. examination. And then after redirect examination, you can have
USUAL FLOW OF TRIAL (1 PLAINTIFF, 1 DEFENDANT): again a recross-examination which again, should not be greater in
scope than the redirect examination. So, it is the same.
1. It starts with the Plaintiff presents his evidence-in-chief.
2. Followed by the Defendant presents his evidence-in- Plaintiff’s evidence-in-chief will be responded to by the defendant’s
chief as well. evidence-in-chief. Then, the defendant’s evidence-in-chief will be
3. Plaintiff presents his rebuttal evidence. We need to responded to by the rebuttal evidence for the plaintiff which should
remember what this “rebuttal evidence” term mean. not be greater in scope again, compared to the defendant’s
4. Defendant presents his surrebuttal evidence. And this evidence-in-chief. And the same applies to surrebuttal evidence as
might be new to you so we also need to remember that well.
term “surrebuttal evidence”.
3. Neither rebuttal nor surrebuttal are mandatory stages.
Q: What is evidence-in-chief? It is entirely up to the parties if they want to present
A: Evidence-in-chief is the main evidence for the plaintiff’s cause of rebuttal evidence or not. In other words, rebuttal may
action and the defendant’s defense and counterclaim, if any. That be waived.
is their main evidence. The plaintiff will live and die with his main
evidence for his cause of action and the defendant also, will live and This is what we need to remember. It is possible that the trial will
die according to the evidence of his defense. end without rebuttal and surrebuttal. For example, the defendant
is done presenting his evidence, the plaintiff will not present
Q: What is rebuttal evidence? rebuttal evidence anymore. The defendant cannot therefore
A: Rebuttal Evidence is evidence presented by the plaintiff in present surrebuttal evidence because there is no rebuttal. That is
answer to evidence introduced by the defendant. Take note of this. the system there. It is not mandatory. It’s entirely dependent on
The plaintiff has (1) main evidence and of course, that will be the parties.
counteracted or countervailed by the evidence of the defendant.
 47
CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

Are there instances under the law, that it is possible to interrupt the Or if the plaintiff files a motion to dismiss the defendant’s
presentation of evidence-in-chief, rebuttal evidence, and counterclaim, again, based on the four special grounds.
surrebuttal evidence? Can the plaintiff’s evidence-in-chief, for
example, be terminated or stopped? What could possibly cause that But there is one more situation. Is there one more situation when
the plaintiff cannot anymore continue to present his evidence-in- the plaintiff has presented his evidence, and the defendant may get
chief? away and win the case without presenting evidence on his own?
We’re talking here about the defense of a defendant, not a
INTERRUPTION OF THE FLOW AFTER PRE-TRIAL AND DURING counterclaim that he set up.
TRIAL
Can we recall Rule 33—demurrer to evidence? The defendant will
STAGE HOW INTERRUPTED no longer present evidence if he files a demurrer, which is granted.
Presentation of plaintiff’s It may be interrupted by
evidence-in-chief dismissal if the plaintiff fails to What will happen in a demurrer? You file a demurrer because based
appear during the on the facts and the law, the plaintiff is not entitled to relief. In
presentation of his evidence, other words, the plaintiff failed to comply with his burden of proof.
etc. or if the defendant files a He didn’t prove the elements of his cause of action, so you can file
motion to dismiss based on a demurrer to evidence.
the four special grounds.
Presentation of defendant’s With respect to his 3. PRESENTATION OF PLAINTIFF’S REBUTTAL EVIDENCE
evidence-in-chief counterclaim, it may be Can that be interrupted? Can the plaintiff be hindered from
interrupted by dismissal if the presenting his rebuttal evidence? Actually, it is possible because the
defendant fails to appear presentation of rebuttal evidence is optional. The plaintiff may not
during the presentation of his opt to present rebuttal evidence anymore.
evidence etc. or if the plaintiff
files a motion to dismiss his Or the plaintiff wants to present rebuttal evidence but there will be
counterclaim based on the no rebuttal because the defendant does not or cannot present his
four special grounds. evidence anymore. There’s no need to rebut in this case.

Also, the defendant will no 4. PRESENTATION OF DEFENDANT’S SUREBUTTAL

longer present evidence if he EVIDENCE
files a demurrer which is Can there be interruption here? There is. The defendant may opt
granted. not to present surrebuttal evidence anymore after hearing the
Presentation of plaintiff’s The plaintiff may opt not to rebuttal evidence of the plaintiff. Also, if there was no rebuttal,
rebuttal evidence present rebuttal evidence there is no more surrebuttal.
anymore.
That’s what we need to remember—that these different stages can
It also follows that there will be interrupted.
be no rebuttal if the defendant
does not or cannot present FORMAL OFFER
evidence.
Presentation of defendant’s The defendant may opt not to Rule 132
surrebuttal evidence present surrebuttal evidence
anymore. Also, if there was no Section 34. Offer of evidence. – The court shall consider no
rebuttal, there is no more evidence which has not been formally offered. The purpose for
surrebuttal. which the evidence is offered must be specified.

DISCUSSION Section 35. When to make offer. – All evidence must be offered
1. PRESENTATION OF PLAINTIFF’S EVIDENCE-IN-CHIEF orally.
In those situations, during trial, the plaintiff cannot anymore
continue to present evidence. In effect, it is possible that the The offer of the testimony of a witness in evidence must be
defendant will win. made at the time the witness is called to testify.

2. PRESENTATION OF DEFENDANT’S EVIDENCE-IN-CHIEF The offer of documentary and object evidence shall be made
What about the instances wherein the defendant may be presented after the presentation of a party’s testimonial evidence (35a)
or does not have to present any evidence-in-chief? Are there
instances like that? The form that an offer takes would be that it would be offered
orally.
The plaintiff is done presenting his or her evidence-in-chief, and
then the defendant won’t present his or her evidence-in-chief to If you are calling somebody to be your witness, you will have to
counteract the evidence of the plaintiff. state for the record and before the court, what is the purpose of
the testimony of that witness. That is your formal offer.
If you talk about his counterclaim, for example, that is the same
with the plaintiff’s, so it may be interrupted by dismissal if the On the last paragraph of Section 35: That’s the time that you do it.
defendant fails to appear during the presentation of his evidence. When all your witnesses are done testifying, that’s the time that
 48
CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

you offer all of the documents that were identified and marked offer within a considerable period of time shall be deemed a
during trial or during the presentation of evidence. You summarize waiver to submit it. Consequently, any evidence that has not
what they are. been offered shall be excluded and rejected.

GR: Offer the evidence orally. The REMEDY of the opponent would be to move for the striking off
of the evidence from the records. The court may also exclude the
You have to offer evidence one by one. same motu proprio.
After the plaintiff is done with the presentation of his main
Take note that the Supreme Court had the occasion to define what evidence, the plaintiff rests. He will then make a formal offer of his
a formal offer is. documentary and object evidence. And he has to do it orally.

GUMABON v. PNB Q: What happens after that?

G.R. No. 202514 | July 25, 2016 A: The defendant will not immediately present his evidence. He is
allowed to:
RULING: Formal offer means that the offeror shall inform the 1. Comment on or oppose the plaintiff’s formal offer of
court of the purpose of introducing its exhibits into evidence. exhibits; or
Without a formal offer of evidence, courts cannot take notice of
this evidence even if this has been previously marked and He can raise objections on the admissibility of the exhibits offered
identified. by the plaintiff.

DISCUSSION 2. File a demurrer because the plaintiff failed in

That is a very strict general rule. If you simply forgot to offer but discharging the burden of proof (i.e. he failed to prove
presented during trial, the court will not take notice of the evidence the elements of his cause of action).
if you lack the formal offer.
After the court rules on the formal offer or the demurrer, as the
REPUBLIC v. GIMENEZ case may be, the defendant will now present his main evidence.
G.R. No. 174673 | January 11, 2016 Usually, the presentation of the evidence on the defendant’s
defense will just be lumped with the presentation of evidence on
RULING: Formal offer is necessary because judges are mandated his counterclaim as they are found in the same judicial affidavit.
to rest their findings of facts and their judgment only and strictly
upon the evidence offered by the parties at the trial. Its function Because the judicial affidavit will constitute the testimony of the
is: defendant, is it possible to have his judicial affidavit for his defense
• To enable the trial judge to know the purpose or be different from his judicial affidavit for his counterclaim? No. He
purposes for which the proponent is presenting the will lump the two together. So, the defendant will only testify once.
evidence; That’s the time that he presents his main evidence.
• On the other hand, this allows opposing parties to
examine the evidence and object to its admissibility; After presenting all his evidence, including his witnesses, he also
• Moreover, it facilitates review as the appellate court rests and makes a formal offer. The plaintiff may also comment on
will not be required to review documents not or oppose the defendant’s formal offer or file a demurrer on the
previously scrutinized by the trial court. counterclaim.

Specially so if the counterclaim is merely a permissive counterclaim.

DISCUSSION It means that it has no logical connection to the subject matter of
the main claim, but it was allowed by the court. In this case, the
The Supreme Court said here that the formal offer is not just an
evidence will be different. The plaintiff can here file a demurrer on
empty ceremony. It is not just a formal requirement.
the counterclaim on that ground.
On the second function: So, a principle that you need to remember
After the court rules, if deemed necessary, the plaintiff may present
as early as now is that if there is no offer, you cannot object. If there
his rebuttal evidence.
is no formal offer, you are not yet to object.
Usually, in trial, what will happen there? The initiative will come
The exception there would be if your objection is to the question.
from the plaintiff himself. “Your Honor, we manifest for the record
If the question calls for an answer not related to the case, then you
that we intend to present rebuttal evidence,” he will manifest to
call that “irrelevant evidence”. Thus, you can object.
the court. Otherwise, the court can simply say that since the both
parties have rested, the case is submitted for resolution. He will
So, that’s one way to do it. Or something that is not relevant or
decide already.
material to the fact in this issue in the case. You can object even
without offer. The testimony of the witness himself has been
If you are the plaintiff and you have rebuttal evidence, then you
previously offered.
have to take the initiative. You have it stated for the record that you
have rebuttal evidence to present.
EFFECT OF LACK OF OFFER
GR: If the proponent of a piece of evidence fails to make a Take note of this. This is the one provided in Section 1, as to the
formal offer, the evidence will be excluded. The rule on formal periods.
offer of evidence is not a trivial matter. Failure to make a formal
 49
CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

PERIODS
Stage When set Duration The rules do not expect that the presentation is extensive
Presentation of Within a period of compared to the main claim. Some of the evidences may have
plaintiff’s main Not later than thirty three (3) months or already been presented for the trial of the main claim. So, it should
evidence (30) calendar days ninety (90) calendar not be given a long period of time. Thus, the maximum will only be
after the days which shall 90 calendar days for all the claims.
termination of the include the date of
pre-trial the judicial dispute 4. The trial dates may be shortened depending on the number of
conference. It must resolution, if witnesses to be presented, provided that the presentation of
be within the 30 necessary; evidence of all parties shall be terminated within a period of
days. JDR is included ten (10) months or three hundred (300) calendar days.
thereto.
Let’s say for example you have 3 witnesses. Usually, 1 of them
Presentation of Not later than thirty would be the main witness, the one who would prove the cause of
Within a period of action. The remaining witnesses would only be corroborative, or for
defendant’s (30) calendar days
three (3) months or addition only to corroborate the statements of the main witness.
main evidence after the court’s
ninety (90) calendar The judicial affidavits [of corroborative witnesses] would be only
ruling on plaintiff’s
days. short. If their testimony is not long, is it possible that the 3
formal offer of
evidence. witnesses be presented in 1 day? YES! There is no need present all
the witnesses in separate days, if they can be presented in a single
Presentation of No period is stated occasion. If shorter period of trial is needed for them, then there is
plaintiff’s under the rules. no need to make it longer.
rebuttal Thus, the court
evidence determines Within a period of 5. If there are no third (fourth, etc.)-party claim, counterclaim or
Presentation of whether the three (3) months or cross-claim, the presentation of evidence shall be terminated
defendant’s rebuttal evidence is ninety (90) calendar within a period of six (6) months or one hundred eighty (180)
surrebttal required and sets days. But that is calendar days.
evidence the same combined for both
accordingly, after plaintiff and the There is a deadline on when the presentation of evidence should
completion of the defendant. end.
presentation of
evidence to be 6. The court shall decide and serve copies of its decision to the
rebutted. parties within a period not exceeding ninety (90) calendar
days from the submission of the case for resolution, with or
without memoranda.
OTHER MATTERS TO REMEMBER FOR SECTION 1:
7. A case is deemed submitted for resolution when both the
1. The parties shall strictly observe the scheduled hearings as plaintiff and defendant have finally rested their cases.
agreed upon and set forth in the pre-trial order. (Meaning, there is no rebuttal evidence to be presented; that is
really it) The court may require the submission of memoranda
REMEMBER: When the trial dates are set, and 1 trial date is or even oral arguments in support of the parties’ respective
postponed because of force majeure, the party who caused the positions in order to aid the court in deciding the case.
postponement is forewarned that he has to finish the presentation
of his evidence during the remaining trial dates. There is no make- Most of the courts will just decide; some will not require anymore
up class when you talk about trial. The scheduled hearings or trial the submission of memoranda. But some courts will even require
dates must be strictly observed. memoranda even on petty things, just like when there is an
objection in the course of trial – the court will require memoranda
2. The schedule of trial dates for both the plaintiff and defendant or position paper on that issue before ruling. This delays the trial.
shall be continuous.
Based on the spirit of the rules, the moment the parties are done
GR: The presentation of evidence must be continuous. submitting their evidence, automatically that is submitted for
It shouldn’t be that on June 2020 you presented 1 witness, and the resolution; no need for the submission of memoranda or oral
next presentation is in January 2021. That is not continuous, that is arguments.
very delayed.
ADJOURNMENTS AND POSTPONEMENTS
3. The period for the presentation of evidence on the third Section 2. Adjournments and postponements. – A court may
(fourth, etc.)-party claim, counterclaim or cross-claim shall be adjourn a trial from day to day, and to any stated time, as the
determined by the court, the total of which shall in no case expeditious and convenient transaction of business may
exceed ninety (90) calendar days; and require, but shall have no power to adjourn a trial for a longer
period than one [(1)] month for each adjournment, nor more
No matter how many the claims, the duration of which is only 90 than three [(3)] months in all, except when authorized in writing
calendar days. Why? Because these counterclaims, cross-claim, by the Court Administrator, Supreme Court.
third (fourth, etc.) party claim, they all have a relation to the subject
matter of the main case between the plaintiff and defendant.
 50
CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

The party who caused the postponement is warned that the

presentation of its evidence must still be terminated on the 2nd paragraph: So, in this case, which is fairly recent, actually says
remaining dates previously agreed upon. (2a) that these periods to render judgement are actually not mandatory.
But take note, that if the case really does take an unusual amount
Q: If the court wants to or needs to adjourn for more than 3 of time, this can subject the judge to disciplinary action, like in the
months in total, what will be the requirement? case of Spouses Marcelo v. Pichay.
A: The court needs to ask for an authorization in writing from the
Court Administrator or the Supreme Court. Spouses Marcelo v. Pichay
A.M. No. MTJ-13-1838 | March 12, 2014
ARTICLE VIII, SECTION 15, 1897 CONSTITUION
Section 15. (1) All cases or matters filed after the Pursuant to Section 9, Rule 140 of the Rules of Court, undue
effectivity of this Constitution must be decided or delay in rendering a decision or order is considered as a less
resolved within twenty-four months from date of serious offense which is punishable by either:
submission for the Supreme Court, and, unless reduced
by the Supreme Court, twelve months for all lower (a) Suspension from office without salary, and other
collegiate courts, and three months for all other lower benefits for not less than 1 nor more than 3 months;
courts. or

It is actually a Constitutional requirement that the trials shall be (b) A fine of more than P10,000 but not exceeding
immediately done. But the thing about all these periods is that, take P20,000.
note, as far as the court is concerned, they are actually do not mean
squat. Why? Because, no party can win a civil case just because the
DISCUSSION:
court failed to render judgement within the period fixed by the
rules. Meaning the judge can be administratively liable if he delays in
rendering judgment. So, there is a fine, there is a suspension, but
It is not the same with criminal cases where you can actually invoke does it affect the validity of the decision? No.
the right to speedy trial. So, let’s say in the civil case, there is a delay
and instead of deciding it within 6 months, it took the court 12 Now there is this deleted provision.
months to rule.
Deleted Provision
Q: Can you do anything about it? Are you entitled to winning the
case just because the court decision was a bit late? Section 3. Requisites of motion to postpone trial for
A: No. And only parties are procedurally affected if they do not absence of evidence. – A motion to postpone a trial
comply with the requisite period. on the ground of absence of evidence can be granted
only upon affidavit showing the materiality or
So, in case there will be a consequence for not following the period, relevancy of such evidence, and that due diligence
it is only applicable to a party. Generally, it will not affect the court. has been used to procure it. But if the adverse party
And time and again, the Supreme Court has consistently ruled that admits the facts to be given in evidence, even if he
periods for deciding a case are all directory and not mandatory. objects or reserves the right to object to their
admissibility, the trial shall not be postponed. (4a,
The most recent that I can cite as an example is this complaint R22, Bar Matter No. 803, 21 July 1998)
affidavit against Justice Leonardo-De Castro.
DISCUSSION:
Re: Complaint-Affidavit Against Justice Leonardo-De Castro Why was this deleted? Because again the policy of the law would
A.M. No. 18-11-09-SC | January 23, 2019 be, for example you are absent at the time you were supposed to
present your evidence, you have already waived for such
Statutes requiring the rendition of judgement forthwith or presentation of evidence and recall as well that based on the spirit
immediately after the trial or verdict have been held by some of the new Rules or the Amended Rules, it is required that all your
courts to be merely directory so that non-compliance with them evidence shall be available at the time you have filed your pleading.
does not invalidate the judgment, on the theory that if the
statute had intended such result it would clearly have indicated When you file a complaint, all your witnesses should have already
it. judicial affidavits as a general rule. You can file for a reservation,
but then again, the requirements for a reservation are very strict.
Ineluctably, leeway must be given to magistrates for them to Even then, if you plan to add judicial affidavits and reserve them,
thoroughly review and reflect on the cases assigned to them. you still have to tell the court what is the name of the witnesses,
XXX It would be at the height of injustice if cases were hastily what is his position and what would be the substance of his
decided on at the risk of erroneously dispensing justice. testimony.

DISCUSSION: But, again the general rule is that it should be available at the time
you file your pleading, whether it is an initiatory or responsive
1st paragraph: In other words, even if you are delayed with regard pleading. Answer, also needs a judicial affidavit. So, because of this,
to any judgement rendered, you are not allowed to invalidate it. It Section 3 is no longer applicable.
will not have an effect on the validity of the judgement.
 51
CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

Because of this, you can really know and be assured that your case
Now let us go to the new Section 3 – POSTPONEMENT DUE TO is set for hearing.
ILLNESS:
Take note, as we have discussed in Rule 15 that unless the court
Section 3. Requisites of motion to postpone trial for illness of schedules your case on a different day, it will be presumed that
party or counsel. – A motion to postpone a trial on the ground your motion will be heard during Fridays.
of illness of a party or counsel may be granted if it appears upon
affidavit or sworn certification that the presence of such party Take note as well of the first sentence. Trial shall be held from
or counsel at the trial is indispensable and that the character of Monday to Thursday. Again, this is because, Friday is supposed to
his or her illness is such as to render his or her non-attendance be motion day. So Trial is different from hearing on the motion.
excusable. (4a)
Trial is really reception of evidence; it happens Monday to
DISCUSSION: Thursday. Hearing on Motions are conducted, as a general rule on
a Friday.
Section 3 recognizes the fact that all people have the capacity to
get sick. So, if you really cannot attend, and you are the lawyer or
you are the party-litigant, you cannot attend because you were sick Take note again, that there is already a time requirement, and this
or you contracted CoVid. You cannot just force yourself to attend. is entirely a new provision, 8:30 a.m. and 2:00 p.m.

In these cases, it is important to justify your absence. You have to Q: Why is this required?
file a motion to postpone. A: As a rule, courts should be open as early as 8:00 a.m. However,
there are instances where Judges arrive at times on 10:00 or 11:00.
Q: What do you need to include in your motion to postpone? What can you accomplish if that is the case? And during afternoons,
A: An affidavit or sworn certification. A sworn certification, usually they would arrive at 3:30 p.m.
in practice, it is already sufficient if you present a medical certificate
if you have a previous diagnosis. You have to attach your medical So just remember that hearings are only allowed during the 8-12
certificate and that would usually be enough and sufficient in order timeframe because, remember, judges need to take their lunch too.
for you to postpone trial on that ground. The court employees still need to take their lunch, even the parties
need to take their lunch.
Take note as well that there is an additional requisite here. It has to
appear that the presence of party or counsel at the trial is To calculate the time, it is only 3 and a half hours in the morning
indispensable. and 4 hours in the afternoon if the court is still open at 6:00 p.m. So
with that ask yourself, how many witnesses can you present during
Q: What is meant by this indispensability? that time? How many cases can the court entertain by then?
A: Let us put for example that you are counsel. Are you the only
lawyer capable of attending that case? What if you have a co- So that is the problem with the judiciary. There is really a delay on
counsel? Or that you are a member of a big law firm where you can cases because a lot of judges do not actually attend to their duties
ask for a co-counsel to replace you? punctually. Because of that the Supreme Court enacted this rule
wherein by the time 8:30 a.m. already strikes, you should already
These are things that the court will have to consider, and the be open, at 2:00 p.m. you should already be open. Otherwise, you
character of the illness is such as to render non-attendance can be subjected to administrative liability.
excusable. Again, my perfect example there would be CoVid. So,
these are things that could happen. We are all creatures of nature, Section 5. Order of Trial. – Subject to the provisions of Section
and sickness cannot really be avoided. 2 of Rule 31, and unless the court for special reasons otherwise
directs, the trial shall be limited to the issues stated in the pre-
trial order and shall proceed as follows:
Section 4. Hearing Days and Calendar Call. — Trial shall be held
from Monday to Thursday, and courts shall call the cases at
a. The plaintiff shall adduce evidence in support of his or
exactly 8:30 a.m. and 2:00 p.m., pursuant to Administrative
her complaint;
Circular No. 3-99. Hearing on motions shall be held on Fridays,
b. The defendant shall then adduce evidence in support
pursuant to Section 8, Rule 15.
of his or her defense, counterclaim, cross-claim and
third-party complaint;
All courts shall ensure the posting of their court calendars c. The third-party defendant, if any, shall adduce
outside their courtrooms at least one (1) day before the evidence of his or her defense, counterclaim, cross-
scheduled hearings, pursuant to OCA Circular No. 250- 2015. (n) claim and fourth-party complaint;
d. The fourth-party, and so forth, if any, shall adduce
DISCUSSION: evidence of the material facts pleaded by them;
OCA means Office of the Court Administrator. So let us go first to e. The parties against whom any counterclaim or cross-
the second paragraph. Actually, when you go to the court room, claim has been pleaded, shall adduce evidence in
you can actually see the schedule for a particular day. Many courts support of their defense, in the order to be prescribed
actually practice that proactively. Many courts, on Mondays have by the court;
already posted their calendar for the remainder of the week. f. The parties may then respectively adduce rebutting
evidence only, unless the court, for good reasons and
 52
CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

in furtherance of justice, permits them to adduce given additional time to make a written comment plus additional
evidence upon their original case; and time for the court to rule on the formal offer and the objections.
g. Upon admission of the evidence, the case shall be So, it would take a long time. That's why the trial would take a long
deemed submitted for decision, unless the court time because of that. Now, it's all orally made.
directs the parties to argue or to submit their
respective memorandum or any further pleadings. JUDGMENT ON AGREED STATEMENT OF FACTS

If several defendants or third-party defendants, and so forth, Section 7. Agreed statement of facts. - The parties to any action
having separate defenses appear by different counsel, the may agree, in writing, upon the facts involved in the litigation,
court shall determine the relative order of presentation of and submit the case for judgment on the facts agreed upon,
their evidence. (5a) without the introduction of evidence.

DISCUSSION If the parties agree only on some of the facts in issue, the trial
We already discussed this so nothing much about Section 5 except shall be held as to the disputed facts in such order as the court
the codal provision. shall prescribe. (6)

So, what is Par. (a)? That's the presentation of the plaintiff's DISCUSSION
evidence in chief. (b) is the defendant's evidence in chief which This provision is actually a very interesting provision.
includes evidence in support of counterclaim, cross-claim and third-
party complaint. Usually, these are all joined together. Why? Under Section 7, there's no trial anymore. That is the implication
Because when the defendant submits his answer, everything that of Section 7.
he has to do in order to substantiate also his counterclaim, cross-
claim, third-party complaint - that's in the same judicial affidavit. In the situation envisaged by this provision, the parties have no
Then, third-party defendant - also allowed to submit. Fourth-party, issue about the facts of the case. Their conflict is confined to who
if there is. between them is entitled to win given the facts which neither of
them dispute.
If several defendants or third-party defendants, and so forth,
having separate defenses appear by different counsel, the court In other words, the plaintiff is saying: "Based on the facts, I should
shall determine the relative order of presentation of their win." The defendant is also saying; "Yes, I agree with you. We do
evidence. not have any disagreement with the facts but based on those facts,
o This is because they have different pieces of evidence I should win."
especially so if they have different lawyers. So, the Court
will now determine the order of the presentation. You As the parties already agree on the facts, they will leave it to the
don't have to follow (a) to (g) in this provision. court to interpret the undisputed facts and decide the case
according to its interpretation. They already had an agreement as
ORAL OFFER OF EXHIBITS to what happened in this case. It is now with the court to interpret
as to who would win: plaintiff or defendant.
Section 6. Oral offer of exhibits. – The offer of evidence, the
comment or objection thereto, and the court ruling shall be Thus, because there is no more question as to the facts, in effect,
made orally in accordance with Section 34 to 40 of Rule 132. the questions that are left to be resolved are QUESTIONS OF LAW.
(n)
And because only questions of law are left, there is no need to
DISCUSSION present evidence, as evidence is only required to resolve questions
or issues of facts. Under Rule 128, Section 1, evidence is the means,
Section 6 actually just repeats what Rule 132 states. So, first you
sanctioned by the Rules of Court, of ascertaining in a judicial
formally offer an evidence.
proceeding the truth respecting a matter of fact.
Let's talk about the formal offer of the evidence, let's say, for the
In other words, evidence is only needed when there is a
plaintiff and the evidence is testimonial evidence. The plaintiff
disagreement as to the question of fact. If there is no question of
presented a witness. Prior to the presentation of that witness, the
fact, then why would there be a need to present evidence? It is up
lawyer will make an offer thru the judicial affidavit. "The testimony
to the court to apply the law based on the agreed statement of
of this witness, Your Honor, is offered to prove the following
facts.
matters: 1.2.3.4.. and such other matters, Your Honor, in relation to
Q: What if the parties under Section 7 do not agree on all of the
his cause of action against the defendant."
facts?
A: If the parties agree only on some of the facts in issue, the trial
Now, how will the defendant comment or object? Also orally. "We
shall be held as to the disputed facts in such order as the court shall
object, Your Honor, to the offer on the ground that the testimony
prescribe.
seems to illicit matters that are inadmissible." So, that's an
objection that's orally made. The court should rule immediately as
With the rest of the facts that have not been agreed upon, then
well and has to do it orally.
reception of evidence shall be held. What will be the effect? The
trial will still be held quickly because not all facts would need proof.
The problem before is that, there is a formal offer - documentary
No need for the presentation of evidence to facts that have already
exhibits - the parties are still given how many days to prepare the
been agreed upon. That's what Section 7 means. Again, no more
written formal offer of documentary exhibits. The defendant is also
 53
CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

questions of fact, only questions of law remain. And when the depending on the order of reference by the court, may be
question is of law, evidence is not needed. empowered to:

SUSPENSION OF ACTIONS 1. Receive and report evidence;

2. Not only that, but may also issue subpoenas and
Section 8. Suspension of actions. – The suspension of actions subpoenas duces tecum; and
shall be governed by the provisions of the Civil Code and other 3. Even rule on the admissibility of evidence, all of which
laws. (8a) distinguishes a commissioner from a clerk of court.

We already discussed this provision when we were in Rule 18. Why? The clerk of court cannot rule on objections to any question
or to the admission of exhibits. Hence, a commissioner is more
Section 9. Judge to receive evidence; delegation to clerk of powerful than the clerk of court. Remember that a commissioner
need not be a member of the Philippine Bar. He can be an Engineer,
court. – The judge of the court where the case is pending shall
a Certified Public Accountant, or as long as he can render help to
personally receive the evidence to be adduced by the parties.
the court in determining the issues of the case. Thus, a
However, in default or ex parte hearings, and in any case where
commissioner is more powerful than the clerk of court.
the parties agree in writing, the court may delegate the
reception of evidence to its clerk of court who is a member of
Comment on the sentence:
the bar. The clerk of court shall have no power to rule on "The clerk of court cannot rule on objections to any question or
objections to any question or to the admission of exhibits, which to the admission of exhibits."
objections shall be resolved by the court upon submission of his In other words, there is a document. The adverse party objects in
or her report and the transcripts within ten (10) calendar days the presentation of such exhibits when it was delegated to the clerk
from termination of the hearing. (9a) of court.

DISCUSSION There is something weird about that. Why? There is no reason for
First, when may reception of evidence be done not by a judge? the Rule to state that the clerk of court cannot rule on objections
Remember in Section 9, upon the submission of evidence, it should to the admission of exhibits like documentary evidence. It is
personally be the judge. because, under the Rules on Evidence, objections to the admission
of exhibits are not made during the reception of the evidence.
Q: What would be an instance when reception of evidence may be
done not personally by a judge? Q: So, when should a party object to exhibits?
A: Example, under Rule 130, Section 3, we have the original
A: WHEN RECEPTION OF EVIDENCE IS DELEGATED TO THE CLERK document rule which states that "When the subject of inquiry is
OF COURT, in the following instances: the contents of a document xxx, no evidence is admissible other
1. In default hearings; than the original document itself." Thus, if the document being
Under Rule 9, the judge may rule or decide presented in evidence is not original, like a photocopy only, or
based on the prayer of the plaintiff's pleading sometimes even photocopies of photocopies, you can object based
or require the plaintiff to present evidence on Rule 130, Section 3 because again, it is only a photocopy. It is
which can be delegated to the clerk of court. not original.

2. Ex parte hearings; and Q: So, when you see during trial that the document being
That's when there is no need for the presence of identified by the witness is not original, do you object
the adverse party immediately?

3. In any case where the parties agree in writing. Let us check the Rules.
The parties can agree that they will no longer Rule 132. Sec. 36. Objection. - Objection to offer of evidence
disturb the judge. They will instead present must be made orally immediately after the offer is made.
evidence before the clerk of court if the issue
between the parties is not that problematic. So, we should also know when the offer of evidence
was made because it is apparently the offer that
NOTE: The clerk of court, in such a case, must be a member of the triggers your ability and timing to object. So, under
Philippine bar. He must be a lawyer. Section 35, when is offered made which triggers
objection? Rule 35 provides:
Now take note as well that the clerk of court, when the reception Rule 132. Sec. 35. When to make offer. - xxx the offer of
of evidence is delegated to him, has no power to rule on objections documentary and object evidence shall be made after the
to any question or to the admission of exhibits. presentation of a party's testimonial evidence.

Q: Is there an instance where reception of evidence is delegated

by the judge to another person who is not the clerk of court? Q: So, I ask again: when you see during trial that the document
B: WHEN THERE IS TRIAL BY COMMISSIONER. being identified by the witness is not original, do you object
immediately?
There is actually power given to the commissioner to receive A: NO. That is not the proper time to object. In fact, this was made
evidence because under Rule 32, Section 3, a commissioner may, clear by the Supreme Court in the case of Sps. Tapayan v. Martinez.
 54
CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

SPS. TAPAYAN v. MARTINEZ RULE 36

G.R. No. 207786 | January 30, 2017 JUDGMENT

HELD: The rule requires that the original document be produced RENDITION OF JUDGMENTS AND FINAL ORDERS
whenever its contents are the subject of inquiry xxx. However,
to set this rule in motion, a proper and timely objection is Section 1. Rendition of judgments and final orders. – A
necessary. judgment or final order determining the merits of the case shall
be in writing personally and directly prepared by the judge,
In case of documentary evidence, offer is made after all the stating clearly and distinctly the facts and the law on which it is
witnesses of the party making the offer have testified, specifying based, signed by him, and filed with the clerk of court.
the purpose for which the evidence is being offered. It is only at
this time, and at no any other time, that objection to the DISCUSSION
documentary evidence may be made. And when a party failed
In Rule 36, Sec. 1, we are talking here of the form of a judgment or
to interpose a timely objection to evidence at the time they
a final order which determines the merits of the case. There cannot
were offered in evidence, such objection shall be considered as
be a judgment which is orally made because the rule says that it has
waived.
to be in writing. Also, the rule says that it has to be personally and
directly prepared by the judge who heard the case. Although of
DISCUSSION
course, it could be that the judge who initially heard the case
This is weird. Why am I emphasizing this? If the proper time for already retired, but still we have the transcript or stenographic
objection on the originality, for example, of a document, is not notes, so the judge can still make a decision based on those
during the presentation of evidence, but rather when there is documents.
already formal offer, do you still have an opportunity before the
clerk of court to object, for example, so that the clerk of court will “…personally and directly prepared by the judge…” – You may ask
not be given the opportunity or the power to rule on the objection? is it not the clerk of court who writes or prepares the decision? It
Is it not a fact that you make your formal offer before the judge, and may happen, but as long as it is the judge who signed the decision,
after the presentation, all of your evidence? That is the general rule. it is okay, since it is really the judge who decided the case. It could
Not during the reception of evidence before the clerk of court. So, be that the clerk merely drafted the decision or researched on the
it is not necessary to state that the clerk of court has no power to case.
rule on the objections to the admissibility of documents. It is not
needed. It is because parties are not supposed to object to the “…stating clearly and distinctly the facts and the law on which it
admissibility of documents during presentation of evidence, but is based…” – It is not allowed that in the judgment, it directly
rather, after offer--that is, when all the witnesses have already provides for the “wherefore” clause stating that the case is
been presented. dismissed for lack of merit. There has to be justification.

I would get agitated by those lawyers who object immediately The decision basically summarizes the material facts of the case,
when they see a photocopy being presented during trial. "Objection the issue, and the decision. Signed by the judge and filed with the
your honor. It violates the Best Evidence Rule." Before, that is called clerk of court.
the best evidence rule. Now, it is called the Original Document Rule.
It is not even proper yet to object and yet there are judges also that “…filed with the clerk of court.” – This phrase shows that the judge
will sustain an objection that the document you presented is not is different and separate entity from the court.
original when in fact, it has not yet been offered. The objection is
premature, and so is the ruling of the court. Q: What are the requisites of a valid judgment?
A: We have essential requisites and formal requisites of a valid
Just imagine, procedurally, there are practitioners who do not know judgment.
the nuances of the rules. So, if you become lawyers one day, and
we see each other during trial, and you would whimsically object, I ESSENTIAL REQUISITES OF A VALID JUDGMENT
would forget that you were my students. My students know when 1. The court rendering the decision must have jurisdiction
to object. If you do not understand Rule 132, then surely, you are over the subject matter.
not my student. • It is important that the court has jurisdiction,
otherwise, all proceedings are null and void.
What is the moral lesson? Do not just object prematurely. Wait for Jurisdiction over the subject matter is
the proper time. If you object prematurely, it would only show that conferred by law, it is not subject to silence,
you are ignorant of the Rules. waiver, agreement of the parties.
2. The court rendering the decision must have jurisdiction
over the defendant and in some cases, over the res.
• But as previously discussed, the jurisdiction
over the person can be waived.
3. The court which renders the judgment must have
jurisdiction over the issues.
• This means that the court can decide as a
general rule only those matters which are
raised by the parties in their pleadings,
although we have discussed those exceptions
wherein even if there are issues not raised in
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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

the pleadings, but without the objections of the statement of the issues, the application of law, and the dispositive
other parties, those issues can be considered in portion. From the beginning to end, that is the decision.
the rendition of the judgment.
4. The court rendering the judgment must be a validly Judgment pertains to the dispositive portion. This is also known as
constituted court and the judge thereof must be the the fallo of the case. In the last portion, you can see “wherefore, the
judge de jure or de facto. judgment is hereby rendered ordering the defendant to vacate the
• There must really be an authority to act. premises.” That is the judgment.
5. The judgment must be rendered after a lawful hearing
• because it is a requirement of due process, the Q: There are instances when the body of the decision states that
opportunity to be heard. you won the case, but the judgment states otherwise, which will
prevail, the body or the dispositive portion?
FORMAL REQUISITES FOR A VALID JUDGMENT A: In case of conflict, it is the fallo or dispositive portion that
Formal requisites – these are the requisites mentioned in Section 1. prevails over the body. It is the official disposition of the case.
1. Judgment must be in writing.
• There is no such thing as an oral decision. OTHER TYPES OF JUDGMENT:
2. The judgment must be personally and directly prepared 1. Sin perjuicio judgment – a judgment which contains only
by the judge. the dispositive portion of the decision and reserves the
3. The judgment must state clearly and distinctly the facts making of findings of fact and conclusions of law.
and the law on which it is based. This is provided for
under Article VIII, §14 of the 1987 Constitution. This kind of judgment is void. As already discussed, the
judgment must clearly and distinctly express the facts and
SECTION 14. No decision shall be rendered by any court the law on which it is based.
without expressing therein clearly and distinctly the facts
and the law on which it is based. 2. Conditional judgment – a judgment which is subject to
the performance of a condition precedent and is not final
No petition for review or motion for reconsideration of a until the condition is performed.
decision of the court shall be refused due course or
denied without stating the legal basis therefor. For example, there is a case of partition filed by A because
according to him he is one of the legal heirs of the
4. The judgment must be signed by the judge and filed with decedent and that he was not included in the partition of
the clerk of court. the property. But prior to that, there was a case for
recognition of A as an illegitimate child of the decedent.
Q: What is the concept of a memorandum decision? So, if in the decision of the court, the judge will render a
A: We have stated before that the decision must clearly and decision but subject to the result of the case on the
distinctly the facts and the law on which it is based. There are recognition of A, that is not a valid judgment because
instances like in appellate courts, after the pleadings are submitted, when you render a decision, you must dispose of
the CA affirmed the RTC’s decision or the court a quo, the everything already.
stipulation of facts and the conclusions. Although the appellate
court discussed its proceedings, the stipulation of facts is merely 3. Incomplete judgment – A judgment which leaves certain
referred to the findings of the RTC as well as the conclusion of law, matters to be settled in a subsequent proceeding.
the question is would it be considered to be a valid decision? The
answer is yes, it is valid. This is what we call as a Memorandum For example in an action for damages, you filed a case for
Decision. moral damages because of your besmirched reputation,
sleepless nights, anxiety and etc, so the court granted the
relief prayed for in your complaint so the court granted
exemplary damages however, the court did not mention
MEMORANDUM DECISION, DEFINITION: the amount of damages, is that a valid decision?

This is defined in Rule 51, §5. It is not a valid judgment because it is incomplete. How
Section 5. Form of decision. — Every decision or final can you enforce that judgment when you don’t know the
resolution of the court in appealed cases shall clearly exact amount of the damages you are supposed to get
and distinctly state the findings of fact and the from the defendant. That judgment is also a defective
conclusions of law on which it is based, which may be judgment.
contained in the decision or final resolution itself, or
adopted from those set forth in the decision, order, or 4. Judgment nunc pro tunc – Literally, it means “now for
resolution appealed from. (Sec. 40, BP Blg. 129) (n) then”. It is a modified or amended judgment
incorporating matters of record taken up during the trial
There are also instances when the parties are ordered by the court but were inadvertently omitted in the previous judgment.
to submit a draft decision and it is already upon the court which of
those the court will adopt. That is still a valid decision. • Concept of a nunc pro tunc judgment:
There are certain decisions judgments that might omit
Q: Is there a distinction between a judgment and a decision? some of the things that were discussed, threshed out, and
A: Yes. When you say “decision”, it refers to the entire decision. It proved during the trial. These were really taken up during
pertains to the facts, all the proceedings that took place, the the trial but the judgment is lacking, or failed to
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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

incorporate those matters of record which are supposed pursuant to the rule on immutability of judgement or decision; Only
to be important and should be a part of the judgment. when there are some omissions which are supposed to be already
found in the records, but are just not incorporated in the decision.
• Remedy: However, it would not be proper in the above-mentioned
You may amend it. It is one of the exceptions where a instances.
judgment which is final and executory cannot be
modified or amended. The amended judgment will not be Now, let’s discuss a case that exhaustively discuss what is a
considered a judgment nunc pro tunc. judgment nunc pro tunc.

5. Judgment Upon a Compromise – a judgment with the BRIONES-VASQUEZ versus CA

consent of the parties for the purpose of effecting a G.R. No. 144882, February 04, 2005
settlement of an action.
FACTS
For example, A files a case against B for collection of 1M, Under an agreement denominated as a pacto de retro sale,
then B says he does not owe A anything. They can enter Maria Mendoza Vda. De Ocampo acquired a parcel of land from
into a compromise agreement and meet half-way. A then Luisa Briones. The latter thereunder reserved the right to
agrees to 500k, and B agrees to pay 500k. So, they would repurchase the parcel of land up to December 31, 1970.
now sign a compromise agreement which will be
approved by the court and will become final and Maria Mendoza Vda. De Ocampo passed away on May 27, 1979.
executory. Both parties, by entering into a compromise On June 14, 1990, Hipolita Ocampo Paulite and Eusebio
agreement, they actually make a reciprocal concession to Mendoza Ocampo, the heirs of Maria Mendoza Vda. De
end a pending litigation. It is final and executory Ocampo, filed a petition for consolidation of ownership, alleging
immediately. that the seller was not able to exercise her privilege to redeem
the property on or before December 31, 1970.
Ajudgment based on compromise agreement is not
subject to appeal. You can file a motion to set aside the The Regional Trial Court (RTC) of Pili, Camarines Sur, Branch 32
compromise agreement but if it is denied, you cannot rendered a Decision on January 30, 1992 as follows:
appeal from it. The remedy is to file a petition for
annulment of judgment. “WHEREFORE, premises considered, judgment is
hereby rendered as follows:
6. Cognovit Judgment – judgment upon a confession. 1. Declaring that exh. "A " is a true pacto de retro sale;
2. Declaring that the defendant can still redeem the
For example, A files a case against B for collection of 1M, property within 30 days from the finality of this
then B does not file an answer or when he does file an judgment, subject to the provisions of Art. 1616 of
answer he just admits that he owes the plaintiff 1M. the New Civil Code;
There is no defense raised. This is different from a 3. No costs.
judgment upon the pleadings. The judgment upon
pleadings there might be a defense, and there might be a SO ORDERED.
denial but the denial is equivalent to an admission
because it is not specific, it is general, it is a negative- Plaintiffs therein -- herein private respondents -- appealed the
pregnant. However, a judgment upon a confession is RTC Decision to the Court of Appeals. On June 29, 1995, the
where he really admits it. The court can now render a Court of Appeals promulgated a Decision and disposed of the
judgment based on the confession. case in the following manner:

DISTINGUISH JUDGMENT UPON COMPROMISE FROM COGNOVIT THE FOREGOING CONSIDERED, the contested decision
JUDGMENT is hereby set aside; and declaring the 1970 sale with
JUDGMENT UPON COGNOVIT JUDGMENT right of repurchase, Exhibit "A," as one of an equitable
COMPROMISE mortgage.
There is an agreement signed There is no agreement by the
by the parties. It involves a parties. It is the unilateral act Unable to effect the execution of the Court of Appeals decision,
bilateral act both by the by the defendant admitting petitioner filed with the RTC an omnibus motion, dated May 25,
plaintiff and the defendant. liability. 1999, praying:

WHEREFORE, it is respectfully prayed that an order issue:

A judgment nunc pro tunc is not proper in the following instances: a.) Declaring the equitable mortgage, Exhibit "A",
1. It cannot remedy errors or omission in an imperfect or discharged;
improper judgment; b.) Directing the issuance of a Writ of Possession
2. It cannot change the judgment in any material respect; and against the plaintiffs for the delivery of
3. It cannot correct judicial errors however flagrant and glaring possession of the land in question to the
they may be. defendant.

DISCUSSION The RTC denied the omnibus motion in an Order dated

Again, when the judgment becomes final and executory, it cannot November 16, 1999, which states:
be modified or amended anymore. So it becomes immutable
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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

v Acting on the omnibus motion of plaintiff dated 25

May 1999 and the opposition thereto of defendant, The office of a judgment nunc pro tunc is to record some act of
and considering that the decision of the Court of the court done at a former time which was not then carried into
Appeals referring the decision of this Court has the record, and the power of a court to make such entries is
become final and executory, hence, this Court can no restricted to placing upon the record evidence of judicial action
longer alter, modify or add anything thereto, the which has been actually taken. It may be used to make the
prayers set forth in the omnibus motion is, as it is, record speak the truth, but not to make it speak what it did not
hereby denied. SO ORDERED. 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
Petitioner filed a motion for reconsideration of the above Order, rendered an imperfect or improper judgment, it has no power
which was denied by the RTC in an Order dated February 23, to remedy these errors or omissions by ordering the entry nunc
2000. pro tunc of a proper judgment. Hence a court in entering a
judgment nunc pro tunc has no power to construe what the
Petitioner then filed a motion for clarificatory judgment, dated judgment means, but only to enter of record such judgment as
April 5, 2000, with the Court of Appeals. The motion was denied had been formerly rendered, but which had not been entered of
in a Resolution, dated June 9, 2000, which reads as follows: record as rendered. In all cases the exercise of the power to
enter judgments nunc pro tunc presupposes the actual
The only issues that reached Us, through an appeal, rendition of a judgment, and a mere right to a judgment will not
was whether the 1970 Sale with Right of Repurchase furnish the basis for such an entry. (15 R. C. L., pp. 622-623.)
was actually an equitable mortgage. We ruled, it was,
necessarily there is nothing to clarify. The object of a judgment nunc pro tunc is not the rendering of
a new judgment and the ascertainment and determination of
If it is a matter however whether the prevailing party new rights, but is one placing in proper form on the record, the
should be entitled to a right to repossess the property, judgment that had been previously rendered, to make it speak
then the remedy is not with Us, but with the Court the truth, so as to make it show what the judicial action really
below. 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
For lack of merit, the Motion for Clarificatory did erroneously render, nor to supply nonaction by the court,
Judgment is hereby DENIED. SO ORDERED. however erroneous the judgment may have been. (Wilmerding
vs. Corbin Banking Co., 28 South., 640, 641; 126 Ala., 268.)
Petitioner filed a motion for reconsideration of the above
Resolution. The Court of Appeals denied the same in a A nunc pro tunc entry in practice is an entry made now of
Resolution dated August 3, 2000. something which was actually previously done, to have effect as
of the former date. Its office is not to supply omitted action by
ISSUE: Whether or not the Court of Appeals acted with grave the court, but to supply an omission in the record of action really
abuse of discretion amounting to lack of jurisdiction in refusing had, but omitted through inadvertence or mistake. (Perkins vs.
to grant petitioner’s motion for clarificatory judgment. Haywood, 31 N. E., 670, 672.)

HELD: It is competent for the court to make an entry nunc pro

It must be noted, as narrated above, that the Decision of the tunc after the term at which the transaction occurred, even
Court of Appeals had already become final and executory at the though the rights of third persons may be affected. But
time that the motion for clarificatory judgment was filed. entries nunc pro tunc will not be ordered except where this can
be done without injustice to either party, and as a nunc pro
…nothing is more settled in the law than that when a final tunc order is to supply on the record something which has
judgment becomes executory, it thereby becomes immutable actually occurred, it cannot supply omitted action by the court .
and unalterable. The judgment may no longer be modified in . . (15 C. J., pp. 972-973.)
any respect, even if the modification is meant to correct what is
perceived to be an erroneous conclusion of fact or law, and From the above characterization of a nunc pro tunc judgment it
regardless of whether the modification is attempted to be made is clear that the judgment petitioner sought through the motion
by the Court rendering it or by the highest Court of the land. The for clarificatory judgment is outside its scope. Petitioners did not
only recognized exceptions are the correction of clerical errors allege that the Court of Appeals actually took judicial action and
or the making of so-called nunc pro tunc entries which cause no that such action was not included in the Court of Appeals’
prejudice to any party, and, of course, where the judgment is Decision by inadvertence. A nunc pro tunc judgment cannot
void. correct judicial error nor supply non-action by the court.

As a general rule, therefore, final and executory judgments are Since the judgment sought through the motion for clarificatory
immutable and unalterable except under the three exceptions judgment is not a nunc pro tunc one, the general rule regarding
named above: a) clerical errors; b) nunc pro tunc entries which final and executory decisions applies. In this case, no motion for
cause no prejudice to any party; and c) void judgments. reconsideration having been filed after the Court of Appeals
rendered its decision on June 29, 1995 and an entry of judgment
In the present case, petitioner claims the second exception, i.e., having been made on July 17, 1996, the same became final and
that her motion for clarificatory judgment is for the purpose of executory and, hence, is no longer susceptible to amendment.
obtaining a nunc pro tunc amendment of the final and It, therefore, follows that the Court of Appeals did not act
executory Decision of the Court of Appeals. arbitrarily nor with grave abuse of discretion amounting to lack
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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

of jurisdiction when it issued the aforementioned Resolution

denying petitioner’s motion for clarificatory judgment and the XPN:
Resolution denying petitioner’s motion for reconsideration. 1. The correction of clerical errors; or
2. The making of so-called nunc pro tunc entries which
Nevertheless, for purposes of guiding the parties in the cause no prejudice to any party; and
execution of the aforesaid Decision of the CA, without altering 3. Where the judgment is void.
the same, the following should be noted:
Based on the characterization of an entry nunc pro tunc or
The Court of Appeals pronounced in its Decision that the judgment nunc pro tunc, the Supreme Court said that what the
contract between the parties is an equitable mortgage. Since petitioner-defendant sought through the motion for clarificatory
the contract is characterized as a mortgage, the provisions of the judgment was actually outside the scope of a nunc pro tunc
Civil Code governing mortgages apply. Article 2088 of the Civil judgment because here the petitioner-defendants did not allege
Code states: that the Court of Appeals actually took judicial action and that
such action was not included in the Court of Appeals’ Decision by
The creditor cannot appropriate the things given by way of inadvertence. A nunc pro tunc judgment cannot correct judicial
pledge or mortgage, or dispose of them. Any stipulation to the error nor supply non-action by the court.
contrary is null and void.
Again, please remember that the only issue raised before the Court
This Court has interpreted this provision in the following of Appeals on appeal was whether or not the document
manner: denominated as a pacto de retro sale was really an equitable
indebtedness. The mortgagor’s default does not operate to vest mortgage. In the Court of Appeals, there was no proceeding to
in the mortgagee the ownership of the encumbered property, determine whether or not equitable mortgage was already
for any such effect is against public policy, as enunciated by the discharged, meaning was the loan already paid which was secured
Civil Code. by the equitable mortgage. It was not mentioned.

Applying the principle of pactum commissorium specifically to Also, the issue of possession was not raised in the Court of Appeals
equitable mortgages, in Montevergin v. CA, the Court because here, the plaintiffs were actually in possession of the
enunciated that the consolidation of ownership in the person of property. But when it is a mortgage, the rule here is that possession
the mortgagee in equity, merely upon failure of the mortgagor still remains with the mortgagor. Only when the property is
in equity to pay the obligation, would amount to a pactum foreclosed, and for example, the mortgagor fails to redeem the
commissorium. The Court further articulated that an action for property, then ownership shall now be consolidated with the buyer
consolidation of ownership is an inappropriate remedy on the during the foreclosure sale and of course, possession should be
part of the mortgagee in equity. The only proper remedy is to given to that buyer. But these issues were not raised in the
cause the foreclosure of the mortgage in equity. And if the proceedings of the Court of Appeals. So, you cannot possibly
mortgagee in equity desires to obtain title to the mortgaged include in the decision of the Court of Appeals something which was
property, the mortgagee in equity may buy it at the foreclosure not made of record during the proceedings in the Court of Appeals
sale. on the premise of a nunc pro tunc judgment. This is not covered.
The private respondents do not appear to have caused the
foreclosure of the mortgage much less have they purchased the However, for the guidance of the parties also in the execution, the
property at a foreclosure sale. Petitioner, therefore, retains Court of Appeals, without rendering a judgment nunc pro tunc in
ownership of the subject property. The right of ownership the resolution, it just mentioned what is the characteristic of an
necessarily includes the right to possess, particularly where, as equitable mortgage. So when it is an equitable mortgage, the loan
in this case, there appears to have been no availment of the mortgages will apply. Under the law on mortgages, we have the
remedy of foreclosure of the mortgage on the ground of default prohibition against automatic appropriation of the property given
or non-payment of the obligation in question. by way of pledge or mortgage. It is what we call pactum
commissorium. So just because the mortgagor failed to pay the
loan, it does not authorize the mortgagee to automatically
DISCUSSION appropriate the property subject of the pledge or mortgage.
The position of the petitioner defendant was that their Motion for
Clarificatory judgment was actually just in the nature of a motion Applying the principle of pactum commissorium, the Supreme
asking the CA to render a judgment nunc pro tunc because it is Court said that consolidation of ownership in the person of the
actually an exception to the rule that once the decision becomes mortgagee in equity only happens when there is a foreclosure sale.
final and executory in which case in here, the CA decision had really It does not happen merely upon failure of the mortgagor in equity
become final and executory at the time for the motion for to pay the obligation. Otherwise, it would result to a pactum
clarificatory judgment has been filed. But again if it is a judgment commissorium.
nunc pro tunc even if the decision is final, it can be amended on the
basis of application of a nunc pro tunc judgment, whereby you are Here, it does not appear that the private respondents caused the
modifying or amending the judgment to incorporate something foreclosure of the mortgaged property. It does not also show that
already in the records of the case but was just not incorporated in they purchased the property at the foreclosure sale. Necessarily,
the judgment. the petitioners-defendants, being the mortgagor of the property
which was not yet foreclosed, retained ownership over the subject
Here the Supreme Court, again, discussed: property. And ownership necessarily includes the right to possess.
GR: When a final judgment becomes executory, it thereby That was the discussion of the Supreme Court.
becomes immutable and unalterable.
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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

ENTRY OF JUDGMENTS AND FINAL ORDERS Relief from Judgment; you can file a petition for relief from
judgment within two time periods, but it says there that it is within
Section 2. Entry of judgments and final orders. — If no appeal 6 months from the date of entry. Here, the date of entry becomes
or motion for new trial or reconsideration is filed within the time significant, which is also the date of finality.
provided in these Rules, the judgment or final order shall
forthwith be entered by the clerk in the book of entries of Then, the record shall contain the dispositive part of the judgment
judgments. The date of finality of the judgment or final order or final order and shall be signed by the clerk, with a certificate that
shall be deemed to be the date of its entry. The record shall such judgment or final order has become final and executory. In the
contain the dispositive part of the judgment or final order and record, we won’t see the entire portion [in the certificate of
shall be signed by the clerk, within a certificate that such finality]; only the dispositive portion.
judgment or final order has become final and executory. (2a, 10,
R51) JUDGMENT FOR OR AGAINST ONE OR MORE OF SEVERAL
PARTIES
DISCUSSION
Q: When does a judgment become final and executory? Section 3. Judgment for or against one or more of several
A: When there is no appeal or motion for new trial or motion for parties. — Judgment may be given for or against one or more of
reconsideration filed within the reglementary period, which is several plaintiffs and for or against one or more of several
generally 15 days. defendants. When justice so demands, the court may require
the parties on each side to file adversary pleadings as between
Within 15 days, you can appeal directly if, for example, the decision themselves and determine their ultimate rights and obligations.
is rendered by the Regional Trial Court – (3)

Q: If the decision is adverse to you (the defendant), what would DISCUSSION

be your remedy? In a case where there are several parties (could be several plaintiffs
A: or several defendants), it does not mean that the decision is
1. You can appeal directly with the Court of Appeals; uniform for all parties. It depends. The court can give relief to one
2. You can file a motion for new trial if there is a ground [for filing plaintiff, but not against the other plaintiffs. Or the court can give
such motion]; relief, meaning the case will be dismissed, as to one defendant or
3. You can file for a motion for reconsideration. as to all or some defendants.

When you file a motion for reconsideration, you are actually asking SEVERAL JUDGMENTS
the court for another opportunity to look at the case for the second
time and to maybe correct whatever mistakes that the court might Section 4. Several judgments. — In an action against several
have done. So, you are giving the court the chance to correct itself. defendants, the court may, when a several judgment is proper,
render judgment against one or more of them, leaving the
It must be filed within 15 days. If there is none [filed], in that case, action to proceed against the others. (4)
the judgment has already become final and executory.
DISCUSSION
Take note that it also depends – if you are the plaintiff, you received Section 4 refers to a situation wherein there are several
the decision of the court today and you did not file any other defendants. But there are cases when in the meantime, the court
motion or appeal. As to you [plaintiff], the judgment now becomes can already render judgment as to some of the defendants but not
final and executory after 15 days from the time you received notice as to the other defendants.
of such judgment or final order.
Q: In that case, can the court first decide the case at to some
But, it does not mean that it is the same case with the defendant defendants? And for the others, it will still proceed?
because there are instances when either plaintiff or the defendant A: Yes, that is under Section 4. The court can render judgment
first receives a copy of the final judgment or order. So, it depends. against one or more of them, leaving the action to proceed against
From the point of view of the defendant, it is within 15 days after the others.
he receives a copy of the final judgment or order and then he does
not file an appeal or MR, so [the final judgment or order] also SEPARATE JUDGMENTS
becomes final as to him.
Section 5. Separate judgments. — When more than one claim
“DATE OF FINALITY OF THE JUDGMENT OR FINAL ORDER SHALL BE
for relief is presented in an action, the court, at any stage, upon
DEEMED TO BE THE DATE OF ITS ENTRY”
a determination of the issues material to a particular claim and
The Rule says: “The date of finality of the judgment or final order
all counterclaims arising out of the transaction or occurrence
shall be deemed to be the date of its entry.” In order that there will which is the subject matter of the claim, may render a separate
be no discrepancy, the date of entry and date of finality is the same.
judgment disposing of such claim. The judgment shall terminate
the action with respect to the claim so disposed of and the
We can see this in the court. The court issues a certificate of finality
action shall proceed as to the remaining claims. In case a
and that shall be date of entry of the judgment or decision.
separate judgment is rendered the court by order may stay its
enforcement until the rendition of a subsequent judgment or
Q: What is the significance of the date of entry?
judgments and may prescribe such conditions as may be
A: There are cases wherein [a petition] should be filed within a
certain period from the date of entry. Like Rule 38 on Petition for
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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

necessary to secure the benefit thereof to the party in whose In the answer of such defendant, the name and
favor the judgment is rendered. (5a) addresses of the persons composing said entity
must all be revealed. (15a)
DISCUSSION
Here, we are referring to the claim for reliefs from the viewpoint of That is why in the decision, the judgment shall set out their
the plaintiff – “more than one claim for relief is presented in an individual or proper names, if known. That is necessary for the
action.” It could be that there is only one plaintiff, but he has proper execution [of judgment]. You cannot execute if, for
several claims for relief. Recall that it is possible under joinder of example, the defendant has no juridical personality because
causes of action. Or it could be that there are several plaintiffs and properties cannot be named in favor of an entity who does not have
here, there is also joinder of parties and there are several claims for a juridical personality. It has to be named in these persons, for
relief presented in an action. example. The judgment should set out their individual or proper
names to facilitate the execution of the judgment or the final order.
It is possible that the court can already decide the other issues or
the other claims presented before the court, but still the others are
ongoing. The court may render a separate judgment disposing of
such claims. Insofar as such claim is concerned, the judgment shall
terminate the action with respect to the claim so disposed of. And
then, the action shall proceed as to the remaining claims.

Q: What happens if there is a separate judgment as to the other

claims? Can that already be subject of execution?
A: As a general rule, NO. Because the judgment is not yet final.

Q: Can it be appealed?
A: In summary judgment, there is still something for the court to
do. So, that order is not yet what we call a “final order” because
there is still something that the court has to do. It does not
completely dispose of the case. In a sense, it is still interlocutory.
You wait until the other issues are resolved and then, you appeal.

In civil actions, unlike in special proceedings, we don’t have multiple

appeals – meaning, you appeal after one issue is resolved and you
wait for the other issues to be resolved and then appeal again.

In special proceedings, multiple appeals are allowed. For example,

in probate proceedings, if there is already a determination of
heirship or the will is already admitted to probate, you can already
appeal that although there are other proceedings ongoing, like
partition. That is one distinction between a civil action and a special
proceeding.

JUDGMENT AGAINST ENTITY WITHOUT JURIDICAL PERSONALITY

Section 6. Judgment against entity without juridical

personality. — When judgment is rendered against two or more
persons sued as an entity without juridical personality, the
judgment shall set out their individual or proper names, if
known. (6a)

DISCUSSION
Section 6 is related to what we have discussed in Rule 3, Section 15:

Section 15. Entity without juridical personality as

defendant. — When two or more persons not
organized as an entity with juridical personality
enter into a transaction, they may be sued under the
name by which they are generally or commonly
known.

Like if they are known as the Powerpuff Girls, that is not registered.
In the same provision:
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CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

POST JUDGMENT REMEDIES – PART 1 There are several means by which is allowed to attack a final
COMPILATION OF COMMENTS AND CASES judgment, to wit:
(RIANO, INIGO AND ESPEJO)
*Compiled and Updated by: JZE and LCYE a. Direct action or proceeding to annul the same, or by
motion in another case if, in the latter case, the court had
INTRODUCTION no jurisdiction to enter the order or to pronounce the
In every civil action, there is always a prevailing party or the party judgment. It is not incidental to, but is the main object of
upon whose favor the judgment is rendered. However, the the proceeding.
defeated party is not without any remedy. He is afforded further
chances to prove that he is entitled to prevail. This is where a b. Collateral attack, in which the purpose of the proceedings
thorough knowledge of post judgment remedies comes in handy. is to obtain some relief, other than the vacation or setting
aside of the judgment and the attack is only incidental. (1
REMEDIES: JUDGMENT BY DEFAULT Freemen on Judgments, Sec. 306, pp. 607-608)
The first time we encountered remedies this semester was under
Rule 9 on Default. By way of review, a defaulted defendant is one c. Petition for relief from judgment or order as authorized
who fails to file and serve his answer within the time provided by by statutes or by the rules, in the same action or
the rules. What exactly happens to a defaulted defendant after the proceeding in which the judgment order was entered.
declaration of default? The following consequences apply: (Agustin v. Bocalan, 135 SCRA 346)

1. The court shall proceed to render judgment granting the TABLE OF POST-JUDGMENT REMEDIES
claimant such relief as his pleading may warrant, unless To guide us in our discussion, please take note of the following table
the court in its discretion requires the claimant to submit of the so-called POST JUDGMENT REMEDIES:
evidence. Such reception of evidence may be delegated
to the clerk of court: POST JUDGMENT REMEDIES
2. A party in default shall be entitled to notice of AFTER JUDGMENT BUT AFTER FINALITY OF THE
subsequent take part in the trial. proceedings but not to BEFORE ITS FINALITY JUDGMENT
1. The aggrieved party may file 1. The aggrieved party may
As can be gleaned from the foregoing, the effects of the declaration a motion for reconsideration file a petition for relief from
of default are quite harsh. The defaulted party loses his standing in under Rule 37; judgment under Rule 38 on
court. However, he is not without remedy. Thus: the grounds of fraud,
2. The aggrieved party may file accident, mistake or
1. The defaulted party may file a motion for relief from a motion for new trial under excusable negligence;
order of default. A party declared in default may at any Rule 37;
time AFTER NOTICE THEREOF AND BEFORE JUDGMENT 2. The aggrieved party may
file a motion under oath to set aside the order of default 3. The aggrieved party may file a annulment of judgment
upon proper showing that his failure to answer was due appeal from the judgment under Rule 47 for extrinsic
to fraud, accident, mistake or excusable negligence and under Rule 40 or Rule 41, as the fraud or lack of jurisdiction; or
that he has a meritorious defense. In such case, the order case may be.
of default may be set aside on such terms and conditions 3. He may also file a petition
as the judge may impose in the interest of justice. This, NOTE: No. 3 is available if Nos. for certiorari if the judgment
however, is a remedy BEFORE JUDGMENT is rendered; 1 or 2 are denied. The appeal to void on its face or by the
must be from the judgment judicial record (BALANGCAD
2. He may also file a petition for certiorari if he has been itself, not from the order versus JUSTICES OF THE
illegally declared in default, e.g. during the pendency of denying Nos. 1 or 2. COURT OF APPEALS, G.R. No.
his motion to dismiss or before the expiration of the time 83888. February 12, 1992,
to answer (MATUTE versus COURT OF APPEALS, 26 SCRA 206 SCRA 171).
768; ACOSTA OFALIA versus SUNDIAM, 85 SCRA 412).
This is again a remedy prior to the rendition of judgment. Q: WHEN DOES A JUDGMENT BECOME FINAL AND EXECUTORY?
A: A final judgment or order, or one that disposes of the action or
In sum, the foregoing are REMEDIES PRIOR TO THE RENDITION OF proceeding, becomes final and executory upon the expiration of
JUDGMENT. A defaulted party cannot appeal from an order the period to appeal therefrom if no appeal has been duly
declaring him in default, the order being interlocutory. As a rule, perfected (Section 1, Rule 39).
AN APPEAL IS NOT ALLOWED TO QUESTION AN INTERLOCUTORY
ORDER OR PROCEEDING.

Suppose that the court denies the defendant's motion for relief
from order of default. Thus, the court now proceeds to render
judgment in favor of the plaintiff, with or without the submission of
evidence. What can the defendant do? What are his remedies?

To broaden the inquiry, what remedies are available to any

aggrieved or losing party after the rendition of judgment?
 62
CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

FIRST POST-JUDMENT REMEDY provisions of law

(AFTER JUDGMENT BUT BEFORE FINALITY): 2. NDE, shall be alleged to be contrary
MOTION FOR NEW TRIAL OR RECONSIDERATION supported by to such findings or
affidavits of the conclusions.
MOTIONS UNDER RULE 37 AT A GLANCE witnesses by
NEW TRIAL RECONSIDERATION whom such
Within the period for taking an appeal. Note evidence is
that under Rules 40 and 41 (Sections 2 and expected to be
3, respectively), an appeal may be taken given, or by duly
within fifteen (15) days after notice to the authenticated
appellant of the judgment or final order documents which
PERIOD
appealed from. Where a record on appeal is are proposed to
required, the appellant shall file a notice of be introduced in
appeal and a record on appeal within thirty evidence.
(30) days after notice of the judgment or A pro forma motion for new trial or
EFFECT IF PRO
final order. reconsideration shall not toll the
FORMA
1. Fraud, 1. The damages reglementary period of appeal.
accident, mistake awarded are The trial court If the court finds that
or excusable excessive; may set aside the excessive damages
negligence judgment or final have been awarded or
(FAME) which 2. The evidence is order and grant a that the judgment or
ordinary insufficient to justify new trial, upon final order is contrary
prudence could the decision or final such terms as to the evidence or law,
not have guarded order: may be just, or it may amend such
against and by may deny the judgment or final
reason of which 3. The decision or final motion. order accordingly.
such aggrieved order is contrary to
party has law. If a new trial is The judgment as
probably been granted, the amended is in the
impaired in his original judgment nature of a new
GROUNDS rights; or or final order shall judgment which
be vacated, and supersedes the
ACTION OF THE
2. Newly the action shall original one
COURT
discovered stand for trial de (ESQUIVEL versus
evidence (NDE), novo; but the ALEGRE, 172 SCRA
which he could recorded 315).
not, with evidence taken
reasonable upon the former
diligence, have trial, in so far as
discovered an the same is
produced at the material and
trial, and which if competent to
presented would establish the
probably alter the issues, shall be
result. used at the new
The motion shall be made in writing stating trial without
FORM AND the ground or grounds therefor, a written retaking the
NOTICE notice of which shall be served by the same.
movant on the adverse party. Resolved within thirty (30) days from the
RESOLUTION
A motion for new A motion for time it is submitted for resolution.
trial shall be reconsideration shall As a general rule, a second motion for new
proved in the point out specifically trial or motion for reconsideration of a
manner provided the findings or judgment or final order is not allowed, if
for proof of conclusions of the filed by the same party who filed the first
motions. A judgment or final motion. However, take note the following
motion for cause order which are not exception for motion for new trial:
SECOND
SUPPORT based on: supported by the A second motion No exception is
MOTIONS
evidence or which are for new trial, provided for a motion
ALLOWED
1. FAME, shall be contrary to law, based on a for reconsideration
supported by making express ground not under the Amended
affidavits of reference to the existing nor Rules. Jurisprudence
merits which may testimonial or available when allows a second
be rebutted by documentary the first motion motion for
affidavits; evidence or to the was made, may reconsideration "in
 63
CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

be filed within the the higher interest of RULE 37

time provided, substantial justice" NEW TRIAL OR RECONSIDERATION
(i.e. period within and in instances of *Compiled and Updated by: JZE and LCYE
which to file an "extraordinarily
appeal) excluding persuasive reasons Section 1. Grounds of and period for filing motion for new trial
the time during and only after an or reconsideration.
which the first express leave shall
motion had been have been obtained." Within the period for taking an appeal, the aggrieved party may
pending. (see LAYA versus move the trial court to set aside the judgment or final order and
COURT OF APPEALS, grant a new trial for one or more of the following causes
The principle to ET.AL., G.R. No. materially affecting the substantial rights of said party:
remember is: a 205813, January 10,
motion for new 2018). (a) Fraud, accident, mistake or excusable negligence which
trial shall include ordinary prudence could not have guarded against and by
all grounds then reason of which such aggrieved party has probably been
available and impaired in his rights; or
those not so
included shall be (b) Newly discovered evidence, which he could not, with
deemed waived. reasonable diligence, have discovered and produced at the trial,
If the grounds for a motion appear to the and which if presented would probably alter the result.
court to affect the issues as to only a part,
or less than all of the matter in controversy, Within the same period, the aggrieved party may also move for
or only one, or less than all, of the parties to reconsideration upon the grounds that the damages awarded
it, the court may order a new trial or grant are excessive, that the evidence is insufficient to justify the
reconsideration as to such issues if decision or final order, or that the decision or final order is
severable without interfering with the contrary to law.
judgment or final order upon the rest.
When less than WHO MAY AVAIL OF THE REMEDIES
all of the issues ALABAN versus COURT OF APPEALS
PARTIAL GRANT
are ordered G.R. No. 156021 | September 23, 2005
OF THE MOTION
retried, the court
may either enter A motion for new trial or reconsideration and a petition for relief
a judgment or from judgment are remedies available only to parties in the
final order as to proceedings where the assailed judgment is rendered. In fact, it
the rest, or stay has been held that a person who was never a party to the case,
the enforcement or even summoned to appear therein, cannot avail of a petition
of such judgment for relief from judgment.
or final order until
after the new Under the Rules of Court, any executor, devisee, or legatee
trial. named in a will, or any other person interested in the estate
An order denying a motion for new trial or may, at any time after the death of the testator, petition the
reconsideration is not appealable, the court having jurisdiction to have the will allowed. Notice of the
REMEDY
remedy being an appeal from the judgment time and place for proving the will must be published for three
or final order. (3) consecutive weeks, in a newspaper of general circulation in
the province, as well as furnished to the designated or other
known heirs, legatees, and devisees of the testator. Thus, it has
been held that a proceeding for the probate of a will is one in
rem, such that with the corresponding publication of the
petition the court's jurisdiction extends to all persons interested
in said will or in the settlement of the estate of the decedent.

Publication is notice to the whole world that the proceeding has

for its object to bar indefinitely all who might be minded to make
an objection of any sort against the right sought to be
established. It is the publication of such notice that brings in the
whole world as a party in the case and vests the court with
jurisdiction to hear and decide it. Thus, even though petitioners
were not mentioned in the petition for probate, they eventually
became parties thereto as a consequence of the publication of
the notice of hearing.

As parties to the probate proceedings, petitioners could have

validly availed of the remedies of motion for new trial or
reconsideration and petition for relief from judgment.
 64
CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

WITHIN THE PERIOD TO APPEAL courts, the Court is allowing a fresh period of 15 days within
Under Rules 40 and 41 (Sections 2 and 3, respectively), an appeal which to file a notice of appeal in the RTC, counted from receipt
may be taken within fifteen (15) days after notice to the appellant of the order dismissing or denying a motion for new trial or
of the judgment or final order appealed from. Where a record on motion for reconsideration. This would standardize the appeal
appeal is required, the appellant shall file a notice of appeal and a periods provided in the Rules and do away with the confusion as
record on appeal within thirty (30) days after notice of the to when the 15-day appeal period should be counted. Thus, the
judgment or final order. Court stated:

Under Section 3 of Rule 40, a record on appeal shall be required To recapitulate, a party-litigant may either file his
only in special proceedings and other cases of multiple or separate notice of appeal within 15 days from receipt of the
appeals. Regional Trial Court's decision or file it within 15 days
from receipt of the order (the "final order") denying
COUNTED FROM WHAT DATE his motion for new trial or motion for reconsideration.
The period to appeal begins to run upon receipt of the judgment or Obviously, the new 15-day period may be availed of
final order. The next question is: upon receipt by whom? only if either motion is filed; otherwise, the decision
becomes final and executory after the lapse of the
DE LOS SANTOS versus ELIZALDE original appeal period provided in Rule 41, Section 3.
February 2, 2007
The foregoing ruling of the Court was reiterated in Makati
Such period has been considered to begin upon receipt of notice Insurance Co., Inc. v. Reyes, to wit
by the counsel of record, which is considered notice to the
parties. Service of judgment on the party is prohibited and is not Propitious to petitioner is Neypes v. Court of Appeals,
considered the official receipt of the judgment. promulgated on 14 September 2005 while the present
Petition was already pending before us. x x x
To reiterate, service upon the parties' counsels of record is
tantamount to service upon the parties themselves, but service With the advent of the "fresh period rule," parties who
upon the parties themselves is not considered service upon their availed themselves of the remedy of motion for
lawyers. The reason is simple – the parties, generally, have no reconsideration are now allowed to file a notice of
formal education or knowledge of the rules of procedure, appeal within fifteen days from the denial of that
specifically, the mechanics of an appeal or availment of legal motion.
remedies; thus, they may also be unaware of the rights and
duties of a litigant relative to the receipt of a decision. More The "fresh period rule" is not inconsistent with Rule
importantly, it is best for the courts to deal only with one person 41, Section 3 of the Revised Rules of Court which
in the interest of orderly procedure either the lawyer retained states that the appeal shall be taken "within fifteen
by the party or the party him/herself if s/he does not intend to (15) days from notice of judgment or final order
hire a lawyer. appealed from." The use of the disjunctive word "or"
signifies disassociation and independence of one thing
EFFECT OF FILING UPON PERIOD TO APPEAL from another. It should, as a rule, be construed in the
The filing of either motion interrupts the period to appeal. For sense which it ordinarily implies. Hence, the use of
example, A received a copy of the judgment on March 10, 2010. He "or" in the above provision supposes that the notice
has 15 days, or until March 25 to file an appeal. However. On March of appeal may be filed within 15 days from the notice
24, he filed a motion for new trial. His motion was denied on April of judgment or within 15 days from notice of the "final
10. order," x x x

QUESTIONS: The "fresh period rule" finally eradicates the confusion

1. Can he still appeal? Yes, he may appeal from the as to when the 15-day appeal period should be
judgment but not the order denying the motion for new counted from receipt of notice of judgment or from
trial. receipt of notice of "final order" appealed from.
2. How much time does he have left? 15-14 1 day left? No.
You have to relate this with the principles on motions. FRESH PERIOD COUNTED FROM?
Thus, if the motion is pro-forma, he has no time left to file Taking our bearings from Neypes, in Sumaway v. Urban Bank, Inc.,
an appeal. we set aside the denial of a notice of appeal which was purportedly
filed five days late. With the fresh period rule, the 15-day period
Rule 37, Section 2. XXX A pro forma motion for new trial or within which to file the notice of appeal was counted from notice
reconsideration shall not toll the reglementary period of of the denial of the therein petitioner's motion for reconsideration.
appeal.
We followed suit in Elbiña v. Ceniza, wherein we applied the
ANSWER: FRESH PERIOD RULE principle granting a fresh period of 15 days within which to file the
SUMIRAN versus SPOUSES DAMASO notice of appeal, counted from receipt of the order dismissing a
G.R. No. 162518 | August 19, 2009 motion for new trial or motion for reconsideration or any final
order or resolution.
As early as 2005, the Court categorically declared in Neypes v.
Court of Appeals that by virtue of the power of the Supreme Thereafter, in First Aqua Sugar Traders, Inc. v. Bank of the
Court to amend, repeal and create new procedural rules in all Philippine Islands, we held that a party-litigant may now file his
 65
CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

notice of appeal either within fifteen days from receipt of the trial, motion for reconsideration (whether full or partial) or any
original decision or within fifteen days from the receipt of the order final order or resolution.
denying the motion for reconsideration.
RULE PRIOR TO NEYPES
RETROACTIVE EFFECT Prior to Neypes, if a party file a motion for new trial or a motion for
In De los Santos v. Vda. de Mangubat, we applied the same reconsideration, he only had the remaining time of 15-day appeal
principle of fresh period rule," expostulating that procedural law period to file the notice of appeal (Lacsamana vs. IAC [2nd Division],
refers to the adjective law which prescribes rules and forms of 227 Phil 606). This rule has been consistently applied to numerous
procedure in order that courts may be able to administer justice. cases and this interpretation was premised on period permitted by
Procedural laws do not come within the legal conception of a law is not only mandatory but also jurisdictional.
retroactive law, or the general rule against the retroactive
operation of statutes. The "fresh period rule" is irrefragably The rule is also founded on deep-seated considerations of policy
procedural, prescribing the manner in which the appropriate period and sound practice that, at risk of occasional error, the judgments
for appeal is to be computed or determined and, therefore, can be and awards of courts must become final at some time fixed by law
made applicable to actions pending upon its effectivity, such as the (Quelnan vs. VHF Phil., 433 SCRA 631; Apuyan vs, Hadelman, 438
present case, without danger of violating anyone else's rights. SCRA 402).

The retroactivity of the Neypes rule in cases where the period for GROUNDS: MOTION FOR NEW TRIAL
appeal had lapsed prior to the date of promulgation of Neypes on
September 14, 2005, was clearly explained by the Court in Fil-Estate The following grounds for a new trial must affect the substantial
Properties, Inc. v. Homena-Valencia, stating thus: rights of the aggrieved party:
1. Fraud, accident, mistake or excusable negligence (FAME)
The determinative issue is whether the “fresh period” rule which ordinary prudence could not have guarded against
announced in Neypes could retroactively apply in cases and by reason of which such aggrieved oarty has probably
where the period for appeal had elapsed prior to 14 been impaired in his rights; or
September 2005 when Neypes was promulgated. That 2. Newly discovered evidence (NDE), which he could not,,
question may be answered with the guidance of the generl with reasonable diligence have discovered and produced
rule that procedural laws may be given retroactive effect to at the trial, and which if presented would probably alter
actions pending and undetermined at the time of their the result.
passage there being no vested rights in the rules of
procedure. Amendments to procedural rules are Note that the grounds for new trial are not available as grounds for
procedural or remedial in character as they do not create reconsideration (CO vs. People, GR No. 160265, July 13, 2009).
new or remove vested rights but only operate in
furtherance of the remedy or confirmation of rights already FAME (FRAUD, ACCIDENT, MISTAKE OR EXCUSABLE NEGLIGENCE)
existing.
These incidents comprising the first ground were previously
Since this case was already pending in this Court at the time of discussed in Rule 9 on Default, where ground relied upon to lift an
promulgation of Neypes, then, ineluctably, the Court must also order of default is the same (fraud, accident, mistake or excusable
apply the foregoing rulings to the present case. Petitioner is negligence).
entitled to a “fresh period” of 15 days- counted form May 19, 2003,
the date of petitioner’s receipt of the Order denying his motion for Defendant Remedy is to file If he fails to file a
reconsideration of the RTC Decision- within which to file his notice declared in default a motion for motion for relied
of appeal. Therefore, when he filed said notice on May 29, 2003, or under Rule 9 relief from order from order of default,
only ten (10) days after receipt of the Order denying his motion for because he failed of default on the he may also avail of
reconsideration, his period to appeal had not yet lapsed. to file an answer ground of FAME Rule 37 or a motion
because of FAME. and that he has for new trial because,
APPLICABILITY OF NEYPES DOCTRINE a meritorious on the ground of
NEYPES, ET.AL vs. COURT OF APPEALS defense. This FAME, he was not
GR. NO. 141524, September 14, 2005 must be availed able to appear. This
(EN BANC) of after receipt can be filed after
To standardize the appeal periods provided in the Rules and to of order receipt of judgment
afford litigants fair opportunity to appeal their case, the Court declaring him in but before the same
of Appeals deems it practical to allow a fresh period of 15 days default but attains finality.
within which to file the notice of appeal in the Regional Trial before
Court, counted from the receipt of the order dismissing a motion judgment.
for a new trial or motion for reconsideration. Party (whether Remedy is to file If he fails to file a
Henceforth, this “fresh period rule” shall also apply to Rule 40 plaintiff or a motion for motion for new trial
governing appeals from the Municipal Trial Courts to the defendant) lost in new trial on the and the judgment had
Regional Trial Courts; Rule 42 on petitions for review from the the case because of ground of FAME. become final and
Regional Trial Courts to the Court of Appeals; Rule 43 on appeals FAME. executor, he may still
from quasi-judicial agencies to the Court of Appeals and Rule 45 file a petition for
governing appeals by certiorari to the Supreme Court. The new relief from judgment
rule aims to regiment or make the appeal period uniform, to be under Rule 37.
counted from receipt of the order denying the motion for new
 66
CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

Rule 37 on motion for new trial on the ground of FAME is broader. CIRCUMSTANCES WHERE EXTRINSIC FRAUD PRESENT
It applies to plaintiff and defendant whether in default or not 1. Where the unsuccessful party had been prevented from
because a defendant can still lose the case through FAME although exhibiting fully his case by fraud or deception practiced
he is not in default. For example, because of his failure to appear in on him by his opponent, as by keeping him away from
the case, the court dismissed the complaint filed by the plaintiff. court, a false promise of a compromise; or
However, the reason why the3 plaintiff failed to appear is because 2. Where the defendant never had knowledge of the suit,
of FAME. So the remedy for plaintiff is to move to set aside the being kept in ignorance by the acts of the plaintiff; or
dismissal and have the case continued by filing a motion for new where an attorney fraudulently or without authority
trial on the ground of FAME. assumes to represent a party and connives at his defeat;
or
Rule 37 also applies to a defendant declared in default. 3. Where the attorney regularly employed corruptly sells
out his client’s interest to the other side. (Strait Times, etc
FRAUD vs. Court of Appeals, et al., GR No. 126673, prom. August
Fraud may assume different shapes and may be committed in as 28, 1998)
many different ways and here lies the danger of attempting to
define fraud. For man in his ingenuity and fertile imagination will MEANING OF INTRINSIC FRAUD
always contrive new schemes to for the unwary. (Heirs of Pael, et These are acts of party at a trial which prevented a fair and just
al., vs Court of Appeals, et al., GR No. 133547; Destura v. Court of determination of the case and which could have been litigated and
Appeals) determined at the trial or adjudication of the case.

KINDS OF FRAUD FRAUD AS A GROUND FOR NEW TRIAL

Garcia vs. Court of Appeals FRAUD, to be a ground for new trial, must be EXTRINSIC – where
202 SCRA 228 [1991] the aggrieved party was misled by adverse party and by reason
thereof, he was prevented from presenting his case properly
EXTRINSIC FRAUD is that type of fraud which has prevented a (GISBURNE SUPPLY CO. vs. QUIOGUE, 34 Phil. 91; ALMEDA vs.
party from having a trial or from presenting his case in court. CRUZ, 84 Phil. 636; STERLING INVESTMENT CORP. vs. RUIZ, L-30694,
INTRINSIC FRAUD is based on the acts of a party in litigation Oct. 31, 1969). Intrinsic fraud is not as a ground for a new trial.
during the trial, such as the use of forged instruments or perjured
testimony, which did not affect the presentation of the case, but DEAN INIGO’S EXAMPLES:
did not prevent the fair and just determination of the case. Suppose I am the lawyer of the plaintiff and you are the lawyer of
the defendant. The case will be tried tomorrow. I called you up and
MEANING OF EXTRINSIC FRAUD asked you to postpone the trial. “I will tell the court that I talked to
It is also known as collateral fraud. Fraud is extrinsic when it is you and you agreed that the trial will be postponed.” The following
committed to deprive a party of his day in court, thereby preventing day, I appeared in court. When the case is called, I said that I’m
him from asserting his rights to property. Fraud is regarded as ready. I then moved to continue the trial without the defendant. I
extrinsic when it prevents a party from having a trial or from maneuvered a scheme in such a way that you will not appear in
presenting his entire case to the court, or where it operates upon court. You lost your opportunity to present your side. That is
matters pertaining not to the judgment itself but to the manner in EXTRINSIC FRAUD by the plaintiff’s lawyer.
which it is procured (Alarcon vs. Court of Appeals, et al, GR No.
126802, prom January 28, 2000). Suppose there is a case between you and me. During the trial, I
presented witnesses to prove my cause of action. All my witnesses
It refers to any fraudulent act of the prevailing party which is were lying- they testified falsely. I presented falsified documents to
committed outside the trial of the case, the effect of which prove my case. And I won the case because of those perjured
prevents a party from having a trial or from presenting not to the testimonies and falsified documents. You file a motion for new trial
judgment itself but to the manner in which it was procured so that alleging FRAUD- that the testimonies and documents were falsified.
there is not a fair submission of the controversy. (Strait Times, etc
vs. Court of Appeals, et al., GR No. 126673, prom. August 28, 1998) Q: Should your motion for new trial be granted?
A: NO. Your motion will be denied because the FRAUD is INTRINSIC
In other words, extrinsic fraud refers to any fraudulent act of the because you were not prevented from going to court. So, your
prevailing party which is committed outside the trial of the case, remedy is to expose my perjured and falsified evidence. You can
whereby the defeated party has been prevented from exhibiting present rebuttal evidence. It is your obligation to prove that my
fully his side of the case by fraud or deception practiced on him by witnesses are lying and my documents are false. Definitely, you
his opponent. (Heirs of Pael, et al., vs Court of Appeals, et al., GR cannot ask a motion for a new trial.
No. 133547; Destura v. Court of Appeals, et al., GR No. 133843,
prom. February 10, 2000) ACCIDENT
What is ACCIDENT? It is something unforeseen, something
Some act or conduct of the prevailing party which has prevented unexpected or unanticipated. When is accident a sufficient ground
the aggrieved party from having a trial or presenting his case to the for new trial?
court, or was used to procure judgment without a fair submission
of his controversy. (Salonga, et al, vs. Court of Appeals, et al. GR No. EXAMPLE 1: A party failed to appear in court because he got sick at
11478 prom. March 13, 1997) the last minute. Or, in the middle of the trial, the lawyer of the party
becomes sick. With that, the complaint was dismissed or there was
a judgment against you. You can move for new trial on the ground
for accident. (Phil. Engineering Co. vs, Argosino, 49 Phil. 983)
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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

EXAMPLE 2: The defendant was declared in default because he did

not file an answer but actually he filed an answer through mail, but This is, as it should be, because a counsel has the implied
somehow the post office did not deliver it to the court. That is an authority to do all acts which are necessary or, at least,
accident. With that, I can move for new trial or lift the order of incidental to the prosecution and management of the suit in
default. (Ong Guan Can vs. Century Ins. Co., 45 Phil. 667). behalf of his client. And, any act performed by counsel within
the scope of his general and implied authority is, in the eyes of
EXAMPLE 3: The trial was this morning. But I received only the the law, regarded as the act of the client himself and
notice of trial on March 9, 1998 stating that the trial is on March 5. consequently, the mistake or negligence of the client’s counsel
So the notice of hearing was received days after the scheduled may result in the rendition of an unfavourable judgment against
date. That is an accident which is a ground for new trial. (Soloria vs. him.
Dela Cruz, L-20738, Jan. 31, 1966)
A contrary rule would be inimical to the greater interest of
MISTAKE dispensing justice. For, all that a losing party will do is to invoke
EXAMPLE: Defendant received summons and complaint. The the mistake or negligence of his counsel as a ground for
defendant, instead of seeking assistance of a lawyer, went to the reversing or settling aside a judgment adverse to him, thereby
plaintiff and asked for settlement. They kept on talking with the putting no end to litigation. Again, to quote from our decision in
settlement but in the meantime, the period to file an answer is also Aguila:
running. Fifteen days had passed but they did not settle yet. Now petitioner wants us to nullify all of the
Plaintiff moved to declare defendant in default. The court issued antecedent proceedings and recognize his earlier
judgment on default. Defendant’s counsel filed a motion for new claims to the disputed property on the justification
trial on the ground of MISTAKE. The court granted it. (Salazar vs. that his counsel was grossly inept. Such a reason is
Salazar, 8 Phil 183) hardly plausible as the petitioner’s new counsel
should know. Otherwise, all a defeated party would
LAWYER’S MISTAKE BINDS THE PARTY have to do to salvage his case is claim neglect or
Spouses Ragudo vs. Fabella Estate Tenants Asssociation, Inc. mistake on the part of his counsel as a ground for
GR No. 146823, August 9, 2005 reversing the adverse judgment. There would be no
end to litigation if this were allowed as every
In his jurisdiction, well-entrenched is the rule that the mistake shortcoming of counsel could be the subject of
an negligence of counsel to introduce, during the trial of a case, challenge by his client through another counsel who,
certain pieces of evidence bind his client. For sure, in Aguila vs. if he is also found wanting, would likewise be
Court of First Instance of Batangas, 160 SCRA 352 (1988), we disowned by the sae client through another counsel,
even ruled that the omitted evidence by reason of counsel’s and so on ad infinitum. This would render court
mistake or negligence, cannot be invoked as a ground for new proceedings indefinite, tentative and subject to
trial; reopening at any time by the mere subterfuge of
On the effects of counsel’s acts upon his client this replacing counsel.
Court has categorically declared:
Admittedly, the rule thus stated admits of exceptions. Thus, in
It has been repeatedly enunciated that ‘a client is case where the counsel’s mistake is so great and serious that the
bound by the action of his counsel in the conduct of a client is prejudiced and denied his day in court or when he is
case and cannot be heard to complain that the result guilty a of gross negligence resulting in the client’s deprivation
might have been different had he proceeded of his property without due process of law, the client is not
differently. A client is bound by the mistake off his bound by his counsel’s mistakes and the case may be even be
lawyer. If such grunds were to be admitted and reopened in order to give the client another chance to present
reasons for reopening cases, there would never be an his case.
end to a suit so long as new counsel could be
employed who could allege and shoe that prior EXCUSABLE NEGLIGENCE
counsel had had not been sufficiently diligent or The negligence of care required a (party) is that which an ordinarily
experienced or learned. Xxx Mistakes of attorneys as prudent man bestows upon his important business (GAYLORD v.
to the competency of a witness, the sufficiency, BERRY, 169 N.C. 733) The client must, with regard to his case,
relevancy, or irrelevancy of certain evidence, to exercise that standard of case which an ordinary prudent man
summon witnesses and to argue the case are not bestows upon his important business (Spouses Adecer vs. Akut,
proper grounds for a new trial, unless the May 3, 2006).
incompetency of counsel is so great that his client is
prejudiced and prevented from properly presenting WHOSE NEGLIGENCE?
his case. (Vol. 2, Moron, Comments on the Rules of QUE VS. COURT OF APPEALS
Court, pp. 218, 219-220, citing Rivero v. Santos et al., GR No. 150739, August 18, 2005
98 Phil 500, 503-504; Isaac v. Mendoza, 89 Phil 279;
Montes v. Court 48 Phil 64; People v. Manzanilla, 43 Under Section 1 of the “negligence” must be excusable and
Phil 167; U.S v. Umali, 15 Phil. 33; see also People v. generally imputable to the party because if it is imputable to the
Ner, 28 SCRA 1151, 1164). In the 1988 case of Palanca counsel, it is binding on the client. To follow a contrary rule and
v. American Food, etc. (24 SCRA 819, 828), this allow a party to disown his counsel’s conduct would render
principle was reiterated. (Tesoro v. Court of Appeals, proceedings indefinite, tentative and subject to reopening by
54 SCRA 296, 304). [Citations in the original; Emphasis the mere subterfuge of replacing counsel. What the aggrieved
supplied].
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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

litigant should do is seek administrative sanctions against the GROUNDS: MOTION FOR RECONSIDERATION
erring counsel and not ask for the reversal of the court’s ruling.
1. The damages awarded are excessive;
Admittedly, this court has relaxed the rule on the binding effect 2. The evidence is insufficient to justify the decision or
of counsels negligence and allowed a litigant another chance to final order;
present his case”(1)where the reckless or gross negligence of 3. The decision or final order is contrary to law.
counsel deprives the client of due process of law; (2) when [the
rule’s] application will result in outright deprivation of the Note that this is not the same as a motion for reconsideration
client’s liberty or property; or (3) where the interests of justice of interlocutory orders as a precursor to the filing of a petition
so require.” for certiorari.

NEGLIGENCE OF CLERKS AND MEMBERS OF LAWYER’S STAFF Section 2. Contents of motion for new trial or reconsideration
YUJUICO vs. ATIENZA and notice thereof.- The motion shall be made in writing stating
GR No. 164282, October 12, 2005 the ground or ground therefor, a written notice of which shall
be served by the movant on the adverse party.
Reiterated in numerous cases is thee rule that the clerks’ faults
are attributable to the handling lawyers. Thus, excuse offered A motion for new trial shall be proved in the manner
based on the former’s negligence are not deemed excusable. provided for proof of motions. A motion for the cause
mentioned in paragraph (a) of the preceding section shall be
NEWLY DISCOVERED EVIDENCE: supported by affidavits of merits which may be rebutted by
REQUISITES affidavits. A motion for the cause mentioned in paragraph (b)
1. The evidence was discovered after trial. This means shall be supported by affidavits of the witnesses by whom such
that the evidence was not negligently omitted or evidence is expected to be given, or by duly authenticated
forgotten during trial; documents which are proposed to be introduced in evidence.
2. The evidence must be such that the party could not,
with reasonable diligence, have discovered and A motion for reconsideration shall point out specifically the
produced it at the trial; and findings or conclusions of the judgment or final order which are
3. If presented, the evidence would probably alter the not supported by the evidence or which are contrary to law,
result. making express reference to the testimonial or documentary
evidence or to the provisions of law alleged to be contrary to
REOPENING OF TRIAL such findings or conclusions.
Is there such a remedy as a motion for reopening of trial? Yes. This
is recognized under the Rules of Summary Procedure (and even in A pro forma motion for new trial or reconsideration shall not toll
the Rules for Small Claims Cases), to wit: the reglementary period of appeal.

Sec. 19. Prohibited pleadings and motion. – The PROVED IN THE MANNER PROVIDED FOR PROOF OF MOTION
following pleadings, motions or petitions shall not be Rule 15, Section 3. Contents. — A motion shall state the
allowed in the cases covered by this Rule: relief sought to be obtained and the grounds upon which
it is based, and if required by these Rules or necessary to
XXX prove facts alleged therein, shall be accompanied by
supporting affidavits and other papers. (3)
(c) Motion for new trial, or for reconsideration of a
judgment, or for opening of a trial; A motion for new A motion for
(d) Petition for relief from judgment; XXX trial shall be A reconsideration
motion for shall point out
However, this remedy is not found in the Rules of Court but reconsideration specifically the
jurisprudence recognizes its existence. New trial should be proved in the findings or
distinguished from exercise of the discretionary power of the court manner provided conclusions of the
to REOPEN a trial for the introduction of additional evidence, to shall point out judgment or final
clarify its doubts on material points. This discretionary power is specifically the for order which are
subject to no rule other than the paramount interest of justice and proof of motions. A not supported by
will not be reviewed on appeal unless the exercise thereof is abused SUPPORT motion findings or the evidence or
(Arce vs. Arce, L-13035, Nov. 28, 1959). AFFIDAVITS conclusions of the which are contrary
for cause based on: to law, making
NEW TRIAL REOPENING OF TRIAL express reference
Takes place after judgment Done before judgment 1. FAME, shall be to the testimonial
Based on grounds defined in Dictated by the interest of supported by or documentary
the Rules justice affidavits of merits evidence or to the
Always on motion by the May be done by the court which may be provisions of law
aggrieved party motu proprio rebutted by alleged to be
affidavits. contrary to such
findings or
conclusions.
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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

2. NDE, shall be person on his behalf, setting forth the grounds for the
supported by application.
affidavits of the 3. Petition for relief from judgment under Rule 38;
witness by whom 4. Motion to postpone trial under Rule 30, Sections 3
such evidence is (illness of party or counsel);
expected to be 5. Motion for summary judgment under Rule 35;
given, or by duly 6. Prayer for preliminary attachment under Rule 57,
authenticated Section 3;
documents which 7. Prayer for preliminary injunction under Rule 58;
are proposed to be 8. Application for replevin under Rule 60;
introduced in 9. Support pendent lite under Rule 61.
evidence.
AFFIDAVIT OF MERITS
Take note as well that both a motion for new trial and a motion for An affidavit of merits is one setting forth that the defendant has a
reconsideration are considered litigious motions under Rule 15, meritorious defense (substantial and not technical) and stating the
Section 5. The following are the effects of this classification: facts constituting the same (Black's Law Dictionary, 4th ed., p. 80).
Note that question No. 9 of the 2007 Bar Examination for Legal
The opposing party shall file his or her Ethics and Practical Exercises required the preparation of an
opposition to either a motion for new trial or affidavit of merits.
a motion for reconsideration within five (5)
OPPOSITION HOW MANY AFFIDAVITS ARE REQUIRED UNDER RULE 37
calendar days from receipt thereof. No other
submissions shall be considered by the court (MOTION FOR NEW TRIAL)?
in the resolution of the motion. There are two. First, there should be an affidavit stating which
While Rule 15 provides that a litigious motion recites the nature and character of the absolutory cause (fraud,
shall be resolved by the court within fifteen accident, mistake or excusable negligence) on which a motion
(15) calendar days from its receipt of the seeking relief is based. Second, there should also be an Affidavit of
opposition thereto, or upon expiration of the Merits, setting forth the movant's good or substantial cause of
period to file such opposition, Rule 37, action or defense where he must also describe the evidence which
Section 4 provides that a motion for new trial the movant intends to present should the motion be granted, which
or reconsideration shall be resolved within evidence should be such as to warrant a reasonable belief that the
thirty (30) days from the time it is submitted result of the case would probably be otherwise.
RESOLUTION
for resolution. Take note that Rule 37 (and all
succeeding rules up to Rule 56) were PCIB versus ORTIZ, ET AL.
unaffected by the amendments. Thus, the G.R. No. L-49223, May 29, 1987
special provision on the period to resolve
motions for new trial or reconsideration (Rule It is true that when fraud, accident, mistake or excusable
37, Section 4) prevails over the counterpart negligence is invoked as ground of a motion for new trial, it
provision governing motions in general [Rule should "be proved in the manner provided for proof of motions,"
15, Section 5c)]. i.e., by "affidavits or depositions" unless the court should direct
Under Rule 15, Section 6, the court may, in that "the matter be heard wholly or partly on oral testimony or
the exercise of its discretion, and if deemed depositions." It is also required that "affidavits of merits" be
necessary for its resolution, call a hearing on attached to the motion. A motion for new trial grounded on
HEARING fraud, accident, mistake or excusable negligence should thus
the motion. The notice of hearing shall be
addressed to all parties concerned, and shall ordinarily be accompanied by two (2) affidavits: one, setting
specify the time and date of the hearing. forth the facts and circumstances alleged to constitute such
Because both motions for new trial and for fraud, accident, mistake, or excusable negligence; and the other,
reconsideration are intended to cause a an affidavit of merits, setting forth the particular facts claimed
judgment to be set aside, they are motions to constitute the movant's meritorious cause of action or
"attacking a pleading, order, judgment, or defense. The reason for the first is quite obvious: it is to enable
OMNIBUS proceeding." As such, they are subject to the the court to determine if the movant's claim of fraud, etc., is not
MOTION Omnibus Motion Rule under Rule 15, Section a mere conclusion but is indeed borne out by the relevant facts.
9. Thus, a motion filed under Rule 37 should The reason for the second is equally evident: it would be useless,
include all objections then available, and all a waste of time, to set aside the judgment and reopen the case
objections not so included shall be deemed to allow the movant to adduce evidence when he has no valid
waived. cause of action or meritorious defense.

OTHER INSTANCES WHEN AN AFFIDAVIT IS REQUIRED TO BE Where, therefore, a motion for new trial on the ground of fraud,
ATTACHED TO A MOTION OR APPLICATION etc., is unaccompanied by either or both affidavits, the motion
1. Motion to lift order of default under Rule 9; is pro forma a scrap of paper, as it were, and will not interrupt
2. Rule 14, Section 17 which provides that: Section 17. the running of the period of appeal. But where, as here, the
Leave of court. – Any application to the court under this motion for new trial is founded not only on fraud, accident,
Rule for leave to effect service in any manner for which mistake or excusable negligence, but also on the ground of
leave of court is necessary shall be made by motion in "award of excessive damages," as to which no affidavit of fraud,
writing, supported by affidavit of the plaintiff or some etc., or of merits is required, what being required of the movant
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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

being to "point out specifically the findings or conclusions of the MOTION FOR RECONSIDERATION
judgment" demonstrating the invoked ground, A motion for reconsideration shall point out specifically the findings
or conclusions of the judgment or final order which are not
the motion cannot be denied as pro forma simply because no supported by the evidence or which are contrary to law, making
affidavit of merits is appended thereto, provided there be a express reference to the testimonial or documentary evidence or
specification of the findings or conclusions of the judgment to the provisions of law alleged to be contrary to such findings or
alleged to be erroneous because awarding excessive damages. conclusions. Failure to follow these requirements renders the
The tenability of the grounds is dependent upon different motion pro forma.
premises. The untenability of one does not of itself, render the
other unmeritorious. PRO FORMA MOTIONS

AFFIDAVIT SETTING LAW AND JURISPRUDENCE TABLE

AFFIDAVIT OF
FORTH THE It is a motion filed for the sake
MERITS of form or compliance. It is
ABSOLUTORY CAUSES
The facts and The particular facts one which does not satisfy the
circumstances alleged claimed to constitute requirements of the Rules and
to constitute such the movant’s which will be treated as a
CONTENT DEFINITION motion intended to delay the
fraud, accident mistake, meritorious cause of
or excusable action or defense. proceedings (MARIKINA
negligence. VALLEY DEVELOPMENT
Rule 15 on proof of Rule 37, Sections 1 CORPORATION versus FLOJO,
motions i.e., by and 2 (second G.R. No. 110801 December 8,
BASIS 1995)
"affidavits or paragraph)
depositions” A pro forma motion for new
To enable the court to It would be useless, a EFFECT OF FILING UNDER trial or reconsideration shall
determine if the waste of time, to set RULE 37 not toll the reglementary
movant's of time, to set aside the judgement period of appeal.
aside the claim of fraud, and reopen the cause MOTIONS IN MOTION FOR MOTION FOR
etc., is not a mere to allow movant to GENERAL NEW TRIAL RECONSIDERATION
RATIONALE conclusion but is indeed adduce evidence 1. A motion which 1. A motion for 1. A second motion
borne out by relevant when he has no valid does state the new trial based for reconsideration.
facts. cause of action or relief sough to be exactly on the very
meritorious defense obtained ground alleged in 2. A one sentence
(MARCIAL versus the first for motion for
HI-CEMENT, G.R. reconsideration reconsideration
Where a motion for new trial on the ground of No. 144900, (see SAMUNDO that does not point
fraud, etc., is unaccompanied by either or both November 18, versus MUN. OF out specifically the
EFFECT OF affidavits, the motion is pro forma a scrap of 2005); GANIZA, 100 Phil findings or
ABSENCE paper, as it were, and will not interrupt the 1013 [1957]); conclusions of the
running of the period of appeal (PCIB versus 2. A motion that is judgement or final
ORTIZ, G.R. No. L-49223, May 29, 1987). unsigned; 2. The absolutory order which are not
cause is mistake of supported by the
3. A motion that law (REYES versus evidence or which
INSTANCES WHEN AN AFFIDAVIT OF MERITS IS REQUIRED was not served CA, G.R. No. L- are contrary to law
1. Motion to lift order of default under Rule 9; upon the adverse 48960, June 29, (see CRISOSTOMO
2. Motion for new trial on the ground of FAME under Rule party as required 1943); versus CA, 32 SCRA
37; by the Rules. 54 [1970]);
3. Petition for relief from judgment under Rule 38; 3. A motion for
4. Prayer for preliminary attachment under Rule 57, new trial on the 3. A motion for
Section 3; and ground of FAME reconsideration
5. Petition for the correction of clerical or typographical but which is not which failed to
errors and change of first name or nickname accompanied by substantiated the
implementing rules and regulations of RA 9048. The the required alleged errors
petition shall be in the prescribed form of an affidavit, affidavits of (LUZON verus CIR, 8
subscribed and sworn to before any person authorized by witnesses under SCRA 447 [1963]);
law to administer oath. The affidavit shall set forth facts Rule 37, Section 2;
necessary to establish the merits of the petition and shall 4. A motion which
show affirmatively that the petitioner is competent to 4. A motion for merely alleges that
testify to the matters stated. The petitioner shall state the new trial on the the decision in
particular erroneous entry or entries sought to be ground of NDE, question is contrary
corrected or the first name sought to be changed, and the etc., to law or the facts
correction or change to be made. unaccompanied by of the case
the required (VILLARICA versus
affidavits of
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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

witnesses under CA, 57 SCRA 24 Court of First Instance of Lanao del Sur, to point out that a
Rule 37, Section 2; [1974]); pleader preparing a motion for reconsideration must of necessity
address the arguments made or accepted by the trial court in its
5. One that is 5. One without decision:
clearly intended prior notice to the
for delay; adverse party; . . . . Among the ends to which a motion for reconsideration
is addressed, one is precisely to convince the court that its
6. One that does 6. A motion which ruling is erroneous and improper, contrary to the law or the
not satisfy the has no other evidence (Rule 37, Section 1, subsection (c]); and in doing so,
formal purpose than to the movant has to dwell of necessity upon the issues passed
requirements of gain time (ESTRADA upon by the court. If a motion for reconsideration may not
Rule 15 (notice, vs. STO. DOMINGO) discuss these issues, the consequence would be that after a
etc) and Rule 37 decision is rendered, the losing party would be confined to
(MANILA SURETY filing only motions for reopening and new trial. We find in
AND FIDELITY CO., the Rules of Court no warrant for ruling to that effect, a
INC. versus BATCH ruling that would, in effect eliminate subsection (c) of
CONSTRUCTION, Section 1 of Rule 37. (Emphases supplied)
G.R. No. L-16636,
June 24, 1965); The movant is very often confined to the amplification or further
discussion of the same issues already passed upon by the trial
7. A second motion court. Otherwise, his remedy would not be a reconsideration of
for new trial on a the decision, but a new trial or some other remedy.
ground already
available o the OTHER POINTS
movant when he MARIKINA VALLEY DEVELOPMENT CORP. versus FLOJO
filed his first G.R. No. 110801 December 8, 1995
motion for new EN BANC
trial (Rule 37,
Section 5). Where a substantial bonafide effort is made to explain where
and why the trial court should be regarded as having erred in its
PHILIPPINE ADVERTISING COUNSELORS, INC. versus REVILLA main decision, the fact that the trial court thereafter found such
G.R. No. L-31869, August 8, 1973 argument unmeritorious or as inadequate to warrant
modification or reversal of the main decision, does not, of course,
Among the ends to which a motion for reconsideration is mean that the motion for reconsideration should have been
addressed, one is to convince the court that its ruling is regarded, or was properly regarded, as merely pro forma.
erroneous and improper, contrary to the law or the evidence,
and in so doing, the movant has to dwell of necessity upon issues It is important to note that the above case law rests upon the
passed upon by the court. The disallowance of pro forma principle that a motion for reconsideration which fails to comply
motions for reconsideration or new trial is mainly predicated with the requirements of Sections 1 (c) and 2 of Rule 37 of the
upon their being resorted to solely to gain time and delay the Rules of Court, and is therefore pro forma merely, has no other
proceedings. In this connection, We have already held that "it is purpose than to gain time. It is intended to delay or impede the
not enough that a motion should state what part of the decision progress of proceedings and the rule that such motion for
is contrary to law or the evidence; it should also point out why reconsideration does not stop the period of appeal from "slipping
they are so. away" reflects both poetic and substantial justice.

WHEN PRIOR ARGUMENTS ARE "REHASHED" OR "RECYCLED" Where the circumstances of a case do not show an intent on the
MARIKINA VALLEY DEVELOPMENT CORP. versus FLOJO part of the movant merely to delay the proceedings, our Court
G.R. No. 110801 December 8, 1995 has refused to characterize the motion as simply pro forma.
EN BANC Thus, in the Guerra Enterprises case, the Court took note of the
The question in every case is, therefore, whether a motion for fact that the motion for reconsideration had been filed within
reconsideration is properly regarded as having satisfied the barely twelve (12) days (the reglementary period was then thirty
requirements, noted above, of Rule 37 of the Rules of Court. As (30) days) after receipt by the counsel for the movant party,
already pointed out, the Court of Appeals took the position that which fact negated the suggestion that the motion had been
where a motion for reconsideration merely "reiterates" or used as "a mere delaying tactic." Dacanay v. Aluendia, on which
"repleads" the same arguments which had been previously the Court of Appeals had relied, is not in fact in conflict with the
considered and resolved in the decision sought to be cases we have above referred to. In Dacanay, the motion for
reconsidered, the motion is a pro forma one. reconsideration was in effect a fourth motion for
reconsideration: the "reasons and arguments" set out in the
It should, however, be noted that the circumstance that a motion motion for reconsideration had on three previous occasions been
for reconsideration deals with the same issues and arguments presented to the trial court and each time considered and
posed and resolved by the trial court in its decision does not rejected by the trial court. In Lonario v. De Guzman, the motion
necessarily mean that the motion must be characterized as for reconsideration which the Court characterized as pro forma
merely pro forma. More than two (2) decades ago, Mr. Justice was in fact a second motion for reconsideration based on
J.B.L. Reyes had occasion, in Guerra Enterprises Company, Inc. v. grounds already existing at the time the first motion for
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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

reconsideration was filed. Further, at the time of the filing of the trial if the ground he relies upon is that excessive damages were
second motion, the period to appeal had already lapsed. This awarded or that the decision is contrary to law.
Court dismissed the case for having been appealed beyond the
reglementary period. In Samudio v. Municipality of Gainza, Thus, in one case, the Supreme Court noted that:
Camarines Sur, the Court had before it a "so-called motion for CITY OF CEBU versus MENDOZA
new trial based exactly on the very ground alleged in G.R. No. L-26321 February 25, 1975
(defendant's) first motion for reconsideration dated October 17,
1952" and accordingly, held that the motion for new trial did not A motion for new trial may be predicated on fraud, accident,
suspend the period for perfecting an appeal "because it (was] mistake, excusable negligence, newly discovered evidence,
mere repetition of the (first] motion for reconsideration of award of excessive damages, and "insufficiency of the evidence
October 17, 1952.” to justify the decision, or that the decision is against the law"
(Sec. 1, Rule 37, Rules of Court).
We are, therefore, unable to characterize the motion for
reconsideration filed by petitioners as simply pro forma. That A motion for reconsideration is treated as a motion for new trial
motion for reconsideration, it may be noted, had been filed no "for it can have no basis other than the grounds for new trial" (2
more than ten (10) days after receipt of the trial court's decision Moran's Comments on the Rules of Court, 1970 edition, page
by petitioner Marikina Valley. 222). A motion for new trial based on the ground that excessive
damages were awarded or that the decision is contrary to law or
It is scarcely necessary to add that our conclusion that the evidence (Sec. 1[c], Rule 37) is not designated by pleaders as
petitioners' motion was not pro forma, should not be regarded a motion for new trial because, actually, no new trial is sought.
as implying however indirectly that that motion was meritorious. What is sought therein is the rendition of a new decision that,
from the movant's viewpoint, would be conformable to the law
We note finally that because the doctrine relating to pro forma or the evidence or that would not award excessive damages.
motions for reconsideration impacts upon the reality and Hence, pleaders designate such motion for new trial as a motion
substance of the statutory right of appeal, that doctrine should for reconsideration.
be applied reasonably, rather than literally. The right to appeal,
where it exists, is an important and valuable right. Public policy Section 4. Resolution of motion. A motion for new trial or
would be better served by according the appellate court an reconsideration shall be resolved within thirty (30) days from
effective opportunity to review the decision of the trial court on the time it is submitted for resolution.
the merits, rather than by aborting the right to appeal by a literal
application of the procedural rule relating to pro forma motions PERIOD TO RESOLVE RULE 37 MOTION
for reconsideration. It bears repeating that, while Rule 15 provides that a litigious
motion shall be resolved by the court within fifteen (15) calendar
HYBRID MOTION FOR RECONSIDERATION AND MOTION FOR NEW days from its receipt of the opposition thereto, or upon expiration
TRIAL of the period to file such opposition, Rule 37, Section 4 provides
that a motion for new trial or reconsideration shall be resolved
As implied in PCIB versus ORTIZ, G.R. No. L-49223, May 29, 1987, within thirty (30) days from the time it is submitted for resolution.
there can be a hybrid motion for new trial and for reconsideration.
The Court ruled: Take note that Rule 37 (and all succeeding rules up to Rule 56) were
unaffected by the amendments. Thus, the special provision on the
Where the motion for new trial is founded not only on fraud, period to resolve motions for new trial or reconsideration (Rule 37,
accident, mistake or excusable negligence, but also on the Section 4) prevails over the counterpart provision governing
ground of "award of excessive damages," as to which no motions in general [Rule 15, Section 5(c)].
affidavit of fraud, etc., or of merits is required, what being
required of the movant being to "point out specifically the
findings or conclusions of the judgment" demonstrating the Section 3. Action upon motion for new trial or reconsideration.
invoked ground, the motion cannot be denied as pro forma The trial court may set aside the judgment or final order and grant
simply because no affidavit of merits is appended thereto, a new trial, upon such terms as may be just, or may deny the
provided there be a specification of the findings or conclusions motion. If the court finds that excessive damages have been
of the judgment alleged to be erroneous because awarding awarded or that the judgment or final order is contrary to the
excessive damages. The tenability of the grounds is dependent evidence or law, it may amend such judgment or final order
upon different premises. The untenability of one does not of accordingly.
itself, render the other unmeritorious.

Furthermore, take note that a motion for reconsideration is Section 6. Effect of granting of motion for new trial. If a new trial
equivalent to a motion for new trial if based on a ground for new is granted in accordance with the provisions of this Rule, the
trial (REPUBLIC OF THE PHILIPPINES versus ASUNCION, ET AL., G.R. original judgment or final order shall be vacated, and the action
No. 159695, September 15, 2006). shall stand for trial de novo; but the recorded evidence taken
upon the former trial, in so far as the same is material and
Note that, under the previous rules, all the grounds now appearing competent to establish the issues, shall be used at the new trial
under Section 1, including the ones for reconsideration, were all without retaking the same.
grounds for a motion for new trial. However, the phraseology of the
law is defective because an aggrieved party does not seek a new
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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

SUMMARY: RESOLUTION OF MOTION 2. Affidavit of merits; and

3. Affidavit of the witnesses by whom such newly-
discovered evidence is expected to be given.
MOTION FOR MOTION FOR
NEW TRIAL RECONSIDERATION
Thus, if the NDE is already existing when the first motion was filed,
then the second motion for new trial will be denied because of
Resolved within thirty (30) days from the time
PERIOD failure to raise it earlier - the second ground is deemed waived for
it is submitted for resolution.
failure to raise the same.
An order denying a motion for new trial or
However, if the ground for the second motion for new trial is
reconsideration is not appealable, the
ACTION: DENY something not known or not existing or not available when the
remedy being an appeal from the judgment
party filed the first motion, then the second motion is allowed. The
or final order.
second motion is not a pro forma motion.
1. The court sets The court may amend
SECOND MOTION MEANS A MOTION FILED BY THE SAME PARTY
aside the judgment such judgment or final
and grant a new order accordingly. CRISTOBAL versus PHILIPPINE AIRLINES, INC.
trial; There is no trial de G.R. No. 201622, OCTOBER 4, 2017
novo as the court will
2. The original simply study or review Where a tribunal renders a decision substantially reversing itself
judgment or final its decision. There is no on a matter, a motion for reconsideration seeking reconsideration
order shall be need to introduce of this reversal, for the first time, is not a prohibited second motion
vacated; further evidence on for reconsideration.
factual issues.
3. There is trial de The National Labor Relations Commission Rules of Procedure
ACTION: GRANT novo; prohibits a party from questioning a decision, resolution, or order,
4. The recorded twice. In other words, this rule prohibits the same party from
evidence taken assailing the same judgment. However, a decision substantially
upon the former reversing a determination in a prior decision is a discrete decision
trial, insofar as the from the earlier one.
same is material
and competent to Thus, in Poliand Industrial Ltd. v. National Development Co., this
establish the Court held:
issues, shall be
used at the new Ordinarily, no second motion for reconsideration of a
trial without judgment or final resolution by the same party shall be
retaking the same. entertained. Essentially, however, the instant motion is not a
second motion for reconsideration since the viable relief it
seeks calls for the review, not of the Decision dated August
Section 5. Second motion for new trial. A motion for new trial 22, 2005, but the November 23, 2005 Resolution which
shall include all grounds then available and those not so included delved for the first time on the issue of the reckoning date of
shall be deemed waived. A second motion for new trial, based on the computation of interest ... (Citation omitted)
a ground not existing nor available when the first motion was
made, may be filed within the time herein provided excluding the This Court ruled similarly in Solidbank Corp.v. Court of Appeals,
time during which the first motion had been pending. where the Labor Arbiter dismissed a labor complaint but awarded
the employee separation pay, compensatory benefit, Christmas
No party shall be allowed a second motion for reconsideration of bonus, and moral and exemplary damages. This was appealed to
a judgment or final order. the National Labor Relations Commission by both parties. The
National Labor Relations Commission rendered a Decision
affirming the Labor Arbiter Decision but modifying it by deleting
OMNIBUS MOTION the award of moral and exemplary damages. On appeal, the Court
The first sentence implements the Omnibus Motion Rule under of Appeals ruled that the employee had been illegally dismissed
Section 9, Rule 15 of the Rules of Court (SPOUSES ZARATE versus and, considering the cessation of the employer's operations,
MAYBANK PHILIPPINES, INC. G.R. No. 160976, June 8, 2005) awarded the employee separation pay, backwages,
compensatory benefit, Christmas bonus, unpaid salary, moral and
SECOND MOTIONS exemplary damages, and attorney's fees. Then, the employer
The requirement that a motion for a new trial shall include all bank filed a Motion for Reconsideration and a Supplemental
grounds then available means that if both FAME and NDE are Motion for Reconsideration, while the employee filed a Motion
available, they must both be set up. Otherwise, the ground not so for Clarification and/or Partial Motion for Reconsideration. The
included shall be deemed waived. Where both FAME and NDE are Court of Appeals then issued an Amended Decision, modifying the
available as grounds, there would therefore be 3 classes of amount awarded as separation pay, backwages, and unpaid
affidavits, to wit: salary. Afterwards, the employee filed anotherMotion for
Reconsideration/Clarification, and the Court of Appeals again
1. Affidavit reciting the facts establishing the absolutory corrected the amounts awarded as separation pay, backwages,
cause;
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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

and unpaid salary. In its petition assailing the Court of Appeals also explained that a second motion for reconsideration may be
Resolution, the employer bank claimed that the Court of Appeals allowed in instances of “extraordinarily persuasive reasons and
erred in granting the employee's second motion for only after an express leave shall have been obtained."
reconsideration, a prohibited pleading. This Court held:
In Apo Fruits Corp. v. Land Bank of the Philippines, we allowed a
The Amended Decision is an entirely new decision which second motion for reconsideration as the issue involved therein
supersedes the original decision, for which a new motion for was a matter of public interest, as it pertained to the proper
reconsideration may he filed again. application of a basic constitutionally guaranteed right in the
government's implementation of its agrarian reform program.
Anent the issue of Lazaro's "second" motion for
reconsideration, we disagree with the bank's contention that In San Miguel Corp. v. NLRC, the Court set aside the decisions of
it is disallowed by the Rules of Court. Upon thorough the LA and the NLRC that favored claimants-security guards
examination of the procedural history of this case, the upon the Court's review of San Miguel Corp.'s second motion for
"second" motion does not partake the nature of a prohibited reconsideration. In Vir-Jen Shipping and Marine Services, Inc. v.
pleading because the Amended Decision is an entirely new NLRC, et al., the Court en banc reversed on a third motion for
decision which supersedes the original, for which a new reconsideration the ruling of the Court's Division on therein
motion for reconsideration may be filed again. private respondents' claim for wages and monetary benefits.

In Barba v. Licea De Cagayan University, where the Court of It is also recognized that in some instances, the prudent action
Appeals denied a motion for reconsideration from an amended towards a just resolution of a case is for the Court to suspend
decision on the ground that it was a prohibited second motion for rules of procedure, for "the power of this Court to suspend its
reconsideration, this Court held that the prohibition against a own rules or to except a particular case from its operations
second motion for reconsideration contemplates the same party whenever the purposes of justice require it, cannot be
assailing the same judgment. questioned.”

In De Guzman v. Sandiganbayan, the Court, thus, explained: The

SECOND MOTION ALLOWED IN THE INTEREST OF JUSTICE
rules of procedure should be viewed as mere tools designed to
LAYA, JR. versus COURT OF APPEALS, ET.AL. facilitate the attainment of justice. Their strict and rigid
G.R. No. 205813 |January 10, 2018 application, which would result in technicalities that tend to
frustrate rather than promote substantial justice, must always
FACTS: be avoided. Even the Rules of Court envision this liberality. This
From an adverse decision of the Court of Appeals (CA), power to suspend or even disregard the rules can be so pervasive
petitioner Alfredo F. Laya Jr. filed a motion for reconsideration and encompassing so as to alter even that which this Court itself
which was denied. Subsequently, he filed a petition for review has already declared to be final, as we are now compelled to do
on certiorari with the First Division of the Supreme Court which in this case.
was also denied. He filed a motion for reconsideration and
sought the referral of his petition to the Court En Banc. The It is notable that the retirement program in question herein was
Supreme Court (First Division) denied his motion for established solely by PVB as the employer. Although PVB could
reconsideration as well as his prayer to refer the case to the validly impose a retirement age lower than 65 years for as long
Court En Banc. The entry of judgment was issued on Dec. 6, as it did so with the employees' consent, the consent must be
2013. The petitioner filed a second motion for reconsideration explicit, voluntary, free, and uncompelled.51 In dismissing the
where he expounded on the issues he was raising in the first petition for review on certiorari, the Court's First Division
motion for reconsideration. inadvertently overlooked that the law required the employees'
consent to be express and voluntary in order for them to be
ISSUE: bound by the retirement program providing for a retirement age
Can the second motion for reconsideration be still entertained? earlier than the age of 65 years. Hence, the Court deems it
proper to render a fair adjudication on the merits of the appeal
RULING: YES. In light of pertinent laws and relevant upon the petitioner's second motion for reconsideration.
jurisprudence, the Court has ascertained, after going over the Furthermore, allowing this case to be reviewed on its merits
parties' arguments and the records of the case, that the furnishes the Court with the opportunity to re-examine the case
reconsideration of the Court's resolutions promulgated on April in order to ascertain whether or not the dismissal produced
8, 2013 and Aug. 28, 2013, and the lifting of the entry of results patently unjust to the petitioner. These reasons do justify
judgment made herein are in order; and that the appeal by the treating this case as an exception to the general rule on
petitioner should be given due course. immutability of judgments.

In a line of cases, the Court has then entertained and granted

PARTIAL GRANTS OF MOTIONS UNDER RULE 37
second motions for reconsideration "in the higher interest of
substantial justice," as allowed under the Internal Rules when Section 7. Partial new trial or reconsideration. If the grounds
the assailed decision is "legally erroneous," "patently unjust" for a motion under this Rule appear to the court to affect the
and "potentially capable of causing unwarranted and issues as to only a part, or less than all of the matter in
irremediable injury or damage to the parties." controversy, or only one, or less than all, of the parties to it, the
court may order a new trial or grant reconsideration as to such
In Tirazona v. Philippine EDS Techno-Service, Inc. (PET, Inc.), we issues if severable without interfering with the judgment or
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CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

judgment is rendered.
final order upon the rest.

Section 8. Effect of order for partial new trial. When less than With respect to execution of a partial judgment:
all of the issues are ordered retried, the court may either enter Rule 39, Section 2. Discretionary execution. – XXX
a judgment or final order as to the rest, or stay the enforcement (6) Execution of several, separate or partial judgments. - A
of such judgment or final order until after the new trial. several, separate or partial judgment may be executed under
the same terms and conditions as execution of a judgment or
final order pending appeal.
PARTIAL If the grounds for a motion appear to the court to
GRANT OF affect the issues OF THE MOTION as to only a part, Section 9. Remedy against order denying a motion for new trial
THE or less than all of the matter in controversy, or or reconsideration. An order denying a motion for new trial or
MOTION only one, or less than all, of the parties to it, the reconsideration is not appealable, the remedy being an appeal
court may order a new trial or grant from the judgment or final order.
reconsideration as to such issues if severable
without interfering with the judgment or final REMEDY WHEN MOTION IS DENIED
order upon the rest. The remedy from an order denying a motion for reconsideration is
not to appeal from the order of denial. The order is not appealable.
When less than all of In effect, the motion for The remedy is to appeal from the judgment or final order itself.
the issues in effect, reconsideration is partly
the motion for are granted and partly May the order denying the motion for reconsideration be assailed
ordered retried, the denied. The movant may by a petition for certiorari under Rule 65? The answer used to be in
court reconsideration then apply Section 9 as the affirmative. Sec. 1 of Rule 41 clearly provided then for the
is partly may either: to what was not proper remedy against the order:
granted. However, he
1. Enter a judgment or may not file another "In all instances where the judgment or final order is not
final order as to the motion for appealable, the aggrieved party may file an appropriate special
rest; or reconsideration. The civil action under Rule 65."
adverse party may
2. Stay the however still file a However, effective December 27, 2007, it is submitted that an
enforcement of such motion for order denying a motion for reconsideration is no longer assailable
judgment or final reconsideration as to by certiorari because of the amendment to Rule 41 by A.M. No. 07-
order until after the the judgment as 7-12-SC. Deleted from those matters from which no appeal can be
new trial. amended. After that, he taken and from which order Rule 65 petition may be availed of, is
cannot file a second "an order denying a motion for new trial or a motion for
motion for reconsideration". The amendment obviously seeks to prevent the
reconsideration. filing of a petition for certiorari under Rule 65 based on an order
denying a motion for new trial or a motion for reconsideration. The
remedy available therefore, would be that prescribed under Sec. 9
RELATED PROVISIONS
of Rule 37, i.e., to appeal from the judgment or final order.
The court, in addition to Section 8, may also order separate trial of
DISTINCTIONS: RECAP
the issued ordered retried:
Rule 31, Section 2. Separate trials. — The court, in furtherance MOTION FOR NEW MOTION FOR
of convenience or to avoid prejudice, may order a separate trial TRIAL RECONSIDERATION
of any claim, cross claim, counterclaim, or third-party
complaint, or of any separate issue or of any number of claims, FAME and NDE Excessive damages,
cross-claims, counterclaims, third-party complaints or issues. AS TO decision is not supported
(2) GROUNDS by the evidence, or
decision is contrary to law.
In the matter of separate judgments:
Rule 36, Section 5. Separate judgments. — When more There could be a trial There is no trial de novo.
than one claim for relief is presented in an action, the court, EFFECT OF de novo. However, the judgment
at any stage, upon a determination of the issues material GRANT may be ordered amended
to a particular claim and all counterclaims arising out of the by the court.
transaction or occurrence which is the subject matter of the
claim, may render a separate judgment disposing of such A second motion for A second motion for new
claim. The judgment shall terminate the action with respect new trial, based on a trial is always prohibited.
to the claim so disposed of and the action shall proceed as ground not existing
to the remaining claims. In case a separate judgment is SECOND nor available when
rendered the court by order may stay its enforcement until MOTION the first motion was
the rendition of a subsequent judgment or judgments and made, may be filed
may prescribe such conditions as may be necessary to within the time
secure the benefit thereof to the party in whose favor the provided.
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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

POST-JUDGMENT REMEDIES If you lost, you appeal. Within that period to appeal, the judgment
*From the lectures of Atty. Jess Zachael Espejo is not yet final and that is why there are post-judgment remedies
that can be availed of before finality of judgment within the period
Take note that Rules 37 and 38 are unchanged. They were not to appeal. Of course, you can file Motion for new trial under Rule
covered by the amendments to the rules of the 2019 amendments. 37, Motion for reconsideration under Rule 37, Appeal under Rules
40, 41, 42, or 45, as the case may be. Because when you talk about
§ Post-judgment remedies are remedies that a defeated party 40 and 41, that is just appeal, 42 is a petition for review which is still
can avail of after the rendition of a judgment against him. an appeal or an appellate recourse, and 45 which can be taken from
If you are the prevailing party, you don’t need to avail of the pure questions of law before the Supreme Court within the period
post judgment remedies provided under the rules of court. of appeal.
It is for those who lost because he is the one who is
aggrieved by the judgment. These are the remedies you have if you are defeated in the court
below, AFTER JUDGMENT BUT BEFORE FINALITY.
§ For a party who lost in litigation before the trial court, post
judgment remedies afford him an additional round of remedies Take note as well that there are post-judgment remedies that you
to prove that he is entitled to prevail. This means that the can availed of even AFTER FINALITY OF JUDGMENT, meaning the
decision of the trial court is wrong. Verily, for an aggrieved period to appeal has already lapsed.
litigant it’s not the end of the world.
Q: Is there still anything to do?
POST-JUDGMENT REMEDIES CAN BE: A: YES. You can file a petition for relief under Rule 38, Annulment
of judgment under Rule 47 and finally those extraordinary remedies
Those which are available Those which are available under Rule 65 like certiorari or prohibition. Mandamus is rarely
after judgment but before after finality of judgment: used as a mode of review. It is usually undertaken if one files a
finality: petition for mandamus, he wants to compel a person to perform a
1. Motion for new trial 1.Petition for relief from ministerial duty (discussed under prov rem and special civil actions).
under Rule 37. judgment under Rule 38.
2. Motion for 2. Annulment of judgment Take note that these post-judgment remedies which are available
reconsideration under under Rule 47 after judgment but before finality, they are in a way successive.
Rule 37
3. Appeal under Rules 40, 3.The extraordinary remedies Q: Why do you need to remember that?
41, 42, or 45, as the case under Rule 65, if applicable. A: You filed a motion for new trial and it was denied. You filed a
may be motion for reconsideration, but still denied. You can actually go to
The above remedies are in a The above remedy are “last remedy no. 3 which is appeal because the motions under rule 37 is
way successive. If the motions ditch efforts” as there is denied by the court, the aggrieved party may still appeal.
under Rule 37 are denied, the already a final judgment that
aggrieved party may still will usually not be disturbed Take note also that the remedies which are available after finality
appeal. anymore. of judgment are “last ditch efforts” as there is already a final
judgment that will usually not be disturbed anymore. These are
DISCUSSION remedies of last resort as there is already a final judgment that as a
general rule, it would not be disturbed anymore.
Q: What do you usually do if you lost (ex.) in the RTC?
A: Usually, you will appeal. So there’s that period which is either 15
Q: When does a judgment become final and executory?
days or 30 days depending on the case you are appealing. There’s a
§ A final judgment or order, or one that disposes if the action
kind of appeal that you take by way of notice of appeal which is a
or proceeding, becomes final and executory upon the
1-paged document. You are simply telling the court that you are
expiration of the period to appeal therefrom if not appeal has
appealing the judgment and the second is, the record on appeal.
been duly perfected (Section 1, Rule 39).
This is more applicable in special proceedings, in cases of multiple
appeals are allowed like action for expropriation under Rule 67.
There are 2 stages in an expropriation case. The first is the
determination of whether or not the taking of the property was
proper which is separately appealable. The second stage for an
action for expropriation is the determination of just compensation.

Example: If XXX is the land owner and the defendant. XXX

does not agree with the action of the government in taking his
property. He is questioning the propriety of the taking. In that
situation, he can already appeal. However, because the case
will continue even when he’s appealing it, that is the time that
he will require a record on appeal which is actually a
duplication of the records of the case before the trial court so
that there will still be a record that remains with the trial court
and a record that will be sent to the CA. That is very time
consuming compared to a notice of appeal which is only 1
page. That is the reason why it needs 30 days.
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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

RULE 37 from receipt of the order dismissing a motion for a new trial or
NEW TRIAL OR RECONSIDERATION motion for reconsideration.
*From the lectures of Atty. Jess Zachael Espejo
Henceforth, this “fresh period rule” shall also apply to Rule 40
BASICS: governing appeals from the Municipal Trial Courts to the
§ While both new trial and reconsideration are lumped under one Regional Trial Courts; Rule 42 on petitions for review from the
rule, they are distinct remedies with distinct grounds for Regional Trial Courts to the Court of Appeals; Rule 43 on appeals
availment. Ordinarily, you don’t file “new trial and from quasi-judicial agencies to the Court of Appeals and Rule 45
reconsideration” it is “new trial OR reconsideration.” governing appeals by certiorari to the Supreme Court. The new
rule aims to regiment or make the appeal period uniform, to be
§ Both motions are filed within the period to appeal (i.e., 15 or 30 counted from receipt of the order denying the motion for new
days from notice of judgment, depending on whether a record on trial, motion for reconsideration (whether full or partial) or any
appeal is required). A party may still appeal even after availing of final order or resolution.
the Rule 37 motions in an effort to amend or vacate the
judgment. DISCUSSION
You are entitled to a fresh period either 15 or 30 days depending if
§ The principle here is the same as the filing of allowed motions there is a need for record on appeal or not. This is an an en banc
during the period to answer. case. This is tantamount to amendment of the rules.
Example: If you’re the defendant and you receive summons,
remember that you have 4 options to choose from, you can Q: Why did the Supreme Court applied the fresh period rule to Rule
file a motion for bill of particulars, a motion for summary 40, Rule 42, Rule43 and Rule 45?
judgment, or a motion to dismiss based on 5 grounds (lack of A: To regiment or make the appeal period uniform, to be counted
jurisdiction over the Subject Matter; litis pendentia; res from receipt of the order denying the motion for new trial, motion
judicata; prescription; and failure of the plaintiff to comply for reconsideration (whether full or partial) or any final order or
with the requirement on certification against forum- resolution.
shopping) and these were later on denied. The rule to
remember is that on the remaining period, you can still file The moment that your motion for reconsideration (or new trial) is
for your answer. denied, your fresh period again starts to run within which you can
file an appeal. This is not applicable on Rule 64 (Review of
This is the same as when you avail the motions under Section 37. judgments of the COMELEC and COA). Because there is that
When your motion for new trial or your motion for reconsideration Constitutional proscription that the cases will be resolved
is denied, you can still file for an appeal. immediately and the fresh period does not apply. If motions for
new trial or reconsideration is allowed in COA and COMELEC, you
§ Thus, the party aggrieved by the judgment or final order of the are only entitled to the reminder of the period. There is no fresh
trial court may file a motion either for new trial or period rule under Rule 64 (30 days).
reconsideration.
Q: How about Rule 65 on certiorari and mandamus? What
§ If the aggrieved party’s motion is denied, he may still have his happens? What will be the period within which to file a certiorari
appeal from the original judgment. and mandamus? (Shall we say Grave abuse of discretion
amounting to lack or excess of jurisdiction)
Q: How much time does he have left? A: You have 60 days to file petition for certiorari. Let’s say you filed
A: He is entitled to a fresh period (15 or 30 days, as the case may a motion for reconsideration before the Court of Appeals. If the
be) pursuant to the NEYPES DOCTRINE. motion is denied, you will file an appeal before the Supreme Court.

The rules of the period to file an answer as discussed in the previous Q: How much time do you have left?
lessons provided that: You are entitled to the remainder of the (Remember: It is not under Neypes)
period to file an answer which shall not be less than 5 days in any A: You have a fresh period of 60 days (Special Civil Actions) not
event. Example you have a period to appeal for 15 days, on the 8th because of the Neypes Doctrine but because of a specific provision
day, you filed a motion for new trial. For the mean time, it under Rule 65. Not because of the Neypes doctrine but because of
interrupts everything. Mathematically speaking, right after the a specific provision under Rule 65, Section 4.
motion is denied, you have 7 remaining days.
Section 1. Grounds of and period for filing motion for new trial
Q: Is this the same case? or reconsideration. — Within the period for taking an appeal,
A: NO. You are entitled to a fresh period either for 15 days or 30 the aggrieved party may move the trial court to set aside the
days as the case may be. judgment or final order and grant a new trial for one or more of
the following causes materially affecting the substantial rights
NEYPES v CA of said party:
GR. No. 141524 | Sept. 14, 2005
(a) Fraud, accident, mistake or excusable negligence which
To standardize the appeal periods provided in the Rules and to ordinary prudence could not have guarded against and by
afford litigants fair opportunity to appeal their cases, the Court reason of which such aggrieved party has probably been
deems it practical to allow a fresh period of 15 days within which impaired in his rights; or
to file the notice of appeal in the Regional Trial Court, counted
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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

(b) Newly discovered evidence, which he could not, with NEWLY DISCOVERED EVIDENCE
reasonable diligence, have discovered and produced at the trial,
and which if presented would probably alter the result. REQUISITES:
1. The evidence was discovered after trial.
Within the same period, the aggrieved party may also move for 2. The evidence must be such that the party could not,
reconsideration upon the grounds that the damages awarded with reasonable diligence, have discovered and
are excessive, that the evidence is insufficient to justify the produced it at the trial; AND
decision or final order, or that the decision or final order is 3. If presented, the evidence would probably alter the
contrary to law. (1a) result.

GROUNDS DISCUSSION
MOTION FOR NEW TRIAL MOTION FOR 1. The evidence was discovered after trial. This means that
RECONSIDERATION the evidence was not just negligently omitted or
Fraud, accident, mistake or The damages awarded are forgotten during trial;
excusable negligence (FAME) excessive.
Newly discovered evidence The evidence is insufficient to So for example, the evidence was already available but you did not
(NDE). justify the decision or final or you chose not to present it, that cannot be considered as newly
order. discovered evidence.
The decision or final order is
contrary to law. 2. The evidence must be such that the party could not,
with reasonable diligence, have discovered and
DISCUSSION produced it at the trial.
For motion for new trial, the grounds are fraud, accident, mistake
or excusable negligence (FAME). Meaning, there was already a subpoena, the modes of discovery
were already availed of, deposition or maybe interrogatories to
Sounds familiar? Because these are the same grounds for a motion parties or what have you, but evidence really was not discovered
to lift an order of default that we learned in Rule 9. Fraud, accident using the modes of discovery. But now, when there has already
mistake or excusable negligence and the additional ground would been a judgement, it is only then that he knew that the evidence is
be newly discovered evidence (NDE) - The evidence that was not actual present and available. And such evidence is life-changing and
present during the time that there was trial, that you only it will alter the result. Meaning, instead that the party will win, they
discovered after the rendition of judgement, that it could not have will lose instead because of the newly discovered evidence.
been presented during trial, even with the exercise of due diligence
on the part of a party. 3. If presented, the evidence would probably alter the
result.
But, when you talk about a motion for reconsideration, we have
three: SECTION 2. CONTENTS OF THE MOTION FOR NEW TRIAL OR
1. The damages awarded are excessive. RECONSIDERATION
2. The evidence is insufficient to justify the decision or final
order. The motion shall be made in writing stating the ground or
3. The decision or final order is contrary to law. grounds therefor, a written notice of which shall be served by
the movant on the adverse party.
Either one of these grounds can be used for motions for
reconsideration. In practice, most of the time, it’s number 2 or A motion for new trial shall be proved in the manner provided
number 3 when you’re filing for a motion for reconsideration. And for proof of motion. A motion for the cause mentioned in
most of the time, it’s number 3 - The decision or final order is paragraph (a) of the preceding section shall be supported by
contrary to law. What you are actually telling the court is that the affidavits of merits which may be rebutted by affidavits. A
decision that was rendered by the lower court is not supported by motion for the cause mentioned in paragraph (b) shall be
the law. The law is like this, but you’re decision is different from supported by affidavits of the witnesses by whom such evidence
what the law says or the jurisprudence decided by the Supreme is expected to be given, or by duly authenticated documents
Court. which are proposed to be introduced in evidence.

FRAUD, ACCIDENT, MISTAKE OR EXCUSABLE NEGLIGENCE A motion for reconsideration shall point out a specifically the
findings or conclusions of the judgment or final order which are
(NOTE: For this ground - Read the separate hand-out provided, not supported by the evidence or which are contrary to law
specifically the doctrinal definitions and the examples of Dean Iñigo) making express reference to the testimonial or documentary
evidence or to the provisions of law alleged to be contrary to
Take note of the requisites that: such findings or conclusions.
1. The FAME was such that ordinary prudence could not
have guarded against it; and A pro forma motion for new trial or reconsideration shall not toll
2. By reason of such FAME, the aggrieved party has the reglementary period of appeal. (2a)
probably been impaired in his rights.
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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

DISCUSSION meritorious cause of action or a meritorious defense. Because the

• The motion shall be made in writing stating the ground or court has the right to know, if they will grant your motion, if you
grounds therefor, a written notice of which shall be have a meritorious defense or meritorious cause of action. Because
served by the movant on the adverse party. even if the Court will grant it, it will not alter the result if you do not
have a meritorious defense/cause of action. That’s what we call
So, there is that requirement of notice, unlike motions in general. “Affidavit of Merits.”
Take note that motions in general are no longer necessary now (the
notice of hearing). If you file a litigious motion, take note that the AS to NDE - What about newly discovered evidence? You will not
adverse party will have the opportunity to oppose. That’s it. There have an affidavit of resolutory cause. You are not a victim of FAME.
will be no hearing. If the court thinks that there is a need to have a What you are saying in having a newly discovered evidence is that
hearing, that’ the time that there will be a hearing. So, who will give you have a new evidence. If you were able to present it during trial,
a notice of hearing in ordinary motions? It will be the court. But there is a possibility that you could have won the case.
here, when you talk about a motion for new trial or a motion for
reconsideration, there has to be a written notice in the motion. Q: How do you now convince the court that you have a newly
Meaning, the adverse party is served of your motion. discovered evidence and the possible effect of that NDE?
A: Affidavits of your witnesses.
• A pro forma motion for new trial or reconsideration shall
not toll the reglementary period of appeal. (As to what REMEMBER: Every piece of evidence, whether it’s documentary,
motions are considered pro forma, read the hand-out object or testimony, it will undergo the testimony of a witness. They
provided). have to be sponsored by the testimony of the witness because
For example, your motion for new trial or reconsideration is documents and objects do not present themselves. The witness
declared to be pro forma, you may, in effect, lose your right to who will testify should be stated or if you have documents, they
appeal. You can be barred from taking an appeal because your new must also be attached, provided that they are duly authenticated.
trial or reconsideration is pro forma.
And if that NDE is sufficient for the court to declare that you could
SUPPORT/ AFFIDAVITS have won, should you have presented the same, that would now
lead to the court granting your MNT, based on your NDE.
MOTION FOR NEW TRIAL MOTION FOR
RECONSIDERATION As to MR - What about motion for reconsideration? Is there a need
A motion for new trial shall be A motion for reconsideration for an affidavit? NO. Your MR is actually a pure pleading or
proved in the manner shall point out specifically the argumentation. No need for presentation of evidence because you
provided for proof of motions. findings or conclusions of the are not actually saying that you are a victim of FAME. You are not
A motion based on: judgement or final order saying that you have NDE. When you file for reconsideration, you
which are not supported by are giving the court that rendered the judgement, an opportunity
FAME, shall be supported by the evidence or which are to correct itself if for example, it committed a mistake. That’s the
affidavits of merits which may contrary to law, making purpose of a motion for reconsideration.
be rebutted by affidavits. express reference to the
testimonial or documentary Q: How do you convince the court that the court is wrong?
NDE, shall be supported by evidence or to the provisions A: You point out the court findings and resolutions that seem to be
affidavits of the witnessed by of law alleged to be contrary wrong and you have to state your legal basis there.
whom such evidence is to such findings or
expected to be given, or by conclusions. Take note that both motions (MNT and MR) are litigious motion,
duly authenticated which means that rules on litigious motions apply.
documents which are
proposed to be introduced in (NOTE: Read the separate handout as to what these rules are)
evidence.
The opposing party shall file his or her
Take note that both motions are litigious motion, which means
that rules on litigious motions apply. opposition to either a motion for new trial or
a motion for reconsideration within 5
OPPOSITION
calendar days from receipt thereof. No other
DISCUSSION
submissions shall be considered by the court
As to FAME - In effect, there are two affidavits that are required if in the resolution of the motion.
you are filing a motion for new trial. You need to remember that.
While Rule 15 provides that a litigious motion
shall be resolved by the court within 15
The first would be the affidavit stating circumstances that calendar days from its receipt of the
constituted the fraud, accident, mistake, excusable negligence. And opposition, Rule 37 Section 4 provides that
second is what we call affidavit of merits.
the motion shall be resolved within 30 days
RESOLUTION from the time it is submitted for resolution.
Q: Why do we need such affidavit of merits?
The special provision on the period to resolve
A: Because you need to convince the court that because you are a motions for new trial or reconsideration (Rule
victim of FAME, you were prevented from fully presenting your 37, section 4) prevails over the counterpart
case.
provision governing motions in general [Rule
15, Section 5c]
“If I were allowed to present my case in the beginning, I could
possibly win.” You have to convince the court that you have a
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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

Under Rule 15, Section 6, the court may, in Q: What happens if it is granted?
the exercise of its discretion, and if deemed
necessary for its resolution, call a hearing on Section 6. Effect of granting of motion for new trial – If a new trial
HEARING
the motion. The notice of hearing shall be is granted in accordance with the provisions of this Rule, the
addressed to all parties concerned, and shall original judgment or final order shall be vacated, and the action
specify the time and date of the hearing. shall stand for trial de novo; but the recorded evidence taken upon
Because both motions are intended to cause the former trial, in so far as the same is material and competent to
a judgement to be set aside, they are motions establish the issues, shall be used at the new trial without retaking
“attacking a pleading, order, judgement, or the same.
OMNIBUS proceeding.” As such, they are subject to the
MOTION Omnibus Motion Rule. Thus, a motion filed DISCUSSION
under Rule 37 should include all objections
then available and all objections not so What is this trial de novo? – NEW TRIAL; meaning if the action shall
included shall be deemed waived. stand for trial de novo, it has been granted.

Just to summarize, if the motion for new trial was GRANTED:

For example, there is FAME, and you also have NDE, are you
• The court sets aside the judgment and grants a new trial. The
required to file them together when you file your motion for new
original judgment or final order shall be vacated, and there is
trial? YES. Why? Because of the Omnibus Motion Rule.
a trial de novo.
Let’s go to affidavit of merits. • So, there is again a reception of evidence. If the evidence in
the formal trial is material and competent to establish the
AFFIDAVIT OF MERITS issues, it shall be used at the new trial without retaking the
An affidavit of merits is one setting forth that the defendant has a same.
meritorious defense (substantial and not technical) and stating the • Recall that when your ground is either of the FAME or NDE,
facts constituting the same (Black’s Law Dictionary, 4th ed, p.80). you are actually telling the court that “you (the court) did not
let me (you) present my evidence”. With that, in the trial de
Q: Is this the only affidavit referred to under Rule 37? novo, you will be allowed to present evidence or the new
A: NO. There are 2 affidavits. First (Affidavit of Absolutory Causes) evidence.
is an affidavit reciting the nature and character of the absolutory
cause (FAME) on which the motion is based. Second is the affidavit TAKE NOTE: PRINCIPLE OF AUTOMATIC DUPLICATION
of merits which sets forth the movant’s good or substantial cause If there is already evidence which was received already during the
of action or defense where he must also describe the evidence initial trial, prior to the judgment; that will not be retaken anymore.
which he intends to present should the motion be granted. The We don’t have to receive that evidence as the same is already in
evidence should be such as would warrant a reasonable belief that the record of the courts. So, there is that automatic duplication.
the result of the case would probably be otherwise.
Q: WHAT ABOUT A MOTION FOR RECONSIDERATION?
As a general rule, you must have 2 affidavits, but in practice, it is A: The court may amend such judgment or final order accordingly.
not 2 affidavits, just one affidavit that is lumped together. But if you There is no trial de novo, because here we are not talking about an
base it on jurisprudence, according to the SC, there should be 2 evidence that is omitted.
affidavits. But we will modify that when we go to rule 38 later.
You are simply contending that the court was wrong in its decision.
Just take note of the distinctions between the affidavit of So, the court will simply study or review its own decision. No need
absolutory causes and affidavit of merits. Take note that they are to present evidence as to the factual issue; everything is already on
distinct from one another. (see handout for distinction) the record. It is just that the court has a different interpretation.

Q: WHAT HAPPENS IF EITHER MOTION FOR NEW TRIAL OR

Section 3. Action upon motion for new trial or reconsideration-
MOTION FOR RECONSIDERATION HAS BEEN DENIED?
The trial court may set aside the judgement or final order and grant
A: An order denying the motion (MNT or MR) is not appealable, the
a new trial, upon such terms as may be just, or may deny the
remedy being appeal from the judgment or final order. (Section 9)
motion. If the court finds that excessive damages have been
awarded or that the judgement or final order is contrary to the
evidence or law, it may amend such judgement or final order Section 5. Second motion for new trial. – A motion for new trial
accordingly. shall include all grounds then available and those not so included
shall be deemed waived. A second motion for new trial, based on a
ground not existing nor available when the first motion was made,
Section 4. Resolution of motion – A motion for new trial or may be filed within the time herein provided excluding the time
reconsideration shall be resolved within thirty (30) days from the
during which the first motion had been pending.
time it is submitted for resolution.
No party shall be allowed a second motion for reconsideration of a
Relate Section 3 with Section 6. There are two things that a court judgment or final order.
can do to a motion for new trial or a motion for reconsideration: It
can grant the motion (Section 6) or deny. DISCUSSION
If the motion is denied, the party is left with nothing but to appeal. As a general rule, second motion for new trial is prohibited. Second
He cannot certiorari that, as a general rule motion for reconsideration is also prohibited.
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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

However, there is an exception as to the second motion for new RULE 38

trial, which you filed based on a ground not existing nor available RELIEF FROM JUDGMENTS, ORDERS, OR OTHER PROCEEDINGS
when the first motion was made. *From the lectures of Atty. Jess Zachael Espejo

SECOND MOTIONS Section 1. Petition for relief from judgment, order or other
A second motion for new trial, if based on a ground not existing or proceedings. – When a judgment or final order is entered, or any
available when the first motion was made, may be filed. No party other proceeding is thereafter taken against a party in any court
shall be allowed a second motion for reconsideration of a judgment through fraud, accident, mistake, or excusable negligence, he may
or final order. file a petition in such court and in the same case praying that the
judgment, order or proceeding be set aside.
TAKE NOTE AGAIN WHAT ARE THE GROUNDS: “FAME” OR “NDE”.
In all probability that is already available at the time you filed your
first motion for new trial. An accident per se, cannot be said to have Section 2. Petition for relief from denial of appeal. – When a
happened after judgment. Same thing with fraud, you will know it judgment or final order is rendered by any court in a case, and a
during trial. That is why it is subject to the OMNIBUS MOTION RULE. party thereto, by fraud, accident, mistake, or excusable negligence,
has been prevented from taking an appeal, he may file a petition in
Example: You knew about the fraud, hence you filed a such court and in the same case praying that the appeal be given
motion for new trial. It is not probable that later on, after due course.
filing a motion for new trial, you will discover that you are
a victim of an accident. PETITION FOR RELIEF

Q: ISN’T IT ABSURD? It is a legal remedy whereby a party seeks to set aside a judgment
A: DEAN INIGO’S SUBMISSION: No. Let’s say you filed a motion for rendered against him by a court whenever he was unjustly deprived
new trial because of fraud, you were not able to present, it was of a hearing or was prevented from taking an appeal because of
denied. Now, later on you were able to discover a new evidence fraud, accident, mistake or excusable neglect.
that would probably alter the result, you can now file a SECOND
MOTION FOR NEW TRIAL. That is what it is. But again, if you file a • So again, there is this FAME remedy. This already the third
(second) motion for reconsideration, that’s not allowed. You are time, we have:
only allowed to file a MR once. o Motion to lift order of default
§ If you got default, meaning, you were not
PROHIBITION AGAINST A SECOND MR; ONLY BY SAME PARTY able to present your evidence. You can file
The prohibition against a second motion for reconsideration that.
contemplates the same party assailing the same judgment o Later on, if judgment by default is rendered against
(CRISTOBAL VS. PHILIPPINE AIRLINES INC., G.R. NO. 201622, you, but the reason why was FAME = you can file a
OCTOBER 4, 2017). Motion for New Trial (within the period to appeal);
and
First, the one who filed a MR is the defendant that lost. Strangely, o Let’s say you were not able to take an appeal as well.
the court believed the defendant, the MR was granted. Who is now Now it was after the period to appeal, the judgment
the aggrieved party? The one who won, the plaintiff. So, he can file was deemed final, you can still file a Petition for
a motion for reconsideration. Relief.

So, it does not mean that if there is a judgment, then a MR was filed TWO KINDS OF PETITION FOR RELIEF
by one party and was granted, the other (now aggrieved) party can Section 1 deals with a petition for relief where a party was unjustly
no longer file an MR. – No! It does not bar the other party from deprived of a hearing because of FAME.
filing his own motion for reconsideration.
Section 2, on the other hand, deals with petition for relief where a
Section 7. Partial new trial or reconsideration. – If the grounds for party was prevented from taking an appeal because of FAME.
a motion under this Rule appear to the court to affect the issues as
to only a part, or less than all of the matter in controversy, or only EFFECT: If granted, it’s like a motion for new trial since you will be
one, or less than all, of the parties to it, the court may order a new allowed to present your evidence so the judgment will be in effect
trial or grant reconsideration as to such issues if severable without be vacated as well.
interfering with the judgment or final order upon the rest.
PETITION FOR RELIEF; AN EQUITABLE REMEDY
It is an equitable remedy that is allowed only in exceptional cases
Section 8. Effect of order for partial new trial. – When less than all when there is no other available or adequate remedy. Thus, when
of the issues are ordered retried, the court may either enter a a party has another remedy available to him (i.e. new trial or appeal
judgment or final order as to the rest, or stay the enforcement of from an adverse decision) and he was not prevented by FAME from
such judgment or final order until after the new trial. filing such motion or taking such appeal, he cannot avail himself of
this petition.
Section 9. Remedy against order denying a motion for new trial or
reconsideration. – An order denying a motion for new trial or A petition for relief is not a remedy to revive a lost appeal
reconsideration is not appealable, the remedy being an appeal (THOMASITES CENTER VS. RODRIGUEZ, G.R. NO. 203642,
from the judgment or final order. JANUARY 27, 2016).
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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

Relief is allowed only in exceptional cases as when there is no other • So, it seems that when you reach the Supreme Court and lost,
available or adequate remedy. A petition for relief is actually the you no longer have a remedy. It is because in the SC, it is
“last chance” given by law to litigants to question a final judgment already final, it is the court of last resort.
or order. Failure to avail of such “last chance” within the grace
period fixed by the Rules (Section 3) is fatal. DUREMDES VS. JORILLA
G.R 234491 | February 26 2020
Thus, as a general rule, the rules on petition for relief are strictly
construed against the petitioner. (REQUISITES FOR FILING PETITION FOR RELIEF)

Q: WHO MAY FILE THE PETITION? For the filing of a petition for relief to be proper, petitioner must
A: A petition for relief from judgment together with a motion for satisfy the following requirements:
new trial and a motion for reconsideration are remedies available 1. He or she has no adequate remedy available to him,
only to parties in the proceedings where the assailed judgment is which is either a motion for new trial or appeal from
rendered. In fact, it has been held that a person who was never a adverse decisions of the lower court, and he was
party to the case, or even summoned to appear therein, cannot prevented by fraud, accident, mistake or excusable
avail of a petition for relief from judgment (ALABAN VS. CA, G.R. negligence from filing such motion or taking the
NO. 156021, SEPTEMBER 23, 2005). appeal; and
• In other words, you have to be a party of the original case 2. He or she must comply with the double period set
where the judgment was rendered. forth under section 3, Rule 38 of the Rules of Court.

Q: WHERE DO YOU FILE IT? Section 3. Time for filing petition; contents and verification.
A: GR: Petitions for relief should be filed in and resolved by the A period provided for in either of the preceding sections of this
court in the same case from which the petition arose. Thus, petition Rule must be verified, filed within sixty (60) days after the
for relief in a case tried by the MTC shall be filed in and decided by petitioner learns of the judgment, final order, or other
it in the same case, or in the Regional Trial Court if the case was proceeding to be set aside, and not more than six (6) months
decided by it. after such judgment or final order was entered, or such
• Why? Take note of the effect if your petition for relief will be proceeding was taken; and must be accompanied with affidavits
granted – it is as if there is no judgment was rendered. In showing the fraud, accident, mistake, or excusable negligence
effect, it is as if there was a timely motion for new trial that relied upon, and the facts constituting the petitioner's good and
was granted in the same court that rendered the judgment substantial cause of action or defense as the case may be.
and the very same court that allowed you to file your petition
for relief from judgment. There will be a trial de novo in the DISCUSSION:
same court.
Let’s look at the later part of the provision first, how many affidavits
is required? (1) there is an affidavit showing the fraud, mistake,
EXCEPTIONS: COURT OF APPEALS AND SUPREME COURT
excusable negligence, that is the affidavit showing absolutory
cause and (2) the facts constituting the petitioner's good and
AS TO THE COURT OF APPEALS:
substantial cause of action or defense which is your affidavit of
In (BAGAPORO VS. PEOPLE, G.R. NO. 211829, JANUARY 30, 2019),
merits. So similar to motion for new trial in rule 37, here you have
the Supreme Court said that neither the Rules of Court nor the
2 affidavits.
Revised Internal Rules of the Court of Appeals allow the remedy of
petition for relief in the Court of Appeals.
DOUBLE PERIOD
• So, it is not applicable in the Court of Appeals.
A party filing a petition for relief from judgment must strictly
• What’s your remedy then? Provided that it is still within the comply with two (2) reglementary periods:
period, you can of course file: 1. The petition must be filed within 60 days from the
o The necessary review proceeding before the SC. You knowledge of the judgment, order or other proceeding to
can file an appeal there; or be set aside; and
o Certiorari, under Rule 45 on pure questions of law 2. Within a period of 6 months from entry of such judgment,
(this is improbable) order or other proceeding.
o Or that under Rule 65 on grave abuse of discretion These two periods must concur, both periods are NOT EXTENDIBLE
amounting to lack or excess of jurisdiction on the AND NEVER INTERRUPTED.
part of the CA.
DISCUSSION:
AS TO THE SUPREME COURT:
Take note of the double period, 60 days after the petitioner learns
Remember that the Supreme Court has original jurisdiction over
of the judgment, this refers to the judgment itself and not its
certain cases. Let’s say you lost there, can you allege that you are a
finality, there is a big difference. So, when did you learn about the
victim of FAME and seek recourse through a petition for relief from
judgment? It should be within 60 days, you already filed and
judgment? – NO!
provided that all of that happened not more than 6 months after
such judgment or final order was entered. So, that is the time when
There is also no provision in the Rules of Court making the petition
the judgment became final and executory.
for relief applicable in the Supreme Court (PURCON VS. MRM
PHILS. INC., G.R. NO. 182718, SEPTEMBER 26, 2008).
Let's say for example, you lost the case on January 1, 2020, when
• So, it is also not applicable in the Supreme Court.
would be your 60 days be counted? on the day the you lost? NO, it
is the date that you learned that you lost. Take note also that you
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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

have to concur with the other period, 6 months after the judgment required - one for the absolutory cause and one for the good and
has entered, meaning when did that judgment attained finality. So, substantial cause of action or defense.
it is possible that you learned about the judgment very much later,
let's say on the 5th month, that is allowed because it is still within However, in Consul vs. Consul it was held that:
the 6 months period. CONSUL VS. CONSUL
L-22713, July 1966
Q: Why can't this be extended or interrupted? Held: Affidavit of merits has a known purpose: Courts and
A: Because again this is an extraordinary remedy, equitable parties should not require the machinery of justice to grind
remedy, meaning it is out of the ordinary because the ordinary is anew, if the prospects of a different conclusion cannot be
appeal but you cannot appeal anymore that's the reason why you reasonably reached should relief from judgment be granted. The
are filing, so you should follow the double period. petition for relief is verified by the petitioner himself. The merits
of petitioner's case are apparent in the recitals of the petition,
THOMASITES CENTER FOR INTERNATIONAL STUDIES VS. said petition is under oath. That oath, we believe. Elevates the
RODRIGUEZ petition to the same category as a separate affidavit.
G.R 203642 January 27, 2016
Strict compliance with these periods is required because a Why do we need to require that a separate affidavit of merits should
petition for relief from judgment is a final act of liberality on the be executed by the petitioner when in fact the petition is already
part of the state, which remedy cannot be allowed to erode any under oath? and the petitioner itself recites the meritorious cause
further the fundamental principle that a judgment, order or of action or defense? - So, that would be a surplusage.
proceeding must, at some definite time, attain finality in order
to put an end to litigation. Held: To require the defendant to append an affidavit of merits
to his verified petition, in the circumstances, is to compel him to
DUREMDES VS. JORILLA do the unnecessary. Therefore, the defect pointed by the court
The double period does not apply where extrinsic fraud below is one of form, not of substance.
ultimately results in the court's lack of jurisdiction over the
defendant. Result: Absence of a separate affidavit is of de minimis
importance.
DISCUSSION:
This is the principle ultimately laid down in the case of Duremdes Section 4. Order to file an answer. If the petition is sufficient in
that even if you exceed the 60 days or 6 months, if it can be shown form and substance to justify relief, the court in which it is filed,
that your deprivation of a hearing or a chance to present your shall issue an order requiring the adverse parties to answer the
evidence was due to extrinsic fraud, the double period is not same within fifteen (15) days from the receipt thereof. The
applicable. order shall be served in such manner as the court may direct,
together with copies of the petition and the accompanying
Q: Why? affidavits.
A: (Short background as to Duremdes case): Take note that the
plaintiff in this case deliberately supplied the wrong address of the Section 5. Preliminary injunction pending proceedings. — The
defendant. So, what is the meaning of that? the summons is court in which the petition is filed may grant such preliminary
defective, he was not properly summoned, the court never injunction as may be necessary for the preservation of the rights
obtained jurisdiction over the person of the defendant. of the parties, upon the filing by the petitioner of a bond in favor
of the adverse party, conditioned that if the petition is dismissed
Q: Now, what will happen to the proceedings where the or the petitioner fails on the trial of the case upon its merits, he
defendant was never summoned or the court never obtained will pay the adverse party all damages and costs that may be
jurisdiction over his person? awarded to him by reason of the issuance of such injunction or
A: All of the proceedings in so far as the defendant is concerned is the other proceedings following the petition, but such
an absolute nullity, it does not bind him and it can never attain injunction shall not operate to discharge or extinguish any lien
finality. which the adverse party may have acquired upon the property
of the petitioner.
The extrinsic fraud resulted in the court's lack of jurisdiction over
the defendant and because the proceedings there was a nullity, you DISCUSSION:
are not covered by the 60 days and 6 months double period under
What is this preliminary injunction? You can find that in Rule 58.
section 3.
In the meantime, what will happen? Even if you file a petition for
relief from judgment, because the judgment is already final and
AFFIDIAVITS REQUIRED
executory, there could already be execution of the judgment. - that
The petition must be verified and must be accompanied with
is the purpose of Rule 39 (Execution).
affidavits showing fraud, accident, mistake or excusable negligence
relied upon (affidavit of absolutory causes), and the facts
In order for the petitioner to stop the execution in the meantime,
constituting the petitioner's good and substantial cause of action or
the petitioner must ask the court for writ of preliminary injunction.
defense, as the case may be (affidavit of merits).
Otherwise, execution will proceed.
As worded, Section 3 seems to follow the rule in Rule 37, as
Take note that the principle here in preliminary injunction pending
interpreted in Philippine Commercial and Industrial bank vs. Ortiz
proceedings is similar when you file for Petition for Certiorari under
[G.R L-49223, May 29, 1987], stating that there are two affidavits
Rule 65. Let's say the regional trial court issued a judgment with
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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

grave abuse of discretion amounting to lack or excess of RULE 38

jurisdiction, you appeal before the court of appeals for certiorari. RELIEF FROM JUDGMENTS, ORDERS, OR OTHER PROCEEDINGS
You want the judgment to be reversed. Take note that the *Compiled and Updated by: JZE and LCYE
execution will continue if without restraining order that is issued by
the court or if there is no writ of preliminary injunction. Section 1. Petition for relief from judgment, order, or other
proceedings. When a judgment or final order is entered, or any
Another example: You file a petition for certiorari against an other proceeding is thereafter taken against a party in any court
interlocutory order. In other words, the case will supposedly through fraud, accident, mistake, or excusable negligence, he
continue even if there is already an order. However, you filed a may file a petition in such court and in the same case praying
certiorari, do you have the right to expect that the proceedings that the judgment, order or proceeding be set aside.
below will not continue? NO. You have no right to expect that, If
you want to stop it, you have to ask for a writ of preliminary Section 2. Petition for relief from denial of appeal. When a
injunction. That is also similar here in Section 5. judgment or final order is rendered by any court in a case, and
a party thereto, by fraud, accident, mistake, or excusable
Section 6. Proceedings after answer is filed. — After the filing negligence, has been prevented from taking an appeal, he may
of the answer or the expiration of the period therefor, the court file a petition in such court and in the same case praying that
shall hear the petition and if after such hearing, it finds that the the appeal be given due course.
allegations thereof are not true, the petition shall be dismissed;
but if it finds said allegations to be true, it shall set aside the NATURE OF THE PETITION
judgment or final order or other proceeding complained of upon It is a legal remedy whereby a party seeks to set aside a judgment
such terms as may be just. Thereafter the case shall stand as if rendered against him by a court whenever he was unjustly deprived
such judgment, final order or other proceeding had never been of a hearing or was prevented from taking an appeal because of
rendered, issued or taken. The court shall then proceed to hear fraud, accident, mistake or excusable neglect (Quelnan versus VHF
and determine the case as if a timely motion for a new trial or Philippines, G.R. No. 138500, September 16, 2005).
reconsideration had been granted by it.
A petition for relief from judgment is an equitable remedy that is
DISCUSSION: allowed only in exceptional cases when there is no other available
What is the destiny of a petition for relief from judgment? It can or adequate remedy. When a party has another remedy available
either be granted or denied. If denied, the petition shall be to him, which may be either a motion for new trial or appeal from
dismissed. However, if the court finds that the allegations in the an adverse decision of the trial court, and he was not prevented by
petition are true, (1) it will set aside the judgment or final order fraud, accident, mistake or excusable negligence from filing such
(similar to MNT) and (2) thereafter the case shall stand as if such motion or taking such appeal, he cannot avail himself of this
judgment has never been rendered. Meaning, the judgment is petition (TRUST INTERNATIONAL PAPER CORPORATION versus
vacated, similar to Rule 37, the court shall then proceed to hear and PELAEZ, G.R. No. 164871, August 22, 2006). Also, a party who has
determine the case as if a timely motion for new trial or filed a motion for new trial, but which was denied, cannot file a
reconsideration has been granted. This means that there will be a petition for relief. These two remedies are said to be exclusive of
trial de novo again because the effect is similar to rule 37. each other. The remedy is to appeal from the judgment (Sec. 9, Rule
38, Rules of Court; Francisco versus Puno, 108 SCRA 427).
Section 7. Procedure where the denial of an appeal is set aside.
— Where the denial of an appeal is set aside, the lower court NOT A REMEDY TO REVIVE LOST APPEAL
shall be required to give due course to the appeal and to elevate THOMASITES CENTER FOR INTERNATIONAL STUDIES versus
the record of the appealed case as if a timely and proper appeal RODRIGUEZ
had been made. G.R. No. 20364 | January 27, 2016

DISCUSSION: Relief from judgment is a remedy provided by law to any person

against whom a decision or order is entered through fraud,
This talks about petition for relief under Section 2. In short, if you
accident, mistake, or excusable negligence. It is a remedy,
are deprived of the right to appeal because of fraud, accident,
equitable in character, that is allowed only in exceptional cases
mistake or excusable negligence and the court where you filed your
when there is no other available or adequate remedy. When a
petition for relief of judgment agrees with you that you are really a
party has another remedy available to him, which may either be
victim of fraud or excusable negligence, the effect is you will be
a motion for new trial or appeal from an adverse decision of the
allowed to appeal.
trial court, and he was not prevented by fraud, accident,
mistake, or excusable negligence from filing such motion or
taking such appeal, he cannot avail of the remedy of petition for
relief.

Otherwise, the petition for relief will be tantamount to reviving

the right of appeal which has already been lost either because
of inexcusable negligence or due to the mistake
in the mode of procedure by counsel.
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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

GROUNDS FOR A PETITION FOR RELIEF since such error may be corrected by means of an appeal.”
A petition for relief may be filed on the following grounds: Mistake can be of such nature as to cause substantial injustice
a) When a judgment or final order is entered into, or any to one of the parties. It may be so palpable that it borders on
other proceeding is thereafter taken against the extrinsic fraud.
petitioner in any court through fraud, accident, mistake,
or excusable negligence (Sec. 1, Sec. 38, Rules of Court). PETITION IS AVAILABLE AGAINST PROCEEDINGS AFTER
The petition shall be filed in such court and in the same JUDGMENT
case (not in another or higher court). The petition shall A petition for relief is available not only against a judgment or final
pray that the judgment, order or proceeding be set aside order. Under Sec. 1 of Rule 38, it is also available when "ANY OTHER
(Sec. 1, Rule 38, Rules of Court); or PROCEEDING is thereafter taken against the petitioner in any court
b) When the petitioner has been prevented from taking an through fraud, accident, mistake, or excusable negligence". Thus, it
appeal by fraud, accident, mistake, or excusable was held that a petition for relief is also applicable to a proceeding
negligence (Sec. 2, Rule 38, Rules of Court). The petition taken after the entry of judgment or final order such as an order of
shall likewise be filed in such court and in the same case execution (CAYETANO versus CEGUERRA, 13 SCRA 73). That a
(not in another or higher court) but the prayer this time petition for relief may include relief from an order of execution is
is that the appeal be given due course (Sec. 2, Rule 38, supported by the fact that Rule 38 does not only refer to
Rules of Court). judgments, but also to orders, or any other proceedings (BAYOG
versus NATINO, G.R. No. 118691, July 5, 1996).
RULE 38 PROVIDES FOR ANOTHER “FAME” REMEDY
A petition for relief from judgment is another legal remedy NEGLECT OR MISTAKE BORDERING ON EXTRINSIC FRAUD
whereby a party seeks to set aside a judgment whenever he was CITY OF DAGUPAN versus MARAMBA
unjustly deprived of a hearing or was prevented from taking an G.R. No. 174411 | July 02, 2014
appeal because of fraud, accident, mistake or excusable neglect.
FACTS: On December 20, 2003, petitioner city caused the
CITY OF DAGUPAN versus MARAMBA demolition of the commercial fish center owned by Respondent
G.R. No. 174411, July 02, 2014 Maramba, allegedly without giving direct notice to Maramba
and with threat of taking over the property. This prompted
The Supreme Court, through the ponencia of Justice Leonen, Maramba, through her attorney-in-fact, Johnny Ferrer, to file a
had the occasion to discuss these grounds, except accident, as complaint for injunction and damages with prayer for a writ of
follows: preliminary injunction and/or temporary restraining order. The
complaint alleged that the demolition was unlawful and that the
Excusable negligence as a ground for a petition for relief requires "complete demolition and destruction of the previously existing
that the negligence be so gross "that ordinary diligence and commercial fish center of plaintiff is valued at Ten Million
prudence could not have guarded against it." This excusable (P10,000,000.00) pesos."
negligence must also be imputable to the party-litigant and not
to his or her counsel whose negligence binds his or her client. The On July 30, 2004, the trial court ruled in favor of Maramba and
binding effect of counsel's negligence ensures against the awarded P10 million as actual damages. On August 26, 2004,
resulting uncertainty and tentativeness of proceedings if clients petitioner city filed a motion for reconsideration which was
were allowed to merely disown their counsels' conduct. denied due to the City Legal Officer's mistake, negligence and
gross incompetence, consisting in the following: (1) He did not
Nevertheless, this court has relaxed this rule on several occasions present testimonial evidence for the defense; (2) He filed a
such as: (1) where the reckless or gross negligence of counsel Motion for Reconsideration of a decision most prejudicial to the
deprives the client of due process of law; (2) when the rule's City on the last day, and did not even base his arguments on the
application will result in outright deprivation of the client's transcripts that clearly show that the plaintiff had presented
liberty or property; or (3) where the interests of justice so absolutely no evidence/proof of her claim for damages and
require." Certainly, excusable negligence must be proven. attorney's fees; (3) He did not directly attack the Decision itself,
which awarded P10M as actual damages and P500,000.00 as
Fraud as a ground for a petition for relief from judgment pertains attorney's fees without stating clearly and distinctly the facts on
to extrinsic or collateral fraud. The extrinsic or collateral fraud which the awards are based (because there are actually no such
that invalidates a final judgment must be such that it prevented facts); (4) He filed a motion for reconsideration without the
the unsuccessful party from fully and fairly presenting his case or requisite notice of hearing - his most grievous and fatal error.
defense and the losing party from having an adversarial trial of This resulted in the finality of the Decision, and the issuance of
the issue. There is extrinsic fraud when a party is prevented from the Order of Execution; (5) He kept the adverse decision, the
fully presenting his case to the court as when the lawyer connives denial of his Motion for Reconsideration and the Order of
to defeat or corruptly sells out his client's interest. Extrinsic fraud Execution from the City Mayor, his immediate superior, and
can be committed by a counsel against his client when the latter relied on his own devices.
is prevented from presenting his case to the court.
Petitioner city then filed a petition for relief with prayer for
On the other hand, mistake as used in Rule 38 means mistake of preliminary injunction dated October 29, 2004, together with an
fact and not mistake of law. A wrong choice in legal strategy or affidavit of merit. The city alleged that "the decision, were it not
mode of procedure will not be considered a mistake for purposes for the City Legal Officer's mistake, negligence and gross
of granting a petition for relief from judgment. Mistake as a incompetence, would not have been obtained by the plaintiff,
ground also "does not apply and was never intended to apply to or should have been reconsidered or otherwise overturned, the
a judicial error which the court might have committed in the trial
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CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

damage award in the total amount of P11M being not only all contributed to a conclusion that the mistake or negligence
unconscionable and unreasonable, but completely baseless." committed by counsel bordered on extrinsic fraud.

RULING: A petition for relief from judgment under Rule 38 is an There were discrepancy and lack of proof even on the amount of
equitable remedy which allows courts to review a judgment moral damages and attorney's fees awarded. This only
tainted with neglect bordering on extrinsic fraud. In this case, heightened a sense of arbitrariness in the trial court's July 30,
total damages in the amount of P11 million was awarded in spite 2004 decision. Petitioner city's petition for relief was correctly
of the evidence on record. The motion for reconsideration of such granted in the trial court's August 25, 2005 decision.
judgment filed by the legal officer of the City of Dagupan
inexplicably omitted the required notice for hearing. Considering Petitioner city followed the procedure under Rule 38 of the Rules
the damage that would be suffered by the local government, of Court. Section 4 of Rule 38 provides that "[if] the petition is
such mistake was so glaring as to raise suspicion that it was sufficient in form and substance to justify relief, the court in
contrived to favor the plaintiff. which it is filed, shall issue an order requiring the adverse parties
to answer the same within fifteen (15) days from the receipt
Rule 38 of the Rules of Court allows for the remedy called a thereof."
petition for relief from judgment. This is an equitable remedy
"allowed in exceptional cases when there is no other available or The trial court mentioned in its November 18, 2004 order
adequate remedy" that will allow for substantive justice. denying petitioner city's petition for relief from judgment that an
answer with motion to dismiss was filed before it. Maramba
Courts may set aside final and executory judgments provided prayed that the "petition for review be outright denied for lack
that any of the grounds for their grant are present. The presence of merit (and) that the writ of execution dated October 26, 2004
of "fraud, accident, mistake or excusable negligence" must be be accordingly implemented.”
assessed from the circumstances of the case.
Thus, the requirement under Section 4 of Rule 38 was complied
Atty. Laforteza's "mistake” was fatal considering that the trial with when Maramba filed an answer with motion to dismiss, and
court awarded a total amount of P11 million in favor of the court considered this pleading in its resolution of petitioner
Maramba based merely on her testimony that "the actual cost city's petition for relief from judgment.
of the building through continuous improvement is Five Million
(5M) more or less." PROPER COURT
Under the present Rules, petitions for relief from a judgment, final
First, nowhere in the trial court's July 30, 2004 decision did it order or other proceeding rendered or taken should be filed in and
state or refer to any document presented by Maramba to resolved by the court in the same case from which the petition
substantiate her claimed costs. In fact, the amounts she testified arose. Thus, petition for relief from a judgment, final order or
on did not even add up to the P10 million the court awarded as proceeding involved in a case tried by a municipal trial court shall
actual damages. be filed in and decided by the same court in the same case, or in
the Regional Trial Court if the case was decided by it (REDENA
Second, the body of the trial court's July 30, 2004 decision versus COURT OF APPEALS, G.R. No. 146611, February 6, 2007).
mentioned that Maramba was entitled to P1 million as moral
damages and P500,000.00 as attorney's fees. This is inconsistent "IN ANY COURT"
with the dispositive portion that awarded P500,000.00 as moral This simply means that the petition is available as a remedy in cases
damages and P500,000.00 as attorney's fees. decided by any court of justice, including the MTC or RTC. However:
THERE IS NO PETITION FOR RELIEF IN THE SUPREME COURT AND
The affidavit of merit discussed that Maramba testified on her THE COURT OF APPEALS. No petitioner can avail of a petition for
shock, sleepless nights, and mental anguish, but she never relief under Rule 38 from a resolution of the Supreme Court
expressly asked for moral damages or specified the amount of denying his petition for review.
P500,000.00. On the amount of attorney's fees, the affidavit of
merit explained that Maramba did not show a legal retainer but PURCON versus MRM PHILIPPINES, INC.
only mentioned in passing, “Of course, (I am asking for) my G.R. No. 182718, September 26, 2008
attorney's fees in the amount of P500,000.00."
The Supreme Court ruled that a petition for relief from judgment
Maramba now wants this court to overlook all these blatant is not an available remedy in the Supreme Court. In summary,
discrepancies and maintain the P11 million unsubstantiated the Supreme Court explained that:
award in her favor on the sole ground that petitioner city's
assistant legal officer failed to include a notice of hearing in its First, although Section 1 of Rule 38 states that when a judgment
motion for reconsideration that was filed within the 15-day or final order is entered through fraud, accident, mistake, or
reglementary period. She did not even attempt to address the excusable negligence, a party in any court may file a petition for
lower court's findings that her claimed amounts as damages relief from judgment, this rule must be interpreted in harmony
were all unsubstantiated. with Rule 56, which enumerates the original cases cognizable by
the Supreme Court, thus:
The gross disparity between the award of actual damages and
the amount actually proved during the trial, the magnitude of Section 1. Original cases cognizable. - Only petitions
the award, the nature of the "mistake" made, and that such for certiorari, prohibition, mandamus, quo warranto,
negligence did not personally affect the legal officer of the city habeas corpus, disciplinary proceedings against
members of the judiciary and attorneys, and cases
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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

affecting ambassadors, other public ministers and Citing Spouses Mesina v. Meer in its assailed January 29, 2014
consuls may be filed originally in the Supreme Court. Resolution, the CA reasoned that a petition for relief is not the
proper remedy from a CA Resolution dismissing an appeal. As
A petition for relief from judgment is not included in the list of explained in Mesina:
Rule 56 cases originally cognizable by this Court.
x x x While Rule 38 uses the phrase "any court," it refers only to
Second, while Rule 38 uses the phrase "any court," it refers only municipal/metropolitan and regional trial courts.
to Municipal/Metropolitan and Regional Trial Courts. As revised,
Rule 38 radically departs from the previous rule as it now allows The procedure in the Court of Appeals and the Supreme Court
the Metropolitan or Municipal Trial Court which decided the case are governed by separate provisions of the Rules of Court and
or issued the order to hear the petition for relief. Under the old may, from time to time, be supplemented by additional rules
rule, a petition for relief from the judgment or final order of promulgated by the Supreme Court through resolutions or
Municipal Trial Courts should be filed with the Regional Trial circulars. As it stands, neither the Rules of Court nor the Revised
Court. Internal Rules of the Court of Appeals allow the remedy of
petition for relief in the Court of Appeals.
The procedural change in Rule 38 is in line with Rule 5,
prescribing uniform procedure for Municipal and Regional Trial APPLICABILITY TO CASES DECIDED UNDER SUMMARY RULES
Courts and designation of Municipal/Metropolitan Trial Courts BAYOG versus NATINO
as courts of record. G.R. No. 118691 | July 5, 1996

Third, the procedure in the CA and the Supreme Court are When Section 19 of the Revised Rule on Summary Procedure
governed by separate provisions of the Rules of Court. It may, bars a petition for relief from judgment of a petition for
from time to time, be supplemented by additional rules certiorari, mandamus, or prohibition against any interlocutory
promulgated by the Supreme Court through resolutions or order issued by the court, it has in mind no other than Section 1,
circulars. As it stands, neither the Rules of Court nor the Revised Rule 38 regarding petitions for relief from judgment, and Rule
Internal Rules of the CA allows the remedy of petition for relief 65 regarding petitions for certiorari, mandamus, or prohibition,
in the CA. of the Rules of Court, respectively. These petitions are
cognizable by Regional Trial Courts, and not by Metropolitan
There is no provision in the Rules of Court making the petition for Trial Courts, Municipal Trial Courts, or Municipal Circuit Trial
relief applicable in the CA or this Court. The procedure in the CA Courts. If Section 19 of the Revised Rule on Summary Procedure
from Rules 44 to 55, with the exception of Rule 45 which pertains and Rules 38 and 65 of the Rules of Court are juxtaposed, the
to the Supreme Court, identifies the remedies available before conclusion is inevitable that no petition for relief from judgment
said Court such as annulment of judgments or final orders or nor a special civil action of certiorari, prohibition, or mandamus
resolutions (Rule 47), motion for reconsideration (Rule 52), and arising from cases covered by the Revised Rule on Summary
new trial (Rule 53). Nowhere is a petition for relief under Rule 38 Procedure may be filed with a superior court. This is but
mentioned. consistent with the mandate of Section 36 of B.P. Blg. 129 to
achieve an expeditious and inexpensive determination of the
If a petition for relief from judgment is not among the remedies cases subject of summary procedure.
available in the CA, with more reason that this remedy cannot
be availed of in the Supreme Court. This Court entertains only WHO MAY FILE PETITION
questions of law. A petition for relief raises questions of facts on A petition for relief from judgment together with a motion for new
fraud, accident, mistake, or excusable negligence, which are trial and a motion for reconsideration are remedies available only
beyond the concerns of this Court. to parties in the proceedings where the assailed judgment is
rendered. In fact, it has been held that a person who was never a
BAGAPORO versus PEOPLE party to the case, or even summoned to appear therein, cannot
G.R. No. 211829 | January 30, 2019 avail of a petition for relief from judgment (ALABAN versus CA, G.R.
No. 156021, September 23, 2005).
The nature of an action, as well as which court or body has
jurisdiction over it, is determined based on the allegations REQUISITES FOR FILING
contained in the complaint of the plaintiff, irrespective of DUREMDES versus JORILLA, ET AL.
whether or not the plaintiff is entitled to recover upon all or G.R. No. 234491 | February 26, 2020
some of the claims asserted therein. Notably, the petition for
relief was filed in the same case, which resolution had already For the filing of a petition for relief to be proper, petitioner must
become final. An examination of petitioner's averments and satisfy the following requirements: (1) he or she has no
relief sought, i.e., the setting aside of a final and executory adequate remedy available to him, which is either a motion for
resolution denying an appeal, leads to no other conclusion than new trial or appeal from adverse decisions of the lower court,
that it is the mode provided under Rule 38 of the Rules of Court and he was prevented by fraud, accident, mistake or excusable
whether or not that was what petitioner intended. The CA negligence from filing such motion or taking the appeal; and (2)
cannot, thus, be faulted for treating the petition as one which he or she must comply with the double period set forth under
sought the relief provided by Rule 38, and consequently Section 3, Rule 38 of the Rules of Court.
dismissing it. It is settled that a petition for relief from judgment
is not an available remedy in the CA.
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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

Section 3. Time for filing petition; contents and verification. A other words, for purposes of the 60-day period under Rule 38,
petition provided for in either of the preceding sections of this knowledge of the finality of the judgment or order is irrelevant.
Rule must be verified, filed within sixty (60) days after the
petitioner learns of the judgment, final order, or other The records reveal that Lasam's knowledge of the February 23,
proceeding to be set aside, and not more than six (6) months 2010 Order could be traced to at least two periods: on February
after such judgment or final order was entered, or such 23, 2010, when the Court issued the subject Order and on which
proceeding was taken; and must be accompanied with affidavits Lasam was admittedly in attendance; and on July 23, 2010, the
showing the fraud, accident, mistake, or excusable negligence date Lasam signed the Verification and Certification for the
relied upon, and the facts constituting the petitioner's good and Petition for Certiorari filed with the CA. It must be underlined
substantial cause of action or defense, as the case may be. that the very subject of the aforementioned petition for
certiorari was the February 23, 2010 Order itself.
WHEN TO FILE
The petition shall be filed within sixty (60) days after the petitioner On the other hand, while there was an attempt to argue the
learns of the judgment, final order or proceeding and not more compliance with the 60-day period in the petition for relief,
than six (6) months after such judgment or final order was entered, there was no effort to show that the six-month period – which
or such proceeding was taken. is equally relevant for a petition for relief - was complied with. It
may be that this was consciously adopted to conceal the fact
It is thus clear that a party filing a petition for relief from judgment that the petition for relief was also filed beyond the six month
must strictly comply with two (2) reglementary periods: first, the reglementary period. As pointed out by the PNB, the RTC's
petition must be filed within sixty (60) days from knowledge of the February 23, 2010 Order was, in effect, entered on May 3, 2012,
judgment, order or other proceeding to be set aside; and second, when this Court's February 22, 2012 Resolution in G.R. No.
within a fixed period of six (6) months from entry of such judgment, 199846 was entered in the Book of Entries of Judgments. Thus,
order or other proceeding. THESE TWO PERIODS MUST CONCUR. the January 22, 2013 petition for relief was filed two months
Both periods are also NOT EXTENDIBLE AND NEVER INTERRUPTED. late.

Strict compliance with these periods is required because a petition From the foregoing, it is clear that Lasam failed to comply with
for relief from judgment is a final act of liberality on the part of the the 60-day period provided under Section 3, Rule 38 of the Rules
State, which remedy cannot be allowed to erode any further the of Court when she filed her petition for relief on January 22,
fundamental principle that a judgment, order or proceeding must, 2013, or almost three years from the time she acquired
at some definite time, attain finality in order to put an end to knowledge of the order sought to be set aside. Likewise, she
litigation (THOMASITES CENTER FOR INTERNATIONAL STUDIES failed to comply with the six-month period provided in the same
versus RODRIGUEZ, G.R. No. 203642, January 27, 2016). Rule when she filed her petition for relief more than eight
months from the date of entry of the order sought to be set
Indeed, relief is allowed only in exceptional cases as when there is aside.
no other available or adequate remedy. As it were, a petition for
relief is actually the "last chance" given by law to litigants to Since strict compliance with the relevant periods was not
question a final judgment or order. And failure to avail of such "last observed, the RTC correctly dismissed Lasam's petition. At the
chance" within the grace period fixed by the Rules is fatal time the petition was filed, the reglementary periods under Rule
(QUELNAN versus VHF PHIL., 433 SCRA 631). While strict 38 had already expired. Consequently, the RTC lost all
interpretation is the norm in applying the periods mentioned, such jurisdiction to entertain the same. Thus, no grave abuse of
rule is always subject to the power of the Supreme Court to effect discretion could be attributed to the trial court when it
a liberal interpretation when dictated by the circumstances. dismissed the petition outright.

LASAM versus PHILIPPINE NATIONAL BANK CITY OF DAGUPAN v. MARAMBA

G.R. No. 207433 | December 05, 2018
G.R. No. 174411 | July 02, 2014
Unfortunately for Lasam, she failed to comply with these two
periods when she filed her petition for relief from a final order The double period required under this provision is jurisdictional
before the RTC. It must be emphasized that the subject of and should be strictly complied with. Otherwise, a petition for
Lasam's petition for relief is the RTC's February 23, 2010 Order. relief from judgment filed beyond the reglementary period will
Accordingly, the reglementary periods provided in Section 3, be dismissed outright.
Rule 38 of the Rules of Court must be reckoned from Lasam's
knowledge of the said order, as well as on the date it was The 60-day period to file a petition for relief from judgment is
entered. reckoned from actual receipt of the denial of the motion for
reconsideration when one is filed.
In her petition for relief, Lasam alleged that the petition was
filed within 60 days from the time she learned of the finality of Petitioner city received a copy of the July 30, 2004 decision on
the RTC's February 23, 2010 Order. The insufficiency of this August 11, 2004. It filed a motion for reconsideration on August
allegation is very glaring. 26, 2004. On October 25, 2004, it received a copy of the October
21, 2004 trial court order denying its motion for reconsideration.
Again, and as expressly provided under the Rules of Court, the Four days later or on October 29, 2004, it filed its petition for
60-day period under Section 3, Rule 38 of the Rules of Court relief from judgment. Thus, the petition for relief from judgment
should be reckoned from the time the aggrieved party has was considered filed on time.
knowledge of the judgment or order sought to be set aside. In
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CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

COMPUTING FOR THE SIX-MONTH PERIOD from it have no legal effect. XXX A void judgment can never
BAYOG v. NATINO become final and executory and may even be assailed or
G.R. No. 118691 | July 5, 1996 impugned anytime. Further, in NHA v. Commission on
Settlement of Land Problems, the Court ruled that a petition for
The 6-month period is computed from the date of actual entry certiorari to declare the nullity of a void judgment should not be
of the order or judgment as this is defined in Sec. 2, Rule 36, that dismissed for untimeliness since a void judgment never acquires
is, from the recording of the judgment or order in the book of finality and any action to declare its nullity does not prescribe.
entries of judgments and not from the date of the order of XXX
default or the rendition of the judgment or the finality of the
judgment. Also, under Section 2 in relation to Section 3, Rule 47 of the Rules
of Court, when the petition for annulment of judgment is
With respect to the "proceedings" in Courts of First Instance grounded on lack of jurisdiction, the petition may be filed before
which can be subject of petitions for relief, the date when the it is barred by laches or estoppel.
proceedings were taken control. Also, in judgments upon
compromise, being immediately executory, prescription runs Similarly, a petition for relief which is grounded on extrinsic
from the date of its rendition, hence the 6 months period also fraud and which ultimately negates the court's jurisdiction may
runs therefrom. be filed anytime as long as the action is not barred by laches or
estoppel.
THE DOUBLE PERIOD DOES NOT APPLY WHERE EXTRINSIC FRAUD
ULTIMATELY RESULTS IN THE COURT'S LACK OF JURISDICTION FORM OF THE PETITION: AFFIDAVIT OF MERIT
OVER THE DEFENDANT The petition must be VERIFIED and must be accompanied with
DUREMDES v. JORILLA, ET AL. affidavits showing fraud, accident, mistake or excusable negligence
G.R. No. 234491 | February 26, 2020 relied upon, and the facts constituting the petitioner's good and
substantial cause of action or defense, as the case may be (Sec. 3,
Rule 38, Rules of Court).
Section 3 will not apply when a petition for relief which is
grounded on extrinsic fraud ultimately results in the court's lack
of jurisdiction over the defendant, and which consequently As worded, Section 3 seems to follow the rule in Rule 37, as
makes the judgment rendered by the trial court void. In such a interpreted in PHILIPPINE COMMERCIAL AND INDUSTRIAL BANK v.
case, the petition for relief should not be dismissed for failure of RODOLFO ORTIZ, ET AL., G.R. No. L-49223, May 29, 1987, stating
one to avail himself of the remedy of an appeal and for that there are two affidavits required - one for the absolutory cause
untimeliness. XXX and one for the good and substantial cause of action or defense.
However, take note of:
Here, petitioner invoked the ground of extrinsic fraud in his
petition for relief. He argued that he was deprived of the CONSUL v. CONSUL
opportunity to participate in the proceedings before the RTC in G.R. No. L-22713, July 26, 1966
Civil Case No. Q-09-65496 by reason of respondents' act of
providing the court with an erroneous address where summons Affidavit of merits has a known purpose: Courts and parties
may be served on him. Petitioner alleged that respondents' act should not require the machinery of justice to grind anew, if the
was for the purpose of fraudulently gaining a favorable prospects of a different conclusion cannot be reasonably
judgment. reached should relief from judgment be granted. We look back
at the facts here.
The rule is that jurisdiction over a defendant in a civil case is
acquired either through service of summons or through The petition for relief is verified by petitioner himself. The merits
voluntary appearance in court and submission to its authority. of petitioner's case are apparent in the recitals of the petition.
Thus, in the absence of service or when the service of summons Said petition is under oath. That oath, we believe, elevates the
upon the person of defendant is defective, the court acquires no petition to the same category as a separate affidavit. To require
jurisdiction over his person, and the judgment rendered against defendant to append an affidavit of merits to his verified
him is null and void. petition, in the circumstances, is to compel him to do the
unnecessary. Therefore, the defect pointed by the court below
Here, the action filed by respondents before the RTC which is an is one of form, not of substance. Result: Absence of a separate
action for Collection of Sum of Money plus Damages is an action affidavit is of de minimis importance.
in personam because respondents sought to enforce a personal
obligation against petitioner. In an action in personam, if the Section 4. Order to file an answer. If the petition is sufficient in
defendant does not voluntarily appear in court, the court form and substance to justify relief, the court in which it is filed,
acquires jurisdiction through personal or substituted service of shall issue an order requiring the adverse parties to answer the
summons. Assuming the truth on petitioner's argument, the same within fifteen (15) days from the receipt thereof. The
necessary consequence of the extrinsic fraud committed upon order shall be served in such manner as the court may direct,
petitioner is that the RTC lacked jurisdiction over his person. together with copies of the petition and the accompanying
affidavits.
XXX A judgment rendered by a court without jurisdiction is null
and void and may be attacked anytime. As it is no judgment at
all, all acts performed pursuant to it and all claims emanating
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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

ORDER TO ANSWER of should be set aside. This is the FIRST HEARING that may be
If the petition is sufficient in form and substance, to justify relief, undertaken.
the court in which it is filed, shall issue an order requiring the
adverse parties to answer the same within fifteen (15) days from ACTIONS OF THE COURT
the receipt thereof (Sec. 4, Rule 38, Rules of Court). After the hearing and the court finds that the allegations therein
are not true, it shall dismiss the petition.
Section 5. Preliminary injunction pending proceedings. — The
court in which the petition is filed may grant such preliminary If the court finds the allegations to be true, it shall set aside the
injunction as may be necessary for the preservation of the rights judgment, final order or other proceeding complained of. The case
of the parties, upon the filing by the petitioner of a bond in favor then shall stand as if such judgment, final order or proceeding HAD
of the adverse party, conditioned that if the petition is dismissed NEVER BEEN RENDERED, ISSUED OR TAKEN. The court shall then
or the petitioner fails on the trial of the case upon its merits, he proceed to hear and determine the case as if a timely motion for a
will pay the adverse party all damages and costs that may be new trial or reconsideration had been granted by it, which simply
awarded to him by reason of the issuance of such injunction or means that the actual merits of the case will be heard by the court.
the other proceedings following the petition, but such This is the SECOND HEARING that may be taken by the court, which
injunction shall not operate to discharge or extinguish any lien is similar to a motion for new trial.
which the adverse party may have acquired upon, the property,
of the petitioner. (5a) This action of the court applies to a petition for relief praying that
the judgment, final order or proceeding be set aside having been
PRELIMINARY INJUNCTION PENDING THE PETITION FOR RELIEF entered or taken against petitioner by fraud, accident, mistake or
excusable negligence.
Remember that a petition for relief is a remedy available after the
judgment or final order has become final and executory. Hence, the
judgment could be the subject of a writ of execution. There is Where the prayer of petitioner is to give due course to his appeal
nothing in the Rules that precludes the execution of the judgment because he was prevented from taking an appeal through fraud,
that is already executory upon proper application of the prevailing accident, mistake or excusable negligence, and the court finds the
party during the pendency of the petition. allegations of the petition to be true, the court shall set aside the
previous denial of the appeal and shall give due course to the said
appeal. It shall then elevate the records of the appealed case as if a
The petitioner therefore, would be interested in the preservation
timely and proper appeal had been made.
of the status quo as well as the preservation of the rights of the
parties before the petition is resolved. Hence, the petitioner may
avail of the remedy allowed him under Sec. 5 of Rule 38. Under this REMEDY AGAINST ORDER DENYING PETITION FOR RELIEF
provision, the court in which the petition is filed, may grant such SANTOS v. SANTOS
preliminary injunction to preserve the rights of the parties upon the G.R. No. 214593 | July 17, 2019
filing of a bond in favor of the adverse party. The bond is
conditioned upon the payment to the adverse party of all damages The 1997 Rules of Civil Procedure changed the nature of an
and costs that may be awarded to such adverse party by reason of order of denial of a petition for relief from judgment, making it
the issuance of the injunction or the other proceedings following unappealable and, hence, assailable only via a petition for
the petition (Sec. 5, Rule 38, Rules of Court). certiorari. Nevertheless, the appellate court, in deciding such
petitions against denials of petitions for relief, remains tasked
Section 6. Proceedings after answer is filed. After the filing of with making a factual determination, i.e., whether or not the
the answer or the expiration of the period therefor, the court trial court committed grave abuse of discretion in denying the
shall hear the petition and if after such hearing, it finds that the petition.
allegations thereof are not true, the petition shall be dismissed;
but if it finds said allegations to be true, it shall set aside the To do so, it is still obliged to "determine not only the existence
judgment or final order or other proceedings complained of of any of the grounds relied upon whether it be fraud, accident,
upon such terms as may be just. Thereafter the case shall stand mistake or excusable negligence, but also and primarily the
as if such judgment, final order or other proceeding had never merit of the petitioner's cause of action or defense, as the case
been rendered, issued or taken. The court shall then proceed to may be." Stated otherwise, the finality of the RTC decision
hear and determine the case as if a timely motion for a new trial cannot bar the appellate court from determining the issues
or reconsideration had been granted by it. raised in the petition for relief, if only to determine the existence
of grave abuse of discretion on the part of the trial court in
Section 7. Procedure where the denial of an appeal is set aside. denying such petition. While a Rule 38 Petition does not stay the
Where the denial of an appeal is set aside, the lower court shall execution of the judgment, the grant thereof reopens the case
be required to give due course to the appeal and to elevate the for a new trial; and thus, if merit be found in the certiorari
record of the appealed case as if a timely and proper appeal had petition assailing the trial court's denial of the petition for relief,
been made. the case will be reopened for new trial.

HEARING OF THE PETITION

After the filing of the answer or the expiration of the period to file
the answer, the court shall hear the petition (Sec. 6, Rule 38, Rules
of Court) to determine whether the judgment or order complained
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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

DISTINCTIONS
MOTION FOR PETITION FOR 4. He may also appeal from the judgment rendered against him
NEW TRIAL RELIEF FROM as contrary to the evidence or to the law, even if no petition to
JUDGMENT set aside the order of default has been presented by him (Sec.
A motion for new A petition for relief 2, Rule 41).
trial is based on is based on the
Fraud, Accident, grounds that the 5. Moreover, a petition for certiorari to declare the nullity of a
Mistake, Excusable petitioner has judgment by default is also available if the trial court improperly
Negligence, and been unjustly declared a party in default, or even if the trial court properly
newly discovered deprived of a declared a party in default, if grave abuse of discretion attended
evidence. hearing therein, or such declaration (PACETE v. CARIAGA, JR., G.R. No. 53880, 17
AS TO GROUNDS that he has March 1994, 231 SCRA 321).
prevented from
taking an appeal, in COMPARATIVE TABLE: “FAME” REMEDIES
either case, by RULE 9 RULE 37 RULE 38
reason of Fraud,
Motion to set Motion for Petition for
Accident, Mistake,
REMEDY aside order of new trial relief from
or Excusable
default. judgment
Negligence.
After notice of After Within 60
A motion for new A petition for relief
the order of judgment is days after the
trial should be filed from judgment is
default but rendered, or petitioner
within the period filed within 60 days
before default default learns of the
for taking an after the petitioner
judgment is judgment in judgment,
appeal. learns of the
rendered. the case of a final order or
judgment, final
defaulted proceeding
This means that order, or other
defendant, and not more
the judgment has proceeding to be
PERIOD but before than 6
not yet attained set aside and not
AS TO TIME OF the judgment months after
finality. more than 6
FILING becomes such
months, after such
final. judgment or
judgment or final
final order
order was entered.
was entered,
or such
This means that proceeding
the petition may was taken.
be filed after the
An order A judgment A judgment,
judgment has
AVAILABLE declaring the order or
become final.
AGAINST defendant in proceeding.
EFFECT ON No Distinction. default.
JUDGMENT IF
AVAILABLE Defendant Any party Any party
GRANTED
TO
The judgment The Appeal may
LINA v. COURT OF APPEALS itself, not the judgment no longer be
G.R. No. L-63397 | April 9, 1985 declaration of itself, not available but
default, is denial of the certiorari, as
APPEAL
The remedies available to a party declared in default are: appealable motion, is an extra-
appealable ordinary
1. The defendant in default may, at any time after discovery remedy, may
thereof and before judgment, file a motion under oath to set be availed of.
aside the order of default on the ground that his failure to
answer was due to fraud, accident, mistake or excusable
negligence, and that he has a meritorious defense (Sec. 3(6),
Rule 9]);

2. If the judgment has already been rendered when the

defendant discovered the default, but before the same has
become final and executory, he may file a motion for new trial
under Section 1 (a) of Rule 37;

3. If the defendant discovered the default after the judgment

has become final and executory, he may file a petition for relief
under Section 1 of Rule 38; and
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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

RULE 47 Section 1. Coverage. This Rule shall govern the annulment by

ANNULMENT OF JUDGMENTS OR FINAL ORDERS AND the Court of Appeals of judgments or final orders and
RESOLUTIONS resolutions in civil actions of Regional Trial Courts for which the
*Compiled and Updated by: JZE and LCYE ordinary remedies of new trial, appeal, petition for relief or
other appropriate remedies are no longer available through no
BACKGROUND fault of the petitioner. (n)
Rule 47 was an entirely new rule that was introduced for the first
time by the 1997 Rules of Civil Procedure. This rule governs the NATURE OF ANNULMENT OF JUDGMENT AS A PROCEDURAL
remedy of annulment of judgments or final orders or resolutions. REMEDY
Recall that under Section 9 of Batas Pambansa Blg. 129, the Court Annulment of judgment, as provided for in Rule 47, is unlike a
of Appeals is vested with exclusive original jurisdiction over actions motion for reconsideration, appeal or even a petition for relief from
for annulment of judgments of the Regional Trial Courts. judgment, because annulment is not a continuation or progression
of the same case, as in fact the case it seeks to annul is already final
The petition governed by Rule 47 is an original action and is not and executory. Rather, it is an extraordinary remedy that is
considered a mode of appeal. Contrasted with remedies that are equitable in character and is permitted only in exceptional cases
considered appellate in character where the judgment appealed (FRIAS versus ALCAYDE, G.R. No. 194262, February 28, 2018).
from is valid, under Rule 47, the petitioner prays that judgment be
declared void. Under the 1964 Rules, there was no direct rule Section 1, Rule 47 of the Rules of Court provides that the remedy of
expressly governing the remedy of annulment of judgment as the annulment by the CA of judgments or final orders and resolutions
guidelines that governed the remedy were merely based on and in civil actions of the Regional Trial Courts can only be availed of
culled from decided cases. Rule 47, in effect, codified the applicable where the ordinary remedies of new trial, appeal, petition for relief
rulings and doctrines into one coherent rule. or other appropriate remedies are no longer available through no
fault of the petitioner.
REMEDIES TO ATTACK A VOID JUDGMENT
A void judgment may be attacked either directly or collaterally. Thus, a petition for annulment of judgment under Rule 47 is a
When a judgment is null and void on its very face, the judgment is remedy granted only under exceptional circumstances where a
susceptible to a direct or collateral attack. When the nullity of the party, without fault on his part, had failed to avail of the ordinary
judgment is not apparent on its face, it may only be attacked or other appropriate remedies provided by law; and such action is
directly. never resorted to as a substitute for a party's own neglect in not
promptly availing of the ordinary or other appropriate remedies
A direct attack on a judgment or decree is an attempt, for sufficient (HEIRS OF CULLADO versus GUTIERREZ, G.R. No. 212938, July 30,
cause, to have it annulled, reversed, vacated, corrected, declared 2019).
void, or enjoined, in a proceeding instituted for that specific
purpose, such as an appeal, writ of error, bill of review, or Annulment of judgment is a remedy in law independent of the case
injunction to restrain its execution. It is distinguished from a where the judgment sought to be annulled was rendered (CANLAS
collateral attack, which is an attempt to impeach the validity or versus COURT OF APPEALS, G.R. No. 77691, August 8, 1991).
binding force of the judgment or decree as a side issue or in a
proceeding instituted for some other purpose. A direct attack on a WHO MAY FILE PETITION
judicial proceeding is an attempt to void or correct it in some The remedy is available not only to one who is a party to the case
manner provided by law (Black's Law Dictionary, Revised Fourth where the judgment sought to be annulled is rendered. A person
Edition, p. 546). need not be a party to the judgment to be annulled as what is
essential is that he can prove his allegation that the judgment was
A collateral or indirect attack, or the act of assailing a judgment a obtained by the use of collusion and he would be adversely affected
latere, in essence, is an attempt to avoid, defeat, or evade it, or thereby (ISLAMIC DA'WAH COUNCIL OF THE PHILIPPINES versus
deny its force and effect, in some incidental proceeding not COURT OF APPEALS, G.R. No. 80892, September 29, 1989).
provided by law for the express purpose of attacking it (see Black's However, take note of the following case where the Supreme Court
Law Dictionary, Revised Fourth Edition, p. 326). disallowed a petition filed by a non-party:

When a party collaterally attacks a judgment that is void on its face, DARE ADVENTURE FARM CORPORATION v. COURT OF
there is no need for him to file a case. He simply invokes the nullity APPEALS
of the judgment at the opportune time. Verily, a judgment which is G.R. No. 161122 | September 24, 2012
void on its very face can be attacked at any time, in any manner and
at any place. For example, if a party moves to execute a judgment
FACTS: The petitioner acquired a parcel of land through a deed
that is void on its face, the opponent may simply oppose the
of absolute sale executed on July 28, 1994 between the
execution on the ground that the judgment is void. Note that the
petitioner, as vendee, and the Goc ongs, as vendors. The
opponent is not filing a direct action to declare the nullity of the
petitioner later on discovered the joint affidavit executed on
judgment because it is void on its face.
June 19, 1990 by the Goc-ongs, whereby the Goc-ongs declared
that they were the owners of the property, and that they were
On the other hand, by direct attack is meant that a party must file mortgaging the property to the Ngs to secure their obligation
an action to declare the nullity of the judgment. Rule 47 is one of amounting to P648,000.00, subject to the condition that should
those remedies by which a party may assail a void judgment. they not pay the stipulated 36-monthly installments, the Ngs
Certiorari under Rule 65 is also a mode of attacking a judgment. would automatically become the owners of the property.
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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

another opportunity to reopen the already-final judgment but

With the Goc-ongs apparently failing to pay their obligation to because a party-litigant is enabled to be discharged from the
the Ngs as stipulated, the latter brought on January 16, 1997 a burden of being bound by a judgment that was an absolute
complaint for the recovery of a sum of money, or, in the nullity to begin with. The Court agrees with the CA's suggestion
alternative, for the foreclosure of mortgage in the Regional Trial that the petitioner's proper recourse was either an action for
Court, Branch 56, in Mandaue City (RTC) only against quieting of title or an action for reconveyance of the property.
respondent Agripina R. Goc-ong. The action was docketed as XXX
Civil Case No. MAN-2838. With Agripina R. Goc-ong being
declared in default for failing to file her answer in Civil Case No. JURISDICTION OVER ANNULMENT OF JUDGMENT
MAN-2838, the RTC declared the respondents as the owners. In Section 1 specifically mentions annulment of judgment by the Court
2001, the petitioner commenced in the CA an action for the of Appeals of judgments or final orders and resolutions of Regional
annulment of the decision of the RTC, however the CA dismissed Trial Courts, in civil actions. However, the remedy is not limited to
the petition for annulment of judgment. the judgments of the Regional Trial Courts. Section 10 makes the
remedy specifically applicable to judgments or final orders and
ISSUE: Whether the Petitioner can file a petition to annul the resolutions of Municipal Trial Courts. An action to annul a judgment
judgment of the RTC in a case where Petitioner was never a or final order of a Municipal Trial Court shall be filed in the Regional
party. Trial Court having jurisdiction over the former. Pursuant to Section
19[6] of Batas Pambansa Blg. 129, the Regional Trial Court has
RULING: NO. A decision rendered on a complaint in a civil action exclusive original jurisdiction"(i)n all cases not within the exclusive
or proceeding does not bind or prejudice a person not impleaded jurisdiction of any court, tribunal, person or body exercising
therein, for no person shall be adversely affected by the outcome jurisdiction or any court, tribunal, person or body exercising judicial
of a civil action or proceeding in which he is not a party. Hence, or quasi-judicial functions.” Annulment of judgments of the
such person cannot bring an action for the annulment of the Municipal Trial Courts is an example of such cases.
judgment under Rule 47 of the 1997 Rules of Civil Procedure,
except if he has been a successor in interest by title subsequent ANNULMENT OF JUDGEMENTS OF QUASI-JUDICIAL TRIBUNALS
to the commencement of the action, or the action or proceeding IMPERIAL v. ARMES
is in rem the judgment in which is binding against him. G.R. No. 178842, January 30, 2017

A petition for annulment of judgment is a remedy in equity so FACTS: Napal and Imperial entered into a Memorandum of
exceptional in nature that it may be availed of only when other Agreement (MOA) to organize a domestic corporation, to be
remedies are wanting, and only if the judgment, final order or named NIDSLAND and to engage in real estate business. While
final resolution sought to be annulled was rendered by a court Imperial faithfully complied with his obligations under the MOA,
lacking jurisdiction or through extrinsic fraud. Yet, the remedy, Napal failed to convey to NIDSLAND, for his capital contribution,
being exceptional in character, is not allowed to be so easily and a certain portion of the Subject Property. Napal sold the Subject
readily abused by parties aggrieved by the final judgments, Property to Cruz as evidenced by a Deed of Absolute Sale. In a
orders or resolutions. XXX derivative suit filed by Imperial, for himself and in
representation of NIDSLAND, the Securities and Exchange
It is elementary that a judgment of a court is conclusive and Commission (SEC) found that the sale to Cruz was simulated.
binding only upon the parties and those who are their successors Thus, the SEC ordered the cancellation of the title in the name
in interest by title after the commencement of the action in of Cruz. The SEC directed Napal to execute the proper deed of
court. Moreover, Section 1 of Rule 47extends the remedy of conveyance of the Subject Property in favor of NIDSLAND.
annulment only to a party in whose favor the remedies of new
trial, reconsideration, appeal, and petition for relief from Since Napal did not appeal the SEC Decision, it became final and.
judgment are no longer available through no fault of said party. As ordered in the SEC Decision, a Deed of Conveyance was
issued in favor of NIDSLAND and title in the name of Cruz was
As such, the petitioner, being a non-party in Civil Case No. MAN- cancelled and a new one was issued in the name of the former.
2838, could not bring the action for annulment of judgment due
to unavailability to it of the remedies of new trial, ISSUE: Can Cruz file an action before the Regional Trial Court to
reconsideration, appeal, or setting the judgment aside through annul the decision of the SEC for being void?
a petition for relief. In this case, the petitioner probably brought
the action for annulment upon its honest belief that the action
RULING: NO. There have been several attempts to use an action
was its remaining recourse from a perceived commission of
for annulment of judgment under Rule 47 of the Rules of Court
extrinsic fraud against it. It is worthwhile for the petitioner to
to set aside a void judgment of a quasi-judicial body. Thus, the
ponder, however, that permitting it despite its being a non-party
following issues: whether this remedy is available to set aside a
in Civil Case No. MAN-2838 to avail itself of the remedy of
void judgment of a quasi-judicial body, and which tribunal has
annulment of judgment would not help it in any substantial way.
jurisdiction over it.
Although Rule 47 would initially grant relief to it from the effects
of the annulled judgment, the decision of the CA would not really
In Springfield Development Corporation, Inc. v. Presiding Judge,
and finally determine the rights of the petitioner in the property
RTC, Misamis Oriental, Br. 40, Cagayan de Oro City, we explained
as against the competing rights of the original parties.
that regional trial courts have no jurisdiction to annul judgments
of quasi-judicial bodies of equal rank. It then proceeded to state
To be borne in mind is that the annulment of judgment is an that the CA also has no jurisdiction over such an action.
equitable relief not because a party-litigant thereby gains Springfield emphasized that Section 9 of BP 129 and Rule 47 of
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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

the Rules of Court both state that the CA has jurisdiction over In this case, the SEC, in rendering the decision, disregarded
annulment of judgments of regional trial courts only. We ruled established law and jurisprudence on the jurisdiction of the SEC.
in this case that the "silence of B.P. Blg. 129 on the jurisdiction Further, it adjudicated on the rights of Cruz, cancelled the deed
of the CA to annul judgments or final orders and resolutions of of sale, and took away his property without giving him the
quasi-judicial bodies like the DARAB indicates its lack of such opportunity to be heard. It is a breach of the basic requirements
authority." While this case explained that neither the regional of due process. Hence, because the SEC Decision was issued with
trial courts nor the CA possess jurisdiction over an action to grave abuse of discretion and is therefore void, all acts
annul the judgment of quasi-judicial bodies, it did not emanating from it have no force and effect. Thus, the Deed of
categorically state that the remedy itself does not exist in the Conveyance issued pursuant to it has no legal effect.
first place. Nevertheless, while the certificates of title issued in the name of
NIDSLAND arose from a void judgment, this Court cannot nullify
The seeming confusion in the string of cases pertaining to the them in these proceedings. The indefeasibility of a Torrens title
jurisdiction over petitions for annulment of judgment of quasi- prevents us from doing so. Further, we are bound by rules on
judicial bodies is clarified when these cases are read in jurisdiction and the nature of the proceedings before us.
conjunction with Macalalag v. Ombudsman. While we repeated
our consistent ruling that Rule 47 of the Rules of Court only SUMMARY OF IMPERIAL
applies to judgments of regional trial courts, Macalalag also 1. Neither the Regional Trial Court nor the Court of Appeals have
explains that an action for the annulment of judgment is similar jurisdiction to annul judgments or final orders and resolutions
in nature to an appeal-both are merely statutory. No right exists of quasi-judicial bodies, as a general rule. BP 129, in relation to
unless expressly granted by law. In Macalalag, we implied that Rule 47, grants the RTC and the CA the power to annul
the key to determining whether this remedy may be had and judgments of the MTC and the RTC, respectively.
where such action may be filed is to ascertain whether there is
a law expressly allowing a resort to this action before a particular 2. An action for the annulment of judgment is similar in nature
tribunal. This then requires an examination of the laws and rules to an appeal-both are merely statutory. No right exists unless
relevant to a specified quasi-judicial body. While it is correct that expressly granted by law. Thus, while the RTC and the CA
both the regional trial courts and the CA cannot take cognizance cannot take cognizance of a petition for annulment of
of a petition for annulment of judgment of a quasi-judicial body judgment of a quasi-judicial body under Rule 47, they may
under Rule 47 of the Rules of Court, they may nevertheless do nevertheless do so, if a law categorically provides for such a
so, if a law categorically provides for such a remedy and clearly remedy and clearly provides them with jurisdiction. Thus, if a
provides them with jurisdiction. statute vests jurisdiction to any court to annul the judgments
of quasi-judicial bodies, Rule 47 can be applied.
Applying this to the present case, we rule that there is no law at
the time pertinent to this case, which allows the filing of a 3. There is no law which allows the filing of a petition for
petition for annulment of judgment before the regional trial annulment of judgment before the RTC and the CA to set aside
courts and the CA to set aside a void judgment of the SEC on the a void judgment of the SEC on the basis of lack of jurisdiction.
basis of lack of jurisdiction. We hasten to emphasize, however, However, Rule 47 is applicable to judgments rendered by an
that this pertains only to cases filed prior to Republic Act No. RTC that is designated as a special commercial court.
8799 which transferred the jurisdiction over intra-corporate
disputes to regional trial courts designated as commercial CORRELATION WITH OTHER POST-JUDGMENT REMEDIES
courts. As to the latter, Rule 47 clearly applies. Recall that the remedy of new trial under Rule 37 must be availed
of before the judgment or order becomes final and executory. The
This leads to the conclusion that the RTC Petition is not the remedy of appeal must also be availed of before the judgment or
proper remedy to assail the SEC Decision. Since it is an action for order attains finality. While a petition for relief from judgment
the annulment of judgment, the RTC Petition cannot prosper as under Rule 38 may still be availed of even after the judgment or
we have already ruled that this remedy is not available in this order has become final and executory, this remedy is subject to the
particular case. However, the error in Cruz's RTC Petition does double period under Rules 38, Section 3 (i.e. filed within 60 days
not automatically warrant a dismissal of these proceedings. We after the petitioner learns of the judgment, etc. to be set aside, and
rule that the SEC, in nullifying the sale between Napal and Cruz not more than 6 months after such judgment, etc. was entered).
and in ordering the cancellation of Cruz's TCTs in favor of With Rule 47, even beyond the period to appeal or the further
NIDSLAND, overstepped its jurisdiction. The SEC Decision was periods under Rule 38, an aggrieved party is no longer bereft of any
rendered with grave abuse of discretion. further remedy by which to question and perhaps cause the
reversal of a judgment rendered against him.
To assail the validity of the sale, Imperial and NIDSLAND sought
to prove that the sale to Cruz was simulated. This involves the JUDGMENTS, FINAL ORDERS AND RESOLUTIONS ONLY
application of the law on sales. As we have already held in BACLARAN MARKETING CORPORATION v. SIBULO
Intestate Estate of Alexander T. Ty, the issue of whether a sale is G.R. No. 189881½April 19, 2017
simulated falls within the jurisdiction of ordinary civil courts. It
does not concern an adjudication of the rights of Imperial, In Guiang v. Co, we declared that an auction sale and a writ of
NIDSLAND and Napal under the Corporation Code and the execution are not final orders. Thus, they cannot be nullified
internal rules of the corporation. The resolution of these through an action for annulment of judgment, to wit:
questions requires the application of an entire gamut of laws
that goes well beyond the expertise of the SEC. It bears stressing that Rule 47 of the Rules of Civil Procedure
applies only to a petition to annul a judgment or final order
and resolution in civil actions, on the ground of extrinsic
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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

fraud or lack of jurisdiction or due process. A final order or purpose of the proceeding is to subject his interests therein to
resolution is one which is issued by a court which disposes the obligation or loan burdening the property.
of the subject matter in its entirety or terminates a
particular proceeding or action, leaving nothing else to be In actions in personam, the judgment is for or against a person
done but to enforce by execution what has been directly. Jurisdiction over the parties is required in actions in
determined by the court. The rule does not apply to an personam because they seek to impose personal responsibility
action to annul the levy and sale at public auction of or liability upon a person. In a proceeding in rem or quasi in rem,
petitioner's properties or the certificate of sale executed by jurisdiction over the person of the defendant is not a
the deputy sheriff over said properties. Neither does it prerequisite to confer jurisdiction on the court, provided that
apply to an action to nullify a writ of execution because a the latter has jurisdiction over the res. Jurisdiction over the res
writ of execution is not a final order or resolution, but is is acquired either (a) by the seizure of the property under legal
issued to carry out the mandate of the court in the process, whereby it is brought into actual custody of the law; or
enforcement of a final order or of a judgment. It is a judicial (b) as a result of the institution of legal proceedings, in which the
process to enforce a final order or judgment against the power of the court is recognized and made effective.
losing party.
Here, respondent filed a petition to annul the MeTC's July 26,
Corollarily, an order implementing a writ of execution issued 2006 Decision, which ordered him to vacate the premises of the
over certain real properties is also not a final order as it merely subject property and to pay the petitioner the accrued rentals
enforces a judicial process over an identified object. It does not thereon, in violation of the parties' lease contract.
involve an adjudication on the merits or determination of the
rights of the parties. Similar to a writ of execution, a writ of XXX For purposes of summons, this Court holds that the nature
possession is not a final order which may be annulled under Rule of a petition for annulment of judgment is in personam, on the
47. It is merely a judicial process to enforce a final order against basis of the following reasons:
the losing party. For this reason the Decision of the Antipolo
Court ordering the issuance of writ of possession is also not First, a petition for annulment of judgment is an original action,
amenable to an action for annulment of judgment. which is separate, distinct and independent of the case where
the judgment sought to be annulled is rendered. Thus,
PROPER REMEDY TO ASSAIL EXECUTION regardless of the nature of the original action in the decision
MEJIA-ESPINOZA v. CARIÑO sought to be annulled, be it in personam, in rem or quasi in rein,
G.R. No. 193397 ½ January 25, 2017 the respondent should be duly notified of the petition seeking
to annul the court's decision over which the respondent has a
The proper remedy is to file a motion to nullify the writ of direct or indirect interest.
execution and notices of levy and sale before the MTC, instead
of instituting a new complaint before the RTC. This is because Second, a petition for annulment of judgment and the court's
the execution of a decision is merely incidental to the subsequent decision thereon will affect the parties alone. Any
jurisdiction already acquired by a trial court. As we explained in judgment therein will eventually bind only the parties properly
Deltaventures Resources, Inc. v. Cabato: impleaded. In this case, had the RTC granted the respondent's
petition, the MeTC's July 26 2006 judgment would have been
Jurisdiction once acquired is not lost upon the instance of declared a nullity. This would have resulted to the following
the parties but continues until the case is terminated. consequences: as to the respondent, he would no longer be
Whatever irregularities attended the issuance and required to pay the rentals and vacate the subject property; and,
execution of the alias writ of execution should be referred as to the petitioner, she would be deprived of her right to
to the same administrative tribunal which rendered the demand the rentals and to legally eject the respondent. Clearly,
decision. This is because any court which issued a writ of only the parties' interests would have been affected.
execution has the inherent power, for the advancement of
justice, to correct errors of its ministerial officers and to SUMMARY: CHARACTERISTICS OF PETITION FOR ANNULMENT OF
control its own processes. JUDGMENT
1. It is an EXTRAORDINARY REMEDY that is equitable in
NATURE OF PETITION FOR ANNULMENT OF JUDGMENT FOR THE character and is permitted only in exceptional cases.
PURPOSE OF SUMMONS
FRIAS v. ALCAYDE 2. It is not an appellate remedy but is an ORIGINAL ACTION
G.R. No. 194262 ½ February 28, 2018 that is independent of the case where the judgment to be
annulled was rendered.
For a proper perspective, it is crucial to underscore the necessity
of determining first whether the action subject of this appeal is 3. It is an ACTION IN PERSONAM, which means that
in personam, in rem, or quasi in rem because the rules on service summons must be served upon the respondent unless he
of summons under Rule 14 apply according to the nature of the voluntarily submits to the jurisdiction of the court by his
action. personal appearance in the action.

An action in personam is a proceeding to enforce personal rights Sec. 2. Grounds for annulment. The annulment may be based
and obligations brought against the person and is based on the only on the grounds of extrinsic fraud and lack of jurisdiction.
jurisdiction of the person. Actions in rem are actions against the Extrinsic fraud shall not be a valid ground if it was availed of, or
thing itself. They are binding upon the whole world. In an action could have been availed of, in a motion for new trial or petition
quasi in rem, an individual is named as defendant and the for relief. (n)
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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

GROUNDS void compromise agreement, the trial court had no jurisdiction

Under Section 2, annulment of judgment may be filed on two to render a judgment based thereon.
grounds: (1) that the judgment was secured through extrinsic fraud;
or (2) that the judgment is void for lack of jurisdiction. For extrinsic The highly reprehensible conduct of attorney-in-fact in the civil
fraud, it is not considered a valid or viable ground for annulment of case constituted an extrinsic or collateral fraud by reason of
judgment if it was availed of, or could have been availed of, in a which the judgment rendered thereon should have been struck
motion for new trial or petition for relief. down. Not all the legal semantics in the world can becloud the
unassailable fact that petitioner was deceived and betrayed by
EXTRINSIC FRAUD its attorney-in-fact. The latter deliberately concealed from
Fraud is regarded as extrinsic when it prevents a party from having petitioner, her principal, that a compromise agreement had
a trial or from presenting his entire case to the court, or where it been forged with the end result that a portion of petitioner's
operates upon matters pertaining not to the judgment itself but to property was sold literally for a song, for P26,000. Thus
the manner in which it is procured (ALARCON versus COURT OF completely kept unaware of its agent's artifice, petitioner was
APPEALS, ET AL., G.R. No. 126802, January 28, 2000). not accorded even a fighting chance to repudiate the settlement
so much so that the judgment based thereon became final and
Extrinsic fraud refers to any fraudulent act of the prevailing party in executory.
the litigation which is committed outside of the trial of the case,
whereby the unsuccessful party has been prevented from For sure, the CA restricted the concept of fraudulent acts within
exhibiting fully his case, by fraud or deception practiced on him by too narrow limits. Fraud may assume different shapes and be
his opponent (PHILIPPINE TOURISM AUTHORITY versus PHILGOLF, committed in as many different ways and here lies the danger
G.R. No. 176628, March 19, 2012). of attempting to define fraud. For man in his ingenuity and
fertile imagination will always contrive new schemes to fool the
The overriding consideration when extrinsic fraud is alleged is that unwary.
the fraudulent scheme of the prevailing litigant prevented the
petitioner from having his day in court. Extrinsic fraud cannot be PHILIPPINE TOURISM AUTHORITY v. PHILGOLF
presumed from the recitals alone of the pleading but needs to be G.R. No. 176628 ½ March 19, 2012
particularized as to the facts constitutive of it (PINAUSUKAN
SEAFOOD HOUSE versus FAR EAST BANK, G.R. No. 159926, January FACTS: Petitioner Philippine Tourism Authority (PTA entered
20, 2014). into a contract with Atlantic Erectors, Inc. (AEI) for the
construction of the Intramuros Golf Course Expansion Projects
COSMIC LUMBER v. COURT OF APPEALS (PAR 60-66) for a contract price of P57,954,647.94. The civil
G.R. No. 114311 ½ November 29, 1996 works of the project commenced. AEI entered into a sub-
contract agreement with PHILGOLF to build the golf course
FACTS: Cosmic Lumber owns a piece of land occupied by some amounting to P27,000,000.00.
squatters. To cause the latter's ejectment, the former, through
its general manager, executed a special power of attorney PHILGOLF filed a collection suit against PTA amounting to
authorizing Estrada, its attorney-in-fact, to initiate, institute and P11,820,550.53, plus interest, for the construction of the golf
file in any court an action for ejectment. Estrada thus filed a case course. PTA filed two motions for extension of time to file an
to recover a portion of this property from its occupants before answer which the RTC both granted. Despite the RTC's liberality,
the RTC. Subsequently, Estrada entered into a compromise PTA still failed to answer the complaint. Hence, the RTC
agreement with the occupants whereby the former sold the rendered a judgment of default. The PTA seasonably appealed
property to the latter for only P26,640.00 computed at P80.00 the case to the CA. But before the appeal of PTA could be
per square meter. The compromise agreement was approved by perfected, PHILGOLF already filed a motion for execution
the court and judgment was rendered by the court in pending appeal with the RTC. The RTC granted the motion and a
accordance therewith. The judgment became final and writ of execution pending appeal was issued against PTA. A
executory but because it was not executed within 5 years from notice of garnishment was issued against PTA's bank account at
the date of its finality, it became dormant. The occupants filed a the Land Bank of the Philippines, NAIA-BOC Branch to fully
complaint to revive the judgment. Cosmic Lumber asserts that it satisfy the judgment. PTA filed a petition for certiorari with the
was only when summons in the case to revive the judgment that CA, imputing grave abuse of discretion on the part of the RTC for
it came to know of the compromise agreement. It then filed a granting the motion for execution pending appeal. The CA ruled
petition to annul the judgment, contending that entering into in favor of PTA and set aside the order granting the motion for
the compromise agreement was an ultra vires act on the part of execution pending appeal. PTA withdrew its appeal of the RTC
Estrada. decision and, instead, filed a petition for annulment of judgment
under Rule 47 of the Rules of Court. The petition for annulment
The Court of Appeals dismissed the action on the premise that of judgment was premised on the argument that the gross
the alleged nullity of the compromise judgment is not a viable negligence of PTA's counsel prevented the presentation of
ground for annulment. It essence, the fraud committed in the evidence before the RTC. The CA dismissed the petition for
case was by Cosmic Lumber's own representative, not by the annulment of judgment for lack of merit.
adverse party.
ISSUE: Whether annulment of judgment under Rule 47 is a
ISSUE: Whether the judgment can be annulled. proper remedy.

RULING: The petition to annul the decision of the trial court in RULING: NO. The Rules of Court specifically provides for
civil case before the CA was proper. Emanating as it did from a deadlines in actions before the court to ensure an orderly
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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

disposition of cases. PTA cannot escape these legal technicalities Lamberto to sell the subject land to her. Accordingly, Sebastian
by simply invoking the negligence of its counsel. The rule is that requested the execution of such document from Lamberto, who
"a client is bound by the acts, even mistakes, of his counsel in promised to do so, but failed to comply.
the realm of procedural technique, and unless such acts involve
gross negligence that the claiming party can prove, the acts of a Sebastian latter found out through an inquiry with the Register
counsel bind the client as if it had been the latter's acts." It is not of Deeds that Nelson executed an Affidavit of Loss dated
disputed that the summons together with a copy of the September 23, 2013 attesting to the loss of owner's duplicate
complaint was personally served upon, and received by PTA copy of OCT No. P- 41566, that a petition for the issuance of a
through its Corporate Legal Services Department, on October second owner's copy of OCT No. P-41566 was filed by Nelson
10, 2003. Thus, in failing to submit a responsive pleading within and his spouse and that the RTC promulgated a Decision
the required time despite sufficient notice, the RTC was correct granting said petition and, consequently, ordered the issuance
in declaring PTA in default. of a new owner's duplicate copy of OCT No. P-41566 in favor of
the Cruz spouses.
Extrinsic fraud refers to any fraudulent act of the prevailing party
in the litigation which is committed outside of the trial of the Sebastian filed a petition for annulment of judgment before the
case, whereby the unsuccessful party has been prevented from CA on the ground of lack of jurisdiction. Essentially, she
exhibiting fully his case, by fraud or deception practiced on him contended that the RTC had no jurisdiction to take cognizance
by his opponent. Under the doctrine of this cited case, we do not of LRC Case No. 421 as the duplicate copy of OCT No. P-41566 -
see the acts of PTA's counsel to be constitutive of extrinsic fraud. which was declared to have no further force in effect - was never
The records reveal that the judgment of default was sent via lost, and in fact, is in her possession all along. The CA did not give
registered mail to PTA's counsel. However, PTA never availed of due course to Sebastian's petition and, consequently, dismissed
the remedy of a motion to lift the order of default. the same outright. It held that the compliance by Cruz with the
jurisdictional requirements of publication and notice of hearing
Since the failure of PTA to present its evidence was not a product clothed the RTC with jurisdiction to take cognizance over the
of any fraudulent acts committed outside trial, the RTC did not action in rem, and constituted a constructive notice to the whole
err in declaring PTA in default. PTA's appropriate remedy was world of its pendency. As such, personal notice to Sebastian of
only to appeal the RTC decision. Annulment of judgment under the action was no longer necessary.
Rule 47 of the Rules of Court is a recourse equitable in character
and allowed only in exceptional cases where the ordinary ISSUE: Was the CA correct in denying due course to Sebastian's
remedies of new trial, appeal, petition for relief or other petition for annulment of judgment?
appropriate remedies are no longer available through no fault
of petitioner. In this case, appeal was an available remedy. The RULING: NO. The CA erred in denying due course to Sebastian's
Court is actually at a loss why PTA had withdrawn a properly filed petition for annulment of judgment and, resultantly, in
appeal and substituted it with another petition, when PTA could dismissing the same outright. The fact of loss or destruction of
have merely raised the same issues through an ordinary appeal. the owner's duplicate certificate of title is crucial in clothing the
RTC with jurisdiction over the judicial reconstitution
LACK OF JURISDICTION proceedings. In Spouses Paulino v. CA, the Court reiterated the
Lack of jurisdiction as a ground for annulment of judgment refers rule that when the owner's duplicate certificate of title was not
to either: (1) lack of jurisdiction over the person of the defending actually lost or destroyed, but is in fact in the possession of
party, or (2) lack of jurisdiction over the subject matter of the claim. another person, the reconstituted title is void because the court
that rendered the order of reconstitution had no jurisdiction
In case of absence, or lack, of jurisdiction, a court should not take over the subject matter of the case, viz.:
cognizance of the case. Thus, the prevailing rule is that where there
is want of jurisdiction over a subject matter, the judgment is In reconstitution proceedings, the Court has repeatedly
rendered null and void. A void judgment is in legal effect no ruled that before jurisdiction over the case can be validly
judgment, by which no rights are divested, from which no right can acquired, it is a condition sine qua non that the certificate
be obtained, which neither binds nor bars any one, and under of title has not been issued to another person. If a
which all acts performed and all claims flowing out are void. It is not certificate of title has not been lost but is in fact in the
a decision in contemplation of law and, hence, it can never become possession of another person, the reconstituted title is void
executory (SEBASTIAN versus SPOUSES CRUZ, G.R. No. 220940, and the court rendering the decision has not acquired
March 20, 2017). jurisdiction over the petition for issuance of new title. The
courts simply have no jurisdiction over petitions by (such)
SEBASTIAN v. SPOUSES CRUZ third parties for reconstitution of allegedly lost or destroyed
G.R. No. 220940 ½ March 20, 2017 titles over lands that are already covered by duly issued
subsisting titles in the names of their duly registered
FACTS: Nelson Cruz is the registered owner of a parcel of land owners. The existence of a prior title ipso facto nullifies the
covered by OCT No. P415666. Nelson, through his father and reconstitution proceedings. The proper recourse is to assail
attorney-in-fact, Lamberto, sold the subject lot in favor of directly in a proceeding before the regional trial court the
Sebastian, as evidenced by a Deed of Absolute Sale. Upon validity of the Torrens title already issued to the other
Sebastian's payment of the purchase price, Lamberto then person.
surrendered to her the possession of the subject land, and OCT
No. P-41566. However, upon her presentment of the requisite In this case, Sebastian's petition for annulment of judgment
documents to the Register of Deeds, the latter directed her to before the CA clearly alleged that, contrary to the claim of
secure a Special Power of Attorney executed by Cruz authorizing Spouses Cruz in LRC Case No. 421, the owner's duplicate copy of
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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

OCT No. P41566 was not really lost, as the same was
surrendered to her by Lamberto, Nelson's father and attorney- RULING: First, Antonino cannot pursue the annulment of the
in fact, and was in her possession all along. Should such various issuances of the RTC in order to avoid the adverse
allegation be proven following the conduct of further consequences of their becoming final and executory because of
proceedings, then there would be no other conclusion than that her neglect in utilizing the ordinary remedies available. Antonino
the RTC had no jurisdiction over the subject matter of LRC Case did not proffer any explanation for her failure to appeal the
No. 421. As a consequence, the Decision dated March 27, 2014 RTC's Orders.
of the RTC in the said case would then be annulled on the ground
of lack of jurisdiction. Secondly, a petition for annulment of judgment can only be
based on "extrinsic fraud" and "lack of jurisdiction" and cannot
“GRAVE ABUSE OF DISCRETION" IS NOT EQUIVALENT TO LACK OF prosper on the basis of "grave abuse of discretion." "Lack of
JURISDICTION FOR THE PURPOSE OF RULE 47 jurisdiction" as a ground for the annulment of judgments
ANTONINO vs. REGISTER OF DEEDS pertains to lack of jurisdiction over the person of the defending
G.R. No. 185663 | June 20, 2012 party or over the subject matter of the claim. It does not
contemplate "grave abuse of discretion" considering that
FACTS: Petitioner Antonino had been leasing a residential "jurisdiction" is different from the exercise thereof.
property located at Makati City and owned by private
respondent Tan Tian Su. Under the lease contract, Antonino was THIRD GROUND BASED ON JURISPRUDENCE – LACK OF DUE
accorded with the right of first refusal in the event Su would PROCESS
decide to sell the subject property. The parties executed a While under Section 2, Rule 47 of the Rules of Court a Petition for
document denominated as Undertaking Agreement where Su Annulment of Judgment may be based only on the grounds of
agreed to sell to Antonino the subject property. However, in extrinsic fraud and lack of jurisdiction, jurisprudence recognizes
view of a disagreement as to who between them would shoulder lack of due process as additional ground to annul a judgment.
the payment of the capital gains tax, the sale did not proceed as
intended. On July 9, 2004, Antonino filed a complaint against Su DIONA vs. BALANGUE
with the Regional Trial Court of Makati for the reimbursement G.R. No. 173559 | January 7, 2013
of the cost of repairs on the subject property and payment of
damages. Later that same day, Antonino filed an amended FACTS: Respondents Balangue, et al. obtained a loan from
complaint to enforce the Undertaking Agreement and compel Leticia Diona which was secured by a Real Estate Mortgage.
Su to sell to her the subject property. When the debt became due, respondents failed to pay and thus,
Diona filed with the RTC a Complaint praying that respondents
In an Order dated December 8, 2004, the RTC dismissed be ordered to pay the principal obligation with interest at the
Antonino's complaint on the grounds of improper venue and rate of 12% per annum. The RTC ruled in Diona's favor and
non-payment of the appropriate docket fees. According to the ordered the respondents, among others, to pay the principal
RTC, Antonino's complaint is one for specific performance, obligation plus interest rate of 5% per month. Respondents filed
damages and sum of money, which are personal actions that with the CA a Petition for Annulment of Judgment contending
should have been filed in the court of the place where any of the that the portion of the RTC Decision granting petitioner 5%
parties resides. Antonino and Su reside in Muntinlupa and monthly interest rate is in gross violation of Section 3(d) of Rule
Manila, respectively, thus Makati City is not the proper venue. 9 of the Rules of Court and of their right to due process as the
The RTC also ruled that it did not acquire jurisdiction over loan did not carry any interest. The CA ruled in favor of the
Antonino's complaint in view of her failure to pay the correct respondents and concluded that the awarded rate of interest is
amount of docket fees. void for being in excess of the relief sought in the Complaint.
Diona argues that the remedy of annulment of judgment, based
On January 3, 2005, Antonino filed a Motion for on extrinsic fraud or lack of jurisdiction, is improper since the
Reconsideration, claiming that her complaint is a real action and allegations of the respondents do not spell out any of such
the location of the subject property is determinative of its grounds.
venue. This was denied by the RTC in an Order dated January 6,
2005, holding that there was non-compliance with the rule on ISSUE: Is the remedy of annulment of judgment proper? YES.
motions. Antonino filed a Motion for Reconsideration dated
January 21, 2005, which the RTC denied. HELD: While under Section 2, Rule 47 of the Rules of Court a
Petition for Annulment of Judgment may be based only on the
Antonino filed with the CA a petition for annulment of judgment. grounds of extrinsic fraud and lack of jurisdiction, jurisprudence
Antonino prayed for the nullification of the aforementioned recognizes lack of due process as additional ground to annul a
Orders and Joint Resolution by the RTC. According to Antonino, judgment. A final and executory judgment may still be set aside
the RTC committed grave abuse of discretion amounting to lack if, upon mere inspection thereof, its patent nullity can be shown
of jurisdiction when it ruled that her action for the enforcement for having been issued without jurisdiction or for lack of due
of the Undertaking Agreement is personal and when it deprived process of law.
her of an opportunity to pay the correct amount of docket fees.
The RTC's grave abuse of discretion, Antonino posited, was Furthermore, it is settled that courts cannot grant a relief not
likewise exhibited by its strict application of the rules on motions prayed for in the pleadings or in excess of what is being sought
and summary denial of her motion for reconsideration. by the party. They cannot also grant a relief without first
ascertaining the evidence presented in support thereof. Due
ISSUE: Is the remedy of annulment proper on the ground of process considerations require that judgments must conform to
grave abuse of discretion? NO.
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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

and be supported by the pleadings and evidence presented in As to the type The petition assails Certiorari is
court. of judgment only final judgments or available against
or orders that orders. both final and
In the case at bench, the grant of 5% monthly interest is way can be interlocutory
beyond the 12% per annum interest sought in the Complaint and assailed orders.
smacks of violation of due process. It is not supported both by
the allegations in the pleadings and the evidence on record. The It is available in the It is available if there
Real Estate Mortgage executed by the parties does not include proper cases for which is no appeal, or any
any provision on interest and the Complaint before the RTC the ordinary remedies plain, speedy, and
As to the
includes the interest at the rate of 12% per annum. Clearly, the of new trial, appeal, adequate remedy in
extraordinary
RTC's award of 5% monthly interest or 60% per annum lacks petition for relief or the ordinary course
nature of the
basis and disregards due process. other appropriate of law.
remedy
remedies are no longer
ANNULMENT OF JUDGMENT VERSUS CERTIORARI available through no
ANNULMENT OF CERTIORARI UNDER fault of the petitioner.
JUDGMENT RULE 65 It is not enough that Grave abuse of
As to nature Both remedies are considered original, not there is an abuse of discretion
of the action appellate, actions. jurisdictional amounting to lack or
As to Both remedies are available even in cases discretion. It must be excess of
As to nature
availability where the judgment to be assailed has already shown that the court jurisdiction would
of lack of
where attained finality. should not have taken be enough to
jurisdiction as
judgment has cognizance of the case sanction invocation
a ground
attained because the law does of certiorari as a
finality not confer it with remedy.
As to the Both are considered extraordinary remedies. jurisdiction over the
nature of the subject matter.
remedy Annulment may set Certiorari may
Annulment can be Certiorari is limited aside judgments of correct errors of
As to
based on extrinsic to grounds of lack of trial courts only. trial courts and
respondents
fraud, lack of jurisdiction, excess quasi-judicial
As to grounds jurisdiction and lack of of jurisdiction and bodies.
for filing due process. grave abuse of
discretion ANNULMENT OF JUDGMENT VERSUS RELIEF FROM JUDGMENT
amounting to the ANNULMENT OF RELIEF FROM
same. JUDGMENT JUDGMENT
If based on extrinsic The petition shall be As to nature It is an original It is an original action
fraud, the action must filed not later than of the action action filed before filed before the same
be filed within 4 years 60 days from notice and the court a higher court. court that rendered the
from its of the judgment, before the judgment from which
discovery; and if based order or resolution. remedy is relief is sought.
on lack of jurisdiction, In case a motion for filed
As to period
before it is barred by reconsideration or Annulment can be The petition can be
for filing
laches or estoppel. new trial is timely based on extrinsic based on extrinsic fraud
filed, the 60 day As to grounds fraud, lack of but can also be based on
period shall be for filing jurisdiction and accident,
counted from notice lack of due mistake and excusable
of the denial of said process. negligence.
motion. If based on The petition must be
The Regional Trial The Regional Trial extrinsic fraud, the filed within 60 days after
Court has exclusive Court, Court of action must be the petitioner learns of
original jurisdiction Appeals, and the filed within 4 years the judgment to be set
over an action to annul Supreme Court have As to period from its discovery; aside, and not more than
a judgment of a concurrent original for filing and if based on 6 months after such
Municipal Trial Court. jurisdiction over lack of jurisdiction, judgment was entered.
As to court
The Court of Appeals petitions for before it is barred
with
has exclusive original certiorari. by laches or
jurisdiction
jurisdiction over an estoppel.
action to annul a Extrinsic fraud Extrinsic fraud can be
As to
judgment of a Regional shall not be a valid raised as a ground for
limitation on
Trial Court. ground if it was relief from judgment
raising
availed of, or regardless of whether it
extrinsic
could have been was raised or could have
fraud as a
availed of, in a been raised as a ground
ground
motion for new for new trial.
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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

trial or petition for Sec. 3. Period for filing action. If based on extrinsic fraud, the
relief. action must be filed within four (4) years from its discovery; and
As to the Annulment can be Relief from judgment if based on lack of jurisdiction, before it is barred by laches or
courts in had only before can be obtained only in estoppel. (n)
which the the RTC or the CA. the MTC or the RTC.
remedies are PERIOD FOR FILING
available The applicable period for filing the petition for annulment of
Annulment is A petition for relief, judgment depends upon the ground. If based on extrinsic fraud, the
neither an being filed in the same petition must be filed within four years from its discovery and if
As to whether appellate recourse court which rendered based on lack of jurisdiction, before it is barred by laches or
the remedy is nor a continuation the judgment, can be estoppel (HEIRS OF CULLADO versus GUTIERREZ, G.R. No. 212938,
a progression or progression of treated as a progression July 30, 2019). Thus, if the ground relied upon is lack of jurisdiction,
of the same the same case, as of the same case but is an action to annul a judgment is, in effect, imprescriptible.
case being in fact the case it not an appellate
assailed seeks to annul is recourse.
Sec. 4. Filing and contents of petition. The action shall be
already final and
commenced by filing a verified petition alleging therein with
executory.
particularity the facts and the law relied upon for annulment, as
For purposes of For purposes of applying
well as those supporting the petitioner's good and substantial
the application of Rule 38, mistake (or
cause of action or defense, as the case may be.
Rule 47, is that gross negligence) can be
mistake and gross of such nature as to
The petition shall be filed in seven (7) clearly legible copies,
negligence cannot cause substantial
together with sufficient copies corresponding to the number of
be equated to the injustice to one of the
respondents. A certified true copy of the judgment or final order
extrinsic fraud parties. It may be so
As to or resolution shall be attached to the original copy of the
that Rule 47 palpable that it borders
treatment of petition intended for the court and indicated as such by the
requires to be the on extrinsic fraud (CITY
mistake and petitioner.
ground for an OF DAGUPAN versus
gross
annulment of MARAMBA, G.R. No.
negligence The petitioner shall also submit together with the petition
judgment 174411, July 02, 2014).
affidavits of witnesses or documents supporting the cause of
(PINAUSUKAN
action or defense and a sworn certification that he has not
SEAFOOD HOUSE
theretofore commenced any other action involving the same
versus FAR EAST
issues in the Supreme Court, the Court of Appeals or different
BANK, G.R. No.
divisions thereof, or any other tribunal or agency; if there is such
159926,
other action or proceeding, he must state the status of the
January 20, 2014).
same, and if he should thereafter learn that a similar action or
A judgment of If granted, the court shall proceeding has been filed or is pending before the Supreme
annulment shall set aside the judgment, Court, the Court of Appeals, or different divisions thereof, or any
set aside the etc. complained of upon other tribunal or agency, he undertakes to promptly inform the
questioned such terms as may be
aforesaid courts and other tribunal or agency thereof within five
judgment, etc. just. Thereafter the case
(5) days therefrom.(n)
and render the shall stand as if such
same null and judgment, etc. had never
STATUTORY REQUIREMENTS
void, without been rendered, issued,
prejudice to the or taken. The court shall BACLARAN MARKETING CORPORATION vs. NIEVA
original action then proceed to hear G.R. No. 189881 | April 19, 2017
being refiled in the and determine the case
proper court. as if a timely motion for a Given the extraordinary nature and the objective of the remedy
of annulment of judgment or final order," a petitioner must
new trial had been
As to effect of However, where granted by it. comply with the statutory requirements as set forth under Rule
grant the judgment or 47. These are:
final order or
(1) The remedy is available only when the petitioner can
resolution is set
no longer resort to the ordinary remedies of new trial,
aside on the
appeal, petition for relief or other appropriate
ground of extrinsic
fraud, the court remedies through no fault of the petitioner;
may on motion (2) The grounds for the action of annulment of judgment
order the trial are limited to either extrinsic fraud or lack of
jurisdiction;
court to try the
case as if a timely (3) The action must be filed within four years from the
motion for new discovery of the extrinsic fraud; and if based on lack of
jurisdiction, must be brought before it is barred by
trial had been
granted therein. laches or estoppel; and
(4) The petition must be verified, and should allege with
particularity the facts and the law relied upon for
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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

annulment, as well as those supporting the petition has substantial merit. In that regard, however, the
petitioner's good and substantial cause of action or requirements are separate from each other, for only by the
defense, as the case may be. affidavits of the witnesses who had competence about the
circumstances constituting the extrinsic fraud can the petitioner
In addition to the foregoing, the last paragraph of Section 4 also detail the extrinsic fraud being relied upon as the ground for its
requires a certification against forum-shopping. This petition for annulment. This is because extrinsic fraud cannot be
requirement is proper inasmuch as the action under Rule 47 is presumed from the recitals alone of the pleading but needs to
an original action and the petition thus filed is, in a sense, an be particularized as to the facts constitutive of it. The distinction
initiatory pleading. between the verification and the affidavits is made more
pronounced when an issue is based on facts not appearing of
AFFIDAVITS record. In that instance, the issue may be heard on affidavits or
The affidavits of witnesses or documents supporting the cause of depositions presented by the respective parties, subject to the
action or defense must be attached to the petition. This court directing that the matter be heard wholly or partly on oral
requirement is similar to the ones in Rule 37, Section 2 on new trial testimony or depositions.
and Rule 38, Section 3 on petition for relief. The requirement of
"alleging therein with particularity the facts and the law relied upon The substantive defect related to the supposed neglect of Atty.
for annulment, as well as those supporting the petitioner's good Villaflor to keep track of the case, and to his failure to apprise
and substantial cause of action or defense, as the case may be" Pinausukan of the developments in the case, which the CA did
refers to an affidavit of merits. not accept as constituting extrinsic fraud, because – Based solely
on these allegations, we do not see any basis to give due course
FAILURE TO INCLUDE AFFIDAVITS IS FATAL to the petition as these allegations do not speak of the extrinsic
PINAUSUKAN SEAFOOD HOUSE vs. FAR EAST BANK fraud contemplated by Rule 47. Notably, the petition's own
G.R. No. 159926 | January 20, 2014 language states that what is involved in this case is mistake and
gross negligence of petitioner's own counsel. The petition even
Pinausukan posits that the requirement for attaching the suggests that the negligence of counsel may constitute
affidavits of witnesses to the petition for annulment should be professional misconduct (but this is a matter for lawyer and
relaxed; that even if Roxanne had executed the required client to resolve). What is certain, for purposes of the application
affidavit as a witness on the extrinsic fraud, she would only of Rule 47, is that mistake and gross negligence cannot be
repeat therein the allegations already in the petition, thereby equated to the extrinsic fraud that Rule 47 requires to be the
duplicating her allegations under her oath XXX. ground for an annulment of judgment.

The need for particularity cannot be dispensed with because

averring the circumstances constituting either fraud or mistake Sec. 5. Action by the court. Should the court find no substantial
with particularity is a universal requirement in the rules of merit in the petition, the same may be dismissed outright with
pleading. The purpose of these requirements of the sworn specific reasons for such dismissal. Should prima facie merit be
verification and the particularization of the allegations of the found in the petition, the same shall be given due course and
extrinsic fraud in the petition, of the submission of the certified summons shall be served on the respondent. (n)
true copy of the judgment or final order or resolution, and of the
attachment of the affidavits of witnesses and documents Sec. 6. Procedure. The procedure in ordinary civil cases shall be
supporting the cause of action or defense is to forthwith bring observed. Should trial be necessary, the reception of the
all the relevant facts to the CA's cognizance in order to enable evidence may be referred to a member of the court or a judge of
the CA to determine whether or not the petition has substantial a Regional Trial Court. (n)
merit. Should it find prima facie merit in the petition, the CA
shall give the petition due course and direct the service of
ACTION ON THE PETITION
summons on the respondent; otherwise, the CA has the
Under Section 5, Rule 47 of the Rules of Court, it is incumbent that
discretion to outrightly dismiss the petition for annulment. A
when a court finds no substantial merit in a petition for annulment
review of the dismissal by the CA readily reveals that
of judgment, it may dismiss the petition outright but the "specific
Pinausukan's petition for annulment suffered from procedural
reasons for such dismissal" shall be clearly set out (ALVAREZ versus
and substantive defects.
FORMER 12TH DIVISION, COURT OF APPEALS, G.R. No. 192472, June
3, 2019).
The procedural defect consisted in Pinausukan's disregard of the
requirement mentioned earlier consisting in its failure to submit
It has been held that the Court of Appeals, or the Regional Trial
together with the petition the affidavits of witnesses or
Court for that matter, cannot casually dismiss a petition for
documents supporting the cause of action. It is true that the
annulment based on a blanket invocation of the presumption of
petition, which narrated the facts relied upon, was verified
regularity in the performance of official duties, considering that, as
under oath by Roxanne. However, the submission of the
case law holds, where the official act is irregular on its face, the
affidavits of witnesses together with the petition was not
presumption cannot arise (CARREON versus AGUILLON, G.R. No.
dispensable for that reason.
240108, June 29, 2020).
Pinausukan's failure to include the affidavits of witnesses was
Pursuant to Sections 5 and 6 of Rule 47, should prima facie merit be
fatal to its petition for annulment. Worthy to reiterate is that the
found in the petition, the court is required to give due course to it,
objective of the requirements of verification and submission of
cause the service of summons, and conduct trial to determine its
the affidavits of witnesses is to bring all the relevant facts that
merits. Should trial be necessary, the reception of the evidence may
will enable the CA to immediately determine whether or not the
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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

be referred to a member of the court or a judge of a Regional Trial Section 8. Suspension of prescriptive period. - The prescriptive
Court. period for the refiling of the aforesaid original action shall be
deemed suspended from the filing of such original action until
Sec. 7. Effect of judgment. A judgment of annulment shall set the finality of the judgment of annulment. However, the
aside the questioned judgment or final order or resolution and prescriptive period shall not be suspended where the extrinsic
render the same null and void, without prejudice to the original fraud is attributable to the plaintiff in the original action.
action being refiled in the proper court. However, where the
judgment or final order or resolution is set aside on the ground SUSPENSION OF PRESCRIPTIVE PERIOD
of extrinsic fraud, the court may on motion order the trial court As a general rule, while the action for annulment is pending, the
to try the case as if a timely motion for new trial had been prescriptive period for the refiling of the original action as
granted therein. (n) mentioned in Section 7 is suspended until the finality of the
judgment of annulment. By way of exception, the prescriptive
EFFECT OF JUDGMENT OF ANNULMENT period shall not be suspended where the extrinsic fraud is
Where the judgment is set aside on the ground of extrinsic fraud, attributable to the plaintiff in the original action. This exception, as
the court may on motion order the trial court to try the case as if a provided in the last sentence of Section 8, is fair and reasonable.
timely motion for new trial had been granted therein. The plaintiff should not benefit from the suspension of the
prescriptive period if he is the party guilty of extrinsic fraud.
Where the judgment is set aside on the ground of lack of
jurisdiction, the court shall set aside the questioned judgment and Sec. 9. Relief available. The judgment of annulment may
render the same null and void, without prejudice to the original include the award of damages, attorney's fees and other relief.
action being refiled in the proper court. If the questioned judgment or final order or resolution had
already been executed, the court may issue such orders of
DISTINCTIONS restitution or other relief as justice and equity may warrant
EXTRINSIC FRAUD LACK OF JURISDICTION under the circumstances. (n)
Both are grounds for the filing of a petition for annulment of
judgment.
RELIEF AVAILABLE TO PETITIONER
If the petition under Rule 47 If the petition under Rule 47 is Section 9 provides the relief available to the petitioner in an action
is based on extrinsic fraud, it based on lack of jurisdiction, it to annul judgment. The judgment of annulment may include the
must be filed within four must be filed before it is barred award of damages, attorney's fees and other relief.
years from its discovery. by laches or estoppel.
If a party had already availed For lack of jurisdiction, there is The second part of the provision also governs the situation where
himself of motion for new no barring effect if the ground the judgment that is annulled had already been executed. In such a
trial under Rule 37 or a had been raised previously. For case, the court may issue orders of restitution or other relief as
petition for relief from as long as the petitioner is justice and equity may warrant. The principle here is similar to Rule
judgment under neither deemed guilty of laches 39, Section 5 which speaks of cases of judgments executed pending
Rule 38, raising the issue of nor placed in estoppel, nothing appeal and the appealed judgment is thereafter reversed. Where
extrinsic fraud with the trial prevents him from seeking the executed judgment is reversed totally or partially, or annulled,
court, he is effectively barred annulment based on this on appeal or otherwise, the trial court may, on motion, issue such
from raising the same issue in ground. Lack of jurisdiction orders of restitution or reparation of damages as equity and justice
a petition for annulment of over the subject matter can be may warrant under the circumstances.
judgment. raised at any time.
Where the judgment is set Where the judgment is set
aside on the ground of aside on the ground of lack of Sec. 10. Annulment of judgments or final orders of Municipal
extrinsic fraud, the court may jurisdiction, the court shall set Trial Courts. An action to annul a judgment or final order of a
on motion order the trial aside the questioned judgment Municipal Trial Court shall be filed in the Regional Trial Court
court to try the case as if a and render the same null and having jurisdiction over the former. It shall be treated as an
timely motion for new trial void, without prejudice to the ordinary civil action and Sections 2, 3, 4, 7, 8 and 9 of this Rule
had been granted therein. original action being refiled in shall be applicable thereto. (n)
the proper court.
Extrinsic fraud is also a Lack of jurisdiction is not a ANNULMENT OF JUDGMENT OF THE MTC
ground for a motion for new ground for a motion for new As previously noted, annulment of judgment of the MTCs properly
trial. trial because this remedy fall under the rule on jurisdiction of the RTC, it being an action
presupposes that the court had which does not belong to the jurisdiction of any other courts
jurisdiction. (Section 19[6], BP 129). Furthermore, annulment of judgment is
Extrinsic fraud is not a ground Lack of jurisdiction over the also an action the subject matter of which is incapable of pecuniary
for a motion to dismiss. subject matter is a valid ground estimation (Section 19[1], BP 129).
Conversely, fraud, in general, for a motion to dismiss under
can be raised as an Rule 15, Section 12. Lack of Of particular note is how the action for annulment of judgment of
affirmative defense in the jurisdiction over the person of the MTC is treated. The provision is clear that it shall be treated as
answer. the defendant, on the other an ordinary civil action. While Sections 2, 3, 4, 7, 8 and 9 of Rule 47
hand, is an affirmative defense are made specifically applicable to annulment before the RTC
under Rule 8, Section 12. treated ordinary civil action, Sections 1 (for obvious reasons), 5 and
6 are not. This means that the RTC is not allowed to dismiss the
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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

action outright but should issue summons to the defendant and POST JUDGMENT REMEDIES – PART 3 (A)
require him to file and serve his answer. COMPILATION OF COMMENTS AND CASES
(Riano, Iñigo & Espejo)
Furthermore, if there is trial, the court cannot delegate the ORDINARY APPEALS (Rules 40 and 41)
reception of evidence to anyone else, even to the clerk of court. *Compiled and Updated by JZE and LCYE
The requirement in Rule 30, Section 9, that the judge of the court
where the case shall personally receive the evidence to be adduced APPEALS IN GENERAL
by the parties, except in default or ex parte hearings and in any case
where the parties agree in writing, would therefore apply. 1. Appeal is the most commonly applied and procedurally
preferred post-judgment remedy.

Thus, before considering whether to avail of other remedies, the

defeated party should first determine whether appeal is available.
It is noteworthy that the remedies under Rules 47 and 65 cannot be
invoked if appeal is available.

Annulment under Rule 47 would be available only if ordinary

remedies, including appeal, are no longer available. Certiorari
under Rule 65 is available only if there is no appeal, or any plain,
speedy, and adequate remedy in the ordinary course of law. The
existence and availability of the right of appeal proscribes a resort
to certiorari, because one of the requisites for availment of the
latter is precisely that there should be no appeal (DE GUZMAN
versus FILINVEST DEVELOPMENT CORPORATION, G.R. No. 191710,
January 14, 2015).

These examples emphasize that the Rules of Court prefers the

taking of an appeal over other remedies available to a defeated
party.

2. Appeal is not foreclosed by the filing of a motion for new

trial or reconsideration under Rule 37.

In fact, the filing of these motions are, in a way, encouraged by the

Rules and jurisprudence to afford the court a quo ample
opportunity to correct its own errors.

The Rules specifically allows a party aggrieved by a judgment to file

motions for new trial or reconsideration prior to the taking of
appellate recourse. Jurisprudence even places a premium on the
availment of these motions under Rule 37 by giving the movant a