Civil Procedure

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Chapter I

FUNDAMENTAL CONCEPTS

I. THE BASICS OF THE CIVIL LITIGATION PROCESS

A signifi cant element of the Philippine judicial process is its employment of the adversarial system as an indispensable tool in dispute resolution. Under this system, the contending parties present before a court their confl icting versions of an occurrence by shaping both the facts, the issues and even the evidence to suit their own perspectives, designs and strategies in accordance with a body of rules that provides the framework for the entire litigation process. This body of rules likewise not only guides the court in its determination of legal controversies but also prevents it from rendering arbitrary orders, resolutions and decisions. In this jurisdiction, these rules have been collectively called the Rules of Court.

Lawsuits are inventions neither of the court nor of the judicial system because litigations inevitably arise within any social environment. The system is in reality a passive entity. A court for example, while having jurisdiction over certain subject matters, does not on its own accord call on the parties to litigate between or among themselves. Even the rules of procedure on their own are mere mishmash of letters and words, mere assortments of sentences and paragraphs, dormant and virtually lifeless.

Lawsuits actually originate from an individual, from one who feels aggrieved by the acts of another. A litigation arises because someone goes to court and seeks redress from it for a perceived transgression committed against his

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CIVIL PROCEDURE 2

person or property. It is actually the individual who decides to start the litigation process and breathes life into the rules of procedure by invoking the jurisdiction of the court. When a lawsuit is commenced, the judicial machinery is activated, is infused with life and continues to grind until the dispute is resolved and the decision executed. From an initially passive entity the judicial system becomes an active machinery in the dispensation of justice.

The material that follows presents the most basic aspects of the civil litigation process and does not pretend to be an exhaustive treatise of all the issues which may arise in all litigations. There are certain matters in the litigation process which suddenly occur in the course of the proceedings and which cannot be reasonably foreseen. Besides, there are topics which, due to the demands of both scope and priorities, have to be intentionally left out. This work contains only those topics deemed indispensable to the acquisition of the core knowledge required to pass the bar examinations and to start a career in trial practice. The other more complicated situations in remedial law would later on automatically present themselves to the new lawyer as he acquires experience in the fi eld.

Care has been taken to avoid the use of impenetrable legalese because emphasis has been made in bringing civil procedure to a more understandable and workable level. Topics in the Rules of Court have been rearranged to help the reader break free from an overly technical approach to the subject, release the mind from the “book mode” developed in law school and to approximate the application of procedural rules in both the bar examinations and the real world.

Experience has told us fairly well that it is the ability to conceptualize the relationships among procedural rules, which enables one to respond with ease to even the most cerebrally formulated questions in the bar and even to unexpected twists in the fi eld of litigation. Although there are aspects of the Rules, in fact a substantial number of them, which have to be committed to memory, route memory has never been the

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3 FUNDAMENTAL CONCEPTS

procedural law. Hence, the materials that follow have been presented to allow the reader to develop on his own a more practical approach to procedural principles.

Whenever necessary, principles in substantive law have been included in the discussion of the topics found in this work so the reader may see the rules from a better perspective. Substantive law after all, constitutes the foundation of procedural law.

The concepts that follow represent the most fundamental stages in the civil litigation process. The mastery of these concepts will enable the reader to grasp the most essential procedural principles, so he may later on proceed to a higher level of understanding of those principles and consequently help him demystify important aspects of remedial law, a subject traditionally but quite erroneously regarded as both abstract and diffi cult.

I. Complaint

Both experience and common reason have taught us that before a person learns how to walk, he should learn how to crawl and before he learns to run, he should learn how to walk.

Similarly, before one could appreciate the intricacies of remedial law, one has to start with its basics. These so-called basics are actually the elementary processes of ordinary civil actions. The practitioner and the student of remedial law have to know that an overwhelming majority of Supreme Court decisions involve issues relating to fundamental procedural matters and that the most frequently tested bar concepts during the past thirty years of bar examinations, involve the operations of ordinary civil actions.

As a starting point, it must be emphasized that the rules of civil procedure will come into play only with the fi ling of a complaint or in some actions or proceedings, a petition. Without a complaint being fi led, said rules would simply be meaningless. It is the fi ling of a complaint that gives life to

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FOREWORD

Some portions of this work have been rewritten for great-er clarity and to incorporate the latest decisions of the Su-preme Court as well as recent amendments to certain rules.

This work, as the one before it, is written primarily for the law student, the bar reviewee and the aspiring lawyer. It is a humble attempt to bring down the study of procedure to a more workable and understandable level. It is an attempt to use an approach that would hopefully strip civil procedure of the traditional and mechanical presentation of procedural principles.

The topics in these materials have veered away from the original arrangement of the rules appearing in the Rules of Court. The experienced among us know fully well that a strict adherence to such presentation leads to the impression among the uninitiated that remedial law is both abstract and circu-itous. While this impression is so far from the truth and is more of the mythical than the real, there still arises a need to provide a fresh look at the subject so the reader may see how the various pieces of the procedural puzzle ﬁ t into a beauti-ful and logical scheme. Procedural principles have been rear-ranged in this work for the reader to appreciate the connection among scattered and seemingly unconnected provisions of the Rules of Court and for that reason, this material is called “a restatement.”

Every effort has been made to incorporate the latest doc-trines of the Supreme Court in every topic found in this work for the ready reference of every reader including the practitio-ner. Examples of past bar examinations have been liberally used for the student and the bar examinee to see how bar

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ex-aminers have applied procedural principles in the framing of speciﬁ c bar questions.

The overwhelming support generously given to our ear-lier work, the Fundamentals of Civil Procedure, by students, practitioners and even members of the bench has motivated us to expand quite substantially on the content of the original material by including other aspects of civil procedure — pro-visional remedies and special civil actions.

We have been very fortunate enough to have friends like Atty. Ernesto C. Salao, Atty. Charm Nolasco and Ria Cabayan who encouraged us to go on with this work despite the con-straints of both work and time and who helped us tremen-dously in its publication. It was from Atty. Salao’s suggestions that the term, “a restatement” originated, truly a ﬁ tting ex-pression for the very purpose of this work.

Again, as we did before, we wish to acknowledge our deep gratitude to our students and bar reviewees whose intense de-sire to become members of the legal profession has become a primary source of energy in the development of this material. We look forward to meeting them as they take their oaths as members of the bar.

Quezon City, Philippines March 30, 2009

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DEDICATION

Niña…Daddy…Mommy… Nonong…Neneng…

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CONTENT

Chapter I

Fundamental Concepts

I. The Basics of the Civil Litigation Process

I. Complaint ... 3

A. Right of Action and Cause of Action ... 4

B. Jurisdiction, Venue and Parties, Prescription and Conditions Precedent ... 4

C. Preparation of the Complaint ... 6

D. Filing of the Complaint ... 8

E. Dismissal of the Action by the Plaintiff ... 9

F. Amendment of the Complaint ... 10

II. Summons ... 12

III. Answer ... 14

IV. Pre-Trial ... 16

V. Trial ... 17

VI. Judgment ... 17

VII. Post Judgment Remedies ... 18

VIII. Execution ... 18

II. Powers of the Supreme Court Rule-Making Power of the Supreme Court ... 19

Limitations on the Rule-Making Power of the Supreme Court ... 19

Legislative Power and the Rule-Making Power of the Supreme Court ... 19

Liberal Construction of the Rules of Court (Bar 1998) ... 21

Illustration (Bar 1998) ... 21