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Special

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Criminal

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2O11 CENTRALIZED BAR

OPERATIONS

It is that part of the law which creates, defines or regulates rights concerning life, liberty or property or the powers of agencies or instrumentalities for the administration of public affairs. It refers to the legislation providing means or methods whereby causes of action may be eflbctuated, wrongs redressed and relief obfarned (also known as ADJEGTIVE LAW),

It makes vested rights possible.

It has NO vested rights. It is prospective in

application.

It governs acts and transactions which took place (Retroactive).

It cannot be enacted by the Supreme Court.

The Supreme Court is

expressly empowered to promulgate orocedural rules.

Judicial

Power includes the duty of the courts

of

justice

_to

settle

actual

controversies involving rights, which are legally demandable and enforceable, and

to

determine whether or not there

has

been grave abuse of 'discretion amounting

to

lack

or

excess of jurisdiction on the part of any branch or instrumentality o{ the

Government (Section

1,

Article

Vlll,

1987 Constitution).

The power of judicial review

is the Supreme Court's POWER

TO

DECLARE

a

law, treaty,

international

or

executive

agreement,

presidential

decree,

proclamation,

order,

instruction,

ordinance,

or

regulation UNCONSTITUTIONAL.

Jurisdiction

(Latin: 'juris"

and'dico"

_-

I

speak

of

the law)

is the

power and

authority

of

a court

to try,

hear,

and

decide

a

case

and to carry its judgments into effect.

accurate because only jurisdiction over the subject mafter

is

confened by substantive

law.

Jurisdiction

over

the

parties,

issues and res is governed by procedural laws.

REQUTSITES

FOR THE VALID

EXERCISE

OF JURISDICTION

3.

That

it

must have jurisdiction over

the

persons of the Parties.

4.

That

it

must have iurisdiction

over

subiect mafter ol lhe controversY.

E. a.

the

in the

Jurisdiction the

subject matter

is

defendant

o

The

statement

that

'Jurisdiction

is

activelY I stages

ofthe

confened

bv

substantive /aw" is NOT

EXECUTIVE COMMITTEE:

EZEKIEL JOSHUA'VILLENA oveiall chairperson, MINISTER MOISES DU chairperson for academics, DJOANIVIE JOMARE JUNASA

chairperson for hotel operations, MARIE MICAELA 5TA. ANA vice<hairpersori for operations, MIKHAIL MAVERICK TUMACDER

vice-chairperson for secretariat, JACKIE LOU LAMUG vice-chairperson for finance, DIANA JEAN TUAZON vice<hairperson for edp, JASSEN RALPH LEE vice<hairperson for logistics

SUBJECT COMMITTEE:

RYAN MERCADER subject chair, MARTA DESIREE FEDERIO assistant subje{t chair, IVA FREYRITZ ERICA CAYABAN edp, JANNA MAE

TECSON and KRISTINE TUPAZ civil procedure, KAREN KRISTI LACAP special civil actiont MYRTLE CALVAN special proceedings. KIMBERLY

JOY BARAOIDAN criminal procedure, CRISALYN LUMANGLAS evidence, HANZEL SANTOS special laws

MEMBERS:

Ethel Joy Arriola, Glory Grace Arugay, Mark Joseph Ayo, Kriselle Balmes, Elizabeth Mae Bongalonta, Venice Buagnin, Diana Fajardo, lan Daniel Galang, Erika Gallego. Nicole Rose MargaretJamilla, Frances Dyan Lim, Jane Kathyrine Lim, Ali Lorraine Manrique, Roniel Muioa

Kevin Averell Pangan, Rimiila Quinto, Beverly Quintos, Lee Realino Reyes, Lyndon Rutor, Ednalyn Saron, Carlo Tabalog Norliza

Villanueva, Jose Angelo David, Kamille Deanne Lagasca, Raynan Larosa

ys. April It is acquired the

moment he files his complaint, petition or initiatory pleading.

It is acquired either by his voluntary

appearance in court and his submission to its authority, or by service of summons or other coercive process upon him.

REMEDIAL LAW

INTRODUCTION

6.

pro@edings before the

trial

court and invoked

its

authority

by

asking

for

an

affirmative

relief

(Soliven

vs. Fastforms, lnc. G.R. No. 139031, Oct. 18,2004).

r

Jurisdiction is governed by the law

at

the

time

the

action

is COMMENCED.

That

it

must haye jurisdiction over

the

res (thing or property under litigation).

r

lt

is

acquired either by

the

seizure

of

the

properg

under legal process or as

a

result

of

the

institution

of

legal

proceedings, in which the power of the

court

is

recognized

and

made effective.

That

it

must have jurisdiction

over

the

rcsues

as

raised

in

the

pleadings

or

by

their

agreement

in

a

pre-trial order

or

those

tried by the

implied consent

of

the parties.

Where

there is an

exercise

of

jurisdiction

in

the

absence

of

jurisdiction,

_the

court

would

be

commifting

an

error

of

jurisdiction.

Where on

the

other hand, the court acted with jurisdiction

but

coqnmitted procedural errors

or

errors

in the

appreciation of the

facts or of the

taw,

the

error

would be

a

mere

error

of

judgment,

_not

of

jurisdiction.

CLASSIFICATION OF JU RISDICTION

1.

As to CASES Tried:

o

GENERAL jurisdiction

_-

Exercised

over all kinds of

cases, excepf those

withheld

from

the

plenary powers of

the court.

r

LIMITED jurisdiction

_-

Exercised over

and

extends

only

to

particular

or specified cases.

As to NATURE of the Cause:

.

ORIGINAL jurisdiction

-

Exercised by courts in the first instance.

o

APPELLATE jurisdiction

-

Exercised

by

a

superior

court

to

review

and decide cases previously decided

by

a

lower court now

elevated

for

judicial review.

As to Nature and Extent of EXERGISE:

o

EXCLUSIVE jurisdiction

_-

Confined to

a

particular court

to

the

exclusion of other courts.

.

CONCURRENT

jurisdiction Pertaining

to

different courts over the same subject matter at the same time

and

place. When

two or

more courts

have

concurrent jurisdiction

over

a

case,

the

court

which

has

first

validly

acquired jurisdiction takes

it

to

the exclusion

of the

others (also referred

to as

confluent

or

coordinate jurisdiction).

As to SITUS:

r

TERRITORIAL jurisdiction

_-

Exercised within the limits of the place where the court is located.

r

EXTRA-TERRITORIAL

jurisdiction

-Exercised beyond

the

confines

of

the territory where the court is located. COURTS OF LAW

vs.

COURTS OF EQUITY

A

COURT OF LAW decides

a

case according to what the promulgated law is while a COURT

OF

EOUI 4.

Pertains to the authority to hear and decide cases.

Any act of the court pursuant to such authority including the decision and its consequences.

One where the court, officer or quasi-judicial body acts wiihout or in

excess of jurisdiction, or

with grave abuse of discretion.

One that the court may commit in the exercr.se of errors of procedure or mistakes in the court's It renders a judgment

void or at least voidable.

Such an error does not make the court's decision void.

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CENTRALIZED BAR OPERATIONS

Cannot be abolished by Congress without amending the Constitution. May be abolished by Congress by just siniply repealing the lawwhich created those courts. Ex. The Gourt of Tax Appeals

SUPERIOR COURT

vs.

INFERIOR COURT

SUPERIOR

COURTS refer

to

those

courts which have the power of review or supervision

over

another lower court

while

INFERIOR

COURTS

are

those which,

in

relation

to another are lower in rank and subject to review and supervision of the latter.

COURTS OF RECORD

Those whose

proceedings

_{are enrolled}

and which are bound

to

keep a wriften record

of

all trials

and

proceqdings handled by

lhem.

R.A.

No. 6031 mandates

all

Municipal

Trial

Courts to be courts of record.

POLICY OF JUDICIAL HIERARCHY

This policy means that

a

higher court

will

not entertain direct resort

to it

unless

the

redress desired cannot be obtained in

the

appropriate courts.

While

it

is true that

the

SC, CA, and

the

RTC

have

concurrent original jurisdiction

to

issue writs

of

Certiorari, Prohibition and Mandamus,

such

concurrence

does

not

accord

litigants unrestrained freedom of choice of the court to

which

the

application

for

the writ

may

be directed.

The

application should

be filed

with the court

of

lower level unless

the

importance

of

the issue

involved deserves

the action of

the couft of higher level.

DOCTRINE

OF

JUDICIAL STABILITY

OR

NON INTERFERENCE

General

Rule: No court has the

authority to

interfere

by

injunction

with the judgment of

another

court

of

coordinate jurisdiction

or

to pass upon or scrutinize and much less declare

as

unjust

a

judgment

_of

_another

court

(lndustrial

Enterprises

lnc. vs. CA, G.R.

Na. 88550, Aprit 18, 1990).

Exception:

The

doctrine

of

judicial

stability does not apply where

a

third

pafty

claimant is involved (Sanfos vs. Bayhon, G.R.

No.

88643, July

23,

1991).

DOCTRINE

OF JURISDICTION

ADHERENCE

TO (Also Known As

Continuity of Jurisdiction)

Once jurisdiction has been acquired, the court retains it untilthe final termination of the case.

General

Rule: Law

enacted during

the pendency of a case which transfers jurisdiction to another court does not affect cases prior to its enactment.

Exceptions:

1.

When

the

new

law

EXPRESSLY PROVIDES for a retroactive application;

2.

When

the

change

of

jurisdiction

is CURATIVE in character.

EXCLUSIONARY PRINCIPLE

The

court

first

acquiring jurisdiction excludes all others.

DOCTRINE OF PRIMARY JURISDICTION Under

this

doctrine, courts

will not

resolve a

controversy

involving

a

question

which

is

within

the

jurisdiction

of

an

administrative

tribunal,

especially

where

the

question demands

the

exercise

of

sound administrative discretion requiring the special knowledge and

experience

of

said

tribunal

in

determining technical and intricate matters of

fact

(Villaflor vs. CA, G.R. No. 95694, Oct.

8,

1997).

DOCTRINE OF ANCILLARY JURISDICTION

It

involves

the

inherent

or

implied powers

of

the court

to

determine issues incidental to the exercise of its primary jurisdiction.

Under

its

aneillary

jurisdiction,

a

court

may determine all questions relative to

the

matters brought before it, regulate the manner in which a trial shall be conducted, determine the hours

at which the

witnesses

and lawyers may

be money

REMEDIAL LAW

JURISDICTION

EXCLUSIVE

.

ORIGINAL Note: The adjusted jurisdictional amount is based on Sec. 5 of R.A. 7691, this year being the 2nd 5-year period mentioned therein.

1.

Actions involving personal property, whose value does NOT exceed P300,000 or in Metro Manila the amount does NOT exceed P400,000;

2.

Demand for money NOT exceeding P300,@0 or in Metro Manila NOT exceeding P400,000;

Note: Exclusive of _{lnterest, Samages} of whatever kind, gttorney's fees, litigation gxpenses, and gosts flDALEC), the amount of which must be specifically alleged but the filing fees thereon shall be paid,

.

The

exclusion

of the

term

"damages

of

whatever

kind"

applies

to

cases

where

the damages are merely incidental to

or

a

consequence

of the

main cause of action. However, in cases where

the

claim

for

damages is the main cause of action, or one of the causes of action, the amount of such claim shall be considered

in

determining the jurisdiction _of the court;

3.

Probate proceedings (testate or intestate) where the gross value of the estate does NOT exceed P300,000 or in Metro Manila the value does NOT exceed P400,000;

4.

Actions involving title to or possession ,

of real property, or any interest therein where the assessed value or interest therein does NOT exceed p20,000 or in Metro Manila, does NOT exceed P50,000;

5.

lnclusion and exclusion of voters (Bp

881,

Sec.138);

X

6.

Admiralty and maritime cases where demand or claim does NOT exceed P300,000 or in Metro Manita, does NOT exceed P400,000;

7.

Those covered by the Rules on Summary Pr;ocedure:

a.

lorcible Entry and Unlawful petainer (FEUD)

.

With jurisdiction to resolve issue of ownership to determine ONLY the issue of possession;

o

lrrespective of the amount of damages or unpaid rentals sought to be recovered.

Where attorney's fees are

The action is incapable of pecuniary estimation;

Title to or possession of real property or any interesttherein, the assessed value EXCEEDS P20,000 or EXCEEDS P50,000 in Metro Manila,

Admiralty and maritime cases where demand or claim EXCEEDS P300,000 or EXCEEDS P400,000 in Metro Manila;

Matters of Probate (testate & intestate) where gross value of the estate EXCEEDS P300,000 or EXCEEDS P400,000 in Metro Manila; All actions involving the contract of maniage and family relations (See RA.

8369 amending BP. 129).

Family Courts now have exclusive original jurisdiction over:

a.

Petitions for guardianship, custody of children, habeas corpus in

relation to the latter (but the SC and the CA have not been deprived of their original jurisdiction);

b.

Petitions for adoption of children and the revocation thereof;

c.

Complaints for annulment and declaration of nullity of marriage, matter relating to marital status and property relations of husband and wife or those living together under different Status or agreement, and petitions for dissolution of conjugal partnership of gains; 1. 2" 5.

d.

Supp-qdandktaekrowledgment;

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CENTRATIZED BAR

OPERATIONS

defendant upon verifi ed application by the complainant or the victim for relief fom abuse;

b.

The court may order the temporary custody of children in all

Civil actions for their custody, support pendente /lfe, including deduction from the salary, and use ofconjugal home and other properties in all civil actions for support.

Cases NOT Win the exclusive jurisdiction of any court, tribunal,

person or body exercising judicial or quasi-judicial fu nctions (general jurisdiction of RTC);

Civil actions and special proceedings falling within the exclusive original jurisdic'tion of Juvenile and Domestic

Relations Court and of Court

of

' Agrarian Relations as now provided by

law;

All other caseslivhere demand

EXCLUSIVE of IDALEG or the value of the property in controversy EXCEEDS P300,000 or EXCEEDS P400,000 in

Metro Manila;

Under Sec. 5.2 of the Securities and Regulations Code to hear and decide:

.

Cases involving devices or schemes employed by or any acts ofthe board ofdirectors, business associates, its officers or partnership, amounting to fraud and misrepresentation which may be detrimental to the interest of the public and/or of the stockholders,

with awarded, the same shall NOT

exceed P20,000.

Other civil cases, excepf probate proceedings,

where

the

total amount of the plaintiffs claim does NOT exceed P100,000

or

does NOT exceed P200,000

in

Metro Manila, exclusive

of

interests and costs (as amended

by A.M.

No. 02-1 1-09-SC, effective November 25,2002).

REMEDIAL LAW

JURISDICTION

management of a Rehabilitation Receiver or Management Committee. CONCURRENT

DELEGATED

May

be

assigned

by

the SC

to

hear

cadastral

or

land registration cases where there is no controversy over the land or in

case

of

contested lands,

the

value does NOT exceed P100,000.

PetitiOn for Habeas Coryus OR application for bail in criminal cases in the absence of all RTC judges in the province or city.

SC may designate certain branches of RTC

to try

exclusively criminal cases, juvenile

and

domestic relations cases, agrarian cases, urban land reform cases not falling

wiip

the jurisdiction

_of

_any

quasi-judicial body and other special cases in the interest

of justice.

All

cases decided by

the

tourer courts in

thei r respective territorial j u risd iction ex cept declsrbns of lower courts in the exercise

of

delegatedjuisdiction.

-With SC

_-

Actions affecting ambassadors, public ministers and consuls.

With SC, CA and Sandigatnbayan

-lssuance of writs of certiorari, prohibition, mandamus, habeas corpus; quo warranto, injunction against lower courts.

With SC, CA and Sandiganbayan

-issuance of writ of amparo and habeas data With MTC, etc.

_-

NONE.

With lnsurance Commissioner

_-

Claims NOT exceeding P100,000.

Petitions for certiorari, prohibition or mandamus against:

a.

CA;

b.

COMELEG;

c.

COA;

d.

Sandiganbayan.

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CONCURRENT

Note: While

the Rules provide for concurrent

jurisdiction among the RTC, CA, and

SC, the

same is

still subject

to

the

principle

of

HIERARCHY OF

COURTS,

With Court of Appeals (CA)

a.

Petitions for certiorari, prohibition or mandamus (CPM) against RTC, habeas corpus, quo warranto;

b.

Petitions for certiorari, prohibition or mandamus against the NLRC.

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2011 CENTRALIZED

BAR

OPERATIONS

pursuant

to

Sec 4 of Rule 65.

Wth CA, the Sandrganbayan and RTC

a.

Petitions for issuance of Writ of Amparo;

b.

Petitions for Habeas Data, where the action involves public data or government office.

With the CA , RTC and Sandiganbayan

a.

Petitions for certiorari, prohibition or mandamus against inferior courts and other bodies;

b.

Petitions for habeas corpus and quo

.

warranto. Wth RTC

Actions against ambassadors, other public ministers and consuls

With GA, lhe Sandiganbayan and RTC

c.

Petitions for issuance of Writ of Amparo;

d.

Petitions for Habeas Data, where the action involves public data or govemment office.

With CA only unless otherwise provided by law

a.

Petitions for certiorari, prohibition or mandamus against quasi-judicialagencies {like CSC, CBM, CTA, etc.) (Amendments to Rule

65, A.M. No. 07-7-12-SC). With the dC,

nfC

and Sandiganbayan

a.

Petitions for certiorari, prohibition or mandamus against inferior courts and other bodies; and

b.

Petitions for habeas corpus and quo wananto.

APPELLATE Review, revise, reverse, modify, or affirm on

appeal or certiorari the following:

a.

All cases in which the

constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamalion, order, instruc'tion,

ordinance or regulation is in

question;

b.

All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in relation thereto;

c.

All cases in which the jurisdiction of any lower court is in issue;

d.

All criminal cases in which the penalty imposed is reclusion perpetua or higher;

e.

All cases in which only an error or question of law is involved

Exclusive Appellate jurisdiction _{over all}

final

judgments, decisions, resolutions,

orders or awards of RTC and quasi-judicial agencies except those falling within the appellate jurisdiction of the Supreme Gourt in accordance with the Constitution, Labor Code, _.8.P. 129 and of subparagraph 1 of the

_{-

paragraph and subparagraph

4

of

the

4"

paragraph

of

section

17

of

the Judiciary Act of 1948.

1.

Offenses punishable with

imprisonment

NOT exceeding

six (6)

years

irrespective

of

the

amount

of

fine,

and

regardless

of

other

imposable accessory or other penalties, including

the

civil

liability arising

from such

offenses or

predicated

thereon,

inespective

of

kind,

nature, value

or

amount

1.

Offenses imposable

2.

Offenses not court, tribunal or

jurisdiction

_of

the EXCLUSIVE ORIGINAL

REMEDIAL LAW

JURISDICTION

thereof;

2. Offenses

involving

DAMAGE

TO

PROPERTY

through criminal negligence. Note: ln cases where the only penal$

is a

fine, the amount

thereof

shall

determine iurisdiction. lf the amount does NOT exceed P4,000, MTC's

have jurisdiction (Adm. Cir. 09-94).

Sandiganbayan. Note: ln cases where the only penalty is a fine, the

amount

thereof

shall

determine jurisdiction.

lf

the

amount

EXCEED

P4,000,

RTC'S

have

jurisdiction (Adm. Cir.

09-e4).

e.

Other offenses or felonies whether simple or complexed with other crimes.

2.

The offender committing the offense in items a, b, c,

and e is a public official occupying a position elassified

as

salary grade 27 and higher;

3.

The offense was committed in relation to office.

Those covered by the Rules on Summary Procedure:

a.

Violations of traffic laws, rules and regulations;

b.

Violations of the rental law;

c.

Violations of municipal or city ordinances;

d.

Violations of BP 22, otherwise known as Bouncing Checks Law (4.M. No.00-11-01-SC, effective April 15,2003);

e. All

other

criminal

cases where

the

penalty

is

imprisonment

not exceeding

6

months andlor

P

1,000 fine irrespective

of

other

penalties

or

civil

liabilities

arising

therefrom

and

in

offenses

involving damage

to

property

through

criminal negligence where the imposable fine

is

not exceeding P10,000.

Family Court - Criminal cases where:

a.

One or more of the accused is/are below eighteen (18) years

of age but not less than nine (9) years of age; or

b.

Where one of the victims is a minor at the time of the commission of the offense;

c.

Cases against minors cognizable under the Dangerous Drug Ac{;

d.

Violations of RA 2610, otherwise known as the "Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act'as amended by RA 7658; and

e.

Cases of domestic violence against women and children.

Civil and

criminal cases filed pursuant

to

and

in

connection wilh Executive Order Nas. 1, 2,

14, and 14a (filed by PCGG).

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2O11 CENTRALIZED BAR OPERATIONS

Appeals

from the

final

judgments,

resolutions

or

orders

of

regular courts where all the accused are occuPYing

positions lower

than

salary

grade

27

or

not

otherwise

covered

by the

preceding enumeration.

All

cases decided by the MTC's in their respective territorial jurisdiction. APPELLATE

Actions for annulment of judgment of the Regional Trial Courts

Crimes of Terrorism under Human Security Act of 2007.

Petition

for

certiorari, prohibition and mandamus against Court of Appeals and Sandiganbayan.

With the SC: petitions for certiorari, prohibition and mandamus against the RTC's.

With

the

CA:

petitions

for

certiorari,

prohibition

and

mandamus against the RTC's.

With the SC and RTC: petitions for certiorari, prohibition and mandamus against the MTC's. With the CA and RTC: petitions for

certiorari, prohibition and mandamus against the MTC's.

By.Notice of Appeal:

From the RTC

in

the exercise

of

its original iurisdiction, except those appealable

to

the Sandiganbayan.

From

the

RTC where penalty imposed is reclusion perpetua

or

life

imprisonment or where

a

lesser penalty

is

imposed

but

for offenses committed on the same occasion or which arose out of the same occurrence that gave rise to the more serious offense for which the penalty of death, reclusion perpetua, or life imprisonment is imposed (Section

3

Rule 122 as amended by AM. No.0O-U03-SC).

By automatic review (i.e. no notice of appeal is necessary):

From

the

RTC,

in

cases wherein the death penalty is imposed.

the

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By petition for review on certiorari:

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From the CA;

.

From lhe Sandiganbayan;

r

From the RTC where only an error or question of law is involved.

Note:

In

People

vs.

Mateo, G.R. Nos.

14767&87,

July

7,

2004

lhe

Supreme Court held that while the Fundamental Law requires

a

mandatory

review

by

the Supreme Court of cases where the penalty

imposed

is

reclusion perpetua,

life imprisonment, or death, nowhere, however, has it proscribed an intermediate review. lf

only

to

ensure utmost

circumspection

before

the

penalty

of

death,

reclusion perpetua

or

life imprisonment is imposed,

the

Court now

deems

it

wise

and

compelling

to

provide

in

these cases a

review by the Court of Appeals before the case is elevated to the Supreme Court. A prior determination by the Court of Appeals on, particularly, the factual issues, would minimize

the

possibility

of

an

error

of judgment.

_lf

_the Court of Appeals should

affirm

the

penalty

of

death,

reclusion perpetua or life imprisonment, it could then

render

judgment imposing

the

conesponding

penalty as

the

circumstances

_so

warrant, refrain from entering judgment and elevate

the

entire records of the case to the Supreme Court for its final disposition.

REMEDIAL LAW

JURISDICTION

ORIGINAL 1.

All

cases involving custody, guardianship, legitimacy, paternity and filiation arising under the Code of Muslim Personal Laws;

All

cases involving disposition, distribution

and

settlement

of

estate of deceased Muslims, probate of wills, issuance of lefters of administration or appointment

of

administrators

or

executors regardless

of

the

nature or aggregate value ofthe property;

Petitions for the declaration

of

absence and death for the cancellation or correction of entries in the Muslim Registries mentioned in Title Vl, Book Two

of the Code of Muslim Personal Laws;

All

actions arising from the customary contracts

in

which the parties are Muslims, if they have not specified which law shall govern their relations; and All petitions for mandamus, prohibition, injunction, certiorari, habeas corpus, dnd all other auxiliarv writs and in aid of its aDoellate

3.

4.

1.'

Petitions by Muslim for the constitution of a family home, change of name and cpmmitment of an insane person to an asylum;

2.

All other personal and legal actions not mentioned in paragraph 1 (d) wherein thb parties involved are Muslims except those for forcible entry and unlawful detainer, which shall fall under the exclusive jurisdiction of the Municipal Circuit Court, and

3.

All special civil actions for interpleader or declaratory relief wherein the parties are Muslims or the propertv involved belongs exclusively to Muslims.

Cases that can be filed Offenses defined and punished under PD 1083 Disputes relating to :

Marriage Divorce

Betrothal or breach of contrac{ to marry Customary dower (mahr)

e.

Disposition and distribution of property upon divorce

f.

Maintenance and support,

S.

Consolatory gifts (muf'a) and

h.

restitution of marital rights

Disputes relative to communal properties.

4 2. a. b. c. d.

$an Fetu

@otlege

of

Ltu

2011

CENTRALIZED BAR OPERATIONS

SECTION

1.

TITLE OF THE RULES

The Rules of Court DO NOT HAVE retroactive

effect.

They can,

however,

be

made applicable to cases pending at the time of their passage and therefore

are

retroactive

in

that sense.

The

rule-making power of

the

Supreme Court has the following limitations:

1.

Simplified

and

inexpensive procedure for the speedy disposition of cases;

2.

Uniform

for all

courts

of the

same grade; and

3.

Shall

not

diminish, increase

or

modify

substantive rights (Arf.

_Vlil

Sec. S[S], 19A7 Phil. Constitution).

o

ln the

interest

of

just

and

expeditious

proceedings,

_the

_Supreme

_Court

_may

suspend

the

application

of the

Rules of

Court

and

except

a

case

from

its

operation because

the

Rules

were

precisely

adopted

with

the

primary

objective

of

enhancing

fair

trial

and expeditious justice.

SECTION

2.

_IN

WHAT

COURTS APPLICABLE

These Rules shall apply

in all

the

courts,

EXCEPT

as

otherwise

provided

by

the Supreme Court.

SECTION

3.

CASES GOVERNED

Applicability

1.

Civil Action

_-

one by which

a

party sues another

for the

enforcement

or

protection of

a

right or the prevention or redress of a wrong.

A

civil action may either

be

ORDINARY OR SPECIAL, BOTH are governed by the rules

for

ordinary

civil

actions, SUBJECT

to

the

specific

rules

prescribed

for

a special civil action.

2.

Griminal Action

_-

one by which the State prosecutes a person for an act or omission punishable by law.

3.

Special

Proceedings

_-

a

remedy

by

which

a

party seeks

to

establish a gtatus, a gight, or a particular fact (SRP).

Glassifi

cation of Actions

B.

As

to

Nature

EXECUTIVE COMMITTEE:

EZEKIEL JOSHUA VILLENA overall chairperson, MINISTER MOISES DU chairperson for academics. DJOANIVIE JOMARE JUNASA

chairperson for hotel operations, MARIE MICAELA STA. ANA vice<hairperson for operations, MIKHAIL MAVERICK TUMACDER vice. chairperson for secretariat, JACKIE Lou LAMUG vice_chairperson for ffnince, DIANA lren ruezoru vicechairperson for edp. JASSEN RALPH LEE vice-chairperson for logistics

SUBJECT COMMITTEE:

RYAN MERCADER subject chair. MARTA DESIREE FEDERIo assisrant subject chair, tvA FREyRtrz ERtcA CAYABAN edp, JANNA MAE

TECSON and KRISTINE TUPAZ ciMI procedure, KAREN KRlSTl LACAP special civil actions, MYRILE CALVAN special proceedings, KIMBERLY

JOY BARAOIDAN criminal procedure, CRISALYN LUMANGI-AS evidence, HANZEL SANTOS special laws

MEMBERSI

Ethel Joy Arriola. Glory Grace Arugay, Mark Joseph Ayo, Kriselle Balmes, Elizabeth Mae Bongalonta, Venice Buagnin, Diana Fajardo, lan Daniel Galang, Erika Gallego, Nicole Rose MargaretJamilla, Frances Dyan Lim, Jane Kathyrine Lim, AIi Lorraine Manrique, Roniel Murioa Kevin Averell Pangan, Ramiila Quinto, Beverly Quintos, Lee Realino Reyes, Lyndon Rutor, Ednalyn Saron, Carlo Tabaloc, Norliza

Governed by ordinary rules.

AIso governed by ordinary rules but SUBJECT to specific rules prescribed

*ffi

t*ev{

A right possessed by one against another. One party prosecutes

another for the enforcement or protection of a right or the prevention or

The moment said claim is filed before a court, the claim is converted into an

REMEDIAL LAW

CIVIT

PROCEDURE defendant is NOT required. Jurisdiction over the person of the defendant is required. Jurisdiction over the person of the defendant is NOT required as long

as jurisdiction over the res is A proceeding to determine the state or condition

of

An action to impose a responsibility or liability upon a penion directly. A proceeding to subject the interest of a defendant over a particular property to an lien burdening it. Judgment is binding on the WHOLE Judgment is binding only upon PARTIES IMPLEADED OR THEIR SUCCESSORS IN INTEREST, Judgment is binding upon PARTICULAR PERSONS.

Ex. Action for specific performance; action for breach of contract.

Ex. Aclion for partition; action to foreclose real estate mortgage.

Note: An action could be real as to cause

ard

in

personam

_as

_to

_object

_(e.g.,

_{acrfun to}

recover

a

piece _{of land). An action could also}

be

personal

as

to

cause and ,n /ern

as

to object (e.9., action for annulment of maniage). The distinction _{is significant in determining the} VENUE of an action.

E.

As to

the

Place

The distinction

is

important in determining the following:

1.

Wh.ether or not jurisdiction over the person

_

of the defendant is required; and

2.

Persons upon whom judgment _{is binding.}

D.

As

to

Carrca

Note:

lf

the action

is

founded

on

privity

of

contract between

the

parties,

_{then the}

action

whether debt

or

covenant,

is

TRANSITORy.

But

if

there

is

no privity

of

contract

and

the action is _{founded on privity of estate only, such}

as

a

covenant

_{that runs with the land in}

_the hands of the remote grantees, _{then the} action

is

LOCAL

and must be

brought

in the

ptace

wherein

_the

land

lies

(paper

lndu'stries

Corporation

_of

the

Philippines

vs.

Samson, G.R. No. L-301 75, November 25, 1 975).

Actions

lncapable

of pecuniary Estimation

An action CAPABLE of pecuniary estimation is

one

wherein

_{the action is'brought primarily}

for the recovery of

a

sum of

money; and the

amount

of

the

claim shall

determine where the

jurisdiction

ties.

of

to

Must be brought in a

particular place where the subject property or a portion thereof is located, unless there is an agreement to the contrary (Section 4, Rule 4).

Dependent on the place where the party resides regardless of where the cause of action arose subjecl.

(Section 4, Rule 4).

Ex. Action to recover real property

Ex. Action to recover sum of money Ownership or possessjon _of real property is involved. Personal property is sought to be recovered or where damages for breach of contract are

Both real and personal properties are involved. Filed in the court where the property or any part thereof is situated. Filed in the court where the plaintiff or any of the defendants resides, at the option of

The rules on venue of real actions shall govern.

Ex. Action for a sum of

than

th&&S&tWffi&vei*i

Sm

Febu

Gollege of

LEb

2011

CENTRALIZED BAR OPERATIONS

secrrof

4. APPLICABLE

IN

WHAT

CASES

NOT

NOT _{APPLICABLE lN: {ELCaNio)}

1.

_llection

Cases;

2.

land

registration/qdastral cases;

3.

[aturalization;

4.

lnsolvency proceedings;

5.

Qther cases not provided in the Rules of Court.

Exception:

The Rules of Court are applicable

to

the

above

cases

by

analogy

or

in

a s u p pl eto ry ch a racte

r

and when eve r practicab I e

and convenient.

SECTION

5.

COMMENCEMENT OF ACTION

A

civilaction

is commenced

by:

1.

The FILING OF THE COMPLAINT (When

an

additional defendant

is

impleaded

in

a

later

pleading,

_{the action}

_is

commenced with regard

to

him on the date of the filing of such LATER PLEADING); and

Note: Civil

actions

are

deemed commenced from the date of the filing and docketing of

the

complaint, without taking

into

account

the

issuance

and

service of summons (Cabrera vs. Tiano, G. R. No" L-17299, July 31, 1963).

2.

The

PAYMENT

OF

DOCKET

FEES (Determined not only by the amount of the claim but also by the amount of damages)

ln Sun

lnsurance Office, Ltd.

v.

Asunciotn

_fl7a

SCRA

274,

1989)

the

Supreme

Court

laid down the following rules:

It is not simply the filing of the complaint or appropriate initiatory pleading but also the payment of

the

prescribed docket fee that vests a trial court with jurisdiction over the

subject matter

or

nature

of

the

action. Where the filing of the initiatory pleading is

not

accompanied

by

payment'

of

the docket

fee, the court may

allow payment of the fee within the reasonable time but in no case beyond the applicable prescriptive period.

The

same

rule

applies

to

permissive

counterclaims,

third-party

claims

and

similar

pleadings

which shall

not

be

considered

filed

until

and

unless the filing fee prescribed therefor is paid.

Where

the trial court

acquires jurisdiction over a claim by the filing of the appropriate pleading

and

payment

of the

prescribed filing

fee, but

subsequently, the judgment

awards

a

claim

not

specified

in

the

pleading,

or

if

specified,

the

same

has

been left

for

dete.rmination

by the

court,

the

additional

filing

fee

therefor

shall constitute a lien on the judgment.

.

The

amount

of

damages

should

be

specified

not

onlY

in the

bodY

of

the pleading but also in the _PraYer.

.

lf the complete amount of the docket fee is not paid,

the

prescriptive period continues to run as the complaint is deemed not filed (Feria, 2001,

p.

208).

.

An action can be commenced by filing the

complaint

by

registered

mail.

ln

which

case,

it

is

the

date

of

mailing

that

is considered as the date of filing and not the date of

the

receipt thereof by

the

clerk

of

court.

SECTION

6,

CONSTRUCTION

General

Rule:

Liberal construction

Exceptions:

1.

Reglementary periods;

2.

Rule on forum shopping;

3.

Service of summons.

.

The

power

of

the

Supreme

Court

to

promulgate

rules

concerning

pleading,

practice,

and

procedure includes

the

power

fo

suspend

the

effectivity

of

such rules

or to

provide

an

exception from the

operation

of

said

rules.

lt

is

within

the inherent power

of

the

Supreme Court to suspend its own rules in

a

particular case

in

order

to

do

justice (De Guia vs.

De Guia, G.R. No. 135384, APril 4, 2001).

Reasons

Which Would

Warrant

the

Suspension

of

the

Rules

1.

The

existence

of

special

or

compelling circumstances;

REMEDIAL LAW

CIVIL

PROCEDURE

SECTION

1.

ORDINARY

GIVIL

ACTIONS,

BASIS OF

Every ordinary civil action must be based on a cause of action.

SECTION

2.

CAUSE OF ACTION, DEFINED

Gause

of

Action is

the act

or

omission by which a party violates a right of another. Requisites

of

Right

of Action:

1.

The existence

of

a

LEGAL RIGHT

of

the plaintiff;

2.

A

CORRELATIVE

OBLIGATION

of

the

defendant to respect plaintiffs right; and

3.

An act

or

omission

of the

defendant

in

VIOLATION of the plaintiffs legalright.

lnjury

is

the illegal

invasion

of

a

legat right while

damage

is the loss, hurt, or harm which results from the injury.

Right

of

Action

is

right

of

a

person

to commence and prosecute an action

to

obtain the relief sought.

Requisites:

1.

There must

be

a

good

cause

(The existence of a cause of action);

2.

A

compliance

with

qll

the

conditions precedent

_to

the

bringing

of

the

action; and

3.

The action must be instituted by the proper

SECTION

3.

ONE SUIT FOR

A

SINGLE CAUSE OF ACTION

A party may not institute more than one suit for a single cause of action

SECTION

4.

SPLITTING

A

SINGLE CAUSE

OF ACTION, EFFECT OF

Splifting

of

cause

of

action

is

the act

of

dividing

a

single

or

indivisible cause

of

action

into

several

parts

or

claims

and

bringing several actions thereon.

lt is

NOT allowed. Purpose:

To avoid the following:

1.

Multiplicity of suits;

2"

Conflicting decisions; and

3.

Unnecessary vexation

and

harassment

of

defendants.

Applies NOT only

to

complaints

but also

to counterclaims and cross-claims.

The redress, protection, award or coercive measure which the plaintiff prays the court to render in his favor as consequence ol the delict committed by the defendant. The procedure or appropriate legal form of relief of action which may be availed of by the plaintiff as the means to obtain the desired relief. The thing, wrongful ad, contract or property which is directly involved in the action, concerning which the wrong has been done and with respect to which the controversy has arisen.

Delict or wrongful act or omission committed by

the

defendant

in

violation of the primary rights of the plaintiff.

Remedial right

or

right

to

relief granted by law to a party to institute an

action against

a

person

who has

committed a

delict or wrong against

him.

The

reason

for

the aclion.

The remedy

_or

means

afforded

or

the consequent relief. The formal statement of

the operative facts that gives

rise

to

remedial

right.

The remedial right given to a person because of

the

occurrence

of

the alleged facts.

A

matter

of

procedure

and

depends

on

the pleadings

_{filed by}

_the parties.

A

matter

of

right

and depends on substantive law.

Not

affected

by

affirmative

defenses

(Fraud,

prescription, estoppel, etc.). Affected

by

affirmative defenses. q-5{P" #tCSA

ion to di3fi1iSb Cnl*tlrHdlound of:

9en

Fcls

GoIIege ot

leb

2011 CENTRALIZED

BAR

OPERATIONS

b.

Exception:

A contract to do several things at several times is divisible, and judgmen! for a single breach of a continuing contract

is

NOT

a

bar

to

a

suit for a

subsequent breach (e.9., promlssory note

payable

in several installments so long as fhere ts no acceleration clause).

c.

Exception

to the

exception:

All obligations which have matured at the time

of

the suit

must

be

integrated

as

one

cause

of

action

in

one

complaint,

and those not so included would be barred.

d.

Doctrine

of

Anticipatory Breach:

An

UNQUALIFIED

and

POSITIVE REFUSAL

to

perform

_a

contract,

though

the performance thereof is not yet due, may, if

the

renunciation

goes into

the

whole contract, be treated as

a

complete breach which

will

entitle

the

injured party

to

bring

his

action

at

once (Elossom

&

Co.

ys.

Manila

Gas

Corp.,

No.

32958,

Nov.

8, 19s0).

The rule against splitting

of a

cause

of

action appties only where

the

action

is

between the

same parties (ltogon Suoc

Mneg

lnc.

vs.

Sangil-ltogon Worker's Union, G.R.

No.

l-24189, August 30, 1968).

SECTION

5.

JOINDER

OF

CAUSES

OF ACTION

Joinder

of

c€ruses

of

action

is

purely

PERMISSIVE.

The

plaintiff

can

always

file separate actions for each cause of action.

Requisites

for Joinder of

Gauses

of Action:

1.

The

party joining

the

causes

of

action must comply

with the rules on joinder

of parties;

Note: The following are the elements for a joinder of parties (Sec.

6,

Rule 3):

a.

A

right

to

relief

in

respect

to

or arising

out of the

same transaction

or

series

.

of transactions; and

b.

A common question of law or fact.

2.

The

joinder shall not

include special civil

actions

or

actions governed

by

special rules;

3.

Vly'here

the

causes

of

action

are

between

the same parties but

pertain

to

different venues or jurisdictions, jurisdiction

is

with the Regional Trial Court, provided that:

a.

One of the causes of action falls within the jurisdiction of the RTC; and

b.

The venue lies,thereon.

4.

Where

the

claims in

the

causes

of

action

are

principally

for

recovery

of

money, the

aggregate amount claimed shall

be

the test of jurisdiction (Totality Rule).

Totality

Rute

under BP

129: Where there are several claims

or

causes

of

actions between the same or different parties, embodied in the

same

complaint,

the amount

of

the

demand shall be the totality of

the

claims in all causes of action, irrespective of whether the causes of

action arose

out

of

the

same

or

different transaction.

The

jurisdictional

amount excludes:

a)

interest,

b)

damages

of

whatever

kind,

c)

attorney's

fees,

d)

litigation expenses

and

costs.

These

matters

however,

shall

be

included

in

determining

the filing

fees.

(Riano 2009,

p.l79)

Note:

Ihe

exclusion

of the

term "damages

of

whatever

kind'

in determining the _{iurisdictional} amount, applies

fo

cases where the damages are

merely incidental

thereto or consequence of the main cause of action.

Note:

We will follow the totality

rulein

BP 129

because

it is

elementary

in

statutory

construction

that

in

case

of

conflict,

substantive law prevails over procedural laws.

It minimizes multiplicitY of suits and

It causes multiplicity of suits and double

EIALLAW

@il.PROCHX'RE

SEIN

1.

TO IAY

BE

PARTIES;

PLtfTrFAII

I'EFEM)ANT

fqimomsbra

person to

be a party

to

a

drt*lin:

1.

ib

mrct

be either:

a

A nafural person; (e.9. Juan dela Cruz vs

fudro

Sanfos)

b.

A

juridical person,

(e.9.

Juan

dela Cruz vs ABC Corporation) or

c.

An

entity

authorized

by

law.

(e.g.

corporations

by

estoppel, partnership

by

estoppel- Juan Dela cruz vs Pedro

Sanfos, et.al. doing buslness

under the name

ofXYZ

Cgmpany)

2.

He must

have

the legal

capacity

to

sue; and

3.

He must be the

reat

party-in-interest. One need not be a natural or a juridical person

to be a

party

_to

_a

_{civil action.}

_As

_long

_as

_an entity

is

authorized by law

to

be

a

party, such entity may sue, be sued

or

both (Riano, 2007, p.179).

Note:

Entities authorized

by

law

to be

parties to a suit include:

1.

The estate of a deceased person;

2.

A

political party

incorporated

under

Act

1459 (now

_{8.P. Btg.}

_69,

Corporation

Code); and

3.

A

registered

_{labor union (Sec. 243, pD}

442, Labor

Code),

with

respect

to

its

property.

As

to

properties

of

the

Roman

Catholic

Church,

the

Archbishop

of

the

diocese

to which they belong may be a party (Versoza vs. Fernandez, G.R. No. L-25254, Nov"

22,

1926).

Phintiff

_-

one having

an

interest in the matter

of

the

action

or in

obtaining

the

relief

demanded. The term may refer

lo

lhe claiming

party,

the

counter-claimant,

the

cross-claimant,

or

the

third

(fourth,

etc.)-

pafty

plaintiff.

Defendant

-

one

claiming

an

interest

in

the controversy

or the

subject

thereof

adverse to the plaintiff . The term may also include:

1.

An unwilling co-plaintiff or one who should be joined as plaintiff but refuses to give his consentthereto (Sec. 10, Rule 3);

2.

The original plaintiff becoming a defendant to original defendant's counterclaim; and

3.

One

necessary

to a

complete

determination

or

settlement

of

the questions involved therein,

SECTION

2.

PARTIES IN INTEREST

Real

Party-in-lnterest

is the party who stands

to be

benefited

or

injured by

the

judgment in the suit or the party entitled to the avails of the suit.

Note:

To

be

a

real

party-in-interest,

the

interest

must

be

'real', which

is

a

presenf

substantial

interest

as

distinguished

from

a

mere

expectancy

or

a

future,

contingent subordinate or consequential interest.

ln

Oposa

vs-

Factoran

(G.R. No.

101083,

1993/, minors

represented

by

their

parents

were

held

as

real parties

in

interest

to file

an action

to

annul

timber

licenses issued by the state under the following principles:

a.

lnter-generational responsibility;

b.

lnter-generational justice;

c.

The right of the Filipinos to a balanced and healthfulecology; and

d.

Minors

represent themselves

and

the

It refers to a plaintiffs general disability to sue. such as on account of minority, insanity, incompetence, lack of juridical personality or any other general disqualifications of a

party.

The plaintiff

is

not the real party-i n-i nterest.

It can be a ground for a

motion to dismiss on the ground o'f lack

of

legat capacity to sue.

It

can

be

used

as

a

ground for

a

motion to dismiss based

on

the fact that the complaint,

on

the

face

thereof,

states

no'

cause

of action.

'

_{9m Ftls}

_Gstlegt

_of

_Lclo

2O1I CENTRALIZED

BAR OPERATIONS

.3.

4.

5.

an

action (must

he

joined

under

all

conditions).

Necessary parties

-

Those

who are

not indispensable

but ought

to

bb joined

as parties if complete relief is

to

be accorded

as

to

those

already parties,

or

for

a

complete

determination

or

settlement

of

the claim subject

of the

aclion (may

or may not be joined).

Representative parties

_-

Those acting in

fiduciary capacity

such

as

trustees,

guardians, executors,

or

administrators.

The

beneficiary

shall

be

included

in

the title of the case and shall be deemed to be the real party in interest.

Pro

forma

parties

_-

Those

who

are required

to

be joined as co-parties in suits

by

or

against another party

as

may

be provided by the applicable substantive law

or

procedural rule such

as

in

the

case of spouses under Sec. 4.

Quasi parties

_-

Those in whose behalf a class or representative suit is brought.

SECTION

3.

REPRESENTATIVES

AS PARTIES

A

representative

may

be

a

trustee

of

an

express

trust,

a

guardian,

an

executor

or administrator

or

a

party authorized

by law

or the Rules of Court.

Where

the

action

is

allowed

to be

prosecuted

or

defended

by

a

representative

or

$omeone acting

in

a

fiduciaqi

capacity,

the

beneficiary

shall

be

included

in the title of

the

case

ad

shall

be

deemed

to

be the

real

party-in-interest.

An

agent may sue

or be

sued without joining his principal except when the contract involves things belonging to the principal.

SECTION 4. SPOUSES AS PARTIES

General Rule:

Husband and wife shall sue or be sued jointly.

Exceptions

(lJncler the Family Code):

1.

A spouse without just cause abandons the

other

or

fails

to

comply with his

or

her obligations to the f;amily with respect to the marital, parental or property relations.

2.

A

spouse

of age

mortgages, encumbers, alienates

or

otherwise disposes

of

his

or her exclusive property.

3.

The

regime

of

separation

of

property

governs

the

property relations

of

the spouses. (Feria, 2001,

p.

231)

SECTION

5,

MINOR OR INCOMPETENT

Under the present rules, a suit may be brought by

or

against

a

minor

or

incompetent but with the assistance of his parents or his guardian.

A

person NEED NOT be judicially

declared

incompetent,

it

being

sufficient

that

his

incompetency

be

ALLEGED

in

the

corresponding pleadings.

SECTION

6.

PERMISSIVE JOINDER OF PARTIES

Permissive

rule on be

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1. 2. to 3.

Must

be

joined

under

any

and

all

conditions, their presence being a

sine qua non

for

the

exercise

of

judicial power.

Should

be

joined whenever possible, the action can proe,eed even

in their absence.

No

valid judgment

if indispensable

party

is not joined.

The

case

may

be

determined

in

court but the judgment therein will

not

resolve

the

entire

controversy

if

a necessary party

is

not joined.

They are those with such an interest in the controversy that a final decree would

necessarily affect their rights so that the court cannot proceed without their presence.

They

are

those whose presence is necessary to

adjudicate

the

whole controversy

but

whose

interests

are

so

tar separable

that

a

final decree can be made in

their

absence without affecting them.

REMEDIAL LAW

CIVIL

PROCEDURE

SECTION

7.

COMPULSORY

JOINDER

OF

INDISPENSABLE PARTIES

The

indispensable

party

must

always

be

included

in

the

suit.

ln

the absence of such

party,

the

court

should order

that

the indispensable

party be

included.

lt

shall

not

order the dismissal of the suit outright.

Only

when the party

ordered

to

implead the indispensable party

_{refuses or fails}

to

do so

shall the case be dismissed, on the ground of disobedience

to

the

Rules

or

orders

of

the court under Sec. 3

of

Rule 17.

The

absence

of

an

indispensable

party renders

all

subsequent actuations of the court

null and

void

for want

of

authority

to act

not

only as

to the

absent parties

but even as

to those present.

SECTION 8. NECESSARY PARTY

Also called PROPER PARTIES - those whose presence _is necessary to adjudicate the whole

controversy,

but

those interests

are so

far separable

that

a

final

decree

can be

made in

their

absence without affecting

them (Quisumbing

_{vs. CA, G.R. No. 93339}

_Sepf.

13,1990).

The

non-inclusion

of a

necessary party does not prevent the court from proceeding with the

action

and the

judgment therein

shall

be

without

prejudice

to

_the

rights

of

such

necessary party not impleaded.

Joint

Debtor - He is an indispensable party in a suit against him but a necessary party in a suit against his co-debtor.

Solidary

Debtor

-

ln

a

suit

brought

by

a

creditor against one solidary debtor, the other solidary debtor

is

NEITHER indispensabte nor a necessary party.

SECTION

9.

NON-JOINDER

OF

NECESSARY PARTIES TO BE PLEADED

Duty

of a

pleader whenever

a

necessary party

is

not

joined or impleaded:

1.

State

the

name

pf the

necessary party,

if

known; and

2.

State _{why said necessary party is omitted} in the pleading.

Should

the

court

find

the

reason

for

the

omission unmeritorious,

it

_may

order

the

inclusion

of

the

omitted necesiary party if

jurisdiction

_{over his}

_person

_{may be}

_obtained

by

ordering plaintiff

to

file an

amended

complaint impleading

the

necessary

party therein as

co{efendant.

Note: The failure

to

comply

with the

court's

order

to

include

or join

a

necessary

party

without justifiable cause shall be deemed

a waiver of the claim against such party.

SECTION

10.

UNW|LLING CO.PLAIXTIFF

lf

the

consent

of

any party who should

be joined

_as

plaintiff cannot

be

obtained,

he

may be made a defendant and the reason therefore shall be stated in the complaint.

SECTION

1'1.

MISJOINDER

AND

NON.

JOINDER OF PARTIES

A

party

is

MISJOINED

when

he

is

made

a party

to the

action although

he

should not be impleaded.

A

party is NOT JOINED when he is supposed to be joined but

is

not impleaded in

the

action (Riano,2007,

p.

195).

Neither misjoinder nor non-joinder of parties is a ground for dismissal of the action.

Exception:

Secflon

7,

Rule 3 in relation to the disobedience to

the

rules or order of the court for the inclusion of an indispensable party.

Note:

Objections

to

defects

in

parties should

be made at the earliest

opportunity, r.e., the moment such defect becomes apparent,

by

a

MOTION

TO

STRIKE

THE

NAMES

OF

THE

PARTIES impleaded. Objedtions to misjoinder cannot be raised for the first time on appeal.

sEcTtoN

12. CLASS SU|T

and

one of