Koko Bar 2019 Judge Gener Gito Remedial law PDF

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KokoBar 2019 Remedial Law: Judge Gener Gito, LL. D.C.PRE-WEEK NOTES IN REMEDIAL LAWfor 2019 BAR EXAMINATION by: JUDGE GENER M. GITO, LL. D.C.I. JURISDICTION It is the power and authority of the court to hear, try, and decide the case ( Continental Micronesia, Inc., vs. Basco, GR Nos. 178382 -83, Sep...

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PRE-WEEK NOTES IN REMEDIAL LAW for 2019 BAR EXAMINATION by: JUDGE GENER M. GITO, LL.M. D.C.L.

I.

JURISDICTION 1.

It is the power and authority of the court to hear, try, and decide the case (Continental Micronesia, Inc., vs. Basco, GR Nos. 178382-83, September 23, 2015; Barangay Mayamot vs. Antipolo City, GR No. 187349, August 17, 2016). Jurisdiction of the court includes the authority to execute its decision. It includes the power of the court to control the execution of its decision (Echegaray vs. Secretary of Justice, 301 SCRA 96, 108).

2.

A commercial case was filed in an RTC which is not designated as a Commercial Court. The said Court dismissed the case for lack of jurisdiction. Is the dismissal correct? NO. The dismissal is not correct. It should have been referred to the RTC designated by the SC as a Commercial Court (Gonzales vs. GJH Land, 2015).

3.

How is jurisdiction over the subject matter determined? ANSWER: It is determined by the allegations in the complaint, as well as by the character of the relief sought (Geronimo vs. Calderon, GR No. 201781, December 10, 2014; Cabling vs. Dangcalan, GR No. 187696, June 15, 2016). This is regardless of whether or not the plaintiff is entitled to recover all or some of the claims or reliefs sought therein (Continental Micronesia, Inc., vs. Basco, GR Nos. 178382-83, September 23, 2015; Barangay Mayamot vs. Antipolo City, GR No. 187349, August 17, 2016). Thus, Caption of the case is not controlling (Sps. Erotica vs. Sps. Dumlao, GR no. 195477, January 25, 2916). Defenses and evidence do not determine jurisdiction (Balibago Faith Baptis Church, Inc., Faith in Christ Jesus Baptist church, GR No. 191527, August 22, 2016). The amount awarded does determine jurisdiction (Dionisio vs. Sison Puerto, 60 SCRA 471, 477).

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4.

What if the defendant in an ejectment case raise the issue of tenancy in his answer, should the court dismiss the case for lack of jurisdiction? ANSWER: While the MTC does not lose its jurisdiction over an ejectment case by defendant’s alleging the existence of tenancy relationship, yet, if after the hearing, tenancy had in fact been shown, the court should dismiss the case for lack of jurisdiction (De la Cruz, vs. CA, 510 SCRA 103, 116).

5.

What is jurisdiction over the parties? Jurisdiction over the parties refers to the power of the court to make decisions that are binding on persons (De Pedro vs. Romasan, supra). It is the legal power of the court to render a personal judgment against the party to an action or proceeding (Black’s Law Dictionary, 5th Ed., 767, cting Imperial vs. Hardy, La 302 So.2d 5, 7, cited in Riano, Civil Procedure, 2016).

6.

How is jurisdiction over the parties acquired? Plaintiff upon the filing of the compliant. Defendant – upon valid service of summons and voluntary appearance. To constitute voluntary appearance, it must be the kind that amount to voluntary submission to the jurisdiction of the court. Submission to the jurisdiction of the court takes the form of appearance that seeks affirmative relief except when the relief sought is for the purpose of objecting to the jurisdiction of the court over the person of the defendant. Thus, if he participates in the trial despite defective service of summons tantamounts to voluntary appearance (De Pedro vs. Romasan Development, supra).

7.

What is the concurrent jurisdiction? When two or more court can exercise original jurisdiction over the case. For example, certiorari petition, the RTC, CA and SC have original and concurrent jurisdiction. If this is the case, then, the PRINCIPLE OF HIERARCHY OF COURTS WILL APPLY.

8.

Primary Jurisdiction - The doctrine holds that if a case is such that its determination requires the expertise, specialized training, and knowledge of an administrative body, relief must first be obtained in an administrative proceeding before resort to the court is had even if the matter may well be within the latter's proper jurisdiction. The objective of the doctrine of primary jurisdiction is to guide the court in determining

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whether it should refrain from exercising its jurisdiction until after an administrative agency has determined some question or some aspect of some question arising in the proceeding before the court (Nestle, Philippines, Inc., et al. v. Uniwide Sales, Inc., et al., 648 Phil. 451, 459 (2010). II.

FILING FEE 1. It has been long settled that while a court acquires jurisdiction over the case only upon payment of the docket fees, its nonpayment at the time of the filing of the complaint does not automatically cause the dismissal of the case, provided the fees are paid within a reasonable time. Even inadequate payment of filing will not divest the court of its jurisdiction. This rule is applicable even if the claim for damages of the plaintiffs is metered or progressing as case the case is pending (Unicapital vs. Consing, 2013).

III.

INDIGENT LITIGANT 1. Who is an indigent litigant? An indigent is someone whose income, and that of his immediate family, does not exceed double the monthly minimum wage AND does not own real property with the fair market value exceeding P300,000. If he is an indigent litigant, he is not required to pay filing fee.

IV.

ACTION 1.

What is a cause of action? Act or omission by which a party violates the right of another (Section 2, Rule 2).

2.

What is the test to determine whether a complaint state a cause of action of not? If the court can render a valid judgment based on the allegation in the complaint, the complaint states a cause of action. As a general rule, evidence aliunde should not be considered. But annexed documents to the complaint may be considered because they are part of the complaint (Sea Land Service, Inc., vs. CA, 327 SCRA 135).

3.

What is splitting of cause of action? An act of a party of instituting more than one suit for a single cause of action. A single cause of action may give rise to several remedies. The

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availment of these remedies is prohibited as it is tantamount to splitting of cause of action.

V.

4.

What is joinder of causes of action? It is the assertion in one pleading, in alternative or otherwise, as many causes of action as he may have against an opposing party (Sec. 5, Rule 2).

5.

What are the conditions that the joinder of parties is subject to: 1) The joinder shall not include special civil actions or actions governed by special rules; 2) Where the causes of actions are between the same parties but pertain to different venues or jurisdictions, the joinder may be allowed in the RTC provided one of the cause of actions falls within the jurisdiction of said court and venue lies therein; 3) Where the claims in all causes of action are principally for recovery of money, the aggregate amount claimed shall be the test of jurisdiction (Section 5, Rule 2).

6.

When is joinder of parties allowed? All persons in whom or against whom any right to relief in respect to or arising out of the same transaction or series of transactions is alleged to exist, whether jointly, severally or in the alternative, may, except as otherwise provided in these Rules, join as plaintiffs or be joined as defendants in one complaint, where any questions of law or fact common to all such plaintiffs or to all such defendants may arise in the action (Section 6, Rule 3).

PARTIES 1.

Who is real party in interest? A real party in interest is the party who stand to be benefited and injured by the judgment of the suit, or the party entitled to the avails of the suit. Unless otherwise authorized by law or the rules of court, every action must be prosecuted or defended in the name of the real party in interest. (Sec. 2, Rule 3). The determination of who the real party in interest is requires the examination of elements of a cause of action. A cause of action involves the existence of a right and violation of such right. Thus, the owner of the right violated is the real party in interest as plaintiff and the one violating the right is the real party in interest as defendant.

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2.

What is the effect if the party is not a real a real partyininterest? The complaint may be dismissed for lack of cause of action if the defendant is not the real-party-interest (Sec.1(g), Rule 16). If the plaintiff is not the real partyininterest, complaint may be dismissed under (Section 1(d), Rule 16).

3.

Who is an indispensable party? An indispensable party is rea party in interest without whom no final determination can be had of an action. Indispensable parties shall be joined as plaintiffs or defendants (Sec. 7, Rule 3).

4.

What is the effect of failure to implead an indispensable party? Failure to join an indispensable party will not result in the outright dismissal of the action. Instead, parties may be dropped or added by the court on motion of any party or on its own initiative at any stage of the action and on such terms as are just. (Sec. 11, Rule 3). It is when the order of the court to implead an indispensable party goes unheeded may the case be dismissed for failure to comply with the order of the Court (Sec. 3, Rule 17; Plasabas vs. CA 582 SCRA 686). Any decision rendered by a court without first obtaining the required jurisdiction over indispensable parties is null and void for want of jurisdiction (Florete, Jr. vs. Florete, Sr. GR 174909, January 20, 2016), not only as to the absent parties but even as to those present (People vs. Go, GR 201644, September 24, 2014).

5.

Who is a necessary party? It is one who is not indispensable but who ought to be joined as a party 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 action (Sec. 8, Rule 3).

6.

What is the duty of a pleader is a necessary party is not joined? Whenever in any pleading in which a claim is asserted a necessary party is not joined, the pleader shall set forth the name of the necessary party, if his name is known, and shall state why such party is omitted (Sec. 9, Rule 3).

7.

May the Court order joinder of necessary party? If the reason given for the non-joinder of necessary party is found by the court not meritorious, it may order the pleader to join the omitted party if jurisdiction over his person may be obtained (Sec. 9, Rule 3).

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8.

What is the effect of failure to comply with the order of the Court? It shall be deemed a waiver of claim against such party. (Sec. 9, Rule 3)

9.

What is the effect if the non-inclusion of the necessary party is justified? The non-inclusion of a necessary party does not prevent the court from proceeding in the action, and the judgment rendered therein shall be without prejudice to the rights of such necessary party. (Sec. 9, Rule 3)

10.

In the case of Aceron v. Ang, a case for collection of a sum of money was filed by Atty. Aceron in behalf of Theodore and Nancy Ang. Theodore and Nancy reside in California, they’re non-residents, while defendants reside in Bacolod. The action was filed by Atty. Aceron in Quezon City where he resides. A motion to dismiss was filed but it was denied by RTC. The question is: is the representative-lawyer a real party in interest, making the filing of the complaint in court to be in the place where he resides? Answer: No. The representative is just a representative and NOT a real party in interest.

11.

Is misjoinder of parties or non-joinder of parties a ground for dismissal of an action? Neither misjoinder nor nonjoinder of parties is a ground for dismissal of an action. Parties may be dropped or added by order of the court, on motion of any party or upon its own initiative at any stage of the action and on such terms as are just. Any claim against a misjoined party may be severed or proceeded with separately. (Sec. 11, Rule 3)

12.

What is a class suit? When the subject matter of controversy is one of common or general interest to many persons so numerous that it is impracticable to join them all as parties, a number of them which the court finds to be sufficiently numerous and representative as to fully protect the interest of all concerned may sue or defend for the benefit of all. (Sec. 12, Rule 3).

13.

Requisites of class suits. 1) The subject matter of the controversy is one of common or general interest to many persons. 2) The parties are so numerous that it is impracticable to bring them all before the court. 3) The object of the suit is to obtain relief for or against numerous persons.

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VI.

14.

What is common or general interest? A class suit does not require a commonality of interest in the questions involved in the suit. What is required by the Rules is a common or general interest in the subject matter of the litigation. The “subject matter” of the litigation meant the physical, the things real or personal, the money, lands, chattels, and the like, in relation to the suit which is prosecuted and not the delict or wrong committed by the defendant (Mathay vs. Consolidated Bank & Trust Co., 58, SCRA 559, 571).

15.

What is the duty of the lawyer if case of a party dies? If the party dies and the claim is not extinguished, his duty is to inform the court of such fact within 30 days after such death and to give the name and address of the legal representatives of the deceased party. (Sec. 16, Rule 3).

16.

May the heirs of the deceased party be allowed to substitute? Yes. The heirs of the deceased may be allowed to be substituted for the deceased without need for the appointment of executor or administrator (Sec. 16, Rule 3).

17.

What is the rule in an action for sum of money if one of the defendant dies? When the action is for recovery of money, arising from contract, express or implied and the defendant dies before entry of final judgment in the court in which the action was pending at the time of such death, it shall not be dismissed but it shall be allowed to continue until final judgment. Favorable judgement shall be claimed in the estate proceedings of the deceased defendant (Sec. 20, Rule 3).

VENUE 1.

Venue is the place or the geographical area in which a court with jurisdiction may hear and determine a case or the place where a case is to be tried (Black’s Law Dictionary; City of Lapu-Lapu vs. PEZA, GR No. 184203, November 26, 2014). Venue in civil cases is procedural and not substantive. Thus, it may be waived or subject to agreement of the parties.

2.

What is the basic consideration in determining venue of the action? The venue of the action would be determined is the determination of whether an action is real or personal. SECTION 1. Venue of Real Actions. — Actions affecting

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title to or possession of real property, or interest therein, shall be commenced and tried in the proper court which has jurisdiction over the area wherein the real property involved, or a portion thereof, is situated (Rule 4). SECTION 2. Venue of Personal Actions. — All other actions may be commenced and tried where the plaintiff or any of the principal plaintiffs resides, or where the defendant or any of the principal defendants resides, or in the case of a non-resident defendant where he may be found, at the election of the plaintiff. (Rule 4). 3.

What is the meaning of “residence” in personal action? It means the place of abode, whether permanent of temporary, of the plaintiff or the defendant, as distinguished from “domicile” which denotes a fixed permanent residence to which, when absent, one has the intention of returning (Dangwa Transporation Company vs. Sarmiento, GR No. L22795, January 31, 1977). Residence of a domestic corporation is the place within the Philippines, where its principal office is located (Section 14[3], Corporation Code; Cohen vs. Benguet Commercial Co., 34 Phil. 526).

4.

Stipulations as to venue. The parties may agree on a specific venue which could be in a place where neither of them resides (Universal Robina Corporation vs. Lim, 535 SCRA 95, 99). In real actions, like unlawful detainer, the parties may stipulate on a venue other than the place where the real property is situated (Union Bank of Philippines vs. Maunlad Homes, Inc., 678 SCRA 539, 550).

5.

Requisites of stipulations on exclusive venue: 1) It must be in writing; 2) It must be made before filing of an action; 3) The agreement must be exclusive.

6.

NOTE: to make it exclusive there must words with restrictive meaning - Examples of words with restrictive meanings are: “only”, “solely”, “exclusive in this court”, “in no other courts, save..”, “particularly”, “no where else but/except” or words of equal import (Pacific Consultants International Asia, Inc., vs. Schonfeld, 516 SCRA 209,229).

7.

PLEASE TAKE NOTE: A restrictive stipulation on venue is not binding when the validity of the contract is assailed (Briones vs. CA, GR No. 204444, January 14, 2015).

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VII.

8.

The case of Paglaom involves multiple contracts (real estate mortgage 1, 2 and 3, then a restructuring agreement). In that case, which venue stipulation will apply? In the first contract, sabi Manila excluding all other venues. In the 2nd contract, Cebu excluding all other venues. The party defaulted in its obligation so the loan was restructured. A new one was executed and then there is now a venue stipulation. Which venue stipulation will apply in the event of litigation? It will be the most recent one. Because it supersedes the other contracts.

9.

What if a promissory note has no venue stipulation, but there is a mother loan agreement. The amount appearing on the promissory note was not paid when due so an action for collection for sum of money was instituted. What venue will have to be followed? The Supreme Court said that if the mother contract was directly connected and intertwined with the promissory note, then the promissory note will be bound by the venue stipulation.

PLEADING 1.

Compulsory counterclaim. A compulsory counterclaim is one which, being cognizable by the regular courts of justice, arises out or is connected with the transaction or occurrence constituting the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. Such counterclaim must be within the jurisdiction of the court both as to the amount and the nature thereof, except that in the original action before the RTC, the counterclaim may be considered compulsory regardless of the amount (Section 7, Rule 6).

2.

Elements of compulsory counterclaim. 1) It arises out of or is necessarily connected with the transaction or occurrence which is the subject matter of the opposing’s party’s claim. 2) It does not req...