Thursday, January 22, 2015

NEGATIVE PREGNANT:

     "If an allegation is not specifically denied or the denial is a negative pregnant, the allegation is deemed admitted." "Where a fact is alleged with some qualifying or modifying language, and the denial is conjunctive, a ‘negative pregnant’ exists, and only the qualification or modification is denied, while the fact itself is admitted." "A denial in the form of a negative pregnant is an ambiguous pleading, since it cannot be ascertained whether it is the fact or only the qualification that is intended to be denied." "Profession of ignorance about a fact which is patently and necessarily within the pleader's knowledge, or means of knowing as ineffectual, is no denial at all."

Tuesday, January 20, 2015

AMENDMENT OF SECTION 12, RULE 14 OF THE RULES OF COURT ON SERVICE OF SUMMONS UPON FOREIGN PRIVATE JURIDICAL ENTITY:

   When the defendant is a foreign private juridical entity which has transacted business in the Philippines, service may be made on its resident agent designated in accordance with law for that purpose, or, if there be no such agent, on the government official designated by law to that effect, or on any of its officers or agents within the Philippines.  x x x If the foreign private juridical entity is not registered in the Philippines or has no resident agent, service may, with leave of court, be effected out of the Philippines through any of the following means: (a) By personal service coursed through the appropriate court in the foreign country with the assistance of the Department of Foreign Affairs; (b) by publication once in a newspaper of general circulation in the country where the defendant may be found and by serving a copy of the summons and the court order by registered mail at the last known address of the defendant; (c) by facsimile or any recognized electronic means that could generate proof of service; or (d) by such other means as may be warranted in the discretion of the court”

Wednesday, January 14, 2015

CAUSE OF ACTION:

     Cause of action is defined as the act or omission by which a party violates a right of another. It is well-settled that the existence of a cause of action is determined by the allegations in the complaint. In this relation, a complaint is said to assert a sufficient cause of action if, admitting what appears solely on its face to be correct, the plaintiff would be entitled to the relief prayed for. Accordingly, if the allegations furnish sufficient basis by which the complaint can be maintained, the same should not be dismissed, regardless of the defenses that may be averred by the defendants.

Tuesday, January 13, 2015

FAILURE TO STATE A CAUSE OF ACTION VS. LACK OF CAUSE OF ACTION:

      Failure to state a cause of action refers to the insufficiency of the pleading, and is a ground for dismissal under Rule 16 of the Rules of Court. On the other hand, lack of cause action refers to a situation where the evidence does not prove the cause of action alleged in the pleading. x x x If the allegations of the complaint do not aver the concurrence of the elements of cause of action, the complaint becomes vulnerable to a motion to dismiss on the ground of failure to state a cause of action. Evidently, it is not the lack or absence of a cause of action that is a ground for the dismissal of the complaint but the fact that the complaint states no cause of action. Failure to state a cause of action may be raised at the earliest stages of an action through a motion to dismiss, but lack of cause of action may be raised at any time after the questions of fact have been resolved on the basis of the stipulations, admissions, or evidence presented.

Monday, January 12, 2015

JURISDICTION:

   In order for the Court to acquire jurisdiction over an administrative case, the complaint must be filed during the incumbency of the respondent. Once jurisdiction is acquired, it is not lost by reason of respondent’s cessation from office. The Judge’s compulsory retirement will divert the OCA of its right to institute a new administrative case against him after his compulsory retirement. The Court can no longer acquire administrative jurisdiction over a Judge by filing a new administrative case against him after he has ceased to be a public official. The remedy, if necessary, is to file the appropriate civil or criminal case against respondent for the alleged transgression.