Late Demurrer Remedies in the Philippines – A Comprehensive Guide
Updated as of 15 May 2025
1. Introduction
A demurrer invites the court to dismiss a case (or render a verdict of acquittal in a criminal action) on the ground that the evidence already adduced is legally insufficient. “Late demurrer” problems arise when the motion is filed outside the reglementary periods fixed by the Rules of Court or by a standing order of the trial court. Because the consequence of a mistimed demurrer can be draconian—waiver of the right to adduce evidence, or outright denial without hearing—Filipino litigators must know the procedural escape hatches that remain after the period has lapsed.
2. Statutory and Rule-Based Foundations
| Branch | Governing Rule | Key Deadlines |
|---|---|---|
| Civil | Rule 33 (Demurrer to Evidence) | File after the plaintiff rests and within the period the court sets (customarily 10 days). |
| Criminal | Rule 119 §23 (Demurrer to Evidence) | 5 days from notice that the prosecution has rested. |
| Administrative / Quasi-Judicial | E.g., CTA Rule 14, Sandiganbayan Internal Rules | Usually 10 days; the tribunal may shorten/extend. |
Note: The former “demurrer to complaint” of pre-1997 Rule 16 is now a motion to dismiss. Occasional older cases still call such motions “demurrers,” but the late-filing remedies follow Rule 16, not Rule 33.
3. Consequences of a Late Demurrer
| Scenario | Civil Case | Criminal Case |
|---|---|---|
| With prior leave of court | Court may still admit the motion pro hac vice upon showing of compelling rationale (e.g., supervening law, newly discovered jurisprudence). | Court may still admit; if later denied, the accused retains the right to present evidence. |
| Without leave of court | If denied, defendant waives right to present evidence (Rule 33, last paragraph). | If denied, accused irrevocably waives right to present evidence (Rule 119 §23). |
| Court refuses to act because filing was late | Demurrer is stricken; case proceeds to judgment on the existing record (often for plaintiff). | Court issues order declaring motion pro forma; trial proceeds to defense stage (if leave was previously reserved) or straight to judgment. |
4. Curative Remedies When the Demurrer Is Late
4.1 Preventive: Ask for Time—Even After the Clock Expires
Motion for Extension (nunc pro tunc). Grounds: accident, excusable negligence, or force majeure; cite Fuentes v. Sandiganbayan (G.R. 144757, 25 May 2001) where a two-day late demurrer was admitted “in the higher interest of justice.”
Motion for Leave to Admit Demurrer Out of Time. Combine with a very concise draft demurrer so the judge immediately sees the alleged fatal infirmity in the evidence.
Tip: Always attach proof that the delay was not for dilatory purposes (e.g., counsel’s medical emergency, voluminous records only recently received).
4.2 If the Court Denies or Ignores the Late Demurrer
Motion for Reconsideration. Civil: Invoke the liberal policy in Heirs of Malate v. Gamboa (G.R. 202225, 5 Feb 2018) where SC stressed that adjudication must be on the merits, not technicalities. Criminal: Stress the constitutional preference for acquittal where reasonable doubt persists (People v. Go, G.R. 178539, 19 Aug 2015).
Present Evidence (Civil) / Waiver Dilemma (Criminal).
- Civil: Seek reopening under Rule 30 §5 before judgment or even after submission, citing Traders Royal Bank v. Arao (G.R. 136586, 10 Apr 2003).
- Criminal: If demurrer was with leave but late, the court often conditions admission on waiver of further extensions; prepare to proceed with defense evidence immediately.
Petition for Certiorari (Rule 65). File directly with the Court of Appeals (or SC for Sandiganbayan cases) before judgment becomes final, alleging grave abuse of discretion for refusal to entertain a demurrer despite patent insufficiency of evidence (Aquino v. Sandiganbayan, G.R. 168639, 5 Apr 2010).
Appeal / Petition for Review.
- Civil: Interlocutory orders are generally not appealable, but an adverse judgment on the merits following denial of a late demurrer is.
- Criminal: A judgment of conviction may be appealed; the appellant can urge that the trial court erred in refusing the demurrer, which—if sustained—results in acquittal.
Petition for Relief from Judgment (Rule 38). An extreme remedy where judgment was entered because the late demurrer was disregarded and the movant had no chance to contest.
Bill of Exceptions / Record on Appeal (for pre-2019 transitional cases). Still occasionally required in agrarian or special jurisdiction courts.
5. Key Jurisprudential Themes
| Case | G.R. No. / Date | Take-Away |
|---|---|---|
| People v. Go | 178539, 19 Aug 2015 | SC allowed Sandiganbayan to entertain a demurrer filed beyond the 5-day period because the prosecution’s evidence on falsification was “scant.” |
| Aquino v. Sandiganbayan | 168639, 5 Apr 2010 | Certiorari will lie if the trial court capriciously denies an obviously meritorious demurrer filed one day late. |
| PNB v. Ritratto | 193261, 17 Oct 2018 | In civil suits, late demurrers may be treated as late motions to dismiss on grounds that can be raised any time (e.g., lack of jurisdiction). |
| Fuentes v. Sandiganbayan | 144757, 25 May 2001 | Even the Sandiganbayan may relax its own 10-day rule in “exceptional cases.” |
| People v. Dizon | 199085, 3 Dec 2019 | Accused who filed late demurrer without leave and was denied cannot claim denial of due process after conviction. |
6. Strategic Considerations for Practitioners
Calendar the Reglementary Period Immediately. In criminal cases, that five-day window is non-extendible by default.
Always Seek Leave When in Doubt. The safety valve of being allowed to present evidence later is worth the (slight) concession that the court must first grant permission.
Attach a Draft Order for the Judge. Many late demurrers survive because counsel made it easy for the court to grant relief.
Argue Substantive Jurisdictional Defects. If the complaint or information shows lack of cause of action or offense not charged, courts may consider dismissal motu proprio even if your demurrer is tardy.
Avoid “Shotgun” Motions. A late demurrer loaded with factual disputes signals dilatory intent and is likely to be denied.
7. Special Rules in Quasi-Judicial Tribunals
- Court of Tax Appeals: Rule 14 requires demurrers within 10 days; late motions may still be entertained when the deficiency assessment is patently void.
- NLRC / Labor Arbiters: The concept of demurrer is foreign, but a motion to dismiss after complainant’s evidence (rarely granted) can be analogized to Rule 33.
- Sandiganbayan: Internal Rules mirror Rule 119 but allow the division chairperson to grant equitable extensions for “good and sufficient cause.”
8. Drafting Template – Motion for Leave to File Demurrer Out of Time (Civil)
Republic of the Philippines
REGIONAL TRIAL COURT
Branch ___, City of _____
Plaintiff, Civil Case No. ______
versus For: [Specify]
DEFENDANT. x---------------------------x
MOTION FOR LEAVE TO FILE DEMURRER TO EVIDENCE OUT OF TIME
Accused, by counsel, respectfully states:
1. Plaintiff rested its case on 6 May 2025. Under the Court’s Order dated 7 May 2025, defendant had until 13 May 2025 to file a demurrer.
2. Due to counsel’s hospitalization from 9–12 May 2025 (see Annex “A,” medical certificate), the deadline was missed **without intent to delay**.
3. The attached Demurrer (Annex “B”) squarely shows that plaintiff’s sole documentary exhibit is **inadmissible for being unauthenticated**, hence judgment on the pleadings is proper.
WHEREFORE, premises considered, defendant prays that the attached Demurrer be admitted **nunc pro tunc** and that trial be held in abeyance pending its resolution.
City of _____, 15 May 2025. (Signature)9. 2019 Amendments to the Rules of Civil Procedure
Although Rule 33 itself was not amended, two related changes indirectly affect late demurrers:
- Shorter periods for filing responsive pleadings (Rule 11), nudging courts to impose tighter timetables for demurrers.
- Mandatory case flow management orders (Rule 18), often stipulating that any demurrer must be filed within a fixed number of days—treat missing that date as contemporaneous waiver unless leave is first obtained.
10. Conclusion
A late demurrer is not necessarily a lost cause in Philippine practice. The Rules of Court—tempered by a long line of decisions prioritizing substantial justice over technicality—equip litigants with several remedial pathways:
- Move for extension or leave grounded on compelling reasons;
- If denied, pursue reconsideration, certiorari, or appeal;
- In criminal cases, weigh the peril of waived evidence against the potential payoff of outright acquittal.
The overarching lesson is elementary but often forgotten: calendar deadlines, file early, and keep draft demurrers ready. When that fails, marshal the equitable doctrines and jurisprudence surveyed above—and you may yet rescue the case from a lethal filing error.
This article is for educational purposes only and does not constitute legal advice. When faced with an actual controversy, consult counsel and the latest official text of the Rules and Supreme Court decisions.