A M I S T A D : We live to serve!!!
(A ’99)
Aileen, Beng, Dinah, Jo Leah, Lourie, Mamay.WPS, Marisa (soon to be Claudia?), Minnie, Peter, Riza
With the special participation of the Obiter Master Ella And the former “slave-master” turned into slave! --
FRITZIE
RULE 104
VOLUNTARY DISSOLUTION OF  then in a newspaper of General
CORPORATIONS
( The Dissolution of Corporations should
now be filed with the SEC, and is covered by
Secs. 117 to 122 of the Corporation Code of
the Philippines (BP 68) which took effect on
May 1, 1980.
Dissolution - when the corporation ceases
to be a juridical person.
§117. Methods of Dissolution. A
corporation formed or organized under the
provisions of this Code may be dissolved
voluntarily or involuntarily.
 NOTES :   A: Both issue their respective resolutions
Q: How many ways are there to dissolve a
corporation?
A: Two ways--voluntary & involuntary.
Q: How many ways of dissolving
voluntarily?
A: Three:
 Voluntary dissolution where no creditors
are affected (Sec. 118)
 Voluntary dissolution where creditors are
affected (Sec. 119)
 Dissolution by shortening corporate
term
(Sec. 120)
§118. Voluntary dissolution where no
creditors are affected.
In case dissolution of a corporation does
NOT prejudice the rights of any creditor having a
claim against such corporation, then such
dissolution may be effected
 by majority vote of the BOD or trustees,
and
 by a resolution duly adopted by the
affirmative vote of the stockholders
owning at least 2/3 of the outstanding
capital stock or of at least 2/3 of the
members
at a meeting to be held upon call of the dirs. or
trustees
 after publication of the notice
 of the time, place and object of the
meeting
 for 3 consecutive weeks
 in a newspaper published in the place
where the principal office of said
91
corporation is located; and if no
newspaper is published in such place,
circulation in the Philippines, (after
sending such notice to each stockholder
or member either by registered mail or
personal delivery at least 30 days prior
to said meeting.
A copy of the resolution authorizing the
dissolution shall be
 certified by a majority of the BOD or
trustees
 and counter-signed by the secretary of
the corporation.
The SEC shall thereupon issue the certificate
of dissolution.
NOTES:
Q: How do directors and stockholders vote?
duly adopted by affirmative votes of the
required no. (BOD-majority; SH-2/3 OCS)
Q: Publication for 3 consecutive weeks?
A: Actually, once a week for three
consecutive weeks. This is the common
req’t in procedure. (Maybe an oversight or
already considered understood.)
Q: What is the President’s role here?
A: The President signs the Resolution.
§ 119. Voluntary dissolution where
creditors are affected.
Where the dissolution of a corporation
may prejudice the rights of any creditor, a
petition for dissolution shall be filed with the
SEC.
The petition shall be
 signed by a majority of its BOD or trustees or
other officers having the management of its
affairs,
 verified by its president or secretary or one
of its directors, or trustees, and
 shall set forth
 all claims and demands against it, and
 that its dissolution was resolved upon
the affirmative vote of the stockholders
representing
 at least 2/3 of the outstanding
capital stock or by
 at least 2/3 of the members, at a
meeting of its stockholders or
members called for that purpose.
 A M I S T A D : We live to serve!!! (A ’99)
Aileen, Beng, Dinah, Jo Leah, Lourie, Mamay.WPS, Marisa (soon to be Claudia?), Minnie, Peter, Riza
With the special participation of the Obiter Master Ella And the former “slave-master” turned into slave! --
FRITZIE
If the petition is sufficient in form and
substance, the Commission shall, by an ORDER
reciting the purpose of the petition,
 fix a date on or before which objections
thereto may be filed by any person,
 which date shall not be less than 30 days nor
more than 60 days after the entry of the
order.
Before such date, a copy of the order shall
be published
 at least once a week for 3 consecutive
weeks
 in a newspaper of General circulation
( published in the municipality or city
where the principal office of the
corporation is situated, or if there be no
such newspaper, then in a newspaper of
General circulation in the Phils.,
and a similar copy shall be posted
 for 3 consecutive weeks
 in 3 public places
 in such municipality or city.
Upon 5 days notice, Given AFTER the
date on which the right to file objections as fixed
in the order has expired, the Commission shall
proceed to
 hear the petition and
 try any issue made by the objections
filed;
and IF
 no such objection is sufficient, AND
 the material allegations of the petition
are true,
it (Commission) shall
 render judgment dissolving the
corporation and
 directing such disposition of its
assets as justice requires, and
 may appoint a receiver to collect
such assets and pay the debts of the
corporation.
NOTES:
Just note that the date fixed is a deadline,
on or before which objections to the petition
may be filed.
§ 120. Dissolution by shortening of
corporate term. A voluntary dissolution
may be effected by amending the AOI to shorten
the corporate term pursuant to the provisions of
this Code.
A copy of the amended AOI shall be
submitted to the SEC in accordance with this
Code.
Upon approval of the amended AOI or
 the expiration of the shortened term, as
the case may be,
 the corporation shall be deemed
dissolved without any further
92
proceedings, subject to the provisions of
this Code on liquidation.
NOTES:
Q: When is the corporation deemed
dissolved?
A: Two instances:
1. Upon approval of the Amended AOI,
OR
2. the expiration of the shortened term
Actually, the ff. are the rules:
 If expiration date is before approval by
SEC  corpo dissolves upon approval
 If expiration date is after approval by
SEC  corpo dissolves on the date of
expiration of term
 If the SEC does not act on petition within
6 mos. from the date of filing (Sec. 16,
Corpo Code)  corpo dissolves either
 on the day after the 6-mo. pd.
(if date of expiration was within
the 6-mo. pd.)
 or on the date of expiration of
term (if date is after the 6-mo.
pd.).
e.g.:
Date filed petition: Jan. 1, 1998
Expiration of Shortened Term: May 1,
1998
6 mos. ends on: July 1, 1998
1) If approved by SEC on April 1
 Dissolution on May 1 (exp. Of
shortened term)
2) If approved on May 15
 Dissolution on May 15 (date of
approval)
3) Not acted upon within 6 mos.
 Dissolution on July 2 (day after the 6
mo. pd)
( Note that failure of the SEC to act on the
petition within 6 months, as contemplated
by above rules, must not be due to the fault
of corporation.
§ 122. Corporate Liquidation.
Every corporation whose charter expires by
its own limitation or is annulled by forfeiture or
otherwise, or whose corporate existence for
other purposes is terminated in any other
manner, shall nevertheless be continued as a
 A M I S T A D : We live to serve!!! (A ’99)
Aileen, Beng, Dinah, Jo Leah, Lourie, Mamay.WPS, Marisa (soon to be Claudia?), Minnie, Peter, Riza
With the special participation of the Obiter Master Ella And the former “slave-master” turned into slave! --
FRITZIE
body corporate for 3 years after the time when it
would have been so dissolved,
for the purpose of
 prosecuting and defending suits by or
against it
 enabling it to settle and close its affairs,
 to dispose of and convey its property
and
 to distribute its assets,
BUT NOT for the purpose of continuing
the business for which it was established.
At any time during said 3 years, said
corporation is authorized and empowered to
convey all of its property to trustees for the
benefit of
 stockholders,
 members,
 creditors, and
 other persons in interest.
From and after any such conveyance by
the corporation of its property in trust for the
benefit of its stockholders, members, creditors,
and others in interest,
 all interest which the corporation had in
the property terminates,
 the legal interest vests in the trustees,
and
 the beneficial interest in the
stockholders, members, creditors, and
other persons in interest.
Upon the WINDING UP of the corporate
affairs, any asset distributable to any creditor or
stockholder or member who is unknown or
cannot be found shall be escheated to the city or
municipality where such assets are located.
Except by decrease of capital stock and
as otherwise allowed by this Code, no
corporation shall distribute any of its assets or
property except
 upon lawful dissolution and
 after payment of all its debts and
liabilities.
NOTES:
Q: For what purpose is the continuation as
a body corporate?
A: For purpose of winding up.
§121. Involuntary dissolution. A The action must be brought within the same
corporation may be dissolved by the SEC upon
filing of a verified complaint and after proper
notice and hearing on Grounds provided by
existing laws, rules and regulations.
RULE 105
JUDICIAL APPROVAL 
OF VOLUNTARY RECOGNITION  Art. 173, FC. The action to claim legitimacy may be
93
OF MINOR NATURAL CHILDREN
Sec. 1. Venue.-- Where judicial
approval of a voluntary recognition of a
minor natural child is required, such child
or his parents shall obtain the same by
filing a petition to that effect with the RTC
in which the child resides.
1. MEANING OF VOLUNTARY
RECOGNITION
VOLUNTARY RECOGNITION is an admission
of the fact of paternity or maternity by the
presumed parent, expressed in the form
prescribed by the NCC.
Its essence lies in the avowal of the parent
that the child is his; the formality is added
to make the admission incontestable, in
view of its consequences.
The FORM is prescribed by Art. 278 of the
NCC:
RECOGNITION shall be made in the
 record of birth
 a will
 a statement before a court of
record
 or in any authentic writing.
Judicial approval is needful if the recognition
of the minor is effected, not through a
record of birth or in a will but thorough a
statement in a court of record or an
authentic document. In any case, the
individual recognized can impugn the
recognition within 4 years following the
attainment of majority.
Art. 281 (2) of the NCC provides:
When the recognition of a minor DOES
NOT take place
 in a RECORD of BIRTH or
 in a WILL,
Judicial Approval is Necessary.
period specified in Art. 173, FC, except
when the action is based on the second
paragraph of Art. 172, in which case the
action may be brought during the lifetime of
the alleged parent.
brought by the child during his or her lifetime and
 A M I S T A D : We live to serve!!! (A ’99)
Aileen, Beng, Dinah, Jo Leah, Lourie, Mamay.WPS, Marisa (soon to be Claudia?), Minnie, Peter, Riza
With the special participation of the Obiter Master Ella And the former “slave-master” turned into slave! --
FRITZIE
shall be transmitted to the heirs should the Art 285, NCC. The ACTION for the
child recognition of natural children may be
 die during minority or brought ONLY during the lifetime of the presumed
 in a state of insanity. parents,
In these cases, the heirs shall EXCEPT:
have a period of 5 years within which to (1) If the Father/Mother DIED DURING the
institute the action. MINORITY of the CHILD, in w/c
The action already case the latter may FILE ACTION BEFORE the
commenced by the child shall survive expiration of 4 YRS. from the
notwithstanding the death of either or both attainment of his majority age.
of the parties. (2) If AFTER the DEATH of the
Father/Mother a DOCUMENT should
Art. 172. The filiation of legitimate (or appear
illegitimate) children is established by any of which NOTHING had been HEARD
of the following: and
(1) The Record of Birth appearing in in w/c either/ both parents recognize
the Civil register or a final judgment; or the child.
(2) An admission of legitimate
filiation in a public document or a private In this case, the ACTION must be
handwritten instrument and signed by the commenced w/in 4 YRS. from the FINDING
parent concerned. of the document.

In the absence of the foregoing Pls. take note of the following NCC
evidence, the legitimate filiation shall be provisions which, although already repealed
proved by: by the FC, may still be applicable for lack of
(1) The Open and Continuous substitute provisions on the matter.
possession of the status of a legitimate [Classmates, these are the provisions na
child, or medyo magulo WON still applicable. Ma’am
(2) Any other means allowed by the A said that Art. 285 cited above is still
Rules of Court and special laws. applicable. Commentaries and a 1989 case
apply Arts. 278 and 281. Herrera cited Art.
283 (1), but mentioned Art. 449 of RPC, not
2. HOW VOLUNTARY RECOGNITION NCC. So ano ba talaga kuya? Ma’am A said
IS EXPRESSED these are confusing. Anyway, she took note
of said provisions, at palagay ko,
AUTHENTIC WRITING means any Genuine kakalampagin n’ya ang Congress tungkol
and indubitable writing sufficient for dito. By the way, she said the FC was
compulsory recognition. “really minadali”, so I think that explains
everything. Ask na lang your Persons
The status of a person as a voluntary teacher.)
acknowledged natural child “could be
established by the ordinary means of
evidence without any limitations as to NCC--Recognition Of Natural Children
time.” (Larena vs. Hubio) [See lecture
notes below.] 276. A NATURAL CHILD may be recognized
by the father and the mother
JOINTLY, or
NOTES:
by ONLY ONE of them.
Q: When can the child file action?
277. In case the recognition is made by
A: See Art. 173 above which provides when
ONLY ONE of the parents, it shall
a child may bring an action; moreover, the
be PRESUMED that the child is
following NCC provision which, although
NATURAL, IF the parent recognizing it
already repealed by the Family Code, may
had LEGAL CAPACITY to contract
still be applicable for lack of substitute
marriage at the time of conception.
provisions on the matter.

94
 A M I S T A D : We live to serve!!! (A ’99)
Aileen, Beng, Dinah, Jo Leah, Lourie, Mamay.WPS, Marisa (soon to be Claudia?), Minnie, Peter, Riza
With the special participation of the Obiter Master Ella And the former “slave-master” turned into slave! --
FRITZIE
278. RECOGNITION shall be made in the RAPE/ABDUCTION/SEDUCTION, when
 record of birth the period of the offense coincides more
 a will or less with that of conception;
 a statement before a court of
record (2) When the child is in CONTINUOUS
 or in any authentic writing. POSSESSION of the STATUS of a CHILD of
the alleged father by the
279. A minor who may not contract  DIRECT ACTS of the latter or
marriage w/o parental consent (18-21)  of his FAMILY
CANNOT acknowledge a natural
child (3) When the child was CONCEIVED during
UNLESS the time when the mother COHABITED
 parent/Guardian APPROVES the with the SUPPOSED father.
acknowledgment
 recoGnition is made in a WILL (4) When the child HAS in his favor ANY
EVIDENCE or PROOF the defendant
280. When the FATHER or the MOTHER is his father.
makes the recognition SEPARATELY,
 HE/SHE shall NOT REVEAL the
284. The MOTHER is OBLIGED to recognize
name of the person with whom
her natural child:
he/she has the child;
(1) In any of the cases in the preceding
 neither shall he/she STATE any
article, as between the child & the mother.
CIRCUMSTANCE whereby the
other parent may be
(2) When the BIRTH and the IDENTITY of the
identified.
child are CLEARLY PROVEN.
281. A child who is OF AGE CANNOT BE
286. The recognition made in favor of a
RECOGNIZED without his CONSENT.
child who
 does not possess all the conditions
When the recognition of a minor
in Art. 269, or
DOES NOT take place
 in w/c the requirements of the law
 in a RECORD of BIRTH or
have not been fulfilled
 in a WILL,
may be IMPUGNED by those
JUDICIAL APPROVAL IS NECESSARY.
who are PREJUDICED by such
recognition.
A minor can in any case IMPUGN the
recognition within 4 YRS. ff. the attainment
of his majority.
Sec. 2. Contents of petition.-- The
petition for judicial approval of a voluntary
282. A RECOGNIZED natural child has the recognition of a minor natural child shall
right: contain the following allegations:
(1) To BEAR THE SURNAME of the (a) The jurisdictional facts;
recognizing parent (b) The names & residences of the
(2) To receive SUPPORT from such parent parents who acknowledged the child, or
(291) either of them, and
(3) To receive in a proper case the  their compulsory heirs, and the
hereditary portion w/c is determined by this  person or persons with whom the child
code. lives;
(c) The fact that the recognition
made by the parent or parents took place
INVOLUNTARY RECOGNITION:  in a statement before a court of record
or
283. In any of the ff. cases,  in an authentic writing,
the FATHER is OBLIGED to recognize  copy of the statement or writing being
the child as his natural child: attached to the petition.
(1) In cases of
95
 A M I S T A D : We live to serve!!! (A ’99)
Aileen, Beng, Dinah, Jo Leah, Lourie, Mamay.WPS, Marisa (soon to be Claudia?), Minnie, Peter, Riza
With the special participation of the Obiter Master Ella And the former “slave-master” turned into slave! --
FRITZIE
Sec. 3. Order for Hearing.-- Upon
the filing of the petition, the court, by an
order reciting the purpose of the same,
shall
 fix the date and place for the hearing
thereof, which date shall not be more
than 6 months after the entry of the
order, and shall, moreover,
 cause a copy of the order to be
 served personally or by mail upon the
interested parties, and
 published once a week for 3
consecutive weeks, in a newspaper or
newspapers of general circulation in
the province.
Sec. 4. Opposition.-- Any
interested party must, within 15 days
 from service, or
 from the last date of publication of the
order referred to in the next preceding
section,
file his opposition to the petition,
stating the grounds or reasons therefor.
Sec. 5. Judgment.-- If, from the
evidence presented during the hearing,
the court is satisfied that the recognition
of the minor natural child was
 willingly and voluntarily made by the
parent or parents concerned, and
 is for the best interest of the child,
 it shall render judgment granting
judicial approval of such recognition.
INVOLUNTARY RECOGNITION of a natural
child may be made:
(a) by an incontrovertible paper written by
the parent expressly recognizing his
paternity;
(b) by giving such child the status of a
natural child of the father, justified by
the direct act of the father or his family
[Art. 283(2)];
(c) by criminal action for rape, seduction or
abduction (par. 2, Art. 449, RPC)
Note: Maybe we can improve this
enumeration of Herrera by just applying Art.
283, NCC quoted above. Ma’am A said
above enumeration does not make sense.
96
NOTES:  IMPT:
Q: What if the presumed parents
recognized the minor natural child either
voluntarily or involuntarily without judicial
approval and afterwards died, should the
child, after reaching majority age, ask for
judicial approval of such recognition?
(The book makes distinctions between
voluntary and involuntary recognition and
their effects; but the same are irrelevant
(aside from being confusing) because of the
ruling of the SC in Gapusan Chua vs. CA.)
A: NO. Requirement of judicial approval is
for the BENEFIT OF THE MINOR. Lack of said
JA cannot impede the effectivity of the
judgment made.
The judicial approval is for the
protection of the minor against any
acknowledgment made to his prejudice.
Therefore, the lack or insufficiency of such
approval is NOT a defect available to the
recognizing parent but one which the minor
may raise or waive. If after reaching the
age of majority the minor consents to the
acknowledgment, the lack of judicial
approval should make no difference.
Sec. 6. Service of judgment upon
civil registrar.-- A copy of the judgment
rendered in accordance with the
preceding section shall be served upon
the civil registrar whose duty it shall be to
enter the same in the register.
RULE 106
CONSTITUTION OF FAMILY HOME
Rule 106 is deemed repealed by the
provisions of the Family Code.
FAMILY CODE
ART 152. The family home, constituted
jointly by the husband and the wife or by an
unmarried head of a family, is the dwelling
house where they and their family reside, and
the land on which it is situated.
ART. 153. The family home is deemed
constituted on a house and lot from the time it
 A M I S T A D : We live to serve!!! (A ’99)
Aileen, Beng, Dinah, Jo Leah, Lourie, Mamay.WPS, Marisa (soon to be Claudia?), Minnie, Peter, Riza
With the special participation of the Obiter Master Ella And the former “slave-master” turned into slave! --
FRITZIE
is occupied as a family residence. From the
time of its constitution and so long as any of
the beneficiaries actually resides therein, the
family continues to be such and is exempt
from execution, forced sale or attachment
except as hereinafter provided and to the
extent of the value allowed by law.
There is no need to file verified petition
for constitution of family home under FC.
ART. 154. The beneficiaries of a family
home are:
The husband and the wife, or an unmarried
person who is the head of a family; and
Their parents, ascendants, descendants,
brothers and sisters, whether the relationship
be legitimate or illegitimate, who are living in
the family home and who depend upon the
head of the family for legal support.
ART. 155. The family home shall be
exempt from execution, forced sale or
attachment except:
1) For nonpayment of taxes;
2) For debts incurred prior to the constitution
of the family home;
3) For debts secured by mortgages on the
premises before or after such constitution;
and
4) For debts due to laborers, mechanics,
architects, builders, materialmen and
others who have rendered service or
furnished material for the construction of
the building.
Modequillo vs. Salinas
The debt or liability which was the basis
of the judgment arose or was incurred at
the time of the vehicular accident on 16
March 1976 and the money judgment
arising therefrom was rendered by the
appellate court on 29 January 1988. Both
preceded the effectivity of the FC on August
4, 1988 (not August 3 –1988 being a leap
year).
The contention that it should be
considered a family home from the time it
was occupied by petitioner and his family in
1969 is not well-taken. Under Art. 162 of
the FC, “The provisions…shall govern
existing family residences insofar as said
provisions are applicable.” It does not
mean that ARTS. 152 and 153 have
retroactive effect such that all existing
family residences are deemed to have been
constituted as family homes at the time of
their occupation prior to the effectivity of
the FC and are exempt from execution for
the payment of obligations incurred before
97
the effectivity of the FC. Art. 162 simply
means that all existing family residences at
the time of the effectivity of the FC are
considered family homes and are
prospectively entitled to the benefits
accorded to a family home.
ART. 157. The actual value of the family
home shall not exceed, at the time of its
constitution, the amount of three hundred
thousand pesos in urban areas, and two hundred
thousand pesos in rural areas, or such amounts
as may hereafter be fixed by law.
In any event, if the value of the currency
changes after the adoption of this Code, the
value most favorable for the constitution of a
family home shall be the basis of evaluation.
For purposes of this Art., urban areas are
deemed to include chartered cities and
municipalities whose annual income at least
equals that legally required for chartered cities.
All others are deemed to be rural areas.
ART. 160. When a creditor whose claim is
not among those mentioned in Art. 155 obtains a
judgment in his favor and he has reasonable
grounds to believe that the family home is
actually worth more than the maximum amount
fixed in Art. 157, he may apply to the court
which rendered the judgment for an order
directing the sale of the property under
execution. The court shall so order if it finds that
the actual value of the family home exceeds the
maximum amount fixed by law as of the time of
its constitution. If the increased actual value
exceeds the max. amount and results from
subsequent voluntary improvements introduced
by the person/s constituting the family home, by
the owner/s of the property, the same rule and
procedure shall apply.
At the execution sale, no bid below the
value allowed for a family shall be considered.
The proceeds shall be applied first to the
amanita mentioned in 157 and to the liabilities
under the judgment and the costs. The excess,
if any, shall be delivered to the judgment
creditor.
RULE 107
ABSENTEES
Sec. 1. Appointment of
representative. – When a person
disappears from his domicile, his
whereabouts being unknown, and without
having left an agent to administer his
property, or the power conferred upon the
agent has expired, any interested party,
relative or friend, may petition the RTC of
the place where absentee resided before
his disappearance, for the appointment of
a person to represent him provisionally in
 A M I S T A D : We live to serve!!! (A ’99)
Aileen, Beng, Dinah, Jo Leah, Lourie, Mamay.WPS, Marisa (soon to be Claudia?), Minnie, Peter, Riza
With the special participation of the Obiter Master Ella And the former “slave-master” turned into slave! --
FRITZIE
all that may be necessary. [In the City of
Manila, the petition shall be filed in the
Juvenile and Domestic Relations Court.]
This rule is based on:
ART. 381 CC. When a person disappears
from his domicile, his whereabouts being
unknown, and without leaving an agent to
administer his property, the judge, at the
instance of an interest party, a relative, or a
friend, may appoint a person to represent him in
all that may be necessary.
This same rule shall be observed when
under similar circumstances the power conferred
by the absentee has expired.
ART. 382. The appointment referred to in
381 having been made, the judge shall take the
necessary measures to safeguard the rights and
interests of the absentee and shall specify the
powers, obligations and remuneration of his
representative, regulating them, according to the
circumstances, by the rules concerning
guardians.
Sec. 2 Declaration of absence;
who may petition. After the lapse of 2
years from his disappearance and without
any news about the absentee or since the
receipts of the last news, or 5 years in
case the absentee has left a person in
charge of the administration of his
property, the declaration of his absence
and the appointment of a trustee or
administrator may be applied for by any
of the ff:
(a) The spouse present;
(b) The heirs instituted in a will, who may
present an authentic copy of the
same;
(c) The relatives who would succeed by
the law of intestacy; and
(d) Those who have over the property of
the absentee some right subordinated
to the condition of his death.
This rule is based on the ff:
ART. 384 CC. Two years having elapsed
without any news about the absentee or since
the receipt of the last news, and five years in
case the absentee has left a person in charge of
the admin of his property, his absence may be
declared.
ART. 385. The ff may ask for the
declaration of absence:
1. The spouse present;
2. The heirs instituted in a will, who may
present an authentic copy of the same;
98
3. The relatives who may succeed by law of
intestacy;
4. Those who may have over the property of
the absentee some right subordinated to the
condition of his death.
It is not necessary that a declaration of
absence be made in a proceeding separate
from and prior to a petition for admin.
(Reyes vs. Alejandro)
The petition to declare the husband an
absentee and the petition to place the mgt
of the conjugal properties in the hands of
the wife could be combined and adjudicated
in the same proceeding. (Daya Maaria Tol-
Noguera v. Villamor)
Sec. 3. Contents of petition. - The
petition for the appointment of a
representative, or for the declaration of
absence and the appt of a trustee or an
admin, must show the ff:
(a) The jurisdictional facts;
(b) The names, ages and residences of
the heirs instituted in the will, a copy
of which shall be presented, and of the
relatives who would succeed by the
law of intestacy;
(c) The names and residences of creditors
and others who may have any adverse
interest over the property of the
absentee;
(d) The probable value, location and
character of the property belonging to
the absentee.
Sec. 4. Time of hearing; notice
and publication thereof. – When a
petition for the appt of a representative,
or for the declaration of absence and the
appt of a trustee or admin is file, the court
shall fix a date and place for the hearing
thereof where all concerned may appear
to contest the petition.
Copies of the notice of the time and
place fixed for the hearing shall be served
upon the known heirs, legatees, devisees,
creditors and other interested persons, at
least 10 days before the day of the
hearing, and shall be published once a
week for 3 consecutive weeks prior to the
time designated for the hearing, in a
newspaper of general circulation in the
province or city where the absentee
resides, as the court shall deem best.
 A M I S T A D : We live to serve!!! (A ’99)
Aileen, Beng, Dinah, Jo Leah, Lourie, Mamay.WPS, Marisa (soon to be Claudia?), Minnie, Peter, Riza
With the special participation of the Obiter Master Ella And the former “slave-master” turned into slave! --
FRITZIE
Sec. 5. Opposition. Anyone
appearing to contest the petition shall
state in writing his grounds therefor, and
serve a copy thereof on the petitioner and
other interested parties on or before the
date designated for the hearing.
Sec. 6. Proof at hearing; order. -
At the hearing, compliance with the
provisions of section 4 of the rule must
first be shown, upon satisfactory proof of
the allegations in the petition, the court
shall issue an order granting the same
and appointing the prep, trustee or admin
for the absentee. The judge shall take the
necessary measures to safeguard the
rights and interests of the absentee and
shall specify the powers, obli and
remuneration of his rep, trustee or admin,
regulating them by the rules concerning
guardians.
In case of declaration of absence,
the same shall not take effect until 6
months after its publication in a
newspaper of general circulation
designated by the court AND in the
Official Gazette.
Sec. 7. Who may be appointed. –In
the appointment of a rep, the spouse
present shall be preferred when there is
no legal separation, if the absentee left no
spouse, or if the spouse present is a minor
or otherwise incompetent, any competent
person may be appointed by the court.
In case of declaration of absence,
the trustee or admin of the absentee’s
property shall be appointed in accordance
with the preceding par.
This is based on Art. 383 of CC.
Basically, it says the same thing. Dapat
lang, kaya nga based doon. He! He!
Sec. 8. Termination of
administration. – The trusteeship or
admin of the property of the absentee
shall cease upon order of the court in any
of the ff cases:
(a) When the absentee appears
personally or by means of an agent;
(b) When the death of the absentee is
proved and his testate or intestate
heirs appear;
99
(c) When a third person appears, showing
by a proper document that he has
acquired the absentee’s property by
purchase or other title.
In these cases the trustee or admin
shall cease the performance of his office,
and the property shall be placed at the
disposal of those who may have a right
thereto.
This is based on Art. 389 of the CC.
Declaration of Absence is Unnecessary where there
are no properties
The need to have a person judicially
declared an absentee is when
 he has properties which have to be
taken care of or administered by a rep
appointed by the Court
 his wife is asking the court that the
admin of all classes of property in the
marriage be transferred to her
 the spouse of the absentee is asking for
separation of property.
The petition to declare the husband an
absentee and the petition to place the
management of the conjugal properties in
the hands of the wife may be combined and
adjudicated in the same proceedings.
No independent action for Declaration of
Presumption of Death
The disputable presumption established by
the rule of evidence that a person not heard
from in seven years is dead may arise and
be invoked either in an action or in a special
proceeding, which is tried or heard by, and
submitted for decision to, a competent
court. Independently of such an axn or
proc, the presumption of death cannot be
invoked nor can it be made the subject of
an action or spec proc. (In re Nicolai
Szatrow)
Prof. Avena: This is a rebuttable
presumption established by the rules of
evidence so you don’t have to go to court
and file an action or spec proc simply for
the purpose of securing it per
se.
To illustrate: If you are a beneficiary of an
insurance policy and the insured has been
absent for at least 7 years (plus no news of
his whereabouts), you can file an action for
 A M I S T A D : We live to serve!!! (A ’99)
Aileen, Beng, Dinah, Jo Leah, Lourie, Mamay.WPS, Marisa (soon to be Claudia?), Minnie, Peter, Riza
With the special participation of the Obiter Master Ella And the former “slave-master” turned into slave! --
FRITZIE
the collection of the proceeds. In so doing,
you have in your favor the disputable
presumption of the insured’s death. You
need not go (and besides you cannot do
this) to court to file an independent action
for the declaration of the insured’s death.
(Sana naintindihan niyo iyong
pagkakaintindi ko sa sinabi ni Ma’am –
Fritz)
EXCEPTION: The need for declaration of
presumptive death for purposes of
remarriage. This is based on Art. 41 of the
FC. Otherwise, the subsequent marriage
shall be null and void.
REQUISITES:
 The prior spouse had been absent for
four consecutive years and
 the spouse present had a well-founded
belief that the absent spouse was
already dead.
 In case of disappearance where there is
danger of death under Art. 391 CC, an
absence of only two ears shall be
sufficient.
This provision is intended to protect the
present spouse for a criminal prosecution
for bigamy because with such judicial
declaration, good faith of the present
spouse is established.
ABSENT SPOUSE
This means that the other spouse
has been missing for at least four years, it
being unknown whether or not he or she is
still alive, and the present spouse having a
well-founded belief that the missing spouse
is already dead.
The period of 4 years is reduced to 2
under the ff circumstances (Art. 391 CC)
(a) The missing person was on board a
vessel lost during a sea voyage, or an
aeroplane which is missing;
(b) The missing person was in the armed
forces and had taken part in war; or
(c) The missing person was in danger of
death under other circumstances.
In the above case, the 2-yr period is
computed from the occurrence of the event
from which death is presumed.
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 Vessel – all kinds of watercraft
 Aeroplane – all kinds of aircraft
 Taking part in war – includes all military
operations or undertaking involving
armed fighting and does not only apply
to soldiers but also to those employed in
the armed forces like nurses and
doctors, reporters and cameramen.
 In danger of death – events as
earthquakes, fires, explosions, etc.
Presumption of Death must yield to
preponderance of evidence
There are certain circumstances
where a person was already considered
dead without waiting for the period to
expire. (Eastern Shipping Lines v. Lucero)
***Caveat: I’m typing this from memory
dahil nagkataong this was included in my
part sa evidence.
In this case, the ship where the
person presumed dead was on board sunk
due to storm. In fact, nakita pa nga nila sa
may coast iyong wrecked parts ng ship. So
sabi ng SC, no need to wait for the
expiration of the 4-yr period (this was not
for subsequent marriage) dahil by
preponderance of evidence, the
circumstances sufficiently show that the
person may be considered dead.
SUMMARY   OF   JUDICIAL   PROCEEDINGS   IN 
THE FAMILY LAW
Art. 238. Until modified by the SC, the
procedural rules in this title shall apply in all
cases provided for in this Code requiring
summary court proc. Such cases shall be
decided in an expedition manner without regard
to technical rules.
Characteristics of Summary Proceedings in
the FC
(1) The pet shall be verified, to assure its
truthfulness.
(2) Notice of the filing of the pet be sent to
resp at his last known address, as part
of due process.
(3) No periods set; it is up to the judge to
det the period within which the resp
shld answer the petition and the
 A M I S T A D : We live to serve!!! (A ’99)
Aileen, Beng, Dinah, Jo Leah, Lourie, Mamay.WPS, Marisa (soon to be Claudia?), Minnie, Peter, Riza
With the special participation of the Obiter Master Ella And the former “slave-master” turned into slave! --
FRITZIE
hearing thereof, which shld be very
short, considering na summary nga.
(4) There is a preliminary conference
wherein lawyers are excluded.
(5) The appearance of the trial fiscal of the
court is not required. (Baka absent or
unprepared pa.)
(6) The prelim confab should be conducted
personally by the judge in the nature of
an inquisitorial hearing. (Q & A)
(7) The proceedings can be decided on the
basis of affidavits or other
documentary evidence. Oral
testimonies will be required only when
necessary and at the discretion of the
court.
(8) Case shall be decided in the most
expeditious manner, without regard to
technical rules.
(9) Judgment shall be immediately final
and executory.
APPLICABILITY OF PROCEDURAL RULES
The rules of summary procedure shall apply
to the ff:
(1) Art. 100 par (2) – separation in fact
between H and W under the regime of
ACP and where the consent of one
spouse to any transaction of the other
is required by law.
(2) Art. 127 (2) – same as Art. 100 but
under the regime of CPG.
(3) Art. 41 – action for declaration of the
presumptive death of an absent spouse
believed to be dead.
(4) Art. 51 – delivery of presumptive
legitimes by means of a mutual
agreement requiring jud’l approval;
(5) Art. 69 – disagreement in the fixing of
family domicile;
(6) Art. 73 – objection by one spouse to the
exercise by the other spouse of any
legit prof, occupation, bus or activity;
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(7) Art. 96 – disagreement in the joint
admin and enjoyment of the
community prop;
(8) Art. 124 – disagreement in the joint
admin and enjoyment of ACP;
(9) Art. 217 – entrusting of parental
authority over foundlings, abandoned,
neglected or abused children and other
children similarly situated to heads of
children’s homes, orphanages and
similar institutions duly accredited by
the gov’t;
(10) Art. 225 – fixing of the bond of the
parents.
SEPARATION IN FACT BETWEEN HUSBAND
AND WIFE
Pls. See 239-253 of the FC
Unless Congress would decide to re-
create the former Juvenile and Domestic
Relations Courts or family courts which were
abolished by BP 129, all proc to be filed
under the FC would be cognizable by the
branches of the RTC designated by the SC
to handle exclusively juvenile and domestic
relations cases, and in places where no
designation is made, by the RTC of the
proper venue of the case. Venue shall be
the place of residence of either spouse.
Claims for Damages not covered by
Summary Procedure
Claims for damages cannot be
litigated in the same proceedings bec. Such
claims will necessarily entail delay.
Independent or separate cases shall
therefore be necessary for establishing and
enforcing claims for damages.
Due Process to Be Observed
Def. spouse shall be duly notified
and furnished a copy of the pet at his last
known address and shall be given the
opportunity to answer the same or to show
cause why the pet should not be granted.
Otherwise, void for lack of DP.
Prelim Conference; No Lawyers
 A M I S T A D : We live to serve!!! (A ’99)
Aileen, Beng, Dinah, Jo Leah, Lourie, Mamay.WPS, Marisa (soon to be Claudia?), Minnie, Peter, Riza
With the special participation of the Obiter Master Ella And the former “slave-master” turned into slave! --
FRITZIE
Shall be conducted by the judge Proceedings for the correction of
personally and not thru Clerk of Court or a erroneous entry should not be considered
Commissioner. Counsel shall not assist the as establishing one’s status in a legal
parties at this stage. manner conclusively beyond dispute. Art.
410 CC provides, “..the books making up
Non-appearing party shall be compelled to the civil register and all documents relating
appear; Failure to appear despite efforts-Ex- thereto…shall be prima facie evidence of
parte proc authorized the facts therein contained.”

The court shall require attendance if
possible. If despite such efforts, the party
still does not appear—ex-parte proceedings.
The court shall render decision on the basis
of affidavits, documentary evidence or oral
testimonies.
Judgment Immediately Final and Executory
The correction shld not imply a
change of status but a mere rectification of
error to make the matter corrected speak
for the truth. There is therefore no increase
or diminution of substantive right, as is the
basis for holding that R108 would be
unconsti if held to allow correction of more
than mere harmless clerical errors.

Not appealable just like a decision based Distinction bet. R103 and R108

on a compromise agreement. The decision
can be questioned in the ff cases:
(1) By a special civil action for certiorari on R103 R108
grounds of grave abuse of discretion, change of name only all cancellation or
excess of juris or lack of juris correction of entries
committed by the court; the entry is correct there is a mistake
(2) By annulment of decision based on lack but you want to which you
of juris or extrinsic fraud. change it want to correct
Civil Registrar not a Civil Registrar is an
party Indispensable party.
RULE 108 Otherwise, null and
CANCELLATION OR CORRECTION OF  Void. REASON:
interested party in
ENTRIES IN THE CIVIL REGISTRY Protecting integrity
Of public documents

Sec. 1 Who may file petition. Any

person interested in any act, even, order **If both reliefs are to be sought in the
or decree concerning the civil status of
same proceedings all the requirements of
persons which has been recorded in the
civil register, may file a verified petition R103 and 108 must be complied with.
for the cancellation or correction of an
entry relating thereto, with the RTC of the Proceeding when error is clerical or
province where the corresponding civil substantive
registry is located.
 Clerical – the procedure is summary.
 Substantive – the procedure is
adversary.
Role of the Court
Sec. 2 Entries subject to
The crt’s role in hearing the petition cancellation or correction. – Upon good
to correct certain entries in the civil registry and valid grounds, the ff. entries in the
is to ascertain the truth about the facts civil register may be cancelled or
recorded therein. Reason: Truth is best corrected:
ascertained or approximated by trial (a) births;
conducted under the adversary system. (b) marriages;
(c) deaths;
(d) legal separation;

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 A M I S T A D : We live to serve!!! (A ’99)
Aileen, Beng, Dinah, Jo Leah, Lourie, Mamay.WPS, Marisa (soon to be Claudia?), Minnie, Peter, Riza
With the special participation of the Obiter Master Ella And the former “slave-master” turned into slave! --
FRITZIE

(e) judgments of annulments of marriage; Sec. 4. Notice and Publication.

(f) judgments declaring marriages void Upon the filing of the petition, the court
from the beginning; shall, by an order, fix the time and place
(g) legitimations; for the hearing of the same, and cause
(h) adoptions; reasonable notice thereof to be given to
(i) acknowledgments of natural children; the persons named in the petition. The
court shall also cause the order to be
(j) naturalization; published once a week for 3 consecutive
(k) election, loss or recovery of weeks in a newspapers of gen circulation
citizenship; in the province.
(l) civil interdiction;
(m)judicial determination of filiation;
Sec. 5. Opposition. The civil
(n) voluntary emancipation of a minor; registrar and any person having or
and
claiming any interest under the entry
(o) changes of name. whose cancellation or correction is sought
may, within 15 dys from notice of the
R108 covers: petition, or from the last date of
1) Correction of innocuous or clerical errors publication of such notice, file his
apparent on the facts of the record and opposition thereto.
capable of being corrected by mere
reference to it, e.g., misspellings. ADVERSARY PROCEEDINGS
2) Correction of substantial errors provided 1) When the petition is filed either by the
proceedings is adversary, e.g. civil registrar or any person having a
citizenship. claim…and the opposition is actively
prosecuted.
Appropriate Adversary Proceedings 2) When all relevant facts have been fully
One having opposing parties; and properly developed, where opposing
contested, as distinguished from an ex counsel have been given opportunity to
parte application, one which the party demolish the opposite party’s case, and
seeking relief has given legal warning to the where the evidence has been thoroughly
other party, and afforded the latter an weighed and considered.
opportunity to contest it. 3) When the opposition is filed either by
the civil registrar or any person having
Persons who must be made parties or claiming any interest…
1) Civil Registrar;
2) All persons who have or claim any Sec. 6. Expeditious proceedings.
interest which would be affected The court in which the proceeding is
thereby. brought may make orders expediting the
• These are also the persons entitled to proceedings, and may also grant prelim
injunction for the preservation of the
oppose the petition. rights of the parties pending such proc.
Upon the filing of the petition, it becomes
the duty of the court to: Sec. 7 Order. After hearing, the
1) issue an order fixing the time and place court may either dismiss the petition or
issue an order granting the cancellation or
for the hearing of the petition, and correction prayed for. In either case, a
2) cause the order for hearing to be certified copy of the judgment shall be
published once a week for 3 consecutive served upon the civil registrar concerned
weeks in a newspaper of gen circulation who shall annotate the same in his record.
in the province.

Sec. 3. Parties. When cancellation or RULE 109

correction of an entry in the civil register is
sought, the civil registrar and all persons APPEALS IN SPECIAL PROCEEDINGS
who have or claim any interest which would
be affected thereby shall be made parties to Section 1. Orders or judgments
the proceeding. from which appeals may be taken. An
interested person may appeal in special
proceedings from an order or judgment
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 A M I S T A D : We live to serve!!! (A ’99)
Aileen, Beng, Dinah, Jo Leah, Lourie, Mamay.WPS, Marisa (soon to be Claudia?), Minnie, Peter, Riza
With the special participation of the Obiter Master Ella And the former “slave-master” turned into slave! --
FRITZIE
rendered by a RTC or a Juvenile and
Domestic Relations Court, where such
order or judgment:
(a) Allows or disallows a will;
(b) Determines who are the lawful heirs of
a deceased person, or the distributive
share of the estate to which such
person is entitled;
(c) Allows or disallows, in whole or in part,
any claim against the estate of a
decease person, or any claim
presented on behalf of the estate in
offset to a claim against it;
(d) Settles the account of an executor,
admin, trustee or guardian;
(e) Constitutes, in proceedings relating to
the settlement of the estate of a
decease person, or the admin of a
trustee or guardian, a final
determination in the lower court of the
rights of the party appealing, except
that no appeal shall be allowed from
the appointment of a special admin;
and
(f) Is the final order or judgment rendered
in the case, and affects the substantial
rights of the person appealing,
UNLESS it be an order granting or
denying a motion for a new trial or for
recon.
Prof. Avena:
Sec. 1 (f). The unless clause here simply
means that in these two instances, you go
on appeal immediately.
 Enumeration is not exclusive, e.g.,
approval of bond, declaration of
incompetency for purposes of
guardianship.
Mode of Appeal
Spec Pro- The period of appeals is
30 days, a record on appeal being required.
Exc: Habeas corpus cases – 48
hours.
Appeals in Liquidation Proceedings against
Insolvent Corp is by Record on Appeal
Since liquidation proc against an
insolvent corp is a spec pro, the appeal is
by record on appeal. REASON: several
claims are actually separate ones and a
decision or final order with respect to any
claim can be appealed. Necessarily the orig
rec on appeal must remain in the TC where
other claims may still be pending.
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Who May Appeal -- Interest Person
A stranger having neither material
nor direct interest in a testate or intestate
has no rt to appeal from any order issued
herein.
May appeal only when the order,
decree, judgment constitutes a final
determination of the rights of the appellants
and the appeal shall affect every order,
decree or judgment appealed from, and not
merely the interest which the appellants
may have therein.
*Prof. Avena: May sometimes be
interlocutory in nature if we were to
consider it under civpro but it is final in the
sense that it disposes of rights and obli of
parties, e.g. declaration of incompetency –
You can appeal na although if viewed under
civpro, hindi pa ito final dahil wala pang na-
aapoint na guardian. In other words, hindi
pa tapos iyong guardianship proc.
(Siyempre, hindi ganito iyung pagkakasabi-
Fritz)
The fact that the admin did not
prosecute the appeal does not bar the
lawful heirs of the deceased from doing so.
REASON: Lawful heirs are considered
interest party.
The validity of a judgment or order
of a court entered in a spec pro cannot be
assailed collaterally unless the ground for
the attack is lack of juris or fraud by the
party sought to be charged with it in its
procurement.
If the nullity of the judgment or order
assailed is for failure to comply with the
statutory req. which must be followed
before such J/O may be entered, the remedy
is to appeal from such, or if final, to apply
for relief under R38.
In a specpro, appeals may be taken
at various stages of the proceedings so
song as the order, decree or judgment
constitutes a final determination of the
rights of the parties so appealing.
A probate decree finally and
definitively settles all questions concerning
 A M I S T A D : We live to serve!!! (A ’99)
Aileen, Beng, Dinah, Jo Leah, Lourie, Mamay.WPS, Marisa (soon to be Claudia?), Minnie, Peter, Riza
With the special participation of the Obiter Master Ella And the former “slave-master” turned into slave! --
capacity of the testator and the proper
execution and witnessing of his last will and
testament, irrespective of whether its
provisions are valid. Appealable under Sec.
1 (a).
Certiorari and Mandamus not A Substitute
for Appeal
If an interested party lost his remedy by
appeal due to his own neglect, he cannot
now seek redress by certiorari and
mandamus, it not appearing that the lower
court has acted without juris.
GENERAL PRINCIPLE: In the absence of
statutory provisions directing otherwise,
any order, judgment or decree of the
probate court capable of being enforced, or
taking effect without further order, may be
appealed from; and that no action of the
probate court can be appealed from which
requires a subsequent order or judgment to
give it effect. e.g., An order directing one to
appear and submit to an examination
touching any property in his possession
belonging to an intestate, otherwise, he
shall be committed to prison,
APPEALABLE.
In this case, said person is legally
interested in the order, thus entitled to
appeal. He need not be legally interested in
the intestate proceedings proper.
OTHER INSTANCES WHERE APPEAL IS
AVAILABLE
1. Appeal by Surety
When a surety of an exec/admin of
the estate of a deceased person is admitted
as a party to an acctg made by such
exec/admin under R. 85 Sec. 11, he may be
allowed to appeal from any order of the
court approving or disapproving such acctg.
2 Appeal by Heir from Money Claim
1) An heir, legatee or devisee who under
R86 S11 has been served with notice as
to a money claim against the estate
may be allowed to appeal from an order
of the ct. approving such claim.
2) A creditor who under R87 S10 is allowed
by the ct to bring an action for recovery
of property may be allowed to appeal.
FRITZIE
3) A spec admin may be allowed to appeal
from an order disallowing a will.
3. Order for License to Sell
An order for license to sell real
estate in admin proc is appealable.
4. Order Against Bond
Appealable. REASON: Such order
constitutes a definite pronouncement as
relates to his bond and to his movable
property of which he will be deprived. Thus,
he can appeal.
5. Order to contract Obligation
Appealable. REASON: It affects
substantial rights of the parties and may
unnecessarily prolong the admin of the
intestate estate to the detriment of the
heirs.
6. Order Appointing Admin
Appealable. This is a final
determination of the rts of the parties
thereunder.
7. Order Annulling Appointment of
is Guardian
Appealable. An order refusing to
permit a person to intervene in a probate
proceeding where he claims to have
acquired the interest of one of the heirs of
the deceased is likewise appealable.
8. Order Removing a Guardian
Appealable. Constitutes a final
determination of his rights. An order
declaring a guardian incompetent is
likewise appealable.
9. Inventories and Claims against the
Estate
Re: inventories, claims against the
estate and sale of the property of the
decedent are appealable.
10. Person declared incompetent
An order declaring one a spend thrift
and mentally and physically incompetent is
appealable.
11. Order refusing to permit a party to
intervene
Appealable if the party seeking to
intervene is one who claims to have
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 A M I S T A D : We live to serve!!! (A ’99)
Aileen, Beng, Dinah, Jo Leah, Lourie, Mamay.WPS, Marisa (soon to be Claudia?), Minnie, Peter, Riza
With the special participation of the Obiter Master Ella And the former “slave-master” turned into slave! --
FRITZIE
acquired the interest of one of the heirs of
the estate.
Orders that are not appealable
1. Order directing admin to take action to
recover amount due to the estate;
interlocutory.
This is purely interlocutory and
cannot be the basis of an appeal. Why?
Ewan ko. But I think it’s probably because
of the application of the gen principle.
1. Order made in admin proc relating to
inclusion or exclusion of items of
property in the inventory of exec/admin,
interlocutory
This is purely discretionary,
provisional and interlocutory. Subject to
modification or change at any time during
the course of admin proc. Not conclusive of
the rts of any one, and the order is not final.
2. Order Appointing Special
Admin/Receiver
Merely incidental to judicial proceedings.
The ct making the appt retains control over
it and that it may modify, rescind, or revoke
the same on sufficient grounds at any time
before final judgment.
Sec. 2. Advance Distribution in
spec pro. Notwithstanding a pending
controversy or appeal in proceedings to
settle the estate of a decedent, the ct
may, in its discretion and upon such terms
as it may deem proper and just, permit
that such part of the estate as may not be
affected by the controversy or appeal be
distributed among the heirs or legatees
upon compliance with the conditions set
forth in R. 90 of these rules.
Fritz, sana naman ay hindi na nasayang ang
pagod mo. GOOD LUCK, 3-A!!!  Aileen, Minnie
& Ella
Appendix to Minnie’s Habeas Corpus Opus
By: The Regressing Whimsyland Kids Lourie,
Karreen & Jig + Party Pooper Ella
Habeas Corpus # 9
Moncupa v. Enrile
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Facts: Moncupa et al were arrested & detained.
He was alleged to be a National Democratic Font
staff member. A Presidential Commitment Order
(PCO) was issued vs. them. After 2 separate
investigations, it was ascertained that Moncupa
was not a member of any subversive
organization. Both investigators recommended
his prosecution only for illegal possession of
firearms & subversive documents. The
petitioners’ motions for bail were deined.
Respondents claim that the privilege of the writ
of HC had been suspended as to Moncupa & filed
a MTD stating “Since the pet. is free & no longer
under the custody of the resps., the present
petition for HC may be deemed moot &
academic as in similar cases.”
Held: Moncupa may have been released fr. his
detention cell, but the restraints attached to his
temporary release preclude freedom of action &
under the Villavicencio v. Lukban rule warrant
the Court’s relieving him of such restraints as
may be illegal. It is not physical restraint alone
w/c is inquired into by the writ of habeas corpus.
The principle is clear. A release that
renders a pet. for a WHC moot & academic must
be one w/c is free fr. involuntary restraints.
Where a person continues to be unlawfully
denied one or more of his constitutional
freedoms, where there is present a denial of due
process, where the restraints are not merely
involuntary but appear to be unnecessary, &
where a deprivation of freedom originally valid
has, in the light of subsequent dev’ts., become
arbitrary, the person concerned or those
applying in his behalf may still avail themselves
of the privilege of the writ.
Toyoto, et al. V. Ramos
Facts: Petitioners temporarily released fr.
detention. So, does writ lie?
Held: Ordinarily, a pet. for HC becomes mute &
epidemic (he he) when the restraint on the
liberty of the pets. Is lifted either temporarily or
permanently. But the instant case presents a
diff. situation. The Q to be resolved is whether
the State can reserve the power to re-arrest a
person for an offense after a court of competent
jurisdiction has absolved him of the offense.
Such a reservation is repugnant to the
government of laws & not of men principle.
Under this principle the moment a person is
acquitted on a crim charge he can no longer be
detained or re-arrested for the same offense.
Alimpoos v. CA
Facts: Reynaldo Mosquito has been accused of
Robbery w/ less Serious Physical Injuries. He
was detained by virtue of a warrant of arrest
which was issued without the observance of the
legal requirements for the issuance thereof.
Mosquito filed a petition for Habeas Corpus
before the Trial Court. Mosquito named as
defendants in the case the Prov. Fiscal and the
private offended parties. he also filed a claim for
damages premised on Arts. 32 (4) and other
applicable provisions of the Civil Code.
Issues:
 A M I S T A D : We live to serve!!! (A ’99)
Aileen, Beng, Dinah, Jo Leah, Lourie, Mamay.WPS, Marisa (soon to be Claudia?), Minnie, Peter, Riza
With the special participation of the Obiter Master Ella And the former “slave-master” turned into slave! --
FRITZIE
1. WON the writ of Habeas Corpus if the proper
remedy for Mosquito?
2. WON damages may be awarded in a Habeas
Corpus case?
3. WON private offended party may take part in
the case?
Held:
1. The WHC is not the proper remedy. When a
warrant of arrest is being assailed for improper
preliminary investigation, the remedy is a
petition to quash the warrant of arrest or petition
for reinvestigation of the case. It is the gen. rule
that a HC shld. not be resorted to when there is
another remedy available.
2. No. Damages cannot be awarded. The sole
function of the writ is to relieve fr. unlawful
imprisonment and ordinarily it cannot be
properly used for another purpose.
3. While the issuance of the writ connotes the
commencement of a civil action, the proceedings
for HC is technically not yet a suit bet. private
parties. The proper party is the Chief of Police or
the person having the accused in detention and
not the private offended party. It is also only the
fiscal who may appeal the order granting the
writ as mandated by Sec. 19 RULE 41 of the
ROC.
Salvana v. Saliendra
Facts: Salvana and Saliendra are the parents of
15 year old Felicisima Salvana. The minor is
presently in the custody of a justice of peace.
The parents filed a petition for WHC to regain
parental authority over the minor. The pet. was
denied on the ground that the parents are guilty
of abusing their child by forcing her to marry
another against the her wishes.
Issue: WON WHC should issue?
Held: It should issue. A WHC is the proper
legal remedy to enable parents to regain the
custody of a minor daughter even though the
child is in custody of a 3rd person of her OWN
FREE WILL. Neither the fact that the parents
sought to compel her to marry against her
wishes a legal ground for depriving parents their
parental authority over the child as to deny them
the right.
SUAREZ VS. CA
Facts: Respondent Manese filed a petition for
writ of HC vs. petitioner Renato Suarez, his
mother & sister. She filed a motion to dismiss
without prejudice to her right to file another
action for custody of minor, contending that the
issue as to who has rightful custody of the child
could be fully adjudicated in another action and
not in the present action for HC. TC granted
motion but with prejudice.
Issue: WON order of dismissal with prejudice is
res judicata to present action for custody of
minor & support
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Held: The order of dismissal cannot be
considered as a valid adjudication on the merits
which would serve as a bar to the second action
for custody of minor. TC dismissed the case
without stating the reasons or the basis
therefore, contrary to the constitutional mandate
that decisions rendered by the court must clearly
& distinctly state the law & facts on which it is
based. It is worthy to note though that the
ground upon which the motion to dismiss was
filed was erroneous since the question as to who
shall have custody of the child can be sufficiently
resolved in the petition for writ of HC pursuant to
Rule 102, ROC.
The controversy in the instant case
involves a litigation initiated by the natural
mother over the welfare & custody of her child,
in which the State has a paramount interest.
The fundamental policy in the Constitution
promoting & protecting the welfare of children
should not be disregarded by a mere technicality
in resolving disputes which involve the family &
youth.
GALVEZ VS. CA
Facts: Three separate information (1 homicide,
2 frustrated homicide) were filed vs. Galvez
(incumbent mayor of one of the towns in Bulacan
... Peter, don’t follow his footsteps, OK?) for the
alleged shooting of the Vinculados. Said infos.
were later withdrawn in a Motion by the
prosecutor, but on the same day, filed four
separate information (same three plus illegal
possession of firearms). Judge ordered the arrest
of the petitioners since no bail was
recommended.
Issue: WON petition for HC was properly filed
together with the present petition for certiorari
and mandamus
Held: Writ of HC and certiorari may be ancillary
to each other where necessary to give effect to
the supervisory powers of the higher courts. The
writ reaches the body & jurisdictional matters
while certiorari reaches the record. But HC does
not lie where pet. has the remedy of appeal or
certiorari because it will not be permitted to
perform the functions of a writ of error or appeal
for the purpose of reviewing mere errors or
irregularities in the proceedings of a court
having jurisdiction over the person & subject
matter.
Writ cannot be granted in the case at bar
since petitioners failed to adduce any
justification or exceptional circumstances which
would warrant the grant of such writ. HC is not
ordinarily available in advance of trial to
determine jurisdictional questions that may
arise. In the absence of exceptional
circumstances, the orderly course of trial should
be pursued & the usual remedies exhausted
before the writ may be invoked. Petition for HC
is not the appropriate vehicle for asserting a
right to bail or vindicating its denial.
PEOPLE VS. FIGUEROA
FACTS: The accused were found by the
Philippine Navy off the province of Palawan with
untaxed blue-seal cigarettes in their possession.
 A M I S T A D : We live to serve!!! (A ’99)
Aileen, Beng, Dinah, Jo Leah, Lourie, Mamay.WPS, Marisa (soon to be Claudia?), Minnie, Peter, Riza
With the special participation of the Obiter Master Ella And the former “slave-master” turned into slave! --
FRITZIE
They were brought to Manila and investigated.
During this preliminary investigation, each of the
accused executed affidavits and waived their
rights under Art. 125 of the RPC (arbitrary
detention). On recommendation of the Manila
fiscal, the accused were brought back to Palawan
and another preliminary investigation was held,
allegedly for the purpose of “affirm(ing) the truth
of the sworn statements.” This time, however,
the accused declined counsel and readily
affirmed their previous affidavits. Their counsel
filed a MTQ, claiming that the information was
filed without a preliminary investigation and, if
there was, it was held in Manila and not Palawan
where the alleged crime was committed. The
lower court granted the MTQ, holding that the
preliminary investigation was conducted
“hurriedly”.
ISSUE: WON the trial court correctly dismissed
the information based on the lack of preliminary
investigation.
HELD: NO. Assuming that the trial court
felt that the accused should have been given
more “ample chance and opportunity to be
heard in the preliminary investigation”, what it
should have properly done was not to dismiss
the information but to hold the case in abeyance
and conduct its own investigation or require the
fiscal to hold a reinvestigation. The absence of
such investigation did not impair the validity of
the information or otherwise render it defective.
Much less did it affect the jurisdiction of the
lower court over the case.
ENRILE VS. SALAZAR
FACTS: Juan Ponce Enrile, Gregorio Honasan,
and the Panlilio spouses were arrested by PNP
agents on a warrant of arrest issued by Judge
Salazar. They were denied bail, none being
recommended in the information which charged
them with the crime of rebellion with murder and
multiple frustrated murder allegedly committed
during the failed coup attempt of Dec. 1990.
Enrile and the Panlilios filed this petition for
habeas corpus, invoking denial of the
constitutional right to bail.
ISSUE:
WON a petition for habeas corpus is the
appropriate vehicle for asserting a right to bail or
vindicating its denial.
HELD:
NO. The criminal case before Judge
Salazar was the normal venue for invoking the
petitioner’s right to have provisional liberty
pending trial and judgment. The correct course
was for petitioner to invoke that jurisdiction by
filing a petition to be admitted to bail, claiming a
right to bail per se by reason of the weakness of
the evidence against him. Only after that remedy
was denied by the trial court should the review
jurisdiction of the Supreme Court have been
invoked, and even then, not without first
applying to the Court of Appeals if appropriate
relief was also available there. The Court will no
longer countenance pleas like the present that
clearly short-circuit the judicial process and
burden it with the resolution of issues properly
within the original competence of the lower
courts.
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PAREDES VS. SANDIGANBAYAN
FACTS: A criminal complaint was filed against
Governor Paredes for violation of the Anti-Graft
and Corrupt Practices Act. A preliminary
investigation was held but the summons for
Paredes to appear therein did not reach him. An
information was subsequently filed and a
warrant of arrest issued against Paredes. He now
petitions for habeas corpus on the ground that
the preliminary investigation was invalid and
that the offense has prescribed.
ISSUE: WON the circumstances constitute valid
grounds for the issuance of a writ of habeas
corpus.
HELD: NO. The absence of a preliminary
investigation does not affect the court’s
jurisdiction over the case nor impair the validity
of the information or otherwise render it
defective. The remedy of the accused in such a
case is to call the attention of the court to the
lack of a preliminary investigation and demand,
as a matter of right, that one be conducted. The
court, instead of dismissing the information,
should merely suspend the trial and order the
fiscal to conduct a preliminary investigation.
The defense of prescription of the
offense should be pleaded in the criminal action,
otherwise it would be deemed waived. It is a
proper ground for a motion to quash which
should be filed before the arraignment of the
accused for whether the crime may still be
prosecuted and penalized should be determined
in the criminal case not in a special proceeding
of habeas corpus. All questions which may arise
in the orderly course of a criminal prosecution
are to be determined by the court to whose
jurisdiction the defendant has been subjected by
the law, and the fact that a defendant has a
good and sufficient defense to a criminal charge
on which he is held will not entitle him to his
discharge on habeas corpus.
ILAGAN V. ENRILE
(When we went to Davao, Judge Quitain, the
Daddy of Mamay, introduced as to Atty. Ilagan
who was then pres. of Integrated Bar of the
Phils. Davao Chapter. May picture pa kami w/
him.)
Facts: Atty. Ilagan was arrested in Davao City &
detained on the basis of a mission order
allegedly issued by the Ministry of Nat’l.
Defense. He was visited by 15 lawyers fr. IBP
Davao Chapter. One of the visitors was also
arrested & detinaed on the basis of an unsigned
MO. After several days, another IBP member
was arrested. Petitioners argue that the arrests
were illegal & violative of the Consti, since
arrests cannot be made on the basis of mission
orders. Resps. Answered that the Writ was
suspended as to them by virtue of Proc. #2045-
A.
Held: IF the detained attys. Question their
detention bec. of improper arrest, or that no
prelim inv has been conducted, the remedy is
not a pet. for a writ of HC but a Motion for the TC
to quash the Warrant of Arrest, &/or the info on
grounds provided by the rules or to ask for an
investigation/ reinvestigation of the case.
 A M I S T A D : We live to serve!!! (A ’99)
Aileen, Beng, Dinah, Jo Leah, Lourie, Mamay.WPS, Marisa (soon to be Claudia?), Minnie, Peter, Riza
With the special participation of the Obiter Master Ella And the former “slave-master” turned into slave! --
FRITZIE
This pet. is now mood & academic bec.
of criminal charges for rebellion filed vs. the
lawyers.

Luna v. Plaza

Facts: Supporting the complaint for murder were

sworn statements of prosecution witness in the
form of Q & A taken by the PC investigator, &
subscribed & sworn to before the resp. Judge at
the time of filing comp. Judge read to the
proecution witnesses the Q & A. This was how
he examined them. The latter declared that
their answers were true, freely & voluntarily
made, & that they fully understood the Q & A &
were willing to sign their respective affidavits.
Judge issued warrant of arrest. Pet. filed writ for
certiorari on the ground that he was deprived of
liberty w/o due process since the imprisonment
& detention was the result of a WOA issued by
resp. judge in violation of law since the exam
was not reduced to in writing in the form of
searching Q & A. Judge claims substantial
compliance.

Held: There was substantial compliance. The

existence of probable cause depends to a large
degree upon the finding or opinion of the judge
conducting the exam. RA 3828 does not prohibit
the Mun Judge fr. adopting the questions asked
by the previous investigator.

The term “searching Q & A” means only

taking into consideration the purpose of the
prelim exam, w/c is to determine “whether there
is a reasonable ground to believe that an offense
has been committed & the accused is probably
guilty thereof so that a warrant of arrest may be
issued & the accused be held for trial, such Q’s
having tendency to show the commission of the
crime & the perpetrator.

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