2012

REMEDIAL
Criminal Procedure Civil Procedure Evidence Special Proceedings
Dean Danilo L. Concepcion Dean, UP College of Law Prof. Concepcion L. Jardeleza Associate Dean, UP College of Law Prof. Ma. Gisella D. Reyes Secretary, UP College of Law Prof. Florin T. Hilbay Faculty Adviser, UP Law Bar Operations Commission 2012 Ramon Carlo F. Marcaida Commissioner Eleanor Balaquiao Mark Xavier Oyales Academics Committee Heads Eden Catherine Mopia Remedial Law Subject Heads Graciello Timothy Reyes Layout

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2012

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BAR OPERATIONS COMMISSION 2012 OPERATIONS HEADS Charles Icasiano • Katrina Rivera |Hotel Operations Marijo Alcala • Marian Salanguit |Day-Operations Jauhari Azis |Night-Operations Vivienne Villanueva • Charlaine Latorre |Food Kris Francisco Rimban • Elvin Salindo |Transpo Paula Plaza |Linkages

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EXECUTIVE COMMITTEE Ramon Carlo Marcaida |Commissioner Raymond Velasco • Mara Kriska Chen |Deputy Commissioners Barbie Kaye Perez |Secretary Carmen Cecilia Veneracion |Treasurer Hazel Angeline Abenoja|Auditor COMMITTEE HEADS Eleanor Balaquiao • Mark Xavier Oyales | Acads Monique Morales • Katleya Kate Belderol • Kathleen Mae Tuason (D) • Rachel Miranda (D) |Special Lectures Patricia Madarang • Marinella Felizmenio |Secretariat Victoria Caranay |Publicity and Promotions Loraine Saguinsin • Ma. Luz Baldueza |Marketing Benjamin Joseph Geronimo • Jose Lacas |Logistics Angelo Bernard Ngo • Annalee Toda|HR Anne Janelle Yu • Alyssa Carmelli Castillo |Merchandise Graciello Timothy Reyes |Layout Charmaine Sto. Domingo • Katrina Maniquis |Mock Bar Krizel Malabanan • Karren de Chavez |Bar Candidates’ Welfare Karina Kirstie Paola Ayco • Ma. Ara Garcia |Events

REMEDIAL LAW TEAM 2012 Subject Heads |Eden Catherine Mopia

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LAYOUT TEAM 2012 Layout Artists | Alyanna Apacible • Noel Luciano • RM Meneses • Jenin Velasquez • Mara Villegas • Naomi Quimpo • Leslie Octaviano • Yas Refran • Cris Bernardino Layout Head| Graciello Timothy Reyes

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Copyright and all other relevant rights over this material are owned jointly by the University of the Philippines College of Law and the Student Editorial Team. The ownership of the work belongs to the University of the Philippines College of Law. No part of this book shall be reproduced or distributed without the consent of the University of the Philippines College of Law. All Rights reserved.

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Criminal Procedure...................... 12
I. GENERAL MATTERS ...................... 12 A. Distinguish Jurisdiction over subject matter from jurisdiction over person of the accused ............................... 12 B. Requisites for exercise of criminal jurisdiction ................................ 12 C. Jurisdiction of Criminal courts ...... 12 II. PROSECUTION OF OFFENSES .......... 14 1. Criminal actions, how instituted (Bar 1999) ....................................... 14 2. Who may file them, crimes that cannot be prosecuted de officio (Bar 1990, 2000) ................................ 15 3. Criminal actions, when enjoined.... 16 4. Control of prosecution ................ 16 5. Sufficiency of Complaint or Information ................................ 16 6. Designation of Offense ............... 18 7. Cause of the Accusation .............. 18 8. Duplicity of the Offense; Exception (Bar 2005) ................................. 19 9. Amendment or Substitution of complaint or information [Sec. 14, Rule 110] (Bar 2001, 2002) .................... 19 10. Venue of criminal actions .......... 20 11. Intervention of offended party .... 20 III. PROSECUTION OF CIVIL ACTION...... 20 1. Rule on implied institution of civil action with criminal action ............. 20 2. When civil action may proceed independently ............................. 21 3. When separate civil action is suspended ................................. 21 4. Effect of the death of accused or convict on civil action ................... 21 5. Prejudicial Question .................. 21 6. Rule on Filing Fees in civil action deemed instituted with the criminal action ...................................... 22 IV. PRELIMINARY INVESTIGATION ........ 22 1. Nature of right ......................... 22 2. Purposes of preliminary investigation .............................. 23 3. Who may conduct determination of existence of probable cause ............ 23 4. Resolution of investigating prosecutor ................................. 24

5. Review .................................. 24 6. When warrant of arrest may issue .. 24 7. Cases not requiring a preliminary investigation ............................... 25 8. Remedies of accused if there was no preliminary investigation ................ 25 9. Inquest .................................. 25 V. ARREST .................................... 26 1. Arrest, how made ..................... 27 2. Arrest without warrant, when lawful .............................................. 27 3. Method of arrest ....................... 28 4. Requisites of a valid warrant of arrest .............................................. 29 5. Determination of Probable Cause for issuance of warrant of arrest ........... 29 6. Distinguish probable cause of fiscal from that of a judge...................... 29 VI. BAIL ....................................... 30 1. Nature ................................... 30 2. When a matter of right; exceptions 31 3. When a matter of discretion ......... 32 4. Hearing of application for bail in capital offenses ........................... 32 5. Guidelines in fixing amount of bail . 32 6. Bail when not required ............... 33 7. Increase or Reduction of Bail ........ 33 8. Forfeiture and Cancellation of bail . 33 9. Application not a bar to objections in illegal arrest, lack of or irregular preliminary investigation ................ 33 10. Hold Departure Order & Bureau of Immigration Watchlist ................... 33 VII. RIGHTS OF THE ACCUSED ............. 34 1. Rights of accused at the trial ........ 34 2. Rights of persons under Custodial Investigation ............................... 36 VIII.ARRAIGNMENT AND PLEA ................................................. 37 1. Arraignment and Plea, how made ... 37 2. When should plea of NOT GUILTY be entered ..................................... 38 3. When accused may enter a plea of guilty to a lesser offense ................ 38 4. Accused plead guilty to capital offense, what the court should do ..... 38 5. Searching Inquiry ...................... 38 6. Improvident plea ...................... 38 7. Grounds for suspension of arraignment .............................................. 38

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IX.MOTION TO QUASH ................................................. 39 1. Grounds ................................. 39 2. Distinguish from demurrer to evidence .............................................. 43 3. Effects of sustaining the motion to quash ....................................... 43 4. Exception to the rule that sustaining the motion is not a bar to another prosecution ................................ 44 5. Double Jeopardy....................... 44 6. Provisional Dismissal .................. 45 X. .................................................. PRE-TRIAL ................................................. 46 1. Matters to be considered during pretrial ......................................... 46 2. What the court should do when prosecution and offended party agree to the plea offered by the accused ....... 46 3. Pre-trial agreement ................... 47 4. Non-appearance during pre-trial .... 47 5. Pre-trial order ......................... 47 6. Referral of some cases for Court Annexed Mediation and Judicial Dispute Resolution ................................. 48 XI. .........................................................TRIAL ................................................. 48 1. Instances when presence of accused is required by law ........................ 48 2. Requisites before trial can be suspended on account of absence of witness ..................................... 48 3. Trial in Absentia ....................... 49 4. Remedy when accused is not brought to trial within the prescribed period ...................................... 49 5. Requisites for discharge of accused to become a state witness.................. 49 6. Effects of Discharge of accused as state witness .............................. 50 7. Demurrer to Evidence ................ 50 XII. ...............................................JUDGMENT ................................................. 51 1. Requisites of a judgment............. 51 2. Contents of Judgment ................ 51

3. Promulgation of judgment; instances of promulgation of judgment in absentia .................................... 53 4. When does judgment become final (four instances) ........................... 54 REMEDIAL LAW REVIEWER XIII.NEW TRIAL OR RECONSIDERATION ................................................. 54 1. Grounds for New Trial [............... 54 2. Grounds for Reconsideration ......... 54 3. Requisites before a new trial may be granted on ground of newly discovered evidence ................................... 54 4. Effects of granting a new trial or reconsideration ........................... 55 5. Application of Neypes Doctrine in Criminal Cases............................. 55 XIV. ................................................... APPEAL ................................................. 55 1. Effect of an Appeal.................... 55 2. Where to appeal ....................... 55 3. How appeal taken .................... 56 4. Effect of appeal by any of several accused..................................... 62 5. Grounds for dismissal of appeal ..... 62 XV.SEARCH AND SEIZURE ................................................. 62 1. Nature of search warrant............. 62 2. Distinguish from warrant of arrest .. 63 3. Application for search warrant, where filed ................................ 64 4. Probable Cause ........................ 66 5. Personal examination by judge of the applicant and witnesses ................. 66 6. Particularity of place to be searched and things to be seized....... 67 7. Personal property to be seized ...... 68 8. Exceptions to search warrant requirement ............................... 68 9. Remedies from unlawful search and seizure...................................... 71 XVI.PROVISIONAL REMEDIES ................................................. 72 1. Nature ................................... 72 2. Kinds of provisional remedies........ 73

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.....119 .. 94 4............. 90 4.............. 77 A......113 2............... Allegations in a pleading ........103 6..............111 5............... 94 3....... Suits against entities without juridical personality................101 4...................................................... Class suit ............. 97 2........... 96 1................................... ..... 96 V............... Right of action versus cause of action . 94 5....... 110 1....108 VI.......... Compulsory and permissive joinder of parties... Proof of service ................. 91 6................ Concept of Remedial Law ........................ 96 3..... Dismissal of counterclaim.119 3.. 88 I.................. 91 5.. effect on existing counterclaim ............... Personal service ....... 95 IV..... 80 B......... 90 3...............................119 4.......... 118 1.................................. Voluntary appearance ............ 97 1....................... 87 G............ Kinds of Pleadings ............119 2.....CAUSE OF ACTION .......... ... Meaning of cause of action .............115 VIII..... 96 4................. 90 1.......... SUMMONS............................... Parts of a pleading . Nature of Philippine Courts ............................... Dismissal upon notice by plaintiff........112 8. 81 E... 77 C........... Extra-territorial service..........................111 4......................112 VII................. when allowed ................... Venue of real actions ......... cross-claim or third-party complaint .... Effect of failure to plead ... Default ........ DISMISSAL OF ACTIONS ..................... Failure to state a cause of action ......... in rem and quasi in rem ................... Two-dismissal rule .. MOTIONS ........................... ......... Motions for Bill of Particulars ... Test of the sufficiency of a cause of action .....................104 7...........PARTIES TO CIVIL ACTIONS ......... Nature and purpose of summons in relation to actions in personam..... 91 1.............................. Pleadings allowed in small claim cases and cases covered by the rules on summary procedure .................. Effect of death of party litigant ... 81 D. 96 5.. Jurisdiction over the res or property in litigation .. When the rules on venue do not apply ......... Filing and Service of pleadings ......... 78 JURISDICTION............. Jurisdiction of Courts .110 2...................... necessary parties.............REMEDIAL LAW REVIEWER Civil Procedure . 77 B..........110 3........ 91 III..... alternative defendants ........ Substantive Law as Distinguished from Remedial Law ........102 5.............. Jurisdiction over the subject matter 80 C.............................. Sec................... cases covered by the rules on Summary Procedure and Barangay Conciliation . Constructive service (by publication) ................ Substituted service . 77 D.. Venue of personal actions ........................................................................ Motions in general .. 79 A.................................... Splitting a single cause of action and its effects ..... Service upon prisoners and minors ................. 113 1................ indigent parties... Jurisdiction over the parties .... 92 2.. 96 2.. Misjoinder and non-joinder of parties ....... ACTIONS .... Jurisdiction over the issues ......PLEADINGS .. 82 F......... VENUE .... Effects of stipulations on venue ......... Motion to Dismiss ..114 3........... 90 2.......................................111 6........112 7........ Joinder and misjoinder of causes of action ................................................................................... 88 II..... Totality Rule .... 96 6... Jurisdiction over small claims....................................106 8.. Venue versus jurisdiction ..................................101 3....................... Real parties in interest.......................... 95 6.................. 3]... Dismissal due to the fault of plaintiff ......... Amendment .. indispensable parties........ 77 6 GENERAL PRINCIPLES ................... representatives as parties......... Dismissal upon motion by plaintiff. Rule-making Power of the Supreme Court ......... Venue of actions against non-residents [Rule 5.......

...............................133 4.. POST-JUDGMENT REMEDIES ..........................136 5............. Adjournments and postponements 131 2..155 2..135 2............................... effect of failure to appear....... 134 1.. Production or inspection of documents or things .. 130 XIII.....133 3... 124 3.. 120 2............. 123 3........ Appearance of parties.......156 3..141 3................................................ Relief from judgments..........................132 7... Time to intervene ..... Distinction between pre-trial in civil case and pre-trial in criminal case ... Order of trial...... 4]........137 7......... 129 4................... reversal of order..................................... MODES OF DISCOVERY ........... Compelling attendance of witnesses... Contempt .....CC REMEDIAL CR IX.. 131 4.....135 3. Subpoena duces tecum .. Ground ........ Requisites for intervention . Proceedings where property is claimed by third persons ..... 125 2..... Notice of pre-trial ...... Subpoena ad testificandum ........... Written interrogatories to adverse parties......... How a judgment is executed ....... 120 5.......... Rules on Redemption ......... Properties exempt from execution 159 5. Effect of denial ............... 124 XII. Consolidation or Severance of hearing or trial ........... SATISFACTION AND EFFECT OF JUDGMENTS .................. Trial by commissioners .... effect of failure to appear .. Depositions pending action... 122 7...... Requisites of motion to postpone trial .... 131 5................. Annulment of Judgments or final orders and resolutions .......... Service of subpoena.....133 2............. 130 1................. Nature and purpose ............. 124 5.......... 123 2.154 XVII........ 131 3... orders and other proceedings ... JUDGMENTS AND FINAL ORDERS .................137 6.......................... Waiver of right to present evidence ............... 122 X....... Appeals in General ......138 XVI... DEMURRER TO EVIDENCE ... 128 3.................131 6......... 133 1. Judgment on the pleadings versus summary judgments ........... Delegation of reception of evidence ....... INTERVENTION ....................... Pre-trial brief...................................... Depositions before action or pending appeal .................... 155 1.. PRE-TRIAL ..162 LAW .................... 138 1... EXECUTION..................... Remedy for the denial of motion to intervene ........................................... Difference between finality of judgment for purposes of appeal...... Entry of judgment and final order .. Judgment on the pleadings ............... TRIAL ........................... SUBPOENA ..................... When execution shall issue ......... Judgment without trial ........... Alternative Dispute Resolution (ADR) ............. Contents of a judgment ..... 129 5........ Sec....................138 2................. Effect of grant .. Consequences of refusal to comply with modes of discovery . 120 1..... 124 4........ 120 3..... 130 6.......... 124 2....... for purposes of execution ........... 123 1.. 121 6.........161 7........... 122 1.. 125 1........153 4.136 4.... Summary judgments ... Quashing of subpoena [Rule 21........................... Physical and mental examination of persons ............ Motion for New Trial or Reconsideration ................. Examination of Judgment Obligor When Judgment is unsatisfied ...................134 XV..... Concept of pre-trial ... 120 4........................ Agreed statement of facts . Demurrer to evidence in a civil case versus demurrer to evidence in a criminal case ............ 123 XI. Request for Admission ....132 REMEDIAL LAW REVIEWER XIV................160 6.......... Rendition of judgments and final orders...............................157 4...133 5....................

M......... Nature of provisional remedies .....218 E....................... Hearsay Rule ................ Admissions and Confessions . Categories of Object Evidence ............223 H..................... 176 6...... Matters of Judicial Notice ... 01-7-01.209 B. Review of Judgments and Final Orders or Resolution of the COMELEC and COA ...............211 C.............210 G................................224 VI.... Chain of Custody in Relation to Section 21 of the Comprehensive Dangerous Drugs Act of 2002 ..... 184 11..... 204 B................... Demonstrative Evidence ...... 204 D.......................... What Need Not be Proved ................. Jurisdiction over provisional remedies . Examination of Obligor of Judgment Obligor . Qualifications of a Witness [Rule 130....................... 204 C..... Meaning of Documentary Evidence 211 B...............................225 D..................................M............... Parol Evidence Rule .....225 B..................... Contempt . Quantum of Evidence (Weight And Sufficiency of Evidence) ........ Concept of Evidence ...................... 181 10. 180 9..... Requisites for Admissibility ............ Forcible Entry and Unlawful Detainer .210 F........... 225 A..... 177 7.... Ordinary civil actions versus special civil actions..............................SC) ... 173 XIX....... SPECIAL CIVIL ACTIONS . 172 6... Judicial Notice of Foreign Laws........... Law of Nations and Municipal Ordinance 209 III... 174 1..216 C.................... 216 A..... Foreclosure of Real Estate Mortgage .......................... 204 G...... 175 4... When to Make an Offer .209 C... Repetition of an Objection . No..... 174 2.. View of an Object or Scene .. Replevin ......... 164 XVIII......212 E......... Receivership ....... 178 8........225 8 Evidence........225 C................ Presumptions . Disqualifications of Witnesses...206 II..... 175 5.................................. 164 3............................210 E... 211 A..... Evidence in Civil Cases Versus Evidence in Criminal Cases ... Declaratory Reliefs and Similar Remedies .216 B. Objection .......... PROVISIONAL REMEDIES ........214 V.......................... Competency versus Credibility of a Witness . 163 9................ 206 I.. JUDICIAL NOTICE AND JUDICIAL ADMISSIONS ....216 D........... 0611-5-SC) ............210 D......... sec...... Authentication and Proof of Documents ........... 175 3...REMEDIAL LAW REVIEWER 8...................................... Liberal Construction of the Rules of Evidence ..... No.... Scope of the Rules of Evidence ......206 B...................... GENERAL PRINCIPLES ..... DOCUMENTARY EVIDENCE .... Rules on Electronic Evidence (A.... Effect of Judgment or Final Orders 163 10....... 204 E.............. 004-07-SC) ...................... Quo Warranto ......... 188 13.. 186 12....219 F.. Judicial Admissions ............. 164 4............ Preliminary Injunction .. Requisites for Admissibility . 206 A.............. Admissibility of Evidence...221 G........................ 164 1.. 20] .......... OBJECT (REAL) EVIDENCE .......... TESTIMONIAL EVIDENCE ........ Nature of Object Evidence ...................... Best Evidence Rule .. No...... Enforcement and Effect of Foreign Judgments or Final Orders . 164 2...... Interpleader .. 206 .......... Character Evidence ......... 206 H.......... 204 F...................213 F....................... 192 J................... Prohibition and Mandamus .. Burden of Proof and Burden of Evidence .......212 D............... 168 5.... Offer of Evidence ...... Rule on Examination of a Child Witness (A..210 IV.......... Partition ................................ OFFER AND OBJECTION.......... Expropriation .......... Nature of special civil actions .. 209 A. Opinion Rule .M...... Factum Probans Versus Factum Probandum .207 C........ Examination of a Witness ...............223 I. Jurisdiction and venue ..207 D.. 204 I..... Rule on DNA Evidence (A............ Proof Versus Evidence .................................. 204 A.... Preliminary Attachment ...... Certiorari........

234 B. Time within which claims shall be filed................. when allowed 230 B...................... simultaneous filing of petition for administration ................ 242 A.......238 D... Conditions of the Bond ... Ruling ............ 240 A...... Appointment of Special Administrator .235 E.......... Remedy of an heir entitled to residue but not given his share ....237 C.....240 B................. CLAIMS AGAINST THE ESTATE ........ Requisites for the removal and resignation of a trustee .... Statute of Non-claims ............. SUMMARY SETTLEMENT OF ESTATES .... Extent of jurisdiction of Probate Court .......235 REMEDIAL LAW REVIEWER D..237 F........ Contents of petition for allowance of will ........ 232 III... 230 A..... ALLOWANCE OR DISALLOWANCE OF WILL ........ ALLOWANCE OR DISALLOWANCE OF WILL ....... Powers and Duties of Probate Court 230 II... effects of probate ......242 D............. Opposition to issuance of letters testamentary........... 230 D............ 237 A...................242 B.. Nature of probate proceeding .. Grounds for removal of administrator ........... Grounds for disallowing a will ................ Actions that may be brought against executors and administrators ........ Grounds for removal and resignation of a trustee ............... Reprobate.. Summary settlement of estates of small value......241 B........... Requisites before will proved outside allowed in the Philippines...243 LAW .. 228 PRELIMINARY MATTERS ....... SETTLEMENT OF ESTATE OF DECEASED PERSONS........... 225 Striking Out of an Answer . DISTRIBUTION AND PARTITION ......... 226 Tender of Excluded Evidence ...............242 C.241 C......................................... Powers and duties of Executors and Administrators....... when allowed ............ Requisites before creditor may bring an action for recovery of property fraudulently conveyed by the deceased 240 VIII..... 226 Special Proceedings .234 B................... Which court has jurisdiction ....... PRODUCTION AND PROBATE OF WILL ..........234 C............................. Who may petition for probate................. G......242 IX.. Venue in judicial settlement of estate ..... 230 B.................. 234 A... Extent of authority of trustee ................ 234 C.......... 241 A. Claim of Executor or administrator against the Estate .. persons entitled to notice .................................. Order of preference ....... 233 B........ exceptions ........... TRUSTEES ................ Liquidation ......... 231 C.......... 228 I.........243 E.. restrictions on the powers .. Project of Partition .... 234 A..........242 D.....237 B..238 VII.............................. 231 E. VENUE AND PROCESS................. Instances when probate court may issue writ of execution ....... Remedies of aggrieved parties after extra-judicial settlement of estate ............... F...... 230 C......................... Two-year prescriptive period ................... Distinguished from executor or administrator . 231 D................CC REMEDIAL CR E.237 VI. When and To whom letters of administration granted ..... Affidavit of Self-adjudication by sole heir................................. Extrajudicial settlement by agreement between heirs.... 233 IV...... 230 A. ACTIONS BY AND AGAINST EXECUTORS AND ADMINISTRATORS ................ 233 A...... 234 V..... Payment of Debts ............

.260 D.......................... 254 C.....258 B.................260 B..... Rule on Guardianship over minors 244 XII..REMEDIAL LAW REVIEWER This is based on the principle that his authority cannot extend beyond the jurisdiction of the Republic.. 244 A.............. Contents of the Return .. Effect of Filing of a Criminal Action 256 K. Requisites for filing of petition .. No. 243 B............. 254 A... 243 A...... Interim Reliefs Available to Petitioner and Respondent . 258 A............ Distinguished from Writ of Amparo and Habeas Data ................... 259 A..258 XVI... 258 A.. Rule 108...... CHANGE OF NAME AND CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL REGISTRY..........260 10 .. When to appeal ...... Entries subject to cancellation or correction under Rule 108. APPEALS IN SPECIAL PROCEEDING .................. Distinguish domestic adoption from inter-country adoption . Contents of Return ...... Conditions of the bond of the guardian ..255 F...........255 E.... GUARDIANSHIP ................... Quantum of Proof in Application for Issuance of Writ: Substantial Evidence .....259 XVIII........... Grounds for change of name .. Domestic Adoption Act...... Distinguish from Writ of Habeas Corpus and Habeas Data ....... Omnibus Waiver Rule ...................................... RA 9048) ................. 244 B... When Discharge Not Authorized ........... 03-04-04-SC) ..256 J........ Procedure for Hearing on the Writ 256 I..... 248 XIII.................... in relation to RA 9048....256 L. CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL REGISTRY.... Consolidation .....259 XVII......... WRIT OF HABEAS CORPUS .... 248 B....... Judgments and orders for which appeal may be taken .... General powers and duties of guardians ......................... .260 C............ 251 F..........M.......... 249 A... when to file ....... 248 A..... Distinguish Peremptory Writ from Preliminary Citation ........................................... 251 D. 252 XIV..................... period for filing a claim ................ 243 C................................. Remedy of respondent against petition. 250 B................ Coverage . Contents of the Petition ...... Purpose of the Rule........... Modes of appeal .... 250 C. ADOPTION .. Effect of Failure to File a Return 256 H........ under whose courts he was appointed........ Distinguish Writ of Amparo From Search Warrant.....254 D...... 254 B........... 252 G...256 M...... 259 A............. Differences under the Applicable Rules (Rule 103......................................... 244 C...... When to file .... 244 XI....... WRIT OF AMPARO . 243 X...... When Writ Not Proper or Applicable 251 E................257 XV. Custody of Minors and Writ of Habeas Corpus in Relation to Custody of Minors (A..... Who may file .... ABSENTEES ....... Who may file..... Rule on Advance Distribution .......... ESCHEAT ......... Institution of Separate Actions .258 B.256 G...........

Domingo • Katrina Maniquis |Mock Bar Krizel Malabanan • Karren de Chavez |Bar Candidates’ Welfare Karina Kirstie Paola Ayco • Ma.REMEDIAL LAW REVIEWER 11 2012 UP L AW BAR REVIEWER REMEDIAL LAW REMEDIAL LAW TEAM 2012 Subject Head |Eden Catherine Mopia Crim Pro Head | Arvin Razon Contributors | Jauhari Azis Ricardo Gutierrez • Ofelia Leano • Patricia Madarang • Ellery Magbato • Rafael Santos • Jamie Yu LAYOUT TEAM 2012 Layout Artists | Alyanna Apacible • Noel Luciano • RM Meneses • Jenin Velasquez • Mara Villegas • Naomi Quimpo • Leslie Octaviano • Yas Refran • Cris Bernardino Layout Head| Graciello Timothy Reyes Criminal Procedure BAR OPERATIONS COMMISSION 2012 EXECUTIVE COMMITTEE Ramon Carlo Marcaida |Commissioner Raymond Velasco • Mara Kriska Chen |Deputy Commissioners Barbie Kaye Perez |Secretary Carmen Cecilia Veneracion |Treasurer Hazel Angeline Abenoja|Auditor COMMITTEE HEADS Eleanor Balaquiao • Mark Xavier Oyales | Acads Monique Morales • Katleya Kate Belderol • Kathleen Mae Tuason (D) • Rachel Miranda (D) |Special Lectures Patricia Madarang • Marinella Felizmenio |Secretariat Victoria Caranay |Publicity and Promotions Loraine Saguinsin • Ma. Luz Baldueza |Marketing Benjamin Joseph Geronimo • Jose Lacas |Logistics Angelo Bernard Ngo • Annalee Toda|HR Anne Janelle Yu • Alyssa Carmelli Castillo |Merchandise Graciello Timothy Reyes |Layout Charmaine Sto. Ara Garcia |Events OPERATIONS HEADS Charles Icasiano • Katrina Rivera |Hotel Operations Marijo Alcala • Marian Salanguit |Day-Operations Jauhari Azis |Night-Operations Vivienne Villanueva • Charlaine Latorre |Food Kris Francisco Rimban • Elvin Salindo |Transpo Paula Plaza |Linkages UP LAW BAR OPERATIONS COMMISSION .

which will continue the proceeding. VII.  By examination of the complaint/information to ascertain that the facts set out and punishment fall under jurisdiction of court. IV. Garcia (1988)] . The action should be instituted and tried in the municipality or territory where offense has been committed or where any one of the essential ingredients thereof took place. forcibly by warrant of arrest or upon his voluntary submission to the court. The absence of court‘s jurisdiction over the subject matter may be raised at any stage of the proceeding.Principle of adherence of jurisdiction/continuing jurisdiction. The right to make such objection is never waived. XVI. XIII. Rule 110] . The first court taking cognizance of the case will exclude the others [People vs Grospe (1988)] C. II. it cannot be withdrawn or defeated by a subsequent valid amendment of the information. General rule: The court‘s jurisdiction to try a criminal action is to be determined by the law at the time of the institution of the action. citing Arula vs Espino (1969)] Acquired either by: B. VI. I. . Jurisdiction of Criminal courts How Determined  Determined by the allegations of the complaint or information. [Cuyos vs Hon. e. the courts of the territories where the essential ingredients of the crime took place have concurrent jurisdiction. determined by the extent of the penalty which the law imposes based on the facts as recited in the complaint/information constitutive of the offense charged. Distinguish Jurisdiction over subject matter from jurisdiction over person of the accused Jurisdiction over Subject Matter  Jurisdiction over the class of cases to which the particular case belongs. Once vested. appearing for arraignment.g. [Palana vs People (2007)] Succeeding legislation placing jurisdiction in another tribunal will not affect jurisdiction already obtained by a court.For transitory/ continuing offenses. XI. in which case the court where the criminal action is pending is ousted of jurisdiction and the pending action will have to be transferred to the other tribunal. X. [People vs Ocaya (1978)]  Jurisdiction over Complex Crimes (2003 Bar): lodged with the court having jurisdiction to impose the maximum and most serious penalty imposable on an offense forming part of the complex crime. V. It is defined by law. XIV. over the person [Miranda vs Tuliao (2006)]). REMEDIAL LAW General Matters Prosecution of Offenses Prosecution of Civil Action Preliminary Investigation Arrest Bail Rights of the Accused Arraignment and Plea Motion to Quash Pre-trial Trial Judgment New Trial or Reconsideration New Appeal Search and Seizure Provisional Remedies I. Jurisdiction Over The Person of the Accused May be acquired by consent of the accused or by waiver of objections. It can never be acquired solely by consent of the accused. Requisites for exercise of criminal jurisdiction  WON the court has jurisdiction over the offense by virtue of the imposable penalty and its nature (SUBJECT MATTER JURISDICTION)  WON the court has jurisdiction over the person of the accused  WON the action has been filed within the TERRITORIAL JURIDICTION of the court . Failure of the accused to make objection in time would constitute a waiver of the objection. Jurisdiction over the Person of the Accused The person charged with the offense must have been brought to its forum for trial.jurisdiction continues until the court has done all that it can do in the exercise of that jurisdiction. or is construed that it is intended to operate to actions pending before its enactment. VIII.Refers to VENUE (see below) or the place where the case is to be tried. [People vs Chupeco (1965)] Exception: Where the succeeding statute expressly provides. re validity of arrest. or entering trial) or  By filing Bail Jurisdiction Over the Subject Matter Derived from the law. XII. [Antiporda vs Garchitorena (1999).Criminal Procedure Criminal Procedure Civil Procedure Evidence Special Proceedings  ARREST of person or  VOLUNTARY SUBMISSION by the person Voluntary appearance of the accused is accomplished by:  His pleading to the merits (filing a motion to quash (except if the ground is to question the jurisdiction of the court. [Sec 15(a). GENERAL MATTERS A. IX. XV. III.

32(2). that in offenses involving damage to property through criminal negligence they shall have exclusive original jurisdiction thereof. nature. or amount thereof. Section 2. [Sec. the offense is serviceoriented. as amended [RA 8369. Book II of the RPC Officials enumerated are the ff: . irrespective of other imposable penalties. BP 129] . of the Compensation and Position Classification Act of 1989 (RA 6758) . value. BP 129]  Criminal cases where one or more of the accused is below 18 years of age but not less than 15 years. Jurisdiction of Courts MTC/MeTC/MCTC  Exclusive original jurisdiction over all violations of city/municipal ordinances committed within their respective territorial jurisdiction. grade 27 or higher .REMEDIAL LAW REVIEWER Military Courts General rule: Ordinary courts will have jurisdiction over cases involving members of the armed forces. RA 1379. 20. however.Violations of rental law. this Rule shall govern where the imposable fine does not exceed P10. the accused or batterer shall be subject to criminal proceedings and the corresponding penalties. which shall hereafter be exclusively taken cognizance of by the latter. RA 8293]  Money Laundering Cases [RA 9160] Exception: those committed by public officers and private persons who are in conspiracy with such public officers shall be under the jurisdiction of the Sandiganbayan SANDIGANBAYAN  Exclusive original jurisdiction in those cases expressly enumerated in PD 1606.Members of Congress and officials thereof classified as Grade'27'and up under the Compensation and Position Classification Act of 1989 . 13 . BP 129] Exception: Those now falling under the exclusive and concurrent jurisdiction of the Sandiganbayan.Violations of traffic laws/rules/ regulations. 20. and Chapter II. [Sec. regardless of who the co-accused or victims are. or where one or more of the victims is a minor at the time of the commission of the offense [RA 9344]  Cases against minors cognizable under the Dangerous Drugs Act. 32(1). than those specified in subsec. without prejudice to the provisions of the Constitution  Other offenses or felonies whether simple or complexed with other crimes committed by public officials and employees in relation to their office Requisites: . . whether simple or complexed with other crimes . RTC  Exclusive original jurisdiction in all criminal cases not within the exclusive jurisdiction of any court/tribunal/body.Members of the judiciary without prejudice to the provisions of the Constitution . however. .Chairmen and members of Constitutional Commissions.000. [Sec.Accused is any one of the public officials enumerated in subsec. including the civil liability arising from such offenses or predicated thereon.The offender commits such other offense or felony in relation to his office  Cases filed in pursuant to and in connection with EO 1. Title VII. irrespective of kind. and regardless of other imposable accessory or other penalties. 2. [Sec. October 15. 7610. in the interest of justice. If an act committed against women and children likewise constitute a criminal offense. [Sec. and other persons subject to military law. issued in 1986 Exception: When.Cases where the penalty prescribed by law for the offense charged is imprisonment not exceeding 6 months. as determined by the ordinary court during arraignment. or both. or a fine not exceeding P1. 14.Accused commits any other offense or felony. 03-03-03-SC (2003). 4 of Ra 8249. [Sec. otherwise classified as Grade '27' and higher. Provided: the President may.M. Exception: a criminal case falling under the aforementioned list where the offense charged is necessarily related to another criminal case subject to the ordinary procedure. (a). BP 129]  Cases classified under the Revised Rules on Summary Proceedings: [SC Resolution. BP 129]  Exclusive original jurisdiction over all offenses punishable with imprisonment not exceeding 6 years irrespective of the amount of fine. or of the civil liability arising therefrom: Provided. Family Courts Act of 1997]  Violations of intellectual property rights [A. Family Courts Act of 1997]  Violations of Republic Act No. No. 32. as amended by RA 8249: violations of RA 3019. 32(2). the Child Abuse Act. (a) of Sec. BP 129] Exception: Cases falling within the exclusive original jurisdiction of RTCs and of the Sandiganbayan. order/direct at any time before arraignment that any such crimes/offenses be tried by the proper civil courts. including members of the Citizens Armed Forces Geographical Units who commit crimes under the RPC or special laws. 14A.  Cases of domestic violence against women and children. accessory or otherwise.Officials of the executive branch occupying the positions of regional director and higher. that in offenses involving damage to property through criminal negligence. [RA 8369. then it will be tried by the court martial.000.Provided. 1991] .

 The prosecution is under an invalid law/ordinance/regulation. the Court declared that they cannot uphold the position that only the filing of a case in court can toll the running of the prescriptive period. [Francisco vs CA (1983)] Exception: The Court held that the interruption of the prescriptive period upon the institution of the complaint under Sec.  When double jeopardy is clearly apparent. the Court held that the prescriptive period is interrupted by commencing the proceedings for the prosecution of the accused.  There is clearly no prima facie case against the accused and MTQ on that ground has been denied.REMEDIAL LAW REVIEWER MTC/MeTC/MCTC RTC SANDIGANBAYAN 14  Violations of BP 22 [A. In Panaguiton. Rule 110] Prescription is interrupted with the filing of the case even if the court is without jurisdiction. [Sec. [Sec. This is governed by Act No. which was declared as equivalent to the PI conducted by the DOJ in criminal cases. 1(b). Exceptions (Bar 1999)  To afford protection to the constitutional rights of the accused. the complaint may be filed with the office of the public prosecutor unless otherwise provided in their charters. In this case petitioner filed its complaint-affidavit with the TAPP of DOJ. the criminal action is instituted by filing the complaint with the appropriate officer for PI. PROSECUTION OF OFFENSES 1. how instituted (Bar 1999) In general A criminal action is commenced in this jurisdiction by the filing of a complaint or information. BP 129] 4. It can also be effectively tolled by the filing of the BP 22 petition before the Office of the Prosecutor.M. two (2) months and one (1) day without regard to the fine). No. [Sec. Criminal actions. 3326 and is interrupted only by the institution of judicial proceedings (not administrative proceedings) for its investigation and punishment. even if it be merely for purposes of preliminary examination or investigation. and as such the prescriptive period was tolled. 1(a). The complaint may be filed either with the MTC or with a public prosecutor for purposes of conducting a preliminary investigation. Effect of the Institution of criminal action on the prescriptive period (Bar 1993) General Rule: The institution of a criminal action shall interrupt the running of the period of prescription of the offense charged unless otherwise provided in special laws. In SEC v Interport Resources Corporation (2008) . Rationale: Public interest requires that criminal acts be immediately investigated and prosecuted for the protection of society. Rule 110]  The criminal action is commenced when the complaint or information is filed in court. [Zaldivia vs Reyes (1992)] However. accomplished by initiating the preliminary investigation by the SEC. Jr.  In offenses cognizable by inferior courts.  The charges are manifestly false and motivated by the lust for vengeance.  The court has no jurisdiction over the offense. [Sec. Rule 110]  In Metropolitan Manila and other chartered cities. the SC confirmed that under Section 2 of Act 3326. the complaint or information is filed directly with said courts or the complaint is filed with the fiscal. Institution and Commencement of actions  For offenses which require a preliminary investigation pursuant to section 1 of Rule 112 (where the penalty prescribed by law is at least four (4) years. When injunction may be issued to restrain criminal prosecution General rule: The prosecution of a criminal case.  There is a prejudicial question which is sub judice. may not be enjoined by prohibition/injunction.1 of Rule 110 does not apply to cases for violation of special acts and municipal ordinances. vs Lim (2008). vs DOJ (2008). even at the stage of preliminary investigation and reinvestigation. II. in Sanrio Company Ltd.  Necessary for the orderly administration for justice or to avoid multiplicity of actions. 35. 1(b). [Samson vs Guingona (2000)]  Preliminary injunction has been issued by the SC to prevent the threatened unlawful arrest of petitioners. the prescriptive period for violation of special laws starts on the day such an offense was committed and is interrupted by the institution of proceedings against the respondent. Rule 110] .  The acts of the officer are without or in excess of authority. 00-1101-SC (2003)]  Special jurisdiction to decide on applications for bail in criminal cases in the absence of all RTC judges in a province or city [Sec.  A case of persecution rather than prosecution. 1.

 Marriage between offender and offended party. 5] The public prosecutor is a quasi-judicial officer and a representative of sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all. in any case. Liability arising from an offense is extinguished in the same manner as other obligations. the pardon must be extended to all offenders.  If there is more than one accused. acts of lasciviousness  Defamation which consists of imputation of any of the foregoing offenses. . complaints on cases of unlawful acts mentioned in the law committed against children. abduction and acts of lasciviousness – The offended party or her parents. Rule 110]  Seduction. seduction. [US v. abduction. Both guilty parties should be included if both are alive. the will of the offended party is ascertained and the action . nor. a criminal prosecution will not prosper if the offended party consented to the offense. Rule 110]  In oral defamation – can only be brought upon instance and upon complaint of the offended party. abduction and acts of lasciviousness . where marriage between the offender and the offended party would be effective as pardon even when the offender has already commenced serving his sentence.REMEDIAL LAW REVIEWER Note: The above cases involve violation of special laws. grandparents or guardian will prevent prosecution. may be filed by any of the ff:  Offended party  Parents or guardians  Ascendant or collateral relative within the third degree of consanguinity  Officer. [Sec 5.An affidavit of desistance cannot justify dismissal of the complaint if made after (and not before) the institution of the criminal action. Exception: In case of (1) heavy work schedule of the public prosecutor or (2) in the event of lack of public prosecutors.In seduction. Sec.  Pardon or express condonation has the effect of waiving the civil liability with regard to the interest of the injured party.In adultery/concubinage.It does not bar the People of the Philippines from prosecuting the criminal action. if the offender has been expressly pardoned by them. Rule 110] However.Express pardon by the offended party. 5.The parents/grandparents/guardian of the offended minor (in that order) cannot extend a valid pardon without conformity of the offended party. Who may file them. [Riano] proceeds. Cases that cannot be prosecuted de oficio Those which cannot be prosecuted except upon complaint filed by the aggrieved/offended party are the following:  Adultery/concubinage [Sec.  Pardon by offended party . Rationale: The aggrieved party might prefer to suffer the outrage in silence rather than go through the scandal of a public trial. Effect of  Death of offended party . Exception: In rape. 27 of RA 7610. grandparents. only she can extend a valid pardon which would absolve the offender. or representative of a licensed child-caring institution  Officer or social worker of the DSWD  Barangay chairman 15 2.  Pardon or desistance extinguishes civil liability. Luna (1902)] . . The authority will continue up to the end of the trial even in the absence of a public prosecutor until revoked or withdrawn. 5] . [Rule 110.The State shall initiate the action on behalf of the offended party in case of his death/incapacity and he has no known parents/grandparents/ guardians.If the offended woman is of age and not incapacitated. but it operates as a waiver of the right to pursue civil indemnity. or guardian. 2000) General Rule: All criminal actions either commenced by complaint or by information shall be prosecuted under the direction and control of a public prosecutor [Rule 110. such death does not extinguish the criminal liability of accused. .  Desistance by offended party . parents. Offended parties who can file the complaint  In adultery and concubinage – The offended spouse. the private prosecutor may be authorized in writing by the Chief of the Prosecution Office or the Regional State Prosecution to prosecute the case subject to the court‘s approval. Under Sec.Once a complaint is filed.In rape. . The private prosecutor is the attorney representing the offended where the civil action for recovery of civil liability is instituted with the criminal case. crimes that cannot be prosecuted de officio (Bar 1990. Sec. General rule: Pardon must be made before the filing of the criminal complaint in court.  Seduction. abduction and acts of lasciviousness of a minor – The pardon will be effective if given by both parents and the offended party. Death after filing the complaint would not deprive the court of the jurisdiction to try the case. even if the latter is a minor. [Sec 5. social worker.

Rule 110] Exception: In case of heavy work schedule of the public prosecutor or in the event of lack of public prosecutors.Other public officer charged with the enforcement of the law violated. [Roberts Jr.  The prosecutions is under an invalid law/ordinance/regulation. It follows that the evidence presented by the private prosecutor at said hearing could not be considered as evidence for the plaintiff [People vs Beriales. (1996)] The trial court is not bound to adopt the resolution of the Secretary of Justice since it is mandated to independently evaluate or assess the merits of the case and it may either agree or disagree with the recommendation of the Secretary of Justice. any peace officer or other public officer charged with the enforcement of the law violated. the prosecutor has no power to dismiss the action without the court‘s consent. [Sec.  When double jeopardy is clearly apparent. to proceed with the presentation of his evidence to enable the court to arrive at its own judgment as to the accused‘s culpability. vs CA.  There is clearly no prima facie case against the accused and MTQ on that ground has been denied. regardless of his personal convictions or opinions. Sufficiency Information Complaint defined of Complaint or A sworn written statement charging a person with an offense.  Criminal cases under the Revised Rules on Summary Procedure shall be either by complaint or by information. if the evidence presented at the PI leaves no doubt as to what crime was committed and by whom. Control of prosecution General Rule: All criminal actions commenced by a complaint or information shall be prosecuted under the direction and control of the prosecutor. he cannot be compelled to file a particular information. it is the prosecutor‘s duty.  There is a prejudicial question which is sub judice.  The authority may be revoked or withdrawn.After an action has been filed in court. [Sec 2. it can‘t be said that the prosecution of the case was under the control of the City Fiscal. 4.  The court has no jurisdiction over the offense. While the Secretary of Justice has the authority to review the acts of his subordinates in criminal cases.The prosecutor has the discretion to file or not to file a criminal action.Offended party .  The acts of the officer are without or in excess of authority.  The private prosecutor may be authorized in writing by the Chief of the Prosecution Office or the Regional State Prosecutor to prosecute the case subject to the approval of the court. subscribed by the offended party.  The charges are manifestly false and motivated by the lust for vengeance. . 5. Exceptions (Bar 1999)  To afford protection to the constitutional rights of the accused.  A case of persecution rather than prosecution. [Sec. Extent of the prosecutor’s control  Prior to the filing of the case . 3.  After a case is filed . the court has always has the discretion to try a motion to dismiss which the prosecution may file after the Secretary of Justice reverses an appealed decision. [Riano] 5. Criminal actions. responsible citizens where the violation occurred. Rationale: Public interest requires that criminal acts be immediately investigated and prosecuted for the protection of society. [Sec. Rule 110]  Persons authorized to file the complaint: .  Necessary for the orderly administration for justice or to avoid multiplicity of actions.The prosecutor is vested with discretion as to who is to prosecute and for what. provided that in Metro Manila and in chartered cities. 16 3.  Filed in the name of the People of the Philippines. 5. However.Any peace officer . then mandamus is available to compel the prosecuting officer to file the corresponding complaint or information . except when the offense cannot be prosecuted de oficio. Rule 110]  Complaint refers to private crimes.REMEDIAL LAW REVIEWER  At least 3 concerned. Effects of the lack of intervention by the fiscal in the trial Although the private prosecutor had previously been authorized by the special counsel to present the evidence for the prosecution. in accordance with the evidence [Bernabe vs Bolinas. Rule 110]  Criminal action is still prosecuted under the direction and control of the public prosecutor.Once a criminal case has been filed in court. the criminal action may only be commenced by the filing of an information (which means by the prosecutor). [Samson vs Guingona (2000)]  Preliminary injunction has been issued by the SC to prevent the threatened unlawful arrest of petitioners. in view of the absence of the City Fiscal at the hearing. (1976)]. . (1966)]. when enjoined General rule: The prosecution of a criminal case may not be enjoined by prohibition/injunction.

6. charging a person with an offense.The allegation in the information of ―on or about the year 1992‖ is defective as it violates Sec.  Need not be exact . and cannot be cured by silence. the proceeding must be started by the aggrieved party himself. Lack of authority of the officer signing the information is an infirmity in the information.  But a "complaint" filed with the fiscal prior to a judicial action may be filed by any competent person. since he is presumed to have no independent . [People vs Cinco (2009)] Name of the accused  It must include the name and surname of the accused. he must be described under a fictitious name with a statement that his true name is unknown. 11.  When date is so remote: defective . knowledege of the facts that constitute the offense. 6. it is the fiscal who files it. [Cudia v CA (1998)]  Information refers to public crimes. But lack of oath is not a formal defect and will not invalidate a judgment. [Sec. But it must be signed and subscribed by the fiscal/prosecutor. His true name will be inserted if eventually disclosed or appears in some manner to the court. [Sec. 10. Rule 110] Place of commission of offense General rule: It is sufficient if it can be understood that the offense (or some of its essential ingredients) was committed within jurisdiction of the court. Rule 116. because the phrase not only includes 12 months of the year 1992 but also years prior and subsequent to 1992. or even by express consent.  the name of the offended party.REMEDIAL LAW REVIEWER  The complaint must be under oath. then the information is valid. Rule 110] Time of commission of the offense General rule: The precise date is not necessary. with respect to an information. [Lazarte. subscribed by the prosecutor and filed with the court. In that case. both of which are filed in court.A motion for a bill of particulars under Sec. [People vs. Exception: When the date is a material ingredient of the offense. 6.  the acts or omissions complained of as constituting the offense. Exception: If the particular place where it was committed:  Constitutes an essential element of the offenses charged.  Remedy in case of defect in averment of time .  As a general rule. Rule 110] Test for sufficiency of the complaint or information is whether the crime is described in intelligible terms with such particularity as to apprise the accused with reasonable certainty. a criminal action is commenced by complaint or information.  The "complaint" referred to in Rule 110 contemplates one filed in court. acquiescence. In case of a complaint.  What the prosecutor signs under oath is the certification that he has conducted the required preliminary investigation (PI). Bulaong (1981)]  Information is valid when signed by prosecutor who has authority to conduct PI of the offense committed within his jurisdiction. . Jr. and  the place where the offense was committed. But defect in the date is not a ground for MTQ under Rule 116. 11. OR  Is necessary for its identification. Lack of certification does not invalidate judgment. it must be filed by the offended party. Rule 110 and the accused’s right to be informed of the nature and cause of the accusation against him. People vs Cinco (2009)]  It is filed by the prosecutor and need not be under oath. 4. 17 Information defined An accusation in writing. not with the fiscal. Sucaldito (1987)] Form & Substance Sufficiency of complaint or information A complaint or information is sufficient if it states:  the name of the accused. vs Sandiganbayan (2009)] The purpose of the requirement for the information‘s validity and sufficiency is to enable the accused to suitably prepare for his defense. as well as any appellation or nickname by which he has been or is known. 7.  If the name cannot be ascertained.  the designation of the offense given by the statute.As long as the alleged date is not so remote or far removed from the actual date so as to surprise and prejudice the accused.The accused may also file a MTQ on the ground that allegations are so vague and the time of commission of the offense so remote that he is denied due process and the right to be informed of the accusation against him. of the offense charged. [Sec. [Ebarle v. Rule 110]  If there are more than 1 accused. Rule 110] The determinative factor in the resolution of the question involving a variance between allegation and proof in respect of the date of the crime is the element of surprise on the part of the accused and his inability to defend himself properly. [Sec. [Sec. Rule 110.  the approximate date of the commission of the offense. [Sec. name all of them.

then the indictment must show that the accused does not fall within the exemptions. [Sayson vs People (1988). Information is legally viable as long as it distinctly states the statutory designation of the offense and the acts or omissions thereof. the latter prevails over the former. [People vs Teodoro (2009)] 7. otherwise. they are not to be considered even if proven during the trial. the indictment/information is sufficient if it alleges facts which the offender did as constituting a violation of law. cited in Ricarze vs CA (2007)]  A mistake in the name of the accused is not equivalent to a mistake in the identity especially when sufficient evidence is adduced to show that the accused is pointed to as one of the perpetrators of the crime. Designation of Offense  Aver the acts and omissions constituting the offense. [Sec. Allegations required to safeguard right to be informed  Allegations must be in ordinary or concise language.If a juridical person.REMEDIAL LAW REVIEWER Name of the offended party [Sec. The accused should have moved for a bill of particulars or for quashal of information before arraignment.  If an offense against property: . [Sec. Rule 110] What to allege  Where the law prescribes exceptions General rule: Where the law alleged to have been violated prohibits generally acts therein defined and is intended to apply to all persons indiscriminately. [US vs Lahoylahoy (1918)] Designation of the name of the offended party is not absolutely indispensable for as long as the criminal act charged in the complaint or information can be properly identified. 12. [Frias vs People (2007)] Consequently. insert it. Exception: Where the statute alleged to have been violated applies only to specific classes of persons and special conditions and the exemptions from its violation are so incorporated in the language defining the crime that the ingredients of the offense cannot be accurately and clearly set forth if the exemption is omitted. as it is enough that the offense be described with sufficient particularity to .If the name is later known. sufficient to enable a person of common understanding to know what offense is being charged. 8. if real name is unknown. . without need to aver that it is juridical. without explicitly negating the exception. name or known name. [US vs Chan Toco (1908)]  Where complex crime is charged Where what is alleged in the information is a complex crime and the evidence fails to support the charge as to one of the component offenses. as the exception is a matter of defense which the accused has to prove. nickname/appellation. objections as to form cannot be made for the first time on appeal.  In crimes against property. particularly describe the property to identify the offense. 8 and 9. but prescribes certain limitations/exceptions from its violation. The facts stated in the body of the complaint/information determine the crime of which the accused stands charged and for which he must be tried.  Specify the qualifying and aggravating circumstances for them to be considered in the imposition of the penalty.  Where the name of the injured party is necessary as matter of essential description of the crime charged. Rule 110.  This must be done both for the offense charged and the circumstances involved in its commission. Rule 110]  The prosecutor‘s characterization of the crime is immaterial and purposeless. Qualifying and aggravating circumstances must be alleged. [Matrido v People (2009)] Purpose  To enable a person of common understanding to know what offense is intended to be charged. 9. the complaint must invest such person with individuality by either naming him or alleging that his name is unknown. . [Guy vs People (2009)] 18  If an offense against person: Name and surname. People vs Tampos (2009)] (Bar 2001) This is a procedural requirement to safeguard the right of the accused to be informed of the nature and cause of the accusation against him. the 6. Rule 110] make sure the accused fully understands what he is being charged with. [People vs Quemeggen (2009)] Specific acts of accused do not have to be described in detail in the information. fictitious name. [Sec. ownership must be alleged as matter essential to the proper description of the offense. otherwise he is deemed to have waived his objections to such a defect. then the information should negate the exception.  Where exceptions form as ingredients of offense If the exception is needed for defining the offense. Cause of the Accusation A variance between the allegation in the information and proof adduced during trial shall be fatal to the criminal case if it is material and prejudicial to the accused so much so that it affects his substantial rights. In case of a conflict between the designation of the crime and the recital of ultimate facts constituting the offense. [People vs Amodia (2009)] An accused is deemed to have waived his right to assail the sufficiency of the information when he voluntarily entered a plea when arraigned and participated in the trial.  To enable the court to pronounce proper judgment.If name is unknown.

REMEDIAL LAW REVIEWER defendant can only be convicted of the offense proven. [Ricarze vs CA (2007)] Substitution – a complaint or information may be substituted if it appears at any time before judgment that a mistake has been made in charging the proper offense. [Sec 3. and impose on him the penalty for each offense. Rule 110] The test as to WON a defendant is prejudiced by the amendment of information is – o WON a defense under the information as it originally stood would be available after the amendment is made. Distinction between amendment (Bar 1994) AMENDMENT Formal or Substantial changes Can be effected without leave of court Only as to form. when an information charges more than one offense.It does not cause prejudice to the rights of the accused. 2002) Amendments in form and substance before plea General rule: It must be made before the accused enters his plea. Duplicity of the Offense. with notice to the offended party and with leave of court. cannot invoke double jeopardy . there is no need for another PI and retaking of plea Amended information refers to the same offense charged in the original information or to an offense which is included in the original charge. [Sec. [Sec 3. Rule 120] Failure to do so constitutes a waiver. of copies of its order. 8. Rule 110] (Bar 2001. [Sec 14. the complaint/information. Rule 110]  Subject to the Sec 19. when it becomes manifest at any time before judgment that a mistake has been made in charging the proper offense and the accused cannot be convicted of the offense charged or any other offense necessarily included therein. 19 Several modes of committing offense not duplicitous General rule: In case of crimes susceptible of being committed in various modes. Exceptions:  Complex crimes  Special complex crimes  Continuous crimes  Crimes susceptible of being committed in various modes  Crimes which another offense is an ingredient [People vs Camerino (1960)] 9. All other matters are merely of form. Exception: If the amendment downgrades the nature of the offense charged in. or excludes any accused from.Exception: if it is beneficial to the accused. [Sec 14. [People vs Zulueta (1951)] . 13. provided the accused would not be placed in double jeopardy. the accused may file a MTQ on the ground of duplicity of offenses. Amendments made after plea and during trial  Formal – can only be made under two conditions . Rule 110] Objection to a complaint or information which charges more than one offense must be timely interposed before trial. [People vs Casey (1981)]  Substantial – proscribed. the allegations in the information of the various ways of committing the offense would be regarded as a description of only one offense and information is not rendered defective. [People v Tabio (2008)] and the court may convict him of as many offenses as are charged and proved. The court is mandated to state its reasons in resolving the motion of the prosecutor and to furnish all parties. especially the offended party. [Almeda vs Villaluz (1975)] . the accused shall not be discharged if there appears good cause to detain him. it can be made only upon motion of the prosecutor.Leave of court must be secured . and o WON any evidence defendant might have would be equally applicable to the information in the one form as in the other. can invoke double jeopardy substitution and SUBSTITUTION Substantial change form original Must be with leave of court Another PI is entailed and accused has to plead anew Involves a different offense which does not include those provided in the original charge. Amendment or Substitution of complaint or information [Sec. Rule 120] Exception: When the law prescribes a single punishment for various offenses Purpose: To give the accused the necessary knowledge of the charge to enable him to prepare his defense. The court shall commit the accused to answer the proper offense and dismiss the original case upon the filing of the proper information. 14. Hence. Rule 119.Substantial matter in a complaint is the recital of facts constituting the offense charged and determinative of the jurisdiction of the court. the court shall dismiss the original complaint or information upon the filing of a new one charging the proper offense. Exception (Bar 2005) General rule: The information must charge only one offense.

16. [People vs Gorospe (1984)] Written defamation  Action to be instituted and filed in the RTC of the province or city where the libelous article is printed and first published. it must state that the libelous material was either printed or first published in the place of the filing of the information. 360. Rule 110] Offense committed outside the Philippines Cognizable by the court where the criminal action is first filed. . 15(a). 15(c). The place where the accused was arrested is of no moment. aircraft or vehicle passed thru. He controls the prosecution of the case and may have reasons why the case should not be dismissed. 5.REMEDIAL LAW REVIEWER 20 10. [Riano on Foz. No. from the nature of the crime and the law defining and punishing it. no civil liability arises in favor of a private offended party. PROSECUTION OF CIVIL ACTION 1. subject to generally accepted principles of international law. [Sec. from the nature of the offense. [People vs Enriquez] Where crime is continuing A person charged with a transitory crime may be validly tried in any municipality or province where the offense was in part committed. Intervention of offended party [Sec. being an essential element of jurisdiction. Rule 110] Reason: principle that every person criminally liable for a felony is also civilly liable. Venue of criminal actions Place where action is to be instituted Venue of criminal actions shall be instituted and tried in the court of the municipality or territory  where the offense was committed. RPC] Note: If information is filed in the place where the defamatory article was printed or first published. [Republic vs Sunga (1988)] . the private offended party is entitled to civil indemnity arising therefrom but he has waived the same or has expressly reserved his right to institute a separate civil action or he has already instituted such action. [Phil. Rule on implied institution of civil action with criminal action How instituted General rule: When the civil action for arising from the instituted with the 111] a criminal action is instituted.When private prosecutor is allowed to intervene: [A. unless the authority is revoked or otherwise withdrawn. Rule 110] How venue or jurisdiction determined  Venue in criminal cases is jurisdictional. Rule 110] 11. Rule 110]  Rule applies only when the crime was committed in the COURSE of the trip. [Sec. RPC] . o In case of heavy work schedule of the public prosecutor or in the event of lack of public prosecutors.  One cannot be held to answer for any crime committed by him except in the jurisdiction where it was committed or where an essential ingredient thereof took place. the action may also be filed in the province where he actually resides at the time of the commission of the offense. 15(b). Rule Offense committed on a vessel Action may be instituted and tried in the court of the first port of entry or any municipality or territory where the vessel passed during such voyage. 15(d). . Rabbit Bus Lines vs People (2004)] Exceptions:  Where. 02-2-07-SC] o All criminal actions either commenced by complaint or by information shall be prosecuted under the direction and control of a public prosecutor. the action may be filed in the court of the province or city where he held office at the time of the commission of the offense.a private individual. the recovery of civil liability offense charged is deemed criminal action. [Sec.  Where. v People (2009)] Offense committed on railroad  Action to be instituted and filed in the court of any municipality or territory where said train. III. Rule 110] General rule: An offended party has the right to intervene in the prosecution of a crime Note: This is still subject to the control of the prosecutor. should first be referred to the prosecuting fiscal for his own view on the matter.a public officer. [Sec. [Sec. including place of departure or arrival.  Offended party has already instituted action .The private prosecutor shall continue to prosecute the case up to the end of the trial even in the absence of a public prosecutor. [Sec. and not merely allege that the paper or magazine is of general/considerable circulation. [Art. 100.Any move on the part of the complainant or offended party to dismiss the criminal case. even if without objection of the accused. or  where any of its essential ingredients occurred. [Art. Jr.  Additional rules: if offended party is . 1. the private prosecutor may be authorized in writing by the Chief of the Prosecution Office or the Regional State Prosecutor to prosecute the case subject to the approval of the court.M.

34. .  Institutes the civil action prior to the criminal action. Rule 111]  The civil action. PD 1606. When separate civil action is suspended  After the criminal action has been commenced. 4. [Sy Thiong Siou vs Sy Chim (2009)] . and the cognizance of which pertains to another tribunal. These civil actions can be filed and prosecuted independently of the criminal action. as amended by RA 8249]  An offended party loses his right to intervene in the prosecution of a criminal case.  The prejudicial question must be determinative of the case before the court but the jurisdiction to try and resolve the question must be lodged in another court or tribunal. but also when he has actually instituted the civil action. For by either of such actions his interest in the criminal case has disappeared.  No counterclaim.  Procedure for making the reservation: .REMEDIAL LAW REVIEWER Exception: If the offended party:  Waives the civil action. Rabbit Bus Lines Inc vs People (2004)]  Does not include civil liability that the offended party waives. cross-claim or 3rd-party complaint may be filed by the accused in the criminal case. 2002)  Claims arising from an offense which is cognizable by the Sandiganbayan where there is likewise no right to reserve the filing of the civil action separately from the criminal action. Rule 111] 5. 21 4.‖ (Bar 2001. it survives notwithstanding the death of the accused [People vs Ayochok (2010)] 2.  The rule requiring reservation does not apply to Arts. is that arising from delict or crime. [Phil. 4. Prejudicial Question (1999 Bar) Elements of prejudicial question General Rule: a prejudicial question is that which arises in a case the resolution of which is a logical antecedent of the issue involved therein.  If death is after arraignment and during pendency of criminal action – Extinguishes civil liability arising from the delict. 34 and 2176 of the Civil Code. Civil actions referred to in Civil Code 32. 3. [Garcia vs Florido (1973)]  Only civil liability arising from the crime charged as a felony is deemed instituted with the criminal action. 32-34 and 2176. reserves or those instituted prior to the criminal action. the separate civil action arising therefrom cannot be instituted until final judgment has been entered in the criminal action. 32-34 and 2176 of the Civil Code are exempted from the rule that after a criminal action has been commenced. CC. When civil action may proceed independently  The reservation of the right to institute separately the civil action shall be made before the prosecution starts presenting its evidence and under circumstances affording the offended party a reasonable opportunity to make such reservation.Filing the separate civil action and informing the court trying the criminal case that the offended party has filed a separate civil action. Rule 111.  If death is while appeal is pending – extinguishes criminal liability and civil liability based thereon. If the civil liability is predicated on a source of obligation other than delict.Filing a manifestation in the criminal case that the offended party is reserving his right to file a separate civil action. Exception: Independent civil actions instituted under Arts. or those instituted to enforce liability arising from other sources of obligation may be continued against the estate or legal representative of the accused after proper substitution or against his estate. but any cause of action which could have been the subject thereof may be litigated in a separate civil action. [Sec 2. distinct and independent‖ of any criminal prosecution which may be based on the same act. which should be suspended after the institution of the criminal action. 33. 33. [Sec.  It is a question based on a fact distinct and separate from the crime but so intimately connected with it that it determines the guilt or innocence of the accused. 1. 32. 3.  Civil actions mentioned in Sec. [Ras vs Rasul (1980)]  Rationale: to avoid two conflicting decisions in the civil case and in the criminal case. Effect of the death of accused or convict on civil action [Sec. ABS-CBN Broadcasting vs Ombudsman (2008)]  If death is before arraignment – Dismissal of case without prejudice to filing of civil action against estate of the deceased. not only when he has waived the civil action or expressly reserved his right to institute it. Rule 111 under Arts. or  Reserves the right to institute it separately [ABSCBN Broadcasting Corporation vs Ombudsman (2008)] Exception to this exception  Claims arising out of a dishonored check under BP 22 where ―no reservation to file such civil action separately shall be allowed. [Sec. the civil action which has been reserved cannot be instituted until final judgment has been rendered in the criminal action. and 2176 shall remain ―separate.

the amount of the check involved shall be considered as the actual damages for which no separate civil action is allowed.a fortiori absence of the accused [Sec. at any time before the prosecution rests. 3.A. Rule 111]  When the amount of damages.  When the accused waives his right to preliminary investigation. [La Chemise Lacoste. Cases not requiring a preliminary investigation 8. [General vs Claravall (1991)] Exceptions: In criminal actions for violation of BP22. [People vs Oandasa (1968)]  It is part of the guarantees of freedom and fair play. Purposes of preliminary investigation . defined  It is an inquiry or proceeding to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof.M. and should be held for trial. the fiscal may forthwith file the corresponding information with the proper court. In estafa cases. No.the failure to claim it before the accused pleaded [People vs Magpale (1940)] . S. Resolution of investigating prosecutor 5. then the corresponding filing fees shall be paid by the offended party upon the filing thereof in court for trial. the filing fees shall be paid based on the amount involved. General Rule: The actual damages claimed or recovered by the offended party are not included in the computation of the filing fees. Note: The Rule precludes a motu proprio suspension of the civil action. [Riano] Nature of the Right to PI  It is a statutory right in those instances where it is required. 7. vs Fernandez (1984)]  The right to have a PI conducted before being bound over to trial for a criminal offense and hence formally at risk of incarceration or some other penalty is not a mere formal or technical right but a substantial right 6. 04-2-04] Right to Preliminary Investigation  The right to preliminary investigation is a personal right which the accused may waive either expressly or by implication. Remedies of accused if there was no preliminary investigation 9. Who may conduct determination of existence of probable cause 4. Rule 112]  The conduct of a PI is the initial step towards the criminal prosecution of a person. [Sec. 1. is specified in the complaint or information filed in court. [People vs Perez (1960)]  The right is deemed waived by: . When warrant of arrest may issue 7.  Court conducting the PI. Rule on Filing Fees in civil action deemed instituted with the criminal action Filing fees of civil action deemed instituted in criminal action Filing fees apply when damages are being claimed by the offended party.failure to request it within 5 days from time he learns of the filing of the complaint/information .silence of the accused [People vs Mijares (1951)] . Rule 111]  Previously initiated civil action involves an issue similar or intimately related to the issue raised in the subsequent criminal action. Rule 111]  Office of the prosecutor (in the PI stage). except on an award for actual damages. 1999. Where to file petition [Sec. Exception: If there exists a prejudicial question which should be resolved first before an action could be taken in the criminal case. or  Court where criminal action has been filed for trial.  In any other case—i.REMEDIAL LAW REVIEWER Effect (Bar 1995. Nature of right 2. PRELIMINARY INVESTIGATION 1. the criminal case takes precedence. Rule 112. Inquest 1. 22 Requisites [Sec. de Guzman vs People and Sandiganbayan (1982)] An application for or admission to bail shall not bar the accused from assailing the regularity or questioning the absence of a preliminary investigation of the charge against him provided that IV. when the amount of damages is not so alleged in the complaint or information filed in court. [A. 1. other than actual. Nature of right Preliminary investigation. and to withhold it would violate the constitutional right to due process. 3(d). 6. and  The resolution of such issue determines WON the criminal action may proceed. Review 6. 2010) General rule: Where both a civil and a criminal case arising from the same facts are filed in court. [Sec.when accused already posted bond for his release and subsequently went to trial without claiming his right to PI [People vs Selfaison (1961)] .e. the corresponding filing fees need not be paid and shall simply constitute a first lien on the judgment..

expense. Consti. [Tandoc vs Resultan (1989)] Scope of PI  A PI is ―merely inquisitorial.REMEDIAL LAW REVIEWER he raises the challenge before entering his plea [Sec. in appropriate cases. It is not a trial of the case on the merits‖ and does not place the persons against whom it is taken in jeopardy. from the trouble. . anxiety of a public trial. including acts or omissions constituting election frauds. [Sec. [Baytan vs COMELEC (2003)] .National and regional state prosecutors. or any subdivision.M. No. [Sec.Provincial/city prosecutors and their assistants. Rule 114]. 1991]  A PI takes on an adversarial quality. may in the first instance. Purposes investigation of preliminary 23  To determine whether or not a crime has been committed and whether or not there is probable cause to believe that the accused is guilty. [Raro vs Sandiganbayan (2000)]  To protect the accused from the inconvenience. Omnibus Election Code] The COMELEC exercises the constitutional authority to investigate and. prosecute cases for violation of election laws. because its purpose is to secure the innocent against hasty. expense and burden of defending himself in a formal trial  To secure the innocent against hasty. No.  It ―is not the occasion for the full and exhaustive display of the parties‘ evidence‖ [Raro vs SB (2000)]  The accused has no right to cross-examine the witnesses which the complainant may present. the preliminary investigation has to be conducted pursuant to Rule 11 of the Rules of Procedure of the Office of the Ombudsman requiring that the complaint must be under oath. Art. 12. not only those within the jurisdiction of the Sandiganbayan. agency or instrumentality thereof. 265. [Raro vs SB (2000)] 3. IX-C. where appropriate. Such involves the exercise of administrative powers.If the offense is cognizable by the Sandiganbayan. from the trouble. but also those within the jurisdiction of regular courts as well. expenses and anxiety of a public trial before an accused person is placed on trial. offenses and malpractices. as protectors of the people. 2. 05-8-26-SC] . malicious and oppressive prosecution. and deputize the provincial/ city prosecutor who has jurisdiction over the case for proper preliminary investigation. malicious and oppressive prosecution. .  Ombudsman The Ombudsman and his Deputies. and also protect the state from useless and expensive trials. when vested COMELEC may conduct investigation as regards election offenses.If the offense comes within the jurisdiction of regular courts. [Paderanga vs Drilon. to enable the prosecutor to prepare his complaint or information. 2(6). 2005. 26. and to protect him from an open and public accusation of a crime. notify the complainants of the action taken and the result thereof. Sec. may act on the investigation and subsequently decide on the filing of the criminal action. thus the COMELEC en banc. Consti] The Ombudsman is authorized to conduct preliminary investigation and to prosecute all criminal cases involving public officers and employees. Sec. and to protect him from an open and public accusation of a crime. and MTC judges cannot conduct PI anymore after A. Who may conduct determination of existence of probable cause  Generally [Rule 112.M.  COMELEC. 2 as amended by A. Note: RTC judges have NO power to conduct PI. . shall act promptly on complaints filed in any form or manner against public officials or employees of the Government. Art. and it is often the only means of discovering the persons who may reasonably be charged with a crime. the Ombudsman may endorse the same to.Other officers as may be authorized by law. XI. 05-8-26-SC eliminated judges of the MTC and MCTC from those authorized to conduct a PI effective October 3. . including GOCCs and shall.

REMEDIAL LAW REVIEWER Procedure for preliminary investigation Filing of the complaint [Sec.  Within 10 days from receipt of the resolution. Questions of parties shall be submitted to the investigating officer. Rule 112] 6. 3(a). [Sec. he will prepare an information and resolution. attaching the complaint and other documents. Note: The DOJ Secretary may file the information without conducting another PI or dismiss the information filed by the prosecutor. Resolution of investigating prosecutor [Sec. In case the investigation officer recommends the dismissal of the complaint but the prosecutor/Ombudsman disagrees. or require further affidavits.The accused was informed of the complaint and of the evidence submitted against him. Rule 112] If not made within 10 days. Warrant that is simply based on report and recommendation of prosecution invalid. Review [Sec. and must comply with the same requirements as a complaint. plus 2 copies for the official file  If the investigating officer finds no probable cause. Rule 112] . the investigating officer will forward the case to the prosecutor or the Ombudsman in cases cognizable by the Sandiganbayan in the exercise of its original jurisdiction. 4. . If subpoena is not possible. the investigating officer shall decide based on what complainant presented. Rule 112] Within 5 days from resolution. When warrant of arrest may issue Hearing [Sec. Parties may be present evidence. and other documents to establish probable cause. 4.The accused was given an opportunity to submit controverting evidence. Otherwise. Rule 112] Within 10 days after the filing of the complaint. 4. Defendant’s counter-affidavit Must be made within 10 days from receipt of complaint. the prosecutor/Ombudsman will act on the case. . or  Issue a subpoena to the respondent. but they have no right to examine or cross-examine.  No complaint/information may be filed or dismissed by an investigating prosecutor without the prior written authority or approval of the prosecutor or Ombudsman. the officer shall determine WON there is sufficient ground to hold respondent for trial. the latter may file the information himself or any deputy or order any prosecutor to do so without conducting a new PI.There is reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof. if he finds no ground to continue. . the investigating officer shall resolve the complaint based on the evidence presented by the complainant [Sec. and . or a commitment order if the accused has already been arrested. Hearing is conducted only if there are such facts and issues to be clarified from a party or a witness. which must be subscribed and sworn to before a prosecutor or government official authorized to administer oath or notary public  In such number of copies as there are respondents. 3(b). Rule 112] The investigator must conduct a hearing within 10 days from receipt of the counter-affidavit. Judges of RTC and inferior courts need not personally examine the complainant and his witnesses in the determination of PC. he shall issue a warrant of arrest. and copy evidence at his expense. But he must personally evaluate the prosecutor‘s report and other sufficient supporting evidence.He personally examined the complainant and witnesses. Respondent has the right to examine the evidence submitted by complainant.  He shall certify under oath in the information that: . If the judge finds probable cause. 3(c). The hearing must be finished in 5 days. the judge must make an independent judgment of whether or not there is probable cause. 3(d). This is because the probable cause for the prosecutor and judge are different:  PC for PROSECUTOR: whether or not there is reasonable ground to believe that the accused is guilty of the offense charged and should be held for trial for which information is to be filed. 5. Rule 112]  Stating the respondent‘s address  Include the affidavits of complainant and the witnesses. Within 10 day after the investigation. and on the basis thereof either dismiss the case.He is an authorized officer. and hold him for trial. he will dismiss the case. 3(e). issue a warrant. the investigating officer will either:  Dismiss. 24 Action of the investigating officer [Sec.

2 months and 1 day. without regard to the fine. INQUEST – An informal and summary investigation conducted by a public prosecutor in criminal cases involving persons arrested and detained without the benefit of a warrant of arrest issued by the court for the purpose of determining whether or not said persons should remain under custody and correspondingly be charged in court. If the judge finds PC. 125. Rule 112 above. because the statute relied upon is unconstitutional. the absence of PI:  does not impair the validity of the information or otherwise render it defective  neither does it affect the jurisdiction of the court  nor constitute a ground for quashing the information. Rule 112]  Cases punishable by imprisonment of less than 4 years. but he must sign a waiver of the provisions of Art. ordinarily. 8. should hold in abeyance the proceedings and order the public prosecutor to conduct a PI. filed with the prosecutor or MTC/MCTC Follow the procedure outlined in Sec. the person arrested may ask for a PI.REMEDIAL LAW REVIEWER  PC for JUDGE: whether or not a warrant of arrest should be issued so that the accused may be held in custody in order not to frustrate the ends of justice. he shall dismiss the case within 10 days from its submission or expiration of said period. Remedies of accused if there was no preliminary investigation Effect of denial of right to PI . If Preliminary conducted investigation is being Injunction and writs of restraint General rule: The power of the Fiscal to investigate crimes committed within his jurisdiction will. the complaint may be filed by the offended party or by a peace officer directly with the proper court on the basis of the affidavit of the offended party or arresting officer or person. and (e) in proper cases. 2 months and 1 day.  However. The trial court. instead of dismissing the information. Rule 112] Exception: When a person is lawfully arrested without a warrant involving an offense that requires a PI. (c) to avoid multiplicity of actions. not be restrained. 3(a). before the complaint or information is filed. he may issue summons instead. Inquest General rule: PI is required to be conducted before a complaint/ information is filed for an offense where the penalty prescribed by law is at least 4 years. (b) to prevent the use of the strong arm of the law in an oppressive and vindictive manner. While PI is a statutory and substantive right and a component part of due process. to determine the existence of PC. or was "held invalid." [Hernandez vs Albano (1967)] Within 10 days after the filing of the complaint/information. Exception: Extreme cases may exist where relief in equity may be availed of to stop a purported enforcement of a criminal law where it is necessary (a) for the orderly administration of justice. 8. If the judge still finds no PC despite the additional evidence. a complaint/information may be filed without conducting the PI if the necessary inquest is conducted. If the judge is satisfied that there is no need to place the accused under custody. The judge may require submission of additional evidence within 10 days from notice. Judge may dismiss the case if the evidence on record clearly fails to establish a probable cause Judge may order the prosecutor to present evidence within 5 days from notice and the issue may be resolved by the court within 30 days from filing of complaint/information. he shall dismiss the same. 1. (d) to afford adequate protection to constitutional rights. he shall issue a warrant of arrest or a commitment order (if the accused had already been arrested) and hold him for trial. 9. Cases not requiring a preliminary investigation Cases not requiring a preliminary investigation Nor Covered by Rule on Summary Procedure [Sec. [Sec. [Villaflor vs Vivar (2001)] 25 7. (DOJ-NPS Manual)  In the absence or unavailability of an inquest prosecutor. if the judge finds no PC after personally evaluating the evidence or after personally examining in writing and under oath the complainant and his witnesses in the form of searching questions and answers. as such will unduly setback the administration of criminal justice.

is not illegal or constitutionally objectionable. Sec. the arrested or detained person shall remain under custody. Demetriou (1993)]  Immunity from arrest . 1987 Const.  After the filing of the complaint/ information in court without a PI. he may apply for bail and the investigation must be terminated within 15 days from its inception. If the Inquest Officer finds no PC.Diplomatic Immunity: Ambassadors and ministers of foreign countries and their duly registered domestics subject to the principle of reciprocity (RA 75) When the documents presented are not complete to establish probable cause. the same can be easily taken. [Sanchez v. Requisites of a valid warrant of arrest 5.) . the order of release shall be served on the officer having custody of the said detainee. Determination of probable cause for issuance of warrant of arrest 6. as amended. note down his disposition on the referral document. all of which must be subscribed and sworn to before him  other supporting evidence gathered by the police in the course of the latter's investigation of the criminal incident involving the arrested or detained person. Sec.REMEDIAL LAW REVIEWER RPC in the presence of his counsel. while Congress is in session and for offenses punishable by not more than 6 years imprisonment. but as an authoritative command which one can only defy at his peril. If the Inquest Officer finds that probable cause exists. he shall forthwith prepare the corresponding complaint/information with the recommendation that the same be filed in court. Arrest.Parliamentary Immunity: Senators and Members of the House of Representatives. how made 2. Notwithstanding the waiver. prepare a brief memorandum indicating the reasons for the action taken. if bailable. Although in the guise of a request. the accused may within 5 days from the time he learns of its filing. when lawful 3. ask for a PI with the same right to adduce evidence in his defense as provided in Rule 112. statement of the complainant and witnesses. By officer with warrant b. and forthwith forward the record of the case to the City or Provincial Prosecutor for appropriate action. However. the Inquest Officer shall order the release of the detained person. ARREST 1. VI. It must be terminated within the period prescribed under the provisions of Article 125 of the RPC. it was obviously a command or an order of arrest that a person could hardly be expected to defy. V. Rule 112] 26 If the recommendation of the Inquest Officer for the release of the arrested or detained person is approved. Method of arrest a. not as a strictly voluntary invitation which it purports to be. Should it be disapproved. 125. (Rule 113. The complaint/information shall indicate the offense committed and the amount of bail recommended. the Inquest Officer shall direct the law enforcement agency to submit the required evidence within the period prescribed under the provisions of Art. as amended. investigation report. Distinguish probable cause of fiscal from that of a judge ARREST: Taking of a person into custody in order that he may be bound to answer for the commission of an offense. By officer without warrant c. where the invitation comes from a powerful group composed predominantly of ranking military officers issued at a time when the country has just emerged from martial rule and when the suspension of the privilege of the writ of habeas corpus has not entirely been lifted. 11. 1) Ordinarily. which the person invited may heed or refuse at his pleasure. (Art. By private person 4. RPC. Otherwise. he shall recommend the release of the arrested or detained person. Procedure for inquest proceedings Considered commenced upon receipt by the Inquest Officer from the law enforcement authorities of the complaint/referral documents which should include:  affidavit of arrest. . [Sec. an invitation to attend a hearing and answer some questions. and the corresponding complaint/information shall be filed by the City or Provincial Prosecutor or by any Assistant Prosecutor to whom the case may be assigned. 6. and the designated interrogation site is a military camp. Arrest without warrant.

Par. (Rule 113. that the person to be arrested has committed it (Rule 113. . [Teodicio v. Sec. the suspicion that the person to be arrested is probably guilty of committing the offense is based on actual facts.Requisites: o The person to be arrested must execute an overt act indicating that he has just committed. 2003. based on personal knowledge of facts or circumstances. Sec. 6) 2. a restraint on his liberty to the extent that he is not free to leave on his own volition. Arrest. is actually committing or is attempting to commit an offense in the presence of the peace officer or private person who arrested him.  The grounds of suspicion are reasonable when. 2004 Bar) General rule: No peace officer or person has the power or authority to arrest anyone without a . based on personal knowledge of facts. The person arrested shall not be subject to a greater restraint than is necessary for his detention.―In his presence‖ means: [People v. 50 (October 29. (Rule 113. Ramos (1991)] Exceptions (Rule 113. manual touching of the body. (Rule 113.. Arrest without warrant. the policemen are not only authorized but are also under obligation to apprehend the drug pusher even without a warrant of arrest.Requisites o An offense has just been committed – implies immediacy in point of time. 2. Evaristo (1992)] o He sees the offense. 1987 Const. 2. 2011) It is enough that there be an intent on the part of one of the parties to arrest the other and an intent on the part of the other to submit.REMEDIAL LAW REVIEWER  DOJ Circular No.Insofar as the warrant is issued against 50 "John Does" not one of whom the witnesses to the complaint could or would identify. under the belief and impression that submission is necessary. [Umil v. [Sanchez v. the term necessarily implies control over the person under custody and. 1990): Prohibits the issuance of general warrants in a ―John Doe‖ information ." [Pangandaman v. (Riano. when lawful (1997. houses. Casar (1988)] warrant except in those cases expressly authorized by law. By his submission to the custody of the person making the arrest. and o The person making the arrest has probable cause to believe. o He hears the disturbances created by the offense and proceeds at once to the scene. Sec. Sec. 2000. it is of the nature of a general warrant. in the absence of actual belief of the arresting officer. Demetriou (1993)]  No unnecessary violence No violence or unnecessary force shall be used in making an arrest. 2)  Application of actual force. and o Such overt act is done in the presence or within the view of the arresting officer. Sec. that the person to be arrested has committed it. III. how made Constitutional requirements on arrest The right of the people to be secure in their persons. as a consequence. (Art. (Rule 113. de Lara (1994)] Hot pursuit arrest: When an offense has just been committed and the officer or private person has probable cause to believe. even though at a distance. When the person to be arrested has committed. and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce. 5(b)) . Sec. Sec. and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable.  Personal knowledge must be based on ―probable cause‖ which means an actual belief or reasonable grounds of suspicion. Sec. and particularly describing the place to be searched and the persons or things to be seized. i. papers. physical restraint or a formal declaration of arrest is not required. 1) Whichever means is used to make an arrest. . 2. 5(a) of the Rules of Court. Par.Buy-bust operation o When the appellant is caught in flagrante as a result of the buy-bust operation.) Modes of effecting arrest   By an actual restraint of a person to be arrested. [People v. caught in the act of committing a crime.Entrapment o An arrest made after an entrapment does not require a warrant inasmuch as it is considered a valid warrantless arrest pursuant to Rule 113. 5(a)) . is actually committing.e. or o Offense is continuing or has been consummated at the time arrest is made. 5)  In flagrante delicto: Literally. supported by circumstances sufficiently strong in themselves to create the 27 1. or is attempting to commit a crime. CA (2004)] . one of a class of writs long proscribed as unconstitutional and once anathematized as "totally subversive of the liberty of the subject. Time to make arrest An arrest may be made on any day and at any time of the day or night.

(Rule 113.The person to be arrested is or is reasonably believed to be in said building.Escapee may be immediately pursued or rearrested without a warrant at any time and in any place within the Philippines. . To break into building or enclosure. or o While being transferred from one confinement to another.He has announced his authority and purpose of entering therein. By the bondsman. but the pursuit must be immediate. Ombudsman (2000)] NOTE: Where a warrantless arrest is made under the in flagrante and hot pursuit exceptions. Sec.He may orally summon as many persons as he deems necessary to assist him in effecting the arrest. (Rule 113. 10) . (Rule 113. [Mallari v.REMEDIAL LAW REVIEWER probable cause of guilt of the person to be arrested. 13). . . Method of arrest a. (Rule 113. (Rule 113. 23)  o When the giving of such information will imperil the arrest .The head of the office to whom the warrant of arrest was delivered shall cause the warrant to be executed within 10 days from its receipt. 3) To summon assistance.  A reasonable suspicion therefore must be founded on probable cause. Where a person who has been lawfully arrested escapes or is rescued. and .Exceptions: o When he flees o When he forcibly resists before the officer has opportunity to so inform him  b. Sec. 7) .The officer to whom it was assigned for execution shall make a report to the judge who issued the warrant within 10 days after expiration of the period to execute. .The officer need not have the warrant in his possession at the time of the arrest but after the arrest. 13) Without need of a search warrant if it is incidental to a lawful arrest. (Rule 113. (Rule 113.e. Sec. (Rule 113. (Rule 113.  To search the person arrested for dangerous weapons or anything which may have been used or constitute proof in the commission of an offense.When the person to be arrested is a prisoner who has escaped: (Rule 113. Sec. The inviolability of domicile cannot be used to shield arrest. the warrant shall be shown to him as soon as practicable.When the person to be arrested is engaged in the commission of the offense . Sec. 23) Where the accused attempts to leave the country without permission of the court where the case is pending. 7) o This is not a case of a warrantless arrest but merely an instance of an arrest effected by the police authorities without having the warrant in their possession at that precise moment. 13) . By officer without warrant Duties of arresting officer without warrant   The officer shall inform the person to be arrested of (1) his authority and (2) the cause of the arrest. Sec. 28  Rights of the arresting officer   Other lawful warrantless arrest    3. last par. Sec. Sec. Sec.He has requested and been denied admittance. Rationale: Person to be arrested cannot use his house/ building/enclosure as a shelter for crime. By officer with warrant Duties of the arresting officer  Execution of warrant (Rule 113. he shall state the reasons therefor. evasion of service of sentence). (Rule 114. [Posadas v. coupled with good faith on the part of the peace officers making the arrest. 4) . the person arrested without a warrant shall forthwith arrested delivered to the nearest police station or jail. the escapee is in continuous commission of a crime (i. . Sec. CA (1996)] To arrest the accused and deliver him to the nearest police station or jail without unnecessary delay. 11) . 5(c)) o From a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending. Sec. for the purpose of surrendering the accused.Rationale: At the time of arrest. 12) Also applicable where there is a valid arrest without a warrant. Sec. (Rule 114.A person summoned shall assist in effecting the arrest when he can do so without detriment to himself. To break out from the building/enclosure when necessary to liberate himself. Sec. Sec. 8) Exceptions: . Also applicable where there is a valid arrest without a warrant.In case of his failure to execute. (Rule 126. if the person arrested so requires. The officer shall inform the person to be arrested of (1) the cause of the arrest and (2) the fact that a warrant has been issued for his arrest. Sec. (Rule 113.)  Arrest of escaped prisoner . 5.

Sec. . (Rule 112. The prosecutor can perform the same functions. 6. 5.  The private person must deliver the arrested person to the nearest police station or jail. [People v.It must be issued upon probable cause which must be determined personally by a judge after examination under oath or affirmation of the complainant and the witnesses he may produce. [AAA v. [People v. The judge may rely on the report of the investigating prosecutor provided he also evaluates the documentary evidence in support thereof. the fiscal‘s finding of probable cause is not conclusive upon the judge as to his determination of whether or not there is indeed probable cause. III. 1987 Const. 9) Exceptions: Same as those for arrest by an officer without a warrant.  .  complainant and his witnesses by searching questions and answers. 4. in connection with the issuance of a warrant of arrest. Sec. AND PROVIDING PENALTIES FOR VIOLATIONS THEREOF Policy  To value the dignity of every human being.The judge does not have to personally examine the complainant and his witnesses. [Borlongan v. (Rule 113. [Samulde v. DETAINED OR UNDER CUSTODIAL INVESTIGATION AS WELL AS THE DUTIES OF THE ARRESTING. DETAINING AND INVESTIGATING OFFICERS.Rationale: There is yet no evidence on record upon which judge may determine the existence of PC. 5(a)) . o He must be satisfied that PC exists.  To guarantee full respect for human rights. flees or forcibly resists before the officer has the opportunity to so inform him. Determination of Probable Cause for issuance of warrant of arrest Probable cause test Probable cause. assumes the existence of facts and circumstances that would lead a reasonably discreet and prudent man to believe that a crime has been committed and that it was likely committed by the person sought to be arrested. Makasiar (1988)] . Upon application of a peace officer and after personal examination by the judge of the applicant and the witnesses he may produce. Felix (1991)] . and he shall be proceeded against in accordance with Rule 112. or When the giving of such information will imperil the arrest. [Lim v. Otherwise. 2. It should be supported by a report and necessary documents. Hence.) . Sec.REMEDIAL LAW REVIEWER When he is pursued immediately after its commission When he has escaped. . affidavits and counteraffidavits. Sec.Conditions: o The investigating judge must have examined in writing and under oath the Rule: The law requires personal determination on the part of the judge. 29 c. Distinguish probable cause of fiscal from that of a judge FISCAL Executive determination of PC Determination of PC to hold a person for trial W/N there is reasonable ground to believe that the accused is guilty of the offense charged and should be held for trial JUDGE Judicial determination of PC Determination of PC to issue a warrant of arrest W/N a warrant of arrest should be issued Instances When Judge Issues Warrant of Arrest  Upon the filing of the information by the public prosecutor and after personal evaluation by the judge of the prosecutor’s resolution and supporting evidence. the private person may be held liable for illegal detention. Salvani (1988)] A warrant of arrest has no expiry date.Examples of Evidence To Be Examined: Complaint. Tan (2009)] Probable cause demands more than suspicion but it requires less than evidence that would justify conviction. Peña (2010)] RA 7438 AN ACT DEFINING CERTAIN RIGHTS OF PERSON ARRESTED. By private person (citizen’s arrest) Duties of private person effecting an arrest  The private person shall inform the person to be arrested of (1) the intention to arrest him and (2) the cause of the arrest. . It is only subject to the requirements found in Rule 113. Gabo (2010)] 4. Requisites of a valid warrant of arrest Issuance  Essential Requisites of a Valid Arrest Warrant (Art. Sec. [Soliven v. Carbonell (2007)] The judge is never allowed to follow blindly the prosecutor‘s bare certification as to the existence of probable cause.Bare certification by the fiscal is not enough. o There is a need to place the respondent under immediate custody in order not to frustrate the ends of justice.The warrant must particularly describe the person to be arrested. 7.

If such person cannot afford the services of his own counsel.000). Hold Departure Order & Bureau of Immigration Watchlist 1. 1] Note: The bondsman or surety guarantees the appearance of the person seeking bail. NOTE: Any security officer with custodial responsibility over any detainee or prisoner may undertake such reasonable measures as may be necessary to secure his safety and prevent his escape. detained or under custodial investigation. Sec.The counsel must be one who is independent and competent. prevents or prohibits any lawyer. . furnished by him or a bondsman. [Rule 114. district school supervisor. he must be provided by the investigating officer with a competent and independent counsel.  The right to be visited by the members of his immediate family. national or international. otherwise the waiver shall be null and void and no effect. detained or under custodial investigation of his right to remain silent and to have competent and independent counsel preferably of his own choice. Guidelines in fixing amount of bail 6. Detained or Under Custodial Investigation. detained. such extrajudicial confession shall be inadmissible as evidence in any proceeding. any member of the immediate family of a person arrested. or by any nongovernmental organization. Penalty Any arresting public officer or employee. by his counsel. no custodial investigation shall be conducted and the suspected person can only be detained by the investigating officer in accordance with Art. to guarantee his appearance before any court as required under conditions hereinafter specified. He shall be allowed to confer at all times with the person arrested. or from examining and treating him. 2. or under custodial investigation in the presence of his counsel. or priest or minister of the gospel as chosen by him. or both. who fails to inform any person arrested. 3. without prejudice to the liability of the ―inviting‖ officer for any violation of law. BAIL 1. such investigation report shall be null and void and of no effect whatsoever.  The same penalties shall be imposed upon a public officer or employee. or any investigating officer. 30 VI. detained or under custodial investigation.  The right to remain silent. The penalty of perpetual absolute disqualification shall also be imposed upon the investigating officer who has been previously convicted of a similar offense. it shall be read and adequately explained to him by his counsel or by the assisting counsel provided by the investigating officer in the language or dialect known to such arrested or detained person. elder brothers and sisters. Any extrajudicial confession made by a person arrested. or thumbmarked if the person arrested or detained does not know how to read and write. otherwise.REMEDIAL LAW REVIEWER Custodial Investigation shall include the practice of issuing an ―invitation‖ to a person who is investigated in connection with an offense he is suspected to have committed. Application not a bar to objections in illegal arrest. Nature Definition Bail is the security given for the release of a person in custody of the law. Bail when not required 7. exceptions When a matter of discretion Hearing of application for bail in capital offenses 5.  The right to be informed of the above rights. or any medical doctor or priest or religious minister chosen by him or by any member of his immediate family or by his counsel. . from visiting and conferring privately with him. the municipal mayor. Any waiver of the provisions of RPC 135 shall be in writing and signed by the person arrested. and in the presence of any of the parents. detained or under custodial investigation shall be in writing and signed by such person in the presence of his counsel or in the latter's absence. or from ministering to his spiritual needs. Forfeiture and Cancellation of bail 9. otherwise. his spouse. shall suffer a fine of six thousand pesos (P6. Nature When a matter of right. of the night shall suffer the penalty of imprisonment of not less than four (4) years nor more than six (6) years. The custodial investigation report shall be reduced to writing by the investigating officer. in urgent cases. or anyone acting upon orders of such investigating officer or in his place. at any hour of the day or. Any person who obstructs. 4. Increase or Reduction of Bail 8. RPC.In the absence of a lawyer. detained or under custodial investigation for the commission of an offense if the latter cannot afford the services of his own counsel. provided that before such report is signed. 125. who fails to provide a competent and independent counsel to a person arrested. upon a valid waiver. lack of or irregular preliminary investigation 10.000) or a penalty of imprisonment of not less than eight (8) years but not more than ten (10) years. the municipal judge. Duties of Public Officers  The right to be assisted by counsel at all times. . Rights of Persons Arrested. and a fine of four thousand pesos (P4.

Undue risk that the accused may commit another crime during pendency of appeal. 26]. evaded sentence or violated bail conditions without valid justification.  Note R. Exception: When the accused is a minor. the accused shall be denied bail or his bail shall be cancelled upon showing by the prosecution. The accused previously escaped from legal confinement. of any of the following: 1. Hence. Probability of flight. To compel the appearance of a material witness who may not appear at the trial [Rule 119. bail may be applied for and granted as an exception. Before or after conviction by the MTC. Sec. the applicant will not be flight risk or will not pose danger to the community. b. only those who have either been arrested.A. From the moment he is placed under arrest. How is custody acquired? 1. 3. and that there exists special humanitarian and compelling circumstances [Gov of USA vs Purganan & Jimenez (2002)]. Right to bail is not available to military personnel accused under general courts martial [Comendador v. Sec. c. 2. exceptions a. he can claim this constitutional right [Feliciano vs Pasicolan (1965)]. 2. Const] and To enable him to prepare his defense without being subject to punishment prior to conviction [Cortes v. 7659 and abolishing the death penalty. 31 Note: The purpose of bail only accrues when a person is arrested or deprived of his liberty. Commission of offense while under probation. detention or restraint by officers of the law. Sec. It shall not constitute as a waiver of his right to challenge the legality of his arrest or the absence of PI [Rule 114. 2. Sec. It is incongruous to grant bail to one who is free. quasi-recidivism. b. Judge Catral (1997)]. Capital offense or an offense punishable by reclusion perpetua or life imprisonment or life imprisonment 2. There is substitution of information [Rule 110. The Hon. To relieve an accused from imprisonment until his conviction and yet secure his appearance at the trial. By arrest whether with or without a warrant. Sec. When a matter of right. [ People vs. 5. the person should seeking relief should be under custody of the law. the sureties become in law the jailers of their principal. Donato (2011)] To honor the presumption of innocence until his guilt is proven beyond reasonable doubt [Art. detained or otherwise deprived of their liberty can invoke his right under the Constitution. Recidivism. 6]. 8177 and R. 2006 repealing R. Note: The person seeking his provisional release under the auspices of bail need not wait for a formal complaint or information to be filed as it is available to all persons where the offense is bailable. 2. The Court should not even allow a motion for bail to be set for hearing. Voluntary submission to the Court‘s jurisdiction [Santiago vs Vasquez (1993)]. 14].  The capital nature of the offense is determined by the penalty prescribed by law and not the one actually imposed. Capital Offense: An offense which under the law existing at the time of commission and of the application for admission to bail is punishable by death [Rule 114.. When bail not available 1.  RA 9346 now defines capital offenses as: Section 7. Sec. However. Upon assumption of the obligation of bail. When evidence of guilt is strong in capital offenses or those punishable by reclusion perpetua or life imprisonment. with notice to the accused. No. unless it has acquired jurisdiction over the person of the accused and the case by its filing in court [Guillermo vs Judge Reyes (1995)]. [Paderanga vs Court of Appeals (1995)]. 4. Prosecution witnesses may also be required to post bail to ensure their appearance at the trial of the case where: 1. or habitual delinquency or commission of a crime aggravated by reiteration of the accused. It does not apply to extradition proceedings because extradition courts do not render judgments of conviction or acquittal. 9346 entitled ”An Act Prohibiting the Imposition of Death Penalty in the Philippines” enacted on June 24. Before conviction by RTC of all offenses punishable by penalty lower than reclusion perpetua. Note: If the penalty imposed by the trial court is imprisonment exceeding 6 years. A.REMEDIAL LAW REVIEWER Purpose 1. III. parole or conditional pardon by the accused. 2. 3. However. only upon a clear and convincing evidence that once granted. Bail in extradition proceedings The right to bail is available only in criminal proceedings. de Villa (1991)].A. he is entitled to bail regardless of whether the evidence of guilt is strong. No. 4]. Bail as a Matter of Right When bail is a matter of right [Rule114. 4] a. 14. .

It is mandatory for the judge to conduct a hearing and ask searching and clarificatory questions for the purpose of determining the existence of strong evidence against the accused. Sec. Pendency of other cases where the accused is on bail. Upon conviction by the RTC of an offense not punishable by death. lest its purpose be rendered nugatory [People vs Singh (2001)]. which has not become final. conviction is reversed by the appellate court. Const. When a matter of discretion [Rule 114. and can only be released when the . Fact that accused was a fugitive from justice when arrested 9. It should be brief and speedy. which would entitle him. e. 8]. the court must nonetheless set the application for hearing. to a penalty next lower than that prescribed by law. Age and health of the accused 6. EVIDENCE OF GUILT in the Constitution and the Rules refers to a finding of innocence or culpability.] Prosecution has burden of proof At the hearing of an application for bail filed by a person in custody for the commission of an offense punishable by reclusion perpetua or life imprisonment. This reason does not hold where the accused has been established without objection to be minor who by law cannot be sentenced to death.REMEDIAL LAW REVIEWER 32 d. Character and reputation of the accused 5. 5. reclusion perpetua or life imprisonment. [Harvey v. the prosecution has the burden of showing that evidence of guilt is strong. as the accused still has the right to appeal. he is entitled to bail regardless of whether the evidence of guilt is strong. After conviction by the trial court. The prosecution must be given ample opportunity to show that the evidence of guilt is indeed strong. Guidelines in fixing amount of bail [Rule 114. 24]. provided that it has not transmitted the original record to the appellate court. Regarding Minors Charged with a Capital Offense If the person charged with a capital offense is admittedly a minor.  If bail is denied by the RTC. bail is discretionary upon the Commissioner of Immigration and Deportation. in offenses punishable by death. should make a finding that the evidence against the accused is strong [Gacal v. the application for bail can be resolved only by the appellate court.  If bail is granted. Defensor-Santiago (1990)]. Penalty for the offense charged 4. the following factors: 1. it must be limited to the determination of the bailability of the accused. Judge Infante (2011)]. and the rules for the computation of bail. Note: In hearing the petition for bail. 2. regardless of the modifying circumstances. Before conviction. 4. but not limited to. and the order. After a judgment of conviction has become final If he applied for probation before finality. Article III. Probability of the accused appearing at the trial 7. After the accused has commenced to serve his sentence [Rule 114. It shall be treated as an incident in the appeal. While the proceeding is conduced as a regular trial. Capital offense or an offense punishable by reclusion perpetua or life imprisonment or life imprisonment Conviction This refers to conviction by the trial court. the prosecution has the burden of showing that the evidence of guilt is strong [Rule 114. 24] 3. 5] 1. if convicted. 9] The judge who shall issue the warrant or grant the application shall fix a reasonable amount of bail considering primarily. the accusedappellant may challenge it by filing an application (and not a special civil action or a special proceeding) in the appellate court after it has acquired jurisdiction over the case. if possible. he may be allowed temporary liberty under his bail [Rule 114. after such hearing. provisional liberty continues under the same bail subject to the consent of the bondsman [Rule 114. 5]. Sec. Forfeiture of other bail 8. The reason for this is that one who faces a probable death sentence has a particularly strong temptation to flee. Nature and circumstances of the offense 3. In deportation proceedings. Section 7. Sec. [Section 13.  If the RTC decision changed nature of the offense from non-bailable to bailable. Sec. 89 (2000 Bail Bond Guide) provides standards and criteria for prosecutor‘s recommendation of amount of bail to be granted. Forfeiture of other bail 10. Duty of judge to conduct hearing Where the prosecution agrees with the accused‘s application for bail or foregoes the introduction of evidence. Sec. reclusion perpetua or life imprisonment. the accused convicted of a capital offense is no longer entitled to bail. Sec.  It may be filed in and acted upon by the RTC despite the filing of notice of appeal. Financial ability of the accused 2. Hearing of application for bail in capital offenses NOTE: RA 9346. Note: DOJ Department Circular No.

 8. without prejudice to the continuation of the trial thereof or the proceedings on appeal. 3. 2. unless the accused has been surrendered or is acquitted. 2. Sec. 1997)].  SC Circular 39-97 deals with criminal cases pending in the RTC. 26. Provided that the proper objections are timely raised (i. irrespective of nationality. he may be re-arrested without warrant [Rule 114. This created a void. 33 9. Sec. MTC. the court may increase or decrease the amount. 16] 10.  If the bondsmen fail to do these. The accused may be prohibited from leaving the country during the pendency of his case [ PP v. 2. When a warrant of arrest was issued for failure of the accused to appear when so required 2. irrespective of nationality. Sec. 39-97 (June 19. Hold-Departure/ Watchlist/ Allow Departure Orders  A hold-departure order may be issued only by the RTCs in criminal cases within their exclusive jurisdiction [SC Circular No. CA (1986)]. Legality of the arrest warrant. 16. as to those cases pending in the MTC as well as those under preliminary investigation. Upon application of the bondsmen with due notice to the prosecutor. in criminal cases falling within the jurisdiction of first-level courts (MeTC. Validity of his arrest. lack of or irregular preliminary investigation Bail is no longer a waiver of these objections [Rule 114. Uy Tuising (1935). WATCHLIST ORDER Against the accused. [Rule 114. Bondsmen may:  Arrest the accused. judgment is rendered against them. he shall be released after 30 days of preventive imprisonment. Increase or Reduction of Bail After the accused is admitted to bail and for good cause. If the accused released on bail attempts to depart from the Philippines without the permission of the court where his case is pending. If the maximum penalty is destierro.e. Upon acquittal of the accused Upon dismissal of the case Upon execution of judgment of conviction. [Whereas clause of DOJ Circular No. Sec. [Rule 114.REMEDIAL LAW REVIEWER 6. Produce the body of the principal or give reason for the non-production. Forfeiture and Cancellation of bail Forfeiture of bail [Rule 114. jointly and severally. 23]. Regularity of preliminary investigation 4. he shall be released immediately. 23]. 21] If the accused failed to appear in person as required.. Sec. upon a) surrender of the accused OR b) proof of his death. Application not a bar to objections in illegal arrest. Rule 114]  When a person has been in custody for a period equal to or more than the possible maximum imprisonment of the offense charged to which he may be sentenced. Absence of preliminary investigation The court shall resolve the objections as early as practicable but not later than the start of the trial of the case. bondsmen are given 30 days within which to: 1. Alameda (2011)]. INCREASED bail: Accused may be committed to custody if he does not give bail in the increased amount within a reasonable period of time. Hold Departure Order & Bureau of Immigration Watchlist  Bondsmen can prevent accused from leaving country by arresting him or asking for him to be re-arrested by a police officer upon written authority [Rule 114. an application or an admission to bail shall NOT bar the accused from challenging or questioning the: 1. Sec. EXCEPT: 1. bail may be cancelled . Sec 10. in criminal cases pending before the RTC Against the When it may issue Cancellation of bail [Rule 114.  Note: No bail shall be required in prosecution of offenses covered by the Rule on Summary Procedure.  Bondsmen‘s liability cannot be mitigated or reduced. 20] REDUCED bail: Person in custody for a period equal to or more than the minimum of the principal penalty prescribed for the offense charged may be released on a reduced bond. 12] 7. 3. Explain why the accused failed to appear. 41] HOLD DEPARTURE ORDER Against the accused. before accused enters a plea). Bail when not required [Sec. Sec. 4. When the accused is o A Recidivist o A Fugitive from justice o Charged with physical injuries o Has no known residence [RSP. 22] 1. Manotoc v. Leviste v. for the amount of the bail.  Cause him to be arrested by a police officer or any other person of suitable age or discretion upon written authority endorsed on a certified copy of the undertaking.

RIGHTS OF THE ACCUSED 1. or witness in a civil or labor case pending litigation. The Secretary may issue HDOs in the following cases:   . b) Against the alien whose presence is required either as a defendant. The validity period of the order has expired 2. public safety or public health 60 days reckoned from the date of its issuance. Watchlist Orders. An affidavit of purpose. in criminal cases pending preliminary investigation. or any case before an administrative agency of the government. or in the interest of national security. when the adverse party is the Government or any of its agencies or instrumentalities. or upon the request by the Head of a Department of the Government.  Until the contrary is proved beyond reasonable doubt .Accusation is not synonymous with guilt. respondent. Rights of accused at the trial 2. or when the PFR or MR has been denied and/or dismissed a) Against the accused in criminal cases falling within the jurisdiction of courts below the RTCs. unless sooner terminated or extended for a non-extendible period of not more than 60 days When the validity period has already expired When the accused has been allowed by the court to leave the country during the pendency of the case. PFR. unless sooner terminated  Grounds for lifting or cancellation When validity has expired the period already  When the accused has been allowed to leave the country during the pendency of the case.REMEDIAL LAW REVIEWER HOLD DEPARTURE ORDER MCTC) WATCHLIST ORDER respondent. or the case in which the warrant/order of arrest was issued has been dismissed or the warrant/order of arrest has been recalled  VII. or has been acquitted of the charge.  A Watchlist Order may also issue under any of the above grounds as well as in connection with RA 9208 or the Anti-Trafficking in Persons Act Any HDO shall be valid for 5 years. When the case is terminated or the person is discharged as a witness or otherwise allowed to leave the country Allow Departure Orders (ADOs) may issue for exceptional reasons to allow the person to leave upon submission of the following: 1. c) The Secretary of Justice may likewise issue an HDO against any person. unless sooner terminated or extended for a maximum of 60 days A HDO/WLO may be lifted or cancelled when: 1. unless sooner terminated while any Watchlist Order shall be valid for 60 days. Authority to travel or travel clearance from the court or appropriate government office or from the investigating prosecutor 34  Validity 5 years reckoned from the date of its issuance. either motu proprio. Rights of persons under Investigation Custodial 1. the Chief Justice of the Supreme Court for the Judiciary. or has been acquitted of the charge When the PI is terminated. When the accused has been acquitted or otherwise allowed to leave the country 3. Dramayo (1971)] Presumption of regularity in the performance of official duty should by itself Thus the DOJ promulgated DOJ Circular No. 41 governing the issuance of HDO. or MR before the DOJ or any of its prosecution offices Against any person pursuant to the ―AntiTrafficking in Persons Act of 2003‖ (RA 9208) or in the interest of national security. Rights of accused at the trial [Rule 115] 1) To be presumed innocent. irrespective of nationality. public safety or public health. the Senate President or the House Speaker for the Legislature. and Allow Departure Orders. including an undertaking to report to the DOJ immediately upon return 2. [People v.

the waiver must be in writing and in the presence of the counsel of the accused [People v. (Sec. [Gideon v.  Applies to any witness against the accused at the trial . [US v. Judge Ayson (1989)]     5) Right to counsel:   It means reasonably effective legal assistance. but if he offers himself as a witness he may be crossexamined as any other witness. Sec. Serzo (1997)] It may be waived. Sec. Dimaano (2005)] It is a basic constitutional right of the accused to be informed of the nature and cause of accusation against them. even on appeal. Failure to appear is unjustifiable. [People v. [Telan v. [Balitaan v. in any manner. Exception: If the conviction is for a light offense. public policy. 1[b]. 4) Right to be present at every stage of the proceedings: This right may be waived when: (1) The accused is absent without just cause at the trial of which he had notice. [Rule 116.REMEDIAL LAW REVIEWER prevail over the presumption of innocence [People v. prejudice him. Prior arraignment. No information for a crime will be sufficient if it does not accurately and clearly allege the elements of the crime charged. however. Mendoza (1977)] The title of the complaint. knowingly and intelligently made [People v.   But subject to cross-examination on any matter covered by his direct examination. People (1988)] Violation of this right entitles the accused to new trial.  Effects: Waiver of right to be present. Lagarde (2009)] 35   6) Right to defend in person: Only when it sufficiently appears that he can protect his rights without the assistance of counsel (Sec. Ortega (1997)] Charge must be set forth with sufficient particularity to enable the accused to intelligently prepare his defense. [Rule 120. his neglect or refusal to be a witness shall not in any manner prejudice or be used against him. 3) To be present and defend in person OR by counsel. 1(b)] c. [People v. CA (1968)] Covers only testimonial compulsion and production of incriminating documents. c. Nicandro (1968)] The right to counsel may be waived but to insure that the waiver is voluntary and intelligent. and 2) to testify as witness in his own behalf. CA (1991)]  9) Right to confrontation. At the promulgation of judgment. the accused shall be entitled to the following rights xxx (e) To be exempt from being compelled to be a witness against himself‖ (Sec. until custody over him is regained. For purposes of identification. so long as not contrary to law. However. or (2) The accused under custody escapes. [People v. Ong (2004)]      Duty to appoint counsel de oficio is mandatory only at the time of arraignment. It would be a denial of accused-appellant‘s basic right to due process if he is charged with simple rape and consequently convicted with certain qualifying circumstances which were not alleged in the information [People v. [Chavez v.   Offense must be clearly charged in the information. Wainright (1963)] It is absolute and may be invoked at all times. Ayson (1989)] The questions on cross examination should be on matters related to his direct examination. b. [Gimenez v. Del Castillo (2004)] 2) To be informed of the nature and cause of accusation. It does not include examination of his body as evidence when it may be material. presence is mandatory: a. [People v. Silence will not.―In all criminal prosecutions. [Borja v.―No person shall be compelled to be a witness against himself‖ (Sec. [Sayson v. Rules of Court)  7) To testify as witness in his behalf. Rule 115. Veneracion (1997)] a. right to present evidence and right to crossexamine witnesses. Art. III. At arraignment. b. 1[d].‖ He is entitled 1) to be exempt from being a witness against himself. 17. 1[e]. Rule 115) Compulsion includes not only violence but also moral coercion. Proper notice of the trial. or the designation of the offense charged or the particular law violated is not controlling. Nazareno (1988)] 8) Right against self-incrimination. Philippine Constitution) . morals or good customs. CFI of Batangas (1982)] The purpose is served by arraignment. Rule 115). The waiver must be unequivocally. [People v. Tan Teng (1912)] An accused ―occupies a different tier of protection from an ordinary witness. (2005 Bar)  The privilege is expressed in the following provisions: . 6] Trial in absentia (1998 Bar): Requisites: [Parada v. public order.

[People v. People (2008)] An appeal in criminal case opens the entire case for review and the appellate court may correct even unassigned errors [People v. the municipal judge. Article III Sec. it may be made in the presence of any his parents. 14 (2)] This right to a speedy trial has consistently been defined by the Court substantially ―as one free from vexatious. 3.chosen by him or by any member of his immediate family or by his counsel.Signing of the written custodial report. if otherwise. under the uniquely stressful conditions of a custodial investigation. Sec.  In all criminal prosecutions. the accused shall enjoy the right to have a speedy. Rights of persons under Custodial Investigation [Sec.  If he cannot afford to have his own counsel. and public trial. the right is lost. of his rights to remain silent and to have competent and independent counsel. . Consti] Specifically in the following instances: . who shall at all times be allowed to confer privately with the person arrested. 12(1). in a language known to and understood by him. otherwise. Art. parent or child. and guardian or ward). of having his guilt determined within the shortest possible time compatible with the presentation and consideration of whatsoever legitimate defense he may interpose‖ [Riano. or by Any national NGO duly accredited by the Commission on Human Rights or by any     2. b) Dismissal. subject to rules on double jeopardy. the court should order the arrest of the witness if necessary. district school supervisor.   Waiver of the right to counsel must be made with the assistance of counsel. [People v. 2010] Remedy against denial of right: a) MTD. RA 7438]  . he must be provided with a competent and independent counsel by the investigating officer. If a subpoena is issued and the witness failed to appear. People (2010)]  2) To be informed. 125. the accused shall have the right to appeal in the manner prescribed by law [Hilario v.Directly affected by the case.REMEDIAL LAW REVIEWER  Includes testimony of a deceased or absentee witness This right is waived by non-appearance. impartial and public trial. Lavarias (1968)] 1) To be assisted by counsel at all times. the municipal mayor. CA (1994)] The modifier competent and independent in the 1987 Constitution is not an empty rhetoric. impartial. except those: . or priest/minister of the gospel as chosen by him. [Carredo v. 3.   In all criminal prosecutions.Charged with the prosecution of crimes. [1987 Constitution. Assisting counsel may be any lawyer. . III of the Constitution. The trial court should not delegate to the accused the responsibility of getting his witnesses. fiancé or fiancée. Sabellano (1991)] If the accused escapes from confinement. capricious and oppressive delays. 2. People (1990)] Identification by a witness of the accused is inadmissible if the accused had no opportunity to confront witness. [People v. or Any medical doctor or Priest or religious minister . Tambis (2008)] The right to appeal is a statutory right and the requirements must be complied with. [Vide Abadia v. uncle or aunt. Omar (1991)] 3) To be allowed visits by or conferences with:  Any member of his immediate family ("Immediate family" includes his or her spouse. It stresses the need to accord the accused. RA 7438]   12) Right to appeal. Signing of the written extra-judicial confession (2008 Bar) In the absence of counsel and upon valid waiver. brother or sister. nephew or niece. detained or under custodial investigation. [SC Circular 38-98] c) Mandamus. appeal is not allowed unless he voluntarily surrenders within period for appeal. Montejo (1967)]   11) Right to speedy. grandparent or grandchild. [Sec. preferably of his own choice. [Art.  This right may be invoked by the accused to secure the attendance of witnesses and the production of witnesses in his behalf. [People v. an informed judgment on the choices explained to him by a diligent and capable lawyer [Lumanog v. This is a constitutional right embodied in Sec.Charged with conducting preliminary investigation. spouse. 36   10) Right to compulsory process. elder brothers and sisters. RPC. 14(2).  Signing of the waiver to the provisions of Art. its purpose being to assure that an innocent person may be free from the anxiety and expense of a court litigation or.

Obstruction. the court may allow the accused to enter a plea of guilty to a lesser offense which is necessarily included in the offense charged with the conformity of the trial prosecutor alone. Searching Inquiry 6. When should plea of NOT GUILTY be entered 3. shall suffer a fine of P6.00 or a penalty of imprisonment of not less than 8 years but not more than 10 years. Accused plead guilty to capital offense. and asking whether he pleads guilty or not guilty VIII.000. [Sec. Rule 116.REMEDIAL LAW REVIEWER international NGO duly accredited by the Office of the President. and of the private offended party for purposes of: .Any person guilty thereof shall suffer the penalty of imprisonment of not less than 4 years nor more than 6 years and a fine of P4.000. 1(a)] It is the stage where the issues are joined and without which the proceedings cannot advance further or. Arraignment and Plea. How arraignment made 1) In general Consequences of violation of custodial rights  Failure to inform . Sec. reading the same in a language or dialect known to him. if held. the court must assign a counsel de oficio to defend him. s/he shall state whether s/he interposes a negative or affirmative defense. [Borja v. prevention or prohibition of right to visits or conferences . how made Definition ARRAIGNMENT is the stage where the accused is formally informed of the charge against him by reading before him the information/complaint and asking him whether he pleads guilty or not guilty. Improvident plea 7. Mendoza (1977)] If the accused pleads NOT guilty to the crime charged. . [Rule 116. unless a shorter period is provided  In the presence of the accused who must personally enter his plea. or any investigating officer. Arraignment and Plea. 1(f).Plea bargaining (except for violations of the Dangerous Drugs Act) . Grounds for suspension of arraignment 1. 37  The court shall inform the accused of his right to counsel and ask him if he desires to have one.Other matters requiring his presence  Before the court where the complaint or information was filed or assigned for trial  By the judge or clerk in open court by furnishing the accused with a copy of the complaint/information. will otherwise be void. or both.The investigating officer who has been previously convicted of a similar offense shall suffer the penalty of perpetual absolute disqualification. [Rule 116. 03-1-09-SC Part B(2)] . 1(g)]  In case of failure of the offended party to appear despite due notice. An affirmative defense may modify the order of trial and require the accused to prove such defense by clear and convincing evidence. When may accused enter a plea of guilty to a lesser offense 4. ARRAIGNMENT AND PLEA 1.00 Inadmissibility of evidence does not preclude conviction on other evidence The Court shall issue an order directing the public prosecutor to submit the record of the PI to the branch COC for the latter to attach the same to the record of the case. what the court should do 5.Determination of civil liability . [RA 8493] A negative defense will require the prosecution to prove the guilt of the accused beyond reasonable doubt. how made 2. Sec. Unless the accused is allowed to defend himself in person or has employed counsel of his choice.  Arraignment shall be made:  Within 30 days from the date the court acquired jurisdiction over the person of the accused. SC AM No.Any arresting public officer or employee. [RA 8493] Note: The time of the pendency of a motion to quash or for a bill of particulars or other causes justifying suspension of the arraignment shall be excluded in computing the period.

When accused may enter a plea of guilty to a lesser offense Plea of guilty to a LESSER OFFENSE [Rule 116. with the consent of the offended party and prosecutor. if necessary. 2]  At arraignment. to avoid improvident pleas of guilt. Where the TC receives evidence to determine whether the accused has erred in admitting his guilt. The accused shall be arraigned within 10 days from the date of the raffle. . . but accused presents exculpatory evidence 6. otherwise.It must be based on a free and informed judgment. Grounds for suspension arraignment [Rule 116. The case should be remanded to the lower court for further proceedings. may be allowed by the trial court to plead guilty to a lesser offense which is necessarily included in the offense charged. educational attainment and socio-economic status. If accepted. Mere warning of facing the supreme penalty of death is insufficient. De Ocampo Gonzaga (1984)]. [People v.The plea must be clear. Improvident plea Improvident plea of guilty to a capital offense IMPROVIDENT PLEA . Accused plead guilty to capital offense. Alborida (2001)] 3. There must be well-informed understanding and full realization of the consequences. If the accused is under preventive detention The case shall be raffled and its records transmitted to the judge to whom the case was raffled within 3 days from the filing of the information or complaint. Enrile (1985)]. After arraignment but before trial. Failure to observe the duties of the trial judge amounts to grave abuse of discretion. Sec.There can be no trial in absentia without first arraigning the accused. the accused. irrespective of the gravity of the offense and the rank of the court. 3] .REMEDIAL LAW REVIEWER  NO ARRAIGNMENT IN ABSENTIA [Nolasco v. based upon a mistaken assumption or misleading information/advice. Searching Inquiry Plea of guilty to a CAPITAL OFFENSE [Rule 116. [People v. definite and unconditional. 3. what the court should do [Sec.  Degree of unsoundness of mind required: The accused can neither comprehend the full import of the charge nor can he give an intelligent plea. [People v. Exception: If the accused appears guilty beyond reasonable doubt from the evidence adduced by the prosecution and defense. the judgment is null and void since (1) the issues are not joined and (2) the right to be informed of the nature and cause of accusation is violated. [Black’s Law Dictionary] General rule: An improvident plea should not be accepted.The presence of the accused is not only a personal right but also a public duty. [People v. Rule 116]    Conduct a searching inquiry into the voluntariness and full comprehension of the consequences of his plea Require the prosecution to prove the accused‘s guilt and the precise degree of his culpability Allow the accused to present evidence in his behalf 7. 3. 1(c)]    Refuses to plead Makes a qualified plea of guilty Plea of guilty. his confinement. Unsound mental condition of the accused at the time of the arraignment.The judge must ask whether the accused was assisted by counsel during CI and PI. Sec. [People v. Rule 116 is mandatory.loses legal significance since the conviction is based on the evidence proving the commission by the accused of the offense charged. Sec. Samontanez (2000)] 38 2)    2. When should plea of NOT GUILTY be entered Plea of NOT GUILTY to be entered for the accused when he either: [Rule 116. .  The need for suspension may be determined from physical and outward manifestations at the time of arraignment indicative of a mental disorder which the court had observed and 5. Sec. No amendment of the complaint or information is necessary  4.  The court shall order his mental examination and. it should not be held to be sufficient to sustain a conviction. the accused may still be allowed to plead guilty to said lesser offense after withdrawing his plea of not guilty. and ask the defense counsel WON he conferred with the accused. the manner in which the plea is made – whether improvidently or not . Devico (1997)] . Nadera (2000)] Rationale: To proceed with more care where the possible punishment is in its severest form.  The procedure in Sec.Plea without proper information as to all the circumstances affecting it. 11] of 1. ask questions on age.

DELUSION TEST – Insanity is manifested by a false belief for which there is no reasonable basis and which would be incredible under the given circumstances. IX. 39 2. the accused should be informed of the nature and the cause of the accusation against him. his free agency being at that time destroyed. 3. [People v. would constitute a legal excuse or justification.IRRESISTIBLE IMPULSE TEST – The accused has lost the power to choose between right and wrong. Sec. The information does not conform substantially to the prescribed form.RIGHT AND WRONG TEST – A perverted condition of mental and mortal faculties as to render him incapable of distinguishing between right and wrong  Tests to determine insanity: [People v. if true. Facts that constitute the defense of the petitioners against the charge under the information must be proved by them during trial. If the information is filed in court. Criminal action or liability has been extinguished. Non-inclusion of an accused is not a valid ground for MTQ. 8. An affidavit of desistance or pardon is not a ground for the dismissal of an action. 2. Dungo (1991)] . it may be raised as ground to suspend the arraignment. 4. MOTION TO QUASH 1. 3. the following objections are not subject to waiver: 1. Criminal action or liability has been extinguished 4. to avoid the act in question. . 9. [People v. Court trying the case has no jurisdiction over the offense charged 3. Court trying the case has no jurisdiction over the person of the accused. Pascual (1993)] . Catanyag (1933)]  3 major criteria to determine insanity: [People v.  Rationale: Need to observe judicial courtesy and to avoid legal complications in case the resolution would be different from the offense for which the accused was arraigned. grounds for MTQ are EXCLUSIVE: 1. Sandiganbayan (439 SCRA 390)] 5. 3] (1998 Bar) . Court trying the case has no jurisdiction over the offense charged. 12. Grounds [Rule 117. RPC must be deprived completely of reason or discernment and freedom of the will at the time of committing the crime. More than one offense is charged Exception: When a single punishment for various offenses is prescribed by law 7.  It may be raised during PI. [People v. Double Jeopardy 6. The absence of probable cause for the issuance of a warrant of arrest is not a ground for the quashal of the information but is a ground for the dismissal of the case [People v. Facts charged do not constitute an offense 2. once it has been instituted in court. The absence of a preliminary investigation or inability to participate in the preliminary investigation on the ground of the accused not having been served with a subpoena is not a proper ground for a motion to quash but a petition for reinvestigation [Rodis v. Grounds Distinguish from demurrer to evidence Effects of sustaining the motion to quash Exception to the rule that sustaining the motion is not a bar to another prosecution 5. It is the test adopted in this jurisdiction. 3.REMEDIAL LAW REVIEWER defense counsel had called attention to. Double jeopardy 1) Facts Charged do not Constitute an Offense  In all criminal cases. Such facts or circumstances do not constitute proper grounds for a motion to quash the information on the ground that the material averments do not constitute the offense [Soriano v.TEST OF COGNITION – Complete deprivation of intelligence in committing the criminal act. Averments which. 2. . Provisional Dismissal 1. Salazar (2010)] 3. Officer who filed the information had no authority to do so. especially if it would upgrade the offense. . Pending petition for review of the resolution of the prosecutor with the DOJ or Office of the President. The ff. Mere abnormality of mental faculties does not exclude imputability. 4. Accused has been previously convicted or acquitted of the offense charged. Sandiganbayan (1988)] 4. 6. People (2009)] Although the rule is that grounds not asserted in the motion to quash are waived.TEST OF VOLITION – A total deprivation of free will. Prejudicial question exists  Rationale: A prejudicial question would be determinative of guilt or innocence. Alcalde (2002)]  An insane person within the meaning of Art. 5. Facts charged do not constitute an offense 2. or the case against him was dismissed or otherwise terminated without his express consent (Double Jeopardy Rule) Note: 1.  The accused should file a motion to suspend and to secure a ruling on his petition for review within 60 days from the filing of the petition.

 If the accused believes his arrest to be illegal. he should move to quash the information on such ground. as defined by law [People vs Abad (1997)]. If he raises other grounds. Rationale: It would be pure technicality for the court to close its eyes to said facts. the court should give the prosecution an opportunity to amend the information [Rule 117. Note:  A lawyer appointed by the DOJ Secretary may also file an information. b. c. de la Rosa (1988)]. Exceptions: a. not a petition for review for certiorari.  The defect is not cured by a failure to move to quash or by a plea of guilty. the court should resolve it before conducting trial to avoid unnecessary expenditure of time and money [Mead vs Argel (1982)]. City Judge (1966)]. Provincial fiscals and their assistants. facts other than those alleged in the complaint/information may NOT be considered by the court. Undisputed or undeniable facts that destroy the prima facie truth accorded to allegations of the information [People v. and require trial.  When the objection is raised. The failure does not imply a waiver of the defects that go to the jurisdiction of the offense or to lack in some of the essential elements of the offense charged [Suy Sui v. Should the prosecutor fail to make the amendment or should the information suffer from the same defect despite amendment. b. Authority to sign may be challenged if the prosecutor files . the court should dismiss the action for want of jurisdiction [Uy vs CA (1997)]. TEST: WON the facts alleged. Demetriou (1993)]. the information filed by him would be invalid and can be quashed on that ground. a. the prosecutor should file a valid information. refuse to quash the information. but is an essential element of jurisdiction [Rule 110. Chief State Prosecutor and his deputies. the place where the offense was committed not only determines venue. he is deemed to continue committing the crime.  In private crimes. Sec. 3) Court has no Jurisdiction over the Person of the Accused 40 How jurisdiction is acquired a. Otherwise. 15. b. 2) Court has No Jurisdiction over the Offense Charged Jurisdiction over the subject matter: The power to adjudge concerning the general question involved. would meet the essential elements of the offense. Facts already admitted by the prosecution [People vs Navarro]. he must do so only on this ground. Alagao (1966)] [Rule 117. for as long as he continues to evade the service of his sentence. c.REMEDIAL LAW REVIEWER  An information which does not charge an offense or does not allege essential elements of a crime is void. Note:  In a criminal prosecution. the parties are not barred from assailing such jurisdiction on appeal. he is deemed to have submitted his person to the jurisdiction of the court [Sanchez v. the MTQ shall be granted [Rule 117. When the prosecutor dismisses the case. 4) Officer who Filed Authority to Do So Information had no Authority to file and prosecute criminal cases is vested in: a. b. Pano (1985)]. 2(f)(h). By allowing himself to be arraigned without questioning the legality of his arrest  It is waivable expressly or by implication. If the evidence adduced show that offense was committed somewhere else.  Instead of dismissing. Lopez v. Sec. City fiscals and their assistants. Undisputed facts apparent from the records of the PI and not denied by the prosecutor [Salonga v.  The court had jurisdiction over the case since.  If the case was tried and decided upon the theory that it had jurisdiction.  That a) the missing element may be proved during the trial or that b) the prosecution has presented evidence to establish the same cannot have the effect of validating the void information or of proving an offense which does not exist [People vs Asuncion (1988)]. and may be arrested without warrant at any place where he may be found [Parulan vs Director of Prisons (1968)]. By arrest of the accused or his voluntary appearance in court. General Rule: In a MTQ. 4]. 4 & 5]. if hypothetically admitted. Sec. the complaint of the offended party is necessary to confer authority to the court.  An Information filed in the Sandiganbayan must be signed by a graft investigating officer with prior approval of the Ombudsman.  The court cannot take jurisdiction over a person charged with an offense committed outside its territory. However. People (1953)]. d. illegality of the arrest is waivable as it affects only the jurisdiction of the court over the person of the accused [People vs Meris (2000)]. ROC expressly permits the investigation of facts alleged [People v. 4]. unlike jurisdiction over the territory and the subject matter.  The prosecutor who signed the information must have territorial jurisdiction to conduct preliminary investigation of the offense [Cudia vs CA (1998)].  When the accused files a MTQ based on this ground. Sec.

ABSOLUTE PARDON Complete delivery upon its CONDITIONAL PARDON Only upon the acceptance since accused may view liability less onerous than the terms AMNESTY Grant by the President with concurrence of majority of Congress Public act Court must take judicial notice [People v.  If the criminal acts are committed on different occasions. Sec. c. 9]. An offense incidental to the gravamen of the offense charged. The correct remedy is to file for a bill of particulars [Rule 116. act Must be proved pleaded and Granted after conviction Looks forward – releases from consequences of conviction Extended to pardoned defendant alone and to no other . The Ombudsman cannot sign when the information is filed in the regular courts [Uy vs Sandiganbayan (1999)]. An offense is committed in different modes and is alleged to have been committed in the 2 or more modes specified [Ku Bo Lin vs CA (1992)]. Exception: Those cases in which existing laws prescribe a single punishment for various offenses. b.  Vague or broad allegations are generally not grounds for a MTQ. Sec.Objections not raised are deemed waived. 13].Execution must be by virtue of a final judgment and in the form prescribed by law. The accused may be convicted of all the offenses alleged and proved if he goes to trial without objecting to the inclusion of 2 or more separate offenses in the same information [People vs Villamor (1998)]. treason). except where one offense was committed to conceal another. political cases like rebellion. PARDON Grant of the executive Private. Death of the accused . a. completely extinguishes the penalty and all its effects [People v. Amnesty d. 6-12.REMEDIAL LAW REVIEWER the information without the approval of the Ombudsman. and often conditioned upon General Rule: The complaint or information must charge only one offense [Rule 110. sedition. c. 5) Complaint/Information does not Conform Substantially to the Prescribed Form 7) Criminal Action Extinguished or Liability has been How criminal liability is extinguished a.  Protection from prosecution under a statute of limitation is a substantive right [People vs Sandiganbayan (1992)]. each constitutes a separate offense. Vera (1990)] Usually for those subject to trial but have not yet been convicted. Absolute pardon e. though official. acquiescence.Liability for pecuniary penalties is extinguished only if death occurs before final judgment. b. Complex and compound crimes. General Rule: Lack of substantial compliance renders the accusatory pleading nugatory. but can also be available even after institution of the criminal action and sometimes after conviction Looks backward – abolishes offense itself. Prescription of the penalty g. Service of Sentence . Pardon in private offenses Note:  Enjoyment of an accrued right cannot forever be left on a precarious balance [People vs Reyes (1989)]. and the accused cannot seek affirmative relief on such ground nor raise it for the first time on appeal [People v. . Garcia (1997)].  Lack of authority of the officer to is not cured by silence. A specific crime set forth in various counts. The narration of the specific of the specific acts is considered a bill of particular of facts upon which the inference of guilt of the accused may be based [People vs Yap (1968)] Note:  Waivable. express consent or even by amendment. Prescription of the crime 41  The formal and substantial requirements are provided for in Rule 110. Sec. Exception: Mere defects in matter of form may be cured by amendment.  It is not tantamount to duplicity of offenses. Vera (1990)] Granted to all persons guilty of a crime (generally.  Election Offenses: Must be signed by the duly deputized prosecutors and legal officers of the COMELEC. 6) More than One Offense is Charged f. each of which may constitute a distinct offense.

Exception: Period for offenses penalized by special laws and ordinances is interrupted only by filing in court. . Computation of period: [Art 91. .  Descendants.  6 mos.If the victim is a minor: Pardon of offended party and of both parents is required [People vs de la Cruz (1993)].  Ascendants. General Rule: Pardon should be given before the filing of the information Exception: Marriage between the offended woman and the offender [Art 344. RPC. Acts in defense of the person or rights of his  Spouse. RPC]  20 yrs – Death and Reclusion Perpetua  15 yrs – Other afflictive penalties  10 yrs. 2. RPC] 1. Prescription of a continuing crime: It is counted from the latest or last act constituting the series of acts continuing the single crime [People vs Castaneda (1990)]. the one b) Prescription of the Penalty Definition: It is the loss or waiver by the State of its right to demand service of the penalty imposed. except Arresto Mayor.  Lack of sufficient provocation. except Arresto Mayor which prescribes in 5 yrs  1 yr – light penalties Act No. – Oral defamation and slander by deed  2 mos. Commencement: From the date when the culprit should evade the service of his sentence. – Libel and similar offenses. 42 Prescription of the Crime Definition: It is the loss or waiver by the state of its right to prosecute a crime [People vs Castor (1954)]. abduction. Commences to run again: When proceedings terminate without the accused being convicted or acquitted. Interruption: If the defendant should give himself up. the act can still be done the following day does NOT apply to the computation of the period of prescription of a crime.  1 yr. while last day included Note: The rule that if the last day falls on a Sunday or a holiday. accomplices and accessories. unless specified  1 day = 24 hours  Nights = sunrise to sunset  First day shall be excluded. RPC] a) Acts in defense of his person or rights Requisites:  Unlawful aggression. RPC]  20 yrs – Death and Reclusion Perpetua  15 yrs – Other afflictive penalties  10 yrs – Correctional penalties. which prescribes in 5 yrs. 3326 governs period of prescription for violation of special laws. Information concerning said felony cannot be filed anymore on the next working day as the offense has by then already prescribed. – Correctional penalties. Manner of computing time:  1 yr = 365 days  1 month = 30 days.  Relatives by consanguinity within the 4th civil degree. . Where the accused is found to have committed a lesser offense included in the offense charged.  Reasonable necessity of means employed. be captured. the authorities or their agents. 2. the highest penalty shall be made the basis of the application of letters a-c 8) Contains Averments Which.REMEDIAL LAW REVIEWER their return to obedience and duty within a prescribed time When and penalties prescribe: [Art 92. Pardon In Private Offenses (seduction. he cannot be convicted of the lesser offense if it has already prescribed [Magat vs People (1991)]. Interruption: Upon the filing of the complaint or information General Rule: Includes complaint filed with the proper officer for PI. RPC] 1. acts of lasciviousness. – Light offenses  When the penalty fixed is a compound one.  Applicable to co-principals. rape)  It extinguishes the criminal action or remits the penalty already imposed. should go to some foreign country with which this Government has no extradition treaty.Requisites: o unlawful aggression o reasonable necessity of means employed o In case provocation was given by the person attacked. or should commit another crime before the expiration of the period. Prescription Periods: [Art 90. or are unjustifiably stopped for any reason not imputable to him Note: Prescription shall not run when the offender is absent from the Philippines.  Legitimate/natural/adopted brothers or sisters. Commencement: From the day on which the crime is discovered by the offended party. Computation of Period [Art 9. if True. Would Constitute a Legal Excuse or Justification Justifying Circumstances [Art 11. People vs Lualhati (1989)].  Relatives by affinity in the same degrees.

c) Acts in defense of the person or rights of a stranger: Requisites:  unlawful aggression  reasonable necessity of means employed  the person defending should not be induced by revenge or resentment or other evil motive. but the facts so alleged constitute another offense under a specific statute. it should remand or forward the case to the proper court. 4] Exception: Prosecution is precluded where the ground for quashal would bar another prosecution for the same offense. Exception to the exception: If he is in custody for another charge. Instead. Criminal action or liability has extinguished 2. Better approach if the ground was that the court has no jurisdiction over the subject matter: The court should not quash the complaint or information. If the information was quashed because it did not allege the elements of the offense. 5]. Act which causes damage to avoid evil or injury Requisites:  Evil sought to be avoided actually exists. Fulfillment of a duty or lawful exercise of a right or office Obedience to an order issued by a superior for some lawful purpose Imbecile or Insane Exception: Insane acting during a lucid interval Person under 9 yrs old Person over 9 yrs and under 15 yrs Exception: If he acted with discernment Causes injury by mere accident. Sec. Exception: If MTQ was based on the ff: 1. 5]. RPC] a) b) c) d) General Rule: If in custody. the prosecution may file a complaint for such specific offense where dismissal is made prior to arraignment and on MTQ [People vs Purisima (1978)]. Distinguish evidence MTQ Filed before entering plea from demurrer to Remedies of the prosecution General Rule: To amend the information to correct the defects if the TC makes the order. in denying the motion to quash acts with grave abuse of discretion. Double jeopardy  been e) f) Exempting Circumstances [Art 12. then certiorari or prohibition lies DEMURRER TO EVIDENCE another information or appeal by the prosecution The order denying the motion for leave to file a demurrer ―shall not be reviewable by appeal or by certiorari before judgment‖ [Sec. Rule 119] 43 d) 3. Does not go into the merits of the case Grounds are stated in Rule 117 Does not require a prior leave of court Granting does not necessarily follow a dismissal (Court may DEMURRER TO EVIDENCE Filed after the prosecution has rested its case Based upon the inadequacy of the evidence adduced by the prosecution Ground is ―insufficiency of evidence‖ May be filed either with leave or without leave of court Granting is deemed an acquittal and would preclude the filing of . and thereafter prosecute on the basis of the amended information [Rule 117. no new information is filed within the time specified in the order or within such further time as the court may allow for good cause. Sec. 23. while performing a lawful act with due care Under compulsion of irresistible force Under impulse of uncontrollable fear or greater injury Fails to perform an act required by law when prevented by some lawful insuperable cause  MTQ order the filing of a new complaint or information) If the court. Sec. without fault or intention. Effects of sustaining the motion to quash Court order sustaining motion  General Rule: Court may order that another complaint or information be filed [Rule 117.   Prosecution may appeal from the order of quashal to the appellate court. e) f) g) 2.  Injury feared greater than that done to avoid.REMEDIAL LAW REVIEWER making the defense had no part therein. The order must state either release of the accused or cancellation of his bond. the accused shall not be discharged unless admitted to bail [Rule 117. Exception: When there is no order sustaining the motion is made OR if there is one.  No other practical and less harmful means.

When a person is charged with an offense and the case is terminated either by acquittal or conviction or in any other manner without the express consent of the accused. 2. different from an offense penalized  Dismissal Does not decide the case on the merits. Defendant‘s guilt was not proven beyond reasonable doubt. Requisites for 1st Jeopardy to Attach 1. Sec. Consti] 1.   Same Offense  The offenses are penalized either by different sections of the same law or by different statutes. The court had jurisdiction 3. the constitutional protection is available provided that both arise from the same act or set of acts [ People vs Relova (1987)]. they would never constitute double jeopardy. 3(i)].Test: WON evidence that proves one offense would likewise prove the other [People vs Ramos (1961)]. acquittal of the accused OR the case was dismissed without his express consent Note:  Exception: A dictated. However. 2. Labatete (1960)]. Sandiganbayan (1986)]. The accused has been previously convicted. Sec. Exception: Dismissal has the effect of acquittal even with the consent of the accused when predicated on (1) insufficiency of the prosecution‘s evidence or (2) denial of the right to a speedy trial [Alamario v. 6] Exception: If the ground for the quashal is either: 1. as a rule. A valid arraignment 4. Dismissal = Acquittal a) Demurrer to evidence b) Dismissal due to violation of right to speedy trial (even if dismissal was upon motion of the accused or with his express consent) Dismissal vs. Acquittal Acquittal Always based on the merits.  ―Without express consent‖: It refers only to dismissal or termination of the case.  It is not necessary to have absolute identity [People vs Relova (1987)].REMEDIAL LAW REVIEWER Order denying MTQ Interlocutory Not appealable absent a showing of GAD Does not dispose of the case upon its merits Proper remedy: appeal after the trial Order granting MTQ Final order Immediately appealable but subject to rules on double jeopardy Disposes of the case upon its merits Proper remedy: appeal the order  under a statute. Same Act  An offense penalized by ordinance is. Kinds of Double Jeopardy [Art III. with prejudice to refiling [Caes v. If consent is not express. Conviction. Sec. prior jeopardy as to one is NOT an obstacle to a prosecution of the other when each crime involves some important act which is not an essential element of the other [Loney vs People (2006).  Must examine the essential elements of each: . Double jeopardy always attaches 44 4. A valid complaint or information which is sufficient in form and substance to sustain a conviction 2. Exception to the rule that sustaining the motion is not a bar to another prosecution (Bar 1994) General Rule: A MTQ will not be a bar to another prosecution for the same offense [Rule 117. Sandiganbayan (2010)]. Double Jeopardy Rule of Double Jeopardy 1. Hence. A valid plea 5. or acquitted of the offense charged. by definition. It neither binds nor bars anyone [Galman v. When an act punished by a law and an ordinance. No person shall be put twice in jeopardy for the SAME OFFENSE. Note: Where there are two different laws or articles of the same code that define two crimes. 2. the second sentence of the constitutional protection was precisely intended to extend to situations not covered by the first sentence. Liability is produced both under an ordinance and a national statute. IAC (1989)]. The criminal action or liability has been extinguished. the latter cannot again be charged with the same or identical offense [Rule 117. 21. or in jeopardy of being convicted. Hence. People vs Doriquez (1968)]. 5. an acquittal rendered by a court of competent jurisdiction after trial on the merits is immediately final and cannot be appealed on the ground of double jeopardy [People v.e. CA (2001)]. conviction or acquittal under either shall be a bar to another prosecution to another prosecution for the SAME ACT. It does NOT refer to the conviction or acquittal [People v. dismissal will be regarded as final – i. coerced and scripted verdict of acquittal is a void judgment. Does not determine innocence or guilt Double jeopardy will not always attach . Although the prior offense charged under an ordinance be different from the offense charged under a national statute.

2005 Bar]  Where there is no supervening event after arraignment and conviction: . 6. Buling (1960)]. 6. Where 2 informations arose from the same transaction.  Where an order dismissing a case is not on the merits. 5. 8] 1. 9. it cannot bar as res judicata a subsequent case based on the same offense.REMEDIAL LAW REVIEWER Requisites to Raise Double Jeopardy 1. Private offended party appeals the civil aspect of the case [Manantan vs CA (2001)]. 8. for the same offense. Dismissal of the case was declared null and void [People vs Mogol (1984)]. Prosecutor may revive and reinstate a case without filing a new information when the information is provisionally dismissed with the conformity of the accused after arraignment and the initial presentation of prosecution evidence has started since the order of provisional dismissal has not yet become final [Lauchengco vs CA (1979)]. the second offense necessarily includes or is necessarily included in the offense charged in the first information. General Rule: Prosecution cannot file an appeal or a motion for reconsideration after jeopardy has attached to increase the imposed penalty [US vs Kepner (1904)]. [1997. 2. A preliminary investigation is not a trial and does not have for its object the definite determination of the guilt of the accused. 8 retroactively simply because it is favorable to    . Sec. it is beneficial to the accused and there is no reason to complain. Exception: If dismissal was due to a demurrer to evidence. General Rule: Cases are provisionally dismissed where there has already been arraignment and the accused consented to a provisional dismissal.If the victim died 2 days prior to arraignment of the accused who pleaded guilty to an information for serious physical injuries thru reckless imprudence. The State may revive beyond the periods provided there is a justifiable necessity for the delay.  When dismissal becomes permanent: Time bar rule 1 year after issuance of the order without the case having been revived for offenses punishable: [Rule 117. he can no longer be charged with homicide thru reckless imprudence [People v. First jeopardy must have been validly terminated. . The Court is not mandated to apply Sec. 2. First jeopardy must have attached. Provisional Dismissal (Bar 2003) Definition: A case is dismissed without prejudice to its being refiled or revived. 4. The plea of guilty to the lesser offense was made without the consent of the prosecutor and of the offended party EXCEPT when offended party failed to appear during such arraignment. the injured party dies from the injuries after conviction). The dismissal being null and void. the proceeding before the TC may not be said to have been lawfully terminated [People vs Gorospe (1984)]. Filing of the 2nd information where a new fact supervened (eg.If the 1st charge was based on findings of a physician. or b. or c. Second jeopardy must be: a. Two informations are filed charging the accused with two different offenses having different elements though arising from the same act (eg. 2. By imprisonment not exceeding 6 yrs 2. estafa and BP 22) [Ching vs CA (1990)]. By both 2 yrs after issuance of the order without the case having been revived for offenses punishable by imprisonment of more than 6 yrs. 45 7. only one crime is committed. 3. 3. the accused has not yet been arraigned. Petition for certiorari filed by the prosecutor to correct the penalty which should be lower than that imposed by the TC – it is favorable to the accused [People vs Lee Jr (1984)]. Conviction of a crime under a special law (malum prohibitum) which also constitutes an offense under the RPC is not a bar to the prosecution under the RPC (malum in se) [People vs Sanchez (1998)]. Furthermore. By fine of any amount 3.  Tests for determining whether the two offenses are identical: There is IDENTITY between the two offense not only when the second offense is exactly the same as the first.  Exception: If the purpose is to decrease the penalty wrongfully imposed. City Court of Manila (1983)]. When there is NO double jeopardy 1. Note:  The discharge of a defendant on a preliminary investigation is NOT such an adjudication in his favor as will bar a subsequent prosecution for the offense. and a 2nd information was filed charging a more serious crime based on the findings of another physician [People v. a. the 2nd case CANNOT prosper [Mallari vs People (1988)]. The facts constituting the graver charge became known or were discovered only after a plea was entered in the former complaint or information. 3. but also when the second offense is an attempt to or frustration of or is necessarily included in the offense charged in the first information Exception to the Identity Rule: 1. The graver offense developed due to supervening facts arising from the same act or omission constituting the former charge. is an attempt or frustration thereof. In a continuing offense.

. in a case of rape with the allegation that victim is below 12 yrs of age which qualifies said crime and increases its penalty to death. It ought to be done at the time a party closes the presentation of evidence. 8]  Motion can be made: 1. Notice to the offended party e) f) Modification of the order of trial if accused admits the charge but interposes a lawful defense (reverse trial) Other matters that will promote a fair and expeditious trial of the civil and criminal aspects of the case 46 Role of the Judge During the pre-trial. By both  Requisites for Provisional Dismissal: 1. Matters to be considered during pre-trial Section 1. Consent of the accused 3. and not for the accused only [People vs Lacson (2003)]. 55 for the guidelines on plea bargaining as well as note on Rule 116]. Consent of the prosecutor 2. 1] General Rule: After arraignment and within 30 days from the time the court acquires jurisdiction over the person of the accused.REMEDIAL LAW REVIEWER the accused. What the court should do when prosecution and offended party agree to the plea offered by the accused Plea bargaining Definition: It is the process in criminal process whereby the 1) accused. Pre-trial order 6. PRE-TRIAL 1. except when the plea of guilty to a lesser offense is without the consent of the offended party and the prosecutor [People vs De Luna (1989)]. Non-appearance during pre-trial 5. Said facts and circumstances cannot be subject of stipulation [People vs Sitao (2002)]. 1990). 1] The court shall order pre-trial in ALL criminal cases cognizable by the Sandiganbayan. By the prosecution.  Marking for identification of the evidence of parties Proffer of exhibits is not allowed. as amended by Circular No.This is no longer prohibited in criminal cases [People vs Hernandez (1996)]. Filing of a new information for the same offense or one necessarily included in the original offense charged. Matters to be considered during pre-trial 2. Refiling of the information 2. The conviction of the accused of the lesser offense precludes the filing and prosecution of the offense originally charged in the information. nothing short of proof beyond reasonable doubt of every fact necessary to constitute the elements of the crime must be established. [SC AM 03-1-09-SC] Note:  Stipulation of facts . Exception: If a shorter period is provided by special or SC circulars. Sec. 1] a) b) c) d) Plea bargaining Stipulation of facts Marking for identification of evidence Waiver of objections to admissibility of evidence . Sec. and the 3) prosecution work out a mutually satisfactory disposition of the case subject to court approval [See also DOJ Circular No.However. By the accused 3. with the express conformity of the accused 2. 35 (June 31. Note:  How to revive a case: 1. the judge shall be the one to ask questions on issues raised therein and all questions must be directed to him to avoid hostilities between the parties. Things considered during pre-trial / Purposes [Rule 118. What the court should do when prosecution and offended party agree to the plea offered by the accused 3. X. Its main objective is to achieve an expeditious resolution of the case. 2) offended party. The time-bar under the new rule was fixed for the benefit of the State and the accused. Referral of some cases for Court Annexed Mediation and Judicial Dispute Resolution 1. Sec. It usually involves the defendant‘s pleading guilty to a lesser offense or to one or some of the counts of a multi-count indictment in return for a lighter sentence than that for the graver charge [People vs Villarama (1989)]. Requisite procedure [Rule 117. RTC and MTC or MTCC or MCTC or MeTC Period [Rule 118. 2. Pre-trial agreement 4.‖ Coverage [Rule 118. Sec. Pre-trial. When not allowed: Section 23 of RA9165 (Comprehensive Dangerous Drugs Act of 2002) says that ―any person charged under any provision of this Act regardless of imposable penalty shall not be allowed to avail of the provision on pleabargaining. mandatory in criminal cases Pre-trial is MANDATORY in all criminal cases. b.

addresses and contact numbers of witnesses that need to be summoned by subpoena.  Ask parties to agree on the specific trial dates and adhere to the flow chart determined by the court which shall contain the time frames for the different stages of the proceeding up to promulgation of decision and use the time frame for each stage in setting the trial dates. . 1]. The accused is not required to attend (unless ordered by the court) and is merely required to sign the written agreement arrived at in the pre-trial conference. Actions taken.the cause of death or injury. fine or imprisonment).M. . confirm markings of exhibits or substituted photocopies and admissions on the genuineness and due execution of documents and list object and testimonial evidence. Purpose for signature requirement: [People vs Uy (2000)] 1. Sec. 5.disclosure of defenses of alibi. [SC AM 03-109-SC] Judgment of acquittal based on pre-trial despite disputed documents and issues of fact amounts to grave error and renders the judgment void [People vs Santiago (1989)]. To safeguard the rights of the accused against improvident or unauthorized agreements or admissions which his counsel may have entered into without his knowledge. and  Consider modification of order of trial if the accused admits the charge but interposes a lawful defense. 4] Issuance    Issued by the court Within 10 days after the pre-trial. . Sec. including the civil liability or damages duly established by the evidence [SC AM 03-1-09-SC] When plea bargaining fails: Court shall  Adopt the minutes of preliminary conference as part of the pre-trial proceedings. he must assume the consequences of the disadvantage [Bayas vs Sandiganbayan (2002)]. Must be in writing 2. [SC AM 03-109-SC] Exception: Agreements not covering matters referred to in Rule 118. a party may not be allowed to rescind them unilaterally.  Require the parties to submit to the Branch COC the names.REMEDIAL LAW REVIEWER Effect when the prosecution and the offended party agree to the plea offered by the accused: Court shall: a) Issue an order which contains the plea bargaining arrived at. . if he agrees to the contents of such.e. Facts stipulated. b) Proceed to receive evidence on the civil aspect of the case. and .amount of damages. in proper cases. 3. Non-appearance during pre-trial [Rule 118. To eliminate any doubt on the conformity of the accused to the facts agreed upon. . Signed by his counsel Otherwise. . Note: The accused is not included because his constitutional right to remain silent may be violated. Pre-trial agreement Form General Rule: Court approval is required. 2.court's territorial jurisdiction relative to the offense/s charged.adoption of any evidence presented during the preliminary investigation. 47 Effect  The stipulations become binding on the parties who made them. 1 [SC A. Sec. They become judicial admissions of the fact or facts stipulated (2008 Bar) Even if placed at a disadvantageous position. the court may impose proper sanctions or penalties (reprimand.such other matters that would limit the facts in issue. it cannot be used against the accused (i. Sec.genuineness and due execution of documents. inadmissible in evidence). 03-1-09SC] Required form of pre-trial agreement 1. and c) Render and promulgate judgment of conviction. . 3] If counsel for the accused or the prosecutor 1) does not appear at the pre-trial conference and 2) does not offer an acceptable excuse.  4.  Define factual and legal issues. Rationale: to enforce the mandatory requirement of pre-trial in criminal cases [Rule 118. insanity. exercise of public authority and justifying or exempting circumstances. No. documents and in particular as to the following: .qualification of expert witness/es. Signed by the accused 3. Pre-trial order [Rule 118. The constitutional right to present evidence is waived expressly. selfdefense.  Scrutinize every allegation of the information and the statements in the affidavits and other documents which form part of the record of the preliminary investigation and other documents identified and marked as exhibits in determining farther admissions of facts. a) b) Contents .the identity of the accused.

Demurrer to Evidence (Note: Letters d) to f) are added by SC AM 03-1-09SC to the requirements under Rule 118. in the presence of the accused. TRIAL 1. Sec. except that any modification of the pre-trial order in civil cases must be made before the trial. Such examination. The number of witnesses to be presented. Effects of Discharge of accused as state witness 7.M. No.  ―Unavailable‖ means that his whereabouts are known but presence for trial cannot be obtained by due diligence. The statement taken may be admitted in behalf of or against the accused. [People v. Instances when presence accused is required by law Presence is mandatory:  For purposes of identification. if warranted. Referral of some cases for Court Annexed Mediation and Judicial Dispute Resolution A. 6]  [Rule 119. Failure or refusal of the accused to attend the examination after notice shall be considered a waiver. 03-1-09-SC RE: PROPOSED RULE ON GUIDELINES TO BE OBSERVED BY TRIAL COURT JUDGES AND CLERKS OF COURT IN THE CONDUCT OF PRE. the judge shall refer the parties and their counsel to the PMC unit for purposes of mediation if available. and (c) Informing the parties that no evidence shall be allowed to be presented and offered during the trial other than those identified and marked during the pre-trial except when allowed by the court for good cause shown. The period of delay resulting from the absence or unavailability of an essential witness shall be . and issue an order: (a) Requiring the private offended party to appear thereat for purposes of plea-bargaining except for violations of the Comprehensive Dangerous Drugs Act of 2002. and for other matters requiring his presence. Otherwise. In mediatable cases. or in his absence after reasonable notice to attend the examination has been served on him. 2. [Rule 116. or has to leave the Philippines with no definite date of returning. Trial in Absentia 4. (b) Referring the case to the Branch COC. 4) Effect a) Binds the Parties  The accused must move to correct any mistake or modify the pre-trial order. and The schedule of trial. the court shall forthwith set the pre-trial conference within thirty days from the date of arraignment. he may forthwith be conditionally examined before the court where the case is pending. Remedy when accused is not brought to trial within the prescribed period 5. shall be conducted in the same manner as an examination at the trial. No such limitation is provided for in criminal cases (1997 Bar). 1(b)] of b) c)  At the promulgation of judgment. Requisites before trial can be suspended on account of absence of witness Absence or unavailability of an essential witness  ―Absent‖ means that his whereabouts are unknown or cannot be determined by due diligence. Exception: If the conviction is for a light offense. [Rule 120. Instances when presence of accused is required by law 2. Abelita (1992)]  The procedure is substantially the same in civil cases.REMEDIAL LAW REVIEWER c) d) e) f) Evidence marked. Sec. Admissions made. for a preliminary conference to be set at least three days prior to the pre-trial to mark the documents or exhibits to be presented by the parties and copies thereof to be attached to the records after comparison and to consider other matters as may aid in its prompt disposition. it will be deemed to have waived and be barred from questioning  If the matters taken up and embodied in the pre-trial order were not in accordance with what was really stipulated upon. Requisite before trial can be suspended on account of absence of witness 3. Sec.  At arraignment. 1. 48 XI.TRIAL AND USE OF DEPOSITION-DISCOVERY MEASURES RESOLUTION CRIMINAL CASES After the arraignment. Limits the trial to those matters not disposed of Control the course of the action during trial  Exception: If modified by the court to prevent manifest injustice. objections should be interposed as soon as the pre-trial order is issued. Sec. Requisites for discharge of accused to become a state witness 6. 6. 15] When it satisfactorily appears that a witness for the prosecution is too sick or infirm to appear at the trial as directed by the court.

CA (2000)]  Arraignment and plea  Promulgation of sentence. Exception: Prosecutor may ask the court to discharge one of them after complying with the conditions prescribed by law.  Must be raised prior to trial. and final disposition. Requisites for discharge of accused to become a state witness Discharge of a co-accused General rule: It is the duty of the prosecutor to include all the accused in the complaint/information. the right to dismiss is considered waived under Rule 119. Sec.  Subject to the rules on double jeopardy.  Gravity or nature of acts he committed are compared to those of his coaccused. the information may be dismissed on the ground of denial of his right to speedy trial (2007 Bar). He was duly notified of trial.The prosecution has the burden of going forward with the evidence to establish the exclusion of time under Rule 119. otherwise. Sec. 17] (1) Two or more persons are jointly charged with the commission of any offense. barring the right to bring or maintain an action on the same claim or cause Allows new suit for the same cause of action Imports contemplation of further proceedings. Sec. (2) Upon motion of the prosecution before resting its case  Petition for discharge is filed before the defense has offered its evidence. Remedy when accused is not brought to trial within the prescribed period Effect of delay [Rule 119. 3. Aniňon (1988)] (3) Hearing in support of the discharge where the prosecution is to present evidence and the sworn statement of each proposed state witness. General rule: The right to be present at one‘s trial may be waived. Requisites [Rule 119. the discharge of a conspirator is necessary to testify against the other conspirator. however. section 9. [Rule 119. . 17]  This applies only when the information has already been filed in court. 3. except the testimony of the said accused. Sec. it shows that the judicial act is not intended to be res judicata of the merits Is res judicata as to every matter litigated . [Rule 119. 9]  On motion of the accused. Hence.REMEDIAL LAW REVIEWER excluded in computing the time within which trial must commence. and not when his testimony would simply corroborate or strengthen the evidence in the hands of the prosecution. [Flores v. (4) The court is satisfied of the ff: (a) Absolute necessity for the testimony of the accused whose discharge is requested. When there is a conspiracy and the crime is committed clandestinely. 49 5. Accused has been arraigned.g.  Not merely the fact that in law the same penalty is imposable on all. Sandiganbayan (1983)]  E. CA (1996)] (b) There is no other direct evidence available for the proper prosecution of the offense. (d) The accused does not appear to be the most guilty. Purpose: To speed up disposition of cases.  Burden of Proof . 3] DISMISSAL WITHOUT PREJUDICE Terminates the case but reserving. His failure to appear is unjustified. Trial in Absentia (1998 Bar) Requisites: 1. Sec. if with prejudice. DISMISSAL WITHOUT PREJUDICE DISMISSAL WITH PREJUDICE Adjudication on the merits. [People v. been convicted of any offense involving moral turpitude 4. unless for light offense  During trial whenever necessary for ID purposes Exception to the exception: If the accused unqualifiedly admits in open court after arraignment that he is the person named as the defendant in the case on trial. 2. Exceptions: At certain stages: [Lavides v.  He alone has the knowledge of the crime. at any time. the case cannot be revived anymore. (e) The accused has not. and when they appear in an order or decree. (c) The testimony can be substantially corroborated in its material points. [Chua v.The accused has the burden of proving the ground of denial of right to speedy trial for the motion. to the plaintiff the right to file a new complaint which is entirely new and different from that which was dismissed DISMISSAL WITH PREJUDICE 3.

and .  There is no material difference between the Motion to Acquit of the accused before the TC and the demurrer to evidence. 23]  It must specifically state its grounds. 50 6.  Upon demurrer to evidence filed by the accused: -With leave of court. though there is no presumption to that effect. v. [Rule 119.  It must be filed within a non-extendible period of 5 days after the prosecution rests.  If leave of court is granted. Effects of Discharge of accused as state witness Effect of discharge General rule: The order of discharge shall: [Rule 119. 23]  By the court motu proprio. Verceles (2002)]  Subsequent amendment of the information does not affect discharge. [U.g. 2001. General rule: The court may defer resolution until decision is rendered on the other accused Exception: If it can be shown from the decision that the resolution on the demurrer was rendered not only on the basis of the prosecution‘s evidence but also on the evidence adduced by his coaccused How initiated [Rule 119. 23]  It is interlocutory. The only difference: If the MTD is ordered. after giving the prosecution the opportunity to be heard. [Gutib v. but the order of denial of the demurrer to evidence is not reviewable by appeal or certiorari before judgment.S. Demurrer to Evidence (1998.REMEDIAL LAW REVIEWER Note: The rule on the discharge of an accused to be utilized as state witness clearly looks at his actual and individual participation in the commission of the crime. [People v. whether true or not.Precise degree of participation. Catimbang (1916)] Effect of denial of motion for leave to file demurrer  Order denying the motion for leave or order denying the demurrer itself. Proof of the possession of recently stolen goods taken together with proof of the commission of the theft. Ocimar (1992)] may then oppose within a non-extendible period of 5 days from receipt. 23]  Sufficient evidence for frustrating a demurrer is evidence that proves: [Gutib v. Sec. the demurrer must be filed within a non-extendible period of 10 days from notice. Sec. may be and generally will be sufficient to establish the guilt of the accused. Sec. Exception: If the accused fails/refuses to testify against his co-accused in accordance with his sworn statement constituting the basis for his discharge. Sec.  Any error in asking for and in granting the discharge cannot deprive the discharged of the acquittal and the constitutional guaranty against double jeopardy. Motion for leave to file demurrer [Rule 119. 1960] for the accused to test the sufficiency of prosecution‘s evidence before presenting his defense. 23] FILED WITH LEAVE OF COURT May adduce evidence in his defense Purpose: To determine WON demurrer was filed merely to stall the proceedings Implied leave of court is no longer sufficient and prevents accused from presenting evidence [e. if there is nothing in the record to raise a doubt as to the guilty character of the possession.  Purpose: to prevent the filing of demurrer based on frivolous and flimsy grounds. CA (1999)] . 2004 Bar) Definition: Objection by one of the parties to the effect that the evidence which his adversary produced is insufficient in point of law. o E. People (1999)] 7. 18]  Amount to an acquittal of the discharged accused. it is tantamount to an acquittal. Sec.  Bar future prosecutions for the same offense. Prosecution .g. [People v.Commission. CA (1999)] Purpose: In light of the constitutional right to be presumed innocent and of the privilege against selfincrimination [Goldstein. Prosecution may oppose within a similar period. Taruc (1962)] Effect of granting motion for leave to file demurrer  The court may dismiss the action on the ground of insufficiency of evidence. is not reviewable by appeal or by certiorari before judgment. to make out a case or sustain the issue. [Rule 119. Right of the accused to present evidence after demurrer is denied [Rule 119. Sec. [People v. but it may be assigned as error and reviewed in the appeal that may be taken from the decision on the merits [Cruz v. which may or may not have been perpetrated in conspiracy with the other accused. -Without leave of court. accused files motion with reservation to present evidence in case motion is denied] FILED WITHOUT LEAVE OF COURT Waives the right to present evidence Submits the case for judgment on the basis of the evidence for the prosecution If there are 2 or more accused and only one presents a demurrer without leave of court.

if there is any. it is incomplete. whether as principal.The remedy for a verbal judgment is to appeal or file a petition for mandamus to compel the court to put the decision in writing. JUDGMENT 1. Contents of Judgment 3. [People v. Promulgation of judgment. Sec.  The penalty should not be imposed in the alternative. The Court generally will not find any misapprehension of facts as it can be fairly assumed under the principle of regularity of performance of duties of public officers that the transcript of stenographic notes were thoroughly scrutinized and evaluated by the judge himself. Court of Appeals (2000)] 2.  There is no need to state the particular paragraph and article in the RPC. Requisites of a judgment 2. Personally and directly prepared by the judge. if it did actually apply the proper provision. (4) The civil liability or damages caused by his wrongful act/omission to be recovered from the accused by the offended party. Meneses (1998)] Signed by the judge. . synthesizes the findings and concisely narrates how the offense was committed. Valeriano (1993)]  The TC should express not only its conclusion but also the provision of the law violated for the purpose of informing the accused of the nature of the crime and the law penalizing the same. Requisites of a judgment Form [Rule 120.    . [Hernandez v. Consti] . accomplice or accessory after the fact. unless the enforcement of the civil liability by a separate civil action has been reserved/waived. [Abaya v. Sec. [People v. unrestrained by any fear that a higher court might call down. . People (2006)] 51 1. instances of promulgation of judgment in absentia 4. [People v.  If a decision does not contain a dispositive portion but the last two paragraphs embody the court‘s conclusions.  Mere failure to specify the particular provision of law does not invalidate the decision. then the decision is valid.Failure on the part of the TC to make a finding of fact is a revocable error. 1]  Written in official language.But the judge who only took over can render a valid decision by relying on the transcript. . Garcia (1988)] . It does not have an effect before it was actually reduced to writing and signed by the judge.The judge who presided over the entire trial would be in a better position to ascertain the truth or falsity of the testimonies.A verbal order dismissing the case can be rescinded without prejudicing the rights of the accused – No double jeopardy arises. When does judgment become final (four instances) There is no law that requires a specific finding of facts with respect to the evidence for the defense. (2) The participation of the accused in the offense. [Art. 6.If given verbally. Catolico (1972)] . . CA (1993)] o Common sense dictates that he be given complete liberty to express his opinion.Judges must nonetheless be allowed to synthesize and simplify their decisions considering the heavy load of trial judges for as long as there is compliance with minimum essence of factual and legal bases. Badon (1999)] Contains clearly and distinctly a statement of facts proved and the law upon which judgment is based. so long as the offense is clearly understood from the facts. . 8. (3) The penalty imposed upon the accused. [People v. It does not violate due process. o He may quote from narration of facts by the OSG in his brief or memoranda of both parties and adopt the same as his own.REMEDIAL LAW REVIEWER - XII. [Concepcion v.There is sufficient compliance if the decision summarizes the evidence of both parties. There should be no doubt as to the offense committed and the penalty for it.Every decision must state distinctly and clearly the factual and legal basis therefore. Judge who penned the decision need not be the one who heard the case The fact alone that the judge who heard the evidence was not the one who rendered the judgment but merely relied on the record of the case does not render his judgment erroneous or irregular. [Reyes v. . Contents of Judgment 1) Conviction The judgment of conviction shall state: (1) The legal qualification of the offense constituted by the acts committed by the accused and the aggravating/mitigating circumstances which attended its commission.

to let the mind rest upon the certainty of guilt. the court may: o Convict him of as many offenses as are charged and proved. [People v. [Rule 120.Cannot be ground for acquittal. Sec. either:  The evidence does not show that his guilt is beyond reasonable doubt. or  A dismissal of the case after the prosecution has rested its case and upon motion of the accused on the ground that the evidence fails to show beyond doubt that accused is guilty. 2) Unjust conviction. 4] 1) The offense proved which is included in the offense charged. o Impose on him the penalty for each offense. [People v. [People v. . 204. after such investigation. Sec. setting out separately the findings of fact and law in each offense. or of an offense charged which is included in that which is proved. must information which change the nature of the offense. the accused can be convicted of the one which is proven. Judgment in case of variance between allegation and proof  General rule: The defendant can be convicted only of the crime with which he is charged.  Exception: He can be convicted of an offense proved provided it is included in the charge. [Art.It is contrary to law or is not supported by the evidence and the same is made with conscious and deliberate intent to do an injustice. Exception: Maximum duration of offense: Follow the three-fold rule on the service of penalty. Sec. . Effect  The accused shall be convicted of: [Rule 120. Exception: Defect is waived when accused fails to move for quashal. Villamar (1998)]  Where a complex crime is charged and the evidence fails to support the charge as to one of the component offenses. constitute the latter. An offense charged is necessarily included in the offense proved when the essential ingredients of the former constitute or form part of those constituting the latter. Bacalzo (1991)] Judgment for two or more offenses  General rule: Complaint/information charge only one offense. [RA 7309]  Requirements for compensation: 1) Unjust accusation.It is the same as knowingly rendering an unjust judgment .REMEDIAL LAW REVIEWER PROOF BEYOND REASONABLE DOUBT – Degree of proof which produces conviction in an unprejudiced mind.  General rule: Duplicitous information is subject to a motion to quash.THUS. Guevarra] However. Lizada (1993)]  . as alleged in the complaint/information. 3].Does not alter the nature of the offense. . When an offense includes or is included in another [Rule 120. [People v. Sec. 52 Exception: Cases in which existing laws prescribe a single punishment for various offenses. he is duly informed also of lesser crimes/offenses included therein.The accused can be convicted of an offense only when it is both charged and proven.The mere fact that the evidence presented would indicate that a lesser offense outside the court‘s jurisdiction was committed does not deprive the court of its jurisdiction.Does not determine or qualify the crime or penalty. . State liability for unjust conviction  The DOJ Board of Claims is authorized to receive/evaluate/process/investigate claims of victims of unjust imprisonment/detention and victims of violent crimes. REASONABLE DOUBT – Doubt engendered by an investigation of the whole proof and an inability.  Rationale: He has the right to be informed of the nature of the offense with which he is charged before he is put on trial. and . and Exception: One of the offenses has been a necessary means for committing the other offense and where both have been the result of a single act. Exception to the exception: Where there are facts that supervened after the filing of the 2) Acquittal Definition: A finding of not guilty based on the merits. where the accused fails to object to 2 or more offenses charged in a single information/complaint before trial [Rule 120. which had vested in it under the allegations in the information. RPC] 3) Unjust imprisonment. Rationale: It is always better to err in acquitting than in punishing. 4] . 5] The offense charged necessarily includes the offense proved when some of the essential elements/ingredients of the former. minor variance between the information and the evidence: . or 2) The offense charged which is included in the offense proved  The right to be informed of the charges has not been violated because where an accused is charged with a specific crime.

since the civil liability arose not from a crime but from the damage caused by such acts. If irrelevant/impertinent. Lopez (1997)]  Merely reading the dispositive portion of the decision is not sufficient.  There is no more reason to keep it a secret at the stage of promulgation. notice will be served in last known address. and 2. 24 Phil 321] Where there is no promulgation of judgment. There must be a judge or judges legally appointed or elected and actually acting either de jure or de facto. Meneses (1998)]   Acquittal based on reasonable ground does not bar a separate civil action based on quasi-delict.REMEDIAL LAW REVIEWER ACQUITTAL [Rule 120] DISMISSAL [Rule 117] Promulgation: An official proclamation announcement of a judgment or order. [People v. [Miguel v Municipal Trial Court (1986)] Judgment/sentence does not become a judgment/sentence in law until it is: 1) Read and announced to the defendant. exception [Rule 120.  Judgment must state the facts and the law on which it is based. in his name and not in the name of the People The Judge acquitting an accused cannot punish him at the same time Two things are essential and necessary for the valid promulgation of a court decision: 1. Acquittal extinguishes civil liability only when the judgment includes a declaration that the facts from which the civil liability might arise did not exist. MD Transit (1988)] The Court may hold accused civilly liable even when it acquits him. . 6] General rule: Presence of the accused is mandatory. a. Notice for Promulgation  Clerk of Court gives notice to accused personally or through bondsman or warden and counsel. . General rule: The court has authority to express disapproval of certain acts even if judgment is for acquittal. [Rule 120. Promulgation where judge is absent [Rule 120.  If the accused jumps bail or escapes from prison and was tried in absentia. 6] The judgment may be promulgated by the clerk of court when the judge is absent or outside the province or city.The court may nonetheless hold the accused civilly liable in favor of the offended party. a censure is still a punishment. 6] Sin perjuicio judgment: A judgment without a statement of the facts in support of its conclusion to be later supplemented by the final judgment. Presence of accused required. such refers to the preparation of the decision and not to promulgation. Promulgation of judgment. or it may deny the award of civil damages expressly or impliedly by being silent on the matter. . [Lontoc v. Sec. must be relevant to the issue in the case. the judgment shall determine if the act or omission from which the civil liability might arise did not exist. they should be stricken out or expunged from the record like any other extraneous matters. however.The losing party may appeal the ruling on the civil liability. Sec. Sec.#2 does not extinguish the civil liability arising from his acts. b. . or Terminates the case Decision on the merits Not on the merits and no based on a finding that finding of guilt is made the accused is not guilty  The judgment shall state whether: 1) The evidence of the prosecution absolutely failed to prove the guilt of the accused. Exception: The court is not permitted to censure the accused in a judgment for acquittal – no matter how light. which can be proven by a lower quantum of evidence.This reprehension. as in any other ordinary appeal. . or 2) Has become a part of the record of the court. or 2) It merely failed to prove his guilt beyond reasonable doubt. Exception: convictions for light offenses Conviction for light offense Promulgation in absentia He may appear through counsel/representative To prevent subversion of judicial process and enable enforcement of civil liability 53  3. [Dizon v. no right to appeal accrues. In either case. A finding of guilt must precede the punishment. [US v. CFI of Manila. instances of promulgation of judgment in absentia (1997 Bar) .  While SC has expressed approval of the practice of some judges withholding the dispositive portion from their opinions until the very last moment of promulgation in order to prevent leakage.No court has the power to mete out punishment. The said judgment must be duly signed and promulgated during the incumbency of the judge who signed it.

Exception: Acquittal would in all probability have followed the introduction of certain testimony which was not submitted at the trial under improper or injudicious advice of incompetent counsel. Dimalanta] . 2) When the sentence has been partially/totally satisfied or served. Grounds for Reconsideration  Errors of law or fact in the judgment. General rule: Error of the defense counsel in the conduct of the trial is neither an error of law nor an irregularity.If he proves his absence was for a justifiable cause. Effects of granting a new trial or reconsideration 5. 7] Judgment becomes final: 1) After the lapse of the period for perfecting an appeal.     If the judgment is for conviction and the failure of the accused to appear was without justifiable cause. 54 Verdict acquittal of When judgment of acquittal becomes final  It is immediately final and executory. 2. . except to correct clerical errors.If at the time of the promulgation. Sec. Sec.  Before the judgment becomes final. he shall lose the remedies available in the ROC against the judgment and the court shall order his arrest. 3) The accused has expressly waived in writing his right to appeal. [Regalado] Exception: cases where death penalty was imposed—automatic review.Promulgation is made by recording the judgment in the criminal docket and serving a copy at the accused‘s last known address or through counsel.It will be done in the RTC who has jurisdiction over the place of confinement. such amendment or alterations as it may deem best. Promulgation date where judge no longer a judge is void. and thereby waives right to appeal. 3. shall be allowed to avail of the remedies within 15 days from notice. Promulgation when accused is confined/detained in another city . or 4) When the accused applies for probation. Sec. When does judgment become final (four instances) [Rule 120. which requires no further proceedings. NEW TRIAL OR RECONSIDERATION 1. judgment is final and executory . either on motion or motu proprio. the TC is divested of authority to amend/alter the judgment. within the frame of law. Application of Neypes Doctrine in Criminal Cases 1.Note the old rule that presence of the accused during promulgation of judgment is required only in case of conviction  After finality. XIII. the judge penning the decision has ceased being a judge of the court. within 15 days from promulgation of judgment.However. Requisites before a new trial may be granted on ground of newly discovered evidence . the decision would not be an act of the court. the TC has plenary power to make.  That new and material evidence has been discovered which the accused could not with reasonable diligence have discovered and produced at the trial and which if introduced and admitted would probably change the judgment.Irregularities must be with such seriousness as to affect prejudicially the substantial rights of the accused. Grounds for Reconsideration 3. Requisites before a new trial may be granted on ground of newly discovered evidence 4. He shall state the reasons for his absence. Grounds for New Trial [Rule 121. 2]  That errors of law or irregularities prejudicial to the substantial rights of the accused have been committed during the trial. . Grounds for New Trial 2.  The State may not seek its review without placing the accused in double jeopardy. 3] Rationale: To afford the TC the opportunity to correct its own mistakes and to avoid unnecessary appeals. judgment does not become final after the promulgation and by the TC‘s issuance of a commitment order. [Rule 121. 4. to promote the ends of justice. he may surrender and file a motion for leave of court to avail of these remedies.Promulgation by a succeeding judge produces no legal effect since it cannot restore validity to a document already void. .REMEDIAL LAW REVIEWER No appeal is necessary. Failure to appear at the scheduled date of promulgation . . [People v.

6] In all cases:  The original judgment set aside or vacated. GROUND Newlydiscovered evidence EFFECT Evidence already adduced shall stand and the newlydiscovered and such other evidence shall be taken and considered together with the evidence already in the record COURT MAY Allow introduction of other such evidence in the interest of justice 55 Remedy against GAD in granting MNT/MFR: Certiorari or prohibition. CA (1997)] a) Was discovered after the trial. 4 and 14-A) RTC (if it involves questions of fact and of law) . [People v. Rule 42 on petitions for review from the Regional Trial Courts to the Court of Appeals. [US v. this ―fresh period rule‖ shall also apply to Rule 40 governing appeals from the Municipal Trial Courts to the Regional Trial Courts.  It must be of weighty influence and will affect the result of the trial. Sec. Estrella (1970)] 5. Where to appeal [Rule 122. that its contents raised doubts to the guilt of the accused.In People v. WON it is made the subject of assignment of errors. and d) Is of such weight that it would probably change the judgment if admitted. the court ruled that a motion for a new trial may be granted on a ground not specifically provided in the rules. Rule 43 on appeals from quasijudicial agencies to the Court of Appeals and Rule 45 governing appeals by certiorari to the Supreme Court. and which could have been discovered with due diligence. del Mundo (1996). Pico (1982)]  Burden of proving this is on the accused. 2.e. b) Could not have been discovered and produced at the trial even with the exercise of reasonable diligence. 2. Effects of granting a new trial or reconsideration [Rule 121.  A new judgment is rendered accordingly. Almendras (2003). In that case. 4. Alfaro (2003)] Exceptions:  ―Interest of justice‖ as gauge for introduction of new evidence . Effect of an Appeal Where to appeal How appeal taken Effect of appeal by any of several accused Grounds for dismissal of appeal 1.REMEDIAL LAW REVIEWER Requisites: That the evidence . 2005) 4. CA. the relief of a new trial was granted to a client who has suffered by reason of his/her counsel‘s gross mistake and negligence. (Neypes v. Sec. Application of Neypes Doctrine in Criminal Cases Fresh Period to Appeal after Denial of MNT/MR. 5. the entire proceeding is void and must be set aside COURT MAY Allow introduction of additional evidence in the interest of justice XIV. Calayca (1999)] 2.  When there is variance in 2 reports .i. provided that it is sought in the interest of justice. the court allowed the presentation in a new trial of a police report. Effect of an Appeal An appeal in a criminal proceeding throws the whole case open for review and it becomes the duty of the appellate court to correct an error as may be found in the appealed judgment.  Specific effects when granted upon different grounds: GROUND Errors of law or irregularities committed during the trial EFFECT All proceedings and evidence affected shall be set aside and taken anew If error or irregularity goes into the jurisdiction. [Luciano v. Otherwise. APPEAL 1. [People v. because the evidence contained in such was at such variance with the health officer‘s report at trial.In People v. the prosecution may no longer have opportunity to question the order if accused is acquitted after a new trial is conducted (because there will be double jeopardy). 3. not new. [US v. 2] APPEAL IN The RTC The Sandiganbayan The CA FOR CASES DECIDED BY MTC/MeTC/MCTC RTC or MTC/MeTC/MCTC (if it is government duty-related . filed under EO 1.[Jose v. not merely cumulative/corroborative/impeaching. Torrente (1922)] c) Is material. Henceforth.

Exceptions: 1) Where a particular provision applies only to either of said courts. Nobles-Bans (1985)] . . [Rule 123.REMEDIAL LAW REVIEWER APPEAL IN The SC FOR CASES DECIDED BY RTC a) If it involves questions of law only b) If it involves constitutionality or validity of any treaty/law/ordinance/EO/ regulation or the jurisdiction of the inferior court c) In criminal cases involving offenses for which the penalty imposed is death or life imprisonment d) Other offenses.  Rules on Summary Commencement of action [Sec. of copies is not complied with within 5 days from date of filing. Sec. in Metropolitan Manila and in chartered cities. complaint/information may be filed directly with said courts or with the City Prosecutor‘s Office. Revised Rules on Summary Procedure also does not apply to criminal cases where the offense charged is necessarily related to another criminal case subject to the ordinary procedure. 1] General rule: The procedure to be observed in the MeTC/MTC/MCTC shall be the same as that in the RTC. The complaint/information shall be accompanied by the affidavits of the complaint and of his witnesses. The period to appeal shall be suspended from the time a MNT or MR is filed until notice of the order overruling the motion has been served upon the accused or his counsel. . the parties may submit memoranda/briefs.  Notification of parties Upon receipt of the complete record. Cases governed by the Revised Rules on Summary Procedure: a) Violations of traffic laws/ rules/ regulations. the complaint may be filed only with the Office of the City Prosecutor . the case may be dismissed. or may be required by the RTC to do so.000 or both.No.However. which. the case should not be dismissed.  Submission of memoranda/briefs Within 15 days from receipt of said notice. 56  The SC 3. How appeal taken [Rule 122. the RTC shall decide the case on the basis of the entire record of the case and of such memoranda/briefs as may have been filed. of accused + 2 copies for the court‘s files] . the COC shall transmit the original record to the appropriate RTC. as that giving rise to the more serious offense CA or Sandiganbayan 2) Criminal cases governed by the Revised Rules on Summary Procedure.  Offenses falling under the MTC/MCTC‘s Jurisdiction: [Salcedo v.e. The court should just refer it to the City Prosecutor for the filing of the corresponding information. irrespective of other imposable penalties (accessory or otherwise) or of the civil liability arising from it. if the offense falls under the jurisdiction of the MTC/MCTC.  . it is not governed by Revised Rules on Summary Procedure). in offenses involving damage to property through criminal negligence where imposable fine does not exceed P 10. d) Violations of BP 22. Sec.    The Revised Procedure I.In Metro Manila and other chartered cities.Notwithstanding the uniform procedure rule. c) Violations of municipal/city ordinances. thus. Nobles-Bans (1985)] .000. TSN and evidence of the case. 6 and 9] When appeal to be taken Within 15 days from promulgation of the judgment or from notice of the final order appealed from. although not so punished. 11] The filing of the criminal case shall be either by complaint or by information.If the required no. Exception: When the offense cannot be prosecuted de oficio.  Transmission of record to RTC Within 5 days from perfection of the appeal. b) Violations of the rental law. of copies = [No. criminal cases shall be commenced only by information. However. the RTC COC shall notify the parties of such fact. arose out of the same occurrence or which may have been committed by the accused on the same occasion. commencement shall be only be by information.If the case is directly filed with the court.  Decision After submission of such memoranda/briefs or upon the expiration of the period to file the same. the Uniform Procedure Rule shall govern (i. e) All other criminal cases where the penalty is imprisonment not exceeding 6 months or a fine not exceeding P1. Offenses falling under the MeTC‘s Jurisdiction: [Salcedo v.

. X. 12. If commenced by information or if not dismissed according to #1: . (3) MNT/MR or motion for re-opening of trial. 14]  Before conducting the trial. (5) Motion for extension to file. If it is the prosecution who submits additional affidavits. otherwise. Trial [Sec. If the affiant fails to testify. If a party wishes to present additional affidavits/counter-affidavits. VI. 22. . If the accused is in custody for the crime charged. Referral to Lupon [Sec. The case may be revived only after compliance with the requirement. 21] Judgment may be appealed to RTC per Sec.e. (2) Plea bargaining.REMEDIAL LAW REVIEWER II. 16]  The court shall not order the arrest of the accused. People v. they shall be submitted to the court and served on the adverse party within 3 days from the termination of the preliminary conference. BP 129.  IX. 1] In all criminal cases appealed to the CA: . (12) Interventions. . Sec.Exception: For failure to appear whenever required. re-direct and recross examinations. the court may dismiss the case outright for being patently without basis/merit and order the release of the accused (if in custody). (3) Other matters to clarify the issues and to ensure a speedy disposition of the case. If the court allows the additional affidavits/counter-affidavits. Judgment [Sec.      IV. (10) Reply. it shall order the dismissal of the case. the defense may file counteraffidavits thereto (copy furnished the prosecution) within 3 days from service.APPELLEE – The party adverse to the appellant.  Procedure in the CA a.Arrest of the accused [Sec. the court shall set the case for arraignment and trial. the adverse party may utilize his affidavit for any admissible purpose. (4) Petition for relief from judgment. The title of the case shall remain as it was in the court of origin (i. the court shall call the parties to a preliminary conference for: (1) Stipulation of facts.  Parties and title [Rule 124. 18]  If the case requires referral to the Lupong Tagapamayapa under PD 1508 and this is not complied with. A witness cannot testify unless his affidavit was previously submitted to the court according to Sec.  . . (11) 3rd-party complaints.The prosecution may file reply affidavits within 10 days after receipt of the counteraffidavits.Based on the complaint/ affidavits/ evidence. . (9) Dilatory motions for postponement.Refusal/failure to stipulate shall not prejudice the accused. (8) Motion to declare defendant in default. the court shall promulgate judgment within 30 days after termination of trial. it shall be dismissed without prejudice. 57  III. 15]  The submitted affidavits shall constitute the direct testimonies of the witnesses/affiants. Prohibited pleadings and motions [Sec. Court’s duty [Sec. If he enters a plea of guilty. Appeal [Sec. his affidavit will not be considered as competent evidence for the party presenting his affidavit. V. (2) Motion for bill of particulars. 19] (1) MTD. Release of the accused shall be by bail or on recognizance.  Exception: On grounds of either: a) LOJ over subject matter. VII. . 17] If trial was conducted. b) Failure to refer to Lupon. he shall be immediately arraigned.APPELLANT – The party appealing. (6) Memoranda. However. Preliminary conference [Sec. Arraignment [Sec. John Doe). he should so manifest (and his purpose) during the preliminary conference. 12]  If commenced by complaint: .Exception: On rebuttal or sur-rebuttal.  VIII. 13]  If the court finds no cause/ground to hold the accused for trial. They shall be subject to cross.No admission by the accused shall be used against him unless reduced to writing and signed by the accused and his counsel. he shall forthwith be sentenced. (7) Petition for certiorari/mandamus/prohibition against any interlocutory order.The court shall order the accused to submit his counter-affidavit and the affidavits of his witnesses as well as any evidence on his behalf (with copies served on the complainant/prosecutor) not later than 10 days from receipt of order. Exception: Criminal cases of warrantless arrest.

Sec.    e. Sec.Exception: for good and sufficient cause It is sought through a motion for extension. STATEMENT OF FACTS – Clear and concise narrative statement of the facts admitted by both parties and of those in controversy.   Brief for appellant [Rule 124. 2] a) [Rule 44. with references to the supporting pages of the record. Isaac (1952)]. which must be filed before the expiration of the time sought to be extended. in sufficient detail to make it clearly intelligible and with page references to the record. Purpose: To show grounds for reversal of judgment and to point out the errors/irregularities in the lower court‘s proceedings. 14] a) Subject index. It must be filed within 20 days from receipt of the appellee‘s brief. 7] 58 The counsel de oficio cannot dismiss the appeal and [US v. Sec. 4] d) d. The authorities relied upon shall be cited by the page of the report at which the case begins and the page of the report on which the citation is found. stated without repetition and numbered consecutively. the nature of the judgment and any other matters necessary to an understanding of the nature of the controversy. ARGUMENTS – Appellant‘s arguments on each assignment of error. Appellee’s brief: [Rule 44. It shall be filed within 30 days from receipt of the appellant‘s brief. Sec. accompanied by proof of service of 2 copies on the appellee. Appointment of counsel de oficio [Rule 124. Brief for appellee [Rule 124. or COUNTER-STATEMENT OF FACTS – Points out the insufficiencies/inaccuracies appellee believes to exist in the appellant‘s statement of facts. b) STATEMENT OF FACTS – Statement that appellee accepts the statement of facts in the appellant‘s brief. [Rule 124. distinctly and concisely. Sec. a summary of the proceedings. RELIEF – Specification of the order/judgment which the appellant seeks. 330mm in length by 216mm in width. STATEMENT OF THE CASE – Clear and concise statement of the nature of the action. i. 8] Grounds:  Appellant fails to file his brief within the prescribed time.  h. 6] Briefs shall be printed/encoded/ typewritten. c. Sec. Batuyong (1974)] Court may grant as many extensions as may be asked. Grant of extension rests on the court‘s discretion. Mimeographed copies are not allowed. The authorities relied upon shall be cited by the page of the report at which the case begins and the page of the report on which the citation is found. optional) file a reply brief covering matters raised in the appellee‘s brief but not in the brief of the appellant. with references to the pages where they are cited. Sec. in double space. Contents of brief The briefs in criminal cases shall have the same contents as provided in Rule 44. with page references to the record. the appealed court rulings and orders. and a table of: (1) cases alphabetically arranged. Extension of time for filing briefs [Rule 124. Sec. Appellant’s brief: .REMEDIAL LAW REVIEWER b.  e) Appellee shall file 7 copies of his brief with the clerk of court. ISSUES – Clear and concise statement of issues of fact/law submitted to the court for its judgment. Matters in the appellant‘s statement of facts should not be repeated. [Piedad v. c) ARGUMENTS – Appellee‘s arguments on each assignment of error. accompanied by proof of service of 2 copies on the appellant. 5] General rule: Extension of time for the filing of briefs is not allowed . with page references to the record. Sec. and (2) books and statutes cited.     g. [Gregorio v. It shall be filed within 30 days from receipt by the appellant (his counsel) of the CA clerk of court‘s notice that the evidence is already attached to the record. Purpose: To meet/refute the appellant‘s submissions. 7] 1.   f.e. 13-14. Sec. CA (1976) ] Form of briefs [Rule 124. ASSIGNMENT OF ERRORS – Errors urged separately. on legal size good quality unglazed paper. the appellant‘s brief shall contain (as an appendix) a copy of the judgment or final order appealed from. Attachment: Certified true copy of the decision or final order appealed from. Dismissal of appeal for abandonment or failure to prosecute [Rule 124. f) g) h) 2. Sec. [Rule 124. with page references to the record. In cases not brought up by record on appeal. Exception: Where the appellant is represented by a counsel de oficio. Sec. Reply to appelle’s brief [Rule 124. 4] Appellant may (i. together with the substance of the related proof. 3] b) c)  Appellant shall file 7 copies of his brief with the clerk of court. Lafuente (1918)] neither can he admit findings of fact by the TC without the consent of his client [People v. 13] SUBJECT INDEX – Digest of the arguments and page references.

[US v. Buenaventura (1994)] c) In case of automatic review. Valencia (1949)] b) If there was absolutely no evidence against the accused as found by the appellate court. jumps bail or flees to a foreign country during the pendency of the appeal.Exception: When the CA. the appellant took advantage of a mass jailbreak (because. BP 129]  3 CA Justices constitute a quorum for the sessions of a division.  The CA shall hear and decide the appeal at the earliest practicable time with due regard to the parties‘ rights. 4) Dismiss the case. [People v. Cabiling (1976)] Scope of CA’s judgment [Rule 124. unless extended by the Chief Justice.  If there is lack of unanimity.  The unanimous vote of the 3 Justices of a division is necessary for the pronouncement of a judgment or final resolution  Decision is reached through a consultation before the writing of the opinion by a member of the division. 2) Involving claims for damages arising from provisional remedies. Sec. Sec.Likewise. [Salvador v.  When it involves credibility of witnesses. [Ko Bu Lin v. Cornelio (1971)] CA may dismiss the appeal upon appellee‘s motion or motu proprio.REMEDIAL LAW REVIEWER If failure to file brief on time is the ground. receive evidence and perform any and all acts necessary to resolve factual issues in cases: 1) Falling within its original jurisdiction.  CA‘s trials and hearings must be continuous and completed within 3 months. he is deemed to have waived his right to appeal. he waives the constitutional safeguard against double jeopardy and throws the whole case open to the review of the appellate court. 12]  The CA has power to try cases and conduct hearings. he should be acquitted in order to prevent an injustice by technicalities. . 3) Remand the case to the RTC for new trial or retrial. o However. Hence.Rationale: Escape of appellant during the pendency of the appeal implies a withdrawal of the appeal. Such action amounts to abandonment. 9]  Appeals of accused who are under detention are given precedence in their disposition over other appeals. judgment of the TC becomes final. Sec. the Presiding Justice shall direct the CA raffle committee to designate 2 additional Justices to sit temporarily 59   Prompt disposition of appeal [Rule 124. 11] The CA may: 1) Reverse/affirm/modify the judgment. 11. CA (1982)] CA’s power to receive evidence [Rule 124. . [People v. Quorum in the CA [Sec. .When the accused appeals from the sentence of the TC.Proceedings on appeal will not be stayed in a criminal case on account of the absence of the accused as his presence is not necessary at said hearing. Reversal / modification of judgment on appeal [Rule 124.  The accused need not be present in court during the hearing of the appeal. People (1948)] b) If appeal was dismissed without notice but appellant took no steps to have the appeal reinstated. Sec. Ang Gioc (1941)] o Exception: Appeal will not be dismissed despite escape: a) In one exceptional case. [Baradi v. is of the opinion that error was committed and such error injuriously affected the appellant‘s substantial rights. when accused flees after the case has been submitted for decision. [People v. . appellant must be given notice to give him opportunity to reason out why his appeal should not be dismissed. Reyes (1949)] If the appellant escapes from prison/confinement.  Rationale: The TC is in a better position to decide the question. Ravidas (1905)] . appellate courts will not generally disturb the TC‘s findings. the SC said circumstances were not sufficient to justify dismissal of the appeal. which is then called upon to render such judgment as law and justice dictate. 10]  General rule: No judgment shall be reversed/modified. Lewis] . after an examination of the record and of the parties‘ evidence. WON favorable to the accused and WON made the subject of assignment of errors. 2) Increase/reduce the penalty imposed by the TC. in which he stated the reason why he failed to file his brief on time and the appellate court denied the motion after considering reason. 3) Where the court grants a new trial based only on the ground of newly-discovered evidence. [People v. dismissal is proper despite lack of notice: a) If appellant has filed a MFR or motion to set aside the order dismissing the appeal. having seen and heard the witnesses themselves. [US v. according to his counsel de oficio he was innocent and wanted to elude an unjust punishment) but was recaptured 2 hours after. [People v.

with copies served on the adverse party. so that the judgment may be executed and/or placed or noted in the proper file. Sec.REMEDIAL LAW REVIEWER with them. [Macali v. 18] Provisions of Rules 42. Procedure in the SC a. These shall be remanded to the clerk of the court from which the appeal was taken. shall be applied to criminal cases insofar as they are applicable and not inconsistent with the provision of this Rule. 13] 1) If the CA finds that death penalty should be imposed:  AUTOMATIC REVIEW – CA shall render judgment but refrain from making an entry of judgment. Sec. Revilla (1926)]  It may also assess and award civil indemnity. instead.  Note: Death penalty has been abolished. Sec. Laguna (1910)]  When available: .When the RTC judgment upon the accused imposes death penalty. [Sec. the party adversely affected by the reversal/modification may himself file a MFR of the latest judgment of the court. Automatic review  It is not a matter of right on the part of the accused.  Hence. 16]  MFR may be filed within 15 days from notice of the CA judgment or final order. Uniform procedure [Rule 125. the escape of the accused does not relieve the SC of the burden of automatically reviewing the case. Ways by which a case may reach the SC i. 11. life imprisonment or a lesser penalty:  It shall render and enter judgment imposing such penalty. 44-46 and 48-56 relating to procedure in the CA and the SC in original and appealed civil cases. CA (1946)] c. 17]  This copy of the entry serves as the formal notice to the court from which the appeal was taken of the disposition of the case in the appellate court. Sec. Judgment transmitted and filed in TC  When the CA‘s entry of judgment is issued.Exception: Where the 1st MFR resulted in a reversal or substantial modification of the original decision or final resolution. Sec. . 2) Refer the trial to the court of origin. it may either: [Rule 124. 1] General rule: The procedure in the SC in original and in appealed cases shall be the same as in the CA. 13] . The accused has to file a notice of appeal with the CA. It shall then certify the case and elevate its entire record to the SC for review. but a matter of law. [Rule 124. Sec. The accused does not have to do anything.When the RTC decision is appealed to CA and the latter is of the opinion that the penalty imposed should be death or life imprisonment. CA judgment is imposed but no entry of judgment is made.General rule: No party shall be allowed a 2nd MFR of a judgment or final order. b.  The mittimus shall be stayed during the MFR‘s pendency. MNT during the pendency of appeal in the CA [Rule 124. Certification or appeal of cases to the SC [Rule 124. Exception: If the Constitution or law provides otherwise. MFR of CA judgment [Rule 124. They shall then form a special division of 5 members. 14]  Appellant may file MNT on the ground of newly discovered evidence material to his defense any time: . [Rule 124. What the SC may do on review  In a criminal case. [People v. .  If the CA grants a MNT. said motion is a first pleading of that nature. an appeal to the SC throws open the whole case for review and it becomes its duty to correct such errors as may be found in the judgment appealed from. and the accused appeals:  The appeal shall be automatically included in the case certified for review in the SC 3) If the CA imposes reclusion perpetua. 15] 1) Conduct the hearing and receive evidence. because with respect to him. Olfindo (1924)]  It may examine the judgment as to the qualification of the crime and the degree of the penalty imposed. a certified true copy of the judgment shall be attached to the original record. Sec. Sec. 4. 2) If the judgment also imposes a lesser penalty for offenses committed on the same occasion or which arose from the same occurrence that gave rise to the more severe offense for which death is imposed. In this case. [Rule 122. 60 Applicable civil procedure rules [Rule 124. WON they were assigned as errors.  Appeal here is not automatic. BP 129] . Sec.Before the CA judgment convicting him becomes final. but .After the appeal from the lower court has been perfected. the case is certified and the entire record is elevated to the SC for review. . Sec.The concurrence of a majority of that special division is necessary for the pronouncement of a judgment or final resolution. 10] .Designation of the additional Justices shall be made strictly by raffle and rotation among all other CA Justices.  The motion shall conform to Rule 121. [US v. [Quemel v.

REMEDIAL LAW REVIEWER
ii. Ordinary appeal When available:  When the penalty imposed by the RTC is life imprisonment, decision is appealable directly to the SC by filing a notice of appeal with the RTC. [Rule 122, Sec. 3]  When an accused was charged with 2 or more offenses committed on the same occasion or arising out of the same occurrence, and in one of those 2 cases, he was sentenced to life imprisonment or death penalty, the appeal with respect to the others, though punished with a lesser penalty, is to the SC. [Rule 122, Sec. 3]  When the penalty of reclusion perpetua or death is imposed on some of the defendants and a lesser penalty on the other co-defendants, on account of their varying degree of participation in the commission of the offense or due to the presence of modifying circumstances, in which case the decision on the non-life convicts is directly appealable to the SC. [People v. Carino]  In these cases, the SC reviews not only errors of law but also the findings of fact by the TC. 3. 4. Where the orders complained of were found to be completely null and void. Where appeal was not considered as the appropriate remedy.

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d. Failure to specify appellate court Failure of appellant to specify in his notice of appeal the court to which the appeal is being made is not fatal. [RA 296] e. Erroneous choice / mode of appeal  In the case of People v. Resuello (1969), the contention of the adverse party that the ordinary appeal filed by appellant shall be dismissed because the proper remedy is petition for review on certiorari (only questions of law were involved) was rejected.  The SC said that in cases similarly situated, and as long as the steps formally required for the perfection of an appeal were taken in due time, appeal may be given due course, without prejudice to requiring the appellant to file the necessary petition for review on certiorari which is also a form of appeal. f. Review of CA decisions  The procedure for the review by the SC of CA decisions on criminal shall be the same as in civil cases. [Rule 125, Sec. 2]  General rule: The SC‘s appellate jurisdiction in cases brought to it from the CA is limited to reviewing and revising the errors of law incurred by the latter. - The CA‘s findings of fact are final. - If an appeal in the SC involves questions of facts, the SC has no jurisdiction and should dismiss appeal. [Guico v. Mayuga (1963)] - Exception: [Vargas v. CA; Napolis v. CA (1972)] o When the conclusion is a finding founded entirely on speculations/surmises/conjectures; o When the inference made is manifestly mistaken/absurd/impossible; o When there is GAD; o When the judgment is based on a misapprehension of facts; o When the findings of facts are conflicting; o When the CA, in making its findings, went beyond the issues of the case and the same are contrary to the admissions of both appellant and appellee. g. Decisions if opinion is equally divided [Rule 125, Sec. 3]  When the SC en banc is equally divided in opinion or the necessary majority cannot be had on WON to acquit the appellant, the case shall again be deliberated upon. - If no decision is reached after redeliberation, the lower court‘s judgment of conviction shall be reversed and the accused is acquitted.  If case is decided by a division of the SC whose members are equally divided, the case shall be heard and decided by the SC en banc.

iii. Petition for review on certiorari  When available: - When constitutionality/validity of any treaty, executive agreement, law, ordinance or executive order or regulation is in question. o When validity of law is questioned by an accused convicted under it by the TC, the SC cannot review the evidence or pass upon any other question of law which may appear on the record, but will only confine itself to the question of the in/validity of that law. [Trinidad v. Sweeney (1904)] - When the jurisdiction of any inferior court is in issue. - When only an error or question of law is involved. - On decisions of the CA and the Sandiganbayan. o As a rule, review here is limited to errors of law.  General rule: Certiorari is used to correct only errors of jurisdiction and not errors of judgment of an inferior court. For errors of judgment, ordinary appeal is available. Exception: Cases where certiorari is granted despite existence of the remedy of appeal: 1. Where public welfare and advancement of public policy so dictate. 2. Where the broader interests of justice so require.

REMEDIAL LAW REVIEWER
h. Constitutional provisions on SC composition [Art. 8, Sec. 4, Consti]  SC Composition: 1 Chief Justice + 14 Associate Justices.  SC may sit en banc or (in its discretion) in divisions of 3, 5 or 7 members.  No doctrine or principle of law laid down by the SC in a decision rendered en banc or in division may be modified/reversed. acquittal, applies even though accused did not raise question of jeopardy. [People v. Ferrer (1956)]

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XV.

SEARCH AND SEIZURE

4. Effect of appeal by any of several accused [Rule 122, Sec. 11]
 General rule: An appeal taken by one or more of several accused shall not affect those who did not appeal. - As to the appealing party, the execution of judgment appealed from is stayed upon the perfection of the appeal. - As to the co-accused who did not appeal, the judgment of the TC insofar as it relates to him becomes final and the appellate court has no power to interfere with it. [Salvatierra v. CA (1996)] Exception: Insofar as the judgment of the appellate court is favorable and applicable to those who did not appeal or who withdrew his appeal. [People v. Escano]  The appeal of the offended party from the civil aspect shall not affect the criminal aspect of the judgment or order appealed from.

1. Nature of search warrant 2. Distinguish from warrant of arrest 3. Application for search warrant, where filed 4. Probable Cause 5. Personal examination by judge of the applicant and witnesses 6. Particularity of place to be searched and things to be seized 7. Personal property to be seized 8. Exceptions to search warrant requirement a. Search incident to lawful arrest b. Consented search c. Search of moving vehicle d. Checkpoints; body checks in airport e. Plain view situation f. Stop and frisk situation g. Enforcement of custom laws 9. Remedies from unlawful search and seizure

1. Nature of search warrant
Concept
Definition It is an order in writing; issued in the name of the People of the Philippines; signed by a judge; and directed to a peace officer, commanding him to search for personal property described in the warrant and bring it before the court. (Rule 126, Sec. 1) If it is without the judge‘s signature: it is fatally defective. Nature of a Search Warrant A search warrant (SW) is in the nature of a criminal process akin to a writ of discovery, employed by the state to procure relevant evidence of a crime. [Malaloan v. CA (1994)]      A search warrant is in the nature of a criminal process, and may be invoked only in furtherance of public prosecutions; Search warrants have no relation to civil process or trials; and They are not available to individuals in the course of civil proceedings; It is not for the maintenance of any mere private right; It is interlocutory in character – it leaves something more to be done, which is the determination of the guilt of the accused.

5. Grounds for dismissal of appeal
When appeal by the people will not lie  The People/State cannot appeal when it will put the accused in double jeopardy. The constitutional mandate against double jeopardy prohibits not only a subsequent prosecution in a new and independent cause but extends also to appeal in the same case by the prosecution after jeopardy had attached. [Republic v. CA]  The prosecution cannot appeal from a judgment of acquittal - Rationale: A verdict of that nature is immediately final and to try on the merits, even in an appellate court, places the accused in double jeopardy. [Central Bank v. CA (1989)]  Dismissal of case upon filing of demurrer by the accused was held to be final even though based on erroneous interpretation of the law. Hence, an appeal therefrom by the prosecution would constitute double jeopardy. [US v. Kilayko (1916)]  Where the TC has jurisdiction but mistakenly dismisses the complaint/information on the ground of lack of it, the order of dismissal is unappealable. [People v. Duran (1960)]  An appeal by the People will not lie if the purpose is to correct the penalty imposed by the trial court or to include in a judgment a penalty erroneously omitted. [People v. Paet (1956)]  The preclusion against appeal by the State from judgments or final orders having the effect of

REMEDIAL LAW REVIEWER
Constitutional Safeguard Search and Seizures  against Unreasonable character of the articles procured [Rodriguez v. Villamiel (1937)] Constitutional Protection is Against Officers’ Acts, Not Private Persons Public

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Rule 126 is an implementation of Art. III, Sec. 2 of the 1987 Constitution. - The right of the people to be secure in their persons / houses / papers / effects against unreasonable searches and seizures of whatever nature or for any purpose shall not be violated. - No search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after the examination under oath/affirmation of the complaint and the witness he may produce, and particularly describing the place to be searched, and the things/persons to be seized. (Art. III, Sec. 2, 1987 Const.) - The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety/order requires otherwise, as prescribed by law. (Art. III, Sec. 3, 1987 Const.) Exclusionary rule: Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding. (Art. III, Sec. 3, Par. 2, 1987 Const.) Doctrine of attenuation: Despite the illegality in obtaining evidence, such evidence may be admissible if the connection between the evidence and the illegal method is sufficiently remote or attenuated so as to dissipitate the taint [Wong Sun v. US (1963)] Rationale - What is sought to be guarded is man‘s prerogative to choose who is allowed entry to his residence. His privacy must not be disturbed by the government, except in cases of overriding social need, and then only under the stringent procedural safeguards. [Villanueva v. Querubin (1972)] - A man‘s house is his castle. However, he may not use his castle as a citadel for aggression against his neighbors, nor can he within its walls create such disorders as to affect their peace. [US v. Vallejo (1908)] This constitutional guarantee is NOT a blanket prohibition against ALL searches and seizures. It operates only against ―unreasonable‖ searches and seizures. What constitutes a reasonable or unreasonable search or seizure in any particular case is purely a judicial question, determinable from a consideration of the circumstances involved, including the purpose of the search, the presence or absence of probable cause, the manner in which the search and seizure was made, the place or thing searched, and the

People v. Marti (1991); also People v. Bongcarawan (2002): Search and seizure clauses are restraints upon the government and its agents, not upon private individuals. In the case at bar, the evidence was primarily discovered by a private person, acting in a private capacity and without the intervention and participation of state authorities. The private person made an inspection as part of a reasonable standard operating procedure / a precautionary measure before delivery of packages to the Bureau of Customs. The mere presence of the NBI agents did not convert the reasonable search into a warrantless search and seizure proscribed by the constitution. However, if the private person is acting upon orders of government officials, the principle of agency applies, because in fact such private person is acting in the interest of government, and is therefore subject to the prohibition against unreasonable searches and seizures. General rule: Search of property is unreasonable unless it has been authorized by a valid search warrant. Exceptions: Valid warrantless searches.

2. Distinguish from warrant of arrest
Search Warrant Will be issued only upon probable cause in connection with one specific offense to be determined by the judge or such other responsible officers authorized by law. Examination under oath or affirmation of the complaint and the witnesses he may produce. It must particularly describe the place to be searched and the things to be seized. Generally served in the day time, unless there be a direction in the warrant that it may be served at any time of the day or night. Valid for ten (10) days. Warrant of Arrest The witness must be examined personally by the judge.

Examination under oath.

must

be

Examination must be reduced to writing in the form of searching questions and answers. May be made at any time of the day or night.

Does not expire terminal life).

(No

REMEDIAL LAW REVIEWER

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3. Application for search warrant, where filed
Application
Where filed (Rule 126, Sec. 2)  Any court within whose territorial jurisdiction the crime was committed.  For compelling reasons stated in the application: - If the place of the commission of the crime is known, any court within the judicial region where the crime was committed. - Any court within the judicial region where the warrant shall be enforced.  However, if the criminal action has already been filed, the application shall only be made in the court where the criminal action is pending. Exception: Malaloan v. CA (1994) subject to Rule 126, Sec. 1  If a case has not yet been filed, it may be filed in a court with a territorial jurisdiction other than that where the illegal articles sought to be seized are located.  This is aside from the consideration that a criminal action may be filed in different venues under the rules for continuing crimes, or where different trial courts have concurrent original jurisdiction over the same criminal offense.  The ruling may be applicable: - When the crime is found to have been committed in a particular place WITHIN the judicial region. - Where a particular court, by reason of its territorial area, has jurisdiction. - And where prosecutor, who filed the complaint or information in said court, has territorial jurisdiction different from the court within the same judicial region which actually issued the warrant. Search guidelines under Circular No. 19, s. 1987  All applications for search warrants relating to violations of: - The Anti-Subversion Act; - Crimes against public order as defined in the RPC; - Illegal possession of firearms and/or ammunition; and - Violations of the Dangerous Drugs Act of 1972, as amended, shall no longer be raffled and shall immediately be taken cognizance of and acted upon by the Executive Judge of the Regional Trial Court, Metropolitan Trial Court, and Municipal Trial Court under whose jurisdiction the place to be searched is located.  In the absence of the Executive Judge, the ViceExecutive Judge shall take cognizance of and personally act on the same. In the absence of the Executive Judge or Vice-Executive Judge, the application may be taken cognizance of and acted upon by any judge of the Court where the application is filed.  Applications filed after office hours, during Saturdays, Sundays and holidays, shall likewise 

be taken cognizance of and acted upon by any judge of the court having jurisdiction of the place to be searched, but in such cases the applicant shall certify and state the facts under oath, to the satisfaction of the judge, and its issuance is urgent. Any judge acting on such application shall immediately and without delay personally conduct the examination of the applicant and his witnesses to prevent the possible leakage of information. He shall observe the procedures, safeguards, and guidelines for the issuance of search warrants provided for in this Court's Administrative Circular No. 13, dated October 1, 1985.

A.M. No. 99-10-09-SC (Resolution Clarifying the Guidelines on the Application for and Enforceability of Search Warrants)  The following are authorized to act on all applications for search warrants involving heinous crimes, illegal gambling, dangerous drugs and illegal possession of firearms: The Executive Judge and Vice Executive Judges of the RTC of Manila and Quezon City filed by the PNP, NBI, the Presidential Anti-Organized Crime Task Force (PAOC-TF) and the Reaction Against Crime Task Force (REACT-TF) with the RTC of Manila and QC.  The applications shall be personally endorsed by the Heads of said agencies, for the search of places to be particularly described therein, and the seizure of property or things as prescribed in the Rules of Court, and to issue the warrants of arrest, if justified, which may be served in the places outside the territorial jurisdiction of said courts.  The authorized judges shall keep a special docket book listing the details of the applications and the results of the searches and seizures made pursuant to the warrants issued.  Although A.M. No. 99-10-09-SC provides a personal endorsement of the application by the ―Heads‖ of the agencies mentioned, it was held that nothing in this rule prohibits such heads from delegating the ministerial duty of endorsing the application for search warrants to their assistant heads, as long as it is not inconsistent with law (Admin. Code). [Marimla v. People (2009)] Substance of application Requisites for issuing a search warrant A SW shall not issue except: a. Upon probable cause in connection with one specific offense; b. To be determined personally by the judge; c. After examination under oath or affirmation of the complainant and the witness he may produce; d. Particularly describing the place to be searched and the things to be seized which may be anywhere in the Philippines. (Rule 126, Sec. 4)  Absence of the requisites will cause the nullification of the SW.

REMEDIAL LAW REVIEWER
 If the judge is satisfied of the existence of facts upon which the application is based or that there is probable cause (PC) to believe that they exist, he shall issue the SW, which must be substantially in the form prescribed by the Rules. (Rule 126, Sec. 6) In issuing or not issuing SWs, judges act according to the evidence presented to them, and orders of the judge on the matter are not final and do not constitute res judicata. [Cruz v. Dinglasan (1949)] The denial of a search warrant on the insufficiency of the affidavit and deposition is not a bar to further proceedings, nor is the issuance of the warrant and its subsequent discharge res judicata as to the right to the warrant. [Cruz, supra] Courts have declared invalid SWs that did not comply with the requisites found in the 1987 Const. (and restated in the rules). [Lim v. de Leon (1975)] A court‘s disregard for the requirements constitutes grave abuse of discretion which may be remedied by a petition for certiorari under Rule 65.

Service of search warrant
Right to break door or window to effect search  The officer, if refused admittance to the place of directed search after giving notice of his purpose and authority, may break open any outer or inner door or window of a house or any part of a house or anything therein to execute the warrant to liberate himself or any person lawfully aiding him when unlawfully detained therein. (Rule 126, Sec. 7) Knock and announce principle: Generally, officers executing a search must do the following acts: - Announce their presence; - Identify themselves to the accused and to the persons who rightfully have possession of the premises to be searched; - Show to them the search warrant; and - Explain the warrant in a language or dialect known and understood by them. When unannounced intrusion is permissible: - Person in the premises refuses to open it upon demand; - Person in the premises already knew of the identity and authority of the officers; - When the officers have an honest belief that there is an imminent danger to life and limb; - When those in the premises, aware of the presence of someone outside, are then engaged in activities which justifies the officers to believe that an escape or the destruction of evidence is imminent.

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Issuance and form of search warrant  It is an order in writing; issued in the name of the People of the Philippines; signed by a judge; and directed to a peace officer, commanding him to search for personal property described in the warrant and bring it before the court. (Rule 126, Sec. 1)  A search warrant shall not issue except upon probable cause in connection with one specific offense to be determined personally by the judge after examination under oath or affirmation of the complainant and the witness he may produce, and particularly describing the place to be searched and the things to be seized which may be anywhere in the Philippines. (Rule 126, Sec. 4)  If the judge is satisfied of the existence of facts upon which the application is based or that there is probable cause to believe that they exist, he shall issue the warrant, which must be substantially in the form prescribed by these Rules. (Rule 126, Sec. 6)  SW must be in writing and contain: - Name of person against whom it is directed; - Offense for which it was issued; - The place to be searched and - The description of the specific things to be seized; - A directive to law enforcement officers to search and seize; - And for them to bring in court the things seized; - Signature of the judge issuing it. Validity of search warrant Period of validity: 10 days from its date. Thereafter, it shall be void. (Rule 126, Sec. 10) Lifetime of SW ends when a return has already been made. [Mustang Lumber v. CA (1996)]

Search of house, room, or premise, to be made in presence of two witnesses No search of a house, room, or any other premises shall be made except in the presence of the lawful occupant thereof or any member of his family or in the absence of the latter, two witnesses of sufficient age and discretion residing in the same locality. (Rule 126, Sec. 8) Time of making search  The warrant must direct that it be served in the day time, unless the affidavit asserts that the property is on the person or in the place ordered to be searched, in which case a direction may be inserted that it be served at any time of the day or night. (Rule 126, Sec. 9)  A SW violates Rule 126, Sec. 9 if the time for making the search is left blank, thus enabling the officers to conduct the search in the evening of the appointed search, causing untold conveniences to the person searched. [Asian Surety v. Herrera (1973)]  Where a search is to be made during the night time, the authority for executing the same at that time should appear in the directive on the face of the SW. [Asian Surety, supra]

REMEDIAL LAW REVIEWER Post-service Comprehensive Dangerous Drugs Act of 2002. the judge shall ascertain whether Sec.M.  Ten (10) days after issuance of the search warrant. whenever they are on official leave of absence or are not physically present in the station. The Executive Judges and Vice-Executive Judges concerned shall issue the warrants. the Vice-Executive Judges of the RTCs of Manila and Quezon City shall have authority to act on applications filed by the National Bureau of Investigation (NBI). and included herein by the Supreme Court. .  Goods seized remain under the court‘s custody and control until the institution of the appropriate criminal action with the proper court.  If the return has been made. CA (2003)] 4. illegal possession of firearms and ammunitions as well as violations of the 5. Delivery of property and inventory thereof to court (Rule 126.) 66 Receipt of property seized How receipt is given (Rule 126. – The Executive Judges and. Sec. and other actions of the judge. 11) If lawful The officer seizing the property under occupant the SW must give a detailed receipt for was the same to the lawful occupant of the present premises in whose presence the search and seizure were made. the Anti-Money Laundering Act of 2001. It is not determined by a fixed formula but is resolved according to the facts of each case. The required procedure involves the following:  The examination must be personally conducted by the judge. RE: REQUEST OF POLICE DIRECTOR GENERAL AVELINO I. the result. 12. Probable Cause Generally  Issued upon probable cause Probable cause: Such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed. 4. Sec. leave a receipt in the place in which he found the seized property. Probable cause justifying warrantless arrest and warrantless search This implies probability of guilt and requires more than bare suspicion but less than evidence which would justify conviction. . .  A violation of this section shall constitute contempt of court. [Roan v. 12)  The officer must forthwith deliver the property seized to the judge who issued the warrant. The applications shall be endorsed by the heads of such agencies or their respective duly authorized officials and shall particularly describe therein the places to be searched and/or the property or things to be seized as prescribed in the Rules of Court. Issuance of search warrants in special criminal cases by the RTCs of Manila and Quezon City. Gonzales (1986)] .The probable cause must refer only to one specific offense. and that objects sought in connection with the offense are in the place sought to be searched. RAZON FOR AUTHORITY TO DELEGATE THE ENDORSEMENT OF APPLICATION FOR SEARCH WARRANT A. The judge shall see to it that delivery has been complied with. 11 of Rule 126 has been complied with and shall require that the property seized be delivered to him.  The return on the search warrant shall be filed and kept by the custodian of the log book on search warrants who shall enter therein the date of the return. if justified. which may be served outside the territorial jurisdiction of the said courts. the details of the applications and the results of the searches and seizures made pursuant to the warrants issued. If he was The officer seizing the property under not the SW must. the Intellectual Property Code. together with a true inventory thereof duly verified under oath. the issuing judge shall ascertain if the return has been made. and other relevant laws that may hereafter be enacted by Congress. in the presence of at present least 2 witnesses of sufficient age and discretion residing in the same locality. No. The Executive Judges and the authorized Judges shall keep a special docket book listing names of Judges to whom the applications are assigned. Personal examination by judge of the applicant and witnesses Aside from the requirements mandated by Rule 126. Sec. (Emphasis supplied. the rule requires the judge to comply with a specific procedure in the conduct of the examination of the complainant and the witnesses he may produce. 08-4-4-SC SEC. shall summon the person to whom the warrant was issued and require him to explain why no return was made. illegal gambling.This probable cause must be shown to be within the personal knowledge of the complainant or the witnesses he may produce and not based on mere hearsay.A probable cause to arrest does not necessarily involve a probable cause to search and vice-versa. for search warrants involving heinous crimes. This Section shall be an exception to Section 2 of Rule 126 of the Rules of Court. the Philippine National Police (PNP) and the Anti-Crime Task Force (ACTAF). the Tariff and Customs Code. as amended. [Tenorio v. and if none.

 Although there is no hard-and-fast rule governing how a judge should conduct his investigation. [Burgos. [Doce v. shall be attached to the record. as long as the application contains the correct address.In the reading of the transcribed notes of the deposition of the applicant and his witnesses taken by the clerk of court. Thus. as appearing in the written sworn statements. Particularity of place to searched and things to be seized be Instances of invalid examination  The complainant‘s application for SW and the witness‘ printed-form deposition were subscribed and sworn to before the judge. In Luna (regarding warrants of arrests. . perfunctory or pro forma. and attach the same to the record. CFI (1937)] . [People v. . as long as they are subscribed and sworn to before the judge. [Yao v. Veloso (1925)] . general.Mere affidavits of the complainant or his witnesses are not sufficient. [Bache v.The executing officer‘s prior knowledge as to the place intended in the SW is relevant. the application must be supported by substantial evidence: that the items sought are in fact seizable by virtue of being connected with criminal activity and the items will be found in the place to be searched. Plaza (1968)]  In search cases. [Burgos v. The participation of the judge was limited to Warrant issued must particularly describe the place to be searched and the persons to be seized  DESCRIPTION OF PLACE Description of place to be searched is sufficient if the officer with the SW can. . People (2007)] Judge must examine under oath or affirmation the complainant and the witness he may produce A warrant not based on personal knowledge is void. Ruiz (1971)] . The statements must be in writing and under oath.REMEDIAL LAW REVIEWER     The examination must be in the form of searching questions and answers.This would seem especially true where the executing officer is the affiant on whose affidavit the SW had issued. The judge must not simply rehash the contents of the affidavit but must make his own inquiry on the intent and justification of the application. [Bache. citing Roan] Instances of valid examination The validity of the SW and the affidavits is not impaired by the fact that they are pre-typewritten by law enforcement agents. the judge was not able to observe the deponent‘s demeanor nor to propound initial and follow-up questions. peripheral. whether said answers were his. because the purpose thereof is to convince the committing magistrate of the existence of PC. CFI (1968)] 67 Determined by judge himself SEARCHING QUESTIONS AND ANSWERS:  Such questions which have the tendency to show the commission of a crime and the perpetrator thereof.An apparent typographical error will not necessarily invalidate the SW. 6.  A search warrant issued by a judge who did not ask searching questions but only leading ones and in a general manner is invalid. supra] Where the judge issuing the SW acted solely on the basis of the affidavits of the complainant and his witnesses. [Luna v.  Examination under oath: OATH: Includes any form of attestation by which a party signifies that he is bound in conscience to perform an act faithfully and truthfully. but applicable by analogy). Judge Dayrit (1989). not merely routinary.The oath required must refer to the truth of facts within the personal knowledge of the petitioner or his witnesses. the answer to which could possibly be the basis for determining WON there was PC. The examining judge has to take depositions in writing of the complaint or his witnesses. 5)  listening to the stenographer‘s reading of her notes. [Prudente v. which were sworn to before another judge. ascertain and identify the place intended. with reasonable efforts. [Alvarez v. The complainant and the witnesses shall be examined on those facts personally known to them. there being no prohibition to the contrary. and The sworn statements of the complainant and the witnesses. and whether said answers were true.The executing officer may look to the affidavit in the official court file to resolve an ambiguity in the SW as to the place to be searched. it cannot be said that the judge personally conducted the examination required. and when he knows that the judge who issued the SW intended the building described in the affidavit. supra] Particularity Search warrant must be for only one specific offense. (Rule 126. together with the affidavits submitted. Sec. which the judge read again to the witnesses. to which the witnesses replied in the affirmative. and administering the oath to complainant and his witnesses. without personally asking the witnesses questions. but the latter did not ask either of the 2 any questions. Chief of Staff (1984)]  TEST OF PARTICULARITY . it is axiomatic that the examination must be probing and exhaustive. the Court said that the law is complied with where the judge adopts as his own personal examination the questions asked by the police investigator. .

 Personal property used or intended to be used as the means of committing an offense. [Riano (2011)] What may be seized (Rule 126. supra] Purpose: To limit the things to be seized to those (and only those) particularly described in the SW. a description of things to be seized as ―subversive documents. It is sufficient that the person against whom the warrant is directed has control of possession of the property sought to be seized. Castro (1985)] And where the language used is too allembracing as to include all the paraphernalia of petitioner in the operation of its business. the SW is void. No. the person arrested may be searched for (Rule 126. [Burgos. Rubio (1932)]  The general description of the documents listed in the SW does not render the SW void if the SW is severable. propaganda materials. the SW was declared valid despite lack of mention of specific offense because the application stated that the owner of the grocery store against whom the warrant was directed. [RPC] Otherwise. Diokno (1967)] Likewise. 06-11-5-SC (October 2. Sec.  SWs authorizing the seizure of books of accounts and records ―showing all the business transactions‖ of certain persons. [Dizon v. either motu proprio or on application of any person who has a legal interest in the matter in litigation. which are closely allied articles as the punishable acts defined in one of them can be considered as including or is necessarily included in the other. What is important is that the application for SW states the specific offense deemed to have been violated by the person against whom the search warrant is addressed. Pabalan (1976)] Exception: In People v. Necessarily then. Such order shall issue after due hearing and notice to the parties. their description must be rather general. 2007) The appropriate court may. Otherwise. BIR (2001)] 7. FAs. not real property. the search and seizure of the items in the implementation of such SW is illegal and the items seized are inadmissible in evidence. [Uy Kheytin v. [Burgos v. Search incidental to lawful arrest . Hon. printing paraphernalia and all other subversive materials‖ hardly provided a definite guideline to the executing officers. leaving the officers no discretion regarding what articles they shall seize. 4) In a search incidental to an arrest even WITHOUT a warrant. Things to be seized must be particularly described  The SW must not suffer from generality. for this would mean that no SW could issue. [Columbia Pictures v. [Uy v.  Definite provisions of the allegedly violated laws must be referred to. and those items not particularly described may be cut off without destroying the whole SW. 8. it is not required that a technical description be given. at any time.  A SW issued for an ―illegal traffic of narcotics and contraband‖ is fatally defective. by the nature of the goods to be seized.REMEDIAL LAW REVIEWER  General rule: The offense alleged must be specific as to enable the judge to find the existence of a probable cause. [Stonehill v. more than one offense could arise from the activity designated as illegal traffic of narcotics and contraband.  No SW shall issue for more than one specific offense. order a DNA testing. had in his possession unadulterated stocks in violation of the provisions of Art. It is sufficient that the person against whom SW is directed has control/possession of the property. 188 and 199 [RPC].  Personal property stolen/embezzled and other proceeds/fruits of the offense. SW does not issue for seizure of immovable properties. Exceptions requirement to search warrant a.  Scatter-shot warrant: One which allows search for more than one specific offense and is null and void for being violative of the Constitution. Personal property to be seized The property subject of a search warrant is personal property. are general warrants prohibited by law.)  Personal property only. The latter is a generic term covering all goods exported from or imported in the country contrary to applicable statutes. [Castro v. (Art. General search warrants are not allowed. 3)  Personal property subject of the offense. (Sec. Chief of Staff (1984)] Rules on DNA Evidence A. 2 of the 1987 Const.  The fact that the SW does not specify the specific offense does not render it a general warrant. Flores (1993)] 68  Exceptions:  Where. III. Sec. to the end that unreasonable searches and seizures may not be made and that abuses may not be committed. 13)  Dangerous weapons.  Ownership of the property seized is immaterial. regardless of whether the transactions were legal or illegal.M. the SW is constitutionally objectionable. The rule does not require that the property to be seized should be owned by the person against whom the search warrant is directed. Marcos (1990). [People v. Villareal (1920)] General rule: Things to be seized must be described particularly.  Anything which may have been used or constitute proof in the commission of the offense. Sec.

these searches would be limited to visual inspection and the vehicles or their occupants cannot be subjected to physical or body searches. The search was held to be illegal. there is no abuse of the consent to a search. Nuevas (2007)] When is consented search reasonable: Only if kept within the bounds of the actual consent. Matillano (2004)] but must be shown by clear and convincing evidence. If the arrest is illegal. The extent and reasonableness of the search must be decided on its own facts and circumstances. specific. generally. that the necessary consent was obtained and that it was freely and voluntarily given. Musa (1997)] . the US SC said that there is no justification for searching through all of the desks drawers or other closed and concealed areas in the room where arrest was made. Arca (1975)] b. but is merely a demonstration of regard for the supremacy of the law. where there is a nexus between the crime for which the evidence is sought and the item that is seized. [Riano (2011)]  The rule assumes that the arrest is legal. Paño (1985). [Nolasco v. the place or premises where the arrest was made can also be searched without a search warrant. it must first appear that (1) the right exists. either actual or constructive. Nevertheless. 69     c. it must be unequivocal. by clear and positive testimony.The US SC said that a search for a stolen TV set cannot extend to search of an individual‘s other papers and documents. . [People v. of the existence of such right. Consented Search Consented warrantless search Rationale: The right to privacy may be waived. but as an incident of an arrest. [Valdez v. . Hon. 413. Sec. [Alvero v. On the other hand. . that is. a search substantially contemporaneous with an arrest can precede the arrest at if the police have probable cause to make the arrest at the outset of the search. [People v. (Rule 126. Consent to a search is not to be lightly inferred. both search and arrest are illegal. Dizon (1946)] . . (2) the person involved had knowledge. People (2007)] Jurisprudence requires that in case of consented searches or waiver of the constitutional guarantee against obtrusive searches. 504 of a hotel and a warrantless search was conducted in Rm.Officers may not use a person‘s limited consent to get inside his home and conduct a general search. and (3) the said person had an actual intention to relinquish the right.The arrest must precede the search. whatever is found in his possession/control may be seized and used in evidence against him. [People v. [People v. and intelligently given. he is precluded from later complaining thereof. A SW was needed. [Roldan v. the things seized are inadmissible as evidence. Sec. .  The search and seizure without warrant of vessel and aircrafts for violation of customs laws has been a traditional exception to the requirement of SW. It is the State which has the burden of proving. [Lui v. then the search is illegal and as a result.Where a search is first undertaken. the accused were lawfully arrested in Rm. California (1969). the process cannot be reversed.A person‘s consent may limit the extent/scope of a warrantless search in the same way that the specifications of a warrant limit the search pursuant thereto. Nuevas (2007)] When one voluntarily submits to a search or consents to have it made of his person/premises. Search of moving vehicle Search of moving vehicle Rationale: Peace officers may lawfully conduct searches of moving vehicles without need of a warrant as it is impracticable to secure a judicial warrant before searching a vehicle since it can be quickly moved out of the locality or jurisdiction in which the warrant may be sought. .REMEDIAL LAW REVIEWER Warrantless searches allowed as an incident of lawful arrest  Generally: Rule 126. as illustrated by jurisprudence  A person lawfully arrested may be searched for (1) dangerous weapons or anything which may have been (2) used or (3) constitute proof in the commission of an offense without a search warrant.] . thus the search was likewise unlawful. Leangsiri (1996). Aruta (1998)]  The search is confined to his person. Tuazon (2007)]  However.In People v.When one is legally arrested for an offense. [People v. and an arrest was effected based on evidence produced by such search. uncontaminated by any duress or coercion.An officer making an arrest may take from the person arrested any money or property found upon his person which was used in the commission of the crime or was the fruit of the crime or which might furnish the prisoner with the means of committing violence or of escaping or which may be used as evidence in the trial of the case. 13) . Kagui Malasugui (1936)] A peaceful submission to a search or seizure is not a consent or an invitation thereto. Note: The MR was partially granted in 1987 and held that the arrest was unlawful. except where there is probable cause to believe that the occupant is a law offender or the contents of the vehicles are instruments or proceeds of some criminal offense.In Chimel v. [People v. 13.  The consent to a warrantless search must be voluntary.

Occupants not subjected to a physical search. [Harris v. [Caroll v. [Malacat v. mere suspicion/hunch will not validate a ―stop and frisk. Vinecario (2004)]  They are valid as long as they are warranted by the exigencies of public order and conducted in a way least intrusive to motorists. its incriminating nature must first be apparent. CA (2002)] f. . and where nothing in the initial stage of the encounter serves to dispel his reasonable fear for his own or others’ safety. the vehicle‘s inherent mobility reduces expectation of privacy especially when its transit in public thoroughfares furnishes a highly reasonable suspicion amounting to probable cause that the occupant committed a criminal activity.It may not be used to launch unbridled searches and indiscriminate seizures.A prior valid intrusion i. . may be seized and may be introduced in evidence.‖ . Plain view justified mere seizure of evidence without further search. . [Riano (2011)] Evidence must be immediately apparently illegal (i.e. People v.Evidence was inadvertently discovered by the police who have a right to be where they are. Salanguit (2001)] .e. CA (1997)] Dual purpose: (1) The general interest of effective crime prevention and detection. or . Check points. Thus.REMEDIAL LAW REVIEWER  Nonetheless. but nonetheless inadvertently comes across an incriminating object. body checks in airport Searches conducted in checkpoints [People v. in the vehicle to be searched. US (1924)] Where a vehicle is stopped and subjected to an extensive search. Valdez (1999). the warrantless search is valid only as long as the officers conducting the search have reasonable or probable cause to believe before the search that they will find the instrumentality/evidence pertaining to a crime.Routine check is conducted in a fixed area [People v. in all cases falling under this category. Ohio (1968)]  Under this theory.Where the officer merely draws aside the curtain of a vacant vehicle which is parked on the public fair grounds. PC is not required to conduct a ―stop and frisk‖ but..Inspection is limited to usual search or inspection. [Esquillo v. there must be a showing of a PC of a violation of the law. [People v. an item falling into their plain view may properly be seized even if the item is not connected with their purpose in entering.Reasonable belief based on genuine reason and in the light of the officer‘s experience and the surrounding circumstances. and that a person with whom he is dealing may be armed and presently dangerous. Even if an object is in plain view. he is entitled for the protection of himself and others in the area to conduct a carefully limited search of outer clothing of such persons in an attempt to discover weapons which might be used to assault him. CFI (1980)] Highly regulated by the government.Does not extend to a general exploratory search made solely to find evidence of defendant‘s guilt.e. inspection of the vehicle is limited to a visual search).  The vehicle is neither searched nor its occupants subjected to a body search (i. Plain view situation Plain view doctrine (2008 Bar) Rationale: Authorities do not consider a mere observation of what is in plain view.Officer simply looks into a vehicle.  Routine inspections are not regarded as violative of an individual‘s right against unreasonable search: .Officer flashes a light therein without opening car‘s doors. nevertheless. . Musa (1993)] . objects falling in the plain view of a police officer who has a right to be in the position to have that view are not products of a search.    d. Stop and Frisk situation STOP AND FRISK: A limited protective search of outer clothing for weapons.  The doctrine is usually applied where a police officer is not searching for evidence against the accused. based on the valid warrantless arrest in which the police are legally present in the pursuit of their official duties. which leads him reasonably to conclude in the light of his experience that criminal activity may be afoot. . . Where police officers are on the premises pursuant to a valid consent to a search. a search. US (1968)] Requisites (PIA): [People v. . e.Test: Genuine reason . [Terry v. 70  Limitations: [People v. People (2010)]  Where a police officer observes unusual conduct. drug paraphernalia).  Where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiry. and (2) The more pressing interest of safety and self-preservation of the police officer to permit him to take steps to assure himself that the person with whom he deals with is not armed with a deadly weapon that could be used against him.. that a crime has either taken place or is about to take place and the person to be stopped is armed and dangerous. before it can be seized without a SW.

Matters of defense are to be raised in the criminal action. Remedies from unlawful search and seizure Who may avail of remedies  Only the party whose rights have been impaired thereby. enclosure. It was company    . the surveillance team before the raid was fired upon by the people inside. when a corporation‘s documents were seized. Sy Chi Siong (1989)]  File a motion to return seized things. and the raid of the office/building was precipitated by an intelligence report that said office was being used as HQ by the RAM. [People v. . (2007)]  Hence. without incurring any criminal liability.This remedy is employed if search is not yet conducted. If he does so. pass through or search any land. .Absence of prior surveillance.REMEDIAL LAW REVIEWER Based on ―specific and articulable facts‖ and not merely upon the officer‘s bare suspicion or hunch.Existence or non-existence of probable cause at the time of issuance of the SW.The person to be searched may resist the search and employ any means necessary to prevent it. the motion may be filed in either court.Compliance with procedural and substantial requisites. . There was urgency and exigency that warrant was lawfully dispensed with. [People v. much less a lengthy one. A genuine reason must exist. . File a Motion to Quash the illegal SW. RPC (Search warrants maliciously obtained and abuse in the service of those legally obtained). [Stonehill v.Without a SW.Entrapment: Employment of such ways and means for the purpose of trapping or capturing a lawbreaker . [Pagkalinawan v. Marti (1999)] . [People v. .Extent of participation by NBI agents is merely CONFIRMATORY and NOT EXPLORATORY 71 g.A form of entrapment legally employed by peace officers as an effective way of apprehending drug dealers in committing an offense. General rule: The Tariff and Customs Code does not require a warrant for such searches. the officer cannot insist on entering a citizen‘s premises.This is the remedy used if the search was already h.  Inspect/search/examine any vessel/aircraft and any trunk/package/box/envelope or any person on board. [General Travel Services v. Diokno (1967). CA (1999)] What may be raised in the MTQ: . 9. Other exceptions  Exigent and Emergency Circumstances Example: There was a prevailing general chaos and disorder because of an ongoing coup. warehouse. or stop and examine any vehicle/beast/person suspected of holding/conveying any dutiable/prohibited article introduced into the Philippines contrary to law. 129. David (1966)] The Tariff Code authorizes customs officers to:  Enter. de Gracia (1994)] Buy-bust Operation: No need for SW (or warrant of arrest) because the accused is caught in flagrante delicto. Constitutional rights cannot be invoked when there is no government interference. Exception: In the search of a dwelling house. [DOH v. [People v.  SOP. SW is required. the objection to an unlawful search and seizure is purely personal and cannot be availed of by third parties. he becomes an ordinary intruder. The raiding team had no opportunity to apply for warrant as the court then was closed. Also. to warrant the belief that the person has weapons concealed about him. Pryce Gases. or test buy does not affect the legality of the buy-bust operation. Concepcion (2008)] Private Searches and ―State Expansion of Private Search‖ The evidence was obtained by a private person acting in a private capacity without state participation and intervention. Only the court that issued the SW may order revocation of SW or release of things seized. in light of the police officer‘s experience and surrounding condition. the corporate officers cannot question the legality of the search as their personalities are separate and distinct from that of the corporation. Enforcement of Custom Laws Customs search For the enforcement of customs duties and tariff laws. the Collector of Customs is authorized to effect searches and seizure. . General rule: The motion must be filed before the sala of the judge who issued it. Gomez (1967)] Exception: Where the SW is issued by one court and the criminal action based on the results of the search is afterwards filed in another court. Diokno (1967)] Remedies  Employ any means to prevent the search. . Inc. [People v. Chan Fook (1921)]  File criminal action against officer. [Stonehill v. Santos v. A public officer/employee who procures a SW without just cause is criminally liable under Art.

REMEDIAL LAW REVIEWER
conducted and goods were seized as a consequence thereof. - Where the motion will be filed follows the same rules as 2(c) above.  Motion to quash a search warrant or to suppress evidence (2005, 2007 Bar) - A motion to suppress as evidence the objects illegally taken (exclusionary rule) – any evidence obtained through unreasonable searches and seizures shall be inadmissible for any purpose in any proceeding Where to file Court where the action has been instituted. Court that issued SW. Court where the subsequent criminal action has been instituted. buyer in good faith, but said goods were taken from the purchaser with the use of a SW although the criminal case for estafa against the accused was still pending, the goods should be returned to the buyer. The buyer is entitled to possession of goods until restitution is ordered by the court in the criminal case. [Yu v. Honrado (1980)] Waiver of immunity against unreasonable searches and seizure [Pasion v. Locsin (1938)]  The constitutional immunity against unreasonable searches and seizure is a personal right that may be waived expressly/impliedly.  Waiver cannot be made just by anyone, except the person whose right is being invaded or one who is expressly authorized to do so in his behalf.  Requisites of a valid waiver: - It must appear that the right exists; - That the person involved had knowledge, (actual or constructive) of the existence of such right; - That the person had an actual intention to relinquish the right. Criminal Liability - Violation of the following: o Violation of domicile (RPC Art. 128) o SW maliciously obtained (Art. 129) o Searching domicile without witnesses (Art. 130) o Unjust interlocutory order (Art. 206) - Grounds: o Against public officer or employer:  Entering without authority; against the will; refuses to leave.  SW procured without just cause or if with just cause, exceeds his authority or uses unnecessary severity of force.  Conducting the search without the required witnesses. o Against judge  For knowingly rendering an unjust interlocutory order.  Inexcusable negligence or ignorance. Civil Liabilities - Violation of the following: o Violation of rights and liberties (Art. 32 [9], CC) o Malicious prosecution and acts referred to Art. 32. (Art. 2218, CC) - Malice or bad faith is not required - Not only official actions, but makes all persons who are responsible for the violation liable for damages [MHP Garments v. CA (1994)]

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Rule 126, Sec. 14 If criminal action has been filed If no criminal action has been instituted If no criminal action is filed and motion is first filed with the court that issued the SW, but it failed to resolve the motion and a criminal case is subsequently filed in another court

Grounds for a Motion to Quash [Bache & Co. v. Ruiz (1971)]  No personal examination by the judge.  More than one specific offense.  No particular description. Who may file  Person injured.  Person searched.  Owner of the property. An accused may file a Motion to Suppress Evidence if he is not among the persons who can file a Motion to Quash. Effect of failure to quash warrant  Where no MTQ the SW was filed in or resolved by the issuing court, the interested party may move in the court where the criminal case is pending for the suppression of the personal property seized IF the same is offered therein as evidence (REGALADO).  The MTQ a SW and Motion to Suppress Evidence are alternative, not cumulative remedies. Effects of illegal search  Illegally seized evidence may not be admitted in evidence in any proceeding. (Art. III, Sec. 2, 1987 Const.)  DISPOSITION OF ILLEGALLY SEIZED PROPERTY General rule: Goods seized by virtue of an illegal warrant must be returned. [Castro v. Pabalan (1976)] Exception: If possession of the things seized is prohibited by law, they should not be returned. o However, where the accused obtained goods from another through payment of bouncing checks and thereafter sold said goods to a

XVI. PROVISIONAL REMEDIES
1. Nature
 Provisional remedies in civil actions, insofar as they are applicable, may be availed of in

REMEDIAL LAW REVIEWER
connection with the civil action deemed instituted with the criminal action [Rule 127, Sec. 1] Where the civil action has actually been instituted, or proceeded independently of the criminal action, these provisional remedies cannot be availed of in the criminal action but may be applied for in the separate civil action (Regalado). If the civil action is suspended on account of filing of the criminal action: The court with which the civil case is filed is not thereby deprived of its authority to issue auxiliary writs that do not go into the merits of the case [Ramcar Inc vs. de Leon]. Not available when: 1. Offended party has waived the civil claim 2. Offended party has reserved the civil claim 3. Offended party has already instituted a separate civil action 4. Criminal action carries with it no civil liability Enforcement of writ Only after acquisition of jurisdiction over the person of the defendant

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2. Kinds of provisional remedies
 Reference to provisional remedies in Rule 127 is made in general terms, hence preliminary injunction, preliminary attachment, receivership, replevin or support pendent lite may be availed of. (Riano) The accused may present evidence to prove his defense and damages, if any, arising from the issuance of a provisional remedy in the case. [Rule 119, Sec. 11(b)]

Preliminary Attachment
1) When proper [Rule 127, Sec. 2] When the civil action is properly instituted in the criminal action, the offended party may have the property of the accused attached as security for the satisfaction of any judgment that may be recovered from the accused in the following cases: 1. When the accused is about to abscond from the Philippines 2. When the criminal action is based on a claim for money or property embezzled or fraudulently misapplied or converted to the use of the accused who is a public/corporate officer, attorney, factor, broker, agent or clerk, in the course of his employment as such, or by any other person in a fiduciary capacity, or for a willful violation of duty 3. When the accused has concealed, removed or disposed of his property, or is about to do so 4. When the accused resides outside the Philippines 2) Issuance and implementation of the writ [Gonzalez v. State Properties (2001)] Issuance writ of When May be done before acquisition of jurisdiction over the accused; may be ex-parte

REMEDIAL LAW REVIEWER
APPENDIX 1: AVAILABILITY OF BAIL AVAILABLE as a MATTER AVAILABLE as a MATTER OF OF RIGHT DISCRETION After conviction by the RTC Before or after conviction imposing a penalty of by the MetTC, MTC, or imprisonment which does not MCTC (114.4) exceed 6 years (114.5)

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NOT AVAILABLE If the accused is charged with a capital offense or an offense punishable by reclusion perpetua or life imprisonment, and the evidence of guilt is strong (114.7) After conviction by the RTC where a penalty of imprisonment exceeding 6 years but not more than 20 years is imposed and any of the ff. circumstances is present: 1) Recidivism, quasi-recidivism, habitual delinquency, commission of crime aggravated by circumstance of reiteration; 2) Previously escaped from legal confinement, evasion of sentence or violation of conditions of bail without valid justification; 3) Commission of offense while under probation, parole or conditional pardon; 4) Probability of flight; 5) Undue risk that he may commit another crime during the pendency of appeal. (114.5) 6) Any other circumstances as may be present and proved

Before conviction by the RTC wheter in the exercise of its original or appellate jurisdiction (114.4)

After conviction by the RTC where a penalty of imprisonment exceeding 6 years but not more than 20 years is imposed and not one of the circumstances in sec. 5 is present, or any other similar circumstances (114.5)

If, prior to the judgment becoming final or before the accused serves his sentence, the accused applies for probation as allowed by law, he may be admitted to bail or released on recognizance (114.24)

After judgment has become final or the accused has commenced to serve his sentence (114.24)

REMEDIAL LAW REVIEWER
APPENDIX 2: MODES OF REVIEW ORDINARY APPEAL Available after any judgment or final order PETITION FOR REVIEW Available only when the petition shows prima facie that the lower court has committed an error of fact or law that will warrant the reversal/modification of the decision or final order sought to be reviewed. PETITION FOR REVIEW ON CERTIORARI  General Rule: Available only when issues of law are involved; findings of fact being deemed conceded by the appellant.  Exception: SC reviews questions both of fact and of law in cases decided by the RTC: [RA 296] o Where the penalty imposed is life imprisonment; o Which involve other offenses committed on the same occasion or arising out of the same occurrence that gave rise to the more serious offense for which the penalty of death or life imprisonment is imposed. Not a matter of right  Appeal by PFRC from the decision or final order of the RTC/CA may be taken by filing the petition within 15 days from notice of judgment or of the denial of MFR filed in due time.  Copy must be served on the court whose judgment or final order is sought to be reviewed.  If no record of appeal has been filed in the CA, the SC clerk of court, upon admission of the petition, shall demand from the CA the elevation of the whole record of the case. [Rule 45, Sec. 2]  Provision above governs procedure of appeal from RTC or Sandiganbayan to the SC.

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Matter of right  By filing a notice of appeal with the court that rendered the judgment and serving a copy on the adverse party.  NOTICE OF APPEAL – Written notice of intention to take appeal. A mere verbal notice of an intention to appeal expressed by the accused, does not perfect an appeal. [People v. Natividad (1936)]  When no notice of appeal is given in writing or no record that any was given, the cause will be stricken from the court calendar since there was no appeal. [US v. Tenorio (1917)]  But when the accused manifests or gives notice of his intention to appeal in open court and files a bond for his provisional release within 15 days from the promulgation of the decision against him, he may be considered as having perfected his appeal. [People v. Agasang (1956)]

Not a matter of right

2012

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II. and in case of conflict. the Integrated Bar. Substantive Law as Distinguished from Remedial Law Remedial law or Procedural law  provides a method of enforcing the rights established by substantive law. 4] Prospectivity/Retroactivity The Rules of Court are not penal statutes and cannot be given retroactive effect [Bermejo v Barrios (1970)]. X. or the powers of agencies or instrumentalities for the administration of public affairs [Bustos v Lucero (1948)] GENERAL PRINCIPLES A. Actions Cause of Action Parties to Civil Actions Venue Pleadings Summons Motions Dismissal of Actions Pre-Trial Intervention Subpoena Modes of Discovery Trial Demurrer to Evidence Judgments and Final Orders Post-Judgment Remedies Execution. [In the Matter to Declare in Contempt of Court Hon. The rule is subordinate to the statute. C. Substantive Law as Distinguished from Remedial Law C. XI. IV. XII. 2]. (2) do not take away or create vested rights. VIII of the Constitution. [Shioji v Harvey (1922)]. defines and regulates rights concerning life. Rule-making Power of the Supreme Court  The Rules of Court was adopted and promulgated by the Supreme Court pursuant to the provisions of Sec 5(5) of Art. and procedure is no longer shared by the Supreme Court with Congress. XIV. vesting in it the power to: Promulgate rules concerning the protection and enforcement of constitutional rights. [Riano citing Systems Factor Corporation v NLRC (2000)] The Rules of Court. [Bustos v Lucero (1948)]  Judicial process for enforcing rights and duties recognized by substantive law and for justly administering remedy and redress for a disregard or infraction of them. Cadastral cases. more so with the executive… [Riano citing Echegaray v Secretary of Justice (1999)] . XVI. VI. promulgated by authority of law. Sec. Simeon Datumanong (2006)]. Sec. (3) BUT operate in furtherance of rights already existing. Rule-making Power of the Supreme Court D. practice. It governs the procedure to be observed in civil or criminal actions and special proceedings [Rule 1. Concept of Remedial Law B. Satisfaction and Effect of Judgments XVIII. VIII. and are deemed retroactive in that sense and to that extent. Rules of procedure may be made applicable to actions pending and undetermined at the time of their passage. Provisional Remedies XIX. if not in conflict with positive law [Inchausti & Co v de Leon (1913)]. pleading. Naturalization cases. XVII. III. VII. have the force and effect of law. It does not apply to the following cases: [ELCINO] (1) Election cases. practice and procedure in all courts. XIII.REMEDIAL LAW REVIEWER Civil Procedure REMEDIAL LAW Criminal Procedure Civil Procedure Evidence Special Proceedings General Principles Jurisdiction I.  prescribes the method of enforcing rights or obtaining redress for their invasion. the admission to the practice of law. liberty. and legal assistance to the underprivileged. Sec. V. except as otherwise provided by the SC [Rule 1. Special Civil Actions (2) (3) (4) (5) (6) Land registration cases. or property. IX. B. XV. 3].  The power to promulgate rules of pleading. Nature of Philippine Courts A. Concept of Remedial Law Concept Remedial statute or statutes: (1) relating to remedies or modes of procedure. Applicability The Rules of Court is applicable in ALL COURTS. the statute will prevail. Insolvency proceedings Other cases not herein provided for 77 Except by analogy or in a suppletory character and whenever practicable and convenient [Rule 4. [Fabian v Desierto (1998)] Substantive law  is that part of the law which creates.

3.that the rules shall provide a simplified and inexpensive procedure for speedy disposition of cases. or cessation from the service of the judge presiding over it. [Riano citing Rule 114] 78 D. S. but the court remains. The continuity of a court and the efficacy of its proceedings are not affected by the death. [Pinga v Heirs of Santiago (2006)]. [Riano citing Shioji v Harvey (1922)] Applicability: Prospective The Rules of Court shall govern cases brought after they take effect. Rules of Court. or even establish new rules for a more simplified and inexpensive process. they are required to be followed except only for the most persuasive of reasons when they may be relaxed to relieve a litigant of an injustice not commensurate with the degree of his thoughtlessness in not complying with the procedure prescribed. have the force and effect of law. a. subsections for Courts of Original and Appellate jurisdiction Courts of General and Special jurisdiction Constitutional and statutory courts Superior and Inferior courts  Superior courts – Courts which have the power of review or supervision over another and lower court. increase or modify substantive rights.that the rules shall not diminish. their suspension is justified [Republic v CA (1978)].REMEDIAL LAW REVIEWER 1. and also all further proceedings 2. [Polanco v Cruz (2009)]. promulgated by authority of law. and C.  The SC has the sole prerogative to amend. become incapacitated. [Regalado] Courts of record and not of record f.  Generally. . Nature of Philippine Courts 1. J.  Inferior courts – Those which. Classification of Philippine courts NOTE: Please see succeeding discussions on a to d. Courts of law and equity b. It is also the place where justice is administered.  Procedural rules are not to be belittled or dismissed simply because their non-observance may have resulted in prejudice to a party's substantive rights. e. Meaning of a court Definition  A court is an organ of the government belonging to the judicial department. EXCEPT to the extent that in the opinion of the Court their application would not be feasible or would work injustice. Limitations on the rule-making power of the Supreme Court  Sec 5(5) of Art. Court as distinguished from a judge Court Tribunal officially assembled under authority of law An organ of the government with a personality separate and distinct from judge An office Judge Simply an officer of such tribunal Person who sits in court A public officer [Riano] The circumstances of the court are not affected by the circumstance that would affect the judge. (1999)]. The matter is discretionary upon the Court [Republic v Imperial Jr. the term describes an organ of the government consisting of one person or of several persons. c. are lower in rank and subject to review and supervision by the latter. In other words. Jur. the function of which is the application of the laws to controversies brought before it (and) as well as the public administration of justice. CA (1998)]. [Riano citing Black’s and Am. VIII of the Constitution sets forth the limitations to the power: [SUS] .  The bare invocation of "the interest of substantial justice" is not a magic wand that will automatically compel this Court to suspend procedural rules [Ramos v Sps Lavendia (2008)]. the judge may resign. and the speedy disposition of case [Neypes v CA (2005)] Power to suspend remedial laws  It is within the inherent power of the Supreme Court to suspend its own rules in a particular case in order to do justice [De Guia v De Guia (2001)]. . then pending. or be disqualified to hold office. d. The death of the judge does not mean the death of the court [Riano citing ABC Davao Auto Supply v. NOTE: Although not laws in the technical sense of the term.  When the operation of rules will lead to an injustice or if their application tends to subvert and defeat instead of promote and enhance justice. in relation to another court.that the rules shall be uniform for courts of the same grade. Like all rules. called upon and authorized to administer justice.] 2. resignation. repeal. and .  There is no absolute rule as to what constitutes good and sufficient cause that will merit suspension of the rules. Power of the Supreme Court to amend and suspend procedural rules Power to amend remedial laws  The constitutional faculty of the Court to promulgate rules of practice and procedure necessarily carries with it the power to overturn judicial precedents on points of remedial law through the amendment of the Rules of Court.

Paredes (2007)]. [Regalado] One attribute of a court of record is the strong presumption as to the veracity of its records that cannot be collaterally attacked except for fraud. organized and with jurisdiction exclusively determined by law.  Courts of appellate jurisdiction – Courts which have the power to review on appeal the decisions or orders of a lower court. Courts of jurisdiction original and appellate  Courts of original jurisdiction – Those courts in which. cases covered by the rules on Summary Procedure and Barangay Conciliation G. unless otherwise provided by the law or Rules. under the law. Vasquez]  The principle is an established policy necessary to avoid inordinate demands upon the Court‘s time and attention which are better devoted to those matters within its exclusive jurisdiction. Principle of judicial hierarchy  The judicial system follows a ladderized scheme which in essence requires that lower courts initially decide on a case before it is considered by a higher court. Doctrine of non-interference doctrine of judicial stability or  Courts of general jurisdiction – Those competent to decide their own jurisdiction and to take cognizance of all kinds of cases. are now courts of record. Courts of law and equity Philippine courts are both courts of law and equity. Sandiganbayan is a constitutionally-mandated court but created by statute. including inferior courts. Cagayan Electric Power]. e. under the judicial policy recognizing hierarchy of courts. [Regalado] 6. Group Management Corp. Salas]. [Regalado]  The principle holds that courts of equal and coordinate jurisdiction cannot interfere with each other‘s orders [Lapu-lapu Development and Housing Corp.REMEDIAL LAW REVIEWER  Courts of record – Those whose proceedings are enrolled and which are bound to keep a written record of all trials and proceedings handled by them. Jurisdiction of Courts F. Supreme Court. both legal and equitable jurisdiction is dispensed with in the same tribunal [U. actions or proceedings may be originally commenced.  Statutory courts – Those created. Hence. it means that such body is co-equal with the RTC in terms of rank and stature. v. Jurisdiction over small claims. When the law provides for an appeal from the decision of an administrative body to the SC or CA. Judicial power includes the duty of the courts of justice: [Art 8. B.g.] The principle also bars a court from reviewing or interfering with the judgment of a co-equal court over which it has no appellate jurisdiction or power of review [Villamor v. 1. Courts jurisdiction of general and special 9. clearly and specifically set out in the petition. D. prohibition. and logically beyond the control of the latter [Phil Spinster Corp. All Philippine courts. Tamparong (1998)] 8. [Riano]  Courts not of record – Courts which are not required to keep a written record or transcript of proceedings held therein. 79 4.  Courts of special or limited jurisdiction – Those which have no power to decide their own jurisdiction and can only try cases permitted by statute. v. and to preclude the further clogging of the Court‘s docket [Lim v. appropriate courts. Totality Rule Jurisdiction Jurisdiction is defined as the authority to try.  When the doctrine/principle may be disregarded: A direct recourse of the Supreme Court‘s original jurisdiction to issue writs (referring to the writs of certiorari. a higher court will not entertain direct resort to it unless the redress cannot be obtained in the . Vianzon (2006)].  The doctrine of non-interference applies with equal force to administrative bodies. Specifically. or mandamus) should be allowed only when there are special and important reasons therefor. therefore cannot be legislated out of existence or deprived by law of the jurisdiction and powers unqualifiedly vested in them by the Constitution. The Supreme Court may disregard the principle of hierarchy of courts if warranted by the nature and importance of the issues raised in the interest of speedy justice and avoid future litigations [Riano]. [Regalado] 5. Sec. Constitutional and statutory courts  Constitutional courts – Those which owe their creation and existence to the Constitution and. hear and decide a case [Tolentino v. 7. Jurisdiction over the parties Jurisdiction over the subject matter Jurisdiction over the issues Jurisdiction over the res or property in litigation E. v.S. [Mangahas v. Leviste (2004)]. Consti]  To settle actual controversies involving rights which are legally demandable and enforceable. JURISDICTION A. [Riano citing Santiago v. C.

[Arranza v. Jurisdiction over the parties NOTE: The mode of acquisition of jurisdiction over the plaintiff and the defendant applies both to ordinary and special civil actions. 2. .REMEDIAL LAW REVIEWER  To determine WON there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any government branch/ instrumentality. more so when the party involved demonstrates a willingness to abide by the rules prescribing such payment. Diaz (2004)]. Tong (2003)] 80 Jurisdiction in general A. or waived. . v CA]. 1. Art 2035)  Jurisdiction over the subject matter is determined by the allegations of the complaint. 2. . How jurisdiction over the plaintiff is acquired Jurisdiction over the plaintiff is acquired by filing of the complaint or petition. Meaning of jurisdiction over the subject matter Jurisdiction over the subject matter is the power to deal with the general subject involved in the action. Jurisdiction versus the exercise of jurisdiction  Jurisdiction: the authority to hear and determine a cause — the right to act in a case. and means not simply jurisdiction of the particular case then occupying the attention of the court but jurisdiction of the class of cases to which the particular case belongs (Riano citing CJS). Inc. Salas (1992)]  The filing of the complaint or appropriate initiatory pleading and the payment of the prescribed docket fee vest a trial court with jurisdiction over the subject matter or the nature of the action [CB v. How jurisdiction over the defendant is acquired  Acquired by the (1) voluntary appearance or submission by the defendant or respondent to the court or (2) by coercive process issued by the court to him. generally by the service of summons [de Joya v Marquez (2006). Consti].‗Exercise of Jurisdiction. By doing so. 1. .  Jurisdiction CANNOT be: 3. [Sindico v. [PD 1486] . CA]. enlarged or diminished by. jurisdiction over the person is necessary for the court to validly try and decide the case.‘: the exercise of this power or authority  Jurisdiction is distinct from the exercise thereof. BF Homes (2000)]. Jurisdiction is the authority to decide a case and not the decision rendered therein. while in a proceeding in rem or quasi in rem. [Go v. Jurisdiction matter over the subject 1. It is not affected by the pleas set up by the defendant in the answer or in the answer or in a motion to dismiss. Error of jurisdiction as distinguished from error of judgment Error of jurisdiction It is one where the act complained of was issued by the court without or in excess of jurisdiction [Cabrera v..cannot be subject to compromise (Civil Code. It includes errors of procedure or mistakes in the court‘s mistakes in the court‘s findings [Banco Filipino Savings v. any act or omission of the parties. the decision on all other questions arising in the case is but an exercise of jurisdiction.neither can it be conferred by the acquiescence of the court [Regalado citing De Jesus v Garcia (1967)]. CA (1992)](2008 Bar Exam). he submits himself to the jurisdiction of the court [Davao Light & Power Co. Only the Supreme Court is the court created by the Constitution [Art 8.cannot be acquired through.Exception: The statute itself conferring new jurisdiction expressly provides for retroactive effect. citing Regalado]  In an action in personam. . jurisdiction over the person of the defendant is not a prerequisite to confer jurisdiction on the court provided the latter has jurisdiction over the res [Alba v. Sec. Lapid (2006)]. . It is the power to hear and determine cases of the general class to which the proceedings in question belong [Reyes v. [Southern Food v. Lapid]. [Herrera v Baretto et al (1913)] B. All courts exercise judicial power.fixed by agreement of the parties.Exception: Non-payment of docket fee does not automatically cause the dismissal of the case on the ground of lack of jurisdiction as long as the fee is paid within the applicable prescriptive or reglementary period. CA (2000)] .  Once attached to a court. it cannot be ousted by subsequent statute. The Sandiganbayan is a Constitutionally mandated court. Diaz (1941)] How conferred and determined  It is conferred only by the Constitution or the law. Error of judgment It is one which the court may commit in the exercise of its jurisdiction [Cabrera v. but it is created by statute. When there is jurisdiction over the subject matter.

Doctrine of adherence of jurisdiction  Also known as doctrine of continuity of jurisdiction  The court. Cawaling].where there is an express provision in the statute . .attachment or garnishment) or .  Objective is to guide a court in determining 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 [Riano citing Omictin v. 1. effectively barred petitioner by estoppel from challenging the court‘s jurisdiction. Sec. [SEAFDEC-AQD v. Jurisdiction is conferred by law. the statute in force at the time of the commencement of the action determines the jurisdiction of the court.Agreement in a pre-trial order or stipulation [Rule 18. Fastforms (2004)] 5. no agreement of the parties can provide one. Where there is none. Sec. CA (2007)] C. [Soliven v. [Riano citing Sec.  Jurisdiction over subject matter may be raised at any stage of proceedings. 1(b) and 6 of Rule 16]. Ramirez (1982)] 81 4. Jurisdiction over property in litigation the res or 7. jurisdiction is not affected by a new law placing a proceeding under the jurisdiction of another tribunal.  Acquired either by . Desierto (1998)]. 5. or .actual or constructive seizure by the court of the thing in question. thus placing it in custodia legis (e. even for the first time on appeal [Calimlim v. Jurisdiction over the issues  The power of the court to try and decide issues raised in the pleadings of the parties [Reyes v.by provision of law which recognizes in the court the power to deal with the property or subject-matter within its territorial jurisdiction (e. [Regalado] 6. Doctrine of primary jurisdiction  Courts cannot and will not resolve a controversy involving a question which is within the jurisdiction of an administrative tribunal.Implied consent as by the failure of a party to object to evidence on an issue not covered by the pleadings in Rule 10. that included invoking its authority in asking for affirmative relief.  As a consequence.the statute is clearly intended to apply to actions pending before its enactment [Riano citing People v.  Jurisdiction being a matter of substantive law. once jurisdiction has been acquired. Mercader (2001)]. [Municipality of Kananga v Madrona (2003)] D. NLRC (1992)] Exception: Participation in all stages of the case before the trial court. Settled is the rule that the decision of a tribunal not vested with appropriate jurisdiction is null and void. 2].Pleadings filed by the parties.g. experience and services of the administrative tribunal to determine technical and intricate matters of fact [Paloma v. or on its own initiative take cognizance of lack of jurisdiction [Fabian v. land registration) [Regalado] . retains that jurisdiction until it finally disposes of the case [Bantua v. How jurisdiction is conferred and determined Jurisdiction being a matter of substantive law. If no motion is filed.  Refers to the court‘s jurisdiction over the thing or the property which is the subject of the litigation. especially where the question demands the exercise of sound administrative discretion requiring the special knowledge. Diaz (1941)]  How conferred & determined: . Effect of estoppel on objections to jurisdiction Jurisdiction by estoppel General Rule: Estoppel does not apply to confer jurisdiction to a tribunal that has none over a cause of action. the defense of lack of jurisdiction may be raised as an affirmative defense in the answer. Objections to jurisdiction over the subject matter  The Court may ex mero motu. Lack of jurisdiction over subject matter is a ground for a motion to dismiss. the statute in force at the time of the commencement of the action determines the jurisdiction of the court.REMEDIAL LAW REVIEWER Correctible only by the extraordinary writ of certiorari [Cabrera v Lapid] Renders a judgment void or voidable [Rule 16 Sec. EXCEPT: .g. 8. Mora (2005)]. Rule 65] Correctible by appeal [Cabrera v Lapid] Ground for reversal only if it is shown that prejudice has been caused [Banco EspañolFilipino v Palanca (1918)]  Earliest opportunity of a party to raise the issue of jurisdiction is in a motion to dismiss filed before the filing or service of an answer.

. [Art. and other courts authorized by law. as well as their relation to each other and to the whole. Consti]  CSC . .There is no citation of specific evidence on which the factual findings are based. [BP 129. Sec. . CTA.  Pleading/practice/procedure in all courts.The findings of the CA are beyond the issues of the case. [Art. Order a change of venue or place of trial to avoid a miscarriage of justice. RTC.Decisions and final orders of the Sandiganbayan shall be subject to review on certiorari by the SC in accordance with Rule 45 of the Rules. law.  All cases in which only errors/questions of law are involved. presidential decree/proclamation/order/ instruction.  Legal assistance to the under-privileged. . which shall not last 6 six months without the consent of the judge concerned.The CA manifestly overlooked certain relevant and undisputed facts that.Judgments/decisions/orders are within the exclusive appellate jurisdiction of the CA through Rule 43. . . Supreme Court The judicial power shall be vested in one SC and in such lower courts as may be established by law.There is grave abuse of discretion. . 9-A. Constitutional commissions  COMELEC and COA – Unless otherwise provided by this Constitution or by law. ordinance or regulation is in question. in any case decided. and the probability of the situation c. Promulgate rules on:  Protection and enforcement of constitutional rights. the records shall be forwarded to the SC whether the accused shall have appealed or nor.The inference is manifestly mistaken/absurd/impossible. Distinction between Questions of Law and Fact [Mendoza vs Salinas (2007)]  Question of law—exists when the doubt or controversy concerns the correct application of law or jurisprudence to a certain set of facts.The conclusion is grounded on speculations/ surmises /conjectures. prohibition. Assign temporarily judges of lower courts to other stations as public interest may require. . within 30 days from receipt of a copy thereof. f.The judgment is based on a misapprehension of facts. 8. .Whenever. . d. Appoint all Judiciary officials/employees in accordance with the Civil Service Law.RTC also has concurrent jurisdiction  Petitions for certiorari. 5.  Question of fact—exists when the doubt or query invites calibration of the whole evidence considering mainly the credibility of the witnesses.The finding of absence of facts is contradicted by the presence of evidence on record. . .Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the SC.  All cases involving the legality of any tax /impost /assessment /toll. 7. Sandiganbayan.NOTE: power of review contemplates the ff courts: CA. and habeas corpus.  The Integrated Bar. . b. 8. the truth or falsehood of facts being admitted. .The findings of the CA are contrary to those of the trial court. Guidelines on the rules: . the death penalty shall have been imposed. 1. final judgments/orders of lower courts In:  All cases in which the constitutionality/validity of any treaty. for review and judgment. any decision/order /ruling of each Commission may be brought to the SC on certiorari by the aggrieved party. EXERCISE original jurisdiction over:  Cases affecting ambassadors and other public ministers and consuls. Exceptions: [Josefa v.Provide a simplified and inexpensive procedure for the speedy disposition of cases.REMEDIAL LAW REVIEWER Specific jurisdiction 82 E. as amended by RA 7902]  Sandiganbayan .Not diminish/increase/modify substantive rights. international or executive agreement.The findings of fact are conflicting.  Admission to the practice of law.Uniform for all courts of the same grade. or any penalty imposed in relation thereto. Sec. .  All criminal cases in which the penalty imposed is reclusion perpetua or higher.  All cases in which the jurisdiction of any lower court is in issue.Such findings are contrary to the admissions of both parties. mandamus. when the issue does not call for an examination of the probative value of the evidence presented. and the existence and relevancy of specific surrounding circumstances. Sec. e. would justify a different conclusion. Consti] Powers of the Supreme Court [Art. [PD 1606 Sec 7] . Zhandong (2003)] . quo warranto. Review/revise/reverse/modify/affirm on appeal or certiorari. . Consti] a. Jurisdiction of Courts 1. if properly considered.

commodity or article. in the case of nonagricultural product.The Constitution. forfeitures or other penalties in relation thereto. detention or release of property affected. or other matters arising under the National Internal Revenue or other laws administered by the BIR. . and the Secretary of Agriculture in the case of agricultural product. .Sec. Martin’s Funeral Home vs NLRC (1998)]  Supposed appeals from the NLRC to the SC are interpreted and hereby declared to mean and refer to Petitioners for Certiorari under Rule 65. refunds of internal revenue taxes.  Decisions of the Central Board of Assessment Appeals in the exercise of its appellate jurisdiction over cases involving the assessment and taxation of real property originally decided by the provincial or city board of assessment appeals.Labor Code. unless extended by the Chief Justice. Review of decisions by the NLRC: [St. 17. BP 129] a. or other matters arising under the National Internal Revenue Code or other laws administered by the BIR. 9. certiorari. . 3(1) and Par.RTCs.  Exception: Those falling within the SC‘s appellate jurisdiction of the Supreme Court in accordance with: . Jurisdiction over cases involving criminal offenses: General rule: Exclusive original jurisdiction over all criminal offenses arising from violations of the National Internal Revenue Code or Tariff and Customs Code and other laws administered by the BIR or the Bureau of Customs . and auxiliary writs/processes. prohibition. refunds of internal revenue taxes. 1999 shall not longer be referred to the CA. respectively. habeas corpus and quo warranto.Quasi-judicial agencies/instrumentalities/ boards/commissions including: o SEC. Court of Appeals [Sec. o ECC. commodity or article. as amended by RA 9282] a.  Receive evidence  Perform any and all acts necessary to resolve factual issues raised. where the National Internal Revenue Code provides a specific period of action. but shall forthwith be dismissed. o Social Security Commission. fees or other money charges. EXCLUSIVE APPELLATE JURISDICTION  Final judgments/decisions/resolutions/orders/awards of: . 7.  Decisions. orders or resolutions of the RTCS in local tax cases originally decided or resolved by them in the exercise of their original or appellate jurisdiction.REMEDIAL LAW REVIEWER 2. Note: former rule only allowed the CA to issue auxiliary writs and processes in aid of jurisdiction. RA 1125. involving dumping and countervailing duties under Sec 301 and 302.  Decisions of the Commissioner of Customs in cases involving liability for customs duties. fees or other charges. . o CSC. c. 4(4) of the Judiciary Act of 1948. fees or other charges. Trials or hearings must be continuous and must be completed within 3 months.The power is concurrent with the SC. EXCLUSIVE ORIGINAL JURISDICTION Annulment of RTC judgments. penalties in relation thereto. including the power to grant and conduct new trials or further proceedings.  All special civil actions arising out of any decision or final resolution or order of the NLRC filed with the SC after June 1. seizure. of the Tariff and Customs Code. b.  Decisions of the Secretary of Finance on customs cases elevated to him automatically for review from decisions of the Commissioner of Customs which are adverse to the Government under Section 2315 of the Tariff and Customs Code.  Inaction by the Commissioner of Internal Revenue in cases involving disputed assessments. Par. whether or not in aid of its appellate jurisdiction. Court of Tax Appeals [Sec.  Decisions of the Secretary of Trade and Industry. and safeguard measures under RA 8800. 83 b. where either party may appeal the decision to impose or not to impose said duties. penalties in relations thereto. Powers of the Court of Appeals  Try cases and conduct hearings. or other matters arising under the Customs Law or other laws administered by the Bureau of Customs.BP 129. 3.  All such petitions should be initially filed in the CA in strict observance of the doctrine on the hierarchy of courts. fines. . ORIGINAL JURISDICTION To issue writs of mandamus. in which case the inaction shall be deemed a denial. Exclusive appellate jurisdiction to review by appeal  Decisions of the Commissioner of Internal Revenue in cases involving disputed assessments.

the records shall be forwarded to the SC whether the accused shall have appealed or nor. . claimed is less than P1. the filing of the criminal action being deemed to necessarily carry with it the filing of the civil action. 211 as amended by BP 871.4 of RA 8249]  Decisions and final orders of the Sandiganbayan shall be subject to review on certiorari by the Supreme Court in accordance with Rule 45 of the Rules. o Officers of the PNP while occupying the position of Provincial Director and those holding the rank of Senior Superintendent or higher. Sandiganbayan [Sec. Exclusive appellate jurisdiction in criminal offenses:  Over appeals from the judgments. .Members of the Judiciary without prejudice to the provision of the Constitution. May 29. 1985. Sec. in their respective jurisdiction. II of the RPC (Crimes committed by Public Officers) namely: .  Whenever. state universities or educational institutions or foundations. Jurisdiction over tax collection cases as herein provided: General rule: Exclusive original jurisdiction in tax collection cases involving final and executory assessments for taxes.REMEDIAL LAW REVIEWER BUT! Offenses or felonies where the principal amount of taxes and fees.Members of Congress and Officials thereof classified as Grade 27 and up under the Compensation and Classification Act of 1989. and jointly determined in the same proceeding by the CTA. . Bk. fees. MTCs and MCTCs in their respective jurisdiction. . exclusive of charges and penalties.00 shall be tried by the proper MTC. 4. resolutions or orders of the RTCs in the exercise of their appellate jurisdiction over tax cases originally decided by the MeTCs. resolutions or orders of the RTCs in tax collection cases originally decided by them. resolutions or orders of the RTCs in the Exercise of their appellate jurisdiction over tax collection cases originally decided by the MeTCs.Direct Bribery under Art. engineers and other provincial department heads. MeTC and RTC e.  RA 1379 (Forfeiture of Illegally Acquired Wealth). c. resolutions or orders of the RTCs in tax cases originally decided by them. II. without prejudice to the provision of the Constitution. claimed is less than P1. . May 29. o Officials of the diplomatic service occupying the position of consul and higher. for review and judgment. Exclusive appellate jurisdiction in tax collection cases: Over appeals from the judgments.Corruption of public officials under Art. of the Compensation and Position Classification Act of 1989 Republic Act No. Original Exclusive Jurisdiction  Violations of RA 3019 (Anti-graft and Corrupt Practices Law). directors or trustees or managers of government owned or controlled corporations. exclusive of charges and penalties. o President.00 or where there is no specified amount claimed shall be tried by the regular Courts and the jurisdiction of the CTA shall be appellate. MTCs and MCTCs. city treasurers. engineers and other department heads. naval captains and all officers of higher rank.000. at the time of the commission of the offense: o Officials of the executive branch occupying the positions of regional director and higher. acting or interim capacity. . 1985. 6758) specifically including: o Provincial governors. 210 as amended by BP 871. Any provision of law or the Rules of Court to the contrary notwithstanding. in their respective territorial jurisdiction.  Crimes by public officers or employees embraced in Ch. 211-A as amended by RA 7659. d. Over petitions for review of the judgments. assessors. charges and penalties: BUT! collection cases where the principal amount of taxes and fees. assessors.Indirect Bribery under Art.2 Title VII. o City mayors. the death penalty shall have been imposed. [PD 1606 Sec 7] 84 a.000.  Over petitions for review of the judgments. o City and provincial prosecutors and their assistants. officials and the prosecutors in the Office of the Ombudsman and special prosecutor . otherwise classified as Grade 27 and higher. vice-mayors.Chairmen and members of Constitutional Commissions. members of the sangguniang panglungsod. the criminal action and the corresponding civil action for the recovery of civil liability for taxes and penalties shall at all times be simultaneously instituted with. in any case decided. 13.000.000." NOTE: RA9282 elevated CTA‘s rank to the level of the Court of Appeals with special jurisdiction. o Philippine Army and Air force colonels. . members of the sangguniang panlalawigan.Qualified Bribery under Art. 212 where one or more of the accused are officials occupying the following positions in the government whether in a permanent. Dec. and no right to reserve the filling of such civil action separately from the criminal action will be recognized. in their respected territorial jurisdiction. vice-governors. 1993. provincial treasurers.

RA 3019. real property (or any interest therein) where the property‘s assessed   NOTE: Private individuals can be sued in cases before the Sandiganbayan if they are alleged to be in conspiracy with the public officer. Sec. [Manufacturer’s Distributor’s v. the principal relief sought.RA 9160 . Appellate Jurisdiction Over final judgments. [Lapitan v. jurisdiction is not exclusive of the Supreme Court Petitions for Quo Warranto arising or that may arise in cases filed or that may be filed under EO 1.Action for support is incapable of pecuniary estimation because the court is asked to determine first WON the plaintiff is indeed entitled to support. Yu Siu Liong (1966)] . Civil and Criminal Cases filed pursuant to and in connection with EO 1. the claim is considered capable of pecuniary estimation. BP 129.The Heinous Crime Law .A OTHERS provided the accused belongs to Salary Grade 27 or higher: . when such gift. .Violation of RA 6713 . 19. habeas corpus. present or valuable thing is given by reason of his official position. .Action for declaration of nullity of a deed of partition is incapable of pecuniary estimation.The jurisdiction of the respective courts is determined by the value of the demand and not the value of the transaction out of which the demand arose. certiorari. [RCPI v. 2. rules and regulations penalizing graft. 14 & 14-A issued in 1986 Petitions for issuance of Writ of mandamus.Rescission is a counterpart of specific performance therefore also incapable of pecuniary estimation. Included within the prohibition is the throwing of parties or entertainment in honor of the official or employee or his immediate relatives. if the money claim is purely incidental to. 2. 3604 of the Customs and Tariff Code and other provisions of the said Codes penalizing abuse or dishonesty on the part of the public officials concerned and other laws.210.An action for expropriation is incapable of pecuniary estimation. Vestil (1999)] .[Cruz v.Code of Conduct and Ethical Standards . 211 or 212 of the RPC.Provided.345 of the NIRC.If the action is primarily for the recovery of a sum of money. resolutions or orders of the RTC whether in the exercise of their original or appellate jurisdiction  over crimes and civil cases falling within the original exclusive jurisdiction of the Sandiganbayan but which were committed by public officers below Salary Grade 27. corruption and other forms of official abuse and who willingly testifies against the public official or employee subject to certain conditions. Regional Trial Courts a. injunction and other ancillary writs and processes in aid of its appellate jurisdiction. CA (2002)] .PD 46 referred to as the gift-giving decree which makes it punishable for any official or employee to receive directly or indirectly and for the private person to give or offer to give any gift.Violation of RA 7080 – The Plunder Law . b. 85    5. Scandia (1968)] . or a consequence of. the amount of the debt due is determinable and capable of pecuniary estimation.If the basic issue is something other than the right to recover a sum of money.The alternative prayer for specific performance is also of the same value. . Exclusive Original Jurisdiction in Civil Cases [Sec.If the thing sought to be deposited or consigned is a sum of money.PD 749 which grants immunity from prosecution to any person who voluntarily gives information about any violation of Art.Violation of RA 7659 . CA (1991)] . present or other valuable thing on any occasion including Christmas. 14 & 14. Asked in the 2002 Bar Examinations]  Incapable of pecuniary estimation (2000 Bar Exam). [Russel v. Other offenses or felonies whether simple or complexed with other crimes committed in relation to their office by the public officials and employees mentioned above. . prohibition. [Ascue v. . Sec. [Bardillon v.REMEDIAL LAW REVIEWER .All other national and local officials classified as Grade 27 and higher under the Compensation and Position Classification Act of 1989. for the alternative prayer would not have been made in the complaint if one was more valuable than the other.Action for specific performance is incapable of pecuniary estimation. the action is one where the subject of the litigation may not be estimated in terms of money. Masili (2003)]  Title to. Sarmiento (1960)] .Violation of The Anti-Money Laundering Law when committed by a public officer . [Baito v. and jurisdiction over the action will depend on the amount of the claim. or possession of. Tan (1950)] . regardless of whether or not the same is for past favors or the giver hopes or expects to receive a favor or better treatment in the future from the public official or employee concerned in the discharge of his official functions. Fastforms (1992)] . [Soliven v.

Metropolitan Trial Courts/Municipal Trial Courts a. habeas corpus and injunction which may be enforced in any part of their respective regions.  Within the exclusive original jurisdiction of a Juvenile and Domestic Relations Court and of the Court of Agrarian Relations. where the value of the personal property. Exclusive Original Jurisdiction [Sec. 33 (1) of BP 129. as amended by RA7691. 19(8) and Sec. BP 129] All cases decided by MeTCs/MTCs/MCTCs in their respective territorial jurisdictions. or one of the causes of action. attorney's fees. for voluntary or involuntary commitment of children. damages of whatever kind.Interest. 33.The exclusion of the term ―damages of whatever kind‖ in determining the jurisdictional amount under Sec. dependent or neglected children.  All other cases where the demand (exclusive of interest. Cabahug (1966)]  Probate (testate and intestate) where the gross value of the estate exceeds P300K or P400K (in Metro Manila). litigation expenses. if the claim for damages is the main cause of action. 1986 and other related laws.Actions for damages based on quasi-delicts are primarily and effectively actions for the recovery of a sum of money for the damages suffered because of the defendant‘s alleged tortious acts.  Petitions for declaration of status of children as abandoned. Exclusive Original Jurisdiction  Petitions for guardianship. the amount of such claim shall be considered in determining the jurisdiction of the court. damages of whatever kind. Family Courts a. attorney's fees. the amount of the demand shall be the totality of the claims in all the causes of action. EO 56 s. applies to cases where the damages are merely incidental to or a consequence of the main cause of action. Municipal and Municipal Circuit Trial Courts 6. damages of whatever kind.[Admin Circ. [Negre v. and is not merely incidental thereto or a consequence thereof. custody of children. . This money claim is the principal relief sought. Exclusive Appellate Jurisdiction [Sec. prohibition. litigation expenses and costs shall be included in the determination of the filing fees.  Marriage contract and marital relations.CONCURRENT jurisdiction with SC and CA  Actions affecting ambassadors and other public ministers and consuls.  Petitions for support and/ or acknowledgement. and for suspension. as defined therein but which do not constitute criminal offenses subject to criminal prosecution and penalties.If there are several claims or causes of actions between the same/different parties in the same complaint. 86 d.REMEDIAL LAW REVIEWER value exceeds P20K or P50K (for civil actions in Metro Manila). [Iniego v.CONCURRENT jurisdiction with SC . b. Purganan (2006)] 7. BP 129]  Civil actions and probate proceedings (testate and intestate). General Original Jurisdiction  All cases not within the exclusive jurisdiction of any court/tribunal/person/ body exercising judicial or quasi-judicial functions.  Complaints for annulment of marriage. quo warranto. and petitions for dissolution of conjugal partnership of gains. 22. . BP 129]  Certiorari.Maritime and admiralty cases involve trade and transactions in the sea. .  Summary judicial proceedings brought under the Family Code. Exception: Forcible entry into and unlawful detainer of lands/buildings  Admiralty and maritime jurisdiction where the demand/claim exceeds P300K or P400K (in Metro Manila). termination or restoration of parental authority under PD 603. mandamus. WON the causes of action arose out of the same/different transactions. and costs). 0994] . Original Jurisdiction [Sec. . attorney‘s fees. 21. including the grant of provisional remedies. declaration of nullity of marriage and those relating to marital status and property relations of husband and wife or those living together under different status and agreements. estate or amount of the demand does not exceed P300K or P400K (in Metro Manila) (value excludes of interest.  Forcible entry and unlawful detainer . However. . Metropolitan. litigation expenses and costs) or the value of the property in controversy exceeds P300K or P400K in Metro Manila.If the defendant raises the question of ownership in his pleadings and the question of possession cannot be resolved without c. .  Cases for domestic violence against women and children. Maritime jurisdiction includes maritime tort.  Petitions for adoption of children and revocation thereof. habeas corpus in relation to the latter.

. probate of wills. Purpose The purpose of small claims process is to provide an inexpensive and expeditious means to settle disputes over small amounts [Riano]. other auxiliary writs and processes in aid of its appellate jurisdiction. paternity and filiation arising under the Code of Muslim Personal Laws. Definition Small claims courts are courts of limited jurisdiction that hear civil cases between private litigants [Rationale of Proposed Rule]. Original Jurisdiction (Article 143. or possession of. Book Two of the Code of Muslim Personal Laws.M. BP 129]  Lots where there is no controversy/ opposition. 8. the Rule of Procedure for Small Claims Cases effective October 1. if they have not specified which law shall govern their relations. and  All special civic actions for interpleader or declaratory relief wherein the parties are Muslims or the property involved belongs exclusively to Muslims Shari‘a Circuit Courts are courts where Muslims can file cases involving the following:  Offenses defined and punished under PD 1083  Disputes relating to : . [Heirs of B.betrothal or breach of contract to marry . CMPL)  All cases involving custody. 87 b. and  All petitions for mandamus.restitution of marital right . habeas corpus.  All actions arising from the customary contracts in which the parties are Muslims. 2008] 1. Shariah Courts a. attorney‘s fees. change of name and commitment of an insane person to an asylum. distribution and settlement of estate of deceased Muslims. the issue of ownership shall be resolved only to determine the issue of possession. 08-8-7-SC.REMEDIAL LAW REVIEWER deciding the issue of ownership. or  Contested lots the value of which does not exceed P100K. Delegated Jurisdiction in Cadastral and Land Registration Cases [Sec. The Council is composed of the Clerk of Court as Chairperson and a representative of each of the conflicting parties. . b.If land is not declared for taxation purposes.Disputes relative to communal properties NOTE: The Shari‘a District Court or the Shari‘a Circuit Court may constitute an Agama Arbitration Council to settle certain cases amicably and without formal trial.Divorce .customary dower (mahr) .Value excludes interest. real property (or any interest therein) where the assessed value of the property (or interest therein) does not exceed P20K or P50K (in civil actions in Metro Manila). prohibition. 34. issuance of letters of administration or appointment of administrators or executors regardless of the nature or aggregate value of the property. cases covered by the rules on Summary Procedure and Barangay Conciliation [A.  Petitions for the declaration of absence and death for the cancellation or correction of entries in the Muslim Registries mentioned in Title VI.disposition and distribution of property upon divorce . injunction.MTC decisions in cadastral and land registration cases are appealable in the same manner as RTC decisions.Marriage . .maintenance and support and consolatory gifts (mut‘a) . Hernandez v. and all F.  All cases involving disposition.  All other personal and legal actions not mentioned in paragraph 1 (d) wherein the parties involved are Muslims except those for forcible entry and unlawful detainer.The value is to be ascertained: o By the claimant‘s affidavit.  All civil cases subject to summary procedure. if there are more than one. o From the corresponding tax declaration of the real property. 2.That the MeTC has jurisdiction even in cases where the issue of possession is closely intertwined with the issue of ownership is now a settled doctrine in ejectment proceedings. Jurisdiction over small claims. which shall fall under the exclusive jurisdiction of the Municipal Circuit Court. . . Vergara (2006)]  All civil actions that involve title to. o By agreement of the respective claimants. guardianship. legitimacy. the value of such property shall be determined by the assessed value of the adjacent lots. certiorari. Concurrent Jurisdiction with Civil Courts  Petitions by Muslim for the constitution of a family home. litigation expenses and costs . No. damages of whatever kind.

[Rule 1. [Sec. and petitions shall not be allowed in the cases covered by this Rule:  Motion to dismiss the compliant except on the ground of lack of jurisdiction. 2. Civil actions versus special proceedings A civil action is one by which a party sues another for the enforcement or protection of a right. . Municipal Trial Courts and Municipal Circuit Trial Courts for payment of money where the value of the claim does not exceed One Hundred Thousand Pesos (P100.000. [Rule 1. Municipal Trial Courts. and Municipal Circuit Trial Courts shall apply this Rule in all actions which are:  purely civil in nature where the claim or relief prayed for by the plaintiff is solely for payment or reimbursement of sum of money.  Third-party complaints.  Petition for relief from judgment. Valle (2005)] Action Ordinary suit in a court of justice. Scope] G.Contract of Mortgage. De Caparas.Quasi-contract. and  the civil aspect of criminal action.  Motion for extension of time to file pleadings. or . Sec.  Motion to declare the defendant in default. Scope 88 This rule governs the procedure in actions before the Metropolitan trial Courts. . or for reopening of trial. .Contract of Lease. affidavits. or reserved upon the filing of the criminal action in court. [Into vs. or a particular fact.  Dilatory motions for postponement.Contract.Contract of Sale. or .1]  Fact or combination of facts which affords a party a right to judicial interference in his behalf. by which one party prosecutes another for the enforcement or protection of a right. irrespective of whether the causes of action arose out of the same or different transaction [Riano citing Pantranco North Express v Standard Insurance (2005)] 4. Prohibited pleadings and motions] 3. [Sec.Contract of Services. Meaning of ordinary civil actions An ordinary civil action is one that is governed by the rules for ordinary civil actions [Rule 1. (1959)] Action vs Cause of action (Asked in the 1999 Bar Exam) Cause of action  A cause of action is the basis of the action filed [Rule 2. 3(a) par 2] 2.  Motion for a bill of particulars. motions.00) exclusive of interest and costs. Applicability The Metropolitan Trial Courts.  Memoranda. Sec. [Sec. pursuant to Rule of 111 of the Revised Rules of Criminal Procedure. it is also governed by the rules for ordinary civil actions [Rule 1. or for reconsideration of a judgment. . ACTIONS  Actions. 417 of Republic Act 7160. Sec. Sec. 3(b)] 4.  Reply.  Petition for certiorari. Municipal Trial Courts in Cities. in general: An ordinary suit in a court of justice by which one party prosecutes another for the enforcement/ protection of a right or the prevention/redress of a wrong [Santos vs. Meaning of criminal actions A criminal action is one by which the State prosecutes a person for an act or omission punishable by law. or the prosecution or redress of a wrong 1. Meaning of special civil actions A special civil action is one that is subject to the specific rules prescribed for a special civil action. . otherwise known as the Local Government Code of 1991.REMEDIAL LAW REVIEWER 3. Totality Rule Where there are several claims or causes of actions between the same or different parties. Municipal Trial Courts in Cities.  Motion for new trial. 3(a) par 2] 5. These claims or demands may be:  For money owed under any of the following. a right. or prohibition against any interlocutory order issued by the court. Sec. 4. Prohibited Pleadings The following pleadings.  The enforcement of a barangay amicable settlement or an arbitration award involving a money claim covered by this Rule pursuant to Sec. Vda.Contract of Loan. 3 (c)] . embodied in the same complaint. [Rule 1. . Applicability] CIVIL PROCEDURE I. mandamus. or any other paper. and  Interventions. or the prevention or redress of a wrong. 3(a) par 1] A special proceeding is a remedy by which a party seeks to establish a status. the amount of the demand shall be the totality of the claims in all the causes of action.  For damages arising from any of the following.Fault or negligence. 14. Sec.

REMEDIAL LAW REVIEWER Distinctions between Civil Actions and Special Proceedings (Asked in the 1998 Bar Exam) Action Special Proceeding As to parties Involves 2 or more Involves at parties least 1 party or 2 or more parties in proper cases As to cause Involves a right May involve a of action and a violation of right. as accordance with it the prescribed may be granted rules upon application As to governing rules As to appeal from an interlocutory order Ordinary rules of procedure Cannot be directly and immediately appealed to the appellate court until after final judgment on the merits Special rules of procedure Can be immediately and directly appealed to the appellate court matter in litigation must also involve any of the following issues: title to. 1 par 1]  Personal Actions: All other actions are personal actions. or interest therein. Sec. foreclosure or mortgage or any interest in real property. where he may be found. Personal actions and real actions  Real Actions: Actions affecting title to or possession of real property.1]  Personal actions may be commenced and tried where the plaintiff or any of the principal plaintiffs resides. It is important that the 7. at the election of the plaintiff. (2007)] Action in rem Directed against the thing itself Jurisdiction over the person of the defendant is NOT required Action in personam Directed against particular persons Jurisdiction over the person of the defendant is required Action quasi in rem Directed against particular persons Jurisdiction over the person of the defendant is not required as long as jurisdiction over the res is acquired . [Rule 4. [Rule 4. in personam and quasi in rem [Riano citing Domagas v. [Rule 4. Sec. is situated. or a portion thereof. Jensen. or where the defendant or any of the principal defendants resides.2] NOTE: Not every action involving a real property is a real action because the realty may only be incidental to the subject matter of the suit. [Rule 4. ownership. To be a real action. at the plaintiff‘s option Mixed action Both real and personal properties are involved 89 Founded on privity of real estate Filed in the court where the property (or any portion thereof) is situated Founded both on The rules on venue of real actions govern 6. Actions in rem. but there such right by the need not be a defendant which violation of this causes some right damage/prejudice upon the plaintiff As to Requires the Requires no formalities application of such legal remedies in formalities. possession. (Riano) Real action Ownership or possession of real property is involved Personal action Personal property is sought to be recovered or damages for breach of Contract or the enforcement of a contract are sought Founded on privity of contract Filed in the court where the plaintiff or any of the defendants resides. paritition.2] Importance of Distinction: for purposes of determining the venue of the action (Riano)  Real actions shall be commenced and tried n the proper court which has jurisdiction over the area wherein the real property involved. it is not enough that the action must deal with real property. (2005) and Biaco v. Sec. Sec. Philippine Countryside Rural Bank. or in the case of a non-resident defendant. Local and transitory actions Local action  One that could be instituted in one specific place [2011 Reviewer]  Venue depends upon the location of the property involved in the litigation (Riano) Transitory action  One that could be prosecuted in any one of several places [2011 Reviewer]  Its venue depends upon the residence of the plaintiff or the defendant at the option of the plaintiff (Riano) 5.

[Riano citing Gomez v. CC . This is a ground for a motion to dismiss. ownership or liability of a particular property but which are intended to operate on these questions only as between the particular parties to the proceedings and not to ascertain or cut-off the rights or interest of all possible claimants [Domagas v. (Riano) The question of whether the trial court has jurisdiction depends on the nature of the action. Every ordinary civil action must be based on a cause of action [Rule 2. Sec. (Riano)  There is a failure to state a cause of action if allegations in the complaint taken together.. [Rule 2.REMEDIAL LAW REVIEWER Action in rem Action in personam An action to impose responsibility or liability upon a person directly Action quasi in rem  A proceeding to subject the interest of a named defendant over a particular property to an obligation/lie n burdening it  Deal with the status.Law. whether the action is in personam. Jensen (2005)] Judgment is binding upon particular persons Ex: Action for partition. Quasi-contract. Meaning of cause of action A cause of action is the act or omission by which a party violates a right of another. do not completely spell out the elements of a particular cause of action. The Chairman of PVA (1985)] 3. i. 1156.  Defendant‘s act/omission in violation of plaintiff‘s right [Ma-ao Sugar Central v. naturalization proceedings Judgment is binding only upon parties impleaded or their successors in interest Ex: Action for specific performance.‖ It only means that the plaintiff‘s allegations are insufficient for the court to know that the rights of the plaintiff were violated by the defendant. Barrios (1947)] (Asked in the 1997 Bar Exam). Acts and omissions punishable by law and Quasi-delict. Court of Appeals (2004)] . National Coconut Corporation (1952)] 2.  Defendant‘s correlative obligation to respect plaintiff‘s right. action to foreclose real estate mortgage 90 A proceeding to determine the state/condition of a thing II. [Riano citing Biaco v. CAUSE OF ACTION 1. Failure to state a cause of action  There is a failure to state a cause of action if the pleading asserting the claim states no cause of action. Right of action versus cause of action [Regalado] Right of action The remedial right or right to relief granted by law to a party to institute an action against a person who has committed a delict or wrong against him Right to sue as a consequence of the delict Whether such acts give him right of action determined by substantive law Cause of action The delict or wrongful act or omission committed by the defendant in violation of the primary rights of the plaintiff The delict or wrong Determined by averments in pleading regarding acts committed by defendant the the the the Judgment is binding on the whole world Ex: Accion reivindicatoria. or quasi in rem. action to recover money or property (real or personal) NOTE: There can be no right of action without a cause of action being first established [Regalado citing Español v. Sec. in rem. 1] A cause of action stems from the sources of obligations under Art.1(g)]  It is submitted that the failure to state a cause of action dos not mean that the plaintiff has ―no cause of action. Sec. [Sagrada Orden etc v. Contract. [Rule 16. Philippine Countryside Rural Bank (2007)] The distinction is important to determine whether or not jurisdiction over the person of the defendant is required and consequently to determine the type of summons to be employed.e. annulment of marriage.2] Elements of a Cause of Action [cited in Riano]  Plaintiff‘s legal right.

4]  Filing of the 1st complaint may be pleaded in abatement of the 2nd complaint. It is the filing of separate complaints for these several reliefs that constitutes splitting up of the cause of action which is proscribed by Rule 2. [Baldovir vs. The former refers to an insufficiency in the allegations of the complaint while the latter refers to the failure to prove or to establish by evidence one‘s stated cause of action. SM Brewery (1969)] 91 4. A single act/omission can be violative of various rights at the same time. However. Sarte. on motion or motu propio. Sec.3]: . Test of the sufficiency of a cause of action Whether or not admitting the facts alleged. The singleness of a cause of action lies in the singleness of the delict/wrong violating the rights of a person. Sec.  TOTALITY RULE . 6]  Misjoinder of causes of action is not a ground for dismissal of an action. [Rule 2. and .  A MTD under Rule 16 Sec. 3] Purpose [City of Bacolod v. Sec. If only 1 injury resulted from several wrongful acts. 5 and CJS] Purpose: promote the policy on avoiding multiplicity of suits. Nemo debet vexare pro una et eadem causa (No man shall be twice vexed for one and the same cause). 5.  To avoid the costs and expenses incident to numerous suits.Where the claims in all the causes of action are principally for recovery of money. Sec. o The State and its political subdivisions. [Rule 2. 3 and 4. de Leo (2005)] 6. [City of Bacolod v. [Riano citing Rule 2.  There is no sanction against non-joinder of separate causes of action since a plaintiff needs only a single cause of action to maintain an action (Regalado). It is also the process of uniting 2 or more demands or rights of action in one action. (Riano) only 1 cause of action arises. [Joseph v. (Regalado) Effects of splitting a cause of action: [Taken from 2011 Reviewer]  The filing of one or a judgment upon the merits in any one is available as a ground for the dismissal of the others. SM Brewery (1969)]  To prevent repeated litigation between the same parties in regard to the same subject or controversy. 5]:  The party joining the causes of action must comply with the rules on joinder of parties. where there is only one delict/wrong. Splitting a single cause of action and its effects Definition: The act of instituting two or more suits on the basis of the same cause of action. PARTIES TO CIVIL ACTIONS Requirements for a person to be a party to a civil action:  HE MUST BE EITHER [Rule 1.  Where causes of action are between the same parties but pertain to different venues/jurisdictions. be severed and proceeded with separately. Bautista (1989)] For a single cause of action or violation of a right. 1(e) or (f) may be filed in order that the complaint may be dismissed. Sec. the aggregate amount claimed shall be the test of jurisdiction. [Rule 2.A juridical person.A natural person.  A misjoined cause of action may.  To protect the defendant from unnecessary vexation. the court could render a valid verdict in accordance with the prayer of the complaint [Santos v. as when the act constitutes juridically a violation of several separate and distinct legal obligations. the joinder may be allowed in the RTC provided one of the causes of action are within the RTC‘s jurisdiction and the venue lies therein. the plaintiff may be entitled to several reliefs. . 550] Requisites [Rule 2. there is but a single cause of action regardless of the number of rights that may have been violated belonging to one person. created by law. III. The rule however is purely permissive as the plaintiff can always file separate actions for each cause of action. Sec. 36 Phil. Basis: A party may not institute more than one suit for a single cause of action.4] The act of dividing a single or indivisible cause of action into several parts or claims and bringing several actions thereon.REMEDIAL LAW REVIEWER  A failure to state a cause of action is not the same as an absence or a lack of cause of action. Sec. Joinder and misjoinder of causes of action Joinder of Cause of Action: It is the assertion of as many causes of action as a party may have against another in one pleading alone. or  A judgment upon the merits in any of the complaints is available as ground for dismissal of the others based on res judicata. Sec. o Other corporations. Misjoinder of causes of action [Rule 2. institutions and entities for public interest or purpose. on the ground of litis pendentia.  The joinder shall not include special civil actions or actions governed by special rules.

representatives as parties.  If not engaged in business in the Philippines. or the third (fourth.1]  DEFENDANT – One claiming an interest in the controversy or the subject thereof adverse to the plaintiff. [Berman v. . does not exclusively apply to the original plaintiff [Rinao]. 122.  If not licensed. 21. etc. such as on account of minority. Ramirez (1906).2] . The term may also include [Rule 3.The original plaintiff becoming a defendant to the original defendant‘s counterclaim. . He may be made a defendant and the reason therefore shall be stated in the complaint. necessary parties.Only natural or juridical persons or entities authorized by law may be parties in a civil case. [Rule 3.000. also refers to the corss-defendant. insanity.  HE MUST BE THE REAL PARTY IN INTEREST. o A political party incorporated under Act 1459 [now BP 68 (Corporation Code)]. 627)]. Sec. 1772 in rel. Sec. Sec.The party entitled to the avails of the suit. . but it may be sued in our courts. or the third (fourth. the crossclaimant. lack of juridical personality or any other general disqualifications It can be a ground for a MTD [Rule 16 (1) (d)] Lack of legal personality to sue The plaintiff is not the real party in interest 92 It can be used as ground for a MTD based on the failure of complaint to state a cause of action. Rules: o Every action must be prosecuted or defended in the name of the real party in interest. [Rule 16 (1) (g)] Parties to a civil action  PLAINTIFF – One having interest in the matter of the action or in obtaining the relief demanded. Ramirez and Versoza v. the claiming party or the original claiming party and is the one who files the complaint [Riano].)-party defendant. o The estate of a deceased person [Limjoco vs.There is no law authorizing sole proprietorship to file a suit. Corporation Code]  HE MUST HAVE THE LEGAL CAPACITY TO SUE. partnerships and associations for private interest or purpose to which the law grants a juridical personality. o A legitimate labor organization may sue and be sued in its registered name. . o A corporation by estoppel is precluded from denying its existence and the members thereof can be sued and be held liable as general partners.An entity authorized by law.An unlicensed foreign corporation is nonetheless permitted to bring suit in the Philippines if it is suing on an isolated transaction. [Rule 3. [Rimbunan v. Sec 1): . As to its properties. with respect to its property. CC] . Labor Code] o The Roman Catholic Church has legal capacity to sue. and (ii) the suits are in connection with the settlement and closure of its affairs. BP68. Sec. separate and distinct from that of each shareholder. Fernandez(49 Phil. [Riano citing Sec. [Riano citing Art. Cheng (2005)] . incompetence. the counter-claimant. may refer to the claiming party.UNWILLING CO-PLAINTIFF – A party who should be joined as plaintiff but whose consent cannot be obtained. partner or member [Art. [Riano citing Sec. 2429(e). it may sue or be sued in our courts.)-party plaintiff [Rule 3. alternative defendants  Real party in interest [Rule 3. The Corporation Code of the Philippines] o A contract of partnership having a capital of P3. it cannot sue. Lack of legal capacity to sue The plaintiff‘s general disability to sue. etc. but it cannot be sued in our courts on such transaction.Thus. [Riano citing Art. Civil Code] o A registered labor union [Sec. 1768. [Barlin v. indigent parties. 10] . Intestate Estate of Fragante (1948)].00 or more but which fails to comply with the registration requirements is nevertheless liable as a partnership to third persons. .The party who stands to be benefited/injured by the judgment in the suit. Oriental (2005)] .A sole proprietorship is not vested with juridical personality and cannot sue or file or defend an action. Real parties in interest. 243.2] . Sec 1] 1.A sole proprietorship does not possess a judicial personality separate and distinct from the personality of the owner of the enterprise. the ascertainment of whether a foreign corporation is merely suing on an isolated transaction or is actually doing business in the Philippines requires the elicitation of at least a preponderant set of facts. o A dissolved corporation may prosecute and defend suits by or gainst it provided that the suits (i) occur within three years after its dissolution. indispensable parties. [Rule 3. the archbishop or diocese to which they belong may be a party. it may sue in courts on a single isolated transaction. Note: A foreign corporation may be party to an action in Philippine courts:  If licensed to engage in business in the Philippines. 44. PD 442 (Labor Code)]. to Art. Riano citing Barlin v.REMEDIAL LAW REVIEWER o Corporations.

An indispensable party is a real party-ininterest without whom no final determination can be had of an action. Sec.Indispensable parties v.The amount of docket and other lawful fees is a lien on any judgment rendered in favor of indigent party.The authority to litigate as an indigent shall include an exemption from: o Payment of docket fees and other lawful fees. Sec.  Alternative Defendants [Rule 3. Sec. 1 which provides that only natural or juridical persons may be parties in a civil action. except as provided by law [Rule 3. 9 par 1] . the action survives and may be continued by/against the incompetent/ incapacitated assisted by his legal guardian or guardian ad litem [Rule 3. the pleader is under obligation to: (i) set forth the name of the necessary party. (Riano) . [Oposa v. or for a complete determination or settlement of the claim subject of the action . [Art. he may join any or all of them in the alternative. . or if he has none. Sec. and the judgment rendered therein shall be without prejudice to the rights of such necessary party [Rule 3. . .An agent acting in his own name and for the benefit of an undisclosed principal may sue or be sued without joining the principal. Necessary parties [taken from 2011 Reviewer and Riano] Indispensable parties [Rule 3. (Riano)  Representative as parties [Rule 3.One who is not indispensable but ought to be joined as a party if complete relief is to be accorded as to those already parties. Sec. substantial and material [Sumalo v. a guardian ad litem. o If the court determines after hearing that the party declared indigent has sufficient income or property. Sec. the proper docket and other lawful fees shall be assessed and collected by the clerk of court. . Sec. 8] Should be joined whenever possible. . without injuring or affecting that interest.While the authority to litigate as an indigent party may be granted upon an ex parte application and hearing. in his absence. 18]  Indispensable parties . Sec.The non-inclusion of a necessary party does not prevent the court from proceeding in the action. Sec. Sec. o Payment of TSN. 21] . 1883. mother. 4] o A minor or a person alleged to be incompetent may sue or be sued. o Husband and wife shall sue and be sued jointly. . 8] .The joinder of a party becomes compulsory when the one involved is an indispensable party. and (ii) state the reason why the necessary party is omitted.The beneficiary shall be included in the title of the case and shall be deemed to be the real party in interest.Where the plaintiff is uncertain against whom of several persons he is entitled to relief. so that it will not necessarily be directly or injuriously affected by a decree which does not complrete justice between them. Sec. [Rule 3. 7] Must be joined under any and all conditions. 5] o Minors (represented by their parents) are real parties in interest under the principle of intergenerational responsibility. Exception: If the contract involves things belonging to the principal. if known. 9 par 3]  Indigent Party [Rule 3.Those acting in fiduciary capacity.INDIGENT – One who has no money or property sufficient and available for food. unless court otherwise provides. [Rule 3. Factoran (1993)] Note: This doctrine is inconsistent with Rule 3.A party who has such an interest in the controversy or subject matter that a final adjudication cannot be made. 3] . with the assistance of his father.Whenever in any pleading in which a claim is asserted a necessary party is not joined.REMEDIAL LAW REVIEWER o The party‘s interest must be direct. such as a trustee/guardian/executor/administrator or a party authorized by law or ROC. Sec.7] .7] . 93 They are those with such an interest in the controversy that a final decree would necessarily affect their rights so that the court cannot proceed without their presence. Litton (2006)]. guardian. [Riano citing Rule 3. o If a party becomes incompetent/ incapacitated during the pendency of the action. Sec. his presence being a sine qua non for the exercise of judicial power No valid judgment if indispensable party is not joined. . Necessary parties [Rule 3. CC]  Necessary Party [Rule 3. [Riano citing Rule 3. Sec.A person is NOT an indispensable party if his interest in the controversy or subject matter is separable from the interest of the other parties. the action can proceed even in their absence because their interest is separable from that of the indispensable party The case may be determined in court but the judgment therein will not resolve the entire controversy if a necessary party is not joined They are those whose presence is necessary to adjudicate the whole controversy but whose interests are so far separable that a final decree can be made in their absence without affecting them. it may be contested by the adverse party at any time before judgment is rendered. shelter and basic necessities. 13] .

[Rule 3.REMEDIAL LAW REVIEWER although a right to relief against one may be inconsistent with a right to relief against the other. [Regalado]  There is no class suit in an action filed by associations of sugar planters to recover damages in behalf of individual sugar planters for an allegedly libelous article in an international magazine. Sec. Requisites (Regalado): . had been made in the honest conviction that it was proper and the subsequent dropping is requested because it has turned out that such inclusion was a mistake.Subject matter of the controversy is one of common/general interest to many persons. Permissive Joinder of Parties There are multiple causes of action separately belonging to several persons. in one single complaint or may themselves maintain or be sued in separate suits.  Any party in interest shall have the right to intervene to protect his individual interest. [Rule 3. v. Class suit  Requisites [Rule 3. Sec. Compulsory and permissive joinder of parties  Compulsory joinder of indispensable parties [Rule 3.The persons are so numerous that it is impracticable to join them all as parties (i. Note: SERIES OF TRANSACTIONS – Transactions connected with the same subject matter of the suit. Inc. The rule presupposes that the original inclusion CLASS SUIT AND DERIVATIVE SUIT. (Riano)  Neither misjoinder nor non-joinder of parties is a ground for dismissal of an action. A party is not joined when he is supposed to be joined but is not impleaded in the action. What is required by the Rules is a common or general interest in the subject matter of the litigation. impracticable to bring them all before the court).Parties in interest without whom no final determination can be had of an action shall be joined either as plaintiffs or defendants  Permissive joinder [Rule 3. 6] .  Objections to defects in parties should be made at the earliest opportunity. as plaintiffs or defendants.  The rule on misjoinder or non-joinder of parties does not comprehend whimsical and irrational dropping or adding of parties in a complaint. [Riano citing Mathay v. the action is subject to dismissal regardless of the cause of action [Rule 16. Sec. 3.Parties bringing the class suit are sufficiently numerous and representative of the class and can fully protect the interests of all concerned. 12]  If a class suit is improperly brought.Parties can be joined. Sec. COMPARED (Asked in the 2005 Bar Examination) CLASS SUIT DERIVATIVE SUIT . .  A taxpayer's suit or a stockholder's derivative suit is in the nature of a class suit. .The representative sues/defends for the benefit of all.e. [Rule 3.Right to relief arises out of the same transaction or series of transactions. . [Riano citing Lim Tan Hua v.  Objections to misjoinder cannot be raised for the first time on appeal [Regalado citing Garcia v Chua]. There is no common or general interest in reputation of a specific individual. Misjoinder parties and non-joinder of  A party is misjoined when he is made a party to the action although he should not be impleaded. 4.There is a question of law or fact common to all the plaintiffs or defendants. a motion to strike the names of the parties must be made. . [Rule 3. Sec 1 (d)]. Consolidated Bank &Trust Company (1974)] Class Suit There is a single cause of action pertaining to numerous persons. although subject to the other requisites of the corresponding governing law especially on the issue of locus standi. Sec. Ramolete(1975)] 94 2. . Sec. 11]  Parties may be dropped or added by order of 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.11]  Any claim against a misjoined party may be severed and proceeded with separately. Each of the sugar planters has a separate and distinct reputation in the community not shared by the others. [Riano citing Newsweek.Such joinder is not otherwise proscribed by the rules on jurisdiction and venue.  The moment such defect becomes apparent. 12] . Intermediate Appellate court (1986)]  A class suit does not require a commonality of interest in the questions involved in the suit. 11]  Non-joinder of an indispensable party is not a ground for outright dismissal. Sec 7] . What it really contemplates is erroneous or mistaken non-joinder and misjoinder or parties. Reasonable opportunity must be given for his inclusion by amendment of the complaint [Cortez v Avila (1957)].

where the claim is not extinguished by the death of the party (e. . 15] The service of summons may be effected upon all the defendants by serving upon any of them.g. [Rule 14.If no legal representative is named or if the one so name shall fail to appear within the specified period.The substitute defendant need not be summoned. It should be filed as a claim against the decedent‘s estate without need of proving the claim. Sec. . 12] An action brought by minority shareholders in the name of the corporation to redress wrongs committed against it. . Effect: Persons associated in an entity without juridical personality may be sued under the name by which they are generally/commonly known.  A wrong is committed against a 3rd person in the course of such transaction.The claim arose from express/implied contract. 8] 6. .Defendant dies before the entry of final judgment in the court in which the action was pending.  The defendant‘s death will not result in the dismissal of the action. 16] (Asked in the 1998 and 1999 Bar Exams) . Sec. It is a remedy designed by equity and has been the principal defense of the minority shareholders against abuses by the majority. . [Rule 3. Hence. and the action will continue until the entry of final judgment (Asked in the 2000 Bar Exam)  However. one or more may sue or defend for the benefit of all. Sec.15]  There are 2 or more persons not organized as a juridical entity. 19]  General rule: The rule does not consider the transferee an indispensable party. Lim Yu (2001)) . execution shall not issue in favor of the winning plaintiff. cases involving property and property rights [Bonilla v Barcena (1976)]). Action on contractual money claims [Rule 3. 17] Requisites: . The order of substitution shall be served upon the parties substituted for the court to acquire jurisdiction over the substitute party [Ferreria v Vda de Gonzales (1986]. the real party in interest is the corporation itself. Sec.The heirs may be substituted for the deceased without requiring the appointment of an executor or administrator. Sec. Sec.  They enter into a transaction.  Death or separation of a party who is a public officer [Rule 3. [Rule 3. o Give the name and address of the legal representatives. and the parties are so numerous that it is impracticable to bring them all before the court.Public officer is a party to an action in his official capacity. Suits against entities juridical personality without Requisites [Rule 3.It is satisfactorily shown to the court by any party. .The court shall order the legal representative(s) to appear and be substituted within 30 days from notice. o that there is a substantial need to continue/maintain the action and o The successor adopts/continues (or threatens to do so) his predecessor‘s action . In a derivative action. 95 5. Sec. . [Rule 3.REMEDIAL LAW REVIEWER When the subject matter of the controversy is one of common or general interest to many persons. . for which the directors refuse to sue.The action must primarily be for recovery of money/debt or interest thereon. he either dies/resigns or otherwise ceases to hold office. but they cannot sue under such name.During the pendency of the action. the court may order the opposing party to procure the appointment of an executor or administrator for the estate. or upon the person in charge of the office or place of business maintained under such name. Sec. .  The deceased shall be substituted by his legal representatives in the manner provided for in Rule 3. Transfer of interest during the pendency of the action [Rule 3. 16. the action may proceed without the need to implead him.The court may appoint a guardian ad litem for the minor heirs. Note: Failure to comply with this duty is a ground for disciplinary action. not the shareholders who actually instituted it [Lim vs.The party or officer affected was given reasonable notice of the application therefore and accorded an opportunity to be heard.Counsel‘s duty: o Inform court within 30 days after such death of the fact thereof. Sec. Effect of death of party litigant [this section is taken from the 2011 Reviewer] Substitution of parties  Death of a party. within 30 days after the successor takes office. 20]  Requisites: .

Sec.For personal actions – Where the plaintiff resides.Where the property (or any portion thereof) is situated/found. 1.  If the case involves 2 properties located in 2 different places: . on Summary Procedure) 5. in which case the remaining plaintiffs can proceed with their own cause of action. par 1]  Forcible entry and detainer actions shall be commenced and tried in the municipal court of the municipality or city wherein the real property involved. [Riano citing Spouse Lantin v. is not enough to preclude parties from bringing a case in other venues.g. . VENUE Venue is the place.The case will be dismissed if the plaintiff‘s interest is transferred to defendant unless there are several plaintiffs. . 96 3.If they are the objects of 2 distinct transactions. or a portion thereof.  Where the defendant or any of the principal defendants resides. . [Rule 4.in writing . v. Rule 4. is situated.  Stipulations as to Venue is permitted if the parties have validly agreed . the stipulated venue is in addition to the venue provided for in the rules.on the exclusive venue In the absence of qualifying restrictive words (e.before the filing of the action . IV. 1 par 2]  If the property is located at the boundaries of 2 places. venue stipulation is merely permissive. 6. it relates only to the place of the suit and not to the jurisdiction of the court. Blanco (1969)] The mere stipulation on the venue of an action. Venue of real actions  Shall be commenced and tried in the proper court which has jurisdiction over the area wherein the real property involved. [Regalado]  In the absence of qualifying restrictive words (e. When the rules on venue do not apply [Rule 4. separate actions should be filed in each place unless properly joined. Lantion.Personal status of plaintiff . [Riano citing Manila Railroad Company v. not as limiting venue to the specified place. 2]  Where the plaintiff or any of the principal plaintiffs resides. The agreement of parties must be restrictive and not permissive. . The parties must be able to show that such stipulation is exclusive. that is. Sec. Venue of personal actions At the plaintiff‘s election: [Rule 4. Sec. (1911)] 4. the parties must have agreed on the exclusive nature of the venue of any prospective action between them. venue stipulation is merely permissive. In the absence of qualifying or restrictive words. however. file the case in either place (at the plaintiff‘s option). 3] [also taken from 2011 Reviewer]  Non-resident found in the Philippines – . . where he may be found. the stipulation should be deemed as merely an agreement on an additional forum. or petitioner the subject matter and respondent Not a ground for a motu Lack of jurisdiction over propio dismissal (except the subject matter is a in cases of summary ground for a motu procedure.  Non-resident not found in the Philippines – An action may be filed only when the case involves: . Attorney General.g. action for damages arising from libel). Sec.For real actions – Where the property is located. Effects of stipulations on venue  To be binding.Any property of said defendant located in the Phil. 4]  If a specific rule/law provides otherwise (e. . Venue of actions against nonresidents [Rule 5.If the properties are the object of the same transaction.REMEDIAL LAW REVIEWER  Exception: When the substitution by or joinder of the transferee is ordered by court. 1.Where plaintiff resides. Venue versus jurisdiction [Riano] Distinctions between Venue and Jurisdiction (Asked in the 2006 and 2008 Bar Exams) Venue Jurisdiction Place where the action is Power of the court to instituted hear and decide a case May be waived Jurisdiction over the subject matter and over the nature of the action is conferred by law and cannot-be waived Procedural Substantive May be changed by the Is fixed by law and written agreement of the cannot be the subject of parties the agreement of the parties Establishes a relation Establishes a relation between plaintiff and between the court and defendant. or the geographical are where an action is to be filed and tried. or a portion thereof is situated. ―only/solely/exclusively in such court‖). (2006)] 2. Sec. that is.g. In civil cases. ―only/solely/exclusively in such court‖). Rule proprio dismissal. file it in any of the 2 places.  In case of a non-resident-defendant. [Polytrade Corp. [Rule 4.

the venue cannot truly be said to have been improperly laid since for all intents and purposes.Means of waiving venue: o Where parties validly agreed in writing before the filing of the action on the exclusive venue thereof [Rule 4. 3] Definition The pleading alleging the plaintiff‘s cause/s of action. submitted to the court for appropriate judgment [Rule 6.REMEDIAL LAW REVIEWER the stipulated venue is in addition to the venue provided for in the rules. Sec 4 (b)]. [Tantuico v. inferences and arguments. 5. the venue though technically wrong may yet be considered acceptable to the parties for whose convenience the rules on venue had been devised. 2] 1) Complaint. PLEADINGS 1. Sec. Consti]  WAIVER OF VENUE: . Default 7. [Art. [Polytrade Corp. It should contain a concise statement of the ultimate facts constituting the plaintiff‘s cause/s of action. conclusions or inferences of facts from facts not stated. or incorrect inferences or conclusions from facts stated. 4) Cross-claim. v.  omitting statement of mere evidentiary facts. 5) 3rd-party Complaint. Filing and Service of pleadings 8. statements of law. [Rule 8. Republic (1991)] ULTIMATE FACTS – Essential facts constituting the plaintiff‘s cause of action. Sec. IAC (1991)] .  Conclusions of law alleged in the complaint are not binding on the court. Sec 1] Its function is to inform the defendant clearly and definitely of claims made against him so that he may be prepared to meet the issues at trial. Amendment Definition Pleadings are the written statements of the respective claims and defenses of the parties. SEC. Although venue is mandatory. Parts of a pleading 4. TEST OF SUFFICIENCY OF THE FACTS ALLEGED IN THE COMPLAINT: WON upon the averment of facts. A fact is essenti al if it cannot be stricken out without leaving the statement of the cause of action insufficient. 2) Answer. 3) Counterclaim. V. Other rules on venue  IMPROPER VENUE: The Court may not motu propio dismiss an action on the ground of improper venue.  Legal conclusions. It should inform the defendant of all material facts on which the plaintiff relies to support his demand. Kinds of Pleadings Pleadings allowed [RULE 6. Complaint [Rule 6. 1] Pleading Purpose: To submit a claim/defense for appropriate judgment May be initiatory Motion Purpose: To apply for an order not included in the judgment Cannot be initiatory as they are always made in a case already filed in .Exception: In summary procedures. It should state the theory of a cause of action which forms the bases of plaintiff‘s claim of liability. It shall contain:  in a methodical and logical form  a plain.  The details of probative matter or particulars of evidence. Pleadings allowed in small claim cases and cases covered by the rules on summary procedure 3. [Diaz v. Always filed judgment before May be filed even after judgment 97 1. Sec. a. 7) Reply. 6) Complaint-in-intervention. it is waivable. Allegations in a pleading 5. Effect of failure to plead 6. Kinds of Pleadings 2.  CHANGE OF VENUE: The SC has the power to change the venue to prevent a miscarriage of justice. Adiong (1993)] . [Dacoycoy v. 8. Blanco (1969)]  The court may declare agreements on venue as contrary to public policy if such stipulation unjustly denies a party a fair opportunity to file suit in the place designated by the Rules [Regalado. not evidentiary facts or legal conclusions. citing Hoechst Philippines v Torres (1978)]. concise and direct statement of ultimate facts on which the plaintiff relies for his claim. [Remitere v. a valid judgment may be properly rendered [Pamintan v. Montinola (1966)] Not ultimate facts:  Evidentiary or immaterial facts.Until and unless the defendant objects to the venue in a motion to dismiss prior to a responsive pleading. Costales (1914)]. and o Failure to raise improper venue as affirmative defense or in motion to dismiss court.

[Rule 6. Sec. After the answer [Rule 11. 6] Definition Any claim which a defending party may have against an opposing party. [Philamgen v. Sec. it must be answered 10 days from service [Rule 11. Sec 5]  Negative Defenses – Specific denials of the material facts alleged in the pleading of the claimant essential to his cause of action. [Sun Insurance v. Sec 4] (Asked in the 2002 and 2008 Bar Exams). o When justice requires. the same proceedings are had as in the original complaint. Sec. Sec. release.  In an original action before the RTC.  A counterclaim is in the nature of a crosscomplaint. otherwise. prescription. 9]  Counterclaims/cross-claims arising after the answer. citing Quintanilla v CA (1997)] General rule: A compulsory counterclaim not set up in the answer is deemed barred. Counterclaims [Rule 6. no default. payment and any other matter by way of confession and avoidance. Sec. Permissive counterclaim It does not arise out of nor is it necessarily connected with the subject matter of the opposing party's claim. the remedy where a counterclaim is beyond the jurisdiction of the MTC is to set off the claims and file a separate action to collect the balance. Sweet Lines (1993)]  Affirmative Defenses – Allegations of new matters which.  may be presented as a counterclaim/cross-claim by supplemental pleading before judgment. Not barred even if not set up in the action.Denial pregnant with an admission. o Excusable neglect. Need not be answered. . Answer [Rule 6. Sec. May require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction. [Gojo v. Asuncion (1989)]  A plaintiff who fails or chooses not to answer a compulsory counterclaim may not be declared in default. It is a denial pregnant with the admission of the substantial facts in the pleading responded to which are not squarely denied. 7]  In the case of Agustin v. Rules on counterclaims  A permissive counterclaim requires the payment of docket fees. the excess is considered waived. or be necessarily connected with.By leave of court. Ajax. Goyala (1970)] i.  with the court‘s permission. Kinds of counterclaims Compulsory counterclaim One which arises out of or is necessarily connected with the transaction or occurrence -that is the subject matter of the opposing party's claim. 9] . Two kinds of defenses that may be set forth in the answer [Rule 6. In this case. It includes fraud. Although it may be alleged in the answer. 10: . [Regalado. Exception: If it is a counterclaim which either matured or was acquired by a party after serving his answer.  But in Calo v. the defendant can be declared in default. Must be answered. 4] Definition The pleading where the defendant sets forth his affirmative/negative defenses. Barred if not set up in the action. 98 c.  For this reason.Negative Pregnant . the transaction/occurrence that is the subject matter of the opposing party's claim. It is in effect an admission of the averment it is directed to. the counterclaim may be considered compulsory regardless of the amount. principally because the issues raised in the counterclaim are deemed automatically joined by the allegations in the complaint. [Rule 11. .  Upon its filing.Before judgment.  It must be within the court‘s jurisdiction both as to the amount and the nature. Compulsory counterclaim Requisites of a compulsory counterclaim [Rule 6. It may also be the response to a counterclaim or a cross-claim. Bacalan.On the grounds of: o Oversight. . Sec 7] (Asked in the 1998 bar exam)  It must arise out of. while hypothetically admitting the material allegations in the claimant‘s pleading. [Rule 11. it may be pleaded by filing a supplemental answer or pleading before judgment. if a counterclaim is filed in the MTC in excess of its jurisdictional amount.REMEDIAL LAW REVIEWER b. 8]  Exception: Pleadings may be amended under Rule 11. o Inadvertence. Sec.  It does not require for its adjudication the presence of 3rd parties of whom the court cannot acquire jurisdiction. it is not part of the answer. Does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. would nevertheless prevent/bar recovery by him. How to raise counterclaims  Included in the answer: A compulsory counterclaim or a cross-claim that a defending party has at the time he files his answer shall be contained therein.

Sec. subrogation or any other relief.A claim filed against an original cross-claimant.  Instead. Permissive counterclaim [NOTE: Please also refer to table comparing compulsory and permissive counterclaims] Test to determine whether a counterclaim is compulsory or permissive LOGICAL RELATIONSHIP TEST: Where conducting separate trials of the respective claims would entail substantial duplication of effort and time and involves many of the same factual and legal issues. 8] Requisites for cross-claim  A claim by one party against a co-party. CA (1992)] e. 2] Exceptions:  When it is outside the court‘s jurisdiction. But if he opts to set up his counterclaim. 9]  Counter-Counterclaim . the proper recourse for a defendant who desires to pursue his compulsory counterclaim in the same proceeding is not a MTD. 11] [NOTE: See also table in immediately preceding subsection] Definition: It is a claim that a defending party may. 3rd-party complaint Brings into the action a 3rd person who was not originally a party Initiative is with the person already a party to the action 3rd-party complaint Need not be within the jurisdiction of the court trying the main case Diminishes/defeats the Same Initiative is with a nonparty who seeks to join the action Counterclaim Must be within the jurisdiction of the court trying the main case Need not Complaint in intervention iii. There could also be a 4th/etc. [Rule 9. Sec.REMEDIAL LAW REVIEWER Note:  The filing of a MTD and the setting up of a compulsory counterclaim are incompatible remedies. [Torres v. etc. Sec. General rule: A cross-claim is always compulsory. he may still plead his ground for dismissal as an affirmative defense in his answer. A cross-claim not set up shall be barred. [BA Finance v.  In the event that a defending party has a ground for dismissal and a compulsory counterclaim at the same time. indemnity. In this case. d. and simultaneously move that he be declared as in default on the compulsory counterclaim. but not a cross-claim seeking an affirmative relief. The dismissal of the complaint carries with it the dismissal of a cross-claim which is purely defensive.  If any of the grounds to dismiss under Rule 17. Sec. he must choose only one remedy. file against a person not a party to the action for contribution. 99 ii.  If he decides to file a MTD. dismissal of action due to plaintiff‘s fault shall be without prejudice to the defendant‘s right to prosecute his counterclaim in the same/separate action.  The cross-claimant is prejudiced by the claim against him by the opposing party. Third (fourth. Sec.Against an Against a party opposing party person not a party to the action Must arise May arise out of or Must be in out of the be necessarily respect of the transaction connected with opponent‘s that is the the transaction or (plaintiff‘s) subject the subject matter claim matter of the of the opposing original party‘s claim action or of a (compulsory counterclaim counterclaim). [Meliton v. Co (1993)] adjudication of said cross-claim. and reserve the right to present evidence ex parte on his compulsory counterclaim. CA (1973)] Cross Claim.  Counter-Cross-claim . he will lose his counterclaim.) party complaints [Rule 6. Cross-claims [Rule 6. Rule 17. he should only move to have the plaintiff declared non-suited on the complaint so that the latter can no longer present his evidence thereon. Counterclaim and Third Party Complaint (Asked in the 1997 and 1999 Bar Exams) Cross-claim Counterclaim 3rd Party complaint Against a co. in respect of his opponent's claim. Effect on the Counterclaim when the complaint is dismissed Under Section 3. 3 arise. the cross-claim is considered permissive.-party complaint with the same purpose and function.A claim asserted against an original counter-claimant. with leave of court. or therein it may not (permissive counterclaim) Counter-counterclaims and counter-cross-claims [Rule 6.  It must arise out of the subject matter of the complaint or of the counterclaim.  If the court cannot acquire jurisdiction over 3rd parties whose presence is necessary for the .

Its purpose is "to settle in one action and by a single judgment the whole controversy (among) the persons involved.  WON the 3rd-party defendant may assert any defenses which the 3rd-party plaintiff has or may have to the plaintiff‘s claim." [First Philippine Holdings v. 3]  COMPLAINT-IN-INTERVENTION – If intervenor asserts a claim against either or all of the original parties. Reply [Rule 6. Sandiganbayan (1996). since he is not an original party. and g. Sandiganbayan]  It is neither compulsory nor mandatory but only optional and permissive.that the intervention must not unduly delay or prejudice the adjudication of the rights of the original parties and that the intervenor‘s rights may not be fully protected in a separate proceeding. CA (2002)]  The Court has full discretion in permitting or disallowing intervention. not merely contingent or expectant so that the intervenor will either gain or lose by the direct legal operation of the judgment. [Mabayo v. Sec. is connected with the plaintiff‘s claim. CFI (1946)]  WON it arises out of the same transaction on which the plaintiff's claim is based. f. movant can also file a certiorari case. which must be exercised judiciously and only after consideration of all the circumstances obtaining in the case. NOTE:  Leave of court to file a 3rd-party complaint may be obtained by motion under Rule 15. Meaning of legal interest The legal interest must be one that is actual and material. Complaint-in-intervention Pleadings in intervention [Rule 19. 10] Definition: The plaintiff‘s response to the defendant's answer. [Republic v.  Summons on 3rd (4th/etc. Not an independent action Intervention is not an independent action. Remedy for denial of motion for intervention  The movant may file a motion for reconsideration since the denial of a motion for intervention is an interlocutory order. [Office of Ombudsman v. becomes a litigant therein to enable him to protect or preserve a right or interest which may be affected by such proceeding.REMEDIAL LAW REVIEWER recovery sought by the opposing party diminish/defeat the recovery sought by the opposing party May exceed in amount or be different in kind from that sought in the original complaint  when he is so situated as to be adversely affected by a distribution or disposition of property in the custody of the court or of an officer thereof. . or although arising out of another/different transaction.  ANSWER-IN-INTERVENTION – If intervenor unites with the defending party in resisting a claim against the latter. Rule 19] When allowed Intervention shall be allowed when a person has:  a legal interest in the matter in litigation.  Where the trial court has jurisdiction over the main case.  Alleging grave abuse of discretion.legal interest in (1) the matter of litigation.that the movant is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or an officer thereof . [Republic v. CA (1999)]  It is not an absolute right as it can be secured only in accordance with the terms of applicable statute or rule. Samaniego (2010)] Requisites for valid intervention  There must be a motion for intervention filed before rendition of judgment by the trial court.) – party defendant must be served for the court to obtain jurisdiction over his person. [Mago v. (2) the success of either of the parties in the action or (3) against both parties. Central Surety (1968)]  A 3rd-party complaint is not proper in an action for declaratory relief. but is ancillary and supplemental to an existing litigation.  the function of which is to deny or allege facts in denial or in avoidance of new matters alleged by way of defense in the answer and  thereby join or make issue as to such new matters. Sec.  or an interest against the parties. it also has jurisdiction over the 3rdparty complaint. Definition INTERVENTION is a remedy by which a third party.  WON the 3rd-party defendant would be liable to the plaintiff or to the defendant for all/part of the plaintiff‘s claim against the original defendant. direct and of an immediate character. . 100 Cannot exceed amount stated in original complaint the the Tests to determine whether the 3rd-party complaint is in respect of plaintiff's claim [Capayas v. regardless of the amount involved as a 3rd-party complaint is merely auxiliary to and is a continuation of the main action. not originally impleaded in a proceeding.  Movant must show in his motion that he has a: .  or in the success of any of the parties.

 Motion for extension of time to file pleadings. b. [Sec. 11] provided that the amount and nature thereof are within the coverage of this Rule and the prescribed docket and other legal fees are paid. or for reopening of trial. or prohibition against any interlocutory order issued by the court. or for opening of trial. mandamus. motions or petitions:  Motion to dismiss the complaint or to quash the complaint or information except on the ground of lack of jurisdiction over the subject matter. 10]  Defendant may file counterclaim if he possesses a claim against the plaintiff that (a) is within the coverage of this Rule. the defendant shall be barred from suit on the counterclaim.  Reply.Paragraphs must be numbered. 19] Forms used under the Rule of Procedure under Small Claims Cases:  Instead of filing complaint. Parts of a pleading [Rule 7. 5]  Answer shall be filed by way of a Response using Form 3-SCC [Sec. [Sec. Secs. allegations of party's claims/defenses. State address (not PO box) in either case.  Body . relief prayed for and pleading‘s date. c. or prohibition against any interlocutory order issued by the court.  Motion for a bill of particulars.  compulsory counterclaims and cross-claims pleaded in the answer.Court‘s name. parties‘ names) and docket number. Pleadings allowed in small claim cases and cases covered by the rules on summary procedure Under the Revised Rules on Summary Procedure the only pleadings allowed to be filed are:  complaints. and  Interventions. or for reconsideration of a judgment. and each paragraph number must contain a single set of circumstances .  Memoranda.REMEDIAL LAW REVIEWER Effect of failure to reply (Asked in the 2000 bar exam) General rule: Filing a reply is merely optional.Pleading‘s designation. The defendant may also elect to file a counterclaim against the plaintiff that does not arise out of the same transaction or occurrence. but it may add a general prayer for such further/other relief as may be deemed just/equitable.  Petition for certiorari. Sec.Every pleading shall be dated. How a Pleading is Verified [Rule 7. New facts that were alleged in the answer are deemed controverted should a party fail to reply thereto.  Petition for relief from judgment.  Petition for relief from judgment.  Dilatory motions for postponement. exclusive of interest and costs. action‘s title (i. 3. 1 to 3] a. 8]  Where the answer alleges the defense of usury.  Dilatory motions for postponement. Exception: Reply is required:  Where the answer is based on an actionable document.  Motion for a bill of particulars. [Rule 8. Verification and certification against forum shopping [Rule 7.  Motion for new trial. Signature and address Pleading must be signed by the party/counsel. 3] Prohibited pleadings.Specify relief sought. affidavits or any other paper. . ." etc.  That the allegations therein are true and correct of his personal knowledge or based on authentic documents. unless otherwise provided by the law/rules. .  Motion for new trial. NOTE: Courts decision shall be contained in Form 13SCC Prohibited Pleadings and Motions:  Motion to dismiss the complaint except on the ground of lack of jurisdiction. .  Motion for extension of time to file pleadings. and  Interventions.  Third-party complaints. use "1st cause of action. [Rule 8. Sec 4] Verification Pleadings need not be verified. affidavits. the claim shall be filed as a counterclaim in the Response. Caption  Caption . mandamus.  Motion to declare the defendant in default.  Reply. (c) does not require for its adjudication the joinder of third parties.Headings: if more than one cause of action. a Statement of Claim using Form 1-SCC shall be filed [Sec.  Third party complaints. or any other paper. otherwise.e. and (d) is not the subject of another pending action." 2nd cause of action. and  the answers thereto.  Petition for certiorari. or for reconsideration of a judgment.  Motion to declare the defendant in default. or failure to comply with required barangay conciliation proceedings. Sec. Sec 4] By an affidavit:  That the affiant read the pleading. 101 2. (b) arises out of the same transaction or event that is the subject matter of the plaintiff‘s claim.

[Rule 8. [UST Hospital v. The CNFS is to be executed by the petitioner. [Rule 8. simultaneously or successively. the court may allow such deficiency to be remedied if it shall appear that the same was due to inadvertence and not intended for delay. information and belief there is good ground to support it. [Gerales v. 1]  In a methodical and logical form. [Rule 8. and possible denial of substantial justice. to ask the courts to rule on the same/related causes and/or to grant the same or substantially the same relief. (TADI) v. unless otherwise provided. 5] Definition: The filing of multiple suits in different courts. CNFS is required only for complaints or initiatory pleadings (e. 102 4. malice. Sec. the petition is subject to dismissal if a certification was submitted unaccompanied by proof of the signatory‘s authority.in order that the litigant may have ample opportunity to prove their respective claims. Sec 9] Facts that must be Averred Particularly Circumstances showing fraud/mistake averments of fraud/mistake [Rule 8. A counterclaim is not an initiatory pleading. [Rule 8.REMEDIAL LAW REVIEWER Certification of Non-Forum Shopping (CNFS) [Rule 7. not by the counsel.Pleadings as well as remedial laws should be liberally construed . may be avoided. cite the provisions and their applicability. intent. . judgments.  Relief sought.  Plain. knowledge or other condition of the mind of a person may be averred generally [RULE 8. Inc. cross-claim etc.To the best of his knowledge. [PAL v.  However. FASAP (2006)]  Counsel‘s signature is a certification that: . Sec 4]  Legal existence of an organization. Sec 4]  Malice/intent/knowledge or other condition of the mind. CNFS is not required in a compulsory counterclaim.  Direct contempt and administrative sanctions.WON in the 2 or more cases pending. knowledge and other condition of the mind.A party desiring to raise an issue as to the legal existence or capacity of any party to sue or be sued in a representative capacity shall do so by specific denial which shall include supporting particulars within the pleader's knowledge. Likewise.  Omit evidentiary facts. Condition precedent . .  An unsigned pleading produces no legal effect. Sec 6]  Official documents/acts.Circumstances constituting fraud or mistake must be stated with particularity while malice.). . Effect of the signature of counsel in a pleading .  Rights or causes of action. without prejudice and upon motion and after hearing. tribunals. permissive counterclaim. there is identity of:  Parties.  Administrative and criminal actions. otherwise it will be dismissed for lack of cause of action. Allegations in a pleading a. official documents or acts . Failure to provide a certificate of non-forum shopping is sufficient ground to dismiss the petition. Surla (1998)] Failure to comply is not curable by mere amendment of the pleading but shall be cause for the dismissal of the case. Sec 3]  Capacity to sue or be sued. SEC.  Capacity to sue or be sued in a representative capacity.  If defense relied on is based on law. 5] Facts that may be Averred Generally  Conditions precedent. CA (1993)] Requirements of a corporation executing the verification/certification of non-forum shopping Only individuals vested with authority by a valid board resolution may sign the certificate of nonforum shopping in behalf of a corporation. Solidapsi (2002)] (Asked in the 2006 Bar Exam) Test to Determine WON there is Forum Shopping (ASKED IN THE 2002 BAR EXAM) . Manner of making allegations In general [RULE 8. intent. [Rule 8. Effect of Submission of False CNFS or NonSubmission of CNFS  Indirect contempt.g. . sec 5]  Judgments of domestic/foreign courts. but there must still be an allegation that the specific condition precedent has been complied with. Sec 5] in all d. involving the same parties. concise and direct statement of the ultimate facts on which the party pleading relies for his claim/defense. due to technicalities. boards or officers (without need to show jurisdiction). the Court has required that proof of said authority must be attached. SEC.He has read the pleading. [T'Boli Agro-Industrial Development. [Rule 8. In addition. SEC. mistake.a general averment of the performance or occurrence of all conditions precedent shall be sufficient [RULE 8. 3] Fraud.It is not interposed for delay. Effect of Willful and Deliberate Forum Shopping (Asked in the 2006 and 2007 Bar Exams)  Ground for summary dismissal of the case with prejudice.

the compulsory counterclaim. b. 10] Cross-claim A cross-claim is always compulsory. Sec. setting forth the substance of the matters relied upon for such denial. . [Rule 9.Litis pendentia. . . with leave of court. NOTE: General rule: Allegations not specifically denied are deemed admitted [Rule 8. and not merely evidentiary thereof. (Omnibus Motion Rule) [Rule 9]  Exceptions: .Contests the authenticity or due execution of an actionable document. Kinds of denial (Asked in the 2004 Bar Exam)  SPECIFIC DENIAL – Specifies each material allegation of fact the truth of which he does not admit. [Rule 8. whenever practicable. Sec. 11] Exceptions:  Allegations as to the amount of unliquidated damages. Effect of failure to make specific denials  General rule: Defenses and objections not pleaded either in a MTD or in the answer. Sec. excusable neglect. to the knowledge of the court.Specifies so much of it as is true and material. 2] . Sec. so plain and necessarily within the defendant's knowledge that his averment of ignorance must be palpably untrue. [Rule 8.Prescription When a specific denial requires an oath . [Rule 8. [Rule 9. Failure to plead a counterclaim and cross-claim compulsory Compulsory counterclaim  General Rule: A compulsory counterclaim not set up is considered barred. Effect of failure to plead a. Failure to plead defenses and objections  General rule: Defenses and objections not pleaded in answer or motion to dismiss are deemed waived.  DISAVOWAL OF KNOWLEDGE – by an allegation of lack of knowledge or information sufficient to form a belief as to the truth of the averment in the opposing party's pleading. 8] Disciplinary Action on Counsel Regarding Pleadings [Rule 7. Pleading an actionable document Actionable document A document which is really the basis of the cause of action (or defense).  Allegations immaterial to the cause of action.  Deliberately signing a pleading in violation of the Rules.  Allegations of merely evidentiary or immaterial facts may be expunged from the pleading or may be stricken out on motion.Res judicata. 12]  Conclusion of law. Sec. [Rule 8.  Failing to promptly report a change of his address. and sets forth what he claims to be the facts. [Donato v. Sec. Specific denials Three Ways of Making a Specific Denial  SPECIFIC ABSOLUTE DENIAL – by specifically denying the averment and. Sec.  SPECIFIC DENIAL UNDER OATH .  PARTIAL SPECIFIC DENIAL – part admission and part denial. 3]  Deliberately filing an unsigned pleading. [Rule 8. CA (1993)] How an action or defense may be based on a document:  By copying a substantial portion of the document into the pleading.  DENIAL WITH QUALIFICATION . Sec. 8] 103 c. are deemed waived. may be set up by amendment before judgment. specifically denies them. Sec.Lack of jurisdiction over the subject matter. A cross-claim not set up shall be barred.  By both copying and annexing document into the pleading.Lack of jurisdiction over the subject matter.  By annexing /incorporating the document into the pleading.  Alleging scandalous/Indecent matter in the pleading. and sets forth the substance of the matters upon which he relies to support his denial. 1]  Exceptions: . 7] Genuineness and due execution of an actionable instrument shall be deemed admitted unless the adverse party. 10] 5.Contests the authenticity or due execution of an actionable document. Sec. [Rule 9. [Rule 11. Sec. and deny the remainder. inadvertence. Sec. etc.  SPECIFIC DENIAL FOR LACK OF KNOWLEDGE/INFORMATION sufficient to form as belief as to the truth of a material averment made in the complaint. 2]  Exception: If due to oversight. 8] Exception to the requirement of an oath: when the adverse party does not appear to be a party to the instrument. .REMEDIAL LAW REVIEWER b.Litis pendentia between same parties for the same cause . [Rule 8.Res judicata . under oath. This does not apply where the fact as to which want of knowledge is asserted is.Action barred by statute of limitations.

 Motion to declare the defendant in default.  Notice to the defendant by serving upon him a copy of such motion. Default [Rule 9. CA (1990) MOTION TO SET At any time after the discovery ASIDE ORDER OF of default and before DEFAULT [RULE 9. When a declaration of default is proper  Court validly acquired jurisdiction over the defendant‘s person. Effect of an order of default (Asked in the 1999 Bar Exam) [Rule 9. 1 AND 2] APPEAL FROM THE The defendant may also appeal RTC [RULE 41. o Order declaring him in default. become final and executory JUDGMENT OR OTHER PROCEEDINGS [RULE 38. for failure of the defendant to file his responsive pleading seasonably Interlocutory -Not appealable Judgment by default Rendered by the court following a default order or after it received ex parte plaintiff‘s evidence Final – Appealable a. a party declared in default may file a motion under oath to set aside the order of default upon proper showing that: . Florendo (1987)] . Sec 3(b)]  Before judgment. and possible denial of substantial justice.If the defendant was declared in default upon an original complaint.His failure to answer was due to fraud. o Subsequent proceedings. 1] against him as contrary to the evidence or the law.He has a meritorious defense. Relief from an order of default [Rule 9. judgment.  Proof of such failure to answer.A party in default is entitled to notice of: o Motion to declare him in default. either by service of summons or voluntary appearance. the filing of the amended complaint resulted in the withdrawal of the original complaint. 1(A)] defendant discovered the default. Such reception of evidence may be delegated to the clerk of court.  It should be filed within the period for perfecting an appeal. Timely filing thereof interrupts the 15-day reglementary period for an appeal. the order of default may be set aside on terms and conditions as justice requires. the defendant was entitled to file answer to the amended complaint as to which he was not in default. even if he did not present a petition to set aside the order of default  An order of default is an interlocutory order which is not appealable. [Gerales v. CA (1993)]  Dulos v. and of presenting evidence in his favor. but he cannot be disqualified from testifying as a witness in favor of nondefaulting defendants. His failure to answer operates as a waiver of right to take part in the trial. and that . accident. . should be liberally construed in order that litigants may have ample opportunity to prove their respective claims. but before the same became final and executory. 3] 104 c. from the judgment rendered SEC. b. A judgment by default is a final disposition of the case and is Definition: Failure of the defendant to answer within the proper period. as well as remedial laws.  It is required that defendant file first a motion to lift order of default to regain his standing.REMEDIAL LAW REVIEWER 6. . Sec 3(a)]  Party in default loses standing in court as a party litigant. unless the court in its discretion requires the claimant to submit evidence.Hence. CA (1997)] PETITION FOR If the defendant discovered the RELIEF FROM default after the judgment has ORDER. SEC. Remedies of a party declared in default  Pleadings.  The party in default shall be entitled to notice of subsequent proceedings but not to take part in the trial. defendant may file a SEC. accident mistake of law. been rendered when the SEC.  The court shall proceed to render judgment granting the claimant relief as his pleading may warrant. Sec. . o Service of final orders and judgments. . It is not his failure to appear nor his failure to present evidence (Asked in the 2000 and 2001 Bar Exams) Order of default Issued by the court on plaintiff‘s motion. [Cavili v. [Tan v. 3(B)] motion under oath to set aside order of default on the ground that his failure to file an answer or appear on the date set for the pre-trial was due to fraud. of being heard.  In such case.  Defendant fails to answer within the time allowed therefor. and excusable negligence and that he has a meritorious defense MOTION FOR NEW  If the judgment has already TRIAL [RULE 37.A defendant declared in default cannot take part in the trial. mistake or excusable negligence.

he was therefore properly declared in default for not having filed any answer. Requires proof of failure to answer Court to render judgment. Extent of relief Extent of relief to be awarded The award shall not exceed the amount or be different in kind from that prayed for. 1) Here. if there is no collusion. CA (1995)] A satisfactory showing by the movant of the existence of fraud. On the other hand. Exception: If the defense is personal to the one who answered. only the evidence of the petitioner may be considered. La Campana Food Products (1995)] A petition for certiorari under Rule 65. [Oriental Media v. respondent not having adduced any defense evidence. to intervene from the State to ensure that evidence is not fabricated. CA (1992): In a judgment based on evidence presented ex parte. the court shall try the case against all defendants upon the answers filed and render judgment upon the evidence presented. Bayog v. e. Sec. 3) Upon motion and notice to defendant. and court to render judgment on the basis thereof As in default (failure to appear by plaintiff) (Rule 18. Rationale: It is presumed that where the relief demanded is greater or different in kind. CA (1992): A defendant who already filed an answer cannot be declared in default. Declaration of nullity of marriage. the court shall order the prosecuting attorney to investigate WON parties are colluding and. Effect of a partial default [Rule 9. The defense of LOJ may have even been raised by the defendant in a MTD as an exception to the rule on prohibited pleadings in the Revised Rule on Summary Procedure. CA (1993)] The jurisdiction was properly acquired by the TC over the defendant‘s person. 5) Not required Not required Court to allow plaintiff to present evidence ex parte. may be invoked while the orders of the lower court are issued without or in excess of jurisdiction. mistake or excusable neglect is an indispensable requirement for the setting aside of a judgment of default or an order of default. Only when the defendant fails to file an answer to the complaint may the court proceed to render judgment. Datu Samad Mangelen v. But in the appeal. Natino (1996): The Revised Rules on Summary Procedure does not provide that an answer filed after the reglementary period should be expunged from the records. although not a substitute for an available or lost appeal. appeal should be perfected within 15 days from receipt of copy of order denying MFR of default judgment. prohibition and mandamus. Sec. [Boticano v. unless it requires submission of evidence Relief awarded must be the same in nature and amount as prayed for in the complaint d. he has the right to appeal the default judgment. and some of the defending parties answer while the others fail. Failure to appear at pre-trial Who fails to appear Plaintiff Effect Cause for dismissal of the action which will be with prejudice. accident. unless otherwise ordered by the court Cause to allow plaintiff to present evidence ex parte. A meritorious defense is only one of the two conditions. Chu (1987)] was filed but defendant did not appear at the hearing. the award may exceed the amount or be different in kind from that prayed for. Despite his failure to file a motion to set aside the declaration of default. nor award unliquidated damages. in which case. Such a motion is allowed under . [Ramnani v. Actions where default are not allowed Cases where no defaults are allowed [Rule 9. [MERALCO v.REMEDIAL LAW REVIEWER appealable. there is no provision for an entry of default if a defendant fails to file his answer.  105 f. Legal Separation. defendant would not have allowed himself to be declared in default. Sec 3(c)] If the pleading asserting a claim states a common cause of action against several defending parties. The meritorious defense must concur with the satisfactory reason for the nonappearance of the defaulted party. it will not benefit those who did not answer. Sec. the appropriate remedy is an ordinary appeal under Rule 41. Judgment by default being appealable.  Special civil actions of certiorari. then the court shall render judgment Relief awarded may be of different nature and amount from the relief prayed for       Defendant Default by defendant (Rule 9. where comment (instead of an answer) is required to be filed. As a matter of fact. Sec 3(e)]  Annulment of marriage. 2. judgment should not exceed the amount or be different in kind from that prayed for. in a judgment where an answer Lesaca v. If there is no such reason.

The defendant shall file his answer to the complaint within fifteen (15) days after service of summons. then the additional filing fee shall constitute a lien on the judgment. the order of arrest was illegal as there is nothing in the ROC which authorizes such a consequence of a default order.A. delay in the payment of docket fees confers upon the court discretionary and not mandatory power to dismiss an appeal. SEC.2]  Answer to amended complaint . Filing versus service of pleadings Filing is the act of presenting the pleading or other papers to the clerk of court. Sec. 4]  Pleading subsequent to the complaint. amended crossclaim. the court acquires jurisdiction over the case only upon payment of prescribed fees General rule: Without payment. Note: Appellate docket and other lawful fees must be paid within the same period for taking an appeal. [Villamor v. Villanueva (2004)] However. An answer earlier filed may serve as the answer to the amended complaint if no new answer is filed. 19(a) thereof. 2] c. for all legal purposes. or cannot then be estimated. Note that this Rule shall apply to the answer to an amended counterclaim. unless a different period is fixed by the court. Non-payment is a valid ground for dismissal of an appeal. Filing and Service of pleadings Definition  FILING – The act of presenting the pleading or other paper to the clerk of court. Where its filing is not a matter of right. [Rule 11. the default order may be set aside on the ground of accident over which petitioner had no control. such as by the reduction of the claim as.  Similar papers. the judgment awards a claim not specified in the pleading. Where the trial court acquires jurisdiction over a claim by the filing of the pleading and the payment of the prescribed filing fee. the defendant shall answer the same within fifteen (15) days after being served with a copy thereof. Payment of docket fees As a rule. Any defect in the original pleading resulting in underpayment of the docket fees cannot be cured by amendment. [Rule 13. 13. Asuncion (1989): NOT AUTOMATIC DISMISSAL BUT Court may allow payment of fees within reasonable period of time.3] a. SEC.  Written Motion. [RULE.) party complaint. 2]  SERVICE – The act of providing a party or his counsel with a copy of the pleading or paper concerned. Payment of docket fees is mandatory and jurisdictional. CA (2004)] 106 Malanyaon v.REMEDIAL LAW REVIEWER Sec. Also.1] within thirty (30) days after receipt of summons of the foreign entity where the defendant is a foreign private juridical entity and service of summons is made on the government official designated by law to receive the same. there is no original complaint over which the court has acquired jurisdiction  Modification by Sun Insurance v. case is considered not filed. Sunga (1992): Where the failure to appear at the pre-trial hearing was uncontrovertedly due to illness. Periods of filing of pleadings  Answer to the complaint .  Resolution. amended third (fourth. the answer shall be filed [Rule 11. It is not simply the filing of the complaint or appropriate initiatory pleading but the payment of the prescribed docket fee.  Appearance. Acquisition of jurisdiction 7. SEC. CA (1987) [Old Rule]: AUTOMATIC DISMISSAL. [RULE. Santander v. 2] Service is the act of providing a party with a copy of the pleading or paper concerned. and amended complaint-inintervention. 2] Papers Required to be Filed and Served [RULE 13.Where the plaintiff files an amended complaint as a matter of right. BUT SUBSEQUENTLY. that vests a trial court with jurisdiction over the subject matter or nature of the action [Proton Pilipinas v. [Rule 11. [M. always be within the prescriptive period of the action filed. Asuncion]  Further Modification by Heirs of Hinog v.  Notice. Banque National de Paris] Effect of Failure to Pay Docket Fees at Filing  Manchester v. the defendant shall answer the amended complaint within ten (10) days from notice of the order admitting the same.  Offer of Judgment. Note that payment should . or a claim left for determination by the court. Sec. etc. Melicor (2005): FEES AS LIEN. [Rule 13. 13. [Sun Insurance v.  Judgment.  Order. b.  Demand.

Sec. .4]  Answer to third (fourth. by depositing the pleading in the post office).The pleading is deemed filed on the date it was deposited with the post office.Delivering personally a copy to the party or his counsel. 13) Written admission of the party served.  Substituted service [Rule 13. or if he has no office – Leaving the copy between 8am and 6pm at the party's or counsel's residence (if known) with a person of sufficient age and discretion then residing therein. [Rule 11. 7 of Rule 13.  By registered mail.11]  Service by (registered) mail [Rule 13.). .Filing by mail should be through the registry service (i. or if his office is unknown.If no registry service is available in the locality of either sender or addressee. the court may extend the time to plead provided in these Rules.If no person is found in his office. . Service of judgments. [Rule 11. Sec. [Rule 11. 5]  Personal service [Rule 13. 10) Upon actual delivery Proof of service (Rule 13 Sec. final orders or resolutions [Rule 13. .Leaving a copy in counsel's office with his clerk or with a person having charge thereof. [Benguet Electric Cooperative v. the paper is considered not filed.5]  Reply . 8] By delivering the copy to the clerk of court. Sec.within ten (10) days from notice of the order admitting the same. Note that the answer to the complaint shall serve as the answer to the supplemental complaint if no new or supplemental answer is filed. . Affidavit of the person mailing of facts showing compliance with Sec. with proof of failure of both personal service and service by mail Completeness of service (Rule 13 Sec. plainly addressed to the party or his counsel at his office or at his residence (if known). Service by ordinary mail Service by registered mail 10 days after mailing. Sec. OR Official return of the server OR Affidavit of the party serving. .The pleading is deemed filed upon the receipt of the same by the clerk of court who shall endorse on it the date and hour of filing. If there is no written explanation. Priorities in modes of service and filing [Rule 13. the date of the court‘s actual receipt of the pleading (not the date of delivery to the private carrier) is deemed to be the date of the filing of that pleading. unless otherwise provided by the court Whichever is earlier:  Actual receipt by the addressee  5 days after the addressee received 1st postmaster's notice e. 6] .If a party avails of a private carrier. 3] (Asked in the 2005 Bar particularly in comparison with filing in criminal actions)  Personally. 11] General rule: Personal filing and service.A counterclaim or cross-claim must be answered within ten (10) days from service. allow an answer or other pleading to be filed after the time fixed by these Rules. Sec.By personally presenting the original to the clerk of court.  By publication at the expense of the prevailing party if party was summoned by publication and has failed to appear in the action. service may be done by ordinary mail. etc. . upon like terms.party complaint . unless a different period is fixed by the court. Sec.within ten (10) days from service of the pleading responded to. 7] . Manner of filing Manner of filing [Rule 13. . with a full statement of the date/place/manner of service. The court may also. .By depositing the copy in the office. Modes of service [Rule 13. with postage fully prepaid. and with instructions to the postmaster to return the mail to the sender after 10 days if undelivered. Sec. [Rule 11. 7 of Rule 13 AND Registry receipt issued by the post office 107 Personal service d. NOTE: Upon motion and on such terms as may be just. Resort to other modes of filing and service must be accompanied by an explanation why the service/filing was not done personally. in a sealed envelope. Affidavit of the person mailing of facts showing compliance with Sec. NLRC (1992]]  By registered mail.6]  Answer to supplemental complaint . 9]  By personal service.Same rule as the answer to the complaint.e.REMEDIAL LAW REVIEWER  Answer to counterclaim or cross-claim .

7  Proof of service by registered mail . AND . prospective purchasers or encumbrancers of the property in litigation to keep their hands off the property in litigation unless they are prepared to gamble on the result of the proceedings. [Rule 13. unless the court otherwise provides [Rule 13.  Action in rem. or .an affidavit of the person mailing containing the facts showing compliance with Rule 13. whichever date is earlier. or in lieu thereof of the unclaimed letter together with the certified or sworn copy of the notice given by the postmaster to the addressee. 1]  Adding an allegation of a party. Sec.  Adding the name of a party. after proper showing that: [Roxas v. or the official return of the server. and  Correcting a mistaken or inadequate allegation or description in any other respect.  If it is not in the record [Rule 13.the affidavit of the party serving. 14] LIS PENDENS . Sec. 10]  Substituted service is complete at the time of delivery of the copy to the clerk of court together with the proof of failure of both personal service and service by mail.  Correcting a mistake in the name of a party.  Affirmative relief is claimed.a written admission of the party served. and affidavit of the person who did the mailing with:  Full statement of the date/place of depositing the mail in the post office in a sealed envelope addressed to the court  Postage fully paid  Instructions to the postmaster to return the mail to the sender after 10 days if undelivered Amended and supplemental pleadings 8. . Sec.an affidavit of the person mailing . [Rule 13. 12]. 13]  Proof of personal service shall consist of: . Sec. .  Proof of service by ordinary mail: . 8] Proof of filing and service Proof of filing  Filing is proved by its existence in the record of the case [Rule 13.Content: facts showing compliance with Rule 13. Amendment How to amend pleadings [Rule 10. 7. Sec. Sec.The notice is for the purpose of molesting the adverse party. 10]  Service by registered mail is complete upon actual receipt by the addressee or after 5 days from the date he received the first notice of the postmaster. CA (1993)] . 10]  Service by ordinary mail is complete upon the expiration of 10 days after mailing. Purpose: That the actual merits of the controversy may speedily be determined. . Sec. . 12]. place and manner of service.The notice of cannot be cancelled on an ex parte motion or upon the mere filing of a bond by the party on whose title the notice is annotated. Proof of Service [Rule 13. Sec.the registry return card which shall be filed immediately upon its receipt by the sender. 14 provides that such cancellation may be authorized only upon order of court. . Sec.Content: full statement of the date.The defendant may also record a notice of lis pendens when he claims an affirmative relief in his answer. When pleading is deemed filed Upon receipt of the pleading by the clerk of court On the date the pleading was deposited with the post office Proof of filing Personally Written/stamped acknowledgment the clerk of court by By registered mail Registry receipt. OR . and in the most expeditious and inexpensive manner. Sec. Notice of lis pendens [Rule 13.the registry receipt issued by the mailing office.It is not necessary to protect the rights of the party who caused it to be recorded 108 When service is deemed complete  Personal service is deemed complete upon actual delivery [Rule 13. Requisites: [AFP Mutual Benefit Association v. as Sec. CA (2001)]  Action affects the title or the right of possession of the real property.The notice serves as a warning to all persons. without regard to technicalities.  Notice shall contain the name of the parties and the object of the action/defense and a description of the property affected thereby.Notice of a pendency of the action between the parties involving title to or right of possession over real property. .  Striking out an allegation of a party.  Striking out the name of a party.REMEDIAL LAW REVIEWER Exception: Papers emanating from the court. Sec.

a. a question was asked on amendment of complaint to implead additional parties) When amendment by leave of court may not be allowed  If the cause of action. Sec. defense or theory of the case is changed.  Notice to the adverse party. the court should not admit the supplemental complaint. The cause of action stated in the supplemental complaint must be the same as that stated in the original complaint. Sec. Sec. not to entirely substitute the latter. . CA (1993): As a general policy.  Provided that no prejudice is caused to the adverse party. which shall be indicated by appropriate marks.  Once exercised. [PNB v. and  A responsive pleading has already been served. Sec. 3] d. requires leave of court if:  It is substantial. Amendments to conform to or authorize presentation of evidence [Rule 10.  If amendment is for purposes of delay.If as a matter of discretion. Sec. 6] It is made upon motion of a party with reasonable notice and upon terms as are just. 4]  A defect in the designation of the parties and other clearly clerical errors may be summarily corrected by the court motu proprio or by motion at any stage of the action. Note:  Admitting an amended complaint in intervention is a matter addressed to the court‘s discretion.  Opportunity to be heard afforded to the adverse party. 5] (Asked in the 2004 Bar Exam)  If issues not raised by the pleadings are tried with the express/implied consent of the parties. it cannot be disturbed on appeal. (NOTE: In the 2008 Bar Exam.REMEDIAL LAW REVIEWER Barfel Development v. Sec. shall be filed.  If amendment is intended to confer jurisdiction to the court. CA (1998)] A supplemental complaint/pleading supplies deficiencies in aid of an original pleading. 7] A new copy of the entire pleading. . Florendo (1992)]  If amendment is for curing a premature or nonexisting cause of action. liberality in allowing amendments is greatest in the early stages of a law suit. Sec. [Rule 10. If it is a reply. 3] Requisites for amendments by leave of court  Motion filed in court. Presiding Judge (1990)] 109 c. decreases as it progresses and changes at times to a strictness amounting to a prohibition. may be made upon motion of any party. once.  If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings. [Rule 10. b. .But failure to amend does not affect the result of the trial of these issues. except in case of abuse thereof. and  A responsive pleading has already been served. Amendment as a matter of right SUBSTANTIAL AMENDMENTS – once. Formal amendment [Rule 10. occurrences or events which have happened since the date of the pleading sought to be supplemented. Form [Rule 10. [Asset Privatization Trust v. [Metropolitan Bank v. they shall be treated in all respects as if they had been raised in the pleadings. The court may grant a continuance to enable the amendment to be made. This is further restricted by the condition that the amendment should not prejudice the adverse party or place him at a disadvantage. 2] (Asked in the 2003 Bar Exam) If as a matter of discretion – Amendment requires leave of court if:  It is substantial. made at any time before a responsive pleading is served. any time (even after judgment). Different from supplemental pleadings Supplemental pleadings (ASKED IN THE 2000 BAR EXAM) Definition: One which sets forth transactions. subject only to the limitations that amendments should not substantially change the cause of action or alter the theory of the case or made to delay the action. incorporating the amendments. the court may allow the pleadings to be amended and shall do so with liberality if the presentation of the merits of the action and the ends of substantial justice will be subserved thereby. [Rule 10. Amendments pleadings vis-à-vis supplemental e. the amendment of the complaint cannot be allowed so as to confer jurisdiction on the court over the property. [Rule 10.If the court has no jurisdiction in the subject matter of the case. Otherwise.  Amendment of pleadings as may be necessary to cause them to conform to the evidence and to raise these issues. Amendments by leave of court SUBSTANTIAL AMENDMENTS . made at any time within l0 days after it is served.

2] Summons must be directed to the defendant. Service upon prisoners and minors 8. Extra-territorial service. the clerk of court shall issue the . BUT inclusion in the MTD of grounds other than LOJ over the defendant‘s person.e. (3) Notice that unless the defendant so answers. Nature and purpose of summons in relation to actions in personam. sec. the clerk may issue an alias summons if either: (1) Summons is returned without being served on any/all of the defendants. 1] Contents of summons [Rule 14. signed by the clerk of the court under seal. Proof of service Definition: A coercive force issued by the court to acquire jurisdiction over the person of the defendant (asked in the 1999 Bar Exam) 1.REMEDIAL LAW REVIEWER Unlike in an amended complaint. accompanied by proof of service. Issuance of summons Upon the filing of the complaint and the payment of legal fees. in rem and quasi in rem 2. Nature and purpose of summons in relation to actions in personam. The server shall also serve a copy of the return on the plaintiff's counsel within 5 days therefrom. sec. VI. NOTE that jurisdiction over person of defendant may also be acquired through voluntary appearance. Exception: Special appearance to file a MTD. Substituted service 5. when allowed 7.  Admissions made in the superseded pleading may still be received in evidence against the pleader.  Claims and defenses in superseded pleading which are not incorporated in the amended pleading are deemed waived. sec. [Shoemart v. 8]  Amended pleading supersedes the pleading that it amends. [Rule 14. in rem and quasi in rem Purpose (1) To acquire jurisdiction over the person of the defendant in a civil case. Any mode of appearance in court by a defendant or his lawyer is equivalent to service of summons. (3) For justifiable reasons. Montesa (1993)] Who serves the summons [rule 14. 4] When the service has been completed. Constructive service (by publication) 6. 2. 110 When an amended pleading is filed. 5] Upon plaintiff‘s demand. (2) To give notice to the defendant that an action has been commenced against him. Personal service 4. 3] (1) The sheriff or his deputy. Voluntary appearance 3. stating the reasons for the failure of service. (2) Direction that the defendant answer within the time fixed. a new copy of the entire pleading must be filed f. serve a copy of the return (personally or by registered mail) to the plaintiff's counsel. Exists side by side with the original pleading) A supplemental pleading does not require the filing of a new copy of the entire pleading corresponding summons to the defendants. within 5 days therefrom. any suitable person authorized by the court issuing the summons. is not deemed a voluntary appearance. SUMMONS 1. [Delos Santos v. CA (1990)] Amendments Reason for the amendment is available at time of the 1st pleading Either as a matter of right or a matter of discretion Supersedes the pleading Supplemental pleadings Grounds for the supplemental pleading arose after the 1st pleading was filed Always a matter of discretion Supplements the pleading (i. (2) Other proper court officers. and contain: (1) Name of the court and names of the parties. absent any indication that the appearance of counsel for petitioner is precisely to protest the jurisdiction of the court over the person of the defendant. sec. Effect of amended pleading Effect [Rule 10. (4) Officer having management of a jail or institution deputized as special sheriff when defendant is a prisoner [rule 14. Sec. Sec. and shall return the summons to the clerk who issued it. (2) Summons was lost. the server shall. Sec. A copy of the complaint and order for appointment of guardian ad litem (if any) shall be attached to the original and each copy of the summons. Alias summons [rule 14. plaintiff will take judgment by default and may be granted the relief applied for. the original complaint exists side by side with the supplemental complaint. Voluntary appearance General rule: Defendant's voluntary appearance in the action shall be equivalent to service of summons. 9] Return of summons [rule 14.

REMEDIAL LAW REVIEWER Modes of service of summons Any application to the court under Rule 14 for leave to effect service in any manner for which leave of court is necessary shall be made by: (1) motion in writing. and such compliance must appear affirmatively in the return. (2) By tendering it to him. it does not necessarily follow that an act done in relation to the official duty for which the return is made was not done simply because it is not disclosed therein. [Sps. Constructive service publication) [Rule 14. Maximo 1963] . One such incident of domicile is amenability to suit within the state even during sojourns without the state. are inseparable from the various incidences of state citizenship. [Montalban v. The proper recourse for the plaintiff is to locate properties of the defendant whose address is unknown and cause them to be attached. The fact that the defendant did not actually receive the summons did not invalidate the service of such summons. [Rule 14. setting forth the grounds for the application. Sec. [Laus v. if he refuses to receive and sign for it. CA (1992)] 111 3. (3) There must be leave of court. (b) With some competent person in charge of the defendant‘s office or regular place of business. CA (1995)] For a valid substituted service of summons. and the attendant right to invoke the protection of its laws. 14] (by Requisites (1) The action is in rem or quasi in rem. Sec. by publication in a newspaper of general circulation b. Sec. Ventura v. CA (1993)] 5. "Dwelling house" or "residence" refer to the place where the person named in the summons is living at the time when the service is made. Substituted service [Rule 14. Personal service Service in person on defendant (1) By handing a copy of summons to him. While the sheriff's return carries with it the disputable presumption of regularity in the sense that the entries therein are deemed correct. even though he may be temporarily out of the country at the time. For a substituted service to be valid. CA (1987)] (1) Impossibility of the personal service of summons within a reasonable time. even if defendant was abroad at that time. 7] (asked in the 2004 Bar Exam) Rationale: Enjoyment of the privileges of residence within the state. Sec. Ventura v. (2) Defendant's identity or whereabouts are unknown and cannot be ascertained by diligent inquiry. Proof of prior attempts at personal service may be submitted by the plaintiff during the hearing of any incident assailing the validity of the substituted service. where the state has provided and employed a reasonable method for apprising such an absent party of the proceedings against him. CA (1993)] (3) Service by leaving copy of summons either: (a) With some person of suitable age and discretion then residing in the defendant‘s residence. [Consolidated Plywood vs. who does not voluntarily submit himself to the authority of the court. [Mapa v. Breve (1988)] Service of summons upon different entities See Annex A. CA (1987)] Substituted service must be used only as prescribed and in the circumstances authorized by statute. Service upon residents temporarily outside the Philippines [Rule 14. 17] Absence in the sheriff's return of a statement about the impossibility of personal service does not conclusively prove that the service is invalid. 16] With leave of court. Service upon a defendant where his identity is unknown or where his whereabouts are unknown [Rule 14. Sec. [Laus v. may serve extraterritorially Service of summons upon different entities Summons is validly served if it is left with some person of suitable age and discretion then residing in the defendant's residence. Statutes prescribing modes other than personal service of summons must be strictly complied with to give the court jurisdiction. summons served at the defendant's residence must be served at his residence at the time of such service and not at his former place of residence. a. 14] With leave of court. (2) supported by affidavit of the plaintiff or some person on his behalf. 6] 4. (2) Efforts made to find the defendant personally and the fact that such efforts failed. [Northwest v. the following must be established in the proof of service: [Sps. [Rule 14. Summons by publication in a personal action cannot confer upon the court jurisdiction over the person of the defendant. Sec.

(c) Demands a relief which consists wholly/partially in excluding the defendant from any interest in any property within the Philippines. [Atkins v. while there was a return. 19] (1) Affidavit of the printer. Domingo 1923] Waiver of service of summons [Rule 14.non-service or irregular service of summons renders null and void all subsequent proceedings and issuances in the action from the order of default up to and including the judgment by default and the order of execution. as the original complaint was deemed withdrawn upon such amendment. Modes of service (1) With leave of court. or the editor. [Delos Santos v. Sec. accompanied with the proof of service.  In the Mapa case though. or (2) With leave of court. Proof of service Return of service [Rule 14. Sec. attached.  If minor. (d) Has defendant‘s property in the Philippines. Service upon prisoners and minors Service upon prisoner [Rule 14. Proof of service If personal or substituted service: In writing by the server and shall: [Rule 14. If by publication: [Rule 14. (2) Specify any papers which have been served with the process and the name of the person who received the same. Sec. Sec. [Ong Peng v. in which case copy of the summons and order of the court must also be sent by registered mail to the defendant‘s last known address. Extra-territorial service. thus no presumption of regularity could be had. General rule: Return of service of summons immediately shifts burden of evidence from plaintiff to defendant since there is a presumption of regularity. Montesa (1993)] Service of summons upon different entities See Annex A. If the defendant has already been served with summons on the original complaint. 15] when Exception: Doctrine of substantial compliance– If defendant actually received summons and complaint despite all these technicalities. postage prepaid. 10] Serve upon the minor/incompetent and on his legal guardian. Sec. AND (2) Affidavit showing the deposit of a copy of the summons and order for publication in the post office. principal clerk. . allowed [Rule 14. 8. new summons must be served on the defendant on the amended complaint.  Without return of service: Burden is on plaintiff. return was patently irregular. Requisites: (Asked in the 1997 and 2008 Bar Exam) (1) Defendant does not reside or is not found in the Philippines. business/advertising manager. and shall return the summons to the clerk who issued it. 7. Effect of non-service of summons (asked in the 2006 Bar Exam) Unless the defendant voluntarily submits to the jurisdiction of the court.REMEDIAL LAW REVIEWER 112 6. Sec. may serve on his parents. no further summons is required on the amended complaint if it does not introduce new causes of action. Any mode of appearance in court by a defendant or his lawyer is equivalent to service of summons. serve by publication in a newspaper of general circulation. (3) Be sworn to when made by a person other than a sheriff or his deputy. the server shall serve a copy of the return within 5 days (personally or by registered mail) to the plaintiff's counsel. (2) Action either: (a) Affects the plaintiff‘s personal status. absent any indication that the appearance of counsel for petitioner is precisely to protest the jurisdiction of the court over the person of the defendant. 9] Serve upon the officer having management of the jail/prison Service upon minors and incompetents [Rule 14. 4] When service has been completed. Custodio 1961] But if the defendant was declared in default on the original complaint and the plaintiff subsequently filed an amended complaint. (3) Any other manner the court deems sufficient The court order granting extraterritorial service shall specify a period of at least 60 days within which the defendant must answer.  Inclusion in the MTD of grounds other than LOJ over the defendant‘s person. his foreman. 18] (1) Set forth the manner/place/date of service. serve outside the Philippines by personal service. directed to the defendant by registered mail to his last known address. is not deemed a voluntary appearance. 20]  General rule: Defendant's voluntary appearance in the action shall be equivalent to service of summons. plaintiff may apply for the appointment of a guardian ad litem.  If there is no guardian. Sec.  Exception: Special appearance to file a MTD. with a copy of the publication attached. (b) Relates to or the subject matter of which is property within the Philippines in which defendant has a lien/interest.

[Rule 15. Exceptions: (1) Ex parte motions. Exceptions: (1) If the motion is one which the court can hear ex parte. . Notice of hearing and hearing of motions Requisites of motions (not made in open court or in the course of hearing/trial) (1) In writing. as if it were not filed. is no notice at all. hence. motions are scheduled for hearing: (1) On Friday afternoons. 2] (2) Hearing on the motion set by the applicant Notice of hearing shall be addressed to all parties. Motion for leave to file a pleading/motion [Rule 15. and shall specify the time and date of the hearing which shall not be later than 10 days from the filing of the motion. [Rule 15. 1. Sec. (2) Motion for summary judgment. and not to the parties. 7] Except for urgent motions. 113 d. (3) Motions agreed upon by the parties to be heard on shorter notice. [Orosa v. Contents and form of motions Contents [Rule 15. Exception: (1) Motion for judgment on the pleadings. a motion that does not contain a notice of hearing to the adverse party is nothing but a mere scrap of paper. (3) If the party is in default because such a party is not entitled to notice. a motion that is not acted upon in due time is deemed denied. Sec. MOTIONS 1. 2]  General rule: In writing. Definition of a motion An application for relief other than by a pleading [Rule 15. (2) Urgent motions. 1] Motion day [Rule 15. or jointly submitted by the parties. Motions in general 2. CA (1996)] b. [Rule 15. 9] Must be accompanied by the pleading/motion sought to be admitted Motions not acted upon Parties and counsel should not assume that courts are bound to grant the time they pray for. (2) If by personal service: Affidavit or acknowledgment of receipt by the other party. Sec. 4] Purpose: To prevent surprise upon the adverse party and to enable the latter to study and meet the arguments of the motion. 5] Notice must be addressed to the counsels. General rule: A motion cannot pray for judgment. (2) Afternoon of the next working day. (2) If the court is satisfied that the rights of the adverse parties are not affected by the motion. Accordingly. Form of motions [Rule 15. Sec. (4) Motions raising factual issues must be supported by affidavits. c. A notice of hearing addressed to the clerk of court. (2) In the course of a hearing/trial. (4) Motions for summary judgment which must be served at least 10 days before its hearing. After all. What may be proof: (1) If by registered mail: Affidavit or registry receipt or postmark on envelope or return card. with an explanation. CA (1996)] (3) Motion and notice of hearing must be served at least 3 days before the date of hearing. Sec. Sec. Motion to Dismiss  Exception: Oral motions: (1) Made in open court. Motions in general a. it did not suspend the running of the period to appeal. Sec. it shall be accompanied by supporting affidavits and other papers. Sec. Sec. [Provident International Resources v. 3] (1) Relief sought to be obtained (2) Grounds upon which it is based (3) If it is required/necessary to prove facts alleged in a motion. Motions versus pleadings Motion Contains allegations of facts Prays for a relief Grant of the relief does not extinguish the action (interlocutory relief) Generally in writing (with some exceptions) Pleading Contains allegations of the ultimate facts Prays for a relief Grant of relief extinguishes the action (final relief) Always in writing Proof of service [Rule 15. (3) Motion for judgment on demurrer to evidence.REMEDIAL LAW REVIEWER VII. Motions for Bill of Particulars 3. if Friday is a non-working day. 6] General rule: A written motion set for hearing will not be acted upon by the court if there is no proof of service thereof.

a copy of which must be served on the adverse party. his complaint may be dismissed with prejudice unless otherwise ordered by the court. 2] (1) Deny. Sec. g. (2) Litis pendentia. Sec. (3) The details desired.Made with notice to the adverse party so that an opposition thereto may be made. (3) Res judicata. Pro-forma motions PRO FORMA MOTION – A motion failing to indicate time and date of the hearing c. 1] (1) The defects complained of. All objections not included in the motion are deemed waived. 4. Galeon (1973)] Purpose To inform the adverse party more specifically of the precise nature and character of the cause of action or defense alleged in the pleading. (2) The paragraph wherein they are contained. Sec. Effect on the period to file a responsive pleading [Rule 12. Sec. 8] The purpose of a BOP is to define/ clarify/particularize/limit/circumscribe the issues in the case to expedite the trial and assist the court. OR (2) Make such order as it may deem just. An action cannot be dismissed on the ground that the complaint is vague/indefinite. 3] If defendant fails to obey. Sec. Sec. 5] A Motion for BOP interrupts the period to file a responsive pleading. (3) MOTION OF COURSE .Motion for a kind of relief/remedy to which the movant is entitled to as a matter of right. The only question to be resolved in a motion for a BOP is WON the allegations in the complaint are averred with sufficient definiteness/particularity to enable the movant to properly prepare his responsive pleading and to prepare for trial. Republic (1991)] A BOP becomes part of the pleading for which it was intended. Rule 17. (2) LITIGATED MOTION . Sec. Sec.REMEDIAL LAW REVIEWER e. [Rule 12. Effect of non-compliance [Rule 12. BOP or a more definite statement should be submitted (unless court fixes a different period). If the plaintiff fails to obey. Sec. (4) Prescription. the defendant prays for a more definite statement of matters which are not averred with sufficient definiteness in the complaint. Compliance with the order and effect of non-compliance Compliance with order [Rule 12. 4] 2. Allegations contained in such motion do not have to be investigated/verified.Discretion of the court is involved. [Rule 12. Litigated and ex parte motions Kinds of Motion (1) MOTION EX PARTE . d. Sec. An investigation of the facts alleged is required. 114 Definition: A motion attacking a pleading/order/ judgment/proceeding must include all objections then available. b. [Tantuico. 6] When applied for [Rule 12. (3) Allow the parties the opportunity to be heard. [Rule 9. Actions of the court [Rule 12. Sec. Motions for Bill of Particulars Bill of particulars (ASKED IN THE 2003 BAR EXAM) Definition: It is a detailed explanation respecting any matter which is not averred with sufficient definiteness/particularity in the complaint as to enable a party to properly prepare his responsive pleading or to prepare for trial. In said motion. Rule 12. Omnibus motion rule [Rule 15. 1] a. the court: (1) May order the striking out of the pleading (or portion thereof) to which the order is directed. 4. The remedy of the defendant is to move for a BOP or avail of the proper mode of discovery. 3] If motion for BOP is granted wholly/partially: (1) Within 10 days from notice of order. (4) SPECIAL MOTION . Sec. v. (2) Grant the motion outright. Exception: When the court‘s jurisdiction is in issue: (1) LOJ over subject-matter. 1] (1) Before responding to a pleading (2) If the pleading is a reply. and he will be declared in default upon motion of the plaintiff. Sec. (2) BOP or definite statement filed either as a separate pleading or as an amended pleading. Purpose and when applied for It is filed by the plaintiff pursuant to a court order issued upon granting a motion for BOP filed by the defendant before the latter files an answer. his answer will be stricken off and his counterclaim dismissed. Jr. 3. with the view of enabling him to prepare properly his responsive pleading or to prepare for trial.Made without notification to the other party because the question generally presented is not debatable. f. within 10 days from service thereof What a motion for bill of particulars should point out [Rule 12. [Galeon v. [Rule 12. . Sec. Rule 17. 4] In case of non-compliance or insufficient compliance with the order for BOP.

LOJ over the subject matter of the claim If the complaint shows on its face LOJ. unless such is made to protest the jurisdiction of the court over the person of the defendant. must be raised: (1) At the very first opportunity. LOJ over the defendant’s person The objection of LOJ over the person on account of lack of service or defective service of summons. Hence. v. Types of dismissal of action (1) MTD before answer under Rule 16. xi. 1] (Asked in the 2008 Bar Exam) i. The hearing shall be conducted as an ordinary hearing and the parties shall be allowed to present evidence. except when the motion is based upon failure of the complaint to state a cause of action. . the opportunity to appear and be joined so he could assert or protect such right or interest (a) Upon notice by plaintiff. yet having a certain right or interest in such action. 3] (3) Sec. 4. It is not a pleading at all. it cannot be considered as a special appearance. [Rule 9. It is not a responsive pleading. (2) After answer is filed.REMEDIAL LAW REVIEWER The period to which the movant is entitled at the time of filing of the motion. so as to properly guide such party in answering the pleading and to avoid surprise in the trial of the case Available to the defendant before he files his responsive pleading Intervention Purpose is to enable a person not yet a party to an action. 115 Available to any person not yet a party to the action at any time after the commencement of an action. [De los Santos v. (2) Defenses available to the defendant at the time of the filing of the complaint It hypothetically admits the facts stated in the complaint. (2) Before any voluntary appearance is made. Exception: (1) Cases where the court may dismiss a case motu propio. ix. A MTD on the ground of LOJover the subject matter may be raised either: (1) Before answer. vi. viii. [Laus v. When the MTD is based on facts not appearing of record. ii. Sec. (3) After hearing had commenced. 1] (2) Failure to prosecute. which attacks the entire pleading and seeks its dismissal based on: (1) Grounds which are patent on the face of the complaint. Motion to Dismiss Definition A remedy of the defendant. (3) Demurrer to evidence after plaintiff has completed the presentation of his evidence under Rule 33. it must raise all objections available at the time of the filing thereof. the court may dismiss the case outright instead of hearing the motion. NOTE the following distinctions: Bill of Particulars (BOP) Purpose is to enable a party bound to respond to a pleading to get more details about matters which are alleged generally or which are indefinite and vague. the period to file a MTD for LOJ over his person does not commence to run until he voluntarily submits to the jurisdiction of the court. Sec. General rule: A court may not motu propio dismiss a case. Revised Rule on Summary Procedure. or the responding party in general. Note: A MTD shall be proved/disproved according to the rules of evidence. Grounds [Rule 16. (b) Upon motion by plaintiff. (2) MTD under Rule 17: i. (c) Due to fault of plaintiff. [Rule 17. Montesa (1993)] ii. even during the proceeding. x. If a defendant had not been properly summoned. the court may hear the matter on affidavits/depositions. LOJ over the defendant‘s person LOJ over the subject matter of the claim Improper venue Plaintiff‘s lack of legal capacity to sue Litie pendentia Res judicata Prescription Failure to state a cause of action Extinguished claim Unenforceable claim under the Statute of Frauds Non-compliance with a condition precedent for filing claim Terminating the action before trial 3. unless a motion to that effect is filed by a party. iii. It is subject to the omnibus motion rule since it is a motion that attacks a pleading. which shall not be less than 5 days in any event. vii. but not after the trial has been concluded a. iv. CA (1993)] Appearance of counsel is equivalent to summons. (4) Dismissal of an appeal. If grounds other than invalid service of summons are raised. Sec.

[Nabus v. CA (1997) Asked in the 2007 Bar Exam] (1) Identity of parties. Sherman (1989)] If the court erroneously denies the MTD. (2) Judgment must be a final judgment. [Diaz v. The 2nd case will not be abated if it is not brought to harass. upon the determination of which the judgment was rendered. 3. (2) The hardship on the individual that he should be vexed twice for the same cause. or an order of dismissal under Rule 17. even if same had been brought later. Adiong (1993)] A stipulation between the parties as to venue does not preclude the filing of suits in the residence of plaintiff/defendant under Rule 4. (2) identity of rights asserted and relief prayed for. which is a matter of evidence (e. for all practical intents and purposes. the venue cannot truly be said to have been improperly laid since. Improper venue may be waived and such waiver may occur by laches. the venue though technically wrong may yet be considered acceptable to the parties for whose convenience the rules on venue had been devised. but also to any other admissible matter which might have been offered for that purpose and to all matters that could have been adjudged in that case. (b) Comparative accessibility of the court to the parties. The test of identity of cause of action lies not in the form of the action but on WON the same evidence would support and establish the former and the present causes of action. apply: (1) The More Appropriate Action Test. Lack of legal capacity to sue refers to plaintiff‘s disability. absolute identity of parties is not required because substantial identity is sufficient. There can be res judicata without a trial. RTC (1993)] vi. In the absence of qualifying/restrictive words which would indicate that a specific place alone is the venue. while lack of legal personality to sue refers to the fact that the plaintiff is not a real party in interest. (2) The Interest of Justice Test. [Vitrionics Computers v. (c) Other similar factors. iii. Inclusion of additional parties will not affect the application of the principle of res judicata. In both tests. taking into account: (a) Nature of the controversy. of subject matter and of the causes of action. 2(b). when he plaintiff is not in the full exercise of his civil rights). even for the first time on appeal and even if no such defense is raised in the answer. The 1st case shall be abated if it is merely an anticipatory action or defense against an expected suit. Res judicata Requisites (Asked in the 2000 Bar Exam): (1) Former judgment rendered by a court having jurisdiction over the subject matter and over the parties. Sec. v. (4) Identity in the 2 proceedings should be such that any judgment which may be rendered in the other action will amount to res judicata on the action under consideration. the remedy is prohibition. (3) Relief founded on the same facts and the same basis.g. [HSBC v. It is sufficient to allege and prove the pendency of another case. ASKED IN THE 1997 BAR EXAM)] (1) BAR BY PRIOR JUDGMENT – Judgment on the merits in the 1st case constitutes an absolute bar to the subsequent action not only as to every matter which was offered and received to sustain or defeat the claim/demand.g. such as in a judgment on the pleadings (Rule 34). a summary judgment (Rule 35). [DBP v. an agreement as to venue is merely permissive and there is no waiver of right to pursue remedy in other courts. iv. CA 1993. Pundogar (1993)] Rationale: The sum and substance of the whole doctrine is that a matter once judicially decided is finally decided because of: (1) Public policy and necessity makes it the interest of the State that there should be an end to litigation. To determine which case should be abated. Litis pendentia Requisites: [Anderson Group v. the parties‘ good faith shall be taken into consideration. 116 . (2) When he does not have the character which he claims.REMEDIAL LAW REVIEWER (4) At any stage of the proceeding. Plaintiff’s lack of legal capacity to sue The plaintiff lacks legal capacity to sue: (1) When he does not possess the necessary qualification to appear at the trial (e. the judgment in the 1st case operates as an estoppel only with regard to those issues directly controverted. (3) Judgment must be on the merits. Improper venue Unless and until the defendant objects to the venue in a MTD prior to a responsive pleading. in which case the ground for dismissal would be that the complaint states no cause of action. (Asked in the 2002 Bar Exam) (2) CONCLUSIVENESS OF JUDGMENT – Where the 2nd action between the parties is upon a different claim/demand. (4) There must be identity of parties. Sec. For res judicata to apply. It is not required to allege that there be a prior pending case. CA (1991)] Two concepts of res judicata [ABALOS V. It does not require that the later case be dismissed in favor of the earlier case. when he is not really a duly appointed administrator of an estate).

parties shall submit: [Rule 16. or some of them. 2] (1) Their arguments on questions of law. Non-compliance with a condition precedent Non-compliance with PD 1508 (Katarungang Pambarangay Law) may result in dismissal of the case on the ground of non-compliance with a condition precedent. vii. If the fact of prescription is not indicated on the face of the complaint and the same may be brought out later. at the time of the sale. Since the dismissal is final and not interlocutory in character. does the plaintiff have a valid cause of action? A MTD based upon the ground of failure to state a cause of action imports a hypothetical admission by the defendant of the facts alleged in the complaint. Resolution of Motion During the hearing of the motion. The failure to state a cause of action must be evident on the face of the complaint itself. of such things in action. Exception: Those not available at that time. a motion to dismiss may be filed on the ground that the complaint states no cause of action. chattels or things in action. of the amount and kind of property sold. The court cannot defer the resolution of the MTD for the reason that the ground relied upon is not indubitable. the complaint is dismissed. default. (2) Deny the MTD. c. The former means there is insufficiency in the allegations in the pleading. Complaint states no cause of action Failure to state a cause of action (not lack of cause of action) is the ground for a MTD. (3) Order the amendment of pleadings. Sec. (c) An agreement made in consideration of marriage. terms of sale. A complaint containing a premature cause of action may be dismissed for failure to state a cause of action. waived. (e) An agreement for the leasing for a longer period than one year. If the court finds the allegations of the complaint to be sufficient but doubts their veracity. If the case goes to trial. unless the buyer accept and receive part of such goods and chattels. [Tanpinco v. b. price. x. or pay at the time some part of the purchase money. at a price not less than five hundred pesos. The court‘s resolution on the MTD must clearly and distinctly state the reasons therefor. Remedies of plaintiff when the complaint is dismissed Remedies of plaintiff when motion to dismiss is granted If the motion is granted. or the evidences.REMEDIAL LAW REVIEWER (b) A special promise to answer for the debt. Prescription Concerned with the fact of delay A matter of time Statutory Applies in law Based on fixed time Laches Concerned with the effect of delay A matter of equity Not statutory Applies in equity Not based on fixed time 117 viii. abandoned or otherwise extinguished. the plaintiff has several options: (1) Depending upon the ground for the dismissal of the action. to wit: (a) An agreement that by its terms is not to be performed within a year from the making thereof. the court must defer decision on the motion until such time as proof may be presented on such fact of prescription. (2) Their evidence on questions of fact. Test: Assuming the allegations and statements to be true. Extinguished claim That the claim/demand set forth in the plaintiff's pleading has been paid. The latter means that there is insufficiency in the factual basis of the action. (d) An agreement for the sale of goods. it is a sufficient memorandum. or for the sale of real property or of an interest therein. 3] (1) Dismiss the action/claim. such evidence presented shall automatically be part of the evidence of the party presenting the same. ix. After the hearing. If the suit is not brought against the real party-ininterest. Unenforceable claim under the statute of frauds Article 1403 (2) CC requires certain contracts to be evidenced by some note or memorandum in order to be enforceable. IAC (1992)] viii. but when a sale is made by auction and entry is made by the auctioneer in his sales book. the court may either: [Rule 16. or miscarriage of another. other than a mutual promise to marry. the plaintiff may refile the . names of the purchasers and person on whose account the sale is made. Statute of limitations Prescription applies only when the complaint on its face shows that indeed the action has already prescribed. Sec. it must deny the MTD and require the defendant to answer and then proceed to try the case on its merits. (f) A representation as to the credit of a third person.

(2) Prescription.5] General rule: The action/claim may be re-filed. (3) Extinguishment of the claim/demand. VIII. [Riano] e. [Riano] in a separate action) of a counterclaim pleaded in the answer. Dismissal upon motion by plaintiff. Remedies of the defendant when the motion is denied 1.REMEDIAL LAW REVIEWER complaint. defendant answers. Of dismissal: [Rule 16. Sec. Twodismissal rule 2. The movant shall file his answer within the balance of the period described in Rule 11 to which he was entitled at the time of serving his motion. abandoned. 6 is without prejudice to the prosecution (in the same or h. else. defendant may present evidence. (2) Litis pendentia. but prior to. (4) Unenforceability under the Statute of Frauds. Appeal is not a remedy since denial of a motion to dismiss is an interlocutory order. (a) Res judicata (b) Prescription (c) Extinguishment of the obligation (d) Violation of Statutes of Fraud (3) The plaintiff may also avail of a petition for certiorari. (2) He may appeal from the order of dismissal where the ground relied upon is one which bars refilling of complaint e. If pleading is ordered to be amended – movant must file his answer within the period under Rule 11. 1] (1) LOJ over subject-matter. Exception: The action cannot be re-filed (although subject to appeal) if it was dismissed on any of the following grounds: (1) Res judicata. Bar by dismissal Subject to the right of appeal. the grounds in Rule 16. Sec. Sec.g when ground for dismissal is anchored on improper venue. an order granting a motion to dismiss based on paragraphs:  (f) – That the cause of action is barred by a prior judgment or by the statute of limitations. case under Rule 65 alleging grave abuse of discretion. Sec. Dismissal due to the fault of plaintiff 4. the filing of the defending party‘s answer to the pleading asserting the claim against him If denied. effect on existing counterclaim 3. and  (i) .4] If MTD is denied – Movant must file his answer within the balance of the period under Rule 11 to which he was entitled at the time of serving his MTD (but not less than 5 days) computed from the his receipt of notice of the denial. As a general rule.  (h) – That the claim or demand set forth in the plaintiff‘s pleading has been paid. but not less than 5 days in any event. Sec. Distinguished from demurrer to evidence under Rule 33 MTD under Rule 16 Based on preliminary objections May be filed by any defending party against whom a claim is asserted in the action Should be filed within the time for. defendant files his answer and then may appeal an adverse judgment. the defendant loses his right to present evidence.That the claim on which the action is founded is enforceable under the provisions of the statute of frauds shall bar the refiling of the same action or claim. If granted. DISMISSAL OF ACTIONS 1. (3) Res judicata. Sec. On other grounds and omnibus motion rule: MTD based on the following grounds may be filed even after filing an answer: [Rule 9. he may re-file the case MTD under Rule 33 (Demurrer to evidence) Based on insufficiency of evidence May be filed only by the defendant against the complaint of the plaintiff May be filed only after the plaintiff has completed the presentation of his evidence If denied. When grounds pleaded as affirmative defenses [Rule 16. plaintiff may appeal or if a subsequent case is not barred. Effect of dismissal of complaint on certain grounds i. [Rule 16. On periods for pleading: [Rule 16. Dismissal upon notice by plaintiff. Dismissal of counterclaim. 2. 5] d. [Rule 16. 6] If no MTD was filed. plaintiff appeals and the order of the dismissal is reversed. iii. Sec.(h). or otherwise extinguished. 1 may be pleaded as an affirmative defense and the court may conduct a preliminary hearing thereon as if a MTD was filed. Sec.(i)] ii. e. g. Dismissal of the complaint under Rule 16. (4) Prescription. counted from service of the amended pleading (unless the court gives a longer period). he may be declared in default. alleging grave abuse of discretion. Another remedy is to file a certiorari. cross-claim or third-party complaint . 1 (f). If granted. 118 f. waived.g.

Sec. Dismissal is without prejudice to the defendant‘s right to prosecute his counterclaim in a separate action (unless within 15 days from notice of the motion he manifests his intention to have his counterclaim resolved in the same action). The dismissal has the effect of an adjudication on the merits. (i. Rule 17. without prejudice unless otherwise stated in the court order or on plaintiff‘s motion for dismissal of his own complaint. Ytoriaga (1977)] (2) To prosecute his action for an unreasonable length of time (nolle prosequi). [Serrano v. the plaintiff is chargeable with want of due diligence in failing to proceed with reasonable promptitude. Dismissal here is without prejudice. dismissal of the complaint is subject to the court‘s discretion and upon such terms and conditions as may be deemed proper by court Leave of court for the dismissal is necessary because the motion is made after a responsive pleading or a motion for summary judgment has been served. The dismissal is still with prejudice even it the notice of dismissal does not so provide. CA (1993)] (3) To comply with the ROC or any court order. 3] . [Calalang v. (2) A motion for summary judgment. Sec. Sec. Sec. effect on existing counterclaim Dismissal upon plaintiff’s motion [Rule 17. crossclaim or third-party complaint [Rule 17. the court shall issue an order dismissing the case. Dismissal upon notice by plaintiff. Rule 17. Res judicata. Where a counterclaim is made the subject of a separate suit. however. the dismissal shall be without prejudice to the defendant‘s right to either: (1) Prosecute his counterclaim in a separate action. by manifesting such preference within 15 days from being notified of plaintiff‘s motion for dismissal. is not 3.e. 2 Dismissal is at the plaintiff‘s instance Dismissal is a matter of procedure. Sec. Dismissal is without prejudice to the defendant‘s right to prosecute his counterclaim in the same or in a separate action 4. Dismissal due to the fault of plaintiff Dismissal due to plaintiff’s fault [Rule 17. The test for dismissal of a case due to failure to prosecute is WON. unless the court declares otherwise. the court has no discretion on WON to dismiss the case). [Jalover v. Court approval of the court is necessary in the dismissal/compromise of a class suit. under the circumstances. If defendant pleaded a counterclaim prior to the service upon him of the plaintiff‘s motion for dismissal. although justified by causes imputable to him Dismissal is a matter of evidence. the notice operates as an adjudication upon the merits. where such notice is premised on the fact of payment by the defendant of the claim involved. 4] This Rule applies to the dismissal of counterclaims. Dismissal upon motion by plaintiff. cross-claims or 3rd-party complaints.  It is merely a waiver of his right to crossexamine and to object to the admissibility of evidence. 3 Dismissal is not procured by plaintiff. without prejudice to the right of the defendant to prosecute his counter-claim in the same or separate action. 2] Here.REMEDIAL LAW REVIEWER 1. an adjudication on the merits 119 2. unless otherwise provided in the order. The case may be dismissed motu proprio or upon the defendant‘s motion if. Cabrera (1953)] (2) TWO-DISMISSAL RULE – If the plaintiff has previously dismissed an action based on or including the same claim. plaintiff fails either: (1) To appear on the date of the presentation of his evidence-in-chief on the complaint. Exceptions: (1) If the notice of dismissal provides that it is with prejudice. Upon plaintiff‘s filing of notice. Sec. Dismissal of counterclaim. it may be abated upon a plea of auter action pendentia and/or dismissal on the ground of res judicata.  The plaintiff‘s failure to appear at the trial after he has presented his evidence and rested his case does not warrant the dismissal of the case on the ground of failure to prosecute. without justifiable cause. General rule: The dismissal is without prejudice. 1] Dismissal here is effected not by motion but by mere notice before the service of either: (1) The answer. Two-dismissal rule Dismissal upon plaintiff’s notice [Rule 17. (2) Have the counterclaim resolved in the same action.

REMEDIAL LAW REVIEWER
applicable since the court held that it did not acquire jurisdiction due to non-payment of docket fees. Dismissal on the ground of LOJ does not constitute res judicata, there being no consideration and adjudication of the case on the merits. Neither is there litis pendentia. [Meliton v. CA (1992)]  Thus, to obviate the element of surprise, parties are expected to disclose at a pre-trial conference (PTC) all issues of law and fact which they intend to raise at the trial, except such as may involve privileged or impeaching matters. The determination of issues at a pretrial conference bars the consideration of other questions on appeal. [Caltex v. CA (1992)]  When conducted: After the last pleading has been served and filed, it shall be the plaintiff‘s duty to move ex parte that the case be set for pre-trial. [Rule 18, Sec. 1]  A pre-trial cannot validly be held until the last pleading has been filed, which last pleading may be the plaintiff's reply, except where the period to file the last pleading has lapsed.  Discretion to declare a party non-suited in PTC must not be abused. Unless a party is so negligent, irresponsible, contumacious, or dilatory as to provide substantial grounds for dismissal for non-appearance, the court should consider lesser sanctions which would still amount to achieving the end desired. [Calalang v. CA (1993)]

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IX. PRE-TRIAL
1. 2. 3. 4. Concept of pre-trial Nature and purpose Notice of pre-trial Appearance of parties; effect of failure to appear 5. Pre-trial brief; effect of failure to appear 6. Distinction between pre-trial in civil case and pre-trial in criminal case 7. Alternative Dispute Resolution (ADR)

1. Concept of pre-trial
Definition A mandatory conference and personal confrontation before the judge between the parties litigant and their representative counsels, called by the court after the joinder of issues in a case or after the last pleading has been filed and before trial, for the purpose of settling the litigation expeditiously or simplifying the issues without sacrificing the necessary demands of justice (Asked in the 1999 Bar Examination, Examiner asked to compare this with proceedings in the Katarungang Pambarangay).

3. Notice of pre-trial [Rule 18, Sec. 3]
Notice of pre-trial shall be served on counsel, or on the party who has no counsel. Counsel served with such notice has a duty to notify the party he represents. At the start of the preliminary conference, the judge is mandated to refer the parties and/or their counsels to the mediation unit of the Philippine Mediation Center (PMC) for purposes of mediation. If the mediation fails, the judge will schedule the continuance of the preliminary conference. This rule applies to Metro Manila, Cebu Davao City, and other place where PMC Units may be further organized and designated. [Admin, Circular No. 20-2002; Admin. Circular No. 50-2005, April 26, 2005]

2. Nature and purpose
Purpose To consider: [Rule 18, Sec. 2]  Possibility of an amicable settlement or of a submission to alternative modes of dispute resolution;  Simplification of the issues;  Necessity/desirability of amendments to the pleadings;  Possibility of obtaining stipulations or admissions of facts and of documents to avoid unnecessary proof;  Limitation of the number of witnesses;  Advisability of a preliminary reference of issues to a commissioner;  Propriety of rendering judgment on the pleadings, or summary judgment, or of dismissing the action should a valid ground therefor be found to exist;  Advisability/necessity of suspending the proceedings; and  Other matters that may aid in the prompt disposition of the action. Note:  Pre-trial is primarily intended to make certain that all issues necessary to the disposition of a case are properly raised.

4. Appearance of parties; effect of failure to appear
Appearance of parties [Rule 18, Sec. 4] It is the duty of the parties and their counsel to appear at the pre-trial. A party‘s non-appearance may be excused only if either:  Valid cause is shown for it;  A representative appears in his behalf, fully authorized in writing: - To enter into an amicable settlement; - To submit to alternative modes of dispute resolution; - To enter into stipulations/admissions of facts and of documents. Citibank v. Chua (1993): SC admonishes the courts against precipitate orders of default as they have the effect of denying the party the chance to be heard.

REMEDIAL LAW REVIEWER
There are instances when parties may properly be defaulted, but such is the exception rather than the rule and should be used only in clear cases of obstinate refusal or inordinate neglect to comply with court orders. Failure to appear at pre-trial Who fails to appear Plaintiff Effect Cause for dismissal of the action which will be with prejudice, unless otherwise ordered by the court Cause to allow plaintiff to present evidence ex parte, and court to render judgment on the basis thereof As in default (failure to appear by plaintiff) (Rule 18, Sec. 5) Not required Not required Court to allow plaintiff to present evidence ex parte, then the court shall render judgment Relief awarded may be of different nature and amount from the relief prayed for

5. Pre-trial brief; effect of failure to appear
Pre-trial brief [Rule 18, Sec. 6]  Parties shall file and serve their respective pretrial briefs, ensuring receipt by adverse party at least 3 days before the date of the pre-trial.  Pre-trial brief‘s contents (Asked in the 2001 Bar Exam): - Statement of their willingness to enter into amicable settlement or alternative modes of dispute resolution, indicating the desired terms thereof; - Summary of admitted facts and proposed stipulation of facts; - Issues to be tried/resolved; - Documents/exhibits to be presented, stating the purpose thereof; - Manifestation of their having availed or their intention to avail themselves of discovery procedures or referral to commissioners; - Number and names of the witnesses, and the substance of their respective testimonies. NOTE: Failure to file the pre-trial brief shall have the same effect as failure to appear at the pre-trial. Record of pre-trial [Rule 18, Sec. 6]  The pre-trial proceedings shall be recorded. Upon termination of such proceedings, the court shall issue the pre-trial order.  Pre-trial order‘s contents: - Matters taken up in the conference; - Action taken thereon; - Amendments allowed on the pleadings; - Agreements/admissions made by the parties as to any matters considered; - Should the action proceed to trial, the explicit definition and limit of the issues to be tried.  Consequence: The contents of the order shall control the subsequent course of the action, unless modified before trial to prevent manifest injustice.  Upon manifestation of the parties of their willingness to discuss a compromise, the TC should order the suspension of the proceedings to allow them reasonable time to discuss and conclude an amicable settlement.  If despite all efforts exerted by the TC and the parties the settlement conference still fails, then the action should have continued as if no suspension had taken place. [Goldloop Properties v. CA (1992)] Note: AM 03-1-09-SC (No termination of pre-trial for failure to settle) Calendar of Cases  Under the direct supervision of the judge, the clerk of court shall keep a calendar of cases for pre-trial, for trial, those whose trials were adjourned/postponed, and those with motions to set for hearing. [Rule 20, Sec. 1]

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Defendant

Default by defendant (Rule 9, Sec. 3) Upon motion and notice to defendant. Requires proof of failure to answer Court to render judgment, unless it requires submission of evidence Relief awarded must be the same in nature and amount as prayed for in the complaint

 A defendant who already filed an answer cannot be declared in default. Only when the defendant fails to file an answer to the complaint may the court proceed to render judgment. [Lesaca v. CA (1992)]  The Revised Rules on Summary Procedure does not provide that an answer filed after the reglementary period should be expunged from the records.  As a matter of fact, there is no provision for an entry of default if a defendant fails to file his answer.  The defense of LOJ may have even been raised by the defendant in a MTD as an exception to the rule on prohibited pleadings in the Revised Rule on Summary Procedure.  Such a motion is allowed under Sec. 19(a) thereof. [Bayog v. Natino (1996)]  Where the failure to appear at the pre-trial hearing was uncontrovertedly due to illness, the default order may be set aside on the ground of accident over which petitioner had no control.  Also, the order of arrest was illegal as there is nothing in the ROC which authorizes such a consequence of a default order. [Malanyaon v. Sunga (1992)]

REMEDIAL LAW REVIEWER
 Preference shall be given to habeas corpus cases, election cases, special civil actions, and those so required by law. [Rule 20, Sec. 1]  The assignment of cases to the different branches of a court shall be done exclusively by raffle. The assignment shall be done in open session of which adequate notice shall be given so as to afford interested parties the opportunity to be present. [Rule 20, Sec. 2] Civil Case A pre-trial brief is specifically required to be submitted [Rule 18, Sec. 6] Criminal Case A pre-trial brief is not specifically required.

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6. Distinction between pre-trial in civil case and pre-trial in criminal case (Bar 1997, Riano)
Civil Case Set when the plaintiff moves ex parte to set the case for pre-trial [Rule 18, Sec. 1] Criminal Case Ordered by the court and no motion to set the case for pre-trial is required from either the prosecution or the defense [Rule 118, Sec. 1] Ordered by the court after arraignment and within 30 days from the sate the court acquired jurisdiction over the person of the accused [Rule 118, Sec. 1] Does not include the considering of the possibility of amicable settlement of one‘s criminal liability as one of its purposes [Rule 118, Sec. 1] (Stricter procedure) All agreements or admissions made or entered during the pretrial conference shall be reduced in writing and signed by both the accused and counsel; otherwise, they cannot be used against the accused. [Rule 118, Sec. 2]

7. Alternative (ADR)

Dispute

Resolution

X. INTERVENTION
1. Requisites for intervention 2. Time to intervene 3. Remedy for the denial of motion to intervene
Definition of intervention (Asked in the 2003 Bar Exam) A legal remedy whereby a person is permitted to become a party in a case, by either:  Joining the plaintiff;  Joining the defendant;  Asserting his right against both plaintiff and defendant, considering that either: - He has a legal interest in the subject matter of the action; - He is going to be adversely affected by the disposition of the property in the custody of the court Metropolitan Bank v. Presiding Judge (1990): Intervention is a proceeding in a suit/action by which a 3rd person is permitted by the court to make himself a party, either joining plaintiff in claiming what is sought by the complaint, or uniting with defendant in resisting the claims of plaintiff, or demanding something adversely to both of them. Cariño vs. Ofilada (1993): It is the act/proceeding by which a 3rd person becomes a party in a suit pending between others. It is the admission, by leave of court, of a person not an original party to pending legal proceedings, by which such person becomes a party thereto for the protection of some right of interest alleged by him to be affected by such proceedings. An intervenor is a party to the action as the original parties are, and to make his right effectual he must necessarily have the same powers as the original parties. He is entitled to have the issues raised between him and the original parties tried and determined. Intervention is never an independent action, but is ancillary and supplemental to the existing litigation. Its purpose is to afford one not an original party, yet having a certain right/interest in the pending case, the opportunity to appear and be joined so he could assert or protect such right/interest. Hence, the final dismissal of the principal action results into the dismissal of said ancillary action. Who may intervene [Rule 19, Sec. 1]

Made after the pleading has been served and filed [Rule 18, Sec. 1]

Considered the possibility of an amicable settlement as an important objective [Rule 118, Sec. 2(a)] The arrangements and admissions in the pretrial are not required to be signed by both parties and their counsels. Under the Rules, they are instead to be contained in the record of pre-trial and pre-trial order [Rule 18, Sec. 7] [AM No. 03-1-09] requires the proceedings during the preliminary conference to be recorded in the ―Minutes of Preliminary Conference‖ to be signed by both parties and/or counsel. (Note: either party or his counsel is allowed to sign) The sanctions for nonappearance are imposed upon the plaintiff and the defendant [Rule 18, Sec. 4]

Sanctions are imposed upon the counsel for the accused or the prosecutor [Rule 118, Sec. 3]

REMEDIAL LAW REVIEWER
 One who has a legal interest in the matter in litigation;  One who has a legal interest in the success of either of the parties;  One who has an interest against both parties;  One who is so situated as to be adversely affected by a distribution/disposition of property in the court‘s custody. Meaning of legal interest  One that is actual and material, direct and of an immediate character, not merely contingent or expectant so that that intervenor will either gain or lose by the direct legal operation of the judgment.  When the title to the property if declared void by final judgment, intervention will not revive or reinstate the movant‘s title derived from the title declared void. [Firestone Ceramics vs. CA (1999)]  The assignee of a property who assumed payment of whatever amount may be finally adjudged against the assignor, may intervene in a proceeding involving the execution of the property pursuant to a judgment. [Robles vs. Timario (1962)]  In an action for foreclosure of mortgage, the alleged owners of the land sought ot be foreclosed may intervene. [Roxas vs. Dinglasan (1969)] Magsaysay-Labrador v. CA (1989): Interest in the subject means a direct interest in the cause of action as pleaded and which would put the intervenor in a legal position to litigate a fact alleged in the complaint, without the establishment of which plaintiff could not recover. Pleadings in intervention [Rule 19, Sec. 3]  COMPLAINT-IN-INTERVENTION – If intervenor asserts a claim against either or all of the original parties.  ANSWER-IN-INTERVENTION – If intervenor unites with the defending party in resisting a claim against the latter. Answer to complaint-in-intervention [Rule 19, Sec. 4] It must be filed within 15 days from notice of the order admitting the complaint-in-intervention, unless a different period is fixed by the court. Intervention An ancillary action Proper in any of the four situations mentioned in Rule 19 Interpleader An original action Presupposes that the plaintiff has no interest in the subject matter of the action or has an interest therein, which in whole or in part is not disputed by the other parties to the action Defendants are being sued precisely to implead them

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1. Requisites for intervention
How intervention is done By a motion to intervene, with the pleading-inintervention attached. Must also serve copy of the pleading-in-intervention on the original parties. [Rule 19, Sec. 2] General rule: Allowance discretionary with the court. of intervention is

There is already a defendant among the original parties to the pending suit

2. Time to intervene
 Intervention is allowed any time before TC renders judgment. [Rule 19, Sec. 2]  After rendition of judgment, a motion to intervene is barred, even if the judgment itself recognizes the movant‘s right. The movant‘s remedy is to file a separate action.

Exception: When the intervenor is an indispensable party. Factors considered in allowing intervention  WON intervention will unduly delay or prejudice the adjudication of the rights of the original parties.  WON the intervenor's rights may be fully protected in a separate proceeding. Carino vs Ofilada (1993): The interest must be actual and material, direct and immediate; not simply contingent or expectant. It must be in the matter in litigation and of such direct and immediate character that the intervenor will either gain or lose by the direct legal operation and effect of the judgment.

3. Remedy for the denial of motion to intervene
Remedies  For denial of intervention: - Appeal. - Mandamus, if there is GAD.  For improper granting of Certiorari.

intervention:

XI. SUBPOENA
1. 2. 3. 4. Subpoena duces tecum Subpoena ad testificandum Service of subpoena Compelling attendance of Contempt 5. Quashing of subpoena

witnesses;

REMEDIAL LAW REVIEWER
Subpoena is a process issued by court which is either: Types (and definition) of subpoena [Rule 21, Sec. 1]  Subpoena duces tecum  Subpoena ad testificandum By whom issued [Rule 21, Sec. 2]  The court before whom the witness is required to attend;  The court of the place where the deposition is to be taken;  The officer/body authorized by law to do so in connection with investigations conducted by said officer/body;  Any SC/CA Justice in any case or investigation pending within the Philippines. Form and contents of subpoena [Rule 21, Sec. 3]  Name of court;  Title of action/investigation;  Directed to a person whose attendance is required  If subpoena duces tecum, a reasonable description of the books/documents/things demanded which must appear to the court prima facie relevant. Subpoena for depositions [Rule 21, Sec. 5]  Proof of service of a notice to take a deposition is sufficient authorization for the issuance of subpoena ad testificandum for the persons named in the notice.  Issued by the clerk of court of the place in which the deposition is to be taken.  However, subpoena duces tecum for depositions cannot be issued without court order.  Exception: Tender not required if subpoena is issued by or on behalf of the Republic or an officer/agency thereof.  For subpoena duces tecum, also tender the reasonable cost of producing the books/documents/things demanded.  Service must be made so as to allow the witness reasonable time for preparation and travel to the place of attendance

124

4. Compelling attendance witnesses; Contempt

of

Personal appearance in court [Rule 21, Sec. 7] A person present in court before a judicial officer may be required to testify as if he were in attendance upon a subpoena issued by such court/officer. Application for subpoena to prisoner [Rule 21, Sec. 2]  The judge/officer shall examine and study the application carefully to determine WON it is made for a valid purpose.  However, no prisoner sentenced to death, reclusion perpetua or life imprisonment and who is confined in a penal institution shall be brought outside for appearance/attendance in any court unless authorized by the SC. Remedy in case of witness’ failure to attend Upon proof of service of subpoena and of witness‘ failure to attend, the court/judge issuing the subpoena may issue a warrant to the sheriff to arrest the witness and bring him before the court/officer where his attendance is required. [Rule 21, Sec. 8] The cost of warrant and seizure shall be paid by the witness if the court determines that the failure to attend was willful and without just excuse. Such failure shall be deemed a contempt of the court which issued the subpoena. [Rule 21, Sec. 9] If subpoena was not issued by a court, the disobedience shall be punished by applicable law or ROC. Exception: Arrest warrant and contempt not applicable to: [Rule 21, Sec. 10]  A witness who resides more than 100km from his residence to the place where he is to testify.  A detention prisoner, if there is no permission from the court in which his case is pending.

1. Subpoena duces tecum
Process directed to a person, requiring him to bring with him any books/documents/things under his control. (Asked in the 1997 Bar Exam) Subpoena duces tecum distinguished from Order for production or inspection See Annex B.

2. Subpoena ad testificandum
Process directed to a person, requiring him to attend and to testify at the hearing/trial of an action or at any investigation conducted by competent authority, or for the taking of his deposition.

3. Service of subpoena [Rule 21, Sec. 6]
 Same manner as personal or substituted service of summons.  The original shall be exhibited and a copy delivered to person on whom it is served, with tender of fees for one day‘s attendance and kilometrage.

5. Quashing of subpoena [Rule 21, Sec. 4]
Upon motion promptly made, at/before the time specified in the subpoena. Grounds for quashing:  Subpoena duces tecum: - It is unreasonable and oppressive; - The relevancy of the books/documents/ things does not appear;

that the witness is dead. or in such a manner as to annoy. a party‘s or witness‘ deposition is inadmissible in evidence for being hearsay. Reyes (1993): General Rule: A deposition is not generally supposed to be a substitute for the actual testimony in open court of a party or witness. or the person referred to in section 14 (which refers to any person authorized to administer oaths designated by the parties by stipulation). whether or not a party. 2] 125 c. v. Depositions pending action. Production or inspection of documents or things 5.REMEDIAL LAW REVIEWER . consul. may be used by any party for any purpose if the court finds: .  The deposition of a party or of any one who at the time of taking the deposition was an officer. which is relevant to the pending action. Scope of examination Unless otherwise provided by the court. consul general. or is out of the Philippines. that such exceptional circumstances exist as to make it desirable.upon application and notice. embarrass or oppress the person under examination. the primary function of which is to supplement the pleadings for the purpose of disclosing the real points of dispute between the parties and affording an adequate factual basis during the preparation for trial. or when the inquiry touches upon the irrelevant or encroaches upon the recognized domains of privilege. or association which is a party may be used by an adverse party for any purpose. and  If only part of a deposition is offered in evidence by a party. nature. documents. and the inquiry is made in good faith and within the bounds of the law. Uses of deposition pending action Dasmariñas Garments. or managing agent of a public or private corporation.Inc. the adverse party may require him to introduce all of it which is relevant to the part introduced.That witness fees and kilometrage were not tendered when the subpoena was served. unless it appears that his absence was procured by the party offering the deposition. Request for Admission 4. . or . sec. vice consul. Section 4]  Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness. notary public.Witness fees and kilometrage were not tendered when subpoena was served.  Under certain conditions and for certain limited purposes. it may be taken even after trial has commenced and may be used without the deponent being actually called to the witness stand.that the witness resides at a distance more than one hundred (100) kilometers from the place of trial or hearing. Depositions pending action.  The deposition of a witness. infirmity. or other tangible things and the identity of any persons having knowledge of relevant facts. Physical and mental examination of persons 6.that the witness is unable to attend to testify because of age. Depositions before action or pending appeal 2. director. partnership. or . custody. .  Subpoena ad testificandum: . the deponent may be examined regarding any matter not privileged. whether relating to the claim or defense of any party  including the existence. to allow the deposition to be used. description. Exceptions: In our jurisdiction. Consequences of refusal to comply with modes of discovery 1. Before whom taken General Rule: Depositions may be taken before any judge. If the witness is available to testify. or b. in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court. XII. MODES OF DISCOVERY 1.The person in whose behalf the subpoena is issued fails to advance the reasonable cost of production. condition and location of any books. [Rule 23.That the witness is not bound thereby. [Jonathan Landoil v Mangudadatu (2006)] d. . Meaning and purpose of deposition  Deposition is chiefly a mode of discovery. If available to testify. Written interrogatories to adverse parties 3. Exception: [Rule 23. he should be presented in court to testify.  Limitations would arise if the examination is conducted in bad faith.that the party offering the deposition has been unable to procure the attendance of the witness by subpoena. Depositions before action or pending appeal [RULES 23 and 24] Depositions Under Rule 23 a. sickness. and any party may introduce any other parts. depositions in foreign countries may be taken:  on notice before a secretary of embassy or legation. or .  The liberty of a party to avail of such modes of discovery is unrestricted if the matters inquired into are relevant and not privileged. or . or imprisonment.

When may objections to errors and irregularities be made [Rule 23. [Rule 23. unless the ground for the objection is one which might have been obviated or removed if presented at that time Waived. cross.  before such person or officer as may be appointed by commission or under letters rogatory. who is a relative within the same degree. the court may make any order for the protection of the parties and the deponent. He has the same rights as a witness and may be impeached like a court witness because Sections 3 to 18 of Rule 132 apply to deponent. Section 17] 126 f. Any evidence that is objected to shall still be taken but subject to the objection.REMEDIAL LAW REVIEWER consular agent of the Republic of the Philippines. [Rule 23. [Rule 23. He may be asked questions on direct. unless reasonable objection is made at the taking of the deposition Waived. sec. or  employee or counsel of any of the parties. Section 1]  The deponent may be examined or cross examined following the procedures for witnesses in a trial. employee of such counsel. ascertained No deposition shall be taken before a person who [Rule 23. or with reasonable diligence might have been. 13]  a relative within the sixth degree consanguinity or affinity. on the motion or petition of any party or of the deponent GROUND: that the examination is being conducted in bad faith or in such a manner as unreasonably to annoy. or  who is financially interested in the action. sec. Rules that govern the deposition When issued g. e. unless served in writing upon the party propounding them within the time allowed for serving succeeding cross or other interrogatories and within 3 days after service of the last interrogatories Waived. re-direct or re-cross. Procedure A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every party to the action stating the time and place for taking the deposition and the name and address of each person to be examined. Section 16]  The attendance of the witnesses may be compelled by the use of subpoenas. or may limit the scope and manner of taking the deposition WHEN: At any time during the taking of the deposition. unless made before the taking of the deposition or as soon as the disqualification becomes known or could be discovered with reasonable certainty NOT waived by failure to make them before or during the taking of the deposition. or  before any person authorized to administer oaths as stipulated in writing by the parties. [Rule 23. Section 3]  The officer before whom the deposition is being taken has no authority to rule on objections Lack of relevance. When may taking of deposition terminated or its scope limited be COMMISSION Addressed to whom Any authority in a foreign country authorized therein to take down depositions Rules laid down by the court issuing the commission Preferred over letters rogatory since the process is simpler (generally. 18] If the order made terminates the examination. materiality and competence of the deposition to the action Error in the manner of taking the deposition Error in the form of written interrogatories Error in manner preparing deposition the of the . Section 15]  After the notice is served. [Rule 23. unless written objection is promptly served upon party giving notice Waived. interposed during the course of the deposition although any objections shall be noted by him upon the deposition. it shall be resumed only upon the order of the court in which the action is pending. unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is. no need to resort to diplomatic channels unlike in letters rogatory) LETTERS ROGATORY A judicial authority in the foreign country Rules laid down by such foreign judicial authority Generally resorted to when there is difficulty or impossibility of obtaining the deposition by commission (Regalado) is: of or or The court in which the action is pending or the RTC of the place where the deposition is being taken may order the officer conducting the examination to cease from taking the deposition. 29] Objection As to notice to parties Deposition officer disqualified is When Made Waived. embarrass or oppress the deponent or party [Rule 23. sec.

REMEDIAL LAW REVIEWER h.  It is required before the service of an answer but after jurisdiction has been acquired over the defendant or over the property subject of the action.  Written Interrogatories under Rule 23  A deposition need not be conducted through an oral examination. when an action has been dismissed and another action involving the same subject is afterward brought between the same parties or their representatives or successors in interest. which is respondent’s main defense in the criminal proceedings against him in the court below . together with a copy of the petition. Sec. Procedure FILE A VERIFIED PETITION IN THE COURT OF THE PLACE OF THE RESIDENCE OF ANY EXPECTED ADVERSE PARTY. Sec. Effect of taking deposition [Rule 23.  the facts which he desires to establish by the proposed testimony and his reasons for desiring to perpetuate it. Leave of court [Rule 23.  At least twenty (20) days before the date of the hearing.  the names or a description of the persons he expects will be adverse parties and their addresses so far as known. Discretion has to be exercised in a reasonable manner and in consonance with the spirit of the law. 5]  Substitution of parties does not affect the right to use depositions previously taken. within 5 days serve re-direct interrogatories and within 3 days the other party may serve re-cross interrogatories [Rule 23.particularly on the defense of alibi. Sec. that person must move for the taking of the deposition of his witnesses within the time provided for filing a pre-trial motion. 25]  Copies of all these interrogatories shall be delivered to the officer before whom the deposition is taken and who shall take the responses and prepare the record. The petition shall be entitled in the name of the petitioner and shall show:  that the petitioner expects to be a party to an action in a court of the Philippines but is presently unable to bring it or cause it to be brought. and  the names and addresses of the persons to be examined and the substance of the testimony which he expects to elicit from each. to rely on such a defense. WHEN AVAILABLE IN CRIMINAL CASES: A deposition.  the subject matter of the expected action and his interest therein. should be taken BEFORE AND NOT DURING TRIAL. Other rules Effect of substitution of parties [Rule 23.  and. in keeping with its nature as a mode of discovery.  ONLY INSTANCE WHEN ONE ALWAYS NEEDS LEAVE OF COURT BEFORE TAKING DEPOSITIONS: Where the deponent is in jail. Effect of using deposition [Rule 23. Sec.  all depositions lawfully taken and duly filed in the former action MAY BE USED IN THE LATTER AS IF ORIGINALLY TAKEN THEREFOR. at a time and place named therein. The deposition taking cannot be based nor can it be denied on flimsy reasons. 8]  General Rule: Introduction in evidence of deposition or any part thereof for any purpose makes the deponent the witness of the party introducing the deposition.  NOTICE AND SERVICE to each person named in the petition as an expected adverse party. 1]  Leave of court is NOT required after an answer has been served. 127 Depositions Before Action Under Rule 24 Purpose To perpetuate the testimony of witnesses for probable use in the event of further proceedings in said court. It may be conducted through written interrogatories which shall be served upon every other party.states that when a person intends . for the order described in the petition. the court shall cause notice thereof to be served on the parties and prospective deponents in the manner provided for service of summons. stating that the petitioner will apply to the court. The use of discovery procedure in criminal cases is directed to the sound discretion of the trial judge. Dasmariñas Garments v. in lieu of actual testimony of the deponent in court.  The party served may also serve crossinterrogatories upon the party proposing to take the deposition within 10 days from service of the written interrogatories. Sec. 7]  A party shall not be deemed to make a person his own witness for any purpose by taking his deposition. and shall ask for an order authorizing the petitioner to take the depositions of the persons to be examined named in the petition for the purpose of perpetuating their testimony. 26] People v. Hubert Webb (1999): DEPOSITION. [Rule 23. In fact. rules on criminal practice . may be opposed and excluded for being hearsay save in specific instances under the Rules. Sec. The latter may.  Exception: if the purpose is to contradict or impeach the deponent. Reyes (1993): Any deposition offered to prove the facts therein at the trial of the case.

NOTE: Interrogatories under RULE 25 are served directly upon the adverse party unlike written interrogatories under RULE 23 which are delivered to the officer before whom the deposition is to be taken. [Rule 23.  ORDER ALLOWING THE DEPOSITION: If the court finds that the perpetuation of the testimony is proper to avoid a failure or delay of justice. Sec. by any officer thereof competent to testify in its behalf. Regalado believes that the following procedure is applicable to civil and criminal cases. 2. documents. Procedure: DURING THE PENDENCY OF AN APPEAL. any party desiring to elicit material and relevant facts from any adverse parties shall file and serve upon the latter written interrogatories to be answered by the party served. Note: Procedure for taking deposition by oral examination or written interrogatories will be governed by Rule 23 on depositions de bene esse. h.  The party upon whom the interrogatories have been served shall file and serve a copy of the answers on the party submitting the interrogatories within fifteen (15) days after service thereof unless the court on motion and for good cause shown. d. i. condition. the court in which the judgment was rendered may allow the taking of depositions of witnesses to perpetuate their testimony in the event of further proceedings in the said court. 4 mutatis mutandis. Failure to file written interrogatories A party not served with written interrogatories may not be compelled by the adverse party to give testimony in open court. 128 c. and  relevant to the subject of the pending action. or if the party served is a public or private corporation or a partnership or association.REMEDIAL LAW REVIEWER ORDER AND EXAMINATION: If the court is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice. the answer shall be deferred until the objections are resolved [Rule 25. with notice as in case of a motion. or  Without such leave after an answer has been served. description. Sec. nature. b. Sec. TO PAY THE PROPONENT THE AMOUNT OF THE REASONABLE EXPENSES INCURRED IN OBTAINING . it may make an order allowing the deposition to be taken. 4] f. Scope of interrogatories Any matter  not privileged. UNLESS allowed by the court for good cause shown and to prevent failure of justice. without leave of court. Sec. Effect of objections to interrogatories When objections to any interrogatories is presented to the court within 10 days after service thereof. Purpose This mode of discovery is availed of by the party to the action for the purpose of eliciting material and relevant facts from any of the adverse party. [Rule 25. custody. Use of interrogatories Same as Rule 23. Sec. and location of any books. or other tangible things and the identity and location of persons having knowledge of relevant facts. or to give a deposition pending appeal. whether relating to the claim or defense of any other party. extends or shortens the time. Consequences of refusal to answer  The party serving the interrogatories may apply to the court for an order to compel an answer. Procedure  By leave of court after jurisdiction has been obtained over any defendant or over property which is the subject of the action.  The party who desires to perpetuate the testimony may make a motion in the said court for leave to take the depositions. upon the same notice and service thereof as if the action was pending therein.  If court also finds that the refusal to answer was without substantial justification. or both of them. and  the reason for perpetuating their testimony. it may require the refusing party or deponent or the counsel advising the refusal. Number of interrogatories No party may. 2] Depositions Pending Appeal Under Rule 24 J. it shall make an order designating or describing the persons whose deposition may be taken and specifying the subject matter of the examination and whether the depositions shall be taken upon oral examination or written interrogatories. serve more than one set of interrogatories to be answered by the same party. Answer  The interrogatories shall be ANSWERED FULLY IN WRITING and shall be SIGNED AND SWORN TO BY THE PERSON MAKING THEM. including the existence. 1] g. Written interrogatories to adverse parties [RULE 25] a. The motion shall state:  the names and addresses of the persons to be examined and the substance of the testimony which he expects to elicit from each. 3] e. [Rule 25.

This is an exception to the general rule that notices shall be served upon counsel and not upon the party. Implied admission by adverse party EACH OF THE MATTERS OF WHICH AN ADMISSION IS REQUESTED SHALL BE DEEMED ADMITTED unless. or 4. which shall not be less than 15 days after service thereof. 3b) STRIKING OUT OF PLEADINGS OR PARTS THEREOF (RULE 29. 5] b. Withdrawal The court may allow the party making an admission. Sec. Sec.admit the truth of any material and relevant matter of fact set forth in the request [Rule 26. 3a). SECTION 3c) DISMISSING THE ACTION OR PROCEEDING OR ANY PART THEREOF(RULE 29. Effect of failure to file and serve request for admission General rule: The party who fails to file a request shall not be permitted to present evidence on such facts. or . the party requested may have the compliance of the filing and service of the sworn statement be deferred by filing with court objections to the request for admission. Sec. 2) The subject of discovery shall be DEEMED ADMITTED OR ESTABLISHED (Rule 29 Sec.  the party to whom the request is directed files and serves upon the party requesting the admission a SWORN STATEMENT either . [Rule 26. Sec. AND (RULE 29. Duque v. 2 par. Sec. an order directing the arrest of any party or agent of a party for disobeying any of such orders [RULE 29. SECTION 3c) STAYING FURTHER PROCEEDINGS UNTIL THE ORDER IS OBEYED (RULE 29. Compliance shall be deferred until such objections are resolved by the court.REMEDIAL LAW REVIEWER THE ORDER. [Rule 26.good cause shown and . Sec. CA (2002): The request for admission MUST BE SERVED ON THE PARTY and NOT ON THE COUNSEL. Effect of admission Any admission made by a party pursuant to such request is for the purpose of the pending action only and shall not constitute an admission by him for any other purpose nor may the same be used against him in any other proceeding. 1] f. The disobedient party shall be prohibited from introducing CONTRADICTORY EVIDENCE (Rule 29. [Rule 27. Sec.to prevent a failure of justice. 1). Refusal to comply with an order of the court to compel an answer may be considered CONTEMPT of that court (Rule 29. Production or inspection documents or things [RULE 27] a. whether express or implied under the Rule to withdraw or amend it upon such terms as may be just. Deferment of compliance To avoid the implied admission. WITHIN THE PERSONAL KNOWLEDGE OF THE LATTER [Rule 26. 2] e. place and manner . a party may request the other to: . Sec.admit the genuineness of any material and relevant document described in and exhibited with the request.  within a period designated in the request. OR OUGHT TO BE. a party who fails to file and serve a request for admission on the adverse party of material and relevant facts at issue which ARE. 3c] . 3] 3. Sec. The admitting party must file a motion to be relieved of the effects of his admissions. INCLUDING ATTORNEY'S FEES (Rule 29. 1]  The court in which the action is pending shall issue an order:  which shall specify the time. or within such further time as the court may allow on motion. When may request be made At any time after issues have been joined.  To avoid unnecessary inconvenience to the parties in going through the rigors of proof. g. SECTION 3c) In lieu of any of the foregoing orders or in addition thereto. Request for Admission [RULE 26] a. SECTION 3c) RENDERING A JUDGMENT BY DEFAULT AGAINST THE DISOBEDIENT PARTY.         129 d. before the trial. Purpose  To allow one party to request the adverse in writing to admit certain material and relevant matters which most likely will not be disputed during the trial.denying specifically the matters of which an admission is requested. Procedure of A motion must be filed by the party seeking the production or inspection of documents and things and the motion must show good cause supporting the same.setting forth in detail the reasons why he cannot truthfully either admit or deny those matters. Exception: Unless otherwise allowed by the court for: . c.

1] NOTE: This mode of discovery does not mean that the person who is required to produce the document or the thing will be deprived of its possession even temporarily. of the same mental or physical condition. Requisites of motion to postpone trial a. For illness of party or counsel 3. not privileged. A hearing is a broader term. place. [Rule 28. . letters.  If the party examined refuses to deliver such report. Sec. e. Physical and mental examination of persons [Rule 28] a.  After such request and delivery. custody or control of the party to whom the order is addressed. [Rule 27. manner. the court on motion and notice may make an order requiring delivery on such terms as are just  If it is the physician who fails or refuses to make such a report the court may exclude his testimony if offered at the trial. of any documents. (Regalado) (Asked in the 2002 Bar Exam) d. 3] 130 b. and  which may prescribe such terms and conditions as are just. the party causing the examination to be made shall be entitled upon request to receive from the party examined a like report of any examination. 1] previously or thereafter made. papers. Consolidation or Severance of hearing or trial 6. 5. It is not confined to the trial and presentation of the evidence because it actually embraces several stages in the litigation. by or on behalf of the moving party. surveying. Waiver or privilege By requesting and obtaining a report of the examination so ordered or by taking the deposition of the examiner. notice to parties and hearing on the report Trial.REMEDIAL LAW REVIEWER of making the inspection and taking copies and photographs. For absence of evidence b. photographs. measuring. People]. Consequences of refusal to comply with modes of discovery See Annex C. books. Sec. Agreed statement of facts 4. or photographing the property or any designated relevant object or operation thereon. accounts. 6. the party causing the examination to be made shall deliver to him a copy of a detailed written report of the examining physician setting out his findings and conclusions. which constitute or contain evidence material to any matter involved in the action and which are in the possession. Court to issue the order for examination in its discretion. conditions and scope of examination  Notice must also specify person/s who will make the examination XIII.  To PERMIT ENTRY upon designated land or other property in the position or control of the party to whom the order is addressed for the purpose of inspecting. reversal of order 5. the party examined waives any privilege he may have in that action or any other involving the same controversy. [Rule 27.  Such examination is not necessary to treat or cure the patient but to assess the extent of injury or to evaluate his physic al or mental condition. regarding the testimony of every other person who has examined or may thereafter examine him in respect of the same mental or physical examination. Powers of the commissioner c. Report of findings  If requested by the party examined. It b. Adjournments and postponements 2. Order of trial. Trial by commissioners a. Sec. It is enough that the requesting party be given the opportunity to inspect or copy or photograph the document or take a look at the thing. Motion requesting Examination Requisites  The physical or mental condition of a party (NOT A WITNESS!) is in controversy  Motion must be filed showing good cause  Notice given to the party to be examined and to all other parties  Notice must specify the time. objects or tangible things. What the court may order  To PRODUCE and PERMIT THE INSPECTION and copying or photographing. Physician-Patient Privilege  Inapplicable because the results of the examination are intended to be made public. TRIAL 1. c. Reference by consent or ordered on motion b. starting with the production of evidence by the plaintiff and ending with his closing arguments [Acosta v. Commissioner’s report. defined A trial is the judicial process of investigating and determining the legal controversies. Delegation of reception of evidence 7.

for illness of party or counsel Ground for postponement of trial For absence of evidence [Rule 30. Sec. 2  When for special reasons the court directs otherwise. General order of trial Plaintiff shall adduce evidence in support of his claim. as the expeditious and convenient transaction of business may require. ensuring receipt of the notice at least 5 days before the trial date. citing Garces v Valenzuela] 4. Sec. Exception: Court may not adjourn for longer than 1 month for each adjournment. 2] General rule: The court may adjourn a trial from day to day to any stated time.  4th-party (and so forth) shall adduce evidence of the material facts pleaded by them.  Upon admission of evidence.  Parties may agree in writing upon the facts involved in the litigation. Sec.  Order all the actions consolidated. for absence of evidence b. Sec. 5] General rule: Trial shall be limited to the issues stated in the pre-trial order. cross-claim and 4thparty complaint. Sec. Order of trial. Consolidation or Severance of hearing or trial Consolidation of trial [Rule 31.  That the character of his illness is such as to render his nonattendance excusable. 3] Requisite for motion to postpone Affidavit showing:  The materiality/relevancy of such evidence. the case shall be deemed submitted for decision. in the order prescribed by the court.REMEDIAL LAW REVIEWER includes the pre-trial and the determination of granting or denying a motion.  Defendant shall adduce evidence in support of his defense. 2. reversal of order Conduct of trial [Rule 30.  3rd-party defendant (if any) shall adduce evidence of his defense. 6] . Exception: When the court permits them to adduce evidence upon their original case. 1] Upon entry of a case in the trial calendar. If several defendants or 3rd-party defendants having separate defenses appear by different counsel. trial shall not be postponed even if he objects or reserves the right to object to their admissibility. 1] When actions involving common question of law/fact are pending before the court.  That due diligence has been used to procure the evidence But if the adverse party admits the facts to be given in evidence.  Parties whom any counterclaim or cross-claim has been pleaded. counterclaim. the court shall determine the relative order of presentation of their evidence. Requisites of motion to postpone trial a. Exception:  Provisions on separate trials in Rule 31. it may:  Order a joint hearing/trial of any/all the matters in issue in the actions. cross-claim and 3rd-party complaint. [Trocio v Labayo] Notice of trial [Rule 30. It is addressed to the sound discretion of the court. the clerk shall notify parties the date of its trial. shall adduce evidence in support of their defense. and submit the case for judgment without introduction of evidence. Sec. Adjournments and postponements [Rule 30. unless the court directs the parties to argue or to submit their respective memoranda or any further pleadings. for good reasons and in furtherance of justice. Sec. 5.  If the parties agree to only some of the facts in issue. Affidavit or sworn certification:  That the presence of such party/counsel at the trial is indispensable. Exception to exception: When authorized in writing by the SC Court Administrator. Agreed statement of facts [Rule 30. [Riano. 3. Sec.  Parties may respectively adduce rebutting evidence only. trial shall be held as to the disputed facts in such order as the court shall prescribe. For illness of party/counsel [Rule 30. nor more than 3 months in all. Note: Postponement is not a matter of right. 131 1. counterclaim. 4] Subpoena See separate part for Subpoena BUT please take note that Subpoenas are issued within the context of a Trial and taking depositions under Modes of Discovery.

9] of General rule: The judge of the court where the case is pending shall personally receive the evidence to be adduced by the parties. Where a case has been partially tried before one judge. notice to parties and hearing on the report Report of commissioner [Rule 32. Sec. or for carrying judgment/order into effect. 7] During the hearing/trial of the case.  Reference ordered on motion when: . However. . The order may:  Specify/limit the commissioner‘s power  Direct him to report only upon particular issues. The parties 10 days to object to the report‘s findings. unless otherwise provided in the order of reference.  Of any separate issue.REMEDIAL LAW REVIEWER  Make such orders concerning the proceedings as to avoid unnecessary costs or delay. The court may issue an order adopting/modifying/rejecting the report or part of it. only questions of law shall thereafter be considered. NOTICE: The clerk shall notify parties of the filing of the report. cross-claims. the clerk shall furnish the commissioner with a copy of the order of reference. the clerk of court has no power to rule on objections to any question/admission of exhibits. 1] Kinds of trial by commissioner [Rule 32. Commissioner’s report. or direct him to receive and report evidence only  May fix the date for beginning and closing the hearings and for the filing of his report. Suspension of actions [Rule 30. Sec. counterclaims. 8] Governed by the CC provisions 6. Powers of the Commissioner:  Regulate the proceedings in every hearing before him [subject to other specifications & limitations in the order]  Power to do all acts and take all measures necessary or proper for the efficient performance of his duties under the order [subject to other specifications & limitations in the order]  He may issue subpoenas and subpoenas duces tecum. the report shall be set for hearing. [Rule 32. to do/perform particular acts. 9] . Sec. c. When parties stipulate that the Commissioner's findings of fact are final. 1 & 2]  Reference by consent of both parties. cross-claim.A question of fact. Sec. swear witnesses.Trial of an issue of fact requires the examination of a long account on either side . any statement made by the judge shall be made of record in the TSN if made with reference to the case/parties/witnesses/ counsels. the consolidation of the same with another related case pending before another judge who had no opportunity to observe the demeanor of the witness during trial makes the consolidation not mandatory.  Cases where parties agree in writing. Reference by consent or ordered on motion Order of reference [Rule 32. Secs. REPORT: Upon completion of the trial/hearing. Exception: The court may delegate the reception of evidence to its clerk of court who is a member of the bar in:  Default hearings. Sec. 2] The court may issue separate trials for convenience or to avoid prejudice:  Of any claim. 3rd-party complaints or issues. counterclaim or 3rdparty complaint. 3] When a reference is made. Sec.  Of any number of claims. 2 to 12] ORDER OF REFERENCE: When a reference is made. the commissioner shall file a written report with the court. MEETING: The commissioner shall set a time/place for the first meeting and shall notify parties/counsels. b. Sec. HEARING: After the 10 days. Sec. Statement of judge [Rule 30.  Ex parte hearings. arises in any stage of a case or for carrying a judgment/order into effect. Sandiganbayan (1992)] Severance of trial [Rule 31. [PCGG v. other than upon the pleadings. Powers of the commissioner [Rule 32. the clerk shall forthwith furnish the commissioner with a copy of the order of reference. 132 a. Trial by commissioners COMMISSIONER – Includes a referee.  He may rule upon the admissibility of evidence. 7. an auditor or an examiner. Delegation of reception evidence [Rule 30. The trial or hearing before him shall proceed in all respects as it would if held before the court.Taking of an account is necessary for the court‘s information before judgment. Objections shall be resolved by the court upon submission of the clerk‘s report and TSN within 10 days from termination of the hearing.

Waiver of right to present evidence If the order granting the demurrer is reversed on appeal.e. CA] xxx 133 Plaintiff's remedy would be to appeal. 2. Tuvera] The appellate court should render judgment on the basis of the evidence submitted by the plaintiff. Objections to the report based upon grounds which were available to the parties during the proceedings before the commissioner. Sandiganbayan] Demurrer After the plaintiff rests his case Only ground: The plaintiff has shown no right to relief (i. Ground Effect of denial Effect of grant Waiver of right to present evidence Demurrer to evidence in a civil case versus demurrer to evidence in a criminal case When to File Ground MTD Before the service and filing of the answer Those enumerated in Rule 16 Effect 1. it may be the subject of a petition for certiorari for GAD under Rule 65 [Katigbak v. if they so desire. Sec. papers and the transcript. shall not be considered by the court unless they were made before the commissioner. if the order granting the demurrer is reversed on appeal.  Recommitting the report with instructions. or  Requiring the parties to present further evidence before the commissioner or the court. Republic v. Effect of denial 3. based on the merits of the evidence presented so far) An interlocutory order and not appealable. [Radiowealth Finance v. Republic v. Notice to parties of the filing of report [Rule 32. Grant of demurrer The case dismissed shall be Denial of demurrer The defendant shall have the right to present evidence The court should set the date for the reception of the defendant‘s evidence-in-chief [Northwest Airlines v.REMEDIAL LAW REVIEWER Upon the completion of the trial or hearing or proceeding before the commissioner. Sec.e. affidavits. the complaint is likewise dismissed. depositions. 10] Upon the filing of the report. the report shall be set for HEARING. [Rule 33. the defendant loses his right to present evidence. But. set forth. upon the facts and the law the plaintiff has shown no right to relief). DEMURRER TO EVIDENCE 1.  Modifying (in whole or in part)  Rejecting the report (in whole or in part). When his powers are not specified or limited. of the testimonial evidence presented before him. Hearing on the report [Rule 32. Effect of grant Grant of demurrer Denial of demurrer 4. If a MTD is granted. the defendant loses his right to present evidence. 1] It is invoked after the plaintiff has presented all the evidence available to him. [Rule 33. 5. and they shall be allowed 10 days within which to signify grounds of objections to the findings of the report. the defendant shall file his responsive pleading 2. However. Sec. Sec .e. depending on the ground.1. Sec 1. 3. the parties shall be notified by the clerk. evidence is insufficient) XIV. other than objections to the findings and conclusions therein. he shall file with the court his report in writing upon the matters submitted to him by the order of reference. he shall set forth his findings of fact and conclusions of law in his report. Ground Definition: A species of MTD that may be invoked based on insufficiency of evidence (i. After which the court shall issue an ORDER:  Adopting (in whole or in part). He shall attach thereto all exhibits. However. the complaint may be re-filed If the MTD is denied. [Rule 33. if any. Sec. 10. Del Rosario] Equivalent to judgment (i. 11] Upon the expiration of the 10-day period in Rule 32. Tuvera] . 4.

signed by the judge and filed with the clerk of court. Rendition of judgments and final orders 7.  JUDGMENT UPON THE MERITS . [Rule 35. SEC. Judgment upon compromise The provisions and terms are settled by the parties to the action.REMEDIAL LAW REVIEWER  Judgment must be in writing. [Corpus v. 1987 CONSTITUTION] AJOEWS  Court/tribunal must be with authority to hear and determine the matter before it.  Note: A verbal judgment is. the defendant may proceed to present his evidence XV. CA] Kinds of judgment  JUDGMENT UPON COMPROMISE . based upon the disclosed facts  CLARIFICATORY JUDGMENT . Sec. The judgment is entered in the record by consent of the court. whereupon judgment was entered against him without proceeding to trial. Note: Leave of court is necessary so that the accused can present his evidence in case the demurrer is denied [Rule 119. ineffective. instead of entering a plea. [Acosta v. personally and directly prepared by the judge. It is immediately executory in the absence of a motion to set aside on the ground of FAME.It is rendered to clarify an ambiguous judgment or one difficult to comply with. . 8. 3. 134 5. JUDGMENTS AND FINAL ORDERS 1. Demurrer to evidence in a civil case versus demurrer to evidence in a criminal case DIFFERENCES BETWEEN DEMURRER IN CIVIL AND CRIMINAL CASES (Asked in the 2003 and 2007 Bar Exams) Demurrer in civil cases Demurrer in criminal cases Defendant need not ask May be filed with or for leave of court without leave of court.  Parties must have been given an opportunity to adduce evidence in their behalf. 1. Sandiganbayan]  Judgment must state clearly the facts and the law upon which the decision is based.It is one conferred on the basis of a compromise agreement entered into between the parties. So long as the factual and legal bases are distinctly and clearly set forth. Remedy against judgment by consent. Entry of judgment and final order JUDGMENT The final ruling by a court of competent jurisdiction regarding the rights and obligations of the parties or other matters submitted to it in an action/proceeding [Macahiling vs. The court exercises a certain amount of supervision over the entry of judgment. SEC. ART. A judgment is ―on the merits‖ when it amounts to a legal declaration of the respective rights and duties of the parties. file the appropriate petition under Rule 65. 4. Heirs of Magalit] REQUISITES OF A VALID JUDGMENT [RULE 36. the defendant both: (a) confessed the plaintiff‘s cause of action and (b) withdrew his plea or other allegations.It is one rendered by the court when a party expressly agrees to the other party‘s claim or acknowledges the validity of the claim against him. 2. the judgment is valid. Judgment by confession An affirmative and voluntary act of the defendant himself. if denied. 5. acknowledged and confessed that the plaintiff‘s cause of action was just and rightful. the order of dismissal is appealable If a demurrer is denied. .23] The order of dismissal is not appealable because it will constitute double jeopardy The accused may adduce his evidence only if the demurrer is field with leave of court If the demurrer is granted. confession or compromise is to first file a motion to set it aside.  JUDGMENT UPON CONFESSION . under the law. Judgment without trial Contents of a judgment Judgment on the pleadings Summary judgments Judgment on the pleadings versus summary judgments 6. 1] A decision need not be a complete recital of the evidence presented. Sec. COMELEC] Kinds of judgment by confession: .JUDGMENT BY COGNOVIT ACTIONEM – After service.JUDGMENT BY CONFESSION RELICTA VERIFICATIONE – After pleading and before trial. 14.It is one that is rendered after consideration of the evidence submitted by the parties during the trial of the case.  Evidence must have been considered by the tribunal in deciding the case.  Court must have jurisdiction over the parties and the subject matter. the defendant. [Chan v.

Sec. and shall proceed as to the remaining claims. Salcedo (1969)] Conflict between the dispositive portion and body of the decision .It may refer to a dismissal of a case without prejudice to it being re-filed. ―now for then‖. quoted in Casilan vs. The court may require the parties on each side to file adversary pleadings as between themselves. 4] It is proper when the liability of each party is clearly separate and distinct from his co-parties such that the claims against each of them could have been the subject of separate suits. I.Literally. 2028 Civil Code]  Complaint has been dismissed with prejudice [Rule 16. The judgment shall terminate the action with respect to the claims disposed of. 135 1. after a determination of the issues material to a particular claim and all counterclaims arising out of the transaction or occurrence that is the subject matter of said claim. 6]  PROMULGATION . coupled with notice to the parties or their counsel. Such a judgment is generally void because eof the absence of a disposition [cu-unjieng v mabalacat sugar co. .  While they may constitute its decision and amount to a rendition of a judgment they are not the judgment itself.  Fallo. Rule 17. sec. 3] If judgment is rendered against 2 or more persons sued as an entity without juridical personality.It is one rendered disposing of a claim among several others presented in a case.  So there is a distinction between the findings and conclusions of a court and its judgment.It is one rendered by a court against one or more defendants and not against all of them. Sec. It is a judgment intended to enter into the record the acts which had already been done. Sec. leaving the action to proceed against the others. Vol. . 5] It is proper when more than one claim for relief is presented in an action for the determination as to the issues material to the claim has been made. [Lichauco v Tan Pho]  JUDGMENT SIN PERJUICIO . affidavits. The part of the judgment that is subject to execution [Riano]  Signature of the judge. 5.A decision of the appellate court which adopts the findings and conclusions of the TC.  CONDITIONAL JUDGMENT . Judgment without trial When trial is not necessary – PSADSA (Asked in the 1996 Bar Exams) [Riano]  The pleadings of the parties tender no issue at all – judgment on the pleadings may be directed by the court [Rule 34]  There is actually no genuine issue from the pleadings.REMEDIAL LAW REVIEWER  JUDGMENT NON PRO TUNC . page 6. sec. depositions and other papers – court may render a summary judgment [Rule 35]  Parties entered into a compromise or an amicable settlement either during the pre-trial or during the trial [Rule 18. definitevely. the judgment shall set out their individual names (if known). made known to the public or delivered to the clerk of court for filing. or Disposition of the case – It is the dispositive part of the judgment that actually settles and eclares the rights and obligation sof the parties.It is one the effectivity of which depends upon the occurrence or non-occurrence of an event. [Rule 36. Ratio decidendi.This includes an amended decision because an amended decision is a distinct and separate judgment and must follow the established procedural rule.]  SEVERAL JUDGMENT . Sec. 5th Edition.  MEMORANDUM DECISION .  While the two may be combined in one instrument. 3. 5 (last par. and may prescribe conditions to secure the judgment‘s benefits.The process by which a decision is published. or Opinion of the court – It contains the findings of facts and conclusions of law. and the judgment for or against one of them will not necessarily affect the other. officially announced. Sec. Contents of a judgment Parts of a judgment  Body. which. but which do not appear in the records. Art. [Freeman on Judgments. the opinion forms no part of the judgment. Sec.  The latter is the informal expression of the views of the court and cannot prevail against its final order or decision. finally. and authoritatively [Light Rail Transit Authority v CA]. Judgment may be given for/against one or more of several plaintiffs/defendants. The court may stay its enforcement until rendition of subsequent judgments. [Rule 36. Distinction Between Judgment and Opinion of the Court (ASKED IN THE 2006 BAR EXAM)  A judgment (or FALLO) must be distinguished from an opinion.)]  Case falls under the Rules on Summary Procedure  Agreed statement of facts [Rule 30.A judgment is considered rendered upon the filing of the signed decision. [Rule 36. [Rule 36. 6] 2.  SEPARATE JUDGMENT . Rule 7. must be distinguished from the judgment.  They amount to nothing more than an order for judgment. of course.

The opinion in the body is merely a statement ordering nothing [Poland Industrial Limited v. Sec. Union Bank. and unequivocal [Union Bank v Pacific Equipmetnt Corporation] Basis: The fallo is the final order. as distinguished from an issue which is sham.General denial of the material allegations of the complaint. nature A judgment granted by the court for the prompt disposition of civil actions. Definition. Agbada v Inter-Urban Developers. It cannot be rendered by the court motu proprio. (Rule 26) 4. fictitious. Sec.  Annulment of marriage. upon the following. [Ley Construction v. the plaintiff waives his claim for unliquidated damages (because claims for such damages must be alleged and proved). Judgment on the pleadings [Rule 34] (Asked in the 1999 and 2005 Bar Exams) Grounds: If the answer either  Fails to tender an issue. Raboca v Velez] Also called accelerated judgment. depositions or admissions at least 3 days before the hearing  Hearing – Court shall determine if a genuine issue as to any material fact exists and if the movant is entitled to a summary judgment as a matter of law  Judgment a. Sec.  The TC cannot motu propio issue a summary judgment. Summary judgments [Rule 35] (Asked in the 1986.  Depositions of the adverse or a 3rd party.  When the facts as pleaded appear uncontested or undisputed. depositions or admission  Service to the adverse party at least 10 days the hearing  Adverse party may serve opposing affidavits.  Admits the material allegations of the adverse party‘s pleading. for the defendant [Rule 35. National Development Company] 3. 3] Movant files a motion for summary judgment with supporting affidavits. [Rule 18. 2] Who may file the motion Claimant Defendant When May file the motion only after the answer has been served May file the motion any time Filing of a motion for summary judgment does not interrupt the running of the period for filing an answer. How Suy Ching (1952)] Genuine issue  An issue of fact which calls for the presentation of evidence. the movant must also file a Motion for Extension of Time to File Answer. [Riano] Procedure [Rule 35. 1] b.  Legal separation. for the claimant [Rule 35.Insufficient denial of the material allegations of the compliant. A party must move for summary judgment.REMEDIAL LAW REVIEWER Rule: Where there is a conflict between the fallo and the body of the decision. . then there is no real/genuine issue as to the facts. if it clearly appears (after the issues had been joined and on the basis of the pleadings and papers filed) that there exists no genuine issue/controversy as to any material fact. 2(g)] When judgment on the pleadings will not apply  Declaration of nullity of marriage. [Falcasantos v. 1996 and 1999 Bar Exams) . clear. Sec. 136 Qualification: This rule applies only when the dispositive part is definite. (Rule 23)  Admissions of the adverse party. Note: An answer fails to tender an issue due to either: . Exception: If at pre-trial the court finds that a judgment on the pleadings is proper. contrived and patently insubstantial so as not to constitute a genuine issue for trial. 1989. no genuine issue as to any material fact exists:  Affidavits made on personal knowledge. Bases of summary judgment: When. Cannot be rendered motu proprio A judgment on the pleadings can be done only upon MOTION to that effect filed by the appropriate party. the fallo controls. except as to the amount of damages. Effect: judgment on the pleadings will not lie and material facts alleged in the complaint must always be proved Effects  By moving for judgment on the pleadings. it may render such judgment motu proprio.  One who prays for the judgment on the pleadings without offering proof as to the truth of his own allegations and without giving the opposing party an opportunity to introduce evidence must be understood to admit all material and relevant allegations of the opposing party and to rest his motion for judgment upon those allegations taken together with such of his own as are admitted in the pleadings. Hence.

Judgment on the pleadings versus summary judgments Summary judgment Judgment on the pleadings Judgment by default . Affidavits and attachments Form of affidavits and supporting papers [Rule 35.An examination of the pleadings and evidence before it . Sec. Rendition of judgments and final orders Form of judgment [Rule 36. Sec. Affidavits in bad faith [Rule 35. except annulment of marriage or legal separation cases Available in any action. Sec. it is still subject to amendment if it has not yet been filed with the clerk of court and before its filing does not yet constitute the real judgment of the court. 5]  Made on personal knowledge  Shall set forth such facts as would be admissible in evidence  Shall show affirmatively that the affiant is competent to testify to the matters stated therein. after hearing 10-day notice required May be interlocutory or on the merits Usually available in actions to recover a debt. Even if the judgment has already been put in writing and signed.REMEDIAL LAW REVIEWER  Answers to interrogatories. CA (1983)] 137 Available to both plaintiff and defendant Available to the plaintiff alone d. (Rule 25) Based on the pleadings. [Ago v. Trial should deal only with the facts not yet specified or established. 15]  All cases filed must be decided or resolved by the Supreme Court within 24 months from the date of their submission for decision. admissions and affidavits There is no genuine issue between the parties Based solely upon the pleadings The answer fails to tender an issue or there is an admission of the material allegations Generally available only to the plaintiff. including attorney‘s fees  Court may adjudge the offending party or counsel guilty of contempt. within 12 months for lower collegiate courts and within 3 months for all other lower courts. Attachments [Rule 35. Sec. except annulment of marriage or legal separation cases 6. or for declaratory relief 3-day notice rule applies On the merits Available in any action. When the case not fully adjudicated Partial summary judgment (Asked in the 2004 Bar Exam) Applies when for some reason there can be no full summary judgment. VIII. [Guevarra v. Sec.Interrogation of the counsel  Make an order specifying the facts and the extent of the amount of damages that appear without substantial controversy  Direct further proceedings as are just  Conduct trial on the controverted facts accordingly Effect A partial summary judgment is not a final judgment. Sec. 5] Definition – Affidavits presented under this Rule which appear to the court at any time as presented in bad faith or solely for the purpose of delay Effects:  Court shall order the offending party or counsel to pay the other party – amount of reasonable expenses which the filing of the affidavits caused him to incur.  Unless reduced by the SC. depositions. 5. CA] Period within which decision is to be rendered [1987 Constitution. or for a liquidated sum of money. Art. Definition of rendition of judgment It is the filing of the judgment with the clerk of court. unless the defendant presents a counterclaim 3-day notice required On the merits Based on the complaint and evidence. if court requires its presentation No issues as no answer is filed by the defending party c. 5] Certified true copies of all papers or parts thereof referred to in the affidavit shall be attached thereto OR served therewith. 1]  In writing  Personally and directly prepared by the judge  Stating clearly & distinctly the facts and the law on which it is based  Signed by the judged  Filed with the clerk of court. Duty of court [Rule 35. It is not the pronouncement of the judgment in open court that constitutes the rendition. 4]  Ascertain what material facts exist without substantial controversy and what are actually and in good faith controverted based on: . but merely a pre-trial adjudication that said issues in the case shall be deemed established for the trial of the case.

Sec. Sec. [Riano] Rendition of judgment Filing of the judgment with the clerk of court Entry of judgment Act of clerk of court in entering the dispositive portion of the judgment in the book of entries of judgment XVI. which can always be amended from time to time.  To clarify an ambiguity which is borne out by and justifiable in the context of the decision. Motion for New Trial or reconsideration 2. Contents of motion for new trial or reconsideration Rule 37.REMEDIAL LAW REVIEWER A case is deemed submitted for resolution upon the filing of the last pleading. It is not the motion for reconsideration of interlocutory order. Appeals in General 3. not substantial amendments. as by an amendment non pro tunc. Sec. Annulment of Judgments or final orders and resolutions 5. Collateral attack of judgments Remedies BEFORE finality of judgment  Motion for Reconsideration  Motion for New Trial  Appeal Entry of Judgments and Final Orders [Rule 36. An extension of the period may be set by the SC upon request by the judge concerned on account of heavy caseload or by other reasonable excuse [Arap v Mustafa] Interpretation of the judgment Where the judgment is difficult to execute because of ambiguity in its terms. Motion for Reconsideration New Trial or Motion for reconsideration A motion for reconsideration under Rule 37 is directed against a judgment or final order. . Amendments to judgment (Asked in the 2008 Bar Exams) The power to amend judgments is inherent to the court before judgment becomes final and executory. which often precedes a petition for certiorari under Rule 65. 3] The record:  Shall contain the judgment‘s dispositive part  Shall be signed by the clerk of court with a certificate that the judgment has become final and executory. or by duly authenticated documents which are proposed to be introduced in evidence. Amended/clarified judgment An entirely new decision and supersedes the original judgment Court makes a thorough study of the original judgment and renders the amended and clarified judgment only after considering all the factual and legal issues Supplemental decision Does not take the place of or extinguish the original judgment Serves to add to the original judgment 138 7. a written notice of which shall be served by the movant on the adverse party.—The motion shall be made in writing stating the ground or grounds therefor. 6]  Petition for relief (as one of its periods.  In judgments for support. the remedy of the party is to file a motion for clarificatory judgment and not to assail the judgment as void. POST-JUDGMENT REMEDIES 1. brief or memorandum required by the Rules of Court or by the court. A motion for the cause mentioned in paragraph (b) shall be supported by affidavits of the witnesses by whom such evidence is expected to be given. Contents of motion for new trial or reconsideration. A motion for the cause mentioned in paragraph (a) of the preceding section shall be supported by affidavits of merits which may be rebutted by affidavits. not more than 6 months from entry of the judgment or final order) [Rule 38. General rule: The court cannot amend the judgment once it has become final and executory. 2] If there is no appeal/MNT/MFR filed within the prescribed periods. Relief from judgments. Exception: 1. the clerk of court shall enter the judgment or final order in the book of entries of judgments. [Poland Industrial Limited v National Development Company]  To make corrections of clerical errors. orders and other proceedings 4. Entry of judgment and final order Definition of entry of judgment The entry of judgment refers to the physical act performed by the clerk of court in entering the dispositive portion of the judgment in the book of entries of judgment after the same has become final and executory. It does not apply to cases that fall under Summary Procedure. A motion for new trial shall be proved in the manner provided for proof of motions.2. Sec. Date of finality of the judgment = Date of its entry in the book Note: the periods for filing the following pleadings are reckoned from the date of entry of judgment  Execution of a judgment by motion (5 years from entry) [Rule 39.

A pro forma motion for new trial or reconsideration shall not toll the reglementary period of appeal. . in good faith. Extrinsic fraud: any fraudulent scheme executed by the prevailing party outside of the trial against the losing party who. Otherwise. It is not sufficient to mention the ground relied upon. which he could not.  The damages awarded are excessive. the defendant was misled in a case. Form and content of a motion for reconsideration Motion for reconsideration must be in writing. It is necessary for the motion for reconsideration to point out specifically the findings or conclusions of the judgment or final order which are not supported by the evidence or which are contrary to law. which could not. mistake or excusable negligence which ordinary prudence could not have guarded against and by reason of which such aggrieved party has probably been impaired in his rights. Non-compliance with this requirement would reduce the motion to a mere pro forma motion. Accident: an event that occurs without one‘s foresight or expectation. . Non-compliance with this requirement would reduce the motion to a mere pro forma motion.The affidavits of merit must show the facts (not mere conclusions or opinions) constituting the valid cause of action or defense which the movant may prove in case a new trial is granted. Grounds for a motion for reconsideration  The evidence is insufficient to justify the decision. or that the decision or final order is contrary law. a new trial would serve no purpose. and/or duly authenticated documents which are proposed to be introduced in evidence. and which if presented would probably alter the result. a written notice of which must be served on the adverse party. Mistake or Excusable Negligence) which ordinary prudence could not have guarded against and by reason of which the aggrieved party has probably been impaired in his rights. When to file The motion must be filed within the period for appeal. accident. Sec. mistakes of facts or law where.REMEDIAL LAW REVIEWER A motion for reconsideration shall point out specifically the findings or conclusions of the judgment or final order which are not supported by the evidence or which are contrary to law. was prevented from presenting his side of the case. because of such fraud. that the evidence is insufficient to justify the decision or final order. the aggrieved party may move the trial court to set aside the judgment or final order and grant a new trial for one or more of the following causes materially affecting the substantial rights of said party: (a) Fraud. with reasonable diligence. . The 15-day period is deemed to commence upon receipt by the counsel of record. Intrinsic fraud: acts of a party during the trial which does not affect the presentation of the case. have discovered and produced at the trial. CA: Newly discovered evidence may and does commonly refer to evidence already in existence prior to or during trial but which could not have been secured and presented during the trial despite reasonable diligence on the part of the litigant. 139 a. making express reference to the testimonial or documentary evidence or to the provisions of law alleged to be contrary to such findings or conclusions.The motion shall be supported by affidavits of merit. or (b) Newly discovered evidence. Grounds of and period for filing motion for new trial or reconsideration.—Within the period for taking an appeal. the aggrieved party may also move for reconsideration upon the grounds that the damages awarded are excessive.  Newly discovered evidence. Mistake: generally.Non-compliance with this requirement would reduce the motion to a mere pro forma motion. have discovered and produced at the trial. which shall not toll the period for appeal. The aggrieved party may move the trial court to set aside the judgment or final order and grant a new trial for one or more of the following causes materially affecting the substantial rights of the said party:  FAME (Extrinsic Fraud. The period for appeal is within 15 days after notice to the appellant of the judgment or final order appealed from. and which if presented would probably alter the result. Grounds Rule 37. Grounds for motion for new trial b. Within the same period.The motion shall be supported by: affidavits of the witnesses by whom such evidence is expected to be given. with reasonable diligence. .1.  The decision or final order is contrary to law. if the complaint is after all groundless or the defense is ineffective. Tumang vs. . Accident. making express reference to the testimonial or documentary evidence or to the provisions of law alleged to be contrary to such findings or conclusions.

The recorded evidence upon the former trial shall be used at the new trial without retaking them (if they are material and competent). Sec. the court may order a new trial or grant reconsideration as to such issues if severable without interfering with the judgment or final order upon the rest.9. of the parties to it.7. CA (2005): If the motion is denied. Denial of motion for new trial The judgment or final order shall stand as is. which supersedes the original judgment. Effect of filing The filing of a timely motion interrupts the period to appeal. The amended judgment is in the nature of a new judgment. or may deny the motion. A record on appeal is required only in:  Special proceedings. Where a record on appeal is required. the movant has a ―fresh period‖ of 15 days from receipt or notice of the order denying the motion for new trial or motion for reconsideration within which to file an appeal. Partial new trial or reconsideration. Grant of the motion. When there is an order for partial new trial.—When less than all of the issues are ordered retried. Sec. Sec. or only one. Action upon motion for new trial or reconsideration. effect Denial of motion for reconsideration The judgment or final order shall stand as is.5. Sec. and the action shall stand for trial de novo.4. Rule 37. or stay the enforcement of such judgment or final order until after the new trial. e.—If the grounds for a motion under this Rule appear to the court to affect the issues as to only a part. Sec.—A motion for new trial or reconsideration shall be resolved within 30 days from the time it is submitted for resolution. The prohibition on a second motion does not apply to a motion for reconsideration of an interlocutory order. the appellant shall file:  a notice of appeal. Remedy when motion is denied. Resolution of the motion Rule 37. No motion for extension of time shall be allowed. or less than all. When a second motion for new trial is permissible: When a ground for new trial was not existing or available when the first motion was made.3. Denial of the motion. Habaluyas vs. or stay the enforcement of such judgment or final order until after the new trial.8. 140 d. Sec. And since the purpose is to expedite the final disposition of cases. a strict but prospective application of said ruling is in order. or less than all of the matter in controversy.  Other cases of multiple or separate appeals.  The order denying the motion for new trial or reconsideration may itself be assailed by a petition for certiorari under Rule 65. Single motion rule Rule 37. Second motion for new trial. No party shall be allowed a second motion for reconsideration of a judgment or final order. The 30-day period to resolve the motion is held to be mandatory [Gonzales vs Bantolo (2006)] Rule 37.—An order denying a motion for new trial or reconsideration is now appealable.—The trial court may set aside the judgment or final order and grant a new trial. Rule 37. Fresh 15day period rule Rule 37. (As modified by AM 07-7-12) Remedy if motion is denied  To appeal from the judgment or final order itself. Service upon the parties themselves is prohibited and is not considered as official receipt of judgment. a petition for review or a petition for review on certiorari. Japson (1986): A motion for new trial or reconsideration is not a prerequisite to an appeal. it may amend such judgment or final order accordingly. effect Grant of motion for reconsideration The court may amend the judgment or final order accordingly.—A motion for new trial shall include all grounds then available and those not so included shall be deemed waived. . Effect of order for partial new trial. If the court finds that excessive damages have been awarded or that the judgment or final order is contrary to the evidence or law. upon such terms as may be just. may be filed within the time herein provided excluding the time during which the first motion had been pending. Grant of motion for new trial The original judgment shall be vacated. Remedy against order denying a motion for new trial or reconsideration. the court may either enter a judgment or final order as to the rest. Fresh period rule Neypes vs.REMEDIAL LAW REVIEWER which is considered notice to the parties. c. A second motion for new trial based on a ground not existing or available when the first motion was made. Resolution of motion. and  record on appeal within 30 days from notice of the judgment or final order. the court may either enter a judgment or final order as to the rest.

 Order dismissing an action without prejudice. or of a particular matter therein when declared by these Rules to be appealable. the aggrieved party may file an appropriate special civil action as provided in Rule 65.—In all cases appealed to the Court of Appeals under Rule 41. In the 8 cases not appealable under Rule 41. the aggrieved party may file a special civil action under Rule 65. and (g) An order dismissing an action without prejudice.  Rule 42 on petitions for review from the Regional Trial Courts to the Court of Appeals. distinctly state the law and the facts on which it is based such a requirement 141 b. to be counted from receipt of the order denying the motion for new trial. Sec. Matters not appealable Not appealable under Rule 41  Order denying motion for new trial or reconsideration. An appeal may be taken from a judgment or final order that completely disposes of the case. Sec. 2. SIGNIFICANCE OF THE AMENDMENT An order denying motion for new reconsideration is NOW APPEALABLE! FINAL ORDER Disposes of the matter in its entirety. 2. counterclaims.  Order denying petition for review or any similar motion seeking relief from judgment.  While the case is pending. Exception: If court allows appeal. Order of transmittal of record. (b) An interlocutory order. 3. or any other ground vitiating consent.  Rule 43 on appeals from quasi-judicial agencies to the Court of Appeals. Order of transmittal of record Rule 44. Counsel and guardians. In any of the foregoing circumstances. 07-7-12 (2007)] SECTION 1. (d) An order denying a motion to set aside a judgment by consent. Counsels and guardians Rule 44. either party may file a motion with the trial court. 1.REMEDIAL LAW REVIEWER This ―fresh period rule‖ shall also apply to:  Rule 40 governing appeals from the Municipal Trial Courts to the Regional Trial Courts.—The counsel and guardians ad litem of the parties in the court of origin shall be respectively considered as their counsel and guardians ad litem in the Court of Appeals. . but the party appealing shall be further referred to as the appellant and the adverse party as the appellee. Appeals in General a. cross-claims and third-party complaints. confession or compromise on the ground of fraud. Remedy against judgments and orders which are not appealable d. third-party complaints. Not appealable except through a petition for certiorari under Rule 65 No need to comply with .  Order disallowing/dismissing appeal. leaving nothing more to be done but to enforce execution Appealable Must clearly and c.—If the original record or the record on appeal is not transmitted to the Court of Appeals within 30 days after the perfection of appeal.In separate claims. with notice to the other. mistake or duress.For/against one or more of several parties. motion for reconsideration (whether full or partial) or any final order or resolution. judgment or final order: . notice thereof shall be served immediately on the adverse party and filed with the court. The new rule aims to regiment or make the appeal period uniform. When others appear or are appointed. Ordinary appeal Procedure in the Court of Appeals Ordinary appealed cases Rule 44. (e) An order of execution. Judgments and final orders subject to appeal Rule 41 [as amended by A. for the transmittal of such record or record on appeal. trial or INTERLOCUTORY ORDER Does not dispose of a case completely but leaves something more to be decided upon. and  Rule 45 governing appeals by certiorari to the Supreme Court. Subject of appeal. while the main case is pending. the title of the case shall remain as it was in the court of origin. Sec. crossclaims.  Order of execution. (f) A judgment or final order for or against one or more of several parties or in separate claims. Modes of appeal i.M.  Order denying motion to set aside judgment by consent or confession or compromise on ground of fraud or mistake or duress or any other vitiation of consent. counterclaims.  Interlocutory order. Title of cases. No appeal may be taken from: (a) An order denying a petition for relief or any similar motion seeking relief from judgment. unless the court allows an appeal therefrom. (c) An order disallowing or dismissing an appeal.

—The briefs in criminal cases shall have the same contents as provided in sections 13 and 14 of Rule 44.— The appellant‘s brief shall contain. Appellee’s brief. are attached to the record. 6.—It shall be the duty of the appellant to file with the court. omission or addition in the approved record in appeal shall be a ground for dismissal of the appeal. 4. The authorities relied upon shall be cited by the page of the report at which the case begins and the page of the report on which the citation is found. in the order herein indicated. 14. Sec. Sec. Contents of appellee’s brief. the clerk of court of the Court of Appeals shall docket the case and notify the parties thereof. Rule 44. 7 copies of his legibly written. oral and documentary. (c) Under the heading ―Statement of the Case. the court. (e) A clear and concise statement of the issues of fact or law to be submitted to the court for its judgment. a summary of the proceedings. the appellant. Appellee’s brief Rule 44. Docketing of case.7. Sec. together with the proof of service of 2 copies thereof upon the appellee. Contents of brief. A certified true copy of the decision or final order appealed from shall be appended to the brief of the appellant. mimeographed or printed brief. the appealed rulings and orders of the court. Sec. on its own motion or on motion of an of the parties. Record completion Rule 44. in appeals by record on appeal.— Where the completion of the record could not be accomplished within a sufficient period allotted for said purpose due to insuperable or extremely difficult cases. Any unauthorized alteration. It shall be the duty of said court to take appropriate action towards the completion of the record within the shortest possible time. with page references to the record. Appellant’s brief Rule 44.—Whether or not the appellant has filed a motion for new trial in the court below. Sec. the following: 142 .—Within 45 days from receipt of the appellant‘s brief.—Where the record of the docketed case is incomplete. with page references to the record. Completion of record. and a table of cases alphabetically arranged. Within 10 days from receipt of said notice.—The appellee‘s brief shall. the clerk of court of the Court of Appeals shall so inform the court and recommend to it measures necessary to complete the record. textbooks and statutes cited with references to the pages where they are cited. with proof of service of 2 copies thereof upon the appellee. (f) Under the heading ―Argument. 8. (g) Under the heading ―Relief. Rule 44. 13. 5. Sec. Questions that may be raised on appeal.—Upon receiving the original record or the record on appeal and the accompanying documents and exhibits transmitted by the lower court. as an appendix. Appellant’s brief. Sec. Sec. distinctly and concisely stated without repetition and numbered consecutively. as well as the proof of payment of the docket and other lawful fees. the nature of the judgment and any other matters necessary to an understanding of the nature of the controversy.  Serve two copies to appellee and file proof of service. together with the substance of proof relating thereto in sufficient detail to make it clearly intelligible. a copy of the judgment or final order appealed from. Contents of appellant’s brief. Sec.‖ a clear and concise statement in a narrative form of facts admitted by both parties and of those in controversy. the appellant‘s brief shall contain. in the order herein indicated. The failure of appellant to take the necessary steps for the correction or completion of the record within the time limited by the court in its order is a ground for dismissal of the appeal. may declare that the record and its accompanying transcripts and exhibits so far available are sufficient to decide the issues raised in the appeal. (d) Under the heading ―Statement of Facts. within 45 days from receipt of the notice of the clerk that all the evidence. the following: (a) A subject index of the matter in the brief with a digest of the arguments and page references. 15. which errors shall be separately. and (h) In cases not brought up by record on appeal. shall file with the clerk of court 7 clearly legible copies of the approved record on appeal. with proof of service of 2 copies thereof upon the appellant. (b) An assignment of errors intended to be urged. mimeographed or printed brief.‖ the appellant‘s arguments on each assignment of error with page references to the record. 7. Rule 124. Contents of appellant’s brief Rule 44. and shall issue an order explaining the reasons for such declaration. the appellee shall file with the court 7 copies of his legibly typewritten. Dispensing with complete record.‖ a specification of the order of judgment which the appellant seeks. Contents of appellee’s brief Rule 44. Important numbers to remember  File brief within 45 days from receipt of notice.REMEDIAL LAW REVIEWER Case docketing Rule 44.  File seven copies of the brief. he may include in his assignment of errors any question of law or fact that has been raised in the court below and which is within the issues framed by the parties.‖ a clear and concise statement of the nature of the action.

paragraphs (a). 2. the appellee shall file with the court 7 copies of his legibly typewritten. Sec. (f) Absence of specific assignment of errors in the appellant‘s brief. or directives of the court without justifiable cause. 1. When several counsel represent one appellant or appellee. (c).‖ the appellee shall state that the accepts the statement of facts in the appellant‘s brief.—In certiorari. (h) Failure of the appellant to appear at the preliminary conference under Rule 48 or to comply with orders. each counsel representing one or more but not all of them shall be served with only one copy of the briefs. CA (1974): Failure to file appellant‘s brief within the reglementary period need not necessarily cause dismissal of appeal where the same was due to force majeure. oral or documentary. (d) Unauthorized alterations. Reply brief Rule 44. with proof of service of 2 copies thereof upon the appellant. (d) and (f) of Rule 44. Sec.— An appeal may be dismissed Court of Appeals. Grounds for dismissal of appeal.‖ he shall point out such insufficiencies or inaccuracies as he believes exist in the appellant‘s statement of facts with references to the pages of the record in support thereof. 11. Philippine Milling (1969): CA has discretion to dismiss or not to dismiss appeal.‖ the appellee shall set forth his arguments in the case on each assignment of error with page references to the record. The authorities relied on shall be cited by the page of the report at which the case begins and the page of the report on which the citation is found. prohibition. and a table of cases alphabetically arranged. and (i) The fact that the order or judgment appealed from is not appealable. omission or additions in the approved record on appeal as provided in section 4 of Rule 44. Failure to comply with required contents of appellant‘s brief is cause for dismissal of the petition.REMEDIAL LAW REVIEWER (a) A subject index of the matter in the brief with a digest of the arguments and page references. on its own motion or on that of appellee. the presumption is that it has been so exercised. (e) Failure of the appellant to serve and file the required number of copies of his brief or memorandum within the time provided by these Rules. (g) Failure of the appellant to take the necessary steps for the correction or completion of the record within the time limited by the court in its order. mandamus. but without repetition of matters in the appellant‘s statement of facts. The brief should be so prepared as to minimize the labor of the court in the examination of the record upon which the appeal is heard and determined. quo warranto and habeas corpus cases. appellees and/or counsel Rule 44. their respective memoranda within a non-extendible period of 30 days from receipt of the notice issued by the clerk that all the evidence. (b) Failure to file the notice of appeal of the record on appeal within the period prescribed by these Rules. or under the heading ―Counter-Statement of Facts.—Extension of time for the filing of briefs will not be allowed. Dismissal of improper appeal Rule 50. to be exercised in accordance with the tenets of justice and fair play. CA (2001): The purpose of the brief is to present to the court in concise form the points and questions in controversy. (c) Failure of the appellant to pay the docket and other lawful fees as provide in section 5 of Rule 40 and Section 4 of Rule 41. 12. the parties shall file. Extension of time for filing briefs. Sec. in lieu of briefs. and by fair argument on the facts and law of the case to assist the court in arriving at a just and proper conclusion. and only if the motion for extension is filed before the expiration of the time sought to be extended. Dismissal of appeal Rule 50.—Within 20 days from receipt of the appellant‘s brief. The brief De Liano vs. circulars. on the following grounds: (a) Failure of the record on appeal to show on its face that the appeal was taken within the period fixed by these Rules. textbooks and statutes cited with references to the pages where they are cited. mimeographed or printed brief.—Where there are several appellants or appellees. The failure of the appellant to file his memorandum within the period therefore may be a ground for dismissal of the appeal. Sec. Several appellants or appellees or several counsel for each party. (b) Under the heading ―Statement of Facts. Sec. and (c) Under the heading ―Argument. Several or plurality of appellant’s. copies of the brief may be served upon any of them. 9. Appellant’s reply brief. Extension of time for filing briefs Rule 44. Although said discretion must be a sound one. Memoranda in special cases Rule 44. or of page references to the record as required in section 13. Dismissal of improper appeal to the Court of Appeals. is already attached to the record. PNB vs. having in mind the circumstances obtaining in each case. Time for memoranda in special cases. 10.—An appeal under Rule 41 taken from the Regional Trial Court to the Court of Appeals 143 . Sec. except for good and sufficient cause. Padasdas vs.

An appeal erroneously taken to the Court of Appeals shall not be transferred to the appropriate court but shall be dismissed outright. to relieve a litigant of an injustice commensurate with his failure to comply with the prescribed procedure. an appeal by notice of appeal instead of by petition for review from the appellate judgment of a Regional Trial Court shall be dismissed. shall order the execution of the judgment appealed from with respect to the restoration of possession.—An appeal may be withdrawn as of right at any time before the filing of the appellee‘s brief. They can be stayed by the defendant only by:  perfecting an appeal. the withdrawal may be allowed in the discretion of the court. with the other papers. issues purely of law not being reviewable by said court. Sec. 3. execution shall issue immediately upon motion. damages for such deprivation of possession and restoration of possession may be allowed the defendant in the judgment of the Regional Trial Court disposing of the appeal. accident. Similarly. or. approved by the MTC and executed in favor of the plaintiff to pay the rents.  All amounts so paid to the appellate court shall be deposited with said court or authorized government depositary band. Habere Facias Possessionem. upon motion of the plaintiff. San Pedro vs CA: Judgments in ejectment cases which are favorable to the plaintiff are immediately executory. Thereafter. or  in the absence of reasonable grounds of opposition to a motion to withdraw.  where supervening events occurring subsequent to the judgment bring about a material change in the situation of the parties which makes execution inequitable  where there is no compelling urgency for the execution because it is not justified by the prevailing circumstances 144 . to the clerk of the RTC to which the action is appealed. 1(c). damages and costs accruing down to the time of the judgment appealed from  during the pendency of the appeal. either itself take cognizance of and decide such issues or refer them to CA for determination. Exception: Immediate execution of judgment may be stayed if the following requisites concur:  an appeal has been perfected  the defendant files a sufficient supersedeas bond. the appellate court. he shall deposit with the RTC the reasonable value of the use and occupation of the premises for the preceding month or period at the rate determined by the judgment of the lower court on or before the 10th day of each succeeding month or period  The supersedeas bond shall be transmitted by the MTC. or excusable negligence. CA (2006): Nonpayment of the appellate court docket and other lawful fees within the reglementary period as provided under Rule 41. any money paid to the court by the defendant for purposes of the stay of execution shall be disposed of in accordance with the provisions of the judgment of the Regional Trial Court. The Supreme Court has invariably sustained the Court of Appeal‘s dismissal on technical grounds under the afore-quoted provision unless considerations of equity and substantial justice present cogent reasons to hold otherwise. Withdrawal of appeal. mistake. and upon proof of such failure. for the purpose of being placed by the sheriff in the actual possession of the land recovered.  After the case is decided by the Regional Trial Court.  Should the defendant fail to make the payments. Withdrawal of appeal Rule 50.2-90 now prohibits the transfer of appeals erroneously taken to the SC or CA to whichever of these tribunals has appropriate appellate jurisdiction. True.  filing a supersedeas bond. Stay of execution General rule: If judgment is rendered against the defendant. or  for justifiable reasons.REMEDIAL LAW REVIEWER raising only questions of law shall be dismissed. and shall be held there until the final disposition of the appeal. it may. Sec. shall decree otherwise. the rules may be relaxed but only for persuasive and weighty reasons. but such execution shall not be a bar to the appeal taking its course until the final disposition thereof on the merits. the defendant deposits with the appellate court the amount of rent due from time to time under the contract. in the exercise of its sound discretion and considering the attendant circumstances. CA (1991): Circular No. in the absence of a contract.  In any case wherein it appears that the defendant has been deprived of the lawful possession of land or building pending the appeal by virtue of the execution of the judgment of the Municipal Trial Court. and  making a periodic deposit of the rental or the reasonable compensation for the use and occupation of the property during the pendency of the appeal. UNLESS the court:  by agreement of the interested parties. Atlas Consolidated vs. 4 is a ground for the dismissal of an appeal under Rule 50. Cu-unjieng vs. Sec. But where SC believes that there are factual issues which must be resolved. Puncia vs Gerona: A stay of execution may also be warranted once the writ is issued:  where the delay in the deposit is due to fraud. These requisites must concur. definition The name of the process commonly resorted to by the successful party in an action for ejectment.

or the expiration of the period for its filing. Decision of a quasi-judicial agency under the Rule 43. When such hearing is held. Sec. unless otherwise ordered by the trial court. upon the filing of the last pleading.— Where no comment is filed. brief. it is necessary to obtain a writ of preliminary injunction.— The participation of all three Justices of a division . or award of support. After the trial court has lost jurisdiction. (b) Execution of several.— Judgments in actions for injunction. The period within which a court must render a decision is mandatory [New Frontier Mines vs NLRC] Judgment Rule 51. Where no hearing is held. without prejudice to a further appeal that may be taken therefrom. said court may.  145    Service Specialists vs Sheriff of Manila: An appeal from the order denying the petition for relief does not stay the judgment from which relief is sought. at the time of the filing of such motion. 2. When case is submitted for judgment Rule 51. 3. Sec. Exception to exception: If appellant stays immediate execution by filing a notice of appeal. Sec. Sec. When case deemed submitted for judgment.—A several. General rule: In ordinary appeals. separate or partial judgments. Appeal. separate or partial judgment may be executed under the same terms and conditions as execution of a judgment or final order pending appeal. Revised Rules on Summary Procedure. MTC or MCTC or the RTC where execution pending appeal has been granted by the court of origin or in a proper case by the appellate court upon good reasons to be stated in the order. Judgments not stayed by appeal. supersedeas bond and depositing in court a monthly rental or compensation for the occupation as fixed by the court which rendered the decision. 2. Rule 39. In order to stay execution. 12. 4. or memorandum required by the Rules or by the court itself. receivership. Rule 43. modifying. Discretionary execution may only issue upon good reasons to be stated in a special order after due hearing. accounting and support. and such other judgments as are not or may hereafter be declared to be immediately executory shall be enforceable after their rendition and shall not be stayed by an appeal taken therefrom. Sec. Exceptions  Decision in forcible entry and unlawful detainer. Decision of the MeTC. upon its termination or upon the filing of the last pleading or memorandum as may be required or permitted to be filed by the court.—The judgment shall be rendered by the members of the court who participated in the deliberation on the merits of the case before its assignment to a member for the writing of the decision. upon the filing of the last pleading required or permitted to be filed by the court. execution is stayed. support and accounting. or the expiration of the period for its filing. By whom rendered. receivership. the motion for execution pending appeal may be filed in the appellate court. final order or resolution sought to be reviewed unless the Court of Appeals shall direct otherwise upon such terms as it may deem just. On appeal therefrom. judgment. as the case may be. 1. restoring or granting the injunction. order execution of a judgment or final order even before the expiration of the period to appeal.— (a) Execution of a judgment or a final order pending appeal. in its discretion. or the expiration of the period for its filing. accounting.— Where no hearing on the merits of the main case is held. upon its termination or upon the filing of the last pleading or memorandum as may be required or permitted to be filed by the court. 21. Sec. — The judgment or final order shall be appealable to the appropriate RTC which shall decide the same in accordance with Sec. upon the expiration of the period to comment. UNLESS otherwise provided by the Court CA. receivership. Where a hearing on the merits of the main case is held. Sec. Rule 51. the appellate court in its discretion may make an order suspending. or the expiration of the period for its filing. Decision of the RTC rendered in the exercise of its appellate jurisdiction on cases tried and decided by the court of origin under Summary Procedure. B.—On motion of the prevailing party with notice to the adverse party filed in the trial court while it has jurisdiction over the case and is in possession of either the original record or the record on appeal.—A case shall be deemed submitted for judgment: A. The decision of the regional trial court in civil cases governed by this Rule. Discretionary execution. shall be immediately executory.REMEDIAL LAW REVIEWER Rule 39. Quorum and voting in the court. In original actions and petitions for review. Sec. Section 10 of Rule 70 shall be deemed repealed. 22 of BP 129. Effect of appeal. In ordinary appeals. including forcible entry and unlawful detainer. Decision in cases of injunction.—The appeal shall not stay the award. 12.

6. (b) Lack of merit in the petition. forming a special division of five Justices. or adopted from those set forth in the decision. But what actually constitutes the resolution of the court which is the subject of the execution is the dispositive portion of the fallo. and the case shall thereafter be proceeded with. or closely related to or dependent on an assigned error Rule 51. Petition for review on certiorari Procedure in the Supreme Court (Appealed Cases) Mode of appeal Rule 56. Form of decision in appealed cases. or resolution appealed from. if any. unless refusal to take such action appears to the court inconsistent with substantial justice. The body of the judgment must contain the reasons or conclusions of the court to serve as a guide or enlightenment to determine the ratio decidendi. (f) Error in the choice or mode of appeal.—Every decision or final resolution of a court in appealed cases shall clearly and distinctly state the findings of fact and the conclusion of law on which it is based. 7.—No error which does not affect the jurisdiction over the subject matter or the validity of the judgment appealed from or the proceedings therein will be considered unless stated in the assignment of errors. modifying. Rules 45. Rule 51. 3. Rule 51. 5. so far as necessary. 9. The participation of all the five members of the special division shall be necessary for the deliberation required in section 2 of this Rules and the concurrence of a majority of such division shall be required for the pronouncement of a judgment or final resolution. as of separate actions had been begun and prosecuted. 2 and 5 to 11 of Rules 51. and revered as to others.—After the judgment or final resolution and dissenting or separate opinions. or modify the judgment or final order appealed from. Sec. laws. Mode of appeal. (c) Failure to pay the requisite docket fee and other lawful fees or to make a deposit for costs. Sec.—The appeal shall be governed by and disposed of in accordance with the applicable provisions of the Constitution. Sec. sections 1. and execution of the judgment of affirmance may be had accordingly. they shall be delivered for filing to the clerk who shall indicate thereon the date of promulgation and cause true copies thereof to be served upon the parties or their counsel. Sec. or otherwise disturbing a judgment or order. (d) Failure to comply with the requirements regarding proof of service and contents of and the documents which should accompany the petition.—No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the trial court or by any of the parties is ground for granting a new trial or for setting aside.—The CA.REMEDIAL LAW REVIEWER shall be necessary at the deliberation and the unanimous vote of the three Justices shall be required for the pronouncement of a judgment or final resolution. Disposition of a case. or adopted by reference from those set forth in the decision. the clerk shall enter the votes of the dissenting Justices in the record. together with the minutes of the deliberation. Rule 51. Sec. directive or order of the Supreme Court without justifiable cause. to the Presiding Justice who shall designate two Justices chosen by raffle from among the other members of the court to sit temporarily with them. Sec. Rule 51. Sec. Harmless error. 4. which may be contained in the decision or final resolution itself. [Olac vs. which may be contained in the decision or final resolution itself. and costs may be adjudged in such cases. except in criminal cases where the penalty imposed is death. reclusion perpetua or life imprisonment.— The appeal may be dismissed motu proprio or on motion of the respondent on the following grounds: (a) Failure to take the appeal within the reglementary period. the Chairman of the division shall refer the case. Questions that may be decided. Promulgation and notice of judgment. Grounds for dismissal of appeal Rule 56. and may direct a new trial or further proceedings to be had.—In all actions or proceedings. Procedure Rule 56. and (g) The fact that the case is not appealable to the Supreme Court. 5. or resolution appealed from. order. as the court shall deem proper. Form of decision. 48. Sec. are signed by the Justices taking part. Judgment where there are several parties. Sec. BP 129. 146 ii. (e) Failure to comply with any circular. may affirm. Improper appeal . 52 and this Rule. If the three Justices do not reach a unanimous vote. Grounds for dismissal of appeal. Petition for review iii. The court at every stage of the proceedings must disregard any error or defect which does not affect the substantial rights of the parties. in the exercise of its appellate jurisdiction. reverse.—An appeal to the Supreme Court may be taken only by a petition for review on certiorari. Sec. CA] Rule 51. 4. 8. order.40. an appealed judgment may be affirmed as to some of the appellants. Thereafter. Procedure.—Every decision or final resolution of the court in appealed cases shall clearly and distinctly state the finding of fact and the conclusions of law on which it is based.

the case shall again be deliberated on. all other appeals to the Supreme Court shall be by petition for review on certiorari under Rule 45. CA (1987)]. 3. or life imprisonment is imposed. reclusion perpetua or life imprisonment. Lorenzo (2005): A question of law does not involve an examination of the probative value of the evidence presented by any of the litigants. (d) No notice of appeal is necessary in cases where the Regional Trial Court imposed the death penalty. surmises or conjectures (Joaquin vs. Only issues pleaded in the lower court and properly raised may be resolved by the appellate court. or where the findings of fact of the Court of Appeals are premised on absence of evidence but are contradicted by the evidence of record [Manlapaz vs. Inference made is manifestly mistaken. Questions of Fact vs. Rule 122. or the necessary majority cannot be had. Perez-Rosario vs. [Republic v. Linatok). provided they are borne out by the record or are based on substantial evidence. reclusion perpetua. Navarro). (e) Except as provided in the last paragraph of section 13. 7. Equally divided Rule 56. 147 e. CA (1979): General rule: CA‘s findings of fact are final and conclusive and cannot be reviewed on appeal to the SC. Conclusion is a finding grounded entirely on speculations. Sosing). Dosdos (1965)]. would justify a different conclusion [Abellana vs. A party cannot change the theory on appeal. and if after such deliberation no decision is reached. went beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee [Nakpil & Sons vs. 6. An appeal by certiorari taken to the Supreme Court from the Regional Trial Court submitting issues of fact may be referred to the Court of Appeals for decision or appropriate action. the judgment or order appealed from shall stand affirmed. Exception: CA‘s findings of fact may be reviewed by the SC on appeal by certiorari when: 1. Questions of Law Agote vs. Villaseca). 6. 2. Procedure if opinion is equally divided. Pp).— (a) The appeal to the Regional Trial Court. 4. (b) The appeal to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of its appellate jurisdiction shall be by petition for review under Rule 42. or where a lesser penalty is imposed but for offenses committed on the same occasion or which arose out of the same occurrence that gave rise to the more serious offense for which the penalty of death. or where the facts set forth by the petitioner are not disputed by the respondent. Alsua-Betts vs. Sec. There is grave abuse of discretion in the appreciation of facts (Buyco vs.— Except as provided in section 3. There is a question of law in a given case when the doubt or difference arises as to what the law is on a certain state of facts. reclusion perpetua or life imprisonment. CA (1986)]. Disposition of improper appeal.—Where the court en banc is equally divided in opinion. shall be by notice of appeal filed with the court which rendered the judgment or final order appealed from and by serving a copy thereof upon the adverse party. an appeal taken to the Supreme Court by notice of appeal shall be dismissed. The determination of the Supreme Court on whether or not issues of facts are involved shall be final. The Court of Appeals shall automatically review the judgment as provided in Section 10 of this Rule. shall be by notice of appeal to the Court of Appeals in accordance with paragraph (a) of this Rule. The Court of Appeal‘s findings of fact are conflicting (Casica vs. Judgment is based on a misapprehension of facts (De la Cruz vs. 7. there is a question of fact when the doubt or difference arises as to the truth or the falsehood of the facts alleged. General rule: An appeal taken to the Supreme Court by notice of appeal shall be dismissed. and on all incidental matters. How appeal taken. if properly considered. The Court of Appeals. Rule 122 regarding appeals in criminal cases where the penalty imposed is death. The Court of Appeals manifestly overlooked certain relevant facts not disputed by the parties and which. Exception: Appeals in criminal cases where the penalty imposed is death. or to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of its original jurisdiction. CA (1992)] . Issues to be raised on appeal Cognizable judgments/issues The appellate court has no jurisdiction to review a judgment which is immediately final and executory by express provision of law. or are mere conclusions without citation of specific evidence. Sec. 5. The Court of Appeal‘s findings of fact are contrary to those of the trial court. BermudezLorino (2005)] Rationale: Appeal is merely a privilege conferred by law upon the litigants. absurd or impossible (Luna vs. CA (2005): Rule 65 cannot cure the failure to appeal thru Rule 45. the petition or motion shall be denied. in appealed cases. the original action commenced in the court shall be dismissed. [Medina v. (c) The appeal in cases where the penalty imposed by the Regional Trial Court is reclusion perpetua or life imprisonment. 8. Sec. Rule 124. 3.REMEDIAL LAW REVIEWER Rule 56. in making its findings.

 Multiple or separate appeals where the law or the Rules of Court so requires. appeals from QJA to CA. 5. CA (2005) on the fresh period rule: Definition: Period of appeal is interrupted by a timely motion for new trial or reconsideration. 3. Rule 40. From RTC (original) to CA to SC and from MTC to RTC (appellate) to CA to SC and from CA to SC and from QJA to CA to SC 15 days from notice of judgment or final order or from denial of petitioner‘s motion for reconsideration or new trial. appeals by certiorari to SC. Reglementary Period Must be filed within the reglementary period for appeal.2. the appellant shall file a notice of appeal and a record on appeal within 30 days after notice of the judgment or final order. Sec.e. Issues Raised Questions of Law Grave Abuse of Discretion Amounting to Lack or Excess of Jurisdiction 2. Where a record on appeal is required. CA (1992)] Notice of appeal The notice of appeal shall indicate the parties to the appeal. 4.. and state the material dates showing the timeliness of the appeal. No further extension shall be granted except for the most compelling reasons and in no case longer than 15 days. Period of appeal From MTC to RTC and from RTC (original) to CA  By notice of appeal: 15 days from notice of the judgment or final order  By record of appeal: 30 days from notice of the judgment or final order  From MTC to RTC (appellate) to CA: 15 days from notice of the judgment or final order but the Court of Appeals may grant a 15 day extension. judgment. who thereby respectively become the petitioner and the respondents. When to appeal. proceedings below continue) unless a writ of preliminary injunction or a temporary restraining order has been issued The parties are the aggrieved party against the lower court/Quasijudicial agency and the prevailing parties. Judgment. award or order appealed from is stayed by the Appeal f. Regalado’s Commentary (Asked in the 1999 and 2008 Bar Exams ) Rule 45 Appeal by Certiorari Rule 65 Original Action for Certiorari 1. 148 From QJA to CA 15 days from notice of the award. the lower court or quasi-judicial agency is not to be impleaded. Record of appeal Required only in:  Special proceedings. counted from receipt of the order dismissing a motion for new trial or reconsideration. The CA may grant a 15 day extension. final order or resolution or from date of last publication if required by law. The SC may grant a 30 day extension for justifiable reasons. Neypes vs. order or resolution sought to be assailed. award or final order on the merits Directed Against an Interlocutory Order of the court prior to appeal from the judgment. issues which are inferred from or necessarily connected with the issue properly raised and pleaded may be resolved by the appellate court. the judgment or final order or part thereof appealed from. Effect on Proceedings Below the No effect (i. Distinctions Between Rule 45 and Rule 65 Based on J. . No motion for extension of time to file a motion for new trial or reconsideration shall be allowed. No further extension shall be granted except for the most compelling reasons and in no case longer than 15 days. Applicability:  Rule 40 on  Rule 42 on  Rule 43 on  Rule 45 on appeals from MTC to RTC.—The appeal is taken by filing a notice of appeal with the court that rendered the judgment or final order appealed from.REMEDIAL LAW REVIEWER However. Parties Involved Original Parties to the action remain the same during appeal (albeit with the corresponding appellation of appellant and appellee). Against What Court Action Directed Review of the judgment. The period of appeal shall be interrupted by a timely motion for new trial or reconsideration. or where there is no appeal or any other plain speedy and adequate remedy Not later than sixty (60) days from notice of the judgment. [Espina v. Motion for extension of time to file motion for new trial or reconsideration is not allowed. petitions for review from RTC to CA. the court deems it practical to allow a fresh period of 15 days within which to file the notice of appeal in the Regional Trial Court. Rationale: To standardize the appeal periods provided in the Rules of Court and to afford litigants fair opportunity to appeal their cases.

Being procedural in nature. Fresh period to appeal from denial MR or MNT .  Precludes appellate court from jurisdiction. The CA may grant a 15 day extension. and may be exercised only in the manner and in accordance with the provisions of the law. motion for reconsideration (whether full or partial) or any final order or resolution. reglementary period confers only a discretionary (not mandatory) power to dismiss the proposed appeal. from final order or denial MR resolution or or MNT QJA from date of to CA last publication if required by law OR from denial of MR or MNT 15 days from Fresh RTC notice of period to to SC judgment or appeal RTC final order from to CA OR from denial MR to SC denial of or MNT CA to petitioner‘s SC MR or MNT. The SC may grant a 30 day extension for justifiable reasons. (2005)] A party litigant may now file his notice of appeal either within fifteen days from receipt of the original decision or within fifteen days from the receipt of the order denying the motion for reconsideration. No further extension shall be granted except for the most compelling reasons and in no case longer then 15 days. CA (2004)] Rationale: Appeal is merely a statutory privilege. acquiring Camposagrado vs. MR is not required 7.15 days from notice of the judgment or final order By record of appeal – 30 days from notice of the judgment or final order 15 days from notice of the judgment or final order OR from denial of MR or MNT Extensions No extensions allowed Effect of MR or MNT Interrupts the period to appeal 149 MTC to RTC No extensions allowed Interrupts the period to appeal This ―fresh period rule‖ shall also apply to:  Rule 40 governing appeals from the Municipal Trial Courts to the Regional Trial Courts. Effect of failure to perfect appeal  Defeats a party‘s right to appeal. Neypes is deemed to be applicable to actions pending and undetermined at the time of its effectivity and is thus retroactive in that sense and to that extent. Such discretion should consider all attendant The CA may grant a 15 day extension. MR is a CONDITION PRECEDENT subject only to certain exceptions. CA. Camposagrado (2005): Failure to pay the appellate court docket fee within the 15 days from Fresh notice of the period to award. The new rule aims to regiment or make the appeal period uniform. [First Aqua Sugar v.  Rule 43 on appeals from quasi-judicial agencies to the Court of Appeals. Perfection of appeal Perfection of an appeal in the manner and within the period laid down by law is mandatory and jurisdictional. Matrix of Periods Period to Appeal By notice of appeal . [Neypes vs. Exercise of Jurisdiction The Appellate Court exercises its appellate jurisdiction and power of review Higher Court exercises original jurisdiction under its power of control and supervision over the proceedings of lower courts. and  Rule 45 governing appeals by certiorari to the Supreme Court. No further extension shall be granted except for the most compelling reasons and in no case longer then 15 days. Requirement of Motion for Reconsideration For purposes of appeal. It is neither a natural right nor a part of due process.15 days from notice of the judgment or final order By record of appeal – 30 days from notice of the judgment or final order By notice of appeal . appeal judgment. Regalado’s Commentary (Asked in the 1999 and 2008 Bar Exams ) Rule 45 Appeal by Certiorari Rule 65 Original Action for Certiorari 6. to be counted from receipt of the order denying the motion for new trial.REMEDIAL LAW REVIEWER Distinctions Between Rule 45 and Rule 65 Based on J. [Balgami vs.  Rule 42 on petitions for review from the Regional Trial Courts to the Court of Appeals. BPI (2007)] RTC to CA MTC to RTC to CA g.

except in criminal cases where the penalty imposed is death. No further extension shall be granted except for the most compelling reason and in no case to exceed 15 days. (Asked in the 2002 Bar Exams) Applicability of Rule 45 Rule 45. The petitioner may seek the same provisional remedies by verified motion filed in the same action or proceeding at any time during its pendency.2(c). Sec. CA (1992): A party cannot change the theory on appeal. Bermudez-Lorino (2005): Appellate court has no jurisdiction to review a judgment which is immediately final and executory by express provision of law. [Rule 42. Medina vs. Appeal by certiorari. with the original copy intended for the court being indicated as such by the petitioner. Sec.REMEDIAL LAW REVIEWER circumstances and must be exercised with a view to substantial justice.9. Rule applicable to both civil and criminal cases.The court loses jurisdiction over the case upon perfection of appeal AND expiration of time to appeal of the other parties. Filing of petition with Supreme Court.  The RTC loses jurisdiction upon perfection of appeals filed in due time AND the expiration of time to appeal of other parties. Sec.1.  h. 1] CERTIFICATE OF NON-FORUM SHOPPING (CNFS) Petitioner in a petition for review in CA/SC must submit a CNFS with the petition. Sec.1] MTC to RTC to CA to SC Rule 41. reclusion perpetua or life imprisonment. The title of the case shall remain as it was in the court of origin. However.  By record on appeal: perfected as to the party who filed appeal and with respect to the subject matter thereof upon approval of the record filed in due time . Where to appeal. MTC to RTC to CA File a verified petition for review with the CA.Appeal of RTC decision rendered in exercise of appellate jurisdiction [Rule 42.  In 18 copies. In those instances. issues which are inferred from or necessarily connected with the issue properly raised and pleaded may be resolved by the appellate court. depositing the amount of P500 for costs and furnishing the RTC and the adverse party with a copy . the Sandiganbayan. Filing of petition  File with the SC a verified petition for review on certiorari. The petition shall be filed and served within 15 days from notice of the decision sought to be reviewed or of the denial of petitioner‘s MNT or MR filed in due time after judgment. this rule is relaxed where there is need to conduct a review. but the party appealing the case shall be further referred to as the appellant and the adverse party the appellee. the CA may grant an additional period of 15 days only within which to file the petition for review.—An appeal from a judgment or final order of a MTC may be taken to the RTC exercising jurisdiction over the area to which the former pertains.—The mode of appeal prescribed in this Rule shall be applicable to both civil and criminal cases. paying at the same time to the clerk of said court the corresponding docket and other lawful fees. [Rule 42.1. Upon proper motion and the payment of the full amount of the docket and other lawful fees and the deposit for costs before the expiration of the reglementary period. Sec. Only issues pleaded in the lower court and properly raised may be resolved by the appellate court. From the Regional Trial Court to CA:  By notice of appeal: perfected as to party who filed notice upon filing of the same in due time . Appeal from MTC to RTC: the rules on perfection of appeal from RTC to CA applies.—A party desiring to appeal by certiorari from a judgment or final order or resolution of the CA. The other provisions governing appeal from RTC to CA so long as they are not inconsistent are applicable to appeal from MTC to RTC. 150  Republic v. of the petition. Sec. 1] (Asked in the 1999 and 2002 Bar Exam) Petition for review from RTC to CA [Rule 42] APPLICABILITY . may file with the SC a verified petition for review on certiorari. the RTC or other courts whenever authorized by law. Appeal from judgments or final orders of the MTC MTC to RTC Rule 40. the appeal shall be to the SC by petition for review on certiorari in accordance with Rule 45. The petition may include an application for a writ of preliminary injunction or other provisional remedies and shall raise only questions of law which must be distinctly set forth. Espina vs. Sec. Rule 45.The court loses jurisdiction upon approval of the records on appeal AND expiration of the time to appeal of the other parties From MTC to RTC (appellate jurisdiction) to CA: upon timely filing of a petition for review and the payment of the corresponding docket and other lawful fees. CA (1992): However.—In all cases where only questions of law are raised or involved. petitioner may comply with the requirement after he has filed the petitions.

The following.00 for costs at the time of the filing of the petition. .—For purposes of determining whether the petition should be dismissed or denied pursuant to sec.5 of this Rule. Sec. The SC may on its own initiative deny the petition on the ground that the appeal is without merits. File petition within 15 days from notice:  of the judgment or final order or resolution appealed from. and impose the corresponding sanctions in case of non-filing or unauthorized filing of such pleadings and documents or non-compliance with the conditions therefor. Review is discretionary A review is not a matter of right. Pleadings and documents that may be required. but of sound judicial discretion. the SC may require the elevation of the complete record of the case or specified parts thereof within 15 days from notice.5.  Without impleading the lower court or judges as petitioners/respondents. deposit for costs. Sec. Docket and other lawful fees. indicate the character of reasons which will be considered:  When the court a quo has decided a question of substance.7.—Unless he has theretofore done so. Due course. 4)  Full name of the appealing party (petitioner) and the adverse party (respondent). when declared by ROC to be appealable. not theretofore determined by the SC. briefs. or is prosecuted manifestly for delay. Proof of service of a copy thereof on the lower court concerned and on the adverse party shall be submitted together with the petition.3.  A clearly legible duplicate original. 2] Rule 45.  Order disallowing/dismissing appeal.  Order denying petition for review or any similar motion seeking relief from judgment. or that the questions raised therein are too unsubstantial to require consideration. the petitioner shall pay the corresponding docket and other lawful fees to the clerk of court of the Supreme Court and deposit the amount of P500.  Interlocutory order. Contents of petition (Sec. [Rule 45.  Order denying motion to set aside judgment by consent or confession or compromise on ground of fraud or mistake or duress or any other vitiation of consent. as to call for an exercise of the power of supervision.8 hereof.  This is not an appeal. and the contents of and the documents which should accompany the petition shall be sufficient ground for the dismissal thereof.When notice of the judgment or final order or resolution subject thereof was received. and the reasons/arguments relied on for the allowance of the petition. the SC may require or allow the filing of such pleadings. Not appealable under Rule 41  Order denying motion for new trial or reconsideration.  A particular matter in the case. Dismissal or denial of petition.—If the petition is given due course. and such material portions of the record as would support the petition. or a certified true copy of the judgment or final order or resolution certified by the clerk of court of the court a quo and the requisite number of plain copies thereof.  Material dates: . or where the petition is given due course under sec. the SC may for justifiable reasons grant an extension of 30 days only within which to file the petition. Dismissal or denial of petition Rule 45.When a motion for new trial or reconsideration (if any) was filed and when notice of the denial thereof was received. Sec. Due course and elevation of records Rule 45. with full payment of the docket and other lawful fees and the deposit for costs before the expiration of the reglementary period.  Concise statement of the matters involved. MTC to SC  The remedy is a petition for certiorari under Rule 65. sanctions. memoranda or documents as it may deem necessary within such periods and under such conditions as it may consider appropriate. or  When the court a quo has so far departed from the accepted and usual course of judicial proceedings. Sec. 151 i. while neither controlling nor fully measuring the court's discretion.  Certificate of non-forum shopping. and will be granted only when there are special and important reasons therefore.  On motion duly filed and served. or  of the denial of the petitioner's motion for new trial or reconsideration filed in due time after notice of the judgment. elevation of records. Sec. . May require pleadings and documents Rule 45. or has decided it in a way probably not in accord with law or with the applicable decisions of the SC. proof of service of petition.8. an appeal of judgment or final order under that completely disposes of either:  The case.REMEDIAL LAW REVIEWER  Petition shall raise only questions of law which must be distinctly set forth. proof of service of the petition.—The failure of the petitioner to comply with any of the foregoing requirements regarding the payment of the docket and other lawful fees. or so far sanctioned such departure by a lower court. Appeal from judgments or final orders of the RTC RTC to CA Under Rule 41.

. and calls for the relaxation of procedural rules RTC to CA to SC The remedy is a petition for review on certiorari under Rule 45.In separate claims. (Rule 68) Special proceedings also admit of multiple appeals.  Order dismissing an action without prejudice. Desierto (1998)] q. Appeal from judgments or final orders of the CA CA to SC The remedy is a petition for review on certiorari under Rule 65. third-party complaints. RTC to SC  The remedy is a petition for certiorari under Rule 65. (Rule 67) . Inc. (Rule 69) . Review of final judgments or final orders of the Ombudsman p. Village Hotel (2004)] Multiple appeals Civil cases which admit of multiple appeals:  Judgment in an action for recovery or for partition of property is separately appealable from the proceedings on that part of the judgment wherein accounting for receipts from the property is ordered as a primary or incidental relief. Appeal from judgments or final orders of the CTA RA 9282: Decisions of the CTA are now appealable to the SC by petition for review on certiorari under Rule 45.  Special civil actions: . counterclaims.  Board of Investments (BOI). l. Cases not covered. in the first instance. Exception: If court allows appeal. another appeal lies therefrom.  Bureau of Patents. [DECS v. Review of final judgments or final orders of the NLRC Rule 43. an order is final if it disposes of the entire case. When such accounting is submitted and either approved or rejected by the trial court. Cuanan (2008)] o. NLRC judgments and final orders or resolutions are now reviewable. vs. final orders or resolutions of or authorized by any quasi-judicial agency (QJA) in the exercise of its quasi-judicial functions: (arranged alphabetically)  Agricultural Inventions Board (AIB). crossclaims. Review of final judgments or final orders of quasi-judicial agencies QJA to CA Applicability Appeals from judgments or final orders of the CTA and from awards. Trademarks and Technology Transfer (BPTTT).Judicial foreclosure of mortgage.Expropriation. Philexport vs. Review of final judgments or final orders of the CSC The remedy of an aggrieved party from a resolution issued by the CSC is to file a petition for review thereof under Rule43 of the Rules of Court within fifteen days from notice of the resolution. In the 8 cases not appealable under Rule 41. Rule 42 or the requirement that relevant or pertinent documents be submitted along with the petition. PNB (2006): The order of dismissal due to failure to prosecute is appealable by notice of appeal under Rule 41. Ko vs. [GSIS vs. 152 j. by the Court of Appeals on certiorari under Rule 65. Sec. judgments.For/against one or more of several parties. PI (2004): But an order of dismissal without prejudice is not appealable under Rule 41.—This Rule shall not apply to judgments or final orders issued under the Labor Code of the Philippines. but those of the Employees Compensation Commission should be brought to the Court of Appeals through a petition for review under this Rule.Judicial partition. Review of final judgments or final orders of the COA m. CA (1987)] For purposes of appeal. . An order for partial summary judgment is an interlocutory order which cannot be appealed from. Also.REMEDIAL LAW REVIEWER  Order of execution. [Investments. k. The trial court had not yet rendered a complete final judgment. Interlocutory order Definition: If it does not dispose of the case but leaves something else to be done by the trial court on the merits of the case. [Fabian vs. appeals from the Office of the Ombudsman in administrative disciplinary cases are now covered by this Rule.  While the case is pending. Planta (2007): Submission of a document together with the motion for reconsideration constitutes substantial compliance with compliance with Section 2.2. the aggrieved party may file a special civil action under Rule 65. judgment or final order: .  This is not an appeal. Lanaria v. Phil. Review of final judgments or final orders of the COMELEC n.

there is no need to implead the lower court or agency which rendered the assailed decision. he may file a petition in such court and in the same case praying that the judgment. order. which is not an appeal. Department of Agrarian Reform (DAR under RA 6657) Employees Compensation Commission (ECC). Laiya (2005)] Under Rule 43.REMEDIAL LAW REVIEWER                  Central Board of Assessment Appeals (CBAA). This is to assure that such copy is a faithful reproduction of the judgment. 153 3. The relief provided for by Rule 38 is of equitable character and is only allowed in exceptional cases. this should be resorted to before resort can be made to the courts. Time for filing petition. A petition for relief is not regarded with favor and judgment will not be disturbed where the party complaining has or by his exercising proper diligence would have had an adequate remedy at law. there are exceptions to this rule:  when public welfare and the advancement of public policy dictates. [Villorente vs. Cabalo (2006)] Recourse to a petition for certiorari under Rule 65 renders the petition dismissible for being the wrong remedy.1. Government Service Insurance System (GSIS). These remedies are mutually exclusive. order or proceeding be set aside. Atencio (2005)] Submission of the duplicate original or certified true copy of judgment. Energy Regulatory Board (ERB). Office of the President (OP). then it is required that the same is certified by the proper officer of the court. under the established principle of exhaustion of administrative remedies. instead of the CA. resolution or ruling subject of a petition for certiorari is essential to determine whether or not the court.3. [David vs CA (1992)) b. National Telecommunications Commission (NTC). if publication is required by law for its effectivity. or any other proceeding is thereafter taken against a party in any court through fraud.—A petition provided for in either of the preceding sections of this Rules must be verified. Puno: A party who has filed a timely motion for new trial or motion for reconsideration can no longer file a petition for relief from judgment after his motion has been denied. orders and other proceedings Definition: It is a legal remedy whereby a party seeks to set aside a judgment rendered against him by a court whenever he is unjustly deprived of a hearing or was prevented from taking an appeal because of fraud. [Basmayor v. If what is submitted is a copy. Civil Aeronautics Board (CAB). Recourse should be to the President. or other proceedings. Francisco vs. Relief from judgments. or other proceeding to be set . CA (1990)) Petition for relief under Rule 38 is an admission that the period to appeal from the decision had already expired. Social Security Commission (SSC). Time to file petition Rule 38. Voluntary arbitrators authorized by law. 4 the petition should be filed within 15 days from:  Notice of the final order. final order. that is where there is no other available or adequate remedy. Sec. Civil Service Commission (CSC). Under Rule 43.—When a judgment or final order is entered. [Coca-cola v.  when the questioned order amounts to an oppressive exercise of judicial authority. Sec. order. accident. mistake or excusable negligence. or  The date of its last publication. filed within 60 days after the petitioner learns of the judgment.  when the writs issued are null and void. or a. Nonetheless. [DECS v. Insurance Commission. accident. Land Registration Authority (LRA). Cuanan (2008)] QJA to CA to SC Remedy is a petition for review on certiorari under Rule 45. as where petitioner could have proceeded by appeal to vacate or modify the default judgment. order. Construction Industry Arbitration Commission. Petition for relief from judgment. Securities and Exchange Commission (SEC). or  The denial of the petitioner‘s MFR duly filed according to the governing law of the court or agency a quo. Roa (2006)] Exhaustion of administrative remedies: If an appeal/remedy obtains or is available within the administrative machinery. [Orosa vs. body or tribunal which rendered the same indeed committed grave abuse of discretion. contents and verification. tribunal. or excusable negligence. [Manila Electric vs. mistake. National Electrification Administration (NEA). resolution or ruling subject of the petition. agency or office involved. Sec. It is only in appropriate cases where a party aggrieved by the judgment has not been able to file a motion for new trial or motion for reconsideration that a petition for relief can be filed. Grounds for availing of the remedy Rule 38.  when the broader interest of justice so requires. Philippine Atomic Energy Commission (PAEC). QJA to SC Remedy is a petition for certiorari under Rule 65. Either a legible duplicate original or certified true copy thereof shall be submitted. A resolution of the DOJ Secretary is not appealable under Rule 43.

the petition shall be filed in the same court which rendered the judgment and in the very same case. It has no legal or binding effect or efficacy for any purpose or at any place. Both periods must concur. It is attended by none of the consequences of a valid adjudication. They are also nonextendible and never interrupted. It cannot affect. or  Other similar cases. Other remedies after finality of judgment:  Action to Annul a Judgment  Certiorari  Collateral Attack of a Judgment that is Void on its Face 5. Appeal. and a party thereto. some remedies are New Trial and Reconsideration. or such proceeding was taken. and must be accompanied with affidavits showing the fraud.  Must be accompanied by an affidavit showing the fraud. A void judgment is not entitled to the respect accorded to a valid judgment. or excusable negligence relied upon.  When judgment was taken by default. All acts performed pursuant to it and all claims emanating from it have no legal effect. Prayer in petition for relief from judgment:  That the judgment/order/proceeding be set aside. 154 4. However.  The affidavit of merit accompanying the petition must also show the facts constituting the petitioner‘s good and substantial cause of action or defense.—When a judgment of final order is rendered by any court in a case.2. Annulment of Judgments or final orders and resolutions a. Grounds for annulment b. has been prevented from taking an appeal. A judgment may be void for lack of due process of law. by fraud. It cannot be the source of any right nor of any obligation. mistake. An affidavit of merit serves as the jurisdictional basis for the court to entertain a petition for relief. a void judgment is regarded as a nullity. Petition for relief from denial of appeal. Contents of petition Rule 38. Heirs of Cuyos (2008)) What are your remedies? If the reglementary period for appeal has not yet lapsed. Sec. no protection to those who seek to enforce.REMEDIAL LAW REVIEWER aside. [Spouses Benatiro vs. collaterally or in a direct action or by resisting such judgment or final order in any action or proceeding whenever it is invoked. but may be entirely disregarded or declared inoperative by any tribunal in which effect is sought to be given to it.  If option a) is in the affirmative. Effects of judgment of annulment c. accident. or excusable negligence. accident. . leaves the parties litigants in the same position they were in before the trial. it can never become final and any writ of execution based on it is void. It may be said to be a lawless thing which can be treated as an outlaw and slain at sight. mistake or excusable negligence relied upon. Form and content of petition:  Must be verified. accident. mistake. he may file a petition in such court and in the same case praying that the appeal be given due course. A void judgment never acquires finality. and the situation is the same as it would be if there were no judgment. All proceedings founded on the void judgment are themselves regarded as invalid. as the case may be. It is not entitled to enforcement and is. and the facts constituting the petitioner‘s good and substantial cause of action or defense. Petition for Relief. and Other Appropriate Remedies such as Certiorari may also be used.  That the appeal be given due course. In other words. Hence. When an affidavit of merit is not necessary:  When there is lack of jurisdiction over the defendant. and not more than 6 months after such judgment or final order was entered. impair or create rights. hearing upon the merits of the case. Period to file action c. or ignored wherever and whenever it exhibits its head. unless barred by laches. It. it is not a fatal defect to warrant denial of the petition so long as the facts required to be set out also appear in the verified petition. Under both grounds. accordingly. ordinarily. Two hearings in a petition for relief from judgment:  Hearing to determine whether or not the judgment should be set aside.  When judgment was entered by mistake or was obtained by fraud. Collateral attack of judgments Remedies from a Void Judgment (Asked in the 2004 BAR EXAMS) What is a void judgment? A void judgment is no judgment at all.  When there is lack of jurisdiction over the subject matter. the equitable and extraordinary remedy of Petition for Annulment of Judgment may be resorted to. Heirs of Cuyos (2008)) How do you attack a void judgment? It may be assailed anytime. [Spouses Benatiro vs. If the appropriate remedies are no longer available without the fault of the petitioner.

Sandiganbayan] A final judgment or order is one that finally disposes of a case. declares categorically what the rights and obligations of the parties are and which party is in the right. it is final for the purposes of an appeal. Nothing more remains to be done by the Court except to await the parties' next move (which among others." jurisprudence recognizes denial of due process as additional ground therefore (Spouses Benatiro Case). may consist of the filing of a motion for new trial or reconsideration.. It is submitted that upon court‘s issuance of a judgment touching upon the merits of a case. . for instance. Once rendered. Difference between finality of judgment for purposes of appeal. 'final and executory. Montinola vs. after the time for appeal or review has passed. Effect of Judgment or Final Orders 10. RoC] It can be noted that the Supreme Court made a hairline distinction between finality of order for appeals and for execution. v. an adjudication on the merits which. Bacalan. Assuming the judgment to have been void as alleged by the proponent of this motion. Judge Gonzales (1989): A VOID JUDGMENT IS LIKE AN OUTLAW WHICH MAY BE SLAIN AT SIGHT WHEREVER OR WHENEVER IT EXHIBITS ITS HEAD. EXECUTION. The following are examples of an interlocutory order: . should be availed of only when the appropriate remedies are no longer available without fault on the part of the petitioner. Properties exempt from execution 5. there is jurisprudence to the effect that a patently void judgment may be dealt with by a Main Action for Injunction. When execution shall issue 3. leaving nothing more to be done by the Court in respect thereto.an order denying a motion to dismiss. (Panlilio vs.g. the proper remedy was by an original proceeding and not by motion in the cause" (Banco Espanol vs. to cause the execution of the judgment once it becomes 'final or. Proceedings where property is claimed by third persons 6. Heirs of Cuyos. . or that it is contrary to law. e. This remedy. or one authorizing an amendment thereof. [Ramiscal. Investments. to use the established and more distinctive term. for purposes of execution 2. Examination of Obligor of Judgment Obligor 9. (1985) on the matter of void judgment particularly refer to Rule 47 as a remedy against a void judgment. [Riano] The word interlocutory refers to something intervening between the commencement and the end of a suit which decides some point or matter but is not a final decision of the whole controversy. How a judgment is executed 4. Although Section 2 of Rule 47 of the Rules of Court provides that annulment of a final judgment or order of an RTC may be based "only on the grounds of extrinsic fraud and lack of jurisdiction.an order granting an extension of time to file a pleading. Some jurisprudential basis Remedial Law Jurisprudence such as Spouses Benatiro vs. CA]  are those that determine incidental matters that do not touch on the merits of the case or put an end to proceedings. Jr.order granting or denying applications for postponement or inspection of documents. on the basis of the evidence presented at the trial. 155 XVII. Garcia.REMEDIAL LAW REVIEWER When all else fails.1. not Rule 45. as far as deciding the controversy or determining the rights and liabilities of the litigants is concerned. Palanca). The proper remedy to question an improvident interlocutory order is a petition for certiorari under Rule 65. for purposes of execution . The proper remedy in such case. but NOT for execution. A petition for review under Rule 45 is the proper mode of redress to question only final judgments. Inc. A final judgment may be annulled on the ground of lack of jurisdiction. Court of Appeals Execution is a matter of right upon the expiration of the period to appeal and no appeal was perfected from a judgment or order that disposes of the action or proceeding. the task of the Court is ended. Difference between finality of judgment for purposes of appeal. Enforcement and Effect of Foreign Judgments or Final Orders 1. is for the aggrieved party to bring an action to enjoin the judgment. Finality for the purposes of execution refers to the expiration of the period to appeal and no appeal was perfected. or a judgment or order that dismisses an action on the ground. Rules on Redemption 7. SATISFACTION AND EFFECT OF JUDGMENTS 1. however. fraud. 119 SCRA 307) The term ―finality of judgment for purposes of appeal‖ refers to interlocutory orders which:  are not decisions within the constitutional definition [Armargo v. (2008) and Agustin vs. of course. [Rule 39. v. Examination of Judgment Obligor When Judgment is unsatisfied 8. of res judicata or prescription. or the taking of an appeal) and ultimately.

General rule: A final and executory judgment or order may be executed on motion within five (5) years from the date of its entry. the same to be stated in the order granting it. unless discretionary execution is granted by the court. After the lapse of such time.6 in relation to New Civil Code provision on prescription of judgment). Rule 39] b. Execution as a matter of right See Annex D. To be valid. hence the right to ask for a WRIT OF POSSESSION THEREIN NEVER PRESCRIBES a. otherwise. Exception: However when the losing party shows that subsequent facts had taken place which would render the execution unjust. General rule: Under the Rule on Discretionary Execution (also called execution pending appeal). Exceptions:  Judgments for support WHICH DO NOT BECOME DORMANT AND WHICH CAN BE EXECUTED BY MOTION [Canonizado v. .  Land registration proceedings (and other special proceedings). Exceptions: The issuance of a writ of execution which issues as a matter of right can be countered in any of the following cases (R-I-N-S-E-D):  When a PETITION FOR RELIEF or an action to enjoin judgment is filed and a preliminary injunction is prayed for and granted (Rule 38. The court which rendered the decision can grant an execution pending appeal if it still retains jurisdiction over the case and is in possession of the records at the time of the filing of the motion.  Contempt orders by reason of unauthorized reentry on the land by the ejected defendant [Azotes v. Exception: This rule. is inapplicable in the case of the Court of Appeals. however. 6. be stayed by an appeal taken therefrom. General rule: An ex parte motion for the issuance of the writ of execution would suffice since the trial court may take judicial notice of the record of the case to determine the propriety of the issuance thereof. the court rendering the judgment.REMEDIAL LAW REVIEWER 2. and before it is barred by the statute of limitations.  When the judgment has been NOVATED BY THE PARTIES  When SUBSEQUENT FACTS AND CIRCUMSTANCES transpire as to render such execution unjust or impossible  On EQUITABLE GROUNDS as when there has been a change in the situation of the parties which makes execution INEQUITABLE. a hearing on the motion should be held.5). judgments in the following action. The revived judgment may also be enforced by motion within five (5) years from the date of its entry and thereafter by action before it is barred by the statute of limitations. may exercise discretion and order execution pending appeal (Asked in the 2002 Bar Exam).  Discretionary execution is allowed pending appeal of judgment or final order of the trial court upon good reasons to be stated in a special order.  When the judgment becomes DORMANT. Discretionary execution See Annex E. if it still has jurisdiction. Exceptions: However.  Issuance of writs of possession in FORECLOSURE CASES within the statute of limitations. the 5year period under Rule 39. there should be a good reason to justify the execution of the judgment pending appeal. Benitez] except for support in arrears beyond 10 years from the date they become due. It is the execution of a judgment or final order before it attains finality.  The CA has no authority to issue IMMEDIATE EXECUTION PENDING APPEAL OF ITS OWN DECISIONS THEREIN. UNLESS OTHERWISE ORDERED BY THE TRIAL COURT. shall be executed. unless the court orders otherwise:  injunction  receivership  accounting  support  such other judgments as shall now or may hereafter be declared to be immediately executory Judgments in these actions shall be enforceable after their rendition and shall not.  The Rule on Discretionary Execution contemplates a situation where a judgment or final order rendered in the exercise of its original jurisdiction and the prevailing party in said decision seeks immediate execution during the pendency of an appeal. the motion shall be acted upon by the appellate court.  When the judgment turns out to be INCOMPLETE OR IS CONDITIONAL since as a matter of law. [Sec. despite perfection of an appeal. When execution shall issue 156 General rule: When the judgment or order becomes executory. such judgment CANNOT BE FINAL. Blanco]. The maximum period within which a final and executory judgment may be executed is 20 years (Rule 39.6 having expired without the judgment having been revived. [Luzon Surety v. the court cannot refuse to issue a writ of execution. a judgment may be enforced by action. Beson (1976)] General rule: An appeal seasonably perfected shall stay the execution of the judgment.

L. and then on the real properties if the personal properties are insufficient to answer for the judgment. certified bank check or other mode of payment acceptable to the judgment obligee. deposit said amounts to a fiduciary account in the nearest government depository bank of the Regional Trial Court of the locality. CA (2000) : A JUDGMENT OF THE CA CANNOT BE EXECUTED PENDING APPEAL. the officer shall levy upon:  the properties of the judgment obligor of every kind and nature whatsoever which may be disposed.REMEDIAL LAW REVIEWER Heirs of Justice J. Vandevella (1966)]. Execution by motion or by independent action b. dacion en pago). the amount of the judgment debt under proper receipt directly to the judgment obligee or his authorized representative if present at the time of payment. belonging to the judgment debtor for subsequent execution sale to satisfy judgment Garnishment is Garnishment the process of notifying a third person (the garnishee) to retain and attach the property he has in his possession or under his control belonging to the judgment debtor. otherwise the same is placed under sheriff‘s guards.  When there is more property of the judgment obligor than is sufficient to satisfy the judgment and lawful fees. It is acquired either by the arrest of the accused or by his voluntary appearance in court. ii.B. if any. How a judgment is executed a. of for value. the officer shall first levy on the personal properties. In no case shall the executing sheriff demand that any payment by check be made payable to him. THE FILING OF SUPERSEDEAS BOND does not entitle the judgment debtor to the suspension of execution as a MATTER OF RIGHT. the Court can order immediate execution despite such SUPERSEDEAS BOND. [Regalado] then deliver said payment to the judgment obligee in satisfaction of the judgment.  The excess. Satisfaction by levy Nature: LEVY MEANS THE ACT OR ACTS by which an officer sets apart or appropriates a part or the whole of the property of the judgment debtor for purposes of the prospective execution sale [Llenares v. ANY SALE OF THE PROPERTY THEREAFTER is void. the officer REMOVES AND TAKES THE PROPERTY FOR SAFEKEEPING. General rule: The filing of a supersedeas bond is sufficient to stay the enforcement of a discretionary execution. and  not otherwise exempt from execution  The sheriff gives the judgment obligor the option as to which of the property or part thereof may be levied upon. Levy seizure of property. or ANY OTHER FORM OF PAYMENT ACCEPTABLE TO THE LATTER (e. or if the same is not practicable. certified bank check payable to the judgment obligee. Procedure: If the judgment obligor cannot pay all or part of the obligation in cash. The latter shall turn over all the amounts coming into his possession within the same day to the clerk of court of the court that issued the writ. Where the needs of the prevailing party are URGENT. Immediate payment on demand Procedure: The sheriff or executing officer demands from the judgment obligor the immediate payment of the full amount stated in the writ of execution and all lawful fees. Issuance and contents of a writ of execution c.  The judgment obligor shall pay in cash. the judgment obligor shall deliver the aforesaid payment to the executing sheriff. sufficient to satisfy the judgment. Execution of judgments for money (asked in the 2007 Bar Exam) i. Reyes v.  The clerk of said court shall thereafter arrange for the remittance of the deposit to the account of the court that issued the writ whose clerk of court shall .g. Without valid levy having been made.  If the judgment obligee or his authorized representative is not present to receive payment. shall be delivered to the judgment obligor while the lawful fees shall be retained by the clerk of court for disposition as provided by law.  If the judgment obligor does not exercise the option.  The lawful fees shall be handed under proper receipt to the executing sheriff who shall turn over the said amount within the same day to the clerk of court of the court that issued the writ. to make disclosure to the 157 3. if any.  The sheriff shall sell only a sufficient portion of the personal or real property of the judgment obligor which has been levied upon.. Exception: However. If susceptible of appropriation. personal and/or real. he must sell only so much of the personal or real property as is sufficient to satisfy the judgment and lawful fees.

there is a judgment which directs a party to execute a conveyance of land or personal property. demolish or remove said improvements except upon special order of the court. The process of levying shall be called garnishment if the property involved is money. financial interests. selling it. or to deliver deeds or other documents. commissions and other personal property not capable of manual delivery in the possession or control of third parties. including bank deposits. Either:  the court may DIRECT THE ACT TO BE DONE AT THE COST OF THE DISOBEDIENT PARTY by some other person appointed by the court and the act when so done shall have like effect as if done by the party. Garnishment merely sets apart such funds but does not constitute the creditor as owner of the garnished property. any other specific act IN CONNECTION THEREWITH. Delivery of personal property In judgment for the delivery of personal property. the court in lieu of directing a conveyance thereof may by an order divest the title of any party and vest it in others. shall BE DELIVERED DIRECTLY TO THE JUDGMENT OBLIGEE within ten (10) working days from service of notice on said garnishee requiring such delivery. and restore possession thereof to the judgment obligee. 9. shall have the right to indicate the garnishee or garnishees who shall be required to deliver the amount due. or other incorporeal property in the HANDS OF THIRD PERSONS. Under this situation. issued upon motion of the judgment obligee after the hearing and after the former has failed to remove the same within a reasonable time fixed by the court. RENTS OR PROFITS AWARDED BY THE JUDGMENT SHALL BE SATISFIED IN THE SAME MANNER AS A JUDGMENT FOR MONEY. Execution of special judgments When a judgment requires the performance of ANY ACT OTHER THAN THOSE MENTIONED IN THE TWO . ii. if available. otherwise. delivery of deeds. or  if real or personal property is situated within the Philippines. or other specific acts e. the report shall state how much funds or credits the garnishee holds for the judgment obligor. the officer shall take possession of the same and forthwith deliver it to the party entitled thereto and satisfy any judgment for money as therein provided. which shall have the force and effect of a conveyance executed in due form of law. if necessary. (Sec. of appropriate peace officers.  The garnished amount in cash. If not. The garnishment shall cover only such amount as will satisfy the judgment and all lawful fees. the judgment obligor. v. Garnishment is not a violation of RA 1405 on the secrecy of bank deposits. royalties.  In the event there are two or more garnishees holding deposits or credits sufficient to satisfy the judgment. and employing such means as may be reasonably necessary to retake possession. or to perform. Otherwise. or certified bank check issued in the name of the judgment obligee. Execution of judgments for specific acts i. Sale of real or personal property If judgment is rendered ordering the sale of real or personal property. an order for execution shall be issued describing such property as may be ordered sold. Rule 39) iii. iv. Delivery or restitution of real property The officer shall demand of the person against whom the judgment for the delivery or restitution of real property is rendered and all persons claiming rights under him to peaceably vacate the property within three (3) working days. the choice shall be made by the judgment obligee. iii. Removal of improvements on property subject of execution When the property subject of the execution contains improvements constructed or planted by the judgment obligor or his agent. and applying the proceeds in conformity with the judgment‘s instructions. If the party so ordered fails to comply within a specified period.  The executing sheriff shall observe the same procedure under IMMEDIATE PAYMENT ON DEMAND with respect to delivery of payment to the judgment obligee. ANY COSTS. 158 d. Garnishment of debts and credits Scope: The officer may levy on debts due the judgment obligor and other credits. the officer shall not destroy. DAMAGES.  The garnishee shall make a WRITTEN REPORT to the court within five (5) days from service of the notice of garnishment stating whether or not the judgment obligor has sufficient funds or credits to satisfy the amount of the judgment. there are two possible remedies. stocks. [Chinabank v.REMEDIAL LAW REVIEWER court concerning the same. Ortega] Procedure: Levy shall be made by SERVING NOTICE UPON THE PERSON OWING SUCH DEBTS OR HAVING IN HIS POSSESSION OR CONTROL SUCH CREDITS TO WHICH THE JUDGMENT OBLIGOR IS ENTITLED. except the lawful fees which shall be paid directly to the court. and to dispose of the same as the court shall direct to satisfy the judgment. Conveyance. and place the judgment obligee in possession of such property. the officer shall oust all such persons therefrom with the assistance.

a certified copy of the judgment shall be attached to the writ of execution and shall be served by the officer upon the party against whom the same is rendered. Effect of levy on third persons 4. such as the judgment obligor may select. Return of writ of execution The writ of execution shall be returnable to the court issuing it immediately after the judgment has been satisfied in part or in full.. post office and public market in the municipality or city where the sale is to take place. or the homestead in which he resides. lawyers. and such party or person may be punished for contempt if he disobeys such judgment. clothing and medical attendance [ART 1708. of a value not exceeding one hundred thousand pesos.  One fishing boat and accessories not exceeding the total value of one hundred thousand pesos owned by a fisherman and by the lawful use of which he earns his livelihood. CA 458]. teachers. to obey the same. savings of national prisoners deposited with the POSTAL SAVINGS BANK [Act 2489]. or other beasts of burden.  The professional libraries and equipment of judges. and shall be filed with the court and copies thereof promptly furnished the parties. Properties exempt from execution General rule: Except as otherwise expressly provided by law. It is not the duty of the sheriff to set off the exceptions on his own initiative. benefit payments from SSS [Section 16. such as the judgment obligor may select necessarily used by him in his ordinary occupation. and no other. property mortgaged to the DBP [Section 26. benefits. If the judgment cannot be satisfied in full within thirty (30) days after his receipt of the writ. or  upon a judgment of foreclosure of a mortgage thereon. and other professionals.REMEDIAL LAW REVIEWER PRECEDING SECTIONS (EXECUTION OF JUDGMENT FOR MONEY AND SPECIFIC ACTS). or earnings of the judgment obligor for his personal services within the four months preceding the levy as are necessary for the support of his family. shall be exempt from execution: (FOTNUPLBS-GMRE)  The judgment obligor's family home as provided by law.  Monies.g. or any pension or gratuity from the Government. (e. a judgment ordering a partner to render an accounting. preferably in conspicuous areas of the (CPM) municipal or city hall. Rule 39] Notice requirement Before the sale of property on execution. Special judgments are those which can be complied with by the judgment obligor because of his personal qualifications or circumstances (e.  His necessary clothing and articles for ordinary personal use. The officer shall make a report to the court every thirty (30) days on the proceedings taken thereon until the judgment is satisfied in full. or annuities accruing or in any manner growing out of any life insurance.  Household furniture and utensils necessary for housekeeping. The returns or periodic reports shall set forth the whole of the proceedings taken. laborer‘s wages except for debts incurred for food.  The right to receive legal support. privileges. employment. or livelihood. benefits from private retirement systems of companies and establishments with limitations [RA 4917].  Ordinary tools and implements personally used by him in his trade.  So much of the salaries. or money or property obtained as such support. Note the difference with sections 9 and 10 (on execution of money judgments and specific acts) where contempt is not a remedy against disobedience by a party. 159 f.  Properties specially exempted by law.  Lettered gravestones. clergymen. shelter.g. a judgment ordering a party to comply with his recording contract otherwise. surveyors. Mcmicking]: The exemptions MUST BE CLAIMED. . [Herrera v. otherwise they are deemed waived. notice thereof must be given as follows:  In case of perishable property. dentists.  Provisions for individual or family use sufficient for four months. the officer shall report to the court and state the reason therefor. [Section 12. and used for that purpose by the judgment obligor and his family. not exceeding three hundred thousand pesos in value. pharmacists. by posting written notice of the time and place of the sale in three (3) public places. engineers. no article or species of property mentioned in this section shall be exempt from:  execution issued upon a judgment recovered for its price. for such time as may be reasonable. or by law. the following property. and land necessarily used in connection therewith. or three cows. or its effectivity expires. pay damages). wages. considering the character and condition of the property. physicians. CIVIL CODE]. excluding jewelry. Such writ shall continue in effect during the period within which the judgment may be enforced by motion.  Three horses. or three carabaos. or upon any other person required thereby.. RA 1161 AS AMENDED]) Exception: However.

Such certificate must be registered in the registry of deeds of the place where the property is situated.000 to or before the satisfaction any person injured of the judgment if it be thereby. The place of the sale MAY BE AGREED UPON BY THE PARTIES.  The whole price paid by him. whether in English. Written consent is essential. his actual damages. the amount of P5.000 to any person motion in the same injured by reason action thereof. and no third-party claim has been filed. written notice of the sale shall be given to the judgment obligor. In the case of personal property capable of manual delivery. he shall pay only the excess. by posting a similar notice in the three (3) public places above-mentioned for not less than five (5) days. in relation to third attachment and replevin party claim in Remedies of a Third-Party Claimant  Summary hearing before the court which authorized the execution  ―Terceria‖ or third-party claim filed with the sheriff  Action for damages on the bond posted by the judgment creditor  Independent reivindicatory action The aforementioned are cumulative remedies and may be resorted to by a third-party claimant independently of or separately from and without need of availing of the others. at least three (3) days before the sale. Rule 39] PENALTIES (Selling without notice and defacing notice) An officer selling A person willfully without the notice removing or defacing the prescribed by section 15 notice posted of this Rule pay punitive damages in if done before the sale. having general circulation in the province or city. The notice shall specify the place.REMEDIAL LAW REVIEWER  In case of other personal property. In the absence of such agreement. Filipino. [Section 15. [Section 25. Without such agreement. except as provided in paragraph (a) hereof where notice shall be given the same manner as personal service of pleadings and other papers as provided by section 6 of Rule 13. Rule 39] By written consent of the judgment obligor and obligee. Discaya (1990)] Rules regarding terceria (third-party (ASKED IN THE 2000 & 2005 BAR EXAMS) claims) The third person whose property was levied on must make an affidavit of his title thereto or right to the possession thereof stating the grounds of such right or title. date and exact time of the sale which should not be earlier than nine o'clock in the morning and not later than two o'clock in the afternoon (9am-2pm). [Section 21. He must serve the same upon the officer making the levy and copy thereof upon the judgment . a definite period is given. the sale shall be held in the place where the property is located. Rule 39] How property sold on execution (See table on Service of summons upon different entities) 160 5. to be recovered by motion in the same action Preventing execution sale At any time before the sale of property on execution.  In case of real property. IAC (1988)] Upon a sale of real property . both shall be liable to pay to be recovered by P5. Rule 39]  This is akin to the equitable right of redemption under Rule 68.  A statement that the right of redemption expires one (1) year from the date of the registration of the certificate of sale. the sale of the property or personal property not capable of manual delivery shall be held in the office of the clerk of court of the Regional Trial Court or the Municipal Trial Court which issued the writ of or which was designated by the appellate court. edited and circulated or. Proceedings where property is claimed by third persons a. he need not pay the amount of the bid if it does not exceed the amount of his judgment. in addition to his actual damages. the officer may adjourn the sale to any date and time agreed upon by them.  In all cases. he may adjourn the sale from day to day if it becomes necessary to do so for lack of time to complete the sale on the day fixed in the notice or the day to which it was adjourned [Section 22. [Section 18.  The difference lies in the fact that under Rule 68. by posting for twenty (20) days in the three (3) public places abovementioned a similar notice particularly describing the property and stating where the property is to be sold.00) pesos. [Sy vs. in addition to satisfied before the sale. by publishing a copy of the notice once a week for two (2) consecutive weeks in one newspaper selected by raffle. Rule 39]. or any major regional language published. in the absence thereof. the judgment obligor may prevent the sale by paying the amount required by the execution and the costs that have been incurred therein. which is available to the judgment obligor in judicial foreclosure of mortgage. the officer must give to the purchaser a certificate of sale containing:  A particular description of the real property sold. otherwise the adjournment will be void [Abrozar v. and if the assessed value of the property exceeds fifty thousand (P50. Concluding the execution sale When the purchaser is the judgment obligee.  The price paid for each distinct lot or parcel. or their duly authorized representatives. If it does.000.

de Panaligan v. to any third-party claimant if such bond is filed Apart from Rule 39. files a bond approved by the court to indemnify the thirdparty claimant in a sum not less than the value of the property levied on. .  Sheriff is bound to keep the property when the judgment obligee. CA (2005)] However.THE PERIOD FOR REDEMPTION IS NOT SUSPENDED by an action to annul the foreclosure sale. Inc (1970)]  The right of redemption is transferable and may be voluntarily sold [Gomez v. CA (1996)]  Redemption price varies depending on who the redemptioner is: .REDEMPTIONER. the mortgagor has the duty of tendering payment (actual tender of payment of the redemption price) before the redemption period expires. . [Lazo v. Rule 39]  Redemption can be made by either: . Ocampo). Sierra v. other than the judgment under which such purchase was made. neither to make an offer to redeem nor to make tender of payment of the repurchase price is necessary when the right to redeem is exercised through the filing of a complaint to redeem. . the period for redemption does not run (Garcia vs. 161 6.IF THE JUDGMENT OBLIGOR REDEEMS. on demand of the officer. no further redemption is allowed and he is restored to his estate. Such redeeming creditor is termed a redemptioner. o Any amount of assessments or taxes which the last redemptioner may have paid thereon after redemption by him with interest on such last named amount.7 on replevin. judgment or mortgage on the property sold. Intervention by a third-party claimant whose property had been levied upon by the sheriff in the action from which the writ pursuant to which the levy was made was issued must be made before rendition of judgment by the trial court. . Coquia: The third party claimant CANNOT APPEAL NOR AVAIL OF CERTIORARI AS A REMEDY in the event that his claim was denied since HE IS A NONPARTY to the original action.  In case of disagreement as to such value of the bond. by the following persons: .REMEDIAL LAW REVIEWER obligee. within one year from the date of registration of the certificate of sale. But where parties agreed on the date of redemption. [Section 27.. Republic Surety & Insurance Co.BUT IN ALL CASES. the amount of such other lien.JUDGMENT OBLIGOR. The creditor may not deprive the debtor of any further rights to the property [Lichauco v.If redemptioner: Amount paid on the last redemption o 2% interest thereon. the same shall be determined by the court issuing the writ of execution. The filing of an action to redeem within that period is equivalent to a formal offer to redeem.14 on preliminary attachment and Rule 60. o If the purchaser be also a creditor having prior lien to that of the redemptioner. No claim for damages for the taking or keeping of the property may be enforced against the bond unless the action therefor is filed within one hundred twenty (120) days from the date of the filing of the bond. within one year from the date of registration of the certificate of sale . may be redeemed in the manner hereinafter provided. [Banco Filipino Savings and Mortgage Bank v. the statutory period for legal redemption was converted into one of conventional redemption and the period binding on them is that agreed upon. the only other provisions of the Rules of Court dealing with terceria or third party claims are Rule 57.  Real property sold or any part thereof sold separately. subsequent to the lien under which the property was sold.If judgment obligor: Purchase price o 1 % interest thereon up to the time of redemption o Any amount of assessments or taxes which the purchaser may have paid thereon after purchase and interest on such last named amount at the same rate. Rules on Redemption  There is no right of redemption where the property sold at judicial sale is personal property. or within 60 days from the last redemption by another redemptioner. [Vda. with interest. Rodriguez and Northern Motors v. the judgment obligor shall have the entire period of 1 YEAR from the date of registration of the sale to redeem the property.  If the certificate of sale is not registered.The judgment obligor. [Bautista] . The officer shall not be liable for damages for the taking or keeping of the property. La Germinal] but said right cannot be levied upon by the judgment creditor. The officer shall not be bound to keep the property as a general rule. . or his successor in interest in the whole or any part of the property. Olegario]  In effecting redemption. or on some part thereof.A creditor having a lien by virtue of an attachment. He can no longer intervene once the trial court already issues a writ of execution.

or for him to the officer who made the sale.Remain in possession of the property . without a sale. or .  but in all cases the judgment obligor shall have the entire period of one (1) year from the date of the registration of the sale to redeem the property. the purchaser or redemptioner shall be substituted to and acquire all the rights.  if so redeemed whenever sixty (60) days have elapsed and no other redemption has been made. or to make the necessary repairs to buildings thereon while he occupies the property.Use the property in the same manner it was previously used.  Such certificate must be filed and recorded in the registry of deeds of the place in which the property is situated and the registrar of deeds must note the record thereof on the margin of the record of the certificate of sale. In all. showing the amount then actually due on the lien. earnings and income derived from the property until the expiration of period of redemption. during the period allowed for redemption. the judgment debtor shall exercise the following rights: . AND  an affidavit executed by him or his agent. earnings and income derived from the property pending redemption shall belong to the judgment obligor until the expiration of his 7. with or without notice.  A surety may compel repayment from the principal: . to continue to use it in the same manner in which it was previously used. Rule 39] A redemptioner must produce to the officer.  The purchaser or a redemptioner shall not be entitled to receive the rents. Rule 39]  If no redemption be made within one (1) year from the date of the registration of the certificate of sale. or entitled to possession afterwards. Rule 39]. as security for another.  if he redeems upon a mortgage or other lien.Use it in the ordinary course of husbandry .  The deed shall be executed by the officer making the sale or by his successor in office. [Section 33. restrain the commission of waste on the property by injunction. or any part thereof.Make Necessary repairs to buildings thereon while he occupies the property . certified by the registrar of deeds. the court may. OR.  The payments mentioned in this and the last preceding sections may be made to the purchaser or redemptioner. and the surety pays the amount.  but it is not waste for a person in possession of the property at the time of the sale. Recovery of purchase price and revival of judgment:  A judgment co-debtor may compel a contribution from the others: . title. [Section 31.He cannot be ejected.  The possession of the property shall be given to the purchaser or last redemptioner by the same officer unless a third party IS ACTUALLY HOLDING THE PROPERTY adversely to the judgment obligor. either by sale of his property or before sale.  All rents. Examination of Judgment Obligor When Judgment is unsatisfied . and notice thereof given. a memorandum of the record thereof. and in the latter case shall have the same validity as though the officer making the sale had continued in office and executed it. and serve with his notice to the officer  a copy of the judgment or final order under which he claims the right to redeem.  Upon the expiration of the right of redemption. OR  an original or certified copy of any assignment necessary to establish his claim. . whereupon.Collect rents. . or the value of the use and occupation thereof when such property is in the possession of a tenant. Rule 39]  Until the expiration of the time allowed for redemption. or. [Section 35. earnings and income of the property sold on execution. as in other proper cases.REMEDIAL LAW REVIEWER o Amount of any liens held by said last redemptioner prior to his own with interest period of redemption. - 162 Effects of redemption [Section 29.one of them pays. no further redemption shall be allowed and he is restored to his estate. [Section 30. certified by the clerk of the court wherein the judgment or final order is entered.more than a due proportion of the judgment is satisfied out of the proceeds of the sale of the property of one of them.When property liable to an execution against several persons is sold thereon. interest and claim of the judgment obligor to the property as of the time of the levy.  The person to whom the redemption payment is made must execute and deliver to him a certificate of redemption acknowledged before a notary public or other officer authorized to take acknowledgments of conveyances of real property. the purchaser is entitled to a conveyance and possession of the property. and the time for redemption has expired. on the application of the purchaser or the judgment obligee. the last redemptioner is entitled to the conveyance and possession. or to use it in the ordinary course of husbandry. Rule 39]  If the judgment obligor redeems he must make the same payments as are required to effect a redemption by a redemptioner.When a judgment is upon an obligation of one of them. and . more than his proportion. or person from whom he seeks to redeem.

UNLESS a revocation of his authority is filed. the court may order the property applied to the satisfaction of the judgment. 36] (asked in the 2002 bar exam)  He may cause examination of the debtor of the judgment debtor as to any debt owed by him or to any property of the judgment debtor in his possession [Sec. the probate of a will or granting of letters of administration shall only be prima facie evidence of the death of the testator or intestate. CONCLUSIVENESS OF JUDGMENT/PRECLUSION OF ISSUES (AUTER ACTION PENDANT) In any other litigation between the same parties or their successors in interest. . 36-38. with respect to the matter directly adjudged or as to any other matter that could have been missed in relation thereto. subject matter CONCLUSIVENESS OF JUDGMENT Identity of parties and subject matter.  A party or other person may be compelled by an order or subpoena to attend before the court or commissioner to testify as provided in sect 3637. [Sec. or indorse an admission of the satisfaction as provided in the last preceding section. or . 43] Entry of satisfaction  Satisfaction of a judgment shall be entered by the clerk of court in the court docket. claims an adverse interest in the property or denies the debt. or legal condition or status of a particular person or his relationship to another RES JUDICATA IN JUDGMENTS IN PERSONAM In other cases.and after notice and upon motion the court may order either the judgment obligee or his counsel to do so. . . See Secs. and in the execution book. status or relationship of the person. it may order payment in installments [Sec. Rule 39 [Bautista] Remedies of Judgment Creditor in Aid of Execution [Sections 36-43] (Asked in the 2008 Bar Exam particularly steps to be taken if writ of execution is unsatisfied)  If the execution is returned unsatisfied. by title subsequent to the commencement of the action or special proceeding. Effect of Judgment or Final Orders RES JUDICATA IN JUDGMENTS IN REM Judgments or final order Against a specific thing Probate of a will or administration of the estate of a deceased person Conclusive as to Title of the thing The will or administration. on the face of the record of the judgment.the court may appoint a receiver for the property of the judgment debtor not exempt from execution or forbid a transfer or disposition or interference with such property [Sec.upon the filing of an admission to the satisfaction of the judgment executed and acknowledged in the same manner as a conveyance of real property by the judgment obligee or by his counsel . . litigating for the same thing and under the same title and in the same capacity. Rule 39] 163 9. BAR BY FORMER JUDGMENT (RES JUDICATA) There is identity of parties. 44. he may cause the examination of the judgment debtor as to his property and income [Sec. conclusive:  between the parties and  their successors in interest. IN RESPECT TO THE PERSONAL. Examination Judgment Obligor of Obligor of Does a Party Litigant Enjoy Any Discovery Rights After the Promulgation of Final and Executory Judgment? Yes. mortgagee or otherwise. . 41] .if the court finds the earnings of the judgment debtor are more than sufficient for his family‘s needs. the judgment or final order is. 37].REMEDIAL LAW REVIEWER 8. 42].if the person alleged to have the property of the judgment debtor or be indebted to him. or otherwise than upon an execution on demand of the judgment obligor. However. the court finds the property of the judgment debtor either in his own hands or that of any person. [Sec. forbid its transfer and may punish disobedience for contempt [Sec. the court may order a sale of such interest [Sec. . 40] .  If after examination.the judgment obligee or his counsel must execute and acknowledge. that only is deemed to have been adjudged in a former judgment or final order which appears upon its face to have been so adjudged. or may order the entry of satisfaction to be made without such admission. Condition. or upon the endorsement of such admission by the judgment obligee or his counsel. the court may authorize the judgment creditor to institute an action to recover the property.upon the return of a writ of execution showing the full satisfaction of the judgment. or which was actually and necessarily included therein or necessary thereto. Rule 39]  Whenever a judgment is satisfied in fact. political.if the court finds the judgment debtor had an ascertainable interest in real property either as mortgagor. 45. and his interest can be ascertained without controversy.

6. Nature of provisional remedies Definition Writs and processes available during the pendency of the action which may be resorted to by a litigant for the preservation or protection of their rights and interests therein pending rendition. 3. (2000)] Res Judicata The ruling in one case is carried over to another case between the same parties ―Law of the Case‖ Operates only in the particular and single case where the ruling arises and is not carried into other cases as a precedent The ruling adhered to in the particular case need not be followed as a precedent in subsequent litigation between other parties Stare Decisis 1. also known as ancillary or auxiliary remedies. subject matter and causes of action [Perez v. The first judgment is conclusive only as to matters directly adjudged and actually litigated in the first action. CA (2005)] XVIII. ―LAW OF THE CASE‖ VS. Jurisdiction remedies over provisional All inferior courts can grant appropriate provisional remedies provided that the main action is within their jurisdiction. [Calo vs. for the purpose of preserving or disposing of the subject matter. want of notice to the party. 2. and for purposes of the ultimate effects.  In case of a judgment or final order against a person. that point of law will.  As a generally accepted principle of international law. Sec. 129] 3.P. 48). 4. between the first and second actions. Rosa-Diana Realty. Article II) of the 1987 Constitution [Regalado]. STARE DECISIS [Ayala Corporation v. or clear mistake of law or fact (Rule 39 Sec. is conclusive upon the title to the thing (Rule 39. utility and convenience of nations.REMEDIAL LAW REVIEWER and causes of action The first judgment constitutes an absolute bar to all matters directly adjudged and those that might have been adjudged. it is part of the law of the Philippines by virtue of the Incorporation Clause (Section 2. They are applied to a pending litigation. be followed by the same court and by all courts of lower rank in subsequent cases where the same legal issue is raised 10. Once a point of law has been established by the court.  This policy of preclusion rests on principles of comity. They may however be challenged before a superior court through a petition for certiorari under Rule 65. 48). PROVISIONAL REMEDIES RES JUDICATA VS. of a final judgment in the case.  Such limitation on the review of foreign judgment is adopted in all legal systems to avoid repetitive litigation on claims and issues. 5. Roldan. 1946] Orders granting or denying provisional remedies are merely interlocutory and cannot be the subject of an appeal. prevent harassment of the parties and avoid undue imposition on the courts. 2. the judgment or final order. collusion. Preliminary Attachment (Asked in the 2002 Bar Exam) Definition: A provisional remedy issued upon order of the court where an action is pending to be levied upon the property of the defendant so the property may be held by the sheriff as security for the . generally. [B. 164 REQUISITES OF RES JUDICATA  finality of the former judgment. Enforcement and Effect of Foreign Judgments or Final Orders EFFECT OF FOREIGN JUDGMENTS (Asked in the 2005 Bar Exam)  In case of a judgment or final order upon a specific thing. Nature of provisional remedies Jurisdiction over provisional remedies Preliminary Attachment Preliminary Injunction Receivership Replevin 1. Second action can be prosecuted. 48). the judgment or final order may be repelled by evidence of a want of jurisdiction. identity of parties. and in some cases after judgment. fraud. the judgment or final order is presumptive evidence of a right as between the parties and their successors in interest by a subsequent title (Rule 39 Sec.  the court which rendered it had jurisdiction over the subject matter and the parties  it must be a judgment on the merits  there must be.  In either case. for the purpose of securing the judgment or preserving the status quo.

on a cause of action arising from law. NOTE: the rule also refers to persons on whom summons may be served by publication and against whose property. or disposed of to prevent its being found or taken by the applicant or an authorized person.Residents defendants whose identity or whose whereabouts are unknown (Rule 14. or  Action against a party who does not reside and is not found in the Philippines. contract. AND with intent to defraud his creditors. once the implementation of the writ commences.OR by any other person in a fiduciary capacity. removed. detained or converted. [Quasha vs. The amount may be . [Cuartero.upon motion with notice and hearing by the court in which the action is pending. an officer of a corporation.  To enable the court to acquire jurisdiction over the action by the actual or constructive seizure of the property in those instances where personal service of summons on the creditor cannot be effected. embezzled or fraudulently misapplied or converted to his own use by either: . It may be applied for by the plaintiff OR any proper party (including a defendant who filed a counterclaim. affidavit and bond order of Issuance and contents of order of attachment [Rule 57. Grounds for issuance of writ of attachment [Rule 57.  It must require the sheriff of the court to attach so much of the property in the Philippines of the party against whom it is issued. in the course of his employment as such. or clerk.the value of the property to be attached.Resident defendants who are temporarily out of the country (14. or . or quasidelict .against a party who is about to depart from the Philippines with intent to defraud his creditors. EXCEPT if such party makes deposit or gives bond in an amount equal to that fixed in the order.ex parte or . factor.2]  An order of attachment may be issued EITHER . delict. broker. Issuance and contents of attachment.a public officer. However. supra] b. as may be sufficient to satisfy the applicant's demand.14) .when the property.  Action to recover the possession of property unjustly or fraudulently taken. the court must have acquired jurisdiction over the defendant. or any part thereof. NOTE: rule makes no distinction between real and personal property [Riano]  Action against a party who has been guilty of a fraud in contracting the debt or incurring the obligation upon which the action is brought. an attorney. or for a willful violation of duty.3) c. . OR on whom summons may be served by publication. quasi-contract. Juan (1982)]  Action against a party who has removed or disposed of his property. has been concealed. . .  Applicant must post an attachment bond executed to the adverse party (Rule 57.sufficient to satisfy applicant‘s demand. exclusive of costs.16) 165 a.1] (Asked in 2001 and 2005) A preliminary attachment may be applied for  at the commencement of the action or  at any time before the entry of judgment. not exempt from execution. NOTE: the delivery of counterfeit money or knowingly issuing a bounced check are considered as grounds under this rule [Riano] Stages in the grant of preliminary attachment  The court issues the order granting the application  The writ of attachment issues pursuant to the order granting the writ  The writ is implemented For the first two stages. OR in the performance thereof. or is about to do so. cross-claim. or a third party complaint) There are only specific situations where preliminary attachment may issue:  Action for recovery of a specified amount of money or damages. .  Action for money or property. preliminary attachment may be availed of such as: . EXCEPT moral and exemplary.REMEDIAL LAW REVIEWER satisfaction of whatever judgment may be rendered in the case [Davao Light v CA 204 SCRA 343] Purposes  To seize the property of the debtor in advance of final judgment and to hold it for purposes of satisfying the said judgment. Requisites  Case must be any of those where preliminary attachment is proper  Applicant must file a motion (ex parte or with notice and hearing)  Applicant must show by affidavit (under oath) that there is no sufficient security for the claim sought to be enforced. jurisdiction over the person of the defendant is NOT necessary. agent.

BUT a writ may not be implemented .  Stocks or shares. after enforcing the writ. [Riano] EXCEPTIONS TO CONTEMPORANEOUS SERVICE OF SUMMONS: [Rule 57. commissions.  Debts and credits.REMEDIAL LAW REVIEWER  Several writs may be issued at the same time to the sheriffs of the courts of different judicial regions. or  The action is in rem or quasi in rem.7]:  Real property. The affidavit and the bond must be filed with the court before the order issues.  Personal property capable of manual delivery . . or  Defendant is a resident of the Philippines temporarily absent therefrom. description. Otherwise. NOTE: the bond shall only be applied to all damages sustained due to the attachment. and the registered owner or owners thereof. together with a description of the property attached. o a copy of the writ. Rule on prior or contemporaneous service of summons General Rule: A writ of attachment may be issued ex parte even before the summons is served upon the defendant. e. Manner of attaching real and personal property. o notice that it is attached. financial interest. until jurisdiction over the person is acquired by service of summons.filing with the registry of deeds: o a copy of the order. if any. together with any counter-bond given by the party against whom attachment is issued The sheriff shall serve copies of the return to the applicant. or  Defendant is a non-resident. UNLESS  Party against whom writ is issued makes a deposit with the court from which the writ is issued.6] The sheriff. and notice with the occupant of the property. the notice shall contain a reference to the number of the certificate of title. royalties. the volume and page in the registration book where the certificate is registered.3] An order of attachment shall be granted only when it appears in the affidavit that:  a sufficient cause of action exists  the case is one of those mentioned in 57. and o a notice stating that the stock or interest of the party against whom the attachment is issued is attached in pursuance of such writ. Where the property has been brought under the operation of either the Land Registration Act or the Property Registration Decree. Condition of applicant’s bond [Rule 57.leaving a copy of such order. and other personal property not capable of manual 166 d. Manner of attachment of real and personal property [Rule 57. or with such other person or his agent if found within the province. when property attached is claimed by third person Manner of attaching property [Rule 57. or that such real property and any interest therein held by or standing in the name of such other person are attached. shall make a return to the court which issued the writ stating the ff:  a full statement of his proceedings under the writ  a complete inventory of the property attached.4] Applicant must give a bond executed to the adverse party in the amount fixed by the court in its order granting the issuance of the writ conditioned that the applicant will pay:  all the costs which may be adjudged to the adverse party and  all damages which the adverse party may sustain by reason of the attachment if the court shall finally adjudge that the applicant was not entitled thereto.5] The sheriff enforcing the writ shall attach only so much of the property in the Philippines of the adverse party not exempt from execution as may be sufficient to satisfy the applicant‘s demand.1  there is no other sufficient security for the claim sought to be enforced by the action  the amount due to the applicant or the value of the property the possession of which he is entitled to recover. or an interest in stocks or shares.by leaving with the president or managing agent thereof. the implementation is null and void.by taking and safely keeping it in the sheriff‘s custody. or any interest therein . or  He gives a counter-bond executed to the applicant The levy on attachment shall be preceded or contemporaneously accompanied by service on the defendant within the Philippines of:  summons  copy of complaint  application for attachment  affidavit and bond of applicant  order and writ of attachment. is as much as the sum for which the order is granted above all legal counterclaims. Sheriff’s Return [57. or growing crops thereon. It cannot answer for those that do not arise by reason of the attachment (Riano). Contents of affidavit of applicant [Rule 57.5]  Summons could not be served personally or by substituted service despite diligent efforts. of any corporation or company . after issuing the corresponding receipt therefor. including bank deposits.

Attachment of interest in property belonging to the estate of a decedent [RULE 57.a species of attachment for reaching the property or credits pertaining or payable to a judgment debtor (asked in the 1999 Bar Exams in comparison with Attachment). legatee. or that  the interests of all the parties to the action will be will be subserved by the sale thereof.7] A previously attached property may also be subsequently attached. credits and all other similar personal property [RULE 57.16 is Followed  Motion for summary hearing on his claim  File a separate action to nullify the levy with damages due to the unlawful levy and seizure. The remedies stated are CUMULATIVE and any one of them may be resorted to without availing of the other remedies (Ching v CA 423 SCRA 356) . the court may order such property to be sold at public auction in such manner as it may direct. or other personal representative of the decedent over such property for the purpose of administration. at the time of service upon them of the copy of the writ of attachment and notice shall be liable to the applicant for the amount of such credits.by leaving with the person owing such debts. unless such property is delivered or transferred. or such debts are paid. are attached in pursuance of such writ. [Riano] 167 f. or devisee.8] –  All persons . [Rule 57.by serving the executor or administrator or other personal representative of the decedent with a copy of the writ and notice that said interest is attached and . such personal representative shall report the attachment to the court. sheriff. legatee or devisee concerned. or under his control. legatee. subject to the claim of such heir.  Interest of the party whom attachment is issued in property belonging to the estate of the decedent . Attachment of debts. and the proceeds of such sale to be deposited in court to abide the judgment in the action. o a copy of the writ.14] NOTE: the same procedure under Rule 39. Note: Property in custodia legis may be attached by:  filing a copy of the writ of attachment with the proper court or quasi-judicial agency  Serving a notice of attachment upon the custodian of the property [Rule 57. to the clerk. or . All that is necessary is the service upon him of the writ of garnishment.owing any debts to him.having in their possession or under their control any credits or other similar personal property belonging to the adverse party. The affidavit must be served upon the sheriff and the attaching procedure [57.11] NOTE: This is an exception to the general rule that the issuance of a writ of attachment is only a provisional remedy. or devisee in the property belonging to the estate of a decedent shall not impair the power of the executor. that  the party attached is perishable. but the property attached shall be ordered delivered to the sheriff making the levy. But the first attachment shall have priority over subsequent attachments.9] –  The attachment of the interest of an heir. as a consequence of which he becomes a virtual party or a forced intervenor in the case. legatee.By filing a copy of the writ and notice in the office of the clerk of the court in which said estate is being settled and served upon the heir. 1991: Service of summons upon the garnishee is not necessary. and in the order made upon such petition. Perla Compania v. Sale of attached property Whenever it shall be made to appear to the court in which the action is pending. until the attachment is discharged. thus no sale of the property should be made during the pendency of the action. Discharge of attachment and the counterbond Effects of attachment i. upon hearing with notice to both parties. or any person claiming under him. administrator. or other proper officer of the court issuing the attachment. [Riano] Proceedings Where Attached Property Claimed By Third Person A third person who has a claim to the property attached may avail of the following remedies:  By terceria – making an affidavit of his title or right to possession. such credits or other personal property. or with his agent. and o A notice that the debts owing by him to the party against whom attachment is issued. belonging to said party. Garnishment . debts or other similar personal property. It is a warning to a person who has in possession property or credits of the judgment debtor not to pay the money nor deliver the property to latter but to appear and answer the plaintiff‘s suit. ii. stating the grounds of such right or title.  When any petition for distribution is filed. Ramolete.REMEDIAL LAW REVIEWER delivery . or devisee. or any judgment recovered by him is satisfied. distribution may be awarded to such heir. and the credits and other personal property in his possession. or having in his possession or under his control.

Disposition of Deposit/ Attached Property After Judgment  When the judgment has become executory. which amount may be recovered from such surety or sureties after notice and summary hearing in the same action. g. uncontested status which preceded the pending controversy) for [Kencht vs CA. shall be delivered to the party against whom attachment was issued. Such claims for damages cannot be the subject of an independent action. It is an ancillary or preventive remedy that is meant to be temporary and subject to the final disposition of the principal action [Riano] Purpose: To prevent future injury and maintain the status quo (i.17]  Where the party against whom attachment had been issued has deposited money instead of giving counter-bond. the surety or sureties on any counter-bond given to secure the payment of the judgment shall become charged on such counter-bond and bound to pay the judgment obligee upon demand the amount due under the judgment. 95 Phil 360] 168 4.18]  If judgment be rendered against the attaching party. the whole sum deposited must be refunded to him or his assignee. (Bacolod City Water v. [Rule 57. EXCEPTIONS:  Where the principal case was dismissed for lack of jurisdiction by the trial court without giving opportunity to the party whose property was attached to apply for and prove his claim.  Attachment is excessive but the discharge shall be limited to the excess [Rule 57. and the order of attachment discharged. and all property attached remaining in any such officer's hands. Irregular or Excessive Attachment (Asked in the 2008 bar exam) An application for damages must be filed before the trial. or before the judgment becomes executory. which shall be conducted within 24 . all the proceeds of sales and money collected or received by the sheriff. requiring a party or a court. or affidavit and/or bond filed therefore are defective or insufficient.13] as where there is no ground for attachment. or before appeal is perfected. party whose property has been attached.2 and 57.12]. in which case it shall be known as a preliminary mandatory injunction A suit for injunction is an action in personam. the last actual.  A TRO is issued in order to preserve the status quo until the hearing of the application for preliminary injunction. may move for discharge of the attachment wholly or in part on security given.  Judgment is rendered against the attaching creditor [Rule 57.REMEDIAL LAW REVIEWER Recovery Upon the Counter-Bond.  Property attached is exempt from execution [Rules 57. for application as  An application for a TRO shall be acted upon only after all parties are heard in a summary hearing. [Rule 57. and after satisfying the judgment the balance shall be refunded to the depositor or his assignee. Satisfaction of judgment out of property attached Improper. Injunction TRO May be granted ex parte if great and irreparable injury would result otherwise INJUNCTION Cannot be granted without notice and hearing Grounds for discharge:  Debtor has posted a counter-bond or has made the requisite cash deposit [Rule 57. 1993] NOTE: the injunction should not establish new relations between the parties but merely reestablish the pre-existing relationship between them. Definitions and Differences: Preliminary Injunction and Temporary Restraining Order A preliminary injunction is an order granted at any stage of an action or proceeding prior to the judgment or final order. the the the the Such damages may be awarded only after hearing and shall be included in the judgment on the main case.19]. Preliminary Injunction a.5].13].e. agency or a person to either  refrain from a particular act or acts or  require the performance of a particular act or acts. peaceable. or person appearing on his behalf. [Santos v. [Rule 57. [Rule 57. under the order of attachment.  Attachment was improperly or irregularly issued [Rule 57. TRO vs. Labayen 446 SCRA 110)  Same requirements preliminary injunction. it shall be applied under the direction of the court to the satisfaction of any judgment rendered in favor of the attaching party.20] Procedure for claiming damages is EXCLUSIVE.  If the judgment is in favor of the party against whom attachment was issued.19] Discharge of attachment After a writ of attachment has been enforced. and  Where the damages by reason of the attachment was sustained by a third person who was not a party to the action wherein such writ was issued. CA.

o The court may issue a TRO effective for 20 days from service on the party sought to be enjoined. It does NOT direct the doing or undoing of acts but is an order to maintain the last. non-extendible (including the original 72 hours) May be effective for 60 days from service on the party or person sought to be enjoined. actual. [PNB vs Adi. 1986. [Rule 58. General rule: TRO is effective only for a period of 20 days from service on the party or person sought to be enjoined Exceptions: If the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury: effective for only 72 hours from issuance Issued by: RTC CA SC Effectivity: 20 days. Preliminary preventive injunction – prohibits the performance of a particular act or acts When preventive injunction does not lie:  To restrain collection of taxes (Valley Trading vs CA). [Cereno vs Dictado (1988)]  To restrain registered owners of the property from selling. Requisites Requirements for preliminary injunction [Rule 58. EFFECTIVITY OF TRO [58. disposing and encumbering their property just because the respondents had executed Deeds of Assignment in favor of petitioner. [Ambrosio vs Salvador (1978)] .4]  There must be a verified application  The application must show facts entitling the applicant to the relief demanded. Zabal vs CA] EXCEPTION: If the act is of continuing nature and in derogation of plaintiff‘s right at the outset. v. an independent petition for injunction in the Court of Appeals is justified. o Injury is ―irreparable‖ if it is of such constant and frequent recurrence that no fair or reasonable redress can be had therefore in court of law or where there is no standard by which their amount can be measured with reasonable accuracy. o Maximum period of effectivity of TRO=20 days (including 72 hrs) If the application for preliminary injunction is denied or not resolved within said period. judge shall conduct a summary hearing to determine whether the TRO shall be extended until the application for preliminary injunction can be heard. Florendo.Matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury o Judge may issue ex parte a TRO effective for 72 hours from issuance. 1989. in an amount to be fixed by the court (asked in the 2006 Bar exam)  Prior notice and hearing for the party/person sought to be enjoined. Injunction (Asked in the 2006 bar exams) A status quo order is in the nature of a cease and desist order.It must establish he has a right and the act against which the injunction is directed is violative of such right (PNB v Timbol 451 SCRA 163)  A bond must be filed. CA. Ramos. Rivera v. [Manila Surety and Fidelity vs Teodoro (1967)]  The CFI has no power to issue a writ of injunction against the Register of Deeds if its effect is to render nugatory a writ of execution issued by the National Labor Relations Commission. . [Saavedra vs Estrada (1931)]  To restrain a mayor proclaimed as duly elected from assuming his office. (Meneses vs Dinglasan) EXCEPTION: But where the lower court enforced its judgment before a party against whom the execution was enforced could elevate her appeal in an injunction suit. Sr. May be effective until further orders 169 b. EXCEPTIONS: . Lacson (2004)]  Against consummated acts.REMEDIAL LAW REVIEWER hours after the sheriff's return of service and/or the records are received by the branch selected by raffle. Kinds of Injunction i. unless exempted. [Churchill & Tait vs Rafferty (1915)]  To restrain the sale of conjugal properties where the claim can be annotated on the title as a lien. but the affected party neither sought such relief nor did the allegations in his pleading sufficiently make out a case for a temporary restraining order.4] Status Quo Order vs. such as the husband‘s obligation to give support. which was instituted to prevent said execution. the TRO is deemed automatically vacated. o Within 72 hours.5] c. in the court where the action/proceeding is pending.Great or irreparable injury would result to the applicant before the matter can be heard on notice. . It is resorted to when the projected proceedings in the case made the conservation of the status quo desirable or essential. [Tayag vs.  Against disposing of the case on the merits [Ortigas and Company Limited Partnership vs CA (1988)]  To stop the execution of judgment where the judgment was already executed. EXCEPT where there are special circumstances that bear the existence of irreparable injury. peaceable and uncontested state of things which preceded the controversy.

and/or development of the natural resources of the Philippines. except the Supreme Court. This prohibition shall apply in all cases. clearance and development of the right-of-way and/or site or location of any national government project. preliminary injunction or preliminary mandatory injunction in any case involving or growing out of the issuance. temporary or permanent injunction shall be issued by the court against any government financial institution in any action taken by such institution in compliance with the mandatory foreclosure whether such restraining order.Commencement prosecution. Preliminary mandatory injunction – requires the performance of a particular act or acts Requisites of mandatory injunction:  Invasion of the right is material and substantial  Right of the complainant is clear and unmistakable  Urgent and paramount necessity for the writ to prevent serious damages [Bautista v.  Sec. permits. operation of any such contract or project. shall issue any TRO. When writ may be issued e. 100 Phil 1078]  The effect would not be to create a new relation between the parties [Alvaro v. prohibit or compel the following acts: . disputes or controversies instituted by a private party. 1. including but not limited to cases filed by bidders or those claiming to have rights through such bidders involving such contract/project. 2. licenses. 78. Vasquez (1921)]  cancellation of attachment [Levy Hermanos v. temporary or permanent injunction is sought by the borrower(s) or any third party or parties. and . (GSIS vs Florendo) Other instances where writ is not available:  Sec. such that unless a temporary restraining order is issued. Cloribel (1967)]  to take property out of the possession or control of one party and place it into that of another whose title has not clearly been established [Pio v. to restrain. RA 9136: the implementation of the provisions of the Electric Power Industry Reform Act of 2001 shall not be restrained or enjoined except by an order issued by the Supreme Court. PD 605: no court of the Philippines shall have jurisdiction to issue any restraining order. or just a provisional remedy in the main action d. [Commissioner of Customs v. exploration.Bidding or awarding of contract/ project of the national government as defined under Section 2 .3] (ASKED IN THE 2006 BAR EXAM) of preliminary . RA 8975: No court.  Sec. 3. or any action whatsoever by the proper administrative official or body on concessions. whether public or private acting under the government direction. execution. approval or disapproval. The applicant shall file a bond. which bond shall accrue in favor of the government if the court should finally decide that the applicant was not entitled to the relief sought. except after due hearing in which it is established by the borrower and admitted by the government financial institution concerned that twenty percent (20%) of the outstanding arrearages has been paid after the filing of foreclosure proceedings. implementation. PD 385: no restraining order.Termination or rescission of any such contract/project. in an amount to be fixed by the court. revocation or suspension of.15]  Property covered by Torrens Title when there is a clear finding of ownership and possession of the land. or any of its subdivisions. Lacson (1940)]  release imported goods pending hearing before the Commissioner of Customs. patents. officials or any person or entity. or public grants of any kind in connection with the disposition. Marcos (1974)] INJUNCTION Generally directed against a party in the action Does not involve court‘s jurisdiction the PROHIBITION Directed against a court/tribunal/person exercising judicial powers may be on the ground that the court against whom the writ is sought acted without/in excess of jurisdiction Always a main action 170 EXCEPTIONS:  Forcible entry and unlawful detainer cases in which the court may issue preliminary mandatory injunction [Rule 70.  Sec. . exploitation. . ii. Barcelona.Acquisition.The undertaking or authorization of any other lawful activity necessary for such contract/project. preliminary injunction or preliminary mandatory injunction against the government. (1982)] Mandatory injunction does not lie in the following instances:  to compel cohabitation [Arroyo v. This prohibition shall NOT APPLY when the matter is of extreme urgency involving a constitutional issue. May be the main action itself. grave injustice and irreparable injury will arise.REMEDIAL LAW REVIEWER  Transfer of possession of property to party with disputed legal title via preliminary injunction utilization. Zapata. Grounds for issuance injunction [Rule 58.

a final injunction will follow [Urbanes vs. or  A party. or . it was stated that an interlocutory or provisional judgment of a foreign court. while the applicant can be fully compensated for such damages as he may suffer. citing Cheshire. and tending to render the judgment ineffectual. prohibit or compel the following acts:  Acquisition. NOTE: It does not necessarily proceed that when a writ of preliminary injunction is issued.REMEDIAL LAW REVIEWER  Applicant is entitled to the relief demanded. This prohibition shall apply in all cases. whether public or private acting under the government direction. preliminary injunction or preliminary mandatory injunction against the government. CA (2001)] h. or is procuring or suffering to be done. officials or any person or entity. It is generally based on initial.6]  Insufficiency of application  other grounds (e. applicant‘s bond is insufficient/defective). incomplete evidence that gives the court an idea of the justification for the preliminary injunction pending the decision of the case on the merits. or for the dissolution of injunction or restraining order Grounds for Objection to/Motion for Dissolution of Injunction/Restraining Order [Rule 58.in requiring performance of an act or acts. execution. creates no obligation on the forum court to enforce it. under the rules of comity. Aviation Services vs.  Commission. disputes or controversies instituted by a private party. This prohibition shall NOT APPLY when the matter is of extreme urgency involving a f. Rule 58 Provides for both a Main Action for Injunction and an Ancillary Writ of Preliminary Injunction (Asked in the 2006 Bar Exam) INJUNCTION Main action PRELIMINARY INJUNCTION Ancillary.  Bidding or awarding of contract/ project of the national government as defined under Section 2 hereof. upon affidavits of the party or person enjoined  if it appears after hearing that although the applicant is entitled to the injunction or restraining order. clearance and development of the right-of-way and/or site or location of any national government project. agency or a person is doing. . Ban on issuance of TRO or Writ of Injunction in cases involving government infrastructure projects Sec. Grounds for objection to. in an action for injunction. Global Injunction of a Foreign Court (Asked in the 2007 Bar Exam) A global injunction issued by a foreign court to prevent dissipation of funds against the defendant who has assets in the Philippines may be enforced in our jurisdiction.  Termination or rescission of any such contract/project. subject to our procedural laws (Suggested Answers to the 2007 Bar Exam. The evidence needed to establish the requisites for a preliminary injunction need not be conclusive or complete.restraining the commission or continuance of the acts or acts complained of. UP Law Center) As a general rule. RA 8975: No court. except the Supreme Court. implementation. continuance or non-performance of the acts complained of during the litigation would probably work injustice to the applicant. nations have established a usage among civilized states by which final judgments of foreign courts of competent jurisdiction are reciprocally respected and rendered efficacious under certain conditions that may vary in different countries. court. However.g. some act or acts probably in violation of the rights of the applicant respecting the subject of the action or proceeding. or any of its subdivisions. the auxiliary remedy of preliminary injunction. it may be modified. including but not limited to cases filed by bidders or those claiming to have rights through such bidders involving such contract/project. no sovereign is bound to give effect within its dominion to a judgment or order of a tribunal of another country. may issue. and the relief consists in . In relation to RA 8975. and  The undertaking or authorization of any other lawful activity necessary for such contract/project.  Commencement prosecution. shall issue any TRO. Grand International Airways (2006)] Note: In Pangalangan and Coquia’s book on Conflict of Laws (2000). the issuance or continuance thereof would cause irreparable damage to the party/person enjoined. or is attempting to do. operation of any such contract or project. 3. [St. whether prohibitory or mandatory. utility and convenience. threatening. to restrain. provided the former files a bond . 171 seeks a embodying injunction judgment a final Based on all evidence gathered by court to determine main action As a matter of course. exists only as part or incident of an independent action or proceeding sole object of which is to preserve the status quo until the merits can be heard based solely on initial and incomplete evidence If it appears that the extent of the preliminary injunction or restraining order granted is too great.

CA (1997): The guiding principle is the prevention of imminent danger to the property. such that unless a temporary restraining order is issued. said remedy cannot be applied for and granted. Article 101]  The court may appoint a receiver of the property of the judgment obligor. removed. Requisites c. the receiver must be sworn to perform his duties faithfully. and it may also forbid a transfer or other disposition of. and that its value is probably insufficient to discharge the mortgage debt. Rule 59 presupposes that there is an action and that the property subject of the action requires its preservation. Abrigo v. B.  Before appointing a receiver. [Rule 39. The receivership under Rule 59 is directed to the property which is the subject of the action and does not refer to the receivership authorized under banking laws and other rules or laws. [Rule 41. the receiver shall file a bond then take his oath. Requirements before issuance of an Order Requisites and Procedure  Verified application filed by the party requesting for the appointment of the receiver. The applicant shall file a bond. Abbas (1963): The general rule is that neither party to the litigation should be appointed as a receiver without the consent of the other because a receiver is supposed to be an impartial and disinterested person. Sundiam (1971)] Alcantara v.  When it appears in an action by the mortgagee for the foreclosure of a mortgage that the property is in danger of being wasted or dissipated or materially injured. the trial court retains jurisdiction to appoint a receiver of the property under litigation since this matter does not touch upon the subject of the appeal. in an amount to be fixed by the court. the property of the judgment obligor not exempt from execution.9. Receivership under Rule 59 is ancillary to the main action. or disposing of the property in litigation. a receiver may be appointed as an aid to the execution of judgment. or any interference with. If an action by its nature. or otherwise to carry the judgment into effect. Commodities Storage v. 172 5. it cannot be used as an instrument for the destruction of those rights. wasted.F.1] Specific situations when a receiver may be appointed  If a spouse without just cause abandons the other or fails to comply with his/her obligations to the family.  Whenever in other cases it appears that the appointment of a receiver is the most convenient and feasible means of preserving. a. or materially injured unless a receiver be appointed to administer and preserve it. Arranza v. administering. Homes (2000): Receivership is aimed at the preservation of. and at making more secure. Purpose: The purpose of a receivership as a provisional remedy is to protect and preserve the rights of the parties during the pendency of the main action.REMEDIAL LAW REVIEWER constitutional issue. (Riano). the court shall require applicant to post a bond in favor of the adverse party. Receivership (Asked in the 2001 Bar Exam) Nature Receiver: person appointed by the court in behalf of all the parties to the action for the purpose of preserving and conserving the property in litigation and prevent its possible destruction or dissipation. which bond shall accrue in favor of the government if the court should finally decide that the applicant was not entitled to the relief sought.  Before entering upon his duties. Cases when receiver may be appointed  When it appears from the verified application and other proof that the applicant has an interest in the property or fund which is the subject of the action or proceeding.  Applicant must have an interest in the property or funds subject of the action.  Applicant must show that the property or funds is in danger of being lost. [Philippine Trust Company v. or that the parties have so stipulated in the contract of mortgage. during the pendency of an appeal or as an aid in the execution of a judgment when the writ of execution has been returned unsatisfied. Caluag (1957)]  After final judgment.41]  After the perfection of an appeal. Kayanan (1983): A clerk of court should not be appointed as a receiver as he is already burdened with his official duties.  Application must be with notice and must be set for hearing. Acuña v. judgment. [Rule 59. grave injustice and irreparable injury will arise. and that such property or fund is in danger of being lost. [Dolar v. if it were left in the possession of any of the parties. existing rights.  After judgment. . the aggrieved spouse may petition the court for receivership. does not require such protection or preservation. or to aid execution when the execution has been returned unsatisfied or the judgment obligor refuses to apply his property in satisfaction of the b. [Family Code. Santamaria (1929)]  Appointment of a receiver over the property in custodia legis may be allowed when it is justified by special circumstances. or to dispose of it according to the judgment. or dissipated. to preserve the property during the pendency of an appeal. When the receiver is appointed. as when it is reasonably necessary to secure and protect the rights of the real owner.

[Rule 59.g. the other reliefs (e. personal or incorporeal. As a principal action its ultimate goal is to recover personal property capable of manual delivery wrongfully detained by a person. EXCEPT:  when the seizure is illegal. removed or disposed of. estate. Used in this sense. PRELIMINARY ATTACHMENT Available even if the recovery of personal property is only an incidental relief sought in the action. [Bagalihog v.3]  Bond posted by the applicant for grant of receivership is insufficient  Bond of receiver is insufficient  notice to all interested parties and hearing [Rule 59. Extends only to personal property capable of manual delivery. Replevin (Asked in the 1999 Bar Exam) a. whether real.g. and  Be liable to the receiver for the money or the value of the property and other things so refused or neglected to be surrendered together with all damages that may have been sustained by the party or parties entitled thereto as a consequence of such refusal or neglect.REMEDIAL LAW REVIEWER Who appoints receiver  court where the action is pending  CA  SC  During the pendency of an appeal. d. Can be sought only where the defendant is in actual or constructive possession of the personalty involved. Two (2) kinds of bond  Applicant‘s bond  Receiver‘s bond Cannot be availed of if the property is in custodia legis (e. property. it is considered as a suit in itself.1] Denial of application or discharge of receiver  If the appointment sought or granted is without sufficient cause  Adverse party files a sufficient bond to answer for damages [Rule 59. removed or disposed of to prevent its being found or taken by the applicant. person. the appellate court may allow an application for the appointment of a receiver to be filed in and decided by the court of origin. 173 6. Termination of receivership Ground: the necessity for a receiver no longer exists Procedure:  motu proprio or on motion of either party . When may writ be issued Nature Replevin may be a main action or provisional remedy. seized under a search warrant). to do such acts respecting the property as the court may authorize  Invest funds in his hands. Can still be resorted to even if the property is in custodia legis. Liability for refusal or neglect to deliver property to receiver  Contempt. Replevin under Rule 60 is the provisional remedy. [Riano] REPLEVIN Available only where the principal relief sought in the action is recovery of personal property. ONLY by order of the court upon the written consent of all the parties. May be resorted to even if the personalty is in the custody of a third person.6] No action may be filed against a receiver without leave of the court which appointed him. [Rule 59. [Rule 59. Powers of a receiver  Bring and defend in such capacity actions in his own name with leave of court  Take and keep possession of the property in controversy  Receive rents  Collect debts due to himself as receiver or to the fund. damages) being merely incidental thereto. Fernandez (1991)] and  where there is reason to believe that the seizure will not anymore be f. Available to recover personal property even if the same is not concealed.7] e. To recover the possession of personal property unjustly detained (presupposed that the same is being concealed. or corporation of which he is the receiver  Compound for and compromise the same  Make transfers  Pay outstanding debts  Divide the money and other property that shall remain among the persons legally entitled to receive the same‘  Generally. Extends to all kinds of property.8] Effect:  Settle accounts of receiver  Delivery of funds to person entitled  Discharge of receiver  Receiver entitled to reasonable compensation to be taxed as costs against defeated party. under attachment.

the court shall issue an order and the corresponding writ of replevin describing the personal property alleged to be wrongfully detained and requiring the sheriff forthwith to take such property into his custody. particularly describing it. Forcible Entry and Unlawful Detainer 13. The applicant must show by his own affidavit or that of some other person who personally knows the facts:  That the applicant is the owner of the property claimed. The adverse party may object to the sufficiency of the bond or surety or he may file a redelivery bond.5] Order of Replevin Upon the filing of affidavit and approval of the bond.Property is not delivered to the plaintiff for any reason [Rule 60. the court shall determine the value in case of disagreement). Requisites Application Who may apply: party praying for the recovery of possession of personal property. SPECIAL CIVIL ACTIONS 1. Applicant need not be the owner. the sheriff shall deliver the property to the applicant. Contempt c. [Rule 60. or is entitled to the possession thereof. [Rule 60. Declaratory Reliefs and Similar Remedies 6. Sheriff’s duty in the implementation of the writ. Certiorari. Ordinary civil actions versus special civil actions 3.3] 1. (Yang vs Valdez. or if so seized. at any time before the delivery of the property to the applicant. It is enough that he has right to its possession. Redelivery Bond Please refer to immediately preceding subsection for discussion on affidavit and bond. and serves such affidavit upon the sheriff while the latter has possession of the property and a copy upon the applicant. Quo Warranto 9. that it is exempt from such seizure or custody. 60. Jurisdiction and venue 4. Partition 12. and belief. alleging the cause of detention thereof according to the best of his knowledge. Review of Judgments and Final Orders or Resolution of the COMELEC and COA 7. Redelivery bond: The adverse party may. CA (1993)] A writ of replevin may be served anywhere in the Philippines. in double the value of the property as stated in the applicant‘s affidavit.6]  The defendant is entitled to the return of the property under a writ of replevin if: . No claim for damages for the taking or keeping of the property may be enforced against the bond UNLESS the action is filed within 120 days from filing of the bond. information. or seized under a writ of execution or preliminary attachment. when property is claimed by third party Disposition of Property by Sheriff  The sheriff shall retain the property for 5 days. 177 SCRA 141) When:  at the commencement of the action or  before the answer [unlike attachment. the sheriff SHALL NOT BE BOUND to keep property under replevin or deliver property to the applicant UNLESS the applicant files a bond approved by the court in favor of the third person (the bond should not be less than the value of stated under Sec. [Chua v. [Rule 60.6] Where Property Claimed by Third Person When third party claims the property and such person makes affidavit of his title thereto stating his grounds. Affidavit and bond. b. 174 d. Expropriation 10. Nature of special civil actions .2] Bond The applicant must also give a bond.REMEDIAL LAW REVIEWER followed by the filing of the criminal action in court or there are conflicting claims. [Rule 60. injunction and support pendente lite (anytime before final judgment) and receivership (anytime even after final judgment)].  That the property has not been distrained or taken for a tax assessment or a fine pursuant to law.Plaintiff‘s bond is found to be insufficient or defective and is not replaced with proper bond .5] .2] XIX. executed to the adverse party in double the value of the property as stated in the affidavit. [Rule 60. Foreclosure of Real Estate Mortgage 11. Interpleader 5.He seasonably posts a redelivery bond [Rule 60. or otherwise placed under custodia legis. and  The actual market value of the property.2. Nature of special civil actions 2.  If after 5 days and the adverse party failed to object or his redelivery bond is insufficient. require the return of the property by filing with the court where the action is pending a bond executed to the applicant. Prohibition and Mandamus 8.  That the property is wrongfully detained by the adverse party.

Requisites for interpleader  There must be two or more claimants with adverse or conflicting interests to a property in the custody or possession of the plaintiff. [Riano] Ordinary Civil Action Governed by ordinary rules Special Civil Action Also governed by ordinary rules but subject to specifically prescribed rules (Rules 62 to 71) Some concepts applicable to ordinary civil actions are not applicable in special civil actions.REMEDIAL LAW REVIEWER Rules on ordinary civil actions shall apply to special civil actions insofar as they are not inconsistent with or may supplement the rules governing the latter.  The subject matter of the adverse claims must be one and the same.interpleader .1]  To protect a person against double vexation in respect of one liability [Beltran.  The plaintiff has NO CLAIM upon the subject matter of the adverse claims.  If claimant fails to plead within the time herein 2.:  the definition of a cause of action requiring violation of a right does not appear to be relevant to the special civil action of declaratory relief and interpleader. [Rule 62. comes to court and asks that the defendants who have made conflicting claims upon the same property or who consider themselves entitled to demand compliance with the obligation be required to litigate among themselves in order to determine who is entitled to the property or payment or the obligation [Beltran v.partition . PHHC. unless otherwise ordered by the court. who may file their reply thereto. prohibition.P. a special civil action is generally brought or filed for the same purpose.7]  Court order requiring the conflicting claimants to interplead with one another. mandamus). mandamus.3] Since a civil action in general is one by which a party sues another for the enforcement of a right.contempt Writs of injunction. the court may direct that the subject matter be paid or delivered to the court.declaratory relief . except as otherwise indicated in the particular rules for special civil actions. Procedure Complaint filed by the person against whom conflicting claims are or may be made. such interest is NOT DISPUTED by the claimants. [B. without claiming any right in both. [Rule 62. certiorari. . [Riano] 3. 1969] Purpose  To compel conflicting claimants to interplead and litigate their several claims among themselves.g.mandamus .3]  Each claimant shall file his answer within 15 days from service of the summons. Jurisdiction and venue Venue is governed by the general rules on venue.quo warranto . supra] a. and costs and litigation expenses shall constitute a lien or charge upon the subject matter of the action. 129] 3 special civil actions within the jurisdiction of inferior courts:  interpleader.foreclosure of real estate mortgage . Interpleader Definition: A remedy whereby a person who has property in his possession or has an obligation to render wholly or partially. [R62.certiorari . [Rule 1.  ordinary civil actions may be filed initially in MTC or RTC depending on jurisdictional amount while some special civil actions can only be filed in MTC (forcible entry and unlawful detainer) and some cannot be commenced in MTC (certiorari.2]  Summons. [Rule 62.review of adjudications of Constitutional commissions . [ibid] The docket and other lawful fees paid by the complainant. prohibition. E. or if he has an interest at all. Ordinary civil special civil actions actions versus The fact that an action is subject to special rules other than those applicable to ordinary civil actions is what makes a civil action special. quo warranto and habeas corpus issued by RTCs are enforceable within their respective judicial regions.prohibition . [Riano] How commenced:  COMPLAINT . copy of complaint and order served upon the conflicting claimants. Tanjuatco (1969)]  ejectment suits [Rule 70]  contempt [Rule 71] 175 4.forcible entry and unlawful detainer  PETITION . serving a copy thereof upon each of the other conflicting claimants. or the prevention or redress of a wrong.expropriation . If the interests of justice so require. v. provided the amount involved is within its jurisdiction [Makati Development Corp.

When court may refuse to make judicial declaration . third-party complaints and responsive pleadings thereto. When to file Whenever conflicting claims upon the same subject matter are or may be made against a person who claims no interest in the subject matter or an interest which is not disputed by the claimants.. Commission of Customs vs. Aldaya (1956)] 5. Cloribel (1977): A third-party complaint is not available in a declaratory relief.  the terms of said documents and the validity thereof are doubtful and require judicial construction [Santos v. Republic (1956)] or the validity of a registration certificate [Obiles vs. [Rule 63. Who may file the action  a person interested under a deed. Republic (1953)] as they are unilateral in nature and without conflicting adverse interests.1] Cannot be availed of to resolve the issue of breach of undertakings made by defendants. or any governmental regulation Notice Given To Sol Gen c.A court decision cannot be the subject of a declaratory relief since there exists other remedies.6] Validity of a local government ordinance Constitutionality of a local government ordinance Prosecutor or attorney of the LGU Sol Gen 176 Baguio Citizens Action vs. [Rule 62. Requisites of action for declaratory relief  subject matter of the controversy must be a deed.3]  If action involves the validity of a local government ordinance. the prosecutor/attorney of the LGU involved shall be notified. [Rule 62. Reparations Commission (1987): A compulsory counterclaim may be set up in a petition for declaratory relief. appeal or a motion for clarificatory judgment [Tanda vs.2]  If action involves the validity of a statute/executive order/regulation/other governmental regulation. the action may be converted into an ordinary action. . ordinance or any other governmental regulation [Rule 63. cross-claims. [Ollada v. [Remotigue vs. Central Bank (1962)] .6]  actual justiciable controversy [Velarde v SJS (2004)]  adverse interests between the parties . will. City Council of Baguio (1983): Non-joinder of interested persons is not a jurisdictional defect.4].  issue must be ripe for judicial determination [Velarde v SJS (2004)]  adequate relief is not available through other means or other forms of action or proceedings. contract or other written instrument. . Visayan Packing vs.  If the motion is denied. Aquino. 94 Phil 65]  no breach of the documents in question. EO or regulation. each claimant may file a motion to dismiss. or  other appropriate grounds specified in Rule 16 The period to file the answer shall be tolled. etc. an answer may be filed within the remaining period. executive order or regulation. an ordinary civil action is the remedy. supra].  Within the time for filing an answer. declare him in default and render judgment barring him from any claim in respect to the subject matter. contract or other written instrument  a person whose rights are affected by a statute.5]  Pre-trial  Court shall determine conflicting claimants‘ respective rights and adjudicate their several claims.1] Parties  all persons who have or claim any interest which would be affected by the declaration [Rule 63. b.REMEDIAL LAW REVIEWER fixed. Where filed  in the proper RTC [Rule 63.1]  not within the original jurisdiction of the Supreme Court. Declaratory Reliefs and Similar Remedies a.1]. [Rule 62. will. [Rule 63. should take place. i.4] Subject Matter Validity of a statute. [Reparations Commission v. on motion. in no case less than 5 days (reckoned from notice of denial) [Rule 62. the Solicitor General shall be notified. Osmeña (1967)] b. statute.e. executive order or regulation.A declaratory relief is not available for a declaration of citizenship [Villa-Abrille vs. Northern Lines (1970)] Otherwise. which should be resolved in an ordinary action for specific performance or other relief [Beltran.Concept of a cause of action in ordinary civil actions does not apply. a breach or violation of an instrument or a statute. but persons not joined shall not be prejudiced in their interests unless otherwise provided by the Rules. Grounds:  impropriety of the interpleader action. or ordinance [Rule 63.If before the final termination of the case. [Rule 63. even if pure questions of law are involved. the court may.  The parties may file counterclaims.

5] from being cast upon title to real property or any interest therein. executive order or regulation.5]: verified and accompanied by (annexes):  a clearly legible duplicate original or certified true copy of the subject judgment. the proper remedy is not reformation of the instrument but annulment of the contract.5]:  name of aggrieved party (petitioner)  respondents: Commission concerned and person(s) interested in sustaining the judgment a quo  facts  issues involved  grounds and brief arguments relied upon for e. their true intention is not expressed in the instrument purporting to embody the agreement. Quieting of title to real property (Arts.2] Such petition for certiorari shall not stay the execution of the judgment. and may be prejudicial to said title. there having been a meeting of the minds of the parties to a contract. The procedure for the reformation of instrument shall be governed by rules of court to be promulgated by the Supreme Court ii.1 par. directly to the SC on certiorari under Rule 65. 1607 Civil Code) [Rule 63.1]  Judgments/orders of the Civil Service Commission are now reviewable by the Court of Appeals under Rule 43. In case of real property. sought to be reviewed unless otherwise directed by the Supreme Court [Rule 64. When [Rule 64. [Rule 63. 1-95]  An aggrieved party may bring the questioned judgment. or unenforceable. Reformation of an instrument (Arts. [RA 7902. 476-481 Civil Code) Definition: Art. aggrieved party may file petition within remaining period. 177 d. 481. 476. which shall not be less than 5 days from notice of denial. record. encumbrance or proceeding which is apparently valid or effective but is in truth and in fact invalid. Conversion to ordinary action Requisites:  before the final termination of the case  a breach or violation of an instrument or a statute. [Rule 63. by reason of mistake. 1359-1369 Civil Code) Definition: Art. voidable. claim. one of the parties may ask for the reformation of the instrument to the end that such true intention may be expressed.8] Procedure File a petition for review. Review of Judgments and Final Orders or Resolution of the COMELEC and COA Scope  Applicable only to judgments and final orders of the COMELEC and COA [Rule 64. after the vendor has been duly heard. etc. Art. [Rule 64. etc. iii. inequitable conduct or accident. ineffective. inequitable conduct. 1369.6] 6. by reason of any instrument. SC Revised Administrative Circular No. the consolidation of ownership in the vendee by virtue of the failure of the vendor to comply with the provisions of article 1616 shall not be recorded in the Registry of Property without a judicial order. Proceedings remedies considered as similar i. ordinance. When. The procedure for the quieting of title or the removal of a cloud therefrom shall be governed by such rules of court as the Supreme Court shall promulgated. 1607. Art. Form [Rule 64. An action may also be brought to prevent a cloud .3]:  Within 30 days from notice of judgment/final order/resolution sought to be reviewed  Filing of motion for reconsideration/new trial with Constitutional commission interrupts the 30-day period.REMEDIAL LAW REVIEWER  where a decision would not terminate the uncertainty or controversy which gave rise to the action. an action may be brought to remove such cloud or to quiet the title. If mistake. eliminating recourse to the Supreme Court (SC). or accident has prevented a meeting of the minds of the parties. or  where the declaration or construction is not necessary and proper under the circumstances. etc.  certified true copies of such material portions of the record referred to in the petition  other documents relevant and pertinent to the petition  proof of service of a copy of the petition on the Commission and the adverse party  proof of the timely payment of the docket and other lawful fees in 18 legible copies (containing plain copies of all documents attached to the original copy of the petition) Contents [Rule 64. Whenever there is a cloud on title to real property or any interest therein. If motion is denied. 2] Definition: Art. Consolidation of ownership (Art. fraud. or any other governmental regulation should take place Effect: The parties shall be allowed to file such pleadings as may be necessary or proper. 1359. fraud.

Zulueta (1961)]  the order is a patent nullity [Marcelo vs. is 60 days from notice of the denial of the motion. or to alter or review the action taken in the proper exercise of the discretion of judgment. etc. 178 7. persons and officers Rule 64 Directed only to the judgments. interrupts the period for the filing of the petition for certiorari. Failure to comply with foregoing requirements shall be sufficient ground for dismissal.. CA (1949): Findings of fact of CA are not binding upon SC in an original action for certiorari. [Regalado] Enriquez v. Application of Rule 65 under Rule 64 b.  material dates showing that it was filed on time  certification against non-forum shopping Findings of fact of the Commission supported by substantial evidence shall be final and nonreviewable.REMEDIAL LAW REVIEWER review  prayer for judgment annulling or modifying the question judgment. to prevent the respondent from performing the act sought to be prevented during the pendency of the proceedings for the writ. [Lobite vs. or officer exercising judicial or quasi-judicial functions Filed within 60 days from notice of the judgment The period within which to file the petition if the MR or new trial is denied.e.7] Requirements:  original copy with certified true copies of material portions of the record as are referred to in the comment and certified true copies of other supporting papers  18 legible copies with plain copies of all documents attached to the original  Copy of the comment shall be served on the petitioner.  Order to Comment [Rule 64. Prohibition Prohibition is a preventive remedy. in extreme situations generally in criminal cases. If the motion Rule 65 Directed to any tribunal. Only established or admitted facts may be considered. final orders or resolutions of COMELEC and COA Filed within 30 days from notice of the judgment The filing of a MR or a Motion for New Trial if allowed.9] Case is deemed submitted for decision upon:  filing of the comments on the petition. However. . the aggrieved party may file the petition within the remaining period.  Decision [Rule 64. Certiorari Suarez v. for the writ cannot be used as a writ of error or other mode of direct review.  Comments of Respondents [Rule 64. bar examinees were asked to compare Petition for review on Certiorari and Certiorari. Macadaeg. Tan (1970)]  special considerations. NLRC (1998): Questions of fact cannot be raised in an original action for certiorari. it shall order the respondents to file their comments on the petition within 10 days from notice thereof. but which shall not be less than 5 days reckoned from the notice of denial. [Regalado] a. and such other pleadings or papers as may be required or allowed. Pajarillo (1947)]  the orders were issued either in excess of or without jurisdiction [Aguilar vs. public welfare or public policy [Jose vs. However. Medran vs. Certiorari. Peter Memorial Park vs. mandamus lies to compel the performance of the fiscal of discretionary functions where his actuations are tantamount to a wilful refusal to perform a required duty.  expiration of the period to file the pleadings.6] If the SC finds the petition sufficient in form and substance. i. Mandamus Prohibition and The original action of certiorari is not a substitute for appeal. 84 Phil 674: Prohibition is the remedy where a motion to dismiss is improperly denied. Sundiam 1983] Exceptions:  appeal is not a speedy and adequate remedy [Salvadores vs. Campos (1975)] NOTE: In the 2005 and 2008 Bar Exams. De Guzman (1982)]  the decision in the certiorari case will avoid future litigations [St. Mandamus A writ of mandamus will not issue to control the exercise of official discretion or judgment. Exceptions: SC sets the case for oral argument or requires parties to submit memoranda. Distinction in the application of Rule 65 to judgments of the COMELEC and COA and the application of Rule 65 to other tribunals. Grounds for dismissal:  Petition not sufficient in form and substance  Petition was filed manifestly for delay  the questions raised are too unsubstantial to warrant further proceedings. board. the petitioner should obtain a restraining order and/or writ of preliminary injuction. is denied.

grave abuse of which is a mistake of discretion which is judgment tantamount to lack of jurisdiction Certiorari invokes Appeal when filed original jurisdiction of invokes the appellate the court jurisdiction of the court Within 60 days from Filed within period of notice of judgment. [Rule 65. however. When petition for certiorari. EXCEPTION: gross abuse of discretion. quasi-judicial agency. Definitions and distinctions b. [Tanada v. unless otherwise provided by law or the Rules. [Rule 65. Prohibition and Mandamus distinguished from Injunction. Tuvera (1985)]  JUDGMENT If after such hearing or submission of memoranda or the expiration of the period for the filing thereof. Procedure FILE PETITION FOR CERTIORARI / PROHIBITION / MANDAMUS.REMEDIAL LAW REVIEWER General rule: In the performance of an official duty or act involving discretion. not exceeding 15 days. [Regalado] e.  Sandiganbayan. manifest injustice.6]  HEARING OR MEMORANDA After the comment or other pleadings required by the court are filed. it is sufficient to show that the petitioner is a citizen. [Rule 65. but such order shall be subject to the rules on the grounds and duration thereof. if it is in aid of its appellate jurisdiction. prohibition and mandamus is proper See Annex F. Injunctive relief Rule 65. board. [Rule 65. [Rule 65. or that (3) the questions raised therein are too unsubstantial to require consideration.  Regional Trial Court. [Rule 65.9] 179 a. the court shall issue an order requiring the respondent(s) to comment on the petition within 10 days from receipt of a copy thereof. An execution may issue for any damages or costs awarded in accordance with section 1 of Rule 39. HOWEVER. if it relates to acts / omissions of a lower court / corporation / board / officer / person. officer or person concerned in such manner as the court may direct. when and where to file petition CERTIORARI DISTINGUISHED FROM APPEAL CERTIORARI APPEAL Proper to correct errors Proper where error is not of jurisdiction one of jurisdiction but an committed by lower error of law or fact courts. if the question is one of public right.4]  ORDER TO COMMENT If the petition is sufficient in form and substance to justify such process. Requisites c. and not only for a writ of preliminary injunction. may dismiss the petition if it finds the same to be (1) patently without merit. and disobedience thereto shall be punished as contempt. board or officer the original parties of the case PROHIBITION DISTINGUISHED FROM INJUNCTION PROHIBITION INJUNCTION Directed to the court or Directed against a party tribunal directing it to to the action . (2) prosecuted manifestly for delay. PCGG (1987)] Mandamus can be availed of only by the party who has direct legal interest in the right sought to be enforced. Parties to an appeal are court. When filed:  Not later than 60 days from notice of judgment/order/resolution  If a motion for reconsideration/new trial is filed. it shall render judgment for the relief prayed for or to which the petitioner is entitled. The court. corporation. the 60-day period shall be counted from notice of denial of motion.7 provides for the issuance of a temporary restraining order. the court may hear the case or require the parties to submit memoranda.4] Where filed:  Supreme Court  Court of Appeals . together with a copy of the petition and any annexes thereto. palpable excess of authority [Kant Wong v.8]  SERVICE AND ENFORCEMENT OF ORDER OR JUDGMENT A certified copy of the judgment rendered shall be served upon the court. appeal order or resolution An original and Continuation of the independent action original case Impleads the tribunal. tribunal.8] d.  Extension may be granted for compelling reasons.If it involves the acts of a quasi-judicial agency. Certiorari distinguished from Appeal by Certiorari. or the time for the filing thereof has expired. the petition shall be filed only in the CA. the court finds that the allegations of the petition are true. such official can only be directed by mandamus to act but not to act in one way or the other. Such order shall be served on the respondents in such manner as the court may direct.

A public officer who does not or suffers an act which. RTC with jurisdiction over territorial area where respondent resides. Quo Warranto . corporation. constitutes a ground for forfeiture of office How commenced By a verified petition [Rule 66. corporation litigant board or officer Purpose is for the Purpose is for the tribunal. When the government commences an action against individuals  By Government. CA or SC. Otherwise. Light vs. who does or suffers an act which. Public Service Commission (1964)]  the questions raised in the certiorari have been duly raised and passed upon by the lower court [Fortich-Celdran vs. who usurps. by provision of law.1]  When Solicitor General or public prosecutor MUST commence action: g. [BA Finance vs. Celdran (1967)] or are the same as those raised and passed upon in the lower court [Pajo vs. appropriate RTC or MTC. Effects of filing of an unmeritorious petition 8. position or franchise. Individual By SolGen: RTC Manila. 253 Any voter COMELEC.Cloribel (1966)]  the MR would be useless [People vs.REMEDIAL LAW REVIEWER refrain from the performance of acts which it has no jurisdiction to perform MANDAMUS DISTINGUISHED FROM INJUNCTION MANDAMUS INJUNCTION Special civil action Ordinary civil action Directed against a Directed against a tribunal. Distinguish from Quo Warranto in the Omnibus Election Code Filed by whom Where filed ROC Rule 66 Solicitor General or Public Prosecutor in behalf of the Republic. Marbella (1960)]  the proceeding was ex parte in which the petitioner had no opportunity to object [Republic vs. CA or SC OEC Sec. intrudes into. PAL (1982)] b. if against election of a Member of Congress. Exceptions to filing of motion reconsideration before filing petition for Period for filing Against whom. intrudes into or unlawfully holds or exercises a public office. against: . A public officer. Palacio (1960)]  the petitioner was deprived of due process and there is extreme urgency for relief [Luzon Surety vs. 180 a. brought in the name of the Republic of the Philippines. or from the time the right to the position arose A person. if against a municipal or barangay officer Within 10 days after proclamation of results Ineligibility disloyalty to Republic or the f. position or franchise . Actions/Omissions of MTC/RTC in election cases i. Reliefs petitioner is entitled to h. Maglanoc (1963)]  the issue raised is purely a question of law or where the public interest is involved [PALEA vs. Ago (1960)]  there is an urgent necessity for the resolution of the question and delay would prejudice the interests of the government [Vivo vs.An association which acts as a corporation within the Philippines without being legally incorporated or without lawful authority so to act [Rule 66. Provincial or City Officer. constitutes a ground for the forfeiture of his office . or unlawfully holds or exercises a public office. Regional.A person who usurps. grounds Within 1 year from ouster.1] By whom/against whom General rule: A motion for reconsideration must first be availed of before certiorari – to enable the lower court to correct its mistakes without the intervention of the lower courts. by the provision of law. Pineda (1982)] Exceptions:  the order is a patent nullity [Vigan Elec. defendant either to board or officer to refrain from an act or to perform a ministerial perform not necessarily a and legal duty legal and ministerial duty Purpose is to perform a Purpose is to prevent an positive legal duty and act to maintain the not to undo what has status quo between the been done parties Quo warranto is the remedy to try disputes with respect to the title to a public office. Where to file petition j.

if applicable: . [Rule 66.Officer bringing such action may first require an indemnity for the expenses and costs of the action in an amount approved by and deposited in court. [Rule 67.When directed by the President of the Philippines.3]  The complaint shall join as defendants all persons owning or claiming to own. [Municipality of Biñan v.9] e. . position. intruding into. [Rule 66.1] 181 c. Accordingly. 4.5] b. or occupying any part thereof or any interest therein. Garcia (1989)] It includes an inquiry into the propriety of the expropriation – its necessity and public purpose. Ansaldo v. or unlawfully holding or exercising a public office.  The following must be clearly stated in the complaint . When plaintiff can immediately enter into possession of the real property. 1 can be established by proof. take upon himself the execution of the office. c. site or location for national government infrastructure projects and for the purposes‖: [w]henever it is necessary to acquire real property for the right-of- . The order fixing just compensation is also final and appealable (Ibid). of RA 8974 otherwise known as ―An Act to facilitate the acquisition of right-of-way. Rights of a person adjudged entitled to public office If judgment be rendered in favor of the person averred in the complaint to be entitled to the public office he may. [Rule 66. Tantuico (1990): There is taking when the owner is actually deprived or dispossessed of his property. Bardillon v.If the title is otherwise obscure or doubtful so that the plaintiff cannot with accuracy or certainty specify who are the real owners. Two stages expropriation in every action for i. Determination of the authority of the plaintiff to exercise the power of eminent domain and the propriety of its exercise in the context of the facts.at the request and upon the relation of another person . he has good reason to believe that any case specified in Sec. after taking the oath of office and executing any official bond required by law. whichever comes first. against another who usurped or unlawfully held or exercised such public office or position [Rule 66. brought in his own name. Matters to expropriation allege in complaint for The complaint for expropriation must be VERIFIED. This is done with the assistance of not more than three (3) commissioners.with permission of the court . showing as far as practicable the separate interest of each defendant. it falls within the jurisdiction of RTCs. Expropriation a. This stage is terminated by either an order of dismissal of the action or order of the condemnation declaring that expropriation is proper and legal. Determination of just compensation.When upon complaint or otherwise. Masili (2003): An expropriation suit is incapable of pecuniary estimation. although occupied by private individuals. [Rule 66. and may immediately thereafter demand of the respondent all the books and papers in the respondent's custody or control appertaining to the office to which the judgment relates. . when there is a practical destruction or a material impairment of the value of his property or when he is deprived of the ordinary use thereof. Contents:  The right and purpose of expropriation  Description of the real or personal property sought to be expropriated.If the title to any property sought to be expropriated appears to be in the Republic of the Philippines. Judgment in Quo Warranto action When the respondent is found guilty of usurping. The person adjudged entitled to the office may also bring action against the respondent to recover the damages sustained by such person by reason of the usurpation.10] 9. [Riano] ii. When individual may commence an action By a person claiming to be entitled to a public office or position. Bgy.2]  When Solicitor General or public prosecutor MAY commence action: . d. and that the petitioner or relator recover his costs.REMEDIAL LAW REVIEWER . in relation to RA 8974 Sec. regardless of the value of the subject property. or franchise. These orders are final and therefore appealable. judgment shall be rendered that such respondent be ousted and altogether excluded therefrom. Just compensation is to be determined as of the date of the taking of the propriety or the filing of the complaint.

cross-claim. Riano opines that Sec. the implementing agency shall immediately pay the owner of the property the amount equivalent to the sum of (1) 100% of the value of the property based on the current relevant zonal valuation of the Bureau of Internal Revenue (BIR). It is issued by the court in which the complaint for expropriation is filed when: d. third party complaint in any pleading What to file and serve Period to file Contents Prohibit ed A foreclosure action must be brought in the RTC of the province where the land or any part thereof is situated. the proffered value of the property to be seized See table of comparison under the preceding subsection. whichever is higher. [Rule 66. and there is no existing valuation of the area concerned. the implementing agency shall immediately pay the owner of the property its proffered value taking into consideration the standards prescribed in Section 5 hereof. A defendant waives all defenses and objections not so alleged. 182 e. Defenses and objections NO OBJECTION OR HAS OBJECTION DEFENSE TO THE OR DEFENSE TO TAKING THE TAKING Notice of Answer to the appearance and complaint manifestation Time stated in the summons Manifestation to the effect that he has no objection or defense. OR  in the case of utmost urgency. Order of Expropriation It declares that the plaintiff has a lawful right to take the property sought to be expropriated for the public use or purpose described in the complaint. Upon compliance with the guidelines abovementioned. upon payment of just compensation to be determined as of the date of the taking of the property or the filing of the complaint whichever is earlier. New system of immediate payment of initial just compensation . and the value of improvements.3] f. the appropriate implementing agency shall initiate the expropriation proceedings before the proper court under the following guidelines:  Upon the filing of the complaint. he may present evidence as to the amount of the compensation to be paid for his property. municipalities and other areas where there is no zonal valuation. may permit amendments to the answer not to be made later than ten (10) days from filing thereof. ALL his objections and defenses to the complaint or any allegation therein Counterclaim. to come up with a zonal valuation for said area. the court shall immediately issue to the implementing agency an order to take possession of the property and start the implementation of the project. cities. and he may share in the distribution of the award. and  In case the completion of a government infrastructure project is of utmost urgency and importance. 2 of Rule 67 is deemed modified by RA 8974. in the interest of justice. but the court. the BIR is hereby mandated within the period of sixty (60) days from the date of the expropriation case. column of RA 8974. Specifically designating/identif ying the property in which he claims to be interested Specifically designating/identif ying the property in which he claims to have an interest in and the nature and extent of the interest. and (2) the value of the improvements and/or structures as determined under Section 7 hereof.REMEDIAL LAW REVIEWER way or location for any national government infrastructure project through expropriation. At the trial of the issue of just compensation. He noted the following differences: Rule 67 Before issuance of writ of possession Expropriation proceedings initiated by the national government Initial deposit with an authorized government depositary Amount for deposit equivalent to 100% assessed value of the property for purposes of taxation. site or location of national government infrastructure projects Immediate payment to the property owner Amount to be paid is:  100% of the value of the land as stated in the tax declaration or current zonal valuation. RA 8974 Upon filing of the complaint Right-of-way. whether the defendant has previously appeared or answered. and after due notice to the defendant.  In provinces.

i. after due notice to the parties to attend.4] The measure is not the taker‘s gain. Appointment of Commissioners. In eminent domain or expropriation proceedings.  They can.7]  After the 10-day period for objecting to the commissioners‘ report. Powers and duties of commissioners:  Parties can present evidence before the commissioners and the latter have the power to administer oaths or hearings before them.REMEDIAL LAW REVIEWER  objections or defenses of the defendant have been overruled. . [Rule 67. CA (2004)] Upon the rendition of the order of expropriation. or the filing of the complaint. . . or after tender to him of the amount so fixed and payment of the costs. but the owner‘s loss. or  the defendant raised no such defense or objection.Upon filing of the report. Court action upon commissioner’s report Order of appointment to be served on the parties.The report shall be filed within 60 days from the date the commissioners were notified of their appointment. the court. or the owner be deprived of the actual value of his property so taken.RECOMMIT the report to the commissioners for further report of facts. to convey the idea that the equivalent to be rendered for the property taken shall be real. And make such order or render judgment as shall secure to the plaintiff the property essential to the exercise of his right of expropriation and to the defendant just compensation for the property so taken. the clerk of court shall serve copies thereof on all interested parties. the plaintiff shall have the right to enter upon the property expropriated and to appropriate it for the public use or purpose defined in the judgment. the commissioners cannot view and examine the property . Upon payment by the plaintiff to the defendant of the compensation fixed by the judgment. Commissioner’s report.8] 183 g. [Rule 67.ACCEPT the report IN PART and REJECT it IN PART. . [Rule 67. or to retain it should he have taken immediate possession thereof under Sec. may: . whichever came first. . 2. and an owner willing but not compelled to sell. the general rule is that the just compensation which the owner of condemned property is entitled to is the market value. Market value is ―that sum of money which a person desirous but not compelled to buy. and shall be resolved within thirty (30) days after all the commissioners have received copies of the objections. substantial.SET ASIDE the report and APPOINT new commissioners. would agree on as a price to be given and received therefore.In no case shall the consequential benefits assessed exceed the consequential damages assessed. Rights of plaintiff upon judgment and payment  Right to enter upon the property expropriated and appropriate it for the public use or purpose as stated. full. Objections to the appointment of any of the commissioners shall be filed in court within ten (10) days. [Rule 67. The word ―just‖ is used to intensify the meaning of the word ―compensation‖.The commissioners shall assess the consequential damages to the property taken and deduct from such consequential damages the consequential benefits derived by the owner from the public use or purpose of the property taken. Determined as of the date of taking of the property. with legal interest thereon from the taking of the possession of the property. [Rule 67. the operation of its franchise by the corporation or person taking the property. with notice that they are allowed ten (10) days within which to file objections to the findings of the report.5] h. if the parties desire. Ascertainment of just compensation Just compensation is defined as the full and fair equivalent of the property taken from its owner by the expropriator.‖ [BPI v. and ample. view and examine the property sought to be expropriated and its surroundings and may measure the same.6]  The commissioners shall make full and accurate report to the court of all their proceedings. after hearing. or  No party appears to defend. . [Rule 67. The right of the plaintiff to enter upon the property of the defendant and appropriate .4] EXCEPTION: when the parties agree otherwise. the court shall appoint not more than 3 competent and disinterested persons as commissioners to ascertain and report to the court the just compensation for the property sought to be taken.ACCEPT the report and render JUDGMENT in accordance therewith. To compensate is to render something which is equal in value to that taken or received.10]  Right to enter upon the property even pending appeal. [Rule 67.

I. it shall ascertain the amount due to the plaintiff upon the mortgage debt or obligation. . Deficiency judgment i. No. and the nature of the public use or purpose for which it is expropriated.M. [Barican. [Rule 67. by an adequate description.2] d.13] b. Instances when court cannot render deficiency judgment . SALE: In default of such payment the property shall be sold at public auction to satisfy the judgment. Effect of recording of judgment When real estate is expropriated.REMEDIAL LAW REVIEWER the same for public use or purpose shall not be delayed by an appeal from the judgment. et al. 99-10-05-0. [Rule 68. Disposition of proceeds of sale Claims to be satisfied by the proceeds of the public sale of mortgaged property (in order):  Costs incurred in the sale of property  Claim of the person foreclosing the property  Claims of junior encumbrancers in the order of their priority If proceeds of the sale exceeds the cost of the sale as well as the claims of the person foreclosing the property and junior encumbrancers. and shall render judgment for the sum so found due and order that the same be paid to the court or to the judgment obligee within a period of not less than 90 days nor more than 120 days from the entry of judgment (―equity of redemption‖). if any  the residual amount shall be given to the mortgagor or his agent. if any. and its effect shall be to vest to plaintiff the title to the real estate so described for such public use or purpose. shall order the property to be sold in the manner and under the provisions of Rule 39 and other regulations governing sales of real estate under execution. No. upon motion. [Rule 67. including interest and other charges as approved by the court. or to the person entitled to it. [Gov’t of P. Sale of mortgaged property. such as the violation of the other conditions therein. Judgment on foreclosure for payment or sale Judgment PAYMENT: If upon the trial. If a mortgage contract covers several distinct parcels of land situated in different provinces. effect  When the defendant fails to pay the amount of the judgment within the period specified therein.It is the ministerial duty of the court to order the foreclosure of the property when the debt is not paid within the period specified. the person foreclosing the property may move for a DEFICIENCY JUDGMENT from the court confirming the foreclosure sale. unless a third party is actually holding the same adversely to the judgment obligor. 184 The judgment entered in expropriation proceedings shall state definitely. the court shall find the facts set forth in the complaint to be true.A motion for such order of sale is non-litigable and may be made ex parte. Monte de Piedad v. governed by A. c. and  When confirmed by an order of the court. but it may be on other grounds which under the contract warrant the foreclosure.3]  The purchaser is entitled to a writ of possession and it is ministerial upon the court to issue a writ of possession in his favor upon an ex parte motion. Foreclosure of Real Estate Mortgage (Asked in the 2003 Bar Exam) The cause of action in a foreclosure suit is generally the non-payment of the mortgage loan.  The said purchaser or last redemptioner may secure a writ of possession. shall be entitled to the possession of the property. et al v Caguioa. also upon motion. the particular property or interest therein expropriated.13] 10. a. [Rule 68. a certified copy of the judgment entered in expropriation proceedings shall be recorded in the registry of deeds of the place in which the property is situated. v De las Cajigas. the action may be brought in the RTC of any of the provinces and the judgment will be enforceable against any of the parcels of land involved. 55 Phil 667]  Such sale shall not affect the rights of persons holding prior encumbrances upon the property or a part thereof.4] If the proceeds of the sale is less than the amount of the claims to be satisfied.  POSSESSION: Upon the finality of the order of confirmation or upon the expiration of the period of redemption when allowed by law. 56 Phil 301: A foreclosure action must be brought in the RTC of the province where the land or any part thereof is situated. Rodrigo. Foreclosure may be made:  judicially – governed by Rule 68  Extrajudicially – proper only when so provided in contracts in accordance with Act. to recover the amount of the deficiency in his claim. from the court which ordered the foreclosure. . (1986)] j. [Rule 68. the purchaser at the auction sale or last redemptioner. it shall operate to divest the rights in the property of all the parties to the action and to vest their rights in the purchaser. and costs. 3135. subject to such rights of redemption as may be allowed by law. the court. upon motion.

In extrajudicial foreclosure. his successor-in-interest or any judicial creditor of said debtor-mortgagor or any person having a lien in the property subsequent to its mortgage or deed of trust. Intermediate Appellate Court (1988)] RIGHT OF REDEMPTION Right of redemption is the right granted to the debtor-mortgagor. a Right of redemption exists There could be a deficiency judgment EXTRAJUDICIAL FORECLOSURE Governed by Act 3135 as amended Does not require filing of an action Right of redemption Recovery of deficiency is by mere motion for a deficiency judgment No deficiency judgment because there is no judicial proceeding BUT deficiency can be recovered Recovery of deficiency is by an independent action The mortgagor may exercise his equity of redemption in judicial foreclosure before the sale is confirmed by the court (Raymundo v .No deficiency judgment may be rendered where the mortgage was executed by a third person to secure the obligation of a debtor. [Rule 86. f. [Limpin v.There can be no deficiency judgment because there was no judicial proceeding in the foreclosure. PNB v CA (1999)] Registration [RULE 68. such third person not having assumed personal liability for the debt. de Santos (1935)] If the debtor dies. and a new one issued in the name of the purchaser.7] EXCEPTIONS:  Third Party Mortgagor . Torralba Vda. also termed a deficiency decree. [PNB v. Echaus Tan Siusa (1929)]  Extrajudicial Foreclosure . v. Judicial foreclosure versus extrajudicial foreclosure JUDICIAL FORECLOSURE Governed by the Rules of Court Involves the filing of an independent action Equity of redemption EXCEPT if the foreclosure is in favor of banks as mortgagees. under which the property is sold.7] A CERTIFIED COPY of the final order confirming the sale shall be registered in the Registry of Deeds. (Black’s Law Dictionary) General rule: Sec. The remedy is an ordinary action against the debtor. CA (1999)] A motion for deficiency judgment may be made only after the sale and after it becomes known that a deficiency exists. The Certificate of Title in the name of the mortgagor shall be cancelled and a new one shall be issued in the name of the purchaser. IF A RIGHT OF REDEMPTION EXISTS The Certificate of Title in the name of the mortgagor shall NOT be cancelled. [Governor of the Philippine Islands v. [Philippine Trust Co. Recovery can be made through a separate action. the mortgagee can also recover by action any deficiency in the mortgage account which was not realized in the foreclosure sale. 6 provides for a deficiency judgment which shall be rendered. but the Certificate of Sale and the order confirming the sale shall be registered and a brief memorandum thereof shall be made by the Registrar of Deeds upon the certificate of title IF THE PROPERTY IS NOT REDEEMED The FINAL Deed of Sale executed by the sheriff in favor of the purchaser at the foreclosure sale shall be registered with the Registry of Deeds. the deficiency may be filed as a claim against his estate. [De Castro v. 1978. to redeem the property within 1 year from the registration of the sheriff‘s certificate of foreclosure sale. on motion. IF NO RIGHT OF REDEMPTION EXISTS The Certificate of Title in the name of the mortgagor shall be cancelled. Equity of redemption versus right of redemption EQUITY OF REDEMPTION Right of the defendant mortgagor to extinguish the mortgage and retain ownership of the property by paying the amount fixed in the decision of the court within 90 to 120 days after entry of judgment or even after the foreclosure sale but prior to its confirmation. Intermediate Appellate Court [1988)] The right of redemption in relation to a mortgage is understood in the sense of a prerogative to re-acquire mortgaged property after e. DBP v Zaragosa. [DBP v Mirang (1975).REMEDIAL LAW REVIEWER Definition: A judgment against a debtor for the unpaid balance of the debt if a foreclosure sale or a sale of repossessed personal property fails to yield the full amount of the debt due. 185 IF THE PROPERTY IS REDEEMED The Deed of Redemption shall be registered with the Registry of Deeds and a brief memorandum thereof shall be made by the Registrar of Deeds on said certificate of title. when the foreclosure sale did not produce proceeds sufficient to satisfy the judgment.

Matters to allege in the complaint for partition Contents of complaint for partition  Nature and extent of the complainant‘s title  Adequate description of the real estate of which the partition is demanded  All other persons interested in the property must be impleaded.g. governed by Rule 69 Even if the parties resorted to judicial partition. and they cannot accept the decree in part. They must accept all or none. 2 and 12] a. Inc. When there was a prior partition. IAC. after a long possession in severalty. CA (1999)] Crucillo v. the order of accounting may in the meantime be executed.1] Confirmation of the sale of mortgaged real property vests title in the purchaser including the equity of redemption. 1]. The motion for the confirmation of the sale requires a hearing to grant an opportunity to the mortgagor to show cause why the sale should not be confirmed [Tiglao v Botones. Determination of the propriety of partition This involves a determination of whether the subject property is owned in common and whether all the co-owners are made parties in the case. 494 CC]  When the property is not subject to a physical division and to do so would render it . Pelaez (2005): All persons considered as co-owners and interested in the property to be partitioned are indispensable parties to the action and must be impleaded. It cuts off all the rights or interests of the mortgagor and of the mortgagee. [De Mesa v. The actual partitioning of the subject property This is also a complete proceeding and the order or decision is appealable. (2000): Parties to a partition proceeding. Rosales v Suba. [Miranda v. [Rule 69. who should be made defendants Filed by person having the right to compel the partition of real estate. ACP. There can be no partition again because there is no more common property. unserviceable for the use for which is it intended [Art. 495 CC] or  When the condition imposed upon voluntary heirs before they can demand partition has not yet been fulfilled. CA (2000)] RIGHT OF REDEMPTION registration of the foreclosure sale. 494 CC]  When partition is prohibited by the donor or testator for a period not exceeding 20 years [Art. 494. Sepulveda v. [Huerta Alba Resort. 2003). A person cannot claim both under and against the same instrument. Partition may be inferred from circumstances sufficiently strong to support the presumption. it retroacts to the date of the sale. 1084 CC] 186 b. except only where the mortgagee is the Philippine National Bank or a bank or banking institution. If they cannot agree. party wall) [Art. not exceeding 10 years [Art. then the case goes into the second stage. Maglucot et al. The defendants are all the co-owners. In other words. However. Parties who had received the property assigned to them are precluded from subsequently attacking its validity of any part of it. and who took possession of the portion allotted to them. 1999: Oral partition of land when the same is fully consummated is valid and binding upon the parties thereto. Partition Partition of property may be:  Extrajudicial – by agreement  Judicial – compulsory. v. [Noceda v. v. or of personal property. It exists only in the case of the extrajudicial foreclosure of the mortgage. This order of partition is appealable. a deed of 11. [Art. who are indispensable parties. [Sec. [Secs. No right of redemption is recognized in a judicial foreclosure. Exceptions to the Right to Ask for Partition:  When there is a stipulation against it. Who may file complaint. as by proof of irregularities therein or of gross inadequacy of the price. 90 Phil 275]. 1913. Two (2) stages in every action for partition i. Lack of notice vitiates the confirmation of the sale. and repudiate it in part. or of both real and personal property. 1083 CC]  When partition is prohibited by law (e. c. who elected to take under partition. they accepted the lands awarded them by its provisions. [Sec. are estopped to question title to portion allotted to another party. then the parties may partition the common property in the way they want. CA (1994)] ii. [Lozame v Amores (1985]].REMEDIAL LAW REVIEWER EQUITY OF REDEMPTION Sunico. Court of Appeals (1976)] If not appealed. they may still make an amicable partition of the property. 13] The plaintiff is the person who is supposed to be a co-owner of the property. Thus. The order may also require an accounting of rents and profits recovered by the defendant. Maglucot-aw et al. the fact that the share of each co-heir has not been technically described and the title over the whole lot remains uncancelled does not negate such partition.

 If they agree. Order of agreement partition and partition by Order of partition After trial.5] Commissioner’s report The commissioners shall make a full and accurate report to the court of all their proceedings as to the partition. [Rule 69.8] . [Rule 69. Upon filing the report. Venue Actions for partition should be filed in the RTC of the province where the property or part thereof is situated. venue may be laid in the RTC of any of said provinces. Where a tract of land held in common has been subdivided into lots. and the judgment shall include an allowance for such rents and profits. or even before the expiration of such period but after the d. if the court finds that the plaintiff has the right to the property subject of partition. Appointment of commissioners. [Rule 69. Recitals in deeds. and one of the lots has long been known and called by the name of one of the tenants in common. possession and occupation of land. General rule: If the commissioners should determine that the real estate cannot be divided without prejudice to the interests of the parties. Villanueva. [Pancho v.3] Duties of Commissioners [Rule 69. and acquiescence for 60 years. it shall issue an order demanding the partition of the real estate among all the parties in interest. after due notice to the parties to attend at such view and examination  hear the parties as to their preference in the portion of the property to be set apart to them and the comparative value thereof  set apart the same to the parties in lots or parcels as will be most advantageous and equitable.  The final order of partition and the instruments of conveyance shall be registered with the Registry of Deeds where the property is situated. having due regard to the improvements. which had been lost and were not recorded. there will be a partition by commissioners. the court shall confirm the partition through a final order.4]:  view and examine the real estate. [Rule 69. situation and quality of the different parts thereof. [Rule 69. and there is no evidence of any subsequent claim of a tenancy in common. commanding them to set off to the plaintiff and to each party in interest such part and proportion of the property as the court shall direct. improvements made thereon for a long series of years. Court action upon commissioner’s report Appointment of commissioners If the parties are unable to agree upon the partition. the clerk of court shall serve copies thereof on all interested parties with notice that they are allowed 10 days within which to file objections to the findings of the report.2] 187 e. the parties will then be asked if they agree to make partition of the property among themselves. it may fairly be inferred that there has been a partition and that such lot was set off to him whose name it bears. No proceeding had before or conducted by the commissioners shall pass the title to the property or bind the parties until the court accepts the commissioners‘ report and rendered judgment thereon. the court may order that the property be assigned to one of the parties willing to take the same PROVIDED he pays to the other parties such amounts as the commissioners deem equitable EXCEPTION: if one of the parties asks that the property be sold instead of being so assigned. Partition by commissioners.6] Upon the expiration of the 10-day period. 2] (Refers to 1st stage of partition) Partition by agreement After the issuance of the order of partition. if they so desire. Commissioner’s report. [Sec. [Rule 69. or the assignment of real estate to one of the parties or the sale of the same.  After the execution of instruments of conveyance. then the court shall ORDER the commissioners to sell the real estate at public sale under such conditions and within such time as the court may determine. A party shall recover from another his just share of rents and profits received by such other party from the real estate in question.REMEDIAL LAW REVIEWER partition may be presumed.2]  If they do not agree. proper instruments of conveyance will be executed to effect the partition. 99 Phil 611] A final order decreeing partition and accounting may be appealed by any party aggrieved thereby. the court shall appoint not more than 3 competent and disinterested persons as commissioners to make the partition. furnish sufficient evidence that there was an actual partition of land either by deed or by proceedings in the probate court. If several distinct parcels of land are situated in different provinces.

Judgment and its effects CONTENTS OF JUDGMENT Judgment shall state definitely. 102 Phil 1182] in which case. purchaser A certified copy of the judgment shall in either case be recorded in the registry of deeds of the place in which the real estate is situated. IAC (1988)] 188 12.  They must file the appropriate action in court and should not take the law into their own hands. then partition is no longer a proper remedy of the aggrieved co-owner. UNLAWFUL DETAINER Possession was lawful at first but later becomes illegal. [Rule 69. which is prescriptible.REMEDIAL LAW REVIEWER interested parties filed their objections to the report/statement of agreement. as when the lease contract has expired and the lessee refuses to vacate the premises despite g. [Laurora v. or other person against whom the possession of any land or building is unlawfully withheld. vendor. [Rule 70.1]  The owners of a property have no authority to use force and violence to eject alleged usurpers who were in prior physical possession of it.  Action must be for the restitution of possession of property together with damages and costs. [Rule 69. IF ACTUAL PARTITION IS PROPERLY MADE IF THE WHOLE PROPERTY IS ASSIGNED TO ONE OF THE PARTIES AFTER PAYMENT IF PROPERTY IS SOLD AND SALE IS CONFIRMED BY THE COURT Judgment shall vest in the party making the payment the whole of the real estate free from any interest on the part of the other parties. from the time of entry) as he acquires possession by FISTS. by metes and bounds and adequate description. Echarri. (FISTS)  Must be brought at any time within 1 year after such unlawful deprivation in the proper MTC against the person unlawfully depriving him of possession or against any person or persons claiming under them. (3) strategy. after the expiration or termination of the right to hold possession by virtue of an express or implied contract.  Must be brought at any time within 1 year after the unlawful withholding of possession in the proper Municipal Trial Court against the person unlawfully withholding possession or persons claiming under them. [Rule 70. may:  ACCEPT the commissioners‘ report and render JUDGMENT based upon it.7] adversely occupies the property without recognizing the co-ownership [Cordova v. acquisitive prescription may set in.e. Partition of personal property The provisions of Rule 69 shall apply to partitions of estates composed of personal property.  Action must be for the restitution of possession of property together with damages and costs. upon hearing. and a definite making the description of payment(s) free the parcels of from the claims real estate sold of any parties to to each the action. vendor. (2) intimidation.13] h. in so far as the same may be applicable. if the property is assigned or sold between the several owners thereof. [Roque v.  May also be brought by the legal representative or assigns of any such lessor. vendee. Definitions and Distinction f. Sterling Technopark (2003)] Unlawful Detainer  Resorted to when a lessor.  RECOMMIT the report to the commissioners for further report of facts if there is cause to do the same  SET ASIDE the report and APPOINT new commissioners  ACCEPT the report IN PART and REJECT it IN PART  Make such order and render such judgment as shall effectuate a fair and just partition of the real estate or of its value. Cordova. EXCEPT where one of the interested parties openly and . or (5) stealth. He should file an accion reivindicatoria.11] Forcible Entry  Resorted to when a person is deprived of possession of any land or building by (1) force. Prescription of action The right of action to demand partition does not prescribe [De Castro v. 20 Phil 23]. the court. the particular portion of the real estate assigned to each party. Forcible Entry and Unlawful Detainer (Asked in the 2000 Bar Exam in Relation to a Pending Action for Specific Performance) a. [Rule 69. or of both real and personal property. EFFECTS OF JUDGMENT Judgment shall vest in each party to the action in severalty the portion of the real estate assigned to him. (4) threat. If a co-owner repudiates the co-ownership and makes known such repudiation to the other coowners. Judgment shall state the fact of such payment and of the assignment of the real estate to the party making the payment. or other persons. vendee.1] FORCIBLE ENTRY Possession becomes unlawful right from the very start (i. Judgment shall Judgment shall state the name vest the real of the purchaser estate in the or purchasers purchaser(s).

It is thus an action whereby plaintiff alleges ownership over a parcel of land and seeks recovery of its full possession. Previous demand to vacate required (jurisdictional). iii. in case of forcible entry. Veridiano (1994)] 189 c. threat.1] b. [Javier v.3]  under the original exclusive jurisdiction of first level courts. e. which must be brought in the proper regional trial court. ii. strategy. express or implied. Previous demand upon defendant to vacate not required. The plaintiff must allege and prove that he was in prior physical possession of the premises until deprived thereof. P50k  MTC has jurisdiction if the assessed value does not exceed said amounts d. Action on the complaint From the examination of the allegations in the complaint and such evidence as may be attached thereto. express or implied. it seeks the recovery of ownership and includes the jus utendi and the jus fruendi. The unlawful withholding of possession is made after the expiration or termination of the right to hold possession under any contract. How to determine jurisdiction in accion publiciana and accion reinvindicatoria A/P and A/R are actions involving title to or possession of real property or an interest therein  RTC has jurisdiction where the assessed value of the property exceeds P20K or. intimidation. Accion Publiciana A plenary action for recovery of the right to possess and which should be brought in the proper regional trial court when the dispossession has lasted for more than one year. When demand is necessary . When. The plaintiff need not be in prior physical possession. by virtue of any contract. [Rule 70. or the legal representatives or assigns of any such lessor. The issue centers on who was in prior possession de facto. Who may institute the action and when. if no ground for dismissal is found. the court may:  DISMISS the case outright based on the grounds for dismissal for ordinary civil actions apparent in the complaint.4] Allowed pleadings [Rule 70. or a lessor. Campos (1991)]  one co-owner may institute the action. or other person When: At any time within 1 year after such unlawful deprivation or withholding of possession in the proper MTC Against Whom: The person or persons unlawfully withholding or depriving of possession. 1-year period counted from date of last demand or last letter of demand. vendee. OR any person or persons claiming under them [Rule 70.REMEDIAL LAW REVIEWER The deprivation of physical possession of land and building is effected through force. or  the summary action for unlawful detainer (desahucio) where the defendant‘s possession was originally lawful but ceased to be so by the expiration of his right to possess. where there is no showing of compliance with such requirement. or stealth. 1-year period counted from date of actual entry on the land. threat or stealth (FISTS).5] Cases requiring referral to conciliation.12] g. intimidation. Accion Reivindicatoria Also called accion de reivindicacion.  both of which must be brought within one year from the date of actual entry to the land. vendor. in MM. [Rule 70. The issue centers on whether the defendant‘s right to possess has expired or not. [Abrin v. [Rule 70. or other person against whom the possession of any land or building is unlawfully withheld after the expiration or termination of the right to hold possession. strategy. or  ISSUE SUMMONS. Against Whom Who: A person deprived of the possession of any land or building by force. shall be dismissed without prejudice. Distinguished from accion publiciana and accion reinvindicatoria i. Pleadings allowed Pleadings must be verified. and may be revived only after that requirement have been complied with. against whom the action may be maintained Who may File.  subject to the Rules on Summary Procedure. in case of unlawful detainer. demand. vendee. vendor. Accion Interdictal  the summary action for forcible entry (detentacion)  where the defendant‘s possession of property is illegal ab initio. and from the date of last demand.  in the proper MTC or MeTC Nature:  special civil action involving realty.  nature of the action is determined by the allegation of the complaint and the character of the relief sought.4]:  Complaint  Compulsory Counterclaim pleaded in the answer  Cross-claim pleaded in the answer  Answer f. [Rule 70.

Consolacion (1983): A person who occupies the land of another at the latter's tolerance or permission. CA (1992): This rule as to tolerance does not hold true in a case where there was forcible entry at the start. without any contract between them is necessarily bound by an implied promise that he will vacate upon demand. Procedure Filing of complaint. where there is no showing of compliance with such requirement. [Guanson v. or  by serving written notice of such demand upon the person found on the premises. v. and is not for failure to pay rentals or comply with the terms of the lease contract. [Baranda v. failing which.  demand to vacate Yap v. and may be revived only after that requirement have been complied with. or  by posting such notice on the premises if no person be found thereon. [Rule 70.5] Cases requiring referral to conciliation. CA (1989): Refusal to collect or accept rentals is not a defense. CA (1996): Tolerance must be presented right from the start of possession sought to be recovered to categorize a cause of action as one of unlawful detainer. Vivas. Muñoz v. [Rule 70. but the lawful possessor did not attempt to oust the intruder for over 1 year. the action by the lessor shall be commenced only after:  demand to pay or comply with the conditions of the lease and to vacate is made upon the lessee. [id] Jakihaca v. [Rule 70. 96 Phil 538]  When the purpose of the suit is not for ejectment but for the enforcement of the terms of the contract. Natino (1996)] If there is a prima facie showing of tenancy. a PRELIMINARY CONFERENCE shall be held. CA (1994): An alternative demand to either renew the expired lease contract at a higher rental rate or vacate is not a definite demand to vacate and therefore.7] Affirmative and negative defenses and cross-claims and compulsory counterclaims not pleaded in the answer are deemed waived. Jr. plaintiff should give 2 demands (which may be embodied in 1 demand letter):  demand to pay rental or comply with conditions of the lease. shall be dismissed without prejudice. [De Santos v.  After the court has examined the allegations in the complaint and supporting evidence attached to the same. Abreu (1956): When failure to pay rent or comply with the condition of lease is the ground for ejectment. Dakudao v.It shall be a cause for dismissal of his complaint . Refugia v. and if this is not complied with. Penas. or  ISSUE SUMMONS. and prevent an implied renewal of the lease. Rule 18 applicable. an action for unlawful detainer may be instituted against him.All cross-claims shall be dismissed .  Answers to the counterclaims or cross-claims shall be served and filed within 10 days from service of the answer in which they are pleaded. motu propio or on motion. Cruz (1992): Notice and demand to vacate is required on a lease on a month-to-month period to render effective the termination of the lease upon the expiration of the month. Padios (1987)]  Not later than 30 days after the last answer is filed.REMEDIAL LAW REVIEWER In cases of unlawful detainer. and only thereafter filed forcible entry suit following demand to vacate.  Where there is a defense of tenancy. Ban. insufficient basis for the filing of an action for unlawful detainer. [Rule 70. EXCEPTION: lack of jurisdiction over the subject matter. Zobel v. and the lessee fails to comply therewith after 15 days in the case of land or 5 days in the case of buildings. Aquino (1990): Demand upon a tenant may be oral. Uy v. [Bayog v. there must be a preliminary hearing on the question of tenancy relations.12]  The defendant shall file his ANSWER and serve a copy of it to the plaintiff within 10 days from service of summons. the court should dismiss the case for lack of jurisdiction (jurisdiction belongs to the DARAB).6] Failure of the defendant to answer within the period provided above shall give power to the court. [Rule 70.2] EXCEPTIONS (prior demand not required):  Where purpose of the action is to terminate the lease by reason of the expiry of its term. the court may:  DISMISS the case outright based on the grounds for dismissal for ordinary civil actions apparent in the complaint.The defendant who appears in the absence of the plaintiff shall be entitled to the judgment on his counterclaim  When the defendant does not appear . to render judgment as may be warranted by the facts alleged in the complaint and limited to what is prayed for therein. Effects of failure to appear:  When the plaintiff does not appear . There must be consignation. if no ground for dismissal is found. 77 Phil 7]  When the defendant is not a tenant but a mere intruder.The plaintiff shall be entitled to judgment (This is true when there is only one defendant or when all of the defendants did not appear) 190 .

15] i. A possessor deprived of his possession may move for a preliminary mandatory injunction within 5 days to restore him in his possession of the property. on the basis of the pleadings and the stipulations and admissions made by the parties. [Rule 70.  A clear specification of material facts which remain controverted.21] EXCEPTION: Appeal has been duly perfected by the defendant and bond has been posted. Resolving defense of ownership When ownership is raised as a defense. and if so. terms thereof. Hence.  Whether. Judgment shall be rendered within 15 days after receipt of the last affidavit or the expiration of the period for filing the same. execution shall issue immediately. the court may resolved the issue of ownership but only under these conditions:  When the issue of possession cannot be resolved without resolving the issue of ownership. Anunciacion (1995): There must be notice of the judgment and a motion with notice to the adverse party. the judge should not order immediate execution in his decision. it may during the 30day period issue an ORDER specifying the matters to be clarified and require the parties to submit affidavits or other evidence on the said matters within 10 days from receipt of said order. and it shall not in any way affect the title or ownership of the land or building. The judgment or final order shall be appealable to the appropriate RTC. [Rule 70.10] Affidavits required to be submitted shall state only facts of direct personal knowledge of the affiants which are admissible in evidence.17] If the court finds that the allegations of the plaintiffs are NOT TRUE.14]  Judgment GENERAL RULE: The court shall render judgment within 30 days from the date of its receipt of the affidavits and position papers OR the expiration of the period for filing the same. [Id. . it shall render judgment for the defendant to recover his costs. [Rule 70. [Ibid.  the just sum due as arrears of rent or reasonable compensation for the use and occupation of the premises.9]  The parties shall submit affidavits of their witnesses and other evidence on the factual issues defined in the order. Siapno (2000): Although immediately executory. together with their position papers setting forth the law and the facts relied upon by them within 10 days from receipt of the order.16]. Exception: Highly meritorious grounds and without prejudice to such sanctions as the court in the exercise of sound discretion may impose on the movant. Kaw v. [Rule 70. Violation of this requirement may subject the party or the counsel who submits the same to disciplinary action and shall be cause to expunge the inadmissible affidavit or portion thereof from the records. Lu v. and shall show their competence to testify to the matters stated therein. in which event the judgment shall be rendered within 30 days from issuance of the order. [Rule 70. The court then shall decide the motion within 30 days from the filing thereof. such judgment shall not bar an action between the same parties with respect to the title of the land or building.8]  The court shall issue an ORDER stating matters taken up during the preliminary conference within 5 days after the termination of the same.19 and 70. [Rule 70. Preliminary injunction and preliminary mandatory injunction Preliminary injunction The court may grant preliminary injunction in accordance with Rule 58 to prevent the defendant from committing further acts of dispossession against the plaintiff. judgment may be rendered without the need of further proceedings.] If the trial court finds that the allegations of the complaint are TRUE. 191 h.  Such other matters intended to expedite the disposition of the case.] The court shall not resort to the foregoing procedure just to gain time for the rendition of the judgment. and  The issue of ownership shall be resolved only to determine the issue of possession [Rule 70. [Rule 70.18]  Execution of judgment GENERAL RULE: If judgment is rendered against a defendant.  attorney‘s fees and costs. [Rule 70.REMEDIAL LAW REVIEWER General rule: No postponement of the preliminary conference shall be granted. it shall render judgment in favor of the plaintiff for  restitution of the premises.] The judgment rendered in an action for forcible entry shall be conclusive with respect to the possession only.11] EXCEPTION: Should the court find it necessary to clarify certain material facts.  The stipulations or admissions entered into by the parties. Contents of the Order:  Whether the parties have arrived at an amicable settlement. [Ibid. [Rule 70.

execution shall issue immediately.A.Motion to dismiss based on lack of jurisdiction over the subject matter .annulment of deed of sale with assumption of mortgage and/or to declare the same an equitable mortgage (1983).  A ‗writ of possession case‘ where ownership is concededly the principal issue before the Regional Trial Court does not preclude nor bar the execution of the judgment in an unlawful detainer suit where the only issue involved is the material possession or possession de facto of the premises [Heirs of F.Motion to dismiss for failure to comply with section 12 (referral to Lupon for conciliation)  Motion for a Bill of Particulars  Motion for New Trial  Motion for reconsideration of a judgment  Motion for reopening of trial  Petition for relief from judgment  Motion for extension of time to file pleadings. or document affecting property operate to abate ejectment actions respecting the same property [Salinas v. or prejudice parties litigant or their witnesses during litigation.  An action for reconveyance of property or ‗accion reivindicatoria‘ also has no effect on ejectment suits regarding the same property [Del Rosario v.g.. prohibited pleadings Prohibited pleadings and motions [Rule 70. such judgment shall not bar an action between the same parties with respect to the title of the land or building. annulment of title (1989).annulment of sale of title (1987). [Rule 70. annulment of document (1989)]. GENERAL RULE: If judgment is rendered against a defendant.g. Sr. Caparros v. Hence. the inferior court is not divested of its jurisdiction [Rural Bank of Sta. Cuyegkeng (1966)]. Mandamus or Prohibition against any interlocutory order issued by the court  Motion to declare defendant in default  Dilatory motions for postponement  Reply  Third-party complaints  Interventions 13.13]:  Motion to dismiss EXCEPTIONS: . from deed of absolute sale to one of sale with pacto de retro ) does not suspend an ejectment suit between the same parties [Judith v. Jimenez (1963)]. the court may still issue a preliminary mandatory injunction to restore the plaintiff in possession if the court is satisfied that the defendant‘s appeal is frivolous or dilatory. Summary procedure.  Suit for specific performance with damages do not affect ejectment actions (e. Guballa. Sison annulment of sale with damages 174 SCRA 517. How to stay the immediate execution of judgment .19] BUT upon motion of the plaintiff within 10 days from the perfection of the appeal to the RTC. Contempt Definition Contempt of court is a defiance of the authority. It signifies not only a willful disregard or disobedience to the court‘s order but such conduct as tends to bring the authority of the court and the administration of law into disrepute or in some manner to impede the due administration of justice. Yatco (1996)] do not abate the latter. Ignacia. justice and dignity. Abragan (1975)]. such conduct as tends to bring the authority and administration of the law into disrespect of. to compel renewal of lease contract) [Desamito v.REMEDIAL LAW REVIEWER When the defendant asserts ownership over the property. [Rule 70. and neither do proceedings on consignation of rentals [Lim Si v. if any. v CA (1988)]. he deposits with the appellate court the amount of rent due from time to time under the contract. C. or that the appeal of the plaintiff is prima facie meritorious.  defendant files a sufficient supersedeas bond approved by the Municipal Trial Court. Court of Appeals (1998)]  Injunction suits instituted in the RTC by defendants in ejectment actions in the municipal trial courts or other courts of the first level [Nacorda v. RTC .  An action for quieting of title to the property is not a bar to an ejectment suit involving the same property [Quimpo v.19 and 70. Dante v. Navarro . [Rule 70. Ang Ping v.20] 192 k. Inc.21] EXCEPTION: Appeal has been duly perfected by the defendant and bond has been posted. It is defined as a disobedience to the court by setting up an opposition to its authority. Procedure for staying the execution of judgment:  defendant perfects his appeal in due time. to interfere with. Lim (1956)]  An ‗accion publiciana’ does not suspend an ejectment suit against the plaintiff in the former [Ramirez v. and  during the pendency of the appeal. j. Galgala v. Bleza (1981)]. (Asked in the 2000 Bar Exam)  An action for reformation of instrument (e.  Neither do suits for annulment of sale. affidavits or other papers  Memoranda  Petition for Certiorari. de la Victoria (1972)].18] Matters Not Constituting Prejudicial Question to Ejectment [Arcal vs. and it shall not in any way affect the title or ownership of the land or building. or title. [Rule 70. on or before the 10th day of each succeeding month. Inc v Dimatulac] The judgment rendered in an action for forcible entry or unlawful detainer shall be conclusive with respect to the possession only. justice or dignity of the court. Benguet Consolidated.

Listana (2003): Only the court which rendered the order commanding the doing of a certain act is vested with the right to determine whether or not the order has been complied with. For this power should be exercised on the preservative and not on the vindictive principle.  Any abuse of or any unlawful interference with the processes or proceedings of a court not constituting direct contempt. Kinds of contempt  Accdg to the Manner of Commission . after being dispossessed or ejected from any real property by the judgment or process of any court of competent jurisdiction. including the act of a person who. Recto. No court is authorized to punish a contempt against another.  The rescue or attempted rescue. or in the doing of a forbidden act. the proceedings are to be conducted in accordance with the principles and rules applicable to criminal cases [SEC v. obstruct or degrade the administration of justice.Criminal 193 b. Remedy against indirect contempt. and disobedience thereto does not constitute indirect contempt.REMEDIAL LAW REVIEWER [Heirs of Trinidad de Leon Vda. whether a contempt has been committed. [Patricio v. or in any manner disturbs the possession given to the person adjudged to be entitled thereto.  Failure to obey a subpoena duly served. process. 1999]. The power to determine the existence of contempt of court rests exclusively with the court contemned. directly or indirectly.  Disobedience of or resistance to a lawful writ. IAC (1999): A writ of execution issued by a court after 5 years from entry of final judgment is void. of a person or property in the custody of an officer by virtue of an order or process of a court held by him. 1995].3] TWO ASPECTS OF CONTEMPT OF COURT: c. [Rule 71. Remedy against direct contempt. Only occasionally should the court invoke its inherent power in order to retain that respect without which the administration of justice must falter or fail. remedial or compensatory in nature. But this must be wielded sparingly. or whether a sufficient reason has been given for noncompliance. 1995]. Suplico (1991)] Acts of indirect contempt:  Misbehavior of an officer of the court in the performance of his official duties or in his official transactions.1] Indirect Contempt (Constructive Contempt) A misbehavior perpetrated outside of the sitting of the court. and.Civil . Recto (1999): The violation of a TRO issued by the SEC or any quasi-judicial tribunal is criminal contempt so that acquittal of the respondents is unappealable. penalty d. thus. including:  disrespect toward the court  offensive personalities toward others  refusal to be sworn or to answer as a witness or to subscribe an affidavit/deposition when lawfully required to do so. It is conduct directed against or assailing the authority and dignity of the court or a judge. penalty . the solemnity of the proceedings therein and the administration of justice.  Assuming to be an attorney or an officer of the court. It can be punished summarily without hearing.Direct . Godoy. [People v. National Bookstore (2005). a. for the purpose of executing acts of ownership or possession.Indirect  Accdg to Nature . Godoy. as in unlawfully assailing or discrediting the authority and dignity of a court or a judge or in doing a forbidden act [People v. or judgment of a court. to impede. It is not within their jurisdiction and competence to decide the indirect contempt cases. CA (1998): The power to declare a person in contempt of court serves to protect and preserve the dignity of the court. and acting as such without authority.  Any improper conduct tending. punitive in nature. therefore. order. SEC v. Court of Appeals (2004)]  Civil Contempt is the failure to do something ordered to be done by a court or a judge for the benefit of the opposing party therein.  Criminal Contempt is conduct directed against the authority and dignity of a court or of a judge. Crucillo v. enters or attempts to or induces another to enter into or upon such real property. instituted for the benefit of private party. de Ramos v. [Encinas v. Panado v. Purpose and nature of each Direct Contempt (Contempt In Facie Curiae) A misbehavior committed in the presence of or so near a court or judge so as to obstruct or interrupt the proceedings before the same. These matters are still within the province of the RTCs. Rule 71. LandBank v. Quasi-judicial agencies that have the power to cite persons for indirect contempt pursuant to Rule 71 can only do so by initiating them in the proper RTC.

give testimony or produce documents when required to do so by the official or body exercising such powers. Appeal may be taken in proper courts as in criminal cases.g. to impede.  The rescue or attempted rescue.  Disobedience of or resistance to a lawful writ. Jr. [Inoturan v Limsiaco. or in any manner disturbs the possession given to the person adjudged to be entitled thereto. 92 Phil 570. 4-6] WHO COURT PARTY INITIATES MOTU PROPIO How it is By ORDER or By a VERIFIED PETITION initiated any WRITTEN with supporting CHARGE particulars and requiring certified true copy of respondent documents or papers to show involved and full cause why he compliance with the should not requirements for filing be held in initiatory pleadings in contempt. of a person or property in the custody of an officer by virtue of an order or process of a court held by him.REMEDIAL LAW REVIEWER e. ordinary civil actions. bodies or agencies exercising quasi-judicial functions.3] g. Where to file: RTC of the place wherein the contempt has been committed.‖ [Galvez v. .  Assuming to be an attorney or an officer of the court. order. make oath. The respondent ―carries the keys to his prison in his own pocket. Procedure for Indirect Contempt [Secs. or  in same lower court subject to appeal to higher court If hearing is not immediately conducted.] Rule 71. Contempt against quasi-judicial bodies Rule 71 applies to contempt committed against persons. or shall have suppletory effect to such rules as they may have adopted pursuant to authority granted to them by law to punish for contempt. unless the applicable law provides otherwise. [People v. respondent may be released upon filing of BOND in the amount fixed by the court. Admin Code of 1987] f.12] . [Land Bank v Listana (2003)] Rule 71. entities. for the purpose of executing acts of ownership or possession.  Any improper conduct tending. 3. Ch. proceedings are 194  Failure to obey a subpoena duly served.8 does not apply to tenants who refused or failed to pay their rentals to the special administratrix of the property. Execution of judgment shall not be suspended even by appeal UNLESS bond is filed conditioned upon the performance by the respondent of that judgment should it be decided against him on appeal. DARAB has no power to decide the contempt charge filed before it). Republic Surety & Insurance Co. [Regalado] Hearing and Bail Appeal Execution of Judgment h. Acts or violations against quasi-judicial bodies punishable as contempt: where a person. is covered by the constitutional guarantee against imprisonment. obstruct or degrade the administration of justice. and acting as such without authority. §13. The requirement for a verified petition must also be complied with (e. fails to appear. Acts deemed contempt punishable as indirect  Misbehavior of an officer of the court in the performance of his official duties or in his official transactions. Where it When the contempt is directed against is initiated an RTC or equivalent or higher rank: Same court When the contempt is directed against a lower court:  RTC of the place where the lower court is sitting. [Rule 71. without lawful excuse. Other acts or violations cannot be punished as contempt unless specifically defined in the governing law as contempt of court or if it authorizes the quasi-judicial body to punish for contempt. 944] Only the judge who ordered the confinement of the person for contempt of court can issue the Order of Release.It is not within the jurisdiction and competence of quasi-judicial bodies to decide indirect contempt cases. and providing the corresponding penalty. 105 Phil.12 confers contempt powers on all QuasiJudicial entities or supplements their rules. [Rule 71. The non-payment of rentals. [Rule 71.8]. after being dispossessed or ejected from any real property by the judgment or process of any court of competent jurisdiction. including the act of a person who. process. which is a civil debt. he may be imprisoned by order of the court concerned until he performs it. Mendoza. When imprisonment shall be imposed When the contempt consists in the refusal or omission to do an act which is yet in the power of the respondent to perform. enters or attempts to or induces another to enter into or upon such real property. Inc.  Any abuse of or any unlawful interference with the processes or proceedings of a court not constituting direct contempt. or judgment of a court. How contempt commenced See Annex G.. directly or indirectly. Bk VII.

2) Person in charge of the office The service does not bind individually any person whose connection with the entity was already severed before the service Serve upon the minor/incompetent and on his legal guardian. Sec. Service on person associated in an entity without juridical personality [Rule 14. Sec. serve by publication in a newspaper of general circulation. Service upon foreign private juridical entity [Rule 14. attached. 11] 5. plaintiff may apply for the appointment of a guardian ad litem. 10] If sued under the name by which they are commonly known – Serve upon either: 1) Any/all the defendants. by publication in a newspaper of general circulation . 14] With leave of court. 2) Action either: a) Affects the plaintiff‘s personal status. Sec. Service upon a resident temporarily out of the Philippines [Rule 14. With leave of court.REMEDIAL LAW REVIEWER Annex A 1. c) Demands a relief which consists wholly/partially in excluding the defendant from any interest in any property within the Philippines.  If there is no guardian. Service upon prisoner [Rule 14. Otherwise. 12] Service upon corporations [Rule 14. 16] Service upon a defendant whose identity or whereabouts are unknown [Rule 14. in which case copy of the summons and order of the court must also be sent by registered mail to the defendant‘s last known address. 13] Extraterritorial service [Rule 14. Modes of service: 1) With leave of court. 3) Any other manner the court deems sufficient The court order granting extraterritorial service shall specify a period of at least 60 days within which the defendant must answer. 9. serve outside the Philippines by personal service. Serve upon the officer having management of the jail/prison Serve upon either the: 1) President 2) Managing partner 3) General manager 4) Corporate secretary 5) Treasurer 6) In-house counsel Serve upon the resident agent. Sec. Sec. b) Relates to or the subject matter of which is property within the Philippines in which defendant has a lien/interest.  If minor. may serve on his parents. 4. Sec. d) Has defendant‘s property in the Philippines. may serve extraterritorially 195 2. upon either: 1) Government official designated by law. 8] Service upon minors and incompetents [Rule 14. 15] public 6. 7. Sec. Sec. or 2) With leave of court. 8. 9] Service upon domestic private juridical entity [Rule 14. 2) Any officer or agent of the corporation within the Philippines If the defendant is the Republic of the Philippines – Serve upon the OSG If the defendant is a province/city/municipality or like public corporations – Serve upon the executive head or other officers as the law/court may direct Requisites: (Asked in the 1997 and 2008 Bar Exam) 1) Defendant does not reside or is not found in the Philippines. 3. Sec.

oppressive. by or on behalf of the moving party.  which constitute or contain evidence material to any matter involved in the action and which are in his possession. or photographing the property or any designated relevant object or operation thereon. ORDER FOR PRODUCTION OR INSPECTION Order any party to produce and permit the inspection and copying or photographing. documents. surveying. custody or control. measuring. not privileged. or  the person in whose behalf the subpoena is issued fails to advance the reasonable costs of the production thereof Constitutes contempt of the court from which the subpoena is issued Issued upon motion (application with notice to the other party) YES No good cause shown Consequence disobedience of See Sec.REMEDIAL LAW REVIEWER Annex B SUBPOENA DUCES TECUM Process requiring a person to bring with him any books. irrelevant. 3. books. objects or tangible things. documents.  of any designated documents. photographs. Rule 29 . or Order any party to permit entry upon designated land or other property in his possession or control for the purpose of inspecting. letters. papers. Only to a party Before and/or during trial Issued by the court where the action is pending 196 Nature To whom directed When it may be asked Issued by whom When issued W/N it is necessary to show good cause Grounds for quashal To any person Only during trial Issued by a court before whom the witness is required to attend. or other things under his control or possession. accounts. or court where the deposition is to be taken or clerk or body authorized by law or any justice of the Supreme Court or CA in any case or investigation pending within the Philippines Issued upon request to the clerk (no notice) NO  unreasonable.

including attorney's fees. and  if it also finds that the refusal to answer was without substantial justification. Expenses on refusal to admit. Other consequences. or the physical or mental condition of the party. including attorney's fees. If a party or other deponent refuses to answer any question upon oral examination  the examination may be completed on other matters or  adjourned as the proponent of the question may prefer. 24. REFUSAL TO ANSWER.  or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order. by MOTION FOR THE ISSUANCE OF AN ORDER TO COMPEL AN ANSWER) to the proper court of the place where the deposition is being taken. or the character or description of the thing or land.  RULE 24 (depositions in perpetua rei memoriam)  RULE 25. it may require the refusing party or deponent or the counsel advising the refusal. or  staying further proceedings until the order is obeyed. INTERROGATORIES TO PARTIES 197 PARTY OR WITNESS IN  RULE 23 (depositions de bene esse). to pay the proponent the amount of the reasonable expenses incurred in obtaining the order. an order directing the arrest of any party or agent of a party for disobeying any of such orders except an order to submit to a physical or mental examination. to pay to the refusing party or deponent the amount of the reasonable expenses incurred in opposing the application. the refusal may be considered a contempt of that court. Section 4. or  rendering a judgment by default against the disobedient party. Section 2. IF THE APPLICATION IS GRANTED  the court shall require the refusing party or deponent to answer the question or interrogatory. The proponent may thereafter apply (i.REMEDIAL LAW REVIEWER Annex C PROVISION HIGHLIGHTS Section 1. or both of them. THE AGGRIEVED PARTY MAY APPLY FOR: An order  that the matters regarding which the questions were asked. the court may require the proponent or the counsel advising the filing of the application. If a party or other witness  refuses to BE SWORN OR  refuses to answer any question after being directed to do so by the court of the place in which the deposition is being taken. or both of them. If a party after being served with a request under Rule 26  refuses to admit the genuineness of any document or the truth of any matter of fact and  serves a sworn denial thereof. 25 who refuses to obey an order made under RULE 29 Section 1 PARTY who refuses to obey an order under RULE 27 to produce any document or other thing for inspection.  RULE 24 (depositions in perpetuam rei memoriam) PARTY or an OFFICER OR MANAGING AGENT OF A PARTY in RULE 23. Section 3. or  from introducing evidence of physical or mental condition. An order  striking out pleadings or parts thereof. An order  refusing to allow the disobedient party to support or oppose designated claims or defenses or  prohibiting him from introducing in evidence designated documents or things or items of testimony. for an order to compel an answer. or the contents of the paper. or to permit entry upon land PARTY who refuses to obey an order made under RULE 28 requiring him to take a physical examination (APPLIES TO all modes of discovery except RULE 26 ON REQUEST FOR ADMISSION BY AN ADVERSE PARTY) PARTY SERVED WITH A REQUEST RULE 26 ADMISSION BY AN ADVERSE PARTY . and  if the party requesting the admissions thereafter proves the genuineness of such document or the truth of any such matter of fact APPLICABILITY PARTY OR DEPONENT /WITNESS IN  RULE 23 (depositions de bene esse). or  dismissing the action or proceeding or any part thereof. and IN LIEU OF ANY OF THE FOREGOING ORDERS OR IN ADDITION THERETO. Contempt of court.e. IF THE APPLICATION IS DENIED and the court finds that it was filed without substantial justification..

or fails to serve answers to interrogatories submitted under Rule 25 after proper service of such interrogatories. Expenses and attorney's fees are not to be imposed upon the Republic of the Philippines under this Rule APPLICABILITY 198 PARTY OR AN OFFICER OR MANAGING AGENT OF A PARTY RULE 23 (depositions de bene esse). The court on motion and notice. may strike out all or any part of any pleading of that party. Unless the court finds THAT THERE WERE GOOD REASONS FOR THE DENIAL OR THAT ADMISSIONS SOUGHT WERE OF NO SUBSTANTIAL IMPORTANCE. SUCH ORDER SHALL BE ISSUED. If a party or an officer or managing agent of a party wilfully fails to appear before the officer who is to take his deposition. SECTION 5. order him to pay reasonable expenses incurred by the other.REMEDIAL LAW REVIEWER PROVISION HIGHLIGHTS  he may apply to the court for an order requiring the other party to pay him the reasonable expenses incurred in making such proof. including attorney's fees SECTION 6. or dismiss the action or proceeding or any part thereof. FAILURE OF PARTY TO ATTEND OR SERVE ANSWERS. and in its discretion. or enter a judgment by default against that party. after being served with a proper notice. EXPENSES AGAINST THE REPUBLIC OF THE PHILIPPINES. including attorney's fees. . RULE 24 (depositions in perpetuam rei memoriam) RULE 25 INTERROGATORIES TO PARTIES Applies to all provisions in Rule 29 requiring a noncompliant party or witness (who represents the Republic in an official capacity) to pay.

submitting therewith certified true copies of the judgment or judgments or final order or orders sought to be enforced and of the entry thereof.REMEDIAL LAW REVIEWER Annex D JUDGMENT OR FINAL ORDER (order that disposes of the action or proceeding) 199 If no appeal has been perfected. with notice to the adverse party1. direct the court of origin to issue the writ of execution. or the period of appeal has expired If an appeal has been perfected and duly resolv ed. on motion in the same case. The appellate court may. when the interest of justice so requires. . there are two ways by whic h execution can be carried out Prevailing Party applies (by motion) for a writ of execution. whic h is granted by the judge since it is a matter of right Prevailing party files a motion in the court of origin .

Discretionary execution may be granted only for GOOD REASONS to be stated in a SPECIAL ORDER. The bond thus given m ay be proceeded against on motion with notice to the surety IN CASE the judgment w hic h was executed pending appeal is reversed totally or partially. the trial court may. on appeal or otherwise. as the case may be. prevailing party files the motion for execution pending appeal in the appellate court. on motion. Situation 2: Trial court has lost jurisdiction In Situation1. prevailing party files a MOTION WITH NOTICE TO THE ADVERSE PARTY in the Trial Court. issue such orders of restitution or reparation of dam ages as equity and justice m ay w arrant under the circumstances . or annulled.REMEDIAL LAW REVIEWER Annex E 200 Situation 1: Trial Court still has jurisdiction over the case and is in possession of either the original record or the record on appeal. In Situation2. conditioned upon the performance of the judgment or order allowed to be executed in case it shall be finally sustained in whole or in part. NOTE HOWEVER that Discretionary execution may be stayed upon approval by the proper court of a SUFFICIENT SUPERSEDEAS BOND FILED by the party against whom it is directed.

 accompanied by a certified true copy of the subject judgment. and a certification of non-forum shopping.REMEDIAL LAW REVIEWER Annex F CERTIORARI (Asked in 2000 and 2006 Bar Exams)  When any tribunal. officer or person. board. speedy. and a certification of non-forum shopping. tribunal.5] . speedy and adequate remedy in the ordinary course of law. or ministerial functions. speedy and adequate if it will promptly relieve the petitioner from the injurious effects of the judgment and the acts of the lower court or agency. whether exercising judicial. and adequate remedy2 in the ordinary course of law.  accompanied by a certified true copy of the subject judgment.without or in excess of its jurisdiction.2) Purpose To prevent the commission or carrying out of an act Act sought to be controlled Discretionary and ministerial acts Petitioner Aggrieved person Respondent3 Those exercising judicial and/or non-judicial functions Form of petition  verified  alleging the facts with certainty  PRAYER: that judgment be rendered commanding the respondent to desist from further proceedings in the action or matter specified therein. MANDAMUS (Asked in the 2006 Bar Exam)  When any tribunal. 1 Without jurisdiction Excess of jurisdiction Grave abuse of discretion If respondent does not have the legal power to determine the case If respondent has the legal power to determine the case but oversteps such power If respondent has the legal power to determine the case but acts in a capricious. and to pay the damages sustained by the petitioner by reason of the wrongful acts of the respondent.. whimsical. (R65. as private respondent or respondents with such public respondent or respondents. and it shall be the duty of such private respondents to appear and defend.unlawfully excludes another from the use and enjoyment of a right or office to which such other is entitled  AND there is no other plain.with grave abuse of discretion amounting to lack or excess of its or his jurisdiction  AND there is no appeal or any other plain. speedy. However. (R65. and adequate remedy in the ordinary course of law. officer or person. or any plain. etc. [Silvestre vs. the petitioner shall join. the person or persons interested in sustaining the proceedings in the court.without or in excess of its or his jurisdiction. arbitrary or despotic manner in the exercise of his judgment A remedy is plain. to do the act required to be done to protect the rights of the petitioner. unless otherwise specifically directed by the court. etc. quasi-judicial agency.. immediately or some other time to be specified by the court. officer or person . they shall not appear or participate in the proceedings therein.with grave abuse of discretion amounting to lack or excess of its or his jurisdiction1  AND there is no appeal. are . copies of all relevant pleadings and documents. court. both in his or their own behalf and in behalf of the public respondent or respondents affected by the proceedings. corporation. or . (R65.3) To compel the performance of the act desired Ministerial acts Aggrieved person Those exercising judicial non-judicial functions and/or 201  verified  alleging the facts with certainty  PRAYER: that judgment be rendered commanding the respondent. corporation. corporation. or otherwise granting such incidental reliefs as law and justice may require. copies of all relevant pleadings and documents. and granting such incidental reliefs as law and justice may require. board or officer exercising judicial or quasi-judicial functions has acted: .unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office. [Rule 65. quasi-judicial.1) To correct an act performed by the respondent Discretionary acts Aggrieved person Those exercising judicial or quasijudicial functions  Verified  alleging the facts with certainty  PRAYER: that judgment be rendered annulling or modifying the proceedings of such tribunal. board. or .  contains a certificate of nonforum shopping. or . Torres (1946)] 2 When the petition filed relates to the acts or omissions of a judge.. the public respondents shall be included therein as nominal parties. PROHIBITION Grounds  When the proceedings of any tribunal. trust or station. board. xxx 3 If the case is elevated to a higher court by either party. etc.

1] both [Rule 71. The person guilty of misbehavior is summarily The person guilty of misbehavior may be adjudged by the court against which the punished only after charge in writing has been contempt was committed at the very moment filed. but subject to certiorari or May be appealed to the proper court as in prohibition. by a VERIFIED PETITION. or IMPRISONMENT = not exceeding 1 day.4] No appeal. the petition for contempt shall allege that fact.) [Rule 71.000.  In all other cases. or FINE = not exceeding P30. [Rule 71. to be heard by himself or counsel [Rule 71.11] 202 Punishment How proceedings commenced Remedy .2] suspended until BOND is filed. 3 are done. a court of equivalent or higher rank: FINE = not exceeding P2. criminal cases. [Rule 71. heard and decided separately. or FINE = not exceeding P5. and an opportunity given to the accused of the perpetration.3] [Rule 71. or IMPRISONMENT = not exceeding 6 months.1] If the contempt is directed against an RTC. or both IMPRISONMENT = not exceeding 1 month. unless the court in its discretion orders the consolidation of the contempt charge and the principal action for joint hearing and decision.7] Summarily adjudged by the court against which  By the court motu propio thru an ORDER or the contempt is directed and punished there any formal charge and then. or both both If the contempt is directed against a lower court: FINE = not exceeding P200. but execution shall not be [Rule 71.000.REMEDIAL LAW REVIEWER Annex G Direct Contempt How Committed Nature of Proceedings Indirect Contempt Can be committed only in the presence of or so Can be committed anywhere as long as the near a court or judge. or [Rule 71. acts mentioned in Sec.1] (If the contempt charges arose out of or are related to a principal action pending in the court. or IMPRISONMENT = not exceeding 10 days. but said petition shall be docketed.000.

Ara Garcia |Events OPERATIONS HEADS Charles Icasiano • Katrina Rivera |Hotel Operations Marijo Alcala • Marian Salanguit |Day-Operations Jauhari Azis |Night-Operations Vivienne Villanueva • Charlaine Latorre |Food Kris Francisco Rimban • Elvin Salindo |Transpo Paula Plaza |Linkages UP LAW BAR OPERATIONS COMMISSION . Domingo • Katrina Maniquis |Mock Bar Krizel Malabanan • Karren de Chavez |Bar Candidates’ Welfare Karina Kirstie Paola Ayco • Ma. • Rafaella Carmela Reyes • Elaine Tiu LAYOUT TEAM 2012 Layout Artists | Alyanna Apacible • Noel Luciano • RM Meneses • Jenin Velasquez • Mara Villegas • Naomi Quimpo • Leslie Octaviano • Yas Refran • Cris Bernardino Layout Head| Graciello Timothy Reyes COMMITTEE HEADS Eleanor Balaquiao • Mark Xavier Oyales | Acads Monique Morales • Katleya Kate Belderol • Kathleen Mae Tuason (D) • Rachel Miranda (D) |Special Lectures Patricia Madarang • Marinella Felizmenio |Secretariat Victoria Caranay |Publicity and Promotions Loraine Saguinsin • Ma. Jr. Luz Baldueza |Marketing Benjamin Joseph Geronimo • Jose Lacas |Logistics Angelo Bernard Ngo • Annalee Toda|HR Anne Janelle Yu • Alyssa Carmelli Castillo |Merchandise Graciello Timothy Reyes |Layout Charmaine Sto.CRIMINAL LAW REVIEWER 2012 UP L AW BAR REVIEWER Evidence BAR OPERATIONS COMMISSION 2012 EXECUTIVE COMMITTEE Ramon Carlo Marcaida |Commissioner Raymond Velasco • Mara Kriska Chen |Deputy Commissioners Barbie Kaye Perez |Secretary Carmen Cecilia Veneracion |Treasurer Hazel Angeline Abenoja|Auditor 203 REMEDIAL LAW REMEDIAL LAW TEAM 2012 Subject Head | Eden Mopia Evidence Subject Head | Arianne Cerezo Contributors | Gianna Maria Comsti • Rose Andrea Milaor • Armando Mislang.

figures. 1] Documentary Consist of writings or any material containing letters. words. III]  Positive and negative evidence Positive Evidence Witness affirms that a fact did or did not occur Negative Evidence Witness states he/she did not see or know of the occurrence of a fact (e. sanctioned by these rules. and testimonial Object Addressed to the senses of the court. Documentary Evidence V. 27. 1. sec. documentary. Rule 128] B. symbols or other modes of written expressions offered as proof of their contents [Rule 130. 2] Testimonial Testimony or deposition of a witness A. Concept of Evidence B. 2. 2. Rule 133] Offer of compromise NOT an admission of any liability [sec. denial) F. Scope of the Rules of Evidence C. [sec. numbers. Rule 128] EXCEPTIONS: If otherwise provided by: (1) Law (e. Liberal Construction of the Rules of Evidence J. 1987 Constitution. Object (Real) Evidence IV. Rule 133] Offer of compromise by the accused may be received in evidence as an implied admission of guilt (except for quasi-offenses or those allowed by law to be compromised) [sec. Rule 128]  Direct and circumstantial evidence Direct Evidence Proves the fact in dispute without the aid of any inference or presumption Circumstantial Indirectly proves a fact in issue through an inference drawn from the evidence established C.g. Quantum of Evidence (Weight And Sufficiency of Evidence) Classification of evidence  Object. Proof Versus Evidence Proof NOT the evidence itself. statutes). the truth respecting a matter of fact [sec. Evidence in Criminal Cases D. of ascertaining in a judicial proceeding. Evidence in Civil Cases Versus Evidence in Criminal Cases In Civil Cases Preponderance of evidence [sec.g. 1. Rule 130] Presumption of innocence a constitutional guarantee on the accused [sec. Factum Probans Versus Factum Probandum F. Rule 130] In Criminal Cases Proof beyond reasonable doubt [sec.REMEDIAL LAW REVIEWER 204 Criminal Procedure Civil Procedure Evidence Special Proceedings Evidence REMEDIAL LAW General Principles Judicial Notice and Judicial Admissions III. Admissibility of Evidence Requisites for admissibility of evidence Evidence is admissible when it is (1) relevant to the issue AND Presumption innocence NOT apply of does .. 14. (2) Rules of Court. GENERAL PRINCIPLES A. Burden of Proof and Burden of Evidence H. D. Evidence in Civil Cases vs. 2. Scope of the Rules of Evidence GENERAL RULE: Principle of uniformity Rules of evidence shall be the same in all courts and in all trials and hearings. Sec. Art. Concept of Evidence The means. Presumptions I. Proof Versus Evidence E. [sec. Offer and Objection I. Admissibility of Evidence G.. but the probative effect of evidence Evidence The medium or means by which a fact is proved or disproved E. Testimonial Evidence VI. Factum Probans Versus Factum Probandum Factum Probans Facts or material evidencing the proposition The evidentiary fact tending to prove the fact in issue Factum Probandum The proposition to be established The fact in issue and to which the evidence is directed I. 27. [Rule 130. II.

Curative admissibility Where the court has admitted incompetent evidence adduced by the adverse party. 12. ―believability‖ Relevance of evidence and collateral matters Relevancy Evidence must have such a relation to the fact in issue as to induce belief in its existence or nonexistence. such evidence may be received.Art. prohibition of secret detention places. [Sec.A. violence. 201. 4. [Sec. 2-3.  As distinguished from credibility of evidence Competence Eligibility of evidence to be received as such Credibility Worthiness of belief. by tapping any wire/cable or using any other device/arrangement to secretly overhear/intercept/record such information by using any device..g.REMEDIAL LAW REVIEWER (2) not excluded by law or the ROC. III] Statutory Lack of documentary stamp tax to documents required to have one makes such document inadmissible as evidence in court until the requisite stamp/s shall have been affixed thereto and cancelled. [Rule 128. [Sec. NIRC] Any communication obtained by a person. 4200 (WireTapping Act)] Rules on Electronic Evidence [sec. Sec.] 205 Doctrines of admissibility Multiple admissibility Where the evidence is relevant and competent for two or more purposes. provided it satisfies all the requisites of law for its admissibility therefor. Conditional admissibility Where the evidence at the time of its offer appears to be immaterial or irrelevant unless it is connected with the other facts to be subsequently proved. prohibition of torture. Exclusionary rules of evidence by law are either constitutional or statutory. R. ―believability‖ No person shall be compelled to be a witness against himself. 4. Constitutional Unreasonable searches and seizures. the evidence already given shall be stricken out. 1 and 4.III] . [Sec. shall not be admissible in evidence in any judicial/quasijudicial/legislative/ administrative hearing or investigation. incommunicado. solitary. [secs. [Secs. such evidence shall be admitted for any or all the purposes for which it is offered. not being authorized by all the parties to any private communication. denial) Miranda Rights: right to counsel. Art. Art. Rule 130 is the applicable rule in determining the admissibility of evidence. Rule 128] NOTE: What is prohibited by the Rules is not evidence of all collateral matters. Rule 128] Collateral matters – matters other than the fact in issue which are offered as a basis for inference as to the existence or non-existence of the facts in issue General Rule: Evidence on collateral matters is NOT allowed. Direct and circumstantial evidence Direct Evidence Proves the fact in dispute without the aid of any inference or presumption Circumstantial Indirectly proves a fact in issue through an inference drawn from the evidence established Positive and negative evidence Positive Evidence Witness affirms that a fact did or did not occur Negative Evidence Witness states he/she did not see or know of the occurrence of a fact (e. [Sec. but evidence of irrelevant collateral facts. threat. Rule 128] Exception: When it tends in any reasonable degree to establish the im/probability of fact in issue. III] Competent and credible evidence Competence Eligibility of evidence to be received as such Credibility Worthiness of belief.17. a party has a right to introduce the same kind of evidence in his/her behalf. [sec. force. privacy of communication and correspondence. provided that the other facts will be proved thereafter. 4. intimidation or other means which vitiate the free will. 3]  Under the ROC. otherwise. Competence Evidence not excluded by (i) law or (ii) the ROC. 1.Rule 9.

rules of evidence must be liberally construed. (3) The witnesses‘ interest or want of interest. Rule 1] Rules on Electronic Evidence shall likewise be construed liberally. as a whole. the nature of the facts to which they testify. [Boac v People (2008)] II. Rules on Electronic Evidence] Clear and convincing evidence Standard of proof required in granting or denying bail in extradition cases [Government of Hongkong Special Administrative Region v Olalia. Rule 133] Generally determined by the pleadings filed by the party H. the court may consider: (1) All the facts and circumstances of the case. Law of Nations and Municipal Ordinance A. Disputable presumptions Conclusive Presumption becomes irrebuttable upon presentation of the evidence Disputable Satisfactory if uncontradicted. [sec. D. Rule 133] The burden is on the prosecution to prove guilt beyond reasonable doubt. Conclusive presumptions 2. Rule 133] Means that the evidence adduced by one side is. C. 1. 6. [Ubales v People (2008). Presumptions 1. What Need Not be Proved (1) Facts of Judicial Notice (2) Judicial Admissions (3) Conclusive Presumptions . 3. Rule 133] Only moral certainty is required – that degree of proof which produces conviction in an unprejudiced mind. 2. Burden of Proof and Burden of Evidence Burden of Proof Duty of a party to present evidence on the facts in issue necessary to establish his/her claim or defense by the amount of evidence required by law [Sec. 1. Bank of the Philippine Islands v Reyes (2008)] In determining preponderance of evidence. and also their personal credibility so far as the same may legitimately appear upon the trial.REMEDIAL LAW REVIEWER 206 G. superior to or has greater weight than that of the other. 5. B. but may be contradicted and overcome by other evidence [sec. (2) The witnesses‘ manner of testifying. 2. What Need Not be Proved Matters of Judicial Notice Judicial Admissions Judicial Notice of Foreign Laws. Inc. Liberal Construction of the Rules of Evidence Like all other provisions under the ROC. 1. Rule 133] The amount of relevant evidence which a reasonable mind might accept as adequate to support a conclusion [sec. their intelligence. or by the provisions of substantive or procedural law The prosecution must not rely on the weakness of the evidence of the defense. Quantum of Evidence (Weight And Sufficiency of Evidence) Proof beyond reasonable doubt Applicable quantum of evidence in criminal cases [sec. but higher than preponderance of evidence J. [sec. their means and opportunity of knowing the facts to which they testify. [sec. (4) Number of witnesses (although preponderance is not necessarily equated with the number of witnesses). 2. Rule 133] I. (2007)] Intermediate in character – lower than proof beyond reasonable doubt. [sec. Rule 131] Substantial evidence Degree of evidence required in cases filed before administrative or quasi-judicial bodies [sec. Rule 2. JUDICIAL NOTICE AND JUDICIAL ADMISSIONS A. 5. the im/probability of their testimony. Jr. NOT on the accused to prove his/her innocence.(2005). People v Hu (2008)] Preponderance of evidence Applicable quantum of evidence in civil cases [sec. Rule 131] Does not shift throughout the trial Burden of Evidence Duty of a party to go forward with the evidence to overthrow any prima facie presumption against him/her [Bautista v Sarmiento (1985)] Shifts from party to party depending upon the exigencies of the case in the course of the trial Generally determined by the developments at the trial. [Habagat Grill v. DMC-Urban Property Developer.

4. or (2) When the original or part of the records of the case is actually withdrawn from the archives at the court‘s discretion upon the request. (8) Obligation delivered up to the debtor has been paid. Rule 131] (1) Whenever a party has. (7) Laws of nature. (2) must be made in the course of the proceedings in the same case. (2) Their political history. Arroyo (1965)] Exceptions: (1) When there is no objection. 3. loses its character as a judicial admission. Conclusive presumptions Instances of Conclusive Presumptions [Sec. Rule 129] (2) It is conclusive upon the party making it. CANNOT be contradicted. [Torres v CA (1984)] A party who judicially admits a fact cannot later challenge that fact as judicial admissions are a waiver of proof. [Sec.] Effect of judicial admissions (1) It does NOT require proof. (7) Thing delivered by one to another belonged to the latter. 4.REMEDIAL LAW REVIEWER (3) may be verbal or written. (3) Law of nations. (4) Admiralty and maritime courts of the world and their seals. [sec. (8) Measure of time. Rule 129] Judicial notice is NOT judicial knowledge. [sec. CA (1991)] As an exception to the general rule. [Prieto v. the contents of said other case are clearly referred to and adopted or read into the record of the latter. by his own declaration/act/omission. or with the consent. after being amended. (2) Unlawful act is done with an unlawful intent. be permitted to falsify it. It becomes merely an extrajudicial admission requiring a formal offer to be admissible. [Republic v Court of Appeals (1997)] With Respect to Records of Other Cases  General Rule: Courts CANNOT take judicial notice of the contents or records of other cases even if both cases may have been tried or are pending before the same judge. (2) The tenant is not permitted to deny the title of his landlord at the time of the commencement of the relation of landlord and tenant between them. (3) Person intends the ordinary consequences of his voluntary act. (10) A person found in possession of a thing taken in . and symbols of nationality. forms of government. 2. executive and judicial departments of the Philippines. of the parties. he cannot. which would have required no proof. [sec. (6) Official acts of the legislative. Rule 129] How judicial contradicted admissions may be Discretionary (1) Matters of public knowledge. Rule 129] [NOTE: Discussed in detail in the succeeding subsections. (6) Money paid by one to another was due to the latter. and (1) Person is innocent of a crime or wrong. Rule 131] Disputable C. 1. (2) Matters capable of unquestionable demonstration. (5) Political constitution and history of the Philippines. Matters of Judicial Notice Mandatory (Without need of introduction of evidence) (1) Existence and territorial extent of states. and (9) Geographical divisions. Rule 129] An original complaint. 4. judicial admissions may be contradicted only by showing that: (1) It was made through palpable mistake. the same: (1) must be made by a party to the case. [Alfelor v Halasan (2006] 207 B. (4) Person takes ordinary care of his concerns. and (3) Matters ought to be known to judges because of their judicial functions. (2) No such admission was made. (5) Evidence willfully suppressed would be adverse if produced. production of evidence is dispensed with.  As Distinguished from Presumptions [Sec. and admitted as part of the record of the pending case [Tabuena v. in any litigation arising out of such declaration/act/omission. With Respect to Court’s Own Acts and Records: A court MAY take judicial notice of its own acts and records in the same case. 2. with the knowledge of the opposing party. intentionally and deliberately led another to believe a particular thing is true and to act upon such belief. (9) Prior rents or installments had been paid when a receipt for the later ones is produced. [sec. Judicial Admissions Requisites To be a judicial admission. and hence.

but where there is danger of death. (d) the survivorship is determined from the probabilities resulting from the strength and the age of the sexes: . (34) A printed/published book. (33) A printed/published book. (22) Letter duly directed and mailed was received in the regular course of the mail. (12) Person acting in public office was regularly appointed or elected to it. (30) Presumptions governing children of women who contracted another marriage within 300 days after termination of her former marriage (in the absence of proof to the contrary): When Child was Born Before 180 days after the solemnization of the subsequent marriage After 180 days following the celebration of the subsequent marriage Presumption Considered to have been conceived during the former marriage. (20) An indorsement of negotiable instrument was made before the instrument was overdue and at the place where the instrument is dated. (13) Official duty has been regularly performed. (c) and there are no particular circumstances from which it can be inferred. even though it be born within the 300 days after the termination of the former marriage. (15) All the matters within an issue raised in a case were laid before the court and passed upon by it. he is considered dead for all purposes. that things which a person possesses or exercises acts of ownership over. (27) A man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage. except for those of succession (ii) 10 years—the absentee shall be considered dead for the purpose of opening his succession. 208 (31) A thing once proved to exist continues as long as is usual with things of the nature. are owned by him. it being unknown WON the absentee still lives. (26) Persons acting as copartners have entered into a contract of co-partnership. was so printed/published.REMEDIAL LAW REVIEWER the doing of a recent wrongful act is the taker and doer of the whole act. and has been missing for 4 years (iii) A person who has been in danger of death under other circumstances and whose existence has not been known for 4 years (24) Acquiescence resulted from a belief that the thing acquiesced in was conformable to the law/fact. (11) Person in possession of an order on himself for the payment of the money or the delivery of anything has paid the money or delivered the thing accordingly. (25) Things have happened according to the ordinary course of nature and ordinary nature habits of life. (21) A writing is truly dated. all matters within an issue raised in a dispute submitted for arbitration were laid before arbitrators and passed upon by them. but if he disappeared after the age of 75 years. (29) In cases of cohabitation by a man and a woman who are not capacitated to marry each other and who have acquired property through their actual joint contribution of money. such contributions and their corresponding shares including joint deposits of money and evidences of credit are equal. whether in the Philippines or elsewhere. (35) A trustee or other person whose duty it was to convey real property to a particular person has actually conveyed it to him when such presumption is necessary to perfect the title of such person or his successor in interest. who has not been heard of for 4 years since the loss of the vessel or aircraft (ii) A member of the armed forces who has taken part in armed hostilities. (18) There was a sufficient consideration for a contract. an absence of 5 years shall be sufficient to open his succession (iii) 4 consecutive years—the spouse present may contract a subsequent marriage if s/he has a well-founded belief that the absent spouse is already dead. otherwise. purporting to contain reports of cases adjudged in tribunals of the country where the book is published. contains correct reports of such cases. (28) Property acquired by a man and a woman who are capacitated to marry each other and who live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage. purporting to be printed/published by public authority. or an aircraft which is missing. was acting in the lawful exercise of jurisdiction. (14) A court or judge acting as such. (b) and it is not shown who died first. (16) Private transactions have been fair and regular. an absence of only 2 years shall be sufficient for remarriage (b) Qualified absence (i) A person on board a vessel lost during a sea voyage. (36) Presumptions regarding survivorship: (Applicable for all purposes except succession) (a) When 2 persons perish in the same calamity. (32) The law has been obeyed. work or industry. property or industry. provided it be born within 300 days after the termination of the former marriage Considered to have been conceived during the subsequent marriage. has been obtained by their joint efforts. (23) Presumptions concerning absence: (a) Ordinary but continued absence of: (i) 7 years. (17) Ordinary course of business has been followed. (19) Negotiable instrument was given or indorsed for a sufficient consideration.

No. the foreign law will be presumed to be the same as the laws of the jurisdiction hearing the case. they shall be considered to have died at the same time. 36. 46. 2. [Sec. 1 of Rule 129. Nature of Object Evidence Those addressed to the senses of the court [sec. A. C. [People v. it may be exhibited to. [sec. Nature of Object Evidence Requisites for Admissibility Categories of Object Evidence Demonstrative Evidence View of an Object or Scene Chain of Custody in Relation to Section 21 of the Comprehensive Dangerous Drugs Act of 2002 G. II. [City of Manila v. Sy-Gonzales (1988)]  Exceptions: The court may take judicial notice of the foreign law: (1) Under the Doctrine of Processual Presumption: In the absence of proof. [People v. which are derived from his/her own perception. that is. Art. 06-11-5SC) (37) As between 2 or more persons called to succeed each other: If there is a doubt as to which of them died first. morals or decency. unnecessary expenses. Saavedra] Competent Evidence be Authenticated To authenticate the object is to show that the object is the very thing that is either the subject matter of the lawsuit or the very one involved to prove an issue in the case. Rule 130] Law of Nations The Philippines adopts the generally accepted principles of international law as part of the law of the land. and the other between those ages 209 III.REMEDIAL LAW REVIEWER Person presumed to have survived The older The younger The one <15 The male The older The one between those ages Exception: If the charter of the concerned city provides for such judicial notice [City of Manila v. subject to mandatory judicial notice under sec. [Sec. In the absence of proof. whoever alleges the death of one prior to the other.M. Garcia (1967)] . (2) It would result in delays. [Northwest Orient Airlines v Court of Appeals (1995)] (2) Where the foreign law is within the actual knowledge of the court such as when the law is generally well-known. B. [Yao-Kee v. Authentication be Made by Competent Witness To authenticate the object. periodical or pamphlet and the writer is recognized in his/her profession or calling as expert in the subject [sec. Judicial Notice of Foreign Laws. the other > 60 y/o Both > 15 and < 60 y/o. Requisites for Admissibility Relevant General Rule: When an object is relevant to the fact in issue. examined or viewed by the court. they are therefore in the nature of local laws. Rule 130] The right against self-incrimination CANNOT be invoked against object evidence. F. 1987 Constitution] Being part of the law of the land. Rule 130] B. Municipal Ordinances General Rule: Courts are NOT mandated to take judicial notice of municipal ordinances. out of proportion to the evidentiary value of such object. of the same sex One < 15 or > 60 y/o. shall prove the same. had been ruled upon in previous cases before it and none of the parties claim otherwise [PCIB v Escolin (1974)] (3) When the foreign law is part of a published treatise. OBJECT (REAL) EVIDENCE A. 1. Law of Nations and Municipal Ordinance Foreign Laws  General Rule: Courts cannot take judicial notice of foreign laws. D. the witness must have the capacity to identify the object as the very thing involved in the litigation. D. Garcia (1967)] Situation Both < 15 y/o Both > 60 y/o One < 15 y/o. 1. and hence. Tavera] (3) Evidence would be confusing or misleading. of different sexes Both > 15 and <60 y/o. Rule on DNA Evidence (A. E. inconvenience. Rule 130] Exceptions: Court may refuse exhibition of object evidence and rely on testimonial evidence alone if: (1) Exhibition is contrary to public policy. A witness can testify to those facts which he/she knows of his/her personal knowledge.

M. motion pictures and recordings Audio. [sec. or his/her representative or counsel (b) representative from the media and the Department of Justice (c) any elected public official (4) who shall be required to sign the copies of the inventory and be given a copy thereof.g. 1. order a DNA testing. Rule on DNA Evidence (A. Art. The issue if there is non-compliance with the law is not admissibility. 34.g.. or (3) in the absence or unavailability of such witnesses.A. 3c] Application for DNA testing order With prior court order (1) The appropriate court may. and (2) photograph the same. rather it represents or ―demonstrates‖ the real thing.. narcotic substances F.. 1(k). 21. explained or authenticated (a) by the person who made the recording. presented or displayed to the court. a typical kitchen knife with identifying marks placed on it by the witness  Non-Unique Objects . Categories of Object Evidence The ―Thing Itself‖  Unique Objects . (2) by the testimony of a person who has personal knowledge thereof. acts or transactions shall be admissible provided it shall be: (1) shown. View of an Object or Scene When an object is relevant to the fact in issue. [Sec. R. II. and (2) identified. Rule 2. e. at any time. streaming audio.Objects that have readily identifiable marks. particularly the making of the inventory and their photographing of the drugs confiscated will not render the drugs inadmissible in evidence. In Relation to Drug Cases The apprehending team having initial custody and control of the drugs shall: (1) physically inventory. No. photographic and video evidence [sec. Rules on Electronic Evidence] Ephemeral electronic communications Refers to telephone conversations. 21 of R. 9165. photographic and video evidence of events. 2. Demonstrative Evidence Not the actual thing. but of weight – evidentiary merit or probative value. and other electronic forms of communication the evidence of which is not recorded or retained. photographs. streaming video. e. by other competent evidence [sec. Rules on Electronic Evidence] When recorded. as cited in People v Dela Cruz (2008) and People v Agulay (2008)] D. Rules on Electronic Evidence]. Rule 130] . or (b) by some other person competent to testify on the accuracy thereof [sec. Rule 11. (3) in the presence of (a) accused or the person/s from whom the drugs were seized. a caliber 45 pistol by virtue of its serial number  Objects Made Unique . [sec.g. Rule 11. the communication ceases to be ephemeral and shall be proven in the same manner as proving audio.Objects with no unique characteristic but are made readily identifiable.g. either (i) motu proprio or (ii) on application of any person who has a legal interest in the matter in litigation. it may be viewed by the court.A. [sec. 06-11-5-SC) Meaning of DNA DNA evidence The totality of the DNA profiles. [Sec. Rule 132] C. Rules on Electronic Evidence] Shall be proven (1) by the testimony of a person who was a party to the same. text messages. Rule 11.REMEDIAL LAW REVIEWER Formally Offered 210 The court shall consider NO evidence which has not been formally offered. E.Objects with no identifying marks and cannot be marked. e. (2) Such order shall issue after due hearing and notice to the parties upon a showing of the following: (a) A biological sample exists that is relevant to the case. 1. 9165 or the Comprehensive Dangerous Drugs Act of 2002] Non-compliance with sec. 2.. chatroom sessions. results and other genetic information directly generated from DNA testing of biological samples. [People v Del Monte (2008)] G. E. Chain of Custody in Relation to Section 21 of the Comprehensive Dangerous Drugs Act of 2002 Meaning of chain of custody A method of authenticating evidence which requires that the admission of an exhibit be preceded by evidence sufficient to support a finding that the matter in question is what the proponent claims it to be [Lopez v People (2008).

D. at the behest of any party. [Sec. words. Meaning Evidence of Documentary Assessment of probative value of DNA evidence and admissibility Factors in Assessing the Probative Value of DNA Evidence (1) Chain of custody (a) How the biological samples were collected (b) How they were handled (c) Possibility of contamination (2) DNA testing methodology (a) Procedure followed in analyzing samples (b) Advantages and disadvantages of procedure the the Consist of writings or any material containing letters. B. 2] To be deemed documentary evidence. sec. B. 01-7-01. which the court may consider as potentially affecting the accuracy of integrity of the DNA testing. [Sec. and (e) The existence of other factors. (c) The DNA testing uses a scientifically valid technique. 10] IV. 10] General Rule: If the court.REMEDIAL LAW REVIEWER (b) The biological sample: (i) was not previously subjected to the type of DNA testing now requested.M. without need of a prior court order. Meaning of Documentary Evidence Requisites for Admissibility Best Evidence Rule Rules on Electronic Evidence (A. 7] 211 Rules on evaluation of reliability of the DNA testing Methodology Factors that Determine the Reliability of the DNA Testing Methodology (1) Falsifiability of the principles or methods used (2) Subject to peer review and publication of the principles or methods (3) General acceptance of the principles or methods by the scientific community (4) Existence and maintenance of standards and controls to ensure the correctness of data generated (5) Existence of an appropriate reference population database (6) General degree of confidence attributed to mathematical calculations used in comparing DNA profiles (7) Significance and limitation of statistical calculations used in comparing DNA profiles Without prior court order This Rule shall not preclude a DNA testing. symbols or other modes of written expressions offered as proof of their contents [Rule 130. (d) The DNA testing has the scientific potential to produce new information that is relevant to the proper resolution of the case. but the results may require confirmation for good reasons. remedy How Obtained (1) Without need of prior court order (2) Available to the prosecution or any person convicted by final and executory judgment Requisites: (1) A biological sample exists (2) Such sample is relevant to the case (3) The testing would probably result in the reversal or modification of the judgment of conviction. No. 10] Exception: If continued detention is justified for a lawful cause. after due hearing. if any. 4] Post-conviction DNA testing. or (ii) was previously subjected to DNA testing. C. Parol Evidence Rule F. [Sec. [Sec. DOCUMENTARY EVIDENCE A. If offered for some other purpose. figures. [Sec. finds the petition meritorious.SC) E. numbers. [Sec. 6] Remedy if Results Favorable to the Convict Convict or the prosecution may file a petition for a writ of habeas corpus in the court of origin. relevant experience of the laboratory in forensic work and its credibility (4) Reliability of the testing result [Sec. 4] (c) Compliance with scientifically standards in conducting the tests valid (3) Forensic DNA laboratory (a) Accreditation by any reputable standardssetting institution (b) Qualification of the analyst who conducted the tests (c) If not accredited. such writings or materials must be offered as proof of their contents. CA or SC or any member of said courts. Authentication and Proof of Documents A. Requisites for Admissibility (1) Relevant (2) Competent (a) Document be Authenticated . it shall reverse or modify the judgment of conviction and order the release of the convict. they constitute OBJECT EVIDENCE.

SC) Meaning of electronic evidence. and there are no other reasonable grounds to doubt the integrity of the information and communication system [Rule 7. (a) Whether the information and communication system or other similar device was operated in a manner that did not affect the integrity of the electronic document. [People v Tandoy (1990)] Meaning of original Original document (1) One the contents of which are the subject of inquiry (2) All such copies of a executed at or about the same time. 2]. and the latter fails to produce it after reasonable notice (3) When the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time. No. electronic data message . readable by sight or other means. (3) The integrity of the information and communication system in which it is recorded or stored. (2) The reliability of the manner in which its originator was identified. and the fact sought to be established from them is only the general result of the whole (4) When the original is a public record in the custody of a public officer or is recorded in a public office D. [People v Tan (1959)] (3) All such entries made and repeated in the regular course of business. by which a right is established or an obligation extinguished. tests and checks for accuracy and reliability of the electronic data message or document. the following factors may be considered: (1) The reliability of the manner or method in which it was generated. method of proof Factors in assessing evidentiary weight of electronic evidence (Rule 7. sent. the term ―electronic document‖ may be used interchangeably with electronic data message‖. including but not limited to (a) input and output procedures. or by which a fact may be proved and affirmed. optical or similar means 212 C. at/near the time of the transaction [Rule 130. which accurately reflects the electronic data message or electronic document. 3] (1) When the original has been lost or destroyed. or (c) Whether the electronic document was recorded or stored in the usual and ordinary course of business by a person who is not a party to the proceedings and who did not act under the control of the party using it [Rule 7. and with identical contents NOTE: Carbon copies are deemed duplicate originals. sec.REMEDIAL LAW REVIEWER (b) Authenticated by Competent Witness (3) Formally Offered in Evidence Electronic document (1) Information or the representation of information. 4] Probative value of electronic documents or evidentiary weight. sec. 3] The BER does not apply when the issue is only as to WON such document was actually executed or in the circumstances relevant to its execution. sec. (c) in the light of all the circumstances as well as any relevant agreement. (b) Whether the electronic document was recorded or stored by a party to the proceedings with interest adverse to that of the party using it [Rule 7. 2] Requisites for introduction of secondary evidence (Exceptions to BER) [Rule 130. without bad faith on the offeror‘s part (2) When the original is in the custody or under the control of the party against whom it is offered. Electronic data message Information generated. (2) described or however represented. sec. recorded. stored or communicated. Rules on Electronic Evidence (A. Best Evidence Rule Meaning of the rule When the subject of inquiry is the contents of a document. 2]. sec. sec. sec. transmitted. 01-7-01. data. no evidence shall be admissible other than the original document itself. For purposes of these Rules. (b) controls. stored processed. retrieved or produced electronically. 3] When applicable (General Rule) Only when the subject of inquiry is the contents of a document [Rule 130. figures. (3) which is received. symbols or other modes of written expression. or cannot be produced in court. §1) In assessing the evidentiary weight of an electronic document. [Rule 130. including but not limited to the hardware and computer programs or software used as well as programming errors.M. (4) It includes digitally signed documents and any print-out or output. received or stored by electronic.

or (3) Whether the electronic document was recorded or stored in the usual and ordinary course of business by a person who is not a party to the proceedings and who did not act under the control of the party using it. (5) The nature and quality of the information which went into the communication and information system upon which the electronic data message or electronic document was based. sec. REE) Of Electronic Documents Burden of Proving Authenticity: The person seeking to introduce the electronic document [Rule 5. Salud (2005)] Method of Proof (1) Affidavit of Evidence [Rule 9. or data compilation by electronic. (2) Whether the electronic document was recorded or stored by a party to the proceedings with interest adverse to that of the party using it. Text messages have been classified as ―ephemeral electronic communication” under Section 1(k). optical or other similar means (2) Made at or near the time of or from transmission or supply of information (3) Made by a person with knowledge thereof (4) Kept in the regular course or conduct of a business activity. then the provisions of Rule 5 (―Authentication of Electronic Documents‖) shall apply. or for legitimate purposes [Rule 2. In any dispute involving the integrity of the information and communication system in which an electronic document or electronic data message is recorded or stored. which is intended or tends to vary or contradict a . sec. sec. 2] Of Electronic Signatures [Rule 6. 2] Authentication of electronic documents and electronic signatures (R5. (2) By evidence that other appropriate security Audio. procedures or devices as may be authorized by the Supreme Court or by law for authentication of electronic documents were applied to the document. 1b] Requisites (1) Made by electronic. [Rule 5. transmission or storage thereof [Rule 8. Rule 2 of the Rules on Electronic Evidence. Parol Evidence Rule Meaning of parol evidence Any evidence aliunde. (b) Affiant may be cross-examined as a matter of right by the adverse party. or (6) Other factors which the court may consider as affecting the accuracy or integrity of the electronic document or electronic data message. 2] (a) Affiant shall affirm the contents of the affidavit in open court. among others. or (ii) based on authentic records (b) Must affirmatively show the competence of the affiant to testify on the matters contained in the affidavit (2) Cross-Examination of Deponent [Rule 9. and there are no other reasonable grounds to doubt the integrity of the information and communication system. video and ephemeral evidence If the foregoing communications are recorded or embodied in an electronic document. occupation. association.REMEDIAL LAW REVIEWER (4) The familiarity of the witness or the person who made the entry with the communication and information system.‖ [Vidallon-Magtolis v. 1] (a) Must state facts (i) of direct personal knowledge. record. report. sec. or (3) By other evidence showing its integrity and reliability to the satisfaction of the judge. sec. and calling of every kind. 1] Manner of Authentication: (1) By evidence that it had been digitally signed by the person purported to have signed the same. photographic. or (3) By any other means satisfactory to the judge 213 Electronic documents and the hearsay rule Business Records as Exception to the Hearsay Rule What Constitute Business Records: Records of any business. profession. ss1-3. E. sec. the following factors: (1) Whether the information and communication system or other similar device was operated in a manner that did not affect the integrity of the electronic document. the court may consider. sec. and ―shall be proven by the testimony of a person who was a party to the same or has personal knowledge thereof. ss1-2. 1] Exception to the Exception (1) Untrustworthiness of the source of information (2) Untrustworthiness of the method of the preparation. 2] (1) By evidence that a method or process was utilized to establish a digital signature and verify the same. institution. transmission or storage thereof (3) Untrustworthiness of the circumstances of the preparation. (5) Such was the regular practice to make the memorandum. sec. optical or similar means (6) Abovementioned facts shown by the testimony of the custodian or other qualified witnesses [Rule 8. whether oral or written. R11. whether or not conducted for profit. (2) By any other means provided by law.

20] Distinctions between the best evidence rule and parol evidence rule Best Evidence Rule Contemplates the situation wherein the original writing is not available and/or there is a dispute as to whether said writing is the original Prohibits the introduction of substitutionary evidence in lieu of the original document regardless of WON it varies the contents of the original Applies to all kinds of documents Can be invoked by any party to an action regardless of WON such party participated in the writing involved Parol Evidence Rule Presupposes that the original document is available in court When evidence of authenticity of a private writing is not required (ancient documents) Exception (1) Ancient Documents – authentication NOT necessary provided that private document be: (a) More than 30 years old. (b) Produced from the custody in which it would naturally be found if genuine. sec. and admitted genuine specimens thereof or proved to be genuine to the satisfaction of the judge [Rule 132. no evidence of such terms other than the contents of the written agreement. sec. sec. proof of a private writing PRIVATE DOCUMENTS When offered as authentic General Rule: Authentication necessary How to Prove Due Execution and Authenticity (1) By anyone who saw the document executed or written. and (c) Unblemished by any alterations or circumstances of suspicion. OR (2) By evidence of the genuineness of the signature or handwriting of the maker [Rule 132. CA (1986)] F.REMEDIAL LAW REVIEWER complete and enforceable agreement embodied in a document. between the parties and their successors in interest. 214 Application of the parol evidence rule (General Rule) When the terms of an agreement (including wills) have been reduced to writing. Authentication and Proof of Documents Meaning of authentication  The preliminary step in admissibility of evidence  Private and Public Documents Private Documents When offered as authentic. due execution and authenticity must be proved showing the Public Documents Admissible without further proof of its due execution and authenticity When parol evidence can be introduced (1) When a party presents parol evidence to modify. their privies or any party directly affected thereby (1) By any witness who believes it to be the handwriting of such person because: (a) he has seen the person write. 20] Prohibits the varying of the terms of a written agreement How to prove genuineness of handwriting Applies only to documents contractual in nature (Exception: wills) Can be invoked only when the controversy is between the parties to the written agreement. it is considered as containing all the terms agreed upon and there can be. [Rule 132. 21] (2) That which it is claimed to be: Authentication not necessary [Rule 132. mistake or imperfection in the written agreement (2) Failure of the written agreement to express the true intent and agreement of the parties thereto (3) Validity of the written agreement (4) Existence of other terms agreed to by the parties or their successors in interest after the execution of the written agreement. 22] (2) A comparison by the witness or the court of the questioned handwriting. explain or add to the terms of a written agreement (2) Ground/s for presenting parol evidence is put in issue in the pleading Grounds for presenting parol evidence: (1) An intrinsic ambiguity. [Rule 130. and has thus acquired knowledge of the handwriting of such person [Rule 132. sec. [Lechugas v. sec. (b) he has seen writing purporting to be his upon which the witness has acted or been charged. Public and private documents When a private writing requires authentication. 22] . 9] It does not apply when 3rd parties are involved. sec.

[Rule 132. Documentary evidence in an unofficial language [Rule 132. attested by the legal custodian of the record. of private documents required by law to be entered therein (3) Notarial documents (except last wills and testaments) Proof of public documents Records of Official Acts [Rule 132. the certificate of acknowledgment being prima facie evidence of the execution of the instrument or document involved. Whose Burden of Proof Party producing the document must account for the alteration. (3) Alteration was made after execution of the document. which (1) May be made by a secretary of the embassy/legation. consular agent or any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept. proof of official record PUBLIC DOCUMENTS Kinds of public documents (1) Written official acts or records of the official acts of the sovereign authority. sec. and public officers. or (4) Did not change the meaning or language of the instrument. 25] Attestation of Copy [Rule 132. (2) Was made with the consent of the parties affected by it. as the case may be (3) Must be under the official seal of the attesting officer. sec. 33] NOT admissible unless accompanied by a translation into English or Filipino. sec. (2) Collusion between the parties. consul. sec. with an appropriate certificate that such officer has the custody. without his concurrence. 30] (1) May be presented in evidence without further proof. kept in the Philippines. 27] Note: Please refer to ―Attestation of Copy‖ under the immediately preceding subsection. 29] (1) Want of jurisdiction in the court or judicial officer. [Rule 132. (2) Such notarized documents are evidence. or (2) By a copy thereof. 24] (1) By an official publication thereof. 49] Public documents as evidence. (2) Document has been altered and appears to have been altered. sec. sec. if there be any. or by his deputy (2) Must state that the copy is a correct copy of the original or a specific part thereof. consul-general. and (4) Alteration is in a part material to the question in dispute What to Show about the Alteration (1) Was made by another. How to explain alterations in a document Alterations in a Document [Rule 132.REMEDIAL LAW REVIEWER (3) Expert evidence [Rule 130. OR (3) Fraud in the party offering the record. with respect to the proceedings Proof of notarial documents Notarial Documents (except last wills and testaments) [Rule 132. official bodies and tribunals. Public record of a private document Public Records of Private Documents [Rule 132. 27] (1) By the original record. no record or entry of a specified tenor is found . of the facts which gave rise to their execution and of the date of execution. Proof of lack of record [Rule 132. 28] (1) Written statement (a) Signed by an officer having the custody of an official record or by his deputy (b) Must state that after diligent search. whether of the Philippines or of a foreign country (2) Public records. and (3) Must be authenticated by the seal of his office. attested copy must be accompanied with a certificate. even against 3rd persons. Failure to do so would result in the inadmissibility of evidence. sec. or (2) By an attested copy of the document to exist in the records of his office (2) Certificate (a) Accompanying the written statement (b) Must state that that such officer has the custody 215 How a judicial record is impeached What to Establish to Impeach Judicial Record [Rule 132. under the seal of such court If the record is not kept in the Philippines. (3) Was otherwise properly or innocently made. sec. or if he be the clerk of a court having a seal. sec. sec. 25] (1) Must be made by the officer having the legal custody of the record. 31] Requisites (1) Document is being presented as genuine. viceconsul. sec. sec. 23] Attestation of a copy [Rule 132. (2) Must state that such officer has the custody. Parties or their attorneys are directed to have the translation prepared before trial.

may be witnesses. 23] (1) Defendant is the executor or administrator or a representative of the deceased or of the person of unsound mind. Qualifications of a Witness B. the quality of his perceptions and the manner he can make them known to the court. Disqualifications of Witnesses 1. Rule on Examination of a Child Witness (A. and. No. 22]: Spouse MAY testify for or against the other even without the consent of the latter: (1) In a civil case by one against the other (2) In a criminal case for a crime committed by one against the other or the latter's direct descendants/ascendants. and to prevent domestic disunion and unhappiness. 216 V. (2) Suit is upon a claim by the plaintiff against the estate of said deceased or person of unsound mind. (3) Policy of the law is to guard the security and confidence of private life. (2) He is incapable of relating his perception truthfully. 2.REMEDIAL LAW REVIEWER  Requisites (1) Mental maturity of the witness (child) must render him incapable of perceiving the facts respecting which he is examined. Competency versus Credibility of a Witness Competency A matter of law and of rules Refers to the basic qualifications of a witness as his capacity to perceive and his capacity to communicate his perception to others Credibility Has nothing to do with the law or rules Refers to the weight and trustworthiness or reliability of the testimony 3. shall not be ground for disqualification. Exceptions [Rule 130. sec. Examination of a Witness E. Opinion Rule H. Exceptions (1) The survivor may testify against the estate of the deceased where the latter was guilty of fraud which fraud was established by evidence . Disqualification by reason of death or insanity of adverse party Also known as ―Dead Man‘s Statute‖ or ―Survivorship Rule‖ C. (2) Other spouse is a party to the action. Religious/political belief. Disqualifications of Witnesses D. or a person in whose behalf the case is prosecuted. (2) If one were to testify for or against the other. perceiving. Disqualification marriage by reason of Also known as ―Marital Disqualification Rule‖ or ―Spousal Immunity‖ Requisites (1) Marriage is valid and existing as of the time of the offer of testimony. Sec. [People v.M. sec. Ramirez (2005)] (1) There is identity of interests between husband and wife. Qualifications of a [Rule 130. and (4) Subject of the testimony is as to any matter of fact occurring before the death of such deceased person or before such person became of unsound mind. Character Evidence I. interest in the outcome of the case. Competency versus Credibility of a Witness C. can make their known perception to others. 21a]  Requisites (1) Person must be incapable of intelligently making known his perception to others (2) His incapability must exist at the time of his production for examination A mental retardate is not for this reason alone disqualified from being a witness. sec. With respect to the witness A. there is a consequent danger of perjury. Acceptance of his testimony depends on its nature and credibility or. Rationale [Alvarez v. or conviction of a crime unless otherwise provided by law. Hearsay Rule G. or an assignor of that party. Disqualification by reason mental capacity or immaturity of By reason of mental incapacity [Rule 130. 20] Witness All persons who can perceive. I. TESTIMONIAL EVIDENCE A. 004-07-SC) Incapacity must occur at the time the witness perceives the event. otherwise put. (3) Witness is the plaintiff. B. sec. and (4) Where there is want of domestic tranquility. Salomon (1993)] By reason of immaturity [Rule 130. Admissions and Confessions F. 21b] Requisites [Rule 130. there is danger of punishing one spouse through the hostile testimony of the other.

24(c). (2) In a criminal case for a crime committed by one against the other or the latter's direct descendants/ascendants. Rule 130] Requisites (1) There must be a valid marriage husband and wife. Privilege does not apply when the doctor is presented as an expert witness and only hypothetical problems were presented to him. [Lim v. Public officers [Sec. Rule 130] markRequisites (1) Physician is authorized to practice medicine. and . Antipolo (1918)] Exceptions (1) In a civil case by one against the other. stenographer. Rationale: To promote marital harmony. Carr (1929)] (2) He may also testify where he was the one sued by the decedent‘s estate since the action then is not against the estate. (2) There is a communication confidence by one from the other. (3) Information. NOTE: Attorney‘s secretary. 217 4. Marital Privilege Neither of the spouses needs to be a party. and (4) Privilege is invoked in a civil case. advice or treatment. whether or not the patient is a party thereto. (2) When disclosure would open the client to liability. Disqualification by reason privileged communications of Husband and wife (Marital privilege) [Sec. Sandiganbayan (1996)]: (1) When a strong probability exists that revealing the name would implicate that person in the very same activity for which he sought the lawyer‘s advice. and Constitutes a total prohibition on any testimony for or against the spouse of the witness. [Goñi v. would blacken the reputation of the patient. 24(e). 24(a).REMEDIAL LAW REVIEWER other than the testimony of the survivor. (2) Confession or advice was confidential and penitential in character. or advice given by him pursuant to a religious duty enjoined in the course of discipline of the sect or denomination of the priest. 24(b). surgery or obstetrics. and (2) Public interest would suffer by the disclosure of such communication. if revealed. [Ong Chua v. Does not cease even after the marriage is dissolved. or clerk are also covered by the rule and cannot be examined concerning any fact the knowledge of which has been acquired in such capacity without the consent of the client AND their employer. Rule 130] Requisites (1) Confession was made to. (3) The confidential communication during the marriage. 24(d). CA (1986)] Rationale: To discourage perjury and protect the estate from fictitious claims (3) The communication or advice must have been given either in the course of the professional employment or with a view to professional employment. (2) The communication must have been given in confidence. Priest and penitent [Sec. Vianzon (1927)] (3) He may likewise testify where the estate had filed a counterclaim against him or where the estate cross-examined him as to matters occurring during the lifetime of the deceased. [Tongco v. Elements privilege‖ of ―presidential communications Attorney and client [Sec. CA (1992)] NOTE: A widow of a victim allegedly murdered may testify as to her husband‘s dying declaration as to how he died the since the same was not intended to be confidential. Exceptions [Regala v. Applies only if the marriage is existing at the time the testimony is offered. General Rule: The attorney-client privilege may not be invoked to refuse to divulge the identity of the client. Rule 130] Requisites (1) There must be a communication made by the client to the attorney or an advice given by the attorney to his client. and Prohibition is limited to testimony on confidential communications between spouses. [US v. (2) Information was acquired or the advice or treatment was given by him in his professional capacity for the purpose of treating and curing the patient. In Contrast to Marital Disqualification Marital Disqualification One spouse should be a party to the case. (3) When the name would furnish the only link that would form the chain of testimony necessary to convict. between the received in and was received Physician and patient [Sec. Rule 130] Requisites (1) Communication was made to the public officer in official confidence.

4. Rule 130] General Rule: A person cannot be compelled to testify against his parents. Parental and filial privilege rule [Sec.REMEDIAL LAW REVIEWER (1) Must relate to a ―quintessential and nondelegable presidential power. But a witness must answer to the fact of his previous final conviction for an offense. other direct ascendants (parental privilege).  CROSS EXAMINATION [sec. 25. 8. or connected therewith  RE-DIRECT EXAMINATION [Sec.‖ (2) Must be authored or ―solicited and received‖ by a close advisor of the President or the President himself. and from harsh or insulting demeanor (2) Not to be detained longer than the interests of justice require (3) Not to be examined except only as to matters pertinent to the issue (4) Not to give an answer which will tend to subject him to a penalty for an offense unless otherwise provided by law. or (3) In a crime committed by one parent against the other. if allowed by the Court  RE-CROSS EXAMINATION [Sec. Sec. RA 1379 and other immunity statutes which grant the witness immunity from criminal prosecution for offenses admitted (5) Not to give an answer which will tend to degrade his reputation. although his answer may tend to establish a claim against him. Rule 132] Who conducts: Opponent When conducted: Upon the conclusion of the redirect examination What matters are covered: Those stated in his re-direct examination. and matters not dealt with. and to elicit all important facts bearing upon the issue What matters are covered: Any matters stated in the direct examination. Examination of a Witness Rights and obligations of a witness [Sec. and also on such other matters as may be allowed by the court in its discretion. Order in the examination of an individual witness [Sec. Rule 132] (1) Direct examination (2) Cross examination (3) Re-direct examination (4) Re-cross examination . 8. and (2) When such testimony is indispensable in a crime committed against said descendant. Rule 132] Who conducts: Opponent When conducted: Upon the termination of the direct examination Why conducted: To test the witness‘s accuracy and truthfulness. unless it to be the very fact at issue or to a fact from which the fact in issue would be presumed. 7. 215. 3. Exception [Art. e. or insulting questions. D.  218 5. Rule 132] Obligation of a witness: To answer questions. 6. Family Code]: Descendant may be compelled to give his testimony: (1) In a criminal case. or the reverse. [Neri v. and freedom from interest or bias. and (3) Privilege may be overcome by a showing of adequate need such that the information sought ―likely contains important evidence‖ and by the unavailability of the information elsewhere. children or other direct descendants (filial privilege). Rights of a witness (1) To be protected from irrelevant. Rule 132] Who conducts: Proponent Why conducted: Examination-in-chief of a witness by the party presenting him.g. improper.. 5. on the facts relevant to the issue. Senate (2008)] DIRECT EXAMINATION [Sec. Rule 132] Who conducts: Proponent When conducted: After cross-examination of the witness Why conducted: To explain or supplement his answers given during the cross-examination What matters are covered: Those stated in the cross-examination.

10. Exceptions: (1) On cross examination. Rule 132] Evidence of the witness‘ good character is not admissible until such character has been impeached. Rule 132]  Questions that assume as true a fact not yet testified to by the witness. [US v. 26. sec. Rule 132] (a) Adverse interest. (2) Witness may be asked whether he made such statements and also to explain them if he admits making those statements. or is of feeble mind. which the examining party desires. (5) On a witness who is an adverse party or an officer/director or managing agent of a public/private corporation or of a partnership/association which is an adverse party. or a deaf-mute. (4) On an unwilling or hostile witness. By Silence Requisites for Admissibility: (1) An act or declaration is made in the presence and within the hearing or observation of a party. 12. Rule 132] Who conducts: either party When conducted: After both sides have concluded the examination of a witness. Purpose: To allow the witness to admit or deny the prior statement and afford him an opportunity to explain the same. A witness may be considered hostile only when declared by the court. (3) When there is a difficulty is getting direct and intelligible answers from a witness who is ignorant. 219 Leading and misleading questions [Sec. 4 Extrajudicial Any other admission Rule 130. If the statements are in writing they must be shown to him. or a child of tender years. 26 and 32 Methods of impeachment of adverse party’s witness [sec. Rule 130] (2) Flight from justice is an admission by conduct and circumstantial evidence of consciousness of guilt.  NEVER allowed (2) Leading Questions  Questions that suggest to the witness the answer. Admissions and Confessions 1. (2) By evidence that his general reputation for truth. Sarikala (1918)] Rationale No man would make any declaration against himself unless it is true. (c) His having misled the party into calling him to the witness stand. With respect to the testimony E. . Rivera (1991)] How the witness is impeached by evidence of inconsistent statements (laying the predicate) Elements: (1) The alleged statements must be related to the witness including the circumstances of the times and places and the persons present. Declaration or Omission Requisites for Admissibility (1) Made by a party. Rule 132] Questions not allowed (1) Misleading Questions [sec. Bautista (2007)] As Distinguished from Judicial Admissions Judicial Made in connection with a judicial proceeding in which it is offered Rule 129. upon adequate showing of his: [sec. (2) Outside of court. 11. 26.REMEDIAL LAW REVIEWER RECALLING THE WITNESS [Sec. 10. or contrary to that which he has previously stated. (3) Relates to a relevant fact. and (4) Is against admitter‘s interest. (3) By evidence that he has made at other times statements inconsistent with his present testimony. II. Admissions of a Party By Act. Rule 130] Effect (1) May be given in evidence against the admitter [sec. honesty or integrity is bad. [sec. secs. (b) Unjustified reluctance to testify. [Republic v. 9. Evidence of the good character of a witness [Sec. 14. (2) On preliminary matters. General Rule: Leading questions are not allowed. and with leave of court Why conducted: (1) Particularly identified material points were not covered in cross-examination (2) Particularly described vital documents were not presented to the witness (3) Cross-examination was conducted in so inept a manner as to result in a virtual absence thereof [People vs. Rule 132] (1) By contradictory evidence.

(4) habit. [sec. (b) It must have been made during the existence of the conspiracy. usage and the like. 29. the same is merely an admission. 3. (b) Act. without admonition of the right to silence and to counsel.REMEDIAL LAW REVIEWER (2) Party does or says nothing. (3) plan. Rule 133] As Distinguished from Admissions of a Party Admission Merely a statement of fact Maybe express or tacit Maybe made by 3rd parties. (2nd Branch) [sec. and in certain cases. Rule 130] If the accused admits having committed the act in question but alleges a justification therefore. Res inter alios acta rule With Respect to Admissions by a ―Third Party‖ General Rule: INADMISSIBLE The rights of a party cannot be prejudiced by an act. 34. or of any offense necessarily included therein [sec. 31. [People v. Rule 130] Requisites: (a) Act or declaration must be within the scope of the authority of the partner or agent. system. and (c) Partnership or agency must be shown by evidence other than the act or declaration. Rule 130] Exceptions: (1) Partner‘s or Agent‘s Admission [sec. Rule 130] Exceptions: Said evidence may be received to prove: (1) specific intent or knowledge. and without counsel chosen by the accused is inadmissible in evidence. including a re-enactment. Rule 130] Requisites (a) Act or declaration must relate to the conspiracy. admissible against a party Confession Acknowledgment of guilt or liability Must be express Can be made only by the party himself. or scheme. (5) custom. declaration or an omission by a predecessor-in-interest. Rule 130] Silence of a person under investigation for the commission of an offense should not be construed as an admission by silence for constitutional reasons. [People v. 2(b). Yip Wai Ming (1996)] General Rule: An extra-judicial confession made by an accused is not a sufficient ground for conviction. and admissible against his co-accused in some instances With Respect to Similar Acts General Rule: Evidence that one did or did not do a certain thing at one time is NOT ADMISSIBLE to prove that he did or did not do the same or similar thing at another time. and (c) Act. declaration or omission must be in relation to the property. Serrano (1959)] (3) Admission by Privies [sec. (2) Co-Conspirator‘s Admission [sec. Belen (1963)] Rule 130. 33. [US v. not to testimony given on the stand. [Sec. [People v. Rule 130] Requisites: (a) There must be an act. sec. 7438] (b) Act or declaration must have been made during the existence of the partnership or agency. declaration or omission must have occurred while he was holding (not after) the title to the property. declaration or omission of another. R. 28.A. Confessions A declaration of an accused acknowledging his guilt of the offense charged. 30. 220 2. Rule 133] Exception: When corroborated by evidence of the actual commission of a particular crime (corpus delicti). (3) Act or declaration is such as naturally to call for action or comment if not true. Admission by a party Please see discussion in previous section (previous page) Admission by a third party Admission by a co-partner or agent Admission by a conspirator Admission by privies Please see discussion under the subsection ‘Res inter alios acta rule’ . 3. Existence of the conspiracy may be inferred from the acts of the accused. [sec. and (4) It was proper and possible for the party to do so. Tolosa] Any confession. (2) identity. 30 applies only to extra-judicial statements. 3. [sec. and (c) Conspiracy must be shown by evidence other than such act/declaration. (1st Branch) [sec. 32.

(3) Declaration refers to cause and surrounding circumstances of such death. [Fuentes v. Court of Appeals (1980)] Inability to testify means that the person is dead. (2) Declaration was made under the consciousness of an impending death. (2) Declarant must be related by birth or marriage to the person whose pedigree is in issue. 36] The hearsay rule is not limited to oral testimony or statements.] Doctrine of Independently Relevant Statements Statements or writings attributed to a person not on the witness stand. Admissible only when declarant is unavailable as a witness. Latayada (2004)] 221 Confessions Please see discussion in previous section (previous page) Similar acts as evidence Please see discussion under the subsection ‘Res inter alios acta rule’ F. These are NOT covered by the hearsay rule [People v. Admissible even against 3rd persons. the same is admissible. [Rule 130. and (6) Declarant should have died. whether oral or documentary. which are being offered not to prove the truth of the facts stated therein. Mere absence from the jurisdiction does not make him ipso facto unavailable.REMEDIAL LAW REVIEWER Admission by silence Please see discussion in previous section (previous page) Requisites for Admissibility (1) Declaration is one made by a dying person. Rule 130. 38. Rule 130] 3) Act or declaration about pedigree Requisites for Admissibility (1) Declarant is dead or unable to testify. Ong v. 37. Hearsay Rule Meaning of hearsay (1) Out-of-court statement (2) Offered by the witness in court to prove the truth of the matters asserted by the statement Any evidence. Cusi (1965)] 2) Declaration against interest Requisites for Admissibility (1) Declarant is dead or unable to testify. every motive to falsehood is silenced. . but only to prove that such were actually made. sec. [People v Bacunawa (2001)] The foreboding may be gleaned from surrounding circumstances. even during trial. and Admissible NOT as an exception to any rule Declaration against Interest Declarant is neither a party nor in privity with a party. declarant was aware that the same was contrary to his interest. when a person is at the point of death. (4) Declaration is offered in any case wherein his death is the subject of inquiry. mentally incapacitated or physically incompetent. [Consunji vs. as a party can waive his right to cross-examine [People vs Ola (1987)] Repeated failure to cross-examine is an implied waiver [Savory Luncheonette vs Lakas ng Manggagawang Pilipino (1975)] Exceptions to the hearsay rule (Asked 7x) 1) Dying declaration Also known as ―antemortem statement‖ or ―statement in articulo mortis‖ [Sec. (3) At the time he made said declaration. CA (2001)] If a party does not object to hearsay evidence. (5) Declarant is competent as a witness had he survived [Geraldo v People (2008)]. [People v. Admissible only against the admitter. CA (1996)] As Distinguished from Admissions Admission Admitter is a party himself. if its probative value is not based on personal knowledge of witness but on knowledge of some other person not on witness stand [Regalado 11th ed. as well as oral statements. and Admissible as an exception to the hearsay rule Reason for exclusion of hearsay evidence Lack of opportunity to cross-examine the outside declarant GENERAL RULE ON HEARSAY A witness can testify only as to those facts which he knows of his personal knowledge. it applies to written. and (4) Declarant had no motive to falsify and believed such declaration to be true [sec. Must have been made ante litem motam. (2) Declaration relates to a fact against the interest of the declarant. Admissible whether or not admitter is available as a witness Can be made any time. Macandog (2001)] Rationale for Admissibility: As a general rule. such as the nature of the declarant‘s injury and conduct that would justify a conclusion that there was consciousness of impending death. or those derived from his own perception. [People v. or in privity with such party.

Rule 130] Meaning of Pedigree (1) Relationship. (3) Engravings on rings. Reyes] A statement not admissible as dying declaration because it was not made under consciousness of impending death. and (9) Facts of family history intimately connected with pedigree.Statements.Statements made by a person while a startling occurrence is taking place or immediately prior or subsequent thereto." or those articles which represent. (7) Places where these facts occurred. 40. 39. but they may nevertheless be availed of by said entrant as a memorandum to refresh his memory while testifying on the transactions reflected therein. 44. 43. (2) Family genealogy. (4) Family portraits and the like [sec. sec. Rule 130] Admissible Statements (1) Spontaneous statements . (5) Death. not after. in effect. the entries will not be admitted. 1. as he learned of these from his parents or relatives. [sec. [Gravador v. [sec. Rules on Electronic Evidence] 5) Common reputation Requisites for Admissibility (1) Reputation pertains to: (a) facts of public or general interest more than 30 years old. 42. [sec. (3) Entrant was in a position to know the facts stated in the entries. [People v. 39. Mamigo (1967)] 7) Entries in the course of business Requisites for Admissibility [sec. (4) Entrant did so in his professional capacity. (2) Such entries were made in the ordinary or regular course of business or duty. is an ante litem motam declaration of a family tradition. and (2) Such reputation or tradition must have existed in that family ante litem motam. and (4) Relationship between the declarant and the person whose pedigree is in question must be shown by evidence other than such declaration. or in the performance of duty and in the regular course of business. with respect to the circumstances thereof (a) Principal act be a startling occurrence (b) Statement made before declarant had opportunity to contrive (c) Statement refer to occurrence in question and attending circumstances (2) Verbal acts . [Jison v. [Rule 8. which accompany an equivocal act material to the issue and give it a legal significance (a) Principal act must be equivocal (b) Act must be material to the issue (c) Statement must accompany the equivocal act (d) Statement gives legal significance to equivocal act (e) Must be made at the time. and (5) Entrant is now dead or unable to testify. or near the time of the transactions referred to. by ejusdem generis. [sec. (4) Marriage. or (c) moral character (2) Common reputation existed ante litem motam. Gardner (1916)] ―Business records‖ are exempt from the hearsay rule. Rule 130] Pedigree may be established by reputation in the family. by consanguinity or affinity. 41. [Rule 130. Rule 130] (1) Entries were made at. (8) Names of relatives. Reyes] 222 4) Family reputation or tradition regarding pedigree Requisites for Admissibility: (1) Witness must be a member. of the same family as the subject. a family's joint statement of its belief as to the pedigree of a person. Rule 130] . [Cang Yui v. (3) Birth. but NOT in the community. Rule 130]. Rule 130] Other Admissible Evidence (a) Monuments (b) Inscriptions in public places [sec. If the entrant is available as a witness. 40-41] 8) Entries in official records Requisites for Admissibility (1) Entries were made by a public officer in the performance of his duties or by a person in the performance of a duty specially enjoined by law [sec. is limited to "family possessions. (2) Charts. [People vs. (6) Dates when these facts occurred. 41. 6) Part of the res gestae [Sec. Rule 130] Other Admissible Evidence (1) Entries in family bibles or other family books. Rule 130] This enumeration. the equivocal act was being performed A dying declaration can be made only by the victim after the attack while a statement as part of the res gestae may be that of the killer himself after or during the killing. may still be admissible as part of res gestae if made immediately afer the incident. 40. CA (1998)] A person‘s statement as to his date of birth and age.REMEDIAL LAW REVIEWER (3) Declaration was made before the controversy. secs. (b) marriage.

Wijangco (1924)]. Rule 130] (1) Such statements are contained in a list. (2) Compilation is published for use by persons engaged in that occupation. 223 9) Commercial lists and the like Requisites for Admissibility [Sec. Entries in official records. Novero (1968)] Opinion of expert witness [sec. and (5) Adverse party had the opportunity to crossexamine the witness in the former case. or (iv) appearance of a person. Rule 130] (a) Accused – May prove his good moral character. [sec. and (2) Court takes judicial notice of it. Rule 130] (b) Evidence of the witness‘ good character is not admissible until such character has been impeached.REMEDIAL LAW REVIEWER (2) Entrant must have personal knowledge of the facts stated by him or such facts acquired by him from reports made by persons under a legal duty to submit the same [Salmon. Dexter & Co. and (3) Entries were duly entered in a regular manner in the official records. (iii) condition. 51(a). between the same parties or those representing the same interests. (ii) behavior. [Fortus v. law. Rule 130] EXCEPTIONS [NOTE: Please refer to succeeding subsections for discussion] (1) Expert witness (2) Ordinary witness . 10) Learned treaties Requisites for Admissibility [Sec. judicial or administrative. (3) Former case involved the same subject as that in the present case although on different causes of action. 14. Rule 130. (2) His testimony or deposition was given in a former case or proceeding. (c) Mental sanity of a person with whom he is sufficiently acquainted. Opinion of ordinary witness [sec. EXCEPTIONS (1) Criminal cases [sec. Rule 130] (1) If proper basis is given. (b) skill. (2) Civil cases (a) Moral character is admissible only when pertinent to the issue of character involved in the case. [People v. Rule 130] Entries in a police blotter are not conclusive proof of the truth of such entries. periodical or pamphlet is on a subject of history. Manliclic v. Rule 130] (1) Published treatise. 46. [secs. 45. periodical or pamphlet is recognized in his profession or calling as expert in the subject H. or (d) training (2) Which he is shown to possess Expert witness is one who belongs to the profession or calling which the subject matter of the inquiry relates and who possesses special knowledge. [sec. except in rebuttal. Rule 130]: Character evidence is not admissible. Character Evidence GENERAL RULE [sec. 50. (b) Prosecution – May not prove the bad moral character of the accused. or (3) Witness expert in the subject testifies that the writer of the statement in the treatise. 48. science. are merely prima facie evidence of the facts therein stated. Cabuang (1993)] Baptismal certificates or parochial records of baptism are not official records. 51. (b) Handwriting with which he has sufficient familiarity. (c) experience. and (2) Regarding: (a) Identity of a person about whom he has adequate knowledge. or art. 43-44. 51(b). which is pertinent to the moral trait involved in the offense charged. just like entries in the course of business. (4) Issue testified to by the witness in the former trial is the same issue involved in the present case. and (d) Impressions of the (i) emotion. [Sec. Opinion Rule GENERAL RULE: The opinion of a witness is not admissible. 47. 49. Rule 130] 11) Testimony or deposition at a former trial Requisites for Admissibility [sec. Calaunan (2007)] (1) Witness is dead or unable to testify. and (3) It is generally used and relied upon by them. G. Rule 130] On a matter (1) Requiring (a) special knowledge. (c) Offended Party – His/her good or bad moral character may be proved if it tends to establish in any reasonable degree the im/probability of the offense charged. v.

32] (b) Videotaped Deposition of a Child Witness [Sec. When the court finds that substantial doubt exists regarding the ability of the child to perceive/remember/ communicate. The trauma must be of a kind which would impair the completeness/truthfulness of the child‘s testimony. Hearsay exception in child abuse cases [Sec. it shall issue an order that the deposition of the child be taken and preserved by videotape. it shall issue an order that the deposition of the child be taken and preserved by videotape. (2) In child abuse cases. court shall require the child to be present at the presentation of the hearsay statement for cross-examination by the adverse party. in Criminal Cases where Child is a Victim or a Witness [Sec. If unavailable. distinguish truth from falsehood. [Sec. in criminal cases where the child is a victim or a witness The court may order that the testimony of the child be taken by live-link television if there is a substantial likelihood that the child would suffer trauma from testifying in the presence of the accused. or discrimination (c) because of a physical or mental disability or condition. 30(a)]: The following are INADMISSIBLE in any criminal proceeding involving . 11] (2) Alternative Modes (a) Live-Link TV Testimony. a child includes one over 18 years but is found by the court as (a) unable to fully take care of himself. Live-link TV testimony of a child witness [Sec. especially the right to counsel and to confront and cross-examine the child. If it is necessary for the child to identify the accused at trial.REMEDIAL LAW REVIEWER 224 I. No. cruelty. exploitation. (ii) The rights of the accused during trial. shall not be violated during the deposition. 25] (i) If there is a substantial likelihood that the child would suffer trauma from testifying in the presence of the accused.. or the court may allow the child to identify the accused by observing the image of the latter on a television monitor. Mendoza (1996)]: (1) Capacity of observation. [Sec. [Sec. his counsel or the prosecutor. (3) Capacity of communication. To rebut the presumption of competence enjoyed by a child. Competency of a child witness Every child is presumed qualified to be a witness. 004-07-SC) Applicability of the rule (1) Shall apply in all criminal proceedings and noncriminal proceedings involving child witnesses. (ii) Trauma must be of a kind which would impair the completeness or truthfulness of the child‘s testimony. Examination of a child witness (1) In open court [Sec. Sexual abuse shield rule General Rule [Sec. a competency exam shall be conducted. 6(f)] Videotaped deposition of a child witness [Sec. If the child is available. [Sec. especially the right to counsel and to confront and cross-examine the child. 6(a)] The court has the duty of continuously assessing the competence of the child throughout his testimony.M. conditional examination of witnesses and evidence shall be applied suppletorily. Rule on Examination of a Child Witness (A. 28] Proponent of hearsay statement shall make known to the adverse party the intention to offer such statement and its particulars. neglect. [Sec. or appreciate the duty to tell the truth in court. 6(b)] Requisites of competency of a child as witness [People v. 25] Live-link television testimony. The age of the child by itself is not a sufficient basis for a competency examination. the fact of unavailability must be proved by the proponent and his hearsay testimony must be corroborated by other admissible evidence. shall not be violated during the deposition. the court may allow the child to enter the courtroom for the limited purpose of identifying the accused. 27] If the court finds that the child will not be able to testify in open court at trial. 1] (2) The ROC provisions on deposition. 27] (i) If the court finds that the child will not be able to testify in open court at trial. the burden of proof lies on the party challenging his competence. The rights of the accused during trial. (2) Capacity of recollection. his counsel or the prosecutor. Meaning of ―child witness‖ (1) Any person who at the time of giving testimony is < 18 years. or (b) protect himself from abuse.

When to Make an Offer [Sec. B. [Sec. [Sec. if the objection is based on two or more grounds. Offer of Evidence Concept [Sec. unless the court desires to take a reasonable time to inform itself on the question presented. Rule 132]  Should be given immediately after the objection is made. F. Rule 132] (1) Court shall consider no evidence which has not been formally offered (2) Purpose for which the evidence is offered must be specified (3) As Distinguished from Identification of Documentary Evidence [Interpacific Transit v. OFFER AND OBJECTION A. G. Ellerman & Bucknall Steamship] A. motu proprio. [Catuira v. shall be liable for contempt of court.  Reservation of a ruling by the court on an objection to the admissibility of evidence. 38. Rule 132] . treat the objection as a continuing one. Ruling Ruling on the objection [Sec. Mate (1981)] 225 Protective orders Video/audio tapes that are part of the court record may be viewed only by parties.REMEDIAL LAW REVIEWER alleged child sexual abuse: (1) Evidence offered to prove that the alleged victim engaged in other sexual behavior. Absence of an offer is a defect which is waived when a party fails to object when the ground became reasonably apparent. [Sec. B. VI. unless a different period is allowed by the court The grounds for objection must be specified in any case. their counsel. 31(c)] Publication (or causing it) in any format any identifying information of a child who is or is alleged to be a victim/accused of a crime or a witness thereof. 34.  Reason for sustaining or overruling an objection need not be stated. 31(e)] C. Rule 132] When it becomes reasonably apparent in the course of the examination of a witness that the questions being propounded are of the same class as those to which objection has been made. 31(d)] A child has a right at any court proceeding not to testify regarding personal identifying information that could endanger his physical safety or his family. Exception [Sec. as when the witness is called to testify without any prior offer. 30(b)]: Evidence of specific instances of sexual behavior by the alleged victim to prove that a person other than the accused was the source of semen. a ruling sustaining the objection on one or some of them must specify the ground/s relied upon. [People v. Repetition of an Objection [Sec. Offer of Evidence When to Make an Offer Objection Repetition of an Objection Ruling Striking Out of an Answer Tender of Excluded Evidence D. (2) Evidence offered to prove the sexual predisposition of the alleged victim. CA (1994)] The defect caused by the absence of formal offer of exhibits can be cured by the identification of the exhibits by testimony duly recorded and the incorporation of the said exhibits in the records of the case. 37. [Sec. D. [Keller v. 31(b)] The court may issue additional orders to protect the child‘s privacy. 35. E. their expert witness and the guardian ad litem. it shall be sufficient for the adverse party to record his continuing objection to such class of questions. C. However. A court may. whether such objection was sustained or overruled. injury or other physical evidence Kind of evidence Testimonial When to offer At the time the witness is called to testify Documentary and After the presentation of a Object party‘s testimonial evidence Offer shall be done orally unless allowed by the court to be done in writing. Objection Concept What to object to Testimonial evidence When to object Immediately after offer is made Question propounded in As soon as the grounds the course of oral become reasonably examination apparent Offer done in writing Within 3 days after notice of the offer. or an immediate family of the child. Aviles (1990)] Identification of Documentary Evidence Done in the course of the trial and accompanied by the marking of the evidence Formal Offer of Exhibit Done only when the party rests his/her case E.

40] Documents marked as exhibits during the hearing but which were not formally offered in evidence cannot be considered as evidence nor shall they have evidentiary value. upon motion. [Vda. Striking Out of an Answer Motion to strike [sec. Tender of Excluded Evidence [Rule 132. G. [People v.REMEDIAL LAW REVIEWER without subsequently excluding the same. Sec. WCC (1977)] How to Tender Evidence Kind of evidence Documentary Testimonial How to tender the evidence Offeror may have the same attached or made part of the record Offeror may state for the record the name and other personal circumstances of the witness and the substance of the proposed testimony . (2) The court may also. which are (a) incompetent. amounts to a denial of an objection. order the striking out of answers. De Flores v. and (b) such objection is found to be meritorious. Tavera] 226 F. 39. Rule 132] (1) Court may sustain an objection and order the answer given to be stricken off the record if: (a) witness answers the question before the adverse party had the opportunity to object. (b) irrelevant or (c) otherwise improper.

Luz Baldueza |Marketing Benjamin Joseph Geronimo • Jose Lacas |Logistics Angelo Bernard Ngo • Annalee Toda|HR Anne Janelle Yu • Alyssa Carmelli Castillo |Merchandise Graciello Timothy Reyes |Layout Charmaine Sto. Ara Garcia |Events OPERATIONS HEADS Charles Icasiano • Katrina Rivera |Hotel Operations Marijo Alcala • Marian Salanguit |Day-Operations Jauhari Azis |Night-Operations Vivienne Villanueva • Charlaine Latorre |Food Kris Francisco Rimban • Elvin Salindo |Transpo Paula Plaza |Linkages UP LAW BAR OPERATIONS COMMISSION . Domingo • Katrina Maniquis |Mock Bar Krizel Malabanan • Karren de Chavez |Bar Candidates’ Welfare Karina Kirstie Paola Ayco • Ma.REMEDIAL LAW REVIEWER 227 2012 UP L AW BAR REVIEWER REMEDIAL LAW REMEDIAL LAW TEAM 2012 Subject Head | Eden Mopia SpecPro Subject Head | Margeline Carrasco Contributors | Cyril Arnesto • Kristine Camille Umali LAYOUT TEAM 2012 Layout Artists | Alyanna Apacible • Noel Luciano • RM Meneses • Jenin Velasquez • Mara Villegas • Naomi Quimpo • Leslie Octaviano • Yas Refran • Cris Bernardino Layout Head| Graciello Timothy Reyes Special Proceedings BAR OPERATIONS COMMISSION 2012 EXECUTIVE COMMITTEE Ramon Carlo Marcaida |Commissioner Raymond Velasco • Mara Kriska Chen |Deputy Commissioners Barbie Kaye Perez |Secretary Carmen Cecilia Veneracion |Treasurer Hazel Angeline Abenoja|Auditor COMMITTEE HEADS Eleanor Balaquiao • Mark Xavier Oyales | Acads Monique Morales • Katleya Kate Belderol • Kathleen Mae Tuason (D) • Rachel Miranda (D) |Special Lectures Patricia Madarang • Marinella Felizmenio |Secretariat Victoria Caranay |Publicity and Promotions Loraine Saguinsin • Ma.

07-912-SC) Change of name Absentees Cancellation or correction of entries in the civil registry Appeals in special proceeding Criminal Procedure Civil Procedure Evidence Special Proceedings strictly applicable to orders in special proceedings. VI. XVI.M. No. XI. parties respond through an opposition a PRELIMINARY MATTERS Special proceedings: A remedy by which a party seeks to establish a status. Applicable rules  If special rules are provided. venue and process Summary settlement of estates Production and probate of will Allowance or disallowance of will Letters testamentary and of administration Claims against the estate Actions by and against executors and administrators Distribution and partition Trustees Escheat Guardianship Adoption Writ of habeas corpus Writ of Amparo (A. But in the absence of such special provisions.REMEDIAL LAW REVIEWER 228 Special Proceedings REMEDIAL LAW Preliminary Matters I.  The State has an overriding interest in each special proceeding. as far as practicable. VII. Difference Between Action and Special Proceeding Ordinary Action To protect/enforce a right or prevent/ redress a wrong Involves 2 or more parties Governed by ordinary rules supplemented by special rules Initiated by pleading. applicable in special proceedings. XIII. III.g. XII. and the matter is not a controversy between private parties purely (Bautista). No formal pleadings are required. 3(c)). Sec. XVIII. Sec. V. II. Special proceeding . IX. IV. VIII. CA (1969)]. Settlement of estate of deceased persons. the rules applicable in special proceedings shall be applied (Rule 72. 2). X. right or a particular fact (Rule 1.  There are special proceedings which are not part of the ROC (e. the rules provided for in ordinary actions shall be. XV. and parties respond through an answer Special Proceeding To establish right/status/fact May involve only 1 party Governed by special rules.formal demand of one‘s right in a court of justice in the manner prescribed by the court or by the law (Herrera). or particular fact. unless the statute expressly so provides (Herrera). In the absence of special provisions. Rule 109 specifies the orders from which appeals may be taken (Regalado). XIV. Writs of amparo and habeas data). they shall apply.  The distinction between final and interlocutory orders in civil actions for purposes of determining the issue of applicability is not Action . XVII. . supplemented by ordinary rules Initiated by petition.  Rule 33 regarding judgment on demurrer to evidence is applicable to special proceedings [Matute v.application or proceeding to establish the status or right of a party. Subject Matter and Applicability of General Rules Rules of special proceedings are provided for in the following cases: (1) Settlement of estate of deceased persons (2) Escheat (3) Guardianship and custody of children (4) Trustees (5) Adoption (6) Rescission and revocation of adoption (7) Hospitalization of insane persons (8) Habeas corpus (9) Change of name (10) Voluntary dissolution of corporations (11) Judicial approval of voluntary recognition of minor natural children (12) Constitution of family home (13) Declaration of absence and death (14) Cancellation of correction of entries in the civil registry.

000. annulment. where adoptee resides if filed with the Family Court Where adoptee resides If filed with RTC. collected. MTC in the province or city in case there is no RTC judge Sandiganbayan. CA or Sandigabayan RTC. RTC RTC RTC RTC Family Court RTC RTC Family Court ICAB or Family Court Family Court SC. SC or any justice thereof RTC Local Civil Registry/ Philippine consulate 229 Escheat Appointment of Guardians Appointment of Trustees Adoption Rescission of Adoption Habeas Corpus Person dies intestate leaving no heir – Residence of the decedent or if non-resident. legal separation RTC Judicial . or does not exceed P400. or stored. at the option of the petitioner Where the threat. place where he had estate Reversion – where land lies in whole or in part Unclaimed Balances Act – where deposits are located Where minor resides Where incompetent resides Where will was allowed or Where the property or portion thereof affected by the trust is situated Domestic – where adopter resides Inter-country Adoption – ICAB or.where petitioner resides Administrative:  Local civil registry where the record sought to be changed is kept  Local civil registry of the place of residence of the interested party (only if petitioner migrated to another place in the Philippines and it is impractical to file where records sought to be changed are kept)  Philippine consulates only for non-resident citizen Where Absentee resides before his disappearance Amparo Change of Name Appointment of Representative of Absentee/ Declaration of Absence Cancellation / Correction of Entries in Civil Registries Petition for declaration of nullity. Sandiganbayan. only in aid of its appellate jurisdiction Family Court. place where he had an estate Jurisdiction MTC if gross value of the estate does not exceed P300. act or omission was committed or any of its elements occurred Judicial .Where corresponding civil registry is located Administrative . CA. RTC. or that which has jurisdiction over the place where the data or information is gathered. where petitioner resides or where minor may be found Where the petitioner or respondent resides. where he may be found at the election of the petitioner RTC Local Civil Registry/ Philippine consulate Family Court . SC.Same as change of name Where petitioner or respondent has been residing for at least 6 months prior to the date of filing If non-resident petitioner.REMEDIAL LAW REVIEWER Venues and Jurisdictions for Special Proceedings Special Proceeding Settlement of the Estate of a Deceased Person Venue Residence of the decedent If non-resident. SC RTC generally If concerning public data files or government offices. where detainee is detained Habeas Data For the custody of minors. CA. CA.000 in Metro Manila otherwise.

without prejudice to third persons [Trinidad v. meaning. the personal. Which court has jurisdiction Venue in judicial settlement of estate Extent of jurisdiction of Probate Court Powers and Duties of Probate Court property. or (2) With consent of all the parties. C. Remedies of aggrieved parties after extrajudicial settlement of estate Extrajudicial Settlement No will (intestate) No debts Gross value of estate may exceed P10. VENUE AND PROCESS A. within the purview of their grant of authority. when allowed E. Rule 73] General Rule: The jurisdiction assumed by a court. when allowed B. shall not be contested in a suit or proceeding. actual residence of place of abode. Extent of jurisdiction Probate Court Probate court is of limited jurisdiction of A. to be a general tendency. and is subject to final decision. [Garcia Fule v. OR (2) When the want of jurisdiction appears on the record. CA (1991)] A. Exceptions: (1) Probate court may pass judgment upon the title but such determination is provisional. It must be settled in a separate action. Jurisdiction: court first taking cognizance shall exercise jurisdiction to the exclusion of all other courts. reasonably necessary to enable them to accomplish the objects for which they were invested with jurisdiction and to perfect the same. Powers and Duties of Probate Court Dariano vs. Exceptions: (1) In an appeal from that court.000 in Metro Manila.000 or P400.REMEDIAL LAW REVIEWER 230 I. Venue in judicial settlement of estate Rule 73 relates to venue and not to jurisdiction The place of residence of the deceased in settlement of estates. Summary settlement of estates of small value. Affidavit of Self-adjudication by sole heir D.000 in Metro Manila. Two-year prescriptive period C. however. Jurisdiction of MTCs When the value of the estate does not exceed P300. such questions cannot be determined in the courts of administration proceedings. [Sec.000 Summary Settlement Will may or may not exist (intestate/testate) Debts may or may not exist Gross value of estate may not exceed P10. Fernandez Fidalgo (1909): It is the duty of courts of probate jurisdiction to guard jealously the estates of the deceased person by intervening in the administration thereof in order to remedy or repair any injury that may be done thereto In Re: Baldomero Cosme (1937: There seems. in the original case. or of the location of his estate.in the section is viewed in its popular sense. SUMMARY SETTLEMENT OF ESTATES A. Which court has jurisdiction Decedent Inhabitant of the Philippines at time of death (citizen/alien) Inhabitant of foreign country Venue RTC of the province in which he resides RTC of any province in which he had estate D. D. B. Extrajudicial settlement by agreement between heirs. actual or physical habitation of a person. and issuance of letters of administration does not constitute an element of jurisdiction over the subject matter. to uphold the exercise by the probate court of such incidental powers as are. CA (1976)] C. SETTLEMENT OF ESTATE OF DECEASED PERSONS. It is only constitutive of venue. Jurisdiction of RTCs When the value of the estate exceeds P300. when allowed Requisites (1) No will (2) No debts OR the heirs have already paid such at the time of partition General rule: When questions arise as to ownership of property alleged to be part of the estate of the deceased but claimed by some other person to be his . Extrajudicial settlement by agreement between heirs. not by virtue of any right of inheritance from the deceased but by title adverse to that of the deceased and his estate. in the absence of express and specific restrictions to the contrary.000 or P400.000 B. so far as it depends on the place of residence of the decedent. II. probate of will. 1. not conclusive. Meaning of term ―resides‖ Resides .

Bond Requirement File a bond equal to the value of the personal property involved as certified to under oath by the parties. When Allowed (1) Gross value of estate: x < P300. even if the estate has no debts or obligations. even without previous authority of the court to enter into such agreement. Validity of compromise agreement Such is VALID. he may adjudicate to himself the entire estate by means of an affidavit filed in the office of register of deeds. conditioned upon the payment of any just claim that may be filed Bond Requirement File a bond equal to the value of the personal property involved as certified to under oath by the parties. While Sec. [Sec. [Sec. Affidavit of Selfadjudication by sole heir If there is only one heir. Two-year period prescriptive Claim by creditors and deprived heirs must be filed within 2 years from the time of distribution/ publication.000 in Metro Manila (2) Fact is made to appear to the RTC (3) Through petition of an interested person (4) Upon hearing  Held not less than 1 month nor more than 3 months  Counted from the date of the last publication of a notice (5) Notice  Which shall be published once a week for 3 consecutive weeks  In a newspaper of general circulation in the province  It is not required that publication be for a complete 21 days. CA (2000)] Requirement under Rule 74. when allowed This shall be applicable to testate or intestate proceedings. 1. . Rule 74 does not preclude the heirs from instituting administration proceedings.REMEDIAL LAW REVIEWER (3) Heirs are all of age or the minors are represented by their judicial or legal representatives Procedure Death of the decedent  Division of estate in public instrument or affidavit of adjudication  Filing of the public instrument or affidavit of adjudication with the proper Registry of Deeds  Publication of notice of the fact of extrajudicial settlement once a week for 3 consecutive weeks in a newspaper of general circulation  Filing of bond equivalent to the value of personal property If there is no disagreement between the heirs If there is disagreement If only heir one The parties may divide the estate among themselves by means of a public instrument filed in the office of register of deeds. once each week. conditioned upon the payment of any just claim that may be filed of deprived heirs and creditors. if they do not desire to resort for good reasons to an ordinary action for partition.000 outside Metro Manila and x < 400. the said provision does not compel them to do as if they have good reasons to take a different course of action. because there is no law that requires partition among heirs to be in writing to be valid. Summary settlement of estates of small value. [Sec. the requirements no longer apply. [Sec. No preclusion proceedings from instituting administration D. Rule 74] C. Rule 74] Validity of oral partition Such is VALID. Where there are no creditors. What is required is that it be published for once a week for 3 consecutive weeks. 1. upon the perfection of the contract. or (2) Had no notice thereof. or to resort to an ordinary action for partition. [Pada Kilario v. [Pereira v CA (1989)] 231 B. They may divide the estate in an ordinary action of partition. 4. Presumption of no debts It shall be presumed that the decedent left no debts if no creditor files a petition for letters of administration within 2 years after the death of the decedent. Rule 74] Publication Fact of the extrajudicial settlement shall be published in a newspaper of general circulation 3 times a week. Sec.1 is merely for the protection of creditors and the heirs themselves against tardy claims. binding upon the parties as individuals. 1. 1 allows the heirs to divide the estate among themselves as they may see fit. Rule 74] Not binding on any person who: (1) Has not participated in the extrajudicial settlement. 1. He may adjudicate to himself the entire estate by means of an affidavit filed in the Registrar of Deeds.

the settlement of the debt or lawful participation and order how much and in what manner each distribute shall contribute in the payment thereof and may issue execution. Heir/person deprived of lawful participation in PAYABLE IN MONEY REMEDY within 2 yr. Duty of the court (1) Hear the case (2) Settle the amount (3) Order how much and in what manner each distribute shall contribute in the payment thereof E. 4. allowance of the will. will be entitled to receive and enter into possession of the portions of the estate so awarded to them respectively Procedure Death of the decedent  Application for summary settlement with an allegation that the gross value of the estate does not exceed P10K  Publication of notice of the fact of extrajudicial settlement once a week for 3 consecutive weeks in a newspaper of general circulation (the court may also order notice to be given to other persons as such court may direct)  Hearing to be held not less than 1 month nor more than 3 months from the date of the last publication of notice  Court to proceed summarily. by order for that purpose. or (3) both. after hearing. against the bond provided in the preceding section or against the real estate belonging to the deceased.REMEDIAL LAW REVIEWER (6) Notice to interested persons as the court may direct. if circumstances require. Period for Claim of Minor or Incapacitated Person If on the date of the expiration of the period of 2 years prescribed in the preceding section the person authorized to file a claim is: (1) a minor or mentally incapacitated. and  may issue execution. he may present his claim within 1 year after such disability is removed. period: court may order after hearing. period: May compel the settlement of the estate in the courts in the manner hereinafter provided for the purpose of satisfying such lawful participation. If it shall appear within 2 years after the summary settlement and distribution that there is an heir or other person who (1) has been unduly deprived of his lawful participation in the estate:  He shall have a right to compel the settlement of the estate in the courts for the purpose of satisfying such lawful participation (2) has been unduly deprived of his lawful participation payable in money: The court having jurisdiction of the estate may. Heir/person deprived of lawful participation in estate REMEDY within 2 yr. [Sec. Such bond and real estate shall remain charged with a liability to creditor. heirs or other persons for the full period of 2 years after such distribution. the court may proceed summarily without the appointment of an executor/administrator and without delay. and to make orders as may be necessary  Grant allowance of the will. or both. if proper. or their guardians. or is in prison or (2) outside the Philippines. (7) to grant. (1) against bond. without appointing an executor/administrator (executor/administrator). or (2) against the real estate belonging to the deceased.  settle the amount of such debts or lawful participation. 232 Upon fulfillment of the requisites. Rule 74]. if any  Determine persons entitled to estate  Pay debts of estate which are due  Filing of bond fixed by the court  Partition of estate Notes: There is no requirement regarding the lack of debts (unlike extrajudicial partition) in summary settlement of estates of small value since the court will make provisions for such in its resolution of the proceedings. and  order how much and in what manner each distributee shall contribute in the payment thereof. if any there be (8) to determine who are persons legally entitled to participate in the estate (9) to apportion and divide among them after the payment of such debts of the estate (10) persons in own right if of lawful age. notwithstanding any transfers of real estate that may have been made. Remedies of aggrieved parties after extrajudicial settlement of estate Two-Year Period for Liability of Distributees and Estate for Claims of Deprived Heirs or Unpaid Creditors .

the will cannot be probated because the best and only evidence is the handwriting of the testator in said will. Under Article 1144 (NCC).REMEDIAL LAW REVIEWER (4) If circumstances require. Who may petition for probate. Bagumbaran (1987). then the prescriptive period to enforce the same prescribes in 10 years. Thus. or both Bond and real estate remain charged Bond charged with a liability to creditors. persons entitled to notice Petitioner for the allowance of the will (1) Executor (2) Devisee (3) legatee (4) other person interested in the estate (5) testator himself. Nature of probate proceeding B. Since implied or constructive trusts are obligations created by law. It may pass upon the intrinsic validity of the will because there is apparent defect in its face – this is also known as the principle of practical consideration [Nepomuceno v CA (1985)]. or in the property to be affected by it either as executor or as a claimant of the estate and an interested party is one who would be benefited by the estate such as an heir or one who has claim against the estate like a creditor. or the real estate belonging to the deceased. Nature of proceeding probate General Rule: A probate proceeding only looks at extrinsic validity and not intrinsic validity. or in the will. freely executed the will in accordance with the formalities prescribed by law Exception: Under exceptional circumstances. the probate court is not powerless to do what the situation constrains it to do and pass upon certain provisions of the will. but not against third persons not parties thereto A. an action for reconveyance based on an implied or constructive trust must perforce prescribe in 10 years and not otherwise. heirs. PRODUCTION AND PROBATE OF WILL A. (Ex. persons entitled to notice . When on the face of the will the petitioner appears to be preterited) But the remedy of certiorari is available.g. which has been duly probated and such order becoming final. 1 of Rule 74 have been strictly complied with (all persons or heirs of the decedent have taken part in the extrajudicial settlement or are represented by themselves or through guardians) This is only a Bar against the parties who had taken part in the extrajudicial proceedings. Probate is merely the determination of whether or not the testator. Rodelas v Aranza (1982): General Rule: If a holographic will has been lost or destroyed and no other copy is available. The Torrens title does not furnish a shield for fraud. the following actions must be brought within 10 years from the time the right of action accrues: (1) upon a written contract (2) upon an obligation created by law (3) upon a judgment. HOWEVER in Amerol v. is therefore a holder of the said certificate in bad faith. subject to the right of appeal Suit for forgery of a will. B. where the grounds for dismissal are indubitable (e. issue execution against the bond. grave abuse of discretion of the judge when there is clearly preterition and the said judge still continues the probate proceedings) Decree of probate is conclusive as to its due execution. 233 Action to Annul a Deed of Extrajudicial Partition Prescriptive period Action to annul a deed of extrajudicial settlement upon the ground of fraud may be filed within 4 years from the discovery of the fraud (deemed to have taken place when said instrument was filed with the Register of Deeds and new certificates of title were issued in the name of respondents respectively). Bars such suit because the will is conclusively deemed as duly executed. Exception: A photostatic copy or Xerox of the holographic will may be allowed because comparison can be made with the standard writings of the testator. the Court applied the New Civil Code. Exception Prescriptive period for the filling of the action for reconveyance based on implied trust should be reckoned from the actual discovery of the fraud where the registration where there was bad faith in securing the certificates of titles and. III. notwithstanding any transfers of real estate that may have been made Rule not applicable: (1) To persons who have participated or taken part or had notice of the extrajudicial partition (2) When the provisions of Sec. during his lifetime Meaning of interest in estate In order that a person may be allowed to intervene in a probate proceeding he must have an interest in the estate. being of sound mind. or other persons for the full period of 2 years after such distribution. Who may petition for probate.

or otherwise mentally incapable to make a will. Requisites before will proved outside allowed in the Philippines. Powers and duties of Executors and Administrators. or fail to give bond or (3) Or person dies intestate. or threats (4) If procured by undue and improper pressure and influence. legatees. Reprobate. if competent and willing to serve. ALLOWANCE OR DISALLOWANCE OF WILL A. the name of the person having custody of it. effects of probate . Grounds for disallowing a will (1) If not executed and attested as required by law (2) If the testator was insane. Contents of petition for allowance of will B. or the influence of fear. and residences of the heirs. effects of probate A. or both. according to the laws of such country. Order of preference Order of preference in the grant of administration (1) Surviving spouse or next of kin. and recorded by the proper Court of First Instance in the Philippines. Requisites for Allowance (1) Copy of the will (2) Order or decree of the allowance in foreign country (3) Filed with a petition for allowance in the Philippines by executor or other person interested (4) Court shall fix a time and place for the hearing (5) Cause notice thereof to be given as in case of an original will presented for allowance. on the part of the beneficiary. Appointment of Special Administrator F. may be allowed. if competent and willing to serve. how acquired (1) Attaching a mere copy of will or (2) Delivery of will. V. or next of kin. C. Defect in petition Defect in petition will not void the allowance of the will. Contents of petition allowance of will for (1) Jurisdictional facts (a) Death of the decedent (b) Residence at the time of death in the province where the probate court is sitting (c) Or if he is an inhabitant of a foreign country. and he did not intend that the instrument should be his will at the time of fixing his signature thereto Note: The grounds for disallowance of will are exclusive. Effect The will shall have the same effect as originally proven and allowed by such court 234 IV. even if no petition is filed or (3) Filing of the original petition and compliance with Sec 3-4 Rule 76. neglects for 30 days after the death of the person to apply for administration or to request that administration be granted to some other person. Reprobate Wills proved and allowed in a foreign country. ages. it may be granted to one or more of the principal creditors. Order of preference C. Requisites before will proved outside allowed in the Philippines. Opposition to issuance of letters testamentary. or if the husband or widow. filed.REMEDIAL LAW REVIEWER Jurisdiction. or next of kin requests to have appointed. ALLOWANCE OR DISALLOWANCE OF WILL A. or of some other person for his benefit (5) If the signature of the testator was procured by fraud or trick. When and To whom letters of administration granted B. Reprobate. simultaneous filing of petition for administration D. or to such person as the surviving spouse. B. his leaving his estate in such province (2) Names. To Whom Granted Discretionary upon the probate court B. at the time of its execution (3) If executed under duress. and devisees of the testator or decedent (3) Probable value and character of the property of the estate (4) Name of the person for whom letters are prayed (5) If the will has not been delivered to the court. or the issuance of letters testamentary or of administration with the will annexed. restrictions on the powers E. When and To whom letters of administration granted When Granted (1) No executor named or (2) Executor or executors are incompetent. Grounds for removal of administrator A. (2) If those in (a) be incompetent or unwilling. refuse the trust. Grounds for disallowing a will C.

as in this section provided. Keep Buildings Repair in Tenantable (a) Houses and other structures and fences belonging to the estate. (b) Examine and make invoices of the property belonging to such partnership (c) The surviving partner or partners. or. or (2) Contestant‘s own right to the administration Simultaneous Filing of Letters He may pray that letters issue to himself. [Silverio v. Court‘s duty: order any such surviving partner or partners to freely permit the exercise of the rights. Note: When the estate of a deceased is already subject of a testate or intestate proceeding. books and papers relating to the partnership business. Court may reject order circumstances warrant. papers. 235 D. Opposition to administration Grounds petition for letters of . Lack of interest in the proceedings is equal to lack of legal capacity to institute proceedings. Order of Preference NOT Absolute A probate court cannot arbitrarily disregard the preferential rights of the surviving spouse to the administration of the estate of a deceased person but if the person enjoying such preferential rights is unsuitable the court may appoint another person. and (b) Deliver the same in such repair to the heirs or devisees when directed so to do by the court. be filed for letters of administration with the will annexed. Powers and duties of Executors and Administrators. and may punish any partner failing to do so for contempt. restrictions on the powers General Powers and Duties Executors and Administrators of 1. it may be granted to such other person as the court may select. 3. shall exhibit to him all such books. papers. and to exhibit the books. the court shall then hear and pass upon sufficiency of such grounds. The selection of an administrator lies in the sound discretion of the trial court. [In Re Suntay (2007)] 30-day period may be waived Just as the order of preference is not absolute and may be disregarded for valid cause. speedy and economical administration of the estate. suffer the consequences of waste. C. Right to Possession Management of the Real Personal Properties and and (a) So long as it is necessary for the payment of the debts and the expenses of administration (b) Administrator cannot exercise the right of legal redemption over a portion of the property owned in common sold by one of the other coowners since this is not within the powers of administrator.‖ Co-administrators may be appointed. improvidence or mismanagement. Opposition to issuance of letters testamentary. Reason for order of preference Those who would reap the benefit of a wise. Executor or Administrator to Have Access to Partnership Books and Property at All Times (a) Have access to. the administrator cannot enter into any transaction involving it without any prior approval of the Court. and property. CA (2007)] The order of preference is not absolute for it depends on the attendant facts and circumstances of each case. and property in their hands or control. on the other hand. ―may be granted to one or more of the principal creditors. Who may oppose: Any person interested in will Form required: State in writing the grounds why letter should not issue. at the same time.REMEDIAL LAW REVIEWER (3) If there is no (b). so may the 30day period be likewise waived under the permissive tone in paragraph (b) of said rule which merely provides that said letters as an alternative. Simultaneous filing of Opposition and Petition: A petition may. and may examine and take copies of. have the highest interest and most influential motive to administer the estate correctly. on request. or to any competent person or person named in the opposition. simultaneous filing of petition for administration Opposition to testamentary issuance of letters 2. Mere failure to apply for letters of administration does not remove preference. of preference when (1) Incompetency of the person for whom letters are prayed.

(c) Executor‘s/administrator‘s responsibility for damages incurred cannot be shifted to the intestate estate. by collecting the debts or selling the real or personal estate of the deceased.The fact that the heirs of the estate have entered into an extrajudicial settlement and partition in order to put an end to their differences cannot in any way be interpreted as a waiver of the objections of the heirs to the accounts submitted by the administrator not only because to so hold would be a derogation of the pertinent rules but also because there is nothing provided in said partition that the aforesaid accounts shall be deemed waived or condoned. Executor or Administrator Render Account to 2. . Accountable if He Neglects or Delays to Raise or Pay Money (a) Neglects or unreasonably delays to raise money. except when no objection is made to the allowance of the account and its correctness is satisfactorily established by competent proof . or adjusted by the court with their assent and if the parties do not agree upon the sum to be allowed.Unless the court otherwise directs because of extensions of time for presenting claims against. Executor or Administrator Chargeable with all Estate and Income Chargeable in his account with the whole of the estate which has come into his possession. and the value of the estate is thereby lessened or unnecessary cost or interest accrues. or for disposing of the estate Further accounts .He is entitled to charge in his account only the amount he actually paid on the settlement (e) Not accountable For debts due the deceased which remain uncollected without his fault Accounting .REMEDIAL LAW REVIEWER The right of an executor/administrator to the possession and management of the real and personal properties of the deceased is not absolute and can only be exercised so long as it is necessary for the payment of the debts and expenses of administration 236 5. and not in good faith. or the persons interested suffer loss. without his fault. Accountable for Income Realty Used by Him from If the executor/administrator uses or occupies any part of the real estate himself. Examination on Oath by Court . or (b) Neglects to pay over the money he has in his hands. 3. and distribution of the residue among persons entitled thereto Restrictions on Powers of Executors and Administrators 1. the same may be ascertained by the court. (b) Profit (c) Income of such estate and (d) With the proceeds of as much of the estate as is sold by him.The rendering of an accounting by an administrator of his administration within 1 year from his appointment is mandatory. Prohibited from Profiting by Increase or Losing by Decrease in Value (a) No executor/administrator shall profit by the increase. Only Necessary Expenses shall be allowed (a) The amount paid by an executor/administrator for costs awarded against him shall be allowed in his administration account (b) Unless it appears that the action or proceeding in which the costs are taxed was prosecuted or resisted without just cause.If court requires . of any part of the estate (b) Account for the excess (when sold for more) (c) If sold for less. if in good faith (d) If settled claim for less . at the value of the appraisement contained in the inventory: (a) With all the interest. at the price at which it was sold. not responsible for loss. The only exception is when the court otherwise directs because of extensions of time for presenting claims against the estate or for paying the debts or disposing the assets of the estate . the estate.Within 1 year from the time of receiving letters testamentary or of administration .The heirs. he shall account for it as may be agreed upon between him and the parties interested.As to the correctness of his account before the same is allowed. or suffer loss by the decrease or destruction. 6. and creditors of the estate shall have the same privilege as the executor/administrator of being examined on oath on any matter relating to an administration account. or paying the debts of. whose determination in this respect shall be final 4. (c) Administrator may not recover attorney‘s fees from estate Necessary expenses: Such expenses as are entailed for the preservation and productivity of the estate and for its management for purpose of liquidation. legatees. payment of debts. distributees.

his debts creating an equitable lien thereon for the benefit of the creditors. (3) The primary object of the provisions requiring presentation is to appraise the administrator and the probate court of the existence of the claim so that a proper and timely arrangement may be made for its payment in full or by prorata portion in the due course of the administration. Appointment of Special Administrator When appointed (1) When there is delay in granting letters testamentary or administration. or satisfaction in one of the modes recognized by law Purpose of presentation of claims against estate (1) To protect the estate of the deceased. inasmuch as upon the death of a person. Statute of Non-claims C. Duties Will take possession and charge of the estate until: (1) the questions causing the delay are decided and (2) executor/administrator appointed Procedure for appointment There must first be notice and publication. Grounds for removal of administrator Grounds for removal of executor or administrator (1) Neglects to: (a) Render his account (b) Settle the estate according to law (c) Perform an order or judgment of the court. including an appeal from allowance or disallowance of a will. (2) That way. (4) May sell only such perishable and other property as the court orders sold. credits.Express or implied . (2) If there is no remaining executor/administrator. (2) The executor/administrator may prosecute to final judgment suits commenced by such SA. the executor/administrator will be able to examine each claim. Appointment of special administrator lies entirely in the sound discretion of the court. Claim of Executor or administrator against the Estate D. or (2) By any cause. And such lien continues until the debts are extinguished either by the payment. VI.to pay any debts of the deceased unless so ordered by the court. exceptions B. and estate of the deceased and (2) Preserve the same for the executor/administrator afterwards appointed. Time within which claims shall be filed.Due or not . Notice through publication of the petition is a jurisdictional requirement even in the appointment of a special administrator. chattels. Time within which claims shall be filed. unless the court grants letters to someone to act with him. exceptions Claims must be filed within the time specified by the court in its notice which shall not be less than 6 months nor more than 12 months from the date of the first publication of the notice F. once fixed by the courts. Effect of Removal (1) The remaining executor/administrator may administer the trust alone. When Special Administrator Ceases Duties When letters testamentary/administration are granted on the estate of the deceased (1) He shall deliver to the executor/administrator the goods. rights. determine whether it is a proper one which should be allowed. money. or a duty expressly provided by these rules (2) Absconds (3) Becomes insane or (4) Becomes incapable or unsuitable to discharge the trust. his entire estate is burdened with the payment of his debts and no creditor shall enjoy any preference or priority all of them shall share pro-rata in the liquidation of the estate of the deceased 237 A. all his property is burdened with all his debts. (5) Not liable . Payment of Debts Estate burdened with lien of creditors Upon the death of the person. (3) and for that purpose may commence and maintain suits as administrator. B.REMEDIAL LAW REVIEWER E. CLAIMS AGAINST THE ESTATE A. administration may be to any suitable person. and estate of the deceased in his hands. is mandatory . Statute of Non-claims Claims Covered (1) Claims for money against the decedent arising from contract . prescription. Powers and Duties of Special Administrator (1) Take possession and charge of the goods. The period.Contingent or not (2) Claims for funeral expenses (3) Expenses for the last sickness (4) Judgment for money against the decedent. chattels.

Retain a portion equal to the dividend of the other creditors. Purpose: to settle the estate with dispatch. If estate insolvent . or family expenses shall be paid according to such provisions (2) If not sufficient The part of the estate not disposed of by will shall be appropriated for the purpose Personally First Chargeable for Debts. Effect if a debtor obtains a favorable judgment against the estate: the amount shall be considered the true balance against the estate.The whole of the real estate not dispose of by will. as the general executor/administrator in the adjustment of such claim. may be sold.5 is mandatory so that the estate of the deceased can be protected against fraudulent complaint. (3) The court may order the executor or administrator to pay to the special administrator necessary funds to defend such claim. Estate to Be Retained to Meet Contingent Claims If court is satisfied that such claim is valid: (1) It may order the executor/administrator to retain in his hands sufficient estate (2) For the purpose of paying the contingent claim when such becomes absolute. under the ordinary statute of limitations have not yet prescribed. C. Claim of Executor or administrator against the Estate Procedure to follow if the executor or administrator has a claim against the estate he represents (1) Executor/Administrator shall give notice thereof. Then Realty General Rule: Personal estate not disposed of by will shall be FIRST chargeable Exception (1) Not sufficient for the purpose. instead of presenting them independently to the court. Mutual claims may be set off against each other in such action. The court can rightfully hold in abeyance until the civil case is settled.REMEDIAL LAW REVIEWER Effect of non-claim – forever barred Failure to make the claim within the time fixed by the Courts will result in barring any recovery. The presentation of money claim may be waived. De Bautista v De Guzman (1983): Rule 86. or so much thereof as is necessary. which. mortgaged. The failure to present their claims before the intestate proceedings of the estate of decedent within the prescribed period constituted a bar to a subsequent claim against the estate or a similar action of the same import. to the court (2) The court shall appoint a special administrator who shall have the same powers and liabilities . or (2) Its sale will redound to the detriment of the participants for the estate In which case— . The probate court may hold in abeyance intestate proceedings pending determination of a civil case against the administratrix. or otherwise encumbered for that purpose by the executor/administrator. the plaintiffs should have presented their claims before the intestate proceedings then pending in the same court. 238 D. Thus. in writing. EXCEPTION: (1) When set forth as counterclaims in any action that the executor/administrator may bring against the claimants (2) If the decedent is a creditor and the executor or administrator commences an action or continues the action . The heirs of the estate may not demand the closing of an intestate proceeding at anytime where there is a pending case against the administrator of the estate. as though the claim had been presented directly before the court in the administration proceedings Rule on belated claims The Court has the discretion to allow contingent claims The law gives the probate court discretion to allow claims presented beyond the period previously fixed provided they are filed within 1 month from the expiration of such period but in no case beyond the date of entry of the order of distribution.Any deficiency shall be met by contributions in accordance with the provisions of S6 of this rule. so that the residue may be delivered to the persons entitled thereto without their being afterwards called upon to respond in actions for claims. and (2) It appears that there are sufficient assets to pay the debts Executor/administrator shall pay the same within the time limited for that purpose. Part of Estate from Which Debt Paid When Provision Made by Will (1) Testator provided for payment of debt Expenses of administration. upon the dismissal of the first complaint. Payment of Debts Debts Paid in Full if Estate Sufficient (1) After all money claims heard and ascertained.the debtor may set forth by answer the claims he has against the decedent.Court approval must be obtained first . .

Court to Fix Contributive Shares Where Devisees. and (2) Executor/administrator had opportunity to contest such allowance The court shall: (1) Receive a certified list of such claims. as soon as the time of payment arrives. when perfected in such country. (Preference of credits) Dividends to Be Paid in Proportion to Claims Each creditor within such class shall be paid dividend in proportion to his claim. according to their respective claims Order of Payment of Debts Before the expiration of the time limited for the payment of the debts (1) The court shall order the payment thereof. But after partition of an estate. or Heirs Have Been in Possession (1) Possession before debts and expenses paid Court shall . and the creditor may maintain an action against the distributees to recover the debt. (2) As the circumstances of the estate require and in accordance with the provisions of this rule Appeal Taken From a Decision of the Court Concerning the Claim The court may: (1) Suspend the order for payment or order the distribution among creditors whose claims are definitely allowed (2) Leave in the hands of executor/administrator sufficient assets to pay the claim disputed and appealed. Claim not presented after becoming absolute and allowed within 2 year period The assets retained in the hands of the executor/administrator. Legates. and (2) If the whole assets not distributed or other assets afterwards come to the hands of executor/administrator.REMEDIAL LAW REVIEWER Contingent Claim When Allowed (1) When it becomes absolute. or the 239 . shall be distributed by the order of the court to the persons entitled But the assets so distributed may still be applied to the payment of the claim when established. the heirs and distributees are liable individually for the payment of all lawful outstanding claims against the estate in proportion to the amount or value of the property they have respectively received from the estate Order of Payment if Estate Is Insolvent Executor/administrator pays the debts against the estate. not exhausted in the payment of claims. and such distributees and their estates shall be liable for the debt in proportion to the estate they have respectively received. (2) Liability of heirs and distributes Heirs are not required to respond with their own property for the debts of their deceased ancestors. and the distribution of the assets received by the executor/administrator for that purpose among the creditors. Time to Time Further Orders of Distribution (1) Whole of the debts not paid on first distribution.May issue execution as circumstances require.Creditor shall receive payment to the same extent as the other creditors if the estate retained by the executor/administrator is sufficient. Insolvent Resident with Foreign Creditors and Foreign claims proven in another country (1) Executor/administrator in the Philippines had knowledge of the presentation of such claims in such country. Creditors to Be Paid in Accordance With Terms of Order When an order is made for the distribution of assets among creditors. (2) Presented to the court or executor/administrator within 2 years from the time limited for other creditors to present their claims. Insolvent Non-Resident His estate found in the Philippines shall be so disposed of that his creditors here and elsewhere may receive each an equal share. in proportion to their respective credits. No creditor of any one class shall receive any payment until those of the preceding class are paid. (2) And add the same to the list of claims proved against the deceased person in the Philippines (3) So that a just distribution of the whole estate may be made equally among all its creditors But the benefit of this and the preceding sections shall not be extended to the creditors in another country if the property of such deceased person there found is not equally apportioned to the creditors residing in the Philippines and the other creditor. When a disputed claim is finally settled  court shall order the claim to be paid out of the assets retained to the same extent and in the same proportion with the claims of other creditors.Hear and settle the amount of their several liabilities .Order how much and in what manner each shall contribute . and (3) Not disputed by executor/administrator If disputed It may be proved and allowed or disallowed by the court as the facts may warrant Court ruling: Allowance of contingent claim or Disallowance If allowed . the executor or administrator shall. observing the provisions of Articles 1059 and 2239 to 2251 of the Civil Code. pay the creditors the amounts of their claims.

in accordance with the terms of such order. B.Not exceeding 6 months at a time and not exceeding 6 months beyond the time which the court might have allowed to such original executor/administrator . An administrator may not pull a third person against his will into the administration proceedings by mere motion for a demand of rentals. Requisites before creditor may bring an action for recovery of property fraudulently conveyed by the deceased A. right or interest therein. When Recovery of Property Fraudulently Conveyed by Deceased May be Recovered (1) There is deficiency of assets and the deceased. right. embezzled.REMEDIAL LAW REVIEWER dividend thereon. or alienated.e. (3) Court must hear the application. or debt or credit with intent to defraud his creditors or avoid any right. goods. interest. had conveyed real or personal property. not only limited to injuries to specific property. If a person before granting letters testamentary or administration (1) Embezzles or alienates (2) Any of the money. as required in the last preceding section.Court may extend the time to x < 6 months per extension . interest.Notice shall be given of the time and place for hearing such application. and (3) The subject of the attempted conveyance would be liable to attachment by any of them in his lifetime. creditors making the application pay such part of the costs and expenses or give security therefor.Whole period to the original executor/ administrator MUST be only x < 2 years  Requisites (1) Executor/administrator must apply. 240 Court Shall Allow Executor or Administrator a Time for Disposing the Estate and Paying Debts and Legacies  Period: x < 1 year . debt or duty. Actions that may be brought against executors and administrators B. (2) Notice must be given as to time and place of hearing. right. in his lifetime. VII.x < 6 months . Executor or Administrator may Bring or Defend Actions Which Survive For the recovery or protection of the property or rights of the deceased  Covers injury to property i. to be recovered for the benefit of such estate. Ground for Extension (1) Original executor/administrator dies (2) New administrator appointed Consequence: The court may extend the time allowed for the payment of the debts or legacies beyond the time allowed to the original executor/administrator . or (2) Had so conveyed such property. Actions that may be brought against executors and administrators Actions Which May and Which May Not Be Brought AGAINST the Executor or Administrator Actions to be brought against Administrators (1) Recover real or personal property or interest therein (2) Or to enforce a lien thereon and (3) Actions to recover damages for an injury to a person or property Claims against the administrator may be presented in the administration proceedings but not against third persons. but extends to other wrongs by which personal estate is injured or diminished. Duty of executor/administrator (1) Commence and prosecute to final judgment an action for the recovery of such property. Requisites before creditor may bring an action for recovery of property fraudulently conveyed by the deceased Any creditor may commence and prosecute to final judgment a like action for the recovery of the . but must do so in a separate action Actions which may NOT brought against Administrators Claim for the recovery of money or debt or interest cannot be brought against executors/administrators. chattels. debt or credit for benefit of the creditors (2) Provided. debt or credit that by law the conveyance would be void as against the creditors. ACTIONS BY AND AGAINST EXECUTORS AND ADMINISTRATORS A. or effects of such deceased Consequence: Such person shall be liable to an action in favor of the executor/administrator of the estate for double the value of the property sold.

taxes.Action shall be brought in the name of all the creditors Effect Such creditor shall have a lien upon any judgment recovered by him in the action for such costs and other expenses incurred therein as the court deems equitable. chargeable to the estate‖ have been paid. Project of Partition C. It is equally true. however. (2) All persons having interest in the subject matter involved. naming them and the proportions. General Rule: The following must be paid before distribution: (1) Debts (2) Funeral charges (3) Expenses of administration (4) Allowance to the widow (5) Inheritance tax. however. through the publication of the notice prescribed and any order that may be entered therein is binding against all of them. Afterwards. Such persons may demand and recover their respective shares from the executor/administrator. if in the course of intestate proceedings pending before a court of first instance. proceedings for the probate of the latter should replace the VIII. Exception: The distributees give a bond conditioned on the payment of above obligations 241 B. the residue may be distributed and delivered to the heirs.Determination of proportionate shares of distributes. . allowances.Determination the right of a natural child . for the settlement of the estate of a deceased person take precedence over intestate proceedings for the same purpose.. that testate proceedings. the following stages must be followed: (1) Liquidation of the estate i. whether they are notified or not. The executor/administrator has no duty to prepare and present the same under the Rules. Thus. If there is a controversy as to who are heirs or shares  heard and decided as in ordinary cases Effect of Final Decree of Distribution (1) In rem and binding against the whole world. Project of Partition A project of partition is merely a proposal for the distribution of the hereditary estate which the court may accept or reject. The court may. or parts. conditioned to indemnify the executor/administrator against the cost and expenses incurred by such action (2) If conveyance or attempt is made in favor of executor/administrator . or any other person having the same in his possession. . It is the court that makes that distribution of the estate and determines the persons entitled thereto (1) On application of executor/administrator or person interested in the estate (2) Notice (3) Hearing Court shall assign the residue of the estate to the persons entitled to the same. require him to present such project to better inform itself of the condition of the estate. Instances when probate court may issue writ of execution Before there could be a distribution of estate.e. (4) The only instance where a party interested in a probate proceeding may have a final liquidation set aside is when he is left out by reason of circumstances beyond his control or through mistake or inadvertence not imputable to negligence. DISTRIBUTION AND PARTITION A. . A. are equally bound. (3) The court acquires jurisdiction over all persons interested. to which each is entitled. (2) Declaration of heirs  to determine to whom the residue of the estate should be distributed.No need for court permission .REMEDIAL LAW REVIEWER subject of the conveyance or attempted conveyance if the following requisites are satisfied: Allowed in Two Instances (1) If executor/administrator failed to commence such action (a) With court permission (b) In the name of the executor/administrator (c) He files a bond. it is found that the decedent had left a last will. Liquidation B. CFI (1970): A special proceeding intended to effect the distribution of the estate of a deceased person is a "probate matter" or a proceeding for the settlement of his estate. payment of obligations of the deceased. it must be shown that the ―debts.No need for Bond. etc. Liquidation Before an order of distribution or assignment of the estate of the decedent among or to those entitled thereto by will or by law shall be made to close the proceedings for the settlement. Remedy of an heir entitled to residue but not given his share D. Uriarte vs. funeral expenses and expenses of administration.

Conditions of the Bond . however. TRUSTEES A. or (2) All persons beneficially interested in the trust. a true inventory of all the real and personal estate belonging to him as trustee. the proceeding shall continue as an intestacy. he fails to qualify as such. like an executor/administrator. C. Trustee must file bond before performing Duties (1) Filed with the clerk of court (2) Amount fixed by the judge (3) Payable to the government of Philippines (4) Sufficient and available for the protection of any party in interest If the trustee fails to furnish a bond as required by the court. Nonetheless. That at the expiration of his trust he will settle his account in court and pay over and deliver all the estate remaining in his hands. Requisites for the removal and resignation of a trustee D. request such exemption Exemption may be cancelled at any time Conditions (1) Inventory That the trustee will make and return to the court. Remedy of an heir entitled to residue but not given his share The better practice for the heir who has not received his share is to demand his share through a proper motion in the same probate or administrative proceedings. The duties of executor/administrator are however. a true account of the property in his hands and the management and disposition thereof. legatees and heirs in possession of the decedent‘s assets (2) To enforce payment of expenses of partition (3) To satisfy the costs when a person is cited for examination in probate proceedings IX. or due from him on such settlement. according to law and the will of the testator or the provisions of the instrument or order under which he is appointed (3) Accounting That he will render upon oath at least once a year until his trust is fulfilled. and will render such other accounts as the court may order (4) Settlement of account and deliver estate. usually governed by the intention of the trustor or the parties. Distinguished executor administrator from or Araneta v. particularly when the trustee acts as such under judicial authority.REMEDIAL LAW REVIEWER intestate proceedings even if at that stage an administrator had already been appointed. that should the alleged last will be rejected or is disapproved. and not through an independent action. [Guilas v. and faithfully discharge his trust in relation thereto. Perez (1962)]: A trustee. Instances when probate court may issue writ of execution (1) To satisfy the contributive shares of devisees. Requisites for the removal and resignation of a trustee (1) Petition by parties beneficially interested (2) Due notice to the trustee (3) Hearing B. fixed and/or limited by law whereas those of the trustee of an express trust are. which at the time of the making of such inventory shall have come to his possession or knowledge. the duties of trustees may cover a wider range than those of executor/administrator of the estate of deceased persons. Judge of the CFI of Pampanga. holds an office of trust. to the person or persons entitled to thereto. Extent of authority of trustee A. Exemption from inventory: (a) When trustee is not the original trustee appointed (b) Court‘s discretion (c) If an inventory has already been filed (2) Faithful management That he will manage and dispose of all such estate. unless he is excused in any year by the court. Grounds for removal and resignation of a trustee E. he is considered to have declined or resigned the trust. or for reopening of the probate or administrative proceedings if it had already been closed. (1972)] D. if established by contract. Conditions of the Bond C. When Exempt (1) When testator has directed such exemption. the latter being required to render final account and turn over the estate in his possession to the executor subsequently appointed. at such time as it may order. Besides. Distinguished from executor/ administrator B. is understood to be without prejudice. This. the trust is not defeated by such a failure to give bond. 242 C.

under whose courts he was appointed. Requisites for filing of petition . Fix a date and place for hearing. When to file (1) Person dies intestate. as the court shall deem best  The court shall hear the case and judge whether or not the estate shall be escheated  If the court rules in favor of the Republic. and (3) Leaves no heir or person by law entitled to the same B. gratuity or unearned benefit. such repudiation being open. Grounds for removal and resignation of a trustee Grounds for removal (ESIINU) (1) Removal appears ESsential in the interest of petitioner.  It shall assign the personal estate to the municipality or city where the deceased last resided. which shall not be more than 6 months after the entry of the order Direct a copy of the order to be published before the hearing at least once a week for 6 successive weeks in a newspaper of general circulation in the province Court shall adjudge. the court shall fix a date and place for the hearing  The court shall direct a copy of the order to be published before the hearing at least once a week for 6 consecutive weeks in some newspaper of general circulation published in the province. Tuazon (1931)]. in which the same is situated.  If the deceased never resided in the Philippines. Extent of authority of trustee Nature of Possession The possession of the property by the trustee is not an adverse possession. the whole estate may be assigned to the respective municipalities or cities where the same is located. This is based on the principle that his authority cannot extend beyond the jurisdiction of the Republic. (2) Seized of real property in the Philippines. Requisites for filing of petition C. When to file B. clear and unequivocal. but only a possession in the name and in behalf of the owner of the same. Territoriality of authority of trustee The powers of a trustee appointed by a Philippine court cannot extend beyond the confines of the territory of the Republic. Procedure Solicitor General or his representative in behalf of the Republic of the Philippines to file the petition:  Deceased was a resident of the Philippines—in the RTC of the province where he last resided  Deceased was a non-resident—in the RTC of the province in which he had an estate  Actions for reversion or escheat of properties alienated in violation of the Constitution or of any statute—in the province where the land lies in whole or in part  If the petition is sufficient in form and substance. period for filing a claim Escheat It is an incident or attribute of sovereignty and rests on the principle of ultimate ownership by the state of all property within its jurisdiction. and the real estate to the municipalities or cities. Remedy of respondent against petition. A trustee may acquire the trust estate by prescription provided there is a repudiation of the trust. ESCHEAT A. X.REMEDIAL LAW REVIEWER D. A. Effect if Escheat is Granted Personal estate  goes to the municipality or city of last residence Real estate  goes to the municipality or city where same is situated 243 E. known to the cestui que trust [Salinas v. Such estate shall be for the benefit of public schools. and public charitable institutions and centers in said municipalities or cities. It is a substantial right of the state and is not a claim based on charity. (2) Trustee is Insane or (3) Otherwise INcapable of discharging his trust or (4) Evidently Unsuitable Resignation He may resign but the court will determine if resignation is proper (1) A person died intestate (2) He left no heirs or persons by law entitled to the same (3) Deceased left properties Note: Must be initiated by the Government through the Solicitor General. respectively.

the father‘s decision shall prevail. a TRUE AND COMPLETE INVENTORY of all the real and personal property of his ward which shall come to his possession or knowledge or to the possession or knowledge of any other person in his behalf (2) To FAITHFULLY EXECUTE THE DUTIES OF HIS TRUST. widow. or if sold. FC) The father and the mother shall jointly exercise legal guardianship over the property of their unemancipated common child without the necessity of a court appointment. General Guardian – has custody and care of the ward‘s person and property. in the proper court of the place where the property or any part thereof is situated. Conditions of the bond of the guardian (Applicable for both Guardianship of Minors and incompetents) (1) To make and return to the court. custody and education (3) To render a TRUE AND JUST ACCOUNT of all the property of the ward in his hands.  Management of property within the Philippines (in case of non-resident ward). period for filing a claim Period to appeal and claim the estate Appeal must be made within 5 years from date of judgment. otherwise. and of all proceeds or interest derived from them. Art. 225. minor heirs of deceased war veterans and other incompetent persons. In case of disagreement. b. Rule on Guardianship over minors Parents as Legal Guardians (Art. 320. Legal Guardian – deemed as guardian by provision of law.REMEDIAL LAW REVIEWER 244 C.000: (1) The parent concerned shall be required to furnish a bond in such amount as the court may determine. GUARDIANSHIP A. 225. Guardian over the person. and monies remaining in his hands. Where the market value of the property or the annual income of the child exceeds P50. 3. C. to the person lawfully entitled thereto (4) To perform all orders of the court and such other duties as may be required by law.  Management of his property only. and of the management and disposition of the same. heir. (2) A verified petition for approval of the bond shall be filed in the Family Court of the place where the child resides. but not less than 10% of the value of the property or annual income. or due from him on such settlement. a. B. understanding or self-control is considered incapable of administering his own affairs [Herrera]. General powers duties of guardians and  Care and custody of the person of his ward and management of his property. the municipality or city shall be accountable to him for the proceeds after deducting reasonable charges for the care of the estate Period for filing claim 5 years from date the property was delivered to the state A. without need of court appointment (Art. widower. Guardian A person lawfully invested with power and charged with the duty of taking care of a person who for some peculiarity or status or defect of age. XI. Basis: Parens Patriae It is the State‘s duty to protect the rights of persons/individuals who because of age/incapacity are in an unfavorable position vis-à-vis other parties [Nery v. to settle his accounts with the court and deliver and pay over all the property. Judicial Guardian – appointed by the court in pursuance to law. legatee. or if the child resides in a foreign country. or other person entitled to such estate appears  Such person shall have possession of and title to the same. Rule on Guardianship over minor Guardianship The power of protective authority given by law and imposed on an individual who is free and in the enjoyment of his rights. prodigals. c. Guardian of the property. barred forever Filed by whom  Devisee. Guardian ad Litem – appointed by the court to prosecute or defend a minor. effects. unless there is a judicial order to the contrary. within three months after the issuance of his letters of guardianship. and to provide for his proper care. Kinds of Guardians (Regalado) 1. over one whose weakness on account of his age or other infirmity renders him unable to protect himself [Herrera]. in a court action. Lorenzo (1972)]. as guardians for insane persons. at the time designated by this rule and such other times as the court directs and at the expiration of his trust. Conditions of the bond of the guardian C. to manage and dispose the property according to this rule for the best interests of the ward. General powers and duties of guardians B. insane or person declared to be incompetent. Remedy of respondent against petition. . CC. FC) 2.

9). of a minor. deprivation or termination of parental authority . No. 16].000. if 14 years of age or over (c) The Secretary of DSWD or the Secretary of DOH. 03-02-05-SC) Scope and Applicability The father and the mother shall jointly exercise legal guardianship over the person and property of their unemancipated common child without the necessity of a court appointment [Sec. (3) Remarriage of his surviving parent. RoC) apply only to guardianship of incompetents other than a minor. Lagdameo (): The remedy of vendees prejudiced by the illegal transactions of a natural guardian involving the property of the minor child lies only against the natural guardian. in the case of an insane minor who needs to be hospitalized. age and residence of the person for whom letters of guardianship are prayed. Grounds for filing (1) Majority of the minor (2) Unsuitability of the person for whom letters are prayed. The Rules on Guardianship (Rules 92-98.00. character and location of the property of the minor (8) Name. ages. if the lat