the benchbook

compiled by: raj

INTRODUCTION
I. JUDICIAL POWER AND THE ROLE OF THE JUDICIARY1[1] The Philippine Constitution vests judicial power in one Supreme Court and in such lower courts as may be established by law.2[2] Judicial power is described by the same section of the Constitution as follows
Judicial power includes the duty of the courts of justice to settle actual controversies involvin! ri!hts which are le!ally demandable and enforceable" and to determine whether or not there has been a !rave abuse of discretion amountin! to lac# or e$cess of jurisdiction on the part of any branch or instrumentality of the !overnment.

The use of the word %includes% connotes that the provision is not an e$haustive enumeration of what is comprised in judicial power. The use of the word %duty% emphasi&es the obli!ation of the courts of justice to e$ercise the judicial power in actual controversies. The inclusion of the duty to determine whether or not there has been a !rave abuse of discretion amountin! to lac# or e$cess of jurisdiction on the part of any branch or instrumentality of the !overnment is in accord with the role of the judiciary as the last bulwar# of the constitutional ri!hts and liberties of the people. 'owever" it does dispense with the doctrine that purely political (uestions are beyond the pale of judicial review. The importance of the Judiciary in Philippine society is succinctly spelled out in the Preamble of the Code of Judicial Conduct )[)]
*n honorable" competent and independent judiciary e$ists to administer justice and thus promote the unity of the country" the stability of !overnment" and the well+bein! of the people.

This is an improvement of Canon 2 of the Canons of Judicial ,thics which provided that -The courts e$ist to promote justice. and thus to aid in securin! the contentment and happiness of the people.-/[/] The role of the Judiciary has been depicted in florid lan!ua!e
0owhen as now is the duty of the Supreme Court in upholdin! the moral tenets of our Constitution and laws more imperative. 1n no idea is the moral sense more inherent and manifest than in justice. 2y the nature of their social function" the or!ans of judicial power are placed in the dominant position of the hi!hest moral leadership. 0ever was the need of such moral leadership 3 inspired" dynamic" militant 3 felt with more acuteness than in the present sta!e of our travel toward national destiny. 4ic#edness and lac# of scruples are on a rampa!e in every social strata" private and official. 5la!rant violations of the fundamental law are committed with callous nonchalance" while robbery" banditry and !an!sterism are practiced in broad dayli!ht. 5undamental ri!hts and privile!es" liberties and immunities" whether private or official" are trampled down with satrapic insolence" while murders and wanton attac#s a!ainst honor are perpetrated as e$citin! sport. !raft" corruption" and absolute lac# of principles in many hi!h places. blac# mar#et" !amblin!" shady ne!otiations" and e$ploitation of the innocent and the wea# in some other spheres.

The ultimate hope to escape collapse must be pinned on the judiciary for the latter to fulfill with unrelentless strai!ht+forwardness the duties of moral leadership entrusted to it by the Constitution. The judiciary should be the mi!hty euphroe that must lin# the loosened or severed moral cords and stren!then the bonds which will #eep society from disinte!ratin!.6[6]

Twenty+one years later" the Supreme Court came up with a more pra!matic description lin#in! the judiciary to the rule of law" thus
7aw stands for order" for the peaceful and systematic adjustment of frictions and conflicts
1 2[2]

Excerpted from the draft on 'Judicial Ethics' by retired Court of Appeals Justice Hector L. Hofile a. Constitution! Art. "###! $ec. 1. %romul&ated by the $upreme Court of the %hilippines on $eptember '! 1()(.
[*] [0]

[1]

)[)]

* 0

Administrati+e ,rder -o. 1'.! /epartment of Justice! Au&ust 1! 1(*). #loilo %ro+incial 1arden! 2) %hil. 0(( [1(*2]! dissentin& opinion of Justice 3re&orio %erfecto.

unavoidable in a modern society with its comple$ities and clashin! interests. The instrumentality for such balancin! or harmoni&ation is the judiciary and other a!encies e$ercisin! (uasi+judicial powers. 4hen judicial or (uasi+judicial tribunals spea#" what they decree must be obeyed" what they ordain must be followed. * party dissatisfied may as# for a reconsideration and" if denied" may !o on to a hi!her tribunal. *s lon! as the orders stand unmodified" however" they must" even if susceptible to well+founded doubts on jurisdictional !rounds" be faithfully complied with. Such is the way of the law. So it has been in the past. So it should continue to be. 1f it were otherwise" the intellect no lon!er holds sway" the dictates of moderation are i!nored" and passion ta#es over.8[8]

1n administerin! justice" the judiciary decides controversies between the party liti!ants. *t the same time" it also contributes to the establishment of the 9ule of 7aw without which there will be chaos in the community. 4hat is more si!nificant" however" is that the judiciary achieves such !oal by relyin! on the moral force !enerated by the (uality of its wor# in administerin! justice. 1t has been pointed out that
*mon! the three powers of !overnment" the judiciary is in the material sense the wea#est. *lthou!h its function in society is as noble and important as the ones entrusted to the le!islative and e$ecutive powers" and there is none loftier that our mind may conceive or to which the most ambitious heart may aspire" it needs the active and positive help of other a!encies to ma#e it effective. Con!ress must provide for the ade(uate bud!et" and the e$ecutive power the necessary force to ma#e effective the orders and decisions of tribunals.

To compensate for that comparative physical wea#ness of the judicial power" it is necessary that jud!es and courts should ac(uire the unbounded moral force which sprin!s from the !eneral faith and confidence of !overnment and people ali#e. That moral force" althou!h intan!ible" immeasurable and imponderable" is as effective as any cosmic force" if not more. 4e hold as an a$iom that spiritual ener!y is stron!er than atomic ener!y" the mi!hty basic force of material universe. 2ut to obtain and retain public faith and confidence" it is necessary that courts and jud!es should show by their acts that they are actually entitled to such faith and confidence. 9ecalcitrant insubordination and indiscipline are not the means. :n the contrary" they will only provo#e public suspicion and distrust" if not popular wrath and condemnation.;[;]

To !ain and maintain such confidence of the people" the judiciary must" in the words of the Code of Judicial Conduct" be <honorable" competent and independent.= 'avin! efficient jud!es is one of the basic means to achieve this end" and this 2enchboo# for Trial Court Jud!es aims to help jud!es attain that necessary efficiency. II. THE BENCHBOO A! A TOOL FOR JUD"E! Proceedin!s before courts can ta#e different forms that are !overned by different rules which cannot be found in any sin!le law" or rule" but must often be ta#en from pronouncements of the Supreme Court or inferred from a process of readin! rules to!ether. 4hile rules of procedure may appear to be strai!htforward and uncomplicated" jurisprudence uncovers nuances and introduces subtleties that are less obvious. 7i#ewise" for Jud!es to dispense true and meanin!ful justice" they must have the ability to decide when it is proper to adhere to precedent" and when it would best serve the interests of justice to innovate. This is a balancin! act that will defy even the most learned of jurists. Jud!es re(uire a handy reminder of which rules are infle$ible" and what principles provide the foundation for fle$ible rules. The printed 2enchboo# was born from the need for a sin!le source of direct but complete answers to the most fre(uently raised (uestions. 1ts online counterpart promises to brin! that utility to Jud!es across the Philippines. ,$perts in the relevant fields were tapped to compile the information in the 2enchboo#. They were assisted by personnel from the Supreme Court and the 1nternational >evelopment 7aw 1nstitute. 9etired Supreme Court Justice *meurfina *. ?elencio 'errera" current Chancellor of the Philippine Judicial *cademy" remar#s that with the 2enchboo#" %There should be less reason now for uncertainty in matters
' [']

%hilippine Association of 4ree Labor 5nions 6%A4L57 +. $al+ador! 3. 8. -o. L9.(*21! $eptember .)! 1(')! .0 $C8A :(:. [2] ;alabon +. ;he %ro+incial 1arden! 2) %hil. 0(( [1(*2].

pertainin! to remedial law principally" and" we hope" less reason to find jud!es remiss in their duty of applyin! the law correctly" intelli!ently and judiciously.% Court *dministrator *lfredo 7. 2enipayo credits the 2enchboo# with %providin! a standard reference wor# that will tirelessly remind our jud!es of both the immutable fundamentals of the law and the ceaseless evolution of le!al thou!ht and jurisprudence.% The 2enchboo# thus %ma#es it that much easier to stri#e that !olden middle way between stability and dynamism.%

The Benchbook# ho$e%e&# '( not the ('n)*e (o*+t'on to , J+-)e.( e%e&/ 0&ob*e1. Wh'*e the Benchbook '( 'nten-e- to enh,nce the 2+,*'t/ o3 0e&3o&1,nce o3 J+-)e(# con(t,nt *e,&n'n) b/ the J+-)e 1+(t co10*e1ent 't( +(e. The Benchbook '( th+( noth'n) *e((# ,n- noth'n) 1o&e# th,n , too* to he*0 J+-)e( -'(0en(e 4+(t'ce 1o&e e33'c'ent*/# b+t the 1,5'1'6,t'on o3 't( 0otent',*( $'** -e0en- on the (k'**( o3 the J+-)e 'n%o*%e-.

OUTLINE OF JURI!DICTION

1. !UPRE7E COURT

*. :ri!inal

@. ,$clusive

Petitions for issuance of writs of certiorari" prohibition and mandamus a!ainst the followin!

@.@ Court of *ppeals

@.2 Commission on ,lections

@.) Commission on *udit

@./ Sandiganbayan

2. Concurrent

2.@ with Court of *ppeals

Petitions for issuance of writs of certiorari, prohibition and mandamus a!ainst the followin!

2.@.@ 0ational 7abor 9elations Commission under the 7abor Code ASection B of 2. P. 2l!. @2B as amended by 9* ;BC2" St. Martin Funeral Homes v. National Labor Relations Commission" D. 9. 0o. @)CE88" September @8" @BBE" 2B6 SC9* /B/F

0ote 'owever" the petitions should be filed with the Court of *ppeals. otherwise" they shall be dismissed. A*. ?. 0o. BB+2+C@+SCF

2.@.2 Civil Service Commission A9* ;BC2F

2.@.) Central 2oard of *ssessment *ppeals AP> /8/. Sec. B of 2P @2B as amended by 9* ;BC2F

2.@./ Court of Ta$ *ppeals and Guasi+Judicial *!encies A9ule /)" @BB; 9ules of Civil ProcedureF

2.@.6 9e!ional Trial Courts and lower courts

2.2 with the Court of *ppeals and 9e!ional Trial Courts

2.2.@ Petitions for habeas corpus and quo

arranto

2.2.2 Petitions for issuance of writs of certiorari" prohibition and mandamus a!ainst the lower courts or bodies ASec. B[@] and Sec. 2@ [@] of 2P @2B. !ergara v. Suelto" 0o. 7+;/;88" >ecember 2@" @BE;" @68 SC9* ;8) [@BE;]F

2.) with 9e!ional Trial Courts

*ctions affectin! ambassadors and other public ministers and consuls ASec. 6[@] *rticle H111" Constitution" Sec. 2@[2] of 2P @2B" Schnec#enbur!er v. ?oran" 8) Phil 2/B [@B)8]F

2. *ppellate

@. 0otice of *ppeal

@.@ 5rom 9e!ional Trial Courts or the Sandiganbayan in all criminal cases involvin! offenses

for which the penalty imposed is reclusion perpetua or life imprisonment" and those involvin! other offenses which" althou!h not so punished" arose out of the same occurrence or which may have been committed by the accused on the same occasion ASec. @; of Judiciary *ct of @B/E Sec. B[)] of 2P @2B. Sec. 6[2+d]" *rticle H111" Constitution. Sec. )[c] of 9ule @22. Sec. 6 of 9* E2/BF ,$ception People v. Plateros" 0o. 7+);@82" ?ay )C" @B;E" E) SC9* /C@

@.2 *utomatic review in criminal cases where the death penalty is imposed by the 9e!ional Trial Court or the Sandiganbayan A9* ;86B and E2/B. Secs. ) [d] and@C of 9ule @22F

2. Petition for 9eview on Certiorari

2.@ *ppeals from the Court of *ppeals ASec. @; of Judiciary *ct of @B/E as amended by 9* 6//C. Sec. 6[2] *rticle H111" Constitution. 9ule /6 of @BB; 9ules of Civil ProcedureF

2.2 *ppeals from the Sandiganbayan on pure (uestions of law" e$cept cases where the penalty imposed is reclusion perpetua" life imprisonment or death ASec. ; of P> @8C8 as amended by 9* E2/B. 0uIe& v. Sandiganbayan, 0os. 7+6C6E@+6C8@;" January 2C" @BE2" @@@ SC9* /)). 9ule /6 "bid.F

2.) *ppeals from 9e!ional Trial Courts e$ercisin! ori!inal jurisdiction in the followin! cases

2.).@ 1f no (uestion of fact is involved and the case involves+

aF Constitutionality or validity of treaty" international or e$ecutive a!reement" law" presidential decree" proclamation" order" instruction" ordinance or re!ulation

bF 7e!ality of ta$" impost" assessments" or toll" or penalty in relation thereto

cF Jurisdiction of lower court

2.).2 *ll cases in which only errors or (uestions of law are involved ASec. 6[2+a"b"c" and e]" *rticle H111" Constitution" Sec. B[)] of 2P @2BF. 9ule /6 "bid. Sec. 2[c] of 9ule /@. Sec. )[e] of 9ule @22F

). Special Civil *ction of Certiorari filed within thirty days a!ainst the followin!

).@ Commission on ,lections ASec. ;" *rticle 1J+* Constitution. *ratuc v. Comelec" 0o. 7+ /B;C6+CB" 5eb. E" @B;B" EE SC9* 26@F

).2 Commission on *udit A"bid. @BE; ConstitutionF A9ule 8/" @BB; 9ules of Civil ProcedureF 8. Co+&t o3 A00e,*(

*. :ri!inal

@. ,$clusive

*ctions for annulment of jud!ments of 9e!ional Trial Courts ASec. B[2] of 2P @2B. 9ule /; of @BB; 9ules of Civil ProcedureF

2. Concurrent

2.@ with Supreme Court

9efer to Sec. 2.@ above under 1.*. supra

2.2 with Supreme Court and 9e!ional Trial Courts

9efer to Sec. 2.2 above under 1.*. supra

2. *ppellate

@. :rdinary *ppeal by 0otice of *ppeal or 9ecord on *ppeal

@.@ *ppeals from 9e!ional Trial Courts" e$cept those appealable to the Supreme Court under Sec. 2A)F of @+2 above.

@.2 *ppeals from 9e!ional Trial Courts on constitutional" ta$" jurisdictional (uestions involvin! (uestions of fact which should be appealed first to the Court of *ppeals ASec. @; subpara!raph / of the fourth para!raph of the Judiciary *ct of @B/E as amended" which was not intended to be e$cluded by Sec. B[)] of 2P @2BF

@.) *ppeals from decisions and final orders of the 5amily Courts. ASec. @/ of 9* E)8BF

2. Petition for 9eview

2.@ *ppeals from the Civil Service Commission A9* ;BC2. 9ule /) of @BB; 9ules of Civil ProcedureF

2.2 *ppeals from 9e!ional Trial Courts in cases appealed from ?etropolitan Trial Courts and ?unicipal Circuit Trial Courts" which are not a matter of ri!ht. ASec. 22 of 2P @2B. 9ule /2 of @BB; 9ules of Civil Procedure. Sec. )[b] of 9ule @22F

2.) *ppeals from Court of Ta$ *ppeals and (uasi+judicial a!encies. *mon! these are

1. .. :. *. 0. '. 2. ). (. 1<. 11. 1.. 1:. 1*. 10. 1'. 12. 1). 1(.

Central 2oard of *ssessment *ppeals Securities and ,$chan!e Commission ). :ffice of the President /. 7and 9e!istration *uthority 6. Social Security Commission 8. Civil *eronautics 2oard ;. 1ntellectual Property :ffice Aformerly the 2ureau of Patents" Trademar# and Technolo!y TransferF E. 0ational ,lectrification *dministration B. ,ner!y 9e!ulatory 2oard @C. 0ational Telecommunications Commission @@. >epartment of *!rarian 9eform under 9* 886; @2. Dovernment Service 1nsurance System @). ,mployees Compensation Commission @/. *!ricultural 1nventions 2oard @6. 1nsurance Commission @8. Philippine *tomic ,ner!y Commission @;. 2oard of 1nvestments @E. Construction 1ndustry *rbitration Commission @B. Holuntary arbitrators authori&ed by law. A9ule /) of @BB; 9ules of Civil ProcedureF
@. 2.

2./ *ppeals from the 0ational Commission on 1ndi!enous Peoples A0C1PF. ASec. 8; of 9* E);@F

2.6 *ppeals from the :ffice of the :mbudsman in administrative disciplinary cases. A*. ?. 0o. BB+2+C2+SC" 5abian v. >esierto" D.9. 0o. @2B;/2" September @8" @BBE" 2B6 SC9* /;CF

9. !ANDI"ANBAYAN

*. :ri!inal

@. ,$clusive

@.@ Hiolation of 9* )C@B A*nti+DraftF" 9* @);B and Chapter 11" Sec. 2" Title H11 of 9evised Penal Code. and other offenses committed by public officials and employees in relation to their office" and private individuals char!ed as co+principals" accomplices and accessories includin! those employed in !overnment+owned or controlled corporations" where one or more of the accused are officials occupyin! the followin! positions in the !overnment" whether in a permanent" actin! or interim capacity" at the time of the commission of the offense

1.

@. :fficials of the ,$ecutive branch $$$ classified as Drade %2;% or hi!her $$$ specifically includin! $$$ .. 2. ?embers of Con!ress $$$ :. ). ?embers of Judiciary $$$ *. /. ?embers of Constitutional Commissions $$$ 0. 6. *ll other national and local officials classified as !rade %2;% and hi!her

1n cases where none of the accused are occupyin! the above positions" the ori!inal jurisdiction shall be vested in the proper re!ional trial court or metropolitan trial court" etc." as the case may be" pursuant to their respective jurisdictions. ASection 2" 9* ;B;6" as amended by 9* E2/BF

1n cases where there is no specific alle!ation of facts showin! that the offense committed in relation to the public office of the accused" the ori!inal jurisdiction shall also be vested in the proper re!ional trial court or metropolitan trial court" etc." as the case may be. A7acson v. ,$ecutive Secretary" D. 9. 0o. @2ECB8" January 2C" @BBB" )C@ SC9* 2BEF

@.2 Civil and criminal cases filed pursuant to and in connection with ,$ecutive :rder 0os. @" 2" @/ and @/+*. ASec. 2 of 9* ;B;6 as amended by 9* E2/BF

2. Concurrent with Supreme Court

Petitions for certiorari" prohibition" mandamus, habeas corpus" injunction and other ancilliary writs in aid of its appellate jurisdiction" includin! quo arranto arisin! in cases fallin! under said ,$ecutive :rder 0os. @" 2" @/ and @/+*. A"bid. *s amended by 9* E2/BF

2. *ppellate

/ecisions and final orders of 8e&ional ;rial Courts in the exercise of their ori&inal or appellate =urisdiction under %/ 1'<'! as amended! shall be appealable to the Sandiganbayan in the manner pro+ided by 8ule 1.. of the 8ules of Court. 6$ec. 0 of 8A ).*(7
:. RE"IONAL TRIAL COURT!

*. :ri!inal

@. Civil

@.@ ,$clusive

@.@.@ Subject of action not capable of pecuniary estimation.

@.@.2 *ctions involvin! title or possession of real property or interest therein where the assessed value e$ceeds Php 2C"CCC.CC or in ?etro ?anila Php 6C"CCC.CC e$cept forcible entry and unlawful detainer.

@.@.) *ctions in admiralty and maritime jurisdiction where demand or claim e$ceeds Php@CC"CCC.CC. or in ?etro ?anila Php 2CC"CCC.CC.

@.@./ ?atters of probate" testate" or intestate" where !ross value of estate e$ceeds Php@CC"CCC.CC or in ?etro ?anila P2CC"CCC.CC

@.@.6 *ctions involvin! marria!e and marital relationsAnow under the jurisdiction of the 5amily CourtsF.

@.@.8 Cases not within e$clusive jurisdiction of any court" tribunal" person or body e$ercisin! judicial or (uasi+judicial function.

@.@.; *ctions and special proceedin!s fallin! within the e$clusive ori!inal jurisdiction of the Juvenile and >omestic 9elations Courts Anow the 5amily Courts" Sec. H" infraF and the Court of *!rarian 9elations.

@.@.E :ther cases where demand" e$clusive of interest" dama!es" attorneyKs fees" liti!ation e$penses and costs" or value of property in controversy e$ceeds Php @CC"CCC.CC or in ?etro ?anila Php 2CC"CCC.CC ASec. @B of 2P @2B as amended by 9* ;8B@F 'owever" if the claim for dama!es is the main cause of action" the amount thereof shall be considered in determinin! the jurisdiction of the court. A*dministrative Circular 0o. CB+B/" dated June @/" @BB/F

0ote The amounts in @.@.)" @.@./ and @.@.E were doubled as of ?arch 2C" @BBB under Sec. 6 of 9* ;8B@. Circular 0o. 2@+BB. The ori!inal amount of Php @CC" CCC.CC which was increased to Php 2CC"CCC.CC will be increased to Php )CC"CCC.CC five A6F years thereafter.

@.@.B *dditional ori!inal jurisdiction transferred under Section 6.2 of the Securities 9e!ulation Code

aF >evices or schemes employed by" or any acts of" the board of directors" business associates" its officers or partnership" amountin! to fraud and misrepresentation $$$

bF Controversies arisin! out of intra+corporate or partnership relations $$$

cF Controversies in the election or appointment of directors" trustees" officers or mana!ers of such corporation" partnerships or association.

dF Petitions of corporations" partnerships or associations to be declared in a state of suspension of payments $$$ A9* 0o. E;BB approved on July @B" 2CCCF

@.2 Concurrent

@.2.@ with Supreme Court

*ctions affectin! ambassadors and other public ministers and consuls. ASec. 2@[@] of 2P @2BF

@.2.2 with Supreme Court and Court of *ppeals

aF Certiorari" Prohibition" and Mandamus a!ainst lower courts and bodies.

bF Habeas corpus and #uo $arranto" Sec. B [@] and Sec. 2@ [@] of 2P @2B

@.2.) with ?etropolitan Trial Courts" ?unicipal Trial Courts and ?unicipal Circuit Trial Courts

0o concurrent jurisdiction Duardianship and adoption cases are now under the e$clusive ori!inal jurisdiction of 5amily Courts established by 9* E)8B #nown as the %5amily Courts *ct of @BB;% approved on :ctober 2E" @BB;. ASee Sec. 6 in%ra.F

@.2./ 4ith the 1nsurance Commission

Claims not e$ceedin! Php @CC"CCC.CC ASec. /@8 of the 1nsurance Code A@B;/F" P> 8@2F. *pplicable if subject of the action is not capable of pecuniary estimation. otherwise" jurisdiction is concurrent with ?etropolitan Trial Courts" etc.

2. Criminal

2.@ ,$clusive

Criminal cases not within the e$clusive jurisdiction of any court" tribunal or body. ASec. 2C of 2P @2BF These include criminal cases where the penalty provided by law e$ceeds si$ A8F years imprisonment irrespective of the fine. A9* ;8B@F. These also include criminal cases not fallin! within the e$clusive ori!inal jurisdiction of the Sandiganbayan where none of the accused are occupyin! positions correspondin! to salary !rade %2;% and hi!her. A9* ;B;6 and E2/BF

2ut in cases where the only penalty provided by law is a fine" the 9e!ional Trial Courts have jurisdiction if the amount of the fine e$ceeds Php /"CCC.

A9* ;8B@ as clarified by *dministrative Circular 0o. CB+B/ dated June @/" @BB/F

0otes 5amily Courts have e$clusive ori!inal jurisdiction over criminal cases where one or more of the accused is below ei!hteen A@EF years of a!e but not less than nine ABF years of a!e" or when one or more of the victims is a minor at the time of the commission of the offense. ASec. 6AaF of 9* E)8BF

2. *ppellate *ll cases decided by lower courts A?etropolitan Trial Courts" etc.F in their respective territorial jurisdictions. ASec. 22 of 2P @2BF ;. FA7ILY COURT!

*. ,$clusive and :ri!inal

@. Criminal cases where one or more of the accused is below ei!hteen A@EF years of a!e but not less than nine ABF years of a!e" when one or more of the victims is a minor at the time of the commission of the offense &rovided, That if the minor is found !uilty" the court shall promul!ate sentence and ascertain any civil liability which the accused may have incurred. The sentence" however" shall be suspended without need of application pursuant to Presidential >ecree 0o. BC)" otherwise #nown as the -Child and Louth 4elfare Code-.

2. Petitions for !uardianship" custody of children" habeas corpus in relation to the latter.

). Petitions for adoption of children and the revocation thereof.

/. Complaints for annulment of marria!e" declaration of nullity of marria!e and those relatin! to

marital status and property relations of husband and wife or those livin! to!ether under different status and a!reements. and petitions for dissolution of conju!al partnership of !ains.

6. Petitions for support andMor ac#nowled!ment.

8. Summary judicial proceedin!s brou!ht under the provisions of ,$ecutive :rder 0o. 2CB" otherwise #nown as the -5amily Code of the Philippines-.

;. Petitions for declaration of status of children as abandoned" dependent or ne!lected children" petitions for voluntary or involuntary commitment of children" the suspension" termination" or restoration of parental authority and other cases co!ni&able under Presidential >ecree 0o. 8C)" ,$ecutive :rder 0o. 68 ASeries of @BE8F and other related laws.

E. Petitions for the constitution of the family home.

B. Cases a!ainst minors co!ni&able under the >an!erous >ru!s *ct" as amended.

@C. Hiolations of 9epublic *ct 0o. ;@8C" otherwise #nown as the -Special Protection of Children *!ainst Child *buse" ,$ploitation and >iscrimination *ct-" as amended by 9epublic *ct 0o. ;86E" and

@@. Cases of domestic violence a!ainst

@@.@ 4omen N which are acts of !ender+based violence that result" or li#ely to result in physical" se$ual or psycholo!ical harm or sufferin! to women. and other forms of physical abuse such as batterin! or threats and coercion which violate a womanKs personhood" inte!rity and freedom of movement. and

@@.2 Children N which include the commission of all forms of abuse" ne!lect" cruelty" e$ploitation" violence and discrimination and all other conditions prejudicial to their development.

1f an act constitutes a criminal offense" the accused or batterer shall be subject to criminal proceedin!s and the correspondin! penalties.

1f any (uestion involvin! any of the above matters should arise as an incident in any case pendin! in the re!ular courts" said incident shall be determined in that court.

<. 7ETROPOLITAN TRIAL COURT!# 7UNICIPAL TRIAL COURT! AND 7UNICIPAL CIRCUIT TRIAL COURT!.

*. :ri!inal

@. Civil

@.@ ,$clusive

@.@.@ *ctions involvin! personal property valued at not more than Php @CC"CCC.CC or in ?etro ?anila Php 2CC"CCC.CC

@.@.2 *ctions demandin! sums of money not e$ceedin! Php @CC"CCC.CC or in ?etro ?anila" Php 2CC"CCC.CC. in both cases" e$clusive of interest" dama!es" attorneyKs fees" liti!ation e$penses and costs" the amount of which must be specifically alle!ed" but the filin! fees thereon shall be paid.

These include admiralty and maritime cases.

@.@.) *ctions involvin! title or possession of real property where the assessed value does not e$ceed Php 2C"CCC.CC or in ?etro ?anila Php 6C"CCC.CC

@.@./ Provisional remedies in principal actions within their jurisdiction" and in proper cases" such as preliminary attachment" preliminary injunction" appointment or receiver and delivery of personal property. A9ules 6;" 6E" 6B and 8CF

@.@.6 5orcible entry and unlawful detainer" with jurisdiction to resolve issue of ownership to determine issue of possession.

@.@.8 Probate proceedin!s" testate or intestate" where !ross value of estate does not e$ceed Php @CC"CCC.CC or in ?etro ?anila Php 2CC"CCC.CC ASec. )) of 2P @2B as amended by 9* ;8B@F.

0ote The amounts in @.@.@" @.@.2 and @.@.8 were doubled as of ?arch 2C" @BBB under Sec. 6 of 9.*. @;8@. Circular 0o. 2@+BB. The ori!inal amount of Php @CC"CCC.CC" which was increased to Php 2CC"CCC.CC will be increased to Php )CC"CCC.CC five A6F years thereafter.

@.@.; 1nclusion and e$clusion of voters. ASec. @)E of 2P EE@" :mnibus ,lection Code of the Philippines A@BE6F

@.2 Concurrent with 9e!ional Trial Courts

0one

@.) >ele!ated

Cadastral and land re!istration cases assi!ned by Supreme Court where there is no controversy or opposition and in contested lots valued at not more than Php @CC"CCC.CC. ASec. )/ of 2P @2B as amended by 9* ;8B@F

@./ Special

Petition for habeas corpus in the absence of all 9e!ional Trial Jud!es. ASec. )6 of 2P @2BF

2. Criminal

2.@ ,$clusive

2.@.@ *ll violations of city or municipal ordinances committed within their respective territorial jurisdictions.

2.@.2 *ll offenses punishable with imprisonment of not more than si$ A8F years irrespective of the fine and re!ardless of other imposable accessory or other penalties and the civil liability arisin! therefrom. provided" however" that in offenses involvin! dama!e to property throu!h criminal ne!li!ence" they shall have e$clusive ori!inal jurisdiction. ASec. )2 of 2P @2B as amended by 9* ;8B@F

2.@.) *ll offenses committed not fallin! within the e$clusive ori!inal jurisdiction of the Sandiganbayan where none of the accused are occupyin! positions correspondin! to salary !rade %2;% and hi!her. A*s amended by 9* ;8;6 and E2/BF

2.@./ 'owever" in cases where the only penalty provided by law is a fine not e$ceedin! Php /"CCC" the ?etropolitan Trial Courts" etc. have jurisdiction. A*dministrative Circular 0o. CB+B/ dated June @/" @BB/.F

2.2 Concurrent with 5iscals and State Prosecutors

,$cept for ?etropolitan Trial Courts in 0ational Capital 9e!ions" conduct preliminary investi!ation of offenses where the penalty prescribed by law is at least four A/F years" two A2F months and one A@F day without re!ard to fine. ASec. ); of 2P @2B. Sec. @ of 9ule @@2" as amendedF. Preliminary investi!ation of crimes within the jurisdiction of the

Sandiganbayan is conducted by the office of the Special Prosecutor under the :mbudsman. ASec. @@ of 9* 8;;CF

2.) Special

*pplications for bail in the absence of all 9e!ional Trial Jud!es. ASec. )6 of 2P @2BF

). Summary Procedure

).@ Civil

).@.@ 5orcible entry and unlawful detainer" irrespective of the amount of dama!es or unpaid rentals sou!ht to be recovered. but attorneyKs fees shall not e$ceed Php 2C"CCC.CC A9evised effective 0ovember @6" @BB@F

).@.2 *ll other cases" e$cept probate proceedin!s" where total claim does not e$ceed Php@C"CCC.CC

).2 Criminal

).2.@ Traffic violations

).2.2 9ental law violations

).2.) Hiolations of City and municipal ordinances

).2./ *ll other cases where penalty does not e$ceed 8 months andMor fine of Php@"CCC.CC

E=IDENCE
B,('c P&'nc'0*e( ,n- !e*ecte- P&ob*e1( 1. WHEN E=IDENCE I! NECE!!ARY ,vidence is the means of provin! a fact. 1t becomes necessary to present evidence in a case when the pleadin!s filed present factual issues. 5actual issues arise when a party specifically denies material alle!ations in the adverse partyKs pleadin!. These are the issues which the jud!e cannot resolve without evidence bein! presented thereon. Thus" whether a certain thin! e$ists or not" whether a certain act was done or not" whether a certain statement was uttered or not" are (uestions of fact that re(uire evidence for their resolution. Guestions of fact e$ist when the doubt or difference arises as to the truth or falsehood of alle!ed facts.@ :ther than factual issues" the case invariably presents le!al issues. :n the other hand" a (uestion of law e$ists when the doubt or difference arises as to what the law is on a certain state of facts. 7e!al issues are resolved by simply applyin! the law or rules applicable" or interpretin! the law applicable considerin! the facts of the case. Denerally" no evidence need be presented on what the applicable law is. ,veryone" includin! the jud!e" is presumed to #now the law.

4hen the partiesK pleadin!s fail to tender any issue of fact" either because all the factual alle!ations have been admitted e$pressly or impliedly Aas when a denial is a !eneral denialF" there is no need of conductin! a trial" since there is no need of presentin! evidence anymore. The case is then ripe for judicial determination" either throu!h a jud!ment on the pleadin!s2 or by summary jud!ment.)

8. AD7I!!IBILITY OF E=IDENCE The study of the law on ,vidence involves two main problems" vi'. A@F determinin! whether a !iven piece of evidence is admissible. and A2F the proper presentation of that evidence so that the court will consider it in resolvin! the issues and decidin! the case. *lthou!h evidence may" by itself" be admissible" the court may not admit or consider it in the resolution of the case unless the evidence was properly presented. A. A5'o1 o3 A-1'(('b'*'t/ o3 E%'-ence ,vidence is admissible when it is relevant to the issues and is competent" i.e." it is not e$cluded by the law or the 9ules of Court./ ,vidence is relevant if it tends in any reasonable de!ree to establish the probability or improbability of a fact in issue.6 1t is of a lesser de!ree of reliability as evidence than material evidence. ?aterial evidence directly proves a fact in issue. Thus" the testimony of an eyewitness to the commission of a crime is material. the evidence of motive or fli!ht of the accused may be relevant. ,vidence that is material or relevant must also be competent to be admissible. 5or e$ample" althou!h the testimony of the eyewitness may be material" it may be inadmissible if it is e$cluded by the marital dis(ualification rule.

1 . : /

%ara a>ue ?in&s Enterprises! #nc. +. Court of Appeals! 3.8. -o. 1110:)! 4ebruary .'! 1((2! .') $C8A 2.2. 8ules of Court! 8ule :*. Ibid, 8ule :0. 9ules of Court" 9ule @2E" Sec. ). 1bid.

9elevancy or materiality of evidence is a matter of lo!ic" since it is determined simply by ascertainin! its lo!ical connection to a fact in issue in the case. 1t is therefore inadvisable for a jud!e to as# an objectin! counsel why an offered piece of evidence is irrelevant or immaterial. 2y his in(uiry" he shows his unfamiliarity with the issues in the case. * jud!e is e$pected to be aware of the issues which he was supposed to have defined and limited in his mandatory pre+trial order. :n the other hand" the !rounds for objection to the competency of evidence must be specified8 and are determined by the 9ules or the law.

The opposites of the three re(uisites for admissibility of evidence" vi', irrelevancy" immateriality or incompetency" are the !eneral !rounds for objection. The first two are valid !rounds for objection without need of specification or e$planation. The third !round for objection" incompetency" if offered without further e$planation" is not valid for bein! unspecific" e$cept when invo#ed in reference to the lac# of (ualification of a witness to answer a particular (uestion or !ive a particular evidence.

B. P&o0e& P&e(ent,t'on O3 E%'-ence

,very piece of evidence" re!ardless of its nature" re(uires certain processes of presentation for its admissibility and admission. 1. Ob4ect e%'-ence :bject evidence must !enerally be mar#ed A,$hibit *" 2" etc. for the plaintiff. ,$hibit @" 2" )" etc. for the defendantF either durin! the pre+trial or durin! its presentation at the trial. 1t must also be identified as the object evidence it is claimed to be. This re(uires a testimonial sponsor. 5or e$ample" a forensic chemist identifies marijuana leaves as those submitted to him in the case for e$amination. 5urther" object evidence must be formally offered after the presentation of a partyKs testimonial evidence.; 8. O&,* e%'-ence :ral evidence is presented throu!h the testimony of a witness. Onder the @BEB 9ules on ,vidence" oral evidence must be formally offered at the time the witness is called to testify.E :bjections may then be raised a!ainst the testimony of the witness. 1f the objection is valid" as when the witnessK testimony is barred by the hearsay rule or the opinion rule" the witness will not be allowed to testify. 1f the witness is otherwise allowed to testify" he shall be sworn in" either by ta#in! an oath or ma#in! an affirmation. B 1t is essential that the proper foundation for the testimony of a witness must be laid. *n ordinary witness must be shown to have personal #nowled!e of the facts he shall testify to. otherwise" his testimony will be hearsay" or he will be incompetent to answer the (uestions to be as#ed of him. *n e$pert witness must be specifically (ualified as such. otherwise" he cannot validly !ive his opinion on matters for which he may have been summoned as a witness.

'owever" the re(uirement of (ualifyin! an e$pert witness may be dispensed with if

AaF the adverse counsel stipulates on the e$pertKs (ualification. or

' 2 E

9ules of Court" 9ule @)/" Sec. )8. 9ules of Court" 9ule @)2" Sec. )6. "bid. 9ules of Court" 9ule @)2" Sec. @.

AbF the court ta#es judicial notice of the witnessK e$pertise" because the jud!e happens to be aware thereof on account of the jud!eKs judicial functions. 9. Doc+1ent,&/ e%'-ence >ocumentary evidence is A@F mar#ed. A2F identified as the document which it is claimed to be Aas when the witness asserts that the document presented to him is the same contract which he claims was e$ecuted between the two partiesF. A)F authenticated" if a private document" by provin! its due e$ecution and !enuineness. and A/F formally offered after all the proponentKs witnesses have testified.@C

9ule @)2" Sec. )/ provides that the court shall consider no evidence which has not been formally offered" and that the purpose for which the evidence is offered must be specified. 1n this connection" it has been as#ed whether it would be proper for the jud!e to disre!ard a witnessK direct testimony !iven without the prior formal offer thereof which 9ule @)2" Sec. )6 re(uires" and corollarily" whether the adverse party may be re(uired to cross+e$amine that witness. 1n &eople v. Marcos,@@ the Supreme Court ruled that if a witness has !iven unoffered direct testimony without objection from the adverse party" the latter is estopped from raisin! that objection which he is deemed to have waived. hence" althou!h not formally offered" the testimony may be considered by the court.

The view can be advanced" however" that althou!h the aforesaid testimony was not e$pressly formally offered" it was nonetheless formally offered" albeit impliedly and automatically" the moment each (uestion was propounded to elicit an answer. This view is premised on two related provisions in 9ule @)2" Sec. )8" i.e." that ()b*ection to evidence o%%ered orally must be made immediately a%ter the o%%er is made,( and that %)b*ection to a question propounded in the course o% the oral e+amination o% a itness shall be made as soon as the grounds there%or shall have become reasonably apparent.( Clearly" the purpose of the e$press formal offer of oral evidence before the witness testifies is merely to determine" on the basis of the stated substance of the testimony and its purpose" whether the witness shall be allowed to testify. :nce the witness is allowed to testify" each (uestion propounded to elicit specific oral evidence may still be objected to as soon as a !round for objection becomes reasonably apparent. 2ut it is fundamental that an objection to evidence can be validly raised only after an offer is made. Thus" every (uestion as#ed of a witness especially on direct e$amination presupposes a formal offer of the answer" the oral evidence" sou!ht to be elicited. 1t would seem therefore that unli#e documentary and object evidence which are formally offered only after all the witnesses of a party have testified" oral evidence is offered twice once" e$pressly" before the witness testifies" and a!ain" with each (uestion propounded to the witness. C. Fo&1,* O33e& O3 E%'-ence> Nee- Fo& !t,te1ent O3 The P+&0o(e O3 E%'-ence ,vidence not formally offered will not be considered by the court in decidin! the case.@2

* party ma#es a formal offer of his evidence by statin! its substance or nature and the purpose or purposes for which the evidence is offered.@) 4ithout a formal offer of evidence" and hence without a disclosure of its purpose" it cannot be determined whether it is admissible or not. This is so because it is the intended purpose of a piece of evidence which determines what rule of evidence will apply for its admissibility. * piece of evidence may be admissible if offered for one purpose but may be inadmissible if offered for another. 5or e$ample" the testimony of a witness" in a libel case" that he heard the defendant call the plaintiff a liar and a croo# is certainly inadmissible for bein! hearsay" if offered to prove the truth of the perceived statement. 'owever" the same testimony is perfectly admissible if offered simply to prove
1 1 1 1
C

9ules of Court" 9ule @)2" Sec. )6. D.9. 0o. B@8/8" *u!ust 2@" @BB2" 2@2 SC9* ;/E. 9ules of Court" 9ule @)C" Sec. )/. "bid.

that the statement was uttered. 5or that purpose" the witness would be the only person (ualified to testify on" and prove" what he heard defendant say. Similarly" the declaration of a dyin! person made without consciousness of his impendin! death will not (ualify as a dyin! declaration" althou!h it may be admissible if offered as part of the res gestae.

1t must be noted that the mere mar#in!" identification" or authentication of documentary evidence does not mean that it will be" or has been" offered as part of the evidence of a party. This was the rulin! of the Supreme Court in &eople v. Santito, ,r.@/

*nne$es attached to pleadin!s" if not offered formally" are mere scraps of paper and should not be considered by the court"@6 unless the truth of their contents has been judicially admitted.

To the !eneral rule that the court shall not consider any evidence not formally offered" there are certain e$ceptions

@. Onder the 9ule on Summary Procedure" where no full blown trial is held in the interest of speedy administration of justice.

2. 1n summary jud!ments under 9ule )6 where the jud!e bases his decisions on the pleadin!s" depositions" admissions" affidavits and documents filed with the court.

). >ocuments whose contents are ta#en judicial notice of by the court.

/. >ocuments whose contents are judicially admitted.

6. :bject evidence which could not be formally offered because they have disappeared or have become lost after they have been mar#ed" identified and testified on and described in the record and became the subject of cross+e$amination of the witnesses who testified on them durin! the trial" e.g., marijuana involved in a prohibited dru!s prosecution.@8

III. 7ODE! OF E?CLUDIN" INAD7I!!IBLE E=IDENCE

There are two ways of e$cludin! inadmissible evidence. :ne is by objection and the other is by a motion to stri#e out.

1 1

People v Santito" Jr." D.9. 0o. B@82E" *u!ust 22" @BB@" 2C@ SC9* E;.

7laban v. Court of *ppeals" D.9. 0o. 8)228" >ecember 2C" @BB@ 2C/ SC9* EE; A*lthou!h the decision in Llaban was withdrawn by the Supreme Court on ?arch @;" @BB)" the withdrawal affected only the validity of the final disposition of that case. This did not void the soundness of the CourtKs pronouncement on the treatment of anne$es attached to pleadin!s.F
6

People v. 0apat+*" D. 9. 0o. E/B6@" 0ovember @/" @BEB" @;B SC9* /C). Tabuena v. Court of *ppeals" D. 9. 0o. E6/2)" ?ay 8" @BB@ @B8 SC9* 86C.
8

A. E%'-ence '( ob4ecte- to ,t the t'1e 't '( o33e&e- ,n- not be3o&e@ -. )ral evidence is objected to after its e$press formal offer before the witness testifies. @; 4hen thereafter the witness is allowed to testify" objection to a (uestion propounded in the course of the oral e$amination of a witness shall be made as soon as the !rounds therefor shall become reasonably apparent.@E

.. /ocumentary and ob*ect evidence are objected to upon their formal offer after the presentation of a partyKs testimonial evidence.

5ailure to seasonably object to offered evidence amounts to a waiver of the !rounds for objection. The rules of e$clusion are not self+operatin!. They must be properly invo#ed.

The !rounds for objection must be specified.@B Drounds not raised are deemed waived. 'owever" repetition of objection is unnecessary when a continuin! objection is properly made .2C :bjection to the purpose for which evidence is offered is not proper. B. A 1ot'on to (t&'ke o+t ,n($e& o& te(t'1on/ '( 0&o0e& 'n the 3o**o$'n) 'n(t,nce(@ @. The witness answers prematurely.2@

2. The answer is incompetent" irrelevant or improper.22

The incompetency referred to here is limited to the incompetency of the witness to answer the (uestion posed. it does not e$tend to the !eneral concept of incompetency of evidence for bein! e$cluded by law or the 9ules.

). The answer !iven is unresponsive.

/. The !round for objection was not apparent when the (uestion was as#ed.

6. Oncompleted testimony N e.g., a witness who !ave direct testimony becomes unavailable for cross+e$amination throu!h no fault of the cross+e$aminer.

8. Onfulfilled condition in conditionally admitted testimony.

C. Ob4ect'on( ,n- R+*'n)

1 1 1 . . .
2 ) ( < 1 .

8ules of Court! 8ule 1:.! $ec. :0. Ibid, $ection :'. Ibid. 8ules of Court! 8ule 1:.! $ection :2. 8ules of Court! 8ule 1:.! $ec. :(. Ibid.

:bjections to evidence may be formal or substantive.

@. 5ormal objections are based on the defective form of the (uestion as#ed. ,$amples

A@F leadin! (uestions which su!!est to the witness the answer desired.2)

a. 1f counsel finds difficulty in avoidin! leadin! (uestions" the jud!e may su!!est" to e$pedite (uestions" that counsel be!in his (uestions with the proper interro!ative pronouns" such as 0 ho0, 0 hat0, 0 here0, 0 hy0, 0ho 0, etc.

b. 7eadin! (uestions are allowed of a witness who cannot be reasonably e$pected to be led by the e$aminin! counsel" as AaF on cross+e$aminations. 2/ AbF when the witness is unwillin! or hostile" after it has been demonstrated that the witness had shown unjustified reluctance to testify or has an adverse interest or had misled the party into callin! him to the witness stand" and in either case after havin! been declared by the court to be indeed unwillin! or hostile. 26 or AcF when the witness is an adverse party or an officer" director" or mana!in! a!ent of a public or private corporation or of a partnership or association which is an adverse party.28

c. 7eadin! (uestions may also be as#ed when there is difficulty in !ettin! direct and intelli!ible answers from a witness who is i!norant" or a child of tender years" or is feeble minded" or a deaf+mute.2;

d. 7eadin! (uestions may moreover be as#ed on preliminary matters" i.e., on facts not in controversy" and offered only as basis for more important testimony to follow. 5or e$ample" -1ou are Mrs Maria Morales, i%e o% the plainti%% in this case2-

A2F misleadin! (uestions" which assume as true a fact not testified to by the witness A0question has no basis03, or contrary to that which he has previously stated.2E

A)F double or multiple (uestions" which are two or more (ueries in one. 5or e$ample" G 0/id you see the de%endant enter the plainti%%4s house, and as the plainti%% there20

A/F va!ue. ambi!uous. indefinite or uncertain (uestions + not allowed because the witness cannot understand from the form of the (uestion just what facts are sou!ht to be elicited.

A6F repetitious (uestions. or those already answered. 'owever" on cross+e$amination" the cross+e$aminer may as# a (uestion already answered to test the credibility of the witness.
. . . . . .

8ules of Court! 8ule 1:.! $ec 1<. 8ules of Court! 8ule 1:.! $ec 1<. 0 Ibid, $ecs. 1< and 1.. ' Ibid. 2 Ibid. ) 8ules of Court! 8ule 1:..
: *

A8F ar!umentative (uestions" which challen!e a witnessK testimony by en!a!in! him in an ar!ument" e.g." G -1snKt it a fact ?r 4itness that nobody could possibly see all the circumstances you mentioned in a span of merely two seconds" and that either your observations are inaccurate or you are lyin!P-

2. Substantive objections are those based on the inadmissibility of the offered evidence" e.!..

A@F irrelevant" immaterial

A2F best evidence rule

A)F parol evidence rule

A/F dis(ualification of witness

A6F privile!ed communication

A8F res inter alios acta

A;F hearsay

AEF opinion

ABF evidence ille!ally obtained

A@CFprivate document not authenticated

The rulin! by the court on an objection must be !iven immediately after an objection is made" unless the court desires to ta#e a reasonable time to inform itself on the (uestion presented. but the rulin! shall always be made durin! the trial and at such time as will !ive the party a!ainst whom it is made an opportunity to meet the situations presented by the rulin!. 2B Thus" an objection to a (uestion as#ed of a witness must be at once resolved by the court by either sustainin! or overrulin! the objection. 1t would be incorrect for a jud!e to consider the objection -submitted- or -noted-. Onless the objection is resolved" the e$amination of the witness could not be e$pected to continue since" in all li#elihood" the ne$t (uestion would depend on how the objection is resolved. 1f the issue raised by the objection is a particularly difficult one" it would not be improper for the jud!e to perhaps declare a brief recess to enable him to (uic#ly study the matter. 2ut certainly" the resolution must be !iven before the trial resumes.

8ules of Court! 8ule 1:.! $ec. :).

The reason for sustainin! or overrulin! an objection need not be stated. 'owever" if the objection is based on two or more !rounds" a rulin! sustainin! the objection" or one or some of them" must specify the !round or !rounds relied upon.)C

Jud!es are advised to judiciously consider the validity of the !rounds for objections and carefully rule on them. * rulin! that all evidence formally offered are -admitted for whatever they may be worth- will not reflect well on the jud!e" as it implies a hasty and ill+considered resolution of the offer and the objections. 2esides" the phrase -for whatever they may be worth- is improper since it refers to the wei!ht or credibility of the evidence. the wei!ht of the evidence shall be considered only after the evidence shall have been admitted. *nother rulin! that is ludicrous and even nonsensical is -,vidence admitted subject to the objections-. This is a non+rulin!.

1n case of an honest doubt about the admissibility of evidence" it is better policy to rule in favor of its admission. *n erroneous rejection of evidence will be unfair to the offeror since the jud!e cannot validly consider it even if after the trial" the jud!e reali&es his mista#e. :n the other hand" if the jud!e had erred in admittin! a piece of evidence" he may simply !ive it little or no wei!ht when decidin! the case.

#". LA@#-3 ;HE 4,5-/A;#,-$ 4,8 E"#/E-CE

1n determinin! the competency of an offered piece of evidence" the court must e$amine the re(uisites provided by the pertinent rule or law for its admissibility. These re(uisites must be established as foundations for the evidence. 5or e$ample" for a declaration of an a!ent to be admissible a!ainst his principal" as an e$ception to the res inter alios acta rule")@ the declaration must be A@F within the scope of the a!entKs authority. A2F made durin! the e$istence of the a!ency. and A)F the a!ency is shown by evidence other than by such declaration.)2 1f the a!entKs declaration is on a matter outside the scope of his a!ency" or is made after the a!ency had ceased" the a!entKs declaration cannot be admitted a!ainst his principal. the !eneral rule of res inter alios acta will apply instead.

Similarly" the foundation re(uired by the 9ules for the proper presentation of evidence must be laid" lest the evidence be rejected. 5or e$ample" when the ori!inal of a document is unavailable" before secondary evidence thereof is admitted" the proponent must establish A@F the e$istence or e$ecution of the ori!inal document" and A2F the circumstances of the loss or destruction of the ori!inal" or that the ori!inal cannot be produced in court.

A. J+-'c',* Not'ce

1. 7,n-,to&/ ,n- D'(c&et'on,&/ J+-'c',* Not'ce

0ot everythin! alle!ed in a partyKs pleadin! is re(uired to be proved. Certain matters may be so well #nown to the court that to compel a party to prove it would be a waste of time and effort.

Onder the 9ules" it shall be mandatory for the court to ta#e judicial notice" without the introduction of evidence" of the e$istence and territorial e$tent of states" their political history" forms of !overnment and symbols of nationalities" the law of nations" the admiralty and maritime courts of the world and their seals"
: : :

8ules of Court! 8ule 1:.! $ec. :) 9ules of Court" 9ule @)C" Sec. 2E. 2 "bid." Section 2B.
< @

the political Constitution and history of the Philippines" the official acts of the three departments of the Philippine !overnment" the laws of nature" the measure of time and the !eo!raphical divisions.)) Courts may ta#e judicial notice of matters which are AaF of public #nowled!e" AbF capable of un(uestionable demonstration" or AcF ou!ht to be #nown to jud!es because of their official functions.)/

8. He,&'n) the P,&t'e( on D'(c&et'on,&/ J+-'c',* Not'ce

>urin! the trial" when a court is uncertain whether it may" at its discretion" ta#e judicial notice of a certain fact or not" it may call the parties to a hearin! to !ive them a reasonable opportunity to present information relevant to the propriety or impropriety of ta#in! judicial notice of that fact. Certainly the so+called 0hearing0 is not for the purpose of adducin! evidence on that fact. Similarly" even after the trial and before jud!ment or on appeal" the court may hear the parties on the propriety of ta#in! judicial notice of a certain matter if such matter is decisive of a material issue in the case .)6 This procedure will apprise the parties of the possibility that the jud!e will or will not ta#e judicial notice of a fact" or of his resolution either way. it will thus eliminate the element of surprise and enable the parties to act accordin!ly. 9. J+-'c',* Not'ce o3 P&ocee-'n)( 'n Anothe& C,(e 1n the adjudication of a case pendin! before it" a court is not authori&ed to ta#e judicial notice of the contents of another case even if said case was heard by the same jud!e. The followin! are e$ceptions to this !eneral rule A@F when in the absence of any objection" with the #nowled!e of the opposin! party" the contents of said other case are clearly referred to by title and number in a pendin! action and adopted or read into the record of the latter. or A2F when the ori!inal record of the other case or any part of it is actually withdrawn from the archives at the courtKs discretion upon the re(uest" or with the consent" of the parties" and admitted as part of the record of the pendin! case.)8 Parenthetically" a court will ta#e judicial notice of its own acts and records in the same case.);

4hen there is an objection" and the jud!e therefore cannot ta#e judicial notice of a testimony or deposition !iven in another case" the interested party must present the witness to testify anew. 'owever" if the witness is already dead or unable to testify Adue to a !rave cause almost amountin! to death" as when the witness is old and has lost the power of speech)EF" his testimony or deposition !iven in a former case or proceedin!" judicial or administrative" involvin! the same parties and subject matter" may be !iven in evidence a!ainst the adverse party who had the opportunity to cross+e$amine him.)B

1f the testimony or deposition !iven in another proceedin! is that of a party in a case" the other party may simply offer in evidence the record of that testimony or the deposition without havin! to call the declarant+ party to testify thereon. Certainly" a party will offer the opposin! partyKs declaration as evidence only if it is prejudicial to the latterKs interest. Such declaration of a party a!ainst his interest is an e$tra+judicial admission which may be !iven in evidence a!ainst him./C B. A-1'(('on(@ J+-'c',* An- E5t&,AJ+-'c',* *n admission is a partyKs ac#nowled!ment of a fact which is a!ainst his interest.
: : : : : : : *

9ules of Court" 9ule @2B" Sec. @. "bid, Sec. 2. 6 9ules of Court" 9ule @2B" Sec. ).
) / 8 ; E B C

Tabuena v. Court of *ppeals" supra" note @8. People v. ?endo&a" D. 9. 0o. B8)B;" 0ovember 2@" @BB@" 2C/ SC9* 2EE. 9epublic v. Court of *ppeals" D. 9. 0o. @@B2EE" *u!ust @E" @BB;" 2;; SC9* 8)). Tan v. C*" 0o. 7+22;B)" ?ay @8" @B8;" 2C SC9* 6/. 9ules of Court" 9ule @)C" Sec. /;. "bid, Sec. 28

* party may ma#e an admission in any of these ways

@. 1n written pleadin!s" motions and other papers" and stipulations filed in the case.

2. 1n open court" either by his testimony on the stand or by his statement or that of his counsel.

). 1n his statement made outside the proceedin!s in the same case.

1n the first two instances above+mentioned" the admissions made are re!arded as judicial admissions. * judicial admission does not re(uire proof and may be contradicted only by showin! that it was made throu!h palpable mista#e or that no such admission was made. * judicial admission need not be offered in evidence since it is not evidence. 1t is superior to evidence and shall be considered by the court as established.

:n the other hand" statements made by a party outside the proceedin!s in the same case are e$trajudicial admissions which may be an act" declaration or omission made by a party as to a relevant fact and may be !iven in evidence a!ainst him./@ This type of admission is re!arded as evidence and must be offered as such. otherwise" the court will not consider it in decidin! the case. 1f the e$tra+judicial statement of a party is not a!ainst his interest but is in his favor" it becomes a self+servin! declaration which is inadmissible for bein! hearsay since it will be testified to by one who simply heard the statement and has no personal #nowled!e of it. 2ut it will not be incompetent evidence" nor self+servin!" if testified to by the party himself at the trial./2

2y the ruleKs definition" not all admissions made by a party durin! a judicial proceedin! are judicial admissions. To (ualify" they must be made and offered in the proceedin!s in the same case. 1f made in one judicial proceedin!" but offered in another" they become e$trajudicial admissions for purposes of the latter case. Thus" the declaration of a defendant in a case that the plaintiff therein is his a!ent is a judicial admission of the a!ency relationship between them if that fact is a!ainst the defendantKs interest. 'owever" that same admission may only be an e$trajudicial admission if considered in another case between the same parties.

4ith more reason" an admission made in a document drafted for purposes of filin! as a pleadin! in the case but never filed" another pleadin! bein! filed in its stead" is not a judicial admission" for the unfiled document is not considered a pleadin!. 4hether it would even be an e$trajudicial admission would depend upon whether the document was si!ned by the client or only by his attorney. 1f si!ned only by the attorney" it would not be admissible at all" since an attorney has authority to ma#e statements on behalf of his client only in open court or in a pleadin! actually filed./)

1n criminal cases" it should be noted that an admission or stipulation made by the accused durin! the pre+ trial cannot be used in evidence a!ainst him unless reduced to writin! and si!ned by him and his counsel. // 2ut this rule does not apply to admissions made in the course of the trial. Thus" an admission made by an
* * * *

9ules of Court" 9ule @)C" Sec. 28. Tuason v. Court of *ppeals" D. 9. 0os. @@);;B+EC" 5ebruary 2)" @BB6" 2/@ SC9* 8B6. ) Jac#son v. Schine 7e$in!ton Corporation" )C6 Qy. E2)" 2C6 S.4. 2d @C@). / 9ules of Court" 9ule @@E" Sec. /. 5ule v. Court of *ppeals" 0o. 7+;BCB/" June 22" @BEE" @82 SC9* //8.
@ 2

accused or his counsel durin! the trial may be used a!ainst the accused althou!h not si!ned by either of them./6

*dmissions in a pleadin! which had been withdrawn or superseded by an amended pleadin!" althou!h filed in the same case" are reduced to the status of e$trajudicial admissions and therefore must be proved by the party who relies thereon/8 by formally offerin! in evidence the ori!inal pleadin! containin! such e$trajudicial admission./; Consistently" the @BB; 9ules of Civil Procedure provides that %*n amended pleadin! supersedes the pleadin! that it amends. 'owever" admissions in superseded pleadin!s may be received in evidence a!ainst the pleader $$$.%/E

Since !enerally a judicial admission does not re(uire proof and cannot be contradicted" any attempt made by a party to still prove it may be objected to as immaterial" i.e., not in issue anymore. and any attempt to adduce evidence in contradiction of that admission may also be objected to. 1n either case" the jud!e may himself bloc# such attempts as improper departures from the issues of the case. Onless" of course" it can be shown that the admission was made throu!h palpable mista#e or that no such admission was made at all./B

C. Be(t E%'-ence R+*e

5he 6est 7vidence Rule is applicable only to documents. 4hen the subject of in(uiry is the contents of a document" no evidence shall be admissible other than the ori!inal writin! itself. 6C 0ot every writin! is considered a document for purposes of the best evidence rule. >ocuments as evidence consist of writin!s or any material containin! letters" words" numbers" fi!ures" symbols or other modes of written e$pressions offered as proof of their contents.6@

1f a writin! is offered not to prove its contents but to prove some other fact" e.g., that the writin! e$ists" or that it is done on sheeps#in" or the si&e of the paper it is written on" it is" for purposes of evidence" only object evidence. To determine the admissibility of object evidence" the best evidence rule does not apply. 'ence" the ori!inal writin! need not be presented. The e$istence or condition of that writin! may be proved" at once" by any other evidence" li#e oral testimony.62

Closely related to the best evidence rule is the rule that a document or writin! which is merely %collateral% to
* * *

* * 0 0 0

People v. 'ernande&" D. 9. 0o. @CEC2E" July )C" @BB8" 28C SC9* 26. 2astida v. ?en&i R Co." 6E Phil. @EE [@B))]. ; Javellana v. >. :. Pla&a ,nterprises" 1nc." D. 9. 0o. 7+2E2B;" ?arch )C" @B;C" )2 SC9* 28@. Torres v. Court of *ppeals" 0o. 7+);/2C" July )@" @BE/" @)@ SC9* 2/. >irector of 7ands v. Court of *ppeals" D.9. 0o. )@/CE" *pril 22" @BB@" @B8 SC9* B/. E 9ules of Court " 9ule @C" Sec. E. B 9ules of Court" 9ule @2B. C 9ules of Court" 9ule @)C. @ 9ules of Court" 9ule @)C" Sec. 2. 2 People v. Tandoy" D. 9. 0o. EC6C6" >ecember /" @BBC" @B2 SC9* 2E.
6 8

the issue involved in the case on trial need not be produced. This is the collateral facts rule. Thus" where the purpose of presentin! a document is not to prove its contents" but merely to !ive coherence to" or to ma#e intelli!ible" the testimony of a witness re!ardin! a fact contemporaneous to the writin!" the ori!inal of the document need not be presented. 1n this case" the contents of the document are not sou!ht to be proven" but are simply incidental to the fact bein! testified to. Thus" the best evidence rule cannot apply.6)

The ori!inal of a document is one the contents of which are the subject of in(uiry. 6/ ,ven a mere photocopy of a document may be an ori!inal if it is the contents of that photocopy that are in(uired into.

4hen a document is in two or more copies e$ecuted at or about the same time with identical contents" all such copies are e(ually re!arded as ori!inals. Thus" the first copy and four A/F carbon copies of a contract" all of which are identical" are all considered ori!inals. ,ach of them may be offered as proof of their contents. 2ut if a party has lost his ori!inal document" he must account not only for the unavailability of his copy but also for the loss" destruction or unavailability of the rest of the ori!inal copies. :therwise" secondary evidence of his lost ori!inal will not be admitted. *ny of the four other e$tant ori!inals would still be the best available evidence.66

Secondary evidence may also be resorted to" as thou!h the document had been lost" when the adverse party who has custody of the ori!inal refuses" despite reasonable notice" to produce the document. 68 1n this case" such adverse party should not later be allowed to introduce the ori!inal for the purpose of contradictin! the secondary evidence presented.6;

4hen the proper foundation for the reception of secondary evidence has been laid" the best evidence rule insists on a preference in the type of secondary evidence that will be presented. Thus" the 9ule provides

4hen the ori!inal document has been lost or destroyed" or cannot be produced in court" the offeror" upon proof of its e$ecution or e$istence and the cause of its unavailability without bad faith on his part" may prove its contents by a copy" or by a recital of its contents in some authentic document" or by the testimony of witnesses in the order stated.

'ence" before a party may offer the testimony of witnesses to prove the contents of a lost ori!inal" he must first show or prove that no copy of the document e$ists and" in addition" that there e$ists no authentic document recitin! the contents of the unavailable ori!inal. This second layer of foundations may of course be established by oral testimony" but it must be established.

D. P,&o* E%'-ence R+*e

The Parol ,vidence 9ule applies only to contractual documents.6E 'owever" it does not apply where at least one party to the suit is not a party N nor a privy to a party N to the written instrument and does not base his claim" nor assert a ri!ht arisin! from the instrument or established therein. Thus" a total stran!er
0 0 0 0 0 0

*ir 5rance v. Carrascoso" D. 9. 0o. 2@/)E" September 2E" @B88" @E SC9* @66. 9ules of Court" 9ule @)C" Sec. /. 6 >e Hera v. *!uilar" D. 9. 0o. E));;" 5ebruary B" @BEE" 2@E SC9* 8C2. 8 9ules of Court" 9ule @)C" Sec. 8. ; 4i!more on ,vidence" S @2@C. E Cru& v. Court of *ppeals" D. 9. 0o. ;BB82" >ecember @C" @BBC" @B2 SC9* 2CB.
) /

to the writin! is not bound by its terms and is allowed to introduce e$trinsic N or parol N evidence a!ainst the efficacy of the writin!.6B

1n order that parol evidence may be admissible" the e$ceptional situation" includin! the fact of a subse(uent a!reement" must be put in issue in the pleadin!. :therwise" no parol evidence can be admissible. 4hen the defendant invo#es such e$ceptional situations in his answer" such facts are sufficiently put in issue as to allow the presentation of parol evidence. 'owever" if" when presented" the parol evidence is not objected to" such objection is deemed waived. E. A-1'(('b'*'t/ O3 E5t&,AJ+-'c',* Con3e(('on( The e$tra+judicial confession of an accused ac#nowled!in! his !uilt of the offense char!ed" or of any offense necessarily included therein" may be !iven in evidence a!ainst him.8C 0ote that if the confession is judicially !iven" either by way of a plea of !uilty upon arrai!nment or made in the course of the trial" it need not be offered in evidence since it is a judicial admission.8@

*n e$tra+judicial confession may be !iven either before the custodial investi!ation sta!e or durin! custodial investi!ation. * person is placed under custodial investi!ation when after a crime has been committed" the authoritiesK investi!ation ceases to be a mere !eneral in(uiry into the circumstances and authorship of the crime and be!ins to focus on the individual as a suspect. 82 Onder 9epublic *ct ;/)E"8) custodial investi!ation shall include the practice of issuin! an %invitation% to a person who is investi!ated in connection with an offense he is suspected to have committed.

4hen under custodial investi!ation" a person shall have the constitutional ri!ht to be informed of his ri!ht to remain silent and to have competent and independent counsel" preferably of his own choice. 1f the person cannot afford the services of a counsel" he must be provided with one. These ri!hts cannot be waived e$cept in writin! and in the presence of counsel.8/ 1t must be noted that neither a lawyer" 021 a!ent nor the City 7e!al :fficer can be considered an independent counsel for this purpose.

1f the person under custodial investi!ation has not been informed of any of the above+mentioned ri!hts" any confession or declaration !iven by him durin! said investi!ation shall be inadmissible. 86 To be valid" the information to be !iven to the accused re!ardin! his ri!hts must be more than a perfunctory recitation of such ri!hts. it must be made in practical terms" in a lan!ua!e or dialect he understands and in a manner he comprehends" the de!ree of e$planation varyin! accordin! to the personKs level of education and intelli!ence.88 The presumption of re!ularity in the performance of official duty does not apply to in+custody confessions. The prosecution must prove compliance with the aforementioned constitutional re(uirements.8;

0o custodial investi!ation shall be conducted unless it be in the presence of counsel en!a!ed by the
0 ' ' ' '

' ' ' '

7echu!as v. Court of *ppeals" 0os. 7+)BB;2 and 7+/C)CC" *u!ust 8" @BE8" @/) SC9* ))6. 9ules of Court" 9ule @)C" Sec. )). @ "bid, 9ule @2B" Sec. /. 2 ?iranda v. *ri&ona" )E/ O.S. /)8. ,scobedo v. 1llinois" );E O.S. /;E. ) *n *ct >efinin! Certain 9i!hts :f Persons *rrested" >etained" :r Onder Custodial 1nvesti!ation *s 4ell *s The >uties :f The *rrestin!" >etainin!" *nd 1nvesti!atin! :fficers *nd Providin! Penalties 5or Hiolations Thereof. / Constitution" *rt. 111" Sec. @2. 6 People v. Jimene&" 0o. 7+/C8;;" ?ay )@" @B;8" ;@ SC9* @E8. 8 People v. Camalo!" D. 9. 0o. ;;@@8" January )@" @BEB" @8B SC9* E@8. ; People v. Trinidad" 0o. 7+)EB)C" June 2E" @BEE" @82 SC9* ;@/.
B C

person arrested" or by any person in his behalf" or appointed by the court upon petition either by the detainee himself or by anyone in his behalf. The ri!ht to counsel may be waived but the waiver shall not be valid unless made with the assistance of counsel. *ny statement obtained in violation of this procedure" whether inculpatory or e$culpatory" in whole or in part" shall be inadmissible in evidence.8E

1n &eople v. &olicarpio,8B the accused who was arrested in a buy+bust operation refused to !ive a statement after havin! been informed of his Constitutional ri!hts. but he was made to ac#nowled!e in writin! that si$ plastic ba!s of marijuana leaves were confiscated from him" and he was also made to si!n a receipt for Php 2C.CC as the purchase price of the marijuana. The Supreme Court ruled that said receipts were in effect e$tra+judicial confessions !iven durin! custodial investi!ation and were therefore inadmissible for havin! been !iven without the assistance of counsel.

*n e$tra+judicial confession made by an accused shall not be sufficient for conviction unless corroborated by evidence of corpus delicti.;C Thus" in &eople v. 6arlis,;@ the accused who validly !ave a statement durin! custodial investi!ation confessin! to the commission of homicide and robbery was convicted of homicide only and ac(uitted of the robbery char!e in the absence of evidence establishin! the corpus delicti of robbery.

The ri!hts !uaranteed a person under *rt. 111" Sec. @2 of the Constitution are not available when he is not under custodial investi!ation. Thus" a statement or confession voluntarily !iven by an employee durin! an administrative investi!ation that he had malversed his employerKs funds is admissible althou!h without a prior information of said ri!hts and without the assistance of counsel.;2

Similarly competent is the admission of adulterous conduct made by a woman to her husband when the latter confronted her with incriminatory evidence in their residence.;)

F. E5,1'n,t'on O3 W'tne((e(

@. Denerally" the testimony of a witness is elicited throu!h (uestions propounded by the e$aminin! counsel in open court. Onless the witness is incapacitated to spea#" or the (uestion calls for a different mode of answer" the answers of the witness shall be !iven orally. ;/ The main purpose of re(uirin! a witness to appear and testify orally in open court is to secure to the adverse party the opportunity to cross+e$amine the witness. *nother reason for such rule is to enable the jud!e to observe the countenance and demeanor of the witness while testifyin!" an important factor in determinin! the credibility of a witness. Therefore" it would be impermissible and would be a !rave abuse of discretion on the part of the trial jud!e to accept the affidavit of a witness in lieu of the latterKs direct testimony subject to cross+e$amination.;6
'

' 2 2 2 2 2 2

People v. Dalit" 0o. 7+6@;;C" ?arch 2C" @BE6" @)6 SC9* /86. ?orales v. Ponce+,nrile" 0o. 7+8@C@8" *pril 2C" @BE)" @2@ SC9* 6)E. B People v Policarpio" 0o. 7+8BE//" 5ebruary 2)" @BEE" @6E SC9* E6. C 9ules of Court" 9ule @))" Sec. ) @ People v 2arlis" D. 9. 0o. @C@CC)" ?arch 2/" @BB/" 2)@ SC9* /28. 2 People v. *yson" D. 9. 0o. E62@6" July ;" @BEB" @;6 SC9* 2@8. ) *rroyo v. Court of *ppeals" D. 9. 0o. B88C2" 0ovember @B" @BB@" 2C) SC9* ;6C. / 9ules of Court" 9ule @)2" Sec. @. 6 People v. ,sten&o" D. 9. 0o. 7+/@@88" *u!ust 26" @B;8" ;2 SC9* /2E.
E

The aforesaid rule is rela$ed under the 9ule on Summary Procedure A9SPF where in criminal cases covered by said 9ule" the affidavits and counter+affidavits of the partiesK witnesses constitute their direct testimonies subject however to cross+e$amination" re+direct or re+cross e$amination.;8 *nd in civil actions covered by the 9SP" no e$amination of witnesses is even re(uired or allowed. the parties simply submit the affidavits of their witnesses and other evidence on the factual issues defined in the preliminary conference order prepared by the jud!e after the termination of said conference.;;

*nother e$ception is found in the trial of a!rarian cases where the parties submit affidavits of their witnesses subject to cross+e$amination.;E

2. :ne (uestion often as#ed is whether a witness may be allowed to testify by narration. 4hile the !eneral rule is that material and relevant facts are elicited from a witness by (uestions put to him" it still rests within the sound discretion of the trial jud!e to determine whether a witness will be re(uired to testify by (uestion and answer" or will be permitted to testify in narrative form.;B

There is no le!al principle which prevents a witness from !ivin! his testimony in narrative form if he is re(uested to do so by counsel. * witness may be allowed to testify by narration if it would be the best way of !ettin! at what he #new or could state concernin! the matter at issue. 1t would e$pedite the trial and would perhaps furnish the court a clearer understandin! of the matters related as they occurred. ?oreover" narrative testimony may be allowed if material parts of his evidence cannot be easily obtained throu!h piecemeal testimonies. 2ut if in !ivin! such testimony" the witness states matters irrelevant or immaterial or incompetent" it is the ri!ht and duty of counsel objectin! to such testimony to interpose and arrest the narration by callin! the attention of the court particularly to the objectionable matter and" by a motion to stri#e it out" obtain a rulin! of the court e$cludin! such testimony from the case.EC 4hile a witness may be permitted in the discretion of the court to narrate his #nowled!e of material facts bearin! upon the case without specifically bein! interro!ated in detail" it is also within the discretion of the court to prohibit a witness from volunteerin! unsou!ht information in connection with the case.E@

). Some jurisprudential rules re!ardin! uncompleted testimonies

).@ 4hen a witness had testified on direct e$amination but was not cross+e$amined because he dies after numerous postponements of his cross+e$amination attributable to the cross+e$aminin! party whereas the witness had all the time been available for cross+e$amination" his direct testimony shall be allowed to remain in the record and cannot be ordered stric#en off. The cross+ e$aminer is deemed to have waived his ri!ht to cross+e$amine.E2

).2 :n the contrary" when cross+e$amination is not and cannot be done or completed due to causes attributable to the party offerin! the witness" the uncompleted testimony is thereby rendered incompetent.E)

2 2 2 2 ) ) ) )

9ule on Summary Procedure" Sec. @6. 9ule on Summary Procedure" Sec. B. E Pres.>ecree 0o. B/8" Sec. @8. B BE C.J.S. Sec. )26" p. 28. C "bid. @ People v. Cali$tro" D. 9. 0o. B2)66" January 2/" @BB@" @B) SC9* )C). 2 >ela Pa&" Jr." v. 1ntermediate *ppellate Court" 0o. 7+;@6);" September @;" @BE;" @6/ SC9* 86. ) :rti!as" Jr." v. 7ufthansa Derman *irlines" 0o. 7+2E;;)" June )C" @B;6" 8/ SC9* 8@C.
8 ;

).) The direct testimony of a witness who dies before conclusion of the cross+e$amination can be stric#en only insofar as not covered by the cross+e$amination" and absence of a witness is not enou!h to warrant stri#in! his testimony for failure to appear for further cross+e$amination where the witness has already been sufficiently cross+e$amined" and the matter on which further cross+ e$amination is sou!ht is not in controversy.E/

/. * jud!e may intervene in the trial of a case to promote e$pedition and avoid unnecessary waste of time or to clear up some ambi!uity. * jud!e is not a mere referee li#e that of a bo$in! bout. 'e should have as much interest as counsel in the orderly and e$peditious presentation of evidence" callin! the attention of counsel to points at issue that are overloo#ed" directin! them to as# (uestions that would elicit the facts on the issues involved" clarifyin! ambi!uous remar#s. The number of times a jud!e intervenes in the e$amination of a witness is not necessarily an indication of bias. 1t cannot be ta#en a!ainst a jud!e if his clarifyin! (uestions happen to reveal certain truths which tend to spoil the theory of one party.E6

6. The court may stop the introduction of further testimony upon any particular point when the evidence upon it is already so full that more witnesses to the same point cannot be reasonably e$pected to be additionally persuasive. 2ut this power should be e$ercised with caution.E8

". A+thent'c,t'on An- P&oo3 O3 Doc+1ent(

5or the purpose of their presentation in evidence" documents are either public or private. E; Public documents need not be authenticated. private documents have to be authenticated to be admissible in evidence.

There are only three types of public documents" vi'.8 A@F the written official acts or records of official acts of the soverei!n authority" official bodies and tribunals and public officers" whether of the Philippines or of a forei!n country" e.g., transfer certificate of title" the :fficial Da&ette" entries in the boo# of entries of jud!ments. A2F documents ac#nowled!ed before a notary public e$cept last wills and testaments. A)F public records" #ept in the Philippines" of private documents re(uired by law to be entered therein" e.g., certified true copies of birth certificates or of death certificates issued by the local civil re!istrar.EE

*ll other writin!s are private and thus ou!ht to be authenticated. Their due e$ecution and !enuineness must be proved either A@F by anyone who saw the document e$ecuted or written. or A2F by evidence of the !enuineness of the si!nature or handwritin! of the ma#er.EB 0ote that the opinion of an ordinary witness re!ardin! the handwritin! of a person is admissible under 9ule @)C" Sec. 6C" as an e$ception to the opinion rule provided the witness is shown to have sufficient familiarity with the handwritin!.

The last para!raph of 9ule @)2" Sec. 2C states that (9ny other private document need only be identi%ied as that hich it is claimed to be.( This provision should be ta#en in relation to the first para!raph which reads (6e%ore any private document o%%ered as authentic is received in evidence, its due e+ecution and genuineness must be proved.( 1f it is offered as a !enuine writin!" it must be proved to be !enuine. 1f it is offered as a for!ery" it must be proved to be a for!ery. 1f a private writin! is offered not as an authentic
) ) ) ) ) )

People v. SeIeris" 0o. 7+/EEE)" *u!ust 8" @BEC" BB SC9* B2 People v. 'atton" D. 9. 0o. E6C/)" June @8" @BB2" 2@C SC9* @. 8 9ules of Court" 9ule @))" Sec. 8. ; 9ules of Court" 9ule @)2" Sec. @B. E "bid. B 9ules of Court" 9ule @)2" Sec. 2C.
/ 6

document" it need only be identified as that which the offeror claims it to be. Thus" if an anonymous letter a party has received is relevant to the issues in a case" he need not authenticate it since he cannot possibly do that anyway. 'e only has to identify it as the anonymous letter he had received. The authenticity of the document is immaterial for he is not offerin! it as authentic. *n ancient document" althou!h private in nature" needs no authentication either. provided" it appears to be more than thirty years old" is produced from a custody in which it would naturally be found if !enuine" and is unblemished by any alteration or circumstances of suspicion.BC :f course" also" if the authenticity of a private document is judicially admitted by the other" a party need not authenticate it.

0ot all public documents have the same probative value. >ocuments consistin! of entries in public records made in the performance of a duty by a public officer are prima %acie evidence of the facts therein stated.B@ 'ence" the entries made by the cler# of court in the boo# of entries of jud!ments are prima facie evidence of the entered facts. the cler# of court need not be called to attest to the truth thereof. Such evidence of course are only prima %acie, i.e., !ood until rebutted by reliable contradictory evidence.

2ut 09ll other public documents are evidence, even against a third person, o% the %act hich gave rise to their e+ecution and o% the date o% the latter.0 B2 Thus" a certified true copy of a death certificate issued by the local civil re!istrar N althou!h a public document N is proof only of the fact which !ave rise to its e$ecution" i.e., the fact of death and the date of that fact. The death certificate is not evidence of the cause of death" which ou!ht to be proved by competent evidence. H. Ten-e& O3 E5c*+-e- E%'-ence

E%'-ence 3o&1,**/ o33e&e- b/ , 0,&t/ 1,/ be ,-1'tte- o& e5c*+-e- b/ the co+&t. I3 , 0,&t/.( o33e&e- -oc+1ent,&/ o& ob4ect e%'-ence '( e5c*+-e-# he 1,/ 1o%e o& &e2+e(t th,t 't be ,tt,che- to 3o&1 0,&t o3 the &eco&- o3 the c,(e. I3 the e5c*+-e- e%'-ence '( o&,*# he 1,/ (t,te 3o& the &eco&- the n,1e ,n- othe& 0e&(on,* c'&c+1(t,nce( o3 the $'tne(( ,n- the (+b(t,nce o3 the 0&o0o(e- te(t'1on/. I3 , 2+e(t'on ,(ke- o3 , $'tne(( b/ the co+n(e* $ho 0&e(ente- h'1 '( ob4ecte- to ,n- the ob4ect'on '( (+(t,'ne-# co+n(e* 1,/ 1,n'3e(t 3o& the &eco&- $h,t the $'tne(( $o+*- h,%e ,n($e&e- '3 the $'tne(( h,- been ,**o$e- to -o (o. Th'( 0&oce-+&e '( kno$n ,( o33e& o3 0&oo3 o& ten-e& o3 e5c*+-e- e%'-enceB9 ,n- '( 1,-e 3o& 0+&0o(e( o3 ,00e,*. I3 ,n ,-%e&(e 4+-)1ent '( e%ent+,**/ &en-e&e- ,),'n(t the o33e&o&# he 1,/ 'n h'( ,00e,* ,((')n ,( e&&o& the &e4ect'on o3 the e5c*+-e- e%'-ence. The ,00e**,te co+&t $'** bette& +n-e&(t,n- ,n,00&ec',te the ,((')n1ent o3 e&&o& '3 the e%'-ence 'n%o*%e- '( 'nc*+-e- 'n the &eco&- o3 the c,(e. An- ('nce the o33e& o3 0&oo3 '( 3o& ,00e**,te 0+&0o(e(# the (,1e c,nnot be -en'e- b/ the t&',* co+&t.

( ( ( (

9ules of Court" 9ule @)2" Sec. 22. "bid, Sec. 2). 2 9ules of Court" 9ule @)2" Sec. 2). ) "bid, 9ule @)C" Sec. /C.
C @

CI=IL PROCEDURE
P*9T :0,

:9>10*9L C1H17 *CT1:0S

I. CA!E BE"IN! WITH THE FILIN" OF CO7PLAINT

1. P&e*'1'n,&/

1. Definition of complaint

* complaint is a pleadin! alle!in! a plaintiffKs cause or causes of action. The names and residences of the plaintiff and defendant must be stated in the complaint.@

2. Requirements

2.@ Herification

* pleadin! is verified by an affidavit that the affiant has read the pleadin! and that the alle!ations therein are true and correct of his personal #nowled!e or based on authentic records. * pleadin! re(uired to be verified which contains a verification based on -information and belief- or upon -#nowled!e" information and belief"- or lac#s a proper verification" shall be treated as an unsi!ned pleadin!.2 *bsence of verification when re(uired is not a jurisdictional defect. 1t is just a formal defect which can be waived.) The verification by a lawyer is sufficient./

2.2 Certificate a!ainst forum+shoppin!

*n important component of a complaint or any initiatory pleadin! is the certificate of non+forum shoppin!. The rule re(uires that the plaintiff or principal party certifies under oath in the complaint or other initiatory pleadin! assertin! a claim for relief" or in a sworn certification anne$ed thereto and simultaneously filed therewith

AaF that he has not theretofore commenced any action or filed any claim involvin! the same issues in any court" tribunal or (uasi+judicial a!ency and" to the best of his #nowled!e" no such other action or claim is pendin! therein.

1 . :

8ules of Court! 8ule '! $ec. :.

8ules of Court! 8ule 2! $ec. *! as amended by A. A. -o. <<.91<9$C. %hilippine BanC of Commerce +. Aacadae&! 1<( %hil. ()1 [1('<]D Buena+entura +. 5y! -o. L9.)10'! Aarch :1! 1()2! 1*( $C8A ... 5y +. 1orCmenEs Compensation Commission! L9*::)(! April .)! 1()<! (2 $C8A .00.

AbF if there is such other pendin! action or claim" a complete statement of the present status thereof. and

AcF if he should thereafter learn that the same or similar action or claim has been filed or is pendin!" he shall report that fact within five A6F days therefrom to the court wherein his aforesaid complaint or initiatory pleadin! has been filed.6

2.2.@ 0ature

AaF The re(uired certificate of non+forum shoppin! is mandatory but not jurisdictional.8

AbF 1nitiatory pleadin!s are the complaint" permissive counterclaim" cross+claim" third+party Afourth+party" etc.F" complaints and complaints+in+intervention. The certificate of non+forum shoppin! should be si!ned by the plaintiff Apermissive counterclaimant" cross+claimant" third+party" etc. N plaintiff and plaintiff+in+interventionF and not the counsel.;

AcF There is forum shoppin! when" as a result of an adverse opinion in one forum" a party see#s a favorable opinion Aother than by appeal or certiorariF in other fora" or when he repetitively avails himself of -several judicial remedies in different courts" simultaneously or successively" all substantially founded on the same issue or transactions involvin! the same essential facts and circumstances" and all raisin! substantially the same issues either pendin! in or resolved adversely by some other court.- E ,lsewise stated" forum shoppin! e$ists where the elements of litis pendentia are present or where a final jud!ment in one case will amount to res *udicata in the other.B 4here jud!ment has already become final and e$ecutory" res *udicata and not forum shoppin! should be pleaded as a defense. 5orum shoppin! applies only when two A2F or more cases are still pendin!.@C

AdF 5ailure to comply with the re(uirement of a certificate of non+forum shoppin! may not be cured by mere amendment of the complaint or other initiatory pleadin!. The initiatory pleadin! should be dismissed without prejudice" unless otherwise provided" upon motion and after hearin!. 'owever" even if there is a certificate of non+forum shoppin!" if the acts of the party or his counsel clearly constitute willful and deliberate forum shoppin!" the same shall be !round for summary dismissal with prejudice of the initiatory pleadin! and shall constitute direct contempt" as well as a cause for administrative sanctions a!ainst the former.@@

8. F'*'n) o3 Co10*,'nt

1. Manner

5ilin! of the complaint is the act of presentin! it to the Cler# of Court. @2 This may be done by presentin! the ori!inal copy plainly indicated as such" personally to the cler# of court or by sendin! it by re!istered mail to the
0 ' 2 ) ( 1 1 1

8ules of Court! 8ule 2! $ec. 0. 8obern /e+elopment Corp. +. Fuitain! 3.8. -o. 1:0<*.! $eptember .:! 1(((! :10 $C8A 10<. 4i+e9$tar Bus Company +. Court of Appeals! 3.8. -o. 1.2<'*! Au&ust :1! 1(((! :1: $C8A :'2. $pouses /iu +. #ba=an! 3. 8. -o. 1:.'02! January 1(! .<<<. Buan +. LopeG! -o. L920:*(! ,ctober 1:! 1()0! 1*0 $C8A :*. < Employees Compensation Commission +. Court of Appeals! 3.8. -o. 110)0)! June .'! 1(('! .02 $C8A 212. 1 8ules of Court! 8ule 2! $ec. 0. . 8ules of Court! 8ule 1:! $ec. ..

cler# of court. 1n personal filin!" the date and hour of receipt by the cler# of court as indicated on the face of the complaint is the date and hour of filin!. 1n filin! by re!istered mail" the date of postin! appearin! on the envelope shall be considered the date of filin!.@)

5ilin! of a complaint by mail other than throu!h re!istry service of the !overnment postal a!ency is not authori&ed. Thus" if a complaint is mailed throu!h any private letter+forwardin! a!ency" the date of receipt by the cler# of court is the date of filin!.@/

5ilin! of the complaint should be distin!uished from service of pleadin!s subse(uent to the filin! of the complaint.@6 1n service of pleadin!s" priorities in modes of service must be strictly observed.@8

2. Payment of docket and other lawful fees

6allatan v. Court o% 9ppeals,-: summari&es the rules on payment of doc#et fees

AaF The rule in this jurisdiction is that when an action is filed in court" the complaint must be accompanied by the payment of the re(uisite doc#et and filin! fees.

AbF 1n real actions" the doc#et and filin! fees are based on the value of the property and the amount of dama!es claimed" if any" which must be specified in the body and prayer of the complaint. 0ote that in 5acay v. R5C o% 5agum /avao del Norte, the Supreme Court opined that a real action may be commenced or prosecuted without an accompanyin! claim for dama!es.@E

AcF 1f the complaint is filed but the fees are not paid at the time of filin!" the court ac(uires jurisdiction upon full payment of the fees within a reasonable time as the court may !rant" barrin! prescription.

AdF 4here the fees prescribed for the real action have been paid but the fees of certain related dama!es are not" the court" althou!h havin! jurisdiction over the real action" may not have ac(uired jurisdiction over the accompanyin! claim for dama!es.@B

AeF *ccordin!ly" the court may e$pun!e those claims for dama!es" or allow" on motion" a reasonable time for amendment of complaint so as to alle!e the precise amount of dama!es and accept payment of the re(uisite le!al fees.2C

1 1

1 1 1 1 1

Ibid.! $ec. :. Ben&uet Electric Cooperati+e! #nc +. -ational Labor 8elations Commission! 3. 8. -o. )(<2<! Aay 1)! 1((.! .<( $C8A 00. 0 8ules of Court! 8ule 1:! $ec. *. ' Ibid.! $ec. 11. 2 3. 8. -o. 1.0'):! Aarch .! 1((( :<* $C8A :*. ) ;acay +. 8e&ional ;rial Court of ;a&um! 3. 8. -os. ))<20922! /ecember .<! 1()(! 1)< $C8A *):. ( ,ri&inal /e+elopment and Construction Corporation +. Court of Appeals! 3. 8. -o. (*'22! ,ctober 10! 1((1! .<. $C8A 20:. < Ibid.
: *

AfF 1f there are unspecified claims" the determination of which may arise after the filin! of the complaint or similar pleadin!" the additional filin! fee thereon shall constitute a lien on the jud!ment award. 2@

A!F The same rule also applies to third+party claims and other similar pleadin!s.22

0ote ,ven if the value of a property is immaterial in the determination of the courtKs jurisdiction" it should however be considered in the determination of the amount of doc#et fee.2) 8. COURT ACCUIRE! JURI!DICTION O=ER THE PARTIE! 4hile the court ac(uires jurisdiction over the plaintiff by the latterKs voluntary submission to said jurisdiction with the filin! of the complaint" the court ac(uires jurisdiction over the defendant by his voluntary submission to said jurisdiction or the service of summons and a copy of the complaint upon him.

1. 7o-e( o3 !e&%'ce o3 !+11on(

There are four A/F modes of servin! summons

AaF personal service.

AbF substituted service.

AcF constructive Aby publicationF service. and

AdF e$traterritorial service.

1. Personal er!ice

4henever practicable" the summons shall be served by handin! a copy thereof to the defendant in person" or" if he refuses to receive and si!n for it" by tenderin! it to him.2/ 1f there are two A2F or more defendants" each one of them should be served a copy of the summons and the complaint.26

2. ubstituted er!ice

1f" for justifiable causes" the defendant cannot personally be served with summons within a reasonable time"
. . . . .

Ibid. $un #nsurance ,ffice Ltd. +. Asuncion! 3. 8. -os. 2((:29:)! 4ebruary 1:! 1()(! 12< $C8A .2*. : ;acay +. 8e&ional ;rial Court of ;a&um! supra! note 1). * 8ules of Court! 8ule 1*! $ec. '. 0 Bello +. 5bo! -o. L9:<:0:! $eptember :<! 1().! 112 $C8A (1.
1 .

service may be effected

A@F by leavin! copies of the summons at the defendantKs residence with some person of suitable a!e and discretion then residin! therein" or

A2F by leavin! the copies at the defendantKs office or re!ular place of business with some competent person in char!e thereof. 28

1n substituted service" it is immaterial that the defendant does not in fact receive actual notice. This will not affect the validity of the service.2;

There must be strict compliance with the re(uirements of substituted service.2E 5or substituted service to be valid" the return must show

A@F the efforts e$erted by the sheriff to effect personal service within a reasonable period of time. impossibility of service should be shown by statin! the efforts made to find the defendant.

A2F that such personal service cannot be effected for justifiable reasons.

A)F the service of summons was made at the defendantKs residence or office or re!ular place of business at the time of the service" the address of the defendant to whom summons was supposed to have been served must be indicated in the return. and

A/F the service was made with some person of suitable a!e and discretion residin! therein" if effected at defendantKs residence" or with some competent person in char!e thereof" if effected at defendantKs office or re!ular place of business" at the time of the service. 2B

1mpossibility of personal service for justifiable reasons must be shown.)C :therwise" the service is invalid.)@ The sheriffKs certification that he duly served summons on a defendant does not necessarily mean that he validly served the summons. 1mpossibility of personal service must be established either by the return or by evidence to that effect.)2

2.@ Service on >omestic Private Juridical ,ntity

. . . . : : :

8ules of Court! 8ule 1*! $ec. 2. Aontalban +. Aaximo! -o. L9..((2! Aarch 10! 1(')! .. $C8A 1<2<. ) 4ilmerco Commercial Co.! #nc. +. #ntermediate Appellate Court! -o. L92<''1! April (! 1()2! 1*( $C8A 1(*. ( 8ules of Court! 8ule 1*! $ec. 2. < Administrati+e Circular -o. 0(. 1 "enturanGa +. Court of Appeals! -o. L9222'<! /ecember 11! 1()2! 10' $C8A :<0. . ?eister +. -a+arro! -o. L9.(<'2! Aay :1! 1(22! 22 $C8A .<(! 4ilmerco Commecial Co.! #nc. +. #ntermediate Appellate Court! supra! note .).
' 2

Service on an a!ent of the corporation is not permitted. The desi!nation of persons or officers who are authori&ed to accept summons for a domestic corporation is limited and more clearly specified. The rule states %!eneral mana!er% instead of only %mana!er"% %corporate secretary% instead of %secretary% and %treasurer% instead of %cashier.%

*ccordin!ly" the Court ruled that the service of summons upon the 2ranch ?ana!er of petitioner at its branch office in Ca!ayan de :ro City instead of upon the !eneral mana!er at its principal office in >avao City is improper. Conse(uently" the trial court did not ac(uire jurisdiction over the person of the petitioner. The Court stressed the purpose of the strict enforcement of the rule on summons by providin! that under Section 2C of 9ule @/" the inclusion in a motion to dismiss of other !rounds aside from lac# of jurisdiction over the person of the defendant shall not be deemed a voluntary appearance. *ny proceedin! underta#en by the trial court will conse(uently be null and void.))

2.2 Service on forei!n private juridical entity may be allowed only if there are well+pleaded alle!ations of havin! transacted or doin! business in the Philippines.)/

The fact of doin! business in the Philippines must be established by appropriate alle!ations in the complaint. The court need not !o beyond the alle!ations of the complaint in order to determine whether it has jurisdiction.)6 * determination that the forei!n corporation is doin! business is only tentative and is made only for the purpose of enablin! the local court to ac(uire jurisdiction over the forei!n corporation throu!h service of summons pursuant to 9ule @/" Section @2. Such determination does not foreclose a contrary findin! should evidence later show that it is not transactin! business in the country.)8

". #onstructi!e er!ice $%y Publication&

Service upon de%endant hose identity or hereabouts are un;no n. 3 1n any action where the defendant is desi!nated as an un#nown owner" or the li#e" or whenever his whereabouts are un#nown and cannot be ascertained by dili!ent in(uiry" service may" by leave of court" be effected upon him by publication in a newspaper of !eneral circulation and in such places and for such time as the court may order.);

4hen the defendant is a resident of the Philippines" service of summons by publication is allowed in any action.

'. ()traterritorial er!ice* +hen ,llowed

,$traterritorial service of summons is allowed where the action is a!ainst a non+resident defendant who is not found in the Philippines and the action

A@F affects the personal status of plaintiffs.

: : :

: :

E. B. "illarosa H %artner Co.! Ltd. +. Benito! 3. 8. -o. 1:'*.'! Au&ust *! 1(((! :1. $C8A '0. 8ules of Court! 8ule 1*! $ec. 1.. 0 Litton Aills! #nc. +. Court of Appeals! 3. 8. -o. (*()<! Aay 10! 1(('! .0' $C8A '('D $i&netics Corporation +. Court of Appeals! 3. 8. -o. 1<01*1! Au&ust :1! 1((:! ..0 $C8A 2:2. ' Ibid. 2 8ules of Court! 8ule 1*! $ec. 1*.
: *

A2F relates to or subject of which is property in the Philippines Areal or personalF" in which the defendant has claim" lien or interest" actual or contin!ent. or

A)F in which relief demanded consists wholly" or in part" in e$cludin! the defendant from any interest therein. or

A/F property of defendant has been attached in the Philippines.)E

Thus" e$traterritorial service of summons is proper only in actions in rem or quasi<in<rem. The remedy a!ainst a non+resident defendant who cannot be served with summons in the Philippines is to locate real or personal property and attach the property. The action becomes in rem or quasi<in<rem=> in which case" service by publication is permissible. 4here" however" the attachment is invalid" the service by publication is void./C To be effective" e$traterritorial service of summons must be with leave of court and only throu!h any of the followin! means

A@F Personal service.

A2F 2y publication Aand copy of the summons and order of the court must be sent by re!istered mail to the last #nown addressF.

A)F 2y publication Aand copy of summons and order of the courtF must be sent by re!istered mail at last #nown address. *ny other manner which the court may deem sufficient./@

0otes Service of summons on husband is not bindin! on wife who is a non+resident./2 'owever" substituted service/) or e$traterritorial service of summons by leave of court on a resident defendant who is temporarily outside of the Philippines is valid.// 8. E33ect o3 L,ck o3 !+11on( The trial court does not ac(uire jurisdiction and renders null and void all subse(uent proceedin!s and issuances in the actions from the order of default up to and includin! the jud!ment by default and the order of e$ecution./6 'owever" lac# of summons may be waived as when the defendant fails to ma#e any seasonable objection to the courtKs lac# of jurisdiction over the person of the defendant./8

9. INCIDENT! AFTER COURT HA! ACCUIRED JURI!DICTION O=ER THE PARTIE! 1. P&e*'1'n,&/
:

: * * * * * * *

Banco Espa ol94ilipino +. %alanca! :2 %hil (.1 [1(1)]D %erCins +. /iGon! '( %hil 1)' [1(:(]D $aha&um +. Court of Appeals! 3. 8. -o. 2):.)! June :! 1((1! 1() $C8A **. ( 4ilmerco Commercial Co.! #nc. +. #ntermediate Appellate Court! supra! note .). < ,ba a +. Court of Appeals! 3. 8. -o. )2':0! April .2! 1()(! 12. $C8A ))'. 1 8ules of Court! 8ule 1*! $ec. 12. . "almonte +. Court of Appeals! 3. 8. -o. 1<)0:)! January ..! 1(('! .0. $C8A (.. : Aontalban +. Aaximo! supra! note .2. * 8ules of Court! 8ule 1*! $ec. 1'. 0 ;oyota Cubao! #nc. +. Court of Appeals! 3. 8. -o. 1.':.1! ,ctober .:! 1((2! .)1 $C8A 1(). ' Baticano +. Chu! Jr.! L90)<:'! Aarch 1'! 1()2! 1*) $C8A 0*1.
)

*fter the court has ac(uired jurisdiction over the parties" but before the defendant files his responsive pleadin!" the parties may file the followin! notice" motions and pleadin!s

1. Plaintiff

@.@ notice of dismissal of the complaint under 9ule @;" Section @.

@.2 amended complaint under 9ule @C" Section 2.

@.) motion for leave to file a supplemental complaint under 9ule @C" Section 8.

@./ motion for leave of court to ta#e the deposition upon oral e$amination or written interro!atories of any person" whether party or not under 9ule 2)" Section @.

@.6 motion for leave of court to serve written interro!atories upon defendant under 9ule 26" Section @.

@.8 motion for production or inspection of documents of thin!s under 9ule 2;" Section @.

@.; motion to declare defendant in default under 9ule B" Section ).

2. Defendant

2.@ motion to set aside order of default under 9ule B" Section ).

2.2 motion for e$tension of time to file responsive pleadin! under 9ule @@" Section @@. and

2.) motion for bill of particulars under 9ule @2.

2./ notice of dismissal of the complaint under 9ule @;" Section @. 8. R+*e( on the !0ec'3'c Inc'-ent( 1. -otice of Dismissal of #omplaint

* complaint may be dismissed by the plaintiff by filin! a notice of dismissal at any time before service of the answer or of a motion for summary jud!ment./;

8ules of Court! 8ule 12! $ec. 1.

*s a !eneral rule" the dismissal of the complaint under this rule is without prejudice. 'owever" the followin! are the reco!ni&ed e$ceptions

AaF where the notice of dismissal so provides.

AbF where the plaintiff has previously dismissed the same case in a court of competent jurisdiction.

AcF even where the notice of dismissal does not provide that it is with prejudice but it is premised on the fact of payment by the defendant of the claims involved./E 5or the notice of dismissal to be effective" there must be an order confirmin! the dismissal./B 2. ,mended #omplaint
* party may amend his pleadin! once as a matter of ri!ht at any time before a responsive pleadin! is served or" in the case of a reply" at any time within ten A@CF days after it is served.6C

The filin! by the defendant of a motion to dismiss does not affect the plaintiffKs ri!ht to amend his complaint without first securin! leave of court because a motion to dismiss is not a responsive pleadin!. 6@ 7eave of court is necessary after the filin! of a responsive pleadin!. 'owever" even substantial amendments may be made under this 9ule. 2ut such leave may be refused" if it appears to the court that the motion was made with intent to delay.62 ". upplemental #omplaint

Opon motion of a party the court may upon reasonable notice and upon such terms as are just" permit him to serve a supplemental pleadin! settin! forth transactions" occurrences or events which have happened since the date of the pleadin! sou!ht to be supplemented.6)

The adverse party may plead thereto within ten A@CF days from notice of the order admittin! the supplemental pleadin!.6/ The answer to the complaint shall serve as the answer to the supplemental complaint if no new or supplemental answer is filed.66

* supplemental pleadin! incorporates matters arisin! after the filin! of the complaint. * supplemental pleadin! is always filed with leave of court. 1t does not result in the withdrawal of the ori!inal complaint.

'. Deposition $Rule 2"&

* deposition is not !enerally supposed to be a substitute for the actual testimony in open court of a party or witness. 1f the witness is available to testify" he should be presented in court to testify. 1f available to testify" a
* * 0 0 0 0 0 0

$errano +. Cabrera! (: %hil 22* [1(0:]. 8ules of Court! 8ule 12! $ec. 1D Ainute 8esolution! 3ordon +. %ayumo! 3. 8. -o. 1:*<21! July 2! 1((). < 8ules of Court! 8ule 1<! $ec. .. 1 %aeste +. Jari>ue! (* %hil 12( [1(0:]. . 8ules of Court! 8ule 1<! $ec. :. : 8ules of Court! 8ule 11! $ec. 2. * Ibid. 0 Ibid.
) (

partyKs or witnessK deposition is inadmissible in evidence for bein! hearsay. 68 The e$ceptions however to the inadmissibility of such deposition are provided for in 9ule 2)" Section /" as follows

AaF *ny deposition may be used by any party for the purpose of contradictin! or impeachin! the testimony of deponent as a witness.

AbF The deposition of a party or of any one who at the time of ta#in! the deposition was an officer" director" or mana!in! a!ent of a public or private corporation" partnership" or association which is a party may be used by an adverse party for any purpose.

AcF The deposition of a witness" whether or not a party" may be used by any party for any purpose if the court finds A@F that the witness is dead. or A2F that the witness resides at a distance more than one hundred A@CCF #ilometers from the place of trial or hearin!" or is out of the Philippines" unless it appears that his absence was procured by the party offerin! the deposition. or A)F that the witness is unable to attend to testify because of a!e" sic#ness" infirmity" or imprisonment. or A/F that the party offerin! the deposition has been unable to procure the attendance of the witness by subpoena. or A6F upon application and notice" that such e$ceptional circumstances e$ist as to ma#e it desirable" in the interest of justice and with due re!ard to the importance of presentin! the testimony of witnesses orally in open court" to allow the deposition to be used. and

AdF 1f only part of a deposition is offered in evidence by a party" the adverse party may re(uire him to introduce all of it which is relevant to the part introduced" and any party may introduce any other parts.

.. +ritten /nterro0atories upon Defendant $Rule 2.* ection 1& * jud!ment by default may be rendered a!ainst a party who fails to serve his answer to written interro!atories.6;

1f a party fails to avail of written interro!atories as a mode of discovery" the effect is provided for in 9ule 26" Section 8" to wit

Onless thereafter allowed by the court for !ood cause shown and to prevent a failure of justice" a party not served with written interro!atories may not be compelled by the adverse party to !ive testimony in open court" or to !ive a deposition pendin! appeal.

1. Request for ,dmission

*t any time after issues have been joined" a party may file and serve upon any other party a written re(uest for the admission by the latter of the !enuineness of any material and relevant document described in and e$hibited with the re(uest or of the truth of any material and relevant matter of fact set forth in the re(uest. Copies of the documents shall be delivered with the re(uest unless copies have already been furnished.6E

Onless thereafter allowed by the court for !ood cause shown and to prevent a failure of justice" a party who fails to file and serve a re(uest for admission on the adverse party of material and relevant facts which are" or ou!ht to be within the personal #nowled!e of the latter" shall not be permitted to present evidence on such facts.6B 2. Production or /nspection of Document or 3hin0s $Rule 22* ection 1&
0 0 0 0

/asmari as 3arments! #nc. +. 8eyes! 3. 8. -o. 1<)..(! Au&ust .*! 1((:! ..0 $C8A '... 8ules of Court! 8ule .(! $ec. : 6:7. ) 8ules of Court! 8ule .'! $ec. 1. ( Ibid! $ec. 0.
' 2

This mode of discovery does not mean that the person who is re(uired to produce the document or the thin! will be deprived of its possession even temporarily. 1t is enou!h that the re(uestin! party be !iven the opportunity to inspect or copy or photo!raph the document or ta#e a loo# at the thin!. 4. Physical and Mental ()amination of a Party $Rule 24* ection 1& 1n an action in which the mental or physical condition of a party is in controversy" the court in which the action is pendin! may" in its discretion" order him to submit to a physical or mental e$amination by a physician. 5. #onsequences of Refusal $Rule 25& * trial court has no discretion to determine what the conse(uences of a partyKs refusal to allow or ma#e discovery should be. it is the law which ma#es that determination. it is !rave abuse of discretion for the court to refuse to reco!ni&e and observe the effects of that refusal as mandated by law.8C

16. Default $Rule 5* ection "&

1f the defendin! party fails to answer within the time allowed therefore" the court shall" upon motion of the claimin! party with notice to the defendin! party" and proof of such failure" declare the defendin! party in default. Thereupon" the court shall proceed to render jud!ment !rantin! the claimant such relief as his pleadin! may warrant" unless the court in its discretion re(uires the claimant to submit evidence. Such reception of evidence may be dele!ated to the cler# of court.8@

*nother !round to declare a defendin! party in default is when he fails to furnish a copy of the answer to the claimin! party.82

* declaration of default cannot be made by the court motu proprio. there must be a motion to that effect.8) 1f no motion to declare defendant in default is filed" the complaint should be dismissed for failure to prosecute.

@C.@ 9ules on >efault

@C.@.@ ,ffect of :rder of >efault

AaF * party in default loses his standin! in court. 'e cannot appear therein" adduce evidence and be heard nor ta#e part in trial.8/ 'e cannot file a motion to dismiss without first filin! a motion to set aside the order of default. 86 'e loses his ri!ht to present evidence" control the proceedin!s and e$amine the witnesses or object to plaintiffKs evidence.88

AbF * motion to declare the defendin! party in default should be served upon him. * party in default" however"
' ' '

' ' ' '

/iman +. Alimbres 3. 8. -o. 1:1*'' -o+ember .2! 1(()! .(( $C8A *0(. 8ules of Court! 8ule (. . 3onGaleG +. 4rancisco! *( %hil 2*2 [1(.']D 8amireG +. Court of Appeals! 3. 8. -o. 2':''! July :! 1((<! 1)2 $C8A 10:. : ;he %hilippine British Co.! #nc. +. /e los An&eles! -os. L9::2.<91! Aarch 1<! 1(20! ': $C8A 0<. * Ca+ili +. 4lorendo! -o. L92:<:(! ,ctober (! 1()2! 10* $C8A '1<. 0 $antos +. $amson! -o. L9*':21! /ecember 1*! 1()1! 11< $C8A .10. ' Ca+ili +. 4lorendo! supra! note '*.
< 1

shall be entitled to notice of subse(uent proceedin!s but not to ta#e part in the trial.8;

AcF 2ein! declared in default does not constitute a waiver of all ri!hts. 4hat is waived is only the ri!ht to be heard and to present evidence durin! trial while default prevails. * party in default is still entitled to notice of final jud!ments and orders and proceedin!s ta#en subse(uent thereto.8E 'e may be cited and testify as a witness.8B

@C.@.2 Summary of the 9emedies in >efault;C

AaF 5rom notice of the order of default but before jud!ment" motion to set aside order of default. and" in a proper case" petition for certiorari under 9ule 86.

AbF *fter jud!ment but before its finality

AiF motion for reconsideration under 9ule );" Section @.

AiiF motion for new trial under 9ule );" Section @. and

AiiiF appeal under 9ule /@" Section @.

AcF *fter finality of jud!ment

4ithin the prescribed period" petition for relief from jud!ment under 9ule )E" Section @. in a proper case and within the prescribed period" petition for certiorari under 9ule 86. and in a proper case and within the prescribed periods" petition for annulment of jud!ment under 9ule /;.

@C.@.) *ctions where >efault is 0ot *llowed

AaF *ction for declaration of the nullity of marria!e. action for annulment of marria!e. and" action for le!al separation.

0ote 1f the defendin! party fails to answer" the court shall order the prosecutin! attorney to investi!ate whether or not a collusion e$ists between the parties" and if there is no collusion" to intervene for the State in order to see
' ' ' 2

8ules of Court! 8ule (! $ec. :6a7. 3arcia +. Court of Appeals! 3. 8. -o. ):(.(! June 11! 1((.! .<( $C8A 2:.. ( Ca+ili +. 4lorendo! supra! note '*. < 8ules of Court! 8ule (! $ec. : 6b7! Lina +. Court of Appeals! -o. L9'::(2! April (! 1()0! 1:0 $C8A ':2D Circle 4inancin& Corporation +. Court of Appeals! 3. 8. -o. 22:10! April ..! 1((1! 1(' $C8A 1''D Aalanyaon +. $u &a! 3. 8. -o. *(*':! Aay 2! 1((.! .<) $C8A *:'D ,mico Ainin& and #ndustrial Corporation +. "alle=os! -o. L9:)(2*! Aarch .0! 1(20! ': $C8A .)0D Aatute +. Court of Appeals! L9.'021! January :1! 1('(! .' $C8A 2')D ACut +. Court of Appeals! 3. 8. -o. L9*0*2.! Au&ust :<! 1().! 11' $C8A .1:.
2 )

to it that the evidence submitted is not fabricated.;@

AbF 2efore e$piration of period to answer as when there is a pendin! motion for e$tension.;2

AcF 1n actions !overned by the 9ule on Summary Procedure" a motion to declare defendant in default is not allowed.;)

@C.@./ Two A2F Qinds of Proceedin!s after >eclaration of >efault and the ,$tent of 9elief that may be Dranted

AaF 4ithout 'earin!

The Court may immediately render jud!ment !rantin! the claimant such relief as his pleadin! may warrant. Such relief however shall not e$ceed the amount or be different in #ind from that prayed for nor award unli(uidated dama!es.;/

AbF 4ith 'earin!

The court may" in its discretion" allow or re(uire the claimant to submit evidence. Such reception of evidence may be dele!ated to the Cler# of Court. *fter the reception of claimantKs evidence" the court may render jud!ment !rantin! the reliefs prayed as established by the evidence. 1t may also award unli(uidated dama!es without e$ceedin! the amounts prayed for.;6 11. ()tension of 3ime to file Responsi!e Pleadin0 $Rule 11& The !rantin! of a motion to e$tend the time to plead is addressed to the sound discretion of the court. ;8 The court can e$tend but not shorten the period to plead as fi$ed by the 9ules. 12. %ill of Particulars $Rule 12* ection 1& 2efore respondin! to a pleadin!" a party may move for a definite statement or for a bill of particulars of any matter which is not averred with sufficient definiteness or particularity to enable him properly to prepare his responsive pleadin!. 1f the pleadin! is a reply" the motion must be filed within ten A@CF days from service thereof. Such motion shall point out the defects complained of" the para!raphs wherein they are contained" and the details desired.

The Court need not wait for the date set for hearin! of the motion. Opon the filin! of the motion" the cler# of court must immediately brin! it to the attention of the court which may either !rant or deny it or hold a hearin! therein.;;
2 2

2 2 2 2 2

8ules of Court! 8ule (! $ec. : 6e7. Joesteel Container Corporation +. CommonIealth 4inancin& Corporation! -o. L9.022)! $eptember :<! 1().! 112 $C8A *:D /enso 6%hils.7! #nc. +. #ntermediate Appellate Court! -o. L920<<<! 4ebruary .2! 1()2! 1*) $C8A .)<D Continental Cement Corporation +. Court of Appeals! 3. 8. -o. ))0)'! April .2! 1((<! 1)* $C8A 2.). : 8ules of Court! 8ule 2<! $ecs. 1: and 1(. * 8ules of Court! 8ule (! $ec. : 6d7. 0 8ules of Court! 8ule (! $ec. : 6d7. ' -a&a /e+elopment Corporation +. Court of Appeals! 3. 8. -o. .)12:! $eptember :<! 1(21! *1 $C8A 1<0. 2 8ules of Court! 8ule 1.! $ec. ..
1 .

1f the order directin! the plaintiff to submit a bill of particulars is not complied with" the court may order the stri#in! out of the pleadin! or the portion thereof to which the order was directed or ma#e such orders as it deems just.;E

1". Motion to Dismiss

@. Drounds A9ule @8" Section @F

4ithin the time for but before filin! the answer to the complaint or pleadin! assertin! a claim" a motion to dismiss may be made on any of the followin! !rounds

AaF That the court has no jurisdiction over the person of the defendin! party.

AbF That the court has no jurisdiction over the subject matter of the claim.

AcF That venue is improperly laid.

AdF That the plaintiff has no le!al capacity to sue.

AeF That there is another action pendin! between the same parties for the same cause.

AfF That the cause of action is barred by a prior jud!ment or by the statute of limitations.

A!F That the pleadin! assertin! the claim states no cause of action.

AhF That the claim or demand set forth in the plaintiffKs pleadin! has been paid" waived" abandoned" or otherwise e$tin!uished.

AiF That the claim on which the action is founded is unenforceable under the provisions of the Statute of 5rauds. and

AjF That a condition precedent for filin! the claim has not been complied with.

1t is a decisional rule that in a motion to dismiss on the !round that the complaint states no cause of action" the movant hypothetically admits the truth of the alle!ations of the complaint which are relevant and material to plaintiffKs cause of action. This admission does not include inferences or conclusions drawn from the alle!ed facts nor to matters of evidence" surplasa!e or irrelevant matters nor to alle!ations of fact the falsity of which is subject to judicial nature.;B
2 2
) (

Ibid.! $ec. *. /e /ios +. Bristol Laboratories 6%hil.7! #nc.! 3. 8. -o. .00:<! January .(! 1(2*! 00 $C8A :*(.

5ormal 9e(uisite The motion must comply with 9ule @6. The court is without authority to act on the motion without proof of service of the notice of hearin!.EC

2. >iscussion of 1ndividual Drounds

2.@ Court has no jurisdiction over the person defendin! party.

2.2 Court has no jurisdiction over the subject matter of the claim.E@

2.) Henue is improperly laid.

AaF Henue of an action depends upon the

a.@ nature of the action.

a.2 residence of the parties.

a.) stipulation of the parties. and

a./ law.

AbF Test to >etermine 0ature of *ction

The nature of the action is determined from the alle!ations of the complaint" the character of the relief" its purpose and prime objective. 4hen the prime objective is to recover real property" it is a real action.E2

AcF 9ule that Stipulations as to Henue may ,ither 2e Permissive or ?andatory

4ritten stipulations are either mandatory or permissive. 1n interpretin! stipulations as to venue" in(uiry must be made as to whether or not the a!reement is restrictive in the sense that the suit may be filed only in the place a!reed upon or merely permissive in that the parties may file their suits not only in the place a!reed upon but also in the places fi$ed by the rules.E)

) ) ) )

8ules of Court! 8ule 10! $ec. '. Ibid. . 4ortune Aotors! #nc. +. Court of Appeals! 3. 8. -o. 2'*:1! ,ctober 1(! 1()(! 12) $C8A 0'*. : 8ules of Court! 8ule *! $ec. * 6b7! %olytrade +. Blanco! -o. L9.2<::! ,ctober :1! 1('(! :< $C8A 1)2D 5nimasters Con&lomeration! #nc. +. Court of Appeals! 3. 8. -o. 11('02! 4ebruary 2! 1((2! .'2 $C8A 20(.
< 1

Gualifyin! or restrictive words are %must"% %only"% and %e$clusively% as cited in &hilippine 6an;ing Corporation v. 5ensuan,?@ %solely"% %in no other court"% %particularly"% nowhere else but e$cept%" etc.E6

AdF 4aiver by 5ailure to 5ile ?otion to >ismiss 2ased on 1mproper Henue

1mproper venue may now be pleaded as an affirmative defense in the answer. E8 1mproper venue may only be deemed waived if it is not pleaded either in a motion to dismiss or in the answer.E;

2./ Plaintiff 'as 0o 7e!al Capacity to Sue

AaF ?eanin!

7e!al capacity to sue means that a party is not sufferin! from any disability such as minority" insanity" covertures" lac# of juridical personality" incompetence" civil interdictionEE or does not have the character or representation which he claimsEB or with respect to forei!n corporation" that it is doin! business in the Philippines with a license.BC

AbF >ecisional 9ules

1n &ilipinas Shell &etroleum Corporation v. /umlao, >- the Supreme Court held that a person who has no interest in the estate of a deceased person has no le!al capacity to file a petition for letters of administration. 4ith respect to forei!n corporations, the (ualifyin! circumstances of plaintiffKs capacity to sue bein! an essential element must be affirmatively pleaded.B2 The (ualifyin! circumstance is an essential part of the element of the plaintiffKs capacity to sue.B) The complaint must either alle!e that it is doin! business in the Philippines with a license or that it is a forei!n corporation not en!a!ed in business and that it is suin! in an isolated transaction.

2.6 Litis &endentia

AaF 9ationale of the 9ule 7i#e res *udicata as a doctrine" litis pendentia is a sanction of public policy a!ainst multiplicity of suits.B/ The principle upon which a plea of another action pendin! is sustained is that the latter action is deemed unnecessary and ve$atious.B6
)

) ) ) ) ) ( ( ( (

( (

3. 8. -o. 1<'(.<! /ecember 1<! 1((:! ..) $C8A :)0D Bautista +. Bor=a! 3. 8. -o. .<'<<! ,ctober .)! 1(''! 1) $C8A *2*. 0 5nimasters Con&lomeration! #nc. +. Court of Appeals! supra! note ):. ' 8ules of Court! 8ule 1! $ec. '. 2 8ules of Court! 8ule (! $ec. 1. ) Calano +. CruG! (1 %hil. .*2 [1(0.]. ( 1 Aoran 12*9122 [1(2(]. < Corporation Code! $ec. 1::. 1 3.8. -o. **)))! 4ebruary 2! 1((.! .<' $C8A *<. . Le+iton #ndustries +. $al+adro! -o. L9*<1':! June 1(! 1().! 11* $C8A *.<. : BulaChidas +. -a+arro! -o. L9*('(0! April 2! 1()'! 1*. $C8A *D Antam Consolidated! #nc. +. Court of Appeals! -o. L9 '10.:! July :1! 1()'! 1*: $C8A .)). * #n+estorsE 4inance Corporation +. Ebarle! -o. L92<'*<! June .(! 1())! 1': $C8A '<. 0 "ictronics Computers! #nc. +. Lo&arta! 3. 8. -o. 1<*<1(! January .0! 1((:! .12 $C8A 012D Arceo +. ,li+eros! -o. L9
*

AbF 9e(uisites of Litis &endentia8 To prevail as a !round for a motion to dismiss" the followin! elements must be present

b.@ 1dentity of parties" or at least such as representin! the same interest in both actions.

b.2 1dentity of ri!hts asserted and prayed for" the relief bein! founded on the same facts. and

b.) The identity on the precedin! particulars should be such that any jud!ment which may be rendered on the other action will" re!ardless of which party is successful" amount to res *udicata in the action under consideration.B8

AcF 4hich of the Two Cases Should be >ismissedP

The 9ules do not re(uire as a !round for dismissal of a complaint that there is a prior pendin! action. They provide that there is a pendin! action" not a pendin! prior action. Diven" therefore" the pendency of two actions" the followin! are the relevant considerations in determinin! which action should be dismissed

c.@ the date of the filin!" with preference !enerally !iven to the first action filed to be retained.

c.2 whether the action sou!ht to be dismissed was filed merely to preempt the later action or to anticipate its filin! and lay the basis for its dismissal. and

c.) whether the action is the appropriate vehicle for liti!atin! the issues between the parties.B;

2.8 Res ,udicata

AaF Statement of the >octrine

The doctrine of res *udicata is a rule which pervades every well+re!ulated system of jurisprudence and is founded upon two !rounds embodied in various ma$ims of the common law" namely

a.@ public policy and necessity which ma#e it to the interest of the state that there should be an end to liti!ation N interest reipublicae ut sit %inis litium, and :).02! January :1! 1()0! 1:* $C8A :<)D Andresons 3roups! #nc. +. Court of Appeals! 3. 8. -o. 11*(.)! January .1! 1((2! .'' $C8A *.:. ' Lamin Ents. +. La&amon! -o. L902.0<! ,ctober :<! 1()1! 1<) $C8A 2*<D 4E59/r. -icanor 8eyes Aedical 4oundation +. ;ra=ano! -o. L92'.2:! July :1! 1()2! 10. $C8A 2.0D $untay +. A>uiluG! 3. 8. -o. L9.))):! June :! 1((.! .<( $C8A 0<<D "alencia +. Court of Appeals! 3. 8. -o. 111*<1! ,ctober 12! 1(('! .': $C8A .20D CoCalion& $hippin& Lines! #nc. +. Amin! 3. 8. -o. 11..::! July :1! 1(('! .'< $C8A 1... 2 Allied BanCin& Corporation +. Court of Appeals! 3. 8. -o. (0..:! July .'! 1(('! .0( $C8A :21.

a.2 the hardship on the individual that he should be ve$ed twice for the same cause A nemo debet bis ve+ari et eadem causa. >?

AbF The re(uisites of res *udicata are the followin!8

b.@ the former jud!ment or order must be final.

b.2 it must be a jud!ment or order on the merits.

b.) the court which rendered it had jurisdiction over the subject matter and the parties. and

b./ there must be" between the first and second actions" identity of parties" of subject matter and of cause of action.BB

AcF Two *spects of Res ,udicata

c.@ 2ar by 5ormer Jud!ment N when" between the first case where the jud!ment was rendered" and the second case where the jud!ment is invo#ed" there is identity of parties" subject matter and cause of action.

c.2 Conclusiveness of Jud!ment N when there is an identity of parties but not cause of action" the jud!ment bein! conclusive in the second case only as to those matters actually and directly controverted and determined" and not as to matters invo#ed thereon.@CC

AdF >ecisional 9ules

* judicial compromise has the effect of res *udicata and is immediately e$ecutory and not appealable.@C@ The ultimate test in ascertainin! the identity of causes of action is said to be to loo# into whether or not the same evidence fully supports and establishes both the present cause of action and the former cause of action. @C2 :nly substantial" and not absolute" identity of parties is re(uired for res *udicata.-B=

2.8 Statute of 7imitation APrescription of *ctionF

*n action prescribes by the lapse of time fi$ed in the Civil Code A*rticles @@)B to @@66F.

( ( 1 1 1 1

LinGa& +. Court of Appeals! 3. 8. -o. 1..1)1! June .'! 1(()! .(1 $C8A :<*. Casil +. Court of Appeals! 3. 8. -o. 1.10:*! January .)! 1(()! .)0 $C8A .<*. << #slamic /irectorate of the %hilippines +. Court of Appeals! 3. 8. -o. 112)(2! Aay 1*! 1((2! .2. $C8A *0*. <1 8epublic +. Court of Appeals! 3. 8. -o. 11<<.<! $eptember .0! 1(()! .(' $C8A 121. <. Bachrach Corporation +. Court of Appeals! 3. 8. -o. 1.):*(! $eptember .0! 1(()! .(' $C8A *)2. <: $empio +. Court of Appeals! 3. 8. -o. 1.*:.'! January ..! 1(()! .)* $C8A 0)<.
) (

*9T. @@)B. *ctions prescribe by the mere lapse of time fi$ed by law.

*9T. @@/C. *ctions to recover movables shall prescribe ei!ht years from the time the possession thereof is lost" unless the possessor has ac(uired the ownership by prescription for a less period" accordin! to article @@)2" and without prejudice to the provisions of articles 66B" @6C6" and @@)).

*9T. @@/@. 9eal actions over immovables prescribe after thirty years.

This provision is without prejudice to what is established for the ac(uisition of ownership and other real ri!hts by prescription.

*9T @@/2. * mort!a!e action prescribes after ten years.

*9T @@/). The followin! ri!hts" amon! others specified elsewhere in this Code" are not e$tin!uished by prescription

@. To demand a ri!ht of way" re!ulated in article 8/B.

2. To brin! an action to abate a public or private nuisance.

*9T. @@//. The followin! actions must be brou!ht within ten years from the time the ri!ht of action accrues

@. Opon a written contract.

2. Opon an obli!ation created by law.

). Opon a jud!ment.

*9T. @@/6. The followin! actions must be commenced within si$ years

@. Opon an oral contract.

2. Opon a (uasi+contract.

*9T. @@/8. The followin! actions must be instituted within four years

@. Opon an injury to the ri!hts of the plaintiff.

2. Opon (uasi+delict.

'owever" when the action arises from or out of any act" activity" or conduct of any public officer involvin! the e$ercise of powers or authority arisin! from ?artial 7aw includin! the arrest" detention andMor trial of the plaintiff" the same must be brou!ht within one A@F year.@C/

*rt. @@/;. The followin! actions must be filed within one year

@. 5or forcible entry and detainer.

2. 5or defamation.

*9T. @@/E. The limitations of action mentioned in articles @@/C to @@/2" and @@// to @@/; are without prejudice to those specified in other parts of this Code" in the Code of Commerce and in special laws.

*9T. @@/B. *ll other actions whose periods are not fi$ed in this Code or in other laws must be brou!ht within five years from the time the ri!ht of action accrues.

*9T. @@6C. The time for prescription for all #inds of actions" when there is no special provision which ordains otherwise" shall be counted from the day they may be brou!ht.

*9T. @@6@. The time for the prescription of actions which have for their object the enforcement of obli!ations to pay principal with interest or annuity runs from the last payment of the annuity or of the interest.

*9T. @@62. The period for prescription of actions to demand the fulfillment of obli!ation declared by a jud!ment commences from the time the jud!ment became final.

*9T. @@6). The period for prescription of actions to demand accountin! runs from the day the persons who should render the same cease in their functions.

The period for the action arisin! from the result of the accountin! runs from the date when said result was reco!ni&ed by a!reement of the interested parties.

*9T. @@6/. The period durin! which the obli!ee was prevented by a fortuitous event from enforcin! his ri!ht is not rec#oned a!ainst him.

*9T. @@66. The prescription of actions is interrupted when they are filed before the court" when there is a written e$trajudicial demand by the creditors" and when there is any written ac#nowled!ment of the debt by the debtor.

<*

As amended by %/ -o. 1200! /ecember .*! 1()<.

AaF >ecisional 9ules

Prescription and estoppel cannot be invo#ed a!ainst the State.@C6 1f the defense of prescription has not been raised in a motion to dismiss or an answer" if the plaintiffKs complaint or evidence shows that the action had prescribed" the action shall be dismissed.@C8 Prescription cannot be invo#ed as a !round if the contract is alle!ed to be void ab initio-B: but where prescription depends on whether the contract is void or voidable" there must be a hearin!.@CE

2.; Pleadin! *ssertin! Claim States 0o Cause of *ction

AaF ,lements of a Cause of *ction

* cause of action e$ists if the followin! elements are present" namely

a.@ a ri!ht in favor of the plaintiff by whatever means and under whatever law it arises or is created.

a.2 an obli!ation on the part of the named defendant to respect or not to violate such ri!ht. and

a.) an act or omission on the part of such defendant violative of the ri!ht of the plaintiff or constitutin! a breach of the obli!ation of the defendant to the plaintiff for which the latter may maintain an action for recovery of dama!es.@CB

AbF 'ypothetical *dmission of *lle!ations of 5act in the Complaint

1t is a$iomatic that a defendant movin! to dismiss a complaint on this !round is re!arded as havin! admitted all the averments thereof" at least hypothetically" the test of the sufficiency of the facts found in a petition" as constitutin! a cause of action" bein! whether or not" admittin! the facts alle!ed" the court could render a valid jud!ment upon the same in accordance with the prayer thereof. 1n determinin! the sufficiency of the statements in the complaint as settin! forth a cause of action" only those statements in the complaint" to repeat" may properly be considered" and it is error for the Court to ta#e co!ni&ance of e$ternal facts" or hold a preliminary hearin! to determine their e$istence.@@C

AcF The followin! *lle!ations are not >eemed 'ypothetically *dmitted

1 1

1 1

/elos 8eyes +. Court of Appeals! 3. 8. -o. 1.1*')! January .2! 1(()! .)0 $C8A )1. 8ules of Court! 8ule (! $ec. 1D 4errer +. Ericta! -o9 L9*12'2! Au&ust .:! 1(2)! )* $C8A 2<0D AGnar +. Bernad! -o. L9 )11(<! Aay (! 1())! 1'1 $C8A .2'. <2 8uiG +. Court of Appeals! -o. L9.(.1:! ,ctober .1! 1(22! 2( $C8A 0.0D Castillo +. Heirs of "icente Aadri&al! 3. 8. -o. '.'0<! June .2! 1((1! 1() $C8A 00'. <) Landayan +. Bacani! -o. L9:<*00! $eptember :<! 1().! 112 $C8A 112. <( /ulay +. Court of Appeals! 3. 8. -o. 1<)<12! April :! 1((0! .*: $C8A ..< cited in %ara a>ue ?in&s Enterprises! #nc. +. Court of Appeals! 3. 8. -o. 110:)! 4ebruary 1'! 1((2. 1< /. C. Crystal! #nc. +. Laya! 3.8. -o. 0:0(2! 4ebruary .)! 1()(! 12< $C8A 2:*D /el Bros. +. Court of Appeals! 3. 8. -o. )2'2)! June 1'! 1((.! .1< $C8A ::D 8a+a /e+elopment Corporation +. Court of Appeals! 3. 8. -o. (').0! July :! 1((.! .11 $C8A 1**D Aerill Lynch 4utures! #nc. +. Court of Appeals! 3. 8. -o. (2)1'! July .*! 1((.! .11 $C8A ).*.
<0 <'

c.@ alle!ations of which the court will ta#e judicial notice are not true. neither alle!ations of conclusions nor alle!ations of fact the falsity of which the court may ta#e judicial notice are deemed admitted.@@@

c.2 le!ally impossible facts.

c.) facts inadmissible in evidence. and

c./ facts which appear by record or document included in the pleadin!s to be unfounded.@@2

c.6 4hen other facts may be considered.

c.8 4here the motion to dismiss was heard with the submission of evidence or if documentary evidence admitted by stipulation discloses facts sufficient to defeat the claim @@) or admitted durin! hearin! on preliminary injunction"@@/ the facts therein adduced may be considered.

c.; *ll documents attached to a complaint" the due e$ecution and !enuineness of which are not denied under oath by the defendant" must be considered as part of the complaint without need of introducin! evidence thereon.@@6

c.E 1n resolvin! a motion to dismiss" every court must ta#e co!ni&ance of decisions the Supreme Court has rendered because they are proper subjects of mandatory judicial notice as provided by Section @ of 9ule @2B of the 9ules of Court. The said decisions" more importantly" %form part of the le!al system"% and failure of any court to apply them shall constitute an abdication of its duty to resolve a dispute in accordance with law" and shall be a !round for administrative action a!ainst an inferior court ma!istrate.@@8

c.B ,$haustion of *dministrative 9emedies. 4here plaintiff has not e$hausted all administrative remedies" the complaint not havin! alle!ed the fact of such e$haustion" the same may be dismissed for lac# of cause of action.@@;

AdF Claim or >emand Set 5orth in the PlaintiffKs Pleadin! 'as 2een Paid" 4aived" *bandoned or :therwise ,$tin!uished

*9T. @2)@. :bli!ations are e$tin!uished

1

1 1 1 1 1 1

Aathay +. Consolidated BanC and ;rust Company! -o. L9.:1:'! Au&ust .'! 1(2*! 0) $C8A 0'<D 5. Ba eG Electric Li&ht Company +. Abra Electric Cooperati+e! #nc.! -o. L90(*)<! /ecember )! 1().! 11( $C8A (<D /alandan +. Julio! -o. L91(1<1! 4ebruary .(! 1('*! 1< $C8A *<<D Aarcopper Ainin& Corporation +. 3arcia! -o. L900(:0! July :<! 1()'! 1*: $C8A 12). 1. ;an +. /irector of 4orestry! -o. L9.*0*)! ,ctober .2! 1():! 1.0 $C8A :<.. 1: Ibid. 1* $antia&o +. %ioneer $a+in&s and Loan BanC! 3. 8. -o. 220<.! January 10! 1())! 102 $C8A 1<<. 10 Asia BanCin& Corporation +. 1alter E. ,lsen and Co.! *) %hil. 0.( [1(.0]. 1' %eltan /e+elopment! #nc. +. Court of Appeals! 3. 8. -o. 112<.(! Aarch .(! 1((2! .2< $C8A ).. 12 %ineda +. Court of 4irst #nstance of /a+ao! 111 %hil. '*: [1('1]
11

AiF by payment or performance.

AiiF by the loss of the thin! due.

AiiiF by the condonation or remission of the debt.

AivF by the confusion or mer!er of ri!hts of debtor and creditor.

AvF by compensation. and

AviF by novation.

:ther causes of e$tin!uishment of obli!ations" such as annulment" rescission" fulfillment of a resolutory condition" and prescription" are !overned elsewhere in this Code.

AeF Statute of 5rauds

AfF The Civil Code enumerates in *rt. @/C) the contracts fallin! under the Statute of 5rauds.

*9T. @/C). The followin! contracts are unenforceable" unless they are ratified

@. Those entered into in the name of another person by one who has been !iven no authority or le!al representation" or who has acted beyond his powers.

2. Those that do not comply with the Statute of 5rauds as set forth in this number. 1n the followin! cases" an a!reement hereafter made shall be unenforceable by action" unless the same" or some note or memorandum thereof" be in writin!" and subscribed by the party char!ed" or by his a!ent. evidence" therefore" of the a!reement cannot be received without the writin!" or secondary evidence of its contents

a. *n a!reement that by its terms is not to be performed within a year from the ma#in! thereof.

b. *n a!reement for the sale of !oods" chattels or thin!s in action" at a price not less than five hundred pesos" unless the buyer accept and receive part of such !oods and chattels" or the evidences" or some of them" of such thin!s in action" or pay at the time some part of the purchase money. but when a sale is made by auction and entry is made by the auctioneer in his sales boo#" at the time of the sale" of the amount and #ind of property sold" terms of sale" price" names of the purchasers and person on whose account the sale is made" it is a sufficient memorandum.

c. *n a!reement for the leasin! for a lon!er period than one year" or for the sale of real property or of an interest therein.

d. * representation as to the credit of a third person.

). Those where both parties are incapable of !ivin! consent to a contract.

A!F Some >ecisional 9ules

*bsence of compliance with the Statute of 5rauds may be proved in a motion to dismiss.@@E Plaintiff must produce all notes or memorandum durin! the hearin! of the motion to dismiss. * motion invo#in! the Statute of 5rauds may be filed even if the same does not appear on the face of the complaint. That the claim is unenforceable under the Statute of 5rauds may be shown and determined durin! the hearin! of the motion to dismiss on said !round.@@B Onder Sec. 2" Chapter 8 of 9* E;B2 A,+Commerce 7awF where the law re(uires a writin! or document" that re(uirement is met by an electronic document which maintains its inte!rity and reliability and can be authenticated so as to be useable for subse(uent reference.

The Civil Code on cases where compromise is not allowed

*rt. 2C)6. 0o compromise upon the followin! (uestions shall be valid

A@F The civil status of persons.

A2F The validity of a marria!e or a le!al separation.

A)F *ny !round for le!al separation.

A/F 5uture support.

A6F The jurisdiction of courts.

A8F 5uture le!itime.

). 9esolution of the ?otion

*fter the hearin!" the court may dismiss the action or claim" deny the motion" or order the amendment of the pleadin!.

The court shall not defer the resolution of the motion for the reason that the !round relied upon is not indubitable.
1 1
1) 1(

@u+ienco +. /acuycuy! -o. L900<*)! Aay .2! 1()1! 1<* $C8A ''). Ibid.

1n every case" the resolution shall state clearly and distinctly the reasons therefor.@2C

:. JOINDER OF I!!UE! 1. F'*'n) o3 An($e&

1. 3ime to Plead

@.@ *nswer to Complaint and Third+Party A5ourth+Party" etc.F Complaint N fifteen A@6F days after service of summons" unless a different period is fi$ed by the court.@2@

'owever" under 9ule @8" Section /" if a motion to dismiss is denied" the movant shall file his answer within the balance of the period provided by 9ule @@ to which he was entitled at the time of servin! his motion" but not less than five A6F days in any event" computed from his receipt of the notice of the denial. 1f the pleadin! is ordered to be amended" he shall file his answer within the period prescribed by 9ule @@ counted from service of the amended pleadin!" unless the court provides a lon!er period.

@.2 *nswer of a defendant forei!n private juridical entity

@.2.@ when summons is served upon a resident a!ent N fifteen A@6F days after service of summons.@22

@.2.2 when summons is served on the !overnment official desi!nated to receive the same N thirty A)CF days from receipt by the latter of the summons.@2)

@.) *nswer to *mended Complaint" *mended Counterclaim" *mended Cross+claim and *mended Third+Party A5ourth+Party" etc.F Complaint

@.).@ amended complaint was filed as a matter of ri!ht A9ule @C" Section 2F N fifteen A@6F days after bein! served with a copy thereof.@2/ and

@.).2 amended complaint was filed with leave of court A9ule @C" Section )F N ten A@CF days from notice of order admittin! the amended complaint.@26

@./ *nswer to counterclaim or cross+claim + within ten A@CF days from service.@28
1 1 1 1 1 1 1
.< .1 ..

8ules of Court! 8ule 1'! $ec. :.

8ules of Court! 8ule 11! $ecs. 1 and 0. 8ules of Court! 8ule 1*! $ec. 1.. .: 8ules of Court! 8ule 11! $ec. .. .* 8ules of Court! 8ule 11! $ec. :. .0 #bid. .' 8ules of Court! 8ule 11! $ec. *.

@.6 9eply + within ten A@CF days from service of the pleadin! responded to.@2;

@.8 *nswer to supplemental complaint + within ten A@CF days from notice of the order admittin! the same" unless a different period is fi$ed by the court.@2E

@.; *nswer to Complaint+in+1ntervention + within fifteen A@6F days from notice of the order admittin! the same unless a different period is fi$ed by the court.@2B

2. trict 7bser!ance of the Period

4hile the rules are liberally construed" the provisions on re!lementary periods are strictly applied for they are deemed indispensable to the prevention of needless delays and necessary to the orderly and speedy dischar!e of judicial business.@)C

Strict compliance with said periods is mandatory and imperative.@)@

". (ffect of 8ailure to Plead $Rule 5&

Sec. @. /e%enses and ob*ections not pleaded.A>efenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived. 'owever" when it appears from the pleadin!s or the evidence on record that the court has no jurisdiction over the subject matter" that there is another action pendin! between the same parties for the same cause" or that the action is barred by a prior jud!ment or by Statute of 7imitations" the court shall dismiss the claim.

8. Co+nte&c*,'1 1. Definition

* counterclaim is any claim which a defendin! party may have a!ainst an opposin! party.@)2

There are two A2F #inds" the compulsory and the permissive. * compulsory counterclaim is one which" bein! co!ni&able by the re!ular courts of justice" arises out of or is connected with the transaction or occurrence constitutin! the subject matter of the opposin! partyKs claim and does not re(uire for its adjudication the presence of third parties of whom the court cannot ac(uire jurisdiction. Such a counterclaim must be within the jurisdiction of the court both as to the amount and the nature thereof" e$cept that in an ori!inal action before the 9e!ional Trial Court" the counterclaim may be considered compulsory re!ardless of the amount.@))
1 1 1 1

1 1 1

#bid.! $ec. '. #bid.! $ec. 2. .( 8ules of Court! 8ule 1(! $ec. 2. :< Al+ero +. /e La 8osa! 2' %hil. *.) [1(*']D "aldeG +. ,cumen! 1<' %hil. (.( [1('<]D Aan&ali +. Court of Appeals! L9 *2.('! Au&ust .1! 1()<! (( $C8A .:'D Le&aspi9$antos +. Court of Appeals! 3. 8. -o. '<022! ,ctober 11! 1():! 1.0 $C8A ... :1 4J8 3arments #ndustries +. Court of Appeals! L9*(:.<! June .(! 1()*! 1:< $C8A .1'. :. 8ules of Court! 8ule '! $ec. '. :: Ibid.! $ec. 2.
.2 .)

* counterclaim which is not compulsory is a permissive counterclaim.

2. Difference %etween Permissi!e and #ompulsory #ounterclaim

1n a permissive counterclaim" the doc#et and other lawful fees should be paid and the same should be accompanied by a certificate a!ainst forum shoppin! and certificate to file action issued by the proper Lupon 5agapamayapa. 1t should also be answered by the claimin! party. 1t is not barred even if not set up in the action.

1n a compulsory counterclaim" no doc#et fee is paid and the certificates mentioned above are not re(uired. @)/ 1f it is not raised in the answer" it shall be barred.@)6

* compulsory counterclaim that merely reiterates special defenses which are deemed controverted even without a reply" or raises issues which are deemed automatically joined by the alle!ations of the complaint need not be answered.@)8 'owever" a compulsory counterclaim which raises issues not covered by the complaint should be answered.@);

1f the counterclaim is based on an actionable document attached to or copied in the counterclaim" the !enuineness and due e$ecution of the instrument shall be deemed admitted unless the adverse party specifically denies under oath its !enuineness and due e$ecution.@)E

". #o0nate Rules

).@ * cross+claim which is not set up in the action is barred.@)B

).2 The dismissal of the complaint carries with it the dismissal of the cross+claim which is purely defensive" but not a cross+claim see#in! affirmative relief.@/C 1t does not also carry with it a dismissal of the counterclaim that has been pleaded by the defendant prior to service to him of the notice of dismissal" @/@ or to a dismissal due to the fault of the plaintiff.@/2

).) * party cannot" in his reply" amend his cause of action nor introduce therein new or additional causes of action.@/)

)./ * third+party complaint need not arise out of or be entirely dependent on the main action as it suffices that the
1 1 1

1 1 1 1 1 1 1

$anto ;omas 5ni+ersity +. $urla! 3. 8. -o. 1.(21)! Au&ust 12! 1(()! .(* $C8A :).. 8ules of Court! 8ule (! $ec. .. :' Lama +. Apacible 2( %hil. ') [1(*2]D -a+arro +. Bello! 1<. %hil. 1<1( [1(0)]D 3o=o + 3oyala! 3. 8. -o. .'2')! ,ctober :<! 1(2<! :0 $C8A 002. :2 4eria! Annotated 1((2 8ules of Court! *1. :) 8ules of Court! 8ule )! $ec. ). :( 8ules of Court! 8ule (! $ec. .. *< ;orres +. Court of Appeals! L9.0))(! January 1.! 1(2:! *( $C8A '2. *1 8ules of Court! 8ule 12! $ec. .. *. Ibid.! $ec. :. *: Anaya +. %alaroan! L9.2(:<! -o+ember .'! 1(2<! :' $C8A (2.
:* :0

former be only -in respect- of the claim of the third+party plaintiffKs opponent.@//

;. PREATRIAL 1. Conce0t o3 P&eAT&',*

1. #oncept of Pre93rial

Pre+trial is a procedural device by which the Court is called upon after the filin! of the last pleadin!" to compel the parties and their lawyers to appear before it" and ne!otiate an amicable settlement or otherwise ma#e a formal statement and embody in a sin!le document the issues of fact and law involved in the action" and such other matters as may aid in the prompt disposition of the action" such as the number of witnesses the parties intend to present" the tenor or character of their testimonies" their documentary evidence" the nature and purpose of each of them" and the number of trial dates that each will need to put on his case. :ne of the objectives of pre+trial procedure is to ta#e the trial of cases out of the realm of surprise and maneuverin!. @/6 Pre+ trial also lays down the foundation and structural framewor# of another concept" that is the continuous trial system.@/8

Pre+trial is mandatory but not jurisdictional.@/;

2. Purpose of Pre93rial

The purpose of the pre+trial is for the court to consider

AaF the possibility of an amicable settlement or of a submission to alternative modes of dispute resolution.

AbF the simplification of the issues.

AcF the necessity or desirability of amendments to the pleadin!s.

AdF the possibility of obtainin! stipulations or admissions of facts and of documents to avoid unnecessary proof.

AeF the limitation of the number of witnesses.

AfF the advisability of a preliminary reference of issues to a commissioner.

1 1 1 1

%ascual +. Bautista! L9.1'**! Aay .(! 1(2<! :: $C8A :<1. %ermanent Concrete %roducts! #nc. +. ;eodoro! 3. 8. -o. .(22'! -o+ember .(! 1(')! .' $C8A ::.. *' Circular -o. 19)(D Administrati+e Circular -o. *! $eptember *! 1()). *2 AartineG +. de la Aerced! 3. 8. -o. ).:<(! June .<! 1()(! 12* $C8A 1)..
** *0

A!F the propriety of renderin! jud!ment on the pleadin!s" or summary jud!ment" or of dismissin! the action should a valid !round therefore be found to e$ist.

AhF the advisability or necessity of suspendin! the proceedin!s. and

AiF such other matters as may aid in the prompt disposition of the action.@/E

". ,dministrati!e #ircular -o. "955 $:anuary 1.* 1555& on Pre93rial

9. &re<5rial

@. 4ithin five A6F days after the last pleadin! joinin! the issues has been filed and served" the plaintiff must move e+ parte that the case be set for pre+trial conference.

2. The parties shall submit" at least three A)F days before the conference" pre+trial briefs containin! the followin!

a. * statement of their willin!ness to enter into an amicable settlement indicatin! the desired terms thereof" or to submit the case to any of the alternative modes of dispute resolution.

b. * summary of admitted facts and proposed stipulation of facts.

c. The issues to be tried or resolved.

d. The number and names of the witnesses to be presented" and abstract of their testimonies" and the appro$imate number of hours that will be re(uired by the parties for the presentation of their respective evidence.

e. Copies of all documents intended to be presented with a statement of the purposes of their offer.

f. * manifestation of their havin! availed or their intention to avail themselves of any discovery procedure" or of the need of referral of any issues to commissioners.

!. *pplicable laws and jurisprudence.

h. The available trial dates of counsel for complete presentation of evidence" which must be within a period of three months from the first day of trial.
1
*)

8ules of Court! 8ule 1)! $ec. ..

). 2efore the pre+trial conference" the jud!e must study the pleadin!s of every case" and determine the issues thereof and the respective positions of the parties thereon to enable him to intelli!ently steer the parties toward a possible amicable settlement of the case" or" at the very least" to help reduce and limit the issues.

The jud!e should avoid the undesirable practice of terminatin! the pre+trial as soon as the parties have indicated that they cannot settle the controversy. 'e must be mindful that there are other important aspects of the pre+trial that ou!ht to be ta#en up to e$pedite the disposition of the case.

/. *t the pre+trial conference" the followin! shall be done

a. The jud!e with all tact" patience and impartiality shall endeavor to persuade the parties to arrive at a settlement of the dispute. if no amicable settlement is reached" then he must effectively direct the parties toward the achievement of the other objectives or !oals of pre+trial set forth in Section 2" 9ule @E" @BB; 9ules of Civil Procedure.

b. 1f warranted by the disclosures at the pre+trial" the jud!e may either forthwith dismiss the action" or determine the propriety of renderin! a jud!ment on the pleadin!s or a summary jud!ment.

c. The jud!e shall define the factual issues arisin! from the pleadin!s and endeavor to cull the material issues.

d. 1f only le!al issues are presented" the jud!e shall re(uire the parties to submit their respective memoranda and thereafter render jud!ment.

e. 1f trial is necessary" the jud!e shall fi$ the trial dates re(uired to complete presentation of evidence by both parties within ninety ABCF days from the date of initial hearin!.

6. *fter the pre+trial conference" the jud!e should not fail to prepare and issue the re(uisite pre+trial order" which shall embody the matters mentioned in Section ;" 9ule @E of the @BB; 9ules of Civil Procedure.

8. 5ailure of the plaintiff to appear at the pre+trial shall be a cause for dismissal of the action. * similar failure of the defendant shall be a cause to allow the plaintiff to present his evidence e+<parte and the court to render jud!ment on the basis thereof.

;. 5ailure to file pre+trial briefs shall have the same effect as failure to appear at the pre+trial.

The jud!e should encoura!e the effective use of pre+trial discovery procedures.@/B

'. 3he Pre93rial 7rder

*(

Administrati+e Circular -o. 1 dated .) January 1()).

4here the case proceeded to trial with the petitioners actively participatin! therein without raisin! their objections to the pre+trial" they are bound by the stipulations at the pre+trial.@6C

Pre+trial is primarily intended to ma#e certain that all issues necessary to the disposition of a case are properly raised" and the determination of issues at a pre+trial conference bars the consideration of other (uestions on appeal.@6@

/.@ ,$ceptions

/.@.@ To prevent manifest injustice.@62

/.@.2 1ssues that are impliedly included or necessarily connected to the e$pressly defined issues and denser parts of the pre+trial order.@6)

/.@.) 1ssues not included in the pre+trial order but were tried e$pressly or impliedly by the parties.@6/

<. TRIAL DR+*e 9EF

,. ,dministrati!e #ircular -o. "955* :an. 1.* 1555

To insure speedy disposition of cases" the followin! !uidelines must be faithfully observed

1. The session hours of all 9e!ional Trial Courts" ?etropolitan Trial Courts" ?unicipal Trial Courts in Cities" ?unicipal Trial Courts and ?unicipal Circuit Trial Courts shall be from E )C *. ?. to noon and from 2 CC P. ?. to / )C P. ?. from ?onday to 5riday. The hours in the mornin! shall be devoted to the conduct of trial" while the hours in the afternoon shall be utili&ed for A@F the conduct of pre+trial conferences. A2F writin! of decisions" resolutions" or orders. or A)F the continuation of trial on the merits" whenever rendered necessary" as may be re(uired by the 9ules of Court" statutes" or circulars in specified cases.

'owever" in multi<sala courts in places where there are few practicin! lawyers" the schedule may be modified upon re(uest of the 1nte!rated 2ar of the Philippines such that one+half of the branches may hold their trial in the mornin! and the other half in the afternoon.

,$cept those re(uirin! immediate action" all motions should be scheduled for hearin! on 5riday afternoons" or if
1

1 1 1 1

Aacarae& +. Court of Appeals! 3. 8. -o. *)<<)! January .<! 1()(! 1'( $C8A .0( citin& Lucenta +. Court of 4irst #nstance of BuCidnon! 3. 8. -o. L9:(2)(! June .<! 1())! 1'. $C8A 1(2. 01 $on +. $on! 3. 8. -o. 2:<22! /ecember .(! 1(('! .01 $C8A 00'. 0. $ese +. #ntermediate Appellate Court! -o. L9''1)'! July :1! 1()2! 10. $C8A 0)0. 0: "elasco +. Apostol! 3. 8. -o. **0))! Aay (! 1()(! 12: $C8A ..) cited in $on +. $on! supra! note 101. 0* $on +. $on! supra! note 101.
0<

5riday is a non+wor#in! day" in the afternoon of the ne$t business day. The unauthori&ed practice of some jud!es of entertainin! motions or settin! them for hearin! on any other day or time must be immediately stopped.

11. Jud!es must be punctual at all times.

111. The Cler# of Court" under the direct supervision of the Jud!e" must comply with 9ule 2C of the @BB; 9ules of Civil Procedure re!ardin! the calendar of cases.

1H. There should be strict adherence to the policy on avoidin! postponements and needless delay.

Sections 2" ) and / of 9ule )C" @BB; 9ules on Civil Procedure on adjournments and postponements and on the re(uisites of a motion to postpone trial for absence of evidence or for illness of a party or counsel should be faithfully observed.

7awyers as officers of the court" are enjoined to cooperate with jud!es to ensure swift disposition of cases.

H. The mandatory continuous trial system in civil cases contemplated in *dministrative Circular 0o. / dated 22 September @BEE" and the !uidelines provided for in Circular 0o. @+EB" dated @B January @BEB" must be effectively implemented. 5or e$pediency" these !uidelines in civil cases are hereunder restated with modifications" ta#in! into account the relevant provisions of the @BB; 9ules of Civil Procedure

B. 3rial

@. Onless the doc#et of the court re(uires otherwise" not more than four A/F cases shall be scheduled for trial daily.

2. The Presidin! Jud!e shall ma#e arran!ements with the prosecutor and the Public *ttorneyKs :ffice AP*:F so that a relief prosecutor and a P*: attorney are always available in case the re!ular prosecutor or P*: attorneys are absent.

). Contin!ency measures must li#ewise be ta#en for any une$pected absence of the steno!rapher and other support staff assistin! in the trial.

/. The issuance and service of subpoena shall be done in accordance with *dministrative Circular 0o. / dated 22 September @BEE.

6. The jud!e shall conduct trial with utmost dispatch" with judicious e$ercise of the courtKs power to control trial proceedin!s to avoid delay.

8. The jud!e must ta#e notes of the material and relevant testimonies of witnesses to facilitate his decision+

ma#in!.

;. The trial shall be terminated within ninety ABCF days from initial hearin!. *ppropriate disciplinary sanctions may be imposed on the jud!e and the lawyers for failure to comply with the re(uirement due to causes attributable to them.

E. ,ach party is bound to complete the presentation of his evidence within the trial dates assi!ned to him. *fter the lapse of said dates" the party is deemed to have completed the presentation of evidence. 'owever" upon verified motion based on compellin! reasons" the jud!e may allow a party additional trial dates in the afternoon. provided that said e$tension will not !o beyond the three+month limit computed from the first trial date e$cept when authori&ed in writin! by the Court *dministrator" Supreme Court.

1. *ll trial jud!es must strictly comply with Circular 0o. )E+BE" entitled %1mplementin! the Provisions of 9epublic *ct 0o. E/B)% A%*n *ct to ,nsure a Speedy Trial of *ll Cases 2efore the Sandiganbayan" 9e!ional Trial Court" ?etropolitan Trial Court" ?unicipal Trial Court in Cities" ?unicipal Trial Court" and ?unicipal Circuit Trial Court" *ppropriatin! 5unds Therefore" and for :ther Purposes%F issued by the 'onorable Chief Justice *ndres 9. 0arvasa on @6 September @BBE.

11.

@. *s a constant reminder of what cases must be decided or resolved" the jud!e must #eep a calendar of cases submitted for decision" notin! therein the e$act day" month and year when the BC+day period is to e$pire. *s soon as a case is submitted for decision" it must be noted in the calendar of the jud!e. moreover" the records shall be duly collated with the e$hibits and transcripts of steno!raphic notes" as well as the trial notes of the jud!e" and placed in the jud!eKs chamber.

2. 1n criminal cases" the jud!e will do well to announce in open court at the termination of the trial the date of the promul!ation of the decision" which should be set within BC days from the submission of the case for decision.

). *ll Jud!es must scrupulously observe the period prescribed in Section @6" *rticle H111 of the Constitution.

This Circular shall ta#e effect on 5ebruary @"@BBB" and the :ffice of the Court *dministrator shall ensure faithful compliance therewith. City of Aanila! 10 January 1(((. 8. !o1e R+*e(

@. The order of trial stated above is followed in ordinarily contested cases. 'owever" if the defendant in his answer admits the obli!ation alle!ed in the complaint but raises special defenses" then the plaintiff is relieved of the duty to present evidence in chief and so the defendant should start the proceedin! by presentin! his evidence to support his special defenses.@66

00

@u +. Aapayo! -o. L9.(2*.! Aarch .(! 1(2.! ** $C8A 1':.

2. 4hen Case >eemed Submitted for >ecision in Trial Court

Onder *dministrative Circular 0o. 2E dated July )"@BEB

$$$

A)F * case is considered submitted for decision upon the admission of the evidence of the parties at the termination of the trial. The ninety ABCF day period for decidin! the case shall commence to run from submission of the case for decision without memoranda. in case the Court re(uires or allows its filin!" the case shall be considered submitted for decision upon the filin! of the last memorandum or the e$piration of the period to do so" whichever is earlier. 7ac# of transcript of steno!raphic notes shall not be a valid reason to interrupt or suspend the period for decidin! the case unless the case was previously heard by another jud!e not the decidin! jud!e in which case the latter shall have the full period of ninety ABCF days from the completion of the transcripts within which to decide the same.

A/F The court may !rant e$tension of time to file memoranda" but the ninety ABCF days period for decidin! the case shall not be interrupted thereby.

A6F The fore!oin! rules shall not apply to Special Criminal Courts under Circular 2C dated *u!ust ;" @BE;" and to cases covered by the 9ule on Summary Procedure in which memoranda are prohibited.

$$$

Onder 9ule )C" Section 6A!F" upon admission of the evidence" the case shall be deemed submitted for decision" unless the court directs the parties to ar!ue or to submit their respective memoranda or any further pleadin!s.

*s a !eneral rule" no additional evidence may be presented at the rebuttal sta!e. Subject to the discretion of the court" additional evidence may be submitted

A@F if it is merely discovered.

A2F omitted throu!h mista#e or inadvertence. or

A)F when the purpose is to correct evidence previously offered.@68

Onder *dministrative ?atter 0o. CC+2+C@+SC amendin! the 9ule @/@ of the 9ules of Court on 7e!al 5ees" it is provided in Sec. 2AbF that a fee shall be paid for motions for postponements" to wit

0'

LopeG +. Liboro! )1 %hil. *.( [1(*)].

5or motions for postponement after completion of the pre+trial sta!e" one hundred APhp@CCF pesos for the first" and an additional fifty APhp6CF pesos for every postponement thereafter based on that for the immediately precedin! motion Provided" however" that no fee shall be imposed when the motion is found to be based on justifiable and compellin! reason.

G. ADJUDICATION DR+*e 9<F 1. Conce0t ,n- Re2+'&e1ent(

*djudication is the rendition of a jud!ment or final order which disposes of the case on the merits.

Onder the 9ules of Civil Procedure" jud!ment is used in its !eneric term and therefore synonymous to decision. * jud!ment or final order determinin! the merits of the case shall be in writin! personally and directly prepared by the jud!e" statin! clearly and distinctly the facts and the law on which it is based" si!ned by him" and filed with the cler# of court.@6; 8. 'n-( o3 J+-)1ent ,n- De3'n't'on(

1. +ithout Reception of (!idence

@.@ Jud!ment on the Pleadin!

4here an answer fails to tender an issue" or otherwise admits the material alle!ations of the adverse partyKs pleadin!" the court may" on motion of that party" direct jud!ment on such pleadin!. 'owever" in actions for declaration of nullity or annulment of marria!e or for le!al separation" the material facts alle!ed in the complaint shall always be proved.@6E

@.2 Summary Jud!ment

* party see#in! to recover upon a claim" counterclaim" or cross+claim or to obtain a declaratory relief may" at any time after the pleadin! in answer thereto has been served" move with supportin! affidavits" depositions or admissions for a summary jud!ment in his favor upon all or any part thereof.@6B

* party a!ainst whom a claim" counterclaim" or cross+claim is asserted or a declaratory relief is sou!ht may" at any time" move with supportin! affidavits" depositions or admissions for a summary jud!ment in his favor as to all or any part thereof.@8C

2. +ith Partial Reception of (!idence

1 1 1 1

8ules of Court! 8ule :'! $ec. 1. 8ules of Court! 8ule :*! $ec. 1. 0( 8ules of Court! 8ule :0! $ec. 1. '< Ibid.! $ec. ..
02 0)

2.@ Jud!ment by >efault

1f the defendin! party fails to answer within the time allowed therefore" the court shall" upon motion of the claimin! party with notice to the defendin! party" and proof of such failure" declare the defendin! party in default. Thereupon" the court shall proceed to render jud!ment !rantin! the claimant such relief as his pleadin! may warrant" unless the court in its discretion re(uires the claimant to submit evidence. Such reception of evidence may be dele!ated to the cler# of court.@8@

2.2 Jud!ment on >emurrer to ,vidence

*fter the plaintiff has completed the presentation of his evidence" the defendant may move for dismissal on the !round that upon the facts and the law the plaintiff has shown no ri!ht to relief. 1f his motion is denied" he shall have the ri!ht to present evidence. 1f the motion is !ranted but on appeal the order of dismissal is reversed" he shall be deemed to have waived the ri!ht to present evidence.@82

0otes * demurrer to evidence is differentiated from a motion to dismiss in that the former can be availed of only after the presentation of plaintiffKs evidence while the latter is instituted as a !eneral rule before a responsive pleadin! is filed.

4hen the motion for a demurrer to evidence is !ranted" the jud!ment of the court is considered on the merits and so it has to comply with 9ule )8" Section @" re!ardin! the re(uirement that jud!ment should clearly and distinctly state the facts and the law on which it is based. 1f the motion is denied" the order is merely interlocutory.@8)

9. C,(e( on !+11,&/ J+-)1ent

@. The test for the propriety of a motion for summary jud!ment is whether the pleadin!s" affidavits and e$hibits in support of the motion are sufficient to overcome the opposin! papers and to justify the findin!s that" as a matter of law" there is no defense to the action or the claim is clearly meritorious.@8/

2. Summary jud!ment may include a determination of the ri!ht to dama!es but not the amount of dama!es. @86 The court cannot also impose attorneyKs fees in a summary jud!ment in the absence of proof as to the amount thereof.@88

). ?ere denials" unaccompanied by any fact which would be admissible in evidence at a hearin!" are not sufficient to raise a !enuine issue of fact sufficient to destroy a motion for summary jud!ment even thou!h such issue was formally raised by the pleadin!s.@8; 4here all the facts are within the judicial #nowled!e of the court" summary jud!ment may be !ranted as a matter of law.@8E
1 1 1 1 1 1 1 1

8ules of Court! 8ule (! $ec. :. 8ules of Court! 8ule ::! $ec. 1. ': -epomuceno +. Commission on Elections! 3. 8. -o. '<'<1! /ecember .(! 1():! 1.' $C8A *2.. '* Estrada +. Consolacion! -o. L9*<(*)! June .(! 1(2'! 21 $C8A 0.:. '0 Ju&ador +. de "era! (* %hil. 2<* [1(0*]. '' 1arner! Barnes H Co.! Ltd. +. LuGon $urety Co.! #nc.! (0 %hil. (.* [1(0*]. '2 4letcher +. ?rise! * 4ed. 8ules $er+ice! 2'0! Aarch :! 1(*1. ') 4letcher +. E+enin& -eIspaper Co.! : 4ed. 8ules $er+ice! 0:(! June .)! 1(*<D Airanda +. Aalate 3ara&e H ;axicab! #nc.! (( %hil. '2< [1(0'].
'1 '.

/. Courts are without discretion to deny a motion for summary jud!ment where there is no !enuine issue as to a material fact. Summary jud!ment is available even if the pleadin!s ostensibly show !enuine issue which by depositions or affidavits are shown not to be !enuine.@8B

6. >istinction between summary proceedin!s under 9ule )/ AJud!ment on the pleadin!sF and the summary proceedin!s under 9ule )6 ASummary Jud!mentF

* different rationale operates in the latter for it arises out of facts already established or admitted durin! the pre+ trial held beforehand" unli#e the former where the jud!ment merely relies on the merits of the movantKs alle!ations.@;C

8. >iscretion of Court To 9ender Jud!ment on the Pleadin!s

Onder the 9ules" if there is no controverted matter in the case after the answer is filed" the trial court has the discretion to !rant a motion for jud!ment on the pleadin!s filed by a party. 4here there are actual issues raised in the answer" such as one involvin! dama!es" which re(uire the presentation of evidence and assessment thereof by the trial court" it is improper for a jud!e to render jud!ment based on the pleadin!s alone.@;@

;. * partial summary jud!ment may be rendered"@;2 but the same is interlocutory and not appealable.@;)

:. O&-'n,&/ J+-)1ent

@. 0o jud!e should decline to render jud!ment by reason of the silence" obscurity" or insufficiency of the law.@;/

2. The court is not re(uired to state in its decision all the facts found in the records. 1t is enou!h that the court states the facts and law on which its decision is based.@;6

Trial courts should not" however" merely reproduce everythin! testified to by the witnesses no matter how unimportant and immaterial it may be" even if this mi!ht li!hten their wor#. 2y such indolent process" they only complicate and len!then their decisions" becloudin! and possibly misreadin! the real issues in their tiresome narration of the facts" includin! even those without bearin! in the case. Jud!es should ma#e an effort to sift the record and relieve it of all inconse(uential matters" to !ive them a clearer view of how the real (uestion is to be resolved and a better idea of how this resolution should be done.@;8
1 1 1 1 1 1 1 1

/iman +. Alumbres! 3. 8. -o. 1:1*''! -o+ember .2! 1(()! .(( $C8A *0(. "elas>ueG +. Court of Appeals! 3. 8. -o. 1.*<*(! June :<! 1(((! :<( $C8A 0:(. 21 $pouses Honti+eros +. 8e&ional ;rial Court of #loilo! Br. .0! 3. 8. -o. 1.0*'0! June .(! 1(((! :<( $C8A :*<. 2. 8ules of Court! 8ule :0! $ec. *. 2: 3ue+arra +. Court of Appeals! -os. L9*(<12 and L9*(<.*! Au&ust :<! 1():! 1.* $C8A .(2. 2* Ci+il Code! Art. (. 20 %eople +. /erpo! -os. L9*1<*< and *:(<)91<! /ecember 1*! 1())! 1') $C8A **2. 2' %eople +. Aolina! 3. 8. -o. 2<<<)! April .'! 1((<! 1)* $C8A 0(2.
'( 2<

2.@ 0eed to Particulari&e 5acts

4ithout the concrete relation or statement in the jud!ment of the facts alle!ed and proved at the trial" it is not possible to pass upon and determine the issue raised in liti!ation" inasmuch as when the facts held to be proved are not set forth in a judicial controversy" it is impossible to administer justice" to apply the law to the points ar!ued" or to uphold the ri!hts of the liti!ant who has the law on his side.

1t is not sufficient that the court or trial jud!e ta#e into account the facts brou!ht out in an action the circumstances of each (uestion raised" and the nature and conditions of the proofs furnished by the parties. 'e must also set out in his decision the facts alle!ed by the contendin! parties which he finds to have been proven" the conclusions deduced therefrom and the opinion he has formed on the issues raised. :nly then can he intelli!ently set forth the le!al !rounds and considerations proper in his opinion for the due determination of the case.@;;

2.2 9eason for *ward of *ttorney%s 5ees ?ust be Stated in the 2ody of the >ecision

The e$ercise of judicial discretion in the award of attorney%s fee under *rticle 22CE AiiF of the 0ew Civil Code demands a factual" le!al" and e(uitable justification. 4ithout such justification" the award is a conclusion without a premise" its basis bein! improperly left to speculation and conjecture.@;E

). The case should be decided in its totality" resolvin! all interlocutory issues in order to render justice to all concerned and to end liti!ation once and for all.@;B

/. To be bindin!" a jud!ment must be duly si!ned and promul!ated durin! the incumbency of the jud!e who si!ned it.@EC 'owever" it is not unusual for a jud!e who did not try a case to decide on the basis of the records for the trial jud!e mi!ht have died" resi!ned" retired" or transferred.@E@

6. The BC+day period to decide a case shall be rec#oned with from the date said case is submitted for decision despite the non+availability of the steno!raphic notes.@E2 1n the same manner" the jud!e should decide the case even if the parties failed to submit memoranda within the !iven periods.@E)

H. RE7EDIE! A"AIN!T JUD"7ENT AND FINAL ORDER!

1.

'n-( o3 Re1e-'e(

1 1 1 1 1 1 1

%eople +. Escober! -o. L9'(0'*! January .(! 1())! 102 $C8A 0*1. Airasol +. dela CruG! -o. L9:.00.! July :1! 1(2)! )* $C8A ::2. 2( -ational Housin& Authority +. Court of Appeals! L90<)22! April .)! 1():! 1.1 $C8A 222. )< Lao +. ;o9Chip! -o. L92'0(2! 4ebruary .'! 1())! 10) $C8A .*:. )1 %eople +. Escalante! -o. L9:21*2! Au&ust ..! 1()*! 1:1 $C8A .:2. ). LaIan +. Aoleta! A. A. -o. 1'('9AJ! June 1(! 1(2(! (< $C8A 02(. ): $al+ador +. $alamanca! A. A. -o. 891229A;J! $eptember .*! 1()'! 1** $C8A .2'.
22 2)

@. 2efore 5inality of Jud!ments or 5inal :rders

AaF ?otion for 9econsideration.

AbF ?otion for 0ew Trial. and

AcF *ppeal.

2. *fter 5inality of Jud!ments or 5inal :rders

AaF 9elief for Jud!ments or 5inal :rders.

AbF Petition for Certiorari. and

AcF *nnulment of Jud!ment.

8. 7ot'on 3o& Recon('-e&,t'on ,n- Ne$ T&',*

1. #ommon Rules

@.@ Time to 5ile

* motion for reconsideration or new trial may be filed within the period for ta#in! appeal. 0ote that a pro %orma motion for new trial or reconsideration shall not toll the re!lementary period. * pro %orma motion for reconsideration or new trial is one which does not comply with the re(uirements of 9ule ); and does not toll the re!lementary period to appeal.@E/

@.2 0o motion for e$tension of time to file motion for reconsideration or new trial is allowed.@E6

@.) * motion for reconsideration or new trial suspends the runnin! of the period to appeal but if denied" the movant has only the balance of the re!lementary period within which to ta#e his appeal.@E8

@./ 9esolution of motion

1

1 1

Cledera +. $armiento! -os. L9:.*0<901! June 1<! 1(21! :( $C8A 00.D 4irme +. 8eyes! -o. L9:0)0)! Au&ust .1! 1(2(! (. $C8A 21:. )0 Habaluyas Enterprises! #nc. +. Japson! -o. L92<)(0! Aay :<! 1()'! 1*. $C8A .<). )' 8ules of Court! 8ule *1! $ec. :.
)*

* motion for new trial or reconsideration shall be resolved within thirty A)CF days from the time it is submitted for resolution. *n order denyin! a motion for new trial or reconsideration is not appealable" the remedy bein! an appeal from the jud!ment or final order.@E;

2. Motion for Reconsideration

Drounds

A@F dama!es awarded are e$cessive.

A2F evidence is insufficient to justify the decision or final order. and

A)F decision or final order is contrary to law.@EE

2.@ * motion for reconsideration shall point out specifically the findin!s or conclusions of the jud!ment or final order which are not supported by the evidence or which are contrary to law" ma#in! e$press reference to the testimonial or documentary evidence or to the provisions of law alle!ed to be contrary to such findin!s or conclusions.@EB

2.2 0o party shall be allowed a second motion for reconsideration.@BC

". Motion for -ew 3rial

).@ Drounds

*ny of the followin! causes materially affectin! the substantial ri!hts of an a!!rieved party

).@.@ 5raud" accident" mista#e or e$cusable ne!li!ence which ordinary prudence could not have !uarded a!ainst and by reason of which such a!!rieved party has probably been impaired in his ri!hts. or

).@.2 0ewly discovered evidence" which he could not" with reasonable dili!ence" have discovered and produced at the trial" and which if presented would probably alter the result.@B@

).2 5raud" as a !round for new trial" must be e$trinsic or collateral" that is" it is the #ind of fraud which prevented
1 1 1 1 1

Ibid! $ec. *. 8ules of Court! 8ule :2! $ec. 1. )( Ibid! $ec. .. (< 8ules of Court! 8ule :2! $ec. 0. (1 Ibid! $ec. ..
)2 ))

the a!!rieved party from havin! a trial or presentin! his case to the court" or was used to procure the jud!ment without fair submission of the controversy. 1nstances of collateral fraud are acts intended to #eep the unsuccessful party away from the court by a false promise of compromise" or purposely #eeps him in i!norance of the suit" or where the attorney fraudulently pretends to represent a party and connives at his defeat" or corruptly sells out his clientKs interest.@B2 1t is to be distin!uished from intrinsic fraud which refers to the acts of a party at the trial which prevented a fair and just determination of the case @B) and which could have been liti!ated and determined at the trial or adjudication of the cases" such as falsification" false testimony and so forth" and does not constitute a !round for new trial.@B/

).) ?ista#e !enerally refers to mista#es of fact but may also include mista#es of law where" in !ood faith" the defendant was misled in the case. Thus" a mista#e as to the scope and e$tent of the covera!e of an ordinance"@B6 or a mista#e as to the effect of a compromise a!reement upon the need for answerin! a complaint"@B8 althou!h actually constitutin! mista#es of law" have been considered sufficient to warrant a new trial.

)./ 0e!li!ence must be e$cusable and !enerally imputable to the party but the ne!li!ence of counsel is bindin! on the client just as the latter is bound by the mista#es of his lawyer.@B; 'owever" ne!li!ence of the counsel may also be a !round for new trial if it was so !reat such that the party was prejudiced and prevented from fairly presentin! his case.@BE

).6 To warrant a new trial" newly discovered evidence

A@F must have been discovered after trial.

A2F could not have been discovered and produced at the trial despite reasonable dili!ence. and

A)F if presented" would probably alter the result of the action. @BB ?ere initial hostility of a witness at the trial does not constitute his testimony into newly discovered evidence.2CC

).8 * motion for new trial shall be supported by affidavits of merits which may be rebutted by affidavits. *n affidavit of merits is one which states

A@F the nature or character of the fraud" accident" mista#e or e$cusable ne!li!ence on which the motion for new trial is based.

1 1 1

1 1 1

1 1 .

Aa&no +. Court of Appeals! -o. L9.)*)'! $eptember 1<! 1()1! 1<2 $C8A .)0. %alanca +. American 4ood Aanufacturin& Co.! #nc.! -o. L9..)..! Au&ust :<! 1(')! .* $C8A )1(. (* ;arca +. "da. /e Carretero! (( %hil. *1( [1(0']D Conde +. #ntermediate Appellate Court! -o. L92<**:! $eptember 10! 1()'! 1** $C8A 1**. (0 City of #loilo +. %inGon! (2 %hil (') [5nreported] [1(00]. (' $alaGar +. $alaGar! ) %hil. 1): [1(<2]. (2 3aba +. Castro! -o. L90'121! January :1! 1():! 1.< $C8A 0<0D Ayllon +. $e+illa! -o. L92(.**! /ecember 1<! 1()2! 10' $C8A .02. () %eople +. AanGanilla! *: %hil. 1'2 [1(..]D cf. 8epublic +. Arro! -o. L9*).*1! June 11! 1()2! 10< $C8A '.0. (( -ational $hpiyards and $teel Corporation +. Asuncion! 1<: %hil. '2 [1(0)]. << Arce +. Arce! 1<' %hil. ':< [1(0(].
(. (:

A2F the facts constitutin! the movantKs !ood and substantial defenses or valid causes of action.2C@ and

A)F the evidence which he intends to present if his motion is !ranted.

*n affidavit of merits should state facts and not mere opinions or conclusions of law. 2C2 *n affidavit of merits is re(uired only if the !rounds relied upon are fraud" accident" mista#e or e$cusable ne!li!ence. 2C) *ffidavits of merits may be dispensed with when the jud!ment is null and void as where the court has no jurisdiction over the defendant or the subject matter" 2C/ or is procedurally defective as where jud!ment by default was rendered before the re!lementary period to answer had e$pired" 2C6 or where the defendant was unreasonably deprived of his day in court2C8 as when no notice of hearin! was furnished him in advance. 2C; *ffidavits of merits are not re(uired in motions for reconsideration.2CE

).; ,ffect of Drantin! of ?otion 5or 0ew Trial

1f a new trial is !ranted in accordance with the provisions of this 9ule" the ori!inal jud!ment or final order shall be vacated" and the action shall stand for trial de novoC but the recorded evidence ta#en upon the former trial" in so far as the same is material and competent to establish the issues" shall be used at the new trial without reta#in! the same.2CB

9. A00e,*

0ote This subject shall be limited to appeal from first level courts to the 9e!ional Trial Court 2@C and appeals from the 9e!ional Trial Court.2@@ Trial courts are not concerned with the other #inds and modes of appeals.

1. ;eneral Principles

@.@ *n appeal is a statutory ri!ht and part of due process. Perfection of an appeal in the manner and within the period laid down by law is not only mandatory but also jurisdictional.2@2

@.2 :nly parties can appeal from a decision. * surety on a bond to insure e$ecution of jud!ment becomes a party when notice was served upon it for e$ecution of the jud!ment and may appeal from the order of
. . . . . . . . . . . .

4errer +. @ap $epen&! -o. L9:(:2:! $eptember :<! 1(2*! '< $C8A 1*(. Aalipol +. ;an! -o. L9.22:<! January .! 1(2*! 00 $C8A .<.D 4errer +. @ap $epen&! supra! note .<1. <: 3anaban +. Bayle! -o. L9.))<*! -o+ember .2! 1('(! :< $C8A :'0. <* 8epublic +. /e Leon! 1<1 %hil. 22: [1(02]. <0 3onGaleG +. 4rancisco! supra! note '.. <' "alerio +. ;an! (( %hil. *1( [1(0']. <2 $oloria +. CruG! 3. 8. -o. .<2:)! January :1! 1(''! 1' $C8A 11*D 3attoc +. $arrenas! 1<* %hil. ..1 [1(0)]. <) AendoGa +. Bautista! -o. L9*0))0! April .)! 1():! 1.1 $C8A 2'<. <( 8ules of Court! 8ule :2! $ec. '. 1< 8ules of Court! 8ule *<. 11 8ules of Court! 8ules *1 and *.. 1. "illanue+a +. Court of Appeals! 3. 8. -o. ((:02! January .2! 1((.! .<0 $C8A 0:2D Borre +. Court of Appeals! -o. L9 02.<*! Aarch 1*! 1())! 10) $C8A 0'<.
<1 <.

e$ecution.2@)

@.) * party cannot chan!e the theory on appeal. :nly issues pleaded in the lower court and properly raised may be resolved by the appellate court.2@/ 'owever" issues which are inferred from or necessarily connected with the issue properly raised and pleaded may be resolved by the appellate court.2@6

@./ Those which cannot be appealed

A@F *n order denyin! a motion for new trial or reconsideration.

A2F *n order denyin! a petition for relief or any similar motion see#in! relief from jud!ment.

A)F *n interlocutory order.

A/F *n order disallowin! or dismissin! an appeal.

A6F *n order denyin! a motion to set aside a jud!ment by consent" confession or compromise on the !round of fraud" mista#e or duress" or any other !round vitiatin! consent.

A8F *n order of e$ecution.

A;F * jud!ment or final order for or a!ainst one or more of several parties or in separate claims" counterclaims" cross+claims and third+party complaints" while the main case is pendin!" unless the court allows an appeal therefrom. and

AEF *n order dismissin! an action without prejudice.

1n all of the above instances where the jud!ment or final order is not appealable" the a!!rieved party may file an appropriate special civil action under 9ule 86.2@8

@.6 >ifference between final order and an interlocutory order

* final order is one that completely disposes of a case or of a particular matter. *n interlocutory order is one that does not finally dispose of a case and does not end the courtKs tas# of adjudicatin! the partiesK contentions and determinin! the ri!hts and liabilities as re!ards each other but obviously indicates that other thin!s remain to be
. . . .

%eopleEs Homesite and Housin& Corporation +. Jeremias! 3. 8. -o. *:.0.! $eptember :<! 1(2'! 2: $C8A .:(. Aedina +. Court of Appeals! 3. 8. -o. ()::*! Aay )! 1((.! .<) $C8A ))2. 10 Espina +. Court of Appeals! 3. 8. -o. 1<.1.)! -o+ember '! 1((.! .10 $C8A *)*. 1' 8ules of Court! 8ule *1! $ec. 1.
1: 1*

done by the court.2@;

1t does not" however" necessarily mean that an order is not final simply because there is somethin! more to be done in the merits of the case. 1t is settled that a court order is final in character if it puts an end to the particular matter resolved" leavin! thereafter no substantial proceedin! to be had in connection therewith e$cept its e$ecution. and contrariwise" that a !iven court order is merely of an interlocutory character if it is provisional and leaves substantial proceedin!s to be had in connection with its subject in the court by whom it was issued.2@E

Thus" the issue whether an order is a final order is its effect on the ri!hts of the parties. * final jud!ment" order or decree is one that finally disposes of" adjudicates or determine the ri!hts" or some ri!hts of the parties" either on the entire controversy or some definite and separate branch thereof" and which concludes them until it is reversed or set aside.2@B This is best e$emplified in actions where there are two sta!es" such as e$propriation" 22C partition22@ and in special proceedin!s where there are several sta!es.222 :. The 7o-e( o3 A00e,* The three A)F modes of appeal are

A@F ordinary appeal.22)

A2F petition for review.22/ and

A)F appeal by certiorari Apetition for review on certiorariF.226

;. Co)n,te R+*e(

@. *s a !eneral rule" in ordinary appeals" e$ecution is stayed unless the rule or law provides otherwise. *mon! these are

A@F >ecision in 5orcible ,ntry and Onlawful >etainer" unless appellant stays immediate e$ecution by filin! a notice of appeal" supersedeas bond and depositin! in court a monthly rental or compensation for the occupation as fi$ed by the court which rendered the decision.228

. .

. . . . . . .

#n+estments! #nc. +. Court of Appeals! -o. L9'<<:'! January .2! 1()2! 1*2 $C8A ::*. /e La CruG +. %aras! 3. 8. -o. *1<0:! 4ebruary .2! 1(2'! '( $C8A 00' cited in 8epublic +. ;acloban City #ce %lant! #nc.! 3. 8. -o. 1<'*1:! July 0! 1(('! .0) $C8A 1*0. 1( /e la CruG +. %aras! Ibid.D 3old City #nte&rated %ort $er+ices! #nc. 6#-%,8;7 +. #ntermediate Appellate Court! 3. 8. -os. 2122192:! Aarch :1! 1()(! 121 $C8A 02(. .< Aunicipality of Bi an +. 3arcia! 3. 8. -o. '(.'<! /ecember ..! 1()(! 1)< $C8A 02'.
12 1) .1 .. .:

Airanda +. Court of Appeals! 3. 8. -o. )<<:<! ,ctober .'! 1()(! 12) $C8A 2<..

8ules of Court! 8ule 1<(! $ec. 1. 8ules of Court! 8ules *< and *1. .* 8ules of Court! 8ules *. and *:. .0 8ules of Court! 8ule *0. .' 8ules of Court! 8ule 2<! $ec. 1(.

A2F >ecision of the ?etropolitan" ?unicipal or ?unicipal Circuit Trial Court or the 9e!ional Trial Court where e$ecution pendin! appeal has been !ranted by the court of ori!in or in a proper case by the appellate court upon !ood reasons to be stated in the order.22;

A)F >ecision of the 9e!ional Trial Court rendered in the e$ercise of its appellate jurisdiction on cases tried and decided by the court of ori!in under Summary Procedure.22E

A/F >ecision of Guasi+Judicial *!encies under the 9ules of Court" 9ule /)" Section @2" unless otherwise provided for by the Court of *ppeals.

A6F >ecision in Cases of 1njunction" 9eceivership" Support and *ccountin!.22B

2. >ifference 2etween Guestion of 5act and Guestion of 7aw

4hen the (uestion is the correctness or falsity of an alle!ed fact" the (uestion is a (uestion of fact. 4hen the (uestion is what law is applicable in a !iven set of facts" the (uestion is a (uestion of law.2)C

). 0otice of *ppeal

1t need not be approved by the Court which rendered the decision. The court however may deny it due course if on its face" it was filed out of time or the appellate doc#et and other lawful fees have not been paid. The court which rendered the decision cannot however deny due course to the 0otice of *ppeal on the !round that the appeal is frivolous or dilatory.2)@

/. 9ecord on *ppeal

* 9ecord on *ppeal is re(uired in AaF Special Proceedin!s. AbF :ther cases of multiple or separate appeals where the law or the 9ules so re(uire.2)2

6. Perfection of appeal

* partyKs appeal by notice of appeal is deemed perfected as to him upon the filin! of the notice of appeal in due time.

* partyKs appeal by record on appeal is deemed perfected as to him with respect to the subject matter thereof
. . . . . .

8ules of Court! 8ule :(! $ec. .. 8e+ised 8ules on $ummary %rocedure! $ec. .1. .( 8ules of Court! 8ule :(! $ec. *. :< Cheesman +. #ntermediate Appellate Court! 3. 8. -o. 2*)::! January .1! 1((1! 1(: $C8A (:. :1 ,rti&as H Co. Ltd. %artnership +. "elasco! 3.8. -o.1<('*0! Au&ust 10! 1((2! .22 $C8A :*.. :. 8ules of Court! 8ule *1! $ec. ..
.2 .)

upon the approval of the record on appeal filed in due time.

1n appeals by notice of appeal" the court loses jurisdiction over the case upon the perfection of the appeals filed in due time and the e$piration of the time to appeal of the other parties.

1n appeals by record on appeal" the court loses jurisdiction only over the subject matter thereof upon the approval of the records on appeal filed in due time and the e$piration of the time to appeal of the other parties.2))

8. ,ffect of Perfection of *ppeal

The court which rendered the appealed decision loses its jurisdiction over the case. 'owever" it may still do the followin!

A@F issue an order for the protection and preservation of the ri!hts of the parties which do not involve any matter liti!ated by the appeal.

A2F approve compromise of the parties prior to the transmittal of the record on appeal to the appellate court.

A)F permit the prosecution of indi!ent appeals.

A/F order e$ecution pendin! appeal in accordance with Section 2" 9ule )B. and

A6F approve withdrawal of appeal.2)/

;. Period of time to appeal must be strictly enforced on considerations of public policy. The period is mandatory and jurisdictional2)6 and the failure to do so renders the (uestioned decision final and e$ecutory that deprives the appellate court of jurisdiction to alter the final jud!ment much less to entertain the appeal2)8 or motion for new trial.2); The decision of the Court of *ppeals after e$piration of the period to appeal is null and void.2)E

B. E?ECUTION OF JUD"7ENT! AND FINAL ORDER! DR+*e 9BF 1. B,('c Conce0t( ,n- Doct&'ne(

. . . . . .

8ules of Court! 8ule *1! $ec. (. Ibid. :0 3o+ernment $er+ice #nsurance $ystem +. 3ines! 3. 8. -o. )0.2:! Aarch (! 1((:! .1( $C8A 2.*. :' /e Castro! Jr. ". Court of Appeals! -o. L9:'<.1! 4ebruary .(! 1())! 10) $C8A .)). :2 "elaso +. ,rtiG! 3. 8. -o. 01(2:! April 1'! 1((<! 1)* $C8A :<:. :) Antonio +. Court of Appeals! -o. L922'0'! Au&ust :1! 1()2! 10: $C8A 0(..
:: :*

@. ,$ecution is a le!al remedy for the enforcement of a jud!ment.2"5

8.

'n-( o3 E5ec+t'on

There are two A2F #inds of e$ecution discretionary e$ecution and ministerial e$ecution. >iscretionary e$ecution" which is also called e$ecution pendin! appeal" is the e$ecution of a jud!ment or final order before it attains finality. The court which rendered the decision can !rant an e$ecution pendin! appeal if it still retains jurisdiction over the case and is in possession of the records at the time of the filin! of the motion. otherwise" the motion shall be acted upon by the appellate court.2/C To be valid" there should be a !ood reason to justify the e$ecution of the jud!ment pendin! appeal" the same to be stated in the order !rantin! it.2/@

:n the other hand" e$ecution as a matter of ri!ht or ministerial e$ecution is e$ecution of a final jud!ment or final order which has attained finality. 4hen a jud!ment or order has become final" the court cannot refuse to issue a writ of e$ecution e$cept

A@F 4hen subse(uent facts and circumstances transpire which render such e$ecution unjust" or impossible" such as a supervenin! cause li#e the act of the Commissioner of Civil Service findin! the plaintiff administratively !uilty and which constituted a bar to his reinstatement as ordered by the trial court in a civil case.2/2 or where the defendant ban# was placed under receivership.2/)

A2F :n e(uitable !rounds" as when there has been a chan!e in the situation of the parties which ma#es e$ecution ine(uitable.2//

A)F 4here the jud!ment has been novated by the parties.2/6

A/F 4hen a petition for relief or an action to enjoin the jud!ment is filed and a preliminary injunction is prayed for and !ranted.2/8

A6F 4here the jud!ment has become dormant" the five A6F year period under 9ule )B" Section 8 havin! e$pired without the jud!ment havin! been revived.2/; or

A8F 4here the jud!ment turns out to be incomplete2/E or is conditional@/B since" as a matter of law" such jud!ment
. . . . . .

. . . 1

%ele=o +. Court of Appeals! -o. L9'<)<<! Au&ust :1! 1().! 11' $C8A *<'. 8ules of Court! 8ule :(! $ec. .. *1 Ibid. *. ;he City of Butuan +. ,rtiG! 11: %hil. ':' [1('1]. *: Lipana +. /e+elopment BanC of 8iGal! 3. 8. -o. 2:))*! $eptember .*! 1()2! 10* $C8A .02. ** "da. de Albar +. /e Carandan&! 11' %hil. 01' [1('.]D Heirs of 3uminpin +. Court of Appeals! -o. L9:*..<! 4ebruary .1! 1():! 1.< $C8A ')2D Luna +. #ntermediate Appellate Court! 3. 8. -o. '):2*! June 1)! 1()0! 1:2 $C8A 2. *0 4ua Cam Lu +. @ap 4auco! 2* %hil. .)2 [1(*:]D Japanta +. /e 8otaeche! .1 %hil. 10* [1(1.]D $al+ante +. CruG! )) %hil. .:' [1(01]. *' 8efer to 8ules of Court! 8ule :)! $ec. 0. *2 Cunanan +. Court of Appeals! -o. L9.0011! $eptember .)! 1(')! .0 $C8A .':. *) /el 8osario +. "ille&as! *( %hil. ':* [1(.']D #&nacio +. Hilario! 2' %hil. '<0 [1(*']. *( Cu 5n=ien& e Hi=os +. Aabalacat $u&ar Co.! 2< %hil. :)< [1(*<].
:( *<

cannot become final. ". +hen writ of e)ecution may be quashed A@F when it was improvidently issued.

A2F when it is defective in substance.

A)F when it is issued a!ainst the wron! party.

A/F where the jud!ment was already satisfied.

A6F when it was issued without authority.

A8F when a chan!e in the situation of the parties renders e$ecution ine(uitable. and

A;F when the controversy was never validly submitted to the court.26C :. E5ec+t'on o3 3'n,* 4+-)1ent( ,n- o&-e&( There are two A2F ways of securin! e$ecution of final jud!ments and orders e$ecution by motion and e$ecution by action. ,$ecution by motion is an e$ecution obtained throu!h a motion for e$ecution filed within five A6F years from the date of its entry.26@ ,$ecution by action is obtained throu!h the substitution of an action to enforce a jud!ment or order after the lapse of five A6F years from its entry and before it is barred by the statute of limitations.262

;. !0ec'3'c R+*e(

@. ,$ecution of jud!ment can only be issued a!ainst a party to the action 26) and their privies who are those between whom an action is deemed bindin! althou!h they are not literally parties to the said action26/ or to an intervenor.266

2. * jud!ment becomes final and e$ecutory by operation of law" not by judicial declaration. The prevailin! party is entitled as a matter of ri!ht to a writ of e$ecution" and the issuance thereof is a ministerial duty and compellable

. . . . .

Cobb9%ereG +. Lantin! 3. 8. -o. ..:.<! Aay ..! 1(')! .: $C8A ':2D $andico! $r. +. %i&uin&! -o. L9.'110! -o+ember .(! 1(21! *. $C8A :... 01 8ules of Court! 8ule :(! $ec. '. 0. Ibid. 0: $t. /ominic Corporation +. #ntermediate Appellate Court! -o. L92<'.:! June :<! 1()2! 101 $C8A 022. 0* Cabresos +. ;iro! -o. L9*')*:! ,ctober 1)! 1())! 1'' $C8A *<<. 00 Lisin& +. %lan! -o. L90<1<2! -o+ember 1*! 1()*! 1:: $C8A 1(*.
0<

by mandamus.268 There must" however" be a motion.26;

). 9ule on e$ecution in case of the death of a party

1f the jud!ment debtor dies after entry of jud!ment" e$ecution depends upon the nature of the jud!ment. Thus AaF 5or recovery of real or personal property or the enforcement of a lien thereon" e$ecution may be done a!ainst e$ecutor" administrator or successor+in+interest. AbF 5or money jud!ments, the jud!ment should be presented as claim for payment a!ainst the estate in a special proceedin!. Such a claim need no lon!er be proved" since the jud!ment itself is conclusive.26E

/. 4hen the property subject of the e$ecution contains improvements constructed or planted by the jud!ment debtor or his a!ent" the officer shall not destroy" demolish or remove said improvements e$cept upon special order of the court" issued upon petition of the jud!ment creditor after due hearin! and after the former has failed to remove the same within a reasonable time fi$ed by the court.26B

The special order of demolition may be !ranted only upon petition of the plaintiff after due hearin!" and upon the defeated partyKs failure to remove the improvements" within reasonable time !iven him by the court.28C

The notice re(uired before demolition of the improvements on the property subject of the e$ecution is notice to the jud!ment debtor" and not to a stran!er or third party to the case. 28@ The order of demolition is not appealable.282

The sheriff and the issuin! party should carry out the demolition of the improvement of the defeated party on the premises in dispute in a manner consistent with justice and !ood faith.28)

4here the premises was padloc#ed and no one was therein at the time e$ecution was carried into effect" there was no need for the sheriffs and the plaintiff to secure a %brea#+open% order inasmuch as the character of the writ in their hands authori&ed them to brea# open the said premises if they could not otherwise e$ecute its command.28/

<. Le%/ ,n- ",&n'(h1ent

7evy is the sei&ure of property" personal andMor real" belon!in! to the jud!ment debtor for subse(uent e$ecution sale to satisfy jud!ment. Darnishment is the process of notifyin! a third person called the !arnishee to retain and
.

. . . . . .

. .

AuneG +. Court of Appeals! 3.8. -o. *'<1<! July .:! 1()2! 10. $C8A 1(2D City of Aanila +. Court of Appeals! 3.8. -o. 1<<'.' -o+ember .(! 1((1! .<* $C8A :'.. 02 8ules of Court! 8ule :(! $ec. 1D $oco +. Court of Appeals! 3. 8. -o. 11'<1:! ,ctober .1! 1(('! .': $C8A **(. 0) E+an&elista +. La %ro+eedora! #nc.! -o. L9:.).*! Aarch :1! 1(21! :) $C8A :2(. 0( 8ules of Court! 8ule :(! $ec. 1*D 8om +. Cobadora! -o. L9.*2'*! July 12! 1('(! .) $C8A 20). '< 4uentes +. Le+iste! -o. L9*2:':! ,ctober .)! 1().! 112 $C8A (0). '1 LorenGana +. Cayetano! -o. L9:2<01! Au&ust :1! 1(22! 2) $C8A *)0. '. /a+id +. E=ercito! -o. L9*1::*! June 1)! 1(2'! 21 $C8A *)*! Cua +. Lecaros! -o. L921(<(! Aay .*! 1())! 1'1 $C8A *)<. ': AlbeltG #n+estments! #nc. +. Court of Appeals! -o. L9:.02<! 4ebruary .)! 1(22! 20 $C8A :1<. '* Arcadio +. @la&an! A. C. -o. .2:*! July :<! 1()'! *: $C8A 1').
0'

attach the property he has in his possession or under his control belon!in! to the jud!ment debtor" to ma#e disclosure to the court concernin! the same" and to dispose of the same as the court shall direct to satisfy the jud!ment.286

@. >ecisional 9ules on 7evy

@.@ * valid levy is essential to the validity of an e$ecution sale" and levy is invalid if the notice of levy of real property is not filed with the office of the re!ister of deeds" the purpose of which is to notify third parties who may be affected in their dealin!s with respect to such property.288 4here a parcel of land levied upon e$ecution is occupied by a party other than a jud!ment debtor" the procedure is for the court to order a hearin! to determine the nature of said adverse possession.28;

@.2 To effect a levy upon real property" the sheriff is re(uired to do two specific thin!s

AaF file with the re!ister of deeds" a copy of the order and description of the attached property and notice of attachment. and

AbF leave with the occupant of the property a copy of the same order" description and notice.28E

0ote that notice to the owner who is not the occupant does not constitute compliance with the statute.28B

@.) 9eal property" stoc#s" shares" debts" credits and other personal property" may be levied on in li#e manner and with li#e effect as under a writ of attachment.2;C

@./ The levy on e$ecution shall create a lien in favor of the jud!ment creditor over the ri!ht" title and interest of the jud!ment debtor in such property at the time of the levy" subject to liens and encumbrances then e$istin!.2;@

@.6 7evy or attachment over properties themselves is superior than levy on the vendorKs e(uity of redemption over said properties.2;2

2 >ecisional 9ules on Darnishment

2.@ The !arnishment of property to satisfy a writ of e$ecution operates as an attachment and fastens upon the property a lien by which the property is brou!ht under the jurisdiction of the court issuin! the writ. 1t is brou!ht
. . . . . . . .

8ules of Court! 8ule :(! $ec. (. "alenGuela +. /e A&uilar! -o. L91)<):9)*! Aay :1! 1(':! ) $C8A .1.. '2 3ue+ara +. 8amos! -o. L9.*:0)! Aarch :1! 1(21! :) $C8A 1(*. ') /elta Aotors Corporation +. Court of Appeals! -o. L92)<1.! -o+ember .(! 1())! 1') $C8A .<'. '( %hilippine $urety and #nsurance Co.! #nc. +. Jabal! -o. L9.100'! ,ctober :1! 1('2! .1 $C8A ').. 2< 8ules of Court! 8ule :(! $ec. 10. 21 Ibid.! $ec. 1.. 2. ;op 8ate #nternational $er+ices! #nc. +. #ntermediate Appellate Court! -o. L9'2*(('! July 2! 1()'! 1*. $C8A *'2.
'0 ''

into custodia legis, under the sole control of such court.2;) 1t is also #nown as attachment e$ecution.

2.2 ?oney jud!ments are enforceable only a!ainst property un(uestionably belon!in! to the jud!ment debtor. :ne manKs !oods shall not be sold for another manKs debts" as the sayin! !oes.2;/

2.) The prohibition a!ainst e$amination or an in(uiry into a ban# deposit under 9ep. *ct 0o. @/C6 does not preclude its bein! !arnished to insure satisfaction of jud!ment.2;6

2./ Dovernment+owned+and+controlled corporations have a personality of their own" separate and distinct from the !overnment. their funds" therefore" althou!h considered to be public in character" are not e$empt from !arnishment.2;8

G. R+*e( on &e-e10t'on

@. 4ho may redeem

@.@ Jud!ment debtor.

@.2 Successor+in+interest such as a person to whom the debtor has conveyed his interest in the property. person to whom a statutory ri!ht of redemption has been transferred. person who succeeds to the interest of the debtor by operation of law. one or more joint owners of the property. wife as re!ards her husbandKs homestead. and attorney who a!reed to divide the property in liti!ation.2;; and

@.) 9edemptioner" which is a creditor havin! a lien by virtue of an attachment" jud!ment or mort!a!e on the property sold" or on some part thereof" subse(uent to the lien under which the property was sold.2;E

2. *mounts to be paid in case of redemption

2.@ Purchase price with @T per month interest.

2.2 *ssessments or ta$es paid with @T interest

2.) *mount of prior lien if also a creditor havin! a prior lien to that of redemption other than the jud!ment under which purchase was made with interest. 0ote that the fore!oin! does not apply if the one who redeems is the jud!ment debtor unless he redeems from a redemptioner in which case" he must ma#e the same payments as
. . . . . .

/e Leon +. $al+ador! -o. L9:<)21! /ecember .)! 1(2<! :' $C8A 0'2. ,n& +. ;atin&! -o. L9'1<*.! April 10! 1()2! 1*( $C8A .'0. 20 China BanCin& Corporation +. ,rte&a! -o. L9:*('*! January :1! 1(2:! *( $C8A :00. 2' %hilippine -ational BanC +. %abalan! -o. L9::11.! June 10! 1(2)! ): $C8A 0(0. 22 Aa&no +. "iola! '1 %hil. )< [1(:*]D %alicte +. 8amolete! -o. L900<2'! $eptember .1! 1()2! 10* $C8A 1:.. 2) $ec. .2 6b7.
2: 2*

redemptioner.2;B

H. R+*e( 'n -ee- o3 0o((e(('on

@. *fter the deed of sale has been e$ecuted" the vendee therein is entitled to a writ of possession but the same shall issue only where it is the jud!ment debtor or his successors+in+interest who are in possession of the premises. 4here the land is occupied by a third party" the court should order a hearin! to determine the nature of his adverse possession.2EC The writ shall issue when the period of redemption has e$pired.

2. * writ of possession may be issued only in a land re!istration proceedin!" in e$trajudicial foreclosure of a real estate mort!a!e and in judicial foreclosure if the debtor is in possession and no third person" not a party to the suit" had intervened.2E@ 1t has been held" however" that a writ of possession is a complement of the writ of e$ecution. 'ence" if under a final jud!ment the prevailin! party ac(uires absolute ownership over the real property involved" the writ may be issued for him to obtain possession without the need of filin! a separate action a!ainst the possessor.2E2 * writ of possession may also be sou!ht from and issued by the court unless a third party is holdin! the property adversely to the jud!ment debtor.2E)

. .

. . .

. Aoran :.( [1(2(]. 3ue+ara +. 8amos! -o. L9.*:0)! Aarch :1! 1(21! :) $C8A 1(*D 5nchuan +. Court of Appeals 64ifth /i+ision7! -o. L92)220! Aay :1! 1())! 1'1 $C8A 21<. )1 3atchalian +. Arle&ui! -o. L9:0'10! 4ebruary 12! 1(22! 20 $C8A .:*. ). ,le&o +. 8ebuena! -o. L9:(:0<! ,ctober .(! 1(20! '2 $C8A **'. ): 8oxas +. Buan! -o. L90:2()! -o+ember )! 1())! 1'2 $C8A *:.
2( )<

PART TWO A P&o%'('on,* Re1e-'e(

Co11on R+*e(

@. Provisional remedies are

A@F Those to which parties liti!ant may resort for the preservation or protection of their ri!hts or interest" and for no other purpose durin! the pendency of the action.

A2F They are applied to a pendin! liti!ation" for the purpose of securin! the jud!ment or preservin! the status quo" and in some cases after jud!ment" for the purpose of preservin! or disposin! of the subject matter.2E/

2. The provisional remedies are

A@F *ttachment A9ule 6;F.

A2F Preliminary 1njunction A9ule 6EF.

A)F 9eceivers A9ule 6BF.

A/F 9eplevin Aor delivery of private propertyF A 9ule 8CF. and

A6F *limony &endente Lite A9ule 8@F.

*ffidavits are re(uired to support the issuance of any of these remedies and" with the e$ception of alimony pendente lite, a bond to answer for dama!es by reason of the improvident issuance of the writ. 9ecovery of dama!es from the bond is !overned by 9ule 6;" Section 2C.2E6

A. Att,ch1ent

. .

)* )0

Calo +. 8oldan! 2' %hil. **0 [1(*']. 8ules of Court! 8ule 0)! $ec. )D 8ule 0(! $ec. (D 8ule '<! $ec. 1<.

@. >efinition

* writ of preliminary attachment is a provisional remedy issued upon order of the court where an action is pendin! to be levied upon the property or properties of the defendant therein" the same to be held thereafter by the sheriff as security for the satisfaction of whatever jud!ment mi!ht be secured in said action by the attachin! creditor a!ainst the defendant.2E8

2. Concept and Purpose.

*ttachment is a juridical institution which has for its purpose to secure the outcome of the trial" that is" the satisfaction of the pecuniary obli!ation really contracted by a person or believed to have been contracted by him" either by virtue of a civil obli!ation emanatin! from contract or from law" or by virtue of some crime or misdemeanor that he mi!ht have committed" and the writ issued" !ranted it" is e$ecuted by attachin! and safely #eepin! all the movable property of the defendant" or so much thereof as may be sufficient to satisfy the plaintiffKs demands.2E;

The chief purpose of the remedy of attachment is to secure a contingent lien on de%endant4s property until plainti%% can, by appropriate proceedings, obtain a *udgment and have such property applied to its satis%action, or to ma#e some provision for unsecured debts in cases where the means of satisfaction thereof are liable to be removed beyond the jurisdiction" or improperly disposed of or concealed" or otherwise placed beyond the reach of creditors.2EE

). 0ature and Scope *ttachment Purely Statutory

*ttachment is not a distinct proceedin! in the nature of an action in rem but it is a proceedin! to an action of law" desi!ned to secure the payment of any jud!ment the plaintiff may obtain.

*ttachment" as a provisional remedy" is purely a statutory one. 1t does not e$ist unless e$pressly !ranted by the statute. 1t is therefore not available e$cept in those cases where the statute e$pressly permits.2EB 5or this purpose" the party see#in! an attachment must show that a sufficient cause of action e$ists and that the amount due him as much as the sum for which the order of attachment is sou!ht.2BC

/. Strict Compliance with the 9ule

The rule on the issue of a writ of attachment must be construed strictly in favor of the defendant. 1f all the re(uisites for the issuance of the writ are not present" the court" which issues it acts in e$cess of
.

. .

AdlaIan +. ;omol! 3.8. -o. ':..0! April :! 1((<! 1)* $C8A :1D Cuartero +. Court of Appeals! 3.8. -o. 1<.**)! Au&ust 0! 1((. .1. $C8A .'< Cited in Chemphil Export and #mport Corporation 6CE#C7 +. Court of Appeals! 3.8. -o. 11.*:)9:(! /ecember 1.! 1((0! .01 $C8A .02. )2 3uGman +. Catolica! '0 %hil. .02 [1(:2]D 3ruenber& +. Court of Appeals! -o. L9*0(*)! $eptember 1<! 1()0! 1:) sC8A *21 Cited in CE#C +. Court of Appeals! supra! note .)'. )) $pouses $al&ado +. Court of Appeals! -o. L900:)1! Aarch .'! 1()*! 1.) $C8A :(0D CE#C +. Court of Appeals! supra, note .)'. )( 5.$. +. -amit! :) %hil. (.' [1(1)]. (< 3eneral +. /e "enecia! 2) %hil. 2)< [1(*2]
)'

jurisdiction.2B@ 1t should be issued only on concrete and specific !rounds.2B2

6. *ttachment to *c(uire Jurisdiction :ver the Res

*ttachment is intended to confer jurisdiction by the court over the res. 4hen real property of a non+ resident defendant located in Philippines is attached to answer for the claim of the plaintiff" the court ac(uires jurisdiction over the res and in that event" the jurisdiction over the person of said defendant is not essential.2B)

8. Sta!es in the 1ssuance of the 4rit

The !rant of the provisional remedy of attachment practically involves three A)F sta!es first" the court issues the order !rantin! the application. second" the writ of attachment issues pursuant to the order !rantin! the writ. and third" the writ is implemented. 5or the initial two sta!es" it is not necessary that jurisdiction over the person of the defendant should first be obtained. 'owever" once the implementation commences" it is re(uired that the court must have ac(uired jurisdiction over the defendant for without such jurisdiction" the court has no power and authority to act in any manner a!ainst the defendant. *ny order issuin! from the court will not bind the defendant.2B/

* preliminary attachment is a ri!orous remedy which e$poses the debtor to humiliation and annoyance" such that it should not be abused to cause unnecessary prejudice. 1t is" therefore" the duty of the court" before issuin! the writ" to ensure that all the re(uisites of the law have been complied with. otherwise" the jud!e acts in e$cess of its jurisdiction and the writ so issued shall be null and void.2B6

The affidavit must establish that

@F a sufficient cause of action e$ists.

2F the case is one of those mentioned in 9ule 6;" Section @.

)F there is no sufficient security for the claim sou!ht to be enforced by the action.

/F the amount due to the applicant is as much as the sum for which the order is !ranted above all le!al counterclaims.
. . . . .

3ruenber& +. Court of Appeals! supra, note .)2. /y +s. Ena&e! -o. L 9 :0:01! Aarch 12! 1(2'! 2< $C8A ('. (: Aabana& +. 3allemore! )1 %hil. .0* [1(*)] (* Cuartero +. Court of Appeals! 3.8. -o. 1<.**)! Au&ust 0! 1((.! .1. $C8A .'<. (0 $alas +. Adil! -o. L9*'<<(! Aay 1*! 1(2(! (< $C8A 1.1D $pouses $al&ado +. Court of Appeals! supra, note .)).
(1 (.

5ailure of the affidavit to show that there is no other sufficient security for the claim sou!ht to be enforced by the action" that the said amount due to the plaintiff above all le!al set+offs or counterclaim is as much as the sum for which the order is sou!ht renders that application fatally defective.2B8

4hether or not the affidavit sufficiently established facts therein stated is a (uestion to be determined by the court in the e$ercise of sound discretion. The mere filin! of an affidavit recitin! the facts re(uired by the above provision is not sufficient to compel the jud!e to !rant the writ. 1t all depends upon the amount of credit !iven it by the jud!e who may accept or reject it in the e$ercise of his discretion.2B;

;. :rders !rantin! or denyin! provisional remedies are merely interlocutory and cannot be the subject of an appeal. They may however be challen!ed before a superior court throu!h a petition for certiorari under 9ule 86.

E. 1mportant Jurisprudential 9ules

E.@ The purposes of preliminary attachment are

@F to sei&e the property of the debtor in advance of final jud!ment and to hold it for purposes of satisfyin! the said jud!ment. or

2F to enable the court to ac(uire jurisdiction over the action by the actual or constructive sei&ure of the property in those instances where personal service of summons on the creditor cannot be effected.2BE

Thus" a proceedin! in attachment is in rem where the defendant does not appear" and in personam where he appears in the action.2BB 4here a lien already e$ists" e.!. a maritime lien" the same is e(uivalent to an attachment" )CCjust li#e that under a real estate mort!a!e.

E.2 9ule on Prior or Contemporaneous Jurisdiction

*lthou!h a writ of preliminary attachment may be issued e+<parte or even before service of summons on the defendant" it cannot however be implemented until the court has ac(uired jurisdiction over the person of the defendant.)C@

E.) 4hen the !round relied upon in as#in! for preliminary attachment is impendin! fraudulent removal" concealment and disposition of defendantKs property under para!raphs AdF and AeF of Section @" 9ule 6;" the court should either conduct a hearin! or re(uire the submission of
.

. . . : :

3uGman +. Catolica! supra, note .)2D ?.,. 3lass Construction Co.! #nc. +. "alenGuela! -o. L9*)20'! $eptember 11! 1().! 11' $C8A 0':D Jardine Aanila 4inance! #nc. +. Court of Appeals! 3.8. -o. 00.2.! April 1<! 1()(! 121 sC8A ':'. (2 La 3ran=a #nc. +. $amson! 0) %hil. :2) [1(::]. () Aabana& +. 3allemore! supra, note .(:D Fuasha +. Juan! -o. L9*(1*<! -o+ember 1(! 1().! 11) $C8A 0<0. (( Banco Espanol94ilipino +. %alanca! :2 %hil. (.1 [1(1)]. << Fuasha +. Juan! supra, note .(). <1 8ules of Court! 8ule 02! $ec. 0.
('

counter+affidavits from the defendant to !ather facts in support of the alle!ations of fraud.)C2

E./ Preliminary attachment may be !ranted in an action for a specified amount even when the claim is unli(uidated other than for moral and e$emplary dama!es.)C)

E.6 1f a property has been levied upon by virtue of a writ of preliminary attachment" it becomes one under custodia legis and a subse(uent e$trajudicial foreclosure of said property by a third+ party mort!a!ee does not affect the lien created by the attachment.)C/

E.8 * forei!n corporation duly licensed to do business in the Philippines is not a non+resident within the meanin! of Section @AfF" 9ule 6;. hence" its property here may not be attached on the mere !round that it is a non+resident.)C6 1nsolvency of the defendant debtor is not a !round ofr the issuance of a writ of preliminary attachment.)C8 Section @AfF" concernin! summons by publication" refers to those cases in Sections @/ and @8 of 9ule @/.

E.; Property e$empt from e$ecution is also e$empt from preliminary attachment or !arnishment.)C; Darnishment does not lie a!ainst the funds of the re!ular departments or offices of the Dovernment" but funds of public corporations are not e$empt from !arnishment.)CE

P&e*'1'n,&/ In4+nct'on ,n- Te10o&,&/ Re(t&,'n'n) O&-e&

There is no power the e$ercise of which is more delicate which re(uires !reater caution" deliberation" and sound discretion" or Awhich isF more dan!erous in a doubtful case than the issuin! of an injunction" it is the stron! arm of e(uity that never ou!ht to be e$tended unless to cases of !reat injury" where courts of law cannot afford an ade(uate or commensurate remedy in dama!es.)CB

1. 3wo $2& kinds of Preliminary /njunction

@.@ Preliminary Prohibitory 1njunction which re(uires a person to refrain from a particular act. and

@.2 Preliminary ?andatory 1njunction which re(uires a person to perform a particular act.

Caveat *dministrative Circular C;+BB To all jud!es of all lower courts 9e ,$ercise of Otmost Caution" Prudence" and Judiciousness in 1ssuance of Temporary 9estrainin! :rders and 4rits of Preliminary
: : :

: : : : :

AdlaIan +. ;orres! 3.8. -os '0(0290)! July 0! 1((*! .:: $C8A '*0. 8ules of Court! 8ule 02! $ec. 16a7. <* Consolidated BanC and ;rust Corporation +. #ntermediate Appellate Court! -o. L92:2('! Aay .(! 1()2! 10< $C8A 0(1. <0 Claude -eon Li&hts! 4ed.! #nc. +. %hilippine Ad+ertisin& Corporation! 02 %hil. '<2 [1(:.]. <' AboitiG and Co.! #nc. +. %ro+incial $heriff! -o. L9:0((<! June 12! 1()1! 1<0 $C8A )). <2 8ules of Court! 8ule 02! $ec. 0 <) %hilippine -ational BanC +. %abalan! -o. L9::11.! June 10! 1(2)! ): $C8A 0(0. <( .) Am. Jur. .<1! #"9A "icente J. 4rancisco! ;he 8e+ised 8ules of Court of the %hilippines 12( [1(21] >uoted in 5ni+ersity of the %hilippines +. Catun&al! Jr. 3.8. -o. 1.1)': Aay 0!1((2! .2. $C8A ..1! .:'.
<. <:

1njunction

2. Purpose

To prevent future injury and maintain the status quo 3 the last actual" peaceable" uncontested status which preceded the pendin! controversy.)@C

The sole object of preliminary injunction is to maintain the status quo until the merits can be heard.)@@

Suspension of orders is e(uivalent to injunction.)@2

* writ of preliminary injunction" as an ancillary or preventive remedy" may only be resorted to by a liti!ant to protect or preserve his ri!hts or interest and for no other purpose durin! the pendency of the principal action.)@)

". Definition of status quo

The status quo is the last actual peaceable uncontested status that preceded the pendin! controversy.)@/

4hen parties are ordered to maintain the status quo in a T9:" but the prevailin! condition at the time of its issuance is already that resultin! from acts of usurpation by one of the parties" which acts of usurpation are clearly established in the pleadin!s" that T9: amounts to a perpetuation of the injurious effects of such acts of usurpation. such a state of thin!s cannot clearly be allowed" for the office of the writ of injunction is to restrain the wron!doer" not to protect him.)@6

:. In-e0en-ent ,ct'on 1e&e*/ to obt,'n 0&e*'1'n,&/ 'n4+nct'on '( not ,**o$e-. !o1e (+b(t,nt'%e &e*'e3 1+(t be (o+)ht.91<

* writ of preliminary injunction" as an ancillary preventive remedy" may only be resorted to by a liti!ant to protect or preserve his ri!hts or interest and for no other purpose durin! the pendency of the principal action.)@;

.. (ssential Requisites for /ssuance of Preliminary /njunction

:

: : : : :

8i+era +. 4lorendo! -o. L9020)'! ,ctober )! 1()'! 1** $C8A '*:D ?necht +. Court of Appeals! 3. 8. -o. 0'1..! -o+ember 1)! 1((:! ..) $C8A 1. 11 $earth Commodities Corp. +. Court of Appeals! 3. 8. -o. '*.<<! Aarch :1! 1((.! .<2 $C8A '... 1. %hilippine -ational BanC +. Adil! 3. 8. -o. L90.)0:! -o+ember .! 1().! 11) $C8A 11<. 1: Ben&Gon +. Court of Appeals! -o. L9).0')! :1 Aay 1())! 1'1 $C8A 2*0. 1* $earth Commodities Corp. +. Court of Appeals! supra! note :11. 10 Buayan Cattle Co.! #nc. +. Fuintillan! 3. 8. -o. L9.'(2<! Aarch 1(! 1()*! 1.) $C8A .2'D "illanue+a +. Court of Appeals! 3. 8. -o. 112''1! July 10!1(('! .0( $C8A 1* . 1' Ben&Gon +. Court of Appeals! 3.8. -o. ).0')! Aay :1! 1())! 1'1 $C8A 2*0D Cootauco +. Court of Appeals! 3. 8. -o. 0'0'0! June 1'! 1())! 1'. $C8A 1..D Buayan +. Fuintillan! supra! note :10. 12 Ibid.
1<

6.@ There must be ri!ht in esse or the e$istence of a ri!ht to be protected.

6.2 The act a!ainst which the injunction is to be directed is a violation of such ri!ht.)@E

1. Rulin0s

8.@ * writ of preliminary injunction" as an ancillary or preventive remedy" may only be resorted to by a liti!ant to protect or preserve his ri!hts or interests and for no other purpose durin! the pendency of the action.)@B 1t should only be !ranted if the party as#in! for it is clearly entitled thereto.)2C

8.2 *n injunction will not issue to protect a ri!ht not in esse and which may never arise or to restrain an act which does not !ive rise to a cause of action. There must e$ist an actual ri!ht.)2@

2. ummary denial without adequate hearin0 improper

4hile in the issuance of preliminary injunction" the courts are !iven sufficient discretion to determine the necessity for the !rant of the relief prayed for as it affects the respective ri!hts of the parties" with the caveat that e$treme caution be observed in the e$ercise of such discretion" it is with an e(ual de!ree of care and caution that courts ou!ht to proceed in the denial of the writ. 1t should not just summarily issue an order of denial without an ade(uate hearin! and judicious evaluation of the merits of the application. * perfunctory and improvident action in this re!ard would be a denial of procedural due process and could result in irreparable prejudice to a party.)22

4. +hen hearin0 on the merits unnecessary

$$$ 1f the !round is the insufficiency of the complaint" the same is apparent from the complaint itself. Preliminary injunction in such a circumstance may be refused outri!ht" with or without notice to the adverse party. 1n fact" under Section 8 of 9ule 6E" the court may also refuse an injunction on other !rounds on the basis of affidavits which may have been submitted by the parties in connection with such application. $$$

$$$ ASection ; of 9ule 6EF merely specifies the actions that the court may ta#e on the application for the writ if there is a hearin! on the merits. 1t does not declare that such hearin! is mandatory or prere(uisite thereof. :therwise" the courts will be forced to conduct a hearin! even if from a consideration of the pleadin!s alone it can readily be ascertained that the movant is not entitled to the writ. $$$

1t would be different $$$ if there is a prima %acie showin! on the face of the motion or pleadin!s that the !rant of preliminary injunction may be proper" in which case notice to the opposin! party would be necessary since the !rant of such writ on an e+ parte
:

: :

Buayan Cattle Co. +. Fuintillian! supra! note :10D $aulo& +. Court of Appeals! 3.8. -o. 11(2'( $eptember 1)! 1(('! .'. $C8A 01D Arce&a +. Court of Appeals 3.8. -o 1...<' July 2! 1((2! .20 $C8A 12'. 1( China BanCin& Corporation +. Court of Appeals 3.8. -o. 1.110)! /ecember 0! 1(('! .'0 $C8A :.2. .< Climaco +. Aacadae&! 11* %hil. )2< [1('.]D $ubido +. 3open&co! 3. 8. -o. .0'1)! Aarch .)! 1('(! .2 $C8A *00D %olice Commission +. Bello! 3. 8. -os. .((0(9'<! January :<! 1(21! :2 $C8A .:<D Capitol Aedical Center! #nc. +. Court of Appeals! 3.8. -o. ).*((! ,ct. 1:! 1()(! 12) $C8A *(:. .1 8epublic of the %hilippines +. "illarama 3.8. -o. 1122::! $eptember 0! 1((2! .2) $C8A 2:'D Buayan +. Fuintillan! supra! note :10. .. Bataclan +. Court of Appeals! 3. 8. -o. 2)1*)! July :1! 1()(! 120 $C8A 2'*.
1)

proceedin! is now proscribed.$$$

A1f there is a prima %acie showin! that preliminary injunction is properF a hearin! should be conducted" since under such circumstance" only in cases of e$treme ur!ency will the writ issue prior to a final hearin!. Such re(uirement for prior notice and hearin! underscores the necessity that a writ of preliminary injunction is to be dispensed with circumspection and both sides should be heard whenever possible. 2ut it does not follow that such a hearin! is indispensable where ri!ht at the outset the court is reasonably convinced that the writ will not lie. 4hat was then discoura!ed and is now specifically prohibited is the issuance of the writ without notice and hearin!. J$$)2)

5. #ases where /njunction was held improper

B.@ To restrain collection of ta$es)2/ e$cept where there are special circumstances that bear the e$istence of irreparable injury.)26

B.2 To restrain the sale of conju!al properties where the claim can be annotated on the title as a lien such as the husbandKs obli!ation to !ive support.)28

B.) To restrain a mayor proclaimed as duly elected from assumin! his office.)2;

B./ *!ainst consummated acts.)2E

B./.@ *!ainst disposin! of the case on the merits.)2B

B./.2 4rit of injunction is not proper to stop the e$ecution of jud!ment where the jud!ment was already e$ecuted.))C

B./.) The C51 has no power to issue a writ of injunction a!ainst the 9e!ister of >eeds if its effect is to render nu!atory a writ of e$ecution issued by the 0ational 7abor 9elations Commission.))@

B././ * writ of injunction is not proper to stop the e$ecution of jud!ment where the jud!ment was already e$ecuted.))2

: : : : : : :

: : :

"alley ;radin& Co.! #nc. +. Court of 4irst #nstance! 3.8. -o. *(0.(! :1 Aarch 1()(! 121 $C8A 0<1. Ibid. .0 Churchill H ;ait +. 8afferty! :. %hil. 0)< [1(10]. .' $aa+edra +. Estrada 0' %hil.:: [1(:1]. .2 Cereno +. /ictado! -o. L9)100<! April 10! 1())! 1'< $C8A 20(. .) %hilippine -ational BanC +. Adil! supra! note :1.. .( 3o+ernment $er+ice #nsurance $ystem 63$#$7 +. 4lorendo! 3. 8. -o. *)'<:! $eptember .(! 1()(! 12) $C8A 2'D ,rti&as and Company Limited %artnership +. Court of Appeals! -o. L92(1.)! June 1'! 1())! 1'. $C8A 1'0. :< Aeneses +. /in&lasan! )1 %hil. *2< [1(*)]. :1 Ambrosio +. $al+ador! -o. L9*2'01! /ecember 11! 1(2)! )2 $C8A .12. :. Aeneses +. /in&lasan! supra! note ::<.
.: .*

2ut where the lower court enforced its jud!ment before a party a!ainst whom the e$ecution was enforced could elevate her appeal in an injunction suit" which was instituted to prevent said e$ecution" an independent petition for injunction in the Court of *ppeals is justified.)))

B./ 0ot *llowed To Transfer Possession

* court should not by means of a preliminary injunction transfer the property in liti!ation from the possession of one party to another where the le!al title is in dispute and the party havin! possession asserts ownership thereto.))/ The function of injunction is to preserve the status quo ante.))6

This is more particularly applicable where the le!al title is in dispute and the party havin! possession asserts ownership in himself.))8

16. ()ceptions

@C.@ 5orcible entries in which the Court may issue preliminary mandatory injunction)); and by Section 2C thereof involvin! leases in which the court may" on appeal" !rant similar mandatory injunctive relief. The e$ception applies only to ejectment cases e$clusively co!ni&able by the municipal court.))E

@C.2 Property covered by Torrens Title when there is a clear findin! of ownership and possession of the land or unless the subject property is covered by a Torrens Title pointin! to one of the parties as the undisputed owner.))B

11. #ases where injunction prohibited

@@.@ 1njunction a!ainst courts or tribunals of co+e(ual ran# prohibited.)/C

@@.2 1njunction orders are prohibited in the labor cases.)/@

: : : : : : :

: :

Aanila $urety and 4idelity +. ;eodoro! 3. 8. -o. .<0:<! June .(! 1('2! .< $C8A *':. ;oyota Aotors %hilippines Corporation +. Court of Appeals! 3. 8. -o. 1<.))1! /ec. 2! 1((.! .1' $C8A .:'. :0 ?necht +. Court of Appeals! 3. 8. -o. 0'1..! -o+ember 1)! 1((:! ..) $C8A 1. :' 3ordillo and AartineG +. /el 8osario! :( %hil. ).( [1(1(]. :2 8ules of Court! 8ule 2<! $ec. 10. :) 8amos +. Court of Appeals! 3.8. )1:0*! July .'! 1())! 1': $C8A 0):. :( 3$#$ +. 4lorendo! supra! note :.(D Ca&ayan de ,ro City Landless 8esidents Association! #nc. +. Court of Appeals! 3. 8. -o. 1<'<*:! Aarch *! 1(('! .0* $C8A ..(. *< 8oldan! Jr. +. Arca! 3. 8. -o. .0*:*! July .0! 1(20! '0 $C8A ::'. *1 Associated Labor 5nion 6A?59;5C%7 +. Borromeo! -o. L9202:'! $eptember .(! 1())! 1'' $C8A ((D Kaisahan ng mga Manggagawa v. Sarmiento! -o. L9*2)0:! -o+ember 1'! 1()*! 1:: $C8A ..<.
:: :*

@@.) 0o injunction beyond prayer in complaint.)/2

@@./ To enjoin the prosecution of criminal proceedin!s.)/)

12. #ases where #riminal Prosecutions were (njoined"''

@F 5or the orderly administration of justice.

2F To prevent the use of the stron! arm of the law in an oppresive and vindictive manner.

)F To avoid multiplicity of actions.

/F To afford ade(uate protection of constitutional ri!hts.

6F 1n proper cases because the statute relied upon is unconstitutional or was held invalid.)/6

8F 4here the constitutionality of the Chinese 2oo# Qeepin! 7aw was (uestioned.)/8

;F 4here the hearin! of the libel case was enjoined by permanent injunction after the Supreme Court in a separate case found the communication alle!ed to be libelous as privile!ed and not libelous.)/;

EF 4here a traffic ordinance was found to be invalid.)/E and

BF 4here the fiscal was restrained from further proceedin! with criminal case found to be civil in nature.)/B 0ote This was later on reconsidered.)6C

1". Mandatory /njunction

: :

: : : : : : :

;he Chief of $taff! A4% +. 3uadiG! Jr.! -o. L9:0<<2! /ecember :(! 1()<! 1<1 $C8A ).2. 8omero +. ;he Chief of $taff! A4%! 3. 8. -o. )*<2'! 4ebruary .<! 1()(! 12< $C8A 1<)D 8eyes +. Camilon! 3. 8. -o. *'1()! /ecember .<! 1((<! 1(. $C8A **0. ** BrocCa +. Enrile! 3. 8. -os. '()':9'0! /ecember 1<! 1((<! 1(. $C8A 1).. *0 Justiniani +. Castillo! -o. L9*111*! June .1! 1())! 1'. $C8A :2). *' @u Con& En& +. ;rinidad! *2 %hil. :)0 [1(.0]. *2 An& +. Castro! 3. 8. -o. L9'':21! Aay 10! 1()0! 1:' $C8A *0:D Justiniani +. Castillo! supra! note :*0. *) %rimicias +. Aunicipality of 5rdaneta! %an&asinan! -o. L9.'2<.! ,ctober 1)! 1(2(! (: $C8A *'.. *( 3uin&ona +. City 4iscal of Aanila! -o. L9'<<::! April *! 1()*! 1.) $C8A 022. 0< 3uin&ona +. City 4iscal of Aanila! 8econsidered! 8esolution! 1:2 $C8A 0(2.
*. *:

@).@ 9e(uisites

* mandatory injunction is !ranted only on a showin! that

A@F The invasion of the ri!ht is material and substantial.

A2F The ri!ht of a complainant is clear and unmista#able.

A)F There is an ur!ent and permanent necessity for the writ to prevent serious dama!e.)6@

1'. #ases where Mandatory /njunction not ;ranted

?andatory injunction was not !ranted in the followin! instances

A@F to compel cohabitation.)62

A2F in cancellation of attachment.)6) and

A)F in release of imported !oods pendin! hearin! before Commissioner of Customs.)6/

A/F 1njunctions are also not available to ta#e property out of the possession or control of one party and place it into that of another whose title has not clearly been established.)66 The office of the writ of injunction is to restrain the wron!doer)68 not to protect him.)6;

1.. /njunction a0ainst courts or tribunals of co9equal rank is prohibited

@6.@ * court may not interfere by injunction with the jud!ments or orders of another court of coordinate and concurrent jurisdiction.)6E

: : : :

: : :

%ele=o +. Court of Appeals! -o. L9'<)<<! ,ctober 1)! 1().! 112 $C8A '''D 8i+era +. 4lorendo! -o. L9'<<''! July :1! 1()'! 1*: $C8A .2). 0. Arroyo +. "as>ueG! *. %hil. 0* [1(.1]. 0: Le+y Hermanos +. Lacson! 21 %hil. (* [1(*<]. 0* Commissioner of Customs +. Cloribel! 3. 8. -o. .<.''! January :1! 1('2! 1( $C8A .:*. 00 Emilia +. Bado! 3. 8. -o. .:')0! April .0! 1(')! .: $C8A 1):D %io +. Aarcos! 3. 8. -o. .2)*(! April :<! 1(2*! 0' $C8A 2.'. 0' Calo +. 8oldan! supra! note .)*. 02 Buayan Cattle +. Fuintillian! supra! note :10. 0) 8oldan! Jr. +. Arca! 3. 8. -o. .0*:*! July .0! 1(20 '0 $C8A ::'D Abiera +s. Court of Appeals! 3. 8. -o. .'.(*! Aay :1! 1(2.! *0 $C8A :1*.
01

The principle applies re!ardless of whether it is an ordinary action or a special civil action.

@6.2 0o writ may be issued by the 9e!ional Trial Court a!ainst (uasi+judicial bodies of e(ual ran# such as Social Security Commission" Securities and ,$chan!e Commission")6B 1ntellectual Property :ffice" Commission on ,lections" or 4or#menKs Compensation Commission.)8C

@6.) 1nferior courts may issue writs of preliminary injunction only in forcible entry and unlawful detainer cases. The e$clusive ori!inal jurisdiction of the inferior court in civil cases now includes the !rant of provisional remedies in proper cases.)8@

11. tatutory Prohibitions a0ainst the /ssuance of a +rit of Preliminary /njunction

1njunction orders are prohibited in the followin! cases

@8.@ Onder 2atas Pambansa 2l!. 22; amendin! *rt. 266 A7abor CodeF" no temporary or permanent injunction in cases !rowin! out of labor dispute shall be issued by a court or other entity e$cept as otherwise provided in *rticles 2E@ and 28/ of this Code.)82

Onder Presidential >ecree 0o. 2@E" it is the 0ational 7abor 9elations Commission A079CF that issues an injunction in labor disputes.)8)

@8.2 9ep. *ct 0o. E;)6

Prohibition of issuance of temporary restrainin! orders" preliminary injunctions" or preliminary mandatory injunctions a!ainst !overnment infrastructure projects.

The law e$pressly repeals Presidential >ecree 0o. 8C6 Aprohibitin! injunction involvin! concessions" licenses and other permits issued by public administrative office or bodies for the e$ploitation of natural resourcesF and Presidential >ecree 0o. @E@E Aprohibitin! injunction in cases involvin! infrastructures and natural resources development and public utilitiesF)8/.

@8.) Presidential >ecree 0o. )E6

Prohibition to issue injunction a!ainst any !overnment financin! institution in any action ta#en by such institution in connection with the mandatory foreclosure where arrears amount to at least 2CT of the total outstandin! obli!ations includin! interest and other char!es as appearin! in the boo# of
: : : : : :

%hilippine %acific 4ishin& Co.! #nc. +. Luna! -o. L90(<2<! Aarch 10! 1().! 11. $C8A '<*. -ocnoc +. "era! -o. L9:22:2! 4ebruary .2! 1(2(! )) $C8A 0.(. '1 B% Bl&. 1.(! $ec. ::D Vide 8efer to 8ules of Court! 8ule 2<! $ec. 10. '. Associated Labor 5nion 6AL59;5C%7 +. Borromeo! supra! note :*1. ': Kaisahan ng mga Manggagawa +. $armiento! supra! note :*1. '* -ational %oIer Corporation +. "era! 3.8. -o. ):00)! .2 4eb. 1()(! 12< $C8A 2.1.
0( '<

accounts andMor related records of the financial institutions concerned.)86

Presidential >ecree 0o. )E6 cannot however" be applied where the e$tent of the loan actually received by the borrower is still to be determined.)88

1t is not also applicable to properties already foreclosed. The prohibition found in Presidential >ecree 0o. )E6 a!ainst the issuance of injunctions by lower courts" unless certain conditions are met" applies only to foreclosure proceedin!s initiated by !overnment financin! institutions li#e the >evelopment 2an# of the Philippines.)8;

@8./ 0o restrainin! order or preliminary injunction a!ainst the Presidential *!rarian 9eform Council AP*9CF

0o court in the Philippines shall have jurisdiction to issue any restrainin! order or writ of preliminary injunction a!ainst P*9C or any of its duly authori&ed or desi!nated a!encies in any case" dispute or controversy arisin! from" necessary to" or in connection with the application" implementation" enforcement" or interpretation of this *ct and other pertinent laws on a!rarian reform.)8E

@8.6 Prohibition to issue injunction a!ainst the *sset Privati&ation Trust A*PTF)8B

@8.8 * court should issue a writ of preliminary injunction only when the petitioner assailin! a statute or administrative order has made out a case of unconstitutionality aside from showin! a clear le!al ri!ht to the remedy sou!ht.);C

@8.; Presidential >ecree 0o. 8C6 which prohibits courts from e$ercisin! jurisdiction to issue preliminary injunction in a case involvin! the issuance or approval by administrative officials of public !rants in connection with the e$ploitation of natural resources" does not apply in a case where the complaint does not put in issue the le!itimacy of the defendantKs claim of bein! holders of minin! lease contracts" but asserts that defendants had ri!hts.);@

12. /njunctions not issued where act sou0ht to be pre!ented had been committed

*n injunction suit becomes moot and academic after the act sou!ht to be enjoined had already been
: :

: :

: :

4ilipinas Aarble Corporation +. #ntermediate Appellate Court! -o. L9')<1<! Aay :<! 1()'! 1*. $C8A 1)<. 4ilipinas Aarble Corporation +. #ntermediate Appellate Court! ibid.D 3o+ernment $er+ice #nsurance $ystem +. Court of Appeals! 3.8. -o. *..2)! January .<! 1()(! 1'( $C8A .**. '2 $earth Commodities Corporation +. Court of Appeals! supra! note :11D 8epublic of the %hilippines +. Court of Appeals 3.8. -o.1<2(*:! 4eb. :! .<<<. ') $ec. 00! CA8% LaI. '( $ec. :19A! %roclamation -o. 0<9AD Aantruste $ystem +. Court of Appeals! 3.8. -os. )'0*<9*1! -o+ember '! 1()(! 12( $C8A 1:'. 2< ;ablarin +. 3utierreG! -o. L92)1'*! July :1! 1()2! 10. $C8A 2:<. 21 /.C. Crystal! #nc. +. Laya! 3.8. -o. 0:0(2! 4ebruary .)! 1()(! 12< $C8A 2:*.
'0 ''

consummated.);2 * prohibitory injunction cannot be issued when the act sou!ht to be enjoined has already been committed.);)

14. -o injunction beyond prayer in complaint

Courts should not issue orders or injunctions beyond those prayed for in the complaint.);/

1B. Te10o&,&/ Re(t&,'n'n) O&-e&

The procedural !uidelines in the issuance of T9: and Preliminary 1njunction in a ?ultiple Sala Court are provided for in Supreme Court *dministrative Circular 0o. 2C+B6.

4hen an application for a writ of preliminary injunction or a temporary restrainin! order is included in a complaint or any initiatory pleadin!" the case" if filed in a multiple+sala court" shall proceed as follows

AaF Herified application and bond for preliminary injunction or temporary restrainin! order.

AbF >etermination from facts shown by affidavits or by the verified application that !reat or irreparable injury would result to the applicant before the matter can be heard on notice.

AcF 1f the matter is of e$treme ur!ency and the applicant will suffer !rave injustice and irreparable injury" the e$ecutive jud!e of a multiple+sala court or the presidin! jud!e of a sin!le+sala court may issue e+ parte a temporary restrainin! order effective for only seventy+two A;2F hours from issuance.

AdF 1n either case" even if no T9: had been issued because there is no e$treme ur!ency" the case shall be raffled only after notice to and in the presence of the adverse party or the person to be enjoined. 1n any event" such notice shall be preceded" or contemporaneously accompanied" by service of summons" to!ether with a copy of the complaint or initiatory pleadin! and the applicantKs affidavit and bond" upon the adverse party in the Philippines.

'owever" A@F where the summons could not be served personally or by substituted service despite dili!ent efforts" or A2F the adverse party is a resident of the Philippines temporarily absent therefrom or is a nonresident thereof" the re(uirement of prior or contemporaneous service of summons shall not apply.

AeF 1f no T9: has been issued because there is no e$treme ur!ency" the application for a temporary restrainin! order shall thereafter be acted upon only after all parties are heard in a summary hearin! which shall be conducted within twenty+four A2/F hours after the sheriffKs return of service andMor the records are received by the branch selected by raffle and to which the records shall be transmitted immediately.

AfF 4ithin the aforesaid seventy+two A;2F hours" the jud!e before whom the case is pendin! shall conduct a summary hearin! to determine whether the temporary restrainin! order shall be e$tended until the application for preliminary
:

%hilippine Commercial and #ndustrial BanC +. -ational Aines and Allied 1orCers 5nion 6-AAA159A#47! -o. L9 0<*<2! Au&ust 1(! 1().! 110 $C8A )2:D 8omulo +. @ i&ueG! -o. L921(<)! 4ebruary *! 1()'! 1*1 $C8A .':D 8i+era +. 4lorendo! -o. L9020)'! ,ctober )! 1()'! 1** $C8A '0). 2: %hilippine -ational BanC +. Adil! supra! note :1.D 8amos! $r. +. Court of Appeals! 3.8. -os. )<(<)9<(! Aay .*! 1()(! 12: $C8A 00<. 2* ;he Chief of $taff! A4% +. 3uadiG! Jr.! supra! note :*..
2.

injunction can be heard. 1n no case shall the total period of effectivity of the temporary restrainin! order e$ceed twenty A2CF days" includin! the ori!inal seventy+two hours provided herein.

A!F >etermination within twenty days from service of the T9: on the party sou!ht to be enjoined whether a preliminary injunction shall issue or not.

AhF The effectivity of a temporary restrainin! order is not e$tendible without need of any judicial declaration to that effect and no court shall have authority to e$tend or renew the same on the same !round for which it was issued. *nother restrainin! order may" therefore" be issued provided it is not based on the same !round.

Rece'%e&(h'0

1. ,ppointment of a Recei!er

The !eneral rule is that neither party to the liti!ation should be appointed as a receiver without the consent of the other because a receiver is supposed to be an impartial and disinterested person.);6 * cler# of court should not be appointed as a receiver as he is already burdened with his official duties.);8

2. pecific situations when a recei!er may be appointed

2.@ 5amily Code" *rticle @C@

1f a spouse without just cause abandons the other or fails to comply with hisMher obli!ations to the family" the a!!rieved spouse may petition the court for receivership.

2.2 9ules of Court" Sec. /@" 9ule )B

The court may appoint a receiver of the property of the jud!ment obli!or. and it may also forbid a transfer or other disposition of" or any interference with" the property of the jud!ment obli!or not e$empt from e$ecution.

2.) *fter the perfection of an appeal" the trial court retains jurisdiction to appoint a receiver of the property under liti!ation since this matter does not touch upon the subject of the appeal.);;

2./ *fter final jud!ment" a receiver may be appointed as an aid to the e$ecution of jud!ment.);E
: : : :

Alcantara +. Abbas! -o. L91*)(<. $eptember :<! 1(':! ( $C8A 0*. Abri&o +. ?ayanan! -o. L9.)'<1! Aarch 1)! 1():! 1.1 $C8A .<. 22 8ules of Court! 8ule *1! $ec. (D Acu a +. Calua&! 1<1 %hil. **' [1(02]. 2) %hilippine ;rust Company +. $antamaria! 0: %hil. *': [1(.(].
20 2'

2.6 *ppointment of a receiver over the property in custodia legis may be allowed when it is justified by special circumstances as when it is reasonably necessary to secure and protect the ri!hts of the real owner.);B

Re0*e%'n

1. teps in the /ssuance and /mplementation of a +rit of Reple!in

@.@ * party prayin! for the recovery of possession of a personal property files with the court at the commencement of the action or before answer in application for a writ of replevin.)EC

To accompany the application is the affidavit which should state that

A@F that the applicant is the owner of the property claimed" particularly describin! it" or is entitled to the possession thereof.

A2F that the property is wron!fully detained by the adverse party" alle!in! the cause of detention thereof accordin! to the best of his #nowled!e" information" and belief.

A)F that the property has not been distrained or ta#en for a ta$ assessment or a fine pursuant to law" or sei&ed under a writ of e$ecution or preliminary attachment " or otherwise placed under custodia legis" or if so sei&ed" that it is e$empt from such sei&ure or custody. and

A/F the actual mar#et value of the property.

2. -otes

A@F The applicant of a writ of replevin need not be the owner for it is enou!h if he has a ri!ht to possess it.)E@

A2F 9eplevin cannot be availed of if the property is in custodia legis as where it is under attachment or was sei&ed under a search warant)E2 e$cept

: : : :

/olar +. $undiam! -o. L9.2':1! April :<! 1(21! :) $C8A '1'. 8ules of Court! 8ule '<! $ec. 1. )1 @an& +. "aldeG! 3. 8. -o. 2::12! Au&ust :1! 1()(! 122 $C8A 1*1. ). %a&CalinaIan +. 3omeG! -os. L9..0)0! /ecember 1'! 1('2! .1 $C8A 1.20D 8ules of Court! 8ule '<! $ec. . 6c7.
2( )<

a. when the sei&ure is ille!al.)E) and

b. where there is reason to believe that the sei&ure will not anymore be followed by the filin! of the criminal action in court or there are conflictin! claims.)E/

9. The -e3en-,nt '( ent't*e- to the &et+&n o3 the 0&o0e&t/ t,ken +n-e& , $&'t o3 &e0*e%'n '3 the 3o**o$'n) &e2+'('te( ,&e 1et@

A@F SMhe posts a redelivery bond and

A2F SMhe furnishes the plaintiff of a copy of the underta#in! within five A6F days from ta#in! and

A)F the bond is sufficient and in proper form.)E6

!+00o&t Pendente <ite

1. -otes and #ases

@.@ Support pendente lite can be !ranted by the court in two A2F instances

A@F civil action for support. and

A2F criminal action where civil liability includes support for the offsprin! as a conse(uence of the crime.

@.2 4here the ri!ht to support is put in issue by the pleadin!s or the fact from which the ri!ht to support arises is in controversy or has not been established" the court cannot !rant support pendente lite.=?D

@.) The amount of support pendente lite is not final in character in the sense that it can be the subject of modification dependin! on the chan!in! conditions affectin! the ability of the obli!or to pay the amount fi$ed for support.)E;

: : : : :

Ba&aliho& +. 4ernandeG! 3. 8. -o. (':0'! June .2! 1((1! 1() $C8A '1*. Chua +. Court of Appeals! 3. 8. -o. 2(<.1! Aay 12! 1((:! ... $C8A )0. )0 8ules of Court! 8ule '<! $ecs. 0 and '. )' 4rancisco +. Jandueta! '1 %hil. 20. [1(.(]. )2 $an Juan +. "alenGuela! -o. L90((<'! ,ctober .:! 1().! 112 $C8A (.'.
): )*

@./ 1f an application for support pendente lite is denied" the remedy is certiorari.

@.6 ?ere affidavits or other documents appearin! in the record are sufficient basis for the court to determine amount of support pendente lite.=??

1.'

Support pendente lite are allowed in criminal actions where the civil liability includes support for the offsprin! as a conse(uence of the crime and the civil

aspect thereof has not been waived" reserved or instituted prior to its filin!.)EB

: :

)) )(

8eyes +. #nes9Luciano! -o. L9*).1(! 4ebruary .)! 1(2(! )) $C8A )<:. 8ules of Court! 8ule '! $ec. '.

PART III A !PECIAL CI=IL ACTION!

The special civil actions are

A@F 1nterpleader A9ule 82F.

A2F >eclaratory 9elief A9ule 8)F.

A)F Certiorari" Prohibition and Mandamus A9ule 86F.

A/F #uo $arranto A9ule 88F.

A6F ,$propriation A9ule 8;F.

A8F 5oreclosure of 9eal ,state ?ort!a!e A9ule 8EF.

A;F Partition A9ule 8BF.

AEF 5orcible ,ntry and Onlawful >etainer A9ule ;CF. and

ABF Contempt A9ule ;@F.

I. The D'33e&ent !0ec',* C'%'* Act'on(

1. Inte&0*e,-e&

1. Requisites

A@F The plaintiff claims no interest in the subject matter or his claim is not disputed.

A2F There must at least be two A2F or more conflictin! claimants.

A)F The parties to be interpleaded must ma#e effective claims. and

A/F The subject matter must be one and the same.

2. Decisional Rules

1nterpleader was found to be a proper action in an action of a lessee who does not #now to whom to pay rentals due to conflictin! claims on the property.)BC and in an action by a ban# where the purchaser of a cashier%s chec# claims it was lost and another has presented it for payment.)B@ 1t was however found to be improper in an action where defendants have conflictin! claims a!ainst the plaintiff.)B2 and an action where one of the defendants had earlier sued the plaintiff and secured a jud!ment a!ainst him which has already become final. The action is barred by laches or unreasonable delay.)B)

". Procedural Peculiarities

).@ Opon the filin! of the complaint" the court shall issue an order re(uirin! the conflictin! claimants to interplead with one another.)B/

).2 The court may direct in the same order mentioned in the precedin! para!raph that the subject matter of the suit be paid or delivered to the court.)B6

).) The summons shall be accompanied by copies of the complaint and order mentioned in 0o. @.

)./ The defendants may file a motion to dismiss on the !round of the impropriety of the interpleader action or on other appropriate !rounds specified in 9ule @8.

).6 The defendants shall serve a copy of the answer not only to the plaintiff but also to their co+ defendants who may file their reply thereto.

).8 The effect of a failure to plead within the prescribed period is that" upon motion" the defendant will be declared in default and thereafter renders jud!ment barrin! him from any claim in respect to the subject matter.

8. Dec*,&,to&/ Re*'e3 ,n- !'1'*,& Re1e-'e(

1. Requisites

: : : : : :

%a&CalinaIan +. 8odas! )< %hil. .)1 [1(*)]. Aesina +. #ntermediate Appellate Court! -o. L92<1*0! -o+ember 1:! 1()'! 1*0 $C8A *(2. (. Beltran +. %eopleEs Homesite and Housin& Corporation! -o. L9.01:)! Au&ust .)! 1('(! .( $C8A 1*0. (: 1acC 1acC 3olf and Country Club! #nc. +. 1on! -o. L9.:)01! Aarch .'! 1(2'! 2< $C8A 1'0. (* 8ules of Court! 8ule '.! $ec. .. (0 Ibid.
(< (1

A@F There must be a justiciable controversy.)B8

A2F The controversy must be between persons whose interest is adverse.

A)F The parties must have le!al interest in the controversy.

A/F The controversy must be ripe for judicial determination.)B; and

A6F The petition must be filed before there is a breach or violation.)BE

2. Procedural Peculiarities

2.@ The petition must be filed before there is a breach of contract or violation of the statute or ordinance.)BB

2.2 Third+party complainant is not allowed./CC

2.) ,$cept in actions for (uietin! of title" the court action on an action for declaratory relief is discretionary. Thus" the court motu proprio or upon motion may refuse to e$ercise the power to declare ri!hts and to construe instruments in any case where a decision would not terminate the uncertainty or controversy which !ave rise to the action or in any case where the declaration or construction is not necessary under the circumstances./C@

2./ 4hen a statute" e$ecutive order or any !overnment re!ulation or ordinance is alle!ed to be unconstitutional" the Solicitor+Deneral should be notified by the party assailin! the same./C2 1f the validity of a local !overnment ordinance is in (uestion" the prosecutor or attorney of the local !overnment should be notified./C)

". Declaratory Relief /mproper in the 8ollowin0 #ases

A@F to obtain judicial declaration of citi&enship./C/

: : : : * * * * *

,biles +. 8epublic! (. %hil. )'* [1(0:]. Board of ,ptometry +. Colet! 3. 8. -o. 1...*1! July :<! 1(('! .'< $C8A )). () 8ules of Court! 8ule ':! $ec. 1. (( Ibid. << Commissioner of Customs +. Cloribel! -o. L9.1<:'! June :<! 1(22! 22 $C8A *0(. <1 8ules of Court! 8ule ':! $ec. 0. <. Ibid.,$ec. :. <: Ibid.,$ec. *. <* /y %oco +. Commissioner of #mmi&ration! -o. L9..:1:! Aarch :1! 1(''! 1' $C8A '10D $in&son +. 8epublic! -o. L9 .1)00! January :<! 1(')! .. $C8A :0:.
(' (2

A2F to see# relief on moot (uestions or to resolve hypothetical" abstract or theoretical (uestions" or to decide claims which are uncertain./C6

A)F to resolve political issues or (uestions./C8

A/F to test the correctness or validity of a court decision./C;

A6F to determine hereditary ri!hts./CE

A8F when the petition is based upon the happenin! of a contin!ent event.

A;F when the petitioner is not the real party in interest./CB and

AEF when administrative remedies have not yet been e$hausted./@C

9. #ertiorari

1. Requisites

A@F * tribunal" board or officer e$ercises judicial or (uasi+judicial function.

A2F 1t or sMhe acts without or in e$cess of jurisdiction or with !rave abuse of discretion. and

A)F There is no appeal nor plain" speedy and ade(uate remedy in the ordinary cause of law.

2. 3erminolo0y

A@F 4ithout jurisdiction N absence of a le!al power to determine a case.

* * * * * *

Lim +. 8epublic! -o. L9.(0:0! 4ebruary .2! 1(21! :2 $C8A 2):. /ela Llana +. Commission on Elections! -o. L9*2.*0! /ecember (! 1(22! )< $C8A 0.0. <2 ;anda +. Aldaya! 0. ,.3. -o. 11! 0120 6$eptember 10! 1(0'7. <) Edades +. Edades! 0. ,.3. -o. 11! 01*( 6$eptember 10! 1(0'7. <( $antos +. A>uino! (* %hil. '0 [1(0:]. 1< ,llada +. Central BanC! -o. L911:02! Aay :1! 1('.! 0 $C8A .(2.
<0 <'

A2F ,$cess of jurisdiction N the court has jurisdiction but fails to comply with the conditions prescribed for its e$ercise./@@

A)F Drave abuse of discretion N judicial power is e$ercised capriciously" arbitrarily or despotically due to passion or personal hostility./@2

". #ertiorari '( not , 0&o0e& &e1e-/ '3 ,00e,* '( ,%,'*,b*e o& 't '( *o(t th&o+)h the 3,+*t o3 the 0et't'one&#:19 e5ce0t@

A@F appeal is not a speedy and ade(uate remedy./@/

A2F order is issued without or in e$cess of jurisdiction./@6

A)F in consideration of public welfare and for the advancement of public policy./@8

A/F order is a patent nullity./@;

A6F to avoid future liti!ation./@E

A8F to avoid a miscarria!e of justice./@B

A;F in furtherance of the broader interest of justice and e(uities./2C

:. Be3o&e certiorari c,n be ,%,'*e- o3# 0et't'one& (ho+*- 3'&(t 3'*e , 1ot'on 3o& &econ('-e&,t'on o3 the ch,**en)e- o&-e&# &e(o*+t'on o& -ec'('on#:81 e5ce0t 'n the 3o**o$'n) c,(e(@

A@F in the interest of justice and public welfare and advancement of public policy./22

* *

* * * * * * * * *

Leun& Ben +. ,EBrien! :) %hil. 1). [1(1)]D ;en&co +. Jocson! *: %hil. 210 [1(..]. 3amboa +. CruG! -o. L90'.(1! June .2! 1())! 1'. $C8A '*.D 4ilin+est Credit Corporation +. #ntermediate Appellate Court! -o. L9'0(:0! $eptember :<! 1())! 1'' $C8A 100. 1: /illena +. Court of Appeals! -o. L922''<! July .)! 1())! 1': $C8A ':<D "elasco "da. /e Caldito +. $e&undo! -o. L9 0)1)2! $eptember :<! 1().! 112 $C8A 02:. 1* $aludes +. %a=arillo! 2) %hil. 20* [1(*2]. 10 %hilippine -ational BanC +. 4lorendo! 3. 8. -o. '.<).! 4ebruary .'! 1((.! .<' $C8A 0).. 1' Jose +. Julueta! -o. L91'0()! Aay :1! 1('1! . $C8A 02*. 12 Aarcelo +. /e 3uGman! -o. L9.(<22! June .(! 1().! 11* $C8A '02. 1) $t. %eter Aemorial %arC! #nc. +. Campos! Jr.! -o. L9:).)<! Aarch .1! 1(20! ': $C8A 1)<. 1( Escudero +. /ulay! -o. L9'<02)! 4ebruary .:! 1())! 10) $C8A '(. .< Aarahay +. Aelicor! 3. 8. -o. **()<! 4ebruary '! 1((<! 1)1 $C8A )11. .1 Butuan Bay 1ood Export Corporation +. Court of Appeals! -o. L9*0*2:! April .)! 1()<! (2 $C8A .(2. .. Jose +. Julueta! supra! note *1'.
11 1.

A2F order was issued without or in e$cess of jurisdiction./2)

A)F order is a patent nullity/2/ as when petitioner%s ri!ht to due process was denied in the lower court/26 or petitioner has been unlawfully deprived of his ri!ht to appeal./28

A/F when relief is e$tremely ur!ent" there is no more need to wait for the resolution of a motion for reconsideration./2;

A6F when the (uestions raised and passed upon in the lower court are the same as those to be passed upon in the certiorari case./2E and

A8F (uestion is purely of law./2B

;. Re2+'&e1ent( Re),&-'n) the E5t&'n('c !+33'c'enc/ o3 the Pet't'on

A@F it must be verified./)C

A2F accompanied by a certificate of non+forum shoppin!./)@

A)F accompanied with certified true copy of the jud!ment" order or resolution subject thereof" copies of all pleadin!s and documents relevant and pertinent thereto./)2

A/F proof of service pursuant to 9ule @)" Section @. and

A6F if not filed and served personally" then" it should be accompanied by a written e$planation why personal service was not resorted to./))

1. 3ime to 8ile

* * * * * * * * * *

%hilippine Consumers 4oundation! #nc. +. -ational ;elecommunications Commission! -o. L9'::1)! -o+ember .0! 1():! 1.0 $C8A )*0. .* A>uino +. -ational Labor 8elations Commission! 3. 8. -o. ()1<)! $eptember :! 1((:! ..' $C8A 2'. .0 Bache and Co. 6%hil.7! #nc. +. 8uiG! -o. L9:.*<(! 4ebruary .2! 1(21! :2 $C8A ).:. .' -ational Electrification Administration +. Court of Appeals! -o. L9:.*(<! /ecember .(! 1():! 1.' $C8A :(*. .2 "da. de $ayman +. Court of Appeals! -o. L9.00('! April .)! 1():! 1.1 $C8A '0<. .) %eroxide %hilippines Corporation +. Court of Appeals! 3. 8. -o. (.)1:! July :1! 1((1! 1(( $C8A )).. .( Central BanC +. Cloribel! -o. L9.'(21! April 11! 1(2.! ** $C8A :<2. :< 8ules of Court! 8ule '0! $ec. 1. :1 Ibid. :. Ibid. :: 8ules of Court! 8ule 1:! $ec. 11.
.:

4ithin si$ty A8CF days from notice of decision" resolution or order sou!ht to be assailed" or from the denial of petitionerKs motion for reconsideration or new trial filed in due time after jud!ment./)/

2. Decisions

;.@ *s a !eneral rule" certiorari is not a proper remedy to assail the order of the trial court denyin! a demurrer to evidence in a civil case./)6 ?otion for reconsideration and" in case of denial" appeal" are the proper remedy.

:. P&oh'b't'on

1. Requisites

A@F a tribunal" corporation" board" officers or person unlawfully ne!lects the performance of an act which the law specifically enjoins as a duty arisin! from an office" trust" or station or unlawfully e$cludes another from the use or enjoyment of a ri!ht or office to which the plaintiff is entitled. and

A2F there is no other plain" speedy and ade(uate remedy in the ordinary course of law.

2. Decisional Rules

2.@ Mandamus is an appropriate remedy to compel a corporation to !rant its monthly salaried employees holiday pay./)8

2.2 Mandamus is not proper to compel a school to enroll a student for academic deficiencies because this involves the e$ercise by the school of discretion under academic freedom./);

2.) Mandamus will not lie a!ainst the President or Con!ress because of the principle that the judiciary is a co+e(ual department of the latter./)E

2./ 5ailure to e$haust administrative remedies is !enerally fatal to an action for mandamus./)B The
* * *

* *

8ules of Court! 8ule '0! $ec. *. Asian ;radin& Corporation +. Court of Appeals! 3. 8. -o. 2'.2'! 4ebruary 10! 1(((! :<: $C8A 10.. :' AantradeK4AAC /i+ision Employees and 1orCers 5nion +. Bacun&an! -o. L9*)*:2! $eptember :<! 1()'! 1** $C8A 01<. :2 5ni+ersity of the %hilippines +. Ayson! 3. 8. -o. )):)'! Au&ust 12! 1()(! 12' $C8A 021. :) $uanes +. Chief Accountant of the $enate! )1 %hil. )1) [1(*)] 8esolution on the Aotion for 8econsideration! )1 %hil. )22 [1(*)]. :( A>uino +. Aariano! -o. L9:<*)0! Aay :1! 1()*! 1.( $C8A 0:..
:* :0

e$ception is when the (uestion is purely of law.//C

;. =uo +arranto

1. Definition

* quo arranto is a prero!ative writ by which the Dovernment can call upon any person to show by what warrant he holds a public office or e$ercises a public franchise.//@

8. =uo +arranto ,( -'(t'n)+'(he- F&o1 E*ect'on Conte(t

1f the dispute is as to the countin! of votes or on matters connected with the conduct of the election" quo arranto is not the proper remedy but an election protest.//2 4hen the dispute is on the ineli!ibility of a person sou!ht to be ousted" quo arranto is the proper action.//)

". Peculiarities of Proceedin0s

).@ 4hen the Solicitor Deneral or a public prosecutor commences the action at the instance of another person" leave of court must first be secured.

).2 The motion for leave must be set for hearin! with notice to the respondent so that he may be heard. and

).) The court issues the order allowin! the filin! of the action within the period fi$ed therein.

<. E50&o0&',t'on 1. Requisites 8or ()ercise of Ri0ht

A@F due process of law N compliance with the rules set down A9ule 8;F.

A2F payment of just compensation. and

* * * *

,ne Heart $portin& Club! #nc. +. Court of Appeals! -o. L90:2(<! ,ctober .:! 1()1! 1<) $C8A *1'. : Aoran .<) [1(2<]. *. Caesar +. 3arrido! 0: %hil. (2 [1(.(]. *: 4ortuno +. %alma! -o. L92<.<:! /ecember 1)! 1()2! 10' $C8A '(1.
*< *1

A)F ta#in! must be for public use.///

2. 3wo $2& ta0es in ()propriation Proceedin0s

2.@ >etermination of the authority of the plaintiff to e$ercise the power of eminent domain and the propriety of its e$ercise in the conte$t of the facts. This sta!e is terminated by either an order of dismissal of the action or order of the condemnation declarin! that e$propriation is proper and le!al. These orders are final and therefore appealable.//6

2.2 >etermination of just compensation

This is done with the assistance of not more than three A)F commissioners. The order fi$in! just compensation is also final and appealable.//8 Just compensation is to be determined as of the date of the ta#in! of the propriety or the filin! of the complaint" whichever comes first.

G. Fo&ec*o(+&e o3 Re,* E(t,te 7o&t),)e

1. 3he jud0ment in a judicial foreclosure proceedin0 should:

A@F ma#e a findin! of the amount due the plaintiff includin! interest" cost and other char!es approved by the court.

A2F order defendant to pay said amount within a period of not less than ninety ABCF days nor more than one hundred twenty A@2CF days from entry of jud!ment. and

A)F if the defendant defaults" the court should order the sale at public auction of the mort!a!ed property.

2. Distinction %etween Ri0ht of Redemption and (quity of Redemption

,(uity of 9edemption is the ri!ht of the defendant mort!a!or to e$tin!uish the mort!a!e and retain ownership of the property by payin! the amount fi$ed in the decision of the court within ninety ABCF to one hundred twenty A@2CF days after entry of jud!ment or even after the foreclosure sale but prior to its confirmation.//; :n the other hand" ri!ht of redemption is the ri!ht !ranted to the debtor+mort!a!or" his successor+in+interest or any judicial creditor of said debtor+mort!a!or or any person havin! a lien in the
* * * *

J. A. ;uaGon and Co.! #nc. +. Land ;enure Administration! -o. L9.1<'*! June :<! 1(2<! :: $C8A )).. Aunicipality of Bi an +. 3arcia! 3. 8. -o. '(.'<! /ecember ..! 1()(! 1)< $C8A 02'. *' Ibid. *2 8ules of Court! 8ule ')! $ec. 0.D Limpin +. #ntermediate Appellate Court! -o. L92<()2! $eptember .(! 1())! 1'' $C8A )2.
** *0

property subse(uent to its mort!a!e or deed of trust under which the property is sold to redeem the property within one A@F year from the re!istration of the sheriffKs certificate of foreclosure sale.//E

5or as lon! as the sale have not been validly confirmed" the e(uity of redemption may be e$ercised by the mort!a!or or his successors+in+interest.//B

9. W&'t o3 Po((e(('on 'n J+-'c',* Fo&ec*o(+&e

*fter the foreclosure sale is confirmed" the court" upon motion" may issue a writ of possession to install the buyer at auction into possession of the property sold.

'. Deficiency :ud0ment

Some rules on deficiency jud!ment are

A@F * motion for deficiency jud!ment may be made only after the sale and after it becomes #nown that a deficiency e$ists./6C

A2F >eficiency jud!ment cannot be rendered a!ainst a non+resident defendant./6@

A)F 0o deficiency jud!ment may be rendered a!ainst the owner who is not a mort!a!or and has not assumed personal liability for the debt. The remedy is an ordinary action a!ainst the debtor./62

A/F 1f the debtor dies" the deficiency may be filed as a claim a!ainst his estate./6)

H. P,&t't'on

1. 3wo ta0es of the ,ction

@.@ 5irst Sta!e N >etermination of the propriety of partition

* * * * *

8ules of Court! 8ule :(! $ec. .(D /e Castro +. #ntermediate Appellate Court! -o. L92:)0(! $eptember .'! 1())! 1'0 $C8A '0*. *( Limpin +. #ntermediate Appellate Court! supra! note **2. 0< 3o+ernor of the %hilippine #slands +. ;orralba "iuda de $antos! '1 %hil. ')( [1(:0]. 01 El Banco Espa ol94ilipino +. %alanca! :2 %hil. (.1 [1(1)]. 0. %hilippine ;rust Co. +. Echaus ;an $iua! 0. %hil. )0. [1(.(]. 0: 8ules of Court! 8ule )'! $ec. 2.
*)

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. The order may also re(uire an accountin! of rents and profits recovered by the defendant. This order of partition is appealable./6/ 1f not appealed" then the parties may partition the common property in the way they want. 1f they cannot a!ree" then the case !oes into the second sta!e. 'owever" the order of accountin! may in the meantime be e$ecuted./66

@.2 Second Sta!e N The actual partitionin! of the subject property

This is also a complete proceedin! and the order or decision is appealable.

2. Prescription of ,ction

*ction for partition is unprescriptible for as lon! as the co+owners e$pressly or impliedly reco!ni&e the co+ ownership./68 'owever" if a co+owner repudiates the co+ownership and ma#es #nown such repudiation to the other co+owners" then partition is no lon!er a proper remedy of the a!!rieved co+owner. SMhe should file an accion reivindicatoria which is prescriptible./6;

". ome Decisions

).@ 4hen there was a prior partition" 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 ne!ate such partition. There can be no partition a!ain because there is no more common property./6E

).2 :ral partition of land when the same is fully consummated is valid and bindin! upon the parties thereto./6B

B. Fo&c'b*e Ent&/ ,n- Un*,$3+* Det,'ne&

1. -ature of ,ccion /nterdictal

1t is

A@F a special civil action involvin! a realty.

* * * * * *

0* 00 0' 02 0)

Airanda +. Court of Appeals! -o. L9::<<2! June 1)! 1(2'! 21 $C8A .(0. /e Aesa +. Court of Appeals! 3. 8. -o. 1<(:)2! April .0! 1((*! .:1 $C8A 22:.
Ci+il Code! Art. *(*.

8o>ue +. #ntermediate Appellate Court! -o. L920))'! Au&ust :<! 1())! 1'0 $C8A 11). -oceda +. Court of Appeals! 3. 8. -o. 11(2:<! $eptember .! 1(((! :1: $C8A 0<*. 0( Crucillo +. #ntermediate Appellate Court! 3. 8. -o. '0*1'! ,ctober .'! 1(((! :12 $C8A :01.

A2F subject to the 9ules on Summary Procedure.

A)F under the ori!inal e$clusive jurisdiction of first level courts.

A/F nature of the action is determined by the alle!ation of the complaint and the character of the relief sou!ht./8C and

A6F one co+owner may institute the action.

2. /mmediate ()ecution and >ow to tay /t

* decision ejectin! the defendant in a forcible entry or unlawful detainer case is immediately e$ecutory. 2ut the jud!e should not order immediate e$ecution in his decision./8@ There must be notice of the jud!ment/82 and a motion with notice to the adverse party./8)

To stay e$ecution" the defendant should

A@F perfect his appeal in due time.

A2F files a sufficient supersedeas bond" approved by the ?unicipal Trial Court. and

A)F durin! the pendency of the appeal" sMhe deposits with the appellate court the amount of rent due from time to time under the contract" if any" as determined by the jud!ment of the ?unicipal Trial Court on or before the tenth A@CthF day of each succeedin! month./8/ 2ut upon motion of the plaintiff within ten A@CF days from the perfection of the appeal to the 9e!ional Trial Court" the court may still issue a preliminary mandatory injunction to restore the plaintiff in possession if the court is satisfied that the defendantKs appeal is frivolous or dilatory" or that the appeal of the plaintiff is prima %acie meritorious./86

". /mportant Decisional Rules on ?nlawful Detainer

).@ * covenant to renew a lease contract which ma#es no provision as to the renewal or e$tension implies an e$tension or renewal upon the same terms as provided in the ori!inal lease contract./88

* *

* * * * *

Abrin +. Campos! 3. 8. -o. 0.2*<! -o+ember 1.! 1((1! .<: $C8A *.<. Lu +. $iapno! 3. 8. -o. A. A. A;J9:9((911((! July '! .<<<D 4elon&co +. /ictado! A. A. -o. 8;J9)'0<! June .)! 1((:! ..: $C8A '('. '. /y +. Court of Appeals! 3. 8. -o. (:20'! Aarch ..! 1((1! 1(0 $C8A 0)0. ': ?aI +. Anunciacion! A. A. -o. A;J9(:9)11! .*. $C8A 1. '* 8ules of Court! 8ule 2<! $ec. 1(. '0 Ibid., $ec. .<. '' Ledesma +. Ja+ellana! -o. L9001)2! April .)! 1():! 1.1 $C8A 2(*.
'< '1

).2 *n action for ejectment is not abated by the death of the defendant./8; The heirs become the substitute defendants./8E

).) 4here there is a defense of tenancy" there must be a preliminary hearin! on the (uestion of tenancy relations./8B 1f there is a prima %acie showin! of tenancy" the court should dismiss the case for lac# of jurisdiction Ajurisdiction belon!s to the >*9*2F./;C

)./ The lessee is not permitted to deny the lessor%s title./;@

).6 * person who occupies the land of another at the latter%s tolerance or permission" without any contract between them is necessarily bound by an implied promise that he will vacate upon demand" failin! which an action for unlawful detainer may be instituted a!ainst him./;2

This rule as to tolerance does not hold true in a case where there was forcible entry at the start" but the lawful possessor did not attempt to oust the intruder for over one A@F year" and only thereafter filed forcible entry suit followin! demand to vacate./;)

,lsewise stated" the tolerance must be presented ri!ht from the start of possession sou!ht to be recovered to cate!ori&e a cause of action as one of unlawful detainer./;/

).8 >emand upon a tenant may be oral./;6 1f demand is made upon the person found on the premises" it must be done by servin! upon him notice of such demand or by postin! such notice on the premises if no person be found thereon./;8

).; 4hen failure to pay rent or comply with the condition of lease is the !round for ejectment" plaintiff should !ive two A2F demands

A@F demand to pay rental or comply with conditions of the lease and if this is not complied with"

A2F demand to vacate within fifteen A@6F days in case of land or five A6F days in case of buildin!s from notice thereof. The two A2F demands may be embodied in one A@F letter./;; >emand to pay or comply ma#es lessee a deforciant while demand to pay and vacate is a
* * *

* * * * * * * *

"da. de $alaGar +. Court of Appeals! 3. 8. -o. 1.101<! -o+ember .:! 1((0! .0< $C8A :<0. Ca iGa +. Court of Appeals! 3. 8. -o. 11<*.2! 4ebruary .*! 1((2! .') $C8A '*<. '( #&nacio +. Court of 4irst #nstance of Bulacan! -o. L9.2)(29()! ,ctober .(! 1(21! *. $C8A )(D Bayo& +. -atino! 3. 8. -o. 11)'(1! July 0! 1(('! .0) $C8A :2). 2< Baranda +. %adios! -o. L9'1:21! ,ctober .1! 1()2! 10* $C8A 2.<. 21 8ules of Court! 8ule 1:1! $ec. : 6b7D 8eyes +. "illaflor! -o. L910200! Aay :<! 1('1! . $C8A .*2. 2. /aCudao +. Consolacion! -o. L90*20:! June .*! 1():! 1.. $C8A )22. 2: Au oG +. Court of Appeals! 3. 8. -o. 1<.'(:! $eptember .:! 1((.! .1* $C8A .1'. 2* 8efu&ia +. Court of Appeals 3.8. -o. 11).)* July 0! 1(('! .0) $C8A .11. 20 JaCihaca +. A>uino! 3. 8. -o. ):().! January 1.! 1((<! 1)1 $C8A '2. 2' 8ules of Court! 8ule 2<! $ec. .. 22 Jobel +. Abreu! 0. ,.3. -o. 2! :0(. 6July 1'! 1(0'7.
'2 ')

re(uirement for filin! the action for unlawful detainer.

).E 4hen the lease has e$pired" there is no need of prior demand to vacate. The lessor can immediately file an action for ejectment. >emand is necessary only when the !round for ejectment is failure to pay rent or comply with the conditions of the lease./;E

0otice and demand to vacate is" however" re(uired on a lease on a month+to+month period to render effective the termination of the lease upon the e$piration of the month" and prevent an implied renewal of the lease./;B

The notice provision is the one !iven after the e$piration of the lease period for the purpose of abortin! an implied renewal of the lease./EC

).B *n alternative demand to either renew the e$pired lease contract at a hi!her rental rate or vacate is not a definite demand to vacate and therefore" insufficient basis for the filin! of an action for unlawful detainer./E@

).@C 4hen there is no definite period for a lease but rental is paid from month to month" then under *rticle @8E; ACivil CodeF" the period is fi$ed which is from month to month. 4hen the lessor !ave the lessee a demand to vacate at the end of the month and he fails to do so" an action for unlawful detainer may be filed a!ainst him./E2

).@@ 9efusal to collect or accept rentals is not a defense. There must be consi!nation./E) *cceptance of bac# rentals after demand to vacate does not le!itimi&e possession./E/ Consi!nation must be where Sec. 6AbF provides either in court or in ban#" in the name of and with notice to the lessor and not elsewhere./E6

1E. Conte10t

Contempt of court is a defiance of the authority" justice or di!nity of the court" such conduct as tends to brin! the authority and administration of the law into disrespect of" to interfere with" or prejudice parties liti!ant or their witnesses durin! liti!ation. 1t is defined as a disobedience to the court by settin! up an opposition to its authority" justice and di!nity. 1t si!nifies not only a willful disre!ard or disobedience to the courtKs order but such conduct as tends to brin! the authority of the court and the administration of law into
* * *

* * *

* *

Co ;iamco +. /iaG! 20 %hil. '2. [1(*'7. 8i+era +. 4lorendo! supra, note :01D @ap +. CruG! 3. 8. -o. )(:<2! Aay )! 1((.! .<) $C8A '(.. )< Chua +. Court of Appeals! 3. 8. -o. L91<'02: Aarch .2! 1((0! '< $C8A 02D 3amboaEs #ncorporated +. Court of Appeals! -o. L9.:':*! July .(! 1(2'! 2. $C8A 1:1. )1 %enas! Jr. +. Court of Appeals! 3. 8. -o. 11.2:*! July 2! 1((*! .:: $C8A 2**. ). Crisostomo +. Court of Appeals! -o. L9*:*.2 Au&ust :<! 1().! 11' $C8A 1((. ): "eleG +. A+elino! -o. L9*)**)! 4ebruary .<! 1()*! 1.2 $C8A '<.D $oco +. Ailitante! -o. L90)('1! June .)! 1():! 1.: $C8A 1'<D 5y +. Court of Appeals! 3. 8. -o. 2)0:)! ,ctober .0! 1()(! 12) $C8A '21. )* Cursino +. Bautista! 3. 8. -o. 0<::0! Au&ust 2! 1()(! 12' $C8A '0. )0 Aedina +. Court of Appeals! 3. 8. -o. 1<*'10! Au&ust .*! 1((:! ..0 $C8A '<2.
2) 2(

disrepute or in some manner to impede the due administration of justice./E8

1. 3wo $2& kinds of #ontempt

A9efer to the Table of >ifferences 2etween >irect and 1ndirect Contempt" in%raF

2. 3wo $2& ,spects of #ontempt

2.@ Civil Contempt is the failure to do somethin! ordered to be done by a court or a jud!e for the benefit of the opposin! party therein./E;

2.2 Criminal Contempt is conduct directed a!ainst the authority and di!nity of a court or of a jud!e" as in unlawfully assailin! or discreditin! the authority and di!nity of a court or a jud!e or in doin! a forbidden act./EE

0ote * criminal contempt proceedin! is in the nature of a criminal or (uasi+criminal action and" therefore" punitive in nature. * civil contempt proceedin! is remedial and civil in nature.

". Decisions

).@ The violation of a T9: issued by the S,C or any (uasi+judicial tribunal is criminal contempt so that ac(uittal of the respondents is unappealable./EB

).2 * writ of e$ecution issued by a court after five A6F years from entry of final jud!ment is void and disobedience thereto does not constitute indirect contempt./BC

'. -ecessity of >earin0

Previous hearin! is re(uired under 9ule ;@" Section ) of the 9evised 9ules of Court" where an arrest and the subse(uent detention of petitioner for her failure to appear at a hearin! set by the trial jud!e is based on the commission of an indirect contempt. 4ithout that hearin!" the order violated the rules and deprived the petitioner of her liberty without due process./B@

4here a lawyer fails to obey a subpoena and li#ewise committed direct contempt for havin! disturbed the preliminary e$amination bein! conducted by the jud!e by repeatedly drivin! his jeep and hon#in! its horn
* * * * * *

Halili +. Court of #ndustrial 8elations! -o. L9.*)'*! April :<! 1()0! 1:' $C8A 11.. %eople +. 3odoy! 3. 8. -os. 110(<)9<(! Aarch .(! 1((0! .*: $C8A '*. )) Ibid. )( @asay +. 8ecto! 3.8. -o. 1.(0.1! $eptember 2! 1(((! :1: $C8A 2:(. (< Crucillo +. #ntermediate Appellate Court! 3.8. -o. '0*1'! ,ctober .'! 1(((. (1 Bulado +. -a+arro! 3.8. -o. 0(**.! 4ebruary .! 1())! En Banc! Ainute 8esolution.
)' )2

in the vicinity of the court session hall for which the lawyer was ordered arrested and confined in jail" the jud!e should issue a separate order for such direct contempt" and another order re(uirin! the lawyer to show cause why he should not be punished for disobedience to its process" to !ive the lawyer a chance to e$plain his failure to appear as a witness./B2

.. #ontempt by non9party

Denerally" no contempt is committed by one not a party to the case. The remedy a!ainst such person is either a civil or criminal action./B) 'owever" persons who are not parties in a proceedin! may be declared !uilty of contempt for willful violation of an order issued in a case if said persons are !uilty of conspiracy with any one of the parties in violatin! the CourtKs order./B/

1. Power to punish for contempt to be e)ercised in preser!ati!e not !indicti!e principle@ what constitutes disobedience

:nly in cases of clear and contumacious refusal to obey should the power be e$ercised. * bona %ide misunderstandin! of the terms of the order or of the procedural rules should not immediately cause the institution of contempt proceedin!s. %The power to punish for contempt of court should be e$ercised on the preservative and not on the vindictive principle. :nly occasionally should the court invo#e its inherent power in order to retain the respect without which the administration of justice must falter or fail. Such power bein! drastic and e$traordinary in its nature $$$ should not be resorted to $$$ unless necessary in the interest of justice./B6

TABLE 1 DIFFERENCE! A7ON" PRO=I!IONAL RE7EDIE!

>,5101T1:0

D9:O0>S

PO9P:S,

C:O9T 4'1C'

* * *

3ardones +. /el&ado! A. A. -o. 1.<9AJ! July .:! 1(2*! 0) $C8A 0). Ayo& +. Cusi! Jr.! 3. 8. -o. *'2.(! -o+ember 1(! 1().! 11) $C8A *(.. (* /esa Enterprises! #nc. +. $ecurities and Exchan&e Commission! 3. 8. -o. L9*0*:<! $eptember :<! 1().! 112 $C8A :.1. (0 "illa+icencio +. LuCban! :( %hil. 22) [1(1(]D 3amboa +. ;eodoro.! (1 %hil. .2< [1(0.]D $ulit +. ;ian&co! 3. 8. -o. L9 :0:::! July .<! 1().! 110 $C8A .<2D Lipata +. ;utaan! 3. 8. -o. L9'1'*:! $eptember .(! 1():! 1.* $C8A )22.
(. (:

C*0 D9*0T @. Preliminary *ttachment A9ule 6;F * provisional remedy issued upon order of the court where an action is pendin! to be levied upon the property or properties of the adverse party therein" the same to be held thereafter by the sheriff as security for the satisfaction of whatever jud!ment mi!ht be secured in said action by the attachin! party a!ainst the adverse party a. 1n an action for the recovery of a specified amount or dama!es" other than moral and e$emplary" on a cause of action arisin! from law" contract" (uasi+contract" delict or (uasi+delict a!ainst a party who is about to depart from the Philippines with intent to defraud his creditors. *s security for the satisfaction of any jud!ment that may be recovered by the claimant Supreme Court" Court of *ppeals" 9e!ional Trial Court" 5amily Court" ?etropolitan" ?unicipal and ?unicipal Circuit Trial Courts

b. 1n an action for money or property embe&&led or fraudulently misapplied or converted to his own use by a public officer" or an officer of a corporation" or an attorney" factor" bro#er" a!ent or cler#" in the course of his employment as such" or by any other person in a fiduciary capacity" or for a willful violation of duty.

c. 1n an action to recover the possession of property unjustly or fraudulently ta#en" detained or converted" when the property" or any part thereof" has been concealed" removed or disposed of to prevent its bein! found or ta#en by the applicant or an authori&ed person.

d. 1n an action a!ainst a party who has been !uilty of fraud in contractin! the debt or incurrin! the obli!ation upon which the action is brou!ht" or in the performance thereof.

e. 1n an action a!ainst a party who has removed or disposed of his property" or is about to do so" with intent to defraud his

creditors.

f. 1n an action a!ainst a party who does not reside and is not found in the Philippines" or on whom summons may be served by publication ASection @F 2. Preliminary 1njunction A9ule 6EF *n order !ranted at any sta!e of an action or proceedin! prior to the jud!ment or final order" re(uirin! a party or a court" a!ency or a person to refrain from a particular act or acts. 1t may also re(uire the performance of a particular act or acts" in which case it shall be #nown as a preliminary mandatory injunction ASection @F a. That the applicant is entitled to the relief demanded" and the whole or part of such relief consists in restrainin! the commission or continuance of the act or acts complained of" or in re(uirin! the performance of an act or acts" either for a limited period or perpetually. To preserve the status (uo or to resolve the last uncontested status (uo Supreme Court" Court of *ppeals" 9e!ional Trial Court" 5amily Court" ?etropolitan" ?unicipal and ?unicipal Circuit Trial Courts

b. That the commission" continuance or non+performance of the act or acts complained of durin! the liti!ation would probably wor# injustice to the applicant. or

c. That a party" court" a!ency or a person is doin!" threatenin!" or is attemptin! to do" or is procurin! or sufferin! to be done" some act or acts probably in violation of the ri!hts of the applicant respectin! the subject

of the action or proceedin!" and tendin! to render the jud!ment ineffectual ASection )F ). Temporary 9estrainin! :rder AT9:F *n order which may issue upon the filin! of an application for preliminary injunction forbiddin! the defendant to do the threatened act until a hearin! on the application can be had a. ?atter is of e$treme ur!ency. and To prevent !rave injustice and irreparable injury to the applicant before the application for a writ of preliminary injunction can be acted upon To preserve the property durin! the pendency of the liti!ation or to dispose of it accordin! to the jud!ment when it is finally rendered or otherwise to carry the jud!ment into effect Supreme Court" Court of *ppeals" 9e!ional Trial Court" 5amily Court" ?etropolitan" ?unicipal and ?unicipal Circuit Trial Courts

b. The applicant will suffer !rave injustice and irreparable injury before the matter can be heard on notice

/. 9eceivership

Provisional remedy by which the court appoints a receiver as its representative and in behalf of all the parties to an action for the purpose of preservin! and conservin! the property in liti!ation and to prevent possible wasta!e or dissipation or otherwise to carry the jud!ment into effect

a. 4hen it appears from the verified application" and such other proof as the court may re(uire" that the party applyin! for the appointment of a receiver has an interest in the property or fund which is the subject of the action or proceedin!" and that such property or fund is in dan!er of bein! lost" removed" or materially injured unless a receiver be appointed to administer and preserve it.

Supreme Court" Court of *ppeals" 9e!ional Trial Court" 5amily Court" ?etropolitan" ?unicipal and ?unicipal Circuit Trial Courts

b. 4hen it appears in an action

by the mort!a!ee for the foreclosure of a mort!a!e that the property is in dan!er of bein! wasted or dissipated or materially injured" and that its value is probably insufficient to dischar!e the mort!a!e debt" or that the parties have so stipulated in the contract of mort!a!e.

c. *fter jud!ment" to preserve the property durin! the pendency of an appeal" or to dispose of it accordin! to the jud!ment" or to aid e$ecution when the e$ecution has been returned unsatisfied or the jud!ment obli!or refuses to apply his property in satisfaction of the jud!ment" or otherwise to carry the jud!ment into effect.

d. 4henever in other cases" it appears that the appointment of a receiver is the most convenient and feasible means of preservin!" administerin! or disposin! of the property in liti!ation.

>urin! the pendency of an appeal" the appellate court may allow an application for the appointment of a receiver to be filed in and decided by the court of ori!in and the receiver appointed to be subject to the control of said court.

6. 9eplevin

Court orders the sei&ure of chattels or !oods claimed by a party as his which are alle!edly wron!fully ta#en or detained by another person and to be delivered to the former to be retained by him durin! the pendency of the action

a. *pplicant is the owner of the property claimed" particularly describin! it" or is entitled to the possession thereof.

To prevent the subject property from bein! disposed of durin! the pendency of the case

9e!ional Trial Court" 5amily Court" ?etropolitan" ?unicipal" and ?unicipal Circuit Trial Courts

b. The property is wron!fully detained by the adverse party" alle!in! the cause of detention thereof accordin! to the best of his #nowled!e" information

and belief.

c. The property has not been distrained or ta#en of a ta$ assessment or a fine pursuant to law" or sei&ed under a writ of e$ecution or preliminary attachment" or otherwise placed under custodia legis" or if so

sei&ed" that it is e$empt from such sei&ure or custody.

d. The actual mar#et value of the property. 8. Support &endente Lite :rder issued by a court in which an action for support 4hen e(uity and justice may re(uire havin! due re!ard to the probable outcome of the case To answer the material needs of the applicant 5amily Court

has been filed fi$in! an amount of support to be !iven by the adverse party to the applicant durin! the pendency of the case

and such other circumstances as may su!!est the reasonability of !rantin! support pendente lite

durin! the pendency of the case

TABLE 8 BA!IC CHARACTERI!TIC! OF PRO=I!IONAL RE7EDIE!

4',0 *H*17*27, @. Preliminary *ttachment *t any sta!e of the action but before

':4 D9*0T,> 7+<parteEor upon motion and hearin!

,55,CT1H1 TL >urin! the pendency of the case unless earlier dischar!ed

':4 >1SS:7H,>M>1SC'*9D, > 2y order of the court after notice and hearin! on the !round that the preliminary attachment was improperly or

entry of final jud!me nt

or (uashed by the court

irre!ularly issued or enforced or the bond is insufficient and when the adverse party ma#es a cash deposit or files a counterbond e$ecuted to the attachin! party with the cler# of court where the application

is made in an amount e(ual to that fi$ed by the court in the order of attachment" e$clusive of cost 2. Preliminary 1njunction *t any sta!e of the action Opon motion and hearin! >urin! the pendency of the case unless 2y order of the court upon affidavit of the party enjoined or if it appears after hearin!

but before jud!me nt or final order

earlier dischar!ed or (uashed by the court

that althou!h the applicant is entitled to the injunction or restrainin! order" the issuance or continuance thereof would cause irreparable dama!e to the party or person enjoined while the

applicant can be fully compensated for such dama!es as he may suffer and the former files a counterbond ). Temporary 9estrainin! :rder AT9:F >urin! the penden cy of Deneral 9ule "nter< partes 0ot more than 2C days from service a. Opon resolution by the court of the application for a writ of preliminary injunction

the applicati on for a writ of prelimin ary injunctio n

ASummary hearin!F

upon the person sou!ht to be enjoined

or the e$piration of the 2C+day period from service of the writ upon the party" whichever comes first.

,$ception T9: !ranted by Jud!e for

b. Opon affidavit of the party enjoined or after hearin! if it appears

;2 hours N 7+<parte

that althou!h the applicant is entitled to a T9:" the issuance or continuance thereof" would cause irreparable dama!e to the party enjoined while the applicant can be fully compensated

for such dama!e as he may suffer upon the applicantKs filin! of a counterbond

/. 9eceivership

*t any sta!e of the proceed in! and even after finality of jud!me

"nter<partes

Ontil dischar!ed by the court

a. 5ilin! by the adverse party of a counterbond.

b. 1f it is shown that the appointment of a receiver was obtained without sufficient cause.

nt c. The court motu proprio or on motion shall determine that the necessity of a receiver no lon!er e$ists

TABLE 9 DIFFERENCE! OF BOND! IN PRO=I!IONAL RE7EDIE! P9:H1S1:0*7 9,?,>L @. Preliminary attachment 4',T',9 9,GO19,> 9e(uired *?:O0T O0>,9T*Q10DS O0>,9 T', C:O0T,92:0> To pay

>iscretionary with the court but not e$ceedin! the applicantKs claim

@. *ll costs which may be adjud!ed to the adverse party. and

2. *ll dama!es which the adverse party may sustain by reason of the attachment if the court shall finally adjud!e that the applicant was not entitled thereto 2. Preliminary injunction 9e(uired >iscretionary with the court To pay all dama!es which the adverse party may sustain by reason of the injunction if the court shall finally decide that the applicant was not entitled thereto To pay all dama!es which the adverse party may sustain by reason of the injunction" if the court shall finally decide that the applicant was not entitled thereto To pay dama!es the

). Temporary 9estrainin! :rder AT9:F

9e(uired but the court may e$empt

4hen re(uired" discretionary with the court

/. 9eceivership

9e(uired

>iscretionary with the

court

adverse party may sustain by reason of the appointment of a receiver in case the applicant shall have procured such appointment without sufficient cause a. 5or the return of the property or its value to the adverse party if such be

6. 9eplevin

9e(uired

>ouble the value of the property

adjud!ed. and

b. To pay to defendant such dama!es as he may recover from the applicant in the action 8. Support pendente lite 0ot re(uired 0ot applicable 0ot applicable

TABLE :

DIFFERENCE! OF COUNTERBOND! IN PRO=I!IONAL RE7EDIE! P9:H1S1:0*7 9,?,>L 4',T',9 1T ?*L 2, 517,> *?:O0T O0>,9T*Q10DS O0>,9 T', C:O0T,92:0> Payment of any jud!ment that the attachin! party may recover in the action Pay all dama!es which the applicant may suffer by the denial or the dissolution of the injunction or restrainin! order Pay all dama!es which the applicant may suffer by the denial or the dissolution of the injunction or restrainin! order

@. Preliminary attachment

Les

,(ual to that fi$ed by the court in the order of attachment

2. Preliminary injunction

Les

>iscretionary with the court

). Temporary 9estrainin! :rder AT9:F

Les. 1f a bond was filed by the claimant" then a counterbond may be filed by the adverse party. but if no bond is filed by the former" what the adverse party can file is a bond Les

>iscretionary with the court

/. 9eceivership

>iscretionary with the court

To pay all dama!es which the applicant may suffer by reason of the acts" omissions" or other matters specified in the application or !round for such appointment a. The delivery of the property or its value to the plaintiff if so adjud!ed. and

6. 9eplevin

Les

>ouble the value of the property as stated in the plaintiffKs affidavit

b. To pay such dama!es which the plaintiff may recover a!ainst the defendant 8. *limony &endente Lite 0o 0ot applicable 0ot applicable

TABLE ;

DIFFERENCE! A7ON" THE THREE D9F 7ODE! OF APPEAL

:9>10*9L *PP,*7

P,T1T1:0 5:9 9,H1,4

*PP,*7 2L C7R5")R9R" 2y filin! a petition for review on certiorari 5rom the 9e!ional Trial Court to the Supreme Court on a pure (uestion of law" a decision of the 9e!ional Trial Court rendered in the e$ercise of its ori!inal jurisdiction

@. 'ow appeal is initiated

:rdinary appeal by notice of appeal or record on appeal

2y filin! a petition for review

2. 4here to appeal

a. 5rom the ?etropolitan" ?unicipal and ?unicipal Circuit Trial Courts to the 9e!ional Trial Courts" and from the 9e!ional Trial Courts to the Court of *ppeals in decisions of the 9e!ional Trial Court rendered in the e$ercise of their respective ori!inal jurisdictions

5rom the 9e!ional Trial Court to the Court of *ppeals" a decision of the 9e!ional Trial Court rendered in the e$ercise of its appellate jurisdiction

b. 5rom the ?etropolitan" ?unicipal and ?unicipal Circuit Trial Courts to the Court of *ppeals for decisions rendered by the said courts in the e$ercise of their dele!ated jurisdiction" in which case the ?etropolitan" ?unicipal and ?unicipal Circuit Trial Courts act as 9e!ional Trial Courts ). 0ature of appeal /. To whom appellate doc#et and other lawful fees should be paid 6. Payment of appellate doc#et and other lawful fees as a re(uirement of perfection of ?atter of ri!ht ?atter of appellate courtKs discretion Cler# of Court of the Court of *ppeals ?atter of appellate courtKs discretion Cler# of Court of the Supreme Court

Cler# of Court whose decision is bein! appealed

0ot a re(uisite for perfection of appeal but a !round for dismissal if not paid on time

* re(uirement for perfection of appeal

* re(uirement for perfection of appeal to be paid to the Cler# of Court of the *ppellate Court

appeal 8. 0ame of parties *ppellant N party appealin! Petitioner N party appealin! Petitioner N party appealin!

*ppellee N adverse party

9espondent N adverse party 9espondent N adverse party

;. 9e(uirement of record on

1n special proceedin!s and other cases of multiple or

0ot re(uired

0ot re(uired

appeal E. 2asic document to be filed in the appellate court

separate appeals a. 5rom the ?etropolitan" ?unicipal and ?unicipal Circuit Trial Court to the 9e!ional Trial Court" memorandum ?emoranda when re(uired by the Court of *ppeals ?emorandum when re(uired by the Supreme Court

b. 5rom the 9e!ional Trial Court to the Court of *ppeals"

briefs B. Perfection of appeal as to appellant Opon filin! of the notice of appeal in due time or if record on appeal is re(uired" upon approval of the record on appeal in due time Opon timely filin! of a petition for review and payment of correspondin! doc#et and other lawful fees Opon timely filin! of the petition for review on certiorari and payment of doc#et and other lawful fees Opon the perfection

@C. 4hen court

a. 1n appeal by notice of

Opon the perfection of the

whose decision is bein! appealed loses jurisdiction

appeal N upon perfection of the appeal filed in due time and the e$piration of the time to appeal of the other parties

appeals filed in due time and the e$piration of the time to appeal by the other parties

of the appeals filed in due time and the e$piration of the time to appeal by the other parties

b. 1n appeal by record on appeal N upon approval of the records on appeal filed in due time and the e$piration of its time to appeal of the other parties

@@. *s to (uestions which may be raised @2. 'ow parties are referred to

Guestion of fact" (uestion of law and (uestion of fact and law *ppellant N party appealin!

Guestion of fact" (uestion of law" (uestion of fact and law

:nly (uestion of law

Petitioner N party appealin!

Petitioner N party appealin!

*ppellee N adverse party

9espondent N adverse party 9espondent N adverse party

TABLE < DIFFERENCE! BETWEEN #(R3/7R,R/* PROHIBITION AND M,-D,M?

C7R5")R9R" @. Purpose of the writ To annul or modify an act performed by respondent

P9:'121T1:0 To prevent commission or carryin! out the act

M9N/9MFS Compel the performance or act desired 7e!al duty

2. *ct sou!ht to be controlled ). 9espondent

Judicial or (uasi+judicial functions Persons e$ercisin! judicial or (uasi+judicial functions

Judicial" (uasi+judicial or ministerial functions Persons e$ercisin! judicial" (uasi+judicial and ministerial functions Preventive remedy and refers to acts still to be done

Persons havin! le!al duty

/. 0ature of the remedy

Corrective remedy and refers to acts already consummated

>irectory remedy commandin! a person to do a le!al duty

TABLE G DIFFERENCE! BETWEEN PROHIBITION AND INJUNCTION

P9:'121T1:0

10JO0CT1:0

@. 9espondent

Denerally a court" tribunal or person e$ercisin! judicial or ministerial functions 7ac# or e$cess of jurisdiction may be a !round

Denerally a!ainst a party in an action for injunction Jurisdiction of the court is not (uestioned Can be a main action with preliminary injunction as a provisional remedy

2. CourtKs jurisdiction ). 0ature of the remedy

*lways a main action with preliminary injunction as a provisional remedy

TABLE H

DIFFERENCE! BETWEEN FORCIBLE ENTRY AND UNLAWFUL DETAINER

5:9C127, ,0T9L @. 0ature of defendantKs possession 2. >emand to vacate ). Proof of prior possession /. 5rom what point is the one A@F year period to file action counted Onlawful from the be!innin!

O07*45O7 >,T*10,9 1nitially lawful" then it becomes unlawful

0o need Plaintiff must prove it 5rom forcible entry

There is a need 0ot necessary for plaintiff to prove it 5rom demand to vacate

!PECIAL PROCEEDIN"!
1. INTRODUCTION 1. De3'n't'on o3 te&1(@

@. Special proceedin! * special proceedin! is a remedy by which a party see#s to establish a status" a ri!ht" or a particular fact.@

2. Probate Probate is a special proceedin! to establish the validity of a will. 0o will passes property unless it is probated by a court. Probate is mandatory. 1t is in rem. 'ence" the court is also called a probate court. 2ut a probate court also includes a court that presides over probate proceedin!s which can !enerally refer to the settlement of the estate of a deceased person with or without a will.

). 9eprobate 9eprobate is a special proceedin! to establish the validity of a will proved in a forei!n country.

/. 7e!acy * le!acy is a be(uest of personal property in a will to a person called the le!atee.2

6. >evise * devise is a be(uest of real property in a will to a person called the devisee.)

8. Testate ,state8 Testate estate refers to an estate of a deceased person which is settled or to be settled with the last will and testament of that deceased person called the testator./

;. 1ntestate ,state 1ntestate estate refers to the estate of a deceased person without a will. The estate is settled by the laws of intestacy provided in the Civil Code.

E. ,$ecutor *n e$ecutor is the person named in the will who is entrusted to implement its provisions. 2ut the e$ecutor needs to be issued letters testamentary after the court determines his or her (ualifications. * female e$ecutor is called e$ecutri$.6

B. *dministrator *n administrator is the person entrusted with the care" custody and mana!ement of the estate of a deceased person until the estate is partitioned and distributed to the heirs" le!atees and devisees" if any. * female administrator is called administratri$.8

B.@ The court issues letters of administration to a person after sMhe (ualifies in the sound discretion
1 . : * 0 '

8ules of Court! 8ule 1! $ec. : 6c7. Ci+il Code! Art. 2).! par. .. Ibid. Ci+il Code! Art. 220. 8ules of Court! 8ule 2). . Ibid

of the court.

B.2 1t is possible that a will can be probated without a testator or with a testator who is dis(ualified to enter upon the trust. 'ence" the court can issue letters of administration with the will anne$ed.

@C. ,scheat ,scheat" a term of 5rench or 0orman derivation meanin! chance or accident" is the reversion of property to the State when the title thereto fails from defect of an heir. 1t is the fallin! of a decedent%s estate into the !eneral property of the State.

@@. Duardians * !uardianship is a trust relation in which one person acts for another whom the law re!ards as incapable of mana!in! his own affairs. The person who acts is called the !uardian and the incompetent is called the ward.

@2. Trustee * trustee is a person appointed by a court to carry out the provisions of a will" as provided in 9ule BE. *s !enerally understood" a trust is the le!al relationship between one person havin! an e(uitable ownership in property and another person ownin! the le!al title to such property. The beneficiary of the trust is #nown as the cestui que trust or the cestui que trustent Athe plural formF.

@). 5ideicommissary substitution 5ideicommissary substitution ta#es place where the testator desi!nates a person as an heir char!in! him to deliver to another the whole or part of the inheritance under circumstances provided in *rt. E8) of the Civil Code" formerly *rt. ;E@ of the Spanish Civil Code. 1n the civil+law jurisdiction" this is the nearest e(uivalent of the concept of trust in the common+law jurisdiction.

@/. Habeas corpus8 The 7atin term habeas corpus which literally means %you have the body"% is a hi!h prero!ative writ" of ancient common+law ori!in" the !reat object of which is the liberali&ation of those who may be imprisoned without sufficient cause. 2asically" it is a writ directed to the person detainin! another" commandin! him to produce the body of the prisoner at a desi!nated time and place" with the day and cause of his capture and detention" to do" submit to" and receive whatsoever the court or jud!e awardin! the writ shall consider in that behalf.;

@6. *doption *doption is a juridical act which creates between two persons a relationship similar to that which results from le!itimate paternity and filiation.E

@8. Chan!e of 0ame Chan!e of name is a judicial proceedin! in rem" re(uirin! publication" and may be ordered by the court if proper and reasonable cause e$ists to justify it.

@;. 5amily 'ome The 5amily 'ome is the dwellin! house where a husband and wife" or an unmarried head of a family resides" and the land on which it is situated" which is now deemed constituted from the time it is occupied as a family residence" and is e$empt from e$ecution" forced sale or attachment e$cept as provided by law and to the e$tent of the value allowed by law.B

2 ) (

. %ayna&a +. 1olfe! . %hil. 1*' [1(<:]. %rasniC +. 8epublic () %hil. ''0 [1(0']. Ci+il Code! Arts. 10. and 10:.

0ote 9ule @C8" which provides for the judicial constitution of a 5amily 'ome" is already e$tinct !oin! by the 5amily Code which does not re(uire a judicial constitution of the 5amily 'ome.

@E. *bsentees *n absentee is a person whose whereabouts and e$istence are not #nown in the sense of the law allowin! a subse(uent marria!e and for purposes of administration of the estate of the absentee and of succession.

@B. Civil 9e!istry The civil re!istry is the public record where acts" events and judicial decrees concernin! the civil status of persons are entered.@C

2C. ?ultiple *ppeals ?ultiple appeals are appeals in special proceedin!s" as first provided in the 1nterim 9ules of Court" where a number of appeals may be ta#en separately or simultaneously by different parties for different purposes. * record on appeal is necessary in order not to prejudice the proceedin!s that will have to continue and that may have to stop or be suspended if the entire record of the proceedin!s is elevated. 8. R+*e( Th,t "o%e&n !0ec',* P&ocee-'n)( @. The @BB; 9ules of Civil Procedure shall !overn the procedure to be observed in actions" civil or criminal" and special proceedin!s.@@

2. 1n the absence of special provisions" the rules provided for in ordinary actions shall be" as far as practicable" applicable in special proceedin!s.@2

2.@ 9ules re!ardin! the preparation" filin! and service of applications" motions and other papers" are the same in civil actions and in special proceedin!s. Provisions re!ardin! the omnibus motion rule" subpoena" computation of time" motion for new trial" discovery" and trial before commissioners also apply in special proceedin!s. The procedure of appeal is !enerally the same in civil actions as in special proceedin!s.@)

2.2 The rule on demurrer to evidence in civil cases" by virtue of which the defendant does not lose the ri!ht to offer evidence in the event that his motion is denied" is applicable in special proceedin!s.@/ 9. The !0ec',* P&ocee-'n)( P&o%'-e- In The R+*e( O3 Co+&t @. Settlement of estate of deceased persons A9ules ;) to BCF.

2. ,scheat A9ule B@F.

). Duardianship and custody of children A9ules B2+B;F.

1 1 1 1 1
< 1 . : *

Ci+il Code! Art. *<2.

. 8ules of Court! 8ule 1! $ec. :D $untay +. Co=uan&co9$untay! 3. 8. -o. 1:.0.*! /ecember .(! 1(()! :<< $C8A 2'< 8ules of Court! 8ule 2.! $ec. . 4ernandeG +. Aara+illa! -o. L91)2((! Aarch :1! 1('*! 1< $C8A 0)(. Aatute +. Court of Appeals! -o. L9.'201! January :! 1('(! .' $C8A 2').

/. Trustees A9ule BEF.

6. *doption A9ule BBF.

8. 9escission and revocation of adoption A9ule @CCF.

;. 'ospitali&ation of insane persons A9ule @C@F.

E. Habeas corpus A9ule @C2F.

B. Chan!e of name A9ule @C)F.

@C. Holuntary dissolution of corporations A9ule @C/F which under Presidential >ecree 0o. BC2+*" should be filed with the Securities and ,$chan!e Commission and !overned by specific rules.

@@. Judicial approval of voluntary reco!nition of minor natural children A9ule @C6F.

@2. Constitution of the 5amily 'ome A9ule @C8F" rendered ine$istent by the 5amily Code which provides for an automatic constitution of the family home.

@). >eclaration of absence and death A9ule @C;F. and

@/. Cancellation or correction of entries in the civil re!istry A9ule @CEF.

D. !0ec',* P&ocee-'n)( Un-e& =,&'o+( L,$(

@. Summary Proceedin!s under the 5amily Code

2. *ctions mentioned in the 5amily Courts *ct of @BB; A9ep. *ct 0o. E)8BF

2.@ Petitions on foster care and temporary custody

2.2 >eclaration of nullity of marria!e under *rticle )8" 5amily Code

2.) Cases of domestic violence a!ainst women and children Aspecial provisional remedies and temporary custody of children and support pendente liteF

). Proceedin!s under the Child and Louth 4elfare Code APres. >ecree 0o. @CE)F" the Child *buse *ct A9ep. *ct 0o. ;8@CF and the Child ,mployment *ct A9ep. *ct 0o. ;86EF

).@ >eclaration of status as abandoned" dependent or ne!lected children

).2 Holuntary or involuntary commitment of children

).) Suspension" termination" or restoration of parental authority

/. 1nter+country adoption under 9epublic *ct 0o. EC/)

;. J+&'(-'ct'on o3 F,1'*/ Co+&t(

The newly constituted 5amily Courts shall have e$clusive ori!inal jurisdiction over the followin! cases

@. Criminal cases where one or more of the accused is below ei!hteen A@EF years of a!e but not less than nine ABF years of a!e" or where one or more of the victims is a minor at the time of the commission of the offense. &rovided, that if the minor is found !uilty" the court shall promul!ate the sentence and ascertain any civil liability which the accused may have incurred. The sentence" however" shall be suspended without need of application pursuant to Presidential >ecree 0o. 8C)" otherwise #nown as the %Child and Louth 4elfare Code.%

2. Petitions for !uardianship" custody of children" habeas corpus in relation to the latter.

). Petitions for adoption of children and the revocation thereof.

/. Complaints for annulment of marria!e" declaration of nullity of marria!e and those relatin! to marital status and property relations of husband and wife or those livin! to!ether under different status and a!reements and petitions for dissolution of conju!al partnership of !ains.

6. Petitions for support andMor ac#nowled!ment.

8. Summary judicial proceedin!s brou!ht under the provisions of ,$ecutive :rder 0o. 2CB" otherwise #nown as the %5amily Code of the Philippines.%

;. Petitions for declaration of status of children as abandoned" dependent or ne!lected children" petitions for voluntary or involuntary commitment of children. the suspension" termination" or restoration of parental authority and other cases co!ni&able under

Presidential >ecree 0o. 8C)" ,$ecutive :rder 0o. 68" ASeries of @BE8F" and other related laws.

E. Petitions for the constitution of the family home A0ote This is no lon!er necessaryF.

B. Cases a!ainst minors co!ni&able under the >an!erous >ru!s *ct" as amended.

@C. Hiolations of 9epublic *ct 0o. ;8@C" otherwise #nown as the %Special Protection of Children *!ainst Child *buse" ,$ploitation and >iscrimination *ct"% as amended by 9epublic *ct 0o. ;86E. and

@@. Cases of domestic violence a!ainst

@@.@ 4omen +++ which are acts of !ender+based violence that result" or are li#ely to result in physical" se$ual or psycholo!ical harm or sufferin! to women. and other forms of physical abuse such as batterin! or threats and coercion which violate a woman%s personhood" inte!rity and freedom of movement. and

@@.2 Children +++ which include the commission of all forms of abuse" ne!lect" cruelty" e$ploitation" violence" and discrimination and all other conditions prejudicial to their development.

1f an act constitutes a criminal offense" the accused or batterer shall be subject to criminal proceedin!s and the correspondin! penalties.

1f any (uestion involvin! any of the above matters should arise as an incident to any case pendin! in the re!ular courts" said incident shall be determined in that court.

8. !ETTLE7ENT OF E!TATE OF DECEA!ED PER!ON! 1. In "ene&,*

@. Jurisdiction and Henue

@.@ The settlement of the estate of deceased persons shall be in the court of the place of residence of the deceased at the time of his death" whether he is a citi&en or an alien.

@.2 1f the deceased is an inhabitant of a forei!n country" then the settlement shall be in the court of any place in which he had estate.

0ote Sec. @" 9ule ;)" 9ules of Court which substantially contains the fore!oin! rules still remain unamended after the passa!e of 6atas 6lg. @2B. Said Sec. @ still spea#s of %Court of 5irst 1nstance"% instead of %9e!ional Trial Court% and %province% which in other parts of the 9ules had been chan!ed to %place.% 2ut under 2atas 2l!. @2B" the jurisdiction over settlement proceedin!s is not limited to 9e!ional Trial Courts but include ?etropolitan Trial Courts" ?unicipal Trial Courts" and ?unicipal Circuit Trial Courts" where the value of the estate does not e$ceed Php 2CC"CCC outside or in ?etro ?anila" Php 2CC"CCC.@6 :utside ?etro ?anila" the amount was at first fi$ed at Php @CC"CCC but this was increased to Php 2CC"CCC. *fter another five years" the jurisdictional amount will be Php )CC"CCC outside ?etro ?anila where the amount will become Php /CC"CCC.@8

@.) The jurisdiction of a probate court is determined by the place of residence of the deceased person or of the location of his estate" but the matter really constitutes venue.@;

@./ 1mportant rule

The jurisdiction assumed by a court" so far as it depends on the place of residence of the decedent" or of the location of his estate" shall not be contested in a suit or proceedin!" e$cept in an appeal from that court" in the ori!inal case" or when the want of jurisdiction appears on the record.@E This is to preclude different courts from assumin! jurisdiction.@B

@.6 The term %resides% refers to %actual residence% as distin!uished from %le!al residence% or domicile.%2C

@.8 The li(uidation of the conju!al or community property of a deceased husband or wife shall be made in his or her estate proceedin!s" but if both spouses are deceased" then in the estate proceedin! of either.2@

@.; Shari(a Courts have e$clusive ori!inal jurisdiction in matters of settlement of the estate of deceased ?uslims.22 8. 'n-( o3 (ett*e1ent :n the basis of the form of settlement" there are three #inds

2.@ ,$trajudicial settlement.

1 1 1 1 1

B. %. Bl&. 1.(! $ecs 1( 6*7 and :: 617! as amended. 8ep. Act -o. 2'01! $ec. 0. 2 3arcia 4ule +. Court of Appeals! -o. L9*<0<.! -o+ember .(! 1(2'! 2* $C8A 1)(. ) 8ules of Court! 8ule 2:! $ec. 1! last sentence. ( Cuenco +. Court of Appeals! -o. L9.*2*.! ,ctober .'! 1(2:! 0: $C8A :'<. 2C Pilipinas Shell Petroleum Corporation v. >umlao" D. 9. 0o. //EEE" 5ebruary ;" @BB2" 2C8 SC9* /C.
0 '

. .

1 .

8ules of Court! 8ule 2:! $ec. .. %residential /ecree -o. 1<):! Art. 1*:.

2.2 Summary settlement of estates of small value. and

2.) Judicial settlement throu!h letters testamentary or letters of administration with or without the will anne$ed.

9. E5t&,4+-'c',* (ett*e1ent

*n e$trajudicial settlement may be made by the heirs of a deceased person without havin! to secure letters of administration.2)

).@ The followin! re(uisites must be present or followed

).@.@ The decedent left no will and no debts.

0ote 1t shall be presumed that the decedent left no debts if no creditor files a petition for letters of administration within two A2F years after the death of the decedent.2/

).@.2 * bond e(uivalent to the value of the personal property of the estate is posted with the 9e!ister of >eeds.

0ote The value must be certified to under oath by the parties concerned and the bond must be conditioned upon the payment of any just claim that may be filed.26

).@.) The fact of settlement is published in a newspaper of !eneral circulation once a wee# for three A)F consecutive wee#s.

0ote 0o e$trajudicial settlement shall be bindin! upon any person who has not participated therein or had no notice thereof.28

).2 The e$trajudicial settlement may follow any one of three A)F ways

).2.@ Public instrument.+ * public instrument is e$ecuted by all the heirs to be filed with the 9e!istry of >eeds.

).2.2 *ction for Partition.+ 1f the heirs cannot a!ree on the division of the estate" an
. . . .

8ules of Court! 8ule 2*! $ec. 1. Ibid. 0 Ibid. ' 8ules of Court! 8ule 2*! $ec. 1.
: *

ordinary action for partition may be filed.

).2.) *ffidavit of self+adjudication.+ 1f there is only one heir" then the heir may e$ecute an affidavit adjudicatin! to himself or herself the entire estate" which affidavit shall be filed with the re!ister of deeds.2;

).) ?inor heirs

1f there are minor heirs" they may be represented by their -judicial or le!al representatives duly authori&ed for the purpose.-2E :. !+11,&/ (ett*e1ent o3 e(t,te( o3 (1,** %,*+e /.@ 4hen the !ross value of the estate of a deceased person does not e$ceed Php @C"CCC.CC" 2B upon a proper petition" the court havin! jurisdiction" )C may proceed summarily to settle the estate" without the appointment of an e$ecutor or administrator" and without delay.

/.2 The petition may be filed by an interested person which should ma#e such value appear to the court.

/.) The hearin! on the petition shall be held not less than one A@F month nor more than three A)F months from the date of the last publication of the notice.

/./ The notice shall be published once a wee# for three A)F consecutive wee#s in a newspaper of !eneral circulation in the province. 0otice shall also be !iven to all interested persons as the court may direct.

/.6 *fter hearin!" the court may !rant" if proper" allowance of the will" if any there be" determine the persons le!ally entitled to participate in the estate" and apportion and divide it amon! them after payment of the debts of the estate.

/.8 Those who are entitled to the estate" if they are of a!e and with le!al capacity" or by their !uardians and trustees le!ally appointed and (ualified" shall be entitled to receive their share of the estate.

/.; The court may issue an order respectin! the costs of the proceedin!s.
. . .

Ibid. Ibid. ( 8ules of Court! 8ule 2*! $ec. .. )C 0o lon!er the Court of 5irst 1nstance as provided in Sec. 2" 9ule ;/ but a ?etropolitan or ?unicipal Court because the value of the property does not e$ceed Php 2CC"CCC for both ?etro ?anila and outside ?etro ?anila A2.P. 2l!. @2B" Sec. ))[@]. 9.*. 0o. ;8B@" Sec. 6.F.
2 )

/.E *ll orders and jud!ments shall be recorded in the office of the cler#" and the order of partition or award" if it involves real estate" shall be recorded in the proper re!ister%s office.

0o lon!er the Court of 5irst 1nstance as provided in Sec. 2" 9ule ;/ but a ?etropolitan or ?unicipal Court because the value of the property does not e$ceed Php 2CC"CCC for both ?etro ?anila and outside ?etro ?anila A2.P. 2l!. @2B" Sec. ))[@]. 9.*. 0o. ;8B@" Sec. 6.F. ;. J+-'c',* (ett*e1ent $'th *ette&( te(t,1ent,&/ o& $'th *ette&( o3 ,-1'n'(t&,t'on Settlement shall otherwise be in court in special proceedin!s throu!h a full+blown procedure with either a testator or an e$ecutor mana!in! the estate of the deceased until partition and distribution after the payment of debts" le!acies and devises. 8. P&ob,te o3 W'**( @. 4ill" e$plained

* will is an act whereby a person is permitted with all the formalities prescribed by law to control to a certain de!ree the disposition of his estate" to ta#e effect after his death. )@ 1t is otherwise called a %last will and testament.%

@.@ 1t may be a notarial will with certain important re(uisites.

@.@.@ ,very will must be in writin! and e$ecuted in a lan!ua!e or dialect #nown to the testator.)2

@.@.2 ,very will" other than a holo!raphic will" must be subscribed at the end thereof by the testator himself or by the testator%s name written by some other person in his presence" and by his e$press direction" and attested and subscribed by three A)F or more credible witnesses in the presence of the testator and of one another.))

@.@.) The attestation shall state the number of pa!es used upon which the will is written" and the fact that the testator si!ned the will and every pa!e thereof" or caused some other person to write his name" under his e$press direction" in the presence of the instrumental witnesses" and that the latter witnessed and si!ned the will and all the pa!es thereof in the presence of the testator and of one another.)/

@.@./ ,very will must be ac#nowled!ed before a notary public by the testator and the witnesses.)6

: : : : :

Ci+il Code! Art. 2):. Ci+il Code! Art. )<*. : Ibid, Art. )<0! first para&raph. * Ibid, Art. )<0! third para&raph. 0 Ibid, Art. )<'.
1 .

@.@.6 1f the will is not contested" only one A@F subscribin! witness needs to testify. )8 if the will is contested" all subscribin! witnesses and the notary must testify.);

@.2 1t may be a holo!raphic will if it is in the handwritin! of the testator" but it must be entirely written" dated and si!ned by him.

@.2.@ 1t is subject to no other form" may be made in or out of the Philippines" and needs no witnesses.)E

@.2.2 *t least one witness should testify that the will and the si!nature thereon are in the handwritin! of the testator.)B 1f the holo!raphic will is contested" at least three A)F witnesses who #now the handwritin! of the testator must testify but in the absence of any competent witness" if the court deems it necessary" e$pert testimony may be resorted to./C 8. T'1e to (+b1't to the co+&t 2.@ 9e!lementary periods

2.@.@ 4ithin twenty A2CF days from #nowled!e of the death of the testator" the custodian of a will shall deliver it to the court havin! jurisdiction or to the e$ecutor named in the will./@

2.@.2 :n the other hand" the e$ecutor has twenty A2CF days from #nowled!e of the death of the testator or #nowled!e of the fact that he is named e$ecutor to submit the will to the court unless the will has reached the court already. 4ithin the same period" he shall si!nify to the court in writin! whether he accepts or refuses the trust./2

2.2 Penalties

2.2.@ * person who ne!lects to comply with the fore!oin! two provisions" without e$cuse satisfactory to the court" shall be fined not e$ceedin! Php 2"CCC.CC.

2.2.2 The custodian who refuses to comply with the order of the court to deliver the will" when he is ordered to do so" may be committed to prison until he delivers the will. 9. P&oce-+&e In The P&ob,te o3 A W'** ).@ The contents of a petition for the allowance of a will are

: : : : * * *

8ules of Court! 8ule 2'! $ec. 0. Ibid, $ec. 11. ) Ci+il Code! Art. )1<. ( Ibid, Article )11D 8ules of Court! 8ule 2'! $ec. 0. < 8ules of Court! 8ule 2'! $ec. 11! second para&raph. 1 . Ibid, 8ule 20! $ec. .. . Ibid, $ec. :.
' 2

).@.@ The jurisdictional facts.

).@.2 The names" a!es" and residences of the heirs" le!atees" and devisees of the testator or decedent.

).@.) The probable value and character of the property of the estate.

).@./ The name of the person for whom letters are prayed.

).@.6 1f the will has not been delivered to the court" the name of the person havin! custody of it.

0ote 2ut no defect in the petition shall render void the allowance of the will" or the issuance of letters testamentary or of administration with the will anne$ed./)

).2 Time for provin! the will

The court shall fi$ a time and place for provin! the will when all concerned may appear to contest the allowance thereof.//

0ote 'owever" the court need not !o throu!h the probate of a will that preterited a compulsory heir since preterition invalidates the will./6

).) Publication of notice

The court shall cause notice of such time and place to be published three A)F wee#s successively" previous to the time appointed" in a newspaper of !eneral circulation in the province./8

0ote 4here the petition for probate has been filed by the testator himself" no newspaper publication shall be made./;

)./ Persons entitled to notice/E)./.@ 'eirs" devisees" le!atees" and e$ecutors should be notified by mail or personally.

* * * * * *

. 8ules of Court! 8ule 2'! $ec. .. 8ules of Court! 8ule 2'! $ec. :. 0 -u&uid +. -u&uid! 3. 8. -o. L9.:**0! June .:! 1(''! 12 $C8A **( ' 8ules of Court! 8ule 2'! $ec. :. 2 Ibid. ) 8ules of Court! 8ule 2'! $ec. *.
: *

)./.2 The mail should be deposited in the post office with the posta!e thereon prepaid at least twenty A2CF days before the hearin!" if the places of residence be #nown.

)./.) Personal service of copies of the notice at least ten A@CF days before the day of hearin! shall be e(uivalent to mailin!.

)././ 1f the testator as#s for the allowance of his own will" notice shall be sent only to his compulsory heirs.

).6 Proof at hearin!/B

*t the hearin!" compliance with the provisions on notice and its publication must be shown before the introduction of testimony in support of the will. *ll testimony shall be ta#en under oath and reduced to writin!.

).8 7ost or destroyed will6C

0o will shall be proved as a lost or destroyed will unless

).8.@ the e$ecution and validity of the same be established. and

).8.2 the will is proved to have been in e$istence at the time of the death of the testator" or is shown to have been fraudulently or accidentally destroyed durin! the lifetime of the testator without his #nowled!e. nor

).8.) unless its provisions are clearly and distinctly proved by at least two A2F credible witnesses.

).; >eposition6@

1f none of the subscribin! witnesses resides in the province" the court may" on motion" direct a deposition to be ta#en" and may authori&e a photo!raphic copy of the will to be made and to be presented to the witness on his e$amination.

).E Onavailable witnesses62

* 0 0 0

Ibid, $ec. 0. Ibid, $ec. '. 1 8ules of Court! 8ule 2'! $ec. 2. . Ibid, $ec. ).
( <

1f the subscribin! witnesses are dead or insane" or none of them resides in the Philippines" the court may admit the testimony of other witnesses to prove the sanity of the testator. the due e$ecution of the will. and proof of the handwritin! of the testator and of the subscribin! witnesses" or of any of them.

).B Contestin! a will6)

*nyone appearin! to contest the will must state in writin! his !rounds for opposin! its allowance" and serve a copy thereof on the petitioner and other parties interested in the estate.

).@C Drounds for disallowin! a will6/

The will shall be disallowed in any of the followin! cases

).@C.@ 1f not e$ecuted and attested as re(uired by law.

).@C.2 1f the testator was insane" or otherwise mentally incapable to ma#e a will" at the time of its e$ecution.

).@C.) 1f it was e$ecuted under duress" or the influence of fear" or threats.

).@C./ 1f it was procured by undue and improper pressure and influence" on the part of the beneficiary" or of some other person for his benefit.

).@C.6 1f the si!nature of the testator was procured by fraud or tric#" and he did not intend that the instrument should be his will at the time of fi$in! his si!nature thereto. 9. E5ec+to&( ,n- A-1'n'(t&,to&( 1. Re2+'&e1ent( Fo& The I((+,nce O3 Lette&( Te(t,1ent,&/ An- O3 Lette&( O3 A-1'n'(t&,t'on;;

Probate proceedin!s may be opened by a petition for the allowance of a will and the issuance of letters testamentary" as previously discussed or letters of administration.

@.@ The petition may be opposed and a petition may at the same time be filed for letters of administration with the will anne$ed.68

0 0 0 0

Ibid, $ec. 1<. Ibid, $ec. (. 0 8ules of Court! 8ules 2) and 2(. ' Ibid, 8ule 2(! $ec. 1.
: *

@.2 The contents of a petition for letters of administration are

@.2.@ The jurisdictional facts.

@.2.2 The names" a!es" and residences of the heirs" and the names and residences of the creditors" of the decedent.

@.2.) The probable value and character of the property of the estate. and

@.2./ The name of the person for whom letters of administration are prayed.

0ote 2ut no defect in the petition shall render void the issuance of letters of administration.6;

@.) 0o person is competent to serve as e$ecutor or administrator who is AaF a minor. AbF not a resident of the Philippines. and AcF in the opinion of the court" unfit to e$ecute the duties of the trust by reason of drun#enness" improvidence" or want of understandin! or inte!rity" or by reason of conviction of an offense involvin! moral turpitude.6E

8. A00o'nt1ent o3 E5ec+to&( D$ho 1,/ beco1e e5ec+to&(F;B

2.@ *fter a will is proved and allowed" the court shall issue letters testamentary thereon to the person named as e$ecutor therein" if he is competent" accepts the trust" and !ives bond as re(uired by the rules. 1t is clear that an e$ecutor is one who is named in a will.

2.2 There may be several e$ecutors named in the will. 7etters testamentary may issue to such of them as are competent" accept and !ive bond. 1f no e$ecutor named (ualifies" then an administrator is appointed.8C 9. A00o'nt1ent O3 A-1'n'(t&,to&(> P&'o&'t'e(<1 *dministration may be !ranted

).@ To the survivin! spouse" or ne$t of #in" or both" or to such person as such survivin! spouse or ne$t of #in" re(uests to be appointed" if competent and willin! to serve.

).2 To one or more of the principal creditors" if competent and willin! to serve" in default of the fore!oin! or if the survivin! spouse or ne$t of #in ne!lects for thirty A)CF days after the death of the
0 0 0 ' '

8ules of Court! 8ule 2(! $ec. .. Ibid, 8ule 2)! $ec. 1. ( Ibid, $ec. * < 8ules of Court! 8ule 2)! $ection. 0. 1 8ules of Court! 8ule 2)! $ec. '.
2 )

deceased to file a petition for administration or the re(uest that administration be !ranted to some other person.

).) To such other person as the court may select" in default of the fore!oin!.

0ote The court may disre!ard the preference above enumerated in its sound discretion and its decision will not be interfered with on appeal unless it appears that it is in error.82 :. A00o'nt1ent O3 !0ec',* A-1'n'(t&,to&( * special administrator may be appointed %AwFhen there is delay in !rantin! letters testamentary or of administration by any cause includin! an appeal from the allowance or disallowance of a will.- 8) The special administrator shall ta#e possession and char!e of the estate of the deceased until (uestions causin! the delay are decided and e$ecutors or administrators appointed.

/.@ 4hile the (ualifications of a special administrator are not spelled out in the rules" the appointment should be within the sound discretion of the court and such discretion should not be a whimsical one. There is no reason why the same fundamental and le!al principles !overnin! the choice of a re!ular administrator should not be ta#en into account in the appointment of a special administrator.8/ 'owever" the court is not bound to follow the order of preference set up for the appointment of a !eneral administrator.86

/.2 :nly one special administrator at a time may be appointed" since the appointment is merely temporary.88

/.) Powers and duties

The special administrator shall ta#e possession and preserve the !oods" chattels" ri!hts" credits" and estate of the deceased and for that purpose may commence and maintain suits as administrator. 'e may sell only such perishable and other property as the court orders sold. 'e is not liable to pay any debts of the deceased unless so ordered by the court.8;

/./ The court has no power to order a special administrator to sell real property of the estate pendin! resolution of the issue of the appointment of the re!ular administrator.8E

/.6 * special administrator does not have the power to close the estate because he normally does not pay the debts of the deceased. 'owever" he can be sued. There is no e$press prohibition. otherwise" prescription may set in if the appointment of the re!ular administrator is delayed.8B
' ' ' ' ' ' ' '
. : * 0 '

$il+erio! $r. +. Court of Appeals! 3. 8. -o. 1<((2(! Aarch 11! 1(((! :<* $C8A 0*1.
8ules of Court! 8ule )<! $ec. 1. ,Gaeta +. %ecson! (: %hil. *1' [1(0:].

,ce=o +. Consul 3eneral of $pain! '2 %hil. *20 [1(:(]. ,Gaeta +. %ecson! supra, note '*D 4ernandeG +. Aara+illa! supra, note 1:. 2 8ules of Court! 8ule )<! $ec. .. ) $il+erio! $r. +. Court of Appeals! supra, note '.. ( Anderson +. %erCins! -o. L910:))! January :1! 1('1! 1 $C8A :)2.

/.8 Termination

The special administrator may be removed on !rounds other than those mentioned in 9ule E2. ;C 4hen an e$ecutor or administrator is appointed" the powers of the special administrator cease. 'e shall immediately deliver the estate to the e$ecutor or administrator who may prosecute to final jud!ment suits commenced by the special administrator.;@ ;. Bon- o3 A-1'n'(t&,to& o& E5ec+to& G8 6.@ 2efore an e$ecutor or administrator enters upon the e$ecution of his trust" he shall !ive a bond" in such sum as the court directs" conditioned as follows

6.@.@ To ma#e and return within three A)F months" a true and complete inventory.

6.@.2 To administer the estate and pay and dischar!e all debts" le!acies" and char!es on the same" or dividends thereon.

6.@.) To render a true and just account within one A@F year" and at any other time when re(uired by the court. and

6.@./ To perform all orders of the court.

6.2 5urther bond

The e$ecutor may serve without bond if the testator so directs" or with only his individual bond" conditioned only to pay the debts of the testator. but the court may re(uire a further bond in case of a chan!e in his circumstances" or for other sufficient cause.;)

<. "ene&,* Po$e&( ,n- D+t'e( o3 E5ec+to&( ,n- A-1'n'(t&,to&( *n e$ecutor and administrator has the followin! powers and duties

2 2 2 2

/e 3ala +. 3onGales! 0: %hil. 1<* [1(.(]D 8oxas +. %ecson! ). %hil. *<2 [1(*)]. 8ules of Court! 8ule )<! $ec. :. . . 8ules of Court! 8ule )1. : 8ules of Court! 8ule )1! $ec. ..
< 1

8.@ To maintain the estate in %tenantable repair% and deliver the same in such repair to the heirs or devisees when directed by the court.;/

8.2 To possess and mana!e the estate of the deceased for the payment of the debts and e$penses of administration.;6

8.) To have access to partnership boo#s and property where the deceased was a partner" under pain of contempt by the probate court.;8 8./ 4ith the approval of the court" to compound or compromise with a debtor of the deceased.;; G. In%ento&/ An- A00&,'(,* 4ithin three A)F months after his appointment" an e$ecutor or administrator shall file a true inventory and appraisal of all the real and personal estate of the deceased" with the assistance of one or more inheritance ta$ appraisers" as may be ordered by the court.

;.@ ,$clusions from the inventory

The articles that should not be inventoried are AaF the wearin! apparel of the survivin! spouse and minor children" AbF the marria!e bed and beddin!" and AcF such provisions and other articles as will necessarily be consumed in the subsistence of the family of the deceased. They shall not be considered as assets" nor administered as such.;E

;.2 *llowance to widow and family

The widow and minor or incapacitated children of the deceased" durin! the settlement of the estate" shall receive such allowance as are provided by law.;B

;.) Guestions of title

* probate court can resolve (uestions of title only provisionally. *ll that the court can do is to determine whether the properties should or should not be included in the inventory or list of properties to be administered by the administrator. 1f there is no dispute" well and !ood" but if there is" then the parties" the administrator and the opposin! parties have to resort to an ordinary action for a final determination of the conflictin! claims of title because the probate court cannot do so.EC
2 2 2 2 2 2

8ules of Court! 8ule )*! $ec. .. Ibid, $ec. :. ' Ibid, $ec. 1. 2 8ules of Court! 8ule )2! $ec. *. ) 8ules of Court! 8ule ):! $ec. .. ( Ibid, $ec. :. EC Sanche& v. Court of *ppeals" D. 9. 0o. @CEB/;" September 2B" @BB;" 2;B SC9* 8/;.
* 0

H. !,*e( An- 7o&t),)e( The need for approval by the probate court e$ists only where specific properties of the estate are sold and not when only ideal and indivisible shares of an heir are disposed of.E@ The sale or mort!a!e of specific estate property may be approved by the court under the followin! circumstances

E.@ 5or the payment of debts

The sale or encumbrance of real property to pay the obli!ations of the estate" if beneficial" may be approved when personal property is not enou!h to pay for the obli!ations of the estate" or where its sale or mort!a!e may be injurious to those interested and where the testator has not otherwise provided.

0ote 1f a part of the real property cannot be sold" or otherwise encumbered without injury to those interested in the remainder" the disposition may be of the whole of the property" or so much as is necessary or beneficial under the circumstances.E2

E.2 1f beneficial

The court may authori&e the sale of the whole or a part of said estate" althou!h it is not necessary to pay the obli!ations of the estate so lon! as it is beneficial but such authority should not be inconsistent with the provisions of a will. The proceeds shall be !iven to the persons entitled to the estate in the proper proportions.E)

E.) 2ond to prevent sale" etc.

Persons interested may prevent a sale" mort!a!e or encumbrance by !ivin! a bond in a sum to be fi$ed by the court" conditioned to pay the obli!ations of the estate. Such bond shall be for the security of the creditors" as well as the e$ecutor or administrator.E/

E./ 9e!ulations for !rantin! authority to sell" mort!a!e" or otherwise encumber estate.

E./.@ The e$ecutor or administrator shall file a written petition" settin! forth AiF the debts due from the deceased" AiiF the e$penses of administration" AiiiF the le!acies" AivF the value of the personal estate" AvF the situation of the estate to be sold" mort!a!ed" or otherwise encumbered" and AviF such other facts as will show that the sale" mort!a!e" or other encumbrance is necessary or beneficial.

E./.2 The court shall then cause notice to the persons interested" statin! the nature of the
) ) ) )

Heirs of %edro Escanlar +. Court of Appeals! 3. 8. -o. 11(222! ,ctober .:! 1((2! .)1 $C8A 12'. 8ules of Court! 8ule )2! $ec. .. : Ibid, 8ule )(! $ec. *. * Ibid, $ec. :.
1 .

petition" the reason for the same" and the time and place of hearin!. The court may cause further notice by publication or otherwise.

E./.) The court may direct the e$ecutor or administrator to !ive an additional bond to account for the proceeds of the sale" mort!a!e" or other encumbrance.

E././ The court may then !rant the petitions in proper cases" such part of the estate as is deemed necessary. The court may authori&e the sale to be public or private" as would be most beneficial to all parties concerned.

E./.6 1f the property is to be sold at auction" the mode of !ivin! notice of the time and place of the sale shall be !overned by the provisions concernin! notice of e$ecution sale.E6

E./.8 The transaction and the court order shall be recorded in the re!istry of deeds.E8 B. Act'on( B/ An- A),'n(t E5ec+to&( An- A-1'n'(t&,to&( 1n !eneral" e$ecutors and administrators may brin! or defend actions that survive. Claims that do not survive are money claims that have to be filed in the estate proceedin!s.

B.@ *ctions that survive are those actions to recover real or personal property" or an interest therein" from the estate" or to enforce a lien thereon" and actions to recover dama!es for an injury to person or property" real or personal.E;

B.2 *ctions that do not survive are the money claims or AaF all claims for money arisin! from contract" e$press or implied" due" not due or contin!ent. EE AbF all claims for funeral e$penses. AcF e$penses for the last sic#ness of the decedent. and AdF jud!ment for money a!ainst the decedent" which should be presented in the form of claims a!ainst the estate.EB

B.) ?ort!a!e due estate may be foreclosed

1f the deceased was a mort!a!ee or assi!nee of the ri!ht of a mort!a!ee" the mort!a!e may be foreclosed by the e$ecutor or administrator.BC

B./ Proceedin!s when property concealed" embe&&led" or fraudulently conveyed

) )

8ules of Court! 8ule :(. 8ules of Court! 8ule )(! $ec. 2. ) 2 8ules of Court! 8ule )2! $ec. 1. EE These claims are specifically described as contractual money claims in the 9ules of Court" 9ule )" Sec. 2C.
0 '

EB

9ules of Court" 9ule E8" Sec. 6. 2elamala v. Polinar" 0o. 7+2/CBE" 0ovember @E" @B8;" 2@ SC9* B;C. 8ules of Court! 8ule )2! $ec. 0.

<

B./.@ 4hen a person is suspected of havin! concealed" embe&&led" or conveyed away any of the money or chattels of the deceased" or such person possesses or #nows of a document which contains evidence of or tends to disclose the ri!ht of the deceased to real or personal estate" or his last will and testament" the court may cite such suspected person to appear or to answer" and may e$amine him on oathB@

B./.2 1f the person so cited refuses to appear and !ive ro!atories" the court may punish him for contempt and may commit him to prison until he submits to the order of the court. The interro!atories" if any" and his answers thereto" shall be in writin! and shall be filed in court.B2

B.6 9endition of account

* person entrusted by the e$ecutor or administrator with property of the deceased" may be compelled to render a full account on oath before the court.B)

B.8 ,mbe&&lement before letters issued

* person who embe&&les or alienates property of the deceased before issuance of letters testamentary or of administration" is liable for double the value of the property embe&&led. B/

B.; 9emedy for fraudulent conveyance by the deceased durin! his lifetime

The remedy may be by action of the e$ecutor or administrator or by a creditor under the followin! circumstances.

B.;.@ *ction by e$ecutor or administrator

4hen there is a deficiency of assets to pay its debts" but the deceased durin! his lifetime conveyed property with intent to defraud his creditors" the conveyance would by law be void as a!ainst his creditors" and the subject of the attempted conveyance would be subject to attachment in his lifetime. The e$ecutor or administrator may file an action to recover such property but is not be bound to do so" unless the creditors pay for the costs and e$penses thereof or !ive security as the court deems e(uitable.B6

B.;.2 *ction by the creditor

B@

9ules of Court" 9ule E;" Sec. 6.

( ( ( (

Ibid.! $ec. '. Ibid.! $ec. 2. * 8ules of Court! 8ule )2! $ec. ). 0 Ibid.! $ec. (.
. :

:n the other hand" a creditor may file such an action in the name of the e$ecutor or administrator upon the filin! by the creditor of a bond approved by the court to indemnify the e$ecutor or administrator. The creditor shall have a lien on the jud!ment recovered for costs and e$penses as the court deems e(uitable.B8

0ote 4here the conveyance or attempted conveyance was made by the deceased in his lifetime in favor of the e$ecutor or administrator" the action of the creditor shall be filed in the name of all the creditors without need of court permission or the court and the filin! of a bond.B; 1E. 7one/ C*,'1( A),'n(t The E(t,te> Not'ce To C&e-'to&( 1mmediately after !rantin! letters testamentary or of administration" the court shall issue a notice re(uirin! all persons havin! money claims a!ainst the decedent to file them in the office of the cler# of court.BE

@C.@ Time within which claims shall be filed

1n said notice" the court shall state the time for the filin! of claims a!ainst the estate" which shall not be more than twelve A@2F nor less than si$ A8F months after the date of the first publication of the notice. 'owever" before an order of distribution is issued" the court may" for cause shown and on such terms as are e(uitable" allow a claim to be filed within a time not e$ceedin! one A@F month.BB

@C.2 Publication of notice to creditors

The e$ecutor or administrator shall immediately cause the notice to be published three A)F wee#s successively in a newspaper of !eneral circulation in the province" and to be posted for the same period in four A/F public places in the province and in two A2F public places in the municipality where the decedent last resided.@CC

@C.) 5ilin! copy of printed notice

4ithin ten A@CF days after the publication and the postin!" the e$ecutor or administrator shall file in court a printed copy of the notice" accompanied with an affidavit of publication settin! forth the dates of the first and last publication thereof and the name of the newspaper in which the same was printed.@C@

@C./ 5ilin! of claims

The claims which must be filed under the notice are

( ( ( ( 1 1

Ibid.! $ec. 1<. 8ules of Court! 8ule )2! $ec. 1<. ) Ibid, 8ule )'! $ec. 1<. ( Ibid, $ec. .. << Ibid. <1 8ules of Court! 8ule )'! $ec. *.
' 2

@C./.@ all claims for money a!ainst the decedent" arisin! from contract" e$press or implied" whether the same be due" not due" or contin!ent.

@C./.2 all claims for funeral e$penses and e$penses for the last sic#ness of the decedent. and

@C./.) jud!ment for money a!ainst the decedent.@C2

0ote Onder the @BB; 9ules of Civil Procedure" an action for a contractual money claim a!ainst a defendant who dies before entry of final jud!ment" must proceed until entry of final jud!ment. * favorable jud!ment obtained by the plaintiff shall be enforced as a money claim a!ainst the estate of the defendant which shall be filed in the estate proceedin!.@C)

@C.6 Time bar

Claims that are not filed within the time limited in the notice" are barred forever" e$cept that they may be set forth as counterclaims in any action that the e$ecutor or administrator may brin! a!ainst the claimants.

@C.8 Set off

4here an e$ecutor or administrator commences an action" or prosecutes an action already commenced by the deceased in his lifetime.+ * debtor may set forth in an action by the e$ecutor or administrator a!ainst him" by answer the claims he has a!ainst the decedent" instead of presentin! them independently as a claim a!ainst the estate" and mutual claims may be set off a!ainst each other in such action. Claims not yet due" or contin!ent" may be approved at their present value.@C/

@C.; 'ow to file a claim@C6

* claim may be filed with the cler# of court with the necessary vouchers and supportin! affidavits" servin! a copy thereof on the e$ecutor or administrator.

@C.;.@ 1f the claim is not due" or is contin!ent" it must also be supported by affidavit statin! the particulars thereof. 4hen the affidavit is made by a person other than the claimant" he must set forth therein the reason why it is not made by the claimant.@C8

1 1 1

Ibid, $ec. 0. 8ules of Court! 8ule :! $ec. .<. <* 8ules of Court! 8ule )'! $ec. 0. @C6 "bid, Sec. B.
<. <:

<'

Ibid.

@C.;.2 The court" in its discretion" and as a matter of convenience" may order all the claims to be collected in a separate folder.@C;

@C.E >isposition of admitted claim

*ny claim admitted by the e$ecutor or administrator shall immediately be submitted by the cler# to the court who may approve the same without hearin!. but the court may order that #nown heirs" le!atees" or devisees be notified and heard.@CE

@C.B Trial of contested claim

1f an heir" le!atee" or devisee opposes the claim" the court may allow him fifteen A@6F days to answer the claim. Opon the filin! of an answer or upon the e$piration of the time for such filin!" the cler# of court shall set the claim for trial with notice to both parties. The court may refer the claim to a commissioner.@CB

@C.@C Jud!ment appealable

The jud!ment of the court approvin! or disapprovin! a claim" is appealable. * jud!ment a!ainst the e$ecutor or administrator that he pay shall not create any lien upon the property of the estate" or !ive to the jud!ment creditor any priority of payment.@@C 11. P,/1ent O3 Debt( 1f there are sufficient assets to pay the debts" the e$ecutor or administrator shall pay the same within the time limited for that purpose.@@@

@@.@ Source of payment as desi!nated by the testator

The debts of the testator" e$penses or administration" or family e$penses" shall be paid accordin! to the provisions of the will. but if the provisions are not sufficient" such part of the estate not disposed of by will" if any" shall be appropriated for that purpose.@@2

@@.2 Personalty first char!eable for debts" then realty

The personal property of the deceased shall first be char!eable with the payment of debts and e$penses. but if it is not sufficient" or its sale would be detrimental to the participants of the estate"
1 1 1 1 1 1

8ules of Court! 8ule )'! $ec. (. Ibid, $ec. 11. <( Ibid, $ecs. 11 and 1.. 1< 8ules of Court! 8ule )'! $ec. 1: 11 8ules of Court! 8ule ))! $ec. 1. 1. Ibid, $ec. ..
<2 <)

the whole of the real estate not disposed of by will" or so much thereof as is necessary" may be sold" mort!a!ed" or otherwise encumbered by the e$ecutor or administrator" after obtainin! the authority of the court therefor.@@)

@@.) Preference of payment if estate insolvent

1f the assets are not sufficient for the payment of debts" they shall be paid in accordance with the provisions of *rticles @C6B and 22)B to 226@ of the Civil Code on concurrence and preference of credits.@@/

@@./ 4hen and how claim proved outside the Philippines a!ainst insolvent resident%s estate paid

1f claims have been duly proven in another country a!ainst the estate of an insolvent who was at the time of his death an inhabitant of the Philippines" and that the local e$ecutor or administrator #new of such claims and an opportunity to contest their allowance" the court shall add a certified list of such claims to the list of claims proved in the Philippines so that a just distribution of the whole estate may be made" but the benefit of this and the precedin! sections shall not be e$tended to the creditors in another country if the property of the deceased there found is not e(ually apportioned to the creditors residin! in the Philippines and the other creditors" accordin! to their respective claims.@@6

@@.6 Time for payin! debts and le!acies

The e$ecutor or administrator shall pay the debts and le!acies of the deceased within a period of time fi$ed by the court" which shall not e$ceed one A@F year" but the court may" on motion of the e$ecutor or administrator and after hearin!" e$tend the time as the circumstances of the estate re(uire not e$ceedin! si$ A8F months for a sin!le e$tension" but the whole period allowed to the ori!inal e$ecutor or administrator shall not e$ceed two A2F years.@@8 18. Acco+nt,b'*'t/ An- Co10en(,t'on O3 E5ec+to&( An- A-1'n'(t&,to&( ,$cept as otherwise e$pressly provided in the followin! sections" every e$ecutor or administrator is char!eable AaF with the whole of the estate of the deceased which has come into his possession" at the value of the appraisement contained in the inventory. AbF with all the interest" profit" and income of such estate. and AcF with the proceeds of so much of the estate as is sold by him" at the price at which it was sold.@@;

@2.@ 1ncrease or decrease in value

0o e$ecutor or administrator shall profit by the increase" or suffer loss by the decrease or destruction" without his fault" of any part of the estate.
1 1 1 1 1

Ibid, $ec. :. 8ules of Court! 8ule ))! $ec. 2. 10 8ules of Court! 8ule ))! $ec. 1<. 1' Ibid, $ec. 10. 12 8ules of Court! 8ule )0! $ec. 1.
1: 1*

@2.@.@ 'e must account for the e$cess when he sells any part of the estate for more than the appraised value" and if any is sold for less than the appraisement" he is not responsible for the loss" if the sale has been justly made.

@2.@.2 1f he settles any claim a!ainst the estate for less than its nominal value" he is entitled to char!e in his account only the amount he actually paid on the settlement.@@E

@2.2 *ccountable for income from realty used by him

1f the e$ecutor or administrator uses or occupies any part of the real estate himself" he shall account for it as may be a!reed upon between him and the parties interested" or adjusted by the court with their assent. 1f the parties do not a!ree" the amount may be ascertained by the court" whose determination shall be final.@@B

@2.) *ccountable for delay

4hen an e$ecutor or administrator unreasonably delays to collect the debts" sell estate of the deceased" or ne!lects to pay over the money he has in his hands" and the value of the estate is thereby lessened or unnecessary cost or interest accrues" or the persons interested suffer loss" the dama!e sustained may be char!ed a!ainst him" and he shall be liable therefor on his bond.@2C

@2./ ,$penses and fees allowed e$ecutor or administrator@2@

*n e$ecutor or administrator shall be allowed the necessary e$penses in the care" mana!ement" and settlement of the estate" and for his services" four pesos per day for the time actually and necessarily employed" or a commission upon the value of so much of the estate as comes into his possession and is finally disposed of by him in the payment of debts" e$penses" le!acies" or distributive shares" or by delivery to heirs or devisees" of

@2./.@

2T of the first Php 6"CCC.

@2./.2

@T of more than Php 6"CCC but less than Php )C"CCC.

@2./.)

@M2T of more than Php )C"CCC" but less than Php @CC"CCC. and

@2././

@M/T of more than Php @CC"CCC.

1 1 1 1

Ibid, $ec. .. 8ules of Court! 8ule )0! $ec. *. .< Ibid, $ec. 0. .1 Ibid, $ec. 1.
1) 1(

0ote 2ut in any special case" where the estate is lar!e" and the settlement has been attended with !reat difficulty" and has re(uired a hi!h de!ree of capacity on the part of the e$ecutor or administrator" a !reater sum may be allowed. 1f objection to the fees allowed to be ta#en" the allowance may be re+e$amined on appeal.

@2.6 Two or more e$ecutors or administrators

1f there are two or more e$ecutors or administrators" the compensation shall be apportioned amon! them by the court accordin! to the services actually rendered by them respectively.@22

@2.8 *ttorney%s fees prohibited

4hen the e$ecutor or administrator is an attorney" he shall not char!e a!ainst the estate any professional fees for le!al services rendered by him"@2) but he may employ counsel.@2/

@2.; Compensation provided in the will

4hen the deceased by will ma#es some other provision for the compensation of his e$ecutor" it shall be a full satisfaction for his services unless by a written instrument filed in the court he renounces all claim to the compensation provided by the will.@26

@2.E 4hen e$ecutor or administrator to render account

,very e$ecutor or administrator shall render an account of his administration within one A@F year from the time of receivin! letters testamentary or of administration" unless the court otherwise directs because of e$tensions of time for presentin! claims a!ainst" or payin! the debts of" the estate" or for disposin! of the estate. 'e shall render such further accounts as the court may re(uire until the estate is wholly settled.@28

@2.B ,$aminations on oath with respect to account

The heirs" le!atees" distributees" and creditors of the estate and the e$ecutor or administrator may be e$amined on oath on any matter relatin! to an administration account.@2;

1 1

8ules of Court! 8ule )0! $ec. 1. Ibid, $ec. 2. @2/ >acanay v. 7a ?ancomunidad de Telepuis" ;2 Phil. 6C [@B/@]. *ldami& v. Jud!e of the Court of 5irst 1nstance of ?indoro" E6 Phil. 22E [@B/B].
.. .:

1 1 1

8ules of Court! 8ule )0! $ec. 2. Ibid, $ec. ). .2 Ibid, $ec. (.

.0 .'

@2.@C 0otice to e$amine the account of the e$ecutor or administrator

2efore the account of an e$ecutor or administrator is allowed" notice shall be !iven to persons interested of the time and place of e$aminin! and allowin! the same. and such notice may be !iven personally or by advertisement in a newspaper or newspapers" or both" as the court directs. @2E * person liable as surety in respect to such account may" upon application" be admitted as party to such accountin!.@2B

:. D'(t&'b+t'on ,n- P,&t't'on19E

The distribution of the estate can only be made after strict compliance with the provisions in 9ule BC" 9ules of Court.

1. When D'(t&'b+t'on I( 7,-e

@.@ Payment of obli!ations re(uired

The estate may be distributed only if the debts" funeral char!es" and e$penses of administration" the allowance to the widow" and inheritance ta$" if any" have been paid. A0ote 4hat is provided in the law is only an estate ta$ payable by the heir has already been abro!ated.F

@.@.@ The court" on the application of the e$ecutor or administrator" or of a person interested in the estate" and after hearin! upon notice" shall assi!n the residue of the estate to the persons entitled to the same" namin! them and the proportions" or parts" to which each is entitled" and such persons may demand and recover their respective shares from the e$ecutor or administrator" or any other person havin! the same in his possession.

@.@.2 1f there is a controversy as to who are the lawful heirs of the deceased person or as to the distributive shares to which each person is entitled under the law" the controversy shall be heard and decided as in ordinary cases.@)@

@.2 *dvance distribution

0o distribution shall be allowed until the payment of the obli!ations above mentioned has been made or provided for" unless the distributees" or any of them" !ive a bond" in a sum to be fi$ed by the court" conditioned for the payment of said obli!ations within such time as the court directs.@)2
1 1 1 1 1

8ules of Court! 8ule )0! $ec. 1<. Ibid, $ec. 11. :< 8ules of Court! 8ule (<. :1 8ules of Court! 8ule (<! $ec. 1! first and second para&raphs. :. Ibid, second para&raph.
.) .(

8. P,&t',* -'(t&'b+t'on# $'tho+t 0,/'n) e(t,te t,5e( * jud!e commits a !rave abuse of discretion when he orders a partial distribution of the estate without the payment of estate ta$es.@)) 9. E50en(e( o3 0,&t't'on ,$penses of partition may be paid by the e$ecutor or administrator when it appears e(uitable to the court and not inconsistent with the intention of the testator. otherwise" they shall be paid by the parties in proportion to their respective shares or interest in the premises" and the apportionment shall be settled and allowed by the court" enforceable by e$ecution.@)/ :. P&o4ect o3 P,&t't'on The practice in this jurisdiction is to prepare and present a project of partition to the court. 1t is merely a proposal for the distribution of the hereditary estate and determine the persons entitled thereto.@)6 ;. F'n,* o&-e& o3 0,&t't'on> &eco&-'n) the o&-e& o3 0,&t't'on o3 the e(t,te Certified copies of final orders and jud!ments of the court relatin! to the real estate or partition thereof shall be recorded in the re!istry of deeds.@)8

9. "UARDIAN!

1. Nece(('t/ Fo& "+,&-',n(h'0

* court will have no jurisdiction to render jud!ment a!ainst one adjud!ed physically and mentally incompetent to mana!e her affairs where no !uardian was appointed upon whom summons and notice of the proceedin!s mi!ht be served.@);

@. The %incompetent% as the subject of !uardianship.+ The incompetent includes A@F persons sufferin! from the penalty of civil interdiction. A2F hospitali&ed lepers. A)F prodi!als. A/F deaf and dumb who are unable to read and write. A6F those who are of unsound mind even thou!h they may have lucid intervals. and A8F those who are not of unsound mind" but by reason of a!e" disease" wea# mind" and other similar causes" cannot without outside aid" ta#e care of themselves and mana!e their property" becomin! thereby an easy prey for deceit and e$ploitation.@)E
1 1

"era +. -a+arro! -o. L9.22*0! ,ctober 1)! 1(22! 2( $C8A *<). 8ules of Court! 8ule (<! $ec. :. @)6 ?oran" Comments on the Rules o% Court, @BB; ed." Hol. )" pp. 8EE+B.
:: :*

1 1 1

8ules of Court! 8ule (<! $ec. *. 3orostia&a +. $arte! ') %hil. * [1(:(]. :) 8ules of Court! 8ule (.! $ec. ..
:' :2

2. Parents as !uardians

4hen the property of the child under parental authority is worth Php 2"CCC.CC or less" the father or the mother" without the necessity of court appointment" shall be his le!al !uardian. 4hen the property of the child is worth more than Php 2"CCC.CC" the father or the mother shall be considered !uardian of the child%s property" with the duties and obli!ations of !uardians under these rules" and shall file the petition re(uired by the rules. 5or !ood reasons the court may" however" appoint another suitable person.@)B 8. J+&'(-'ct'on ,n- =en+e @. 4here to file petition for !uardianship

*ny relative" friend" or other person on behalf of a resident minor or incompetent who has no parent or lawful !uardian" or the minor himself if fourteen years of a!e or over" may petition for the appointment of a !eneral !uardian for the person or estate" or both" of such minor or incompetent.@/C

2. Transfer of venue

1f the ward transfers his bona %ide residence" the court may transfer the !uardianship case to the court of the place of his residence wherein he has ac(uired real property" and additional court fees are not re(uired.@/@ 9. Pet't'on Fo& "+,&-',n(h'0 @. 4ho may file

*ny relative" friend or other person on behalf of a resident minor or incompetent who has no parent or lawful !uardian" or the minor himself if fourteen years of a!e or over" may petition for the appointment of a !eneral !uardian for the person or estate" or both" of such minor or incompetent.@/2

2. Contents of petition

The petition shall alle!e

A@F The jurisdictional facts.

A2F The minority or incompetency.

A)F The names" a!es and residences of the relatives of the minor or incompetent" and of the
1 1 1 1

Ibid, 8ule (:! $ec. 2. 8ules of Court! 8ule (:! $ec. 1. *1 Ibid, 8ule (.! $ec. :. *. 8ules of Court! 8ule (:! $ec. 1.
:( *<

persons havin! him in their care.

A/F The probable value and character of his estate. and

A6F The names of the person for whom letters of !uardianship are prayed.@/)

). 0otice of hearin!

9easonable notice of the hearin! of the petition shall be !iven to the persons mentioned in the petition residin! in the province" includin! the minor if above @/ years of a!e or the incompetent himself. The court may direct other !eneral or special notice to be !iven.@//

/. Drounds for opposition

The petition may be opposed on the !rounds of AaF majority of the alle!ed minor. AbF competency of the alle!ed incompetent. or AcF unsuitability of the proposed !uardian.@/6

6. :rder

*t the hearin!" the alle!ed incompetent must be present as much as possible. ,vidence will be heard and if it be proved that the person in (uestion is a minor or incompetent" the court shall appoint a suitable !uardian of his person or estate" or both.@/8

8. Duardian for the estate of a nonresident

:n notice" by publication or otherwise" and after the hearin!" a !uardian may be appointed for the estate in the Philippines of a nonresident minor or incompetent.@/; :. "+,&-',nI( BonThe !uardian shall !ive a bond conditioned AaF to ma#e a true and complete inventory within three months. AbF to mana!e and dispose of the estate" and to provide for the proper care" custody and education of the ward. AcF to render a true and just account. and AdF to perform all orders of the court.@/E

@. 0ew bond
1 1 1 1 1 1

8ules of Court! 8ule (:! $ec. .. Ibid, $ec. :. *0 Ibid, $ec. *. *' 8ules of Court! 8ule (:! $ec. 0. *2 Ibid, 8ule (:! $ec. '. *) 8ules of Court! 8ule (*! $ec. 1.
*: **

* new bond may be re(uired and the old sureties dischar!ed whenever it is deemed necessary" after due notice to interested persons" when no injury can result therefrom to those interested in the estate.@/B

2. 2ond to be filed. actions thereon

,very bond of a !uardian shall be filed in the office of the cler# of the court. 1n case of the breach of a condition thereof" it may be prosecuted in the same proceedin! or in a separate action.@6C

;. "ene&,* Po$e&( ,n- D+t'e(

The !uardian has the care and custody of the person of the ward andMor the mana!ement of his estate. The !uardian should pay the ward%s just debts from his personal property and income of his real estate. if insufficient" out of the sale or encumbrance of real estate as authori&ed by the court. The estate should be mana!ed fru!ally.@6@

@. * person suspected of embe&&lin! or concealin! property of the ward may be as#ed to appear for e$amination.@62

2. *fter ma#in! an inventory after three A)F months" the !uardian is re(uired to file an inventory and accountin! annually.@6)

). Compensation and e$penses

The !uardian is allowed reasonable e$penses and such compensation as the court deems just" not e$ceedin! @6T of the net income of the ward.@6/

/. Drounds for removal

* !uardian may be removed when AaF he becomes insane" A2F is otherwise incapable of dischar!in! his trust" A)F is unsuitable therefor" A/F has wasted or mismana!ed the estate" or A6F has failed for thirty A)CF days to render an account or ma#e a return.@66

1 1 1

Ibid, $ec. .. 8ules of Court! 8ule (*! $ec. :. 01 8ules of Court! 8ule ('! $ec. *. @62 "bid, 8" Sec. 8.
*( 0<

1 1 1

Ibid, $ecs. 2 and ). 8ules of Court! 8ule ('! $ec. ). 00 Ibid, 8ule (2! $ec. ..
0: 0*

6. *dvanced a!e

The conclusion by the trial court that the !uardian of advanced a!e is not fit to continue" is not to be disturbed" particularly with his delay in ma#in! an accountin! and filin! an inventory. 4hile a!e alone is not a controllin! criterion" it may be a factor for consideration.@68 <. !,*e o& enc+1b&,nce@ @. 9eal property of the ward may be sold or encumbered by authority of the court upon a verified petition when the income is not sufficient to maintain the ward and his family or to educate him" or when it is for his benefit that the property be sold" mort!a!ed or otherwise encumbered and the proceeds put out at interest or invested in some productive security" or in the improvement or security of other real estate of the ward.@6;

2. 2ond for the sale

The ori!inal bond of the !uardian shall answer for the proceeds of the sale" but the court may re(uire an additional bond.@6E The order to sell is valid for one A@F year.@6B

). * court order authori&in! the sale of a ward%s property" is subject to appeal" not certiorari and mandamus.-DB G. Pet't'on 3o& te&1'n,t'on o3 "+,&-',n(h'0 @. * person who has been declared incompetent for any reason" or his !uardian" relative" or friend" may file a verified petition to have his present competency judicially determined. 1f it be found after hearin! that the person is no lon!er incompetent" his competency shall be adjud!ed and the !uardianship shall cease.@8@

2. Drounds for removal

* !uardian may be removed when AaF he becomes insane" AbF is otherwise incapable of dischar!in! his trust" AcF is unsuitable therefor" AdF has wasted or mismana!ed the estate" or AeF has failed for thirty A)CF days to render an account or ma#e a return.@82

). :ther termination

@68

5rancisco v. Court of *ppeals" 0o. 7+6;/)E" January )@" @BE/" @2; SC9* );@.

1 1 1 1 1 1

8ules of Court! 8ule (0! $ec. 1. Ibid, $ec. *. 0( Ibid. '< . LopeG +. ;eodoro! )' %hil. *(( [1(0<]. '1 8ules of Court! 8ule (2! $ec. 1. '. 8ules of Court! 8ule (2! $ec. ..
02 0)

?arria!e or voluntary emancipation of a minor ward terminates the !uardianship of the person of the ward" and shall enable the minor to administer his property as thou!h he were of a!e" but he cannot borrow money or alienate or encumber real property without the consent of his father or mother" or !uardian. 'e can sue and be sued in court only with the assistance of his father" mother or !uardian. Opon the application of the ward or otherwise" the !uardians may be dischar!ed if the !uardianship is no lon!er necessary.@8)

/. *dvanced a!e

The conclusion by the trial court that the !uardian of advanced a!e is not fit to continue" is not to be disturbed" particularly with his delay in ma#in! an accountin! and filin! an inventory. 4hile a!e alone is not a controllin! criterion" it may be a factor for consideration.@8/

6. Duardianship court

The !uardianship court cannot adjudicate title.@86

1 1 1

Ibid, $ec. :. 4rancisco +. Court of Appeals! supra, note 10'. '0 %arco +. Court of Appeals! 3. 8. -o. L9::10.! January :<! 1().! 111 $C8A .'..
': '*

:. ADOPTION 1. "o%e&n'n) L,$(

@. The basic !overnin! law on domestic adoption is found in 9epublic *ct 0o. E662" which is -*n *ct ,stablishin! the 9ules and Policies on the >omestic *doption of 5ilipino Children.- 1t was approved on 5ebruary 26" @BBE. 1t too# effect fifteen A@6F days after its complete publication in a newspaper of !eneral circulation in the )%%icial Ga'ette.

2. :n >ecember 2" @BBE" 9ules and 9e!ulations to 1mplement the >omestic *doption *ct of @BBE were promul!ated to !overn the adoption of 5ilipino children within the Philippines.

). 5orei!n adoptions are !overned by 9epublic *ct 0o. EC/)" which is -*n *ct ,stablishin! the 9ules to Dovern 1nter+Country *doption of 5ilipino Children"- approved on June 2" @BB6.

/. Prior laws on adoption include provisions in the Child and Louth 4elfare Code APresidential >ecree 0o. 8C)F" the 5amily Code" and ,$ecutive :rder 0o. B@.

6. The 5amily Code e$pressly repealed *rticles @;+@B" 2;+)@" )B+/2 of the Civil Code and *rticles 2;+2B" )@" )) and )6 of Presidential >ecree 0o. 8C).

8. The Civil Code provisions" however" were e$pressly repealed by the provisions of P.>. 0o. 8C)" which too# effect in @B;6" or si$ months after its approval on >ecember @C" @B;/.

;. *bout si$ months before the 5amily Code was si!ned by President Cora&on C. *(uino as ,$ecutive :rder 0o. 2CB on July 8" @BE;" she promul!ated ,$ecutive :rder 0o. B@ on >ecember 2)" @BE8. 1t was published in the )%%icial Ga'ette on January @2" @BE;. 1t should have ta#en effect fifteen A@6F days thereafter or on January 2;" @BE;.

E. 9epublic *ct 0o. E662 provides that any law" presidential decree or issuance" e$ecutive order" letter of instruction" administrative order" rule" or re!ulation contrary to" or inconsistent with its provisions is repealed" modified or amended accordin!ly.@88 The provisions of 9ules BB and @CC in the 9ules of Court should thus be considered amended.

8. Pet't'on 3o& A-o0t'on

@. 4ho may adopt

Those who may adopt are enumerated in Sec. ; of 9ep. *ct 0o. E662" vi'
1 ''

$ec. .'! 8epublic Act -o. )00.! $ec. .'.

AaF *ny 5ilipino citi&en of le!al a!e" in possession of full civil capacity and le!al ri!hts" of !ood moral character" has not been convicted of any crime involvin! moral turpitude" emotionally and psycholo!ically capable of carin! for children" at least si$teen A@8F years older than the adoptee" and who is in a position to support and care for hisMher children in #eepin! with the means of the family.

0ote The re(uirement of si$teen A@8F year difference between the a!e of the adopter and adoptee may be waived when the adopter is the biolo!ical parent of the adoptee" or is the spouse of the adoptee%s parent.

AbF *ny alien possessin! the same (ualifications as above stated for 5ilipino nationals &rovided, That hisMher country has diplomatic relations with the 9epublic of the Philippines" that heMshe has been livin! in the Philippines for at least three A)F continuous years prior to the filin! of the application for adoption and maintains such residence until the adoption decree is entered" that heMshe has been certified by hisMher diplomatic or consular office or any appropriate !overnment a!ency that heMshe has the le!al capacity to adopt in hisMher country" and that hisMher !overnment allows the adoptee to enter hisMher country as hisMher adopted sonMdau!hter &rovided, Further, That the re(uirements on residency and certification of the alien%s (ualification to adopt in hisMher country may be waived for the followin!

AiF a former 5ilipino citi&en who see#s to adopt a relative within the fourth A/thF de!ree of consan!uinity or affinity. or

AiiF one who see#s to adopt the le!itimate sonMdau!hter of hisMher 5ilipino spouse. or

AiiiF one who is married to a 5ilipino citi&en and see#s to adopt jointly with hisMher spouse a relative within the fourth A/thF de!ree of consan!uinity or affinity of the 5ilipino spouse. or

AivF the !uardian with respect to the ward after the termination of the !uardianship and clearance of hisMher financial accountabilities.

AcF 'usband and wife shall jointly adopt" e$cept in the followin! cases

AiF if one spouse see#s to adopt the le!itimate sonMdau!hter of the other. or

AiiF if one spouse see#s to adopt hisMher own ille!itimate sonMdau!hter &rovided, Ho ever, that the other spouse has si!nified hisMher consent thereto. or

AiiiF if the spouses are le!ally separated from each other.

1n case husband and wife jointly adopt" or one spouse adopts the ille!itimate sonMdau!hter of the other" joint parental authority shall be e$ercised by the spouses.

2. Jurisdictional Henue

* petition for adoption shall be filed in the 9e!ional Trial Court of the place in which the petitioner resides.@8;*doption now falls under the ori!inal and e$clusive jurisdiction of the 9e!ional Trial Court.@8E

). Subjects of adoption

4ho may be adopted are enumerated in Sec. E of 9ep. *ct 0o. E662.

/. *liens

*liens are now allowed to adopt. 5or a time" under the 5amily Code repealin! the provisions in the Civil Code" aliens were not allowed to adopt. Those who possess the same (ualifications as 5ilipino nationals upon the followin! conditions

/.@ That hisMher country has diplomatic relations with the 9epublic of the Philippines.

/.2 That heMshe has been livin! in the Philippines for at least three A)F continuous years prior to the filin! of the application for adoption and maintains such residence until the adoption decree is entered.

/.) That heMshe has been certified by hisMher diplomatic or consular office or any appropriate !overnment a!ency that heMshe has the le!al capacity to adopt in hisMher country" and that hisMher !overnment allows the adoptee to enter hisMher country as hisMher adopted sonMdau!hter.

/./ That the re(uirements of residency and certification of the alien%s (ualification to adopt in hisMher country may be waived by the followin!

/./.@ a former 5ilipino citi&en who see#s to adopt a relative within the fourth de!ree of consan!uinity or affinity. or

/./.2 one who see#s to adopt the le!itimate sonMdau!hter of hisMher 5ilipino spouse. or

/./.) one who is married to a 5ilipino citi&en and see#s to adopt jointly with hisMher spouse a relative within the fourth consan!uinity or affinity of the 5ilipino spouse.

6. Joint *doption
1 1 '2 ')

8ules of Court! 8ule ((! $ec. 1. Batas Bl&. 1.(! amendin& $ec. 1( 627.

'usband and wife are re(uired to adopt e$cept AaF if one spouse see#s to adopt the le!itimate sonMdau!hter of the other. AbF if one spouse see#s to adopt hisMher own ille!itimate sonMdau!hter" provided that the other spouse has si!nified hisMher consent thereto. and AcF if the spouses are le!ally separated from each other.@8B

8. *!e >ifference

The a!e difference should be @8 years between the adopter and the adopted" provided that it may be waived when the adopter is the biolo!ical parent of the adoptee or is the spouse of the adoptee%s parent.@;C

;. Procedure

;.@ Contents of petition

The petition should contain the same alle!ations in a petition for !uardianship" to wit

A@F The jurisdictional facts.

A2F The (ualifications of the adopter.

A)F That the adopter is not dis(ualified by law.

A/F The name" a!e" and residence of the person to be adopted and of his relatives or of the persons who have him under their care.

A6F The probable value and character of the estate of the person to be adopted.

;.2 9e(uired consent

Onder Sec. B" 9epublic *ct 0o. E662" written consent of the followin! is re(uired

A@F The adoptee" if ten A@CF years of a!e or over.

A2F The biolo!ical parentAsF of the child" if #nown" or the le!al !uardian" or the proper !overnment instrumentality which has le!al custody of the child.

1 1

'( 2<

8ep. Act -o. )00.! $ec. 2. 8ep. Act -o. )00.! $ec. 2 6a7.

A)F The le!itimate and adopted sonsMdau!hters" ten A@CF years of a!e or over" of the adopterAsF and adoptee" if any.

A/F The ille!itimate sonsMdau!hters" ten A@CF years of a!e or over" of the adopter if livin! with said adopter and the latter%s spouse" if any.

A6F The spouse" if any" of the person adoptin! or to be adopted.

;.) :rder for hearin!

1f the petition and consent are sufficient in form and substance" and a favorable case study has been made" as hereafter mentioned" the court" by an order" shall fi$ the date and place of the hearin! which shall not be more than si$ A8F months after the issuance of the order.@;@

;./ Publication of order

The order shall direct that a copy thereof be published before the hearin! once a wee# for three A)F successive wee#s in a newspaper of !eneral circulation in the province.

;.6 Case Study

0o petition for adoption shall be set for hearin! unless a licensed social wor#er of the >epartment" the social service office of the local !overnment unit" or any child+placin! or child+carin! a!ency has made a case study of the adoptee" hisMher biolo!ical parentAsF" as well as the adopterAsF" and has submitted the report and recommendations on the matter to the court.

;.8 2irth re!istration

*t the time of preparation of the adoptee%s case study" the social wor#er concerned shall confirm with the Civil 9e!istry the real identity and re!istered name of the adoptee. 1f the birth of the adoptee was not re!istered with the Civil 9e!istry" the social wor#er shall ensure that the adoptee is re!istered.

;.; 7e!ally available

The case study shall establish that the adoptee is le!ally available for adoption and that the documents to support this fact are valid and authentic. 5urther" the case study of the adopter shall ascertain his !enuine intentions and that the adoption is in the best interest of the child.

21

8ules of Court! 8ule ((! $ec. *.

;.E 1ntervention by >4S>

The >4S> shall intervene on behalf of the adoptee if it finds" after the case study" that the petition should be denied. The case studies and other relevant documents and records pertainin! to the adoptee and the adoption shall be preserved by the >epartment.@;2

;.B Supervised Trial Custody

0o petition for adoption shall be finally !ranted until the adopterMs hasMhave been !iven by the court a supervised trial custody period for at least si$ A8F months within which the parties are e$pected to adjust psycholo!ically and emotionally to each other and establish a bondin! relationship. >urin! said period" temporary parental authority shall be vested in the adopterMs.

AaF The court may motu proprio or upon motion of any party reduce the trial period if it finds the same to be in the best interest of the adoptee" statin! the reasons for the reduction of the period. 'owever" for alien adopters" they must complete the si$ A8F+month trial custody e$cept for those enumerated in Sec.;AbFAiFAiiFAiiiF.

AbF 1f the child is below seven A;F years of a!e and is placed with the prospective adopter throu!h a pre+adoption placement authority issued by the >epartment" the prospective adopter shall enjoy all the benefits to which biolo!ical parents are entitled from the date the adoptee is placed with the prospective adopter.@;)

;.@C >ecree of adoption

1f" after the publication of the order of hearin!" no opposition has been interposed" and after consideration of the case studies" the (ualifications of the adopter" the trial custody report" and the evidence submitted" the court is convinced that the petitioners are (ualified to adopt" and that the adoption would redound to the best interest of the adoptee" a decree of adoption shall be entered. The decree shall state the name by which the child is to be #nown @;/which shall be effective as of the date the ori!inal petition was filed.

0ote This provision shall also apply in case the petitioner dies before the issuance of the decree of adoption to protect the interest of the adoptee.@;6

E. Civil 9e!istry 9ecord

*n amended certificate of birth" without any notation that it is an amended issue" shall be issued by the Civil 9e!istry" attestin! to the fact that the adoptee is the child of the adopter by bein! re!istered with hisMher surname. The ori!inal certificate of birth shall be stamped %cancelled% with the annotation of the issuance of
1 1 1 1 2. 2:

8ep. Act -o. )00.! $ec. 11. 8ep. Act -o. )00.! $ec. 1.. 2* 8ep. Act -o. )00.! $ec. 1:. 20 Ibid.

an amended birth certificate in its place and shall be sealed in the civil re!istry records@;8

B. Confidential 0ature of Proceedin!s

*ll hearin!s in adoption cases are confidential and shall not be open to the public. *ll records" boo#s" and papers relatin! to the adoption cases in the files of the court" the >4S>" or any other a!ency or institution participatin! in the adoption proceedin!s shall be #ept strictly confidential. The court may authori&e the necessary information to be released" if it is for the best interest of the adoptee and the disclosure is necessary" restrictin! the purposes for which it may be used.@;;

@C. Service of jud!ment

The jud!ment shall be served by the cler# on the civil re!istrar. 9. Re(c'(('on o3 A-o0t'on @. Drounds for rescission

Opon petition of the adoptee" with the assistance of the >S4> if a minor or if over ei!hteen A@EF years of a!e but is incapacitated" as !uardianMcounsel" the adoption may be rescinded on any of the followin! !rounds committed by the adopterAsF AaF repeated physical and verbal maltreatment by the adopterAsF despite havin! under!one counsellin!. AbF attempt on the life of the adoptee. AcF se$ual assault or violence. or AdF abandonment and failure to comply with parental obli!ations.@;E
1 1

12)

8ep. Act -o. )00.! $ec. 1*. 8ep. Act -o. )00.! $ec. 10. 9. Re(c'(('on o3 A-o0t'on
22

2'

@. Drounds for rescission

Opon petition of the adoptee" with the assistance of the >S4> if a minor or if over ei!hteen A@EF years of a!e but is incapacitated" as !uardianMcounsel" the adoption may be rescinded on any of the followin! !rounds committed by the adopterAsF AaF repeated physical and verbal maltreatment by the adopterAsF despite havin! under!one counsellin!. AbF attempt on the life of the adoptee. AcF se$ual assault or violence. or AdF abandonment and failure to comply with parental obli!ations.@;E

2. 4ho may file

* minor or other incapacitated person may" throu!h a !uardian or !uardian ad litem, file the petition for rescission of adoption. Onder 9ep. *ct 0o. E662" Sec. @B" adoption" bein! in the best interest of the child" shall not be subject to rescission by the adopterAsF. 'owever" the adopterAsF may disinherit the adoptee for causes provided in *rticle B@B of the Civil Code.

). Time to file petition

The petition must be filed within five A6F years followin! attainment of majority" or followin! recovery from

2. 4ho may file

* minor or other incapacitated person may" throu!h a !uardian or !uardian ad litem, file the petition for rescission of adoption. Onder 9ep. *ct 0o. E662" Sec. @B" adoption" bein! in the best interest of the child" shall not be subject to rescission by the adopterAsF. 'owever" the adopterAsF may disinherit the adoptee for causes provided in *rticle B@B of the Civil Code.

). Time to file petition

The petition must be filed within five A6F years followin! attainment of majority" or followin! recovery from incompetency.@;B

/. Procedure

incompetency.@;B

/. Procedure

The court shall issue an order re(uirin! the adverse party to answer the petition within fifteen A@6F days from receipt of a copy thereof. The order and a copy of the petition shall be served on the adverse party in such manner as the court may direct. *fter trial" if the court finds the alle!ations of the petition to be true" the court shall render jud!ment orderin! rescission" with or without costs" as justice re(uires.

6. Service of jud!ment

* certified copy of the jud!ment shall be served upon the civil re!istrar concerned. 4ithin thirty A)CF days from rendition of the jud!ment" he shall enter the action in the civil re!ister.@EC

8ootnotes

@;E. 9ep. *ct 0o. E662" Sec. @B.

@;B. 9ules of Court" 9ule @CC" Sec. 6.

@EC. 9ules of Court" 9ule @CC" Sec. /.

2(

8ules of Court! 8ule 1<<! $ec. 0.

The court shall issue an order re(uirin! the adverse party to answer the petition within fifteen A@6F days from receipt of a copy thereof. The order and a copy of the petition shall be served on the adverse party in such manner as the court may direct. *fter trial" if the court finds the alle!ations of the petition to be true" the court shall render jud!ment orderin! rescission" with or without costs" as justice re(uires.

6. Service of jud!ment

* certified copy of the jud!ment shall be served upon the civil re!istrar concerned. 4ithin thirty A)CF days from rendition of the jud!ment" he shall enter the action in the civil re!ister.@EC :. Inte&ACo+nt&/ A-o0t'on DRe0. Act No. HE:9F@ @. *doption by aliens

The 5amily Code had provided that adoption by aliens of 5ilipino children" while !enerally prohibited by the Code" shall be authori&ed in inter+country adoption as may be allowed by law.

2. The law and the implementin! rules and re!ulations

The 1nter+Country *doption *ct was thereafter passed on June ;" @BB6 and too# effect fifteen days after publication in two newspapers of !eneral circulation.. 1ts 1mplementin! 9ules and 9e!ulations was passed by the 1nter+Country *doption 2oard A1C*2F which was thereby created. The implementin! rules" which were patterned after the @BB) 'a!ue Convention" became effective on January @;" @BB8. 1t has been observed that the implementin! rules contain provisions which are adopted from the 'a!ue Convention but are not authori&ed by the law.

). The process

The process of inter+country adoption refers to the process of adoptin! a 5ilipino child by a forei!ner or by a 5ilipino citi&en permanently residin! abroad where the petition is filed. The supervised child custody is underta#en and the decree of adoption is issued outside the Philippines.

/. * le!ally+free child

5or a child to be placed under the covera!e of the 1nter+Country *doption 7aw" he must be le!ally+free which means that the child has been voluntarily or involuntarily committed to the >S4> in accordance with P.>. 0o. 8C) and the necessary documents submitted to the 1C*2.

6. *dopters

The (ualifications for adopters are more strin!ent than the (ualifications for adopters in domestic adoption.
1 )<

8ules of Court! 8ule 1<<! $ec. *.

5or one" an adopter must at least be 2; years of a!e aside from the @8+year difference between the adopter and the adopted.

8. *pplication

*n application for inter+country adoption may be filed with the 9e!ional Trial Court havin! jurisdiction over the child or with the 1C* 2oard" throu!h an intermediate a!ency in the country of the prospective or adoptive parents.

;. 5unctions of the 9TC

The 9e!ional Trial Court appears merely to receive applications from forei!n adoption a!encies" evaluate and assess the (ualifications of the proposed adopter" and pursuant to the implementin! rules" the court must submit its findin!s and the application papers to the 1C*2. The supervised trial custody is conducted and the decree of adoption is issued by the court in the place of the adopter abroad.

E. 9esident *liens

*liens who permanently reside in the Philippines are not (ualified to become adopters under the 1nter+ Country *doption *ct. 'owever" under the >omestic *doption *ct" they are (ualified to adopt.

E.@ *rt. @E/" 5amily Code provides that an alien cannot adopt under Philippine law e$cept %AaF a former 5ilipino citi&en who see#s to adopt a relative by consan!uinity. and AbF one who see#s to adopt the le!itimate child of his or her 5ilipino spouse.%

E.2 4here one of the spouses is an alien" the adoption cannot be allowed. @E@

B. Case rulin!s

B.@ 4here one of the spouses is an alien" they are dis(ualified to adopt under Philippine laws. @E2

B.2 'usband and wife must jointly adopt. @E) B.) 0on+resident aliens cannot adopt. @E/
1 @E2

Executi+e ,rder -o. (1! para&raph .! /ecember 12! 1()'. 9epublic v. Court of *ppeals and 'u!hes" D.9. 0o. @CCE)6" :ctober 28" @BB)" 22; SC9* /C@.

)1

@E)

9epublic v. Court of *ppeals and 'u!hes" D.9. 0o. @CCE)6" :ctober 28" @BB)" 22; SC9* /C@.

)*

Brehm +. 8epublic! 3.8 -o. L91)0''! $eptember :<! 1(':! ( $C8A 12..

;. CU!TODY OF 7INOR! 1. J+&'(-'ct'on * petition for the custody of minors is also provided in Section @" 9ule BB which provides for a petition for adoption. The petition for custody of children is now within the e$clusive ori!inal jurisdiction of 5amily Courts" as provided in Sec. 6AbF" 5amily Courts *ct of @BB;" or 9ep. *ct 0o. E)8B.

8. Ch'*-&en Un-e& !e%en Ye,&( o3 A)e Onder *rticle 2@)" second para!raph 5amily Code" no child under seven years of a!e shall be separated from the mother" unless the court finds compellin! reasons to order otherwise. Onder Pres.>ecreee 8C)" *rt. @;" the a!e of the child was five years of a!e" reduced from the Civil Code provision of seven years of a!e. 0ow it is bac# to seven years of a!e under the 5amily Code.

@. 5ormerly" under the Civil Code" the provision was that no mother should be separated from her child under seven years of a!e. @E6The chan!e emphasi&es the fact that it is the welfare of the child that is paramount.

2. This rule" however" is not absolute. @E8

9. Ch'*- Ab+(e

Complaints on cases of unlawful acts committed a!ainst children under the Child *buse *ct may be filed by AaF the offended party" AbF parents or !uardians" AcF ascendant or collateral relative within the third de!ree of consan!uinity. AdF officer" AeF social wor#er or representative of a licensed child+carin! institution. AfF officer or social wor#er of the >S4>. A!F barangay chairman" or A!F at least three A)F concerned responsible citi&ens where the violation occurred. @E;

@E6

Civil Code" *rticle )8)" second para!raph.

,spiritu v. Court of *ppeals" D.9. 0o. @@68/C" ?arch @6" @BB6" 2/2 SC9* )82. 5or cases on custody" :rda v. Court of *ppeals" D.9. 0o. B2826" >ecember 28" @BBC. @B2 SC9* ;8E. 7una v. 1ntermediate *ppellate Court" 0o. 7+8E);/" June @E" @BE6" @); SC9* ;.
@E8 @E;

9ep. *ct 0o. ;@B2" Sec. 2;.

@. Protective Custody

The child shall be immediately placed under the protective custody of the >S4> pursuant to ,$ecutive :rder 0o. 68" series of @BE8. Custody proceedin!s shall be in accordance with the provisions of Presidential >ecree 0o. 8C). @EE

2. Special Court Proceedin!s

Cases involvin! violations of 9ep. *ct 0o. E)8B shall be heard in the chambers of the 5amily Court Jud!e. @EB

). 4hen parents are separated

The (uestion as to the care" custody and control of a child or children of parents who are divorced or separated" may be brou!ht before a 9e!ional Trial Court by petition or as an incident to any other proceedin!.

).@ *ward of custody

*fter hearin!" the court shall award the care" custody and control of each child as will be for its best interest.

).2 Choice of the child

The child who is over ten A@CF years of a!e" may choose which parent heMshe prefers to live with" unless the parent so chosen is unfit to ta#e char!e of the child by reason of moral depravity" habitual drun#enness" incapacity" or poverty.

).) :ther desi!nations

1f both parents are unfit" the court may desi!nate other persons or an institution to ta#e char!e of the child" such as the paternal or maternal !randparent of the child" or his oldest brother or sister" or some reputable and discreet person.

)./ Support

The court may order either or both parents to support or help support the child"
1 1
)) )(

Ibid, $ec. .). Ibid, $ec. :<.

irrespective of who may be its custodian. The fact that the father has reco!ni&ed the child may be a !round for orderin! him to !ive support" but not for !ivin! him custody of the child. @BC

).6 Hisitation or temporary custody

The court may permit the parent who is deprived of care and custody to visit the child or have temporary custody thereof in an order that is just and reasonable.

).8 *ppeal

,ither parent may appeal from an order made in accordance with the provisions of Section 8" 9ule BB.

).; 9ule of thumb

:nce more" no child under seven years of a!e shall be separated from its mother" unless the court finds that there are compellin! reasons therefor. :. !0ec',* P&o%'('on,* Re1e-'e( 1n cases of violence amon! immediate family members livin! in the same domicile or household" the law now has special provisional remedies.

@. 9estrainin! :rder

5amily Court may issue a restrainin! order a!ainst the accused or defendant upon a verified application by the complainant or the victim for relief from abuse.

2. Temporary Custody

The court may also order the temporary custody of children in all civil actions for their custody.

). Support &endente Lite The court may also order support pendente lite, includin! deduction from the salary and use of conju!al home and other properties in all

@BC

>avid v. Court of *ppeals" D.9. 0o.@@@@EC" 0ovember @8" @BB6" 26C SC9* E2

;. Fo(te& C,&e Provisions on foster care are to be found in *rticles 8; to ;C" Presidential >ecree 0o. 8C). 5oster care is to be preferred to institutional care. 0o child below nine ABF years of a!e shall be placed in an institution. @B2

<. De0en-ent# Ab,n-one- O& Ne)*ecte- Ch'*-&en

These types of children are defined in Presidential >ecree 0o. 8C)" *rt. @/@. * verified petition for their involuntary commitment may be filed. @B)

@. 1nvoluntary commitment

5or various provisions on the procedure for involuntary commitment" such as the contents of the petition" verification" order to set time for hearin!" summons" when not necessary" representation of child" duty of fiscal" hearin!" commitment of child" when child may stay in his own home" termination of ri!hts of parents" authority of person" a!ency or institution" chan!e of custody" refer to *rticles @/2+@6)" Presidential >ecree 8C).

2. Holuntary commitment

Provisions on voluntary commitment which should be in writin!" le!al custody" visitation" report" temporary custody of children" prohibited acts" report of person or institution" refer to *rticles @6/ to @6B" Presidential >ecree 8C).

). Harious other provisions

:ther si!nificant provisions in Presidential >ecree 0o. 8C) refer to

*rt. @6B. Temporary Custody of Child

*rt. @8C. Prohibited *cts of 7eavin! an 1nstitution

*rt. @8@. >uty to 9eport *bandonment

*rt. @82. *doption of >ependent or *bandoned or 0e!lected Child

@B2

Pres. >ecree 0o. 8C)" *rticle 8E. civil actions for support. . Pres. >ecree 0o. 8C)" *rticle @/2.

@B)

*rt. @8). 9estoration of Child *fter 1nvoluntary Commitment

*rt. @8/. 9estoration *fter Holuntary Commitment

*rt. @86. 9emoval of Custody

*rt. @88. 9eport of ?altreated or *bused Child

*rt. @8;. 5reedom from 7iability of 9eportin! Person or 1nstitution.

/. Special Children

* child who appears to be mentally retarded" physically handicapped" emotionally disturbed" or mentally ill" and needs institutional care but his parents or !uardians are opposed thereto" a petition for commitment of the child may be filed. @B/ Provisions on venue" contents of petition" order of hearin!" disposition of property or money of the committed child" children with cerebral palsy" dischar!e of a child judicially committed" dischar!e of child voluntarily committed" report on conduct of child" and related provisions" refer to *rticles @;E to 2C/" P.>. 8C).

<. HABEA! CORPU! 1. De3'n't'on ,n- N,t+&e 2asically" it is a writ directed to the person detainin! another" commandin! him to produce the body of the prisoner at a desi!nated time and place" with the day and cause of his capture and detention" to do" submit to" and receive whatsoever the court or jud!e awardin! the writ shall consider in that behalf. The 7atin term habeas corpus which literally means -you have the body"- is a hi!h prero!ative writ" of ancient common+ law ori!in" the !reat object of which is the liberali&ation of those who may be imprisoned without sufficient cause. 8. F+nct'on ,n- !co0e o3 W&'t
1
(*

%res. /ecree -o. '<:! Article 122

The writ of habeas corpus !enerally e$tends to all cases of ille!al confinement or detention by which a person is A@F deprived of liberty" or A2F the ri!htful custody of a person is withheld from the person entitled thereto. @B6 The writ of habeas corpus is no lon!er available to one who is already out on bail. @B8 9. "&o+n-( 3o& Re*'e3 @. >eprivation of fundamental or constitutional ri!hts

There is restraint of liberty where one is deprived of freedom of action" such as the freedom of locomotion.
@B;

2. 7ac# of jurisdiction of the court to impose the sentence

* person may be detained on the basis of a void judicial order" such as there the court issuin! it had no jurisdiction of the crime char!ed" or of the place where the crime was alle!edly committed" or of the person of the accused @BE or where the court had no jurisdiction over the subject matter. @BB

). ,$cessive penalty The writ of habeas corpus also issues when a bond !iven by the accused entitled thereto is not admitted" or e$cessive bond is re(uired" 2CC or the penalty imposed by the court is not provided by law. 2C@ :. Po$e& to "&,nt W&'t> En3o&ce,b'*'t/ The writ may be issued by the Supreme Court or by the Court of *ppeals or any member thereof" enforceable anywhere in the Philippines" returnable to the same court or any member thereof or to the 9TC AC51F or any jud!e thereof for hearin! and decision. 2C2 ;. Re2+'('te( o3 ,00*'c,t'on 1f the detention is by an officer" the writ shall be directed to him" commandin! him to brin! the body of the person restrained of liberty before the court at the time and place specified. 1f the detention is by a person other than an officer" then the writ shall be directed to an officer commandin! him to the same effect and to summon the person restrainin!. The respondent will be as#ed to e$plain the cause of the detention. 2C) <. P&oce-+&e DI((+,nce o3 $&'t ,n- &et+&nF 1f the writ if issued by an 9TC jud!e" it is returnable only to himself and enforceable only within his judicial district Anow re!ionF 2C/
1 1 1 1 1 . . .

8ules of Court! 8ule 1<.! $ec. 1. Jacarias +s. CruG! 3.8. -o. L9.0)((! -o+ember .(! 1('(! :< $C8A 2.(. (2 "illa+icencio +. LuCban! :( %hil. 22) [1(1(]. () Aalinao +. 8a+eles! 1<) %hil. 110( [1('<]. (( AaCapa&al +. $antamaria! 00 %hil. *1) [1(:<]. << #n reL AcCullou&h /icC! :) %hil. *1 [1(1)]. <1 Llobrera +. /irector of %risons! )2 %hil. 12( [1(0<]. <. 8ules of Court! 8ule 1<.! $ec. .. 2C) 9ules of Court" 9ule @C2" Sec. 8.
(0 ('

2C/

9ules of Court" Sec. 2.

G. D'(ch,&)e o3 Pe&(on Det,'ne4hen the prisoner is unlawfully restrained" the court or jud!e shall order his dischar!e which shall not be effective until a copy of the order is served on the officer or person detainin! the prisoner. 1f such officer or person does not desire to appeal" the prisoner shall be forthwith released. 2C6

G. E!CHEAT!

1. E(che,t(# 7e,n'n) o3

,scheat" a term of 5rench or 0orman derivation meanin! chance or accident" is the reversion of property to the State when the title thereto fails from defect of an heir. 1t is the fallin! of a decedent%s estate into the !eneral property of the State. 8. P&oce-+&e @. 4hen filed

* petition to escheat property is filed when a person dies intestate" leavin! behind real or personal property but without an heir. 2C8

. .

<0 <'

8ules of Court! $ec. 10. 8ules of Court! 8ule (1! $ec. 1.

2. 4ho files petition

The petitioner is the Solicitor Deneral or his representative in behalf of the 9epublic of the Philippines. 2C;

). 4here filed

The petition is filed in the 9e!ional Trial Court where the deceased last resided or in which he had property if he resided out of the Philippines. 2CE

/. Contents of petition

The petition shall set forth the facts and pray that the estate of the deceased be declared escheated. 2CB

6. :rder of 'earin!

The court shall fi$ a date and place for the hearin! of the petition" which date shall not be more than si$ months after the rendition of the order. 2@C

8. Publication

The order shall also direct that a copy thereof shall be published at least once a wee# for si$ A8F successive wee#s in some newspaper of !eneral circulation in the province as the court deems best. 2@@

;. Jud!ment

*fter hearin!" the court shall adjud!e the properties escheated after payment of just debts and char!es" and the properties shall be assi!ned pursuant to law as follows

;.@ The personal estate shall be assi!ned to the municipality or city where the deceased last resided in the Philippines.
2C;

"bid.

. . . .

Ibid. 8ules of Court! 8ule (1! $ec. 1. 1< ;he 8ules use the Iord 'entry' but it means rendition. 11 8ules of Court! 8ule (1! $ec. 1.
<) <(

;.2 The real estate shall be assi!ned to the municipalities or cities" respectively" in which the same is situated.

;.) 1f the deceased never resided in the Philippines" the whole estate may be assi!ned to the respective municipalities or cities where the same is located.

;./ Such estate shall be for the benefit of public schools" and public charitable institutions and centers in said municipalities or cities. 2@2 9. Pe&1,nent T&+(t The court may order the establishment of a permanent trust so that only the income from the property shall be used. 2@) :. C*,'1 W'th'n F'%e Ye,&( 1f a person entitled to the estate escheated appears and files a claim with the court within five A6F years from the date of the jud!ment" he shall obtain possession and title to the property. 1f it has already been sold" the municipality or city shall be accountable to him for the proceeds" after deductin! e$penses for the care of the estate" but a claim not made with said time shall be forever barred. ;. Othe& ,ct'on( 3o& e(che,t *ctions for reversion or escheat of properties alienated in violation of the Constitution or of any statute shall be !overned also by 9ule B@" e$cept that the action shall be instituted in the province where the land lies in whole or in part.

H. CHAN"E OF NA7E 1. N,1e De3'ne-

* name is that word or combination of words by which a person is distin!uished from others and which he bears as a label or appellation for the convenience of the world at lar!e in addressin! him or in spea#in!
. .
1. 1:

8ules of Court! 8ule (1! $ec. :. 8ules of Court! 8ule (1! $ec. :! second para&raph.

of or dealin! with him. 2@/

@. ?inor

* minor may si!n and verify his petition for a chan!e of name subject to the re(uired assistance of a !uardian ad litem, althou!h the absence of the latter does not void the proceedin! because it is amendable. 2@6

2. 9esident *liens

9esident aliens may also petition for a chan!e of name. * nonresident alien may not avail himself of the same ri!ht. such a proceedin! would not be of much benefit to him.2@8 2ut the petition will not be entertained if petitionerKs citi&enship is either controverted or doubtful. 2@; 8. P&oce-+&e @. Henue

The petition shall be filed in the 9TC AC51F of the place of residence of the person desirin! to chan!e his name. 2@E

2. Petition

Petitioner should alle!e A@F that he is a bona %ide resident of the re!ion AprovinceF for at least three A)F years" A2F the cause for the chan!e of name" and A)F the name as#ed for. 2@B

). 'earin!

The hearin! is held after notice and publication. 22C The inclusion in the title of the petition for chan!e of name and in the published order of the name sou!ht to be authori&ed" is jurisdictional. 22@ 9. C,(e R+*'n)( @. Joinder of causes of action

. . . . . . . .

@u +. 8epublic! 3.8. -o. .<)2*! Aay .0! 1(''! 12 $C8A .0:. ;se +. 8epublic! 3.8. -o. .<2<)! Au&ust :1! 1('2! .< $C8A 1.'1. 1' ,n& Huan ;in +. 8epublic! 3.8. -o. .<((2! April .2! 1('2! 1( $C8A (''. 12 Basas +. 8epublic! 3.8. -o. .:0(0! 4ebruary .<! 1(')! .. $C8A '0.. 1) 8ules of Court! 8ule 1<:! $ec. 1. 1( Ibid, $ec. .. .< Ibid, $ecs : and *. .1 3o +. 8epublic! 3. 8. -o. L9:12'<! Aay .0! 1(22! 22 $C8A '0.
1* 10

Petitions for adoption and chan!e of name cannot be joined. They are not the same in nature and character nor do they present common (uestions of law and fact. 222

2. 9esumption of use of maiden name after divorce

The resumption by the wife of her maiden name after a ?uslim divorce" is not chan!e of name under 9ule @C). The proceedin! filed to resume the use of the maiden name is a superfluity but it is directory. 22)

). *bsence of cause

0o proper and reasonable cause has been shown in the petition for a chan!e of name from Hicencio to Lu. 1n fact" confusion is li#ely. *doption is re(uired. 22/

/. Causes for chan!e of name

* /;+year old resident of Tacloban City" named 'aw 7ion!" wanted to chan!e his name to *lfonso 7antin" as he would soon be a 5ilipino. The Supreme Court" however" held that there was no compellin! reason for the chan!e of name. *ccordin! to the Court" what may be considered" amon! others" as proper and reasonable causes that may warrant the chan!e are A@F when the name is ridiculous" tainted with dishonor" or is e$tremely difficult to write or pronounce. A2F when the re(uest for chan!e is a conse(uence of a chan!e of status" such as when a natural child is ac#nowled!ed or le!itimated. and A)F when the chan!e is necessary to avoid confusion. 226

6. ,rasin! si!ns of former nationality

Petitioner was born in 'on! Qon! and came to the Philippines as a 2ritish subject. 'e became a naturali&ed 5ilipino. The Court of *ppeals found that the evidence established sufficient justification for petition for chan!e of name" i.e., a sincere desire to adopt a 5ilipino name Qenneth Qiana So" to erase si!ns of his former nationality which will unduly hamper his social and business life. his chan!e of name will do away with his many aliases which should be discoura!ed" apart from the fact that it will avoid confusion and will be for the convenience of the world at lar!e in addressin! him or in spea#in! of or dealin! with him. 228
222

9epublic v. 'ernande&" D. 9. 0o. @@;2CB" 5ebruary B" @BB8" 26) SC9* 6CB.

22)

Lasin v. Jud!e" ShariKa >istrict Court" D.9. 0o. B/BE8" 5ebruary 2)" @BB6" 2/@ SC9* 8C8.

22/

9epublic v. Court of *ppeals" D.9. 0o. EE2C2" >ecember @/" @BBE" )CC SC9* @)E.

.0

228

HaI Lion& +. 8epublic! 3.8. -o. .11(*! April .*! 1(''! 1' $C8A '22. 9epublic v. 1ntermediate *ppellate Court" D. 9. 0o. 7+;C6@)" :ctober @)" @BE8" @/6 SC9* 26.

8. 9esultin! confusion

7e!itimate minor children were not allowed to adopt the surname of the motherKs second husband" because there would be a false impression of their family relations" as it could result in confusion in their paternity. 22;

;. 1mprovin! personality or social standin!

:n the other hand" a natural child throu!h her mother petitioned for a chan!e of name to adopt the surname of her stepfather. The Solicitor Deneral ar!ued that this would hide the childKs ille!itimacy. The Supreme Court held that there was nothin! wron! with it" and that a chan!e of name may be as#ed to improve oneKs personality or social standin! and to promote his best interests as lon! as injury or prejudice is not caused to anyone. 22E

E. 7e!itimate minor child

* le!itimate minor child may not also be allowed to chan!e his surname from that of a father who was a fu!itive from justice to that of his mother. There will be confusion as to parenta!e as it mi!ht create the impression that the minors were ille!itimate since they would carry the maternal surname only" which is inconsistent with their le!itimate status in their birth records. 22B

B. AB!ENTEE! 1. B,('c Conce0t(

. . .

%adilla +s. 8epublic! -o. L9.).2*! April :<! 1().! 11: $C8A 2)(. Calderon +. 8epublic! 3.8. -o. 1)1.2! April 0! 1('2! 1( $C8A 2.1. .( -aldoGa +. 8epublic! 3.8. -o. L9000:)! Aarch 10! 1().! 11. $C8A 0').
.2 .)

@. Provisional representative

4hen a person disappears without leavin! an a!ent behind" an interested party" relative or friend" may file a petition before the 9TC AC51F of the last place of residence of the person who disappeared to appoint provisionally a representative for him. 2)C

2. Trustee or *dministrator

*fter two A2F years without any news or after five A6F years if an a!ent was left to administer his property" a petition for declaration of absence and appointment of a trustee or administrator may be filed. 2)@

). 0otice and publication is re(uired. 2)2

/. Preferences

The court may appoint as trustee or administrator or provisional representative A@F the spouse of the missin! person if they are not le!ally separated or if the spouse is not a minor or otherwise incompetent. or" in default of the spouse" A2F any competent person. 2))

6. Termination

The appointment shall be terminated A@F if the absentee appears personally or by a!ent. A2F when death is proved and the heirs appear. or A)F when a third person ac(uires the property of the absentee.

8. * wife filed a petition to declare her missin! husband absent and presumed dead. 2ut he left no property. ',7> There is no need for the petition. 2)/* declaration of presumption of death can never be final. 2)6

. . . . . .

8ules of Court! 8ule 1<2! $ec. 1. Ibid, $ec. .. :. Ibid, $ec. *. :: 8ules of Court! 8ule 1<'! $ec. 2. :* 8eyes +. Ale=andro! -o. L9:.<.'! January 1'! 1()'! 1*1 $C8A '0. :0 Jones +. Horti&uela! '* %hil. 12( [1(:2].
:< :1

1E. CANCELLATION OR CORRECTION OF ENTRIE! IN THE CI=IL RE"I!TRY @. Petitioner

The petitioner may be any interested person concernin! the civil status of persons. 2)8

2. Henue

The petition may be filed with the 9TC AC51F where the correspondin! civil re!istry is located. 2);

). Parties

The civil re!istrar and all persons affected shall be made parties to the proceedin!. 2)E

/. 0otice and publication are re(uired before the hearin!. 2)B

6. The remedy for the correction of the civil status of a person is in 9ule @CE which is not a summary but an adversary proceedin!. 2/C

0ote Sec. )" 9ule @CE" re(uires all interested persons who may be affected by the petition to be made parties.

. . . . .

8ules of Court! 8ule 1<)! $ec. 1. Ibid. :) 8ules of Court! 8ule 1<)! $ec. :. :( Ibid, $ec. *. *< 8epublic +. "alencia! -o. L9:.1)1! Aarch 0! 1()'! 1*1 $C8A *'..
:' :2

11. !U77ARY PROCEEDIN"! UNDER THE FA7ILY CODE

1. !+11,&/ P&ocee-'n)( +n-e& the F,1'*/ Co-e

The cases shall be heard by the proper court authori&ed to hear family cases" if one e$ists" or in the re!ional trial court or its e(uivalent" sittin! in the place where either of the parties or spouses resides. 2/@

@. 9ationale

The summary remedy was thou!ht of mainly because of separated spouses. :ne of them usually has difficulty obtainin! the consent of the other spouse for a transaction where such consent is re(uired. Thereafter" it was felt that this summary remedy may as well apply to other cases provided in the 5amily Code where court approval is needed.

2. Procedural rules

*t the same time" however" there was the apprehension that some people may not accept the fact that a piece of le!islation is providin! for procedural rules which" accordin! to them" is within the e$clusive authority of the Supreme Court. 'ence" it was provided in the 5amily Code that Ontil modified by the Supreme Court" the procedural rules in the 5amily Code !overn all cases provided in the Code re(uirin! court proceedin!s. Such cases shall be decided in an e$peditious manner without re!ard to technical rules. 2/2

). Covera!e

Summary procedure may be used in cases provided in *rticles 2)B" 2/E" 22)" 226" 2)6" /@" 6@" 8B" ;)" B8" @2/" 2@;" 5amily Code" vi'8

).@ * verified petition may be filed to see# judicial authori&ation for a transaction where the consent of an estran!ed spouse is needed. 2/) Claims for dama!es by either spouse" e$cept costs" may be liti!ated only in a separate action. 2//

. . .

4amily Code! Art. .*1. Ibid, Art. .:). *: 4amily Code! Article .:(. 2// "bid.
*1 *.

).2 The petition for judicial authority to administer or encumber specific separate property of the abandonin! spouse and to use the fruits or proceeds thereof for support of the family. 2/6

).) Petitions filed under *rticles 22)" 226 and 2)8 of the 5amily Code involvin! parental authority which shall be verified" to be filed in the proper court of the place where the child resides. The court shall notify the parents or" in their absence or incapacity" the individuals" entities or institutions e$ercisin! parental authority over the child.

)./ Summary proceedin!s filed under *rticles /@" 6@" 8B" B8" @2/ and 2@;" insofar as they are applicable.

/. Procedure

The summary procedure is set forth in certain provisions of the 5amily Code A*rts. 2)B+2/;" 26C+ 262" 5CF as follows

/.@ * verified petition

* verified petition settin! forth the alle!ed facts and attachin! the proposed deed of the transaction involved. 2/8

/.2 0otice to interested persons

0otice shall be !iven to all interested persons upon the filin! of the petition.

/.) Preliminary conference

The preliminary conference shall be conducted by the jud!e personally without the parties bein! assisted by counsel. *fter the initial conference" if the court deems it useful" the parties may be assisted by counsel at the succeedin! conferences and hearin!s. 2/;

/./ 9e(uirin! appearance

1n case of non+appearance of the other party" the court shall in(uire into the reasons why and shall re(uire such appearance" if possible. 2/E
. . . .

4amily Code! Article .*). 4amily Code! Article .:(. *2 Ibid, Art. .*:. *) Ibid, Art. .**.
*0 *'

/.6 7+<parte proceedin!

1f attendance is not secured" then the court may proceed e+ parte and render jud!ment as the facts and circumstances warrant" but the court shall endeavor to protect the interests of the non+appearin! party.

/.8 Summary hearin!

The case shall be heard on the basis of affidavits" documentary evidence or oral testimonies at the sound discretion of the court. 2/B

/.; Testimony

1f testimony is needed" the court shall specify the witnesses to be heard and the subject matter of their testimonies" directin! the parties to present said witnesses. 26C

/.E Jud!ment

The jud!ment of the court shall be immediately e$ecutory. 26@

. . .

4amily Code! Art. .*'. Ibid. 01 4amily Code! Art. .*.

*( 0<

18. TRU!TEE! 1. B,('c Conce0t(

@. *ppointment

Opon a proper petition" a trustee may be appointed to carry into effect the provisions of a will or written instrument. 262 The appointment will be made if the testator omitted in his will * nonresident alien may not avail himself of the same ri!ht. such as to appoint a trustee in the Philippines" and if the appointment is necessary to proceedin! would not be of much benefit to him. 26)

2. Henue

The petition may be filed in the 9TC AC51F in which the will is allowed if allowed here. 26/ if not" by the 9TC AC51F in the re!ion in which the property or part thereof affected by the trust is situated. 266

). 0otice

0o publication is re(uired but the appointment is after notice to all persons interested. 268

262

9ules of Court" 9ule BE" Sec. @.26). "bid, Sec. 2.26/. 2asas v. 9epublic" 0o. 7+2)6B6" 5ebruary 2C" @B8E" 22

SC9* 862.

. . .

Ibid., $ec. . Basas ". 8epublic! -o. L9.:0(0! 4ebruary .<! 1(')! .. $C8A '0. 0' Ibid, $ec. ..
0: 0*

/. 2ond" inventory and sale of trust estate

Similar to e$ecutors and administrators" the trustee also files a bond e$cept when the court e$empts him. 26; 'e also files an inventory. 'e may sell or encumber trust property with court approval. 26E

19. PROCEEDIN"! FOR THE HO!PITALIJATION OF IN!ANE PER!ON! @. Henue

The petition should be filed in the 9TC AC51F of the place where the person alle!ed to be insane is found.
26B

2. Petitioner

The petition is to be filed by the >irector of 'ealth when" in his opinion" the commitment to a hospital or other place for the insane is for the public welfare" or the welfare of the alle!ed insane who in his jud!ment is truly insane and such person or the one in char!e of him is opposed to the commitment.28C

). The court shall provide for the custody of the property or money of the insane until a !uardian is appointed.28@

/. The >irector of 'ealth shall file a petition for dischar!e if the person committed is temporarily or permanently cured" or may be released without dan!er.282

6. The Provincial or City 5iscal AProsecutorF represents the >irector of 'ealth in court.28)
. . . . . . .

Ibid, $ecs. 0 and '. Ibid, $ec. (. 0( 8ules of Court! 8ule 1<1! $ec. 1. '< Ibid, $ecs. 1 and :. '1 Ibid, $ec. :. '. Ibid, $ec. *. ': Ibid, $ec. 0.
02 0)

1:. OTHER !PECIAL PROCEEDIN"! 1. =o*+nt,&/ D'((o*+t'on o3 Co&0o&,t'on(

@. This 9ule is no lon!er relevant. The voluntary dissolution of corporations has been !overned by Presidential >ecree 0o. BC2+* and the provisions of the Corporation Code" particularly Secs. @@; to @22 thereof.

2. Proceedin!s have been before the Securities and ,$chan!e Commission" but under 9ep. *ct 0o. E;BB" which is the new Securities 9e!ulation Code" approved July @B" 2CCC" its (uasi+judicial cases have been transferred bac# to the re!ular courts. Sec. 6.2 of 9ep. *ct 0o. E;BB provides

The Commission%s jurisdiction over all cases enumerated under Section 6 of Presidential >ecree 0o. BC2+* is hereby transferred to the Courts of !eneral jurisdiction or the appropriate 9e!ional Trial Court &rovided" That the Supreme Court in the e$ercise of its authority may desi!nate the 9e!ional Trial Court branches that shall e$ercise jurisdiction over these cases. The Commission shall retain jurisdiction over pendin! cases involvin! intra+corporate disputes submitted for final resolution which should be resolved within one A@F year from the enactment of this Code. The Commission shall retain jurisdiction over pendin! suspension of paymentsM rehabilitation cases filed as of )C June 2CCC until finally disposed.

). Section 6 of Presidential >ecree 0o. BC2+*" mentioned in Sec. 6.2 of 9ep. *ct 0o. E;BB above+(uoted" enumerates the followin! cases

AaF >evices or schemes employed by or any acts" of the board of directors" business

associates" its officers or partners" amountin! to fraud and misrepresentation which may be detrimental to the interest of the public andMor of the stoc#holder" partners" members of associations or or!ani&ations re!istered with the Commission.

AbF Controversies arisin! out of intra+corporate or partnership relations" between and amon! stoc#holders" members" or associates. between any or all of them and the corporation" partnership or association of which they are stoc#holders" members or associates" respectively. and between such corporation" partnership or association and the state insofar as it concerns their individual franchise or ri!ht to e$ist as such entity.

AcF Controversies in the election or appointments of directors" trustees" officers or mana!ers of such corporations" partnerships or associations. and

AdF Petitions of corporations" partnerships or associations to be declared in the state of suspension of payments in cases where the corporation" partnership" or association possesses sufficient property to cover all its debts but foresees the impossibility of meetin! them when they respectively fall due or in cases where the corporation" partnership or association has no sufficient assets to cover its liabilities" but is under mana!ement of a 9ehabilitation 9eceiver or ?ana!ement Committee created pursuant to this >ecree. Aas added by &./. No. -:H?.F

/. >ecisions of the courts in the fore!oin! cases are appealable to the Court of *ppeals" as provided by Section ;C of 9ep. *ct 0o. E;BB" which is an affirmation of 9ule /)" @BB; 9ules of Civil Procedure.

6. ,ffective >ecember @6" 2CCC" the 1nterim 9ules of Procedure on Corporate 9ehabilitation too# effect on >ecember @6" 2CCC. A*.?. 0o. CCE+@C+SC" promul!ated on 0ovember 2@" 2CCCF 8. J+-'c',* A00&o%,* o3 =o*+nt,&/ Reco)n't'on o3 7'no& N,t+&,* Ch'*-&en @. There is no lon!er any provision in the 5amily Code for ac#nowled!ed natural children. Children are either le!itimate or ille!itimate.

2. 4hat is to be proved is filiation" and voluntary reco!nition could be the means of provin! filiation if the putative father or mother would later refuse to continue the child.

). 9elevant provisions of law are in *rticles @;2" @;) and @;6 of the 5amily Code.

/. 1n the case of ille!itimate children" the action also survives the death of either or both of the parties e$cept when the action is based on the second para!raph of *rticle @;2" referrin! to an action based on the open and continuous possession of the status of a le!itimate child and any other means allowed by the 9ules of Court" in which case the action may be brou!ht only durin! the lifetime of the alle!ed parent.

6. The action under 9ule @C6 may be converted to an action for paternity and filiation.

6.@ Henue

The petition should be filed in the 9TC AC51F where the child resides. 28/

6.2 Contents of petition

*side from the jurisdictional facts" the petition shall contain

6.2.@ the names and residences of the parents or one of them who ac#nowled!ed" their compulsory heirs and the person or persons with whom the child lives. and

6.2.2 the document containin! the reco!nition" a copy of which should be attached to the petition" which document is either a statement before a court of record or an authentic writin!. 286

6.) * hearin! is held after notice and publication. 288The court !rants the petition when it is satisfied that the reco!nition was willin!ly and voluntarily made and is for the best interest of the child. 28; 9. Con(t't+t'on o3 the F,1'*/ Ho1e @. 9ule @C8 on the Constitution of the 5amily 'ome is already irrelevant in view of the 5amily Code.

2. Onder the 5amily Code" the family home is automatically constituted. *rticle @6) of the 5amily Code provides %The family home is deemed constituted on a house and lot from the time it is occupied as a family residence.%

). The constitution of the family home" however" is not retroactive. 28E

/. The family home must be deemed constituted on both the house and lot such that if the occupants of the family residence do not own the lot on which it stands" there is no family home e$empt from e$ecution.
28B

. . . . .

8ules of Court! 8ule 1<0! $ec. 0. Ibid! $ec. .. '' Ibid! $ec. :. '2 Ibid! $ec. 0. ') Aode>uilla +. Bre+a! 3.8. -o. )':00! Aay :1! 1((<! 1)0 $C8A 2''D Aanacop +. Court of Appeals! 3.8. -o. 1<*)20! -o+ember 1:! 1((.! .10 $C8A 22:D ;aneo! Jr. +. Court of Appeals! 3.8. -o. 1<)0:.! Aarch (! 1(((! :<* $C8A :<)! :1(9:.< [1(((]. '( ;aneo! Jr. +. Court of Appeals! supra, note .').
'* '0

1;. APPEAL! IN !PECIAL PROCEEDIN"! 1. A00e,*,b'*'t/

*n order or jud!ment which is appealable in special proceedin!s is an order or jud!ment which

@. *llows or disallows a will.

2. >etermines who are the lawful heirs of a deceased person" or the distributive share of the estate to which such person is entitled.

). *llows or disallows" in whole or in part" any claim a!ainst the estate of a deceased person" or any claim presented on behalf of the estate in offset to a claim a!ainst it.

/. Settles the account of an e$ecutor" administrator" trustee" or !uardian.

6. Constitutes" in proceedin!s relatin! to the settlement of the estate of a deceased person" or the administration of a trustee or !uardian" a final determination in the lower court of the ri!hts of the party appealin!" e$cept that no appeal shall be allowed from the appointment of a special administrator. and

8. 1s the final order or jud!ment rendered in the case" and affects the substantial ri!hts of the person appealin!" unless it be an order !rantin! or denyin! a motion for new trial or for reconsideration. 2;C 8. Who 7,/ A00e,* *ny interested person may appeal. * stran!er havin! neither material nor direct interest in a testate or intestate estate has no ri!ht to appeal from any order issued therein. 2;@ Those who have been allowed to appeal are

@. * surety of an e$ecutor or administrator" made a party to an accountin! made by such e$ecutor or administrator" from an order approvin! or disapprovin! such accountin!.

2. *n heir" le!atee or devisee who has been served with notice as to a money claim a!ainst the estate admitted by the e$ecutor or administrator" from an order of the court approvin! such claim.

). * creditor who is allowed by the court to brin! an action for recovery of property.

. .

2< 21

8ules of Court! 8ule 1<(! $ec. 1. Espinosa +. Barrios! 2< %hil. :11 [1(*<].

/. * special administrator" from an order disallowin! a will. 2;2 9. Pe&3ect'on o3 A00e,* @. 9ules /@ A*ppeal from the 9e!ional Trial CourtsF" /2 APetition for 9eview from the 9e!ional Trial Courts to the Court of *ppealsF and 9ule /6 A*ppeal by Certiorari to the Supreme CourtF" all of the @BB; 9ules of Civil ProcedureF apply in conformity with 9ule ;2" section 2" which refers to the applicability of the rules of civil actions to special proceedin!s and which provides that in the absence of special provisions" the rules provided for in ordinary actions shall be" as far as practicable" applicable in special proceedin!s.

2. *ppeals in special proceedin!s are termed -multiple appeals- under the 1nterim 9ules of Court and under the @BB; 9ules of Civil Procedure. 5or multiple appeals" a record on appeal is re(uired" while the period of appeal is thirty A)CF days" instead of fifteen A@6F days.

:. A-%,nce D'(t&'b+t'on

@. * part of the estate as may not be affected by the controversy or appeal" may be distributed amon! the heirs or le!atees" upon compliance with the conditions set forth in 9ule BC. 2;)

2. * partial distribution should as much as possible be discoura!ed by the courts" and unless in e$treme cases" such form of advances should not be countenanced. 2;/

:.

The reason for this strict rule is obvious ++ courts should !uard with utmost &eal and jealousy the estate of the decedent to the end that the creditors thereof be ade(uately

protected and all the ri!htful heirs assured of their shares in the inheritance. 2;6

2;2

5luemer v. 'i$" 6/ Phil. 8@C [@B)C].

8ules of Court! 8ule 1<(! $ec. .. Datmaitan v. ?edina" @CB Phil. @CB [@B8C]. reiterated in >ael v. 1ntermediate *ppellate Court" D.9. 0o. 8EE;)" ?arch )@" @BEB" @;@ SC9* 62/.
2:

2;/

20

Ibid.

C&'1'n,* P&oce-+&e Part 1 Procedure in Trial Courts

1. JURI!DICTION IN CRI7INAL CA!E!

A. 1ntroduction

@. Criminal Jurisdiction defined

Criminal jurisdiction is the authority to hear and try a particular offense and impose the punishment for it.@

2. ,lements

2.@ The nature of the offense andMor penalty attached thereto. and

2.2 Commission of the offense within the territorial jurisdiction of the court.

The non+concurrence of either of these two A2F elements may be challen!ed by an accused at any sta!e of the proceedin!s in the court below or on appeal. 5ailin! in one of them" a jud!ment of conviction is null and void.2

2. 9e(uisites for its valid e$ercise

@. Jurisdiction over the subject matter.)

Philippine courts have no common law jurisdiction or power" but only those e$pressly conferred by the Constitution and statutes and those necessarily implied to ma#e the e$press effective./

The (uestion of jurisdiction of the court over the case filed before it is to be resolved on the basis of the law or statute providin! for or definin! its jurisdiction.6
1 . : * 0

%eople +. Aariano! -o. L9*<0.2! June :<! 1(2'! 21 $C8A '<<. Aanila 8ailroad Co. +. Attorney 3eneral! .< %hil. 0.: [1(11]D 5. $. +. Jayme! .* %hil. (< [1(1:]. 8eyes +. /iaG! 2: %hil. *)* [1(*1]. "elunta +. Chief! %hilippine Constabulary! -o. L921)00! January .<! 1())! 102 $C8A 1*2. %eople +. Aariano! supra, note 1.

The jurisdiction of a court to try a criminal action is determined not by the law in force at the time of the commission of offense but by the law in force at the time of the institution of the action.8

:nce vested" jurisdiction cannot be withdrawn or defeated by a subse(uent valid amendment of the information.;

2. Jurisdiction over the territory where the offense was committed. and

). Jurisdiction over the person of the accused.

C. Jurisdiction >etermined by *lle!ations of Complaint or 1nformation

The averments in the complaint or information identify the crime char!ed and determine the court before which it must be tried.E

To determine the jurisdiction of the court in a criminal case" the complaint or information must be e$amined to ascertain if the facts set out therein and the penalty prescribed by law fall within the jurisdiction of the court re!ardless of the courtKs findin!s after the trial.B

>. Jurisdiction :ver Comple$ Crimes

Jurisdiction over the whole comple$ crime is lod!ed with the trial court havin! jurisdiction to impose the ma$imum and most serious penalty imposable of an offense formin! part of the comple$ crime.@C

4here the imposable penalty for the physical injuries char!ed would come within the jurisdiction of the municipal trial court" while the fine for the dama!e to the property" would fall on the Court of 5irst 1nstance Anow the 9e!ional Trial CourtF" the jurisdiction of the court to ta#e co!ni&ance of the case must be determined not by the correspondin! penalty for the physical injuries char!ed but by the fine imposable for the dama!e to property resultin! from the rec#less imprudence.@@

,. Crimes Punishable by /estierro

4here the imposable penalty is destierro such as that imposed in the case of concubina!e in the crime of concubina!e as defined in *rticle ))/ of the 9evised Penal Code" the case falls within the e$clusive jurisdiction of the ?unicipal Trial Court" considerin! that in the hierarchy of penalties under *rticle ;@ of the

' 2 ) ( 1 1
< 1

/e La CruG +. Aoya! -o. L9'01(.! April .2! 1())! 1'< $C8A ):). %eople +. Chupeco! 3. 8. L91(0')! Aarch :1! 1('*! 1< $C8A '*<. %eople +. Aa&allanes! 3. 8. -o. 11)<1:9*! ,ctober 11! 1((0! .*( $C8A .1.. Buaya +. %olo! 3. 8. -o. 20<2(! January .'! 1()(! 1'( $C8A *21. Cuyos +. 3arcia! 3. 8. -o. *'(:*! April 10! 1())! 1'< $C8A :<.. %eople +. Aalabanan! -o. L91'*2)! Au&ust :1! 1('1! . $C8A 11)0.

9evised Penal Code" destierro follows arresto mayor which involves imprisonment.@2

2. TERRITORIAL JURISDICTION
1. "ene&,* R+*e

* criminal case should be instituted and tried in the place where the offense was committed or any of its essential in!redients too# place.@)

,$ceptions

@. Onder the @BE; Constitution" the Supreme Court may order a chan!e of venue or place of trial to avoid a miscarria!e of justice.@/

2. 4hen the law provides otherwise N e.g., Presidential >ecree 0o. @8C8" 9evisin! Presidential >ecree 0o. @/E8 Creatin! a Special Court to be #nown as %Sandiganbayan% and for other purposes" as amended by Presidential >ecree 0o. @E8@.

). Case under the 9evised 9ules of Criminal Procedure" 9ule @@C" Section @6 AbF" AcF and AdF.

8. J+&'(-'ct'on O%e& the Pe&(on o3 Acc+(e-

Jurisdiction over the person of the accused is ac(uired either by hisMher arrest or voluntary appearance in court.@6
1 1 1 1
. : * 0

%eople +. Eduarte! 3. 8. -o. )).:.! 4ebruary .'! 1((<! 1). $C8A 20<. %eople +. Aercado! '0 %hil. ''0 [1(:)]D Aanila 8ailroad Co. +. Attorney 3eneral! supra! note .. Art. "###! $ec. 0 6*7. 8epublic +. $un&a! -o. L9:)':*! June .<! 1())! 1'. $C8A 1(1 citin& Crespo +. Ao&ul! -o. L90::2:! June :<! 1()2! 101 $C8A *'..

9. C&'1'n,* J+&'(-'ct'on O3 7+n'c'0,* T&',* Co+&t( DRe0+b*'c Act G<B1 !ect'on 8 A1en-'n) !ect'on 98 o3 B,t,( B*). 18BF

@. Hiolations of city or municipal ordinances committed within their respective territorial jurisdictions

2. *ll offenses punishable with imprisonment not e$ceedin! si$ A8F years irrespective of the amount of the fine" and re!ardless of other imposable accessory or other penalties" includin! the civil liability arisin! from such offenses or predicated thereon" irrespective of #ind" nature" value or amount thereof

). :ffenses involvin! dama!e to property throu!h criminal ne!li!ence re!ardless of the value of the property

,$ceptions

@. Cases fallin! within the e$clusive ori!inal jurisdiction of the AaF 9e!ional Trial Court" and AbF the Sandiganbayan

,$amples

AiF 7ibel is punishable by prision corrreccional in its minimum and ma$imum period or fine or bail A9evised Penal Code" *rticle )6/F. *rticle )8C" however" of the same code as amended" provides that the criminal and civil action for dama!es in cases of written defamation shall be filed in the court of first instance" etc.@8

AiiF Jurisdiction over ,lection :ffenses

S,C. 28E. ,urisdiction o% courts. I The re!ional trial court shall have the e$clusive ori!inal jurisdiction to try and decide any criminal action or proceedin!s for violation of this Code" e$cept those relatin! to the offense of failure to re!ister or failure to vote which shall be under the jurisdiction of the metropolitan or municipal trial courts. 5rom the decision of the courts" appeal will lie as in other criminal cases.@;

AiiiF *rticle J Jurisdiction :ver >an!erous >ru!s Cases

S,C. )B. ,urisdiction. I The Court of 5irst 1nstance" Circuit Criminal Court" and Juvenile and >omestic 9elations Court shall have concurrent ori!inal jurisdiction over all cases involvin! offenses punishable under this *ct &rovided" That in cities or provinces where there are Juvenile and >omestic 9elations Courts" the said courts shall ta#e e$clusive co!ni&ance of cases where the offenders are under si$teen years of a!e.@E

Thus" the aforementioned e$ception refers not only to Section 2C of 2atas 2l!. @2B providin! for the jurisdiction of 9e!ional Trial Courts in criminal cases" but also to other laws which specifically lod!e in 9e!ional Trial Courts e$clusive jurisdiction over specific
1 1 1
' 2 )

%eople +. Aetropolitan ;rial Court of FueGon City! Br. :.! 3.8. -o. 1.:.'! /ecember 1'! 1(('! .'0 $C8A '*0. ,mnibus Election Code! $ec. 1)*. Aorales +. Court of Appeals! 3. 8. -o. 1.''.:! /ecember 1.! 1((2! .): $C8A .11.

criminal cases" e.g., AaF *rticle )8C of the 9evised Penal Code" as amended by 9epublic *ct @2EB and /)8) on written defamation or libel. AbF 1ntellectual Property Code A9epubic *ct 0o. E2B)F" which vests upon 9e!ional Trial Court e$clusive jurisdiction over the cases therein mentioned re!ardless of the imposable penalty. and AcF more appropriately for the case at bar" Section )B of 9epublic *ct. 0o. 8/26" as amended by Presidential >ecree 0o. //" which vests on Courts of 5irst 1nstance" Circuit Criminal Courts" and the Juvenile and >omestic 9elations Courts concurrent e$clusive ori!inal jurisdiction over all cases involvin! violations of said *ct.@B

2. Cases which fall under the ori!inal and e$clusive jurisdiction of the 5amily Courts A9ep. *ct 0o. E)8BF

). Cases which fall under the ori!inal and e$clusive jurisdiction of the Sandiganbayan under 9epublic *ct E2/B

The Sandiganbayan has e$clusive and ori!inal jurisdiction cases where the accused are those enumerated in subsection a, Section / and" !enerally" national and local officials classified as Drade %2;% and hi!her under the Compensation and Position Classification *ct of @BEB A9ep. *ct 0o. 8;6EF. 1ts jurisdiction over other offenses or felonies committed by public officials and employees in relation to their office is no lon!er determined by the prescribed penalty" vi'., that which is hi!her than prision correccional or imprisonment for si$ A8F years or a fine of Php 8"CCC. it is enou!h that they are committed by those public officials and employees enumerated in subsection a, Section / above. 'owever" it retains its e$clusive ori!inal jurisdiction over civil and criminal cases filed pursuant to or in connection with ,$ecutive :rder 0os. @" ACreatin! the Presidential Commission on Dood DovernmentF. 2 A9e!ardin! the 5unds" ?oneys" *ssets" and Properties 1lle!ally *c(uired or ?isappropriated by 5ormer President 5erdinand ,. ?arcos" ?rs. 1melda 9. ?arcos" Their Close 9elatives" Subordinates" 2usiness *ssociates" >ummies" *!ents" or 0omineesF. @/ A>efinin! the jurisdiction :ver Cases 1nvolvin! the 1ll+!otten 4ealth of 5ormer President 5erdinand ,. ?arcos" ?rs. 1melda 9. ?arcos" ?embers of Their 1mmediate 5amily" Close 9elatives" Subordinates" Close andMor 2usiness *ssociates" >ummies" *!ents" and 0ominees. and @/+* A*mendin! ,.:. 0o. @/F2C

Onder 9epublic *ct 0o. E2/B" the Sandiganbayan partly lost its e$clusive ori!inal jurisdiction in cases involvin!

@. Hiolations of 9epublic *ct 0o. )C@B A*nti+Draft and Corrupt Practices *ct as amendedF.

2. 9epublic *ct 0o. @);B A*n *ct >eclarin! 5orfeiture in 5avor of the State *ny Property 5ound to 'ave 2een Onlawfully *c(uired by any Public :fficer or ,mployee and Providin! for the Proceedin! ThereforF. and

). Chapter 11" Section 2" Title H11 of the 9evised Penal Code. A*rticle 2@C, >irect 2ribery. *rticle 2@@" 1ndirect 2ribery. and *rticle 2@2, Corruption of Public :fficialsF.

A-1'n'(t&,t'%e C'&c+*,& No. EBAB:

1 .
( <

Aorales +. Court of Appeals! supra, note 1). %eople +. Aa&allanes! supra, note ).

Subject Duidelines in the implementation of 9epublic *ct 0o. ;8B@" ,ntitled %*n *ct ,$pandin! the Jurisdiction of the ?etropolitan Trial Courts" ?unicipal Trial Courts and ?unicipal Circuit Trial Courts" *mendin! 5or the Purpose 2atas Pambansa 2l!. @2B" :therwise Qnown as the Judiciary 9eor!ani&ation *ct of @BEC.%

5or the !uidance of the 2ench and the 2ar" the followin! !uidelines are to be followed in the implementation of 9epublic *ct 0o. ;8B@" entitled %*n *ct ,$pandin! the Jurisdiction of the ?etropolitan Trial Courts" ?unicipal Trial Courts" and ?unicipal Circuit Trial Courts" *mendin! for the Purpose 6atas &ambansa 6lg. @2B" :therwise Qnown as the UJudiciary 9eor!ani&ation *ct of @BEC(

$$$

). The criminal jurisdiction of the ?etropolitan Trial Courts" ?unicipal Trial Courts" and ?unicipal Circuit Trial Courts under Section )2 A2F of 2.P. 2l!. @2B" as amended by 9.*. ;8B@" has been increased to cover offenses punishable with imprisonment not e$ceedin! si$ A8F years irrespective of the amount of the fine. *s a conse(uence" the 9e!ional Trial Courts have no more ori!inal jurisdiction over offenses committed by public officers and employees in relation to their office" where the offense is punishable by more than four A/F years and two A2F months up to si$ A8F years.

/. The provisions of Section )2 A2F of 2.P. 2l!. @2B" as amended by 9.*. 0o. ;8B@" apply only to offenses punishable by imprisonment or fine" or both" in which case the amount of the fine is disre!arded in determinin! the jurisdiction of the court. 'owever" in cases where the only penalty provided by law is a fine" the amount thereof shall determine the jurisdiction of the court in accordance with the ori!inal provisions of Section )2 A2F of 2.P. @2B which fi$ed the ori!inal e$clusive jurisdiction of the ?etropolitan Trial Courts" ?unicipal Trial Courts" and ?unicipal Circuit Trial Courts over offenses punishable with a fine of not more than Php /"CCC. 1f the amount of the fine e$ceeds Php /"CCC" the 9e!ional Trial Courts shall have jurisdiction" includin! offenses committed by public officers and employees in relation to their office" where the amount of the fine does not e$ceed Php 8"CCC.

'owever" this rule does not apply to offenses involvin! dama!e to property throu!h criminal ne!li!ence which are under the e$clusive ori!inal jurisdiction of the ?etropolitan Trial Courts" ?unicipal Trial Courts" and ?unicipal Circuit Trial Courts" irrespective of the amount of the imposable fine.

:. C,(e( "o%e&ne- b/ the !+11,&/ R+*e( DRe%'(e- R+*e( on !+11,&/ P&oce-+&eF

@. Hiolations of traffic laws" rules and re!ulations.

2. Hiolations of the 9ental 7aw.

). Hiolations of the municipal or city ordinances.

/. :ffenses committed by the public officers and employees in relation to their office" includin! those employed in !overnment+owned+or+controlled corporations" where the penalty prescribed by law is imprisonment of not e$ceedin! si$ A8F months" or a fine of not e$ceedin! Php @"CCC or both.

6. *ll other criminal cases where the penalty prescribed by law for the offense char!ed does not e$ceed si$ A8F months imprisonment" or a fine of not e$ceedin! Php @"CCC" or both" irrespective of other imposable penalties" accessory or otherwise" or of the civil liability arisin! therefrom.

8. :ffenses involvin! dama!e to property throu!h criminal ne!li!ence where the imposable fine

does not e$ceed Php @C"CCC.

;. C,(e( "o%e&ne- b/ the Re)+*,& R+*e(

@. The re!ular rules are as follows

@.@ :ffenses committed by public officers and employees in relation to their office" includin! those employed in !overnment+owned+or+controlled corporations" whether simple or comple$ed with other crimes" where the penalty prescribed by law imprisonment e$ceedin! si$ A8F years or a fine e$ceedin! Php /"CCC when the offenderKs position is below those enumerated above.

@.2 *ll other offenses where the imposable penalty prescribed by law is imprisonment e$ceedin! si$ A8F years or a fine e$ceedin! Php @"CCC but no more than Php /"CCC or both" re!ardless of other imposable accessory" or other penalties" includin! the civil liabilty arisin! from such offense or predicated thereon" irrespective of #ind" nature" value or amount thereof.2@

@.) :ffenses involvin! dama!e to property throu!h criminal ne!li!ence only" where the imposable fine e$ceeds Php @C"CCC.22

2. 0otes

2.@ %1mposable Penalties% refers to the penalty prescribed by law for the offenses char!ed and not the penalty actually imposed on the accused after the plea of !uilty on trial.

2.2 *ny circumstances which may affect criminal liability must not be considered. The jurisdiction in court in a criminal case is determined by the penalty imposable" not the penalty ultimately imposed.2)

,$amples

AiF Juan is char!ed with serious physical injuries resultin! in deformity under *rticle 28)" para!raph ) of the 9evised Penal Code which prescribed a penalty of prision correccional in its medium and ma$imum periods ran!in! from si$ A8F months and one A@F day to four A/F years and two A2F months. The fact that the ?unicipal Court is of the opinion that the penalty to be imposed should only be arresto mayor would not place the case under the Summary 9ules.

AiiF 1f Juan is char!ed under *rticle 28) para!raph 2 of the 9evised Penal Code with the person injured havin! lost the use of an arm" the penalty prescribed for such offense is
. . .
1 . :

B% Bl&. 1.(! $ec. :.. $ummary 8ules! $ec. 1.B! in relation to B% Bl&. 1.(! $ec. :.. 3ue+arra +. Almodo+ar! 3. 8. -o. 20.0'! January .'! 1()(! 1'( $C8A *2'.

prision correccional in its medium and ma$imum periods ran!in! from two A2F years" four A/F months and one A@F day to si$ A8F years. The case falls under the jurisdiction of the 9e!ional Trial Court. The fact that the 9e!ional Trial Court Jud!e is of the opinion that the penalty to be actually imposed should only be two A2F years and four A/F months would not divest the 9e!ional Trial Court of its jurisdiction since it is the penalty prescribed by law that determines jurisdiction.

2.) %1mposable accessory penalties% refers to the accessory penalties accompanyin! A@F prision correccional prescribed in *rticle /@" 9evised Penal Code A9PCF. A2F arresto mayor prescribed in *rticle /2 and A)F confiscation and forfeiture of the proceeds and instruments of the crime prescribed in *rticle /6" 9PC.

2./ :ther imposable penalties

The additional penalty for habitual delin(uency is not considered in determinin! which court shall have jurisdiction over a criminal case because such delin(uency is not a crime.2/

2.6 Civil liability irrespective of value or amount

4here the offense char!ed is within the e$clusive competence of the municipal trial court by reason of the penalty Aimprisonment" etc.F" it shall have jurisdiction to try and decide the case even if the civil liability Asuch as actual" compensatory" etc.F claimed e$ceeds Php 2C"CCC.26

2.8 Civil liability irrespective of #ind of nature

4here the offense char!ed is within its e$clusive competence by reason of the penalty prescribed therefor" a municipal trial court shall have jurisdiction to try and decide the cases irrespective of the #ind or nature of the civil liability arisin! from the said offense.

,$ample

* municipal trial court has jurisdiction over a case of simple seduction defined and penali&ed under *rticle ))E of the 9evised Penal Code" as amended" with arresto mayor, re!ardless of the civil liability" such as support and ac#nowled!ment of the offsprin!" that may be imposed under *rticle )/6 of the same code.

<. D,1,)e to P&o0e&t/ Th&o+)h C&'1'n,* Ne)*')ence

*rticle )86 of the 9evised Penal Code" as amended" provides that when criminal ne!li!ence shall have resulted only in dama!e to property of another" the offender shall be punished by a fine ran!in! from an
. .
* 0

B. %. Bl&. 1.(; El Pueblo de Filipinas +. $an Juan! '( %hil. :*2 [1(*<]. B. %. Bl&. 1.(! $ec. :.D 5nited $tates +. Bernardo! 1( %hil. .'0 [1(11]D Le&ados +. /e 3uGman! 3. 8. -o. :0).0! 4ebruary .<! 1()(! 12< $C8A :02.

amount e(ual to the value of the said dama!es to three A)F times such value" which shall in no case be less than Php 26.

*ccordin!ly

@. 4here the amount or value of the dama!e to property alle!ed in the complaint or information does not e$ceed Php )"))).))" the municipal trial court shall try and decide the case observin! the Summary 9ules.

0ote Three A)F times the said value does not e$ceed Php @C"CCC.

2. 4here the amount or value of the dama!e to property alle!ed in the complaint or information is one ran!in! from Php )"))/ to Php 8"888.88" a municipal trial court shall try and decide the case observin! 9e!ular 9ules.

0ote Three A)F times the said value e$ceeds Php @C"CCC.

The Summary 9ules are not applicable to 2atas 2l!. 22 where the penalty of imprisonment prescribed e$ceeds the procedural limit of si$ A8F months provided in the Summary 9ules. G. !0ec',* J+&'(-'ct'on 'n Ce&t,'n C,(e( 1n the absence of all 9e!ional Trial Jud!e in a province or city" any ?etropolitan Trial Jud!e" ?unicipal Trial Jud!e" ?unicipal Circuit Trial Jud!e may hear and decide petitions for a writ of habeas corpus or applications for bail in criminal cases in the province or city where the absent 9e!ional Trial Jud!es sit.28

3. Prosecution o O enses
.
'

B% Bl&. 1.(! $ec. :0.

1. In(t't+t'on O3 C&'1'n,* Act'on

@. Prosecution of offenses is instituted either by complaint or information.

The complaint or information shall be in writin!" in the name of the People of the Philippines and a!ainst all persons who appear to be responsible for the offense involved.2; * complaint is a sworn written statement char!in! a person with an offense" subscribed by the offended party" any peace officer" or other public officer char!ed with the enforcement of the law violated.2E*n information is an accusation in writin! char!in! a person with an offense" subscribed by the prosecutor and filed with the court.2B

2. Criminal actions shall be instituted as follows

2.@ 5or offenses where a preliminary investi!ation is re(uired pursuant to section @ of 9ule @@2" by filin! the complaint with the proper officer for the purpose of conductin! the re(uisite preliminary investi!ation.)C ,$cept as provided in section ; of 9ule @@C" a preliminary investi!ation is re(uired to be conducted before the filin! of a complaint or information for an offense where the penalty prescribed by law is at least four A/F years" two A2F months and one A@F day without re!ard to the fine.)@

2.2 5or all other offenses" by filin! the complaint or information directly with the ?unicipal Trial Courts and ?unicipal Circuit Trial Courts" or the complaint with the office of the prosecutor. 1n ?anila and other chartered cities" the complaint shall be filed with the office of the prosecutor unless otherwise provided in their charters.)2

The institution of the criminal action shall interrupt the runnin! of the period of prescription of the offense char!ed unless otherwise provided in special laws.))

). 4ho must prosecute criminal actions

*ll criminal actions commenced by a complaint or information shall be prosecuted under the direction and control of the prosecutor. 'owever" in ?unicipal Trial Courts or ?unicipal Circuit Trial Courts when the prosecutor assi!ned thereto or to the case is not available" the offended party" any peace officer" or public officer char!ed with the enforcement of the law violated may prosecute the case. This authority shall cease upon actual intervention of the prosecutor or upon elevation of the case to the 9e!ional Trial Court.)/

/. 1ntervention of :ffended Party

. . . : : : : :

8ules of Court! 8ule 11<! $ec. .. Ibid, $ec. :. ( Ibid, $ec. *. < Ibid, $ec. 1. 1 Ibid, 8ule 11.! $ec. 1. . 8ules of Court! 8ule 11<! $ec. 1. : Ibid. * 8ules of Court! 8ule 11<! $ec. 0.
2 )

4here the civil action for recovery of civil liability is instituted in the criminal action pursuant to 9ule @@@" the offended party may intervene by counsel in the prosecution of the offense.)6

6. Prosecution of Private Crimes

The crimes of adultery and concubina!e shall not be prosecuted e$cept upon a complaint filed by the offended spouse. The offended party cannot institute criminal prosecution without includin! the !uilty parties" if both are alive" nor" in any case" if the offended party has consented to the offense or pardoned the offenders.

The offenses of seduction" abduction and acts of lasciviousness shall not be prosecuted e$cept upon a complaint filed by the offended party or her parents" !randparents or !uardian" nor" in any case" if the offender has been e$pressly pardoned by any of them. 1f the offended party dies or becomes incapacitated before she can file the complaint # and she has no #nown parents" !randparents or !uardian" the State shall initiate the criminal action in her behalf.

The offended party" even if a minor" has the ri!ht to initiate the prosecution of the offenses of seduction" abduction and acts of lasciviousness independently of her parents" !randparents" or !uardian" unless she is incompetent or incapable of doin! so. 4here the offended party" who is a minor" fails to file the complaint" her parents" !randparents" or !uardian may file the same. The ri!ht to file the action !ranted to parents" !randparents" or !uardian shall be e$clusive of all other persons and shall be e$ercised successively in the order herein provided" e$cept as stated in the precedin! para!raph.

0o criminal action for defamation which consists in the imputation of any of the offenses mentioned above shall be brou!ht e$cept at the instance of and upon complaint filed by the offended party.

The prosecution for violation of special laws shall be !overned by the provisions thereof.)8

8. D'(t'nct'on bet$een cont&o* o3 0&o(ec+t'on ,n- cont&o* o3 co+&t

@. Control by Prosecution

@.@ 4hat case to file);

@.2 4hom to prosecute)E

: : : :

Ibid, $ec. 1'. 8ules of Court! 8ule 11<! $ec. 0. 2 %eople +. %ineda! -o. L9.'...! July .1! 1('2! .< $C8A 2*). ) %eople +. /e+aras! 3. 8. -os. 1<<(:)9(! /ecember 10! 1((:! ..) $C8A *)..
0 '

@.) ?anner of prosecution)B

@./ 9i!ht of Prosecution to withdraw 1nformation before arrai!nment even without notice and hearin!/C

2. Control by Court :nce Case is 5iled

2.@ Suspension of *rrai!nment/@

2.2 9einvesti!ation/2

2.) Prosecution by 5iscal/)

2./ >ismissal//

). 7imitations on Control by Court

).@ Prosecution entitled to notice of hearin!./6

).2 Court must await result of petition for review./8

).) ProsecutionKs stand to maintain prosecution should be respected by court/;

)./ Oltimate test of courtKs independence is where the fiscal files a motion to dismiss or to withdraw information./E

).6 Court has authority to review Apower of judicial reviewF the SecretaryKs recommendation and reject it if there is !rave abuse of discretion./B
: * * * * * * *

* * *

%eople +. -aGareno! 3. 8. -o. 1<:('*! Au&ust 1! 1(('! .'< $C8A .0'. 3al+eG +. Court of Appeals! 3. 8. -o. 11*<*'! ,ctober .*! 1((*! .:2 $C8A ')0. 1 Crespo +. Ao&ul! -o. L90::2:! June :<! 1()2! 101 $C8A *'.. . "elas>ueG +. 5ndersecretary of Justice! 3. 8. -o. ))**.! 4ebruary 1! 1((<! 1). $C8A :)). : $ta. 8osa Ainin& Co. +. Jabala! -o. L9**2.:! Au&ust :1! 1()2! 10: $C8A :'2. * /un&o& +. Court of Appeals! -o. L9220)<901! Aarch .0! 1())! 10( $C8A 1*0. 0 8epublic +. $un&a! -o. L9:)':*! June .<! 1())! 1'. $C8A 1(1. ' Aarcelo +. Court of Appeals! 3. 8. -o. 1<''(0! Au&ust *! 1((*! .:0 $C8A :(D 8oberts +. Court of Appeals! 3. 8. -o. 11:(:<! Aarch 0! 1(('! .0* $C8A :<2D /imatulac +. "illon! 3. 8. -o. 1.2<2! ,ctober 1.! 1(()! .(2 $C8A '2(D $olar ;eam Entertainment! #nc. +. HoI! 3. 8. -o. 1*<)':! Au&ust ..! .<<<. 2 %eople +. Aontesa! 3. 8. -o. 11*:<.! $eptember .(! 1((0! .*) $C8A '*1. ) 8oberts +. Court of Appeals! supra, note *0. ( Ledesma +. Court of Appeals! 3. 8. -o. 11:.1'! $eptember 0! 1((2! .2) $C8A '0'D $olar ;eam Entertainment! #nc. +.
( <

The 9esolution of the Secretary of Justice may be appealed to the :ffice of the President only in offenses punishable by death or reclusion perpetua.HB

).8 To reject or !rant motion to dismiss" the court must ma#e own independent assessment of evidence.6@

).; Jud!ment is void if there is no independent assessment and findin! of !rave abuse of discretion62

9. Te(t'n) !+33'c'enc/ O3 Co10*,'nt O& In3o&1,t'on

* complaint or information is sufficient if it states the name of the accused.6) the desi!nation of the offense !iven by the statute.6/ the acts or omissions complained of as constitutin! the offense.66 the name of the offended party.68 the appro$imate date of the commission of the offense.6; and the place where the offense was committed.6E

4hen an offense is committed by more than one person" all of them shall be included in the complaint or information.6B

D. !t&'ct !c&+t'n/ 'n He'no+( C&'1e(

@. Cause of the accusation

The acts or omissions complained of as constitutin! the offense and the (ualifyin! and a!!ravatin! circumstances must be stated in ordinary and concise lan!ua!e and not necessarily in the lan!ua!e used in the statute but in terms sufficient to enable a person of common understandin! to #now what offense is bein! char!ed as well as its (ualifyin! and a!!ravatin! circumstances and for the court to pronounce jud!ment.8C

b. Pursuant to Section @@ of the amendatory statute" the death penalty may be imposed in rape cases under the last para!raph of *rticle ))6 of the 9evised Penal Code" when the rape is committed with any of the followin! attendant circumstances@

0 0

0 0 0 0 0 0 0 0 '

HoI! supra, note *0. < %ereG +. Ha&onoy 8ural BanC! 3. 8. -o. 1.'.1<! Aarch (! .<<<. 1 AartineG +. Court of Appeals! 3. 8. -o. 11.:)2! ,ctober 1:! 1((*! .:2 $C8A 020D 8oberts +. Court of Appeals! supra, note *0D Ledesma +. Court of Appeals! supra, note *)D %ereG +. Ha&onoy 8ural BanC! supra, note 0<D Jalandoni +. $ecretary of Justice! 3. 8. -os. 110.:(9*<! Aarch .! .<<<. . Ledesma +. Court of Appeals! supra, note *(D $olar ;eam Entertainment +. HoI! supra, note *'. : 8ules of Court! 8ule 11<! $ec. 2. * Ibid, $ec. ). 0 Ibid, $ec. (. ' Ibid, $ec. '. 2 Ibid, $ec. 11. ) Ibid. ( Ibid, $ec. '. < Ibid, $ec. (.

@. 4hen the victim is less than ei!hteen A@EF years of a!e and the offender is a parent" ascendant" step+parent" !uardian" relative by consan!uinity or affinity within the third civil de!ree" or the common+law spouse of the parent of the victim.

2. 4hen the victim is under the custody of the police or military authorities.

). 4hen the rape is committed in full view of the husband" parent" any of the children or other relative within the third de!ree of consan!uinity.

/. 4hen the victim is a reli!ious or a child below seven A;F years old.

6. 4hen the offender #nows that he is afflicted with *c(uired 1mmune >eficiency Syndrome A*1>SF disease.

8. 4hen committed by any member of the *rmed 5orces of the Philippines or the Philippine 0ational Police or any law enforcement a!ency.

;. 4hen by reason on the occasion of the rape" the victim has suffered permanent physical mutilation.8@

The need to alle!e (ualifyin! circumstances to justify findin! of (ualified rape and the imposition of death penalty was stressed in several cases. The additional attendant circumstances introduced by 9ep. *ct 0o. ;86B should be considered as special (ualifyin! circumstances distinctly applicable to the crime of rape" and if not pleaded as such" could only be appreciated as !eneric a!!ravatin! circumstances.82

4ithout alle!ation of relationship in cases of statutory rape" proof alone of relationship unless specifically alle!ed in the information would not warrant imposition of the death penalty.8)

Thus# the concurrence of the minority of the victim and her relationship of the offender is a special (ualifyin! circumstance which should both be alle!ed 8/ and proved86 with certainty in order to warrant the imposition of the death penalty. 1n these cases complainant never said she was below ei!hteen A@EF years of a!e when she was alle!edly raped by her father on any of the dates stated in the complaint.88

4here the information alle!ed the accused" who is the stepfather of complainant" succeeded in havin! carnal #nowled!e of the latter who was then below ei!hteen A@EF years of a!e" the evidence shows that the accused is not the complainantKs stepfather because he and complainantKs mother were not really married but only lived in common law relationship. Thus" althou!h a husband is subject to punishment by death in case he commits rape a!ainst his wifeK s dau!hter" the death penalty cannot be imposed because the relationship alle!ed in the information is different from that actually proven.8;
' ' '

' ' ' '

As amended by 8ep. Act -o. 2'0(! $ec. 11. %eople +. 3arcia! 3. 8. -o. 1.<<(:! -o+ember '! 1((2! .)1 $C8A *':. : %eople +. %ereG! 3. 8. -o. 1..2'*! $eptember .*! 1(()! .(' $C8A 12D %eople +. Bolatete! 3. 8. -o. 1.202<! 4ebruary 1:! 1(((! :<: $C8A 2<(D %eople +. de la Cuesta! 3. 8. -o. 1.'1:*! Aarch .! 1(((! :<* $C8A ):D %eople +. Ambray! 3. 8. -o. 1.2122! 4ebruary .0! 1(((! :<: $C8A '(2. * %eople +. Cantos! 3. 8. -o. 1.(.()! April 1*! 1(((! :<0 $C8A )2'. 0 %eople +. Aan&&asin! 3. 8. -o. 1:<0((9'<! April .1! 1(((! :<' $C8A ..). ' %eople +. Aa&lente! 3. 8. -os. 11.*00(9''! April :<! 1(((! :<' $C8A 0*'. 2 %eople +. Aan&&asin! supra! note '0.
1 .

;. D+0*'c't/ o3 the O33en(e ,n- Cont'n+'n) C&'1e( 1. D+0*'c't/ o3 the o33en(e

* complaint or information must char!e only one offense" e$cept when the law prescribes a sin!le punishment for various offenses.8E

8. Cont'n+'n) C&'1e(@ The P&'nc'0*e o3 De*'to Cont'n+,-o

!,nt',)o %. ",&ch'to&en,

D. 9. 0o. @CB288" >ecember 2" @BB)" 22E SC9* 2@/

The ori!inal 1nformation char!ed petitioner with performin! a sin!le criminal act N that of her approvin! the application for le!ali&ation of aliens not (ualified under the law to enjoy such privile!e. The )2 *mended 1nformations reproduced verbatim the alle!ation of the ori!inal 1nformation" e$cept that instead of the word %aliens% in the ori!inal 1nformation" each amended 1nformation states the name of the individual whose stay was le!ali&ed.

The )2 *mended 1nformations char!e what is #nown as delito continuado or %continued crime% and sometimes referred to as %continuous crime%.

5or Cuello Calon, the delito continuado to e$ist there should be a plurality of acts performed durin! a period of time. unity of penal provision violated. and unity of criminal intent or purpose" which means that two or more violations of the same penal provisions are united in one and the same intent or resolution leadin! to the perpetration of the same criminal purpose or aim.

*ccordin! to Duevarra" in appearance" a delito continuado consists of several crimes but in reality there is only one crime in the mind of the perpetrator.

2.@ ,$amples of >elito Continuado

2.@.@ The sin!le larceny rule

a. The theft of @) cows belon!in! to two different owners committed by the accused at the same place and at the same period of time.8B

b. The theft of si$ roosters belon!in! to two different owners from the same coop and at the same period of time.;C

' ' 2

8ules of Court! 8ule 11<! $ection 1: %eople +. ;umlos! '2 %hil. :.< [1(:(]. < %eople +. Jaranilla! -o. L9.)0*2! 4ebruary ..! 1(2*! 00 $C8A 0':.
) (

c. The theft of two roosters in the same place and on the same occasion.;@

d. The ille!al char!in! of fees for services rendered by a lawyer every time he collects veteransK benefits on behalf of a client" who a!reed that the attorneyKs fees shall be paid out of said benefits.;2

e. 1lle!al approval of the application for the le!ali&ation of stay of )2 aliens" constitutes only one crime.;)

2.@.2 The concept of delito continuado was not applied in the followin! cases

a. Two esta%a cases" one of which was committed durin! the period from January @B to >ecember @BB6 and the other from January @B68 to July @B68. The said acts were committed on two different occasions.;/

b. Several malversations committed in ?ay" June and July" @B)8" and falsifications to conceal the same offenses committed in *u!ust and :ctober @B)8. The malversations and falsifications %were not the result of only one purpose or of only one resolution to embe&&le and falsify $$$.%;6

c. Two esta%a cases" one committed in >ecember @B8) involvin! the failure of the collector to turn over the installments for a radio and the other in June @B8/ involvin! the poc#etin! of the installments for a sewin! machine.;8

d. ;6 esta%a cases committed by the conversion by the a!ent of collections from customers of the employer made on different dates.;;

e. 9obbery and fencin! are two separate crimes. Principle of /elito Continuado is not applicable.;E

f. 1n a sin!le 1nformation for murder for shootin! three persons where evidence did not show that a sin!le shot had slain three different persons" the appellant was properly held liable for three separate murders and sentenced to three separate penalties of reclusion perpetua.:>
2 2 2 2 2 2 2 2 2

%eople +. /e Leon! *( %hil. *:2 [1(.']. %eople +. $abbun! -o. L91)01<! January :1! 1('*! 1< $C8A 10'. : $antia&o +. 3architorena! 3. 8. -o. 1<(.''! /ecember .! 1((:! ..) $C8A .1* * %eople +. /ichupa! 11: %hil. :<' [1('1]. 0 %eople +. Cid! '' %hil. :0* [1(:)]. ' %eople +. Ledesma! -o. L9*100..! $eptember .(! 1(2'! 2: $C8A 22. 2 3amboa +. Court of Appeals! -o. L9*1<0*! -o+ember .)! 1(20! ') $C8A :<). ) Ibid. ( %eople +. Hubilo! 3. 8. -o. 1<12*1! Aarch .:! 1((:! ..< $C8A :)(D %eople +. Co&onan! 3. 8. -o. (*0*)! ,ctober *! 1(('! .'. $C8A '(:
1 .

!. Several victims dyin! from separate shots constitute separate offenses and if there is no objection for duplicity" the accused should be convicted of all offenses char!ed in one 1nformation.EC

1t is not the act of pressin! the tri!!er li#e a Thompson submachine !un that determines the number of felonies committed" but the number of bullets which actually produced them.E@ The firin! of several bullets by the accused althou!h resultin! from one continuous burst of !unfire" constitutes several acts. ,ach person fell by different shots" is a victim of a separate crime of murder.E2 9. E5ce0t'on( to R+*e On D+0*'c't/ The rule on duplicity of offenses does not apply where the law prescribes a sin!le penalty for various offenses such as a comple$ crime under *rticle /E of the 9evised Penal Code or special comple$ crime such as 9obbery with 'omicide or with 9ape or 9ape with 'omicide" or 9ebellion comple$ed with ?urder" 9obbery and Qidnappin!.

:. R+*e on Co10*e5 C&'1e(

The precise lan!ua!e of the statute used in alle!in! the commission of the crime is not necessary as lon! as in char!in! the commission of a comple$ offense li#e that of 9obbery with 'omicide" the information alle!es each element of the component offenses with the same precision that would be necessary if they were made the subject of a separate prosecution.E)

Thus" althou!h the phrase by reason or on occasion of the robbery as provided for by the 9evised Penal Code" was not literally used in the recital of facts alle!in! the commission of the two crimes of 9obbery with 'omicide" the 1nformation as filed sufficiently and distinctly alle!es the commission of the two crimes of robbery and homicide and ade(uately informs the accused of the crime char!ed.E/

Onder *rticle /E of the 9evised Penal Code" when a sin!le act constitutes two or more !rave or less !rave felonies" or when an offense is a necessary means for committin! the other" the penalty for the most serious crime shall be imposed" the same to be applied in its ma$imum period.

The throwin! of a hand !renade at the President with the intention of #illin! him resultin! in the death and injuries of several persons constitutes the comple$ crime of ?urder with *ttempted ?urder.E6

5or a criminal complaint or 1nformation to char!e the commission of a comple$ crime" the alle!ations contained therein do not necessarily have to char!e a comple$ crime as defined by law. 1t is sufficient that the information contains alle!ations which state that one offense was a necessary means to commit the other. The information in (uestion in the present case contains alle!ations properly char!in! the commission of the comple$ crime of incriminatory machinations throu!h unlawful arrest" and the court a
) ) ) ) ) )

%eople +. /ucay! 3. 8. -o. )'(:(! Au&ust .! 1((:! ..0 $C8A 1. %eople +. ;abaco! 3. 8. -os. 1<<:).90! Aarch 1(! 1((2! .2< $C8A :. citin& 8eyes # 8e+ised %enal Code '00 [1((:]. . Ibid. : %eople +. "ictor! 3. 8. -os. 2010*900! 4ebruary '! 1((<! 1)1 $C8A )1). * Ibid. 0 %eople +. 3uillen )0 %hil. :<2 [1(0<].
< 1

quo committed error when it ordered its dismissal.E8 ;. No D+0*'c't/ In R,0e W'th Ho1'c'-e There is no duplicity in an 1nformation for 9ape with 'omicide.E;

4here seven persons committed 9ape with 'omicide in conspiracy with each other" every one of the seven accused may separately be char!ed for rape with homicide.EE <. No D+0*'c't/ In Ch,&)e O3 (stafa There is no duplicity in a char!e of esta%a committed by the accused for misappropriation of the purchase price of several lots owned by the 'ometrust Corporation which were fraudulently received by the accused a!ainst seven lot buyers on the prete$t that she was authori&ed to do so and which she misapplied to her personal use instead of remittin! the money to the owner corporation. The crime of esta%a committed a!ainst the corporation and those committed a!ainst the lot buyers are definitely separate felonies. They were dictated by different criminal intents" committed under different modes of commission provided by the law on esta%a" perpetrated by different acts" consummated on different occasions" and caused injury to different parties.EB G. I**e),* Po((e(('on o3 F'&e,&1 ,n- Un*,$3+* '**'n) $'th the U(e The&eo3

1n case 'omicide or ?urder is committed with the use of unlicensed firearm" such use of unlicensed firearm shall be merely considered as a!!ravatin!.BC

9.*. E2B/ amended P> 0o. @E88 abandoned previous rulin!s that (ualified use of firearms and murder are separate offenses. Onder the present rule" the unauthori&ed use of licensed or unlicensed firearm is simply an a!!ravatin! circumstance in the commission of homicide or murder and no lon!er a separate offense" effectively modifyin! &eople v. #ui*ada and its pro!eny. B@

Thus" is has been held that the principle of absorption does not apply to ille!al possession of firearms in connection with the crime of Subversion but simply describes the mode or manner by which the violation of Section @ of P.>. @E88 was committed so as to (ualify the penalty of death.B2 The char!e should therefore be amended to simple 1lle!al Possession of 5irearm" and was accordin!ly deemed amended by the Supreme Court.B) 1t should" however" be noted that under e$istin! laws A9ep. *ct no. E2B/F" if 'omicide or ?urder is committed with the use of an unlicensed firearm" such use of unlicensed firearm shall be considered merely as an a!!ravatin! circumstance and cannot be the subject of a separate prosecution.B/

1t does not" however" mean that there can no lon!er be any prosecution for the crime of ille!al possession of firearm. 1n !eneral" all pendin! cases involvin! ille!al possession of firearm should continue to be prosecuted and tried if no other crimes e$pressly indicated in 9epublic *ct 0o. E2B/ are involved Amurder
) ) ) ) ( (

( ( (

%eople +. Ala&ao! -o. L9.<2.1! April :<! 1(''! 1' $C8A )2(. $ancheG +. /emetriou! 3. 8. -os. 111221922! -o+ember (! 1((:! ..2 $C8A '.2. ) Ibid. ( #la&an +. Court of Appeals! 3. 8. -o. 11('12! /ecember .(! 1((*! .:( $C8A 020. < %eople +. 4eloteo! 3.8. -o. 1.*.1.! June 0! 1(()! .(< sC8A '.2. 1 3.8. -os. 110<<)9<(! July .*! 1(('! .0( $C8A 1(1 [1((']D %eople +. Aolina! 3.8. -o. 110):09:'! July ..! 1(()! .(. sC8A 2*.. . 8ep. Act -o. 12<< Ias repealed by 8ep. Act -o. 2':'. : %eople +. %imentel! 3.8. -o. 1<<.1<! April 1! 1(()! .)) $C8A 0*.. * %eople +. Aolina! supra, -ote (1.
' 2

or homicide under Section @ and rebellion" insurrection" sedition or attempted coup dKetat under Section )F.B6 H. Reck*e(( I10&+-ence C,(e( 9ec#less imprudence resultin! in sli!ht physical injuries and dama!e to property is not a comple$ crime and cannot be the subject of a sin!le information" they are separate offenses subject to distinct penalties.B8

The two offenses may" however" be consolidated since under the e$panded jurisdiction of the municipal trial courts" dama!e to property throu!h rec#less imprudence now falls under its jurisdiction.B; B. A1en-1ent o& !+b(t't+t'on * complaint or information may be amended" in form or in substance" without leave of court" at any time before the accused enters hisMher plea. *fter the plea and durin! the trial" a formal amendment may only be made with leave of court and when it can be done without causin! prejudice to the ri!hts of the accused.

'owever" any amendment before plea" which down!rades the nature of the offense char!ed in or e$cludes any accused from the complaint or information" can be made only upon motion by the prosecutor" with notice to the offended party and with leave of court. The court shall state its reasons in resolvin! the motion and copies of its order shall be furnished all parties" especially the offended party.

1f it appears at any time before jud!ment that a mista#e has been made in char!in! the proper offense" the court shall dismiss the ori!inal complaint or information upon the filin! of a new one char!in! the proper offense in accordance with section @B" 9ule @@B" provided the accused shall not be placed in double jeopardy. The court may re(uire the witnesses to !ive bail for their appearance at the trial.BE

:. P&o(ec+t'on o3 C'%'* Act'on

1. B,('c R+*e

R+*e( o3 Co+&t# R+*e 111

"nstitution o% criminal and civil actions. N

AaF 4hen a criminal action is instituted" the civil action for the recovery of civil liability arisin! from the offense char!ed shall be deemed instituted with the criminal action unless the offended party waives the civil action" reserves the ri!ht to institute it separately or institutes the civil action prior to the criminal action.

( (

( (

%eople +. "aldeG! 3.8. -o. 1.2'':! Aarch 11! 1(((! :<* $C8A '11. 8eodica +. Court of Appeals! 3. 8. -o. 1.0<''! July )! 1(()! .(. $C8A )2 citin& LontoC +. 3or&onio! Jr.! -o. L9 :2:('! April :<! 1(2(! )( $C8A ':.. 2 8ep. Act -o. 2'(1! $ec. ..
0 ' )

8ules of Court! 8ule 11<! $ec. 1*.

The reservation of the ri!ht to institute separately the civil action shall be made before the prosecution starts presentin! its evidence and under circumstances affordin! the offended party a reasonable opportunity to ma#e such reservation.

4hen the offended party see#s to enforce civil liability a!ainst the accused by way of moral" nominal" temperate" or e$emplary dama!es without specifyin! the amount thereof in the complaint or information" the filin! fees therefore shall constitute a first lien on the jud!ment awardin! such dama!es.

4here the amount of dama!es" other than actual" is specified in the complaint or information" the correspondin! filin! fees shall be paid by the offended party upon the filin! thereof in court.

,$cept as otherwise provided in these 9ules" no filin! fees shall be re(uired for actual dama!es.

0o counterclaim" cross+claim or third+party complaint may be filed by the accused in the criminal case" but any cause of action which could have been the subject thereof may be liti!ated in a separate civil action.

AbF The criminal action for violation of 2atas Pambansa 2l!. 22 shall be deemed to include the correspondin! civil action. 0o reservation to file such civil action separately shall be allowed.

Opon filin! of the aforesaid joint criminal and civil actions" the offended party shall pay in full the filin! fees based on the amount of the chec# involved" which shall be considered as the actual dama!es claimed. 4here the complaint or information also see#s to recover li(uidated" moral" nominal" temperate or e$emplary dama!es" the offended party shall pay additional filin! fees based on the amounts alle!ed therein. 1f the amounts are not so alle!ed but any of these dama!es are subse(uently awarded by the court" the filin! fees based on the amount awarded shall constitute a first lien on the jud!ment.

4here the civil action has been filed separately and trial thereof has not yet commenced" it may be consolidated with the criminal action upon application with the court tryin! the latter case. 1f the application is !ranted" the trial of both actions shall proceed in accordance with in section 2 of this 9ule !overnin! consolidation of the civil and criminal actions.

The 2CCC 9ules on Criminal Procedure deems as instituted with the criminal action only the civil liability arisin! from the offense char!ed. The civil liability is deemed instituted N not merely %impliedly% instituted N with the institution of the criminal action. The independent civil actions under *rticles )2" )))" )/ and 2@;8 of the Civil Code are no lon!er deemed or impliedly instituted with the criminal action or considered as waived even if there is no reservation. The reservation applies only to the civil liability arisin! from the offense char!ed. The employer may no lon!er be held civilly liable for quasi<delict in the criminal action as ruled in Maniago v. Court o% 9ppeals,>> San "lde%onso Lines, "nc. v. Court o% 9ppeals-BB and all other similar cases" since quasi<delict is not deemed instituted with the criminal. 1f at all" the only civil liability of the employer in the criminal action would be hisMher subsidiary liability under the 9evised Penal Code. The rule has also done away with third party complaints and counterclaims in criminal actions. Third+party complaints and counterclaims in criminal actions have to be ventilated in a separate civil action. 8. C'%'* Act'on( Not B,(e- on C&'1e Not E5t'n)+'(he*c(uittal in a criminal action bars the civil action arisin! therefrom where the jud!ment of ac(uittal holds that the accused did not commit the criminal acts imputed to him.@C@

The civil liability that is deemed e$tin!uished is the civil liability based on crime. 2ut not the civil liability based on sources of obli!ation other than the criminal offense althou!h arisin! from the same act or
( 1 1

3.8. -o. 1<*:(.! 4ebruary .<! 1(('! .0: $C8A '2*. 3.8. -o. 11(221! April .*! 1(()! .)( $C8A 0'). <1 1estern #nstitute of ;echnolo&y +. $alas! 3. 8. -o. 11:<:.! Au&ust .1! 1((2! .2) $C8A .1'.
( <<

omission. *rticle 2B of the Civil Code e$pressly provides that when the accused in a criminal prosecution is ac(uitted on the !round that hisMher !uilt has not been proved beyond reasonable doubt" a civil action for dama!es for the same act or omission may be instituted. Such action re(uires only a preponderance of evidence.

The civil liability therefor under *rticles )2" )) )/ and 2@;8 of the Civil Code or those where the source of civil obli!ation is not based on the criminal offense is not affected by the result of the criminal action.

1n other words" the e$tinction of the civil liability referred to in par. AeF of Section )" 9ule @@@" A@B8/ 9ulesF refers e$clusively to the civil liability founded on *rticle @CC of the 9evised Penal Code whereas the civil liability for the same act considered as a (uasi+delict only and not as a crime is not e$tin!uished even by a declaration in the criminal case that the criminal act char!ed has not happened or has not been committed by the accused. 2riefly stated" culpa aquiliana includes voluntary and ne!li!ent acts which may be punishable by law. 1t results" therefore" that the ac(uittal of 9e!inald 'ill in the criminal case has not e$tin!uished hisMher liability for quasi<delict, hence that ac(uittal is not a bar to the instant action a!ainst him.@C2

The only civil liability that may thus be imposed in a criminal action is that arisin! from and conse(uent to the criminal liability of the accused on the principle that every person criminally liable is also civilly liable.@C) This includes restitution" reparation of dama!es caused and indemnification of conse(uential dama!es.@C/ Complementary thereto" are the subsidiary civil liability of inn#eepers" tavern #eepers and proprietor of establishments"@C6 employers" teachers" persons and corporations en!a!ed in any #ind of industry" for felonies committed by their servants" pupils" wor#men" apprentices" employees in the dischar!e of their duties.@C8 9. C&'1'n,* Act'on( To Reco%e& C'%'* L',b'*'t/ A&'('n) F&o1 Delict ,n- C'%'* Act'on( B,(e- on =uasi9 Delict 7,/ P&ocee- !'1+*t,neo+(*/ * separate civil action for dama!es lies a!ainst the offender in a criminal act" whether or not he is criminally prosecuted and found !uilty or ac(uitted" provided that the offended party is not allowed" if he is actually char!ed also criminally" to recover dama!es on both sides" and would be entitled in such eventuality only to the bi!!er award of the two" assumin! the awards made in the two cases vary.@C; :. E5t'nct'on O3 The Pen,* Doe( Not C,&&/ W'th It E5t'nct'on O3 The C'%'* 2ut while every person criminally liable is also civilly liable" the converse is not true. ,$tinction of the penal does not carry with it e$tinction of the civil unless the e$tinction proceeds from a declaration in a final jud!ment that the fact from which the civil mi!ht arise did not e$ist.@CE Similarly" a final jud!ment rendered in a civil action absolvin! the defendant from the civil liability is no bar to a criminal action@CB unless the civil action is a prejudicial (uestion which involves an issue similar or intimately related to the issue raised in the criminal" the resolution of which determines whether or not the criminal action may proceed.@@C

1 1 1 1 1 1

1 1 1

Elcano +. Hill! -o. L9.*)<:! Aay .'! 1(22! 22 $C8A (). 8e+ised %enal Code! Art. 1<<. <* Ibid, Art. 1<*. <0 Ibid, Art. 1<.. <' Ibid, Art. 1<:. <2 Elcano +. Hill! supra! note 1<.D Jarantilla +. Court of Appeals! 3. 8. -o. )<1(*! Aarch .1! 1()(! 121 $C8A *.(D Ace Haulers Corporation +. Court of Appeals! 3. 8. -o. 1.2(:*! Au&ust .:! .<<<. <) 8ules of Court! 8ule 111! $ec. .6b7. <( Ibid, $ec. 0. 1< Ibid, $ecs. ' and 2.
<. <:

:. PROCEDURAL CHEC LI!T! ON CRI7INAL PROCEDURE

1. Fo& C,(e( Co)n'6,b*e B/ The 7+n'c'0,* T&',* Co+&t(

Check*'(t I

Thin!s To Chec#M>o Opon 9eceipt :f Complaint :r 1nformation

@. Chec# if the offense char!ed is within courtKs jurisdiction.

2. 1f the offense is not within the courtKs jurisdiction" dismiss complaintMinformation" unless the complaint presents a case for preliminary investi!ation by the ?unicipal Trial Court.

$hen Case is %or &reliminary "nvestigation

@. 4hen the case is for preliminary investi!ation by the ?unicipal Trial Court" chec# the complaint as well as accompanyin! affidavits and other supportin! documents if there is !round to continue with the in(uiry.

@.@ 1f there is no such !round" dismiss the complaint.

@.2 1f there is such !round" conduct preliminary investi!ation followin! the procedure in 9ule @@2" Section ).

2. 4ithout waitin! for the conclusion of the preliminary investi!ation" the investi!atin! jud!e may issue a warrant of arrest" after conductin! an e$amination under oath of the complainant and hisMher witnesses in the form of searchin! (uestions and answers to determine e$istence of probable cause and the necessity of placin! the respondent under immediate custody so as not to frustrate the ends of justice.

0ote 5or purposes of issuin! a warrant of arrest durin! preliminary investi!ation" it is mandatory that an e$amination in writin! and under oath by searchin! (uestions and answers should be conducted by the investi!atin! jud!e.@@@

2.@ 1f there is probable cause but no such %necessity"% do not issue arrest warrant. only issue the subpoena to respondent" attachin! thereto a copy of the complaint" affidavits" and other supportin! documents with the directive to submit counter affidavits within ten A@CF days from receipt of order.

2.@.@ 1llustrative case 4here no such %necessity% e$ists

The issuance of warrant of arrest by the ?unicipal Jud!e conductin! preliminary investi!ation is left to hisMher sound jud!ment and discretion. The Supreme Court sustained Jud!e SamuldeKs refusal to issue an arrest warrant" holdin! that under the applicable rule" it is not obli!atory" but merely discretionary" upon the investi!atin! jud!e to issue a warrant for the arrest of the accused" for the determination of whether a probable cause e$ists and whether it is necessary to arrest the accused in order not to frustrate the ends of justice" is left to hisMher sound jud!ment or discretion. 1n this particular case" since the robbery char!e was offshoot of a boundary dispute between the two property owners" the investi!atin! jud!e did not believe there was any dan!er of the accused abscondin! before the filin! of the information a!ainst him by the fiscal" hence" he found no need to place him under immediate custody.@@2

2.2 1f" however" hisMher findin!s and recommendations are affirmed by the provincial fiscal or city
1 1
11 1.

8ules of Court! 8ule 11.! $ec. ' 6b7D ,rtiG +. %alaypayon! A. A. -o. A;J9(:9).:! July .0! 1((*! .:* $C8A :(1. $amulde +. $al+ani. Jr.! -o. L92)'<'! $eptember .'! 1())! 1'0 $C8A 2:*.

prosecutor or by the :mbudsman or hisMher deputy" and the correspondin! information is filed" he shall issue a warrant of arrest.@@)

). 1f there is possible cause and such %necessity%" issue arrest warrant.

$hen Case is %or 5rial on the Merits

@. 1f the case presented by complaint or information is within the jurisdiction of the ?unicipal Trial Court" chec# if case is for %summary procedure% or %re!ular procedure.%

@.@ Summary Procedure Cases

@.@.@ ?a#e preliminary determination whether to dismiss case outri!ht for bein! patently without basis or merit or to re(uire further proceedin!s to be ta#en.

@.@.2 4hen further proceedin!s are re(uired" set the case for immediate arrai!nment of the accused who is under custody and if he pleads not !uilty" render jud!ment forthwith. if he pleads not !uilty" he shall be released without bail unless he is a recidivist" fu!itive from justice" is char!ed with physical injuries" does not reside in the place where the violation of the law or ordinance was committed" or has no #nown residence.

@.2 9e!ular Procedure Cases

@.2.@ 1f the case is commenced by complaint or information" the procedure in section ) AaF" 9ule @@2 shall be observed.

@.2.2 1f within ten A@CF days from the filin! of the complaint or information" the jud!e after evaluatin! the evidence or after personally e$aminin! in writin! and under oath the complainant and hisMher witnesses" the jud!e finds no probable cause he shall dismiss the case unless it is deemed necessary to re(uire submission of affidavits of witnesses to aid him in arrivin! at the conclusion as to the e$istence of probable cause which should be done within ten A@CF days from notice.

@.2.) 1f the case is commenced by complaint" the court may either evaluate the supportin! affidavits or personally e$amine in writin! and under oath the complainant and hisMher witnesses in the form of searchin! (uestions and answers to determine if there is probable cause. if there is" issue arrest warrant. otherwise" dismiss the case outri!ht.

@.2./ The court may" however" opt not to issue a warrant of arrest or a commitment order if the accused had already been arrested" and hold him for trial. 'owever" if the jud!e is satisfied that there is no necessity for placin! the accused under custody" he may issue a
1
1:

8ules of Court! 8ule 11:! $ec. 0 6b7.

summons instead of a warrant of arrest. This refers only to cases which do not re(uire preliminary investi!ation.@@/

@.2.6 %Searchin! Guestions and *nswers% means only" ta#in! into consideration the purpose of the preliminary e$amination which is to determine whether there is a reasonable !round to believe that an offense has been committed and the accused is probably !uilty thereof so that a warrant of arrest may be issued and the accused held for trial" such (uestions as have tendency to show the commission of a crime and the perpetrator thereof. 4hat would be searchin! (uestions would depend on what is sou!ht to be in(uired into" such as the nature of the offense" the date" time" and the place of its commission" the possible motives for its commission. the subject" hisMher a!e" education" status" financial and social circumstances" hisMher attitude toward the investi!ation" social attitudes" opportunities to commit the offense. the victim" hisMher a!e" status" family responsibilities" financial and social circumstances" characteristics" etc. The points that are subject of in(uiry may differ from case to case. The (uestions" therefore" must to a !reat de!ree depend upon the jud!e ma#in! the investi!ation.

@.2.8 5orm of Searchin! Guestions for Simple Theft AThe witness is duly sworn to and !ives hisMher name and other personal circumstancesF

G. + *re you the same complainant in this complaint for simple theftP

*. +

G. + >escribe the rin! alle!edly stolen from you.

*. +

G. N 4hen and how did you learn that your rin! was stolenP

*. N

G. N 4hen and how did you come to #now the accusedP

*. N

1*

Ibid, 8ule 11.! $ec. ( 6b7.

G. N 4here does the accused resideP

*. N

G. N >o you #now the accusedKs present whereaboutsP

*. N

G. N 1s the accused related to you by blood or marria!eP

*. N

G. N >id you have any #ind of dealin! with the accused before the date in (uestionP 1f so" whatP

*. N

G. N >o you #now of any reason why the accused would ta#e your rin! without your consentP

*. N

G. N >o you owe the accused anythin!P

*. N

G. N 4hen and how did you ac(uire the rin!P

*. N

G. N 4hat is the appro$imate value of the rin!P

*. N

G. N >id you actually witness the ta#in! of your rin!P

*. N

G. N State the name or names of the person or persons" if any" who #now the alle!ed theft.

*. N

G. N >o you wish to state anythin! elseP

*. + 1f the jud!e still finds no probable cause despite the additional evidence" he shall" within ten A@CF days from its submission or e$piration of said period" dismiss the case. 4hen he finds probable cause" he shall issue a warrant of arrest" or a commitment order if the accused had already been arrested" and hold him for trial. 'owever" if the jud!e is satisfied that there is no necessity for placin! the accused under custody" he may issue summons instead of a warrant of arrest.

Check*'(t II

Thin!s To Chec#M>o *fter The 1ssuance :f *rrest 4arrant *nd 2efore Trial Sta!e

@. 1f arrest warrant was properly released and a report has been properly submitted but accused could not be apprehended for a considerable len!th of time" issue alias arrest warrant and order for archivin! of case.

@.@ 1f report is submitted with accused bein! arrested and he does not post bail forthwith" issue correspondin! commitment pendin! trial and have it served on warden or head of the jail or place of detention" alon! with the correspondin! notice to produce the accused before the court for arrai!nment on the date and time already fi$ed by the court.

@.2 1n case of a summary procedure case and accused is arrested under an arrest warrant issued for failure of accused to appear when re(uired Aper second para!raph Section @C of the Summary 9uleF" set case for immediate arrai!nment" the warden or head of the jail or place of detention li#ewise bein! served with correspondin! commitment pendin! trial and notice to produce the accused for arrai!nment before the court.

@.) 1f accused files bail bond" cash bond deposit" or reco!ni&ance" chec# sufficiency of documentation" particularly the correspondin! si!natures on the re(uisite documents" and if in

order" approve it and issue correspondin! release order for immediate service on officer concerned.

2. *t the scheduled arrai!nment" jud!e shall inform accused who appears without counsel of hisMher ri!ht to counsel and shall as# accused if he desires to have one.

2.@ 1n proper cases" appoint counsel de o%icio for the accused who appears without counsel.

). *rrai!nment must be in open court. accused must be furnished a copy of the complaint or information. accused must be present at the arrai!nment and plea must be made of record. if accused refuses to plead" or he ma#es a conditional plea of !uilty Ae.g., enterin! a plea of !uilt provided the penalty to be meted shall only be a fineF" then enter a plea of not !uilty for the accused.

/. 1f accused wants to plead !uilty to lesser offense" both prosecutor and offended party must consent thereto.

6. 1f accused pleads !uilty" impose correspondin! sentence" unless court desires to receive evidence to determine penalty to be imposed" includin! civil indemnity in the proper cases.

8. 1f the plea is not !uilty" set case for trial.

;. *fter arrai!nment" as a measure to e$pedite the trial" where the accused and counsel a!ree" conduct a pre+trial conference" without impairin! the ri!hts of the accused" on the followin! matters" to wit AaF plea bar!ainin!. AbF stipulation of facts. AcF mar#in! for identification of parties evidence. AdF waiver of objections to admissibility of evidence. and" AeF such other matters as will promote a fair and e$peditious trial.

;.@ *fter pre+trial" issue order recitin! the actions ta#en" the facts stipulated" and evidence mar#ed.

;.2 Chec# if a!reementMs or admissionMs made entered durin! pre+trial were properly reduced to writin! and duly si!ned by the parties char!ed and their counsel.

B. Fo& C,(e( Co)n'6,b*e B/ The Re)'on,* T&',* Co+&t(

Check*'(t I

Thin!s To >o Opon 9eceipt :f Complaint :r 1nformation Op To 1ssuance :f The 4arrant :f *rrest

@. Chec# if" on the face of the informationMcomplaint" the court has jurisdiction over the case. otherwise" dismiss it and order the release of the accused if under detention insofar as the case is concerned.

2. Chec# if a claim for dama!es other than actual alle!ed in the informationMcomplaint" and if in the affirmative" ascertain whether appropriate filin!Mdoc#et fee for said claim has been paid to the cler# of court. 1f the re(uisite filin!Mdoc#et fees have not been paid at the time of the filin! of the informationMcomplaint" issue an order to the offended party to pay the re(uisite filin!Mdoc#et fees within a reasonable time.

). 1f accused is detained" issue a commitmentMdetention order to the wardenMjailers. if the accused is at lar!e" issue a warrant for hisMher arrest" in accordance with the succeedin! steps.

/. 4hen warrant of arrest may issue

4ithin ten A@CF days from the filin! of the complaint or information" the jud!e shall personally evaluate the resolution of the prosecutor and its supportin! evidence. 'e may immediately dismiss the case if the evidence on record clearly fails to establish probable cause. 1f he finds probable cause" he shall issue a warrant of arrest" or a commitment order if the accused has already been arrested pursuant to a warrant issued by the jud!e who conducted the preliminary investi!ation or when the Complaint or 1nformation was filed pursuant to section ; of the 9ule. 1n case of doubt on the e$istence of probable cause" the jud!e may order the prosecutor to present additional evidence within five A6F days from notice and the issue must be resolved by the court within thirty A)CF days from the filin! of the complaint of information.

6. 1f not satisfied upon the filin! of informationMcomplaint that probable cause e$ists" order the prosecutor to submit the records of the case and if based thereon" there is probable cause" issue a warrant of arrest. :therwise" dismiss the case.

8. 1f the char!e is bailable" fi$ the amount of bail either in the commitmentMdetention order or warrant of arrest.

Check*'(t II

1ncidents *fter 1ssuance :f 4arrant :f *rrest :r Commitment :rder

@. :nce the accused is arrested or otherwise ta#en into custody" issue a commitment order and set the case for arrai!nment.

2. 4hen the accused is under preventive detention" hisMher case shall be raffled and its records transmitted to the jud!e to whom the case was raffled within three A)F days from the filin! of the information or complaint. The accused shall be arrai!ned within ten A@CF days from the date of the raffle. The pre+trial conference shall be held within ten A@CF days after arrai!nment.@@6

). Onless a shorter period is provided by special law or Supreme Court circular" the arrai!nment shall be held within thirty A)CF days from the date the court ac(uires jurisdiction over the person of the accused. The time of the pendency of a motion to (uash or for a bill of particulars or other causes justifyin! suspension of the arrai!nment shall be e$cluded in computin! the period.@@8

/. 1f there is failure to e$ecute the warrant of arrest or no report is made within ten A@CF days from receipt of the warrant by the e$ecutin! officer" issue an alias arrest warrant and order the archivin! of the case" furnishin! a copy of the said order to the complainant.

6. 1f bail is a matter of ri!ht" and the accused files bail" ascertain if all the re(uirements for the bail are complied with" as follows
1 1
10 1'

8ules of Court! 8ule 11'! $ec. 1 6e7. 8ules of Court! 8ule 11'! $ec. 1 6&7D $C Circular -o. :)9().

6.@ Cash 2ond

6.@.@ The official receipt or certificate of deposit of the amount of bail fi$ed by the court who filed the informationMcomplaint" issued by the !overnment officer concerned" is attached to records of the case.

6.@.2 The written underta#in!" e$ecuted by the accused containin! all the conditions contained in Section 2 of 9ule @@/ of the 9evised 9ules on Criminal Procedure" as amended" is attached to the records of the case.

6.2 Corporate Surety

6.2.@ Photocopy of the Certification issued by the Supreme Court" accompanied by the photocopies of receipts of payment by the surety company of the re(uisite fees to the Supreme Court is attached to the bond.

6.2.2 Certificate of the Cler# of Court of the 9e!ional Trial Court where the case is filed and pendin! showin! that the bondin! company does not have any pendin! obli!ationsMliabilities to the !overnment" consistin! of writs of e$ecution andMor confiscated bonds in criminal cases and that bondin! company was issued a Certificate of *uthority by the 1nsurance Commission and presently updatin! its obli!ation.

6.2.) Certificate of *uthority issued by the 1nsurance Commission.

6.) Property 2ond

6.).@ *ffidavit of suretyM sureties ta#en before the jud!e or submitted to the jud!e" statin! therein that each of the sureties possesses the (ualifications as provided for in Section @2 of 9ule @@/ of the 2CCC 9ules on Criminal Procedure and describin! the property offered as bond for the accused" the nature of the title of the property" the encumbrances thereon" the number and amount of other bonds entered into by himMthem and remainin! undischar!ed" and hisMherMtheir other liabilities" if any.

6.).2 :wnerKs duplicate of the ori!inal Certificate of Title of the suretyMsureties coverin! the property offered as bond" if re!istered under the Torrens system or" the :wnerKs copy of the declaration of 9eal Property" if unre!istered.

6.).) Certificates of Payment of 9ealty Ta$es on the property offered as bond. 1f the property is sufficient" and the re(uisite affidavit is submitted to the court" approve the bond and order the accused to cause the annotation of the lien" within ten A@CF days from the receipt by the accused of the court" at the bac# of the title to the property" if re!istered" or in the 9e!istration 2oo#" if unre!istered" and on the correspondin! ta$ declaration in the :ffice of the Provincial and ?unicipal *ssessor concerned.

Opon compliance by the accused of order of the court" issue an order releasin! the accused from detention.

8. 1n either case" the accused should submit photo!raphs Apassport si&eF ta#en within the last si$ A8F months showin! the face" the left and ri!ht profiles of the accused and attached to the records" and the written underta#in! containin! the conditions set forth in Section 2 of 9ule @@/ of the 2CCC 9ules on Criminal Procedure" as amended.

;. 1f the accused fails to comply with the order of the court for the annotation of the lien and for the re!istration of the annotation" cancel the property bond.

E. 1f the accused applies for release on reco!ni&ance" set the hearin! of the application and !ive reasonable notice of the hearin! to the prosecutor with the re(uirement to submit the comment and recommendation in the application.

E.@ >efinition of 9eco!ni&ance

*n obli!ation of record" entered into before some court or ma!istrate duly authori&ed to ta#e it" with the condition to do some particular act" the most usual condition in criminal cases bein! the appearance of the accused for trial. a contract between the sureties and the State for the production of the principal at the re(uired time.@@;

E.2 9eco!ni&ance may be allowed in the followin! instances

E.2.@ The char!e a!ainst the accused is for violation of a municipal or city ordinance" a li!ht felony andMor a criminal offense prescribed penalty for which is not hi!her than si$ A8F months imprisonment andMor a fine of Php 2"CCC" or both" provided the accused has established" to the satisfaction of the court" the inability to post the re(uired cash or bail bond.

E.2.2 4hen the accused has been in custody for a period e(ual to or more than the possible ma$imum imprisonment of the offense char!ed to which heMshe may be sentenced. 'owever" if the ma$imum penalty to which the accused is sentenced is destierro, he shall be released after thirty A)CF days of preventive imprisonment.

E.2.) *t the discretion of the Court" if the accused has been in custody for a period e(ual to or more than the minimum of the principal penalty prescribed for the offense char!ed" without applyin! the 1ndeterminate Sentence 7aw or any modifyin! circumstances.

E.2./ *t the discretion of the court" and" upon recommendation of the >epartment of Social 4elfare and >evelopment A>S4>F or other a!ency or a!encies" if the accused is a youthful offender over nine ABF but under ei!hteen A@EF years at the same time of the commission of the offense char!ed" in which case" the accused may be released on
1
12

%eople +. Abner )2 %hil. 0'' [1(0<].

hisMher own co!ni&ance or to the custody of hisMher parents or of a suitable person who shall be punishable for the appearance of the accused when re(uired.

B. 4here the accused is char!ed with a capital offense which" under the law at the time of the application for bail is punishable by death or reclusion perpetua, and the accused files an application for bail" !ive reasonable notice of the hearin! to the prosecutor or re(uire him to submit hisMher recommendation.

@C. 1f the prosecutor" where bail is a matter of discretion" objects to the application of the accused for bail" hold in abeyance resolution of the application until the arrai!nment of the accused.

@@. 1f the case is not dismissed and the accused is under arrest" order the 2ranch Cler# of Court to schedule the arrai!nment of the accused with notice to the complainant.

9. Co11on P&oce-+&e( 'n F'&(t ,n- !econ- Le%e* Co+&t(

Check*'(t I

Thin!s To >o *t The *rrai!nment :f The *ccused@@E

@. The accused must be arrai!ned before the court where the Complaint or 1nformation was filed or assi!ned for trial. The arrai!nment shall be made in open court by the jud!e or cler# by furnishin! the
1
1)

8ules of Court! 8ule 11'.

accused with a copy of the Complaint or 1nformation" readin! the same in the lan!ua!e or dialect #nown to him" and as#in! him whether he pleads !uilty or not !uilty. The prosecution may call at the trial witnesses other than those named in the Complaint or 1nformation.

2. The accused must be present at the arrai!nment and must personally enter hisMher plea. 2oth arrai!nment and plea shall be made of record" but failure to do so shall not affect the validity of the proceedin!s.

). 2efore the readin! of the 1nformation" where the accused is not assisted by counsel de parte, inform himMher of hisMher ri!ht to counsel of his own choice and in(uire from him if heMshe desires to en!a!e hisMher own counsel. Onless the accused is allowed to defend himself in person" and the accused is amenable to a counsel de o%icio, appoint a competent and responsible counsel de o%icio for him.

/. 4henever a counsel de o%icio is appointed by the court to defend the accused at the arrai!nment" he shall be !iven a reasonable time to consult with the accused as to hisMher plea before proceedin! with the arrai!nment.

6. 4hen the accused refuses to plead or ma#es a conditional plea" a plea of not !uilty shall be entered for him.

8. 4hen the accused pleads !uilty but presents e$culpatory evidence" hisMher plea shall be deemed withdrawn and a plea of not !uilty shall be entered for him.

;. The private offended party shall be re(uired to appear at the arrai!nment for purposes of plea+ bar!ainin!" determination of civil liability" and other matters re(uirin! hisMher presence. 1n case of failure of the offended party to appear despite due notice" the court may allow the accused to enter a plea of !uilty to a lesser offense which is necessarily included in the offense char!ed with the conformity of the trial prosecutor alone.@@B Onless the civil action has been reserved" waived or otherwise instituted ahead" reset the case for the reception of evidence to determine the civil liability and the imposable penalty.

E. Plea of !uilty to a lesser offense

*t arrai!nment" the accused" with the consent of the offended party and the prosecutor" may be allowed by the trial court to plead !uilty to a lesser offense which is necessarily included in the offense char!ed. *fter arrai!nment but before trial" the accused may still be allowed to plead !uilty to said lesser offense after withdrawin! hisMher plea of not !uilty. 0o amendment of the complaint or information is necessary.@2C

B. Plea of !uilty to capital offense. reception of evidence

4hen the accused pleads !uilty to a capital offense" the court AaF shall conduct a searchin! in(uiry into the voluntariness and full comprehension of the conse(uences of hisMher plea and AbF shall re(uire the prosecution to prove hisMher !uilt and the precise de!ree of culpability. The accused may present evidence
1 1
1( .<

$C Circular -o. 19)(. $C Circular -o. :)9()! $ec. *.

in hisMher behalf.

@C. Plea of !uilty to non+capital offense. reception of evidence" discretionary

4hen the accused pleads !uilty to a non+capital offense" the court may receive evidence from the parties to determine the penalty to be imposed.

@@. 4ithdrawal of improvident plea of !uilty

*t any time before the jud!ment of conviction becomes final" the court may permit an improvident plea of !uilty to be withdrawn and be substituted by a plea of not !uilty.

@2. 1f a %0ot Duilty% plea is entered" schedule the pre+trial of the case with due notice to the offended partyMarrestin! officer.

@). 1f the accused is under preventive detention" the pre+trial conference of the case shall be held within ten A@CF days after arrai!nment.

@/. 1n other cases" unless a shorter period is provided by special law or Supreme Court circular" the arrai!nment shall be held within thirty A)CF days from the date the court ac(uires jurisdiction over the person of the accused. The time of the pendency of a motion to (uash or for a bill of particulars or other causes justifyin! suspension of the arrai!nment shall be e$cluded in computin! the period.@2@

@6. 1f the accused appears to be sufferin! from an unsound mental condition which effectively renders himMher unable to fully understand the char!e a!ainst himMher and to plead intelli!ently thereto" suspend the arrai!nment and order the accusedKs mental e$amination. and if necessary" accusedKs confinement for such purpose.

@8. Opon motion of the accused" suspension of hisMher arrai!nment may be allowed on any of the followin! !rounds

@8.@ The accused appears to be sufferin! from an unsound mental condition which effectively renders him unable to fully understand the char!e a!ainst him and to plead intelli!ently thereto. 1n such case" the court shall order hisMher mental e$amination and" if necessary" hisMher confinement for such purpose.

@8.2 There e$ists a prejudicial (uestion.

@8.) * petition for review of the resolution of the prosecutor is pendin! at either the >epartment of Justice" or the :ffice of the President. provided, that the period of suspension shall not e$ceed
1
.1

$C Circular -o. :)9()! $ec. ..

si$ty A8CF days counted from the filin! of the petition with the reviewin! office.

0ote 1n &eople v. 9licando,-.. the Supreme Court held that a conviction in capital offenses cannot rest alone on a plea of !uilt. The trial court must re(uire the prosecution to prove the !uilt of the appellant and the precise de!ree of hisMher culpability beyond reasonable doubt.

..

%eople + Alicando! 3. 8. -o. 112*)2! /ecember 1.! 1((0! .01 $C8A .(:.

Check*'(t II

Pre+Trial

&re<trialC mandatory in criminal cases. N 1n all criminal cases co!ni&able by the Sandiganbayan, 9e!ional Trial Court" ?etropolitan Trial Court" ?unicipal Trial Court in Cities" ?unicipal Trial Court and ?unicipal Circuit Trial Court" the court shall" after arrai!nment and within thirty A)CF days from the date the court ac(uires jurisdiction over the person of the accused" unless a shorter period is provided for in special laws or circulars of the Supreme Court" order a pre+trial conference to consider the followin!

AaF plea bar!ainin!.

AbF stipulation of facts.

AcF mar#in! for identification of evidence of the parties.

AdF waiver of objections to admissibility of evidence.

AeF modification of the order of trial if the accused admits the char!e but interposes a lawful defense. and

AfF such matters as will promote a fair and e$peditious trial of the criminal and civil aspects of the case.@2)

Thin!s To >o >urin! The Pre+Trial Conference

@. >etermine and consider with the parties and counsel mutually satisfactory plea+bar!ainin! arran!ements" such" as for e$ample" the followin!

@.@ for the accused to chan!e hisMher plea to a lesser or different offense in return for the dismissal of other countMs with or without credit" for the plea of !uilty as a miti!atin! circumstance. or

@.2 for the accused to chan!e hisMher plea of not !uilty to that of !uilty to one or some of the counts of a multi+count indictment in return for the dismissal of other countMs with or without credit for the plea of !uilty as a miti!atin! circumstance. or

@.) for the accused to chan!e hisMher plea of not !uilty to that of !uilty to the offense char!ed" in return for the offended partyKs waiver of the whole or part of the civil liability or dama!es. or
1
.:

8ules of Court! 8ule 11)! $ec. 1D $C Circular -o. :)9()! $ecs. . and :.

@./ for the accused to chan!e hisMher plea of not !uilty to that of !uilty plea to the offense char!ed" in return for the elimination of one" some" or all of the !eneric a!!ravatin! circumstances alle!ed in the informationMcomplaint. or

@.6 for the accused to plea bar!ain on the nature" duration or the amount of the imposable penalty within the allowable ran!e.

$hen 5here "s &lea 6argaining

@. The accused and hisMher counsel shall manifest that they a!ree to enter into plea bar!ainin! on any of the forms above+described. 1f the prosecution and offended party a!ree to the plea offered by the accused" the court issues an order ma#in! on record the plea bar!ainin! arrived at and duly implemented.

2. 1n case of any such chan!e of plea to one of !uilty" proceed to receive evidence on the civil aspect before renderin! jud!ment" unless the offended party waives civil action or hisMher claim for civil liability or dama!es" reserves the ri!ht to institute the civil action separately" or has instituted the civil action before the criminal action.

). 9ender and promul!ate jud!ment of conviction" includin! therein" in the proper case" the civil liability or dama!es duly established by the evidence.

$hen 5here "s No &lea 6argaining

@. Cause the mar#in! for identification of the parties respective e$hibitMs" if any"

2. >etermine and consider with the parties and counsel such stipulation of facts" admission" andMor a!reement as may be feasible" such as" for e$ample

2.@ the identity of the accused.

2.2 the courtKs territorial jurisdiction relative to the offenseMs char!ed.

2.) the (ualification of e$pert+witnessMes.

2./ the amount of dama!es.

2.6 the !enuineness and due e$ecution of documents. andMor"

2.8 the cause of death or injury in proper cases.

2. 1f convenient" forthwith cause to be reduced into writin! and duly si!ned by the parties" particularly by the accused and hisMher counsel" such stipulation" admission" andMor a!reement as may be directly related to any essential element of the offenseMs char!ed. :therwise" incorporate admissions" a!reements" stipulations in the pre+trial order to be issued after the pre+trial conference" and re(uire the parties and counsel to si!n the same.

). >etermine and consider with the parties and counsel the followin! and such other matters as will promote a fair and e$peditious trial" to wit

).@ the number of witnesses to be presented.

).2 the appro$imate number of hours that will be re(uired by the parties for the presentation of their respective evidence. and

).) the specific trial dates needed to complete evidence presentation by all the parties which must be within a period of three A)F months from the first trial.

/. 5i$ the trial dates for the partiesK presentation of their respective evidence inclusive of evidence in+chief and rebuttin! evidence" and cause the parties and their respective counsel to affi$ their si!natures in the minutes to si!nify their availability on the scheduled dates.

6. 9e(uire the parties to submit to the branch cler# before leavin! the court premises the names and addresses of witnesses that need to be summoned by subpoena, so that the necessary subpoena may be issued on time. Counsel or their representatives may be allowed to serve the subpoenas to insure service thereof and the submission of the returns on time.

8. Pre+trial a!reement

*ll a!reements or admissions made or entered durin! the pre+trial conference shall be reduced in writin! and si!ned by the accused and counsel. otherwise" they cannot be used a!ainst the accused. The a!reements coverin! the matters referred to in section @ of this 9ule shall be approved by the court.@2/

;. 0on+appearance at pre+trial conference

1f the counsel for the accused or the prosecutor does not appear at the pre+trial conference and does not offer an acceptable e$cuse for hisMher lac# of cooperation" the court may impose proper sanctions or penalties.@26

1 1

.* .0

8ules of Court! 8ule 11)! $ec. .D $C Circular -o. :)9()! $ec. *. 8ules of Court! 8ule 11)! $ec. :D $C Circular -o. :)9()! $ec. 0.

E. Pre+trial order

*fter the pre+trial conference" the court shall issue an order recitin! the actions ta#en" the facts stipulated" and evidence mar#ed. Such order shall bind the parties" limit the trial to matters not disposed of" and control the course of the action durin! the trial" unless modified by the court to prevent manifest injustice.@28

Check*'(t III

4hat To >o *fter Pre+Trial To 1nitial Trial

@. Cause subpoena to be issued Subpoena ad testi%icandum may be si!ned by the cler# or branch cler# of court. 2ut subpoena duces tecum must be si!ned by the jud!e Awho must determine that the subject thereof is prima %acie relevantF.

2. 1f petition for bail is filed by the accused who is char!ed with an offense punishable by death or reclusion perpetua

2.@ Set the petition for hearin! and re(uire the prosecutor to comment thereon" either by way of recommendation or opposition. Such notice of hearin! should also be served upon all other accused" if any.

2.2 1f the prosecutor opposes the petition" allow him to present hisMher evidence to show that the prosecutionKs available evidence is stron!. 'earin! may be summary or otherwise. Cross+ e$amination by the petitioner and any other accused shall be allowed. Petitioner shall also be allowed to offer and present evidence. Summary hearin! is one that focuses on (uantity and character of proof in anticipation of that to be presented at the re!ular trial" but not to be mere
1
.'

8ules of Court! 8ule 11)! $ec. *.

sham or pretense.@2;

2.) ,ven if the prosecutor recommends bail or interposes no objection to the petition for bail" the court must still set the case for hearin!.

2./ 9esolve the petition for bail with a narration of the evidence collectively deemed either stron! or wea# to justify the conclusion made.

2.6 1ndispensable re(uirements

There must be a hearin!.@2E ,vidence of !uilt must be stron!. Prosecution must be !iven full opportunity to present evidence.@2B

0ote The Court may not !rant bail simply for non+appearance of the prosecution but should as# the prosecution such (uestions as would ascertain the stren!th of the state in evidence and jud!e the ade(uacy of the bail.@)C

2.8. >uties of a Jud!e in case an application for bail for crimes punishable by reclusion perpetua or hi!her

1n the li!ht of the applicable rules on bail and the jurisprudential principles just enunciated" the Court laid down the duties of the trial jud!e in case an application for bail is filed

2.8.@ 0otify the prosecutor of the hearin! of the application for bail or re(uire him to submit hisMher recommendation.@)@

2.8.2 Conduct a hearin! of the application for bail re!ardless of whether or not the prosecution refuses to present evidence to show that the !uilt of the accused is stron! for the purpose of enablin! the court to e$ercise its sound discretion.@)2

2.8.) >ecide whether the evidence of !uilt of the accused is stron! based on the summary
1 1 1

1 1

,campo +. Bernabe! 22 %hil. 00 [1(*']. Basco +. 8apatala! A. A. -o. 8;J9('91::0! Aarch 0! 1((2! .'( $C8A .:<. .( %eople +. /acudao! 3. 8. -o. )1:)(! 4ebruary .1! 1()(! 12< $C8A *)(D %eople +. $an /ie&o! -o. L9.('2'! /ecember .*! 1(')! .' $C8A 0..D %eople +. Calo! 3. 8. -o. ))0:1! June 1)! 1((<! 1)' $C8A '.<D Aorado +. ;ayao! A. A. -o. (:9)91.<*8;C! 4ebruary 2! 1((*! ..( $C8A 2.:D Corpus +. Aa&lalan&! 3. 8. -o. 2)1'.! April 1(! 1((1! 1(' $C8A *1D Almeron +. $andido! A. A. -o. A;J9(2911*.! -o+ember '! 1((2! .)1 $C8A *10. :< Librarios +. /abalos! A. A. -o. 8;J9)(9.)'! July 11! 1((1! 1(( $C8A *) cited in Borina&a +. ;amin! A. A. -o. 8;J9 (:9(:'! $eptember 1<! 1((:! ..' $C8A .<'D Aurillo +. 4rancisco! A. A. 8;J9(:91<(2! Au&ust 1.! 1((*! .:0 $C8A .):D A&uirre +. Belmonte! A. A. -o. 8;J9(:91<0.! ,ctober .2! 1((*! .:2 $C8A 22)D $antos +. ,tilida! A. A. -o. 8;J9 (*91.12! June 1'! 1((0! .*0 $C8A 0'D /e los $antos98eyes +. Aontesa! A. A. -o. 8;J9(:9():! Au&ust 2! 1((0! .*2 $C8A )0D ;abao +. Espina! 8;J9('91:**2! June 1*! 1(('! .02 $C8A .(). :1 8ules of Court! 8ule 11*! $ec. 1). :. 8ules of Court! 8ule 11*! $ecs. 2 and ).
.2 .)

of evidence of the prosecution.@))

2.8./ 1f the !uilt of the accused is not stron!" dischar!e the accused upon the approval of the bailbond.@)/ :therwise" petition should be denied.@)6

TEN CO77AND7ENT! FOR A JUD"E ON APPLICATION! FOR BAIL

@. >o not !rant bail unless the accused is in le!al custody.@)8

2. >o not act on an application for bail or set it for hearin! unless you have jurisdiction over the person of the accused and of the case.@);

). >o not !rant bail in non+bailable offenses without application and notice to the prosecutor and in bailable offenses without notice to or recommendation of prosecutor.@)E

/. >o not !rant bail in non+bailable offenses without a hearin!.@)B A,ven if the investi!atin! jud!e had !ranted bail or the prosecutor in filin! the 1nformation had recommended bail.F

6. >o not !rant bail in non+bailable offenses without !ivin! the prosecution full opportunity to present its evidence.@/C

8. >o not !rant bail in non+bailable offenses simply because of the prosecutionKs non+appearance. @/@

;. >o not !rant bail on appeal after the accused have been convicted of a non+bailable offense@/2 or from a
1 1 1

1 1

Baylon +. $ison! A. A. -o. (.929:'<9<! April '! 1((0! .*: $C8A .)*. 8ules of Court! 8ule 11*! $ec. 1(. :0 Basco +. 8apatalo! A. A. -o. ('91::0! Aarch 0! 1((2! .'( $C8A ..< reiterated in %eople +. Cabral! 3. 8. -o. 1:1(<(! 4ebruary 1)! 1(((! :<: $C8A :'1. :' 4eliciano +. %asicolan! -o. L91*0'2! July :1! 1('2! . $C8A )))D AendoGa +. C4# of FueGon! -os. L9:0'1.91*! June .2! 1(2:! 01 $C8A :'(D %aderan&a +. Court of Appeals! 3. 8. -o. 110*<2! Au&ust .)! 1((0! .*2 $C8A 2*1D A&uirre +. Belmonte! supra! note 1:<D /e los $antos98eyes +. Aontesa .*2 $C8A )0. :2 /inapol +. Baldado! A. A. -o. 8;J9(.9)()! Au&ust 0! 1((:! ..0 $C8A 11<D Borina&a +. ;amin! supra! note 1:<D A&uirre +. Belmonte! supra! note 1:<. :) 8ules of Court! 8ule 11*! $ec. 1)D Chin +. 3ustilo! A.A. -o. 8;J9(*91.*:! Au&ust 11! 1((0! .*2 $C8A 120. :( 8ules of Court! 8ule 11*! $ec. 1)D Borina&a +. ;amin! supra! note 1:<! 3o +. Court of Appeals! April 2! 1((:! ..1 $C8A :(2D %eople +. /acudao! 3. 8. -o. )1:)(! 4ebruary .1! 1()(! 12< $C8A *)(D %eople +. Casin&al! 3. 8. -o. )21':! Aarch .(! 1((0! .*: $C8A :2D LardiGabal +. 8eyes! A. A. -o. A;J9(*9)22! /ecember 0! 1((*! .:) $C8A '*<D ;abao +. Espina! supra! note 1:<D $antos +. ,tilida supra! note 1:1. *< %eople +. /acudao! supra! note 1.(D Borina&a +. ;amin! supra! note 1:<D 3uillermo +. 8eyes! .*< $C8A 10*D Aamolo! $r. +. -arisma! A. A. -o. A;J9('91<2.! January :1! 1(('! .0. $C8A '1:D %eople +. Calo! 3. 8. -o. ))0:1! June 1)! 1((<! 1)' $C8A '.<. *1 Borina&a +. ;amin ! supra! note 1:<D Libarios +. /abalos! A. A. -o. 8;J9)(9.)'! July 11! 1((1! 1(( $C8A *)D A&uirre +. Belmonte! supra! note 1:<D Baylon +. $ison! supra! note 1::D ;ucay +. /oma&as! A. A. -o. 8;J9(091.)'! Aarch .!1((0! .*. $C8A 11<D %aderan&a +. Court of Appeals! 3. 8. -o. 110*<2! Au&ust .)! 1((0! .*2 $C8A 2*1. *. Adm. Circular -o. .9(.D %eople +. /i+ina! 3. 8. -os. (:)<)9<(! April 2! 1((:D ..1 $C8A .<(D %eople +. 4uertes! 3.
:: :*

non+bailable offense to a bailable offense. This should be addressed to the appellate court.@/)

E. >o not !rant bail when the penalty imposed by the 9e!ional Trial Court e$ceeds si$ A8F years but not more than twenty A2CF years where any of the circumstances mentioned in Section 6" 9ule @@/ are present.@//

B. >o not !rant bail after the jud!ment has become final unless the accused has applied for probation before commencin! to serve sentence" the penalty and the offense bein! within the purview of the probation law.@/6

@C. >o not !rant bail after the accused had commenced to serve sentence.@/8

Check*'(t I=

1ncidents >urin! Trial

+hat 3o Do +hen 3here /s ,pplication 3o Dischar0e ,ccused 3o %e tate +itness

@. *pplicable 9ule Section @;" 9ule @@B.

1 1 1 1

8. -o. (<'*:! June .0! 1((:! ..: $C8A '1(D %eople +. -itcha! 3. 8. -o. 11:012! January 1(! 1((0! .*< $C8A .):. *: 8ules of Court! 8ule 11*! $ec. 0. ** Ibid. *0 8ules of Court! 8ule 11*! $ec. .*. *' Ibid.

2. 4hen applicable

Two or more persons jointly char!ed with the commission of the offense.

4hether to dischar!e more than one depends upon the need of the prosecutor and the discretion of the Jud!e.@/;

). 4hen to apply

Opon motion of the prosecution before restin! its case.@/E

/. Thin!s the Court should do

/.@ re(uire prosecution to present evidence. Trial court should hold in abeyance or defer its resolution on the motion until the prosecution had presented all its evidence.@/B

/.2 re(uire submission of sworn statement of each proposed witness at a hearin! in support of the dischar!e and ascertain if the conditions fi$ed by Section @; of 9ule @@B are complied with" namely

/.2.@ there is absolute necessity for the testimony of the defendant whose dischar!e is re(uested.@6C

The prosecutor must show that there is absolute necessity for the testimony of the defendant whose dischar!e he see#s" in order to be a witness for the prosecution@6@ or the accused is the only one who has #nowled!e of the crime and not when hisMher testimony would simply corroborate or otherwise stren!then the evidence in the hands of the prosecution.@62

,$ample 4here the prosecution itself admitted that one of the !overnment witnesses" named ?ichael Lu testified that he saw and reco!ni&ed the accused" >omin!o Can as one of those who committed the robbery" such testimony is direct evidence of CanKs participation and clearly ne!ates the absolute necessity of >ariaKs testimony in identifyin! Can as one of the perpetrators of the crime. 1f at all" >ariaKs testimony would be merely corroborative and not essential.@6)
1 1 1 1 1 1

%eople +. Baesa! 1<* %hil. 1:' [1(0)]. 8ules of Court! 8ule 11(! $ec. 12. *( 4lores +. $andi&anbayan, -o. L9':'22! Au&ust 1.! 1():! 1.* $C8A *<(. 0< 8ules of Court! 8ule 11(! $ec. 12 6a7. 01 4lores +. $andi&anbayan, supra! note 1*(. 0. 4lores +. $andi&anbayan, supra! note 1*(; %eople +. Ani on! -o. L9:()<:! Aarch 1'! 1())! 10) $C8A 2<1D Lu&tu +. Court of Appeals! 3. 8. -o. *.<:2! Aarch .1! 1((<! 1): $C8A :)). 0: Can +. 3alin&! 3. 8. -o. 0*.0)! -o+ember .2! 1()2! 100 $C8A '':.
*2 *)

/.2.2 there is no other direct evidence available for the proper prosecution of the offense committed" e$cept the testimony of said defendant.@6/

/.2.) the testimony of said accused can be substantially corroborated in its material points.@66

/.2./ said accused does not appear to be the most !uilty.@68

a. ?eanin! of not the most !uilty not the least !uilty. @6;The rule does not re(uire that he be the %least !uilty% but only that he not be the %most !uilty.% @6E

b. *bsolute certainty is not re(uired. @6B1n comin! to hisMher conclusion as to the %necessity for the testimony of the accused whose dischar!e is re(uested%. as to the %availability or non+availability of other direct or corroborative evidence%. as to which of the accused is the %most !uilty%. and li#e" the jud!e must rely in a lar!e part upon the su!!estions and information furnished by the state prosecutors. @8C

/.2.6 said accused has not at any time been convicted of any offense involvin! moral turpitude. @8@

a. Concept of moral turpitude

?oral turpitude has been described as an act of baseness" vileness and depravity in the private and social duty which a man owes to us fellowmen or to society in !eneral" @82done out of spirit of cruelty" hostility or reven!e" @8)but there is also authority to the effect that an act is not done when it is prompted by the sudden resentment of an injury calculated in no sli!ht de!ree to awa#en passion. @8/1n the absence" therefore" of any evidence to show the !ravity and the nature of the malicious mischief committed" or at least" the value of the property destroyed andMor the circumstances under which the act of destroyin! was committed" we should not ma#e haste in declarin! that the crime of malicious mischief involves moral turpitude. @86

b. ,$amples of crimes involvin! moral turpitude

1 1 1 1 1 1 1 1 1 1 1 1

8ules of Court! 8ule 11(! $ec. 12 6b7D %eople +. Ani on! supra! note 10.. 8ules of Court! 8ule 11(! $ec. 126c7. 0' 8ules of Court! 8ule 11(! $ec. 126d7. 02 Ibid, $ec. '6d7D %eople +. Court of Appeals! -o. L9000::! July :1! 1()*! 1:1 $C8A 1<2. 0) %eople +. 4altado )* %hil. )( [1(*(]. 0( %eople +. Court of Appeals! -o. L9'.))1! Au&ust .<! 1():! 1.* $C8A ::). '< Ibid. '1 8ules of Court! 8ule 11(! $ec. 126e7. '. Aoore +. $tate '2 $o. 2)(. ': 0* CJ$ (:0. '* 0* CJ$ (:0. '0 %eople +. Jamero! -o. L91()0.! July .(! 1(')! .* $C8A .<'.
0* 00

7sta%a" @88abduction with consent" @8;concubina!e. @8EThere is no moral turpitude for conviction for or playin! mah*ong -D>

(ffects of Dischar0e

@. ,vidence adduced in support of the dischar!e shall automatically form part of the trial. @;C1f the court denies the motion to dischar!e of the accused as state witness" hisMher sworn statement shall be inadmissible in evidence. @;@

2. >ischar!e of accused operates as an ac(uittal and bar to further prosecution for the same offense @;2 e$cept in the followin! cases

2.@ Onless accused fails or refused to testify a!ainst hisMher co+accused in accordance with hisMher sworn statement constitutin! the basis of hisMher dischar!e. @;)

2.2 5ailure to testify refers e$clusively to defendantKs will or fault. @;/

2.) ,$trajudicial Confession *dmissibility. where an accused who turns StateKs evidence on a promise of immunity but later retracts and fails to #eep hisMher part of the a!reement" hisMher confession of hisMher participation in the commission of the crime is admissible as evidence a!ainst him. @;6

). ,rroneous or improper dischar!e of state witness does not affect the competency and (uality of the testimony of the dischar!ed defendant. @;8

+hen , MotionAPetition 3o uspend , #riminal ,ction %ased ?pon 3he ,lle0ed Pendency 7f , Prejudicial =uestion /n , #i!il ,ction /s 8iled /n 3he #riminal ,ction

@. *t the hearin! of the motion" as# the adverse party to comment on the motion if no such comment or opposition has not yet been filed.

2. Thereafter" determine if a prejudicial (uestion e$ists. * prejudicial (uestion is a (uestion based on a fact
1 1 1 1 1 1 1 1 1 1 1

#n re Abesamis! 1<. %hil 11). [1(0)]. #n re Basa *1 %hil. .20 [1(.<]. ') #n re #sada '< %hil. (10 [1(:*]. '( Chion& +. 8epublic 1<: %hil 111* [1(0)]. 2< 8ules of Court! 8ule 11(! $ec. 12. 21 Ibid. 2. 8ules of Court! 8ule 11(! $ec. 1). 2: Ibid. 2* %eople +. Aendiola ). %hil. 2*< [1(*(]. 20 %eople +. Beberino! -o. L9.:<(.! ,ctober .(! 1(22! 2( $C8A '(*. 2' %eople +. Jamero! supra! note 1'0D Aan&ubat +. $andi&anbayan! -o. L9'<'1:! April .<! 1()0! 1:0 $C8A 2:.D 8amos +. $andi&anbayan! 3. 8. -o. 0))2'! -o+ember .2! 1((<! 1(1 $C8A '21.
'' '2

distinct and separate from the crime but so intimately connected with it that it determines the !uilt or innocence of the accused. @;;1ts essential elements are AaF the civil action involves an issue similar or intimately related to the issue raised in the criminal action. AbF the resolution of such issue determines whether or not the criminal action may proceed. and AcF the co!ni&ance of the prejudicial (uestion pertains to another tribunal. @;E

2.@ ,$amples

4here a man was char!ed with bi!amy by his second wife" a civil action filed by him a!ainst her for the annulment of their marria!e on the !round that he was forced to contract said subse(uent marria!e is a prejudicial (uestion to the criminal action. @;BThe (uestion of validity of said marria!e cannot ordinarily be decided in the criminal action for bi!amy but in the civil action for annulment. The annulment on the aforesaid !round would prove that his act of contractin! that marria!e was involuntary. hence" no criminal liability would attach.

1n a civil action brou!ht by plaintiff to annul the sale of land by defendant to a third party N the plaintiff alle!in! that the same land was previously sold by the defendant to him" but defendant raised the defense that his si!nature appearin! on the deed of sale to plaintiff has been for!ed N the (uestion of validity of the sale to plaintiff" to be determined in the civil action" is prejudicial to the criminal action for 7sta%a filed by plaintiff a!ainst said defendant. @EC

2.2 ,lements of prejudicial (uestion

The elements of a prejudicial (uestion are AaF the previously instituted civil action involves an issue similar or intimately related to the issue raised in the subse(uent criminal action" and AbF the resolution of such issue determines whether or not the criminal action may proceed. @E@

The law limits a prejudicial (uestion to a previously instituted civil action not to a subse(uent one.

2.) 0ote also althou!h the present 9ule does not specify who may file the motion or petition for suspension of the criminal proceedin!s on the !round of pendency of a prejudicial (uestion" any party N the prosecutor" the accused" or the private prosecutor N may file the petition. @E2

2./ 5inally" note that while such petition to suspend may be filed in the office of the prosecutor or the court conductin! the preliminary investi!ation" it may be filed before the court tryin! the criminal action only %before the prosecution rests.% @E)*ccordin!ly" the petition should be denied if it is filed after the prosecution has rested.

1 1 1 1 1 1 1

Aendiola +. Aacadae&! -o. L91')2*! 4ebruary .2! 1('1! 1 $C8A 0(:D BeniteG +. Concepcion! 11. %hil. 1<0 [1('1]. %eople +. Ara&on (* %hil :02 [1(0*]. 2( Japanta +. Aontesa -o. L91*0:*! 4ebruary .)! 1('.! * $C8A 01<. )< 8as +. 8asul! -os. L90<**19*.! $eptember 1)! 1()<! 1<< $C8A 1.0. )1 8ules of Court! 8ule 111! $ec. 2. ). 4ortich9Celdran +. Celdran! -o. L9..'22! 4ebruary .)! 1('2! 1( $C8A 0<.. ): 8ules of Court! 8ule 111! $ec. '.
22 2)

1f a petition to suspend is filed with the ProsecutorKs :ffice" and the same is denied" the petition to suspend may be a!ain filed before the Court. The determination of its finality is only provisional.

+hat , :ud0e hould Do /f ,ccused /s Reported 3o >a!e Died 14'

@. *scertain veracity of report with submission of >eath Certificate and Comment from prosecution.

2. 1f the accused dies before arrai!nment" the case shall be dismissed without prejudice to any civil action the offended party may file a!ainst the estate of the deceased. @E6

). The death of the accused after arrai!nment and durin! the pendency of the criminal action shall e$tin!uish the civil liability arisin! from the delict.

/. 'owever" the independent civil action instituted under section ) of this 9ule or which thereafter is instituted to enforce liability arisin! from other sources of obli!ation may be continued a!ainst the estate or le!al representative of the accused after proper substitution or a!ainst said estate" as the case may be. The heirs of the accused may be substituted for the deceased without re(uirin! the appointment of an e$ecutor or administrator and the court may appoint a !uardian ad litem for the minor heirs.

6. 2efore orderin! substitution" direct counsel for the accused to inform court of the names and addresses of the decedentKs heirs or whether or not hisMher estate is under administration and has a duly appointed administrator.

8. The court shall forthwith order said le!al representative or representatives to appear and be substituted within a period of thirty A)CF days from notice

;. The title of the case should be amended to show its civil aspect by includin! the name of the offended party as plaintiff and the le!al representative or heir of the accused substituted as defendant. @E8

E. * final jud!ment entered in favor of the offended party shall be enforced in the manner especially provided in these rules for prosecutin! claims a!ainst the estate of the deceased.

+hat , :ud0e hould Do /n #ase , Motion 8or Disqualification 7r /nhibition /s 8iled

*. The 9ules of >is(ualification and 1nhibition

@. Code of Judicial Conduct

1 1 1

8e+ised %enal Code! Art. )( 617. 8ules of Court! 8ule 111! $ec. *. )' ;orri=os +. Court of Appeals! -o. L9*<::'! ,ctober .*! 1(20! '2 $C8A :(*.
)* )0

9ule ).@2. N * jud!e should ta#e no part in a proceedin! where the jud!eKs impartiality mi!ht reasonably be (uestioned. These cases include" amon! others" proceedin!s where

AaF The jud!e has personal #nowled!e of disputed evidentiary facts concernin! the proceedin!.

AbF The jud!e served as e$ecutor" administrator" !uardian" trustee or lawyer in the case or matters in controversy" or a former associate of the jud!e served as counsel durin! their association" or the jud!e or lawyer was a material witness therein.

AcF The jud!eKs rulin! in a lower court is the subject of review.

AdF The jud!e is related by consan!uinity or affinity to a party liti!ant within the si$th de!ree or to counsel within the fourth de!ree.

AeF The jud!e #nows the jud!eKs spouse or child has a financial interest" as heir" le!atee" creditor" fiduciary" or otherwise" in the subject matter in controversy or in a party to the proceedin!" or any other interest that could be substantially affected by the outcome of the proceedin!.

1n every instance the jud!e shall indicate the le!al reason for inhibition.

9ule ).@). N * jud!e dis(ualified by the terms of 9ule ).@2 may" instead of withdrawin! from the proceedin!" disclose on the record the basis of dis(ualification. 1f" based on such disclosure" the parties and lawyers independently of the jud!eKs participation" all a!ree in writin! that the reason for the inhibition is immaterial or insubstantial" the jud!e may then participate in the proceedin!. The a!reement" si!ned by all parties and lawyers" shall be incorporated in the record of the proceedin!.

2. 9ules of Court N 9ule @);

Sec. @. /isquali%ication o% *udges. N 0o jud!e or judicial officer shall sit in any case in which he" or his wife or child" is pecuniarily interested as heir" le!atee" creditor or otherwise" in which he is related to either party within the si$th de!ree of consan!uinity or affinity" or to counsel within the fourth de!ree" computed accordin! to the rules of the civil law" or in which he has been e$ecutor" administrator" !uardian" trustee or counsel" or in which he has presided in any inferior court when his rulin! or decision is the subject of review" without the written consent of all parties in interest" si!ned by them and entered upon the record.

* jud!e may" in the e$ercise of the sound discretion" dis(ualify himself from sittin! in a case" for just or valid reasons other than those mentioned above.

Sec. 2. )b*ection that *udge disquali%ied, ho made and e%%ect. N 1f it be claimed that an official is dis(ualified from sittin! as above provided" the party objectin! to his competency may" in writin!" file with the official his objection" statin! the !rounds therefor" and the official shall thereupon proceed with the trial" or withdraw therefrom in accordance with his determination of the (uestion of his dis(ualification. 'is decision shall be forthwith made in writin! and filed with the other papers in the case" but no appeal or stay shall be allowed from" or by reason of" his decision in favor of his own competence until after final jud!ment in the case.

2. >istinction 2etween Dround 5or >is(ualification :r 1nhibition

* !round for dis(ualification !ives the jud!e no discretion" while !round for inhibition is addressed

to the sound discretion of the jud!e. @E;

C. 1f the jud!e dis(ualifies or inhibits himself" the inhibition is a judicial matter which does not re(uire administrative action by the Supreme Court e$cept under the situation discussed below

@. The jud!e should send the copy of hisMher :rder of 1nhibition or >is(ualification to the ,$ecutive Jud!e for re+raffle of the case. @EE

2. There should be no e$chan!e of cases between the recusin! jud!e and the jud!e to whom the case is re+raffled. 'owever" appropriate adjustments must be made in the raffle of cases so that the jud!e to whom the case is re+raffled should be credited with one new case. *nd the recusin! jud!e should be assi!ned one additional case to offset the case that he re+raffled.

>. Submission for approval or notation to the Supreme Court of order of inhibition is re(uired where

@. The jud!e is in a sin!le sala seat and another jud!e from another seat has to be desi!nated.

2. The jud!e is in a multiple sala seat and there is a conflict of opinion between the recusin! jud!e and the jud!e desi!nated on the propriety of inhibition or dis(ualification. @EB

1f the situation is not as described above" then the jud!e should merely send hisMher order to the ,$ecutive Jud!e for re+raffle in a multiple sala court.

,. Si!nificant 9ulin!s

@. Test in inhibition is whether the parties can be assured that the case can be heard with the cold neutrality of an impartial jud!e. @BC

2. Jud!e must either recuse himself or proceed with the case. he cannot do both by first disposin! of the case and then inhibitin! himself. @B@1n sin!le sala courts" jud!es should e$ercise prudence and discretion to avoid unnecessary problems and waste of time resultin! in the transfer of the case to another sala. ->.

). The mere filin! of an administrative case a!ainst respondent jud!e is not a !round for dis(ualifyin! him from hearin! the case" for if on every occasion the party apparently a!!rieved would be allowed to either stop the proceedin!s in order to await the final decision on the desired dis(ualification" or demand the immediate inhibition of the jud!e on the basis of hisMher bein! so char!ed" many cases would have to be
1 1 1 1 1 1

%imentel +. $alan&a! -o. L9.(2:*! $eptember 1)! 1('2! .1 $C8A 1'<. $C Circular -o. 1<! Aay ..! 1()2. )( Adm. Circular -o. 1! January .)! 1()). (< 3utierreG +. $antos 11. %hil. 1)* [1('1]. (1 Hacienda Benito +. Court of Appeals! L920.(2! Au&ust 1.! 1()2! 10: $C8A *'. (. Adm. Aatter -o. (<9)91)':8;C! ,ctober *! 1((<! Ainute 8esolution.
)2 ))

#ept pendin! or perhaps there would not be enou!h jud!es to handle all the cases pendin! in all the courts. @B)

/. * jud!e cannot sit any case in which he was a counsel without the written consent of all the parties in interest" si!ned by them and entered upon the record. 'e cannot proceed just because there was no objection from any of the parties. The rule is e$plicit that he must secure the written consent of all the parties" not a mere verbal consent much less a tacit ac(uiescence. @B/

6. The fact that the jud!e issued a writ of preliminary prohibitory injunction on the (uestion of whether the carousel was an attractive nuisance" does not dis(ualify the jud!e from hearin! the case on the merits because this is not yet a final determination. *n adverse provisional rulin! does not dis(ualify a jud!e. @B6

1 1 1

Aparicio +. Andal! 3. 8. -os. )'0)29(:! July .0! 1()(! 120 $C8A '0(. LorenGo +. Aar>ueG! A. A. -o. A;J9)291.:! June .2! 1())! 1'. $C8A 0*'. (0 Ac/onaldEs Corporation +. Court of Appeals! 3. 8. -o. ()'((! July 10! 1((1. 6Ainute 8esolution! 4irst /i+ision7
(: (*

<. CONDUCTIN" THE TRIAL

@. Supreme Court Circulars

C'&c+*,& 9ABB

*. 5rial

@. Onless the doc#et of the court re(uires otherwise" not more than four A/F cases shall be scheduled for trial daily.

2. The Presidin! Jud!e shall ma#e arran!ements with the prosecutor and the Public *ttorneyKs :ffice AP*:F so that a relief prosecutor and a P*: attorney are always available in case the re!ular prosecutor or P*: attorneys are absent.

). Contin!ency measures must li#ewise be ta#en for any une$pected absence of the steno!rapher and other support staff assistin! in the trial.

/. The issuance and service of subpoenae shall be done in accordance with *dministrative Circular 0o. / dated 22 September @BEE.

6. The jud!e shall conduct trial with utmost dispatch" with judicious e$ercise of the courtKs power to control trial proceedin!s to avoid delay.

8. The jud!e must ta#e notes of the material and relevant testimonies of witnesses to facilitate his decision+ma#in!.

;. The trial shall be terminated within ninety ABCF days from initial hearin!. *ppropriate disciplinary sanctions may be imposed on the jud!e and the lawyers for failure to comply with the re(uirement due to causes attributable to them.

E. ,ach party is bound to complete the presentation of his evidence within the trial dates assi!ned to him. *fter the lapse of said dates" the party is deemed to have completed the presentation of evidence. 'owever" upon verified motion based on compellin! reasons" the jud!e may allow a party additional trial dates in the afternoon. provided that said e$tension will not !o beyond the three+month limit computed from the first trial date e$cept when authori&ed in writin! by the Court *dministrator" Supreme Court.

*ll trial jud!es must strictly comply with Circular 0o. )E+BE" entitled %1mplementin! the Provisions of 9epublic *ct 0o. E/B) A*n *ct to ,nsure a Speedy Trial of *ll Cases 2efore the Sandi!anbayan" 9e!ional Trial Court" ?etropolitan Trial Court" ?unicipal Trial Court in Cities" ?unicipal Trial Court" and ?unicipal

Circuit Trial Court" *ppropriatin! 5unds Therefor" and for :ther PurposesF% issued by the 'onorable Chief Justice *ndres 9. 0arvasa on September @6" @BBE.

8. Co10*',nce W'th Pe&'o-(

@. *s a constant reminder of what cases must be decided or resolved" the jud!e must #eep a calendar of cases submitted for decision" notin! therein the e$act day" month and year when the BC+day period is to e$pire. *s soon as a case is submitted for decision" it must be noted in the calendar of the jud!e. moreover" the records shall be duly collated with the e$hibits and transcripts of steno!raphic notes" as well as the trial notes of the jud!e" and placed in the jud!eKs chamber.

2. 1n criminal cases" the jud!e will do well to announce in open court at the termination of the trial the date of the promul!ation of the decision" which should be set within BC days from the submission of the case for decision.

). *ll Jud!es must scrupulously observe the period prescribed in Section @6" *rticle H111 of the Constitution.

9. Pe&t'nent R+*e(

@. Time to prepare for trial

*fter a plea of not !uilty is entered" the accused shall have at least fifteen A@6F days to prepare for trial. The trial shall commence within thirty A)CF days from receipt of the pre+trial order. @B8

2. Continuous trial until terminated. postponements

Trial once commenced shall continue from day to day as far as practicable until terminated. 1t may be postponed for a reasonable period of time for !ood cause.

The court shall" after consultation with the prosecutor and defense counsel" set the case for continuous trial on a wee#ly or other short+term trial calendar at the earliest possible time so as to ensure speedy trial. 1n no case shall the entire trial period e$ceed one hundred ei!hty A@ECF days from the first day of trial" e$cept as otherwise authori&ed by the Supreme Court. @B;

The time limitations provided under this section and the precedin! section shall not apply where special laws or circulars of the Supreme Court provide for a shorter period of trial.

). ,$clusions
1 1
(' (2

$C Circular :)9()! $ec. '. Circular :)9()! $ec. ).

The followin! periods of delay shall be e$cluded in computin! the time within which trial must commence

).@ *ny period of delay resultin! from other proceedin!s concernin! the accused" includin! but not limited to the followin!

A@F delay resultin! from an e$amination of the physical and mental condition of the accused.

A2F delay resultin! from proceedin!s with respect to other criminal char!es a!ainst the accused.

A)F delay resultin! from e$traordinary remedies a!ainst interlocutory orders.

A/F delay resultin! from pre+trial proceedin!s. &rovided, that the delay does not e$ceed thirty A)CF days.

A6F delay resultin! from orders of inhibition" or proceedin!s relatin! to chan!e of venue of cases or transfer from other courts.

A8F delay resultin! from a findin! of the e$istence of a prejudicial (uestion. and

A;F delay reasonably attributable to any period" not to e$ceed thirty A)CF days" durin! which any proceedin! concernin! the accused is actually under advisement.

).2 *ny period of delay" resultin! from the absence or unavailability of an essential witness.

5or purposes of this subpara!raph" an essential witness shall be considered absent when his whereabouts are un#nown or his whereabouts cannot be determined by due dili!ence. 'e shall be considered unavailable whenever his whereabouts are #nown but his presence for trial cannot be obtained by due dili!ence.

).) *ny period of delay resultin! from the mental incompetence or physical inability of the accused to stand trial.

)./ 1f the information is dismissed upon motion of the prosecution and thereafter a char!e is filed a!ainst the accused for the same offense" any period of delay from the date the char!e was dismissed to the date the time limitation would commence to run as to the subse(uent char!e had there been no previous char!e.

).6 * reasonable period of delay when the accused is joined for trial with a co+accused over whom

the court has not ac(uired jurisdiction" or as to whom the time for trial has not run and no motion for separate trial has been !ranted.

).8 *ny period of delay resultin! from a continuance !ranted by any court motu proprio" or on motion of either the accused or his counsel or the prosecution" if the court !ranted the continuance on the basis of his findin!s set forth in the order that the ends of justice served by ta#in! such action outwei!h the best interest of the public and the accused in a speedy trial. @BE

/. 5actors for !rantin! continuance

The followin! factors" amon! others" shall be considered by a court in determinin! whether to !rant a continuance under subpara!raph AfF of Section B of SC Circular )E+BE.

/.@ 4hether or not the failure to !rant a continuance in the proceedin! would be li#ely to ma#e a continuation of such proceedin! impossible or result in a miscarria!e of justice. and

/.2 4hether or not the case ta#en as a whole is so novel" unusual and comple$" due to the number of accused or the nature of the prosecution or otherwise" that it is unreasonable to e$pect ade(uate preparation within the periods of time established therein.

1n addition" no continuance under section )AfF of this 9ule shall be !ranted because of con!estion of the courtKs calendar or lac# of dili!ent preparation or failure to obtain available witnesses on the part of the prosecutor. @BB

6. Time limit followin! an order for new trial

1f the accused is to be tried a!ain pursuant to an order for a new trial" the trial shall commence within thirty A)CF days from notice of the order" provided that if the period becomes impractical due to unavailability of witnesses and other factors" the court may e$tend it but not to e$ceed one hundred ei!hty A@ECF days from notice of said order for a new trial. 2CC

8. ,$tended time limit

0otwithstandin! the provisions of section @A!F" 9ule @@8 and Section @" SC Circular 0o. )E+BE for the first twelve+calendar+month period followin! its effectivity on September @6" @BBE" the time limit with respect to the period from arrai!nment to trial imposed by said provision shall be one hundred ei!hty A@ECF days. 5or the second twelve+month period" the time limit shall be one hundred twenty A@2CF days" and for the third twelve+month period" the time limit shall be ei!hty AECF days. 2C@

1 1 . .

$C Circular :)9()! $ec. (. Ibid, $ec. 1<. << $C Circular :)9().! $ec. 11. <1 Ibid, $ec. 2.
() ((

;. Public attorneyKs duties where accused is imprisoned

1f the public attorney assi!ned to defend a person char!ed with a crime #nows that the latter is preventively detained" either because he is char!ed with a bailable crime and has no means to post bail" or is char!ed with a non+bailable crime" or is servin! a term of imprisonment in any penal institution" it shall be his duty to do the followin!

;.@ Shall promptly underta#e to obtain the presence of the prisoner for trial" or cause a notice to be served on the person havin! custody of the prisoner re(uirin! such person to so advise the prisoner of his ri!ht to demand trial.

;.2 Opon receipt of that notice" the custodian of the prisoner shall promptly advise the prisoner of the char!e and of his ri!ht to demand trial. 1f at anytime thereafter the prisoner informs his custodian that he demands such trial" the latter shall cause notice to that effect to be sent promptly to the public attorney.

;.) Opon receipt of such notice" the public attorney shall promptly see# to obtain the presence of the prisoner for trial.

;./ 4hen the custodian of the prisoner receives from the public attorney a properly supported re(uest for the availability of the prisoner for purposes of trial" the prisoner shall be made available accordin!ly. 2C2

E. Sanctions

1n any case in which private counsel for the accused" the public attorney" or the prosecutor

E.@ Qnowin!ly allows the case to be set for trial without disclosin! that a necessary witness would be unavailable for trial.

E.2 5iles a motion solely for delay which he #nows is totally frivolous and without merit.

E.) ?a#es a statement for the purpose of obtainin! continuance which he #nows to be false and which is material to the !rantin! of a continuance. or

E./ 4illfully fails to proceed to trial without justification consistent with the provisions hereof" the court may punish such counsel" attorney" or prosecutor" as follows

A@F 2y imposin! on a counsel privately retained in connection with the defense of an accused" a fine not e$ceedin! Php 2C"CCC.
.
<.

$C Circular :)9()! $ec. 1..

A2F 2y imposin! on any appointed counsel de o%icio" public attorney" or prosecutor a fine not e$ceedin! Php 6"CCC. and

A)F 2y denyin! any defense counsel or prosecutor the ri!ht to practice before the court tryin! the case for a period not e$ceedin! thirty A)CF days. The punishment provided for by this section shall be without prejudice to any appropriate criminal action or other sanction authori&ed under these rules. 2C)

B. 9emedy where accused is not brou!ht to trial within the time limit

1f the accused is not brou!ht to trial within the time limit re(uired by Section @A!F" 9ule @@8 and Section @" as e$tended by Section 8 of this rule" the information may be dismissed on motion of the accused on the !round of denial of his ri!ht to speedy trial. The accused shall have the burden of provin! the motion but the prosecution shall have the burden of !oin! forward with the evidence to establish the e$clusion of time under section ) of this rule. The dismissal shall be subject to the rules on double jeopardy.

5ailure of the accused to move for dismissal prior to trial shall constitute a waiver of the ri!ht to dismiss under this section. 2C/

@C. 7aw on speedy trial not a bar to provision on speedy trial in the Constitution

0o provision of law on speedy trial and no rule implementin! the same shall be interpreted as a bar to any char!e of denial of the ri!ht to speedy trial !uaranteed by section @/A2F" article 111" of the @BE; Constitution.
2C6

@@. :rder of trial

The trial shall proceed in the followin! order

A@F The prosecution shall present evidence to prove the char!e and" in the proper case" the civil liability.

A2F The accused may present evidence to prove his defense and dama!es" if any" arisin! from the issuance of a provisional remedy in the case.

A)F The prosecution and the defense may" in that order" present rebuttal and sur+rebuttal evidence unless the court" in furtherance of justice" permits them to present additional evidence bearin! upon the main issue.

. . .

Circular :)9()! $ec. 1:. Circular :)9()! $ec. 1*. <0 Circular :)9()! $ec. 10.
<: <*

A/F Opon admission of the evidence of the parties" the case shall be deemed submitted for decision unless the court directs them to ar!ue orally or to submit written memoranda.

A6F 4hen the accused admits the act or omission char!ed in the complaint or information but interposes a lawful defense" the order of trial may be modified.

:. Ho$ To De,* W'th Acc+(e-.( 7ot'on Fo& E5,1'n,t'on O3 H'(KHe& W'tne(( Be3o&e T&',*

@. Chec# sufficiency of the motion" particularly as re!ards notice and service thereof" and the contents of the motion" #eepin! in mind that the !overnin! rule2C8 re(uires the followin!

@.@ that there be notice to all other parties

@.2 that the motion shall state A@F the name and residence of the witness. A2F the substance of hisMher testimony. and A)F that the witness is so sic# or infirm as to afford reasonable !round for believin! that he will not be able to attend the trial" or resides more than @CC #ilometers from the place of trial and has no means to attend the same" or that" apart from the fore!oin!" other similar circumstances e$ist that would ma#e him unavailable or prevent him from attendin! the trial. and

@.) that the motion shall be supported by affidavit of the accused and such other evidence as the court may re(uire.

2. 1f the motion does not comply with the notice re(uirement" issue an order re(uirin! compliance by movant with the notice re(uirement with the warnin! that the motion shall be disallowed if not complied with.

). 1f the motion complied with the notice re(uirement" hear the motion at the time set therefor.

/. 1f the motion is found to be unmeritorious" issue an order denyin! it" with a concise statement of the reasonAsF for the denial.

6. 1f satisfied that the e$amination of the witness is necessary" issue an order directin! and providin!" conformably with the !overnin! rule2C; as follows

6.@ that the witness be e$amined at a specified time and place before the jud!e orderin! the e$amination Aor before any other jud!e or if not practicable" any member of the 2ar in !ood standin! so desi!nated by the jud!e in the order" or" if the order be !ranted by a court of superior jurisdiction" before an inferior court desi!nated in the orderF.

. .

<' <2

8ules of Court! 8ule 11(! $ec. * . 8ules of Court! 8ule 11(! $ec. 0 .

6.2 that a copy of the order be served on the prosecutor within a !iven time prior to that fi$ed for the e$amination.

6.) that the e$amination shall proceed notwithstandin! the prosecutorKs absence" if it appears that he was duly notified of the hearin!. and

6./ that a written record of the testimony shall be ta#en.

;. Ho$ To De,* W'th P&o(ec+t'on.( 7ot'on Fo& E5,1'n,t'on O3 It( W'tne(( Be3o&e T&',*

@. Chec# sufficiency of the motion" particularly as re!ards notice and service thereof" and the contents of the motion" #eepin! in mind that the !overnin! rule2CE re(uires AaF that there be notice to the accused and AbF that there be a showin! that the witness is too sic# or infirm to appear at the trial or has to leave the Philippines with no definite date of returnin! thereto.

@.@ 1f the motion does not comply with the notice re(uirement" issue an orderin! re(uirin! compliance by movant with the notice re(uirement" with warnin! that the motion shall be disallowed if not complied with.

@.2 1f the motion complied with the notice re(uirement" hear the motion at the time set therefor.

2. 1f the motion is found to be unmeritorious" issue an order denyin! it" with a concise statement of the reasonAsF for the denial.

). 1f the motion is found to be meritorious" issue an order directin! and providin!" conformably with the said !overnin! rule" as follows

).@ that the witness be e$amined before the court at a specified time" such e$amination to be conducted in the same manner as an e$amination at the trial.

).2 that a copy of the order be served on the accused within a !iven time prior to that fi$ed for the e$amination.

).) that the accused shall attend the said e$amination and hisMher failure or refusal to do so despite due notice shall be deemed a waiver. and

)./ that the statement thus ta#en may be admitted in behalf of or a!ainst the accused.

<)

8ules of Court! 8ule 11(! $ec. 2 .

/. *t the same time set therefor" hold the hearin! for the e$amination of the witness" the same to be conducted in the same manner as an e$amination at the trial" in the presence of the accused or notwithstandin! hisMher absence" if it appears that he was duly notified of the hearin!.

<. I3 A 7ot'on Fo& Con3'ne1ent O3 An Acc+(e- In A 7ent,* Ho(0't,* I( F'*e-

@. Set the motion for hearin! on the date su!!ested by the movant or fi$ed by the court" with notice to the parties" their counsel" the prosecutor and the person havin! char!e of the accused or hisMher relatives.

2. 1f the accused appears to be sufferin! from an unsound mental condition which effectively renders him unable to fully comprehend or stand trial

2.@ Suspend the proceedin! and order hisMher mental e$amination andMor confinement in the 0ational Centre for ?ental 'ealth or any mental institution in the locality reco!ni&ed by the !overnment" with a directive to the >irector of the hospital or mental institution to submit a (uarterly report on the accusedKs mental condition.

2.2 :n the basis of the report that the accused has fully recovered and can stand trial" order hisMher immediate dischar!e and set the case for the continuation of the proceedin!s. 2CB

G. De1+&&e& to E%'-ence

@. * demurrer to evidence is a motion to dismiss the case on the !round of insufficiency of evidence after the prosecution has rested its case

2. *fter the prosecution rests its case" the court may dismiss the action on the !round of insufficiency of evidence A@F on its own initiative after !ivin! the prosecution the opportunity to be heard or A2F upon demurrer to evidence filed by the accused with or without leave of court. 2@C

). The motion for leave of court to file demurrer to evidence shall specifically state its !rounds and shall be filed within a non+e$tendible period of five A6F days after the prosecution rests its case. The prosecution may oppose the motion within a non+e$tendible period of five A6F days from its receipt.

Check*'(t

Steps To Ta#e 4hen >emurrer To ,vidence 1s 5iled

@. >etermine whether the filin! of the demurrer to evidence is made after the prosecution has rested its
. .
<( 1<

8ules of Court! 8ule 1<1 . 8ules of Court! 8ule 11(! $ec. .:.

case" otherwise" deny the motion for bein! prematurely filed. 2@@

2. 1f the demurrer to evidence is properly filed after the prosecution has rested its case" !ive the prosecution an opportunity to be heard whether in oral ar!ument or in writin!.

). 1f leave of court is !ranted" the accused shall file the demurrer to evidence within a non+e$tendible period of ten A@CF days from notice. The prosecution may oppose the demurrer to evidence within a similar period from its receipt.

/. CourtKs discretion in the !rant or denial of demurrer to evidence

Judicial action on a demurrer to evidence or motion to dismiss is left to the e$ercise of sound judicial discretion. 1n the absence of a clear showin! of !rave abuse thereof" amountin! to lac# of jurisdiction" the trial courtKs denial of the motion may not be disturbed and may only be reviewed in the ordinary courts of law by an appeal from the jud!ment after trial. Certiorari does not lie to challen!e the trial courtKs interlocutory order denyin! the accusedKs motion to dismiss. Certiorari is not the proper remedy" for the error" if any" of the trial court" is an error of jud!ment and not of jurisdiction. The appellate court will not review in such special civil action the prosecutionKs evidence and decide in advance that such evidence has or has not yet established the !uilt of the accused beyond reasonable doubt.

6. 4hen demurrer to evidence is denied

1f the court denies the demurrer to evidence filed with leave of court" the accused may adduce evidence in hisMher defense. 4hen the demurrer to evidence is filed without leave of court" the accused waives the ri!ht to present evidence and submits the case for jud!ment on the basis of the evidence for the prosecution.

8. The order denyin! the motion for leave of court to file demurrer to evidence or the demurrer itself shall not be reviewable by appeal or by certiorari before jud!ment.

;. 4hen demurrer to evidence is !ranted

The dismissal is one on the merits which is e(uivalent to an ac(uittal. hence" the prosecution cannot appeal as it would place the accused in double jeopardy. 2@2

E. 9eopenin!

*t any time before finality of the jud!ment of conviction" the jud!e may" motu proprio or upon motion" with hearin! in either case" reopen the proceedin!s to avoid a miscarria!e of justice. The proceedin!s shall be
.

A>uino +. $ison! 3. 8. -o. )'<.0! -o+ember .)! 1()(! 12( $C8A '*)D 3odoy +. Court of Appeals! -o. L9)<)1*! Au&ust :<! 1())! 1'0 $C8A 1*). 1. %eople +. ;he City Court of $ilay! L9*:2(<! /ecember (! 1(2'! 2* $C8A .*2.
11

terminated within thirty A)CF days from the order !rantin! it. 2@)

G. JUD"7ENT @. >efinition

Jud!ment means that adjudication by the court that the accused is !uilty or is not !uilty of the offense char!ed" and the imposition of the proper penalty and civil liability provided for by law on the accused. 2@/

Check*'(t

Steps To Ta#e 1n 9enderin! Jud!ment

9ules of Court" 9ule @2C" Sec. 2

@. Prepare the jud!ment personally and directly in the official lan!ua!e and si!n the same. 2@6This holds true with orders of dismissal.

2. See to it that the jud!ment contains a clear and distinct statement of facts proved or admitted by the accused and the law upon which the jud!ment is based 2@8

). 1f it is of conviction" state
. . . .

8ules of Court! 8ule 11(! $ec. .*. 8ules of Court! 8ule 1.<! $ec. 1 . 10 Abay +. 3arcia! 3. 8. -o. ''1:.! June .2! 1())! 1'. $C8A ''0. 1' %eople +. Escobar! 3. 8. -o. '(0'*! January .(! 1())! 102 $C8A 0*1.
1: 1*

).@ the le!al (ualification of the offense constituted by the acts committed by the accused" and the a!!ravatin! or miti!atin! circumstances attendin! the commission thereof" if there are any.

).2 the participation of the accused in the commission of the offense" whether as principal" accomplice" or accessory after the fact.

).) the penalty imposed upon the accused. 2@;

)./ the civil liability or dama!es caused by the wron!ful act to be recovered from the accused by the offended party" if there is any" unless the enforcement of the civil liability by a separate action has been reserved or waived.

/. 1n case the jud!ment is of ac(uittal" it shall state whether the evidence of the prosecution absolutely failed to prove the !uilt of the accused or merely failed to prove hisMher !uilt beyond reasonable doubt. 1n either case" the jud!ment shall determine if the act or omission from which the civil liability mi!ht arise did not e$ist.

6. 4hen two or more offenses are char!ed in a sin!le complaint or information" and the accused fails to object to it before trial" convict the accused of as many offenses as are char!ed and proved" and impose on him the penalty for each and every one of them settin! out separately the findin!s of fact and law in each offense. 2@E

8. 4hen there is a variance between the offense char!ed in the complaint or information" and that proved or established by the evidence" and the offense as char!ed is included in or necessarily includes the offense proved" the accused shall be convicted of the offense proved which is included in the offense char!ed" or of the offense char!ed which is included in the offense proved. 2@B

*n offense char!ed necessarily includes that which is proved" when some of the essential elements or in!redients of the former" as this is alle!ed in the complaint or information" constitute the latter. *nd an offense char!ed is necessarily included in the offense proved" when the essential in!redients of the former constitute or form part of those constitutin! the latter. 22C

8. E5tent o3 D,1,)e( A$,&-e- 'n C'%'* L',b'*'t/ A&'('n) 3&o1 C&'1e(

Civil liability arisin! from crime includes" moral dama!es" e$emplary dama!es and loss of earnin! capacity. 22@ *ttorneyKs fees may be awarded but only when a separate civil action to recover civil liability has been

. .

. . .

%eople +. Licerio! '1 %hil. :'1 [1(:0]. 8ules of Court! 8ule 1.<! $ection : D %eople +. Basoy! 3. 8. -o. ')02)! July 2! 1()'! 1*. $C8A *2'D %eople +. Alcid! 3. 8. -o. '':)29))! 4ebruary .)! 1()0! 1:0 $C8A .)<. 1( 8ules of Court! 8ule 1.<! $ec. * . .< 8ules of Court! 8ule 1.<! $ec. 0 . .1 %eople +. Aorallano! 3. 8. -o. 1<0<<*! July .*! 1((2! .2' $C8A )*.
12 1)

filed or when e$emplary dama!es are awarded. 2227ife e$pectancy must be included in award of dama!es.
22)

The court should" however" specify how much is the indemnity for death and how much is for moral dama!es and not lump the whole amount. 22/Civil indemnity is separate from moral dama!es. 226

1n rape cases a civil indemnity of Php 6C"CCC is mandatory. 2281n addition" moral dama!es in rape is automatic without the need of pleadin! or any proof. 22;

Civil indemnity or actual and compensatory dama!es if committed or effectively (ualified by any of the circumstances under which the death penalty is authori&ed by law" the indemnity for the victim shall be increased to the amount of Php ;6"CCC. 22E

*ctual dama!es should be supported by receipts. 22B

To justify a !rant of actual or compensatory dama!es" it is necessary to prove with a reasonable de!ree of certainty" premised upon competent proof and on the best evidence obtainable by the injured party" the actual amount of loss. 2)C

4here there are no a!!ravatin! circumstances" e$emplary dama!es should not be awarded. So also actual dama!es if not supported by evidence may not be awarded. 2)@

*c(uittal does not necessarily preclude civil liability" as in the followin! cases

AaF 4here the ac(uittal is based on reasonable doubt2)2 as only preponderance of evidence is re(uired in civil cases.
.

. . .

. . .

%eople +. ;eehanCee! Jr.! 3. 8. -os. 111.<'9<)! ,ctober '! 1((0! .*( $C8A 0*D %eople +. Fuilaton! 3. 8. -o. '('''! January .:! 1((.! .<0 $C8A .2(. .: %eople +. "illanue+a! 3. 8. -o. ('*'(! ,ctober .1! 1((.! .10 $C8A ..D %eople +. Cordero! 3. 8. -o. 1<)(1(! ,ctober 11! 1(('! .': $C8A 1... .* %eople +. Castillo! 3. 8. -o. 11'1..! $eptember '! 1(('! .'1 $C8A *(:. .0 %eople +. Aan&ila! 3. 8. -os. 1:<.<:9*! 4ebruary 10! .<<<. .' %eople +. Aarabillas! 3. 8. -o. 1.2*(*! 4ebruary 1)! 1(((! :<: $C8A :0.D %eople +. Aostrales! 3. 8. -o. 1.0:(2! Au&ust .)! 1(()! .(* $C8A 2<1D %eople +. #lao! 3. 8. -o. 1.(0.(! $eptember .<! 1(()! .(' $C8A '0). .2 %eople +. %rades! 3. 8. -o. 1.20'(! July :<! 1(()! .(: $C8A *11D %eople +. Aalapo! 3. 8. -o. 1.:110! Au&ust .0! 1(()! .(* $C8A 02(D %eople +. LoGano! 3. 8. -o. 1.0<)<! $eptember .0! 1(()! .(' $C8A *<:D %eople +. %adilla! 3. 8. -o. 1.'1.*! January :<! 1(((. .) %eople +. "ictor! 3. 8. -o. 1.2(<:! July (! 1(()! .(. $C8A 1)'D %eople +. %rades! supra, note ..2D %eople +. Aalapo! supra, note ..2D %eople +. %ereG! 3. 8. -o. 1..2'*! $eptember .*! 1(()! .(' $C8A 12. .( %eople +. Cordero! 3. 8. -o. 1<)(1(! ,ctober 11! 1(('! .': $C8A 1..D %eople +. Cayabyab! 3. 8. -o. 1.:<2:! June 1(! 1((2! .2* $C8A :)2D %eople +. Aorollano! 3. 8. -o. 1<0<<*! July .*! 1((2! .2' $C8A )*D $umalpon& +. Court of Appeals! 3. 8. -o. 1.:*<*! 4ebruary .'! 1((2! .') $C8A 2'*. :< $umalpon& +. Court of Appeals! supra, note ..(. :1 %eople +. Aan&&asin! 3. 8. -o. 1:<0((9'<<! April .1! 1(((! :<' $C8A ..). :. %adilla +. Court of Appeals! -o. :((((! Aay :1! 1((*! 1.( $C8A 00)D %eople +. Jalandoni! -o. L902000! Au&ust .)! 1()*! 1:1 $C8A *0*.
..

AbF 4here there is a findin! that the accusedKs liability is not criminal but only civil in nature. 2))and

AcF 4here there is a findin! that the civil liability does not arise from or is not based upon the criminal act of which the accused was ac(uitted2)/ as where the accused was ac(uitted of malversation but was held liable for the funds which were spent for unauthori&ed purposes.

9. P&o1+*),t'on O3 J+-)1ent

@. 4hat to do A9ule @2C" Section 8" 9ules of CourtF.

@.@ >irect the cler# of courtMbranch cler# of court to !ive notice to the accused personally or throu!h hisMher bondsman if bonded" or throu!h the warden if detained" or throu!h the custodian if out on reco!ni&ance.

@.2 To promul!ate the jud!ment" direct the cler# of courtMbranch cler# of court to read the same in the presence of the accused and counsel de<parte or de o%%icio.

@.) 1f the conviction is for a li!ht offense" the jud!ment may be read in the presence of the accusedKs counsel or representative.

@./ 4hen the jud!e is absent or outside of the province or city" direct the cler# of courtMbranch cler# of court to promul!ate the jud!ment.

@.6 1f the accused is confined or detained in another province or city" re(uest the e$ecutive jud!e of the 9e!ional Trial Court havin! jurisdiction over the place of confinement or detention to promul!ate the jud!ment. The court promul!atin! the jud!ment shall have authority to accept the notice of appeal and to approve the bail bond pendin! appeal provided" that if the decision of the trial court convictin! the accused chan!ed the nature of the offense from non+bailable to bailable" the application for bail can only be filed and resolved by the appellate court.

@.8 The proper cler# of court shall !ive notice to the accused personally or throu!h hisMher bondsman or warden and counsel" re(uirin! himMher to be present at the promul!ation of the decision. 1f the accused was tried in absentia because sMhe jumped bail or escaped from prison" the notice to himMher shall be served at hisMher last #nown address.

@.; 1n case the accused fails to appear at the scheduled date of promul!ation of jud!ment despite notice" the promul!ation shall be made by recordin! the jud!ment in the criminal doc#et and servin! himMher a copy thereof at hisMher last #nown address or thru hisMher counsel.

. .

/e 3uGman +. Al+ia! (' %hil 00) [1(00]D %eople +. %anti&! (2 %hil. 2*). Castro +. Collector of #nternal 8e+enue! L91.12*! April .'! 1('.! * $C8A 1<(:D 8epublic +. Bello! -o. L9:*(<'! January .2! 1():! 1.< $C8A .<:.
:: :*

@.E 1f the jud!ment is for conviction and the failure of the accused to appear was without justifiable cause" he shall lose the remedies available in these rules a!ainst the jud!ment and the court shall order hisMher arrest. 4ithin fifteen A@6F days from promul!ation of jud!ment" however" the accused may surrender and file a motion for leave of court to avail of these remedies. SMhe shall state the reasons for hisMher absence at the scheduled promul!ation and if sMhe proves that hisMher absence was for a justifiable cause" sMhe shall be allowed to avail of said remedies within fifteen A@6F days from notice.

:. 7o-'3'c,t'on o3 J+-)1ent89;

@. ?odify or set aside a jud!ment of conviction only

@.@ Opon motion of the accused and

@.2 2efore the jud!ment has become final or appeal has been perfected. ,$cept when the death penalty is imposed" a jud!ment for conviction becomes final AaF after the lapse of the period for perfectin! an appeal or AbF when the sentence has been partially or totally satisfied or AcF the accused has e$pressly waived in writin! hisMher ri!ht to appeal or AdF the accused has applied for probation. 2)8

;. Ent&/ o3 J+-)1ent 89G

@. *fter the jud!ment has become final" have it entered in the boo# of entries of jud!ments. 2)E

2. 1f no appeal or motion for new trial is filed within the time provided in the rules" direct the cler# of courtMbranch cler# of court to enter the jud!ment and prepare a certificate that such jud!ment has become final and e$ecutory.

H. 7OTION FOR NEW TRIAL OR RECON!IDERATION

1. "&o+n-( Fo& Ne$ T&',*89B

@. That errors of law or irre!ularities have been committed durin! the trial prejudicial to the substantial
. . . . .

8ules of Court! 8ule 1.<! $ection 2. 8amos +. 3onon&! -o. L9*.<1<! Au&ust :1! 1(2'! 2. $C8A 00(. :2 8ules of Court! 8ule :'! $ection .. :) ;he record shall contain the dispositi+e part of the =ud&ment and shall be si&ned by the ClerC of Court. :( 8ules of Court! 8ule 1.1! $ec. ..
:0 :'

ri!hts of the accused.

2. That new and material evidence has been discovered which the accused could not with reasonable dili!ence have discovered and produced at the trial and which if introduced and admitted would probably chan!e the jud!ment.

). ?eritorious circumstances as determined by the court on a case+to+case basis" such as

).@ retraction of a witness2/C

).2 ne!li!ence or incompetency of counsel2/@

).) improvident plea of !uilty.

)./ dis(ualification of an attorney de o%%icio to represent the accused in trial court2/2 8. "&o+n- Fo& Recon('-e&,t'on8:9 @. ,rrors of law or fact in the jud!ment.

9. Fo&1 O3 7ot'on Fo& A Ne$ T&',* O& Recon('-e&,t'on8::

@. The motion shall be in writin! and filed with the court. 2/6

2. 1t shall state the !rounds on which it is based.

). 1f based on newly discovered evidence" it must be supported by affidavits of witnesses by whom such evidence is e$pected to be !iven or by duly authenticated copies of documents which it is proposed to introduce in evidence.

:. !te0( to t,ke

. . . .

%eople +. Bocar! (2 %hil. :() [1(00]D %eople +. Curiano! -os. L910.0'92! ,ctober :1! 1(':! ( $C8A :.:! ( $C8A :.:. *1 -e&li&ence or incompetence is not a &round for neI trial unless it is so &ross as to amount to depri+ation of due process. *. Jose +. Court of Appeals! -o. L9:)0)1! Aarch :1! 1(2'! 2< $C8A .02 *: 8ules of Court! 8ule 1.1! $ec. :. ** 8ules of Court! 8ule 1.1! $ec. *. *0 #n criminal cases! the lacC of affida+its of merit in a motion for neI trial is not a fatal defect and can be cured by the testimony presented at the neI trial. %aredes +. Bor=a! L91000(! -o+ember .(! 1('1! : $C8A *(0.
*<

@. *scertain whether motion is seasonably filed with notice to the prosecutor and in due form.

2. 4here a motion for the decision of any (uestion of fact hear evidence of such motion by affidavits or otherwise. 2/8

). 4hen a new trial on the !round of errors of law or irre!ularities committed durin! the trial is !ranted" see to it that all the proceedin!s and evidence not affected by the commission of such errors and irre!ularities remain set aside those affected thereby. 1n the interest of justice" allow the introduction of additional evidence.

/. 4hen a new trial is !ranted on the !round of newly discovered evidence" let the evidence already ta#en stand. ta#e and consider to!ether with the evidence already in the record the newly discovered and such other evidence allowed to be introduced" in the interest of justice.

6. 1n all cases" when a new trial or reconsideration is !ranted" set aside the ori!inal jud!ment and render a new jud!ment accordin!ly. 2/;

. .

*' *2

8ules of Court! 8ule 1.1! $ec. 0 . 8ules of Court! 8ule 1.1! $ec. ' .

Check*'(t I

Steps 5rom 5ilin! :f *pplication To 9eferral Thereof To Probation :fficer

@. >etermine whether or not the probation application may be !iven due course" #eepin! in mind that the !overnin! law" Pres. >ecree 0o. B8E" as amended" 2/Ere(uires the followin!

@.@ that an application for probation be filed with the trial court. 2/B

@.2 that the application be filed within the period for perfectin! an appeal" that is" within fifteen A@6F days from the promul!ation or notice of the jud!ment appealed from. otherwise" the application shall not be entertained or !ranted. 26C

@.) that the applicant is not a dis(ualified offender. * dis(ualified offender is A@F sentenced to serve a ma$imum term of imprisonment of not more than si$ A8F years. A2F convicted of any crime a!ainst the national security or the public order. A)F previously convicted by final jud!ment of an offense punished by imprisonment of not less than one A@F month and one A@F day andMor fine of not less than Php2CC. A/F once on probation under the provisions of this >ecree. and A6F already servin! sentence at the time the substantive provisions of this >ecree became applicable pursuant to Section )) hereof. 26@

2. 1f the application does not appear to be meritorious" issue :rder denyin! due course to the application. 9efer to the copy of Probation Court form for use as a !uide in draftin! the :rder.

). 1f the application appears meritorious" issue :rder !ivin! due course to the application. 9efer to the copy of Probation Court form for use as a !uide in draftin! the :rder.

/. 1n the absence of any showin! that the applicant may not be placed on probation under e$istin! laws" issue :rder for post+sentence investi!ation to be conducted by the probation officer of the territory where the court sits. 9efer to the copy of Probation Court form" for use as a !uide in draftin! the :rder.

!,10*e 1 9,PO271C :5 T', P'171PP10,S

. . .

;oribio +. /iaG! 3. 8. -o. )*'.:! Aay )! 1((.! .<) $C8A 0(0D Bernardo +. Bala&ot! 3. 8. -o. )'0'1! -o+ember 1'! 1((.! .10 $C8A 0.'. *( Last sentence! second para&raph! $ec. *! %/ ('0! as amended. 0< Llamado +. Court of Appeals! 3. 8. -o. )*)0<! June .(! 1()(! 12* $C8A 0''. 01 %/ (')! $ec. (.
*)

9,D1:0*7 T91*7 C:O9T :5 VVVVVVVVVVVVVVVVVVVVVVV

2ranch VVVVVVVVVVVVVVVVVVVVVV

VVVVVVVVVVVVVVVVVVVV Judicial >istrict

Criminal Case 0o. VVVVVVVVVVVVVV

5or VVVVVVVVVVVVVVVVVVVVVVVVV

ACrimeF

$++++++++++++++++++++++++++++++++++$

:9>,9

1t appearin! from the records that the accused" AnameF " is dis(ualified for probation for the reason that Astate reason" e.!. sentenced to suffer imprisonment of more than si$ A8F years" hisMher %*pplication for Probation% filed with this Court on VVVVVVVVVVVVVVVVVVVV is hereby denied due course.

The 2ranch Cler# of Court is hereby instructed to issue correspondin! notices to bondsmanMcustodian to produce the accused or to the accused himself for the e$ecution of sentence.

A1f the accused is detained" direct 2ranch Cler# of Court to issue

correspondin! commitment orderF.

S: :9>,9,>

Jud!e VVVVVVVVVVVVVVVVVVV

:r other appropriate court

!,10*e 8 9,PO271C :5 T', P'171PP10,S

9,D1:0*7 T91*7 C:O9T :5 VVVVVVVVVVVVVVVVVVVVVVV

2ranch VVVVVVVVVVVVVVVVVVVVVV

VVVVVVVVVVVVVVVVVVVV Judicial >istrict

Criminal Case 0o. VVVVVVVVVVVVVV

5or VVVVVVVVVVVVVVVVVVVVVVVVV

ACrimeF

$++++++++++++++++++++++++++++++++++$

:9>,9

1t appearin! from the %*pplication for Probation% dated VVVVVVVVVV filed with this Court on VVVVVVVVVVV that the applicant AnameF " may be placed on probation under e$istin! laws" the application is hereby !iven due course.

7et a copy of this :rder be served upon the AProsecutin! :fficerF who may ta#e appropriate action or submit hisMher comments on the application within ten A@CF days from receipt thereof.

Pendin! consideration of hisMher application" the accused" AnameF shall remain under confinement at the VVVVVVVVVVVVMor is allowed temporary liberty under hisMher bail bondMor is released to the custody AnameF on the latterKs reco!ni&ance.

S: :9>,9,>.

++++++++++++++++++++++++++++++++++

+++++++++++++++++++++++++++++++++

APlaceF

A>ateF

Jud!e VVVVVVVVVVVVVVVVVVV

:r other appropriate court

!,10*e 9 9,PO271C :5 T', P'171PP10,S

9,D1:0*7 T91*7 C:O9T :5 VVVVVVVVVVVVVVVVVVVVVVV

2ranch VVVVVVVVVVVVVVVVVVVVVV

VVVVVVVVVVVVVVVVVVVV Judicial >istrict

Criminal Case 0o. VVVVVVVVVVVVVV

5or VVVVVVVVVVVVVVVVVVVVVVVVV

ACrimeF

$++++++++++++++++++++++++++++++++++$

:9>,9

The Probation :fficer of VVVVVVVVVVVVAProvinceMCityFVVVVVVVVVV is hereby directed to conduct an investi!ation on the application for probation of the accused AnameF and to submit hisMher report thereon within 8C days from receipt hereof in accordance with Section 6 and ; P.>. B8E" as amended.

The Cler# of Court is hereby ordered to furnish said Probation :fficer with a copy of the decision" as well as the necessary data pertinent to the case.

The accused" AnameF is hereby ordered to report to the aforesaid Probation :fficer within seventy+two A;2F hours from receipt of this :rder.

S: :9>,9,>.

+++++++++++++++++++++++++++++++++++ +++++++++++++++++++++++++++++++++++++

APlaceF

A>ateF

Jud!e VVVVVVVVVVVVVVVVVVV

:r other appropriate court

Check*'(t II

Steps 5rom 9eceipt :f Post+Sentence 1nvesti!ation

9eport To 1ssuance :f Probation :rder

@. ,$amine and consider the probation officerKs post+sentence investi!ation report upon receipt thereof" 262 #eepin! in mind the criteria for placin! an offender on probation established in Sec. E of the Probation 7aw" to wit that in determinin! whether an offender may be placed on probation" the court shall consider all information relative to the character" antecedents" environment. mental and physical condition of the offender" and available institutional and community resources. and" that probation shall be denied if the court finds that AaF the offender is in need of correctional treatment that can be provided most effectively by hisMher commitment to an institution. or AbF there is an undue ris# that durin! the period of probation" the offender will commit another crime. or AcF probation will depreciate the seriousness of the offense committed.
.

;he post9sentence in+esti&ation report must be submitted by the probation officer to the Court Iithin '< /ays from receipt of the courtEs order to conduct the in+esti&ation.
0.

2. >etermine after such e$amination and consideration of said report whether to deny or !rant the application for probation" #eepin! in mind that the court must resolve the said application not later than fifteen A@6F days after receipt of the post+sentence investi!ation report from the probation officer. 26)

2.@ 1f you resolve to deny the probation application" issue :rder denyin! the application" settin! forth a concise statement of the reasonMs for the denial.

2.2 1f you resolve to !rant the probation application" issue :rder Areferred to in the Probation 7aw as the %probation order%F 26/!rantin! the application Asee attached copy of such order for use as a !uide in draftin! the probation orderF" #eepin! in mind the followin! particulars re(uired by the !overnin! law" to wit AaF that the probation order shall contain the followin! mandatory conditions" namely A@F that the probationer shall present himself to the probation officer desi!nated to underta#e hisMher supervision at such place as may be specified in the order within ;2 hours from receipt of said order. and A2F that the probationer shall report to the probation officer at least once a month at such time and place as specified by said officer. AbF that the probation order shall state the period of probation. 266and AcF that the court may impose other conditions provided the same are related to the rehabilitation of the probationer and not unduly restrictive of hisMher liberty or incompatible with hisMher freedom of conscience. 268

). 1ssue probation order to the accused" at the same time informin! him of the conse(uences of said :rder Asuch as" that the :rder does not set aside or otherwise do away with the jud!ment of conviction and that it merely suspends the e$ecution of the sentence to !ive way to the probationF and e$plainin! that upon hisMher failure to comply with any of the conditions prescribed in the :rder or hisMher commission of another offense" he shall serve the penalty imposed in the said jud!ment. 26;

Check*'(t III

'ow To >eal 4ith 1ncidents >urin! Probation

I. 7o-'3'c,t'on o3 P&ob,t'on Con-'t'onK( o& Pe&'o-

@. :n receipt of the application for modification of the conditionMs andMor period of probation" direct the cler# of court to set the application for hearin!" with due notice to the probationer and the probation officer" #eepin! in mind that the !overnin! law26E provides that durin! the probation period" the court may" upon application of either the probationer or the probation officer" revise or modify the conditions or period of probation and that both probationer and probation officer must be !iven an opportunity to be heard thereon.

2. 'ear the probationer and the probation officer on the application on the date and hour set for hearin! thereof.
. . . . . .

An order &rantin& or denyin& probation shall not be appealable. Last para.! sec. *! %/ (')! as amended. %/ (')! $ec. *. 00 %/ (')! $ecs. 1< and 1*. 0' %/ (')! $ec. 1<6 C7. 02 %/ (')! $ec. 11. 0) %/ (')! $ec. 1.! 1st par.
0: 0*

). 1f you find the application to be unmeritorious" issue :rder denyin! it" with due notice to the probationer and the probation officer.

/. 1f you find the application to be meritorious" issue :rder !rantin! it26B with due notice to the probationer and the probation officer.

II. Re%oc,t'on o3 P&ob,t'on

@. :n your own initiative or upon receipt of proper application" issue :rder settin! forth the violation of the probation conditions char!ed a!ainst the probationer and directin! the issuance of a warrant for hisMher arrest since the !overnin! law28C provides pertinently that at any time durin! probation" the court may issue a warrant for the arrest of the probationer for any serious violation of the probation conditions. that once arrested" the probationer shall immediately be brou!ht before the Court for a hearin! of the violation char!ed. that the defendant may be admitted to bail pendin! such hearin!. and" that the provisions re!ardin! release on bail of persons char!ed with a crime shall be applicable to the probationer in such case.

2. Opon receipt of the return on the probationerKs arrest and detention pursuant to said warrant" direct the cler# of court to set the char!e a!ainst the probationer for hearin!" with due notice to the probationer and the probation officer.

). Conduct the hearin! as scheduled" #eepin! in mind that the !overnin! law28@ provides pertinently that the hearin! shall be summary in nature. that the court shall not be bound by the technical rules of evidence but may inform itself of all the facts which are material and relevant to ascertain the veracity of the char!e. that the probationer shall have the ri!ht to be informed of the violation char!ed and to adduce evidence in hisMher favor. and" that the State shall be represented by a prosecutin! officer in any contested hearin!.

/. 1f the violation is established" issue :rder either revo#in! the probation or continuin! the probation and modifyin! the conditions thereof" #eepin! in mind that the !overnin! law282 provides pertinently that if the !rant of probation is revo#ed" the court shall order the probationer to serve the sentence ori!inally imposed and that an :rder revo#in! the !rant of probation or modifyin! the terms and conditions thereof shall not be appealable. 28)

6. 1f the !rant of probation is revo#ed" issue :rder of commitment on final sentence.

8. 1f the violation is not established" issue :rder dismissin! the char!e and continuin! the probation under the same terms and conditions of the Probation :rder" with correspondin! directive for the probationerKs immediate release from custody or the cancellation of hisMher bail bond" as the case may be.

. . . . .

%/ (')! $ec. 1.! .nd par. %/ (')! $ec. 1:! 1st par. '1 %/ (')! $ec. 1)! .nd par. '. %/ (')! $ec. 1:! last par.! .nd par. ': Baclayon +. Autia! -o. L90(.()! April :<! 1()*! 1.( $C8A 1*)D Bala +. AartineG! 3. 8. -o. '2:<1! January .(! 1((<! 1)1 $C8A *0(.
0( '<

III. T&,n(3e& o3 Cont&o* o%e& P&ob,t'one&

@. :n receipt of application therefor" e$amine and determine if the same is meritorious or not.

2. 1f meritorious" issue :rder !rantin! the application" #eepin! in mind that the !overnin! law28/ provides pertinently that whenever a probationer is permitted to reside in a place under the jurisdiction of another court" control over him shall be transferred to the ,$ecutive Jud!e of the 9e!ional Trial Court Aformerly" the Court of 5irst 1nstanceF of that place286 and in such a case" a copy of the Probation :rder" the post+ sentence investi!ation report" and other pertinent records shall be furnished the said ,$ecutive Jud!e" and thereafter" the said ,$ecutive Jud!e shall have the power with respect to the probationer that was previously possessed by the court which !ranted the probation to the defendant.

I=. Te&1'n,t'on o3 P&ob,t'on

@. *fter the period of probation and upon consideration of the correspondin! report and recommendation of the probation officer" issue :rder directin! the final dischar!e of the probationer if you find that he has fulfilled the terms and conditions of hisMher probation" #eepin! in mind that the !overnin! law288 provides pertinently that upon the issuance of such :rder the case is deemed terminated. that the final dischar!e of the probationer shall operate to restore to him all civil ri!hts lost or suspended as a result of hisMher conviction and to fully dischar!e hisMher liability for any fine imposed as to the offense for which probation was !ranted and that the probationer and the probation officer shall each be furnished a copy of such :rder. 28;

P&ob,t'on Co+&t Fo&1 No.

DO&-e& Re%ok'n) P&ob,t'onF 9,PO271C :5 T', P'171PP10,S 9,D1:0*7 T91*7 C:O9T :5 VVVVVVVVVVVVVVVVVVVVVVV

2ranch VVVVVVVVVVVVVVVVVVVVVV

VVVVVVVVVVVVVVVVVVVV Judicial >istrict

Criminal Case 0o. VVVVVVVVVVVVVV

. . . .

%/ (')! $ec. 1:! .nd par. Bala +. AartineG! supra! note .'.. '' $ec. 1'! %/ (') '2 Bala +. AartineG! supra! note .'..
'* '0

5or VVVVVVVVVVVVVVVVVVVVVVVVV

ACrimeF

$++++++++++++++++++++++++++++++++++$

:9>,9

Opon the recommendation dated VVVVVVVVVVVVVV of the Probation :fficer assi!ned to this case and findin! the same to be well ta#en" the same is approved and the probation !ranted to the accused" AnameF " is hereby revo#ed.

The e$ecution of the sentence ori!inally imposed upon the said accused is

hereby set for

A>ateF

at

APlaceF

7et copies of this :rder be furnished the probationer and the probation officer.

S: :9>,9,>

++++++++++++++++++++++++++++++++

+++++++++++++++++++++++++++++++++++++

APlaceF

A>ateF

Jud!e VVVVVVVVVVVVVVVVVVV

:r other appropriate court P&ob,t'on Co+&t Fo&1 No. DO&-e& 7o-'3/'n) the Con-'t'on( o3 P&ob,t'onF 9,PO271C :5 T', P'171PP10,S 9,D1:0*7 T91*7 C:O9T :5 VVVVVVVVVVVVVVVVVVVVVVV

2ranch VVVVVVVVVVVVVVVVVVVVVV

VVVVVVVVVVVVVVVVVVVV Judicial >istrict

Criminal Case 0o. VVVVVVVVVVVVVV

5or VVVVVVVVVVVVVVVVVVVVVVVVV

ACrimeF

$++++++++++++++++++++++++++++++++++$

:9>,9

Opon the recommendation dated VVVVVVVVVVVVVVVV of the Probation :fficer assi!ned to this case and findin! the same to be well ta#en" the probation is hereby modified as follows

7et copies of this :rder be furnished the probation and the probation officer.

S: :9>,9,>

++++++++++++++++++++++++++++++++

+++++++++++++++++++++++++++++++++++++

APlaceF

A>ateF

Jud!e VVVVVVVVVVVVVVVVVVV

:r other appropriate court P&ob,t'on Co+&t Fo&1 No. DO&-e& 7o-'3/'n) the Con-'t'on( o3 P&ob,t'onF 9,PO271C :5 T', P'171PP10,S 9,D1:0*7 T91*7 C:O9T :5 VVVVVVVVVVVVVVVVVVVVVVV

2ranch VVVVVVVVVVVVVVVVVVVVVV

VVVVVVVVVVVVVVVVVVVV Judicial >istrict

Criminal Case 0o. VVVVVVVVVVVVVV

5or VVVVVVVVVVVVVVVVVVVVVVVVV

ACrimeF

$++++++++++++++++++++++++++++++++++$

:9>,9

Opon the recommendation dated VVVVVVVVVVVVVVVV of the Probation :fficer assi!ned to this case and findin! the same to be well ta#en" the probation is hereby modified as follows

7et copies of this :rder be furnished the probation and the probation officer.

S: :9>,9,>

++++++++++++++++++++++++++++++++

+++++++++++++++++++++++++++++++++++++

APlaceF

A>ateF

Jud!e VVVVVVVVVVVVVVVVVVV

:r other appropriate court

=III. I!!UANCE OF !EARCH WARRANT!

R+*e( o3 Co+&t

R+*e 18<

Sec. 2. Court here application %or search warrant shall be filed with the followin!

arrant shall be %iled. N *n application for search

AaF *ny court within whose territorial jurisdiction a crime was committed.

AbF 5or compellin! reasons stated in the application" any court within the judicial re!ion where the crime was committed if the place of the commission of the crime is #nown" or any court within the judicial re!ion where the warrant shall be enforced.

'owever" if the criminal action has already been filed" the application shall only be made in the court where the criminal action is pendin!.

1. R+*e on Fo&+1 !ho00'n)

* search warrant was (uashed because the applicant had been !uilty of forum shoppin! as the applicant sou!ht the search warrant from a ?anila 9e!ional Trial Court after was denied by the courts of Pampan!a.
28E

The 9ules of Court" however" re(uires only initiatory pleadin! to be accompanied with a certificate of non+ forum shoppin! omittin! any mention of %applications% as in Supreme Court Circular 0o. C/+B/. 'ence" the absence of such certification will not result in the dismissal of the application for search warrant. 28B

R+*e( o3 Co+&t

R+*e 18<

Sec. ). &ersonal property to be sei'ed.3 * search warrant may be issued for the search and sei&ure of personal property

AaF Subject of the offense.

. .

') '(

1ashin&ton /istillers +. Court of Appeals! 3. 8. -o. 11)101! Au&ust ..! 1(('! .'< $C8A ).1. $a+a&e +. ;aypin! 3. 8. -o. 1:*.12! Aay 11! .<<<.

AbF Stolen or embe&&led and other proceeds" or fruits of the offense. or

AcF Osed or intended to be used as the means of committin! an offense.

Sec. /. Requisites %or issuing search arrant.3 * search warrant shall not issue e$cept upon probable cause in connection with one specific offense to be determined personally by the jud!e after e$amination under oath or affirmation of the complainant and the witnesses he may produce" and particularly describin! the place to be searched and the thin!s to be sei&ed which may be anywhere in the Philippines.

Sec. 6. 7+amination o% complainantC record.3 The jud!e must" before issuin! the warrant" personally e$amine in the form of searchin! (uestions and answers" in writin! and under oath" the complainant and the witnesses he may produce on facts personally #nown to them and attach to the record their sworn statements" to!ether with the affidavits submitted.

B. 7e,n'n) o3 P&ob,b*e C,+(e

Probable cause for a search is defined as such facts and circumstances which could lead a reasonably discreet and prudent man to believe that an offense has been committed and that the objects sou!ht in connection with the offense are in the place sou!ht to be searched. 2;C

9. B,('( o3 P&ob,b*e C,+(e> Pe&(on,*

no$*e-)e

This probable cause must be shown to be within the personal #nowled!e of the complainant or the witnesses he may produce and not based on mere hearsay" 2;@in order to convince the jud!e" not the individual ma#in! the affidavit and see#in! the issuance of the warrant of the e$istence of a probable cause. 2;2

@. ?eanin! of #nowled!e. test is liability for perjury

The followin! test was laid in determinin! whether the alle!ations in an application for search warrant or in supportin! deposition" are based on personal #nowled!e or not 3

The true test of sufficiency of a deposition or affidavit to warrant issuance of a search warrant is whether it has been drawn in a manner that perjury could be char!ed thereon and the affiant be held liable for dama!e caused. The oath re(uired must refer to the truth of the facts within the
.

. .

Bur&os! $r. +. Chief of $taff! -o. L9'*.'1! /ecember .'! 1()*! 1:: $C8A )10D Fuintero +. -ational Bureau of #n+esti&ation! -o. L9:01*(! June .:! 1())! 1'. $C8A *):D %endon +. Court of Appeals! 3. 8. -o. )*)2:! -o+ember 1'! 1((<! 1(1 $C8A *.(D Aanalili +. Court of Appeals! 3. 8. -o. 11:**2! ,ctober (! 1((2! .)< $C8A *<<D %eople +. Aontilla! 3. 8. -o. 1.:)2.! January :<! 1(()! .)0 $C8A 2<:. 21 %rudente +. /ayrit! 3. 8. -o. ).)2<! /ecember 1*! 1()(! 1)< $C8A '(. 2. Al+areG +. Court of 4irst #nstance of ;ayabas '* %hil. :: [1(:2]D Bur&os! $r. +. Chief of $taff! supra, note .'(D .<th Century 4ox 4ilm Corporation +. Court of Appeals! -os. L92''*(901! Au&ust 1(! 1())! 1'* $C8A '00D $il+a +. 8e&ional ;rial Court of -e&ros ,riental! 3. 8. -o. )120'! ,ctober .1! 1((1! .<: $C8A 1*<.
2<

personal #nowled!e of the applicant for search warrant" andMor hisMher witnesses" not of the facts merely reported by a person whom one considers to be reliable. 2;)

2. 1nsufficiency of *ffidavits

?ere affidavits of the complainant and hisMher witnesses are not sufficient. The e$aminin! Jud!e has to ta#e depositions in writin! of the complainant and the witnesses he may produce and to attach them to the record. Such written deposition is necessary in order that the Jud!e may be able to properly determine the e$istence or non+e$istence of the probable cause" to hold liable for perjury the person !ivin! it if it will be found later that hisMher declarations are false. 2;/

Search warrants are not issued on loose" va!ue or doubtful basis of fact" nor on mere suspicion or belief. The facts recited in an affidavit supportin! the application for a search warrant must be stated with sufficient definiteness" so that" if they are false" perjury may be assi!ned on the affiant. 'ence" affidavits which !o no further than to alle!e conclusions of law" or of fact" are insufficient. 2;6

,(ually insufficient as a basis for the determination of probable cause is a statement contained in a joint affidavit %that the evidence !athered and collated by our unit clearly shows that the premises above+ mentioned and the articles and thin!s above+prescribed were used and are continuously bein! used for subversive activities in conspiracy with and to promote the objective of" ille!al or!ani&ations such as the 7i!ht+*+5ire ?ovement" ?ovement for 5ree Philippines" and *pril 8 ?ovement.%

). &rudente v. 5he Hon. 7+ecutive ,udge 9.M. /ayrit

1n hisMher application for search warrant" PM?ajor *lladin >ima!maliw stated that %he has been informed% that 0emesio Prudente %has in his control and possession% the firearms and e$plosives described therein" and that he %has verified the report and found it to be a fact.% :n the other hand" in his supportin! deposition" PM7t. 5lorencio C. *n!eles declared that" as a result of their continuous surveillance for several days" they gathered in%ormations %rom veri%ied sources that the holders of the said firearms and e$plosives are not licensed to possess them. 1n other words" the applicant and his witness had no personal #nowled!e of the facts and circumstances which became the basis for issuin! the (uestioned search warrant" but ac(uired #nowled!e thereof only throu!h information from other sources or persons.

4hile it is true that in his application for search warrant" applicant PM?ajor >ima!maliw stated that he veri%ied the in%ormation he had earlier received that petitioner had in his possession and custody the firearms and e$plosives described in the application" and that he found it to be a fact" yet there is nothin! in the record to show or indicate ho and hen said applicant veri%ied the earlier information ac(uired by him as to justify his conclusion that he found such information to be a fact. 'e mi!ht have clarified this point if there had been searchin! (uestions and answers" but there were none. 1n fact" the records yield no (uestions and answers" whether searchin! or not" vis+W+vis the said applicant.

4hat the records show is the deposition of witness" PM7t. *n!eles" as the only support to PM?ajor >ima!maliwKs application" and the said deposition is based on hearsay. 5or it avers that they Apresumably"
. . .

Al+areG +. Court of 4irst #nstance! supra, note .2.. Aata +. Bayona! -o. L90<2.<! Aarch .'! 1()*! 1.) $C8A :)) 20 Fuintero +. -ational Bureau of #n+esti&ation! supra, note .2<D Bur&os +. Chief of $taff! supra, note .2<.
2: 2*

the police authoritiesF had conducted continuous surveillance for several days of the suspected premises and" as a result thereof" they %!athered information from verified sources% that the holders of the subject firearms and e$plosives are not licensed to possess them.

,vidently" the alle!ations contained in the application of PM?ajor *lladin >ima!maliw and the declaration of PM7t 5lorencio C. *n!eles in his deposition were insufficient basis for the issuance of a valid search warrant. *s held in the &rudente case

The oath re(uired must refer to the truth of the facts within the personal #nowled!e of the petitioner or his witnesses" because the purpose thereof is to convince the committin! ma!istrate" not the individual ma#in! the affidavit and see#in! the issuance of the warrant" of the e$istence of probable cause. 2;8

/. 5actors that may be considered in determination of probable cause time of application in relation to alle!ed offense considered in determination of probable cause

The Supreme Court observed

1t has li#ewise been observed that the offenses alle!ed too# place from @B8@ to @B8/" and the application for search warrant was made on :ctober 2;" @B86. The time of the application is so far remote in time as to ma#e the probable cause of doubtful veracity and the warrant vitally defective. Thus" ?r. Joseph Haron" an eminent authority on Searches" Sei&ures and 1mmunities" has this to say on this point subject" the followin! !eneral rules are said to apply to affidavits for search warrants

A@F $ $ $

A2F Such statement as to the time of the alle!ed offense must be clear and definite and must not be too remote from the time of the ma#in! of the affidavit and issuance of the search warrant.

A)F There is no ri!id rule for determinin! whether the stated time of observation of the offense is too remote from the time when the affidavit is made or the search warrant issued" but" !enerally spea#in!" a lapse of time of less than three wee#s will be held not to invalidate the search warrant" while a lapse of four wee#s will be held to be so.

* !ood and practical rule of thumb to measure the nearness of time !iven in the affidavit as to the date of the alle!ed offense" and the time of ma#in! the affidavit is thus e$pressed 05he nearer the time at hich the observation o% the o%%ense is alleged to have been made, the more reasonable the conclusion o% establishment o% probable cause0..:: A1talics ours.F

The Supreme Court observed that had the respondent jud!e been cautious in issuin! the (uestioned
. .
2' 22

%rudente +. /ayrit! supra, note .21. Asian $urety and #nsurance Co. +. Herrera! -o. L9.0.:.! /ecember .<! 1(2:! 0* $C8A :1..

search warrants he would have wondered" and therefor as#ed the affiant why the said incident was reported only on ?ay )@" @B;2 when he alle!edly witnessed it on ?ay 2B" @B;2. 2;E

6. The 0eed of Competent Proof of Particular *cts or Specific :missions

The Supreme Court in the celebrated case of Stonehill v. /io;no pointed to the need of competent proof of particular acts or specific omissions in the ascertainment of probable cause

Two points must be stressed in connection with this constitutional mandate" namely A@F that no warrant shall issue but upon probable cause" to be determined by the jud!e in the manner set forth in said provision" and A2F that the warrant shall particularly describe the thin!s to be sei&ed.

0one of these re(uirements has been complied with in the contested warrants. 1ndeed" the same were issued upon applications statin! that the natural and juridical persons therein named had committed a %violation of Central 2an# 7aws" Tariff and Customs 7aws" 1nternal 9evenue Code and 9evised Penal Code.% 1n other words" no specific offense had been alle!ed in said applications. The averments thereof with respect to the offense committed were abstract. *s a conse(uence" it was impossible for the jud!es who issued the warrants to have found the e$istence of probable cause for the same presuppose the introduction of competent proof that the party a!ainst whom it is sou!ht has performed particular acts or committed specific omissions" violatin! a !iven provision of our criminal laws. *s a matter of fact" the applications involved in this case do not alle!e any specific acts performed by herein petitioners. 1t would be a le!al heresy" of the hi!hest order" to convict anybody of a %violation of Central 2an# 7aws" Tariff and Customs 7aws" 1nternal 9evenue ACodeF and 9evised Penal Code.% 3 as alle!ed in the aforementioned applications 3 without reference to any determinate provision of said laws or codes. 2;B

8. Probable Cause to be >etermined only by Jud!e

* notable innovation in this !uarantee is found in the Constitution in that it specifically provides that the probable cause upon which a warrant of arrest may be issued" must be determined by the jud!e after e$amination under oath" etc." of the complainant and the witnesses he may produce. This re(uirement 3 %to be determined by the jud!e% 3 is not found in the 5ourth *mendment of the O.S. Constitution" in the Philippine 2ill or in the Jones *ct" all of which do not specify who will determine the e$istence of a probable cause. 'ence" under their provisions" any public officer may be authori&ed by the 7e!islature to ma#e such determination" and thereafter issue the warrant of arrest. Onder the e$press terms of the Constitution" it is" therefore" even doubtful whether the arrest of an individual may be ordered by any authority other than the jud!e if the purpose is merely to determine the e$istence of a probable cause" leadin! to an administrative investi!ation. The Constitution does not distin!uish between warrants in administrative proceedin!s. *nd" if one suspected of havin! committed a crime is entitled to a determination of the probable cause a!ainst him" by a jud!e" why should one suspected of a violation of an administrative nature deserve less !uaranteeP :f course it is different if the order of arrest is issued to carry out a final findin! of a violation" either by an e$ecutive or le!islative officer or a!ency duly authori&ed for the purpose" as then the warrant is not that mentioned in the Constitution which is issuable only on probable cause. Such" for e$ample" would be a warrant of arrest to carry out a final order of deportation" or to effect compliance of an order of contempt. 2EC
. .

Fuintero +. -ational Bureau of #n+esti&ation! supra, note .2<. $tonehill +. /ioCno! -o. L91(00<! June 1(! 1('2! .< $C8A :):D La Chemise Lacoste! $. A. +. 4ernandeG! -o. L9 ':2('92! Aay .1! 1()*! 1.( $C8A :2:. )< Fua Chee 3an +. /eportation Board! -o. L91<.)<! $eptember :<! 1(':! ( $C8A .2.
2) 2(

;. ?anner of e$amination

1n determinin! the e$istence of probable cause" it is re(uired that @F the jud!e must e$amine the witnesses personally. 2F the e$amination must be under oath. and )F the e$amination must be reduced to writin! in the form of searchin! (uestions and answers. 2E@These re(uirements are provided under Section 6" 9ule @28 of the 9ules of Court. 1t has been ruled that the e$istence of probable cause depends to a lar!e de!ree upon the findin! or opinion of the jud!e conductin! the e$amination. 2E2however" the opinion or findin! of probable cause must" to a certain de!ree" be substantiated or supported by the record. 2E)

E. ,$amination is heard e$+parte and may be done in chambers but action must be e$pedited

*n application for a search warrant is heard e+<parte. 1t is neither a trial nor a part of the trial. 2E/The e$amination or investi!ation which must be under oath may not be in public. 1t may be even held in the secrecy of the chambers. 1t must be under oath and must be in writin!. 2E6*ction on these applications must" be e$pedited for time is of the essence. Dreat reliance has to be accorded by the jud!e to the testimonies under oath of the complainant and the witnesses. 2E8The e$amination or investi!ation must not" however" be merely routinary but one that is thorou!h and elicit the re(uired information. 2E;

The searchin! (uestions propounded to the applicants of the search warrant and hisMher witnesses must depend to a lar!e e$tent upon the discretion of the Jud!e just as lon! as the answers establish a reasonable !round to believe the commission of a specific offense and that the applicant is one authori&ed by law" and said answers particularly describe with certainty the place to be searched and the persons or thin!s to be sei&ed. The e$amination or investi!ation which must be under oath may not be in public. 1t may be even be held in the secrecy of hisMher chambers. 5ar more important is that the e$amination or investi!ation is not merely routinary but one that is thorou!h and elicit the re(uired information. To repeat" it must be under oath and must be in writin!. 2EE

B. The need for searchin! (uestions and answers by the jud!e

?ore emphatic and detailed is the implementin! rule of the constitutional injunction" Section / of 9ule @28 which provides that the jud!e before issuin! the warrant personally e$amine on oath or affirmation the complainant and any witnesses he may produce and ta#e their depositions in writin! and attach them to the record in addition to any affidavits presented to him. 2EB

The e$amination must be probin! and e$haustive" not merely routinary or pro %orma, if the claimed probable cause is to be established. The e$aminin! ma!istrate must not simply rehash the contents of the affidavits but must ta#e hisMher own in(uiry on the intent and justification of the application. 2BC
.

. . . . . . . . .

Aarinas +. $iochi! -os. L9.02<2 and .020:9*! Aay 1*! 1()1!1<* $C8A *.:D %onsica +. #&nala&a! 3. 8. -o. 2.:<1! July :1! 1()2! 10. $C8A '*2. ). Luna +. %laGa! 3. 8. -o. L9.2011! -o+ember .(! 1(')! .' $C8A :1<. ): %endon +. Court of Appeals! 3. 8. -o. )*)2:! -o+ember 1'! 1((<! 1(1 $C8A *.(. )* La Chemise Lacoste! $. A. +. 4ernandeG! supra, note! .2(. )0 Aata +. Bayona! supra, note .2*. )' La Chemise Lacoste +. 4ernandeG! supra! note .2). )2 Aata +. Bayona! supra, note .2*. )) Aata +. Bayona! supra, note .2*. )( Aata +. Bayona! supra, note .2*. (< 8oan +. 3onGales! L921*1<! -o+ember .0! 1()'! 1*0 $C8A ')'.
)1

*s#in! of leadin! (uestions to the deponent in an application for search warrant" and conductin! of e$amination in a !eneral manner" would not satisfy the re(uirements for issuance of a valid search warrant.
2B@

Personal e$amination by the jud!e of the complainant and hisMher witnesses is necessary to enable him to determine the e$istence or non+e$istence of a probable cause" pursuant to *rt. 111" Sec. @" par. )" of the Constitution" and 9ule @28" Sec. / of the 9ules of Court" both of which prohibit the issuance of warrants e$cept %upon probable cause.% The determination of whether or not a probable cause e$ists calls for the e$ercise of jud!ment after a judicial appraisal of facts and should not be allowed to be dele!ated in the absence of any rule to the contrary. 2B2

@C. 9e(uisite of particular description of thin!s to be sei&ed

The description %is re(uired to be specific only in so far as the circumstances will ordinarily allow% and %where by the nature of the !oods to be sei&ed their descriptions must rather be !eneral" as this would mean that no warrant would issue.% 2B)

Thus" the description %fraudulent boo#s" invoices and records% was found sufficient. 2B/

So also was the description %boo#s" documents" receipts" lists" chits and other papers used by him in connection with hisMher activities as moneylender" char!in! a usurious rate of interest" in violation of the law.- 2B6Justifyin! the sufficiency of the later description" the Court said

Ta#in! into consideration the nature of the articles so described" it is clear that no other more ade(uate and detailed description could have been !iven" particularly because it is difficult to !ive a particular description of the contents thereof. The description so made substantially complies with the le!al provisions because the officer of the law who e$ecuted the warrant was thereby placed in a position enablin! him to identify the articles" which he did. 2B8

1t was" however" held in a much later case that search warrants describin! the effects to be sei&ed as follows

2oo#s of accounts" financial records" vouchers" journals" correspondence" receipts" led!ers" portfolios" credit journals" typewriters" and other documents andMor papers showin! all business transactions includin! disbursements receipts" balance sheets and related profit and loss statements.

thus authori&in! the sei&ure of boo#s of accounts and records %showin! all the business transactions% of
.

. . . . .

-olasco +. %a o! 3. 8. -o. '()<:! ,ctober )! 1()0! 1:( $C8A 1:.D Fuintero +. -B#! supra, note .2<D $il+a +. 8e&ional ;rial Court of -e&ros ,riental! supra, note .2.. (. Bache +. 8uiG! -o. L9:.*<(! 4ebruary .2! 1(21! :2 $C8A ).:. (: %eople +. 8ubio! 02 %hil. :)* [1(:.]. (* %eople +. 8ubio! supra, .(:. (0 Al+areG +. Court of 4irst #nstance of ;ayabas! supra, .2.. (' Al+areG +. C4#! supra, note .2..
(1

certain persons" re!ardless of whether the transactions were le!al or ille!al" contravene the e$plicit command of the 2ill of 9i!hts that the thin!s to be sei&ed should be particularly described and defeat its major objective of eliminatin! !eneral warrants. 2B;

@@. Tests to >etermine Particularity

* search warrant may be said to particularly describe the thin!s to be sei&ed

A@F 4hen the description therein is as specific as the circumstances will ordinarily allow. 2BEor

A2F 4hen the description e$presses a conclusion of fact + not of law by which the warrant officer may be !uided in ma#in! the search and sei&ure. 2BBor

A)F 4hen the thin!s described are limited to those which bear direct relation to the offense for which the warrant is bein! issued. )CC

Thus" if the articles desired to be sei&ed have any direct relation to an offense committed" the applicant must necessarily have some evidence" other than those articles" to prove the said offense. and the articles subject of search and sei&ure should come in handy merely to stren!then such evidence. 1n this event" the description contained in the disputed warrant should have mentioned" at least" the dates" amounts" persons" and other pertinent data re!ardin! the receipts of payments" certificates of stoc#s and securities" contracts" promissory notes" deeds of sale" messa!es and communication" chec#s" ban# deposits and withdrawals" records of forei!n remittances" amon! others" enumerated in the warrant. )C@

@2. >escription of place to be sei&ed

1t does not suffice" for a search warrant to be deemed valid" that it be based on probable cause" personally determined by the jud!e" it is essential" too" that it particularly describes the place to be searched, the manifest intention bein! that the search be confined strictly to the place also described. )C2

4here the affidavit for the search warrant and the search warrant itself described the buildin! to be searched as %the buildin! 0o. @2/ Calle *r&obispo" City of ?anila" Philippine 1slands"% this is a sufficient desi!nation of the premises to be searched. 1t is the prevailin! rule that a description of a place to be searched is sufficient if the officer with the warrant can" with reasonable effort" ascertain and identify the place intended. )C)The police officers were accordin!ly authori&ed to brea# down the door and enter the premises of the buildin! occupied by the so+called Parliamentary Club. 4hen inside" they then had the ri!ht to arrest the persons presumably en!a!ed in a prohibited !ame" and to confiscate the evidence of the
. . . : :

: :

$tonehill +. /ioCno! supra! note .2(. %eople +. 8ubio! supra! note .(:. (( #bid.! dissent of J. Abad $antos. << 8ules of Court! 8ule 1.'! $ec. .. <1 Bache +. 8uiG! supra, note .(.D Columbia %ictures +. Court of Appeals! 3. 8. -o. 111.'2! $eptember .<! 1(('! .'. $C8A .1(. <. %eople +. Court of Appeals! 3. 8. -o. 1.':2(! June .'! 1(()! .(1 $C8A *<<. <: $teele +s. 5.$. [1(.0]! 5.$. $upreme Court Ad+ance ,pinions! 1(.*91(.0D '( LaI. ed.! 202.
(2 ()

commission of the crime. 1t has been held that an officer ma#in! an arrest may ta#e from the person arrested any money or property found upon hisMher person" which was used in the commission of the crime or was the fruit of the crime" or which may furnish the person arrested with the means of committin! violence or of escapin!" or which may be used as evidence on the trial of the case" but not otherwise. )C/

@). >etermination of 4hether Search 4arrant >escribes Premises with Particularity

1n the determination of whether a search warrant describes the premises to be searched with sufficient particularity" it has been held %that the e$ecutin! officerKs prior #nowled!e as to the place intended in the warrant is relevant. This would seem to be especially true where the e$ecutin! officer is the affiant on whose affidavit the warrant had issued" and when he #nows that the jud!e who issued the warrant intended the buildin! described in the affidavit. *nd it has also been said that the e$ecutin! officer may loo# to the affidavit in the official court file to resolve an ambi!uity in the warrant as to the place to be searched.% )C6

The principle does not apply where there is no ambi!uity on the face of the search warrant as to the description of the place to be searched. The place to be searched as set out in the warrant cannot be amplified or modified by the officerKs own personal #nowled!e of the premises" or the evidence they adduced in support of their application for the warrant. $ $ $ The particulari&ation of the description of the place to be searched may properly be done only by the Jud!e" and only in the warrant itself. it cannot be left to the discretion of the police officers conductin! the search. )C8

: : :

%eople +. "eloso! *) %hil. 1'( [1(.0]. Bur&os +. Chief of $taff! Armed 4orces of the %hilippines! supra, note .2.. <' %eople +. Court of Appeals! supra, note :<..
<* <0

I! PRO"ISIONAL RE#EDIES Rules o Court Rule 12$ Pro%isional Re&edies In Cri&inal Cases $ec. 1. vailability o! provisional remedies. " ;he pro+isional remedies in ci+il actions! insofar as they are applicable! may be a+ailed of in connection Iith the ci+il action deemed instituted Iith the criminal action. $ec. .. tta#hment.$ 1hen the ci+il actions is properly instituted in the criminal action as pro+ided in 8ule 111! the offended party may ha+e the property of the accused attached as security for the satisfaction of any =ud&ment that may be reco+ered from the accused in the folloIin& casesL 6a7 1hen the accused is about to abscond from the %hilippinesD 6b7 1hen the criminal action is based on a claim for money or property embeGGled or fraudulently misapplied or con+erted to the use of the accused Iho is a public officer! officer of a corporation! attorney! factor! broCer! a&ent or clerC! in the course of his employment as such! or by any other person in a fiduciary capacity! or a Iillful +iolation of dutyD 6c7 1hen the accused has concealed! remo+ed! or disposed of his property! or is about to do soD and 6d7 1hen the accused resides outside the %hilippines.

PART TWO

PROCEDURE IN !ANDI"ANBAYAN

I. !TA"E! IN CRI7INAL CA!E!

@. 5ilin! of the 1nformation after preliminary investi!ation conducted by the :ffice of the :mbudsman.

2. Judicial determination of probable cause to be determined by the Justices concerned.

2.@ 1f the Court finds the e$istence of probable cause" the Court shall cause the issuance of 4arrant of *rrest and 'old+departure :rder a!ainst the accused" the first throu!h the Chairman only" the second by >ivision N that is three A)F Justices si!nin! the order.

2.2 1n some cases" the Court directs the :ffice of the Cler# of Court to schedule a hearin! on the 1nformation notifyin! only the prosecution Aanent said hearin! the Court may call the attention of the prosecution and to direct it to file a necessary pleadin! why the case should not be dismissed for lac# of jurisdiction" why the information should not be (uashed" why the accused should not be !ranted bail if the :ffice of the :mbudsman recommends no bail but the offense as seen by the Court is bailableF.

2.) Possible ?otion to *mend 1nformation filed by the prosecution.

). *rrestMHoluntary Surrender of the accused

/. Postin! of 2ail

/.@ Possible motion for reinvesti!ation filed by accused. Aalle!in! that accused was deprived of hisMher ri!ht to file a motion for reconsideration before the :ffice of the :mbudsman on the latterKs resolutionMdecision as mandated by Section 2; of the :mbudsman *ct of @BEBF.

/.2 Possible ?otion to 4ithdraw 1nformationMTo Guash 1nformationM?otion to >ismiss even if ?otion for 9e+1nvesti!ation is denied andMor !ranted.

6. *rrai!nment and plea

6.@ Possible filin! of a ?otion to Suspend accused &endente Lite by the prosecution.

6.2 Possible ?otion to Travel *broad filed by the accused.

6.2.@ The court will re(uire certain conditions in the event said motion is !ranted such as postin! of additional travel cash bond" conformity of the bondsmen if any" etc.

6.2.2 1n some cases where accused files a ?otion to Travel *broad before hisMher arrai!nment" the Court" durin! the hearin! on the said ?otion shall conductMre(uire a conditional arrai!nment of the accused if the case is pendin! re+investi!ation so that in the event the accused failsMrefuses to return in the country" the court may opt to conduct a trial in absentia.

6.2.) Possible ?otion for Consolidation" if applicable.

8. Pre+trial

8.@ Submission of Joint stipulation of facts.

8.2 1ssuance of Pre+Trial 1n(uest ASec. 8 9ule H1F

8.) Pre+Trial :rder recitin! the actions andMor proceedin!s ta#en and the alteration of presentation of evidence if warranted.

;. Trial

;.@ Prosecution presents evidence and rests case.

;.2 Possible filin! of >emurrer to ,videnceM?otion to >ismiss.

;.) Presentation of defense evidence if >emurrer to ,videnceM?otion to >ismiss is denied.

E. Jud!ment A>ecisionF

B. 0ew Trial or 9econsideration

@C. *ppeal N Petition for 9eview for Certiorari under 9ule /6

8. CI=IL CA!E!

A. C,(e( Co%e&e-

@. Those filed under ,$ec. :rder 0os. @" 2" @/ and @/+* promul!ated by President Cora&on *(uino referrin! to the recovery of ill+!otten wealth of former President 5erdinand ?arcosMmembers of his familyMclose relativesMsubordinatedMcroniesMa!entsM dummies N by the PCDD.

2. 'earin! on the validity of 4rit of Se(uestration or free&e or 'old :rder issued by the PCDD.

B. !t,)e( 'n C'%'* C,(e(

@. Pre+trial after last pleadin! is filed

2. Trial

2.@ Plaintiff presents evidence and rests case

2.2 >efendant presents evidence and rests case

). ?emoranda if re(uested by the parties

/. Jud!ment

6. ?otion for 9econsiderationM0ew Trial by any party

8. *ppeal

9. PROCEDURE ON APPEALED CA!E!

A*nti+Draft cases decided by the 9TC involvin! minor officialsF )C;

A. 7o-e o3 A00e,*

Petition 5or 9eview Anot 0otice :f *ppealF pursuant to Sec. / AbF Pres. >ecree 0o. @8C8 and Sec. )B 2atas 2l!. @2B.

<2

8ep. Act -o. ).*(! $ec. *

B.

!t,)e( 'n A00e,*(

@. Transmittal of the entire record" e$hibits" steno!raphic notes" etc. by the court a quo to the >oc#et and 9ecords Section.

2. Case shall be entered into the Sandiganbayan >oc#et and raffled off to the proper >ivision.

). The Court after ascertainin! the completeness of all the evidence" oral and documentary" attached to the record" shall re(uire the appellant to file with the court" within forty+five A/6F days from receipt of said notice seven A;F copies of hisMher le!ibly typewritten" mimeo!raphed or printed brief" with proof of service of two A2F copies thereof upon the appellee. )CE

/. 4ithin forty+five A/6F days from receipt of the appellantKs brief" the appellee shall file with the court seven A;F copies of hisMher brief with the court which shall be accompanied by proof of service of two A2F copies thereof upon the appellant. )CB

/.@ ,$tension of Time for filin! briefs will not be allowed e$cept for !ood and sufficient cause and only if the motion for e$tension is filed before the e$piration of the time sou!ht to be e$tended. )@C

/.2 4ithin twenty A2CF days from receipt of the appelleeKs brief" the appellant may file a reply brief answerin! points in the appellees brief not covered in hisMher main brief. )@@

/.) Possible filin! of a ?otion for 0ew Trial.

6. Jud!ment

6.@ Possible ?otion for 9econsideration

8. *ppeal to the Supreme Court" throu!h Petition for 9eview on certiorari under 9ule /6.

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