Remedial Law

CIVIL PROCEDURE
Actions ................................. 14
General Principles ................. 2
ACTION VS CAUSE OF ACTION .......................... 14
CONCEPT OF REMEDIAL LAW ............................ 2

CONCEPT ............................................................... 2
MEANING OF ORDINARY CIVIL ACTIONS ........ 14
APPLICABILITY ........................................................ 2
MEANING OF SPECIAL CIVIL ACTIONS ............. 14
PROSPECTIVITY/RETROACTIVITY
................................ 2
SUBSTANTIVE LAW AS DISTINGUISHED FROM

REMEDIAL LAW ................................................. 2
REMEDIAL LAW OR PROCEDURAL LAW ......................... 2
SUBSTANTIVE LAW ................................................... 2
RULE-MAKING POWER OF THE SUPREME COURT2

LIMITATIONS ON THE RULE-MAKING POWER OF THE
SUPREME COURT ..................................................... 2
POWER OF THE SUPREME COURT TO AMEND AND SUSPEND
PROCEDURAL RULES ................................................ 2
MEANING OF CRIMINAL ACTIONS ................... 14

CIVIL ACTIONS VERSUS
SPECIAL PROCEEDINGS .................................. 14
DISTINCTIONS BETWEEN CIVIL ACTIONS AND SPECIAL
PROCEEDINGS ....................................................... 14
PERSONAL ACTIONS AND REAL ACTIONS ...... 15

IMPORTANCE OF DISTINCTION ................................... 15
LOCAL AND TRANSITORY ACTIONS ................ 15
NATURE OF PHILIPPINE COURTS ..................... 3
Cause of Action ................... 16
COURT AS DISTINGUISHED FROM A JUDGE ................... 3

CLASSIFICATION OF PHILIPPINE COURTS ...................... 3
ELEMENTS OF A CAUSE OF ACTION ................. 16
MEANING OF A COURT ........................................... 3
COURTS OF ORIGINAL AND APPELLATE JURISDICTION .....
4
4
CONSTITUTIONAL AND STATUTORY COURTS ............... 4
COURTS OF LAW AND EQUITY.................................. 4
PRINCIPLE OF JUDICIAL HIERARCHY .......................... 4
COURTS OF GENERAL AND SPECIAL JURISDICTION .........
DOCTRINE OF NON-INTERFERENCE OR DOCTRINE OF
JUDICIAL STABILITY .............................................
Jurisdiction ............................ 4
JURISDICTION .................................................... 4
JURISDICTION IN GENERAL ............................... 4
JURISDICTION OVER THE PARTIES ............................... 4
JURISDICTION OVER THE SUBJECT MATTER ................... 5
JURISDICTION OVER THE ISSUES ................................. 6
JURISDICTION OVER THE RES OR PROPERTY IN LITIGATION 6
SPECIFIC JURISDICTION .................................... 7
JURISDICTION OF COURTS ......................................... 7
JURISDICTION OVER SMALL CLAIMS, CASES
COVERED BY THE RULES ON SUMMARY
PROCEDURE AND BARANGAY CONCILIATION . 13
DEFINITION .......................................................... 13
PURPOSE ............................................................. 13
SCOPE ................................................................. 13
APPLICABILITY ....................................................... 13
PROHIBITED PLEADINGS ......................................... 14
TOTALITY RULE ..................................................... 14
MEANING OF CAUSE OF ACTION ...................... 16
RIGHT OF ACTION VERSUS CAUSE OF ACTION . 16

FAILURE TO STATE A CAUSE OF ACTION .......... 17
TEST OF THE SUFFICIENCY OF A CAUSE OF
ACTION ............................................................. 17
SPLITTING A SINGLE CAUSE OF ACTION AND ITS
EFFECTS ........................................................... 17
EFFECTS OF SPLITTING A CAUSE OF ACTION ................. 17
BASIS .................................................................. 17
PURPOSE ............................................................. 17
JOINDER AND MISJOINDER OF CAUSES OF
ACTION ............................................................. 17
JOINDER OF CAUSE OF ACTION .................................. 17
PURPOSES ........................................................... 17
REQUISITES .......................................................... 17
MISJOINDER OF CAUSES OF ACTION ........................... 17
Parties to Civil Actions ....... 18

REQUIREMENTS FOR A PERSON TO BE A PARTY
TO A CIVIL ACTION ............................................ 18
PARTIES TO A CIVIL ACTION ............................. 19
REAL PARTIES IN INTEREST; INDISPENSABLE
PARTIES; REPRESENTATIVES AS PARTIES;
NECESSARY PARTIES; INDIGENT PARTIES;
ALTERNATIVE DEFENDANTS ........................... 19
REAL PARTY IN INTEREST ........................................ 19
INDISPENSABLE PARTIES ........................................ 20

REPRESENTATIVE AS PARTIES .................................. 20
NECESSARY PARTY ................................................ 20
INDIGENT PARTY ................................................... 20
ALTERNATIVE DEFENDANTS .................................... 20
COMPULSORY AND PERMISSIVE JOINDER OF

PARTIES ............................................................21
COMPULSORY JOINDER OF INDISPENSABLE PARTIES ......21
PERMISSIVE JOINDER ..............................................21
MISJOINDER AND NON-JOINDER
OF PARTIES ......................................................21
CLASS SUIT .......................................................21
REQUISITES ..........................................................21
CLASS SUIT AND DERIVATIVE SUIT, COMPARED ............ 22
SUITS AGAINST ENTITIES WITHOUT JURIDICAL
PERSONALITY .................................................. 22
REQUISITES ......................................................... 22
EFFECT OF DEATH OF PARTY LITIGANT ........... 22
SUBSTITUTION OF PARTIES ...................................... 22
ACTION ON CONTRACTUAL MONEY CLAIMS ................. 22
TRANSFER OF INTEREST DURING THE PENDENCY OF THE
ACTION ............................................................... 22
Venue ................................... 23
VENUE VERSUS JURISDICTION ........................ 23
DISTINCTIONS BETWEEN VENUE AND JURISDICTION ...... 23
VENUE OF REAL ACTIONS ................................ 23
VENUE OF PERSONAL ACTIONS ...................... 23
VENUE OF ACTIONS
AGAINST NON-RESIDENTS .............................. 24
WHEN THE RULES ON VENUE
DO NOT APPLY ................................................. 24
EFFECTS OF STIPULATIONS ON VENUE ........... 24
OTHER RULES ON VENUE ................................ 24
Pleadings ............................24
DEFINITION ..................................................... 24
KINDS OF PLEADINGS ..................................... 25
PLEADINGS ALLOWED ............................................ 25
COMPLAINT ......................................................... 25
ANSWER ............................................................. 25
COUNTERCLAIMS .................................................. 25
CROSS-CLAIMS ..................................................... 27
THIRD (FOURTH, ETC.) PARTY COMPLAINTS ................ 27
COMPLAINT-IN-INTERVENTION ................................ 28
REPLY ................................................................ 28
PLEADINGS ALLOWED IN SMALL CLAIM CASES

AND CASES COVERED BY THE RULES ON
SUMMARY PROCEDURE .................................. 28
PROHIBITED PLEADINGS, MOTIONS OR PETITIONS ....... 28
FORMS USED UNDER THE RULE OF PROCEDURE UNDER
SMALL CLAIMS CASES ............................................. 29
PROHIBITED PLEADINGS AND MOTIONS ...................... 29
PARTS OF A PLEADING .................................... 29

CAPTION ............................................................. 29
BODY ................................................................. 29
SIGNATURE AND ADDRESS ...................................... 29
VERIFICATION AND CERTIFICATION AGAINST FORUM
SHOPPING ........................................................... 29
EFFECT OF THE SIGNATURE OF COUNSEL IN A PLEADING 30
ALLEGATIONS IN A PLEADING ........................ 30

MANNER OF MAKING ALLEGATIONS .......................... 30
PLEADING AN ACTIONABLE DOCUMENT ...................... 31
SPECIFIC DENIALS .................................................. 31
EFFECT OF FAILURE TO PLEAD ....................... 32
FAILURE TO PLEAD DEFENSES AND OBJECTIONS .......... 32
FAILURE TO PLEAD A COMPULSORY COUNTERCLAIM AND
CROSS-CLAIM ...................................................... 32
DEFAULT ......................................................... 32
WHEN A DECLARATION OF DEFAULT IS PROPER ........... 32
EFFECT OF AN ORDER OF DEFAULT ........................... 32
RELIEF FROM AN ORDER OF DEFAULT ........................ 33
EFFECT OF A PARTIAL DEFAULT ................................ 33
EXTENT OF RELIEF ................................................. 33
ACTIONS WHERE DEFAULT ARE NOT ALLOWED ............ 33
FILING AND SERVICE OF PLEADINGS .............. 34
DEFINITION ......................................................... 34
PAPERS REQUIRED TO BE FILED AND SERVED .............. 34
PAYMENT OF DOCKET FEES ..................................... 34
FILING VERSUS SERVICE OF PLEADINGS ...................... 35
PERIODS OF FILING OF PLEADINGS ............................ 35
MANNER OF FILING ............................................... 35
MODES OF SERVICE ............................................... 36
AMENDMENT ...................................................37
HOW TO AMEND PLEADINGS .....................................37
AMENDMENT AS A MATTER OF RIGHT ....................... 38
AMENDMENTS BY LEAVE OF COURT ........................... 38
FORMAL AMENDMENT ........................................... 38
AMENDMENTS TO CONFORM TO OR AUTHORIZE
PRESENTATION OF EVIDENCE .................................. 38
DIFFERENT FROM SUPPLEMENTAL PLEADINGS ............ 38
EFFECT OF AMENDED PLEADING
............................... 39
Summons ............................ 39
NATURE AND PURPOSE OF SUMMONS IN
RELATION TO ACTIONS IN PERSONAM, IN REM
AND QUASI IN REM .......................................... 39
PURPOSE ............................................................ 39
ISSUANCE OF SUMMONS ........................................ 39
CONTENTS OF SUMMONS ........................................ 39
VOLUNTARY APPEARANCE ............................. 39

GENERAL RULE ..................................................... 39
EXCEPTION .......................................................... 39
WHO SERVES THE SUMMONS ...................................40
RETURN OF SUMMONS ...........................................40
ALIAS SUMMONS ...................................................40
MODES OF SERVICE OF SUMMONS .............................40
PERSONAL SERVICE ........................................40
SERVICE IN PERSON ON DEFENDANT .........................40
SUBSTITUTED SERVICE ...................................40
RATIONALE ..........................................................40
CONSTRUCTIVE SERVICE
(BY PUBLICATION) ........................................... 41
REQUISITES ......................................................... 41
SERVICE OF SUMMONS UPON DIFFERENT ENTITIES ....... 41
SERVICE UPON A DEFENDANT WHERE HIS IDENTITY IS
UNKNOWN OR WHERE HIS WHEREABOUTS
ARE UNKNOWN ....................................................
SERVICE UPON RESIDENTS TEMPORARILY OUTSIDE THE
PHILIPPINES ........................................................
41
41
EXTRA-TERRITORIAL SERVICE,
WHEN ALLOWED ............................................. 41
REQUISITES ......................................................... 41
MODES OF SERVICE ................................................ 41
SERVICE UPON PRISONERS AND MINORS ...... 41
SERVICE UPON PRISONER ....................................... 41
SERVICE UPON MINORS AND INCOMPETENTS .............. 41
PROOF OF SERVICE .......................................... 41
RETURN OF SERVICE .............................................. 41
PROOF OF SERVICE ................................................ 41
EFFECT OF NON-SERVICE OF SUMMONS ..................... 42
WAIVER OF SERVICE OF SUMMONS ............................ 42
SERVICE OF SUMMONS UPON
DIFFERENT ENTITIES (ANNEX A) ................................ 42
Motions .................................42
MOTIONS IN GENERAL .................................... 42
DEFINITION OF A MOTION ........................................ 42
MOTIONS VERSUS PLEADINGS ................................. 42

CONTENTS AND FORM OF MOTIONS .......................... 42
NOTICE OF HEARING AND HEARING OF MOTIONS .......... 43
OMNIBUS MOTION RULE ......................................... 43
LITIGATED AND EX PARTE MOTIONS .......................... 43
PRO-FORMA MOTIONS ........................................... 43
MOTIONS FOR BILL OF PARTICULARS ............ 43

BILL OF PARTICULARS ............................................ 43
PURPOSE AND WHEN APPLIED FOR ........................... 44
ACTIONS OF THE COURT ......................................... 44
COMPLIANCE WITH THE ORDER AND EFFECT OF NONCOMPLIANCE ....................................................... 44
EFFECT ON THE PERIOD TO FILE
A RESPONSIVE PLEADING ....................................... 44
MOTION TO DISMISS ....................................... 45

DEFINITION ......................................................... 45
TYPES OF DISMISSAL OF ACTION ............................... 45
GROUNDS ........................................................... 45
RESOLUTION OF MOTION ........................................ 48
REMEDIES OF PLAINTIFF WHEN THE COMPLAINT IS
DISMISSED .......................................................... 48
REMEDIES OF THE DEFENDANT
WHEN THE MOTION IS DENIED ................................. 48
EFFECT OF DISMISSAL OF
COMPLAINT ON CERTAIN GROUNDS .......................... 48
WHEN GROUNDS PLEADED AS AFFIRMATIVE DEFENSES . 48
BAR BY DISMISSAL ................................................ 48
DISTINGUISHED FROM DEMURRER TO EVIDENCE UNDER
RULE 33 ............................................................. 49
Dismissal of Actions .......... 49

DISMISSAL UPON NOTICE BY PLAINTIFF; TWODISMISSAL RULE ............................................. 49
DISMISSAL UPON PLAINTIFFS NOTICE ....................... 49
DISMISSAL UPON MOTION BY PLAINTIFF; EFFECT
ON EXISTING COUNTERCLAIM ........................ 49
DISMISSAL UPON PLAINTIFFS MOTION ...................... 49
DISMISSAL DUE TO THE FAULT OF PLAINTIFF 49
DISMISSAL DUE TO PLAINTIFFS FAULT ...................... 49
DISMISSAL OF COUNTERCLAIM, CROSS-CLAIM
OR THIRD-PARTY COMPLAINT ........................ 50
Pre-Trial .............................. 50
CONCEPT OF PRE-TRIAL ................................. 50
DEFINITION ......................................................... 50
NATURE AND PURPOSE .................................. 50
PURPOSE ............................................................ 50
NOTICE OF PRE-TRIAL ..................................... 51

APPEARANCE OF PARTIES; EFFECT OF FAILURE
TO APPEAR ...................................................... 51
APPEARANCE OF PARTIES ....................................... 51
FAILURE TO APPEAR AT PRE-TRIAL ........................... 51
PRE-TRIAL BRIEF; EFFECT OF FAILURE TO
APPEAR ........................................................... 52
PRE-TRIAL BRIEF .................................................. 52
RECORD OF PRE-TRIAL ........................................... 52
CALENDAR OF CASES ............................................. 52
DISTINCTION BETWEEN PRE-TRIAL IN CIVIL CASE
AND PRE-TRIAL IN CRIMINAL CASE ................ 52
ALTERNATIVE DISPUTE RESOLUTION (ADR) [RA
9285] ............................................................... 53
WHAT IS ALTERNATIVE DISPUTE RESOLUTION SYSTEM? . 53
POLICY BEHIND THE ADR ......................................... 53
EXCEPTION TO THE APPLICATION OF RA 9285: ............ 53
MODES OF ALTERNATIVE DISPUTE RESOLUTIONS: ........ 53
Intervention .........................54
DEFINITION OF INTERVENTION ....................... 54
WHO MAY INTERVENE ..................................... 54
MEANING OF LEGAL INTEREST ....................... 54
REQUISITES FOR INTERVENTION .................... 55
HOW INTERVENTION IS DONE ................................... 55
FACTORS CONSIDERED IN ALLOWING INTERVENTION .... 55
PLEADINGS IN INTERVENTION .................................. 55
TIME TO INTERVENE ........................................ 55
REMEDY FOR THE DENIAL OF MOTION TO
INTERVENE ...................................................... 55
REMEDIES ........................................................... 55
Subpoena ........................... 55
COMPELLING ATTENDANCE OF WITNESSES;

CONTEMPT ...................................................... 56
PERSONAL APPEARANCE IN COURT ........................... 56
APPLICATION FOR SUBPOENA TO PRISONER ............... 56
REMEDY IN CASE OF WITNESS FAILURE TO ATTEND ...... 56
QUASHING OF SUBPOENA .............................. 56
GROUNDS FOR QUASHING ...................................... 57
Modes of Discovery ............. 57

DEPOSITIONS PENDING ACTION; DEPOSITIONS
BEFORE ACTION OR PENDING APPEAL ........... 57
DEPOSITIONS UNDER RULE 23 ................................. 57
WRITTEN INTERROGATORIES UNDER RULE 23 ............. 59
DEPOSITIONS BEFORE ACTION UNDER RULE 24 ........... 60
DEPOSITIONS PENDING APPEAL UNDER RULE 24 ......... 60
WRITTEN INTERROGATORIES TO ADVERSE
PARTIES .......................................................... 60
PURPOSE ............................................................ 60
PROCEDURE ......................................................... 61
ANSWER ............................................................. 61
EFFECT OF OBJECTIONS TO INTERROGATORIES ............. 61
NUMBER OF INTERROGATORIES ................................ 61
SCOPE OF INTERROGATORIES ................................... 61
USE OF INTERROGATORIES ...................................... 61
FAILURE TO FILE WRITTEN INTERROGATORIES .............. 61
CONSEQUENCES OF REFUSAL TO ANSWER ................... 61
REQUEST FOR ADMISSION ............................... 61
PURPOSE ............................................................. 61
WHEN MAY REQUEST BE MADE ................................. 62
IMPLIED ADMISSION BY ADVERSE PARTY .................... 62
DEFERMENT OF COMPLIANCE .................................. 62
EFFECT OF ADMISSION ........................................... 62
WITHDRAWAL ..................................................... 62
EFFECT OF FAILURE TO FILE AND SERVE REQUEST FOR
ADMISSION ......................................................... 62
PRODUCTION OR INSPECTION OF DOCUMENTS

OR THINGS ...................................................... 62
PROCEDURE ........................................................ 62
WHAT THE COURT MAY ORDER ................................. 62
TYPES (AND DEFINITION) OF SUBPOENA ........ 55
BY WHOM ISSUED ............................................ 56

FORM AND CONTENTS OF SUBPOENA ............ 56
PHYSICAL AND MENTAL EXAMINATION OF

PERSONS ......................................................... 63
MOTION REQUESTING EXAMINATION ......................... 63
SUBPOENA DUCES TECUM DISTINGUISHED FROM ORDER FOR

PRODUCTION OR INSPECTION (ANNEX B) ................... 56
COURT TO ISSUE THE ORDER FOR

EXAMINATION IN ITS DISCRETION. ............................ 63
REPORT OF FINDINGS ............................................ 63
WAIVER OR PRIVILEGE ........................................... 63
PHYSICIAN-PATIENT PRIVILEGE ................................ 63
SUBPOENA AD TESTIFICANDUM ..................... 56

SERVICE OF SUBPOENA ................................... 56
CONSEQUENCES OF REFUSAL TO COMPLY WITH

MODES OF DISCOVERY (ANNEX C) ..................... 63
SUBPOENA DUCES TECUM .............................. 56
Trial ...................................... 63
TRIAL, DEFINED ............................................... 63
NOTICE OF TRIAL ............................................. 63
ADJOURNMENTS AND POSTPONEMENTS ...... 63
REQUISITES OF MOTION
TO POSTPONE TRIAL ....................................... 63
SUBPOENA .......................................................... 64
AGREED STATEMENT OF FACTS ...................... 64
ORDER OF TRIAL; REVERSAL OF ORDER ......... 64
CONDUCT OF TRIAL ................................................ 64
GENERAL ORDER OF TRIAL ...................................... 64
CONSOLIDATION OR SEVERANCE OF HEARING
OR TRIAL ......................................................... 64
CONSOLIDATION OF TRIAL ....................................... 64
SEVERANCE OF TRIAL ............................................. 64
STATEMENT OF JUDGE ............................................ 65
SUSPENSION OF ACTIONS ....................................... 65
DELEGATION OF RECEPTION OF EVIDENCE .... 65
TRIAL BY COMMISSIONERS ............................. 65
KINDS OF TRIAL BY COMMISSIONER ........................... 65
REFERENCE BY CONSENT OR ORDERED ON MOTION ...... 65
POWERS OF THE COMMISSIONER .............................. 65
COMMISSIONERS REPORT; NOTICE TO PARTIES AND
HEARING ON THE REPORT ....................................... 65
Demurrer to Evidence ....... 66

GROUND .......................................................... 66
DEFINITION .......................................................... 66
EFFECT OF DENIAL; EFFECT OF GRANT ........... 66
WAIVER OF RIGHT TO PRESENT EVIDENCE ..... 67
DEMURRER TO EVIDENCE IN A CIVIL CASE V.
DEMURRER TO EVIDENCE IN
A CRIMINAL CASE ............................................ 67
DIFFERENCES BETWEEN DEMURRER IN CIVIL AND CRIMINAL
CASES ................................................................ 67
Judgments and
Final Orders ....................... 67
JUDGMENT ...................................................... 67
REQUISITES OF A VALID JUDGMENT .......................... 67
KINDS OF JUDGMENT ............................................. 67
JUDGMENT WITHOUT TRIAL ........................... 68

WHEN TRIAL IS NOT NECESSARY ............................... 68
CONTENTS OF A JUDGMENT ........................... 68
PARTS OF A JUDGMENT .......................................... 68
DISTINCTION BETWEEN JUDGMENT AND OPINION OF THE
COURT ............................................................... 69
CONFLICT BETWEEN THE DISPOSITIVE PORTION AND BODY
OF THE DECISION .................................................. 69
JUDGMENT ON THE PLEADINGS ..................... 69

GROUNDS ........................................................... 69
CANNOT BE RENDERED MOTU PROPRIO ..................... 69
WHEN JUDGMENT ON THE PLEADINGS WILL NOT APPLY . 69
EFFECTS ............................................................. 69
SUMMARY JUDGMENTS .................................. 69
DEFINITION, NATURE ............................................. 69
GENUINE ISSUE .................................................... 69
PROCEDURE ........................................................ 70
FOR THE CLAIMANT ............................................... 70
FOR THE DEFENDANT ............................................ 70
WHEN THE CASE NOT FULLY ADJUDICATED ................. 70
AFFIDAVITS AND ATTACHMENTS .............................. 70
JUDGMENT ON THE PLEADINGS VERSUS
SUMMARY JUDGMENTS ................................... 71
RENDITION OF JUDGMENTS
AND FINAL ORDERS ......................................... 71
FORM OF JUDGMENT .............................................. 71
DEFINITION OF RENDITION OF JUDGMENT ................... 71
PERIOD WITHIN WHICH DECISION IS TO BE RENDERED .... 71
INTERPRETATION OF THE JUDGMENT ......................... 71
ENTRY OF JUDGMENT AND FINAL ORDER ....... 71
DEFINITION OF ENTRY OF JUDGMENT .......................... 71
ENTRY OF JUDGMENTS AND FINAL ORDERS ................. 71
AMENDMENTS TO JUDGMENT .................................. 72
Post-Judgment Remedies . 72
REMEDIES BEFORE
FINALITY OF JUDGMENT ................................. 72
MOTION FOR NEW TRIAL OR RECONSIDERATION

......................................................................... 72
MOTION FOR RECONSIDERATION .............................. 72
GROUNDS ........................................................... 72
WHEN TO FILE ...................................................... 72
DENIAL OF THE MOTION; EFFECT ...............................73
GRANT OF THE MOTION; EFFECT ............................... 74
REMEDY WHEN MOTION IS DENIED, FRESH 15-DAY PERIOD
RULE .................................................................. 74
APPEALS IN GENERAL ..................................... 74
JUDGMENTS AND FINAL ORDERS SUBJECT TO APPEAL ... 74

MATTERS NOT APPEALABLE .................................... 75
REMEDY AGAINST JUDGMENTS AND ORDERS WHICH ARE
NOT APPEALABLE .................................................. 75
MODES OF APPEAL ................................................ 75
ISSUES TO BE RAISED ON APPEAL ............................. 84
PERIOD OF APPEAL ................................................ 84
PERFECTION OF APPEAL ......................................... 86
APPEAL FROM JUDGMENTS OR
FINAL ORDERS OF THE MTC ..................................... 86
FINAL ORDERS OF THE RTC ...................................... 88
FINAL ORDERS OF THE CA ....................................... 89
FINAL ORDERS OF THE CTA ...................................... 89
REVIEW OF FINAL JUDGMENTS OR
FINAL ORDERS OF THE COA ..................................... 89
FINAL ORDERS OF THE COMELEC .............................. 90
FINAL ORDERS OF THE CSC ...................................... 90
FINAL ORDERS OF THE OMBUDSMAN ......................... 90
FINAL ORDERS OF THE NLRC .................................... 90
FINAL ORDERS OF QUASI-JUDICIAL AGENCIES ............. 91
EXECUTION AS A MATTER OF RIGHT (ANNEX D) .......... 95

DISCRETIONARY EXECUTION (ANNEX E) .................... 95
RELIEF FROM JUDGMENTS, ORDERS AND OTHER

PROCEEDINGS ................................................. 91
GROUNDS FOR AVAILING OF THE REMEDY ................... 92
TIME TO FILE PETITION ........................................... 92
CONTENTS OF PETITION ......................................... 92
EXAMINATION OF OBLIGOR OF JUDGMENT

OBLIGOR ....................................................... 104
ANNULMENT OF JUDGMENTS OR FINAL ORDERS

AND RESOLUTIONS ......................................... 92
GROUNDS FOR ANNULMENT ..................................... 92
PERIOD TO FILE ACTION ......................................... 93
EFFECTS OF JUDGMENT OF ANNULMENT .................... 93
COLLATERAL ATTACK OF JUDGMENTS ....................... 93
REMEDIES FROM A VOID JUDGMENT ........................... 93
WHAT IS A VOID JUDGMENT? ................................... 93
HOW DO YOU ATTACK A VOID JUDGMENT? .................. 93
WHAT ARE YOUR REMEDIES? ................................... 93
SOME JURISPRUDENTIAL BASIS ................................ 93
Execution, Satisfaction and

Effect of Judgments .......... 94
DIFFERENCE BETWEEN FINALITY OF JUDGMENT
FOR PURPOSES OF APPEAL; FOR PURPOSES OF
EXECUTION ...................................................... 94
WHEN EXECUTION SHALL ISSUE ..................... 94
HOW A JUDGMENT IS EXECUTED .................... 96

EXECUTION BY MOTION OR BY INDEPENDENT ACTION .. 96
ISSUANCE AND CONTENTS OF A WRIT OF EXECUTION .... 96
EXECUTION OF JUDGMENTS FOR MONEY .................... 96
EXECUTION OF JUDGMENTS FOR SPECIFIC ACTS ........... 98
EXECUTION OF SPECIAL JUDGMENTS ........................ 99
EFFECT OF LEVY ON THIRD PERSONS ......................... 99
PROPERTIES EXEMPT FROM EXECUTION ....... 99
PROCEEDINGS WHERE PROPERTY IS CLAIMED
BY THIRD PERSONS ........................................ 101
IN RELATION TO THIRD PARTY CLAIM IN ATTACHMENT AND
REPLEVIN .......................................................... 101
RULES ON REDEMPTION ................................ 102

EFFECTS OF REDEMPTION ...................................... 102
RECOVERY OF PURCHASE PRICE AND
REVIVAL OF JUDGMENT ......................................... 103
EXAMINATION OF JUDGMENT OBLIGOR WHEN

JUDGMENT IS UNSATISFIED ......................... 104
WHEN EXAMINATION MAY BE MADE ........................ 104
HOW ................................................................ 104
DOES A PARTY LITIGANT ENJOY ANY DISCOVERY RIGHTS

AFTER THE PROMULGATION OF FINAL AND EXECUTORY
JUDGMENT? ...................................................... 104
REMEDIES OF JUDGMENT CREDITOR
IN AID OF EXECUTION ........................................... 104
ENTRY OF SATISFACTION ...................................... 104
EFFECT OF JUDGMENT OR FINAL ORDERS ... 104

RES JUDICATA IN JUDGMENTS IN REM .......................105
RES JUDICATA IN JUDGMENTS IN PERSONAM .............105
CONCLUSIVENESS OF JUDGMENT/PRECLUSION OF ISSUES
(AUTER ACTION PENDANT) ....................................105
REQUISITES OF RES JUDICATA .................................105
RES JUDICATA V. LAW OF THE CASE V. STARE DECISIS 105
ENFORCEMENT AND EFFECT OF FOREIGN
JUDGMENTS OR FINAL ORDERS ....................105
EFFECT OF FOREIGN JUDGMENTS .............................105
Provisional Remedies ....... 106

NATURE OF PROVISIONAL REMEDIES ...........106
DEFINITION ........................................................106
JURISDICTION OVER
PROVISIONAL REMEDIES .............................. 106

PRELIMINARY ATTACHMENT ........................ 106
DEFINITION ........................................................ 106
PURPOSES ......................................................... 106
GROUNDS FOR ISSUANCE OF WRIT OF ATTACHMENT .. 106
REQUISITES ........................................................107
ISSUANCE AND CONTENTS OF ORDER OF ATTACHMENT;
AFFIDAVIT AND BOND ..........................................107
RULE ON PRIOR OR CONTEMPORANEOUS SERVICE OF
SUMMONS ..........................................................107
MANNER OF ATTACHING REAL AND PERSONAL PROPERTY;
WHEN PROPERTY ATTACHED IS CLAIMED BY
THIRD PERSON ................................................... 108
DISCHARGE OF ATTACHMENT AND
THE COUNTER-BOND ........................................... 109
SATISFACTION OF JUDGMENT
OUT OF PROPERTY ATTACHED ................................. 110
PRELIMINARY INJUNCTION ............................. 111

DEFINITIONS AND DIFFERENCES: DRELIMINARY INJUNCTION
AND TEMPORARY RESTRAINING ORDER; STATUS QUO ANTE
ORDER ................................................................ 111
REQUISITES ......................................................... 111
KINDS OF INJUNCTION ........................................... 112
WHEN WRIT MAY BE ISSUED .................................... 113
GROUNDS FOR ISSUANCE OF PRELIMINARY INJUNCTION 113
GROUNDS FOR OBJECTION TO, OR FOR THE DISSOLUTION OF
INJUNCTION OR RESTRAINING ORDER ....................... 113
DURATION OF A TEMPORARY RESTRAINING ORDER .... 114
IN RELATION TO RA 8975, BAN ON ISSUANCE OF TRO OR
WRIT OF INJUNCTION IN CASES INVOLVING GOVERNMENT
INFRASTRUCTURE PROJECTS ................................. 114
SUMMONS IN RELATION TO ATTACHMENT ................. 114
RECEIVERSHIP ................................................ 115

NATURE ............................................................. 115
PURPOSE ........................................................... 115
CASES WHEN RECEIVER MAY BE APPOINTED ............... 115
REQUIREMENTS BEFORE ISSUANCE OF AN ORDER ....... 115
POWERS OF A RECEIVER ........................................ 115
TWO (2) KINDS OF BOND ........................................ 116
TERMINATION OF RECEIVERSHIP ............................. 116
REPLEVIN ....................................................... 116
WHEN MAY WRIT BE ISSUED .................................... 116
REQUISITES ........................................................ 117
AFFIDAVIT AND BOND; REDELIVERY BOND ................. 117
SHERIFFS DUTY IN THE IMPLEMENTATION OF THE WRIT;
WHEN PROPERTY IS CLAIMED BY THIRD PARTY ........... 117
Special Civil Actions .......... 118

NATURE OF SPECIAL CIVIL ACTIONS .............. 118
HOW COMMENCED ............................................... 118
ORDINARY CIVIL ACTIONS VERSUS SPECIAL CIVIL

ACTIONS ......................................................... 118
JURISDICTION AND VENUE ............................ 118
INTERPLEADER .............................................. 118
DEFINITION ........................................................ 118
PURPOSE ........................................................... 118
REQUISITES FOR INTERPLEADER ............................. 119
WHEN TO FILE ..................................................... 119
DECLARATORY RELIEFS AND
SIMILAR REMEDIES ........................................ 119
WHO MAY FILE THE ACTION .................................... 119
REQUISITES OF ACTION FOR DECLARATORY RELIEF ...... 120
WHEN COURT MAY REFUSE TO
MAKE JUDICIAL DECLARATION ................................ 120
CONVERSION TO ORDINARY ACTION ......................... 120
PROCEEDINGS CONSIDERED AS SIMILAR REMEDIES ..... 120
REVIEW OF JUDGMENTS AND FINAL ORDERS OR

RESOLUTION OF THE COMELEC AND COA ..... 121
SCOPE ............................................................... 121
PROCEDURE ....................................................... 121
DISTINCTION IN THE APPLICATION OF RULE 65 TO
JUDGMENTS OF THE COMELEC AND COA AND THE
APPLICATION OF RULE 65 TO OTHER TRIBUNALS, PERSONS
AND OFFICERS .................................................... 123
CERTIORARI, PROHIBITION
AND MANDAMUS ........................................... 123
WHEN PETITION FOR CERTIORARI, PROHIBITION AND
MANDAMUS IS PROPER (ANNEX F) ........................... 124
INJUNCTIVE RELIEF ............................................... 125
CERTIORARI DISTINGUISHED FROM APPEAL BY CERTIORARI;
PROHIBITION AND MANDAMUS DISTINGUISHED FROM
INJUNCTION; WHEN AND WHERE TO FILE PETITION ...... 125
EXCEPTIONS TO FILING OF MOTION FOR RECONSIDERATION
BEFORE FILING PETITION ....................................... 125
RELIEFS PETITIONER IS ENTITLED TO ........................ 125
FACTIONS/OMISSIONS OF MTC/RTC
IN ELECTION CASES .............................................. 126
WHERE TO FILE PETITION ....................................... 126
EFFECTS OF FILING OF AN UNMERITORIOUS PETITION .. 126
QUO WARRANTO ........................................... 126

DISTINGUISH FROM QUO WARRANTO IN THE OMNIBUS
ELECTION CODE ................................................... 126
WHEN THE GOVERNMENT COMMENCES AN ACTION AGAINST
INDIVIDUALS ...................................................... 126
WHEN INDIVIDUAL MAY COMMENCE AN ACTION .......... 127
JUDGMENT IN QUO WARRANTO ACTION .................... 127
RIGHTS OF A PERSON ADJUDGED ENTITLED TO PUBLIC
OFFICE .............................................................. 127
EXPROPRIATION ............................................ 127

MATTERS TO ALLEGE IN
COMPLAINT FOR EXPROPRIATION ............................ 127
TWO STAGES IN EVERY ACTION FOR EXPROPRIATION .... 127
WHEN PLAINTIFF CAN IMMEDIATELY ENTER INTO
POSSESSION OF THE REAL PROPERTY, IN RELATION TO RA
PRELIMINARY INJUNCTION AND PRELIMINARY MANDATORY

INJUNCTION ...................................................... 140
RESOLVING DEFENSE OF OWNERSHIP ...................... 140
HOW TO STAY THE IMMEDIATE
EXECUTION OF JUDGMENT .................................... 140
SUMMARY PROCEDURE, PROHIBITED PLEADINGS ....... 141
8974 ............................................................... 128

NEW SYSTEM OF IMMEDIATE PAYMENT OF INITIAL JUST
COMPENSATION ................................................. 128
DEFENSES AND OBJECTIONS ................................. 128
ORDER OF EXPROPRIATION .................................. 129
ASCERTAINMENT OF JUST COMPENSATION .............. 129
APPOINTMENT OF COMMISSIONERS; COMMISSIONERS
REPORT; COURT ACTION
UPON COMMISSIONERS REPORT ........................... 129
RIGHTS OF PLAINTIFF UPON JUDGMENT
AND PAYMENT .................................................... 130
EFFECT OF RECORDING OF JUDGMENT ..................... 130
FORECLOSURE OF
REAL ESTATE MORTGAGE ............................. 130
JUDGMENT ON FORECLOSURE FOR PAYMENT OR SALE . 130
SALE OF MORTGAGED PROPERTY; EFFECT ................ 130
DISPOSITION OF PROCEEDS OF SALE ......................... 131
DEFICIENCY JUDGMENT ......................................... 131
JUDICIAL FORECLOSURE V.
EXTRAJUDICIAL FORECLOSURE ................................ 131
EQUITY OF REDEMPTION VERSUS
RIGHT OF REDEMPTION ......................................... 132
PARTITION ...................................................... 132

WHO MAY FILE COMPLAINT; WHO SHOULD BE MADE
DEFENDANTS ...................................................... 132
MATTERS TO ALLEGE IN THE
COMPLAINT FOR PARTITION ................................... 133
TWO (2) STAGES IN EVERY ACTION FOR PARTITION ...... 133
ORDER OF PARTITION AND PARTITION
BY AGREEMENT ................................................... 133
PARTITION BY COMMISSIONERS; APPOINTMENT OF
COMMISSIONERS, COMMISSIONERS REPORT; COURT
ACTION UPON COMMISSIONERS REPORT ..................134
JUDGMENT AND ITS EFFECTS ..................................135
PARTITION OF PERSONAL PROPERTY ........................135
PRESCRIPTION OF ACTION ......................................135
FORCIBLE ENTRY AND UNLAWFUL DETAINER 136

DEFINITIONS AND DISTINCTION ...............................135
DISTINGUISHED FROM ACCION PUBLICIANA AND ACCION
REINVINDICATORIA .............................................. 136
HOW TO DETERMINE JURISDICTION IN ACCION PUBLICIANA
AND ACCION REINVINDICATORIA ............................. 136
WHO MAY INSTITUTE THE ACTION AND WHEN; AGAINST
WHOM THE ACTION MAY BE MAINTAINED ................... 136
PLEADINGS ALLOWED ........................................... 137
ACTION ON THE COMPLAINT ................................... 137
WHEN DEMAND IS NECESSARY ................................ 137
CONTEMPT ..................................................... 141

KINDS OF CONTEMPT ............................................ 141
PURPOSE AND NATURE OF EACH ............................. 141
REMEDY AGAINST DIRECT CONTEMPT; PENALTY ......... 142
REMEDY AGAINST INDIRECT CONTEMPT;
PENALTY (ANNEX G) ............................................. 142
HOW CONTEMPT PROCEEDINGS ARE COMMENCED ...... 142
ACTS DEEMED PUNISHABLE AS INDIRECT CONTEMPT ... 142
WHEN IMPRISONMENT SHALL BE IMPOSED ................ 143
CONTEMPT AGAINST QUASI-JUDICIAL BODIES ............ 143
ANNEX A .........................................................144
ANNEX B ......................................................... 145
ANNEX C ......................................................... 146
ANNEX D .........................................................148
ANNEX E ......................................................... 149
ANNEX F .........................................................150
ANNEX G ......................................................... 151
CRIMINAL PROCEDURE
General Matters ................ 153

DISTINGUISH JURISDICTION OVER SUBJECT
MATTER FROM JURISDICTION OVER PERSON OF
THE ACCUSED ................................................. 153
JURISDICTION OVER SUBJECT MATTER...................... 153
JURISDICTION OVER THE PERSON OF THE ACCUSED .... 153
REQUISITES FOR EXERCISE OF CRIMINAL
JURISDICTION ................................................ 153
JURISDICTION OF CRIMINAL COURTS ............ 153
CRIMINAL JURISDICTION OF COURTS ........................ 153
MILITARY COURTS ............................................... 155
Prosecution of Offenses .. 155
CRIMINAL ACTIONS, HOW INSTITUTED ......... 155

IN GENERAL ....................................................... 155
INSTITUTION AND COMMENCEMENT OF ACTIONS ....... 155
EFFECT OF THE INSTITUTION OF CRIMINAL ACTION ON THE
PRESCRIPTIVE PERIOD ......................................... 155
WHO MAY FILE THEM, CRIMES THAT CANNOT BE
PROSECUTED DE OFFICIO ............................. 155
CASES THAT CANNOT BE PROSECUTED DE OFICIO ....... 155
WHO MAY FILE A COMPLAINT? ............................... 155
EFFECT OF ..................................................... 155

DEATH OF OFFENDED PARTY ................................. 155
DESISTANCE BY OFFENDED PARTY .......................... 155
PARDON BY OFFENDED PARTY ............................... 155
CRIMINAL ACTIONS, WHEN ENJOINED ......... 156
CONTROL OF PROSECUTION ......................... 156
EXTENT OF THE PROSECUTORS CONTROL .. 156
PRIOR TO THE FILING OF THE CASE ......................... 156
AFTER A CASE IS FILED ......................................... 156
LIMITATIONS OF CONTROL BY THE COURT ................ 156
EFFECTS OF THE LACK OF INTERVENTION BY THE FISCAL IN
THE TRIAL .......................................................... 157
SUFFICIENCY OF COMPLAINT
OR INFORMATION .......................................... 157
COMPLAINT DEFINED ............................................ 157
INFORMATION DEFINED ........................................ 157
FORM & SUBSTANCE ............................................ 157
DESIGNATION OF OFFENSE ............................ 157
CAUSE OF THE ACCUSATION .......................... 157
WHAT TO ALLEGE ................................................. 157
DUPLICITY OF THE OFFENSE; EXCEPTION .... 158
DUPLICITY OF OFFENSE ........................................ 158
SEVERAL MODES OF COMMITTING OFFENSE NOT
DUPLICITOUS ..................................................... 158
AMENDMENT OR SUBSTITUTION OF COMPLAINT

OR INFORMATION ........................................ 158
AMENDMENTS IN FORM AND
SUBSTANCE BEFORE PLEA .................................... 158
AMENDMENTS MADE AFTER PLEA
AND DURING TRIAL ............................................. 158
CIVIL ACTION IS SUSPENDED .........................160

EFFECT OF THE DEATH OF ACCUSED OR CONVICT ON CIVIL
ACTION .............................................................160
PREJUDICIAL QUESTION ................................ 161
EFFECT ............................................................. 161
ELEMENTS OF PREJUDICIAL QUESTION ..................... 161
WHERE TO FILE PETITION FOR SUSPENSION IS FILED .. 161
RULE ON FILING FEES IN CIVIL ACTION DEEMED
INSTITUTED WITH THE CRIMINAL ACTION ..... 161
FILING FEES OF CIVIL ACTION DEEMED INSTITUTED IN
CRIMINAL ACTION ................................................
161
Preliminary Investigation .. 161

NATURE OF RIGHT ......................................... 161
PRELIMINARY INVESTIGATION, DEFINED .................. 161
NATURE OF THE RIGHT TO
PRELIMINARY INVESTIGATION ................................ 161
RIGHT TO PRELIMINARY INVESTIGATION .................. 162
INSTANCES WHEREIN
THE RIGHT TO PI IS DEEMED WAIVED: ...................... 162
INSTANCES WHEREIN
THE RIGHT TO PI IS NOT DEEMED WAIVED ............... 162
PURPOSES OF
PRELIMINARY INVESTIGATION ...................... 162
SCOPE OF PI .................................................... 162
WHO MAY CONDUCT DETERMINATION OF
EXISTENCE OF PROBABLE CAUSE .................. 162
PROCEDURE FOR PRELIMINARY INVESTIGATION ........ 163
RESOLUTION OF
INVESTIGATING PROSECUTOR ....................... 163
REVIEW ............................................................. 163
REMEDY OF AN AGGRIEVED PARTY AGAINST THE
RESOLUTION OF THE DOJ SECRETARY ..................... 164
VENUE OF CRIMINAL ACTIONS ...................... 159

INTERVENTION OF OFFENDED PARTY ........... 159
Prosecution of
Civil Action ........................ 160
RULE ON IMPLIED INSTITUTION OF CIVIL ACTION
WITH CRIMINAL ACTION ................................ 160
HOW INSTITUTED ................................................ 160
WHEN CIVIL ACTION MAY PROCEED
INDEPENDENTLY ........................................... 160
SEPARATE ACTION FILED BY THE ACCUSED ............... 160
WHEN SEPARATE
WHEN WARRANT OF ARREST MAY ISSUE ...... 164

CASES NOT REQUIRING A PRELIMINARY
INVESTIGATION .............................................. 164
CASES NOT REQUIRING A PRELIMINARY INVESTIGATION
NOR COVERED BY RULE ON SUMMARY PROCEDURE ... 164
REMEDIES OF ACCUSED IF THERE WAS NO

EFFECT OF DENIAL OF RIGHT TO PRELIMINARY
INVESTIGATION ................................................... 164
IF PRELIMINARY INVESTIGATION IS BEING CONDUCTED 165
INQUEST ......................................................... 165

DEFINITION ........................................................ 165
PROCEDURE FOR INQUEST PROCEEDINGS
................ 165
Arrest ................................. 166

DEFINITION ................................................... 166
IMMUNITY FROM ARREST ..................................... 166
ARREST, HOW MADE ..................................... 166
MODES OF EFFECTING ARREST .............................. 166
NO UNNECESSARY VIOLENCE ................................ 166
TIME TO MAKE ARREST ......................................... 166
ARREST WITHOUT WARRANT, WHEN LAWFUL 166
RULES ON ILLEGALITY OF ARREST ........................... 167
METHOD OF ARREST ...................................... 167
BY OFFICER WITH WARRANT .................................. 167
BY OFFICER WITHOUT WARRANT ............................ 168
BY PRIVATE PERSON ........................................... 168
REQUISITES OF A
VALID WARRANT OF ARREST ........................ 168
ESSENTIAL REQUISITES OF A VALID ARREST WARRANT 168
INSTANCES WHEN JUDGE ISSUES
WARRANT OF ARREST ......................................... 168
DETERMINATION OF PROBABLE CAUSE FOR

ISSUANCE OF WARRANT OF ARREST ............ 169
DISTINGUISH PROBABLE CAUSE OF FISCAL
FROM THAT OF A JUDGE ................................ 169
Bail ..................................... 169

NATURE ......................................................... 169
DEFINITION ........................................................ 169
PURPOSES ........................................................ 169
AS REGARDS THE REQUIREMENT OF CUSTODY .......... 169
WHEN A MATTER OF RIGHT; EXCEPTIONS .... 169
BAIL AS A MATTER OF RIGHT ................................. 169
WHEN BAIL NOT AVAILABLE .................................. 169
WHEN A MATTER OF DISCRETION ...................170
WHEN APPLICATION FOR BAIL AFTER CONVICTION SHALL
BE DENIED ..........................................................170
HEARING OF APPLICATION FOR

BAIL IN CAPITAL OFFENSES ...........................170
CONVICTION .......................................................170
PROSECUTION HAS BURDEN OF PROOF ....................170
REGARDING MINORS CHARGED
WITH A CAPITAL OFFENSE ......................................170
DUTY OF JUDGE TO CONDUCT HEARING .................... 171
WHERE THE APPLICATION IS FILED .......................... 171
GUIDELINES IN FIXING
AMOUNT OF BAIL .................................................. 171
BAIL WHEN NOT REQUIRED ............................. 171

INCREASE OR REDUCTION OF BAIL .......................... 172
INCREASED BAIL ................................................. 172
REDUCED BAIL .................................................... 172
FORFEITURE AND CANCELLATION OF BAIL ... 172
FORFEITURE OF BAIL ............................................ 172
CANCELLATION OF BAIL ........................................ 172
APPLICATION NOT A BAR TO OBJECTIONS IN
ILLEGAL ARREST, LACK OF OR IRREGULAR
HOLD DEPARTURE ORDER & BUREAU OF
IMMIGRATION WATCHLIST ............................ 172
Rights of the Accused ....... 173

RIGHTS OF ACCUSED AT THE TRIAL ................ 173
TO BE PRESUMED INNOCENT UNTIL THE CONTRARY IS
PROVED BEYOND REASONABLE DOUBT .................... 173
TO BE INFORMED OF THE NATURE AND CAUSE OF
ACCUSATION AGAINST HIM .................................... 174
TO BE PRESENT AND DEFEND IN PERSON AND BY COUNSEL
AT EVERY STAGE OF THE PROCEEDINGS .................... 174
TO TESTIFY AS WITNESS IN HIS BEHALF .................... 174
RIGHT AGAINST SELF-INCRIMINATION ..................... 174
RIGHT TO CONFRONTATION ................................... 175
RIGHT TO COMPULSORY PROCESS ........................... 175
RIGHT TO SPEEDY, IMPARTIAL, AND PUBLIC TRIAL ..... 175
RIGHT TO APPEAL ................................................ 175
RIGHTS OF PERSONS UNDER

CUSTODIAL INVESTIGATION ........................... 175
TO BE ASSISTED BY COUNSEL AT ALL TIMES .............. 176
TO REMAIN SILENT .............................................. 176
TO BE INFORMED, IN A LANGUAGE KNOWN TO AND
UNDERSTOOD BY HIM, OF HIS RIGHTS TO REMAIN SILENT
AND TO HAVE COMPETENT AND INDEPENDENT COUNSEL,
PREFERABLY OF HIS OWN CHOICE, WHO SHALL AT ALL
TIMES BE ALLOWED TO CONFER PRIVATELY WITH THE
PERSON ARRESTED, DETAINED OR UNDER CUSTODIAL
INVESTIGATION ................................................... 176
TO BE ALLOWED VISITS BY OR CONFERENCES WITH .... 176
CONSEQUENCES OF VIOLATION OF
CUSTODIAL RIGHTS .............................................. 176
Arraignment and Plea ...... 176

ARRAIGNMENT AND PLEA, HOW MADE ........ 176
DEFINITION ........................................................ 176
DUTY OF THE COURT BEFORE ARRAIGNMENT ............ 177
BEFORE ARRAIGNMENT AND PLEA, THE ACCUSED MAY

AVAIL OF ANY OF THE FOLLOWING: .......................... 177
HOW ARRAIGNMENT MADE .................................... 177
SPECIFIC RULES ON ARRAIGNMENT ......................... 178
WHEN SHOULD PLEA OF NOT GUILTY BE

ENTERED ........................................................ 178
HAS BEEN EXTINGUISHED ...................................... 182

CONTAINS AVERMENTS WHICH, IF TRUE, WOULD
CONSTITUTE A LEGAL EXCUSE OR JUSTIFICATION ....... 182
DISTINGUISH FROM
DEMURRER TO EVIDENCE .............................. 182
INSTANCES WHEN A PLEA OF NOT GUILTY TO BE ENTERED

FOR THE ACCUSED ............................................... 178
EFFECTS OF SUSTAINING THE MOTION TO

QUASH ............................................................ 183
WHEN ACCUSED MAY ENTER A PLEA OF GUILTY

TO A LESSER OFFENSE ................................... 179
PLEA TO A LESSER OFFENSE DURING ARRAIGNMENT .. 179
EXCEPTION TO THE RULE THAT SUSTAINING THE

MOTION IS NOT A BAR TO ANOTHER
PROSECUTION ................................................ 183
PLEA TO A LESSER OFFENSE AFTER ARRAIGNMENT BUT

BEFORE TRIAL .................................................... 179
PLEA TO A LESSER OFFENSE
AFTER TRIAL HAS BEGUN .................................... 179
ACCUSED PLEAD GUILTY TO CAPITAL OFFENSE,

WHAT THE COURT SHOULD DO ....................... 179
DUTY OF THE COURT WHEN ACCUSED PLEADS GUILTY TO A
CAPITAL OFFENSE ................................................ 179
SEARCHING INQUIRY ...................................... 179

PLEA OF GUILTY TO A CAPITAL OFFENSE ................... 179
IMPROVIDENT PLEA OF GUILTY TO A CAPITAL
OFFENSE ......................................................... 179
DEFINITION ........................................................ 179
WHEN IMPROVIDENT PLEAMAY BE WITHDRAWN ........ 179
GROUNDS FOR SUSPENSION
OF ARRAIGNMENT .......................................... 179
UNSOUND MENTAL CONDITION OF THE ACCUSED AT THE
TIME OF THE ARRAIGNMENT .................................. 179
PREJUDICIAL QUESTION EXISTS ............................. 180
PENDING PETITION FOR REVIEW OF THE RESOLUTION OF
THE PROSECUTOR WITH THE DOJ OR OFFICE OF THE
PRESIDENT. ...................................................... 180
PENDING MOTION TO QUASH ................................ 180
Motion to Quash ............... 180

GROUNDS ...................................................... 180
FACTS CHARGED DO NOT CONSTITUTE
AN OFFENSE ...................................................... 180
COURT HAS NO JURISDICTION OVER
THE OFFENSE CHARGED ........................................ 181
COURT HAS NO JURISDICTION OVER
THE PERSON OF THE ACCUSED ................................ 181
OFFICER WHO FILED INFORMATION HAD
NO AUTHORITY TO DO SO ...................................... 181
COMPLAINT/INFORMATION DOES NOT CONFORM
SUBSTANTIALLY TO THE PRESCRIBED FORM .............. 181
MORE THAN ONE OFFENSE IS CHARGED ................... 182
CRIMINAL ACTION OR LIABILITY
DOUBLE JEOPARDY ........................................ 183

RULE OF DOUBLE JEOPARDY .................................. 183
KINDS OF DOUBLE JEOPARDY ................................. 183
SAME OFFENSE ................................................... 183
SAME ACT .......................................................... 184
REQUISITES TO SUCCESSFULLY
INVOKE DOUBLE JEOPARDY ................................... 184
REQUISITES FOR FIRST JEOPARDY TO ATTACH ........... 184
WITHOUT EXPRESS CONSENT .............................184
DISMISSAL = ACQUITTAL ....................................... 184
DISMISSAL VS. ACQUITTAL .................................... 184
PROVISIONAL DISMISSAL ...............................184

DEFINITION ........................................................ 184
WHEN DISMISSAL BECOMES PERMANENT:
TIME BAR RULE ................................................... 185
HOW TO REVIVE A CASE ........................................ 185
REQUISITE PROCEDURE ....................................... 185
Pre-trial .............................. 185

JUDICIAL
AFFIDAVIT RULE ............................................. 185
MATTERS TO BE CONSIDERED DURING PRETRIAL .............................................................. 185

COVERAGE .......................................................... 185
PERIOD .............................................................. 185
THINGS CONSIDERED DURING PRE-TRIAL / PURPOSES 186
ROLE OF THE JUDGE ............................................. 186
STIPULATION OF FACTS ........................................ 186
MARKING FOR IDENTIFICATION OF THE EVIDENCE OF
PARTIES ............................................................ 186
WHAT THE COURT SHOULD DO WHEN

PROSECUTION AND OFFENDED PARTY AGREE
TO THE PLEA OFFERED BY THE ACCUSED ..... 186
PLEA BARGAINING ............................................... 186
EFFECT WHEN THE PROSECUTION AND THE OFFENDED
PARTY AGREE TO THE PLEA OFFERED BY THE ACCUSED 186
PRE-TRIAL AGREEMENT ................................ 186

FORM ................................................................ 186
REQUIRED FORM OF PRE-TRIAL AGREEMENT ........... 186

EFFECT ............................................................. 186
RIGHT OF THE ACCUSED TO PRESENT EVIDENCE AFTER

DEMURRER IS DENIED ..........................................190
NON-APPEARANCE DURING PRE-TRIAL ......... 187
Judgment .......................... 190
PRE-TRIAL ORDER .......................................... 187

ISSUANCE .......................................................... 187
CONTENTS ......................................................... 187
EFFECT .............................................................. 187
REQUISITES OF A JUDGMENT ........................190

FORM ...............................................................190
REFERRAL OF SOME CASES FOR COURT

ANNEXED MEDIATION AND JUDICIAL DIPUTE
RESOLUTION .................................................. 187
CONTENTS OF JUDGMENT .............................190

CONVICTION ......................................................190
ACQUITTAL ........................................................ 192
A.M. NO. 03-1-09-SC RE: PROPOSED RULE ON

GUIDELINES TO BE OBSERVED BY TRIAL COURT
JUDGES AND CLERKS OF COURT IN THE
CONDUCT OF PRE- TRIAL AND USE OF
DEPOSITION-DISCOVERY MEASURES
RESOLUTION .................................................. 187
PROMULGATION OF JUDGMENT; INSTANCES OF

PROMULGATION OF JUDGMENT IN ABSENTIA 192
PROMULGATION ................................................. 192
NOTICE FOR PROMULGATION ................................. 192
Trial .................................... 187

INSTANCES WHEN PRESENCE OF ACCUSED IS
REQUIRED BY LAW ......................................... 187
PRESENCE IS MANDATORY ..................................... 187
REQUISITES BEFORE TRIAL CAN BE SUSPENDED
ON ACCOUNT OF ABSENCE OF WITNESS ....... 188
ABSENCE OR UNAVAILABILITY OF
AN ESSENTIAL WITNESS ....................................... 188
CONDITIONAL EXAMINATION ................................ 188
TRIAL IN ABSENTIA ........................................ 188

REQUISITES ....................................................... 188
REMEDY WHEN ACCUSED IS NOT BROUGHT TO
TRIAL WITHIN THE PRESCRIBED PERIOD ...... 188
EFFECT OF DELAY ............................................... 188
REQUISITES FOR DISCHARGE OF ACCUSED TO
BECOME A STATE WITNESS............................ 188
DISCHARGE OF A CO-ACCUSED .............................. 188
REQUISITES ...................................................... 189
EFFECTS OF DISCHARGE OF
ACCUSED AS STATE WITNESS ....................... 189
EFFECT OF DISCHARGE ......................................... 189
DEMURRER TO EVIDENCE .............................. 189
DEFINITION ....................................................... 189
HOW INITIATED .................................................. 189
MOTION FOR LEAVE TO FILE DEMURRER .................. 189
EFFECT OF GRANTING DEMURRER .......................... 189
EFFECT OF DENIAL OF MOTION FOR LEAVE TO FILE
DEMURRER ....................................................... 190
JUDGE WHO PENNED THE DECISION NEED NOT BE THE ONE

WHO HEARD THE CASE .........................................190
WHEN DOES JUDGMENT BECOME FINAL ........ 193

JUDGMENT BECOMES FINAL ................................... 193
New trial
or Reconsideration ........... 194
GROUNDS FOR NEW TRIAL ............................ 194
GROUNDS FOR RECONSIDERATION ......................... 194
REQUISITES BEFORE A NEW TRIAL MAY BE
GRANTED ON GROUND OF NEWLY DISCOVERED
EVIDENCE ....................................................... 194
REQUISITES ........................................................ 194
EXCEPTIONS ....................................................... 194
EFFECTS OF GRANTING A NEW TRIAL OR
RECONSIDERATION ........................................ 194
IN ALL CASES ...................................................... 194
REMEDY AGAINST GAD IN GRANTING MNT/MFR ........ 195
APPLICATION OF NEYPES DOCTRINE IN
CRIMINAL CASES ............................................ 195
FRESH PERIOD TO APPEAL
AFTER DENIAL OF MNT/MR
................................... 195
Appeal .............................. 195

EFFECT OF AN APPEAL ................................... 195
WHERE TO APPEAL ............................................... 195
HOW APPEAL TAKEN ...................................... 195
WHO MAY APPEAL ............................................... 195
PROCEDURE IN THE CA ......................................... 196
PROMPT DISPOSITION OF APPEAL ........................... 197
REVERSAL / MODIFICATION OF JUDGMENT ON APPEAL 197
SCOPE OF CAS JUDGMENT .................................... 197
CAS POWER TO RECEIVE EVIDENCE ......................... 198
QUORUM IN THE CA ............................................. 198

CERTIFICATION OR APPEAL OF CASES TO THE SC ....... 198
JUDGMENT TRANSMITTED AND FILED IN TC .............. 198
MNT DURING THE PENDENCY OF APPEAL IN THE CA ... 198
MFR OF CA JUDGMENT ......................................... 198
APPLICABLE CIVIL PROCEDURE RULES ..................... 199
PROCEDURE IN THE SC ......................................... 199
EFFECT OF APPEAL BY ANY OF \SEVERAL

ACCUSED ...................................................... 200
GROUNDS FOR DISMISSAL OF APPEAL ........ 200
WHEN APPEAL BY THE PEOPLE WILL NOT LIE ........... 200
Search and Seizure .......... 201

NATURE OF SEARCH WARRANT .................... 201
DEFINITION ....................................................... 201
NATURE OF A SEARCH WARRANT ........................... 201
BASIS: CONSTITUTIONAL SAFEGUARD AGAINST
UNREASONABLE SEARCH AND SEIZURES ................. 201
CONSTITUTIONAL PROTECTION IS AGAINST PUBLIC
OFFICERS ACTS, NOT PRIVATE PERSONS ................. 201
DISTINGUISH FROM
WARRANT OF ARREST .................................. 201
APPLICATION FOR SEARCH WARRANT, WHERE
FILED ............................................................. 202
APPLICATION ..................................................... 202
ISSUANCE AND FORM OF SEARCH WARRANT ............ 203
VALIDITY OF SEARCH WARRANT ............................. 203
SERVICE OF SEARCH WARRANT ............................. 203
POST-SERVICE ................................................... 203
PROBABLE CAUSE .........................................204
WARRANTS GENERALLY
ISSUED UPON PROBABLE CAUSE ............................ 204
PROBABLE CAUSE JUSTIFYING WARRANTLESS ARREST AND
WARRANTLESS SEARCH ....................................... 204
PERSONAL EXAMINATION BY JUDGE OF THE

APPLICANT AND WITNESSES ........................204
EXAMINATION MUST BE PERSONALLY CONDUCTED BY THE
JUDGE; DETERMINED BY JUDGE HIMSELF ................. 204
PARTICULARITY OF PLACE TO BE SEARCHED

AND THINGS TO BE SEIZED ............................ 205
PARTICULARITY OF PLACE
TO BE SEARCHED ........................................... 205
PARTICULARITY OF THINGS TO BE SEIZED ................ 205
PERSONAL PROPERTY TO BE SEIZED ............ 205
WHAT MAY BE SEIZED ......................................... 205
RULES ON DNA EVIDENCE A.M. NO. 06-11-5-SC ....... 205
EXCEPTIONS TO SEARCH WARRANT

REQUIREMENT .............................................. 205
SEARCH INCIDENTAL TO LAWFUL ARREST ................ 205
CONSENTED SEARCH ........................................... 206
SEARCH OF MOVING VEHICLE ................................ 206
CHECK POINTS; BODY CHECKS IN AIRPORT ............... 206
PLAIN VIEW SITUATION ........................................ 207
STOP AND FRISK SITUATION ................................. 207
ENFORCEMENT OF CUSTOM LAWS .......................... 207
OTHER EXCEPTIONS ............................................ 207
REMEDIES FROM UNLAWFUL SEARCH AND
SEIZURE ........................................................ 208
WHO MAY AVAIL OF REMEDIES .............................. 208
REMEDIES ......................................................... 208
CRIMINAL LIABILITY ............................................ 209
CIVIL LIABILITIES ................................................ 209
Provisional Remedies ...... 209
NATURE ......................................................... 209

KINDS OF PROVISIONAL REMEDIES .............. 209
PRELIMINARY ATTACHMENT .................................. 210
EVIDENCE
General Principles of
Evidence ............................ 212
CONCEPT OF EVIDENCE .................................. 212
SCOPE OF THE RULES OF EVIDENCE .............. 212
APPLICABILITY..................................................... 212
EVIDENCE IN CIVIL CASES VS.
EVIDENCE IN CRIMINAL CASES ...................... 212
PROOF VS. EVIDENCE ..................................... 212
FACTUM PROBANS VS.
FACTUM PROBANDUM ................................... 212
CLASSIFICATION OF EVIDENCE ................................ 212
ADMISSIBILITY OF EVIDENCE .......................... 213
REQUISITES FOR ADMISSIBILITY OF EVIDENCE ............. 213
WHEN DETERMINED ............................................. 213
RELEVANCE OF EVIDENCE & COLLATERAL MATTERS .... 213
DOCTRINES OF ADMISSIBILITY ................................ 213
BURDEN OF PROOF AND
BURDEN OF EVIDENCE .................................... 214
WHERE BURDEN OF PROOF IS FIXED ......................... 214
EQUIPOISE RULE/EQUIPONDERANCE DOCTRINE .......... 214
PRESUMPTIONS ............................................ 214

LIBERAL CONSTRUCTION OF THE RULES OF
EVIDENCE ........................................................215
QUANTUM OF EVIDENCE (WEIGHT AND
SUFFICIENCY OF EVIDENCE) ............................215
PROOF BEYOND REASONABLE DOUBT .......................215
PREPONDERANCE OF EVIDENCE ..............................215
SUBSTANTIAL EVIDENCE .......................................215
CLEAR AND CONVINCING EVIDENCE ..........................215
IN RELATION TO DRUG CASES ................................. 220

PURPOSE OF ESTABLISHING CHAIN OF CUSTODY ....... 220
RULE ON DNA EVIDENCE ............................... 220

MEANING OF DNA ............................................... 220
APPLICATION FOR DNA TESTING ORDER ................... 220
POST-CONVICTION TESTING ................................... 221
ASSESSMENT AND PROBATIVE VALUE OF
DNA EVIDENCE AND ADMISSIBILITY .......................... 221
RULES ON EVALUATION OF RELIABILITY OF THE DNA
TESTING METHODOLOGY ....................................... 221
Judicial Notice and

Judicial Admissions .......... 215
Documentary Evidence .... 221
WHAT NEED NOT BE PROVED .........................215

JUDICIAL NOTICE .................................................215
REQUISITES FOR ADMISSIBILITY .................. 222
MATTERS OF JUDICIAL NOTICE ........................215

MANDATORY .......................................................215
DISCRETIONARY ...................................................216
REQUISITES .........................................................216
JUDICIAL ADMISSIONS ...................................216
WHERE JUDICIAL ADMISSIONS MAY BE MADE .............216
HOW JUDICIAL ADMISSIONS MAY BE OBTAINED ............216
EFFECT OF JUDICIAL ADMISSIONS ............................216
HOW JUDICIAL ADMISSIONS MAY BE CONTRADICTED.....216
CONCLUSIVE PRESUMPTIONS ..................................216
JUDICIAL NOTICE OF FOREIGN LAWS, LAW OF NATIONS AND
MUNICIPAL ORDINANCES ..................................... 218
FOREIGN LAWS ................................................... 218
LAW OF NATIONS ................................................ 219
MUNICIPAL ORDINANCES....................................... 219
Object (Real) Evidence ..... 219

NATURE OF OBJECT EVIDENCE
............................... 219
REQUISITES FOR ADMISSIBILITY ................... 219

RELEVANT ......................................................... 219
COMPETENT ...................................................... 219
MEANING OF DOCUMENTARY EVIDENCE ....... 221
BEST EVIDENCE RULE..................................... 222

MEANING OF THE RULE ......................................... 222
APPLICABILITY.................................................... 222
MEANING OF ORIGINAL DOCUMENT...................... 222
REQUISITES FOR INTRODUCTION OF SECONDARY EVIDENCE
(EXCEPTIONS TO BER) ......................................... 222
RULES ON ELECTRONIC EVIDENCE ................ 222

APPLICABILITY .................................................... 222
MEANING OF ELECTRONIC DEVICE; ELECTRONIC DATA
MESSAGE .......................................................... 222
METHOD OF PROOF .............................................. 222
AUTHENTICATION OF ELECTRONIC DOCUMENTS &
ELECTRONIC SIGNATURES..................................... 223
ELECTRONIC DOCUMENTS & THE HEARSAY RULE ...... 224
AUDIO, PHOTOGRAPHIC, VIDEO &
EPHEMERAL EVIDENCE ......................................... 224
PAROL EVIDENCE .......................................... 224
MEANING OF PAROL EVIDENCE .............................. 224
APPLICATION OF THE PAROL EVIDENCE RULE ........... 224
WHEN PAROL EVIDENCE CAN BE INTRODUCED .......... 224
DISTINCTIONS BETWEEN BEST EVIDENCE RULE & PAROL
EVIDENCE RULE .................................................. 224
CATEGORIES OF OBJECT EVIDENCE .........................

UNIQUE OBJECTS ................................................
OBJECTS MADE UNIQUE.........................................
NON-UNIQUE OBJECTS .........................................
AUTHENTICATION AND PROOF

OF DOCUMENTS ............................................ 225
MEANING OF AUTHENTICATION .............................. 225
PUBLIC AND PRIVATE DOCUMENTS .......................... 225
ATTESTATION OF A COPY ...................................... 226
PROOF OF LACK OF RECORD .................................. 226
WHAT TO ESTABLISH TO IMPEACH JUDICIAL RECORD .. 226
PROOF OF NOTARIAL DOCUMENTS .......................... 226
ALTERATIONS IN A DOCUMENT ............................... 226
VIEW OF AN OBJECT OR SCENE ...................... 220

CHAIN OF CUSTODY ............................................. 220
DOCUMENTARY EVIDENCE IN AN
UNOFFICIAL LANGUAGE ........................................ 226
CHAIN OF CUSTODY ....................................... 220

MEANING OF CHAIN OF CUSTODY ............................ 220
Testimonial Evidence ....... 227
219
219
219
219
DEMONSTRATIVE EVIDENCE ......................... 219
EPHEMERAL ELECTRONIC COMMUNICATIONS ........... 220
WITH RESPECT TO A WITNESS ....................... 227

QUALIFICATIONS OF A WITNESS .................... 227
WHEN DETERMINED ............................................. 227
IN CASE A PERSON IS CONVICTED OF A CRIME ............. 227
COMPETENCY VS. CREDIBILITY
OF A WITNESS ................................................ 227
DISQUALIFICATIONS OF A WITNESS ............. 227
BY REASON OF MENTAL INCAPACITY OR IMMATURITY . 227
BY REASON OF MARRIAGE ..................................... 227
BY REASON OF DEATH OR INSANITY OF
ADVERSE PARTY.................................................. 228
PRIVILEGED COMMUNICATIONS ............................. 228
EXAMINATION OF WITNESSES ....................... 230

RIGHTS AND OBLIGATIONS OF A WITNESS ................. 230
Offer and Objection ......... 240

OFFER OF EVIDENCE ..................................... 240
CONCEPT .......................................................... 240
AS DISTINGUISHED FROM IDENTIFICATION OF
DOCUMENTARY EVIDENCE ..................................... 241
RATIONALE WHY FORMER OFFER IS NEEDED .............. 241
WHEN OFFER IS NOT REQUIRED .............................. 241
WHEN TO MAKE AN OFFER ............................ 241

WHEN TO MAKE AN OFFER ............................. 241
OBJECTION ...................................................... 241
CONCEPT............................................................ 241
PURPOSES OF OBJECTION ...................................... 241
FORMAL VS. SUBSTANTIVE OBJECTIONS................... 242
ORDER IN THE EXAMINATION OF

AN INDIVIDUAL WITNESS ....................................... 230
LEADING AND MISLEADING QUESTIONS .................... 231
METHODS OF IMPEACHMENT OF ADVERSE PARTYS
WITNESS ............................................................ 231
JUDICIAL AFFIDAVIT RULE ...................................... 232
REPETITION OF AN OBJECTION ...................... 242
WITH RESPECT TO THE TESTIMONY ............... 233
TENDER OF EXCLUDED EVIDENCE ................. 242

HOW TO TENDER EVIDENCE ................................... 242
RATIONALE ........................................................ 242
2 METHODS OF MAKING THE TENDER ...................... 242
ERRONEOUS WAY OF MAKING TENDER .................... 242
ADMISSIONS & CONFESSIONS ....................... 233

ADMISSIONS OF A PARTY ....................................... 233
CONFESSIONS .................................................... 234
RES INTER ALIOS ACTA RULE .................................. 234
HEARSAY RULE ............................................. 235
MEANING OF HEARSAY ......................................... 235
REASON FOR EXCLUSION OF HEARSAY EVIDENCE ....... 235
GENERAL RULE ON HEARSAY ................................. 235
EXCEPTIONS ....................................................... 235
OPINION RULE ............................................... 239
OPINION OF EXPERT WITNESS ................................ 239
OPINION OF ORDINARY WITNESS ............................ 239
CHARACTER EVIDENCE .................................. 239
CRIMINAL CASES ................................................. 239
CIVIL CASES ........................................................ 239
RULE ON EXAMINATION OF A
CHILD WITNESS .............................................. 239
MEANING OF CHILD WITNESS .............................. 239
APPLICABILITY OF THE RULE ................................. 239
COMPETENCY OF A CHILD WITNESS ......................... 239
EXAMINATION OF A CHILD WITNESS ......................... 239
LIVE-LINK TV TESTIMONY OF A CHILD WITNESS .......... 240
VIDEOTAPED DEPOSITION OF A CHILD WITNESS .......... 240
HEARSAY EXCEPTION IN CHILD ABUSE CASES ............ 240
SEXUAL ABUSE SHIELD RULE ................................. 240
PROTECTIVE ORDERS ........................................... 240
RULING .......................................................... 242

STRIKING OUT OF AN ANSWER...................... 242
MOTION TO STRIKE .............................................. 242
SPECIAL PROCEEDINGS
Preliminary Matters ......... 244

SPECIAL PROCEEDINGS ................................ 244
APPLICABLE RULES ....................................... 244
SUBJECT MATTER AND APPLICABILITY OF
GENERAL RULES ........................................... 244
DIFFERENCE BETWEEN ACTION AND SPECIAL
PROCEEDING ................................................. 244
VENUES AND JURISDICTIONS FOR SPECIAL
PROCEEDINGS ............................................... 244
MODES OF SETTLEMENT
OF ESTATE [HERRERA] ................................. 245
Settlement of Estate of
Deceased Persons, Venue
And Process ..................... 245
WHICH COURT HAS JURISDICTION ................ 245
JURISDICTION OF RTCS ......................................... 245
JURISDICTION OF MTCS ........................................ 245
TESTATE PROCEEDINGS TAKE PRECEDENCE OVER
INTESTATE PROCEEDINGS OF THE SAME ESTATE. ....... 246
VENUE IN JUDICIAL
SETTLEMENT OF ESTATE ............................... 246
RULE 73 RELATES TO VENUE AND
NOT TO JURISDICTION ......................................... 246
MEANING OF TERM RESIDES ............................... 246
EXTENT OF JURISDICTION
OF PROBATE COURT ...................................... 246
PROBATE COURT IS OF LIMITED JURISDICTION ........... 246
POWERS AND DUTIES OF PROBATE COURT .. 246
Summary Settlement of
Estates .............................. 246
EXTRAJUDICIAL SETTLEMENT BY AGREEMENT
BETWEEN HEIRS, WHEN ALLOWED ............... 246
REQUISITES ....................................................... 246
PROCEDURE ...................................................... 247
BOND REQUIREMENT ........................................... 247
NOT BINDING ON ANY PERSON WHO ........................ 247
VALIDITY OF ORAL PARTITION ................................ 247
VALIDITY OF COMPROMISE AGREEMENT ................... 247
NO PRECLUSION FROM INSTITUTING ADMINISTRATION
PROCEEDINGS .................................................... 247
TWO-YEAR PRESCRIPTIVE PERIOD ............... 247

PRESUMPTION OF NO DEBTS ................................. 247
AFFIDAVIT OF SELF-ADJUDICATION BY SOLE
HEIR ............................................................... 247
BOND REQUIREMENT ........................................... 247
SUMMARY SETTLEMENT OF ESTATES OF SMALL
VALUE ............................................................ 247
WHEN ALLOWED ................................................. 247
PROCEDURE ...................................................... 248
REMEDIES OF AGGRIEVED PARTIES AFTER
EXTRA-JUDICIAL SETTLEMENT OF ESTATE ... 248
CLAIM AGAINST THE BOND OR THE ESTATE WITHIN TWO
YEARS .............................................................. 248
ACTION TO ANNUL A DEED OF
EXTRAJUDICIAL PARTITION .................................... 249
NEW ACTION TO ANNUL SETTLEMENT WITHIN
REGLEMENTARY PERIOD OF TWO YEAR .................... 249
REOPENING BY INTERVENTION BEFORE RENDITION OF
JUDGMENT WITHIN THE REGLEMETARY PERIOD OF TWO
YEARS .............................................................. 249
PETITION FOR RELIEF ON THE GROUND OF FRAUD,
ACCIDENT, MISTAKE OR EXCUSABLE NEGLIGENCE ...... 249
RESCISSION IN CASE OF PRETERITION ...................... 249
Production and Probate of

Will .................................... 249
NATURE OF PROBATE PROCEEDING ............ 249
EFFECT OF PROBATE OF WILL ................................. 249
WHO MAY PETITION FOR PROBATE; PERSONS
ENTITLED TO NOTICE .................................... 249
PETITIONER FOR THE ALLOWANCE OF THE WILL ......... 249
MEANING OF INTEREST IN ESTATE .......................... 249
JURISDICTION, HOW ACQUIRED .............................. 250
Allowance or Disallowance of
Will .................................... 250
CONTENTS OF PETITION FOR ALLOWANCE OF
WILL .............................................................. 250
DEFECT IN PETITION ............................................ 250
GROUNDS FOR DISALLOWING A WILL .......... 250
REPROBATE; REQUISITES BEFORE WILL PROVED
OUTSIDE ALLOWED IN THE PHILIPPINES;
EFFECTS OF PROBATE ................................... 250
REPROBATE ....................................................... 250
REQUISITES FOR ALLOWANCE ..................... 250
EFFECT ............................................................. 250
Letters Testamentary and of

Administration ................. 250
WHEN AND TO WHOM LETTERS OF
ADMINISTRATION GRANTED ........................ 250
WHO ARE INCOMPETENT TO SERVE ......................... 250
ORDER OF PREFERENCE ................................ 251

ORDER OF PREFERENCE IN THE GRANT OF
ADMINISTRATION ................................................ 251
REASON FOR ORDER OF PREFERENCE ...................... 251
30-DAY PERIOD MAY BE WAIVED ............................. 251
OPPOSITION TO ISSUANCE OF LETTERS

TESTAMENTARY; SIMULTANEOUS FILING OF
PETITION FOR ADMINISTRATION .................. 251
MEANING OF INTERESTED PERSON .......................... 251
GROUNDS .......................................................... 251
CONTENTS ......................................................... 251
JURISDICTIONAL FACTS ......................................... 251
PUBLICATION AND NOTICE ..................................... 251
SIMULTANEOUS FILING OF OPPOSITION AND PETITION 252
POWERS AND DUTIES OF EXECUTORS AND

ADMINISTRATORS; RESTRICTIONS ON THE
POWERS ........................................................ 252
GENERAL POWERS AND DUTIES OF EXECUTORS AND
ADMINISTRATORS ............................................... 252
RESTRICTIONS ON POWERS OF EXECUTORS AND
ADMINISTRATORS ............................................... 252
APPOINTMENT OF
SPECIAL ADMINISTRATOR ............................ 253
WHEN APPOINTED ............................................... 253
PROCEDURE FOR APPOINTMENT ............................ 253
POWERS AND DUTIES OF SPECIAL ADMINISTRATOR .... 253
WHEN SPECIAL ADMINISTRATOR CEASES DUTIES ........ 253
GROUNDS FOR
REMOVAL OF ADMINISTRATOR .................... 253
REVOCATION OF ADMINISTRATOR ........................... 253
REMOVAL OF EXECUTOR OR ADMINISTRATOR ............ 253
EFFECT OF REMOVAL, DEATH, OR RESIGNATION ........ 254
Claims against
the Estate ......................... 254
ESTATE BURDENED WITH
LIEN OF CREDITORS ...................................... 254
PURPOSE OF PRESENTATION OF CLAIMS
AGAINST ESTATE ........................................... 254
TIME WITHIN WHICH CLAIMS SHALL BE FILED;
EXCEPTIONS .................................................. 254
STATUTE OF NON-CLAIMS ............................ 254
CLAIMS COVERED (EXCLUSIVE) .............................. 254
CONTINGENT CLAIM WHEN ALLOWED ...................... 254
IF DISPUTED ....................................................... 254
CLAIM OF EXECUTOR OR ADMINISTRATOR
AGAINST THE ESTATE .................................... 255
PROCEDURE TO FOLLOW IF THE EXECUTOR OR
ADMINISTRATOR HAS A CLAIM AGAINST THE ESTATE HE
REPRESENTS ..................................................... 255
PAYMENT OF DEBTS ...................................... 255

DEBTS PAID IN FULL IF ESTATE SUFFICIENT ............... 255
PART OF ESTATE FROM WHICH DEBT PAID WHEN PROVISION
MADE BY WILL .................................................... 255
PERSONALTY FIRST CHARGEABLE FOR DEBTS, THEN
REALTY ............................................................ 255
ESTATE TO BE RETAINED TO MEET
CONTINGENT CLAIMS .......................................... 255
PAYMENT OF CONTINGENT CLAIM ........................... 255
COURT TO FIX CONTRIBUTIVE SHARES WHERE DEVISEES,
LEGATES, OR HEIRS HAVE BEEN IN POSSESSION ........ 255
ORDER OF PAYMENT IF ESTATE IS INSOLVENT ........... 256
DIVIDENDS TO BE PAID IN PROPORTION TO CLAIMS .... 256
INSOLVENT NON-RESIDENT .................................. 256

INSOLVENT RESIDENT WITH FOREIGN CREDITORS AND
FOREIGN CLAIMS PROVEN IN ANOTHER COUNTRY ...... 256
ORDER OF PAYMENT OF DEBTS .............................. 256
APPEAL TAKEN FROM A DECISION OF THE COURT
CONCERNING THE CLAIM ...................................... 256
FROM TIME TO TIME FURTHER
ORDERS OF DISTRIBUTION ................................... 256
CREDITORS TO BE PAID IN ACCORDANCE WITH TERMS OF
ORDER ............................................................. 256
COURT SHALL ALLOW EXECUTOR OR ADMINISTRATOR A
TIME FOR DISPOSING THE ESTATE AND PAYING DEBTS AND
LEGACIES ......................................................... 256
Actions by and against

Executors
and Administrators ..........257
ACTIONS THAT MAY BE BROUGHT AGAINST
EXECUTORS AND ADMINISTRATORS ........... 257
ACTIONS WHICH MAY AND WHICH MAY NOT BE BROUGHT
AGAINST THE EXECUTOR OR ADMINISTRATOR ........... 257
ACTIONS WHICH MAY NOT BROUGHT AGAINST
ADMINISTRATORS ............................................... 257
EXECUTOR OR ADMINISTRATOR MAY BRING OR DEFEND
ACTIONS WHICH SURVIVE ..................................... 257
WHEN RECOVERY OF PROPERTY FRAUDULENTLY CONVEYED
BY DECEASED MAY BE RECOVERED .......................... 257
DUTY OF EXECUTOR/ADMINISTRATOR ..................... 257
REQUISITES BEFORE CREDITOR MAY BRING AN ACTION FOR
RECOVERY OF PROPERTY FRAUDULENTLY CONVEYED BY
THE DECEASED ................................................... 257
ALLOWED IN TWO INSTANCES ................................ 257
EFFECT ............................................................. 258
Distribution and
Partition ............................ 258
LIQUIDATION ................................................ 258

PROJECT OF PARTITION ................................ 258
EFFECT OF FINAL DECREE OF DISTRIBUTION 258
REMEDY OF AN HEIR ENTITLED TO RESIDUE BUT
NOT GIVEN HIS SHARE .................................. 258
INSTANCES WHEN PROBATE COURT MAY ISSUE WRIT OF
EXECUTION ........................................................ 258
Trustees ............................ 259

DISTINGUISHED FROM EXECUTOR OR
ADMINISTRATOR .......................................... 259
CONDITIONS OF THE BOND ........................... 259
WHEN EXEMPT ................................................... 259
CONDITIONS ...................................................... 259
REQUISITES FOR THE REMOVAL AND

RESIGNATION OF A TRUSTEE ........................ 259
DISTINGUISH DOMESTIC ADOPTION FROM

INTER-COUNTRY ADOPTION (ANNEX A) ....... 265
GROUNDS FOR REMOVAL AND RESIGNATION OF

A TRUSTEE ..................................................... 259
GROUNDS FOR REMOVAL ...................................... 259
GROUNDS FOR RESIGNATION ................................. 259
DOMESTIC ADOPTION ACT ............................ 265

PROCEDURE ...................................................... 265
EFFECTS OF ADOPTION ......................................... 265
INSTANCES WHEN ADOPTION MAY BE RESCINDED ...... 266
RESCISSION OF ADOPTION OF THE ADOPTEE ............. 266
INTER-COUNTRY ADOPTION ......................... 266
WHEN ALLOWED ................................................. 266
INTER-COUNTRY ADOPTION AS THE LAST RESORT; BEST
INTEREST OF THE CHILD AS OBJECTIVE ................... 266
FUNCTIONS OF THE RTC ........................................ 266
EXTENT OF AUTHORITY OF TRUSTEE ............ 259

NATURE OF POSSESSION ...................................... 259
TERRITORIALITY OF AUTHORITY OF TRUSTEE ............. 259
Escheat ............................. 260

WHEN TO FILE ................................................ 260
REQUISITES FOR FILING OF PETITION ........... 260
PROCEDURE ...................................................... 260
REMEDY OF RESPONDENT AGAINST PETITION;
PERIOD FOR FILING A CLAIM ......................... 260
PERIOD TO APPEAL AND CLAIM THE ESTATE .............. 260
FILED BY WHOM .................................................. 260
PERIOD FOR FILING CLAIM ..................................... 260
Guardianship .................... 261
Writ of Habeas Corpus .... 266

VITAL PURPOSES .......................................... 266
WHO MAY ISSUE THE WRIT ........................... 267
TEMPORARY RELEASE MAY CONSTITUTE
RESTRAINT -ELEMENTS ................................ 267
NATURE ......................................................... 267
WHC MAY BE USED WITH WRIT OF CERTIORARI
FOR PURPOSES OF REVIEW .......................... 267
WHC IS NOT THE PROPER REMEDY FOR THE
CORRECTION OF ERRORS OF FACT OR LAW . 267
WHC IS NOT PROPER ..................................... 268
WHC IS PROPER ............................................ 268
GUARDIAN ......................................................261
BASIS: PARENS PATRIAE ................................261
KINDS OF GUARDIANS ..........................................261
CONTENTS OF THE PETITION ........................ 268

REQUISITES OF APPLICATION ................................. 268
PROCEDURE ...................................................... 268
GUARDIANSHIP OF INCOMPETENT ................261

PROCEDURE .......................................................261
CONTENTS OF THE RETURN .......................... 268

WHEN THE RETURN CONSIDERED EVIDENCE, AND WHEN
ONLY A PLEA ...................................................... 268
DISTINGUISH PEREMPTORY WRIT FROM
PRELIMINARY CITATION ............................... 268
WHEN WRIT NOT PROPER OR APPLICABLE .. 268
GENERAL POWERS AND

DUTIES OF GUARDIANS ..................................261
REIMBURSEMENT OF REASONABLE EXPENSES .......... 262
PAYMENT OF COMPENSATION ................................ 262
EMBEZZLEMENT, CONCEALMENT, OR CONVEYANCE OF
WARDS PROPERTIES ........................................... 262
ORDER TO SHOW CAUSE ....................................... 262
ORDER FOR SALE OR ENCUMBRANCE ....................... 262
INVESTMENT OF PROCEEDS AND MANAGEMENT OF
PROPERTY ......................................................... 262
CONDITIONS OF THE BOND OF THE GUARDIAN

....................................................................... 262
RULE ON GUARDIANSHIP OVER MINORS ...... 263
PETITION FOR APPOINTMENT OF GUARDIAN .............. 263
THE GUARDIAN ................................................... 264
REMOVAL, RESIGNATION, AND TERMINATION OF
GUARDIANSHIP .................................................. 264
Adoption ........................... 265
WHEN DISCHARGE NOT AUTHORIZED .......... 269

DISCHARGE FROM CUSTODY WILL NOT BE ALLOWED IF 269
DISTINGUISHED FROM WRIT OF AMPARO AND
HABEAS DATA (ANNEX B) ............................... 269
CUSTODY OF MINORS AND WRIT OF HABEAS
CORPUS IN RELATION TO CUSTODY OF MINORS
(A.M. NO. 03-04-04-SC) ................................. 269
APPLICABILITY ................................................... 269
PETITION FOR RIGHTFUL CUSTODY .......................... 269
WHERE TO FILE ................................................... 269
CONTENTS ........................................................ 269
ANSWER TO THE PETITION .................................... 269
MANDATORY PRE-TRIAL ....................................... 270
INTERIM RELIEFS ................................................ 270
JUDGMENT ......................................................... 271
WRIT OF HABEAS CORPUS IN RELATION TO

CUSTODY OF MINORS ..................................... 271
Writ of Amparo ...................271

COVERAGE ...................................................... 271
WRIT OF AMPARO ................................................ 271
DISTINGUISH FROM WRIT OF HABEAS CORPUS
AND HABEAS DATA (ANNEX C) ...................... 272
DISTINGUISH WRIT OF AMPARO FROM SEARCH
WARRANT ..................................................... 272
WHO MAY FILE ............................................... 272
RATIO FOR PREFERENCE ....................................... 272
WHERE TO FILE ................................................... 272
CONTENTS ......................................................... 272
CONTENTS OF RETURN ................................. 273
CONTENTS ......................................................... 273
TO WHOM RETURNABLE ....................................... 273
OMNIBUS WAIVER RULE ............................... 273
DEFENSES NOT PLEADED DEEMED WAIVED. .............. 273
EFFECT OF FAILURE TO FILE A RETURN ........ 273
PROCEDURE FOR HEARING ON THE WRIT .... 273
SUMMARY HEARING ............................................ 273
PROHIBITED PLEADINGS AND MOTIONS .................... 273
JUDGMENT ........................................................ 273
ARCHIVING AND REVIVAL OF CASES ......................... 273
INSTITUTION OF SEPARATE ACTIONS ........... 273
EFFECT OF FILING OF A CRIMINAL ACTION ... 273
CONSOLIDATION ........................................... 274
INTERIM RELIEFS AVAILABLE TO THE
PETITIONER ................................................... 274
TEMPORARY PROTECTION ORDER ........................... 274
INSPECTION ORDER ............................................. 274
PRODUCTION ORDER ........................................... 274
WITNESS PROTECTION ORDER ............................... 275
INTERIM RELIEFS AVAILABLE TO THE
RESPONDENT ................................................ 275
REQUISITES ....................................................... 275
QUANTUM OF PROOF IN APPLICATION FOR
ISSUANCE OF WRIT:
SUBSTANTIAL EVIDENCE .............................. 275
IF RESPONDENT IS A PUBLIC OFFICIAL OR EMPLOYEE .. 275
IF RESPONDENT IS A PRIVATE INDIVIDUAL OR ENTITY . 275
Change of Name and

Cancellation or Correction of
Entries In
the Civil Registry ...............275
DIFFERENCES UNDER THE APPLICABLE RULES
(RULE 103, RULE 108, RA 9048) ..................... 275
GROUNDS FOR CHANGE OF NAME (ANNEX D) 275
JURISPRUDENCE ........................................... 275
Absentees .........................276
PURPOSE OF THE RULE ................................. 276
WHO MAY FILE; WHEN TO FILE ...................... 276
WHEN TERMINATED ..................................... 276
Entries in
the Civil Registry ............... 277
ENTRIES SUBJECT TO CANCELLATION OR
CORRECTION UNDER RULE 108, IN RELATION TO
RA 9048 .......................................................... 277
SUBSTANTIAL CHANGE .......................................... 277
APPROPRIATE ADVERSARY PROCEEDING ................. 277
PROCEDURAL REQUIREMENTS OF AN ADVERSARY
PROCEEDING ...................................................... 277
Appeals in Special
Proceeding ........................ 277
JUDGMENTS AND ORDERS FOR WHICH APPEAL
MAY BE TAKEN ............................................... 277
WHEN TO APPEAL ......................................... 278
MODES OF APPEAL ....................................... 278
RULE ON ADVANCE DISTRIBUTION ............... 278
ANNEX A ........................................................ 279
ANNEX B ....................................................... 282
ANNEX C ........................................................ 283
ANNEX D ........................................................ 289
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General Principles
(c) Judicial process for enforcing rights and duties

recognized by substantive law and for justly
administering remedy and redress for a disregard
or infraction of them. [Fabian v Desierto (1998)]
CONCEPT OF REMEDIAL LAW

CONCEPT
Remedial statute or statutes:

(1) relating to remedies or modes of procedure;
(2) do not take away or create vested rights;
(3) BUT operate in furtherance of rights already
existing. [Riano citing Systems Factor Corporation
v NLRC (2000)]
SUBSTANTIVE LAW
The Rules of Court, promulgated by authority of law,

have the force and effect of law, if not in conflict with
positive law [Inchausti & Co v de Leon (1913)]. The rule
is subordinate to the statute, and in case of conflict,
the statute will prevail. [Shioji v Harvey (1922)].
RULE-MAKING POWER OF THE SUPREME COURT

(a) The Rules of Court was adopted and
promulgated by the Supreme Court pursuant to
the provisions of Sec 5(5) of Art. VIII of the
Constitution, vesting in it the power to:
(1) Promulgate rules concerning the protection
and enforcement of constitutional rights,
pleading, practice and procedure in all courts,
the admission to the practice of law, the
Integrated Bar, and legal assistance to the
underprivileged.
(b) The power to promulgate rules of pleading,
practice, and procedure is no longer shared by the
Supreme Court with Congress, more so with the
executive [Riano citing Echegaray v Secretary of
Justice (1999)]
That part of the law which creates, defines and

regulates rights concerning life, liberty, or property, or
the powers of agencies or instrumentalities for the
administration of public affairs [Bustos v Lucero
(1948)]
APPLICABILITY
The Rules of Court is applicable in ALL COURTS,

except as otherwise provided by the SC [Rule 1, Sec.
2].
It governs the procedure to be observed in civil or
criminal actions and special proceedings [Rule 1, Sec.
3]. It does not apply to the following cases: [ELCINO]
(1) Election cases,
(2) Land registration cases,
(3) Cadastral cases,
(4) Naturalization cases,
(5) Insolvency proceedings
(6) Other cases not herein provided for
LIMITATIONS ON THE RULE-MAKING POWER OF THE

SUPREME COURT
Sec 5(5) of Art. VIII of the Constitution sets forth the

limitations to the power: [SUS]
(a) that the rules shall provide a simplified and
inexpensive procedure for speedy disposition of
cases;
(b) that the rules shall be uniform for courts of the
same grade; and
(c) that the rules shall not diminish, increase or
modify substantive rights.
Except by analogy or in a suppletory character and

whenever practicable and convenient [Rule 4, Sec. 4]
PROSPECTIVITY/RETROACTIVITY
The Rules of Court are not penal statutes and cannot

be given retroactive effect [Bermejo v Barrios (1970)].
Rules of procedure may be made applicable to
actions pending and undetermined at the time of
their passage, and are deemed retroactive in that
sense and to that extent. [In the Matter to Declare in
Contempt of Court Hon. Simeon Datumanong
(2006)].
POWER OF THE SUPREME COURT TO AMEND AND SUSPEND

PROCEDURAL RULES
Power to amend remedial laws

(a) The constitutional faculty of the Court to
promulgate rules of practice and procedure
necessarily carries with it the power to overturn
judicial precedents on points of remedial law
through the amendment of the Rules of Court.
[Pinga v Heirs of Santiago (2006)].
(b) The SC has the sole prerogative to amend, repeal,
or even establish new rules for a more simplified
and inexpensive process, and the speedy
disposition of case [Neypes v CA (2005)]
SUBSTANTIVE LAW AS DISTINGUISHED FROM

REMEDIAL LAW
REMEDIAL LAW OR PROCEDURAL LAW
(a) provides a method of enforcing the rights

established by substantive law;
(b) prescribes the method of enforcing rights or
obtaining redress for their invasion. [Bustos v
Lucero (1948)]
PAGE 2
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CIVIL PROCEDURE
Power to suspend remedial laws

(a) It is within the inherent power of the Supreme
Court to suspend its own rules in a particular case
in order to do justice [De Guia v De Guia (2001)].
(b) When the operation of rules will lead to an
injustice or if their application tends to subvert
and defeat instead of promote and enhance
justice, their suspension is justified [Republic v CA
(1978)].
(c) There is no absolute rule as to what constitutes
good and sufficient cause that will merit
suspension of the rules. The matter is
discretionary upon the Court [Republic v Imperial
Jr. (1999)].
(d) The bare invocation of "the interest of substantial
justice" is not a magic wand that will
automatically compel this Court to suspend
procedural rules [Ramos v Sps Lavendia (2008)].
(e) Procedural rules are not to be belittled or
dismissed simply because their non-observance
may have resulted in prejudice to a party's
substantive rights. Like all rules, they are required
to be followed except only for the most persuasive
of reasons when they may be relaxed to relieve a
litigant of an injustice not commensurate with the
degree of his thoughtlessness in not complying
with the procedure prescribed. [Polanco v Cruz
(2009)].
COURT AS DISTINGUISHED FROM A JUDGE
Court
Judge
Tribunal
officially
assembled
under
authority of law
Simply an officer of such

tribunal
An
organ
of
the
government
with
a
personality separate and
distinct from judge
Person who sits in court
An office
A public officer [Riano]
The circumstances of the court are not affected by the

circumstance that would affect the judge. The
continuity of a court and the efficacy of its
proceedings are not affected by the death,
resignation, or cessation from the service of the
judge presiding over it. In other words, the judge may
resign, become incapacitated, or be disqualified to
hold office, but the court remains. The death of the
judge does not mean the death of the court [Riano
citing ABC Davao Auto Supply v. CA (1998)].
CLASSIFICATION OF PHILIPPINE COURTS
Note: Please see succeeding subsections for

discussions on a to d.
(a) Courts of law and equity
(b) Courts of Original and Appellate jurisdiction
(c) Courts of General and Special jurisdiction
(d) Constitutional and statutory courts
(e) Superior and Inferior courts
(1) Superior courts Courts which have the
power of review or supervision over another
and lower court.
(2) Inferior courts Those which, in relation to
another court, are lower in rank and subject to
review and supervision by the latter.
[Regalado]
(f) Courts of record and not of record
(1) Courts of record Those whose proceedings
are enrolled and which are bound to keep a
written record of all trials and proceedings
handled by them. [Regalado] One attribute of
a court of record is the strong presumption as
to the veracity of its records that cannot be
collaterally attacked except for fraud. All
Philippine courts, including inferior courts, are
now courts of record. [Riano]
(2) Courts not of record Courts which are not
required to keep a written record or transcript
of proceedings held therein.
NOTE: Although not laws in the technical sense of

the term, Rules of Court, promulgated by authority of
law, have the force and effect of law. [Riano citing
Shioji v Harvey (1922)]
Applicability: Prospective
The Rules of Court shall govern cases brought after
they take effect, and also all further proceedings
then pending, EXCEPT to the extent that in the
opinion of the Court their application would not be
feasible or would work injustice. [Riano citing Rule
114]
NATURE OF PHILIPPINE COURTS
MEANING OF A COURT
Definition
(a) A court is an organ of the government belonging
to the judicial department, the function of which is
the application of the laws to controversies
brought before it (and) as well as the public
administration of justice.
(b) Generally, the term describes an organ of the
government consisting of one person or of several
persons, called upon and authorized to
administer justice. It is also the place where
justice is administered. [Riano citing Blacks and
Am. Jur. and C. J. S.]
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important reasons therefor, clearly and

specifically set out in the petition. [Mangahas v.
Paredes (2007)]. The Supreme Court may
disregard the principle of hierarchy of courts if
warranted by the nature and importance of the
issues raised in the interest of speedy justice and
avoid future litigations [Riano].
COURTS OF ORIGINAL AND APPELLATE JURISDICTION
(a) Courts of original jurisdiction Those courts in

which, under the law, actions or proceedings may
be originally commenced.
(b) Courts of appellate jurisdiction Courts which
have the power to review on appeal the decisions
or orders of a lower court. [Regalado]
DOCTRINE OF NON-INTERFERENCE OR DOCTRINE OF

JUDICIAL STABILITY
COURTS OF GENERAL AND SPECIAL JURISDICTION
(a) Courts of general jurisdiction Those competent

to decide their own jurisdiction and to take
cognizance of all kinds of cases, unless otherwise
provided by the law or Rules.
(b) Courts of special or limited jurisdiction Those
which have no power to decide their own
jurisdiction and can only try cases permitted by
statute. [Regalado]
(a) The principle holds that courts of equal and

coordinate jurisdiction cannot interfere with each
others orders [Lapu-lapu Development and
Housing Corp. v. Group Management Corp.(2002)]
The principle also bars a court from reviewing or
interfering with the judgment of a co-equal court
over which it has no appellate jurisdiction or
power of review [Villamor v. Salas (1991)].
(b) The doctrine of non-interference applies with
equal force to administrative bodies. When the law
provides for an appeal from the decision of an
administrative body to the SC or CA, it means
that such body is co-equal with the RTC in terms
of rank and stature, and logically beyond the
control of the latter [Phil Sinter Corp. v. Cagayan
Electric Power (2002)].
CONSTITUTIONAL AND STATUTORY COURTS
(a) Constitutional courts Those which owe their

creation and existence to the Constitution and,
therefore cannot be legislated out of existence or
deprived by law of the jurisdiction and powers
unqualifiedly vested in them by the Constitution.
e.g. Supreme Court; Sandiganbayan is a
constitutionally-mandated court but created by
statute.
(b) Statutory courts Those created, organized and
with jurisdiction exclusively determined by law.
[Regalado]
Jurisdiction
COURTS OF LAW AND EQUITY
JURISDICTION
Jurisdiction is defined as the authority to try, hear
and decide a case [Tolentino v. Leviste (2004)].
Philippine courts are both courts of law and equity.

Hence, both legal and equitable jurisdiction is
dispensed with in the same tribunal [U.S. v.
Tamparong (1998)]
Judicial power includes the duty of the courts of

justice: [Art 8, Sec. 1, Constitution]
(a) To settle actual controversies involving rights
which are legally demandable and enforceable;
(b) To determine WON there has been a grave abuse
of discretion amounting to lack or excess of
jurisdiction on the part of any government
branch/ instrumentality.
PRINCIPLE OF JUDICIAL HIERARCHY
(a) The judicial system follows a ladderized scheme

which in essence requires that lower courts
initially decide on a case before it is considered by
a higher court. Specifically, under the judicial
policy recognizing hierarchy of courts, a higher
court will not entertain direct resort to it unless
the redress cannot be obtained in the appropriate
courts. [Riano citing Santiago v. Vasquez (1993)]
(b) The principle is an established policy necessary to
avoid inordinate demands upon the Courts time
and attention which are better devoted to those
matters within its exclusive jurisdiction, and to
preclude the further clogging of the Courts docket
[Lim v. Vianzon (2006)].
(c) When the doctrine/principle may be disregarded:
A direct recourse of the Supreme Courts original
jurisdiction to issue writs (referring to the writs of
certiorari, prohibition, or mandamus) should be
allowed only when there are special and
All courts exercise judicial power. Only the Supreme

Court is the court created by the Constitution [Art 8,
Sec. 1, Constitution]. The Sandiganbayan is a
Constitutionally mandated court, but it is created by
statute. [PD 1486]
JURISDICTION IN GENERAL
JURISDICTION OVER THE PARTIES
Note: The mode of acquisition of jurisdiction over the

plaintiff and the defendant applies both to ordinary
and special civil actions.
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How jurisdiction over the plaintiff is acquired

Jurisdiction over the plaintiff is acquired by filing of
the complaint or petition. By doing so, he submits
himself to the jurisdiction of the court [Davao Light &
Power Co., Inc. v CA (1991)].
(e) Once attached to a court, it cannot be ousted by

subsequent statute.
Exception: The statute itself conferring new
jurisdiction expressly provides for retroactive
effect. [Southern Food v. Salas (1992)]
How jurisdiction over the defendant is acquired

Acquired by the
(1) voluntary appearance or submission by the
defendant or respondent to the court or
(2) by coercive process issued by the court to him,
generally by the service of summons [de Joya v.
Marquez (2006), citing Regalado]
(f) The filing of the complaint or appropriate

initiatory pleading and the payment of the
prescribed docket fee vest a trial court with
jurisdiction over the subject matter or the nature
of the action [CB v. CA (1992)](2008 Bar Exam).
Exception: Non-payment of docket fee does not
automatically cause the dismissal of the case on
the ground of lack of jurisdiction as long as the
fee is paid within the applicable prescriptive or
reglementary period, more so when the party
involved demonstrates a willingness to abide by
the rules prescribing such payment. [Go v. Tong
(2003)]
In an action in personam, jurisdiction over the person

is necessary for the court to validly try and decide the
case, while in a proceeding in rem or quasi in rem,
jurisdiction over the person of the defendant is not a
prerequisite to confer jurisdiction on the court
provided the latter has jurisdiction over the res [Alba
v. CA (2005)].
Jurisdiction versus the exercise of jurisdiction

(a) Jurisdiction: the authority to hear and determine a
cause the right to act in a case. [Arranza v. BF
Homes (2000)].
JURISDICTION OVER THE SUBJECT MATTER
Meaning of jurisdiction over the subject matter

Jurisdiction over the subject matter is the power to
deal with the general subject involved in the action,
and means not simply jurisdiction of the particular
case then occupying the attention of the court but
jurisdiction of the class of cases to which the
particular case belongs (Riano citing CJS).
Exercise of Jurisdiction.: the exercise of this

power or authority
(b) Jurisdiction is distinct from the exercise thereof.
Jurisdiction is the authority to decide a case and
not the decision rendered therein. When there is
jurisdiction over the subject matter, the decision
on all other questions arising in the case is but an
exercise of jurisdiction. [Herrera v. Baretto et al
(1913)]
It is the power to hear and determine cases of the

general class to which the proceedings in question
belong [Reyes v. Diaz (1941)]
How conferred and determined
(a) It is conferred only by the Constitution or the law.
Error of jurisdiction as distinguished from error of

judgment
(b) Jurisdiction CANNOT be:

(1) fixed by agreement of the parties;
(2) cannot be acquired through, or waived,
enlarged or diminished by, any act or omission
of the parties;
(3) neither can it be conferred by the
acquiescence of the court [Regalado citing De
Jesus v Garcia (1967)].
(4) cannot be subject to compromise [Civil Code,
Art 2035]
(c) Jurisdiction over the subject matter is determined
by the allegations of the complaint and the reliefs
prayed for. [Gulfo v. Ancheta (2012)]
(d) It is not affected by the pleas set up by the
defendant in the answer or in the answer or in a
motion to dismiss. [Sindico v. Diaz (2004)].
Error of jurisdiction
Error of judgment
It is one where the act

complained of was issued
by the court without or in
excess of jurisdiction
[Cabrera v. Lapid (2006)].
It is one which the court

may commit in the
exercise
of
its
jurisdiction [Cabrera v.
Lapid (2006)].
It includes errors of
procedure or mistakes in
the courts mistakes in
the courts findings
[Banco Filipino Savings
v. CA (2000)]
Correctible by appeal
Correctible only by the
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CIVIL PROCEDURE
Error of jurisdiction
Error of judgment
extraordinary writ of
certiorari [Cabrera v Lapid
(2006)]
Renders a judgment void
or voidable [Rule 16 Sec.
1, Rule 65]
[Cabrera v Lapid (2006)]
the filing or service of an answer. Lack of

jurisdiction over subject matter is a ground for a
motion to dismiss. If no motion is filed, the
defense of lack of jurisdiction may be raised as an
affirmative defense in the answer. [Riano citing
Sec. 1(b) and 6 of Rule 16].
(c) Jurisdiction over subject matter may be raised at
any stage of proceedings, even for the first time on
appeal [Calimlim v. Ramirez (1982)]
Ground for reversal only

if it is shown that
prejudice has been
caused [Banco EspaolFilipino v Palanca (1918)]
Effect of estoppel on objections to jurisdiction

Jurisdiction by estoppel
General Rule: Estoppel does not apply to confer
jurisdiction to a tribunal that has none over a cause
of action. Jurisdiction is conferred by law. Where
there is none, no agreement of the parties can
provide one. Settled is the rule that the decision of a
tribunal not vested with appropriate jurisdiction is
null and void. [SEAFDEC-AQD v. NLRC (1992)]
How jurisdiction is conferred and determined

Jurisdiction being a matter of substantive law, the
statute in force at the time of the commencement of
the action determines the jurisdiction of the court.
Doctrine of primary jurisdiction
(a) Courts cannot and will not resolve a controversy
involving a question which is within the
jurisdiction of an administrative tribunal, especially
where the question demands the exercise of
sound administrative discretion requiring the
special knowledge, experience and services of the
administrative tribunal to determine technical
and intricate matters of fact [Paloma v. Mora
(2005)].
(b) Objective is to guide a court in determining
whether it should refrain from exercising its
jurisdiction until after an administrative agency
has determined some question or some aspect of
some question arising in the proceeding before
the court [Riano citing Omictin v. CA (2007)]
Exception: Participation in all stages of the case

before the trial court, that included invoking its
authority in asking for affirmative relief, effectively
barred petitioner by estoppel from challenging the
courts jurisdiction. [Soliven v. Fastforms (2004)]
JURISDICTION OVER THE ISSUES
(a) The power of the court to try and decide issues

raised in the pleadings of the parties [Reyes v.
Diaz (1941)]
(b) How conferred & determined:
(1) Pleadings filed by the parties,
(2) Agreement in a pre-trial order or stipulation
[Rule 18, Sec. 2], or
(3) Implied consent as by the failure of a party to
object to evidence on an issue not covered by
the pleadings in Rule 10, Sec. 5. [Regalado]
Doctrine of adherence of jurisdiction

(a) Also known as doctrine of continuity of jurisdiction
(b) The court, once jurisdiction has been acquired,
retains that jurisdiction until it finally disposes of
the case [Bantua v. Mercader (2001)].
(c) As a consequence, jurisdiction is not affected by a
new law placing a proceeding under the
jurisdiction of another tribunal, EXCEPT:
(d) where there is an express provision in the statute
(e) the statute is clearly intended to apply to actions
pending before its enactment [Riano citing People
v. Cawaling (1998)].
(f) Jurisdiction being a matter of substantive law, the
statute in force at the time of the commencement
of the action determines the jurisdiction of the
court. [Municipality of Kananga v Madrona (2003)]
JURISDICTION OVER THE RES OR PROPERTY IN LITIGATION
(a) Refers to the courts jurisdiction over the thing or

the property which is the subject of the litigation.
(b) Acquired either by
(1) actual or constructive seizure by the court of
the thing in question, thus placing it in
custodia
legis
(e.g.
attachment
or
garnishment) or
(2) by provision of law which recognizes in the
court the power to deal with the property or
subject-matter within its territorial jurisdiction
(e.g. land registration) [Regalado]
Objections to jurisdiction over the subject matter

(a) The Court may ex mero motu, or on its own
initiative take cognizance of lack of jurisdiction
[Fabian v. Desierto (1998)].
(b) Earliest opportunity of a party to raise the issue of
jurisdiction is in a motion to dismiss filed before
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SPECIFIC JURISDICTION
(vii) The finding of absence of facts is

contradicted by the presence of evidence
on record;
(viii) The findings of the CA are contrary to
those of the trial court;
(ix) The CA manifestly overlooked certain
relevant and undisputed facts that, if
properly considered, would justify a
different conclusion;
(x) The findings of the CA are beyond the
issues of the case;
(xi) Such findings are contrary to the
admissions of both parties.
JURISDICTION OF COURTS
Supreme Court
The judicial power shall be vested in one SC and in
such lower courts as may be established by law. [Art.
8, Sec. 1, Constitution]
Powers of the Supreme Court [Art. 8, Sec. 5,
Constitution]
(a) EXERCISE original jurisdiction over:
(1) Cases affecting ambassadors and other public
ministers and consuls;
Distinction between Questions of Law and Fact
RTC also has concurrent jurisdiction
Question of law
(2) Petitions
for
mandamus, quo
corpus.
certiorari,
prohibition,
warranto, and habeas
There is a question of
law when the doubt or
difference arises as to
what the law is on a
certain state of facts, and
which does not call for an
examination
of
the
probative value of the
evidence presented by
the
parties-litigants.
[Republic
v.
Medida
(2012)]
(b) Review/revise/reverse/modify/affirm on appeal or

certiorari, final judgments/orders of lower courts in:
(1) All cases in which the constitutionality/validity
of any treaty, international or executive
agreement,
law,
presidential
decree/proclamation/order/
instruction,
ordinance or regulation is in question;
Note: power of review contemplates the ff.
courts: CA, Sandiganbayan, CTA, RTC, and
other courts authorized by law.
Question of fact
There is a question of
fact when the doubt or
controversy arises as to
the truth or falsity of the
alleged facts [Republic v.
Medida (2012)]
(c) Assign temporarily judges of lower courts to other

stations as public interest may require, which
shall not last 6 six months without the consent of
the judge concerned.
(2) All cases involving the legality of any tax/

impost/ assessment/ toll, or any penalty
imposed in relation thereto;
(d) Order a change of venue or place of trial to avoid

a miscarriage of justice.
(3) All cases in which the jurisdiction of any lower

court is in issue;
(e) Promulgate rules on:

(1) Protection and enforcement of constitutional
rights;
(2) Pleading/practice/procedure in all courts;
(3) Admission to the practice of law;
(4) The Integrated Bar;
(5) Legal assistance to the under-privileged.
(4) All criminal cases in which the penalty

imposed is reclusion perpetua or higher;
(5) All cases in which only errors/questions of law
are involved.
Exceptions: [Josefa v. Zhandong (2003)]
(i) The
conclusion
is
grounded
on
speculations/ surmises /conjectures;
(ii) The
inference
is
manifestly
mistaken/absurd/impossible;
(iii) There is grave abuse of discretion;
(iv) The judgment is based on a
misapprehension of facts;
(v) The findings of fact are conflicting;
(vi) There is no citation of specific evidence on
which the factual findings are based;
Guidelines on the rules:

(1) Provide a simplified and inexpensive
procedure for the speedy disposition of cases;
(2) Uniform for all courts of the same grade;
(3) Not diminish/increase/modify substantive
rights.
(4) Rules of procedure of special courts and
quasi-judicial bodies shall remain effective
unless disapproved by the SC.
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(f) Appoint all Judiciary officials/employees in

accordance with the Civil Service Law.
(d) Sec. 17, Par. 3(1) and Par. 4(4) of the Judiciary Act
of 1948.
Constitutional commissions
(a) COMELEC and COA Unless otherwise provided
by this Constitution or by law, any decision/order
/ruling of each Commission may be brought to
the SC on certiorari by the aggrieved party, within
30 days from receipt of a copy thereof. [Art. 9-A,
Sec. 7, Constitution]
(b) CSC - Judgments/decisions/orders are within the
exclusive appellate jurisdiction of the CA through
Rule 43. [BP 129, as amended by RA 7902]
(c) Sandiganbayan
(1) Decisions and final orders of the
Sandiganbayan shall be subject to review on
certiorari by the SC in accordance with Rule
45 of the Rules.
(2) Whenever, in any case decided, the death
penalty shall have been imposed, the records
shall be forwarded to the SC whether the
accused shall have appealed or nor, for review
and judgment. [PD 1606 Sec 7]
Review of decisions by the NLRC: [St. Martins Funeral

Home v. NLRC (1998)]
Supposed appeals from the NLRC to the SC are
interpreted and hereby declared to mean and refer
to Petitioners for Certiorari under Rule 65.
All such petitions should be initially filed in the CA in
strict observance of the doctrine on the hierarchy of
courts.
All special civil actions arising out of any decision or
final resolution or order of the NLRC filed with the
SC after June 1, 1999 shall not longer be referred to
the CA, but shall forthwith be dismissed.
Powers of the Court of Appeals
(a) Try cases and conduct hearings;
(b) Receive evidence
(c) Perform any and all acts necessary to resolve
factual issues raised, including the power to grant
and conduct new trials or further proceedings.
Court of Appeals [Sec. 9, BP 129]
Trials or hearings must be continuous and must be

completed within 3 months, unless extended by the
Chief Justice.
Original Jurisdiction
To issue writs of mandamus, prohibition, certiorari,
habeas corpus and quo warranto, and auxiliary
writs/processes, whether or not in aid of its appellate
jurisdiction.
Court of Tax Appeals [Sec. 7, RA 1125, as amended by

RA 9282]
Note: former rule only allowed the CA to issue

auxiliary writs and processes in aid of jurisdiction.
Exclusive appellate jurisdiction to review by appeal

(a) Decisions of the Commissioner of Internal
Revenue in cases involving disputed assessments,
refunds of internal revenue taxes, fees or other
charges, penalties in relation thereto, or other
matters arising under the National Internal
Revenue or other laws administered by the BIR;
(b) Inaction by the Commissioner of Internal Revenue
in cases involving disputed assessments, refunds
of internal revenue taxes, fees or other charges,
penalties in relations thereto, or other matters
arising under the National Internal Revenue Code
or other laws administered by the BIR, where the
National Internal Revenue Code provides a
specific period of action, in which case the
inaction shall be deemed a denial;
(c) Decisions, orders or resolutions of the RTCS in
local tax cases originally decided or resolved by
them in the exercise of their original or appellate
jurisdiction;
(d) Decisions of the Commissioner of Customs in
cases involving liability for customs duties, fees or
other money charges, seizure, detention or
release of property affected, fines, forfeitures or
other penalties in relation thereto, or other
The power is concurrent with the SC.

Exclusive Original Jurisdiction
Annulment of RTC judgments.
Exclusive Appellate Jurisdiction
(a) Final
judgments/decisions/resolutions/orders/awards
of:
(1) RTCs;
(2) Quasi-judicial
agencies/instrumentalities/
boards/commissions including:
(i) SEC;
(ii) Social Security Commission;
(iii) ECC;
(iv) CSC.
Exception: Those falling within the SCs appellate
jurisdiction of the Supreme Court in accordance with:
(a) The Constitution;
(b) Labor Code;
(c) BP 129;
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CIVIL PROCEDURE
matters arising under the Customs Law or other

laws administered by the Bureau of Customs;
(e) Decisions of the Central Board of Assessment
Appeals in the exercise of its appellate
jurisdiction over cases involving the assessment
and taxation of real property originally decided by
the provincial or city board of assessment
appeals;
(f) Decisions of the Secretary of Finance on customs
cases elevated to him automatically for review
from decisions of the Commissioner of Customs
which are adverse to the Government under
Section 2315 of the Tariff and Customs Code;
(g) Decisions of the Secretary of Trade and Industry,
in the case of nonagricultural product,
commodity or article, and the Secretary of
Agriculture in the case of agricultural product,
commodity or article, involving dumping and
countervailing duties under Sec 301 and 302,
respectively, of the Tariff and Customs Code, and
safeguard measures under RA 8800, where
either party may appeal the decision to impose or
not to impose said duties.
originally decided by the MeTCs, MTCs and

MCTCs in their respective jurisdiction.
Jurisdiction over tax collection cases as herein provided:
General rule: Exclusive original jurisdiction in tax
collection cases involving final and executory
assessments for taxes, fees, charges and penalties:
BUT, collection cases where the principal amount of
taxes and fees, exclusive of charges and penalties,
claimed is less than P1,000,000.00 shall be tried by
the proper MTC, MeTC and RTC
Exclusive appellate jurisdiction in tax collection cases:
Over appeals from the judgments, resolutions or
orders of the RTCs in tax collection cases originally
decided by them, in their respective territorial
jurisdiction.
Over petitions for review of the judgments,
resolutions or orders of the RTCs in the Exercise of
their appellate jurisdiction over tax collection cases
originally decided by the MeTCs, MTCs and MCTCs,
in their respective jurisdiction."
Jurisdiction over cases involving criminal offenses:

General rule: Exclusive original jurisdiction over all
criminal offenses arising from violations of the
National Internal Revenue Code or Tariff and
Customs Code and other laws administered by the
BIR or the Bureau of Customs
NOTE: RA 9282 elevated CTAs rank to the level of

the Court of Appeals with special jurisdiction.
Sandiganbayan [Sec.4 of RA 8249]
(a) Decisions and final orders of the Sandiganbayan
shall be subject to review on certiorari by the
Supreme Court in accordance with Rule 45 of the
Rules.
(b) Whenever, in any case decided, the death penalty
shall have been imposed, the records shall be
forwarded to the SC whether the accused shall
have appealed or nor, for review and judgment.
[PD 1606 Sec 7]
BUT, offenses or felonies where the principal amount

of taxes and fees, exclusive of charges and penalties,
claimed is less than P1,000,000.00 or where there is
no specified amount claimed shall be tried by the
regular Courts and the jurisdiction of the CTA shall be
appellate.
Any provision of law or the Rules of Court to the
contrary notwithstanding, the criminal action and
the corresponding civil action for the recovery of civil
liability for taxes and penalties shall at all times be
simultaneously instituted with, and jointly
determined in the same proceeding by the CTA, the
filing of the criminal action being deemed to
necessarily carry with it the filing of the civil action,
and no right to reserve the filling of such civil action
separately from the criminal action will be
recognized.
Original Exclusive Jurisdiction

(a) Violations of RA 3019 (Anti-graft and Corrupt
Practices Law);
(b) RA 1379 (Forfeiture of Illegally Acquired Wealth);
(c) Crimes by public officers or employees embraced
in Ch. II, Sec.2 Title VII, Bk. II of the RPC (Crimes
committed by Public Officers) namely:
(1) Direct Bribery under Art. 210 as amended by
BP 871, May 29, 1985;
(2) Indirect Bribery under Art. 211 as amended by
BP 871, May 29, 1985;
(3) Qualified Bribery under Art. 211-A as amended
by RA 7659, Dec. 13, 1993;
(4) Corruption of public officials under Art. 212
where one or more of the accused are officials
occupying the following positions in the
government whether in a permanent, acting
Exclusive appellate jurisdiction in criminal offenses:

(a) Over appeals from the judgments, resolutions or
orders of the RTCs in tax cases originally decided
by them, in their respected territorial jurisdiction.
(b) Over petitions for review of the judgments,
resolutions or orders of the RTCs in the exercise
of their appellate jurisdiction over tax cases
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or interim capacity, at the time of the

commission of the offense:
(i) Officials of the executive branch occupying
the positions of regional director and
higher, otherwise classified as Grade 27
and higher, of the Compensation and
Position Classification Act of 1989
Republic Act No. 6758) specifically
including:
(ii) Provincial
governors,
vice-governors,
members
of
the
sangguniang
panlalawigan,
provincial
treasurers,
assessors, engineers and other provincial
department heads;
(iii) City mayors, vice-mayors, members of the
sangguniang panglungsod, city treasurers,
assessors, engineers and other department
heads;
(iv) Officials of the diplomatic service
occupying the position of consul and
higher;
(v) Philippine Army and Air force colonels,
naval captains and all officers of higher
rank;
(vi) Officers of the PNP while occupying the
position of Provincial Director and those
holding the rank of Senior Superintendent
or higher;
(vii) City and provincial prosecutors and their
assistants; officials and the prosecutors in
the Office of the Ombudsman and special
prosecutor ;
(viii) President, directors or trustees or
managers of government owned or
controlled corporations, state universities
or educational institutions or foundations;
(5) Members of Congress and Officials thereof
classified as Grade 27 and up under the
Compensation and Classification Act of 1989;
(6) Members of the Judiciary without prejudice to
the provision of the Constitution;
(7) Chairmen and members of Constitutional
Commissions, without prejudice to the
provision of the Constitution;
(8) All other national and local officials classified
as Grade 27 and higher under the
Compensation and Position Classification Act
of 1989.
(d) Other offenses or felonies whether simple or
complexed with other crimes committed in
relation to their office by the public officials and
employees mentioned above;
(e) Civil and Criminal Cases filed pursuant to and in
connection with EO 1, 2, 14 & 14-A issued in 1986
(f) Petitions for issuance of Writ of mandamus,
prohibition, certiorari, habeas corpus, injunction
and other ancillary writs and processes in aid of

its appellate jurisdiction;
(g) Provided, jurisdiction is not exclusive of the
Supreme Court
(h) Petitions for Quo Warranto arising or that may
arise in cases filed or that may be filed under EO
1, 2, 14 & 14- A
(i) OTHERS provided the accused belongs to Salary
Grade 27 or higher:
(1) Violation of RA 6713 - Code of Conduct and
Ethical Standards
(2) Violation of RA 7080 The Plunder Law
(3) Violation of RA 7659 - The Heinous Crime Law
(4) RA 9160 - Violation of The Anti-Money
Laundering Law when committed by a public
officer
(5) PD 46 referred to as the gift-giving decree
which makes it punishable for any official or
employee to receive directly or indirectly and
for the private person to give or offer to give
any gift, present or other valuable thing on
any occasion including Christmas, when such
gift, present or valuable thing is given by
reason of his official position, regardless of
whether or not the same is for past favors or
the giver hopes or expects to receive a favor or
better treatment in the future from the public
official or employee concerned in the
discharge of his official functions. Included
within the prohibition is the throwing of
parties or entertainment in honor of the
official or employee or his immediate relatives.
(6) PD 749 which grants immunity from
prosecution to any person who voluntarily
gives information about any violation of
Art.210, 211 or 212 of the RPC, RA 3019,
Sec.345 of the NIRC, Sec. 3604 of the
Customs and Tariff Code and other provisions
of the said Codes penalizing abuse or
dishonesty on the part of the public officials
concerned and other laws, rules and
regulations penalizing graft, corruption and
other forms of official abuse and who willingly
testifies against the public official or employee
subject to certain conditions.
NOTE: Private individuals can be sued in cases
before the Sandiganbayan if they are alleged to be in
conspiracy with the public officer.
Appellate Jurisdiction
Over final judgments, resolutions or orders of the
RTC whether in the exercise of their original or
appellate jurisdiction over crimes and civil cases
falling within the original exclusive jurisdiction of the
Sandiganbayan but which were committed by public
officers below Salary Grade 27.
PAGE 10
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CIVIL PROCEDURE
Exception: Forcible entry into and unlawful detainer

of lands/buildings
Note: The Sandiganbayan has jurisdiction to grant

petitions for the issuance writ writs of mandamus,
prohibition, certiorari, habeas corpus, injunctions,
and other ancillary writs and processes in aid of its
appellate jurisdiction. [RA 7975, as amended][asked
in 2009 BAR]
Admiralty and maritime jurisdiction where the

demand/claim exceeds P300K or P400K (in Metro
Manila);
(a) Maritime and admiralty cases involve trade and
transactions in the sea. Maritime jurisdiction
includes maritime tort. [Negre v. Cabahug (1966)]
Regional Trial Courts

Exclusive Original Jurisdiction in Civil Cases [Sec. 19, BP
129, Asked in the 2002 Bar Examinations]
Incapable of pecuniary estimation (2000 Bar Exam);
(a) If the action is primarily for the recovery of a sum
of money, the claim is considered capable of
pecuniary estimation, and jurisdiction over the
action will depend on the amount of the claim.
[RCPI v. CA (2002)]
(b) If the basic issue is something other than the
right to recover a sum of money, if the money
claim is purely incidental to, or a consequence of,
the principal relief sought, the action is one where
the subject of the litigation may not be estimated
in terms of money. [Soliven v. Fastforms (1992)]
(c) If the thing sought to be deposited or consigned
is a sum of money, the amount of the debt due is
determinable and capable of pecuniary
estimation. [Ascue v. CA (1991)]
(d) Action for support is incapable of pecuniary
estimation because the court is asked to
determine first WON the plaintiff is indeed
entitled to support. [Baito v. Sarmiento (1960)]
(e) Action for specific performance is incapable of
pecuniary estimation. [Manufacturers Distributors
v. Yu Siu Liong (1966)]
(f) The jurisdiction of the respective courts is
determined by the value of the demand and not
the value of the transaction out of which the
demand arose.
(1) The alternative prayer for specific performance
is also of the same value, for the alternative
prayer would not have been made in the
complaint if one was more valuable than the
other. [Cruz v. Tan (1950)]
(g) Rescission is a counterpart of specific
performance therefore also incapable of
pecuniary estimation. [Lapitan v. Scandia (1968)]
(h) Action for declaration of nullity of a deed of
partition is incapable of pecuniary estimation.
[Russel v. Vestil (1999)]
(i) An action for expropriation is incapable of
pecuniary estimation. [Bardillon v. Masili (2003)]
Probate (testate and intestate) where the gross value

of the estate exceeds P300K or P400K (in Metro
Manila);
Marriage contract and marital relations;
General Original Jurisdiction
All cases not within the exclusive jurisdiction of any
court/tribunal/person/ body exercising judicial or
quasi-judicial functions;
Within the exclusive original jurisdiction of a Juvenile
and Domestic Relations Court and of the Court of
Agrarian Relations;
All other cases where the demand (exclusive of
interest, damages of whatever kind, attorney's fees,
litigation expenses and costs) or the value of the
property in controversy exceeds P300K or P400K in
Metro Manila.
(a) The exclusion of the term damages of whatever
kind in determining the jurisdictional amount
under Sec. 19(8) and Sec. 33 (1) of BP 129, as
amended by RA 7691, applies to cases where the
damages are merely incidental to or a
consequence of the main cause of action.
However, if the claim for damages is the main
cause of action, or one of the causes of action, the
amount of such claim shall be considered in
determining the jurisdiction of the court.[Admin
Circ. 09-94]
(b) Actions for damages based on quasi-delicts are
primarily and effectively actions for the recovery
of a sum of money for the damages suffered
because of the defendants alleged tortious acts.
This money claim is the principal relief sought,
and is not merely incidental thereto or a
consequence thereof. [Iniego v. Purganan (2006)]
Original Jurisdiction [Sec. 21, BP 129]
(a) Certiorari, prohibition, mandamus, quo warranto,
habeas corpus and injunction which may be
enforced in any part of their respective regions;
Title to, or possession of, real property (or any interest

therein) where the propertys assessed value exceeds
P20K or P50K (for civil actions in Metro Manila);
CONCURRENT jurisdiction with SC and CA
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UP COLLEGE OF LAW
CIVIL PROCEDURE
(b) Actions affecting ambassadors and other public

ministers and consuls.
causes of action, WON the causes of action

arose out of the same/different transactions.
CONCURRENT jurisdiction with SC
(b) Forcible entry and unlawful detainer

(1) If the defendant raises the question of
ownership in his pleadings and the question of
possession cannot be resolved without
deciding the issue of ownership, the issue of
ownership shall be resolved only to determine
the issue of possession.
(2) That the MeTC has jurisdiction even in cases
where the issue of possession is closely
intertwined with the issue of ownership is now
a settled doctrine in ejectment proceedings.
[Heirs of B. Hernandez v. Vergara (2006)]
(3) The authority granted to the MeTC to
preliminarily resolve the issue of ownership to
determine the issue of possession ultimately
allows it to interpret and enforce the contract
or agreement between the plaintiff and the
defendant. However, MeTCs ruling on the
rights of the parties based on its interpretation
of their contract is, of course, not conclusive,
but is merely provisional and is binding only
with respect to the issue of possession. [Union
Bank v. Maunlad Homes (2012)]
Exclusive Appellate Jurisdiction [Sec. 22, BP 129]

All cases decided by MeTCs/MTCs/MCTCs in their
respective territorial jurisdictions. Metropolitan,
Municipal and Municipal Circuit Trial Courts
Family Courts
Exclusive Original Jurisdiction
(a) Petitions for guardianship, custody of children,
habeas corpus in relation to the latter;
(b) Petitions for adoption of children and revocation
thereof;
(c) Complaints for annulment of marriage,
declaration of nullity of marriage and those
relating to marital status and property relations
of husband and wife or those living together
under different status and agreements, and
petitions for dissolution of conjugal partnership of
gains;
(d) Petitions for support and/ or acknowledgement;
(e) Summary judicial proceedings brought under the
Family Code;
(f) Petitions for declaration of status of children as
abandoned, dependent or neglected children, for
voluntary or involuntary commitment of children,
and for suspension, termination or restoration of
parental authority under PD 603, EO 56 s. 1986
and other related laws;
(g) Cases for domestic violence against women and
children, as defined therein but which do not
constitute criminal offenses subject to criminal
prosecution and penalties.
(c) All civil actions that involve title to, or possession of,
real property (or any interest therein) where the
assessed value of the property (or interest
therein) does not exceed P20K or P50K (in civil
actions in Metro Manila).
(1) Value excludes interest, damages of whatever
kind, attorneys fees, litigation expenses and
costs
(2) If land is not declared for taxation purposes, the
value of such property shall be determined by
the assessed value of the adjacent lots.
Metropolitan Trial Courts/Municipal Trial Courts
(d) All civil cases subject to summary procedure.
Exclusive Original Jurisdiction [Sec. 33, BP 129]

(a) Civil actions and probate proceedings (testate and
intestate), including the grant of provisional
remedies, where the value of the personal
property, estate or amount of the demand does not
exceed P300K or P400K (in Metro Manila) (value
excludes of interest, damages of whatever kind,
attorneys fees, litigation expenses, and costs);
(1) Interest, damages of whatever kind, attorney's
fees, litigation expenses and costs shall be
included in the determination of the filing
fees.
(2) If there are several claims or causes of actions
between the same/different parties in the
same complaint, the amount of the demand
shall be the totality of the claims in all the
Delegated Jurisdiction in Cadastral and Land

Registration Cases [Sec. 34, BP 129]
(a) Lots where there is no controversy/ opposition; or
(b) Contested lots the value of which does not
exceed P100K.
(1) The value is to be ascertained:
(i) By the claimants affidavit;
(ii) By agreement of the respective claimants, if
there are more than one;
(iii) From the corresponding tax declaration of
the real property.
(2) MTC decisions in cadastral and land
registration cases are appealable in the same
manner as RTC decisions.
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CIVIL PROCEDURE
Shariah Courts
Original Jurisdiction [Article 143, CMPL]
(a) All cases involving custody, guardianship,
legitimacy, paternity and filiation arising under
the Code of Muslim Personal Laws;
(b) All cases involving disposition, distribution and
settlement of estate of deceased Muslims,
probate of wills, issuance of letters of
administration or appointment of administrators
or executors regardless of the nature or
aggregate value of the property;
(c) Petitions for the declaration of absence and
death for the cancellation or correction of entries
in the Muslim Registries mentioned in Title VI,
Book Two of the Code of Muslim Personal Laws;
(d) All actions arising from the customary contracts
in which the parties are Muslims, if they have not
specified which law shall govern their relations;
and
(e) All petitions for mandamus, prohibition,
injunction, certiorari, habeas corpus, and all other
auxiliary writs and processes in aid of its
appellate jurisdiction.
to settle certain cases amicably and without formal

trial.
The Council is composed of the Clerk of Court as
Chairperson and a representative of each of the
conflicting parties.
JURISDICTION OVER SMALL CLAIMS, CASES
COVERED BY THE RULES ON SUMMARY
PROCEDURE AND BARANGAY CONCILIATION
[A.M. No. 08-8-7-SC, the Rule of Procedure for Small
Claims Cases effective October 1, 2008]
DEFINITION
Small claims courts are courts of limited jurisdiction

that hear civil cases between private litigants
[Rationale of Proposed Rule].
PURPOSE
The purpose of small claims process is to provide an

inexpensive and expeditious means to settle disputes
over small amounts [Riano].
SCOPE
Concurrent Jurisdiction with Civil Courts

(a) Petitions by Muslim for the constitution of a
family home, change of name and commitment
of an insane person to an asylum;
(b) All other personal and legal actions not
mentioned in paragraph 1 (d) wherein the parties
involved are Muslims except those for forcible
entry and unlawful detainer, which shall fall
under the exclusive jurisdiction of the Municipal
Circuit Court; and
(c) All special civic actions for interpleader or
declaratory relief wherein the parties are Muslims
or the property involved belongs exclusively to
Muslims
This rule governs the procedure in actions before the

Metropolitan trial Courts, Municipal Trial Courts in
Cities, Municipal Trial Courts and Municipal Circuit
Trial Courts for payment of money where the value of
the claim does not exceed One Hundred Thousand
Pesos (P100,000.00) exclusive of interest and costs.
[Sec. 2, Scope]
APPLICABILITY
The Metropolitan Trial Courts, Municipal Trial Courts

in Cities, Municipal Trial Courts, and Municipal
Circuit Trial Courts shall apply this Rule in all actions
which are:
(a) purely civil in nature where the claim or relief
prayed for by the plaintiff is solely for payment or
reimbursement of sum of money, and
(b) the civil aspect of criminal action, or reserved
upon the filing of the criminal action in court,
pursuant to Rule of 111 of the Revised Rules of
Criminal Procedure.
Sharia Circuit Courts are courts where Muslims can

file cases involving the following:
(a) Offenses defined and punished under PD 1083
(b) Disputes relating to :
(1) Marriage
(2) Divorce
(3) betrothal or breach of contract to marry
(4) customary dower (mahr)
(5) disposition and distribution of property upon
divorce
(6) maintenance and support and consolatory
gifts (muta)
(7) restitution of marital right
(8) Disputes relative to communal properties
These claims or demands may be:

(a) For money owed under any of the following;
(1) Contract of Lease;
(2) Contract of Loan;
(3) Contract of Services;
(4) Contract of Sale; or
(5) Contract of Mortgage;
(b) For damages arising from any of the following;
(1) Fault or negligence;
(2) Quasi-contract; or
(3) Contract;
NOTE: The Sharia District Court or the Sharia Circuit

Court may constitute an Agama Arbitration Council
PAGE 13
UP COLLEGE OF LAW
CIVIL PROCEDURE
(c) The enforcement of a barangay amicable

settlement or an arbitration award involving a
money claim covered by this Rule pursuant to
Sec. 417 of RA 7160, otherwise known as the
Local Government Code of 1991. [Sec. 4,
Applicability]
PROHIBITED PLEADINGS
The following pleadings, motions, and petitions shall

not be allowed in the cases covered by this Rule:
(a) Motion to dismiss the compliant except on the
ground of lack of jurisdiction;
(b) Motion for a bill of particulars;
(c) Motion for new trial, or for reconsideration of a
judgment, or for reopening of trial;
(d) Petition for relief from judgment;
(e) Motion for extension of time to file pleadings,
affidavits, or any other paper;
(f) Memoranda;
(g) Petition for certiorari, mandamus, or prohibition
against any interlocutory order issued by the
court;
(h) Motion to declare the defendant in default;
(i) Dilatory motions for postponement;
(j) Reply;
(k) Third-party complaints; and
(l) Interventions. [Sec. 14, Prohibited pleadings and
motions]
Cause of action
Action
(a) A cause of action is

the basis of the
action filed [Rule 2,
Sec.1]
(b) Fact or combination
of facts which affords
a party a right to
judicial interference
in his behalf. [Into v.
Valle (2005)]
Ordinary suit in a court of

justice, by which one
party prosecutes another
for the enforcement or
protection of a right, or
the
prosecution
or
redress of a wrong
MEANING OF ORDINARY CIVIL ACTIONS

An ordinary civil action is one that is governed by the
rules for ordinary civil actions [Rule 1, Sec. 3(a) par 2]
MEANING OF SPECIAL CIVIL ACTIONS
A special civil action is one that is subject to the
specific rules prescribed for a special civil action; it is
also governed by the rules for ordinary civil actions
[Rule 1, Sec. 3(a) par 2]
MEANING OF CRIMINAL ACTIONS
A criminal action is one by which the State
prosecutes a person for an act or omission
punishable by law. [Rule 1, Sec. 3(b)]
CIVIL ACTIONS VERSUS SPECIAL PROCEEDINGS
A civil action is one by which a party sues another for
the enforcement or protection of a right, or the
prevention or redress of a wrong. [Rule 1, Sec. 3(a) par
1]
TOTALITY RULE
Where there are several claims or causes of actions

between the same or different parties, embodied in
the same complaint, the amount of the demand
shall be the totality of the claims in all the causes of
action, irrespective of whether the causes of action
arose out of the same or different transaction [Riano
citing Pantranco North Express v Standard Insurance
(2005)]
A special proceeding is a remedy by which a party

seeks to establish a status, a right, or a particular
fact. [Rule 1, Sec. 3 (c)]
DISTINCTIONS BETWEEN CIVIL ACTIONS AND SPECIAL
PROCEEDINGS (Asked in the 1998 Bar Exam)
Actions
Action
As to Parties
Involves 2 or more parties Involves at least 1 party
or 2 or more
parties in proper cases
As to cause of action
Involves a right and a May involve a right, but
violation of such right by there need not be a
the defendant which violation of this right
causes
some
damage/prejudice upon
the plaintiff
As to formalities
Actions, in general: An ordinary suit in a court of

justice by which one party prosecutes another for the
enforcement/ protection of a right or the
prevention/redress of a wrong [Santos v. Vda. De
Caparas, (1959)]
ACTION VS CAUSE OF ACTION
(Asked in the 1999 Bar Exam)
Cause of action
Special Proceeding
Action
PAGE 14
UP COLLEGE OF LAW
CIVIL PROCEDURE
Real action
Action
Special Proceeding
Ownership or
possession of
real property is
involved
Requires the application Requires

no
such
of legal remedies in formalities, as it
accordance with the may be granted upon
prescribed rules
application
As to governing rules
Ordinary
rules
of Special
rules
procedure
procedure
As to appeal from an interlocutory
Order
Cannot be directly and
immediately appealed to
the appellate court until
after final judgment on
the merits
of
Can be immediately
and directly appealed
to the appellate court
PERSONAL ACTIONS AND REAL ACTIONS

Real Actions: Actions affecting title to or possession
of real property, or interest therein. [Rule 4, Sec. 1 par
1]
Founded
on
privity of real
estate
Founded
privity
contract
Filed in the
court where the
property (or any
portion thereof)
is situated
Filed in the
court where the
plaintiff or any
of
the
defendants
resides, at the
plaintiffs
option
Personal Actions: All other actions are personal

actions. [Rule 4, Sec.2]
OF
DISTINCTION:
Note: Not every action involving a real property is a

real action because the realty may only be incidental
to the subject matter of the suit. To be a real action,
it is not enough that the action must deal with real
property. It is important that the matter in litigation
must also involve any of the following issues: title to,
ownership, possession, paritition, foreclosure or
mortgage or any interest in real property. (Riano)
Real action
Personal
action
on
of
Mixed action
Both real and
personal
properties are
involved
Founded
both
on
The rules on
venue of real
actions govern
LOCAL AND TRANSITORY ACTIONS

Local action
Transitory action
(a) One that could be (a) One that could be
instituted in one
prosecuted in any one
specific place [Manila
of several places
Railroad v. Attorney[Manila Railroad v.
General (1911)]
Attorney-General
(b) Venue depends upon
(1911)]
the location of the (b) Its venue depends
property involved in
upon the residence of
the litigation (Riano)
the plaintiff or the
defendant at the
option of the plaintiff
(Riano)
for purposes of
determining the venue of the action (Riano)
(a) Real actions shall be commenced and tried in the
proper court which has jurisdiction over the area
wherein the real property involved, or a portion
thereof, is situated. [Rule 4, Sec.1]
(b) Personal actions may be commenced and tried
where the plaintiff or any of the principal
plaintiffs resides, or where the defendant or any
of the principal defendants resides, or in the case
of a non-resident defendant, where he may be
found, at the election of the plaintiff. [Rule 4,
Sec.2]
IMPORTANCE
Personal
action
Personal
property
is
sought to be
recovered
or
damages
for
breach
of
Contract or the
enforcement of
a contract are
sought
Actions in rem, in personam and quasi in rem

[Riano citing Domagas v. Jensen, (2005) and Biaco v.
Philippine Countryside Rural Bank, (2007)]
Action in rem
Directed
against
the
thing itself
Mixed action
PAGE 15
Action in
personam
Directed
against
particular
persons
Action
quasi in rem
Directed
against
particular
persons
UP COLLEGE OF LAW
Action in rem
Jurisdiction
over the person
of the
defendant is
NOT required
A proceeding to
determine the
state/condition
of a thing
Judgment is
binding on the
whole world
CIVIL PROCEDURE
Action in
personam
Jurisdiction
over the person
of the
defendant is
required
An action to
impose
responsibility or
liability upon a
person directly
Judgment is
binding only
upon parties
impleaded or
their successors
in interest
Action
quasi in rem
Jurisdiction
over the person
of the
defendant is
not required as
long as
jurisdiction over
the res is
acquired
A proceeding to
subject the
interest of a
named
defendant over
a particular
property to an
obligation/lien
burdening it
Action in rem
Ex: Accion
reivindicatoria;
annulment of
marriage;
naturalization
proceedings
Action in
personam
Ex: Action for
specific
performance;
action to
recover money
or property
(real or
personal)
Action
quasi in rem
Ex: Action for
partition; action
to foreclose
real estate
mortgage
The question of whether the trial court has

jurisdiction depends on the nature of the action, i.e.,
whether the action is in personam, in rem, or quasi in
rem. [Riano citing Biaco v. Philippine Countryside
Rural Bank (2007)]
The distinction is important to determine whether or
not jurisdiction over the person of the defendant is
required and consequently to determine the type of
summons to be employed. [Riano citing Gomez v.
Court of Appeals (2004)]
Deal with the

status,
ownership or
liability of a
particular
property but
which are
intended to
operate on
these questions
only as
between the
particular
parties to the
proceedings
and not to
ascertain or
cut-off the
rights or
interest of all
possible
claimants
[Domagas v.
Jensen (2005)]
Judgment is
binding upon
particular
persons
Cause of Action
MEANING OF CAUSE OF ACTION
A cause of action is the act or omission by which a
party violates a right of another. [Rule 2, Sec.2]
ELEMENTS OF A CAUSE OF ACTION [cited in
Riano]
(a) Plaintiffs legal right;
(b) Defendants correlative obligation to respect
plaintiffs right;
(c) Defendants act/omission in violation of plaintiffs
right [Ma-ao Sugar Central v. Barrios (1947)]
(Asked in the 1997 Bar Exam).
Every ordinary civil action must be based on a cause
of action [Rule 2, Sec. 1]
A cause of action stems from the sources of
obligations under Art. 1156, CC - Law, Contract,
Quasi-contract, Acts and omissions punishable by
law and Quasi-delict. [Sagrada Orden etc v. National
Coconut Corporation (1952)]
PAGE 16
UP COLLEGE OF LAW
CIVIL PROCEDURE
RIGHT OF ACTION VERSUS CAUSE OF ACTION

[Regalado]
Right of action
Cause of action
The remedial right or

right to relief granted by
law to a party to institute
an action against a
person
who
has
committed a delict or
wrong against him
Right to sue as a
consequence of the
delict
Whether such acts give
him right of action
determined
by
substantive law
The delict or wrongful

act
or
omission
committed by
the
defendant in violation of
the primary rights of the
plaintiff
The act of dividing a single or indivisible cause of

action into several parts or claims and bringing
several actions thereon. (Regalado)
EFFECTS OF SPLITTING A CAUSE OF ACTION:
[Taken from
2011 Reviewer]
(a) The filing of one or a judgment upon the merits in
any one is available as a ground for the dismissal
of the others. [Rule 2, Sec.4]
(b) Filing of the 1st complaint may be pleaded in
abatement of the 2nd complaint, on the ground
of litis pendentia; or
(c) A judgment upon the merits in any of the
complaints is available as ground for dismissal of
the others based on res judicata.
(d) A MTD under Rule 16 Sec. 1(e) or (f) may be filed
in order that the complaint may be dismissed.
The delict or wrong

Determined
by
averments
in
pleading regarding
acts committed by
defendant
the
the
the
the
BASIS:
A party may not institute more than one suit

for a single cause of action. [Rule 2, Sec. 3]
Note: There can be no right of action without a cause

of action being first established [Regalado citing
Espaol v. The Chairman of PVA (1985)]
PURPOSE [City of Bacolod v. SM Brewery (1969)]
(a) To prevent repeated litigation between the same

parties in regard to the same subject or
controversy;
(b) To protect the defendant from unnecessary
vexation. Nemo debet vexare pro una et eadem
causa (No man shall be twice vexed for one and
the same cause);
(c) To avoid the costs and expenses incident to
numerous suits.
FAILURE TO STATE A CAUSE OF ACTION

(a) There is a failure to state a cause of action if the
pleading asserting the claim states no cause of
action. This is a ground for a motion to dismiss.
[Rule 16, Sec.1(g)]
(b) It is submitted that the failure to state a cause of
action does not mean that the plaintiff has no
cause of action. It only means that the plaintiffs
allegations are insufficient for the court to know
that the rights of the plaintiff were violated by the
defendant. [Riano]
(c) There is a failure to state a cause of action if
allegations in the complaint taken together, do
not completely spell out the elements of a
particular cause of action. [Riano]
(d) A failure to state a cause of action is not the same
as an absence or a lack of cause of action. The
former refers to an insufficiency in the allegations
of the complaint while the latter refers to the
failure to prove or to establish by evidence ones
stated cause of action. [Riano]
A single act/omission can be violative of various

rights at the same time, as when the act constitutes
juridically a violation of several separate and distinct
legal obligations. However, where there is only one
delict/wrong, there is but a single cause of action
regardless of the number of rights that may have
been violated belonging to one person. The
singleness of a cause of action lies in the singleness
of the delict/wrong violating the rights of a person. If
only 1 injury resulted from several wrongful acts, only
1 cause of action arises. [Joseph v. Bautista (1989)]
For a single cause of action or violation of a right, the
plaintiff may be entitled to several reliefs. It is the
filing of separate complaints for these several reliefs
that constitutes splitting up of the cause of action
which is proscribed by Rule 2, Sec. 3 and 4. [City of
Bacolod v. SM Brewery (1969)]
TEST OF THE SUFFICIENCY OF A CAUSE OF

ACTION
Whether or not admitting the facts alleged, the court
could render a valid verdict in accordance with the
prayer of the complaint [Santos v. de Leo (2005)]
JOINDER AND MISJOINDER OF CAUSES OF

ACTION
JOINDER OF CAUSE OF ACTION: It is the assertion of as
many causes of action as a party may have against
another in one pleading alone. It is also the process
SPLITTING A SINGLE CAUSE OF ACTION AND ITS

EFFECTS
Definition: The act of instituting two or more suits on
the basis of the same cause of action. [Rule 2, Sec.4]
PAGE 17
UP COLLEGE OF LAW
CIVIL PROCEDURE
of uniting 2 or more demands or rights of action in

one action. [Riano citing Rule 2, Sec. 5 and CJS]
only a single cause of action to maintain an

action (Regalado).
By a joinder of actions, or more properly, a joinder of

causes of action is meant the uniting of two or more
demands or rights of action in one action, the
statement of more than one cause of action in a
declaration [Ada v. Baylon (2012)]
Parties to Civil Actions

REQUIREMENTS FOR A PERSON TO BE A PARTY
TO A CIVIL ACTION:
(A) THE MUST BE EITHER [Rule 1, Sec.3]:
(1) A natural person;
(2) A juridical person;
(i) The State and its political subdivisions;
(ii) Other corporations, institutions and entities
for public interest or purpose, created by
law; and
(iii) Corporations, partnerships and associations
for private interest or purpose to which the
law grants a juridical personality, separate
and distinct from that of each shareholder,
partner or member [Art. 44, CC]
(3) An entity authorized by law.
(i) The estate of a deceased person [Limjoco v.
Intestate Estate of Fragante (1948)];
(ii) A political party incorporated under Act 1459
[now BP 68 (Corporation Code)];
(iii) A corporation by estoppel is precluded from
denying its existence and the members
thereof can be sued and be held liable as
general partners. [Riano citing Sec. 21, BP68,
The Corporation Code of the Philippines]
(iv) A contract of partnership having a capital of
P3,000.00 or more but which fails to comply
with the registration requirements is
nevertheless liable as a partnership to third
persons. [Riano citing Art. 1772 in rel. to Art.
1768, Civil Code]
(v) A registered labor union [Sec. 243, PD 442
(Labor Code)], with respect to its property.
(vi) A legitimate labor organization may sue and
be sued in its registered name. [Riano citing
Art. 2429(e), Labor Code]
(vii) The Roman Catholic Church has legal
capacity to sue. As to its properties, the
archbishop or diocese to which they belong
may be a party. [Barlin v. Ramirez (1906);
Riano citing Barlin v. Ramirez and Versoza v.
Fernandez(1926)].
(viii) A dissolved corporation may prosecute and
defend suits by or against it provided that the
suits (i) occur within three years after its
dissolution, and (ii) the suits are in
connection with the settlement and closure
of its affairs. [Riano citing Sec. 122,
Corporation Code]
PURPOSES:
To avoid a multiplicity of suits and to

expedite disposition of litigation at minimum cost
[Ada v. Baylon (2012)]
The rule however is purely permissive as the plaintiff
can always file separate actions for each cause of
action. [Baldovi v. Sarte, (1917)]
Joinder shall not include special civil actions
governed by special rules. [Ada v. Baylon (2012)]
REQUISITES [Rule 2, Sec. 5]:
(a) The party joining the causes of action must

comply with the rules on joinder of parties;
(b) The joinder shall not include special civil actions
or actions governed by special rules;
(c) Where causes of action are between the same
parties
but
pertain
to
different
venues/jurisdictions, the joinder may be allowed
in the RTC provided one of the causes of action
are within the RTCs jurisdiction and the venue
lies therein;
(d) TOTALITY RULE - Where the claims in all the
causes of action are principally for recovery of
money, the aggregate amount claimed shall be
the test of jurisdiction.
MISJOINDER OF CAUSES OF ACTION [Rule 2, Sec. 6]
(a) Misjoinder of causes of action is not a ground for
dismissal of an action. A misjoined cause of

action may, on motion or motu propio, be severed
and proceeded with separately. However, if there
is no objection to the improper joinder or the
court did not motu proprio direct a severance,
then there exists no bar in the simultaneous
adjudication of all the erroneously joined causes
of action. However, this rule exists only when the
court trying the case has jurisdiction over all of
the causes of action therein notwithstanding the
misjoinder of the same. This is because if the
court has no jurisdiction to try the misjoined
action, then the same must be severed and if not
so severed, any adjudication rendered by the
court with respect to the same would be a nullity.
(b) There is no sanction against non-joinder of
separate causes of action since a plaintiff needs
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CIVIL PROCEDURE
(B) HE MUST HAVE THE LEGAL CAPACITY TO SUE;

PARTIES TO A CIVIL ACTION
(a) Plaintiff One having interest in the matter of the
action or in obtaining the relief demanded; the
claiming party or the original claiming party and
is the one who files the complaint [Riano]; does
not exclusively apply to the original plaintiff
[Riano]; may refer to the claiming party, the
counter-claimant, the cross-claimant, or the third
(fourth, etc.)-party plaintiff [Rule 3, Sec.1]
(b) Defendant One claiming an interest in the
controversy or the subject thereof adverse to the
plaintiff. The term may also include [Rule 3, Sec 1):
(1) Unwilling Co-Plaintiff A party who should be
joined as plaintiff but whose consent cannot
be obtained. He may be made a defendant
and the reason therefore shall be stated in the
complaint. [Rule 3, Sec. 10]
(2) The original plaintiff becoming a defendant to
the original defendants counterclaim; also
refers to the cross-defendant, or the third
(fourth, etc.)-party defendant. [Rule 3, Sec 1]
(c) HE MUST BE THE REAL PARTY IN INTEREST.

[Berman v. Cheng (2005)]
(1) Only natural or juridical persons or entities
authorized by law may be parties in a civil
case.
(2) A sole proprietorship is not vested with
juridical personality and cannot sue or file or
defend an action.
(3) There is no law authorizing sole proprietorship
to file a suit.
(4) A sole proprietorship does not possess a
judicial personality separate and distinct from
the personality of the owner of the enterprise.
[Rimbunan v. Oriental (2005)]
(5) An unlicensed foreign corporation is
nonetheless permitted to bring suit in the
Philippines if it is suing on an isolated
transaction.
(6) Thus, the ascertainment of whether a foreign
corporation is merely suing on an isolated
transaction or is actually doing business in the
Philippines requires the elicitation of at least a
preponderant set of facts.
REAL PARTIES IN INTEREST; INDISPENSABLE

PARTIES; REPRESENTATIVES AS PARTIES;
NECESSARY PARTIES; INDIGENT PARTIES;
ALTERNATIVE DEFENDANTS
Note: A foreign corporation may be party to an action

in Philippine courts:
(a) If licensed to engage in business in the
Philippines, it may sue or be sued in our courts;
(b) If not licensed, it cannot sue, but it may be sued in
our courts;
(c) If not engaged in business in the Philippines, it
may sue in courts on a single isolated transaction,
but it cannot be sued in our courts on such
transaction.
REAL PARTY IN INTEREST [Rule 3, Sec.2]
(a) The party who stands to be benefited/injured by

the judgment in the suit;
(b) The party entitled to the avails of the suit.
Rules:
(a) Every action must be prosecuted or defended in
the name of the real party in interest. [Rule 3,
Sec.2]
(b) The partys interest must be direct, substantial
and material [Sumalo v. Litton (2006)].
(c) Husband and wife shall sue and be sued jointly,
except as provided by law [Rule 3, Sec. 4]
(d) A minor or a person alleged to be incompetent
may sue or be sued, with the assistance of his
father, mother, guardian, or if he has none, a
guardian ad litem. [Rule 3, Sec. 5]
(e) Minors (represented by their parents) are real
parties in interest under the principle of
intergenerational responsibility. [Oposa v.
Factoran (1993)]
(f) If a party becomes incompetent/ incapacitated
during the pendency of the action, the action
survives and may be continued by/against the
incompetent/ incapacitated assisted by his legal
guardian or guardian ad litem [Rule 3, Sec. 18]
Note: Interest within the meaning of the Rules of

Court means material interest or an interest in issue
to be affected by the decree or judgment of the case,
as distinguished from mere curiosity about the
question involved. [Ang v. Sps. Ang (2012)]
Lack of legal capacity to
sue
The plaintiffs general
disability to sue, such as
on account of minority,
insanity, incompetence,
lack
of
juridical
personality or any other
general disqualifications
It can be a ground for a
MTD [Rule 16 (1) (d)]
Lack of legal personality

to sue
The plaintiff is not the
real party in interest
It can be used as ground

for a MTD based on the
failure of complaint to
state a cause of action.
[Rule 16 (1) (g)]
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UP COLLEGE OF LAW
CIVIL PROCEDURE
Indispensable parties
[Rule 3, Sec. 7]
such an interest in the
controversy that a final
decree
would
necessarily affect their
rights so that the court
cannot proceed without
their presence.
INDISPENSABLE PARTIES
(a) An indispensable party is a real party-in-interest

without whom no final determination can be had
of an action. [Rule 3, Sec.7]
(b) A party who has such an interest in the
controversy or subject matter that a final
adjudication cannot be made, in his absence,
without injuring or affecting that interest. [Riano]
(c) The joinder of a party becomes compulsory when
the one involved is an indispensable party. [Riano
citing Rule 3, Sec.7]
(d) A person is NOT an indispensable party if his
interest in the controversy or subject matter is
separable from the interest of the other parties,
so that it will not necessarily be directly or
injuriously affected by a decree which does not
complrete justice between them. [Riano]
(a) Those acting in fiduciary capacity, such as a
trustee/guardian/executor/administrator or a
party authorized by law or ROC.
(b) The beneficiary shall be included in the title of the
case and shall be deemed to be the real party in
interest.
(c) An agent acting in his own name and for the
benefit of an undisclosed principal may sue or be
sued without joining the principal.
INDIGENT PARTY [Rule 3, Sec. 21]
(a) indigent One who has no money or property

sufficient and available for food, shelter and basic
necessities.
(b) While the authority to litigate as an indigent party
may be granted upon an ex parte application and
hearing, it may be contested by the adverse party
at any time before judgment is rendered.
Exception: If the contract involves things belonging

to the principal. [Art. 1883, CC]
NECESSARY PARTY [Rule 3, Sec. 8]
(a) One who is not indispensable but ought to be

joined as a party if complete relief is to be
accorded as to those already parties, or for a
complete determination or settlement of the
claim subject of the action
(b) Indispensable parties v. Necessary parties [taken
from 2011 Reviewer and Riano]
No valid judgment if
indispensable party is
not joined.
They are those with
Necessary parties [Rule 3,

Sec. 8]
presence is necessary to
adjudicate the whole
controversy but whose
interests are so far
separable that a final
decree can be made in
their absence without
affecting them.
(c) Whenever in any pleading in which a claim is

asserted a necessary party is not joined, the
pleader is under obligation to: (i) set forth the
name of the necessary party, if known, and (ii)
state the reason why the necessary party is
omitted. [Riano citing Rule 3, Sec. 9 par 1]
(d) The non-inclusion of a necessary party does not
prevent the court from proceeding in the action,
and the judgment rendered therein shall be
without prejudice to the rights of such necessary
party [Rule 3, Sec. 9 par 3]
REPRESENTATIVE AS PARTIES [Rule 3, Sec. 3]
Indispensable parties
[Rule 3, Sec. 7]
Must be joined under
any and all conditions,
his presence being a
sine qua non for the
exercise of judicial
power
If the court determines after hearing that the

party declared indigent has sufficient income or
property, the proper docket and other lawful fees
shall be assessed and collected by the clerk of
court.
(c) The authority to litigate as an indigent shall
include an exemption from:
o Payment of docket fees and other lawful
fees;
o Payment of TSN.
(d) The amount of docket and other lawful fees is a
lien on any judgment rendered in favor of
indigent party, unless court otherwise provides.
Necessary parties [Rule 3,

Sec. 8]
Should
be
joined
whenever possible; the
action can proceed even
in their absence because
their interest is separable
from
that
of
the
indispensable party
The
case
may be
determined in court but
the judgment therein will
not resolve the entire
controversy if a necessary
party is not joined
They are those whose
ALTERNATIVE DEFENDANTS [Rule 3, Sec. 13]
Where the plaintiff is uncertain against whom of

several persons he is entitled to relief, he may join
any or all of them in the alternative, although a right
to relief against one may be inconsistent with a right
to relief against the other.
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UP COLLEGE OF LAW
CIVIL PROCEDURE
COMPULSORY AND PERMISSIVE JOINDER OF

PARTIES
What it really contemplates is erroneous or

mistaken non-joinder and misjoinder or parties.
The rule presupposes that the original inclusion
had been made in the honest conviction that it
was proper and the subsequent dropping is
requested because it has turned out that such
inclusion was a mistake. [Riano citing Lim Tan
Hua v. Ramolete(1975)]
[Rule
3, Sec. 7]
Parties in interest without whom no final
determination can be had of an action shall be joined
either as plaintiffs or defendants
COMPULSORY JOINDER OF INDISPENSABLE PARTIES
PERMISSIVE JOINDER [Rule 3, Sec. 6]
CLASS SUIT
REQUISITES [Rule 3, Sec. 12]
(a) Subject matter of the controversy is one of
common/general interest to many persons;
(b) The persons are so numerous that it is
impracticable to join them all as parties (i.e.
impracticable to bring them all before the court);
(c) Parties bringing the class suit are sufficiently
numerous and representative of the class and can
fully protect the interests of all concerned;
(d) The representative sues/defends for the benefit
of all.
Parties can be joined, as plaintiffs or defendants, in

one single complaint or may themselves maintain or
be sued in separate suits.
Requisites [Regalado]:
Right to relief arises out of the same transaction or
series of transactions;
Note: SERIES OF TRANSACTIONS Transactions
connected with the same subject matter of the suit.
There is a question of law or fact common to all the
plaintiffs or defendants;
Any party in interest shall have the right to intervene

to protect his individual interest. [Rule 3, Sec. 12]
If a class suit is improperly brought, the action is
subject to dismissal regardless of the cause of action
[Rule 16, Sec 1 (d)].
Such joinder is not otherwise proscribed by the rules

on jurisdiction and venue.
MISJOINDER AND NON-JOINDER OF PARTIES
(a) A party is misjoined when he is made a party to
the action although he should not be impleaded.
A party is not joined when he is supposed to be
joined but is not impleaded in the action. (Riano)
(b) Neither misjoinder nor non-joinder of parties is a
ground for dismissal of an action. [Rule 3, Sec. 11]
(c) Parties may be dropped or added by order of the
court on motion of any party or on its own
initiative at any stage of the action and on such
terms as are just. [Rule 3, Sec.11]
(d) Any claim against a misjoined party may be
severed and proceeded with separately. [Rule 3,
Sec. 11]
(e) Non-joinder of an indispensable party is not a
ground for outright dismissal. Reasonable
opportunity must be given for his inclusion by
amendment of the complaint [Cortez v Avila
(1957)].
(f) Objections to defects in parties should be made
at the earliest opportunity.
(g) The moment such defect becomes apparent, a
motion to strike the names of the parties must be
made.
(h) Objections to misjoinder cannot be raised for the
first time on appeal [Lapanday Agricultural &
Development Corporation v. Estita (2005)].
(i) The rule on misjoinder or non-joinder of parties
does not comprehend whimsical and irrational
dropping or adding of parties in a complaint.
A taxpayer's suit or a stockholder's derivative suit is

in the nature of a class suit, although subject to the
other requisites of the corresponding governing law
especially on the issue of locus standi. [Regalado]
There is no class suit in an action filed by
associations of sugar planters to recover damages in
behalf of individual sugar planters for an allegedly
libelous article in an international magazine. There is
no common or general interest in reputation of a
specific individual. Each of the sugar planters has a
separate and distinct reputation in the community
not shared by the others. [Riano citing Newsweek,
Inc. v. Intermediate Appellate court (1986)]
A class suit does not require a commonality of
interest in the questions involved in the suit. What is
required by the Rules is a common or general
interest in the subject matter of the litigation. [Riano
citing Mathay v. Consolidated Bank &Trust Company
(1974)]
Class Suit
There is a single cause of
action pertaining to
numerous persons.
PAGE 21
Permissive Joinder of
Parties
There
are
multiple
causes
of
action
separately belonging to
several persons.
UP COLLEGE OF LAW
CIVIL PROCEDURE
CLASS SUIT AND DERIVATIVE SUIT, COMPARED
Counsels duty:
(a) Inform court within 30 days after such death of
the fact thereof;
(b) Give the name and address of the legal
representatives.
(Asked in the 2005 Bar Examination)

Class Suit
Derivative Suit
When the subject matter

of the controversy is one
of common or general
interest to many persons,
and the parties are so
numerous that it is
impracticable to bring
them all before the
court, one or more may
sue or defend for the
benefit of all. [Rule 3,
Sec. 12]
An action brought by
minority shareholders in
the name of the
corporation to redress
wrongs
committed
against it, for which the
directors refuse to sue.
Note: Failure to comply with this duty is a ground for

disciplinary action.
(a) The heirs may be substituted for the deceased
without requiring the appointment of an executor
or administrator.
It is a remedy designed
by equity and has been
the principal defense of
the
minority
shareholders
against
abuses by the majority.
(b) The court may appoint a guardian ad litem for the

minor heirs.
In a derivative action, the

real party in interest is
the corporation itself, not
the shareholders who
actually instituted it [Lim
v. Lim Yu (2001))
(d) If no legal representative is named or if the one so

name shall fail to appear within the specified
period, the court may order the opposing party to
procure the appointment of an executor or
administrator for the estate.
(c) The court shall order the legal representative(s)

to appear and be substituted within 30 days from
notice.
(e) The substitute defendant need not be

summoned. The order of substitution shall be
served upon the parties substituted for the court
to acquire jurisdiction over the substitute party
[Ferreria v Vda de Gonzales (1986)].
SUITS AGAINST ENTITIES WITHOUT JURIDICAL

PERSONALITY
REQUISITES [Rule 3, Sec.15]
(a) There are 2 or more persons not organized as a
juridical entity;
(b) They enter into a transaction;
(c) A wrong is committed against a 3rd person in the
course of such transaction.
Death or separation of a party who is a public officer

[Rule 3, Sec. 17]
Requisites:
(a) Public officer is a party to an action in his official
capacity;
(b) During the pendency of the action, he either
dies/resigns or otherwise ceases to hold office;
(c) It is satisfactorily shown to the court by any party,
within 30 days after the successor takes office,
(1) that there is a substantial need to
continue/maintain the action and
(2) The successor adopts/continues (or threatens
to do so) his predecessors action
(d) The party or officer affected was given reasonable
notice of the application therefore and accorded
an opportunity to be heard.
Effect: Persons associated in an entity without

juridical personality may be sued under the name by
which they are generally/commonly known, but they
cannot sue under such name. [Rule 3, Sec. 15]
The service of summons may be effected upon all the
defendants by serving upon any of them, or upon the
person in charge of the office or place of business
maintained under such name. [Rule 14, Sec. 8]
EFFECT OF DEATH OF PARTY LITIGANT
SUBSTITUTION OF PARTIES
Death of a party, where the claim is not extinguished

by the death of the party (e.g. cases involving
property and property rights [Bonilla v Barcena
(1976)]); [Rule 3, Sec. 16] (Asked in the 1998 and 1999
Bar Exams)
ACTION ON CONTRACTUAL MONEY CLAIMS
20]
[Rule 3, Sec.
Requisites:
(a) The action must primarily be for recovery of
money/debt or interest thereon;
(b) The claim arose from express/implied contract;
PAGE 22
UP COLLEGE OF LAW
CIVIL PROCEDURE
(c) Defendant dies before the entry of final judgment

in the court in which the action was pending.
(1) The defendants death will not result in the
dismissal of the action.
(2) The deceased shall be substituted by his legal
representatives in the manner provided for in
Rule 3, Sec. 16, and the action will continue
until the entry of final judgment (Asked in the
2000 Bar Exam)
(3) However, execution shall not issue in favor of
the winning plaintiff. It should be filed as a
claim against the decedents estate without
need of proving the claim.
General rule: The rule does not consider the

transferee an indispensable party. Hence, the action
may proceed without the need to implead him.
The case will be dismissed if the plaintiffs interest is

transferred to defendant unless there are several
plaintiffs, in which case the remaining plaintiffs can
proceed with their own cause of action.
Venue
Venue is the place, or the geographical area where
an action is to be filed and tried. In civil cases, it
relates only to the place of the suit and not to the
jurisdiction of the court. [Riano citing Manila Railroad
Company v. Attorney General (1911)]
VENUE VERSUS JURISDICTION [Riano]

DISTINCTIONS BETWEEN VENUE AND JURISDICTION
(Asked in the 2006 and 2008 Bar Exams)
Power of the court to

hear and decide a case
Jurisdiction over the
subject matter and over
the nature of the action
is conferred by law and
cannot-be waived
Procedural
May be changed by the
written agreement of the
parties
Substantive
Is fixed by law and
cannot be the subject of
the agreement of the
parties
Establishes a relation
between the court and
the subject matter
Lack of jurisdiction over
the subject matter is a
ground for a motu
proprio dismissal.
VENUE OF PERSONAL ACTIONS

At the plaintiffs election: [Rule 4, Sec. 2]
(a) Where the plaintiff or any of the principal
plaintiffs resides;
(b) Where the defendant or any of the principal
defendants resides;
(c) In case of a non-resident-defendant, where he
may be found.
Choosing the venue of an action is not left to a

plaintiffs caprice; the matter is regulated by the
Rules of Court. [Ang v. Sps. Ang (2012)]
Place where the action is

instituted
May be waived
Jurisdiction
VENUE OF REAL ACTIONS

(a) Shall be commenced and tried in the proper court
which has jurisdiction over the area wherein the
real property involved, or a portion thereof is
situated. [Rule 4, Sec. 1(1)]
(b) Forcible entry and detainer actions shall be
commenced and tried in the municipal court of
the municipality or city wherein the real property
involved, or a portion thereof, is situated. [Rule 4,
Sec. 1(2)]
(c) If the property is located at the boundaries of 2
places, file the case in either place (at the
plaintiffs option).
(d) If the case involves 2 properties located in 2
different places:
(1) If the properties are the object of the same
transaction, file it in any of the 2 places;
(2) If they are the objects of 2 distinct
transactions, separate actions should be filed
in each place unless properly joined.
Exception: When the substitution by or joinder of the

transferee is ordered by court.
Jurisdiction
Venue
Establishes a relation
between plaintiff and
defendant, or petitioner
and respondent
Not a ground for a motu
propio dismissal (except
in cases of summary
procedure; Rule 4, Rule
on Summary Procedure)
TRANSFER OF INTEREST DURING THE PENDENCY OF THE

ACTION [Rule 3, Sec. 19]
Venue
Note: The plaintiff or the defendant must be

residents of the place where the action has been
instituted at the time the action is commenced. [Ang
v. Sps. Ang (2012)]
PAGE 23
UP COLLEGE OF LAW
CIVIL PROCEDURE
VENUE OF ACTIONS AGAINST NON-RESIDENTS

[Rule 5, Sec. 3]
[Regalado, citing Hoechst Philippines v Torres

(1978)].
Non-resident found in the Philippines

(a) For personal actions Where the plaintiff resides;
(b) For real actions Where the property is located.
OTHER RULES ON VENUE

(a) Improper Venue: The Court may not motu propio
dismiss an action on the ground of improper
venue. [Dacoycoy v. IAC (1991)]
Non-resident not found in the Philippines An action

may be filed only when the case involves:
(a) Personal status of plaintiff - Where plaintiff
resides;
(b) Any property of said defendant located in the
Phil. - Where the property (or any portion thereof)
is situated/found.
Exception: In summary procedures.

(b) Change of Venue: The SC has the power to
change the venue to prevent a miscarriage of
justice. [Art. 8, Sec. 5, Consti]
(c) Waiver Of Venue:
(1) Until and unless the defendant objects to the
venue in a motion to dismiss prior to a
responsive pleading, the venue cannot truly be
said to have been improperly laid since for all
intents and purposes, the venue though
technically wrong may yet be considered
acceptable to the parties for whose
convenience the rules on venue had been
devised. Although venue is mandatory, it is
waivable. [Diaz v. Adiong (1993)]
(2) Means of waiving venue:
(i) Where parties validly agreed in writing
before the filing of the action on the
exclusive venue thereof [Rule 4, Sec 4 (b)];
and
(ii) Failure to raise improper venue as
affirmative defense or in motion to dismiss
WHEN THE RULES ON VENUE DO NOT APPLY

[Rule 4, Sec. 4]
(a) If a specific rule/law provides otherwise (e.g.
action for damages arising from libel);
(b) Stipulations as to Venue is permitted if the parties
have validly agreed
(1) in writing
(2) before the filing of the action
(3) on the exclusive venue
In the absence of qualifying restrictive words (e.g.
only/solely/exclusively in such court), venue
stipulation is merely permissive; that is, the
stipulated venue is in addition to the venue provided
for in the rules. [Polytrade Corp. v. Blanco (1969)]
The mere stipulation on the venue of an action,
however, is not enough to preclude parties from
bringing a case in other venues. The parties must be
able to show that such stipulation is exclusive. In the
absence of qualifying or restrictive words, the
stipulation should be deemed as merely an
agreement on an additional forum, not as limiting
venue to the specified place. [Riano citing Spouse
Lantin v. Lantion, (2006)]
Pleadings
DEFINITION
Pleadings are the written statements of the
respective claims and defenses of the parties,
submitted to the court for appropriate judgment
[Rule 6, Sec. 1]
EFFECTS OF STIPULATIONS ON VENUE

(a) To be binding, the parties must have agreed on
the exclusive nature of the venue of any
prospective action between them. The agreement
of parties must be restrictive and not permissive.
[Regalado]
(b) In the absence of qualifying restrictive words (e.g.
only/solely/exclusively in such court), venue
stipulation is merely permissive; that is, the
stipulated venue is in addition to the venue
provided for in the rules. [Polytrade Corp. v.
Blanco (1969)]
(c) The court may declare agreements on venue as
contrary to public policy if such stipulation
unjustly denies a party a fair opportunity to file
suit in the place designated by the Rules
Pleading
Motion
Purpose: To submit a
claim/defense
for
appropriate judgment
May be initiatory
Purpose: To apply for an

order not included in the
judgment
Cannot be initiatory as
they are always made in
a case already filed in
court.
May be filed even after
judgment
Always
filed
judgment
PAGE 24
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CIVIL PROCEDURE
KINDS OF PLEADINGS
PLEADINGS ALLOWED [Rule 6, Sec. 2]
(1) Complaint;
(2) Answer;
(3) Counterclaim;
(4) Cross-claim;
(5) 3rd-party Complaint,
(6) Complaint-in-intervention;
(7) Reply;
ANSWER [Rule 6, Sec. 4]
Definition
The pleading where the defendant sets forth his
affirmative/negative defenses. It may also be the
response to a counterclaim or a cross-claim.
Two kinds of defenses that may be set forth in the
answer [Rule 6, Sec. 5]
(a) Negative Defenses Specific denials of the
material facts alleged in the pleading of the
claimant essential to his cause of action.
COMPLAINT [Rule 6, Sec. 3]
Definition
The pleading alleging the plaintiffs cause/s of
action. It should contain a concise statement of the
ultimate facts constituting the plaintiffs cause/s of
action, not evidentiary facts or legal conclusions.
Negative Pregnant - Denial pregnant with an

admission. It is a denial pregnant with the
admission of the substantial facts in the pleading
responded to which are not squarely denied. It is
in effect an admission of the averment it is
directed to. [Philamgen v. Sweet Lines (1993)]
It shall contain:
(a) in a methodical and logical form
(b) a plain, concise and direct statement of ultimate
facts on which the plaintiff relies for his claim,
(c) omitting statement of mere evidentiary facts.
[Rule 8, Sec. 1]
(b) Affirmative Defenses Allegations of new matters

which, while hypothetically admitting the
material allegations in the claimants pleading,
would nevertheless prevent/bar recovery by him.
It includes fraud, prescription, release, payment
and any other matter by way of confession and
avoidance.
Its function is to inform the defendant clearly and

definitely of claims made against him so that he may
be prepared to meet the issues at trial.
COUNTERCLAIMS [Rule 6, Sec. 6]
It should inform the defendant of all material facts

on which the plaintiff relies to support his demand.
Definition
Any claim which a defending party may have against
an opposing party.
(a) A counterclaim is in the nature of a crosscomplaint. Although it may be alleged in the
answer, it is not part of the answer.
(b) Upon its filing, the same proceedings are had as
in the original complaint.
(c) For this reason, it must be answered 10 days from
service [Rule 11, Sec 4] (Asked in the 2002 and
2008 Bar Exams).
It should state the theory of a cause of action which

forms the bases of plaintiffs claim of liability.
[Tantuico v. Republic (1991)]
Ultimate Facts Essential facts constituting the
plaintiffs cause of action. A fact is essential if it
cannot be stricken out without leaving the statement
of the cause of action insufficient. [Remitere v.
Montinola (1966)]
How to raise counterclaims

Included in the answer:
A compulsory counterclaim or a cross-claim that a
defending party has at the time he files his answer
shall be contained therein. [Rule 11, Sec. 8]
Not ultimate facts:

(a) Evidentiary or immaterial facts;
(b) Legal conclusions, conclusions or inferences of
facts from facts not stated, or incorrect inferences
or conclusions from facts stated;
(c) Conclusions of law alleged in the complaint are
not binding on the court.
(d) The details of probative matter or particulars of
evidence, statements of law, inferences and
arguments.
Exception: Pleadings may be amended under Rule 11,

Sec. 10:
(a) By leave of court;
(b) Before judgment;
(c) On the grounds of:
(1) Oversight;
(2) Inadvertence;
(3) Excusable neglect;
(4) When justice requires.
Test of sufficiency of the facts alleged in the

complaint: WON upon the averment of facts, a valid
judgment may be properly rendered [Pamintan v.
Costales (1914)].
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After the answer [Rule 11, Sec. 9]

(a) Counterclaims/cross-claims arising after the
answer,
(b) with the courts permission,
(c) may be presented as a counterclaim/cross-claim
by supplemental pleading before judgment.
(a) It must arise out of, or be necessarily connected

with, the transaction/occurrence that is the
subject matter of the opposing party's claim;
(b) It does not require for its adjudication the
presence of 3rd parties of whom the court cannot
acquire jurisdiction;
(c) It must be within the courts jurisdiction both as
to the amount and the nature. [Regalado, citing
Quintanilla v CA (1997)]
Rules on counterclaims
(a) In an original action before the RTC, the
counterclaim may be considered compulsory
regardless of the amount. [Rule 6, Sec. 7]
(b) In the case of Agustin v. Bacalan (1985), if a
counterclaim is filed in the MTC in excess of its
jurisdictional amount, the excess is considered
waived.
(c) But in Calo v. Ajax (1968), the remedy where a
counterclaim is beyond the jurisdiction of the
MTC is to set off the claims and file a separate
action to collect the balance.
General rule: A compulsory counterclaim not set up in

the answer is deemed barred.
Exception: If it is a counterclaim which either
matured or was acquired by a party after serving his
answer. In this case, it may be pleaded by filing a
supplemental answer or pleading before judgment.
[Rule 11, Sec. 9]
Note:
(a) The filing of a MTD and the setting up of a
compulsory counterclaim are incompatible
remedies.
(b) In the event that a defending party has a ground
for dismissal and a compulsory counterclaim at
the same time, he must choose only one remedy.
(c) If he decides to file a MTD, he will lose his
counterclaim. But if he opts to set up his
counterclaim, he may still plead his ground for
dismissal as an affirmative defense in his answer.
(d) If any of the grounds to dismiss under Rule 17,
Sec. 3 arise, the proper recourse for a defendant
who desires to pursue his compulsory
counterclaim in the same proceeding is not a
MTD.
(e) Instead, he should only move to have the plaintiff
declared non-suited on the complaint so that the
latter can no longer present his evidence thereon,
and simultaneously move that he be declared as
in default on the compulsory counterclaim, and
reserve the right to present evidence ex parte on
his compulsory counterclaim. [BA Finance v. Co
(1993)]
Kinds of counterclaims
Compulsory counterclaim
Permissive counterclaim
One which arises out of

or
is
necessarily
connected with the
transaction
or
occurrence -that is the
subject matter of the
opposing party's claim.
Does not require for its
adjudication
the
presence of third parties
of whom the court
cannot
acquire
jurisdiction.
Barred if not set up in
the action.
Need not be answered;
no default.
It does not arise out of

nor is it necessarily
connected with the
subject matter of the
opposing party's claim.
May require for its

adjudication
the
presence of third parties
over whom the court
cannot
acquire
jurisdiction.
Not barred even if not
set up in the action.
Must
be
answered,
otherwise, the defendant
can be declared in
default.
(a) A permissive counterclaim requires the payment
of docket fees. [Sun Insurance v. Asuncion (1989)]
(b) A plaintiff who fails or chooses not to answer a
compulsory counterclaim may not be declared in
default, principally because the issues raised in
the counterclaim are deemed automatically
joined by the allegations in the complaint. [Gojo v.
Goyala (1970)]
Permissive counterclaim
[NOTE: Please also refer to table comparing
compulsory and permissive counterclaims]
Test to determine whether a counterclaim is
compulsory or permissive
Logical Relationship Test: Where conducting separate
trials of the respective claims would entail
substantial duplication of effort and time and
involves many of the same factual and legal issues.
[Meliton v. CA (1992)]
Requisites of a compulsory counterclaim [Rule 6, Sec
7] (Asked in the 1998 bar exam)
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Effect on the Counterclaim when the complaint is

dismissed
Under Section 3, Rule 17, dismissal of action due to
plaintiffs fault shall be without prejudice to the
defendants right to prosecute his counterclaim in
the same/separate action.
(b) Counter-Cross-claim - A claim filed against an

original cross-claimant.
THIRD (FOURTH, ETC.) PARTY COMPLAINTS
[Rule 6, Sec.
11]
[NOTE: See also table in immediately preceding
subsection]
CROSS-CLAIMS [Rule 6, Sec. 8]
Requisites for cross-claim

(a) A claim by one party against a co-party;
(b) It must arise out of the subject matter of the
complaint or of the counterclaim;
(c) The cross-claimant is prejudiced by the claim
against him by the opposing party.
Definition: It is a claim that a defending party may,

with leave of court, file against a person not a party
to the action for contribution, indemnity, subrogation
or any other relief, in respect of his opponent's claim.
th
There could also be a 4 /etc.-party complaint with

the same purpose and function.
General rule: A cross-claim is always compulsory. A

cross-claim not set up shall be barred. [Rule 9, Sec.
2]
3rd-party complaint
Exceptions:
(a) When it is outside the courts jurisdiction;
(b) If the court cannot acquire jurisdiction over 3rd
parties whose presence is necessary for the
adjudication of said cross-claim. In this case, the
cross-claim is considered permissive.
Brings into the action a

3rd person who was not
originally a party
Initiative is with the
person already a party to
the action
The dismissal of the complaint carries with it the

dismissal of a cross-claim which is purely
defensive, but not a cross-claim seeking an
affirmative relief. [Torres v. CA (1973)]
Cross Claim, Counterclaim and Third Party Complaint
rd
Cross-claim
Counterclaim
3 Party
complaint
Against a co- Against
an Against
a
party
opposing party
person not a
party to the
action
Must
arise May arise out of or Must be in
out of the be
necessarily respect of the
transaction
connected
with opponents
that is the the transaction or (plaintiffs)
subject
the subject matter claim
matter of the of the opposing
original
partys
claim
action or of a (compulsory
counterclaim counterclaim), or it
therein
may
not
(permissive
counterclaim)
Complaint in intervention
Same
Initiative is with a nonparty who seeks to join
the action
3rd-party complaint
Counterclaim
Need not be within the

jurisdiction of the court
trying the main case
Diminishes/defeats the
recovery sought by the
opposing party
Must be within the

trying the main case
Need
not
diminish/defeat
the
recovery sought by the
opposing party
May exceed in amount
or be different in kind
from that sought in the
original complaint
Cannot
exceed
the
amount stated in the
original complaint
Tests to determine whether the 3rd-party complaint is

in respect of plaintiff's claim [Capayas v. CFI (1946)]
(a) WON it arises out of the same transaction on
which the plaintiff's claim is based, or although
arising out of another/different transaction, is
connected with the plaintiffs claim;
(b) WON the 3rd-party defendant would be liable to
the plaintiff or to the defendant for all/part of the
plaintiffs claim against the original defendant;
(c) WON the 3rd-party defendant may assert any
defenses which the 3rd-party plaintiff has or may
have to the plaintiffs claim.
Counter-counterclaims and counter-cross-claims

[Rule 6, Sec. 9]
(a) Counter-Counterclaim - A claim asserted against
an original counter-claimant.
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UP COLLEGE OF LAW
CIVIL PROCEDURE
Note:
(a) Leave of court to file a 3rd-party complaint may
be obtained by motion under Rule 15.
th
(b) Summons on 3rd (4 /etc.) party defendant
must be served for the court to obtain jurisdiction
over his person, since he is not an original party.
(c) Where the trial court has jurisdiction over the
main case, it also has jurisdiction over the 3rdparty complaint, regardless of the amount
involved as a 3rd-party complaint is merely
auxiliary to and is a continuation of the main
action. [Republic v. Central Surety (1968)]
rd
(d) A 3 -party complaint is not proper in an action
for declaratory relief.
(c) It is not an absolute right as it can be secured

only in accordance with the terms of applicable
statute or rule. [Office of Ombudsman v.
Samaniego (2010)]
Requisites for valid intervention
(a) There must be a motion for intervention filed
before rendition of judgment by the trial court.
(b) Movant must show in his motion that he has a:
(1) legal interest in (1) the matter of litigation, (2)
the success of either of the parties in the
action or (3) against both parties.
(2) that the movant is so situated as to be
adversely affected by a distribution or other
disposition of property in the custody of the
court or an officer thereof
(3) that the intervention must not unduly delay or
prejudice the adjudication of the rights of the
original parties and that the intervenors rights
may not be fully protected in a separate
proceeding.
COMPLAINT-IN-INTERVENTION
Pleadings in intervention [Rule 19, Sec. 3]

(a) Complaint-in-intervention If intervenor asserts a
claim against either or all of the original parties.
(b) Answer-in-intervention If intervenor unites with
the defending party in resisting a claim against
the latter.
Meaning of legal interest

Interest must be of a direct and immediate character
so that the intervenor will either gain or lose by the
direct legal operation of the judgment. The interest
must be actual and material, a concern which is
more than mere curiosity, or academic or
sentimental desire; it must not be indirect and
contingent, indirect and remote, conjectural,
consequential or collateral. [Virra Mall Tenants v.
Virra Mall (2011)]
Definition
INTERVENTION is a remedy by which a third party,
not originally impleaded in a proceeding, becomes a
litigant therein to enable him to protect or preserve a
right or interest which may be affected by such
proceeding.
Its purpose is "to settle in one action and by a single
judgment the whole controversy (among) the
persons involved." [First Philippine Holdings v.
Sandiganbayan (1996); Rule 19]
Remedy for denial of motion for intervention

(a) The movant may file a motion for reconsideration
since the denial of a motion for intervention is an
interlocutory order.
(b) Alleging grave abuse of discretion, movant can
also file a certiorari case.
When allowed
Intervention shall be allowed when a person has:
(a) a legal interest in the matter in litigation;
(b) or in the success of any of the parties;
(c) or an interest against the parties; and
(d) when he is so situated as to be adversely affected
by a distribution or disposition of property in the
custody of the court or of an officer thereof. [First
Philippine Holdings v. Sandiganbayan (1996)]
Not an independent action
Intervention is not an independent action, but is
ancillary and supplemental to an existing
litigation.
[First
Philippine
Holdings
v.
Sandiganbayan (1996)]
(a) It is neither compulsory nor mandatory but only
optional and permissive. [Mabayo v. CA (2002)]
(b) The Court has full discretion in permitting or
disallowing intervention, which must be exercised
judiciously and only after consideration of all the
circumstances obtaining in the case. [Mago v. CA
(1999)]
REPLY [Rule 6, Sec. 10]
Definition: The plaintiffs response to the defendant's

answer,
(a) the function of which is to deny or allege facts in
denial or in avoidance of new matters alleged by
way of defense in the answer and
(b) thereby join or make issue as to such new
matters.
Effect of failure to reply (Asked in the 2000 bar
exam)
General rule: Filing a reply is merely optional. New
facts that were alleged in the answer are deemed
controverted should a party fail to reply thereto.
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CIVIL PROCEDURE
Exception: Reply is required:

(a) Where the answer is based on an actionable
document. [Rule 8, Sec. 8]
(b) Where the answer alleges the defense of usury.
[Rule 8, Sec. 11]
The defendant may also elect to file a counterclaim

against the plaintiff that does not arise out of the
same transaction or occurrence, provided that the
amount and nature thereof are within the coverage
of this Rule and the prescribed docket and other
legal fees are paid.
PLEADINGS ALLOWED IN SMALL CLAIM CASES

AND CASES COVERED BY THE RULES ON
SUMMARY PROCEDURE
Under the Revised Rules on Summary Procedure the
only pleadings allowed to be filed are [Sec. 3]:
(a) complaints;
(b) compulsory counterclaims and cross-claims
pleaded in the answer; and
(c) the answers thereto.
Note: Courts decision shall be contained in Form 13SCC

PROHIBITED PLEADINGS AND MOTIONS:
(a) Motion to dismiss the complaint except on the

ground of lack of jurisdiction;
judgment, or for reopening of trial;
affidavits, or any other paper;
(f) Memoranda;
(g) Petition for certiorari, mandamus, or prohibition
court;
(h) Motion to declare the defendant in default;
(i) Dilatory motions for postponement;
(j) Reply;
(k) Third-party complaints; and
(l) Interventions.
PARTS OF A PLEADING [Rule 7, Secs. 1 to 3]
PROHIBITED PLEADINGS, MOTIONS OR PETITIONS
[Sec.
19]:
(a) Motion to dismiss the complaint or to quash the
complaint or information except on the ground of
lack of jurisdiction over the subject matter, or
failure to comply with required barangay
conciliation proceedings;
judgment, or for opening of trial;
affidavits or any other paper;
(f) Petition for certiorari, mandamus, or prohibition
court;
(g) Motion to declare the defendant in default;
(h) Dilatory motions for postponement;
(i) Reply;
(j) Third party complaints; and
(k) Interventions.
CAPTION
Caption - Courts name, actions title (i.e. parties

names) and docket number.
Body - Pleadings designation, allegations of party's
claims/defenses, relief prayed for and pleadings
date.
(a) Paragraphs must be numbered, and each
paragraph number must contain a single set of
circumstances
(b) Headings: if more than one cause of action, use
"1st cause of action," 2nd cause of action," etc.
(c) Specify relief sought, but it may add a general
prayer for such further/other relief as may be
deemed just/equitable.
(d) Every pleading shall be dated.
FORMS USED UNDER THE RULE OF PROCEDURE UNDER

SMALL CLAIMS CASES:
(a) Instead of filing complaint, a Statement of Claim

using Form 1-SCC shall be filed [Sec. 5]
(b) Answer shall be filed by way of a Response using
Form 3-SCC [Sec. 10]
(c) Defendant may file counterclaim if he possesses
a claim against the plaintiff that
(1) is within the coverage of this Rule, exclusive of
interest and costs;
(2) arises out of the same transaction or event
that is the subject matter of the plaintiffs
claim;
(3) does not require for its adjudication the
joinder of third parties; and
(4) is not the subject of another pending action,
the claim shall be filed as a counterclaim in
the Response; otherwise, the defendant shall
be barred from suit on the counterclaim.
SIGNATURE AND ADDRESS
Pleading must be signed by the party/counsel. State

address (not PO box) in either case.
VERIFICATION AND CERTIFICATION
SHOPPING [Rule 7, Sec. 4]
AGAINST
FORUM
Verification
Pleadings need not be verified, unless otherwise
provided by the law/rules.
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UP COLLEGE OF LAW
CIVIL PROCEDURE
(2) in order that the litigant may have ample

opportunity to prove their respective claims,
and possible denial of substantial justice, due
to technicalities, may be avoided. [Gerales v.
CA (1993)]
How a Pleading is Verified [Rule 7, Sec 4]

By an affidavit:
(a) That the affiant read the pleading;
(b) That the allegations therein are true and correct
of his personal knowledge or based on authentic
documents.
Requirements of a corporation executing the

verification/certification of non-forum shopping
Only individuals vested with authority by a valid board
resolution may sign the certificate of non-forum
shopping in behalf of a corporation. In addition, the
Court has required that proof of said authority must
be attached. Failure to provide a certificate of nonforum shopping is sufficient ground to dismiss the
petition. Likewise, the petition is subject to dismissal
if a certification was submitted unaccompanied by
proof of the signatorys authority. [PAL v. FASAP
(2006)]
Certification of Non-Forum Shopping (CNFS) [Rule 7,

Sec. 5]
Definition: The filing of multiple suits in different
courts, simultaneously or successively, involving the
same parties, to ask the courts to rule on the
same/related causes and/or to grant the same or
substantially the same relief. [T'Boli Agro-Industrial
Development, Inc. (TADI) v. Solidapsi (2002)] (Asked
in the 2006 Bar Exam)
Test to Determine WON there is Forum Shopping
(ASKED IN THE 2002 BAR EXAM) - WON in the 2 or
more cases pending, there is identity of:
(a) Parties;
(b) Rights or causes of action;
(c) Relief sought.
EFFECT OF THE SIGNATURE OF COUNSEL IN A PLEADING
(a) Counsels signature is a certification that:

(1) He has read the pleading;
(2) To the best of his knowledge, information and
belief there is good ground to support it;
(3) It is not interposed for delay.
(b) An unsigned pleading produces no legal effect.
(c) However, the court may allow such deficiency to
be remedied if it shall appear that the same was
due to inadvertence and not intended for delay.
The CNFS is to be executed by the petitioner, not by

the counsel.
CNFS is required only for complaints or initiatory
pleadings (e.g. permissive counterclaim, cross-claim
etc.).
ALLEGATIONS IN A PLEADING
CNFS is not required in a compulsory counterclaim.

A counterclaim is not an initiatory pleading. [UST
Hospital v. Surla (1998)]
MANNER OF MAKING ALLEGATIONS
In general [Rule 8, Sec. 1]

(a) In a methodical and logical form.
(b) Plain, concise and direct statement of the
ultimate facts on which the party pleading relies
for his claim/defense.
(c) Omit evidentiary facts.
(d) If defense relied on is based on law, cite the
provisions and their applicability.
The lack of certification against forum shopping is

not curable by mere amendment of a complaint, but
shall be a cause for the dismissal of the case without
prejudice. The general rule is that subsequent
compliance with the requirements will not excuse a
party's failure to comply in the first
instance. [Ramirez v. Mar Fishing (2012)]
Condition precedent - a general averment of the

performance or occurrence of all conditions
precedent shall be sufficient [Rule 8, Sec. 3]
Effect of Submission of False CNFS or NonSubmission of CNFS

(a) Indirect contempt;
(b) Administrative and criminal actions.
Fraud, mistake, malice, intent, knowledge and other

condition of the mind, judgments, official documents
or acts - Circumstances constituting fraud or mistake
must be stated with particularity while malice, intent,
knowledge or other condition of the mind of a person
may be averred generally [Rule 8, Sec. 5]
Effect of Willful and Deliberate Forum Shopping

(a) Ground for summary dismissal of the case with
prejudice;
(b) Direct contempt and administrative sanctions.
(1) Pleadings as well as remedial laws should be
liberally construed
Facts that may be Averred Generally

(a) Conditions precedent; but there must still be an
allegation that the specific condition precedent
has been complied with, otherwise it will be
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dismissed for lack of cause of action; [Rule 8, Sec.

3]
(b) Capacity to sue or be sued;
(c) Capacity to sue or be sued in a representative
capacity; [Rule 8, Sec. 4]
(d) Legal existence of an organization;
A party desiring to raise an issue as to the legal
existence or capacity of any party to sue or be
sued in a representative capacity shall do so by
specific denial which shall include supporting
particulars within the pleader's knowledge. [Rule
8, Sec 4]
(e) Malice/intent/knowledge or other condition of the
mind; [Rule 8, Sec. 5]
(f) Judgments of domestic/foreign courts, tribunals,
boards or officers (without need to show
jurisdiction); [Rule 8, Sec. 6]
(g) Official documents/acts. [Rule 8, Sec. 9]
Facts that must be Averred Particularly
Circumstances showing fraud/mistake
averments of fraud/mistake [Rule 8, Sec. 5]
in
(3) Disavowal of knowledge by an allegation of lack

of knowledge or information sufficient to form a
belief as to the truth of the averment in the
opposing party's pleading. This does not apply
where the fact as to which want of knowledge is
asserted is, to the knowledge of the court, so
plain and necessarily within the defendant's
knowledge that his averment of ignorance must
be palpably untrue.
Note:
General rule: Allegations not specifically denied are
deemed admitted [Rule 8, Sec. 11]
Exceptions:
(a) Allegations as to the amount of unliquidated
damages;
(b) Allegations immaterial to the cause of action;
(c) Allegations of merely evidentiary or immaterial
facts may be expunged from the pleading or may
be stricken out on motion. [Rule 8, Sec. 12]
(d) Conclusion of law.
all
PLEADING AN ACTIONABLE DOCUMENT
Actionable document
A document which is really the basis of the cause of
action (or defense), and not merely evidentiary
thereof. [Rule 8, Sec. 7]
Kinds of denial (Asked in the 2004 Bar Exam)

(a) Specific denial Specifies each material
allegation of fact the truth of which he does not
admit, and sets forth the substance of the
matters upon which he relies to support his
denial. [Rule 8, Sec. 10]
(b) Denial with qualification - Specifies so much of it
as is true and material, and deny the remainder.
(c) Specific denial for lack of knowledge/information
sufficient to form as belief as to the truth of a
material averment made in the complaint.
(d) Specific denial under oath - Contests the
authenticity or due execution of an actionable
Genuineness and due execution of an actionable

instrument shall be deemed admitted unless the
adverse party, under oath, specifically denies them,
and sets forth what he claims to be the facts. [Rule
8, Sec. 8]
Exception to the requirement of an oath: when the
adverse party does not appear to be a party to the
instrument. [Donato v. CA (1993)]
How an action or defense may be based on a
document:
(a) By copying a substantial portion of the document
into the pleading;
(b) By annexing /incorporating the document into
the pleading;
(c) By both copying and annexing document into the
pleading.
Disciplinary Action on Counsel Regarding Pleadings

[Rule 7, Sec. 3]
(a) Deliberately filing an unsigned pleading;
(b) Deliberately signing a pleading in violation of the
Rules;
(c) Alleging scandalous/Indecent matter in the
pleading;
(d) Failing to promptly report a change of his
address.
SPECIFIC DENIALS
Three Ways of Making a Specific Denial

(1) Specific absolute denial by specifically denying
the averment and, whenever practicable, setting
forth the substance of the matters relied upon for
such denial.
Effect of failure to make specific denials

General rule: Defenses and objections not pleaded
either in a MTD or in the answer, are deemed waived.
[Rule 9, Sec. 1]
Exceptions:
(a) Lack of jurisdiction over the subject matter;
(b) Litis pendentia;
(2) Partial specific denial part admission and part

denial;
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(c) Res judicata;

(d) Prescription
WHEN A DECLARATION OF DEFAULT IS PROPER
(a) Court validly acquired jurisdiction over the

defendants person, either by service of summons
or voluntary appearance;
(b) Defendant fails to answer within the time allowed
therefor;
(c) Motion to declare the defendant in default;
(d) Notice to the defendant by serving upon him a
copy of such motion;
(e) Proof of such failure to answer.
When a specific denial requires an oath - Contests the

authenticity or due execution of an actionable
EFFECT OF FAILURE TO PLEAD
FAILURE TO PLEAD DEFENSES AND OBJECTIONS
General rule: Defenses and objections not pleaded in

answer or motion to dismiss are deemed waived.
(Omnibus Motion Rule) [Rule 9]
(Asked in the 1999

Bar Exam) [Rule 9, Sec 3(a)]
A defendant who fails to file an answer may, upon
motion, be declared by the court in default. Loss of
standing in court, the forfeiture of ones right as a
party litigant, contestant or legal adversary, is the
consequence of an order of default. A party in
default loses his right to present his defense, control
the proceedings, and examine or cross-examine
witnesses. He has no right to expect that his
pleadings would be acted upon by the court nor may
be object to or refute evidence or motions filed
against him. [Ortero v. Tan (2012)]
EFFECT OF AN ORDER OF DEFAULT
Exceptions:
(a) Lack of jurisdiction over the subject matter;
(b) Litis pendentia between same parties for the
same cause
(c) Res judicata
(d) Action barred by statute of limitations.
FAILURE TO PLEAD A COMPULSORY COUNTERCLAIM AND
CROSS-CLAIM
General Rule: A compulsory counterclaim not set up
is considered barred. [Rule 9, Sec. 2]
The court shall proceed to render judgment granting

the claimant relief as his pleading may warrant,
unless the court in its discretion requires the
claimant to submit evidence. Such reception of
evidence may be delegated to the clerk of court.
Exception: If due to oversight, inadvertence,

excusable neglect, etc. the compulsory counterclaim,
with leave of court, may be set up by amendment
before judgment. [Rule 11, Sec. 10]
The party in default shall be entitled to notice of

subsequent proceedings but not to take part in the
trial.
(a) A defendant declared in default cannot take part
in the trial, but he cannot be disqualified from
testifying as a witness in favor of non-defaulting
defendants. [Cavili v. Florendo (1987)]
(b) A party in default is entitled to notice of:
(1) Motion to declare him in default;
(2) Order declaring him in default;
(3) Subsequent proceedings;
(4) Service of final orders and judgments.
Cross-claim
A cross-claim is always compulsory. A cross-claim
not set up shall be barred. [Rule 9, Sec. 2]
DEFAULT [Rule 9, Sec. 3]
Definition: Failure of the defendant to answer within
the proper period. It is not his failure to appear nor
his failure to present evidence (Asked in the 2000
and 2001 Bar Exams)
Order of default
Judgment by default
Issued by the court on

plaintiffs motion, for
failure of the defendant
to file his responsive
pleading seasonably
Interlocutory
-Not
appealable
Rendered by the court

following a default order
or after it received ex
parte plaintiffs evidence
Note: A defending party declared in default retains

the right to appeal from the judgment by default.
However, the grounds that may be raised in such an
appeal are restricted to any of the following:
(a) the failure of the plaintiff to prove the material
allegations of the complaint;
(b) the decision is contrary to law; and
(c) the amount of judgment is excessive or different
in kind from that prayed for. [Ortero v. Tan (2012)]
Final Appealable
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RELIEF FROM AN ORDER OF DEFAULT [Rule 9, Sec 3(b)]
(a) Before judgment, a party declared in default may

file a motion under oath to set aside the order of
default upon proper showing that:
(1) His failure to answer was due to fraud,
accident, mistake or excusable negligence;
and that
(2) He has a meritorious defense.
(b) In such case, the order of default may be set aside
on terms and conditions as justice requires.
(c) An order of default is an interlocutory order which

is not appealable. A judgment by default is a final
disposition of the case and is appealable.
[MERALCO v. La Campana Food Products (1995)]
(d) A petition for certiorari under Rule 65, although
not a substitute for an available or lost appeal,
may be invoked while the orders of the lower
court are issued without or in excess of
jurisdiction.
(e) Judgment by default being appealable, appeal
should be perfected within 15 days from receipt of
copy of order denying MFR of default judgment.
[Oriental Media v. CA (1995)]
(f) A satisfactory showing by the movant of the
existence of fraud, accident, mistake or excusable
neglect is an indispensable requirement for the
setting aside of a judgment of default or an order
of default.
(g) A meritorious defense is only one of the two
conditions. The meritorious defense must concur
with the satisfactory reason for the nonappearance of the defaulted party. If there is no
such reason, the appropriate remedy is an
ordinary appeal under Rule 41, Sec. 2. [Ramnani
v. CA (1993)]
(h) The jurisdiction was properly acquired by the TC
over the defendants person; he was therefore
properly declared in default for not having filed
any answer.
(i) Despite his failure to file a motion to set aside the
declaration of default, he has the right to appeal
the default judgment.
(j) But in the appeal, only the evidence of the
petitioner may be considered, respondent not
having adduced any defense evidence. [Boticano
v. Chu (1987)]
Remedies of a party declared in default

(a) Pleadings, as well as remedial laws, should be
liberally construed in order that litigants may
have ample opportunity to prove their respective
claims, and possible denial of substantial
justice. [Gerales v. CA (1993)]
(b) Dulos v. CA (1990)
At any time after the discovery
of default and before judgment,
defendant may file a motion
Motion to Set under oath to set aside order of
Aside Order of default on the ground that his
Default [Rule 9, failure to file an answer or
Sec. 3(B)]
appear on the date set for the
pre-trial was due to fraud,
accident mistake of law, and
excusable negligence and that
he has a meritorious defense
(a) If the judgment has already
been rendered when the
defendant discovered the
default, but before the same
became final and executory.
(b) It should be filed within the
Motion for New
period for perfecting an
Trial [Rule 37, Sec.
appeal. Timely filing thereof
1(A)]
interrupts
the
15-day
reglementary period for an
appeal.
(c) It is required that defendant
file first a motion to lift order
of default to regain his
standing. [Tan v. CA (1997)]
Petition for Relief
from
Order,
Judgment or Other
Proceedings [Rule
38, Sec. 1 And 2]
Appeal from the
RTC [Rule 41, Sec.
1]
EFFECT OF A PARTIAL DEFAULT [Rule 9, Sec 3(c)]
If the pleading asserting a claim states a common

cause of action against several defending parties,
and some of the defending parties answer while the
others fail, the court shall try the case against all
defendants upon the answers filed and render
judgment upon the evidence presented.
If the defendant discovered the

default after the judgment has
become final and executory
Exception: If the defense is personal to the one who

answered; in which case, it will not benefit those who
did not answer.
EXTENT OF RELIEF
The defendant may also appeal

from the judgment rendered
against him as contrary to the
evidence or the law, even if he
did not present a petition to set
aside the order of default
Extent of relief to be awarded

The award shall not exceed the amount or be
different in kind from that prayed for; nor award
unliquidated damages.
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Rationale: It is presumed that where the relief

demanded is greater or different in kind, defendant
would not have allowed himself to be declared in
default.
Lesaca v. CA (1992): A defendant who already filed an

answer cannot be declared in default. Only when
the defendant fails to file an answer to the complaint
may the court proceed to render judgment.
Datu Samad Mangelen v. CA (1992): In a judgment

based on evidence presented ex parte, judgment
should not exceed the amount or be different in kind
from that prayed for.
Bayog v. Natino (1996): The Revised Rules on

Summary Procedure does not provide that an answer
filed after the reglementary period should be
expunged from the records.
On the other hand, in a judgment where an answer

was filed but defendant did not appear at the
hearing, the award may exceed the amount or be
different in kind from that prayed for.
As a matter of fact, there is no provision for an entry

of default if a defendant fails to file his answer.
The defense of LOJ may have even been raised by
the defendant in a MTD as an exception to the rule
on prohibited pleadings in the Revised Rule on
Summary Procedure. Such a motion is allowed under
Sec. 19(a) thereof.
ACTIONS WHERE DEFAULT ARE NOT ALLOWED
Cases where no defaults are allowed [Rule 9, Sec 3(e)]

(a) Annulment of marriage; Declaration of nullity of
marriage; Legal Separation;
Malanyaon v. Sunga (1992): Where the failure to

appear at the pre-trial hearing was uncontrovertedly
due to illness, the default order may be set aside on
the ground of accident over which petitioner had no
control.
Here, the court shall order the prosecuting

attorney to investigate WON parties are colluding
and, if there is no collusion, to intervene from the
State to ensure that evidence is not fabricated.
(b) Special civil actions of certiorari, prohibition and
mandamus, where comment (instead of an
answer) is required to be filed.
Also, the order of arrest was illegal as there is

nothing in the ROC which authorizes such a
consequence of a default order.
Failure to appear at pre-trial

Who fails to
Effect
appear
Plaintiff
Cause for dismissal of the
action which will be with
prejudice, unless otherwise
ordered by the court
Defendant
Cause to allow plaintiff to
present evidence ex parte, and
court to render judgment on
the basis thereof
Default by defendant
(Rule 9, Sec. 3)
Upon motion and notice
to defendant.
Requires proof of failure
to answer
Court
to
render
judgment,
unless
it
requires submission of
evidence
Relief awarded must be
the same in nature and
amount as prayed for in
the complaint
Acquisition of jurisdiction
FILING AND SERVICE OF PLEADINGS
DEFINITION
Filing The act of presenting the pleading or other

paper to the clerk of court. [Rule 13, Sec. 2]
Service The act of providing a party or his counsel
with a copy of the pleading or paper concerned. [Rule
13, Sec. 2]
PAPERS REQUIRED TO BE FILED AND SERVED [Rule 13, Sec.
As in default
(failure to appear by
plaintiff) (Rule 18, Sec. 5)
Not required
4]
(a) Pleading subsequent to the complaint;
(b) Appearance;
(c) Written Motion;
(d) Notice;
(e) Order;
(f) Judgment;
(g) Demand;
(h) Offer of Judgment;
(i) Resolution;
(j) Similar papers.
Not required
Court to allow plaintiff
to present evidence ex
parte, then the court
shall render judgment
Relief awarded may be
of different nature and
amount from the relief
prayed for
PAYMENT OF DOCKET FEES
As a rule, the court acquires jurisdiction over the case

only upon payment of prescribed fees
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General rule: Without payment, case is considered

not filed. Payment of docket fees is mandatory and
jurisdictional.
within thirty (30) days after receipt of summons of the

foreign entity where the defendant is a foreign
private juridical entity and service of summons is
made on the government official designated by law
to receive the same, the answer shall be filed [Rule
11, Sec. 2]
It is not simply the filing of the complaint or

appropriate initiatory pleading but the payment of
the prescribed docket fee, that vests a trial court with
jurisdiction over the subject matter or nature of the
action [Proton Pilipinas v. Banque National de Paris
(2005)]
Answer to amended complaint - Where the plaintiff

files an amended complaint as a matter of right, the
defendant shall answer the same within fifteen (15)
days after being served with a copy thereof.
Effect of Failure to Pay Docket Fees at Filing

Manchester v. CA (1987) [Old Rule]: AUTOMATIC
DISMISSAL. Any defect in the original pleading
resulting in underpayment of the docket fees cannot
be cured by amendment, such as by the reduction of
the claim as, for all legal purposes, there is no
original complaint over which the court has acquired
jurisdiction
Where its filing is not a matter of right, the defendant

shall answer the amended complaint within ten (10)
days from notice of the order admitting the same. An
answer earlier filed may serve as the answer to the
amended complaint if no new answer is filed.
Note that this Rule shall apply to the answer to an
amended counterclaim, amended cross-claim,
amended third (fourth, etc.) party complaint, and
amended complaint-in-intervention. [Rule 11, Sec. 3]
Modification by Sun Insurance v. Asuncion (1989):

NOT AUTOMATIC DISMISSAL BUT Court may allow
payment of fees within reasonable period of time.
Note that payment should always be within the
prescriptive period of the action filed.
Answer to counterclaim or cross-claim - A

counterclaim or cross-claim must be answered
within ten (10) days from service. [Rule 11, Sec. 4]
Further Modification by Heirs of Hinog v. Melicor

(2005): FEES AS LIEN. Where the trial court acquires
jurisdiction over a claim by the filing of the pleading
and the payment of the prescribed filing fee, BUT
SUBSEQUENTLY, the judgment awards a claim not
specified in the pleading, or cannot then be
estimated, or a claim left for determination by the
court, then the additional filing fee shall constitute a
lien on the judgment.
Answer to third (fourth, etc.)- party complaint - Same

rule as the answer to the complaint. [Rule 11, Sec. 5]
Reply - within ten (10) days from service of the
pleading responded to. [Rule 11, Sec. 6]
Answer to supplemental complaint - within ten (10)
days from notice of the order admitting the same,
unless a different period is fixed by the court.
Note: Appellate docket and other lawful fees must

be paid within the same period for taking an appeal.
Non-payment is a valid ground for dismissal of an
appeal. [M.A. Santander v. Villanueva (2004)]
However, delay in the payment of docket fees confers
upon the court discretionary and not mandatory
power to dismiss an appeal. [Villamor v. CA (2004)]
Note that the answer to the complaint shall serve as

the answer to the supplemental complaint if no new
or supplemental answer is filed.
NOTE: Upon motion and on such terms as may be
just, the court may extend the time to plead provided
in these Rules. The court may also, upon like terms,
allow an answer or other pleading to be filed after
the time fixed by these Rules. [Rule 11, Sec. 11]
FILING VERSUS SERVICE OF PLEADINGS
Filing is the act of presenting the pleading or other

papers to the clerk of court. [Rule, 13, Sec. 2]
MANNER OF FILING
Service is the act of providing a party with a copy of

the pleading or paper concerned. [Rule, 13, Sec. 2]
Manner of filing [Rule 13, Sec. 3] (Asked in the 2005

Bar particularly in comparison with filing in criminal
actions)
(a) Personally.
(1) By personally presenting the original to the
clerk of court.
PERIODS OF FILING OF PLEADINGS
Answer to the complaint - The defendant shall file his

answer to the complaint within fifteen (15) days after
service of summons, unless a different period is fixed
by the court. [Rule 11, Sec. 1]
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(2) The pleading is deemed filed upon the receipt

of the same by the clerk of court who shall
endorse on it the date and hour of filing.
(3) If a party avails of a private carrier, the date of
the courts actual receipt of the pleading (not
the date of delivery to the private carrier) is
deemed to be the date of the filing of that
pleading. [Benguet Electric Cooperative v.
NLRC (1992)]
(b) By registered mail.
(1) Filing by mail should be through the registry
service (i.e. by depositing the pleading in the
post office).
(2) The pleading is deemed filed on the date it
was deposited with the post office.
10 days after mailing,

unless
otherwise
provided by the court
Affidavit of the person

mailing of facts showing
compliance with Sec. 7 of
Rule 13.
Service by registered mail
Whichever is earlier:
Affidavit of the person
(a) Actual receipt by mailing of facts showing
the addressee
compliance with Sec. 7 of
(b) 5 days after the Rule 13
addressee received
1st
postmaster's AND
notice
Registry receipt issued by
the post office
MODES OF SERVICE [Rule 13, Sec. 5]
Service of judgments, final orders or resolutions [Rule

13, Sec. 9]
(a) By personal service;
(b) By registered mail;
(c) By publication at the expense of the prevailing
party if party was summoned by publication and
has failed to appear in the action.
Personal service [Rule 13, Sec. 6]

(a) Delivering personally a copy to the party or his
counsel.
(b) Leaving a copy in counsel's office with his clerk or
with a person having charge thereof.
(c) If no person is found in his office, or if his office is
unknown, or if he has no office Leaving the copy
between 8am and 6pm at the party's or counsel's
residence (if known) with a person of sufficient
age and discretion then residing therein.
Priorities in modes of service and filing [Rule 13, Sec.

11]
General rule: Personal filing and service. Resort to
other modes of filing and service must be
accompanied by an explanation why the
service/filing was not done personally. If there is no
written explanation, the paper is considered not
filed.
Service by (registered) mail [Rule 13, Sec. 7]

(a) By depositing the copy in the office, in a sealed
envelope, plainly addressed to the party or his
counsel at his office or at his residence (if known),
with postage fully pre-paid, and with instructions
to the postmaster to return the mail to the sender
after 10 days if undelivered.
(b) If no registry service is available in the locality of
either sender or addressee, service may be done
by ordinary mail.
Exception: Papers emanating from the court.

When service is deemed complete
(a) Personal service is deemed complete upon actual
delivery [Rule 13, Sec. 10]
(b) Service by registered mail is complete upon
actual receipt by the addressee or after 5 days
from the date he received the first notice of the
postmaster, whichever date is earlier. [Rule 13,
Sec. 10]
(c) Service by ordinary mail is complete upon the
expiration of 10 days after mailing, unless the
court otherwise provides [Rule 13, Sec. 10]
(d) Substituted service is complete at the time of
delivery of the copy to the clerk of court together
with the proof of failure of both personal service
and service by mail. [Rule 13, Sec. 8]
Substituted service [Rule 13, Sec. 8]

By delivering the copy to the clerk of court, with proof
of failure of both personal service and service by mail
Completeness of service
Proof of service (Rule 13
(Rule 13 Sec. 10)
Sec. 13)
Personal service
Upon actual delivery
Written admission of the
party served, OR
Official return of the server
OR
Affidavit of the party
serving, with a full
statement
of
the
date/place/manner
of
service.
Service by ordinary mail
Purpose of the rule on completeness of service for

service by registered mail: To make sure that the
party being served with the pleading, order or
judgment is duly informed of the same so that such
party can take steps to protect the interests, i.e.,
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enable to file an appeal or apply for other

appropriate reliefs before the decision becomes final.
[MINTERBRO v,CA (2012)]
Notice of lis pendens [Rule 13, Sec. 14]

Lis Pendens - Notice of a pendency of the action
between the parties involving title to or right of
possession over real property.
Proof of filing and service

Proof of filing
(a) Filing is proved by its existence in the record of
the case [Rule 13, Sec. 12].
(b) If it is not in the record [Rule 13, Sec. 12].
Requisites: [AFP Mutual Benefit Association v. CA

(2001)]
(a) Action affects the title or the right of possession
of the real property;
(b) Affirmative relief is claimed;
(c) Notice shall contain the name of the parties and
the object of the action/defense and a description
of the property affected thereby;
(d) Action in rem.
(1) The notice serves as a warning to all persons,
prospective purchasers or encumbrancers of
the property in litigation to keep their hands
off the property in litigation unless they are
prepared to gamble on the result of the
proceedings.
(2) The defendant may also record a notice of lis
pendens when he claims an affirmative relief
in his answer.
(3) The notice of cannot be cancelled on an ex
parte motion or upon the mere filing of a bond
by the party on whose title the notice is
annotated, as Sec. 14 provides that such
cancellation may be authorized only upon
order of court, after proper showing that:
[Roxas v. CA (1993)]
(4) The notice is for the purpose of molesting the
adverse party; or
(5) It is not necessary to protect the rights of the
party who caused it to be recorded
When pleading is deemed

Proof of filing
filed
Personally
Upon receipt of the Written/stamped
pleading by the clerk of acknowledgment by the
court
clerk of court
By registered mail
On the date the pleading Registry receipt, and
was deposited with the affidavit of the person
post office
who did the mailing
with:
(a) Full statement of
the date/place of
depositing the mail
in the post office in a
sealed
envelope
addressed to the
court
(b) Postage fully paid
(c) Instructions to the
postmaster to return
the mail to the
sender after 10 days
if undelivered
Amended and supplemental pleadings
Proof of Service [Rule 13, Sec. 13]

(a) Proof of personal service shall consist of:
(1)a written admission of the party served, or the
official return of the server, OR
(2) the affidavit of the party serving,
(3) Content: full statement of the date, place
and manner of service.
(b) Proof of service by ordinary mail:
(1)an affidavit of the person mailing
(2) Content: facts showing compliance with
Rule 13, Sec. 7
(c) Proof of service by registered mail
(1) an affidavit of the person mailing containing
the facts showing compliance with Rule 13,
Sec. 7, AND
(2) the registry receipt issued by the mailing
office.
(3) the registry return card which shall be filed
immediately upon its receipt by the sender, or
in lieu thereof of the unclaimed letter together
with the certified or sworn copy of the notice
given by the postmaster to the addressee.
AMENDMENT
HOW TO AMEND PLEADINGS [Rule 10, Sec. 1]
(a) Adding an allegation of a party;

(b) Adding the name of a party;
(c) Striking out an allegation of a party;
(d) Striking out the name of a party;
(e) Correcting a mistake in the name of a party; and
(f) Correcting a mistaken or inadequate allegation or
description in any other respect.
Purpose: That the actual merits of the controversy
may speedily be determined, without regard to
technicalities, and in the most expeditious and
inexpensive manner.
Barfel Development v. CA (1993): As a general policy,
liberality in allowing amendments is greatest in the
early stages of a law suit, decreases as it progresses
and changes at times to a strictness amounting to a
prohibition.
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(b) Once exercised, it cannot be disturbed on appeal,

except in case of abuse thereof. [Metropolitan
Bank v. Presiding Judge (1990)]
This is further restricted by the condition that the

amendment should not prejudice the adverse party
or place him at a disadvantage.
FORMAL AMENDMENT [Rule 10, Sec. 4]
(a) A defect in the designation of the parties and

other clearly clerical errors may be summarily
corrected by the court motu proprio or by motion
at any stage of the action.
(b) Provided that no prejudice is caused to the
adverse party.
Form [Rule 10, Sec. 7]

A new copy of the entire pleading, incorporating the
amendments, which shall be indicated by
appropriate marks, shall be filed.
AMENDMENT AS A MATTER OF RIGHT
Substantial Amendments once, made at any time

before a responsive pleading is served. If it is a reply,
once, made at any time within 10 days after it is
served. [Rule 10, Sec. 2] (Asked in the 2003 Bar
Exam)
AMENDMENTS TO CONFORM TO OR
PRESENTATION OF EVIDENCE [Rule 10, Sec.
AUTHORIZE
5] (Asked in
the 2004 Bar Exam)

(a) If issues not raised by the pleadings are tried with
the express/implied consent of the parties, they
shall be treated in all respects as if they had been
raised in the pleadings.
AMENDMENTS BY LEAVE OF COURT
Substantial Amendments - If as a matter of

discretion, requires leave of court if:
(a) It is substantial; and
(b) A responsive pleading has already been served.
[Rule 10, Sec. 3]
(b) Amendment of pleadings as may be necessary to

cause them to conform to the evidence and to
raise these issues, may be made upon motion of
any party, any time (even after judgment).
Requisites for amendments by leave of court

(a) Motion filed in court;
(b) Notice to the adverse party;
(c) Opportunity to be heard afforded to the adverse
party.
But failure to amend does not affect the result of

the trial of these issues.
(c) If evidence is objected to at the trial on the
ground that it is not within the issues made by
the pleadings, the court may allow the pleadings
to be amended and shall do so with liberality if
the presentation of the merits of the action and
the ends of substantial justice will be subserved
thereby. The court may grant a continuance to
enable the amendment to be made.
(Note: In the 2008 Bar Exam, a question was asked

on amendment of complaint to implead additional
parties)
When amendment by leave of court may not be
allowed
(a) If the cause of action, defense or theory of the
case is changed.
(b) If amendment is intended to confer jurisdiction to
the court.
If the court has no jurisdiction in the subject
matter of the case, the amendment of the
complaint cannot be allowed so as to confer
jurisdiction on the court over the property. [PNB v.
Florendo (1992)]
Amendments vis--vis supplemental pleadings

IFFERENT FROM SUPPLEMENTAL PLEADINGS
Supplemental pleadings (ASKED IN THE 2000 BAR

EXAM)
Definition: One which sets forth transactions,
occurrences or events which have happened since
the date of the pleading sought to be supplemented.
[Rule 10, Sec. 6]
(c) If amendment is for curing a premature or nonexisting cause of action.

(d) If amendment is for purposes of delay.
Purpose: to bring into the records new facts which

will enlarge or change the kind of relief to which the
plaintiff is entitled [Ada v. Baylon (2012), citing Young
v. Spouses Yu]
Note:
(a) Admitting an amended complaint in intervention
is a matter addressed to the courts discretion,
subject only to the limitations that amendments
should not substantially change the cause of
action or alter the theory of the case or made to
delay the action.
It is made upon motion of a party with reasonable

notice and upon terms as are just.
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Summons
The cause of action stated in the supplemental

complaint must be the same as that stated in the
original complaint. Otherwise, the court should not
admit the supplemental complaint. [Asset
Privatization Trust v. CA (1998)]
Definition: A coercive force issued by the court to

acquire jurisdiction over the person of the defendant
(asked in the 1999 Bar Exam)
A supplemental complaint/pleading supplies

deficiencies in aid of an original pleading, not to
entirely substitute the latter.
NATURE AND PURPOSE OF SUMMONS IN

RELATION TO ACTIONS IN PERSONAM, IN REM
AND QUASI IN REM
Unlike in an amended complaint, the original

complaint exists side by side with the supplemental
complaint. [Shoemart v. CA (1990)]
PURPOSE
(1) To acquire jurisdiction over the person of the

defendant in a civil case;
(2) To give notice to the defendant that an action has
been commenced against him.
A supplemental pleading may raise a new cause of

action as long as it has some relation to the original
cause of action set forth in the original complaint.
ISSUANCE OF SUMMONS
Upon the filing of the complaint and the payment of

legal fees, the clerk of court shall issue the
corresponding summons to the defendants. [Rule 14,
Sec. 1]
A supplemental pleading may properly allege

transactions, occurrences or events which had
transpired after the filing of the pleading sought to
be supplemented, even if the said supplemental
facts constitute another cause of action. [Ada v.
Baylon (2012)]
Amendments
Supplemental pleadings
Reason
for
the
amendment is available
at time of the 1st
pleading
Either as a matter of
right or a matter of
discretion
Supersedes the pleading
Grounds
for
the
supplemental pleading
arose after the 1st
pleading was filed
Always a matter of
discretion
When an amended
pleading is filed, a new
copy of the entire
pleading must be filed
CONTENTS OF SUMMONS [Rule 14, Sec. 2]
Summons must be directed to the defendant, signed

by the clerk of the court under seal, and contain:
(1) Name of the court and names of the parties;
(2) Direction that the defendant answer within the
time fixed;
(3) Notice that unless the defendant so answers,
plaintiff will take judgment by default and may be
granted the relief applied for.
A copy of the complaint and order for appointment
of guardian ad litem (if any) shall be attached to the
original and each copy of the summons.
NOTE that jurisdiction over person of defendant may
also be acquired through voluntary appearance.
Supplements
the
pleading (i.e. Exists side
by side with the original
pleading)
A
supplemental
pleading
does
not
require the filing of a
new copy of the entire
pleading
VOLUNTARY APPEARANCE
GENERAL RULE: Defendant's voluntary appearance in
the action shall be equivalent to service of summons;
EXCEPTION: Special appearance to file a MTD.
BUT inclusion in the MTD of grounds other than LOJ

over the defendants person, is not deemed a
voluntary appearance.
EFFECT OF AMENDED PLEADING
Effect [Rule 10, Sec. 8]

(a) Amended pleading supersedes the pleading that
it amends.
(b) Claims and defenses in superseded pleading
which are not incorporated in the amended
pleading are deemed waived.
(c) Admissions made in the superseded pleading
may still be received in evidence against the
pleader.
Any mode of appearance in court by a defendant or

his lawyer is equivalent to service of summons,
absent any indication that the appearance of counsel
for petitioner is precisely to protest the jurisdiction of
the court over the person of the defendant. [Delos
Santos v. Montesa (1993)]
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WHO SERVES THE SUMMONS [Rule 14, sec. 3]
(1) The sheriff or his deputy;

(2) Other proper court officers;
(3) For justifiable reasons, any suitable person
authorized by the court issuing the summons.
(4) Officer having management of a jail or
institution deputized as special sheriff when
defendant is a prisoner [Rule 14, sec. 9]
For a valid substituted service of summons, the

following must be established in the proof of service:
[Sps. Ventura v. CA (1987)]
(1) Impossibility of the personal service of summons
within a reasonable time;
(2) Efforts made to find the defendant personally
and the fact that such efforts failed; [Laus v. CA
(1993)]
(3) Service by leaving copy of summons either:
(a) With some person of suitable age and
discretion then residing in the defendants
residence;
(b) With some competent person in charge of the
defendants office or regular place of business.
RETURN OF SUMMONS [Rule 14, sec. 4]
When the service has been completed, the server

shall, within 5 days therefrom, serve a copy of the
return (personally or by registered mail) to the
plaintiff's counsel, and shall return the summons to
the clerk who issued it, accompanied by proof of
service.
For a substituted service to be valid, summons

served at the defendant's residence must be served
at his residence at the time of such service and not at
his former place of residence.
ALIAS SUMMONS [Rule 14, sec. 5]
Upon plaintiffs demand, the clerk may issue an alias

summons if either:
(1) Summons is returned without being served on
any/all of the defendants.
(2) Summons was lost.
"Dwelling house" or "residence" refer to the place

where the person named in the summons is living at
the time when the service is made, even though he
may be temporarily out of the country at the time.
[Sps. Ventura v. CA (1987)]
The server shall also serve a copy of the return on the

plaintiff's counsel within 5 days therefrom, stating
the reasons for the failure of service.
Substituted service must be used only as prescribed

and in the circumstances authorized by statute.
Statutes prescribing modes other than personal
service of summons must be strictly complied with to
give the court jurisdiction, and such compliance must
appear affirmatively in the return. [Laus v. CA (1993)]
MODES OF SERVICE OF SUMMONS
Any application to the court under Rule 14 for leave

to effect service in any manner for which leave of
court is necessary shall be made by:
(1) motion in writing,
(2) supported by affidavit of the plaintiff or some
person on his behalf, setting forth the grounds
for the application. [Rule 14, Sec. 17]
While the sheriff's return carries with it the

disputable presumption of regularity in the sense
that the entries therein are deemed correct, it does
not necessarily follow that an act done in relation to
the official duty for which the return is made was not
done simply because it is not disclosed therein.
[Mapa v. CA (1992)]
PERSONAL SERVICE
SERVICE IN PERSON ON DEFENDANT
(1) By handing a copy of summons to him;

(2) By tendering it to him, if he refuses to receive
and sign for it. [Rule 14, Sec. 6]
Proof of substituted service of summons must

(a) indicate the impossibility of service of summons
within a reasonable time;
(b) specify the efforts exerted to locate the
defendant; and
(c) state that the summons was served upon a
person of sufficient age and discretion who is
residing in the address, or who is in charge of the
office or regular place of business, of the
defendant. It is likewise required that the
pertinent facts proving these circumstances be
stated in the proof of service or in the officers
return. [Sps. Tiu v. Villar (2012)]
SUBSTITUTED SERVICE [Rule 14, Sec. 7] (asked in

the 2004 Bar Exam)
RATIONALE:
Enjoyment of the privileges of residence

within the state, and the attendant right to invoke
the protection of its laws, are inseparable from the
various incidences of state citizenship.
One such incident of domicile is amenability to suit
within the state even during sojourns without the
state, where the state has provided and employed a
reasonable method for apprising such an absent
party of the proceedings against him. [Northwest v.
CA (1995)]
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CONSTRUCTIVE SERVICE (BY PUBLICATION) [Rule

14, Sec. 14]
from any interest in any property within the

Philippines;
(d) Has defendants property in the Philippines,
attached.
REQUISITES
(1) The action is in rem or quasi in rem;

(2) Defendant's identity or whereabouts are unknown
and cannot be ascertained by diligent inquiry;
(3) There must be leave of court.
MODES OF SERVICE
(1) With leave of court, serve outside the Philippines

by personal service; or
(2) With leave of court, serve by publication in a
newspaper of general circulation, in which case
copy of the summons and order of the court must
also be sent by registered mail to the defendants
last known address;
(3) Any other manner the court deems sufficient
Summons by publication in a personal action cannot

confer upon the court jurisdiction over the person of
the defendant, who does not voluntarily submit
himself to the authority of the court.
The proper recourse for the plaintiff is to locate
properties of the defendant whose address is
unknown and cause them to be attached.
[Consolidated Plywood v. Breve (1988)]
The court order granting extraterritorial service shall

specify a period of at least 60 days within which the
defendant must answer.
SERVICE UPON PRISONERS AND MINORS
SERVICE UPON PRISONER [Rule 14, Sec. 9]
Serve upon the officer having management of the
jail/prison
SERVICE OF SUMMONS UPON DIFFERENT ENTITIES
See Annex A.
SERVICE UPON A DEFENDANT WHERE HIS IDENTITY IS
UNKNOWN OR WHERE HIS WHEREABOUTS ARE UNKNOWN
[Rule 14, Sec. 14]
SERVICE UPON MINORS AND INCOMPETENTS [Rule 14, Sec.
10]
Serve upon the minor/incompetent and on his legal
guardian.
(a) If there is no guardian, plaintiff may apply for the
appointment of a guardian ad litem.
(b) If minor, may serve on his parents.
With leave of court, by publication in a newspaper of

general circulation
SERVICE UPON RESIDENTS TEMPORARILY OUTSIDE THE
PHILIPPINES [Rule 14, Sec. 16]
With leave of court, may serve extraterritorially
PROOF OF SERVICE
RETURN OF SERVICE [Rule 14, Sec. 4]
When service has been completed, the server shall
serve a copy of the return within 5 days (personally or
by registered mail) to the plaintiff's counsel, and
shall return the summons to the clerk who issued it,
accompanied with the proof of service.
Service of summons upon different entities

Summons is validly served if it is left with some
person of suitable age and discretion then residing in
the defendant's residence, even if defendant was
abroad at that time. The fact that the defendant did
not actually receive the summons did not invalidate
the service of such summons. [Montalban v. Maximo
(1963)]
General rule: Return of service of summons

immediately shifts burden of evidence from plaintiff
to defendant since there is a presumption of
regularity.
(a) Without return of service: Burden is on plaintiff.
(b) In the case of Mapa v. CA (1992) though, while
there was a return, return was patently irregular,
thus no presumption of regularity could be had.
EXTRA-TERRITORIAL SERVICE, WHEN ALLOWED

[Rule 14, Sec. 15]
REQUISITES: (Asked in the 1997 and 2008 Bar Exam)
(1) Defendant does not reside or is not found in the

Philippines;
(2) Action either:
(a) Affects the plaintiffs personal status;
(b) Relates to or the subject matter of which is
property within the Philippines in which
defendant has a lien/interest;
(c) Demands
a
relief
which
consists
wholly/partially in excluding the defendant
Exception: Doctrine of substantial compliance If

defendant actually received summons and complaint
despite all these technicalities.
PROOF OF SERVICE
If personal or substituted service: In writing by the

server and shall: [Rule 14, Sec. 18]
(1) Set forth the manner/place/date of service;
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(2) Specify any papers which have been served with

the process and the name of the person who
received the same;
(3) Be sworn to when made by a person other than a
sheriff or his deputy.
SERVICE OF SUMMONS UPON DIFFERENT ENTITIES
See Annex A.
Motions
If by publication: [Rule 14, Sec. 19]

(1) Affidavit of the printer, his foreman, principal
clerk, or the editor, business/advertising
manager, with a copy of the publication attached,
AND
(2) Affidavit showing the deposit of a copy of the
summons and order for publication in the post
office, postage prepaid, directed to the defendant
by registered mail to his last known address.
MOTIONS IN GENERAL
DEFINITION OF A MOTION
An application for relief other than by a pleading

[Rule 15, Sec. 1]
Motion day [Rule 15, Sec. 7]
Except for urgent motions, motions are scheduled for
hearing:
(1) On Friday afternoons;
(2) Afternoon of the next working day, if Friday is a
non-working day.
EFFECT OF NON-SERVICE OF SUMMONS
(asked in the
2006 Bar Exam)
Unless the defendant voluntarily submits to the
jurisdiction of the court,non-service or irregular
service of summons renders null and void all
subsequent proceedings and issuances in the action
from the order of default up to and including the
judgment by default and the order of execution.
Motion for leave to file a pleading/motion [Rule 15,

Sec. 9]
Must be accompanied by the pleading/motion
sought to be admitted
If the defendant has already been served with

summons on the original complaint, no further
summons is required on the amended complaint if it
does not introduce new causes of action. [Ong Peng
v. Custodio (1961)]
Motions not acted upon

Parties and counsel should not assume that courts
are bound to grant the time they pray for. After all, a
motion that is not acted upon in due time is deemed
denied. [Orosa v. CA (1996)]
But if the defendant was declared in default on the

original complaint and the plaintiff subsequently
filed an amended complaint, new summons must be
served on the defendant on the amended complaint,
as the original complaint was deemed withdrawn
upon such amendment. [Atkins v. Domingo (1923)]
MOTIONS VERSUS PLEADINGS
WAIVER OF SERVICE OF SUMMONS [Rule 14, Sec. 20]
General rule: Defendant's voluntary appearance in

the action shall be equivalent to service of summons;
Exception: Special appearance to file a MTD.
Motion
Pleading
Contains allegations of
facts
Prays for a relief
Grant of the relief does
not extinguish the action
(interlocutory relief)
Generally in writing (with
some exceptions)
Contains allegations of
the ultimate facts
Prays for a relief
Grant
of
relief
extinguishes the action
(final relief)
Always in writing
General rule: A motion cannot pray for judgment.
Inclusion in the MTD of grounds other than LOJ over

the defendants person, is not deemed a voluntary
appearance. Any mode of appearance in court by a
defendant or his lawyer is equivalent to service of
summons, absent any indication that the
appearance of counsel for petitioner is precisely to
protest the jurisdiction of the court over the person of
the defendant. [Delos Santos v. Montesa (1993)]
Exception:
(1) Motion for judgment on the pleadings.
(2) Motion for summary judgment.
(3) Motion for judgment on demurrer to evidence.
CONTENTS AND FORM OF MOTIONS
Contents [Rule 15, Sec. 3]

(1) Relief sought to be obtained
(2) Grounds upon which it is based
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CIVIL PROCEDURE
(3) If it is required/necessary to prove facts alleged in

a motion, it shall be accompanied by supporting
affidavits and other papers.
(4) Motions raising factual issues must be supported
by affidavits.
What may be proof:

(1) If by registered mail: Affidavit or registry receipt
or postmark on envelope or return card, with an
explanation.
(2) If
by
personal
service:
Affidavit
or
acknowledgment of receipt by the other party.
Form of motions [Rule 15, Sec. 2]

General rule: In writing.
Exceptions:
(1) If the motion is one which the court can hear ex
parte.
(2) If the court is satisfied that the rights of the
adverse parties are not affected by the motion.
(3) If the party is in default because such a party is
not entitled to notice.
Exception: Oral motions:

(1) Made in open court;
(2) In the course of a hearing/trial.
NOTICE OF HEARING AND HEARING OF MOTIONS
Requisites of motions (not made in open court or in

the course of hearing/trial)
(1) In writing; [Rule 15, Sec. 2]
OMNIBUS MOTION RULE [Rule 15, Sec. 8]
Definition: A motion attacking a pleading/ order/

judgment/ proceeding must include all objections
then available. All objections not included in the
motion are deemed waived.
(2) Hearing on the motion set by the applicant

Notice of hearing shall be addressed to all
parties, and shall specify the time and date of the
hearing which shall not be later than 10 days
from the filing of the motion. [Rule 15, Sec. 5]
Exception: When the courts jurisdiction is in issue:

(1) LOJ over subject-matter;
(2) Litis pendentia;
(3) Res judicata;
(4) Prescription.
Notice must be addressed to the counsels. A

notice of hearing addressed to the clerk of court,
and not to the parties, is no notice at all.
Accordingly, a motion that does not contain a
notice of hearing to the adverse party is nothing
but a mere scrap of paper, as if it were not filed;
hence, it did not suspend the running of the
period to appeal. [Provident International
Resources v. CA (1996)]
LITIGATED AND EX PARTE MOTIONS
Kinds of Motion
(1) Motion Ex Parte - Made without notification to the
other party because the question generally
presented is not debatable.
(2) Litigated Motion - Made with notice to the
adverse party so that an opposition thereto may
be made.
(3) Motion Of Course - Motion for a kind of
relief/remedy to which the movant is entitled to
as a matter of right, Allegations contained in such
motion do not have to be investigated/verified.
(4) Special Motion - Discretion of the court is
involved. An investigation of the facts alleged is
required.
(3) Motion and notice of hearing must be served at

least 3 days before the date of hearing; [Rule 15,
Sec. 4]
Purpose: To prevent surprise upon the adverse party
and to enable the latter to study and meet the
arguments of the motion.
Exceptions:
(1) Ex parte motions;
(2) Urgent motions;
(3) Motions agreed upon by the parties to be heard
on shorter notice, or jointly submitted by the
parties;
(4) Motions for summary judgment which must be
served at least 10 days before its hearing.
PRO-FORMA MOTIONS
Pro forma motion A motion failing to indicate time

and date of the hearing
MOTIONS FOR BILL OF PARTICULARS
(ASKED IN THE 2003 BAR
EXAM)
Definition: It is a detailed explanation respecting any
matter which is not averred with sufficient
definiteness/particularity in the complaint as to
enable a party to properly prepare his responsive
pleading or to prepare for trial. [Rule 12, Sec. 1]
BILL OF PARTICULARS
Proof of service [Rule 15, Sec. 6]

General rule: A written motion set for hearing will not
be acted upon by the court if there is no proof of
service thereof.
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(2) BOP or definite statement filed either as a

separate pleading or as an amended pleading, a
copy of which must be served on the adverse
party.
PURPOSE AND WHEN APPLIED FOR
It is filed by the plaintiff pursuant to a court order

issued upon granting a motion for BOP filed by the
defendant before the latter files an answer.
In said motion, the defendant prays for a more
definite statement of matters which are not averred
with sufficient definiteness in the complaint.
Effect of non-compliance [Rule 12, Sec. 4]

In case of non-compliance or insufficient compliance
with the order for BOP, the court:
(1) May order the striking out of the pleading (or
portion thereof) to which the order is directed; OR
(2) Make such order as it may deem just.
An action cannot be dismissed on the ground that

the complaint is vague/indefinite. The remedy of the
defendant is to move for a BOP or avail of the proper
mode of discovery. [Galeon v. Galeon (1973)]
If the plaintiff fails to obey, his complaint may be

dismissed with prejudice unless otherwise ordered by
the court. [Rule 12, Sec. 4; Rule 17, Sec. 3]
Purpose
To inform the adverse party more specifically of the
precise nature and character of the cause of action or
defense alleged in the pleading, with the view of
enabling him to prepare properly his responsive
pleading or to prepare for trial.
If defendant fails to obey, his answer will be stricken

off and his counterclaim dismissed, and he will be
declared in default upon motion of the plaintiff. [Rule
9, Sec. 3; Rule 12, Sec. 4; Rule 17, Sec. 4]
The purpose of a BOP is to define/ clarify/

particularize/ limit/ circumscribe the issues in the
case to expedite the trial and assist the court.
EFFECT ON THE PERIOD TO FILE A RESPONSIVE PLEADING
[Rule 12, Sec. 5]

A Motion for BOP interrupts the period to file a
responsive pleading.
The only question to be resolved in a motion for a

BOP is WON the allegations in the complaint are
averred with sufficient definiteness/ particularity to
enable the movant to properly prepare his
responsive pleading and to prepare for trial.
[Tantuico, Jr. v. Republic (1991)]
The period to which the movant is entitled at the

time of filing of the motion, which shall not be less
than 5 days in any event.
NOTE the following distinctions:
A BOP becomes part of the pleading for which it was

intended. [Rule 12, Sec. 6]
When applied for [Rule 12, Sec. 1]
(1) Before responding to a pleading
(2) If the pleading is a reply, within 10 days from
service thereof
What a motion for bill of particulars should point out
[Rule 12, Sec. 1]
(1) The defects complained of;
(2) The paragraph wherein they are contained;
(3) The details desired.
ACTIONS OF THE COURT [Rule 12, Sec. 2]
(1) Deny;
(2) Grant the motion outright;
(3) Allow the parties the opportunity to be heard.
COMPLIANCE WITH THE ORDER AND EFFECT OF NONCOMPLIANCE
Compliance with order [Rule 12, Sec. 3]

If motion for BOP is granted wholly/partially:
(1) Within 10 days from notice of order, BOP or a
more definite statement should be submitted
(unless court fixes a different period).
PAGE 44
Bill of Particulars (BOP)
Intervention
Purpose is to enable a
party bound to respond
to a pleading to get
more details about
matters
which
are
alleged generally or
which are indefinite and
vague, so as to properly
guide such party in
answering the pleading
and to avoid surprise in
the trial of the case
Available
to
the
defendant before he files
his responsive pleading
Purpose is to enable a
person not yet a party to
an action, yet having a
certain right or interest in
such
action,
the
opportunity to appear
and be joined so he
could assert or protect
such right or interest
Available to any person

not yet a party to the
action at any time after
the commencement of
an action, even during
the proceeding, but not
after the trial has been
concluded
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CIVIL PROCEDURE
Terminating the action before trial
(b) LOJ over the subject matter of the claim

(c) Improper venue
(d) Plaintiffs lack of legal capacity to sue
(e) Litis pendentia
(f) Res judicata
(g) Prescription
(h) Failure to state a cause of action
(i) Extinguished claim
(j) Unenforceable claim under the Statute of Frauds
(k) Non-compliance with a condition precedent for
filing claim
MOTION TO DISMISS
DEFINITION
A remedy of the defendant, or the responding party

in general, which attacks the entire pleading and
seeks its dismissal based on:
(1) Grounds which are patent on the face of the
complaint;
(2) Defenses available to the defendant at the time
of the filing of the complaint
It hypothetically admits the facts stated in the
complaint.
LOJ over the defendants person

The objection of LOJ over the person on account of
lack of service or defective service of summons, must
be raised:
(1) At the very first opportunity;
(2) Before any voluntary appearance is made.
If a defendant had not been properly summoned, the
period to file a MTD for LOJ over his person does not
commence to run until he voluntarily submits to the
jurisdiction of the court. [Laus v. CA (1993)]
It is not a responsive pleading. It is not a pleading at

all. It is subject to the omnibus motion rule since it is
a motion that attacks a pleading. Hence, it must
raise all objections available at the time of the filing
thereof.
General rule: A court may not motu propio dismiss a
case, unless a motion to that effect is filed by a party.
Appearance of counsel is equivalent to summons,

unless such is made to protest the jurisdiction of the
court over the person of the defendant. If grounds
other than invalid service of summons are raised, it
cannot be considered as a special appearance. [De
los Santos v. Montesa (1993)]
Exception:
(1) Cases where the court may dismiss a case motu
propio; [Rule 9, Sec. 1]
(2) Failure to prosecute; [Rule 17, Sec. 3]
(3) Sec. 4, Revised Rule on Summary Procedure.
LOJ over the subject matter of the claim

If the complaint shows on its face LOJ, the court may
dismiss the case outright instead of hearing the
motion.
TYPES OF DISMISSAL OF ACTION
(1) MTD before answer under Rule 16;

(2) MTD under Rule 17:
(a) Upon notice by plaintiff;
(b) Upon motion by plaintiff;
(c) Due to fault of plaintiff.
(3) Demurrer to evidence after plaintiff has
completed the presentation of his evidence under
Rule 33;
(4) Dismissal of an appeal.
A MTD on the ground of LOJ over the subject matter

may be raised either:
(1) Before answer;
(2) After answer is filed;
(3) After hearing had commenced;
(4) At any stage of the proceeding, even for the first
time on appeal and even if no such defense is
raised in the answer.
Note:
A MTD shall be proved/disproved according to the
rules of evidence.
Improper venue
Unless and until the defendant objects to the venue
in a MTD prior to a responsive pleading, the venue
cannot truly be said to have been improperly laid
since, for all practical intents and purposes, the
venue though technically wrong may yet be
considered acceptable to the parties for whose
convenience the rules on venue had been devised.
Improper venue may be waived and such waiver may
occur by laches. [Diaz v. Adiong (1993)]
The hearing shall be conducted as an ordinary

hearing and the parties shall be allowed to present
evidence, except when the motion is based upon
failure of the complaint to state a cause of action.
When the MTD is based on facts not appearing of
record, the court may hear the matter on
affidavits/depositions.
[Rule 16, Sec. 1] (Asked in the 2008 Bar
Exam)
(a) LOJ over the defendants person
GROUNDS
A stipulation between the parties as to venue does

not preclude the filing of suits in the residence of
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plaintiff/defendant under Rule 4, Sec. 2(b). In the

absence of qualifying/restrictive words which would
indicate that a specific place alone is the venue, an
agreement as to venue is merely permissive and
there is no waiver of right to pursue remedy in other
courts. [HSBC v. Sherman (1989)]
The 1st case shall be abated if it is merely an

anticipatory action or defense against an expected
suit. The 2nd case will not be abated if it is not
brought to harass. [Vitrionics Computers v. RTC
(1993)]
If the court erroneously denies the MTD, the remedy

is prohibition.
Res judicata
Requisites (Asked in the 2000 Bar Exam):
(1) Former judgment rendered by a court having
jurisdiction over the subject matter and over the
parties;
(2) Judgment must be a final judgment;
(3) Judgment must be on the merits;
There can be res judicata without a trial, such as
in a judgment on the pleadings (Rule 34); a
summary judgment (Rule 35); or an order of
dismissal under Rule 17, Sec. 3.
(4) There must be identity of parties, of subject
matter and of the causes of action.
Plaintiffs lack of legal capacity to sue

The plaintiff lacks legal capacity to sue:
(1) When he does not possess the necessary
qualification to appear at the trial (e.g. when he
plaintiff is not in the full exercise of his civil
rights);
(2) When he does not have the character which he
claims, which is a matter of evidence (e.g. when
he is not really a duly appointed administrator of
an estate).
Lack of legal capacity to sue refers to plaintiffs
disability; while lack of legal personality to sue refers
to the fact that the plaintiff is not a real party in
interest, in which case the ground for dismissal
would be that the complaint states no cause of
action.
For res judicata to apply, absolute identity of parties

is not required because substantial identity is
sufficient. Inclusion of additional parties will not
affect the application of the principle of res judicata.
The test of identity of cause of action lies not in the
form of the action but on WON the same evidence
would support and establish the former and the
present causes of action. [DBP v. Pundogar (1993)]
Litis pendentia
Requisites: [Anderson Group v. CA (1997) Asked in the
2007 Bar Exam]
(1) Identity of parties;
(2) identity of rights asserted and relief prayed for;
(3) Relief founded on the same facts and the same
basis;
(4) Identity in the 2 proceedings should be such that
any judgment which may be rendered in the other
action will amount to res judicata on the action
under consideration.
Rationale: The sum and substance of the whole

doctrine is that a matter once judicially decided is
finally decided because of:
(1) Public policy and necessity makes it the interest
of the State that there should be an end to
litigation;
(2) The hardship on the individual that he should be
vexed twice for the same cause. [Nabus v. CA
(1991)]
It is not required to allege that there be a prior

pending case. It is sufficient to allege and prove the
pendency of another case, even if same had been
brought later.
Two concepts of res judicata [ABALOS V. CA 1993,

ASKED IN THE 1997 BAR EXAM)]
(1) Bar by prior judgment Judgment on the merits
in the 1st case constitutes an absolute bar to the
subsequent action not only as to every matter
which was offered and received to sustain or
defeat the claim/demand, but also to any other
admissible matter which might have been offered
for that purpose and to all matters that could
have been adjudged in that case. (Asked in the
2002 Bar Exam)
It does not require that the later case be dismissed in

favor of the earlier case. To determine which case
should be abated, apply:
(1) The More Appropriate Action Test;
(2) The Interest of Justice Test, taking into account:
(a) Nature of the controversy;
(b) Comparative accessibility of the court to the
parties;
(c) Other similar factors.
(2) Conclusiveness of judgment Where the 2nd

action between the parties is upon a different
claim/demand, the judgment in the 1st case
operates as an estoppel only with regard to those
In both tests, the parties good faith shall be taken

into consideration.
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issues directly controverted, upon the

determination of which the judgment was
rendered.
Test: Assuming the allegations and statements to be

true, does the plaintiff have a valid cause of action?
A MTD based upon the ground of failure to state a
cause of action imports a hypothetical admission by
the defendant of the facts alleged in the complaint.
Note: A single act or omission that causes damage to

an offended party may give rise to two separate civil
liabilities on the part of the offender (1) civil liability ex
delicto, that is, civil liability arising from the criminal
offense under Article 100 of the Revised Penal Code,
52 and (2) independent civil liability, that is, civil
liability that may be pursued independently of the
criminal proceedings. Because of the distinct and
independent nature of the two kinds of civil liabilities,
jurisprudence holds that the offended party may
pursue the two types of civil liabilities simultaneously
or cumulatively, without offending the rules on forum
shopping, litis pendentia, or res judicata.[Lim v. Co
(2012)]
If the court finds the allegations of the complaint to

be sufficient but doubts their veracity, it must deny
the MTD and require the defendant to answer and
then proceed to try the case on its merits.
A complaint containing a premature cause of action
may be dismissed for failure to state a cause of
action.
If the suit is not brought against the real party-ininterest, a motion to dismiss may be filed on the
ground that the complaint states no cause of action.
[Tanpinco v. IAC (1992)]
On naturalization: A decision or order granting

citizenship will not even constitute res judicata to any
matter or reason supporting a subsequent judgment
cancelling the certification of naturalization already
granted, on the ground that it had been illegally or
fraudulently procured. [Republic v. Ong (2012)]
Extinguished claim
That the claim/demand set forth in the plaintiff's
pleading has been paid, waived, abandoned or
otherwise extinguished.
Statute of limitations
Prescription applies only when the complaint on its
face shows that indeed the action has already
prescribed.
Unenforceable claim under the statute of frauds

Article 1403 (2) CC requires certain contracts to be
evidenced by some note or memorandum in order to
be enforceable, to wit:
(a) An agreement that by its terms is not to be
performed within a year from the making thereof;
(b) A special promise to answer for the debt, default,
or miscarriage of another;
(c) An agreement made in consideration of marriage,
other than a mutual promise to marry;
(d) An agreement for the sale of goods, chattels or
things in action, at a price not less than five
hundred pesos, unless the buyer accept and
receive part of such goods and chattels, or the
evidences, or some of them, of such things 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 book, at the time of the sale, of the amount
and kind 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;
(e) An agreement for the leasing for a longer period
than one year, or for the sale of real property or of
an interest therein;
(f) A representation as to the credit of a third person.
If the fact of prescription is not indicated on the face

of the complaint and the same may be brought out
later, the court must defer decision on the motion
until such time as proof may be presented on such
fact of prescription.
Prescription
Laches
Concerned with the fact

of delay
A matter of time
Statutory
Applies in law
Based on fixed time
Concerned with the

effect of delay
A matter of equity
Not statutory
Applies in equity
Not based on fixed time
Complaint states no cause of action

Failure to state a cause of action (not lack of cause of
action) is the ground for a MTD. The former means
there is insufficiency in the allegations in the
pleading. The latter means that there is insufficiency
in the factual basis of the action.
Non-compliance with a condition precedent

Non-compliance with PD 1508 (Katarungang
Pambarangay Law) may result in dismissal of the
The failure to state a cause of action must be evident

on the face of the complaint itself.
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case on the ground of non-compliance with a

condition precedent.
Appeal is not a remedy since denial of a motion

to dismiss is an interlocutory order. As a general
rule, defendant files his answer and then may
appeal an adverse judgment.
RESOLUTION OF MOTION
During the hearing of the motion, parties shall

submit: [Rule 16, Sec. 2]
(1) Their arguments on questions of law;
(2) Their evidence on questions of fact.
(2) Another remedy is to file a certiorari, case under

Rule 65 alleging grave abuse of discretion.
[Riano]
Exception: Those not available at that time.

EFFECT OF DISMISSAL OF COMPLAINT ON CERTAIN
GROUNDS
If the case goes to trial, such evidence presented

shall automatically be part of the evidence of the
party presenting the same.
Of dismissal: [Rule 16, Sec.5]

General rule: The action/claim may be re-filed.
After the hearing, the court may either: [Rule 16, Sec.
3]
(1) Dismiss the action/claim;
(2) Deny the MTD;
(3) Order the amendment of pleadings.
Exception: The action cannot be re-filed (although

subject to appeal) if it was dismissed on any of the
following grounds:
(1) Res judicata;
(2) Prescription;
(3) Extinguishment of the claim/demand;
(4) Unenforceability under the Statute of Frauds.
[Rule 16, Sec. 1 (f),(h),(i)]
The court cannot defer the resolution of the MTD for

the reason that the ground relied upon is not
indubitable.
On periods for pleading: [Rule 16, Sec.4]

If MTD is denied Movant must file his answer within
the balance of the period under Rule 11 to which he
was entitled at the time of serving his MTD (but not
less than 5 days) computed from the his receipt of
notice of the denial.
The courts resolution on the MTD must clearly and

distinctly state the reasons therefor.
REMEDIES OF PLAINTIFF WHEN THE COMPLAINT IS
DISMISSED
Remedies of plaintiff when motion to dismiss is

granted
If the motion is granted, the complaint is dismissed.
Since the dismissal is final and not interlocutory in
character, the plaintiff has several options:
(1) Depending upon the ground for the dismissal of
the action, the plaintiff may refile the complaint,
e.g when ground for dismissal is anchored on
improper venue.
(2) He may appeal from the order of dismissal where
the ground relied upon is one which bars refilling
of complaint e.g.
(a) Res judicata
(b) Prescription
(c) Extinguishment of the obligation
(d) Violation of Statutes of Fraud
(3) The plaintiff may also avail of a petition for
certiorari, alleging grave abuse of discretion.
[Riano]
If pleading is ordered to be amended movant must

file his answer within the period under Rule 11,
counted from service of the amended pleading
(unless the court gives a longer period).
On other grounds and omnibus motion rule:
MTD based on the following grounds may be filed
even after filing an answer: [Rule 9, Sec. 1]
(1) LOJ over subject-matter;
(2) Litis pendentia;
(3) Res judicata;
(4) Prescription.
Dismissal of the complaint under Rule 16, Sec. 6 is
without prejudice to the prosecution (in the same or
in a separate action) of a counterclaim pleaded in
the answer.
WHEN GROUNDS PLEADED AS AFFIRMATIVE DEFENSES
[Rule 16, Sec. 6]

If no MTD was filed, the grounds in Rule 16, Sec. 1
may be pleaded as an affirmative defense and the
court may conduct a preliminary hearing thereon as
if a MTD was filed.
REMEDIES OF THE DEFENDANT WHEN THE MOTION IS

DENIED
(1) The movant shall file his answer within the

balance of the period described in Rule 11 to
which he was entitled at the time of serving his
motion, but not less than 5 days in any event.
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Upon plaintiffs filing of notice, the court shall issue

an order dismissing the case. (i.e. the court has no
discretion on WON to dismiss the case).
BAR BY DISMISSAL
Subject to the right of appeal, an order granting a

motion to dismiss based on paragraphs:
(f) That the cause of action is barred by a prior
judgment or by the statute of limitations;
(h) That the claim or demand set forth in the
plaintiffs pleading has been paid, waived,
abandoned, or otherwise extinguished; and
(i) - That the claim on which the action is founded is
enforceable under the provisions of the statute
of frauds
General rule: The dismissal is without prejudice.

Exceptions:
(1) If the notice of dismissal provides that it is with
prejudice.
The dismissal is still with prejudice even it the
notice of dismissal does not so provide, where
such notice is premised on the fact of payment by
the defendant of the claim involved. [Serrano v.
Cabrera (1953)]
shall bar the refiling of the same action or claim.

[Rule 16, Sec. 5]
(2) Two-Dismissal Rule

If the plaintiff has previously dismissed an action
based on or including the same claim, the notice
operates as an adjudication upon the merits.
DISTINGUISHED FROM DEMURRER TO EVIDENCE UNDER

RULE 33
MTD under Rule 16

Based on preliminary
objections
May be filed by any
defending party against
whom a claim is
asserted in the action
Should be filed within
the time for, but prior to,
the
filing
of
the
defending
partys
answer to the pleading
asserting the claim
against him
If denied, defendant
answers; else, he may be
declared in default.
If granted, plaintiff may
appeal
or
if
a
subsequent
case is not barred, he
may re-file the case
MTD under Rule 33

(Demurrer to evidence)
Based on insufficiency
of evidence
May be filed only by the
defendant against the
complaint
of
the
plaintiff
May be filed only after
the
plaintiff
has
completed
the
presentation of his
evidence
DISMISSAL UPON MOTION BY PLAINTIFF;

EFFECT ON EXISTING COUNTERCLAIM
DISMISSAL UPON PLAINTIFFS MOTION [Rule 17, Sec. 2]
Here, dismissal of the complaint is subject to the

courts discretion and upon such terms and
conditions as may be deemed proper by court
Leave of court for the dismissal is necessary because
the motion is made after a responsive pleading or a
motion for summary judgment has been served.
If defendant pleaded a counterclaim prior to the
service upon him of the plaintiffs motion for
dismissal, the dismissal shall be without prejudice to
the defendants right to either:
(1) Prosecute his counterclaim in a separate action;
(2) Have the counterclaim resolved in the same
action, by manifesting such preference within 15
days from being notified of plaintiffs motion for
dismissal.
If denied, defendant
may present evidence.
If granted, plaintiff
appeals and the order
of the dismissal is
reversed; the defendant
loses his right to
present evidence.
Dismissal here is without prejudice, unless otherwise

provided in the order.
Dismissal of Actions
Court approval of the court is necessary in the

dismissal/compromise of a class suit.
DISMISSAL UPON NOTICE BY PLAINTIFF; TWODISMISSAL RULE

DISMISSAL UPON PLAINTIFFS NOTICE [Rule 17, Sec. 1]
Dismissal here is effected not by motion but by mere
notice before the service of either:
(1) The answer;
(2) A motion for summary judgment.
DISMISSAL DUE TO THE FAULT OF PLAINTIFF

DISMISSAL DUE TO PLAINTIFFS FAULT [Rule 17, Sec. 3]
The case may be dismissed motu proprio or upon the
defendants motion if, without justifiable cause,
plaintiff fails either:
(1) To appear on the date of the presentation of his
evidence-in-chief on the complaint;
(a) The plaintiffs failure to appear at the trial
after he has presented his evidence and
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CIVIL PROCEDURE
rested his case does not warrant the dismissal

of the case on the ground of failure to
prosecute.
(b) It is merely a waiver of his right to crossexamine and to object to the admissibility of
evidence. [Jalover v. Ytoriaga (1977)]
(2) To prosecute his action for an unreasonable
length of time (nolle prosequi);
The test for dismissal of a case due to failure to
prosecute is WON, under the circumstances, the
plaintiff is chargeable with want of due diligence
in failing to proceed with reasonable
promptitude. [Calalang v. CA (1993)]
(3) To comply with the ROC or any court order.
res judicata. Res judicata, however, is not applicable

since the court held that it did not acquire
jurisdiction due to non-payment of docket fees.
The dismissal has the effect of an adjudication on the

merits, unless the court declares otherwise, without
prejudice to the right of the defendant to prosecute
his counter-claim in the same or separate action.
DEFINITION
Rule 17, Sec. 2

Dismissal is at
plaintiffs instance
Dismissal on the ground of LOJ does not constitute

res judicata, there being no consideration and
adjudication of the case on the merits. Neither is
there litis pendentia. [Meliton v. CA (1992)]
Pre-Trial
CONCEPT OF PRE-TRIAL
A mandatory conference and personal confrontation
before the judge between the parties litigant and
their representative counsels, called by the court
after the joinder of issues in a case or after the last
pleading has been filed and before trial, for the
purpose of settling the litigation expeditiously or
simplifying the issues without sacrificing the
necessary demands of justice (Asked in the 1999 Bar
Examination, Examiner asked to compare this with
proceedings in the Katarungang Pambarangay).
Rule 17, Sec. 3

the
Dismissal is a matter of
procedure,
without
prejudice
unless
otherwise stated in the
court order or on
plaintiffs motion for
dismissal of his own
complaint.
Dismissal is without
prejudice
to
the
defendants right to
prosecute
his
counterclaim
in
a
separate action (unless
within 15 days from
notice of the motion he
manifests his intention
to have his counterclaim
resolved in the same
action).
Dismissal is not procured

by plaintiff, although
justified
by
causes
imputable to him
Dismissal is a matter of
evidence,
an
adjudication on the
merits
NATURE AND PURPOSE

PURPOSE
To consider: [Rule 18, Sec. 2]

(a) Possibility of an amicable settlement or of a
submission to alternative modes of dispute
resolution;
(b) Simplification of the issues;
(c) Necessity/desirability of amendments to the
pleadings;
(d) Possibility of obtaining stipulations or admissions
of facts and of documents to avoid unnecessary
proof;
(e) Limitation of the number of witnesses;
(f) Advisability of a preliminary reference of issues to
a commissioner;
(g) Propriety of rendering judgment on the
pleadings, or summary judgment, or of
dismissing the action should a valid ground
therefor be found to exist;
(h) Advisability/necessity
of
suspending
the
proceedings; and
(i) Other matters that may aid in the prompt
disposition of the action.
Dismissal is without
prejudice
to
the
defendants right to
prosecute
his
counterclaim in the
same or in a separate
action
DISMISSAL OF COUNTERCLAIM, CROSS-CLAIM

OR THIRD-PARTY COMPLAINT [Rule 17, Sec. 4]
Note:
(a) Pre-trial is primarily intended to make certain
that all issues necessary to the disposition of a
case are properly raised.
(b) Thus, to obviate the element of surprise, parties
are expected to disclose at a pre-trial conference
(PTC) all issues of law and fact which they intend
This Rule applies to the dismissal of counterclaims,

cross-claims or 3rd-party complaints.
Where a counterclaim is made the subject of a
separate suit, it may be abated upon a plea of auter
action pendentia and/or dismissal on the ground of
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to raise at the trial, except such as may involve

privileged or impeaching matters. The
determination of issues at a pre-trial conference
bars the consideration of other questions on
appeal. [Caltex v. CA (1992)]
(c) When conducted: After the last pleading has
been served and filed, it shall be the plaintiffs
duty to move ex parte that the case be set for pretrial. [Rule 18, Sec. 1]
(d) A pre-trial cannot validly be held until the last
pleading has been filed, which last pleading may
be the plaintiff's reply, except where the period to
file the last pleading has lapsed.
(e) Discretion to declare a party non-suited in PTC
must not be abused. Unless a party is so
negligent, irresponsible, contumacious, or
dilatory as to provide substantial grounds for
dismissal for non-appearance, the court should
consider lesser sanctions which would still
amount to achieving the end desired. [Calalang v.
CA (1993)]
Citibank v. Chua (1993): SC admonishes the courts

against precipitate orders of default as they have the
effect of denying the party the chance to be heard.
There are instances when parties may properly be
defaulted, but such is the exception rather than the
rule and should be used only in clear cases of
obstinate refusal or inordinate neglect to comply
with court orders.
FAILURE TO APPEAR AT PRE-TRIAL
Who fails to
appear
Plaintiff
Defendant
NOTICE OF PRE-TRIAL [Rule 18, Sec. 3]

Notice of pre-trial shall be served on counsel, or on
the party who has no counsel.
Cause for dismissal of the

action which will be with
prejudice, unless otherwise
ordered by the court
Cause to allow plaintiff to
present evidence ex parte, and
court to render judgment on
the basis thereof
Default by defendant
(Rule 9, Sec. 3)
Upon motion and notice
to defendant.
Requires proof of failure
to answer
Court
to
render
judgment,
unless
it
requires submission of
evidence
Relief awarded must be
the same in nature and
amount as prayed for in
the complaint
Counsel served with such notice has a duty to notify

the party he represents.
At the start of the preliminary conference, the judge
is mandated to refer the parties and/or their
counsels to the mediation unit of the Philippine
Mediation Center (PMC) for purposes of mediation. If
the mediation fails, the judge will schedule the
continuance of the preliminary conference. This rule
applies to Metro Manila, Cebu Davao City, and other
place where PMC Units may be further organized
and designated. [Admin, Circular No. 20-2002;
Admin. Circular No. 50-2005, April 26, 2005]
Effect
As in default
(failure to appear by
plaintiff) (Rule 18, Sec. 5)
Not required
Not required
Court to allow plaintiff
to present evidence ex
parte, then the court
shall render judgment
Relief awarded may be
of different nature and
amount from the relief
prayed for
(a) A defendant who already filed an answer cannot

be declared in default. Only when the defendant
fails to file an answer to the complaint may the
court proceed to render judgment. [Lesaca v. CA
(1992)]
(b) The Revised Rules on Summary Procedure does
not provide that an answer filed after the
reglementary period should be expunged from
the records.
(c) As a matter of fact, there is no provision for an
entry of default if a defendant fails to file his
answer.
(d) The defense of LOJ may have even been raised by
the defendant in a MTD as an exception to the
rule on prohibited pleadings in the Revised Rule
on Summary Procedure.
(e) Such a motion is allowed under Sec. 19(a) thereof.
[Bayog v. Natino (1996)]
APPEARANCE OF PARTIES; EFFECT OF FAILURE

TO APPEAR
APPEARANCE OF PARTIES [Rule 18, Sec. 4]
It is the duty of the parties and their counsel to
appear at the pre-trial.
A partys non-appearance may be excused only if
either:
(a) Valid cause is shown for it;
(b) A representative appears in his behalf, fully
authorized in writing:
(1) To enter into an amicable settlement;
(2) To submit to alternative modes of dispute
resolution;
(3) To enter into stipulations/admissions of facts
and of documents.
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(f) Where the failure to appear at the pre-trial

hearing was uncontrovertedly due to illness, the
default order may be set aside on the ground of
accident over which petitioner had no control.
(g) Also, the order of arrest was illegal as there is
nothing in the ROC which authorizes such a
consequence of a default order. [Malanyaon v.
Sunga (1992)]
(e) If despite all efforts exerted by the TC and the

parties the settlement conference still fails, then
the action should have continued as if no
suspension had taken place. [Goldloop Properties
v. CA (1992)]
PRE-TRIAL BRIEF; EFFECT OF FAILURE TO

APPEAR
PRE-TRIAL BRIEF [Rule 18, Sec. 6]
(a) Parties shall file and serve their respective pretrial briefs, ensuring receipt by adverse party at
least 3 days before the date of the pre-trial.
(b) Pre-trial briefs contents (Asked in the 2001 Bar
Exam):
(1) Statement of their willingness to enter into
amicable settlement or alternative modes of
dispute resolution, indicating the desired
terms thereof;
(2) Summary of admitted facts and proposed
stipulation of facts;
(3) Issues to be tried/resolved;
(4) Documents/exhibits to be presented, stating
the purpose thereof;
(5) Manifestation of their having availed or their
intention to avail themselves of discovery
procedures or referral to commissioners;
(6) Number and names of the witnesses, and the
substance of their respective testimonies. [AM
No. 03-1-09-SC]
CALENDAR OF CASES
Note: AM 03-1-09-SC (No termination of pre-trial for

failure to settle)
(a) Under the direct supervision of the judge, the
clerk of court shall keep a calendar of cases for
pre-trial, for trial, those whose trials were
adjourned/postponed, and those with motions to
set for hearing. [Rule 20, Sec. 1]
(b) Preference shall be given to habeas corpus cases,
election cases, special civil actions, and those so
required by law. [Rule 20, Sec. 1]
(c) The assignment of cases to the different branches
of a court shall be done exclusively by raffle. The
assignment shall be done in open session of
which adequate notice shall be given so as to
afford interested parties the opportunity to be
present. [Rule 20, Sec. 2]
DISTINCTION BETWEEN PRE-TRIAL IN CIVIL
CASE AND PRE-TRIAL IN CRIMINAL CASE (Bar
1997, Riano)
Note: Failure to file the pre-trial brief shall have the

same effect as failure to appear at the pre-trial.
RECORD OF PRE-TRIAL [Rule 18, Sec. 6]
(a) The pre-trial proceedings shall be recorded. Upon

termination of such proceedings, the court shall
issue the pre-trial order.
(b) Pre-trial orders contents:
(1) Matters taken up in the conference;
(2) Action taken thereon;
(3) Amendments allowed on the pleadings;
(4) Agreements/admissions made by the parties
as to any matters considered;
(5) Should the action proceed to trial, the explicit
definition and limit of the issues to be tried.
(c) Consequence: The contents of the order shall
control the subsequent course of the action,
unless modified before trial to prevent manifest
injustice.
(d) Upon manifestation of the parties of their
willingness to discuss a compromise, the TC
should order the suspension of the proceedings
to allow them reasonable time to discuss and
conclude an amicable settlement.
Civil Case
Criminal Case
Set when the plaintiff

moves ex parte to set the
case for pre-trial [Rule
18, Sec. 1]
Ordered by the court and

no motion to set the case
for pre-trial is required
from
either
the
prosecution
or
the
defense [Rule 118, Sec. 1]
Ordered by the court
after arraignment and
within 30 days from the
sate the court acquired
jurisdiction over the
person of the accused
[Rule 118, Sec. 1]
Does not include the
considering
of
the
possibility of amicable
settlement of ones
criminal liability as one
of its purposes [Rule 118,
Sec. 1]
(Stricter procedure)
All
agreements
or
admissions made or
entered during the pretrial conference shall be
Made after the pleading

has been served and
filed [Rule 18, Sec. 1]
Considered
the
possibility
of
an
amicable settlement as
an important objective
[Rule 118, Sec. 2(a)]
The arrangements and
admissions in the pretrial are not required to
be signed by both parties
and
their
counsels.
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Civil Case
Criminal Case
Under the Rules, they

are instead to be
contained in the record
of pre-trial and pre-trial
order [Rule 18, Sec. 7]
reduced in writing and

signed by both the
accused and counsel;
otherwise, they cannot
be used against the
accused. [Rule 118, Sec.
2]
[AM No. 03-1-09] requires the proceedings

during the preliminary
conference
to
be
recorded in the Minutes
of
Preliminary
Conference to be signed
by both parties and/or
counsel.
(Note: either party or his
counsel is allowed to
sign)
The sanctions for nonappearance are imposed
upon the plaintiff and
the defendant [Rule 18,
Sec. 4]
A pre-trial brief is
specifically required to
be submitted [Rule 18,
Sec. 6]
thereof or to submit the case to any of the alternative

modes of dispute resolution [AM No. 03-1-09-SC]
EXCEPTION TO THE APPLICATION OF RA 9285:
(a) labor disputes covered by the Labor Code;

(b) the civil status of persons;
(c) validity of a marriage;
(d) any ground for legal separation;
(e) the jurisdiction of courts;
(f) future legitime;
(g) criminal liability; and
(h) those which by law cannot be compromised.
MODES OF ALTERNATIVE DISPUTE RESOLUTIONS:
Arbitration [RA, 9285, Section 1]

A voluntary dispute resolution process in which one
or more arbitrators, appointed in accordance with
the agreement of the parties, or rules promulgated
pursuant to this Act, resolve a dispute by rendering
an award\
Note: A court before which an action is brought in a
matter which is the subject matter of an arbitration
agreement shall, if at least one party so requests not
later that the pre-trial conference, or upon the
request of both parties thereafter, refer the parties to
arbitration unless it finds that the arbitration
agreement is null and void, inoperative or incapable
of being performed. [RA 9285, Sec. 24]
Sanctions are imposed

upon the counsel for the
accused
or
the
prosecutor [Rule 118,
Sec. 3]
A pre-trial brief is not
specifically required.
Different Kinds:
(a) Domestic Arbitration an arbritration that is not
international; governed by RA 876 (Arbitration
Law) [RA 9285, Sec. 32]
(b) International Arbitration - An arbitration is
international if:
(1) the parties to an arbitration agreement have,
at the time of the conclusion of that
agreement, their places of business in
different States; or
(2) one of the following places is situated outside
the State in which the parties have their
places of business:
(i) the place of arbitration if determined in, or
pursuant to, the arbitration agreement;
(ii) any place where a substantial part of the
obligations of the commercial relationship
is to be performed or the place with which
the subject-matter of the dispute is most
closely connected; or
(3) the parties have expressly agreed that the
subject matter of the arbitration agreement
relates to more than one country [Article 3,
Model Law on International Commercial
Arbritration]
ALTERNATIVE DISPUTE RESOLUTION (ADR)

[RA 9285]
WHAT IS ALTERNATIVE DISPUTE RESOLUTION SYSTEM?
Means any process or procedure used to resolve a

dispute or controversy, other than by adjudication of
a presiding judge of a court or an officer of a
government agency, as defined in this Act, in which a
neutral third party participates to assist in the
resolution of issue [RA 9285, Sec. 3]
POLICY BEHIND THE ADR:
to actively promote party

autonomy in the resolution of disputes or the
freedom of the party to make their own
arrangements to resolve their disputes [RA 9285,
Sec. 2]
Notes:
At the start of the pre-trial conference, the judge
shall immediately refer the parties and/or their
counsel if authorized by their clients to the PMC
mediation unit for purposes of mediation if
available.[AM No. 03-1-09-SC]
The pre-trial briefs of parties must include the
parties statement of their willingness to enter into
an amicable settlement indicating the desired terms
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Mediation [RA, 9285, Sec. 1]

(a) a voluntary process in which a mediator, selected
by
the
disputing
parties,
facilitates
communication and negotiation, and assist the
parties in reaching a voluntary agreement
regarding a dispute
(b) includes conciliation
defendant in resisting the claims of plaintiff, or

demanding something adversely to both of them.
Cario v. Ofilada (1993): It is the act/proceeding by
which a 3rd person becomes a party in a suit pending
between others.
It is the admission, by leave of court, of a person not
an original party to pending legal proceedings, by
which such person becomes a party thereto for the
protection of some right of interest alleged by him to
be affected by such proceedings.
Mini-trial [RA, 9285, Sec. 1]

A structured dispute resolution method in which the
merits of a case are argued before a panel
comprising senior decision makers with or without
the presence of a neutral third person after which the
parties seek a negotiated settlement
An intervenor is a party to the action as the original

parties are, and to make his right effectual he must
necessarily have the same powers as the original
parties. He is entitled to have the issues raised
between him and the original parties tried and
determined.
Early Neutral Evaluation [RA, 9285, Sec. 1]

An ADR process wherein parties and their lawyers
are brought together early in a pre-trial phase to
present summaries of their cases and receive a
nonbinding assessment by an experienced, neutral
person, with expertise in the subject in the substance
of the dispute
Intervention is never an independent action, but is

ancillary and supplemental to the existing litigation.
Its purpose is to afford one not an original party, yet
having a certain right/interest in the pending case,
the opportunity to appear and be joined so he could
assert or protect such right/interest.
Combination of Alternative Dispute Resolution [RA,

9285, Sec. 1]
Example: Med-Arb: step dispute resolution process
involving both mediation and arbitration
Hence, the final dismissal of the principal action

results into the dismissal of said ancillary action.
Intervention
WHO MAY INTERVENE [Rule 19, Sec. 1]

(a) One who has a legal interest in the matter in
litigation;
(b) One who has a legal interest in the success of
either of the parties;
(c) One who has an interest against both parties;
(d) One who is so situated as to be adversely affected
by a distribution/disposition of property in the
courts custody.
DEFINITION OF INTERVENTION (Asked in the

2003 Bar Exam) [Rule 19, Sec. 1]
A legal remedy whereby a person is permitted to
become a party in a case, by either:
(a) Joining the plaintiff;
(b) Joining the defendant;
(c) Asserting his right against both plaintiff and
defendant, considering that either:
(1) He has a legal interest in the subject matter of
the action;
(2) He has legal interest in the success of either of
the parties
(3) He has legal interest against both of the
parties
(4) He is going to be adversely affected by the
disposition of the property in the custody of
the court
MEANING OF LEGAL INTEREST

(a) Interest must be of a direct and immediate
character so that the intervenor will either gain or
lose by the direct legal operation of the
judgment. The interest must be actual and
material, a concern which is more than mere
curiosity, or academic or sentimental desire; it
must not be indirect and contingent, indirect and
remote, conjectural, consequential or collateral.
[Virra Mall Tenants v. Virra Mall (2011)]
Metropolitan Bank v. Presiding Judge (1990):

Intervention is a proceeding in a suit/action by which
a 3rd person is permitted by the court to make
himself a party, either joining plaintiff in claiming
what is sought by the complaint, or uniting with
(b) When the title to the property if declared void by

final judgment, intervention will not revive or
reinstate the movants title derived from the title
declared void. [Firestone Ceramics v. CA (1999)]
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(c) The assignee of a property who assumed

payment of whatever amount may be finally
adjudged against the assignor, may intervene in a
proceeding involving the execution of the
property pursuant to a judgment. [Robles v.
Timario (1962)]
complaint, without the establishment of which

plaintiff could not recover.
(d) In an action for foreclosure of mortgage, the

alleged owners of the land sought ot be
foreclosed may intervene. [Roxas v. Dinglasan
(1969)]
Answer-in-intervention If intervenor unites with the

defending party in resisting a claim against the
latter.
PLEADINGS IN INTERVENTION [Rule 19, Sec. 3]
Complaint-in-intervention If intervenor asserts a

claim against either or all of the original parties.
Answer to complaint-in-intervention [Rule 19, Sec. 4]

It must be filed within 15 days from notice of the
order admitting the complaint-in-intervention,
unless a different period is fixed by the court.
Note: Notwithstanding the presence of a legal

interest, permission to intervene is subject to the
sound discretion of the court, the exercise of which is
limited by considering "whether or not the
intervention will unduly delay or prejudice the
adjudication of the rights of the original parties and
whether or not the intervenors rights may be fully
protected in a separate proceeding. [Virra Mall
Tenants v. Virra Mall (2011)]
REQUISITES FOR INTERVENTION
HOW INTERVENTION IS DONE
Intervention
Interpleader
An ancillary action
Proper in any of the four
situations mentioned in
Rule 19
An original action
Presupposes that the
plaintiff has no interest
in the subject matter of
the action or has an
interest therein, which in
whole or in part is not
disputed by the other
parties to the action
Defendants are being
sued
precisely
to
implead them
By a motion to intervene, with the pleading-inintervention attached. Must also serve copy of the
pleading-in-intervention on the original parties. [Rule
19, Sec. 2]
General rule: Allowance
discretionary with the court.
of
intervention
There is already a
defendant among the
original parties to the
pending suit
is
Exception: When the intervenor is an indispensable

party.
TIME TO INTERVENE
Intervention is allowed any time before TC renders
judgment. [Rule 19, Sec. 2]
FACTORS CONSIDERED IN ALLOWING INTERVENTION
(a) WON intervention will unduly delay or prejudice

the adjudication of the rights of the original
parties.
REMEDY FOR THE DENIAL OF MOTION TO

INTERVENE
REMEDIES
(b) WON the intervenor's rights may be fully

protected in a separate proceeding.
(a) For denial of intervention:

(1) Appeal.
(2) Mandamus, if there is GAD.
(b) For improper granting of intervention: Certiorari.
Carino v Ofilada (1993): The interest must be actual

and material, direct and immediate; not simply
contingent or expectant.
Subpoena
It must be in the matter in litigation and of such

direct and immediate character that the intervenor
will either gain or lose by the direct legal operation
and effect of the judgment.
Subpoena is a process issued by court which is

either:
Magsaysay-Labrador v. CA (1989): Interest in the

subject means a direct interest in the cause of action
as pleaded and which would put the intervenor in a
legal position to litigate a fact alleged in the
TYPES (AND DEFINITION) OF SUBPOENA [Rule 21,

Sec. 1]
(a) Subpoena duces tecum
(b) Subpoena ad testificandum
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(c) Exception: Tender not required if subpoena is

issued by or on behalf of the Republic or an
officer/agency thereof.
(d) For subpoena duces tecum, also tender the
reasonable
cost
of
producing
the
books/documents/things demanded.
(e) Service must be made so as to allow the witness
reasonable time for preparation and travel to the
place of attendance
BY WHOM ISSUED [Rule 21, Sec. 2]

(a) The court before whom the witness is required to
attend;
(b) The court of the place where the deposition is to
be taken;
(c) The officer/body authorized by law to do so in
connection with investigations conducted by said
officer/body;
(d) Any SC/CA Justice in any case or investigation
pending within the Philippines.
COMPELLING ATTENDANCE OF WITNESSES;

CONTEMPT
PERSONAL APPEARANCE IN COURT [Rule 21, Sec. 7]
A person present in court before a judicial officer may
be required to testify as if he were in attendance
upon a subpoena issued by such court/officer.
FORM AND CONTENTS OF SUBPOENA [Rule 21,

Sec. 3]
(a) Name of court;
(b) Title of action/investigation;
(c) Directed to a person whose attendance is
required
(d) If subpoena duces tecum, a reasonable
description of the books/documents/things
demanded which must appear to the court prima
facie relevant.
[Rule 21, Sec.

2]
(a) The judge/officer shall examine and study the
application carefully to determine WON it is
made for a valid purpose.
(b) However, no prisoner sentenced to death,
reclusion perpetua or life imprisonment and who
is confined in a penal institution shall be brought
outside for appearance/attendance in any court
unless authorized by the SC.
APPLICATION FOR SUBPOENA TO PRISONER
Subpoena for depositions [Rule 21, Sec. 5]

(a) Proof of service of a notice to take a deposition is
sufficient authorization for the issuance of
subpoena ad testificandum for the persons
named in the notice.
(b) Issued by the clerk of court of the place in which
the deposition is to be taken.
(c) However, subpoena duces tecum for depositions
cannot be issued without court order.
REMEDY IN CASE OF WITNESS FAILURE TO ATTEND
Upon proof of service of subpoena and of witness

failure to attend, the court/judge issuing the
subpoena may issue a warrant to the sheriff to arrest
the witness and bring him before the court/officer
where his attendance is required. [Rule 21, Sec. 8]
SUBPOENA DUCES TECUM

Process directed to a person, requiring him to bring
with him any books/documents/things under his
control. (Asked in the 1997 Bar Exam)
The cost of warrant and seizure shall be paid by the

witness if the court determines that the failure to
attend was willful and without just excuse.
SUBPOENA DUCES TECUM DISTINGUISHED FROM ORDER

FOR PRODUCTION OR INSPECTION
Such failure shall be deemed a contempt of the court

which issued the subpoena. [Rule 21, Sec. 9]
See Annex B.
SUBPOENA AD TESTIFICANDUM
Process directed to a person, requiring him to attend
and to testify at the hearing/trial of an action or at
any investigation conducted by competent authority,
or for the taking of his deposition.
If subpoena was not issued by a court, the

disobedience shall be punished by applicable law or
ROC.
Exception: Arrest warrant and contempt not
applicable to: [Rule 21, Sec. 10]
(a) A witness who resides more than 100km from his
residence to the place where he is to testify.
(b) A detention prisoner, if there is no permission
from the court in which his case is pending.
SERVICE OF SUBPOENA [Rule 21, Sec. 6]

(a) Same manner as personal or substituted service
of summons.
(b) The original shall be exhibited and a copy
delivered to person on whom it is served, with
tender of fees for one days attendance and
kilometrage.
QUASHING OF SUBPOENA [Rule 21, Sec. 4]

Upon motion promptly made, at/before the time
specified in the subpoena.
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GROUNDS FOR QUASHING:
identity of any persons having knowledge of

relevant facts. [Rule 23, sec. 2]
Subpoena duces tecum:

(1) It is unreasonable and oppressive;
(2) The relevancy of the books/documents/ things
does not appear;
(3) The person in whose behalf the subpoena is
issued fails to advance the reasonable cost of
production;
(4) Witness fees and kilometrage were not tendered
when subpoena was served.
Uses of deposition pending action

Dasmarias Garments,Inc. v. Reyes (1993):
General Rule: A deposition is not generally supposed
to be a substitute for the actual testimony in open
court of a party or witness. If the witness is available
to testify, he should be presented in court to testify.
If available to testify, a partys or witness deposition
is inadmissible in evidence for being hearsay.
Subpoena ad testificandum:
(1) That the witness is not bound thereby;
(2) That witness fees and kilometrage were not
tendered when the subpoena was served.
Exception: [Rule 23, Section 4]

(a) Any deposition may be used by any party for the
purpose of contradicting or impeaching the
testimony of deponent as a witness;
(b) The deposition of a party or of any one who at the
time of taking the deposition was an officer,
director, or managing agent of a public or private
corporation, partnership, or association which is a
party may be used by an adverse party for any
purpose;
(c) The deposition of a witness, whether or not a
party, may be used by any party for any purpose if
the court finds:
(1) that the witness is dead; or
(2) that the witness resides at a distance more
than one hundred (100) kilometers from the
place of trial or hearing, or is out of the
Philippines, unless it appears that his absence
was procured by the party offering the
deposition; or
(3) that the witness is unable to attend to testify
because of age, sickness, infirmity, or
imprisonment; or
(4) that the party offering the deposition has been
unable to procure the attendance of the
witness by subpoena; or
(5) upon application and notice, that such
exceptional circumstances exist as to make it
desirable, in the interest of justice and with
due regard to the importance of presenting
the testimony of witnesses orally in open
court, to allow the deposition to be used; and
(d) If only part of a deposition is offered in evidence
by a party, the adverse party may require him to
introduce all of it which is relevant to the part
introduced, and any party may introduce any
other parts.
Modes of Discovery
DEPOSITIONS PENDING ACTION; DEPOSITIONS
BEFORE ACTION OR PENDING APPEAL [Rules 23
and 24]
DEPOSITIONS UNDER RULE 23
Meaning and purpose of deposition

(a) Deposition is chiefly a mode of discovery, the
primary function of which is to supplement the
pleadings for the purpose of disclosing the real
points of dispute between the parties and
affording an adequate factual basis during the
preparation for trial.
(b) The liberty of a party to avail of such modes of
discovery is unrestricted if the matters inquired
into are relevant and not privileged, and the
inquiry is made in good faith and within the
bounds of the law.
(c) Limitations would arise if the examination is
conducted in bad faith; or in such a manner as to
annoy, embarrass or oppress the person under
examination; or when the inquiry touches upon
the irrelevant or encroaches upon the recognized
domains of privilege.
(d) Under certain conditions and for certain limited
purposes, it may be taken even after trial has
commenced and may be used without the
deponent being actually called to the witness
stand. [Jonathan Landoil v Mangudadatu (2006)]
Scope of examination
Unless otherwise provided by the court, the
deponent may be examined regarding any matter
not privileged, which is relevant to the pending
action, whether relating to the claim or defense of
any party
(a) including the existence, description, nature,
custody, condition and location of any books,
documents, or other tangible things and the
Before whom taken

General Rule: Depositions may be taken before any
judge, notary public, or the person referred to in
section 14 (which refers to any person authorized to
administer oaths designated by the parties by
stipulation).
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The attendance of the witnesses may be compelled

by the use of subpoenas. [Rule 23, Sec. 1]
Exceptions: In our jurisdiction, depositions in foreign

countries may be taken:
(a) on notice before a secretary of embassy or
legation, consul general, consul, vice consul, or
consular agent of the Republic of the Philippines;
(b) before such person or officer as may be appointed
by commission or under letters rogatory; or
(c) before any person authorized to administer oaths
as stipulated in writing by the parties.
Commission
The deponent may be examined or cross examined

following the procedures for witnesses in a trial.
He may be asked questions on direct, cross, redirect or re-cross. He has the same rights as a
witness and may be impeached like a court
witness because Sections 3 to 18 of Rule 132 apply
to deponent. [Rule 23, Sec. 3]
Letters Rogatory
Addressed to whom
Any authority in a A judicial authority in the
foreign
country foreign country
authorized therein to
take down depositions
Rules that govern the deposition
Rules laid down by the Rules laid down by such
court
issuing
the foreign judicial authority
commission
When issued
Preferred over letters Generally resorted to
rogatory since the when there is difficulty or
process
is
simpler impossibility of obtaining
(generally, no need to the
deposition
by
resort to diplomatic commission (Regalado)
channels unlike in
letters rogatory)
The officer before whom the deposition is being

taken has no authority to rule on objections
interposed during the course of the deposition
although any objections shall be noted by him
upon the deposition. Any evidence that is objected
to shall still be taken but subject to the objection.
[Rule 23, Sec. 17]
When may taking of deposition be terminated or its
scope limited
The court in which the action is pending or the RTC
of the place where the deposition is being taken may
order the officer conducting the examination to
cease from taking the deposition, or may limit the
scope and manner of taking the deposition
When: At any time during the taking of the
deposition, on the motion or petition of any party or
of the deponent
No deposition shall be taken before a person who is:

[Rule 23, sec. 13]
(a) a relative within the sixth degree of consanguinity
or affinity, or
(b) employee or counsel of any of the parties, or who
is a relative within the same degree, or employee
of such counsel; or
(c) who is financially interested in the action.
Ground: that the examination is being conducted in

bad faith or in such a manner as unreasonably to
annoy, embarrass or oppress the deponent or party
[Rule 23, Sec. 18]
If the order made terminates the examination, it
shall be resumed only upon the order of the court in
which the action is pending.
Procedure
A party desiring to take the deposition of any
person upon oral examination shall give
reasonable notice in writing to every party to the
action stating the time and place for taking the
deposition and the name and address of each
person to be examined. [Rule 23, Sec. 15]
When may objections to errors and irregularities be

made [Rule 23, sec. 29]
Objection
As to
parties
After the notice is served, the court may make any

order for the protection of the parties and the
deponent. [Rule 23, Sec. 16]
notice
When Made
to
Deposition officer is
disqualified
PAGE 58
Waived,
unless
written
objection is promptly served
upon party giving notice
Waived, unless made before
the taking of the deposition
or
as
soon
as
the
disqualification
becomes
known or could be discovered
UP COLLEGE OF LAW
Objection
Lack of relevance,
materiality
and
competence of the
deposition to the
action
Error in the manner

of
taking
the
deposition
Error in the form of
written
interrogatories
Error in the manner

of preparing the
deposition
CIVIL PROCEDURE
Leave of court [Rule 23, Sec. 1]

(a) Leave of court is NOT required after an answer
has been served.
(b) It is required before the service of an answer but
after jurisdiction has been acquired over the
defendant or over the property subject of the
action.
(c) Only instance when one always needs leave of court
before taking depositions: Where the deponent is
in jail.
When Made
with reasonable certainty
NOT waived by failure to
make them before or during
the taking of the deposition,
unless the ground for the
objection is one which might
have been obviated or
removed if presented at that
time
Waived, unless reasonable
objection is made at the
taking of the deposition
Waived, unless served in
writing upon the party
propounding them within the
time allowed for serving
succeeding cross or other
interrogatories and within 3
days after service of the last
interrogatories
Waived, unless a motion to
suppress the deposition or
some part thereof is made
with reasonable promptness
after such defect is, or with
reasonable diligence might
have been, ascertained
WRITTEN INTERROGATORIES UNDER RULE 23
(a) A deposition need not be conducted through an

oral examination. It may be conducted through
written interrogatories which shall be served
upon every other party.
(b) The party served may also serve crossinterrogatories upon the party proposing to take
the deposition within 10 days from service of the
written interrogatories. The latter may, within 5
days serve re-direct interrogatories and within 3
days the other party may serve re-cross
interrogatories [Rule 23, Sec. 25]
(c) Copies of all these interrogatories shall be
delivered to the officer before whom the
deposition is taken and who shall take the
responses and prepare the record. [Rule 23, Sec.
26]
People v. Hubert Webb (1999): DEPOSITION, WHEN
AVAILABLE IN CRIMINAL CASES: A deposition, in
keeping with its nature as a mode of discovery,
should be taken BEFORE AND NOT DURING TRIAL.
Other rules
Effect of substitution of parties [Rule 23, Sec. 5]
(a) Substitution of parties does not affect the right to
use depositions previously taken;
(b) and, when an action has been dismissed and
another action involving the same subject is
afterward brought between the same parties or
their representatives or successors in interest,
(c) all depositions lawfully taken and duly filed in the
former action MAY BE USED IN THE LATTER AS
IF ORIGINALLY TAKEN THEREFOR.
In fact, rules on criminal practice - particularly on the

defense of alibi, which is respondents main defense in
the criminal proceedings against him in the court
below - states that when a person intends to rely on
such a defense, that person must move for the taking
of the deposition of his witnesses within the time
provided for filing a pre-trial motion.
The use of discovery procedure in criminal cases is
directed to the sound discretion of the trial judge.
The deposition taking cannot be based nor can it be
denied on flimsy reasons. Discretion has to be
exercised in a reasonable manner and in consonance
with the spirit of the law.
Effect of taking deposition [Rule 23, Sec. 7]

A party shall not be deemed to make a person his
own witness for any purpose by taking his deposition.
Effect of using deposition [Rule 23, Sec. 8]
General Rule: Introduction in evidence of deposition
or any part thereof for any purpose makes the
deponent the witness of the party introducing the
deposition.
Dasmarias Garments v. Reyes (1993): Any deposition

offered to prove the facts therein at the trial of the
case, in lieu of actual testimony of the deponent in
court, may be opposed and excluded for being
hearsay save in specific instances under the Rules.
Exception: if the purpose is to contradict or impeach

the deponent.
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DEPOSITIONS BEFORE ACTION UNDER RULE 24
ORDER AND EXAMINATION: If the court is

satisfied that the perpetuation of the testimony
may prevent a failure or delay of justice, it shall
make an order designating or describing the
persons whose deposition may be taken and
specifying the subject matter of the examination
and whether the depositions shall be taken upon
oral examination or written interrogatories.
Purpose
To perpetuate the testimony of witnesses for
probable use in the event of further proceedings in
said court.
Procedure
FILE A VERIFIED PETITION IN THE COURT OF
THE PLACE OF THE RESIDENCE OF ANY
EXPECTED ADVERSE PARTY.
Note: Procedure for taking deposition by oral

examination or written interrogatories will be
governed by Rule 23 on depositions de bene esse.
The petition shall be entitled in the name of the

petitioner and shall show:
(a) that the petitioner expects to be a party to
an action in a court of the Philippines but is
presently unable to bring it or cause it to be
brought;
(b) the subject matter of the expected action
and his interest therein;
(c) the facts which he desires to establish by
the proposed testimony and his reasons for
desiring to perpetuate it;
(d) the names or a description of the persons he
expects will be adverse parties and their
addresses so far as known; and
(e) the names and addresses of the persons to
be examined and the substance of the
testimony which he expects to elicit from
each, and shall ask for an order authorizing
the petitioner to take the depositions of the
persons to be examined named in the
petition for the purpose of perpetuating
their testimony.
DEPOSITIONS PENDING APPEAL UNDER RULE 24
J. Regalado believes that the following procedure is

applicable to civil and criminal cases.
Procedure:
DURING THE PENDENCY OF AN APPEAL, the
court in which the judgment was rendered may
allow the taking of depositions of witnesses to
perpetuate their testimony in the event of further
proceedings in the said court.
The party who desires to perpetuate the testimony

may make a motion in the said court for leave to
take the depositions, upon the same notice and
service thereof as if the action was pending
therein. The motion shall state:
(a) the names and addresses of the persons to be
examined and the substance of the testimony
which he expects to elicit from each, and
(b) the reason for perpetuating their testimony.
NOTICE AND SERVICE to each person named in

the petition as an expected adverse party, together
with a copy of the petition, stating that the
petitioner will apply to the court, at a time and
place named therein, for the order described in the
petition.
ORDER ALLOWING THE DEPOSITION: If the court

finds that the perpetuation of the testimony is
proper to avoid a failure or delay of justice, it may
make an order allowing the deposition to be taken.
WRITTEN INTERROGATORIES
PARTIES [Rule 25]
At least twenty (20) days before the date of the

hearing, the court shall cause notice thereof to be
served on the parties and prospective deponents in
the manner provided for service of summons.
TO
ADVERSE
PURPOSE
This mode of discovery is availed of by the party to

the action for the purpose of eliciting material and
relevant facts from any of the adverse party. [Rule
25, Sec. 1]
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PROCEDURE
FAILURE TO FILE WRITTEN INTERROGATORIES
(a) By leave of court after jurisdiction has been

obtained over any defendant or over property
which is the subject of the action, or
(b) Without such leave after an answer has been
served, any party desiring to elicit material and
relevant facts from any adverse parties shall file
and serve upon the latter written interrogatories
to be answered by the party served, or if the party
served is a public or private corporation or a
partnership or association, by any officer thereof
competent to testify in its behalf.
A party not served with written interrogatories may

not be compelled by the adverse party to give
testimony in open court, or to give a deposition
pending appeal, UNLESS allowed by the court for
good cause shown and to prevent failure of justice.
CONSEQUENCES OF REFUSAL TO ANSWER
(a) The party serving the interrogatories may apply to

the court for an order to compel an answer.
(b) If court also finds that the refusal to answer was
without substantial justification, it may require
the refusing party or deponent or the counsel
advising the refusal, or both of them, TO PAY THE
PROPONENT
THE
AMOUNT
OF
THE
REASONABLE EXPENSES INCURRED IN
OBTAINING
THE
ORDER,
INCLUDING
ATTORNEY'S FEES [Rule 29, Sec. 1].
(c) Refusal to comply with an order of the court to
compel an answer may be considered
CONTEMPT of that court [Rule 29, Sec. 2]
(d) The subject of discovery shall be DEEMED
ADMITTED OR ESTABLISHED [Rule 29 Sec. 3(a)].
(e) The disobedient party shall be prohibited from
introducing CONTRADICTORY EVIDENCE [Rule
29, Sec. 3(b)]
(f) STRIKING OUT OF PLEADINGS OR PARTS
THEREOF [Rule 29, Sec. 3(c)]
(g) STAYING FURTHER PROCEEDINGS UNTIL THE
ORDER IS OBEYED [Rule 29, Sec. 3(c)]
(h) DISMISSING THE ACTION OR PROCEEDING OR
ANY PART THEREOF [Rule 29, Sec. 3(c)]
(i) RENDERING A JUDGMENT BY DEFAULT
AGAINST THE DISOBEDIENT PARTY; AND [Rule
29, Sec. 3(c)]
(j) In lieu of any of the foregoing orders or in addition
thereto, an order directing the arrest of any party
or agent of a party for disobeying any of such
orders [Rule 29, Sec. 3(c)]
Note: Interrogatories under RULE 25 are served

directly upon the adverse party unlike written
interrogatories under RULE 23 which are delivered to
the officer before whom the deposition is to be taken.
ANSWER
(a) The interrogatories shall be ANSWERED FULLY

IN WRITING and shall be SIGNED AND SWORN
TO BY THE PERSON MAKING THEM.
(b) The party upon whom the interrogatories have
been served shall file and serve a copy of the
answers on the party submitting the
interrogatories within fifteen (15) days after
service thereof unless the court on motion and for
good cause shown, extends or shortens the time.
[Rule 25, Sec. 2]
EFFECT OF OBJECTIONS TO INTERROGATORIES
When objections to any interrogatories is presented

to the court within 10 days after service thereof, with
notice as in case of a motion, the answer shall be
deferred until the objections are resolved [Rule 25,
Sec. 3]
NUMBER OF INTERROGATORIES
No party may, without leave of court, serve more

than one set of interrogatories to be answered by the
same party. [Rule 23, Sec. 4]
REQUEST FOR ADMISSION [Rule 26]

PURPOSE
(a) To allow one party to request the adverse in

writing to admit certain material and relevant
matters which most likely will not be disputed
during the trial.
(b) To avoid unnecessary inconvenience to the
parties in going through the rigors of proof,
before the trial, a party may request the other to:
(1) admit the genuineness of any material and
relevant document described in and exhibited
with the request; or
(2) admit the truth of any material and relevant
matter of fact set forth in the request [Rule 26,
Sec. 1]
SCOPE OF INTERROGATORIES
Any matter
(a) not privileged, and
(b) relevant to the subject of the pending action,
whether relating to the claim or defense of any
other party, including the existence, description,
nature, custody, condition, and location of any
books, documents, or other tangible things and
the identity and location of persons having
knowledge of relevant facts.
USE OF INTERROGATORIES
Same as Rule 23, Sec. 4 mutatis mutandis.
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(a) good cause shown and

(b) to prevent a failure of justice,
a party who fails to file and serve a request for
admission on the adverse party of material and
relevant facts at issue which ARE, OR OUGHT TO BE,
WITHIN THE PERSONAL KNOWLEDGE OF THE
LATTER [Rule 26, Sec. 5]
WHEN MAY REQUEST BE MADE
At any time after issues have been joined.

Duque v. CA (2002): The request for admission MUST
BE SERVED ON THE PARTY and NOT ON THE
COUNSEL. This is an exception to the general rule
that notices shall be served upon counsel and not
upon the party.
PRODUCTION OR INSPECTION OF DOCUMENTS

OR THINGS [Rule 27]
IMPLIED ADMISSION BY ADVERSE PARTY
EACH OF THE MATTERS OF WHICH AN ADMISSION

IS REQUESTED SHALL BE DEEMED ADMITTED
unless,
(a) within a period designated in the request, which
shall not be less than 15 days after service
thereof, or within such further time as the court
may allow on motion,
(b) the party to whom the request is directed files
and serves upon the party requesting the
admission a SWORN STATEMENT either
(1) denying specifically the matters of which an
admission is requested, or
(2) setting forth in detail the reasons why he
cannot truthfully either admit or deny those
matters.
PROCEDURE
A motion must be filed by the party seeking the

production or inspection of documents and things
and the motion must show good cause supporting
the same. [Rule 27, Sec. 1]
The court in which the action is pending shall issue

an order:
(a) which shall specify the time, place and manner
of making the inspection and taking copies and
photographs, and
(b) which may prescribe such terms and conditions
as are just. [Rule 27, Sec. 1]
DEFERMENT OF COMPLIANCE
To avoid the implied admission, the party requested

may have the compliance of the filing and service of
the sworn statement be deferred by filing with court
objections to the request for admission.
WHAT THE COURT MAY ORDER
(a) To PRODUCE and PERMIT THE INSPECTION and

copying or photographing, by or on behalf of the
moving party, of any documents, papers, books,
accounts, letters, photographs, objects or
tangible things, not privileged, which constitute or
contain evidence material to any matter involved
in the action and which are in the possession,
custody or control of the party to whom the order
is addressed.
(b) To PERMIT ENTRY upon designated land or other
property in the position or control of the party to
whom the order is addressed for the purpose of
inspecting,
measuring,
surveying,
or
photographing the property or any designated
relevant object or operation thereon. [Rule 27,
Sec. 1]
Compliance shall be deferred until such objections

are resolved by the court. [Rule 26, Sec. 2 par. 2]
EFFECT OF ADMISSION
Any admission made by a party pursuant to such

request is for the purpose of the pending action only
and shall not constitute an admission by him for any
other purpose nor may the same be used against
him in any other proceeding. [Rule 26, Sec. 3]
WITHDRAWAL
The court may allow the party making an admission,

whether express or implied under the Rule to
withdraw or amend it upon such terms as may be
just.
Note: This mode of discovery does not mean that the

person who is required to produce the document or
the thing will be deprived of its possession even
temporarily. It is enough that the requesting party be
given the opportunity to inspect or copy or
photograph the document or take a look at the
thing. (Regalado) (Asked in the 2002 Bar Exam)
The admitting party must file a motion to be relieved

of the effects of his admissions.
EFFECT OF FAILURE TO FILE AND SERVE REQUEST FOR
ADMISSION
General rule: The party who fails to file a request shall

not be permitted to present evidence on such facts.
Exception: Unless otherwise allowed by the court for:
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PHYSICAL AND MENTAL EXAMINATION OF

PERSONS [Rule 28]
CONSEQUENCES OF REFUSAL TO COMPLY WITH

MODES OF DISCOVERY
See Annex C.
MOTION REQUESTING EXAMINATION
Requisites
(a) The physical or mental condition of a party (NOT
A WITNESS!) is in controversy
(b) Motion must be filed showing good cause
(c) Notice given to the party to be examined and to
all other parties
(d) Notice must specify the time, place, manner,
conditions and scope of examination
(e) Notice must also specify person/s who will make
the examination
Trial
TRIAL, DEFINED
A trial is the judicial process of investigating and
determining the legal controversies, starting with the
production of evidence by the plaintiff and ending
with his closing arguments [Acosta v. People (1962)].
A hearing is a broader term. It is not confined to the
trial and presentation of the evidence because it
actually embraces several stages in the litigation. It
includes the pre-trial and the determination of
granting or denying a motion. [Trocio v. Labayo
(1973)]
COURT TO ISSUE THE ORDER FOR EXAMINATION IN ITS

DISCRETION.
REPORT OF FINDINGS
(a) If requested by the party examined, the party

causing the examination to be made shall deliver
to him a copy of a detailed written report of the
examining physician setting out his findings and
conclusions.
(b) After such request and delivery, the party causing
the examination to be made shall be entitled
upon request to receive from the party examined
a like report of any examination, previously or
thereafter made, of the same mental or physical
condition.
(c) If the party examined refuses to deliver such
report, the court on motion and notice may make
an order requiring delivery on such terms as are
just
(d) If it is the physician who fails or refuses to make
such a report the court may exclude his testimony
if offered at the trial. [Rule 28, Sec. 3]
NOTICE OF TRIAL [Rule 30, Sec. 1]

Upon entry of a case in the trial calendar, the clerk
shall notify parties the date of its trial, ensuring
receipt of the notice at least 5 days before the trial
date.
ADJOURNMENTS AND POSTPONEMENTS [Rule
30, Sec. 2]
General rule: The court may adjourn a trial from day
to day to any stated time, as the expeditious and
convenient transaction of business may require.
Exception: Court may not adjourn for longer than 1
month for each adjournment, nor more than 3
months in all.
Exception to exception: When authorized in writing by
the SC Court Administrator.
WAIVER OR PRIVILEGE
By requesting and obtaining a report of the

examination so ordered or by taking the deposition
of the examiner, the party examined waives any
privilege he may have in that action or any other
involving the same controversy, regarding the
testimony of every other person who has examined
or may thereafter examine him in respect of the
same mental or physical examination.
Note: Postponement is not a matter of right. It is

addressed to the sound discretion of the court.
[Riano, citing Garces v Valenzuela (1989)]
REQUISITES OF MOTION TO POSTPONE TRIAL
(a) for absence of evidence
(b) for illness of party or counsel
PHYSICIAN-PATIENT PRIVILEGE
Ground for
postponement
of trial
(a) Inapplicable because the results of the

examination are intended to be made public.
(b) Such examination is not necessary to treat or cure
the patient but to assess the extent of injury or to
evaluate his physic al or mental condition.
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Requisite for motion to postpone
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Ground for
postponement
of trial
For absence of
evidence [Rule
30, Sec. 3]
For illness of
party/counsel
[Rule 30, Sec. 4]
CIVIL PROCEDURE
3rd-party defendant (if any) shall adduce evidence

of his defense, counterclaim, cross-claim and 4thparty complaint;
Requisite for motion to postpone

Affidavit showing:
(a) The materiality/relevancy of
such evidence;
(b) That due diligence has been
used to procure the evidence
4th-party (and so forth) shall adduce evidence of

the material facts pleaded by them;
But if the adverse party admits

the facts to be given in evidence,
trial shall not be postponed even
if he objects or reserves the right
to object to their admissibility.
Affidavit or sworn certification:
(a) That the presence of such
party/counsel at the trial is
indispensable;
(b) That the character of his
illness is such as to render his
non-attendance excusable.
Parties whom any counterclaim or cross-claim has

been pleaded, shall adduce evidence in support of
their defense, in the order prescribed by the court.
Parties may
evidence only.
respectively
adduce
rebutting
Exception: When the court permits them to adduce

evidence upon their original case, for good reasons
and in furtherance of justice.
SUBPOENA
See separate part for Subpoena BUT please take note

that Subpoenas are issued within the context of a Trial
and taking depositions under Modes of Discovery.
Upon admission of evidence, the case shall be

deemed submitted for decision, unless the court
directs the parties to argue or to submit their
respective memoranda or any further pleadings.
AGREED STATEMENT OF FACTS [Rule 30, Sec. 6]

(a) Parties may agree in writing upon the facts
involved in the litigation, and submit the case for
judgment without introduction of evidence.
(b) If the parties agree to only some of the facts in
issue, trial shall be held as to the disputed facts in
such order as the court shall prescribe.
If several defendants or 3rd-party defendants having

separate defenses appear by different counsel, the
court shall determine the relative order of
presentation of their evidence.
CONSOLIDATION OR SEVERANCE OF HEARING
OR TRIAL
CONSOLIDATION OF TRIAL [Rule 31, Sec. 1]
When actions involving common question of law/fact
are pending before the court, it may:
(a) Order a joint hearing/trial of any/all the matters
in issue in the actions;
(b) Order all the actions consolidated;
(c) Make such orders concerning the proceedings as
to avoid unnecessary costs or delay.
ORDER OF TRIAL; REVERSAL OF ORDER

CONDUCT OF TRIAL [Rule 30, Sec. 5]
General rule: Trial shall be limited to the issues stated
in the pre-trial order.
Exception:
(a) Provisions on separate trials in Rule 31, Sec. 2
(b) When for special reasons the court directs
otherwise.
Where a case has been partially tried before one

judge, the consolidation of the same with another
related case pending before another judge who had
no opportunity to observe the demeanor of the
witness during trial makes the consolidation not
mandatory. [PCGG v. Sandiganbayan (1992)]
GENERAL ORDER OF TRIAL
Plaintiff shall adduce evidence in support of his

claim;
Defendant shall adduce evidence in support of his

defense, counterclaim, cross-claim and 3rd-party
complaint;
SEVERANCE OF TRIAL [Rule 31, Sec. 2]
The court may issue separate trials for convenience

or to avoid prejudice:
(a) Of any claim, cross-claim, counterclaim or 3rdparty complaint;
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(b) Of any separate issue;

(c) Of any number of claims, cross-claims,
counterclaims, 3rd-party complaints or issues.
MEETING: The commissioner shall set a time/place

for the first meeting and shall notify
parties/counsels.
STATEMENT OF JUDGE [Rule 30, Sec. 7]
REPORT: Upon completion of the trial/hearing, the

commissioner shall file a written report with the
court.
During the hearing/trial of the case, any statement

made by the judge shall be made of record in the
TSN
if
made
with
reference
to
the
case/parties/witnesses/ counsels.
NOTICE: The clerk shall notify parties of the filing of

the report. The parties have 10 days to object to the
reports findings.
SUSPENSION OF ACTIONS [Rule 30, Sec. 8]
Governed by the CC provisions
HEARING: After the 10 days, the report shall be set

for hearing. The court may issue an order
adopting/modifying/rejecting the report or part of it.
DELEGATION OF RECEPTION OF EVIDENCE [Rule

30, Sec. 9]
When parties stipulate that the Commissioner's

findings of fact are final, only questions of law shall
thereafter be considered.
General rule: The judge of the court where the case is

pending shall personally receive the evidence to be
adduced by the parties.
POWERS OF THE COMMISSIONER [Rule 32, Sec. 3]
Exception: The court may delegate the reception of

evidence to its clerk of court who is a member of the
bar in:
(a) Default hearings;
(b) Ex parte hearings;
(c) Cases where parties agree in writing.
When a reference is made, the clerk shall forthwith

furnish the commissioner with a copy of the order of
reference. The order may:
(a) Specify/limit the commissioners power
(b) Direct him to report only upon particular issues,
to do/perform particular acts, or direct him to
receive and report evidence only
(c) May fix the date for beginning and closing the
hearings and for the filing of his report.
However, the clerk of court has no power to rule on

objections to any question/admission of exhibits.
Objections shall be resolved by the court upon
submission of the clerks report and TSN within 10
days from termination of the hearing.
Powers of the Commissioner:

(a) Regulate the proceedings in every hearing before
him [subject to other specifications & limitations
in the order]
(b) Power to do all acts and take all measures
necessary or proper for the efficient performance
of his duties under the order [subject to other
specifications & limitations in the order]
(c) He may issue subpoenas and subpoenas duces
tecum, swear witnesses.
(d) He may rule upon the admissibility of evidence,
unless otherwise provided in the order of
reference.
TRIAL BY COMMISSIONERS
COMMISSIONER Includes a referee, an auditor or
an examiner. [Rule 32, Sec. 1]
KINDS OF TRIAL BY COMMISSIONER [Rule 32, Secs. 1 & 2]
(a) Reference by consent of both parties.

(b) Reference ordered on motion when:
(1) Trial of an issue of fact requires the
examination of a long account on either side
(2) Taking of an account is necessary for the
courts information before judgment, or for
carrying judgment/order into effect.
(3) A question of fact, other than upon the
pleadings, arises in any stage of a case or for
carrying a judgment/order into effect.
The trial or hearing before him shall proceed in all

respects as it would if held before the court.
COMMISSIONERS REPORT; NOTICE TO PARTIES AND
HEARING ON THE REPORT
Report of commissioner [Rule 32, Sec. 9]

Upon the completion of the trial or hearing or
proceeding before the commissioner, he shall file
with the court his report in writing upon the matters
submitted to him by the order of reference.
REFERENCE BY CONSENT OR ORDERED ON MOTION
Order of reference [Rule 32, Sec. 2 to 12]

ORDER OF REFERENCE: When a reference is made,
the clerk shall furnish the commissioner with a copy
of the order of reference.
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When his powers are not specified or limited, he shall

set forth his findings of fact and conclusions of law in
his report.
Grant of demurrer
The case
dismissed
He shall attach thereto all exhibits, affidavits,

depositions, papers and the transcript, if any, of the
testimonial evidence presented before him.
Notice to parties of the filing of report [Rule 32, Sec.
10]
Upon the filing of the report, the parties shall be
notified by the clerk, and they shall be allowed 10
days within which to signify grounds of objections to
the findings of the report, if they so desire.
shall
Denial of demurrer
be
Plaintiff's remedy would

be to appeal.
Objections to the report based upon grounds which

were available to the parties during the proceedings
before the commissioner, other than objections to
the findings and conclusions therein, set forth, shall
not be considered by the court unless they were
made before the commissioner.
The defendant shall have

the right to present
evidence
The court should set the
date for the reception of
the
defendants
evidence-in-chief
[Northwest Airlines v. CA
(1998)]
xxx
However, if the order

granting the demurrer is
reversed on appeal, the
defendant loses his right
to present evidence.
[Rule 33, Sec 1; Republic
v. Tuvera (2007)]
Hearing on the report [Rule 32, Sec. 11]

Upon the expiration of the 10-day period in Rule 32,
Sec. 10, the report shall be set for HEARING.
The appellate court

should render judgment
on the basis of the
evidence submitted by
the
plaintiff.
[Radiowealth Finance v.
Del Rosario (2000)]
Equivalent to judgment
(i.e. based on the merits
of
the
evidence
presented so far)
After which the court shall issue an ORDER:

(a) Adopting (in whole or in part),
(b) Modifying (in whole or in part)
(c) Rejecting the report (in whole or in part),
(d) Recommitting the report with instructions, or
(e) Requiring the parties to present further evidence
before the commissioner or the court.
Demurrer to Evidence
An interlocutory order
and not appealable.
However, it may be the
subject of a petition for
certiorari for GAD under
Rule 65 [Katigbak v.
GROUND
DEFINITION:
A species of MTD that may be invoked

based on insufficiency of evidence (i.e. upon the facts
and the law the plaintiff has shown no right to relief).
[Rule 33, Sec. 1]
MTD
When to File
Before the service and After the plaintiff rests
filing of the answer
his case
Ground
Those enumerated in Only
ground:
The
Rule 16
plaintiff has shown no
right to relief (i.e.
evidence is insufficient)
Effect
If a MTD is granted,
the
complaint
is
likewise
dismissed.
But, depending on the
ground, the complaint
may be re-filed
It is invoked after the plaintiff has presented all the

evidence available to him.
EFFECT OF DENIAL; EFFECT OF GRANT
Grant of demurrer
Demurrer
Denial of demurrer
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MTD
(c) Parties must have been given an opportunity to

adduce evidence in their behalf;
(d) Evidence must have been considered by the
tribunal in deciding the case; [Acosta v. COMELEC
(1998)]
(e) Judgment must be in writing, personally and
directly prepared by the judge;
(f) Note: A verbal judgment is, under the law,
ineffective. [Corpus v. Sandiganbayan (2004)]
(g) Judgment must state clearly the facts and the
law upon which the decision is based, signed by
the judge and filed with the clerk of court. [Rule
35, Sec. 1]
Demurrer
If the MTD is denied,

the defendant shall file
his
responsive
pleading
WAIVER OF RIGHT TO PRESENT EVIDENCE
If the order granting the demurrer is reversed on
appeal, the defendant loses his right to present
evidence. [Rule 33, Sec .1; Republic v. Tuvera (2007)]
A decision need not be a complete recital of the

evidence presented. So long as the factual and legal
bases are distinctly and clearly set forth, the
judgment is valid. [People v. Baring (2002)]
DEMURRER TO EVIDENCE IN A CIVIL CASE V.

DEMURRER TO EVIDENCE IN A CRIMINAL CASE
DIFFERENCES BETWEEN
CRIMINAL CASES (Asked
Exams)
Demurrer in civil cases
DEMURRER
IN
CIVIL
AND
in the 2003 and 2007 Bar
Defendant need not ask

for leave of court
If the demurrer is
granted, the order of
dismissal is appealable
If a demurrer is denied,
the defendant may
proceed to present his
evidence
KINDS OF JUDGMENT
(1) JUDGMENT UPON COMPROMISE - It is one

conferred on the basis of a compromise
agreement entered into between the parties. It is
immediately executory in the absence of a motion
to set aside on the ground of FAME.
Demurrer in criminal
cases
May be filed with or
without leave of court.
Note: Leave of court is
necessary so that the
accused can present his
evidence in case the
demurrer is denied [Rule
119, Sec. 23]
The order of dismissal is
not appealable because
it will constitute double
jeopardy
The accused may adduce
his evidence only if the
demurrer is field with
leave of court
(2) JUDGMENT UPON CONFESSION - It is one

rendered by the court when a party expressly
agrees to the other partys claim or acknowledges
the validity of the claim against him.
Judgments and Final Orders
Judgment upon
compromise
Judgment by confession
The provisions and terms

are settled by the parties
to the action. The
judgment is entered in
the record by consent of
the court.
An
affirmative
and
voluntary act of the
defendant himself. The
court exercises a certain
amount of supervision
over the entry of
judgment.
Kinds of judgment by confession:

(a) JUDGMENT BY COGNOVIT ACTIONEM After
service, the defendant, instead of entering a plea,
acknowledged and confessed that the plaintiffs
cause of action was just and rightful.
(b) JUDGMENT
BY
CONFESSION
RELICTA
VERIFICATIONE After pleading and before trial,
the defendant both: (a) confessed the plaintiffs
cause of action and (b) withdrew his plea or other
allegations, whereupon judgment was entered
against him without proceeding to trial.
JUDGMENT
The final ruling by a court of competent jurisdiction
regarding the rights and obligations of the parties or
other matters submitted to it in an
action/proceeding [Macahilig v. Heirs of Magalit
(2000)]
[Rule 36, Sec. 1; Art.
8, Sec. 14, 1987 Constitution] [AJOEWS]
(a) Court/tribunal must be with authority to hear and
determine the matter before it;
(b) Court must have jurisdiction over the parties and
the subject matter;
REQUISITES OF A VALID JUDGMENT
Remedy against judgment by consent, confession

or compromise is to first file a motion to set it
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aside; if denied, file the appropriate petition

under Rule 65.
may stay its enforcement until rendition of

subsequent judgments, and may prescribe
conditions to secure the judgments benefits.
(3) JUDGMENT UPON THE MERITS - It is one that is

rendered after consideration of the evidence
submitted by the parties during the trial of the
case. A judgment is on the merits when it
amounts to a legal declaration of the respective
rights and duties of the parties, based upon the
disclosed facts
Judgment may be given for/against one or more

of several plaintiffs/defendants. The court may
require the parties on each side to file adversary
pleadings as between themselves. [Rule 36, Sec.
3]
(4) CLARIFICATORY JUDGMENT - It is rendered to

clarify an ambiguous judgment or one difficult
to comply with.
If judgment is rendered against 2 or more

persons sued as an entity without juridical
personality, the judgment shall set out their
individual names (if known). [Rule 36, Sec. 6]
(5) JUDGMENT NUNC PRO TUNC - Literally, now

for then. It is a judgment intended to enter into
the record the acts which had already been
done, but which do not appear in the records.
[Lichauco v. Tan Pho (1923)]
(10) PROMULGATION - The process by which a

decision is published, officially announced,
made known to the public or delivered to the
clerk of court for filing, coupled with notice to
the parties or their counsel.
(6) JUDGMENT SIN PERJUICIO - It may refer to a

dismissal of a case without prejudice to it being
re-filed.
(11) MEMORANDUM DECISION - A decision of the

appellate court which adopts the findings and
conclusions of the TC.
(a) A judgment is considered rendered upon the
filing of the signed decision.
(b) This includes an amended decision because
an amended decision is a distinct and
separate judgment and must follow the
established procedural rule.
(7) CONDITIONAL JUDGMENT - It is one the

effectivity of which depends upon the occurrence
or non-occurrence of an event. Such a judgment
is generally void because of the absence of a
disposition [Cu-Unjieng v. Mabalacat Sugar Co.
(1940)]
JUDGMENT WITHOUT TRIAL

WHEN TRIAL IS NOT NECESSARY PSADSA (Asked in the
1996 Bar Exams) [Riano]
(a) The pleadings of the parties tender no issue at all
judgment on the pleadings may be directed by
the court [Rule 34]
(b) There is actually no genuine issue from the
pleadings, affidavits, depositions and other
papers court may render a summary judgment
[Rule 35]
(c) Parties entered into a compromise or an amicable
settlement either during the pre-trial or during
the trial [Rule 18; Art. 2028 Civil Code]
(d) Complaint has been dismissed with prejudice
[Rule 16, Sec. 5; Rule 17, Sec. 3; Rule 7, Sec. 5 (last
par.)]
(e) Case falls under the Rules on Summary
Procedure
(f) Agreed statement of facts [Rule 30, Sec. 6]
(8) SEVERAL JUDGMENT - It is one rendered by a

court against one or more defendants and not
against all of them, leaving the action to
proceed against the others. [Rule 36, Sec. 4] It is
proper when the liability of each party is clearly
separate and distinct from his co-parties such
that the claims against each of them could have
been the subject of separate suits, and the
judgment for or against one of them will not
necessarily affect the other.
(9) SEPARATE JUDGMENT - It is one rendered
disposing of a claim among several others
presented in a case, after a determination of the
issues material to a particular claim and all
counterclaims arising out of the transaction or
occurrence that is the subject matter of said
claim. [Rule 36, Sec. 5] It is proper when more
than one claim for relief is presented in an action
for the determination as to the issues material to
the claim has been made.
CONTENTS OF A JUDGMENT
PARTS OF A JUDGMENT
(a) Body, Ratio decidendi, or Opinion of the court It

contains the findings of facts and conclusions of
law;
The judgment shall terminate the action with

respect to the claims disposed of, and shall
proceed as to the remaining claims. The court
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(b) Fallo, or Disposition of the case It is the

dispositive part of the judgment that actually
settles and declares the rights and obligations of
the parties, finally, definitively, and authoritatively
[Light Rail Transit Authority v. CA] (2004); The
part of the judgment that is subject to execution
[Riano]
(c) Signature of the judge.
(b) Admits the material allegations of the adverse

partys pleading.
CANNOT BE RENDERED MOTU PROPRIO
A judgment on the pleadings can be done only upon

MOTION to that effect filed by the appropriate party.
It cannot be rendered by the court motu proprio.
Exception: If at pre-trial the court finds that a
judgment on the pleadings is proper, it may render
such judgment motu proprio. [Rule 18, Sec. 2(g)]
DISTINCTION BETWEEN JUDGMENT AND OPINION OF THE

COURT (ASKED IN THE 2006 BAR EXAM)
(a) A judgment (or FALLO) must be distinguished

from an opinion.
(b) The latter is the informal expression of the views
of the court and cannot prevail against its final
order or decision.
(c) While the two may be combined in one
instrument, the opinion forms no part of the
judgment.
(d) So there is a distinction between the findings and
conclusions of a court and its judgment.
(e) While they may constitute its decision and
amount to a rendition of a judgment they are not
the judgment itself.
(f) They amount to nothing more than an order for
judgment, which, of course, must be
distinguished from the judgment. [Freeman on
Judgments, Vol. I, 5th Edition, page 6, quoted in
Casilan v. Salcedo (1969)]
WHEN JUDGMENT ON THE PLEADINGS WILL NOT APPLY
(a) Declaration of nullity of marriage;

(b) Annulment of marriage;
(c) Legal separation.
Effect: judgment on the pleadings will not lie and
material facts alleged in the complaint must always
be proved
EFFECTS
(a) By moving for judgment on the pleadings, the

plaintiff waives his claim for unliquidated
damages (because claims for such damages
must be alleged and proved).
(b) One who prays for the judgment on the pleadings
without offering proof as to the truth of his own
allegations and without giving the opposing party
an opportunity to introduce evidence must be
understood to admit all material and relevant
allegations of the opposing party and to rest his
motion for judgment upon those allegations
taken together with such of his own as are
admitted in the pleadings. [Falcasantos v. How
Suy Ching (1952)]
CONFLICT BETWEEN THE DISPOSITIVE PORTION AND BODY

OF THE DECISION
Rule: Where there is a conflict between the fallo and

the body of the decision, the fallo controls.
Qualification: This rule applies only when the
dispositive part is definite, clear, and unequivocal
[Union Bank v. Pacific Equipment Corporation (2008)]
SUMMARY JUDGMENTS [Rule 35] (Asked in the

1986, 1989, 1996 and 1999 Bar Exams)
Basis: The fallo is the final order. The opinion in the

body is merely a statement ordering nothing [Poland
Industrial Limited v. National Development Company
(2005)]
DEFINITION, NATURE
A judgment granted by the court for the prompt

disposition of civil actions, if it clearly appears (after
the issues had been joined and on the basis of the
pleadings and papers filed) that there exists no
genuine issue/controversy as to any material fact,
except as to the amount of damages. [Ley
Construction v. Union Bank (2000); Agbada v InterUrban Developers (2002); Raboca v. Velez (2000)]
JUDGMENT ON THE PLEADINGS [Rule 34] (Asked

in the 1999 and 2005 Bar Exams)
GROUNDS:
If the answer either

(a) Fails to tender an issue;
Note: An answer fails to tender an issue due to
either:
(1) General denial of the material allegations of
the complaint;
(2) Insufficient denial of the material allegations
of the compliant.
Also called accelerated judgment.

GENUINE ISSUE
(a) An issue of fact which calls for the presentation of

evidence; as distinguished from an issue which is
sham, fictitious, contrived and patently
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insubstantial so as not to constitute a genuine

issue for trial.
(b) When the facts as pleaded appear uncontested or
undisputed, then there is no real/genuine issue
as to the facts.
(c) The TC cannot motu propio issue a summary
judgment. A party must move for summary
judgment. [Riano]
(d) Answers to interrogatories. (Rule 25)
PROCEDURE [Rule 35, Sec. 3]
Adverse party may serve opposing affidavits,

depositions or admissions at least 3 days before the
hearing
Duty of Court [Rule 35, Sec. 4]

(a) Ascertain what material facts exist without
substantial controversy and what are actually and
in good faith controverted based on:
(1) An examination of the pleadings and evidence
before it
(2) Interrogation of the counsel
(b) Make an order specifying the facts and the extent
of the amount of damages that appear without
substantial controversy
(c) Direct further proceedings as are just
(d) Conduct trial on the controverted facts
accordingly
Hearing Court shall determine if a genuine issue

as to any material fact exists and if the movant is
entitled to a summary judgment as a matter of law
Effect
A partial summary judgment is not a final judgment,
but merely a pre-trial adjudication that said issues in
the case shall be deemed established for the trial of
the case. [Guevarra v. CA (1983)]
WHEN THE CASE NOT FULLY ADJUDICATED
Partial summary judgment (Asked in the 2004 Bar

Exam)
Applies when for some reason there can be no full
summary judgment. Trial should deal only with the
facts not yet specified or established.
Movant files a motion for summary judgment with

supporting affidavits, depositions or admission
Service to the adverse party at least 10 days the

hearing
AFFIDAVITS AND ATTACHMENTS
Form of affidavits and supporting papers [Rule 35,

Sec. 5]
(a) Made on personal knowledge
(b) Shall set forth such facts as would be admissible
in evidence
(c) Shall show affirmatively that the affiant is
competent to testify to the matters stated
therein.
Judgment
FOR THE CLAIMANT [Rule 35, Sec. 1]
FOR THE DEFENDANT [Rule 35, Sec. 2]
Who may file the

motion
Claimant
Defendant
When
Attachments [Rule 35, Sec. 5]

Certified true copies of all papers or parts thereof
referred to in the affidavit shall be attached thereto
OR served therewith.
May file the motion only after

the answer has been served
May file the motion any time
Affidavits in bad faith [Rule 35, Sec. 5]

Definition Affidavits presented under this Rule
which appear to the court at any time as presented in
bad faith or solely for the purpose of delay
Filing of a motion for summary judgment does not

interrupt the running of the period for filing an
answer. Hence, the movant must also file a Motion
for Extension of Time to File Answer.
Effects:
(a) Court shall order the offending party or counsel
to pay the other party amount of reasonable
expenses which the filing of the affidavits caused
him to incur, including attorneys fees
(b) Court may adjudge the offending party or counsel
guilty of contempt, after hearing
Bases of summary judgment: When, upon the

following, no genuine issue as to any material fact
exists:
(a) Affidavits made on personal knowledge;
(b) Depositions of the adverse or a 3rd party; (Rule
23)
(c) Admissions of the adverse party; (Rule 26)
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JUDGMENT ON THE PLEADINGS VERSUS

SUMMARY JUDGMENTS
Summary
Judgment on
Judgment by
judgment
the pleadings
default
Based on the Based solely Based on the
pleadings,
upon
the complaint
and
depositions,
pleadings
evidence, if court
admissions
requires
its
and affidavits
presentation
There is no The answer No issues as no
genuine issue fails to tender answer is filed by
between the an issue or the
defending
parties
there is an party
admission of
the material
allegations
Available
to Generally
Available to the
both plaintiff available only plaintiff alone
and defendant to
the
plaintiff,
unless
the
defendant
presents
a
counterclaim
10-day notice 3-day notice 3-day notice rule
required
required
applies
May
be On the merits On the merits
interlocutory or
on the merits
Usually
Available in Available in any
available
in any
action, action,
except
actions
to except
annulment
of
recover a debt, annulment of marriage or legal
or
for
a marriage or separation cases
liquidated sum legal
of money, or separation
for declaratory cases
relief
PERIOD WITHIN WHICH DECISION IS TO BE RENDERED [1987
Constitution, Art. VIII, Sec. 15]

(a) All cases filed must be decided or resolved by the
Supreme Court within 24 months from the date
of their submission for decision.
(b) Unless reduced by the SC, within 12 months for
lower collegiate courts and within 3 months for
all other lower courts.
A case is deemed submitted for resolution upon the
filing of the last pleading, brief or memorandum
required by the Rules of Court or by the court.
An extension of the period may be set by the SC
upon request by the judge concerned on account of
heavy caseload or by other reasonable excuse [Arap v
Mustafa (2002)]
INTERPRETATION OF THE JUDGMENT
Where the judgment is difficult to execute because of

ambiguity in its terms, the remedy of the party is to
file a motion for clarificatory judgment and not to
assail the judgment as void. [Poland Industrial
Limited v National Development Company (2005)]
ENTRY OF JUDGMENT AND FINAL ORDER
DEFINITION OF ENTRY OF JUDGMENT
The entry of judgment refers to the physical act

performed by the clerk of court in entering the
dispositive portion of the judgment in the book of
entries of judgment after the same has become final
and executory. [Riano]
Rendition of judgment
Filing of the judgment
with the clerk of court
RENDITION OF JUDGMENTS AND FINAL ORDERS

FORM OF JUDGMENT [Rule 36, Sec. 1]
(a) In writing
(b) Personally and directly prepared by the judge
(c) Stating clearly & distinctly the facts and the law
on which it is based
(d) Signed by the judged
(e) Filed with the clerk of court.
Entry of judgment
Act of clerk of court in
entering the dispositive
portion of the judgment
in the book of entries of
judgment
[Rule 36, Sec.

2]
If there is no appeal/MNT/MFR filed within the
prescribed periods, the clerk of court shall enter the
judgment or final order in the book of entries of
judgments.
ENTRY OF JUDGMENTS AND FINAL ORDERS
DEFINITION OF RENDITION OF JUDGMENT
It is the filing of the judgment with the clerk of court. It

is not the pronouncement of the judgment in open
court that constitutes the rendition. Even if the
judgment has already been put in writing and
signed, it is still subject to amendment if it has not
yet been filed with the clerk of court and before its
filing does not yet constitute the real judgment of the
court. [Ago v. CA (1962)]
Date of finality of the judgment = Date of its entry in

the book
Note: the periods for filing the following pleadings
are reckoned from the date of entry of judgment
(a) Execution of a judgment by motion (5 years from
entry) [Rule 39, Sec. 6]
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(b) Petition for relief (as one of its periods, not more
than 6 months from entry of the judgment or
final order) [Rule 38, Sec. 3]
Rule 65. It does not apply to cases that fall under

Summary Procedure.
GROUNDS
The record:
(a) Shall contain the judgments dispositive part
(b) Shall be signed by the clerk of court with a
certificate that the judgment has become final
and executory.
Rule 37, Sec.1. Grounds of and period for filing motion

for new trial or reconsideration.Within the period for
taking an appeal, the aggrieved party may move the
trial court to set aside the judgment or final order
and grant a new trial for one or more of the following
causes materially affecting the substantial rights of
said party:
(a) Fraud, accident, mistake or excusable negligence
which ordinary prudence could not have guarded
against and by reason of which such aggrieved
party has probably been impaired in his rights; or
(b) Newly discovered evidence, which could not, with
reasonable diligence, have discovered and
produced at the trial, and which if presented
would probably alter the result.
(Asked in the 2008 Bar

Exams)
The power to amend judgments is inherent to the
court before judgment becomes final and executory.
AMENDMENTS TO JUDGMENT
General rule: The court cannot amend the judgment

once it has become final and executory.
Exception:
(a) To make corrections of clerical errors, not
substantial amendments, as by an amendment
non pro tunc;
(b) To clarify an ambiguity which is borne out by and
justifiable in the context of the decision;
(c) In judgments for support, which can always be
amended from time to time.
Amended/clarified
judgment
An entirely new decision
and supersedes the
original judgment
Court makes a thorough
study of the original
judgment and renders
the
amended
and
clarified judgment only
after considering all the
factual and legal issues
Within the same period, the aggrieved party may

also move for reconsideration upon the grounds that
the damages awarded are excessive, that the
evidence is insufficient to justify the decision or final
order, or that the decision or final order is contrary
law.
Supplemental decision
Grounds for a motion for reconsideration

(a) The evidence is insufficient to justify the decision;
(b) The damages awarded are excessive;
(c) The decision or final order is contrary to law.
Does not take the place

of or extinguish the
original judgment
Serves to add to the
original judgment
Form and content of a motion for reconsideration

Motion for reconsideration must be in writing, a
written notice of which must be served on the adverse
party.
It is not sufficient to mention the ground relied upon.
It is necessary for the motion for reconsideration to
point out specifically the findings or conclusions of the
judgment or final order which are not supported by the
evidence or which are contrary to law, making express
reference to the testimonial or documentary
evidence or to the provisions of law alleged to be
contrary to such findings or conclusions.
Post-Judgment Remedies
REMEDIES BEFORE FINALITY OF JUDGMENT
(a) Motion for Reconsideration
(b) Motion for New Trial
(c) Appeal
Non-compliance with this requirement would reduce

the motion to a mere pro forma motion, which shall
not toll the period for appeal.
MOTION FOR NEW TRIAL OR RECONSIDERATION
Grounds for motion for new trial

The aggrieved party may move the trial court to set
aside the judgment or final order and grant a new
trial for one or more of the following causes
materially affecting the substantial rights of the said
party:
MOTION FOR RECONSIDERATION
A motion for reconsideration under Rule 37 is

directed against a judgment or final order. It is not
the motion for reconsideration of interlocutory order,
which often precedes a petition for certiorari under
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(a) FAME (Extrinsic Fraud, Accident, Mistake or

Excusable Negligence) which ordinary prudence
could not have guarded against and by reason of
which the aggrieved party has probably been
impaired in his rights.
(1) The motion shall be supported by affidavits of
merit. Non-compliance with this requirement
would reduce the motion to a mere pro forma
motion.
(2) The affidavits of merit must show the facts
(not mere conclusions or opinions)
constituting the valid cause of action or
defense which the movant may prove in case a
new trial is granted. Otherwise, if the
complaint is after all groundless or the
defense is ineffective, a new trial would serve
no purpose.
(b) Newly discovered evidence, which he could not,
with reasonable diligence, have discovered and
produced at the trial, and which if presented
would probably alter the result.
(1) The motion shall be supported by: affidavits of
the witnesses by whom such evidence is
expected to be given; and/or duly
authenticated documents which are proposed
to be introduced in evidence.
(2) Non-compliance with this requirement would
reduce the motion to a mere pro forma
motion.
appealed from. The 15-day period is deemed to

commence upon receipt by the counsel of record,
which is considered notice to the parties. Service
upon the parties themselves is prohibited and is not
considered as official receipt of judgment.
No motion for extension of time shall be allowed.
Where a record on appeal is required, the appellant
shall file:
(a) a notice of appeal, and
(b) record on appeal within 30 days from notice of
the judgment or final order.
A record on appeal is required only in:
(a) Special proceedings;
(b) Other cases of multiple or separate appeals.
Resolution of the motion
Rule 37, Sec. 4. Resolution of motion. A motion for
new trial or reconsideration shall be resolved within
30 days from the time it is submitted for resolution.
Effect of filing
The filing of a timely motion interrupts the period to
appeal.
The 30-day period to resolve the motion is held to be
mandatory [Gonzales v. Bantolo (2006)]
Rule 37, Sec. 3. Action upon motion for new trial or
reconsideration.The trial court may set aside the
judgment or final order and grant a new trial, upon
such terms as may be just, or may deny the motion. If
the court finds that excessive damages have been
awarded or that the judgment or final order is
contrary to the evidence or law, it may amend such
judgment or final order accordingly.
Tumang v. CA (1989): Newly discovered evidence may

and does commonly refer to evidence already in
existence prior to or during trial but which could not
have been secured and presented during the trial
despite reasonable diligence on the part of the
litigant.
Extrinsic fraud: any fraudulent scheme executed by
the prevailing party outside of the trial against the
losing party who, because of such fraud, was
prevented from presenting his side of the case.
DENIAL OF THE MOTION; EFFECT
Denial of motion for reconsideration

The judgment or final order shall stand as is.
Intrinsic fraud: acts of a party during the trial which

does not affect the presentation of the case.
Rule 37, Sec. 7. Partial new trial or reconsideration.If

the grounds for a motion under this Rule appear to
the court to affect the issues as to only a part, or less
than all of the matter in controversy, or only one, or
less than all, of the parties to it, the court may order
a new trial or grant reconsideration as to such issues
if severable without interfering with the judgment or
final order upon the rest.
Accident: an event that occurs without ones foresight

or expectation.
Mistake: generally, mistakes of facts or law where, in
good faith, the defendant was misled in a case.
WHEN TO FILE
Single motion rule

Rule 37, Sec. 5. Second motion for new trial.A
motion for new trial shall include all grounds then
available and those not so included shall be deemed
waived. A second motion for new trial based on a
The motion must be filed within the period for

appeal.
The period for appeal is within 15 days after notice to
the appellant of the judgment or final order
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ground not existing or available when the first

motion was made, may be filed within the time
herein provided excluding the time during which the
first motion had been pending.
Habaluyas v. Japson (1986): A motion for new trial or

reconsideration is not a prerequisite to an appeal, a
petition for review or a petition for review on
certiorari. And since the purpose is to expedite the
final disposition of cases, a strict but prospective
application of said ruling is in order.
No party shall be allowed a second motion for

reconsideration of a judgment or final order.
The prohibition on a second motion does not apply
to a motion for reconsideration of an interlocutory
order.
Fresh period rule

Neypes v. CA (2005): If the motion is denied, the
movant has a fresh period of 15 days from receipt
or notice of the order denying the motion for new
trial or motion for reconsideration within which to file
an appeal.
Denial of motion for new trial

The judgment or final order shall stand as is.
Rule 37, Sec. 8. Effect of order for partial new trial.
When less than all of the issues are ordered retried,
the court may either enter a judgment or final order
as to the rest, or stay the enforcement of such
judgment or final order until after the new trial.
This fresh period rule shall also apply to:

(a) Rule 40 governing appeals from the Municipal
Trial Courts to the Regional Trial Courts;
(b) Rule 42 on petitions for review from the Regional
Trial Courts to the Court of Appeals;
(c) Rule 43 on appeals from quasi-judicial
agencies to the Court of Appeals; and
(d) Rule 45 governing appeals by certiorari to the
Supreme Court.
When there is an order for partial new trial, the court

may either enter a judgment or final order as to the
rest, or stay the enforcement of such judgment or
final order until after the new trial.
When a second motion for new trial is permissible:
When a ground for new trial was not existing or
available when the first motion was made.
The new rule aims to regiment or make the appeal

period uniform, to be counted from receipt of the
order denying the motion for new trial, motion for
reconsideration (whether full or partial) or any final
order or resolution.
GRANT OF THE MOTION; EFFECT
Grant of motion for reconsideration

The court may amend the judgment or final order
accordingly. The amended judgment is in the nature
of a new judgment, which supersedes the original
judgment.
APPEALS IN GENERAL
JUDGMENTS AND FINAL ORDERS SUBJECT TO APPEAL
Rule 41 [as amended by A.M. 07-7-12 (2007)]

SECTION 1. Subject of appeal. An appeal may be
taken from a judgment or final order that completely
disposes of the case, or of a particular matter therein
when declared by these Rules to be appealable.
Grant of motion for new trial

The original judgment shall be vacated, and the
action shall stand for trial de novo. The recorded
evidence upon the former trial shall be used at the
new trial without retaking them (if they are material
and competent).
REMEDY WHEN MOTION IS DENIED, FRESH
RULE
No appeal may be taken from:

(a) An order denying a petition for relief or any
similar motion seeking relief from judgment;
(b) An interlocutory order;
(c) An order disallowing or dismissing an appeal;
(d) An order denying a motion to set aside a
judgment by consent, confession or compromise
on the ground of fraud, mistake or duress, or any
other ground vitiating consent;
(e) An order of execution;
(f) A judgment or final order for or against one or
more of several parties or in separate claims,
counterclaims, cross-claims and third-party
complaints, while the main case is pending,
unless the court allows an appeal therefrom; and
(g) An order dismissing an action without prejudice.
15-DAY PERIOD
Rule 37, Sec. 9. Remedy against order denying a

motion for new trial or reconsideration. An order
denying a motion for new trial or reconsideration is
now appealable. (As modified by AM 07-7-12)
Remedy if motion is denied
(a) To appeal from the judgment or final order itself.
(b) The order denying the motion for new trial or
reconsideration may itself be assailed by a
petition for certiorari under Rule 65.
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MODES OF APPEAL
In any of the foregoing circumstances, the aggrieved

party may file an appropriate special civil action as
provided in Rule 65.
Ordinary appeal
Procedure in the Court of Appeals
Ordinary appealed cases
Rule 44, Sec. 1. Title of cases. In all cases appealed
to the Court of Appeals under Rule 41, the title of the
case shall remain as it was in the court of origin, but
the party appealing shall be further referred to as the
appellant and the adverse party as the appellee.
Significance of the amendment

An order denying motion for new trial or
reconsideration is NOW APPEALABLE!
Final Order
Interlocutory Order
Disposes of the matter

in its entirety, leaving
nothing more to be done
but to enforce execution
Appealable
Does not dispose of a

case completely but
leaves something more
to be decided upon.
Not appealable except
through a petition for
certiorari under Rule 65
No need to comply with
such a requirement
Must
clearly
and
distinctly state the law
and the facts on which it
is based
Counsels and guardians

Rule 44, Sec. 2. Counsel and guardians. The
counsel and guardians ad litem of the parties in the
court of origin shall be respectively considered as
their counsel and guardians ad litem in the Court of
Appeals. When others appear or are appointed,
notice thereof shall be served immediately on the
adverse party and filed with the court.
Order of transmittal of record
Rule 44, Sec. 3. Order of transmittal of record. If the
original record or the record on appeal is not
transmitted to the Court of Appeals within 30 days
after the perfection of appeal, either party may file a
motion with the trial court, with notice to the other,
for the transmittal of such record or record on
appeal.
MATTERS NOT APPEALABLE
Not appealable under Rule 41

(a) Order denying motion for new trial or
reconsideration;
(b) Order denying petition for review or any similar
motion seeking relief from judgment;
(c) Interlocutory order;
(d) Order disallowing/dismissing appeal;
(e) Order denying motion to set aside judgment by
consent or confession or compromise on ground
of fraud or mistake or duress or any other vitiation
of consent;
(f) Order of execution;
(g) While the case is pending, judgment or final
order:
(1) For/against one or more of several parties;
(2) In separate claims, counterclaims, crossclaims, third-party complaints.
Exception: If court allows appeal.
(h) Order dismissing an action without prejudice.
Case docketing
Rule 44, Sec. 4. Docketing of case. Upon receiving
the original record or the record on appeal and the
accompanying documents and exhibits transmitted
by the lower court, as well as the proof of payment of
the docket and other lawful fees, the clerk of court of
the Court of Appeals shall docket the case and notify
the parties thereof.
Within 10 days from receipt of said notice, the
appellant, in appeals by record on appeal, shall file
with the clerk of court approved record on appeal
Any unauthorized alteration, omission or addition in
the approved record in appeal shall be a ground for
dismissal of the appeal.
Note: An interlocutory order is one that does not

finally dispose of the case, and does not end the
court's task of adjudicating the parties contentions
and determining their rights and liabilities as regards
each other, but obviously indicates that other things
remain to be done. [BPI v. Lee (2012)]
Note: Unless otherwise directed by the court, the

number of court- bound papers that a party is
required or desires to file In the Court of Appeals,
one original (properly marked) and two copies with
their annexes [Efficient Use of Paper Rule, AM 11-94-SC, Section 5]
REMEDY AGAINST JUDGMENTS AND ORDERS WHICH ARE

NOT APPEALABLE
In the 8 cases not appealable under Rule 41, the

aggrieved party may file a special civil action under
Rule 65. [Rule 41, Sec. 1]
A party required by the rules to serve a copy of his

court-bound on the adverse party need not enclose
copies of those annexes that based on the record of
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the court such party already has in his possession. In

the event a party requests a set of the annexes
actually filed with the court, the part who filed the
paper shall comply with the request within five days
from receipt. [Efficient Use of Paper Rule, AM 11-9-4SC, Section 6]
Contents of appellants brief

Rule 44, Sec. 13. Contents of appellants brief. The
appellants brief shall contain, in the order herein
indicated, the following:
(a) A subject index of the matter in the brief with a
digest of the arguments and page references, and
a table of cases alphabetically arranged,
textbooks and statutes cited with references to
the pages where they are cited;
(b) An assignment of errors intended to be urged,
which errors shall be separately, distinctly and
concisely stated without repetition and numbered
consecutively;
(c) Under the heading Statement of the Case, a
clear and concise statement of the nature of the
action, a summary of the proceedings, the
appealed rulings and orders of the court, the
nature of the judgment and any other matters
necessary to an understanding of the nature of
the controversy, with page references to the
record;
(d) Under the heading Statement of Facts, a clear
and concise statement in a narrative form of facts
admitted by both parties and of those in
controversy, together with the substance of proof
relating thereto in sufficient detail to make it
clearly intelligible, with page references to the
record;
(e) A clear and concise statement of the issues of
fact or law to be submitted to the court for its
judgment;
(f) Under the heading Argument, the appellants
arguments on each assignment of error with
page references to the record. The authorities
relied upon shall be cited by the page of the
report at which the case begins and the page of
the report on which the citation is found.
(g) Under the heading Relief, a specification of the
order of judgment which the appellant seeks; and
(h) In cases not brought up by record on appeal, the
appellants brief shall contain, as an appendix, a
copy of the judgment or final order appealed
from.
Record completion
Rule 44, Sec. 5. Completion of record. Where the
record of the docketed case is incomplete, the clerk
of court of the Court of Appeals shall so inform the
court and recommend to it measures necessary to
complete the record. It shall be the duty of said court
to take appropriate action towards the completion of
the record within the shortest possible time.
Rule 44, Sec. 6. Dispensing with complete record.
Where the completion of the record could not be
accomplished within a sufficient period allotted for
said purpose due to insuperable or extremely
difficult cases, the court, on its own motion or on
motion of an of the parties, may declare that the
record and its accompanying transcripts and exhibits
so far available are sufficient to decide the issues
raised in the appeal, and shall issue an order
explaining the reasons for such declaration.
The failure of appellant to take the necessary steps
for the correction or completion of the record within
the time limited by the court in its order is a ground
for dismissal of the appeal.
Appellants brief
Rule 44, Sec.7. Appellants brief. It shall be the duty
of the appellant to file with the court, within 45 days
from receipt of the notice of the clerk that all the
evidence, oral and documentary, are attached to the
record
their annexes [Efficient Use of Paper Rule, AM 11-94-SC, Section 5]
Rule 44, Sec. 15. Questions that may be raised on

appeal. Whether or not the appellant has filed a
motion for new trial in the court below, he may
include in his assignment of errors any question of
law or fact that has been raised in the court below
and which is within the issues framed by the parties.

Rule 124, Sec. 7. Contents of brief. The briefs in

criminal cases shall have the same contents as
provided in sections 13 and 14 of Rule 44. A certified
true copy of the decision or final order appealed from
shall be appended to the brief of the appellant.
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Appellees brief
Rule 44, Sec. 8. Appellees brief. Within 45 days
from receipt of the appellants brief, the appellee
shall file with the court copies of his legibly typewritten, mimeographed or printed brief, with proof of
service of 2 copies thereof upon the appellant.
evidence, oral or documentary, is already attached to

the record.
Note: Rules that apply, as regards the number of

copies to be filed, with the appellants brief apply
with the appellees brief.
Several or plurality of appellants, appellees and/or

counsel
Rule 44, Sec. 11. Several appellants or appellees or
several counsel for each party.Where there are
several appellants or appellees, each counsel
representing one or more but not all of them shall be
served with only one copy of the briefs. When several
counsel represent one appellant or appellee, copies
of the brief may be served upon any of them.
The failure of the appellant to file his memorandum

within the period therefore may be a ground for
dismissal of the appeal.
Contents of appellees brief

Rule 44, Sec. 14. Contents of appellees brief. The
appellees brief shall, in the order herein indicated,
the following:
(a) A subject index of the matter in the brief with a
digest of the arguments and page references, and
a table of cases alphabetically arranged,
textbooks and statutes cited with references to
the pages where they are cited;
(b) Under the heading Statement of Facts, the
appellee shall state that the accepts the
statement of facts in the appellants brief, or
under the heading Counter-Statement of Facts,
he shall point out such insufficiencies or
inaccuracies as he believes exist in the appellants
statement of facts with references to the pages of
the record in support thereof, but without
repetition of matters in the appellants statement
of facts; and
(c) Under the heading Argument, the appellee
shall set forth his arguments in the case on each
assignment of error with page references to the
record. The authorities relied on shall be cited by
the page of the report at which the case begins
and the page of the report on which the citation is
found.
Extension of time for filing briefs

Rule 44, Sec. 12. Extension of time for filing briefs.
Extension of time for the filing of briefs will not be
allowed, except for good and sufficient cause, and
only if the motion for extension is filed before the
expiration of the time sought to be extended.
The Brief
De Liano v. CA (2001): The purpose of the brief is to
present to the court in concise form the points and
questions in controversy, and by fair argument on the
facts and law of the case to assist the court in
arriving at a just and proper conclusion.
The brief should be so prepared as to minimize the
labor of the court in the examination of the record
upon which the appeal is heard and determined.
Failure to comply with required contents of
appellants brief is cause for dismissal of the petition.
Reply brief
Rule 44, Sec. 9. Appellants reply brief. Within 20
days from receipt of the appellants brief, the
appellee shall file with the court copies of his legibly
typewritten, mimeographed or printed brief, with
proof of service upon the appellant.
Dismissal of appeal
Rule 50, Sec. 1. Grounds for dismissal of appeal. An
appeal may be dismissed by the Court of Appeals, on
its own motion or on that of appellee, on the
following grounds:
(a) Failure of the record on appeal to show on its face
that the appeal was taken within the period fixed
by these Rules;
(b) Failure to file the notice of appeal of the record
on appeal within the period prescribed by these
Rules;
(c) Failure of the appellant to pay the docket and
other lawful fees as provide in section 5 of Rule
40 and Section 4 of Rule 41;
(d) Unauthorized alterations, omission or additions in
the approved record on appeal as provided in
section 4 of Rule 44;
Note: Note: Rules that apply, as regards the number

of copies to be filed, with the appellants brief apply
in this case.
Memoranda in special cases
Rule 44, Sec. 10. Time for memoranda in special
cases. In certiorari, prohibition, mandamus, quo
warranto and habeas corpus cases, the parties shall
file, in lieu of briefs, their respective memoranda
within a non-extendible period of 30 days from
receipt of the notice issued by the clerk that all the
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(e) Failure of the appellant to serve and file the

required number of copies of his brief or
memorandum within the time provided by these
Rules;
(f) Absence of specific assignment of errors in the
appellants brief, or of page references to the
record as required in section 13, paragraphs (a),
(c), (d) and (f) of Rule 44;
(g) Failure of the appellant to take the necessary
steps for the correction or completion of the
record within the time limited by the court in its
order;
(h) Failure of the appellant to appear at the
preliminary conference under Rule 48 or to
comply with orders, circulars, or directives of the
court without justifiable cause; and
(i) The fact that the order or judgment appealed
from is not appealable.
decide such issues or refer them to CA for

determination.
Cu-unjieng v. CA (2006): Nonpayment of the
appellate court docket and other lawful fees within
the reglementary period as provided under Rule 41,
Sec. 4 is a ground for the dismissal of an appeal
under Rule 50, Sec. 1(c). The Supreme Court has
invariably sustained the Court of Appeals dismissal
on technical grounds under the afore-quoted
provision unless considerations of equity and
substantial justice present cogent reasons to hold
otherwise. True, the rules may be relaxed but only for
persuasive and weighty reasons, to relieve a litigant
of an injustice commensurate with his failure to
comply with the prescribed procedure.
Withdrawal of appeal
Rule 50, Sec. 3. Withdrawal of appeal. An appeal
may be withdrawn as of right at any time before the
filing of the appellees brief. Thereafter, the
withdrawal may be allowed in the discretion of the
court.
PNB v. Philippine Milling (1969): CA has discretion to

dismiss or not to dismiss appeal. Although said
discretion must be a sound one, to be exercised in
accordance with the tenets of justice and fair play,
having in mind the circumstances obtaining in each
case, the presumption is that it has been so
exercised.
Stay of execution
See next page.
Padasdas v. CA (1974): Failure to file appellants brief

within the reglementary period need not necessarily
cause dismissal of appeal where the same was due
to force majeure.
General rule: If judgment is rendered against the

defendant, execution shall issue immediately
upon motion.
Exception: Immediate execution of judgment
may be stayed if the following requisites
concur:
(a) an appeal has been perfected
(b) the defendant files a sufficient supersedeas
bond, approved by the MTC and executed in
favor of the plaintiff to pay the rents,
damages and costs accruing down to the
time of the judgment appealed from
(c) during the pendency of the appeal, the
defendant deposits with the appellate court
the amount of rent due from time to time
under the contract; in the absence of a
contract, he shall deposit with the RTC the
reasonable value of the use and occupation
of the premises for the preceding month or
period at the rate determined by the
judgment of the lower court on or before the
th
10 day of each succeeding month or period
Dismissal of improper appeal

Rule 50, Sec. 2. Dismissal of improper appeal to the
Court of Appeals. An appeal under Rule 41 taken
from the Regional Trial Court to the Court of Appeals
raising only questions of law shall be dismissed,
issues purely of law not being reviewable by said
court. Similarly, an appeal by notice of appeal
instead of by petition for review from the appellate
judgment of a Regional Trial Court shall be
dismissed.
An appeal erroneously taken to the Court of Appeals
shall not be transferred to the appropriate court but
shall be dismissed outright.
Atlas Consolidated v. CA (1991): Circular No. 2-90 now

prohibits the transfer of appeals erroneously taken to
the SC or CA to whichever of these tribunals has
appropriate appellate jurisdiction. But where SC
believes that there are factual issues which must be
resolved, it may, in the exercise of its sound
discretion and considering the attendant
circumstances, either itself take cognizance of and
The supersedeas bond shall be transmitted by the

MTC, with the other papers, to the clerk of the RTC
to which the action is appealed.
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(c) making a periodic deposit of the rental or the

reasonable compensation for the use and
occupation of the property during the pendency
of the appeal.
These requisites must concur.
All amounts so paid to the appellate court shall

be deposited with said court or authorized
government depositary bond, and shall be held
there until the final disposition of the appeal,
UNLESS the court:
(a) by agreement of the interested parties, or
(b) in the absence of reasonable grounds of
opposition to a motion to withdraw, or
(c) for justifiable reasons, shall decree otherwise.
Puncia v. Gerona (1996): A stay of execution may also

be warranted once the writ is issued:
(a) where the delay in the deposit is due to fraud,
accident, mistake, or excusable negligence; or,
(b) where supervening events occurring subsequent
to the judgment bring about a material change in
the situation of the parties which makes
execution inequitable
(c) where there is no compelling urgency for the
execution because it is not justified by the
prevailing circumstances
Should the defendant fail to make the payments,

the appellate court, upon motion of the plaintiff,
and upon proof of such failure, shall order the
execution of the judgment appealed from with
respect to the restoration of possession, but such
execution shall not be a bar to the appeal taking
its course until the final disposition thereof on the
merits.
Rule 39, Sec. 2. Discretionary execution.

(a) Execution of a judgment or a final order pending
appeal.On motion of the prevailing party with
notice to the adverse party filed in the trial court
while it has jurisdiction over the case and is in
possession of either the original record or the
record on appeal, as the case may be, at the time
of the filing of such motion, said court may, in its
discretion, order execution of a judgment or final
order even before the expiration of the period to
appeal.
After the case is decided by the Regional Trial

Court, any money paid to the court by the
defendant for purposes of the stay of execution
shall be disposed of in accordance with the
provisions of the judgment of the Regional Trial
Court.
After the trial court has lost jurisdiction, the

motion for execution pending appeal may be filed
in the appellate court.
In any case wherein it appears that the defendant

has been deprived of the lawful possession of land
or building pending the appeal by virtue of the
execution of the judgment of the Municipal Trial
Court, damages for such deprivation of possession
and restoration of possession may be allowed the
defendant in the judgment of the Regional Trial
Court disposing of the appeal.
Discretionary execution may only issue upon

good reasons to be stated in a special order after
due hearing.
(b) Execution of several, separate or partial judgments.
A several, separate or partial judgment may be
executed under the same terms and conditions as
execution of a judgment or final order pending
appeal.
Habere Facias Possessionem; definition

The name of the process commonly resorted to by
the successful party in an action for ejectment, for
the purpose of being placed by the sheriff in the
actual possession of the land recovered.
Sec. 21, Revised Rules on Summary Procedure.

Appeal. The judgment or final order shall be
appealable to the appropriate RTC which shall
decide the same in accordance with Sec. 22 of BP
129. The decision of the regional trial court in civil
cases governed by this Rule, including forcible entry
and unlawful detainer, shall be immediately
executory, without prejudice to a further appeal that
may be taken therefrom. Section 10 of Rule 70 shall
be deemed repealed.
San Pedro v. CA (1994): Judgments in ejectment

cases which are favorable to the plaintiff are
immediately executory. They can be stayed by the
defendant only by:
(a) perfecting an appeal;
(b) filing a supersedeas bond; and
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memorandum required by the Rules or by the court

itself, or the expiration of the period for its filing.
Rule 43, Sec. 12. Effect of appeal.The appeal shall

not stay the award, judgment, final order or
resolution sought to be reviewed unless the Court of
Appeals shall direct otherwise upon such terms as it
may deem just.
When such hearing is held, upon its termination or

upon the filing of the last pleading or memorandum
as may be required or permitted to be filed by the
court, or the expiration of the period for its filing.
Rule 39, Sec. 4. Judgments not stayed by appeal.

Judgments in actions for injunction, receivership,
accounting and support, and such other judgments
as are not or may hereafter be declared to be
immediately executory shall be enforceable after
their rendition and shall not be stayed by an appeal
taken therefrom, unless otherwise ordered by the
trial court. On appeal therefrom, the appellate court
in its discretion may make an order suspending,
modifying, restoring or granting the injunction,
receivership, accounting, or award of support.
B. In original actions and petitions for review.

Where no comment is filed, upon the expiration of
the period to comment.
Where no hearing is held, upon the filing of the last
pleading required or permitted to be filed by the
court, or the expiration of the period for its filing.
Where a hearing on the merits of the main case is
held, upon its termination or upon the filing of the last
pleading or memorandum as may be required or
permitted to be filed by the court, or the expiration of
the period for its filing.
General rule: In ordinary appeals, execution is stayed.

Exceptions
(a) Decision in forcible entry and unlawful detainer.
Exception to exception: If appellant stays
immediate execution by filing a notice of appeal,
supersedeas bond and depositing in court a
monthly rental or compensation for the
occupation as fixed by the court which rendered
the decision.
(b) Decision of the MeTC, MTC or MCTC or the RTC
where execution pending appeal has been
granted by the court of origin or in a proper case
by the appellate court upon good reasons to be
stated in the order.
(c) Decision of the RTC rendered in the exercise of its
appellate jurisdiction on cases tried and decided
by the court of origin under Summary Procedure.
(d) Decision of a quasi-judicial agency under the
Rule 43, Sec. 12, UNLESS otherwise provided by
the Court CA;
(e) Decision in cases of injunction, receivership,
support and accounting.
Judgment
Rule 51, Sec. 2. By whom rendered. The judgment
shall be rendered by the members of the court who
participated in the deliberation on the merits of the
case before its assignment to a member for the
writing of the decision.
Rule 51, Sec. 3. Quorum and voting in the court.
The participation of all three Justices of a division
shall be necessary at the deliberation and the
unanimous vote of the three Justices shall be
required for the pronouncement of a judgment or
final resolution. If the three Justices do not reach a
unanimous vote, the clerk shall enter the votes of the
dissenting Justices in the record. Thereafter, the
Chairman of the division shall refer the case,
together with the minutes of the deliberation, to the
Presiding Justice who shall designate two Justices
chosen by raffle from among the other members of
the court to sit temporarily with them, forming a
special division of five Justices. The participation of
all the five members of the special division shall be
necessary for the deliberation required in section 2 of
this Rules and the concurrence of a majority of such
division shall be required for the pronouncement of a
judgment or final resolution.
Service Specialists v. Sheriff of Manila (1986): An

appeal from the order denying the petition for relief
does not stay the judgment from which relief is
sought. In order to stay execution, it is necessary to
obtain a writ of preliminary injunction.
When case is submitted for judgment
Rule 51, Sec. 1. When case deemed submitted for
judgment.A case shall be deemed submitted for
judgment:
Rule 51, Sec. 4. Disposition of a case.The CA, in the

exercise of its appellate jurisdiction, may affirm,
reverse, or modify the judgment or final order
appealed from, and may direct a new trial or further
proceedings to be had.
A. In ordinary appeals.
Where no hearing on the merits of the main case is
held, upon the filing of the last pleading, brief, or
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Sec.40, BP 129. Form of decision in appealed cases.

Every decision or final resolution of a court in
appealed cases shall clearly and distinctly state the
findings of fact and the conclusion of law on which it
is based, which may be contained in the decision or
final resolution itself, or adopted by reference from
those set forth in the decision, order, or resolution
appealed from.
Rule 51, Sec. 9. Promulgation and notice of

judgment.After the judgment or final resolution
and dissenting or separate opinions, if any, are
signed by the Justices taking part, they shall be
delivered for filing to the clerk who shall indicate
thereon the date of promulgation and cause true
copies thereof to be served upon the parties or their
counsel.
Rule 51, Sec. 5. Form of decision.Every decision or

final resolution of the court in appealed cases shall
clearly and distinctly state the finding of fact and the
conclusions of law on which it is based, which may be
contained in the decision or final resolution itself, or
adopted from those set forth in the decision, order,
or resolution appealed from.
Petition for review [Rule 42]

Mode of appeal in cases decided by the Regional
Trial Court in the exercise of its appellate jurisdiction
[Rule 41, Sec. 2]
Procedure:
Time for filing [Rule 42, Sec. 1]: The petition shall be
filed and served within fifteen (15) days from notice of
the decision sought to be reviewed or of the denial of
petitioners motion for new trial or reconsideration
filed in due time after judgment.
The body of the judgment must contain the reasons

or conclusions of the court to serve as a guide or
enlightenment to determine the ratio decidendi. But
what actually constitutes the resolution of the court
which is the subject of the execution is the dispositive
portion of the fallo. [Olac v. CA]
Note: Time for filing the petition may be extended

(additional 15 days) by the CA upon proper motion
and the payment of the full amount of the docket
and other lawful fees and the deposit for costs before
the expiration of the reglementary period. However,
no further extension shall be granted except for the
most compelling reason and in no case to exceed
fifteen (15) days.
Rule 51, Sec. 6. Harmless error.No error in either the

admission or the exclusion of evidence and no error
or defect in any ruling or order or in anything done or
omitted by the trial court or by any of the parties is
ground for granting a new trial or for setting aside,
modifying, or otherwise disturbing a judgment or
order, unless refusal to take such action appears to
the court inconsistent with substantial justice. The
court at every stage of the proceedings must
disregard any error or defect which does not affect
the substantial rights of the parties.
Amount of costs: Php 500 [Rule 42, Sec. 1]

Petition for Review Form and Content [Rule 42, Sec. 2]:
Petition must state:
(a) full names of the parties to the case w/o
impleading the lower courts or the judges
(b) indicate material dates showing filed on time
(c) set forth statement of the matters involved and
the issues raised, specification of errors of
fact/law/both and the reasons or arguments
relied upon for the allowance of the appeal
Rule 51, Sec. 7. Judgment where there are several

parties.In all actions or proceedings, an appealed
judgment may be affirmed as to some of the
appellants, and revered as to others, and the case
shall thereafter be proceeded with, so far as
necessary, as of separate actions had been begun
and prosecuted; and execution of the judgment of
affirmance may be had accordingly, and costs may
be adjudged in such cases, as the court shall deem
proper.
It must also be accompanied by legible duplicate

original/true copies of the judgments/orders,
certified correct by the CoC, the requisite number of
copies and of the pleadings and other material
portions of the record supporting the allegations of
the petition
Rule 51, Sec. 8. Questions that may be decided.No

error which does not affect the jurisdiction over the
subject matter or the validity of the judgment
appealed from or the proceedings therein will be
considered unless stated in the assignment of errors,
or closely related to or dependent on an assigned
error
Copies to be filed:
their annexes [Efficient Use of Paper Rule, AM 11-9-4SC, Section 5]
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also order the elevation of the original record from

the RTC to the CA.

Effect of Perfection of Appeal [Rule 42, Sec. 8]:

(1) RTC loses jurisdiction
Note: Before the CA gives due course to the
petition, the RTC has authority to do the
following:
(a) issue orders for the protection and
preservation of the rights of the parties which
do not involve any matter litigated by the
appeal
(b) approve compromises
(c) permit appeals of indigent litigants
(d) order execution pending appeal in accordance
with Sec. 2 of Rule 39, and
(e) allow withdrawal of the appeal
A Certification under oath shall also be submitted.

The certification must state:
(a) that he has not theretofore commenced any other
action involving the same issues in the SC, CA, or
any other tribunal or agency;
(b) if there is such other action or proceeding, he
must state the status of the same; and if he
should thereafter learn that a similar action or
proceeding has been filed or is pending before
the SC, CA, or any other tribunal or agency, he
undertakes to promptly inform the aforesaid
courts and other tribunal or agency thereof within
five (5) days therefrom
(2) Appeal shall stay the judgment or final order

Exceptions:
(a) In civil cases decided under the Summary
Procedure
(b) CA, law or ROC provided otherwise
Action of the Court after petition is given due course
[Rule 42, Sec. 9]: CA may:
(a) Set the case for oral argument; or
(b) Require parties to submit memoranda within a
period of fifteen (15) days from notice
Note: Failure to comply with the requirements shall

be a ground for dismissal [Rule 42, Sec. 3]
Action of the Court [Rule 42, Sec. 4]: Court may
REQUIRE RESPONDENT TO SUBMIT COMMENT
within 10 days from notice or DISMISS the petition
When case is deemed submitted for decision: upon

filing of the last pleading/memorandum [Rule 42,
Sec. 9]
Possible Grounds for dismissal:

(a) patently without merit,
(b) prosecuted manifestly for delay, or
(c) questions raised are too unsubstantial to
require consideration
Petition for review on certiorari

Procedure in the Supreme Court (Appealed Cases)
Mode of appeal
Rule 56, Sec. 3. Mode of appeal. An appeal to the
Supreme Court may be taken only by a petition for
review on certiorari, except in criminal cases where
the penalty imposed is death, reclusion perpetua or
life imprisonment.
Form and Content of Comment [Rule 42, Sec. 5]:

Comment must be in one original (properly marked)
and two copies with their annexes (Efficient Use of
Paper Rule, Section 5), accompanied by certified true
copies of such material portions of the record;
stating:
(a) whether or not he accepts the statement of
matters involved in the petition
(b) point out such insufficiencies or inaccuracies as
he believes exist in petitioners statement of
matters involved but without repetition
(c) reasons why the petition should not be given due
course
Procedure
Rule 56, Sec. 4. Procedure. The appeal shall be
governed by and disposed of in accordance with the
applicable provisions of the Constitution, laws, Rules
45, 48, sections 1, 2 and 5 to 11 of Rules 51, 52 and
this Rule.
Grounds for dismissal of appeal
Rule 56, Sec. 5. Grounds for dismissal of appeal.
The appeal may be dismissed motu proprio or on
motion of the respondent on the following grounds:
If the CA finds that there is a prima facie that the

lower court has committed an error of fact or law
that will warrant a reversal or modification of the
appealed decision, it may accordingly give due
course to the petition. [Rule 42, Sec. 6]. The CA may
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(a) Failure to take the appeal within the

reglementary period;
(b) Lack of merit in the petition;
(c) Failure to pay the requisite docket fee and other
lawful fees or to make a deposit for costs;
(d) Failure to comply with the requirements
regarding proof of service and contents of and
the documents which should accompany the
petition;
(e) Failure to comply with any circular, directive or
order of the Supreme Court without justifiable
cause;
(f) Error in the choice or mode of appeal; and
(g) The fact that the case is not appealable to the
Supreme Court.
penalty. The Court of Appeals shall automatically

review the judgment as provided in Section 10 of
this Rule.
(f) Except as provided in the last paragraph of
section 13, Rule 124, all other appeals to the
Supreme Court shall be by petition for review on
certiorari under Rule 45.
General rule: An appeal taken to the Supreme Court
by notice of appeal shall be dismissed.
Exception: Appeals in criminal cases where the
penalty imposed is death, reclusion perpetua or life
imprisonment.
Equally divided
Rule 56, Sec. 7. Procedure if opinion is equally
divided.Where the court en banc is equally divided
in opinion, or the necessary majority cannot be had,
the case shall again be deliberated on, and if after
such deliberation no decision is reached, the original
action commenced in the court shall be dismissed; in
appealed cases, the judgment or order appealed
from shall stand affirmed; and on all incidental
matters, the petition or motion shall be denied.
Improper appeal
Rule 56, Sec. 6. Disposition of improper appeal.
Except as provided in section 3, Rule 122 regarding
appeals in criminal cases where the penalty imposed
is death, reclusion perpetua or life imprisonment, an
appeal taken to the Supreme Court by notice of
appeal shall be dismissed.
An appeal by certiorari taken to the Supreme Court
from the Regional Trial Court submitting issues of
fact may be referred to the Court of Appeals for
decision or appropriate action. The determination of
the Supreme Court on whether or not issues of facts
are involved shall be final.
Questions of Fact v. Questions of Law

Agote v. Lorenzo (2005): A question of law does not
involve an examination of the probative value of the
evidence presented by any of the litigants.
There is a question of law in a given case when the
doubt or difference arises as to what the law is on a
certain state of facts; there is a question of fact when
the doubt or difference arises as to the truth or the
falsehood of the facts alleged.
Rule 122, Sec. 3. How appeal taken.

(a) The appeal to the Regional Trial Court, or to the
Court of Appeals in cases decided by the
Regional Trial Court in the exercise of its original
jurisdiction, shall be by notice of appeal filed with
the court which rendered the judgment or final
order appealed from and by serving a copy
thereof upon the adverse party.
(b) The appeal to the Court of Appeals in cases
decided by the Regional Trial Court in the
exercise of its appellate jurisdiction shall be by
petition for review
(c) under Rule 42.
(d) The appeal in cases where the penalty imposed
by the Regional Trial Court is reclusion perpetua
or life imprisonment, or where a lesser penalty is
imposed but for offenses committed on the same
occasion or which arose out of the same
occurrence that gave rise to the more serious
offense for which the penalty of death, reclusion
perpetua, or life imprisonment is imposed, shall
be by notice of appeal to the Court of Appeals in
accordance with paragraph (a) of this Rule.
(e) No notice of appeal is necessary in cases where
the Regional Trial Court imposed the death
Alsua-Betts v. CA (1979):
General rule: CAs findings of fact are final and
conclusive and cannot be reviewed on appeal to the
SC, provided they are borne out by the record or are
based on substantial evidence.
Exception: CAs findings of fact may be reviewed by
the SC on appeal by certiorari when:
(1) Conclusion is a finding grounded entirely on
speculations, surmises or conjectures [Joaquin v.
Navarro (1953)].
(2) Inference made is manifestly mistaken, absurd or
impossible [Luna v. Linatok (1942)].
(3) There is grave abuse of discretion in the
appreciation of facts [Buyco v. People (1954)].
(4) Judgment is based on a misapprehension of facts
[De la Cruz v. Sosing (1953).
(5) The Court of Appeals findings of fact are
conflicting [Casica v. Villaseca (1957)].
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(6) The Court of Appeals, in making its findings, went

beyond the issues of the case and the same is
contrary to the admissions of both appellant and
appellee [Nakpil & Sons v. CA (1986)].
(7) The Court of Appeals manifestly overlooked
certain relevant facts not disputed by the parties
and which, if properly considered, would justify a
different conclusion [Abellana v. Dosdos (1965)].
(8) The Court of Appeals findings of fact are contrary
to those of the trial court, or are mere conclusions
without citation of specific evidence, or where the
facts set forth by the petitioner are not disputed
by the respondent, or where the findings of fact of
the Court of Appeals are premised on absence of
evidence but are contradicted by the evidence of
record [Manlapaz v. CA (1987)].
within 30 days after notice of the judgment or final

order.
The period of appeal shall be interrupted by a timely
motion for new trial or reconsideration. No motion
for extension of time to file a motion for new trial or
reconsideration shall be allowed.
Neypes v. CA (2005) on the fresh period rule:
Definition: Period of appeal is interrupted by a timely
motion for new trial or reconsideration. Motion for
extension of time to file motion for new trial or
reconsideration is not allowed.
Applicability:
(a) Rule 40 on appeals from MTC to RTC.
(b) Rule 42 on petitions for review from RTC to CA.
(c) Rule 43 on appeals from QJA to CA.
(d) Rule 45 on appeals by certiorari to SC.
Perez-Rosario v. CA (2005): Rule 65 cannot cure the

failure to appeal thru Rule 45.
Rationale: To standardize the appeal periods

provided in the Rules of Court and to afford litigants
fair opportunity to appeal their cases, the court
deems it practical to allow a fresh period of 15 days
within which to file the notice of appeal in the
Regional Trial Court, counted from receipt of the
order dismissing a motion for new trial or
reconsideration.
ISSUES TO BE RAISED ON APPEAL
Cognizable judgments/issues
The appellate court has no jurisdiction to review a
judgment which is immediately final and executory
by express provision of law. [Republic v. BermudezLorino (2005)]
Rationale: Appeal is merely a privilege conferred by
law upon the litigants.
A party cannot change the theory on appeal. Only
issues pleaded in the lower court and properly raised
may be resolved by the appellate court. [Medina v.
CA (1992)]
PERIOD OF APPEAL
From MTC to RTC and from RTC (original) to CA

(a) By notice of appeal: 15 days from notice of the
judgment or final order
(b) By record of appeal: 30 days from notice of the
judgment or final order
(c) From MTC to RTC (appellate) to CA: 15 days from
notice of the judgment or final order but the
Court of Appeals may grant a 15 day extension.
No further extension shall be granted except for
the most compelling reasons and in no case
longer than 15 days.
However, issues which are inferred from or

necessarily connected with the issue properly raised
and pleaded may be resolved by the appellate court.
[Espina v. CA (1992)]
Notice of appeal
The notice of appeal shall indicate the parties to the
appeal, the judgment or final order or part thereof
appealed from, and state the material dates showing
the timeliness of the appeal.
From RTC (original) to CA to SC and from MTC to RTC

(appellate) to CA to SC and from CA to SC and from
QJA to CA to SC
15 days from notice of judgment or final order or
from denial of petitioners motion for reconsideration
or new trial. The SC may grant a 30 day extension for
justifiable reasons.
Record of appeal
Required only in:
(a) Special proceedings;
(b) Multiple or separate appeals where the law or the
Rules of Court so requires.
From QJA to CA
15 days from notice of the award, judgment, final
order or resolution or from date of last publication if
required by law. The CA may grant a 15 day
extension. No further extension shall be granted
except for the most compelling reasons and in no
case longer than 15 days.
Rule 40, Sec.2. When to appeal.The appeal is taken

by filing a notice of appeal with the court that
rendered the judgment or final order appealed from.
Where a record on appeal is required, the appellant
shall file a notice of appeal and a record on appeal
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CIVIL PROCEDURE
Distinctions between Rule 45 and

Rule 65 Based on J. Regalados Commentary
Rule 45 Appeal by Certiorari
(1) Issues Raised
Questions of Law
(2) Against
What Court
Action Directed
Review of the judgment,
award or final order on
the merits
(3) Reglementary Period
Must be filed within the
reglementary period for
appeal.
(4) Effect on the Proceedings
Below
Judgment, award or
order appealed from is
stayed by the Appeal
Rule 45 Appeal by Certiorari
(5) Parties Involved

Rule 65 Original Action
Original Parties to the
for Certiorari
action remain the same
Grave
Abuse
of
during appeal (albeit with
Discretion Amounting to
the
corresponding
Lack or Excess of
appellation of appellant
Jurisdiction
and appellee), the lower
court or quasi-judicial
Directed Against an
agency is not to be
Interlocutory Order of the
impleaded.
court prior to appeal
from the judgment, or
(6) Requirement of Motion
where there is no appeal
for Reconsideration
or any other plain speedy
For purposes of appeal,
and adequate remedy
MR is not required
Not later than sixty (60)
(7) Exercise of Jurisdiction
days from notice of the
The Appellate Court
judgment,
order
or
exercises its appellate
resolution sought to be
jurisdiction and power of
assailed.
review
No
effect
(i.e.,
proceedings
below
continue) unless a writ of
preliminary injunction or
a temporary restraining
order has been issued
Matrix of Periods
Period to Appeal
MTC to RTC
RTC to CA
MTC to RTC to
CA
QJA to CA
RTC to SC
RTC to CA to
By notice of appeal - 15 days

from notice of the judgment or
final order
By record of appeal 30 days
final order
By notice of appeal - 15 days
final order
By record of appeal 30 days
final order
15 days from notice of the
judgment or final order OR
from denial of MR or MNT
15 days from notice of the
award, judgment, final order or
resolution or from date of last
publication if required by law
OR from denial of MR or MNT
15 days from notice of judgment
or final order OR from denial of
Extensions
Rule 65 Original Action

for Certiorari
The parties are the
aggrieved party against
the lower court/Quasijudicial agency and the
prevailing parties, who
thereby
respectively
become the petitioner
and the respondents.
MR is a CONDITION
PRECEDENT
subject
only
to
certain
exceptions.
Higher Court exercises
original jurisdiction under
its power of control and
supervision over the
proceedings of lower
courts.
Effect of MR or MNT
No extensions allowed
Interrupts the period to

appeal
No extensions allowed
Interrupts the period to

appeal
The CA may grant a 15 day

extension. No further extension
shall be granted except for the
most compelling reasons and in
no case longer then 15 days.
The CA may grant a 15 day
extension. No further extension
shall be granted except for the
most compelling reasons and in
no case longer then 15 days.
The SC may grant a 30 day
extension for justifiable reasons.
Fresh period to appeal

from denial MR or MNT
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SC
CA to SC
CIVIL PROCEDURE
petitioners MR or MNT.
This fresh period rule shall also apply to:

(a) Rule 40 governing appeals from the Municipal
Trial Courts to the Regional Trial Courts;
(b) Rule 42 on petitions for review from the Regional
Trial Courts to the Court of Appeals;
(c) Rule 43 on appeals from quasi-judicial
agencies to the Court of Appeals; and
(d) Rule 45 governing appeals by certiorari to the
Supreme Court. The new rule aims to regiment or
make the appeal period uniform, to be counted
from receipt of the order denying the motion for
new trial, motion for reconsideration (whether full
or partial) or any final order or resolution. [Neypes
v. CA, (2005)]
Espina v. CA (1992): However, issues which are

inferred from or necessarily connected with the issue
properly raised and pleaded may be resolved by the
appellate court.
Appeal from MTC to RTC: the rules on perfection of
appeal from RTC to CA applies.
From the Regional Trial Court to CA:
(a) By notice of appeal: perfected as to party who
filed notice upon filing of the same in due time
The court loses jurisdiction over the case upon
perfection of appeal AND expiration of time to
appeal of the other parties.
A party litigant may now file his notice of appeal

either within fifteen days from receipt of the original
decision or within fifteen days from the receipt of the
order denying the motion for reconsideration.
(b) By record on appeal: perfected as to the party

who filed appeal and with respect to the subject
matter thereof upon approval of the record filed
in due time
Being procedural in nature, Neypes is deemed to be

applicable to actions pending and undetermined at
the time of its effectivity and is thus retroactive in
that sense and to that extent. [First Aqua Sugar v.
BPI (2007)]
The court loses jurisdiction upon approval of the

records on appeal AND expiration of the time to
appeal of the other parties
From MTC to RTC (appellate jurisdiction) to CA: upon
timely filing of a petition for review and the payment
of the corresponding docket and other lawful fees.
PERFECTION OF APPEAL
Perfection of an appeal in the manner and within the

period laid down by law is mandatory and
jurisdictional. [Balgami v. CA (2004)]
The RTC loses jurisdiction upon perfection of appeals

filed in due time AND the expiration of time to
appeal of other parties.
Rationale: Appeal is merely a statutory privilege, and

may be exercised only in the manner and in
accordance with the provisions of the law. It is
neither a natural right nor a part of due process.
Effect of failure to perfect appeal
(a) Defeats a partys right to appeal.
(b) Precludes appellate court from
jurisdiction.
APPEAL FROM JUDGMENTS OR FINAL ORDERS OF THE MTC
MTC to RTC
Rule 40, Sec.1. Where to appeal. An appeal from a

judgment or final order of a MTC may be taken to the
RTC exercising jurisdiction over the area to which the
former pertains. The title of the case shall remain as
it was in the court of origin, but the party appealing
the case shall be further referred to as the appellant
and the adverse party the appellee.
acquiring
Camposagrado v. Camposagrado (2005): Failure to

pay the appellate court docket fee within the
reglementary period confers only a discretionary (not
mandatory) power to dismiss the proposed appeal.
Such discretion should consider all attendant
circumstances and must be exercised with a view to
substantial justice.
The other provisions governing appeal from RTC to

CA so long as they are not inconsistent are
applicable to appeal from MTC to RTC.
MTC to RTC to CA
File a verified petition for review with the CA,
paying at the same time to the clerk of said
court the corresponding docket and other
lawful fees, depositing the amount of P500 for
costs and furnishing the RTC and the adverse
party with a copy of the petition.
Republic v. Bermudez-Lorino (2005): Appellate court

has no jurisdiction to review a judgment which is
immediately final and executory by express provision
of law.
Medina v. CA (1992): A party cannot change the
theory on appeal. Only issues pleaded in the lower
court and properly raised may be resolved by the
appellate court.
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Applicability of Rule 45
Rule 45, Sec.9. Rule applicable to both civil and
criminal cases.The mode of appeal prescribed in
this Rule shall be applicable to both civil and
criminal cases, except in criminal cases where the
penalty imposed is death, reclusion perpetua or life
imprisonment.
The petition shall be filed and served within 15

days from notice of the decision sought to be
reviewed or of the denial of petitioners MNT or
MR filed in due time after judgment.
Upon proper motion and the payment of the

full amount of the docket and other lawful
fees and the deposit for costs before the
expiration of the reglementary period, the CA
may grant an additional period of 15 days only
within which to file the petition for review. No
further extension shall be granted except for
the most compelling reason and in no case to
exceed 15 days. [Rule 42, Sec. 1]
Filing of Petition
(a) File with the SC a verified petition for review on
certiorari.
(b) Unless otherwise directed by the court, the
required or desires to file In the Supreme Court,
one original (properly marked) and four copies,
unless the case is referred to the Court En Banc,
in which event, the parties shall file ten additional
copies. For the En Banc, the parties need to
submit only two sets of annexes, one attached to
the original and an extra copy. For the Division,
the parties need to submit also two sets of
annexes, one attached to the original and an
extra copy. All members of the Court shall share
the extra copies of annexes in the interest of
economy of paper.
(Asked in the 1999 and 2002 Bar Exam)

Petition for review from RTC to CA [Rule 42]
Applicability. Appeal of RTC decision rendered in
exercise of appellate jurisdiction [Rule 42, Sec. 1]
Certificate of Non-Forum Shopping (CNFS).
Petitioner in a petition for review in CA/SC must
submit a CNFS with the petition. However, this rule is
relaxed where there is need to conduct a review. In
those instances, petitioner may comply with the
requirement after he has filed the petitions. [Rule 42,
Sec.1]
Parties to cases before the Supreme Court are

further required, on voluntary basis for the first six
months following the effectivity of this Rule and
compulsorily afterwards unless the period is
extended, to submit, simultaneously with their
court-bound papers, soft copies of the same and
their annexes (the latter in PDF format) either by
email to the Courts e-mail address or by compact
disc (CD). This requirement is in preparation for
the eventual establishment of an e-filing
paperless system in the judiciary. (Efficient Use of
Paper Rule, Section 5)
MTC to RTC to CA to SC
Rule 41. Sec.2(c). Appeal by certiorari.In all cases
where only questions of law are raised or involved,
the appeal shall be to the SC by petition for review
on certiorari in accordance with Rule 45.
Rule 45, Sec.1. Filing of petition with Supreme
Court.A party desiring to appeal by certiorari from
a judgment or final order or resolution of the CA, the
Sandiganbayan, the RTC or other courts whenever
authorized by law, may file with the SC a verified
petition for review on certiorari. The petition may
include an application for a writ of preliminary
injunction or other provisional remedies and shall
raise only questions of law which must be distinctly
set forth. The petitioner may seek the same
provisional remedies by verified motion filed in the
same action or proceeding at any time during its
pendency.
(Asked in the 2002 Bar Exams)
(c) Petition shall raise only questions of law which

must be distinctly set forth.
Contents of Petition [Rule 45, Sec. 4]
(a) Full name of the appealing party (petitioner) and
the adverse party (respondent).
(b) Without impleading the lower court or judges as
petitioners/respondents.
(c) Material dates:
(1) When notice of the judgment or final order or
resolution subject thereof was received;
(2) When a motion for new trial or reconsideration
(if any) was filed and when notice of the denial
thereof was received.
(d) Concise statement of the matters involved, and
the reasons/arguments relied on for the
allowance of the petition;
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(e) A clearly legible duplicate original, or a certified

true copy of the judgment or final order or
resolution certified by the clerk of court of the
court a quo and the requisite number of plain
copies thereof, and such material portions of the
record as would support the petition;
(f) Certificate of non-forum shopping.
Review is discretionary
A review is not a matter of right, but of sound judicial
discretion, and will be granted only when there are
special and important reasons therefore.
The following, while neither controlling nor fully
measuring the court's discretion, indicate the
character of reasons which will be considered:
(a) When the court a quo has decided a question of
substance, not theretofore determined by the SC,
or has decided it in a way probably not in accord
with law or with the applicable decisions of the
SC; or
(b) When the court a quo has so far departed from
the accepted and usual course of judicial
proceedings, or so far sanctioned such departure
by a lower court, as to call for an exercise of the
power of supervision.
File petition within 15 days from notice:

(a) of the judgment or final order or resolution
appealed from, or
(b) of the denial of the petitioner's motion for
new trial or reconsideration filed in due time
after notice of the judgment.
On motion duly filed and served, with full

payment of the docket and other lawful fees
and the deposit for costs before the expiration
of the reglementary period, the SC may for
justifiable reasons grant an extension of 30
days only within which to file the petition. [Rule
45, Sec. 2]
May Require Pleadings and Documents

Rule 45, Sec. 7. Pleadings and documents that may
be required; sanctions. For purposes of
determining whether the petition should be
dismissed or denied pursuant to sec.5 of this Rule, or
where the petition is given due course under Sec.8
hereof, the SC may require or allow the filing of such
pleadings, briefs, memoranda or documents as it
may deem necessary within such periods and under
such conditions as it may consider appropriate, and
impose the corresponding sanctions in case of nonfiling or unauthorized filing of such pleadings and
documents or non-compliance with the conditions
therefor.
Rule 45, Sec.3. Docket and other lawful fees; proof of

service of petition. Unless he has theretofore done
so, the petitioner shall pay the corresponding docket
and other lawful fees to the clerk of court of the
Supreme Court and deposit the amount of P500.00
for costs at the time of the filing of the petition. Proof
of service of a copy thereof on the lower court
concerned and on the adverse party shall be
submitted together with the petition.
Due Course and Elevation of Records

Rule 45, Sec. 8. Due course; elevation of records. If
the petition is given due course, the SC may require
the elevation of the complete record of the case or
specified parts thereof within 15 days from notice.
Dismissal or denial of petition

Rule 45, Sec.5. Dismissal or denial of petition. The
failure of the petitioner to comply with any of the
foregoing requirements regarding the payment of
the docket and other lawful fees, deposit for costs,
proof of service of the petition, and the contents of
and the documents which should accompany the
petition shall be sufficient ground for the dismissal
thereof.
MTC to SC
(a) The remedy is a petition for certiorari under Rule
65.
(b) This is not an appeal.
APPEAL FROM JUDGMENTS OR FINAL ORDERS OF THE RTC
RTC to CA
Under Rule 41, an appeal of judgment or final order
under that completely disposes of either:
(a) The case;
(b) A particular matter in the case, when declared by
ROC to be appealable.
The SC may on its own initiative deny the petition on

the ground that the appeal is without merits, or is
prosecuted manifestly for delay, or that the
questions raised therein are too unsubstantial to
require consideration.
Not appealable under Rule 41

(a) Order denying motion
reconsideration;
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new
trial
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UP COLLEGE OF LAW
CIVIL PROCEDURE
(b) Order denying petition for review or any similar

motion seeking relief from judgment;
(c) Interlocutory order;
(d) Order disallowing/dismissing appeal;
(e) Order denying motion to set aside judgment by
consent or confession or compromise on ground
of fraud or mistake or duress or any other vitiation
of consent;
(f) Order of execution;
(g) While the case is pending, judgment or final
order:
(1) For/against one or more of several parties;
(2) In separate claims, counterclaims, crossclaims, third-party complaints.
Exception: If court allows appeal.
(h) Order dismissing an action without prejudice.
Lanaria v. Planta (2007): Submission of a document

together with the motion for reconsideration
constitutes substantial compliance with compliance
with Section 2, Rule 42 or the requirement that
relevant or pertinent documents be submitted along
with the petition, and calls for the relaxation of
procedural rules
In the 8 cases not appealable under Rule 41, the

aggrieved party may file a special civil action under
Rule 65.
APPEAL FROM JUDGMENTS OR FINAL ORDERS OF THE CA
RTC to CA to SC
The remedy is a petition for review on certiorari under
Rule 45.
RTC to SC
(a) The remedy is a petition for certiorari under Rule
65.
(b) This is not an appeal.
CA to SC
The remedy is a petition for review on certiorari under
Rule 65.
Interlocutory order
Definition: If it does not dispose of the case but
leaves something else to be done by the trial court
on the merits of the case. [Investments, Inc. v. CA
(1987)]
APPEAL FROM JUDGMENTS OR FINAL ORDERS OF THE CTA
RA 9282: Decisions of the CTA are now appealable

to the SC by petition for review on certiorari under
Rule 45.
For purposes of appeal, an order is final if it disposes

of the entire case. An order for partial summary
judgment is an interlocutory order which cannot be
appealed from. The trial court had not yet rendered a
complete final judgment. [GSIS v. Phil. Village Hotel
(2004)]
REVIEW OF FINAL JUDGMENTS OR FINAL ORDERS OF THE

COA
The remedy is a petition for certiorari under Rule 65.

[Rule 64, Section 2]
Time to file: petition shall be filed within thirty (30)
days from notice of the judgment or final order or
resolution
Multiple appeals
Civil cases which admit of multiple appeals:
(a) Judgment in an action for recovery or for partition
of property is separately appealable from the
proceedings on that part of the judgment wherein
accounting for receipts from the property is
ordered as a primary or incidental relief. When
such accounting is submitted and either
approved or rejected by the trial court, another
appeal lies therefrom.
(b) Special civil actions:
(1) Expropriation; (Rule 67)
(2) Judicial partition; (Rule 69)
(3) Judicial foreclosure of mortgage; (Rule 68)
Note: If allowed under the Rules of the Commission

concerned, the filing of a motion for new
trial/reconsideration shall interrupt the period
Copies to be filed: Unless otherwise directed by the
court, one original (properly marked) and four copies,
unless the case is referred to the Court En Banc, in
which event, the parties shall file ten additional
copies. [AM 11-9-4-SC, Section 5(a)]
Ko v. PNB (2006): The order of dismissal due to

failure to prosecute is appealable by notice of appeal
under Rule 41.
Contents:
(a) State the facts with certainty, present clearly the
issues involved, set forth the grounds and brief
arguments relied upon for review, and pray for
judgment annulling or modifying the questioned
judgment, final order or resolution. Findings of
fact of the Commission supported by substantial
evidence shall be final and non-reviewable.
Philexport v. PI (2004): But an order of dismissal

without prejudice is not appealable under Rule 41.
(b) Accompanied by a clearly legible duplicate

original or certified true copy of the judgment,
Special proceedings also admit of multiple appeals.
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CIVIL PROCEDURE
final order or resolution subject thereof, together

with certified true copies of such material
portions of the record as are referred to therein
and other documents relevant and pertinent
thereto.
other pleadings or papers as may be required or

allowed, or the expiration of the period to do so.
COMELEC
For the Division, the parties need to submit also two

sets of annexes, one attached to the original and an
extra copy. All members of the Court shall share the
extra copies of annexes in the interest of economy of
paper. Parties to cases before the Supreme Court are
further required, on voluntary basis for the first six
months following the effectivity of this Rule and
compulsorily afterwards unless the period is
extended, to submit, simultaneously with their courtbound papers, soft copies of the same and their
annexes (the latter in PDF format) either by email to
the Courts e-mail address or by compact disc (CD).
This requirement is in preparation for the eventual
establishment of an e-filing paperless system in the
judiciary.
[same with COA (Rule 64)]

CSC
The remedy of an aggrieved party from a resolution

issued by the CSC is to file a petition for review
thereof under Rule 43 of the Rules of Court within
fifteen days from notice of the resolution. [DECS v.
Cuanan (2008)]
OREVIEW OF FINAL JUDGMENTS OR FINAL ORDERS OF THE
OMBUDSMAN
When CA has Jurisdiction

In administrative cases: Where the respondent is
absolved of the charge, and in case of conviction
where the penalty imposed is public censure or
reprimand, suspension of not more than one month,
or a fine equivalent to one month salary , the
decision shall be unappealable. In all other cases,
the decision may be appealed to the CA on a verified
petition for review under the requirements and
conditions set forth in Rule 43 of the Rules of Court,
within 15 days from receipt of the written Notice of
the Decision or Order denying the Motion for
Reconsideration. [AO 7, Rule III, Section 7]
(a) State the specific material dates showing that it

was filed within the period fixed herein, and shall
contain a sworn certification against forum
shopping as provided in the third paragraph of
section 3, Rule 46.
(b) Accompanied by proof of service of a copy thereof
on the Commission concerned and on the
adverse party, and of the timely payment of
docket and other lawful fees.
Note: The failure of petitioner to comply with any of
the foregoing requirements shall be sufficient
ground for the dismissal of the petition.
Note: An appeal shall not stop the decision from

being executory.
When the SC has Jurisdiction
In cases in which it is alleged that the Ombudsman
has acted with grave abuse of discretion amounting
to lack or excess of jurisdiction, a special civil action
of certiorariunder Rule 65 may be filed with this
Court to set aside the Ombudsmans order or
resolution. [Nava v. NBI (2005)]
Effect of Filing: The filing of a petition

for certiorari shall not stay the execution of the
judgment or final order or resolution sought to be
reviewed, unless the Supreme Court shall direct
otherwise upon such terms as it may deem just.
If the SC finds finds the petition sufficient in form
and substance, it shall order the respondents to file
their comments on the petition within ten (10) days
from notice; otherwise, it may dismiss the petition
outright. [Rule 64, Section 6]
Court has jurisdiction over such petitions questioning

resolutions or orders of the Office of the
Ombudsman in criminal cases. [Kuizon v. Desierto
(2001)]
Aside from the comment, No other pleading may be

filed by any party unless required or allowed by the
Court. [Rule 64, Section 7]

NLRC
Rule 43, Sec.2. Cases not covered.This Rule shall

not apply to judgments or final orders issued under
the Labor Code of the Philippines.
Unless the Court sets the case for oral argument, or

requires the parties to submit memoranda, the case
shall be deemed submitted for decision upon the
filing of the comments on the petition, or of such
NLRC judgments and final orders or resolutions are

now reviewable, in the first instance, by the Court of
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Appeals on certiorari under Rule 65, but those of the

Employees Compensation Commission should be
brought to the Court of Appeals through a petition
for review under this Rule. Also, appeals from the
Office of the Ombudsman in administrative
disciplinary cases are now covered by this Rule.
[Fabian v. Desierto (1998)]
(b) The date of its last publication, if publication is

required by law for its effectivity; or
(c) The denial of the petitioners MFR duly filed
according to the governing law of the court or
agency a quo. [Villorente v. Laiya (2005)]
Under Rule 43, there is no need to implead the lower
court or agency which rendered the assailed
decision. [Basmayor v. Atencio (2005)]
REVIEW OF FINAL JUDGMENTS OR FINAL ORDERS OF

QUASI-JUDICIAL AGENCIES
Submission of the duplicate original or certified true

copy of judgment, order, resolution or ruling subject
of a petition for certiorari is essential to determine
whether or not the court, body or tribunal which
rendered the same indeed committed grave abuse of
discretion. Either a legible duplicate original or
certified true copy thereof shall be submitted. If what
is submitted is a copy, then it is required that the
same is certified by the proper officer of the court,
tribunal, agency or office involved. This is to assure
that such copy is a faithful reproduction of the
judgment, order, resolution or ruling subject of the
petition. [Coca-cola v. Cabalo (2006)]
QJA to CA
Applicability
Appeals from judgments or final orders of the CTA
and from awards, judgments, final orders or
resolutions of or authorized by any quasi-judicial
agency (QJA) in the exercise of its quasi-judicial
functions: (arranged alphabetically)
(a) Agricultural Inventions Board (AIB);
(b) Board of Investments (BOI);
(c) Bureau of Patents, Trademarks and Technology
Transfer (BPTTT);
(d) Central Board of Assessment Appeals (CBAA);
(e) Civil Aeronautics Board (CAB);
(f) Civil Service Commission (CSC);
(g) Construction Industry Arbitration Commission;
(h) Department of Agrarian Reform (DAR under RA
6657)
(i) Employees Compensation Commission (ECC);
(j) Energy Regulatory Board (ERB);
(k) Government Service Insurance System (GSIS);
(l) Insurance Commission;
(m) Land Registration Authority (LRA);
(n) National Electrification Administration (NEA);
(o) National Telecommunications Commission
(NTC);
(p) Office of the President (OP);
(q) Philippine Atomic Energy Commission (PAEC);
(r) Securities and Exchange Commission (SEC);
(s) Social Security Commission (SSC);
(t) Voluntary arbitrators authorized by law.
Recourse to a petition for certiorari under Rule 65

renders the petition dismissible for being the wrong
remedy. Nonetheless, there are exceptions to this
rule:
(a) when public welfare and the advancement of
public policy dictates;
(b) when the broader interest of justice so requires;
(c) when the writs issued are null and void; or
(d) when the questioned order amounts to an
oppressive exercise of judicial authority. [DECS v.
Cuanan (2008)]
QJA to CA to SC
Remedy is a petition for review on certiorari under
Rule 45.
QJA to SC
Remedy is a petition for certiorari under Rule 65,
which is not an appeal.
A resolution of the DOJ Secretary is not appealable

under Rule 43. Recourse should be to the President,
instead of the CA, under the established principle of
exhaustion of administrative remedies. [Orosa v. Roa
(2006)]
RELIEF FROM JUDGMENTS, ORDERS AND

OTHER PROCEEDINGS
Definition: It is a legal remedy whereby a party seeks
to set aside a judgment rendered against him by a
court whenever he is unjustly deprived of a hearing
or was prevented from taking an appeal because of
fraud, accident, mistake or excusable negligence.
Exhaustion of Administrative Remedies

If an appeal/remedy obtains or is available within the
administrative machinery, this should be resorted to
before resort can be made to the courts.
Francisco v. Puno (1981): A party who has filed a

timely motion for new trial or motion for
reconsideration can no longer file a petition for relief
from judgment after his motion has been denied.
These remedies are mutually exclusive. It is only in
Under Rule 43, Sec. 4 the petition should be filed

within 15 days from:
(a) Notice of the final order; or
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appropriate cases where a party aggrieved by the

judgment has not been able to file a motion for new
trial or motion for reconsideration that a petition for
relief can be filed.
Under both grounds, the petition shall be filed in the

same court which rendered the judgment and in the
very same case.
Prayer in Petition for Relief from Judgment
(a) That the judgment/order/proceeding be set
aside;
(b) That the appeal be given due course.
GROUNDS FOR AVAILING OF THE REMEDY
Rule 38, Sec. 1. Petition for relief from judgment,

order, or other proceedings. When a judgment or
final order is entered, or any other proceeding is
thereafter taken against a party in any court through
fraud, accident, mistake, or excusable negligence, he
may file a petition in such court and in the same case
praying that the judgment, order or proceeding be
set aside.
Form and content of petition

(a) Must be verified;
(b) Must be accompanied by an affidavit showing the
fraud, accident, mistake or excusable negligence
relied upon;
(c) The affidavit of merit accompanying the petition
must also show the facts constituting the
petitioners good and substantial cause of action
or defense.
The relief provided for by Rule 38 is of equitable

character and is only allowed in exceptional cases,
that is where there is no other available or adequate
remedy. A petition for relief is not regarded with
favor and judgment will not be disturbed where the
party complaining has or by his exercising proper
diligence would have had an adequate remedy at
law, as where petitioner could have proceeded by
appeal to vacate or modify the default judgment.
[Manila Electric v. CA (1990)]
An affidavit of merit serves as the jurisdictional basis

for the court to entertain a petition for relief.
However, it is not a fatal defect to warrant denial of
the petition so long as the facts required to be set
out also appear in the verified petition.
When an Affidavit of Merit is Not Necessary
(a) When there is lack of jurisdiction over the
defendant;
(b) When there is lack of jurisdiction over the subject
matter;
(c) When judgment was taken by default;
(d) When judgment was entered by mistake or was
obtained by fraud; or
(e) Other similar cases.
Petition for relief under Rule 38 is an admission that

the period to appeal from the decision had already
expired. [David v. CA (1992)]
TIME TO FILE PETITION
Rule 38, Sec.3. Time for filing petition; contents and

verification. A petition provided for in either of the
preceding sections of this Rules must be verified,
filed within 60 days after the petitioner learns of the
judgment, final order, or other proceeding to be set
aside, and not more than 6 months after such
judgment or final order was entered, or such
proceeding was taken; and must be accompanied
with affidavits showing the fraud, accident, mistake,
or excusable negligence relied upon, and the facts
constituting the petitioners good and substantial
cause of action or defense, as the case may be.
Two Hearings an a Petition for Relief from Judgment

(a) Hearing to determine whether or not the
judgment should be set aside;
(b) If option a) is in the affirmative, hearing upon the
merits of the case.
Other Remedies After Finality of Judgment
(a) Action to Annul a Judgment
(b) Certiorari
(c) Collateral Attack of a Judgment that is Void on its
Face
Both periods must concur. They are also nonextendible and never interrupted.
ANNULMENT OF JUDGMENTS
ORDERS AND RESOLUTIONS
CONTENTS OF PETITION
Rule 38, Sec.2. Petition for relief from denial of

appeal.When a judgment of final order is rendered
by any court in a case, and a party thereto, by fraud,
accident, mistake, or excusable negligence, has been
prevented from taking an appeal, he may file a
petition in such court and in the same case praying
that the appeal be given due course.
OR
FINAL
GROUNDS FOR ANNULMENT [Rule 47, Section 2]
Grounds for Annulment
Extrinsic Fraud
Extrinsic fraud - any fraudulent act of the prevailing
party in the litigation which is committed outside of
the trial of the case, whereby the unsuccessful party
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has been prevented from exhibiting fully his case.

[Tolentino v. Leviste (2004)]
timely motion for new trial had been granted

therein.
Fraud is regarded as extrinsic where it prevents a

party from having a trial or from presenting his entire
case to the court, or where it operates upon matters
pertaining not to the judgment itself but to the
manner in which it is procured. [Tolentino v. Leviste
(2004)]
COLLATERAL ATTACK OF JUDGMENTS

(Asked in the 2004
Bar Exams)
REMEDIES FROM A VOID JUDGMENT
WHAT IS A VOID JUDGMENT?
A void judgment is no judgment at all. It cannot be

the source of any right nor the creator of any
obligation. All acts performed pursuant to it and all
claims emanating from it have no legal
effect. Hence, it can never become final and any writ
of execution based on it is void. [Polystyrene
Manufacturing v. Privatization Management (2007)]
Rationale: Party is prevented from having his day in

court [Tolentino v. Leviste (2004)]
Note: Extrinsic fraud shall not be a valid ground if it
was availed of, or could have been availed of, in a
motion for new trial or petition for relief. [Rule 47,
Sec. 2]
A void judgment may be likened to a lawless thing

which can be treated as an outlaw and slain at sight,
or ignored wherever and whenever it rears its head.
[Banco Espanol-Filipino v. Palanca (1918)]
Lack of Jurisdiction
General Rule: Before a party can avail of the reliefs
provided for by Rule 47, it is a condition sine qua
non that one must have failed to move for new trial
in, or appeal from, or file a petition for relief against
said issuances or take other appropriate remedies
thereon, through no fault attributable to him. If he
failed to avail of those cited remedies without
sufficient justification, he cannot resort to the action
for annulment, for otherwise he would benefit from
his own inaction or negligence. [Lazaro v. Rural Bank
of Francisco Balagtas (2003)]
A judgment may be void for lack of due process of

law. [Spouses Benatiro v. Heirs of Cuyos (2008))
HOW DO YOU ATTACK A VOID JUDGMENT?
It may be assailed anytime, collaterally or in a direct

action or by resisting such judgment or final order in
any action or proceeding whenever it is invoked,
unless barred by laches. [Spouses Benatiro v. Heirs of
Cuyos (2008))
Exception: Stringent rules of procedures may be

relaxed to serve the demands of substantial justice
and in the Court's exercise of equity jurisdiction
[Almelor v. RTC of Las Pias (2008)]
WHAT ARE YOUR REMEDIES?
If the reglementary period for appeal has not yet

lapsed, some remedies are New Trial and
Reconsideration. Appeal, Petition for Relief, and
Other Appropriate Remedies such as Certiorari may
also be used.
PERIOD TO FILE ACTION [Rule 47, Sec. 3]
The period to file action for annulment of judgment is

dependent on the grounds:
(a) If it is based on extrinsic fraud, the action must be
filed within 4 years from its discovery
(b) If it is based on lack of jurisdiction, the action
must be filed before it is barred by laches or
estoppels
If the appropriate remedies are no longer available

without the fault of the petitioner, the equitable and
extraordinary remedy of Petition for Annulment of
Judgment may be resorted to.
When all else fails, there is jurisprudence to the
effect that a patently void judgment may be dealt
with by a Main Action for Injunction. [See Barrameda
v. Moir (1913)]
EFFECTS OF JUDGMENT OF ANNULMENT [Rule 47, Sec. 7]
Effect: The judgment of annulment shall:

(a) set aside the questioned judgment or final order
or resolution; and
(b) render the same null and void
SOME JURISPRUDENTIAL BASIS
Remedial Law Jurisprudence such as Spouses

Benatiro v. Heirs of Cuyos, (2008) and Agustin v.
Bacalan, (1985) on the matter of void judgment
particularly refer to Rule 47 as a remedy against a
void judgment. This remedy, however, should be
availed of only when the appropriate remedies are no
longer available without fault on the part of the
petitioner.
Note: The judgment is without prejudice to the

original action being refiled in the proper court. Also,
where the judgment or final order or resolution is set
aside on the ground of extrinsic fraud, the court may
on motion order the trial court to try the case as if a
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A final judgment or order is one that finally disposes

of a case, leaving nothing more to be done by the
Court in respect thereto, e.g., an adjudication on the
merits which, on the basis of the evidence presented
at the trial, declares categorically what the rights
and obligations of the parties are and which party is
in the right; or a judgment or order that dismisses an
action on the ground, for instance, of res judicata or
prescription. Once rendered, the task of the Court is
ended, as far as deciding the controversy or
determining the rights and liabilities of the litigants
is concerned. Nothing more remains to be done by
the Court except to await the parties' next move
(which among others, may consist of the filing of a
motion for new trial or reconsideration, or the taking
of an appeal) and ultimately, of course, to cause the
execution of the judgment once it becomes 'final or,
to use the established and more distinctive term,
'final and executory.
Although Section 2 of Rule 47 of the Rules of Court

provides that annulment of a final judgment or order
of an RTC may be based "only on the grounds of
extrinsic fraud and lack of jurisdiction," jurisprudence
recognizes denial of due process as additional
ground therefore (Spouses Benatiro Case).
Montinola v. Judge Gonzales (1989): a void judgment is
like an outlaw which may be slain at sight wherever or
whenever it exhibits its head. The proper remedy in
such case, after the time for appeal or review has
passed, is for the aggrieved party to bring an action
to enjoin the judgment.
Assuming the judgment to have been void as alleged
by the proponent of this motion, the proper remedy
was by an original proceeding and not by motion in
the cause" [Banco Espanol v. Palanca (1918)]. A final
judgment may be annulled on the ground of lack of
jurisdiction, fraud, or that it is contrary to law.
[Panlilio v. Garcia (1982)]
The proper remedy to question an improvident

interlocutory order is a petition for certiorari under
Rule 65, not Rule 45. A petition for review under
Rule 45 is the proper mode of redress to question
only final judgments. [Investments, Inc. v. Court of
Appeals(1987)]
Execution, Satisfaction and

Effect of Judgments
Execution is a matter of right upon the expiration of

the period to appeal and no appeal was perfected
from a judgment or order that disposes of the action
or proceeding. [Rule 39, Sec. 1]
DIFFERENCE BETWEEN FINALITY OF JUDGMENT

FOR PURPOSES OF APPEAL; FOR PURPOSES OF
EXECUTION
It can be noted that the Supreme Court made a

hairline distinction between finality of order for
appeals and for execution. It is submitted that upon
courts issuance of a judgment touching upon the
merits of a case, it is final for the purposes of an
appeal, but NOT for execution. Finality for the
purposes of execution refers to the expiration of the
period to appeal and no appeal was perfected.
The term finality of judgment for purposes of

appeal refers to interlocutory orders which:
(a) are not decisions within the constitutional
definition [Armargo v. CA (1973)]
(b) are those that determine incidental matters that
do not touch on the merits of the case or put an
end to proceedings. The following are examples
of an interlocutory order:
(1) an order denying a motion to dismiss;
(2) an order granting an extension of time to file a
pleading, or one authorizing an amendment
thereof;
(3) order granting or denying applications for
postponement or inspection of documents.
[Riano]
WHEN EXECUTION SHALL ISSUE

General rule: When the judgment or order becomes
executory, the court cannot refuse to issue a writ of
execution.
Exceptions: The issuance of a writ of execution which
issues as a matter of right can be countered in any of
the following cases (R-I-N-S-E-D):
(a) When a PETITION FOR RELIEF or an action to
enjoin judgment is filed and a preliminary
injunction is prayed for and granted (Rule 38,
Sec. 5);
(b) When the judgment turns out to be INCOMPLETE
OR IS CONDITIONAL since as a matter of law,
such judgment CANNOT BE FINAL;
The word interlocutory refers to something

intervening between the commencement and the
end of a suit which decides some point or matter but
is not a final decision of the whole controversy.
[Ramiscal, Jr. v. Sandiganbayan (2004)]
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(c) When the judgment has been NOVATED BY THE

PARTIES
(d) When
SUBSEQUENT
FACTS
AND
CIRCUMSTANCES transpire as to render such
execution unjust or impossible
(e) On EQUITABLE GROUNDS as when there has
been a change in the situation of the parties
which makes execution INEQUITABLE.
(f) When the judgment becomes DORMANT, the 5year period under Rule 39.6 having expired
without the judgment having been revived.
and thereafter by action before it is barred by the

statute of limitations.
The maximum period within which a final and
executory judgment may be executed is 20 years
[Rule 39, Sec. 6 in relation to New Civil Code provision
on prescription of judgment]
Exceptions:
(a) Judgments for support WHICH DO NOT BECOME
DORMANT AND WHICH CAN BE EXECUTED BY
MOTION [Canonizado v. Benitez (1984)] except for
support in arrears beyond 10 years from the date
they become due;
(b) Contempt orders by reason of unauthorized
reentry on the land by the ejected defendant
[Azotes v. Blanco (1947)];
(c) Issuance of writs of possession in FORECLOSURE
CASES within the statute of limitations;
(d) Land registration proceedings (and other special
proceedings), hence the right to ask for a WRIT
OF POSSESSION THEREIN NEVER PRESCRIBES
AEXECUTION AS A MATTER OF RIGHT
See Annex D.
General rule: An ex parte motion for the issuance of
the writ of execution would suffice since the trial
court may take judicial notice of the record of the
case to determine the propriety of the issuance
thereof.
Exception: However when the losing party shows that
subsequent facts had taken place which would
render the execution unjust, a hearing on the motion
should be held. [Luzon Surety v. Beson (1976)]
DISCRETIONARY EXECUTION
See Annex E.
General rule: An appeal seasonably perfected shall

stay the execution of the judgment, unless
discretionary execution is granted by the court.
General rule: Under the Rule on Discretionary

Execution (also called execution pending appeal),
the court rendering the judgment, if it still has
jurisdiction, may exercise discretion and order
execution pending appeal (Asked in the 2002 Bar
Exam). It is the execution of a judgment or final order
before it attains finality. The court which rendered
the decision can grant an execution pending appeal
if it still retains jurisdiction over the case and is in
possession of the records at the time of the filing of
the motion; otherwise, the motion shall be acted
upon by the appellate court. To be valid, there
should be a good reason to justify the execution of
the judgment pending appeal, the same to be stated
in the order granting it.
Exceptions: However, judgments in the following

action, despite perfection of an appeal, shall be
executed, unless the court orders otherwise:
(a) injunction
(b) receivership
(c) accounting
(d) support
(e) such other judgments as shall now or may
hereafter be declared to be immediately
executory
Judgments in these actions shall be enforceable
after their rendition and shall not, be stayed by an
appeal taken therefrom, UNLESS OTHERWISE
ORDERED BY THE TRIAL COURT.
Exception: This rule, however, is inapplicable in the

case of the Court of Appeals.
(a) The
Rule
on
Discretionary
Execution
contemplates a situation where a judgment or
final order rendered in the exercise of its original
jurisdiction and the prevailing party in said
decision seeks immediate execution during the
pendency of an appeal.
(b) The CA has no authority to issue IMMEDIATE
EXECUTION PENDING APPEAL OF ITS OWN
DECISIONS THEREIN.
(c) Discretionary execution is allowed pending
appeal of judgment or final order of the trial court
upon good reasons to be stated in a special order.
General rule: A final and executory judgment or order

may be executed on motion within five (5) years from
the date of its entry. [Rule 39, Sec. 6]
After the lapse of such time, and before it is barred
by the statute of limitations, a judgment may be
enforced by action.
The revived judgment may also be enforced by
motion within five (5) years from the date of its entry
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(c) If it be for the sale of real or personal property, to

sell such property, describing it, and apply the
proceeds in conformity with the judgment, the
material parts of which shall be recited in the writ
of execution;
(d) If it be for the delivery of the possession of real or
personal property, to deliver the possession of the
same, describing it, to the party entitled thereto,
and to satisfy any costs, damages, rents, or profits
covered by the judgment out of the personal
property of the person against whom it was
rendered, and if sufficient personal property
cannot be found, then out of the real property;
and
(e) In all cases, the writ of execution shall specifically
state the amount of the interest, costs, damages,
rents, or profits due as of the date of the issuance
of the writ, aside from the principal obligation
under the judgment. For this purpose, the motion
for execution shall specify the amounts of the
foregoing reliefs sought by the movant.
Heirs of Justice J.B.L. Reyes v. CA (2000): A judgment

of the ca cannot be executed pending appeal. It is
acquired either by the arrest of the accused or by his
voluntary appearance in court.
General rule: The filing of a supersedeas bond is
sufficient to stay the enforcement of a discretionary
execution.
Exception: However, THE FILING OF SUPERSEDEAS
BOND does not entitle the judgment debtor to the
suspension of execution as a MATTER OF RIGHT.
Where the needs of the prevailing party are
URGENT, the Court can order immediate execution
despite such SUPERSEDEAS BOND. [Regalado]
HOW A JUDGMENT IS EXECUTED
EXECUTION BY MOTION OR BY INDEPENDENT ACTION
[Rule 39, Sec. 6]

When judgment/order may be executed by motion
Within 5 years from the date of its entry
EXECUTION OF JUDGMENTS FOR MONEY
2007 Bar Exam)
When judgment/order may be executed by

independent action
After the lapse of 5 years from date of its entry and
before it is barred by the statute of limitations
(asked in the
Immediate payment on demand

Procedure
The sheriff or executing officer demands from the
judgment obligor the immediate payment of the
full amount stated in the writ of execution and all
lawful fees.
Note: The revived judgment may be enforced by

motion within five (5) years from the date of its entry
and thereafter by action before it is barred by the
statute of limitations.
ISSUANCE AND CONTENTS OF A WRIT OF EXECUTION
[Rule
39, Sec. 8]
The judgment obligor shall pay in cash, certified

bank check payable to the judgment obligee, or
ANY OTHER FORM OF PAYMENT ACCEPTABLE
TO THE LATTER (e.g., dacion en pago), the
amount of the judgment debt under proper
receipt directly to the judgment obligee or his
authorized representative if present at the time of
payment.
Writ of Execution
(a) Issued in the name of of the Republic of the
Philippines from the court which granted the
motion;
(b) state the name of the court, the case number and
title, the dispositive part of the subject judgment
or order; and
(c) require the sheriff or other proper officer to whom
it is directed to enforce the writ according to its
terms
The lawful fees shall be handed under proper

receipt to the executing sheriff who shall turn over
the said amount within the same day to the clerk
of court of the court that issued the writ.
Manner of Execution
(a) If the execution be against the property of the
judgment obligor, to satisfy the judgment, with
interest, out of the real or personal property of
such judgment obligor;
(b) If it be against real or personal property in the
hands of personal representatives, heirs, devisees,
legatees, tenants, or trustees of the judgment
obligor, to satisfy the judgment, with interest, out
of such property;
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If the judgment obligor cannot pay all or part

of the obligation in cash, certified bank check
or other mode of payment acceptable to the
judgment obligee, the officer shall levy upon:
(a) the properties of the judgment obligor of
every kind and nature whatsoever which
may be disposed, of for value, and
(b) not otherwise exempt from execution
If the judgment obligee or his authorized

representative is not present to receive
payment, the judgment obligor shall deliver
the aforesaid payment to the executing
sheriff. The latter shall turn over all the
amounts coming into his possession within
the same day to the clerk of court of the court
that issued the writ, or if the same is not
practicable, deposit said amounts to a
fiduciary account in the nearest government
depository bank of the Regional Trial Court of
the locality.
The sheriff gives the judgment obligor the

option as to which of the property or part
thereof may be levied upon, sufficient to satisfy
the judgment.
The clerk of said court shall thereafter arrange

for the remittance of the deposit to the account
of the court that issued the writ whose clerk of
court shall then deliver said payment to the
judgment obligee in satisfaction of the
judgment.
If the judgment obligor does not exercise the

option, the officer shall first levy on the
personal properties, if any, and then on the real
properties if the personal properties are
insufficient to answer for the judgment.
The excess, if any, shall be delivered to the

judgment obligor while the lawful fees shall be
retained by the clerk of court for disposition as
provided by law. In no case shall the executing
sheriff demand that any payment by check be
made payable to him.
The sheriff shall sell only a sufficient portion of

the personal or real property of the judgment
obligor which has been levied upon.
Satisfaction by levy
Nature
Levy means the act or acts by which an officer sets
apart or appropriates a part or the whole of the
property of the judgment debtor for purposes of the
prospective execution sale [Llenares v. Vandevella
(1966)].
When there is more property of the judgment

obligor than is sufficient to satisfy the judgment
and lawful fees, he must sell only so much of
the personal or real property as is sufficient to
satisfy the judgment and lawful fees.
If susceptible of appropriation, the officer removes

and takes the property for safekeeping; otherwise the
same is placed under sheriffs guards. Without valid
levy having been made, any sale of the property
thereafter is void.
Procedure
PAGE 97
Levy
Garnishment
seizure of property,
personal and/or real,
belonging
to
the
judgment debtor for
subsequent
execution
sale to satisfy judgment
Garnishment is
the process of notifying a

third
person
(the
garnishee) to retain and
attach the property he
has in his possession or
under
his
control
belonging
to
the
judgment debtor, to
make disclosure to the
court concerning the
same, and to dispose of
UP COLLEGE OF LAW
Levy
CIVIL PROCEDURE
The garnishee shall make a WRITTEN REPORT

to the court within five (5) days from service of
the notice of garnishment stating whether or
not the judgment obligor has sufficient funds or
credits to satisfy the amount of the judgment. If
not, the report shall state how much funds or
credits the garnishee holds for the judgment
obligor.
Garnishment
the same as the court
shall direct to satisfy the
judgment. (Sec. 9, Rule
39)
Garnishment of debts and credits

Definition
Garnishment has been defined as a specie of
attachment for reaching credits belonging to the
judgment debtor and owing to him from a stranger
to the litigation [BPI v. Lee (2012)]
The garnished amount in cash, or certified

bank check issued in the name of the judgment
obligee, shall BE DELIVERED DIRECTLY TO
THE JUDGMENT OBLIGEE within ten (10)
working days from service of notice on said
garnishee requiring such delivery, except the
lawful fees which shall be paid directly to the
court.
Scope
The officer may levy on debts due the judgment
obligor and other credits, including bank deposits,
financial interests, royalties, commissions and other
personal property not capable of manual delivery in
the possession or control of third parties.
The process of levying shall be called garnishment if
the property involved is money, stocks, or other
incorporeal property in the HANDS OF THIRD
PERSONS. Garnishment merely sets apart such
funds but does not constitute the creditor as owner
of the garnished property.
In the event there are two or more garnishees

holding deposits or credits sufficient to satisfy
the judgment, the judgment obligor, if
available, shall have the right to indicate the
garnishee or garnishees who shall be required
to deliver the amount due, otherwise, the
choice shall be made by the judgment obligee.
Garnishment is not a violation of RA 1405 on the

secrecy of bank deposits. [Chinabank v. Ortega
(1973)]
Notes: Upon service of the writ of garnishment, the
garnishee becomes a virtual party or forced
intervenor to the case and the trial court thereby
acquires jurisdiction to bind the garnishee to comply
with its orders and processes. [BPI v. Lee (2012)]
The executing sheriff shall observe the same

procedure under IMMEDIATE PAYMENT ON
DEMAND with respect to delivery of payment to
the judgment obligee.
UPs funds, being government funds, are not subject

to garnishment. Moreover, The execution of the
monetary judgment against the UP was within the
primary jurisdiction of the COA. [UP v. Dizon (2012)]
EXECUTION OF JUDGMENTS FOR SPECIFIC ACTS
Conveyance, delivery of deeds, or other specific acts

Under this situation, there is a judgment which
directs a party to execute a conveyance of land or
personal property, or to deliver deeds or other
documents, or to perform, any other specific act IN
CONNECTION THEREWITH.
Procedure
Levy shall be made by SERVING NOTICE
UPON THE PERSON OWING SUCH DEBTS OR
HAVING IN HIS POSSESSION OR CONTROL
SUCH CREDITS TO WHICH THE JUDGMENT
OBLIGOR IS ENTITLED. The garnishment shall
cover only such amount as will satisfy the
judgment and all lawful fees.
If the party so ordered fails to comply within a

specified period, there are two possible remedies.
Either:
(a) the court may DIRECT THE ACT TO BE DONE AT
THE COST OF THE DISOBEDIENT PARTY by
some other person appointed by the court and
the act when so done shall have like effect as if
done by the party, or
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(b) if real or personal property is situated within the

Philippines, the court in lieu of directing a
conveyance thereof may by an order divest the
title of any party and vest it in others, which shall
have the force and effect of a conveyance
executed in due form of law.
is rendered, or upon any other person required

thereby, or by law, to obey the same, and such party
or person may be punished for contempt if he
disobeys such judgment.
Special judgments are those which can be complied
with by the judgment obligor because of his personal
qualifications or circumstances (e.g., a judgment
ordering a partner to render an accounting, a
judgment ordering a party to comply with his
recording contract otherwise, pay damages).
Sale of real or personal property

If judgment is rendered ordering the sale of real or
personal property, an order for execution shall be
issued describing such property as may be ordered
sold, selling it, and applying the proceeds in
conformity with the judgments instructions.
Note the difference with sections 9 and 10 (on

execution of money judgments and specific acts)
where contempt is not a remedy against
disobedience by a party.
Delivery or restitution of real property

The officer shall demand of the person against
whom the judgment for the delivery or restitution of
real property is rendered and all persons claiming
rights under him to peaceably vacate the property
within three (3) working days, and restore possession
thereof to the judgment obligee.
EFFECT OF LEVY ON THIRD PERSONS [Rule 39, Sec. 12]
Effect
The levy on execution shall create a lien in favor of
the judgment obligee over the right, title and interest
of the judgment obligor in such property at the time
of the levy, subject to liens and encumbrances then
existing.
Otherwise, the officer shall oust all such persons

therefrom with the assistance, if necessary, of
appropriate peace officers, and employing such
means as may be reasonably necessary to retake
possession, and place the judgment obligee in
possession of such property.
PROPERTIES EXEMPT FROM EXECUTION

General rule: Except as otherwise expressly provided
by law, the following property, and no other, shall be
exempt from execution: (FOTNUP-LBS-GMRE)
(a) The judgment obligor's family home as provided
by law, or the homestead in which he resides,
and land necessarily used in connection
therewith;
(b) Ordinary tools and implements personally used
by him in his trade, employment, or livelihood;
(c) Three horses, or three cows, or three carabaos,
or other beasts of burden, such as the judgment
obligor may select necessarily used by him in his
ordinary occupation;
(d) His necessary clothing and articles for ordinary
personal use, excluding jewelry;
(e) Household furniture and utensils necessary for
housekeeping, and used for that purpose by the
judgment obligor and his family, such as the
judgment obligor may select, of a value not
exceeding one hundred thousand pesos;
(f) Provisions for individual or family use sufficient
for four months;
(g) The professional libraries and equipment of
judges, lawyers, physicians, pharmacists,
dentists, engineers, surveyors, clergymen,
teachers, and other professionals, not exceeding
three hundred thousand pesos in value;
(h) One fishing boat and accessories not exceeding
the total value of one hundred thousand pesos
owned by a fisherman and by the lawful use of
which he earns his livelihood;
Any costs, damages, rents or profits awarded by the

judgment shall be satisfied in the same manner as a
judgment for money.
Removal of improvements on property subject of
execution
When the property subject of the execution contains
improvements constructed or planted by the
judgment obligor or his agent, the officer shall not
destroy, demolish or remove said improvements
except upon special order of the court, issued upon
motion of the judgment obligee after the hearing
and after the former has failed to remove the same
within a reasonable time fixed by the court.
Delivery of personal property
In judgment for the delivery of personal property, the
officer shall take possession of the same and
forthwith deliver it to the party entitled thereto and
satisfy any judgment for money as therein provided.
EXECUTION OF SPECIAL JUDGMENTS
When a judgment requires the performance of any

act other than those mentioned in the two preceding
sections (execution of judgment for money and specific
acts), a certified copy of the judgment shall be
attached to the writ of execution and shall be served
by the officer upon the party against whom the same
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CIVIL PROCEDURE
(i)
So much of the salaries, wages, or earnings of

the judgment obligor for his personal services
within the four months preceding the levy as are
necessary for the support of his family;
(j) Lettered gravestones;
(k) Monies, benefits, privileges, or annuities
accruing or in any manner growing out of any
life insurance;
(l) The right to receive legal support, or money or
property obtained as such support, or any
pension or gratuity from the Government;
(m) Properties specially exempted by law. (e.g.,
property mortgaged to the DBP [Section 26, CA
458]; savings of national prisoners deposited
with the POSTAL SAVINGS BANK [Act 2489];
benefits from private retirement systems of
companies and establishments with limitations
[RA 4917]; laborers wages except for debts
incurred for food, shelter, clothing and medical
attendance [ART 1708, CIVIL CODE]; benefit
payments from SSS [Section 16, RA 1161 AS
AMENDED])
with the court and copies thereof promptly furnished

the parties. [Rule 39, Sec. 12]
Notice Requirement
Before the sale of property on execution, notice
thereof must be given as follows:
(a) In case of perishable property, by posting written
notice of the time and place of the sale in three
(3) public places, preferably in conspicuous areas
of the (CPM) municipal or city hall, post office and
public market in the municipality or city where
the sale is to take place, for such time as may be
reasonable, considering the character and
condition of the property;
(b) In case of other personal property, by posting a
similar notice in the three (3) public places abovementioned for not less than five (5) days;
(c) In case of real property, by posting for twenty (20)
days in the three (3) public places
abovementioned a similar notice particularly
describing the property and stating where the
property is to be sold, and if the assessed value of
the property exceeds fifty thousand (P50,000.00)
pesos, by publishing a copy of the notice once a
week for two (2) consecutive weeks in one
newspaper selected by raffle, whether in English,
Filipino, or any major regional language
published, edited and circulated or, in the
absence thereof, having general circulation in the
province or city;
(d) In all cases, written notice of the sale shall be
given to the judgment obligor, at least three (3)
days before the sale, except as provided in
paragraph (a) hereof where notice shall be given
the same manner as personal service of
pleadings and other papers as provided by
section 6 of Rule 13.
Exception: However, no article or species of property

mentioned in this section shall be exempt from:
(a) execution issued upon a judgment recovered for
its price, or
(b) upon a judgment of foreclosure of a mortgage
thereon.
Herrera v. Mcmicking (1909): The exemptions MUST
BE CLAIMED, otherwise they are deemed waived. It
is not the duty of the sheriff to set off the exceptions
on his own initiative.
Return of Writ of Execution
The writ of execution shall be returnable to the court
issuing it immediately after the judgment has been
satisfied in part or in full.
The notice shall specify the place, date and exact

time of the sale which should not be earlier than nine
o'clock in the morning and not later than two o'clock
in the afternoon (9am-2pm).
If the judgment cannot be satisfied in full within

thirty (30) days after his receipt of the writ, the officer
shall report to the court and state the reason
therefor.
The place of the sale MAY BE AGREED UPON BY

THE PARTIES. In the absence of such agreement, the
sale of the property or personal property not capable
of manual delivery shall be held in the office of the
clerk of court of the Regional Trial Court or the
Municipal Trial Court which issued the writ of or
which was designated by the appellate court.
Such writ shall continue in effect during the period

within which the judgment may be enforced by
motion.
The officer shall make a report to the court every
thirty (30) days on the proceedings taken thereon
until the judgment is satisfied in full, or its effectivity
expires.
In the case of personal property capable of manual

delivery, the sale shall be held in the place where the
property is located. [Rule 39, Sec. 15]
The returns or periodic reports shall set forth the

whole of the proceedings taken, and shall be filed
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PENALTIES
(Selling without notice and defacing notice)
An officer selling without A
person
willfully
the notice prescribed by removing or defacing the
section 15 of this Rule
notice posted
pay punitive damages in if done before the sale, or
the amount of P5,000 before the satisfaction of
to any person injured the judgment if it be
thereby, in addition to satisfied before the sale,
his actual damages, shall be liable to pay
both to be recovered by P5,000 to any person
motion in the same injured by reason thereof,
action
in addition to his actual
damages,
to
be
recovered by motion in
the same action
How property sold on execution (See table on Service

of summons upon different entities)
Preventing Execution Sale

At any time before the sale of property on execution,
the judgment obligor may prevent the sale by paying
the amount required by the execution and the costs
that have been incurred therein. [Rule 39, Sec. 18]
(a) This is akin to the equitable right of redemption
under Rule 68, which is available to the judgment
obligor in judicial foreclosure of mortgage.
(b) The difference lies in the fact that under Rule 68,
a definite period is given.
The aforementioned are cumulative remedies and

may be resorted to by a third-party claimant
independently of or separately from and without
need of availing of the others. [Sy v. Discaya (1990)]
PROCEEDINGS WHERE PROPERTY IS CLAIMED

BY THIRD PERSONS
IN RELATION TO THIRD PARTY CLAIM IN ATTACHMENT AND
REPLEVIN
Remedies of a Third-Party Claimant

(a) Summary hearing before the court which
authorized the execution
(b) Terceria or third-party claim filed with the
sheriff
(c) Action for damages on the bond posted by the
judgment creditor
(d) Independent reivindicatory action
Rules regarding terceria (third-party claims) (asked in

the 2000 & 2005 bar exams)
The third person whose property was levied on
must make an affidavit of his title thereto or
right to the possession thereof stating the
grounds of such right or title. He must serve
the same upon the officer making the levy and
copy thereof upon the judgment obligee. The
officer shall not be bound to keep the property
as a general rule.
Concluding the Execution Sale

When the purchaser is the judgment obligee, and no
third-party claim has been filed, he need not pay the
amount of the bid if it does not exceed the amount of
his judgment. If it does, he shall pay only the excess.
[Rule 39, Sec. 21]
By written consent of the judgment obligor and
obligee, or their duly authorized representatives, the
officer may adjourn the sale to any date and time
agreed upon by them. Without such agreement, he
may adjourn the sale from day to day if it becomes
necessary to do so for lack of time to complete the
sale on the day fixed in the notice or the day to which
it was adjourned [Rule 39, Sec. 22]. Written consent is
essential, otherwise the adjournment will be void
[Abrozar v. IAC (1988)]
Sheriff is bound to keep the property when the

judgment obligee, on demand of the officer,
files a bond approved by the court to indemnify
the third-party claimant in a sum not less than
the value of the property levied on.
In case of disagreement as to such value of the

bond, the same shall be determined by the
court issuing the writ of execution.
Upon a sale of real property, the officer must give to

the purchaser a certificate of sale containing:
(a) A particular description of the real property sold;
(b) The price paid for each distinct lot or parcel;
(c) The whole price paid by him;
(d) A statement that the right of redemption expires
one (1) year from the date of the registration of
the certificate of sale. Such certificate must be
registered in the registry of deeds of the place
where the property is situated. [Rule 39, Sec. 25]
No claim for damages for the taking or keeping of the
property
may
be enforced
bondprovisions
unless the of the
Apart
from
Rule
39, theagainst
only the
other
action therefor is filed within one hundred twenty (120) days
Rules
of date
Court
dealing
terceria or third party
from the
of the
filing of with
the bond.
claims are Rule 57, Sec. 14 on preliminary
The officer shall
be liable
for damages
for the taking or
attachment
andnot
Rule
60, Sec.
7 on replevin.
keeping of the property, to any third-party claimant if such
bond is filed
Northern Motors v. Coquia (1975): The third party

claimant CANNOT
APPEAL NOR AVAIL OF
PAGE 101
UP COLLEGE OF LAW
CIVIL PROCEDURE
CERTIORARI AS A REMEDY in the event that his

claim was denied since HE IS A NONPARTY to the
original action.
(e) The right of redemption is transferable and may

be voluntarily sold [Gomez v. La Germinal (1918)]
but said right cannot be levied upon by the
judgment creditor. The creditor may not deprive
the debtor of any further rights to the property
[Lichauco v. Olegario (1922)]
Intervention by a third-party claimant whose

property had been levied upon by the sheriff in the
action from which the writ pursuant to which the levy
was made was issued must be made before rendition
of judgment by the trial court. He can no longer
intervene once the trial court already issues a writ of
execution. [Bautista]
(f) In effecting redemption, the mortgagor has the

duty of tendering payment (actual tender of
payment of the redemption price) before the
redemption period expires. [Banco Filipino
Savings and Mortgage Bank v. CA (2005)]
However, neither to make an offer to redeem nor
to make tender of payment of the repurchase
price is necessary when the right to redeem is
exercised through the filing of a complaint to
redeem. The filing of an action to redeem within
that period is equivalent to a formal offer to
redeem. [Vda. de Panaligan v. CA (1996)]
RULES ON REDEMPTION
(a) There is no right of redemption where the
property sold at judicial sale is personal property.
(b) Real property sold or any part thereof sold
separately, may be redeemed in the manner
hereinafter provided, by the following persons:
(1) The judgment obligor; or his successor in
interest in the whole or any part of the
property;
(2) A creditor having a lien by virtue of an
attachment, judgment or mortgage on the
property sold, or on some part thereof,
subsequent to the lien under which the
property was sold. Such redeeming creditor is
termed a redemptioner. [Rule 39, Sec. 27]
(g) Redemption price varies depending on who the

redemptioner is:
(1) If judgment obligor: Purchase price
(i) 1 % interest thereon up to the time of
redemption
(ii) Any amount of assessments or taxes which
the purchaser may have paid thereon after
purchase and interest on such last named
amount at the same rate.
(iii) If the purchaser be also a creditor having
prior lien to that of the redemptioner, other
than the judgment under which such
purchase was made, the amount of such
other lien, with interest.
(c) Redemption can be made by either:

(1) JUDGMENT OBLIGOR, within one year from
the date of registration of the certificate of
sale
(2) REDEMPTIONER, within one year from the
date of registration of the certificate of sale; or
within 60 days from the last redemption by
another redemptioner.
(3) BUT IN ALL CASES, the judgment obligor
shall have the entire period of 1 YEAR from the
date of registration of the sale to redeem the
property.
(4) IF THE JUDGMENT OBLIGOR REDEEMS, no
further redemption is allowed and he is
restored to his estate.
(5) THE PERIOD FOR REDEMPTION IS NOT
SUSPENDED by an action to annul the
foreclosure sale.
(2) If redemptioner: Amount paid on the last

redemption
(i) 2% interest thereon.
(ii) Any amount of assessments or taxes which
the last redemptioner may have paid thereon
after redemption by him with interest on
such last named amount;
(iii) Amount of any liens held by said last
redemptioner prior to his own with interest
EFFECTS OF REDEMPTION
[Rule 39, Sec. 29]

(a) If the judgment obligor redeems he must make
the same payments as are required to effect a
redemption by a redemptioner, whereupon, no
further redemption shall be allowed and he is
restored to his estate.
(b) The person to whom the redemption payment is
made must execute and deliver to him a
certificate of redemption acknowledged before a
notary public or other officer authorized to take
(d) If the certificate of sale is not registered, the

period for redemption does not run [Garcia v.
Ocampo (1959)]. But where parties agreed on the
date of redemption, the statutory period for legal
redemption was converted into one of
conventional redemption and the period binding
on them is that agreed upon. [Lazo v. Republic
Surety & Insurance Co., Inc (1970)]
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UP COLLEGE OF LAW
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acknowledgments of conveyances of real

property.
(c) Such certificate must be filed and recorded in the
registry of deeds of the place in which the
property is situated and the registrar of deeds
must note the record thereof on the margin of the
record of the certificate of sale.
(d) The payments mentioned in this and the last
preceding sections may be made to the purchaser
or redemptioner, or for him to the officer who
made the sale.
(3) Use the property in the same manner it was

previously used;
(4) Make Necessary repairs to buildings thereon
while he occupies the property
(5) Use it in the ordinary course of husbandry
(6) Collect rents, earnings and income derived
from the property until the expiration of
period of redemption.
[Rule 39, Sec. 33]
(a) If no redemption be made within one (1) year from
the date of the registration of the certificate of
sale, the purchaser is entitled to a conveyance
and possession of the property; or,
(b) if so redeemed whenever sixty (60) days have
elapsed and no other redemption has been
made, and notice thereof given, and the time for
redemption has expired, the last redemptioner is
entitled to the conveyance and possession;
(c) but in all cases the judgment obligor shall have
the entire period of one (1) year from the date of
the registration of the sale to redeem the
property.
(d) The deed shall be executed by the officer making
the sale or by his successor in office, and in the
latter case shall have the same validity as though
the officer making the sale had continued in
office and executed it.
(e) Upon the expiration of the right of redemption,
the purchaser or redemptioner shall be
substituted to and acquire all the rights, title,
interest and claim of the judgment obligor to the
property as of the time of the levy.
(f) The possession of the property shall be given to
the purchaser or last redemptioner by the same
officer unless a third party IS ACTUALLY
HOLDING THE PROPERTY adversely to the
judgment obligor.
[Rule 39, Sec. 30]

A redemptioner must produce to the officer, or
person from whom he seeks to redeem, and serve
with his notice to the officer
(a) a copy of the judgment or final order under which
he claims the right to redeem, certified by the
clerk of the court wherein the judgment or final
order is entered, OR,
(b) if he redeems upon a mortgage or other lien, a
memorandum of the record thereof, certified by
the registrar of deeds, OR
(c) an original or certified copy of any assignment
necessary to establish his claim; AND
(d) an affidavit executed by him or his agent,
showing the amount then actually due on the
lien.
[Rule 39, Sec. 31]
(a) Until the expiration of the time allowed for
redemption, the court may, as in other proper
cases, restrain the commission of waste on the
property by injunction, on the application of the
purchaser or the judgment obligee, with or
without notice;
(b) but it is not waste for a person in possession of
the property at the time of the sale, or entitled to
possession afterwards, during the period allowed
for redemption, to continue to use it in the same
manner in which it was previously used, or to use
it in the ordinary course of husbandry; or to make
the necessary repairs to buildings thereon while
he occupies the property.
(c) The purchaser or a redemptioner shall not be
entitled to receive the rents, earnings and income
of the property sold on execution, or the value of
the use and occupation thereof when such
property is in the possession of a tenant.
(d) All rents, earnings and income derived from the
property pending redemption shall belong to the
judgment obligor until the expiration of his period
of redemption. In all, the judgment debtor shall
exercise the following rights:
(1) Remain in possession of the property
(2) He cannot be ejected;
RECOVERY OF
JUDGMENT:
PURCHASE
PRICE
AND
REVIVAL
OF
(a) A judgment co-debtor may compel a contribution

from the others:
(1) When property liable to an execution against
several persons is sold thereon, and
(2) more than a due proportion of the judgment
is satisfied out of the proceeds of the sale of
the property of one of them, or
(3) one of them pays, without a sale, more than
his proportion,
(b) A surety may compel repayment from the
principal:
When a judgment is upon an obligation of one of
them, as security for another, and the surety pays
the amount, or any part thereof, either by sale of
his property or before sale. [Section 35, Rule 39].
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UP COLLEGE OF LAW
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from execution or forbid a transfer or

disposition or interference with such property
[Sec. 41]
(3) if the court finds the judgment debtor had an
ascertainable interest in real property either
as mortgagor, mortgagee or otherwise, and
his interest can be ascertained without
controversy, the court may order a sale of such
interest [Sec. 42].
(4) if the person alleged to have the property of
the judgment debtor or be indebted to him,
claims an adverse interest in the property or
denies the debt, the court may authorize the
judgment creditor to institute an action to
recover the property, forbid its transfer and
may punish disobedience for contempt [Sec.
43]
EXAMINATION OF JUDGMENT OBLIGOR WHEN

JUDGMENT IS UNSATISFIED [Rule 39, Sec. 36]
WHEN EXAMINATION MAY BE MADE
Any time after a return, stating that the judgment

remains unsatisfied, in whole or in part, is made
HOW
Court issued an order requiring the judgment obligor

to appear and be examined concerning his property
and income before such court or before a
commissioner appointed by it, at a specified time
and place; and proceedings may thereupon be had
for the application of the property and income of the
judgment obligor towards the satisfactions of the
judgment.
Note: Judgment obligor may not be required to
appear before a court or commissioner outside the
province or city in which such obligor resides or is
found.
ENTRY OF SATISFACTION
Satisfaction of a judgment shall be entered by the

clerk of court in the court docket, and in the
execution book,
(a) upon the return of a writ of execution showing the
full satisfaction of the judgment, or
(b) upon the filing of an admission to the satisfaction
of the judgment executed and acknowledged in
the same manner as a conveyance of real
property by the judgment obligee or by his
counsel
(c) UNLESS a revocation of his authority is filed, or
upon the endorsement of such admission by the
judgment obligee or his counsel, on the face of
the record of the judgment. [Rule 39, Sec. 44]
EXAMINATION OF OBLIGOR OF JUDGMENT

OBLIGOR
DOES A PARTY LITIGANT ENJOY ANY DISCOVERY RIGHTS
AFTER THE PROMULGATION OF FINAL AND EXECUTORY
JUDGMENT?
Yes. See Secs. 36-38, Rule 39 [Bautista]

REMEDIES OF JUDGMENT CREDITOR IN AID OF EXECUTION
[Secs. 36-43]
(Asked in the 2008 Bar Exam particularly steps to be
taken if writ of execution is unsatisfied)
(a) If the execution is returned unsatisfied, he may
cause the examination of the judgment debtor as
to his property and income [Sec. 36] (asked in the
2002 bar exam)
(b) He may cause examination of the debtor of the
judgment debtor as to any debt owed by him or
to any property of the judgment debtor in his
possession [Sec. 37].
(c) If after examination, the court finds the property
of the judgment debtor either in his own hands or
that of any person, the court may order the
property applied to the satisfaction of the
judgment.
(d) A party or other person may be compelled by an
order or subpoena to attend before the court or
commissioner to testify as provided in sect 36-37.
(1) if the court finds the earnings of the judgment
debtor are more than sufficient for his familys
needs, it may order payment in installments
[Sec. 40]
(2) the court may appoint a receiver for the
property of the judgment debtor not exempt
Whenever a judgment is satisfied in fact, or otherwise

than upon an execution on demand of the judgment
obligor,
(a) the judgment obligee or his counsel must execute
and acknowledge, or indorse an admission of the
satisfaction as provided in the last preceding
section,
(b) and after notice and upon motion the court may
order either the judgment obligee or his counsel
to do so, or may order the entry of satisfaction to
be made without such admission. [Rule 39, Sec.
45]
EFFECT OF JUDGMENT OR FINAL ORDERS
RES JUDICATA IN JUDGMENTS IN REM
Judgments or final order

Against a specific thing
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Conclusive as to
Title of the thing
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Judgments or final order
Conclusive as to
Probate of a will or
administration of the
estate of a deceased
person
The
will
or
administration. However,
the probate of a will or
granting of letters of
administration shall only
be prima facie evidence
of the death of the
testator or intestate;
Condition, status or
relationship
of
the
person,
IN RESPECT TO THE
PERSONAL, political, or
legal condition or status
of a particular person or
his
relationship
to
another
(c) it must be a judgment on the merits

(d) there must be, between the first and second
actions, identity of parties, subject matter and
causes of action [Perez v. CA (2005)]
RES JUDICATA V.
LAW OF THE CASE V. STARE DECISIS

[Ayala Corporation V. Rosa-Diana Realty, (2000)]
Res Judicata
Law of the
Stare Decisis
Case
The ruling in Operates only in
one case is the
particular
carried over and single case
to
another where the ruling
case between arises and is not
the
same carried
into
parties
other cases as a
precedent
The
ruling Once a point of
adhered to in law has been
the
particular established by
case need not the court, that
be followed as a point of law will,
precedent
in generally,
be
subsequent
followed by the
litigation
same court and
between other by all courts of
parties
lower rank in
subsequent
cases where the
same legal issue
is raised
RES JUDICATA IN JUDGMENTS IN PERSONAM
In other cases, the judgment or final order is, with

respect to the matter directly adjudged or as to any
other matter that could have been missed in relation
thereto, conclusive:
(a) between the parties and
(b) their successors in interest, by title subsequent to
the commencement of the action or special
proceeding, litigating for the same thing and
under the same title and in the same capacity.
CONCLUSIVENESS OF JUDGMENT/PRECLUSION OF ISSUES
(AUTER ACTION PENDANT)
In any other litigation between the same parties or

their successors in interest, that only is deemed to
have been adjudged in a former judgment or final
order which appears upon its face to have been so
adjudged, or which was actually and necessarily
included therein or necessary thereto.
Bar by former judgment
(res judicata)
Conclusiveness of
judgment
There is identity of
parties, subject matter
and causes of action
The
first
judgment
constitutes an absolute
bar to all matters
directly adjudged and
those that might have
been adjudged.
Identity of parties and

subject matter.
ENFORCEMENT AND EFFECT

JUDGMENTS OR FINAL ORDERS
OF
FOREIGN
(Asked in the 2005 Bar

Exam)
(a) In case of a judgment or final order upon a
specific thing, the judgment or final order, is
conclusive upon the title to the thing [Rule 39,
Sec. 48]
(b) In case of a judgment or final order against a
person, the judgment or final order is
presumptive evidence of a right as between the
parties and their successors in interest by a
subsequent title [Rule 39, Sec. 48]
(c) In either case, the judgment or final order may be
repelled by evidence of a want of jurisdiction,
want of notice to the party, collusion, fraud, or
clear mistake of law or fact [Rule 39, Sec. 48]
(d) Such limitation on the review of foreign judgment
is adopted in all legal systems to avoid repetitive
litigation on claims and issues, prevent
harassment of the parties and avoid undue
imposition on the courts.
(e) This policy of preclusion rests on principles of
comity, utility and convenience of nations.
EFFECT OF FOREIGN JUDGMENTS
The first judgment is

conclusive only as to
matters
directly
adjudged and actually
litigated in the first
action. Second action
can be prosecuted.
REQUISITES OF RES JUDICATA
(a) finality of the former judgment;

(b) the court which rendered it had jurisdiction over
the subject matter and the parties
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(f) As a generally accepted principle of international

law, it is part of the law of the Philippines by
virtue of the Incorporation Clause [Section 2,
Article II of the 1987 Constitution] [Regalado]
PURPOSES
(a) To seize the property of the debtor in advance of

final judgment and to hold it for purposes of
satisfying the said judgment.
(b) To enable the court to acquire jurisdiction over
the action by the actual or constructive seizure of
the property in those instances where personal
service of summons on the creditor cannot be
effected. [Quasha v. Juan (1982)]
Provisional Remedies
NATURE OF PROVISIONAL REMEDIES
DEFINITION
GROUNDS FOR ISSUANCE OF WRIT OF ATTACHMENT
Writs and processes available during the pendency

of the action which may be resorted to by a litigant
for the preservation or protection of their rights and
interests therein pending rendition, and for purposes
of the ultimate effects, of a final judgment in the
case; also known as ancillary or auxiliary remedies.
57, Sec. 1] (Asked in 2001 and 2005)
[Rule
There are only specific situations where preliminary

attachment may issue:
(a) Action for recovery of a specified amount of
money or damages, EXCEPT moral and
exemplary,
(1) on a cause of action arising from law, contract,
quasi-contract, delict, or quasi-delict
(2) against a party who is about to depart from
the Philippines with intent to defraud his
creditors;
They are applied to a pending litigation, for the

purpose of securing the judgment or preserving the
status quo, and in some cases after judgment, for the
purpose of preserving or disposing of the subject
matter. [Calo v. Roldan (1946)]
Orders granting or denying provisional remedies are
merely interlocutory and cannot be the subject of an
appeal. They may however be challenged before a
superior court through a petition for certiorari under
Rule 65.
(b) Action for money or property, embezzled or

fraudulently misapplied or converted to his own
use by either:
(1) a public officer, an officer of a corporation, an
attorney, factor, broker, agent, or clerk, in the
course of his employment as such,
(2) OR by any other person in a fiduciary capacity,
or for a willful violation of duty;
JURISDICTION OVER PROVISIONAL REMEDIES

All inferior courts can grant appropriate provisional
remedies provided that the main action is within
their jurisdiction. [B.P. 129, Section 33]
(c) Action to recover the possession of property

unjustly or fraudulently taken, detained or
converted,
PRELIMINARY ATTACHMENT (Asked in the 2002

Bar Exam)
when the property, or any part thereof, has been

concealed, removed, or disposed of to prevent its
being found or taken by the applicant or an
authorized person;
DEFINITION
A provisional remedy issued upon order of the court

where an action is pending to be levied upon the
property of the defendant so the property may be
held by the sheriff as security for the satisfaction of
whatever judgment may be rendered in the case
[Davao Light v CA ](1991)
NOTE: rule makes no distinction between real

and personal property [Riano]
(d) Action against a party who has been guilty of a
fraud in contracting the debt or incurring the
obligation upon which the action is brought, OR
in the performance thereof;
A preliminary attachment may be applied for

(a) at the commencement of the action or
(b) at any time before the entry of judgment.
It may be applied for by the plaintiff OR any proper
party (including a defendant who filed a
counterclaim, cross-claim, or a third party complaint)
NOTE: the delivery of counterfeit money or

knowingly issuing a bounced check are
considered as grounds under this rule [Riano]
(e) Action against a party who has removed or
disposed of his property, or is about to do so,
AND with intent to defraud his creditors; or
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by the court in which the action is pending,

(f) Action against a party who does not reside and is
not found in the Philippines, OR on whom
summons may be served by publication.
It must require the sheriff of the court to attach so

much of the property in the Philippines of the party
against whom it is issued, not exempt from
execution, as may be sufficient to satisfy the
applicant's demand, EXCEPT if such party makes
deposit or gives bond in an amount equal to that
fixed in the order. The amount may be
(a) sufficient to satisfy applicants demand, or
(b) the value of the property to be attached,
exclusive of costs.
Note: the rule also refers to persons on whom

summons may be served by publication and
against whose property, preliminary attachment
may be availed of such as:
(1) Residents defendants whose identity or whose
whereabouts are unknown [Rule 14, Sec. 14]
(2) Resident defendants who are temporarily out
of the country [Rule 14, Sec. 16]
Several writs may be issued at the same time to the

sheriffs of the courts of different judicial regions.
Note: A writ of preliminary attachment is too harsh a

provisional remedy to be issued based on
mere abstractions of fraud. Rather, the rules require
that for the writ to issue, there must be a recitation of
clear
and
concrete
factual
circumstances manifesting that the debtor practiced
fraud upon the creditor at the time of the execution
of their agreement in that said debtor had a
preconceived plan or intention not to pay the
creditor. [Equitable v. Special Steel (2012)]
Contents of affidavit of applicant [Rule 57, Sec. 3]

An order of attachment shall be granted only when it
appears in the affidavit that:
(a) a sufficient cause of action exists
(b) the case is one of those mentioned in Rule 57.1
(c) there is no other sufficient security for the claim
sought to be enforced by the action
(d) the amount due to the applicant or the value of
the property the possession of which he is
entitled to recover, is as much as the sum for
which the order is granted above all legal
counterclaims.
Stages in the grant of preliminary attachment

(a) The court issues the order granting the
application
(b) The writ of attachment issues pursuant to the
order granting the writ
(c) The writ is implemented
The affidavit and the bond must be filed with the

court before the order issues.
For the first two stages, jurisdiction over the person

of the defendant is NOT necessary. However, once
the implementation of the writ commences, the
court must have acquired jurisdiction over the
defendant. [Cuartero, supra]
Condition of applicants bond [Rule 57, Sec. 4]

Applicant must give a bond executed to the adverse
party in the amount fixed by the court in its order
granting the issuance of the writ conditioned that the
applicant will pay:
(a) all the costs which may be adjudged to the
adverse party and
(b) all damages which the adverse party may sustain
by reason of the attachment if the court shall
finally adjudge that the applicant was not
entitled thereto.
REQUISITES
(a) Case must be any of those where preliminary

attachment is proper
(b) Applicant must file a motion (ex parte or with
notice and hearing)
(c) Applicant must show by affidavit (under oath)
that there is no sufficient security for the claim
sought to be enforced;
(d) Applicant must post an attachment bond
executed to the adverse party (Rule 57, Sec. 3)
Note: the bond shall only be applied to all damages

sustained due to the attachment. It cannot answer
for those that do not arise by reason of the
attachment [Riano].
ISSUANCE AND CONTENTS OF ORDER OF ATTACHMENT;

AFFIDAVIT AND BOND

SUMMONS
Issuance and contents of order of attachment [Rule

57, Sec. 2]
An order of attachment may be issued EITHER
(a) ex parte or
(b) upon motion with notice and hearing
General Rule: A writ of attachment may be issued ex

parte even before the summons is served upon the
defendant. BUT a writ may not be implemented until
jurisdiction over the person is acquired by service of
summons. Otherwise, the implementation is null and
void. [Riano]
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Exceptions to Contemporaneous Service of

Summons: [Rule 57, Sec. 5]
(a) Summons could not be served personally or by
substituted service despite diligent efforts, or
(b) Defendant is a resident of the Philippines
temporarily absent therefrom, or
(c) Defendant is a non-resident, or
(d) The action is in rem or quasi in rem.
any, or with such other person or his agent if

found within the province.
Where the property has been brought under the
operation of either the Land Registration Act or
the Property Registration Decree, the notice
shall contain a reference to the number of the
certificate of title, the volume and page in the
registration book where the certificate is
registered, and the registered owner or owners
thereof.
Sheriffs Return [Rule 57, Sec. 6]

The sheriff, after enforcing the writ, shall make a
return to the court which issued the writ stating the
ff:
(a) a full statement of his proceedings under the writ
(b) a complete inventory of the property attached,
together with any counter-bond given by the
party against whom attachment is issued
(b) Personal property capable of manual delivery

by taking and safely keeping it in the sheriffs
custody, after issuing the corresponding receipt
therefor;
(c) Stocks or shares, or an interest in stocks or shares,
of any corporation or company
The sheriff shall serve copies of the return to the

applicant.
by leaving with the president or managing agent

thereof,
(1) a copy of the writ, and
(2) a notice stating that the stock or interest of
the party against whom the attachment is
issued is attached in pursuance of such writ;
MANNER OF ATTACHING REAL AND PERSONAL PROPERTY;

WHEN PROPERTY ATTACHED IS CLAIMED BY THIRD PERSON
Manner of attaching property [Rule 57, Sec. 5]

The sheriff enforcing the writ shall attach only so
much of the property in the Philippines of the
adverse party not exempt from execution as may be
sufficient to satisfy the applicants demand, UNLESS
(a) Party against whom writ is issued makes a
deposit with the court from which the writ is
issued, or
(b) He gives a counter-bond executed to the
applicant
(d) Debts and credits, including bank deposits, financial

interest, royalties, commissions, and other personal
property not capable of manual delivery
by leaving with the person owing such debts, or
having in his possession or under his control, such
credits or other personal property, or with his
agent,
(1) a copy of the writ, and
(2) A notice that the debts owing by him to the
party against whom attachment is issued, and
the credits and other personal property in his
possession, or under his control, belonging to
said party, are attached in pursuance of such
writ;
The levy on attachment shall be preceded or

contemporaneously accompanied by service on the
defendant within the Philippines of:
(a) summons
(b) copy of complaint
(c) application for attachment
(d) affidavit and bond of applicant
(e) order and writ of attachment.
(e) Interest of the party whom attachment is issued in

property belonging to the estate of the decedent
(1) by serving the executor or administrator or
other personal representative of the decedent
with a copy of the writ and notice that said
interest is attached and
(2) By filing a copy of the writ and notice in the
office of the clerk of the court in which said
estate is being settled and served upon the
heir, legatee or devisee concerned.
Manner of attachment of real and personal property

[Rule 57, Sec. 7]:
(a) Real property, or growing crops thereon, or any
interest therein
(1) filing with the registry of deeds:
(i) a copy of the order, together with a
description of the property attached,
(ii) notice that it is attached, or that such real
property and any interest therein held by or
standing in the name of such other person
are attached,
(2) leaving a copy of such order, description, and
notice with the occupant of the property, if
Note:
Property in custodia legis may be attached by:
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(a) filing a copy of the writ of attachment with the

proper court or quasi-judicial agency
(b) Serving a notice of attachment upon the
custodian of the property [Rule 57, Sec. 7]
Perla Compania v. Ramolete, 1991: Service of

summons upon the garnishee is not necessary. All
that is necessary is the service upon him of the writ of
garnishment, as a consequence of which he becomes
a virtual party or a forced intervenor in the case.
A previously attached property may also be

subsequently attached. But the first attachment
shall have priority over subsequent attachments.
[Riano]
Attachment of interest in property belonging to the

estate of a decedent [Rule 57, Sec. 9]
The attachment of the interest of an heir, legatee, or
devisee in the property belonging to the estate of a
decedent shall not impair the power of the executor,
administrator, or other personal representative of the
decedent over such property for the purpose of
administration.
Proceedings Where Attached Property Claimed By

Third Person
A third person who has a claim to the property
attached may avail of the following remedies:
(a) By terceria making an affidavit of his title or
right to possession, stating the grounds of such
right or title. The affidavit must be served upon
the sheriff and the attaching procedure [Rule 57,
Sec. 14]
When any petition for distribution is filed, such

personal representative shall report the attachment
to the court, and in the order made upon such
petition, distribution may be awarded to such heir,
legatee, or devisee, but the property attached shall
be ordered delivered to the sheriff making the levy,
subject to the claim of such heir, legatee, or devisee,
or any person claiming under him.
Note: the same procedure under Rule 39, Sec. 16 is

followed
(b) Motion for summary hearing on his claim
(c) File a separate action to nullify the levy with
damages due to the unlawful levy and seizure.
Sale of attached property

Whenever it shall be made to appear to the court in
which the action is pending, upon hearing with
notice to both parties, that
(a) the party attached is perishable, or that
(b) the interests of all the parties to the action will be
will be subserved by the sale thereof,
the court may order such property to be sold at
public auction in such manner as it may direct, and
the proceeds of such sale to be deposited in court to
abide the judgment in the action. [Rule 57, Sec. 11]
The remedies stated are CUMULATIVE and any one

of them may be resorted to without availing of the
other remedies [Ching v. CA (2004)]
Effects of attachment
Attachment of debts, credits and all other similar
personal property [Rule 57, Sec. 8]
All persons
(a) having in their possession or under their control
any credits or other similar personal property
belonging to the adverse party, or
(b) owing any debts to him, at the time of service
upon them of the copy of the writ of attachment
and notice shall be liable to the applicant for the
amount of such credits, debts or other similar
personal property, until the attachment is
discharged, or any judgment recovered by him is
satisfied, unless such property is delivered or
transferred, or such debts are paid, to the clerk,
sheriff, or other proper officer of the court issuing
the attachment.
NOTE: This is an exception to the general rule that

the issuance of a writ of attachment is only a
provisional remedy, thus no sale of the property
should be made during the pendency of the action.
[Riano]
DISCHARGE OF ATTACHMENT AND THE COUNTER-BOND
Discharge of attachment
After a writ of attachment has been enforced, the
party whose property has been attached, or the
person appearing on his behalf, may move for the
discharge of the attachment wholly or in part on the
security given.
Garnishment. A species of attachment for reaching

the property or credits pertaining or payable to a
judgment debtor (asked in the 1999 Bar Exams in
comparison with Attachment). It is a warning to a
person who has in possession property or credits of
the judgment debtor not to pay the money nor
deliver the property to latter but to appear and
answer the plaintiffs suit.
Grounds for discharge

(a) Debtor has posted a counter-bond or has made
the requisite cash deposit [Rule 57, Sec. 12];
(b) Attachment was improperly or irregularly issued
[Rule 57, Sec. 13] as where there is no ground for
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attachment, or affidavit and/or bond filed

therefore are defective or insufficient;
(c) Attachment is excessive but the discharge shall
be limited to the excess [Rule 57, Sec. 13];
(d) Property attached is exempt from execution [Rule
57, Sec. 2 and Rule 57, Sec. 5];
(e) Judgment is rendered against the attaching
creditor [Rule 57, Sec. 19].
or sureties after notice and summary hearing in

the same action. [Rule 57, Sec. 17]
(b) Where the party against whom attachment had
been issued has deposited money instead of
giving counter-bond, it shall be applied under the
direction of the court to the satisfaction of any
judgment rendered in favor of the attaching
party, and after satisfying the judgment the
balance shall be refunded to the depositor or his
assignee.
SATISFACTION OF JUDGMENT OUT OF PROPERTY ATTACHED
The sheriff may cause judgment to be satisfied out of

the property attached if it be sufficient for that
purpose in the following manner:
(1) By paying to the judgment obligee the proceeds
off all sales of perishable or other property sold in
pursuance of the order of the court, or so much as
shall be necessary to satisfy the judgment;
(2) If any balance remains due, by selling so much of
the property, real or personal, as may be
necessary to satisfy the balance, if enough for
that purpose remain in the sheriffs hands, or in
those the clerk of the court;
(3) By collecting from all persons having in their
possession credits belonging to the judgment
obligor, or owing debts to the latter at the time of
the attachment of such credits or debts, the
amount of such credits or debts as determined by
the court in the action, and stated in the
judgment, and paying the proceeds of such
collection over to the judgment obligee. [Rule 57,
Sec. 15]
(c) If the judgment is in favor of the party against

whom attachment was issued, the whole sum
deposited must be refunded to him or his
assignee. [Rule 57, Sec. 18]
(d) If judgment be rendered against the attaching
party, all the proceeds of sales and money
collected or received by the sheriff, under the
order of attachment, and all property attached
remaining in any such officer's hands, shall be
delivered to the party against whom attachment
was issued, and the order of attachment
discharged. [Rule 57, Sec. 19]
Improper, Irregular or Excessive Attachment (Asked in
the 2008 bar exam)
An application for damages must be filed before the
trial, or before appeal is perfected, or before the
judgment becomes executory.
Balance due collected upon an execution; excess

delivered to the judgment obligor
(a) If after realizing upon all the property attached,
including the proceeds of any debts or credits
collected, and applying the proceeds to the
satisfaction of the judgment less the expenses of
proceedings upon the judgment, any balance
shall remain due, the sheriff must proceed to
collect such balance as upon ordinary execution.
(b) Whenever the judgment shall have been paid, the
sheriff, upon reasonable demand, must return to
the judgment obligor the attached property
remaining in his hands, and any proceeds of the
sale of the property attached not applied to the
judgment. [Rule 57, Sec. 16]
Such damages may be awarded only after hearing

and shall be included in the judgment on the main
case. [Rule 57, Sec. 20]
Procedure for claiming damages is EXCLUSIVE.
Such claims for damages cannot be the subject of an
independent action.
Exceptions:
(a) Where the principal case was dismissed for lack
of jurisdiction by the trial court without giving
opportunity to the party whose property was
attached to apply for and prove his claim; and
(b) Where the damages by reason of the attachment
was sustained by a third person who was not a
party to the action wherein such writ was issued.
[Santos v. CA (1954)]
Recovery Upon the Counter-Bond; Disposition of

Deposit/ Attached Property After Judgment
(a) When the judgment has become executory, the
surety or sureties on any counter-bond given to
secure the payment of the judgment shall
become charged on such counter-bond and
bound to pay the judgment obligee upon
demand the amount due under the judgment,
which amount may be recovered from such surety
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PRELIMINARY INJUNCTION
Status Quo Order vs. Injunction (Asked in the 2006

bar exams)
A status quo order is in the nature of a cease and
desist order. It is resorted to when the projected
proceedings in the case made the conservation of
the status quo desirable or essential, but the affected
party neither sought such relief nor did the
allegations in his pleading sufficiently make out a
case for a temporary restraining order.
DEFINITIONS
AND
DIFFERENCES:
DRELIMINARY
INJUNCTION AND TEMPORARY RESTRAINING ORDER;
STATUS QUO ANTE ORDER
A preliminary injunction is an order granted at any

stage of an action or proceeding prior to the
judgment or final order, requiring a party or a court,
agency or a person to either
(a) refrain from a particular act or acts or
(b) require the performance of a particular act or
acts, in which case it shall be known as a
preliminary mandatory injunction
It does NOT direct the doing or undoing of acts but is

an order to maintain the last, actual, peaceable and
uncontested state of things which preceded the
controversy.
A suit for injunction is an action in personam. It is an

ancillary or preventive remedy that is meant to be
temporary and subject to the final disposition of the
principal action [Riano]
Status Quo Ante Order

Directs the maintenance of the condition prevailing
before the promulgation of the assailed decision.
It has the nature of a TRO. [Dojillo v. COMELEC,
2006]
Purpose
To prevent future injury and maintain the status quo
(i.e. the last actual, peaceable, uncontested status
which preceded the pending controversy) for [Knecht
v. CA, (1993)]
REQUISITES
Requirements for Preliminary Injunction [Rule 58,

Sec. 4]
(a) There must be a verified application
(b) The application must show facts entitling the
applicant to the relief demanded.
Note: the injunction should not establish new

relations between the parties but merely re-establish
the pre-existing relationship between them.
It must establish he has a right and the act

against which the injunction is directed is violative
of such right [PNB v. Timbol (2005)]
TRO vs. Injunction

TRO
May be granted ex parte
if great and irreparable
injury
would
result
otherwise
Injunction
Cannot
without
hearing
(c) A bond must be filed, unless exempted, in the

court where the action/proceeding is pending, in
an amount to be fixed by the court (asked in the
2006 Bar exam)
(d) Prior notice and hearing for the party/person
sought to be enjoined.
be
granted
notice
and
(a) A TRO is issued in order to preserve the status

quo until the hearing of the application for
preliminary injunction. [Bacolod City Water v.
Labayen (2004)]
Exceptions:
(a) Great or irreparable injury would result to the
applicant before the matter can be heard on
notice.
(1) The court may issue a TRO effective for 20
days from service on the party sought to be
enjoined.
(2) Injury is irreparable if it is of such constant
and frequent recurrence that no fair or
reasonable redress can be had therefore in
court of law or where there is no standard by
which their amount can be measured with
reasonable accuracy.
(b) Matter is of extreme urgency and the applicant
will suffer grave injustice and irreparable injury
(1) Judge may issue ex parte a TRO effective for
72 hours from issuance.
(b) Same requirements for application as preliminary

injunction.
(c) An application for a TRO shall be acted upon only
after all parties are heard in a summary hearing,
which shall be conducted within 24 hours after
the sheriff's return of service and/or the records
are received by the branch selected by raffle.
[Rule 58, Sec.4]
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(2) Within 72 hours, judge shall conduct a

summary hearing to determine whether the
TRO shall be extended until the application
for preliminary injunction can be heard.
(3) Maximum period of effectivity of TRO = 20
days (including 72 hrs)
(i) Transfer of possession of property to party with

disputed legal title via preliminary injunction
If the application for preliminary injunction is denied

or not resolved within said period, the TRO is
deemed automatically vacated.
Exceptions:
(a) Forcible entry and unlawful detainer cases in
which the court may issue preliminary mandatory
injunction [Rule 70, Sec. 15]
(b) Property covered by Torrens Title when there is a
clear finding of ownership and possession of the
land. [GSIS v. Florendo(1989)]
KINDS OF INJUNCTION
Other instances where writ is not available:
Preliminary Preventive Injunction

prohibits the performance of a particular act or acts
(a) Sec. 78, RA 9136: the implementation of the

provisions of the Electric Power Industry Reform
Act of 2001 shall not be restrained or enjoined
except by an order issued by the Supreme Court.
When preventive injunction does not lie

(a) To restrain collection of taxes [Valley Trading v.
CA](1989), except where there are special
circumstances that bear the existence of
irreparable injury. [Churchill & Tait v. Rafferty
(1915)]
(b) To restrain the sale of conjugal properties where
the claim can be annotated on the title as a lien,
such as the husbands obligation to give support.
[Saavedra v. Estrada (1931)]
(c) To restrain a mayor proclaimed as duly elected
from assuming his office. [Cereno v. Dictado
(1988)]
(d) To restrain registered owners of the property from
selling, disposing and encumbering their property
just because the respondents had executed
Deeds of Assignment in favor of petitioner. [Tayag
v. Lacson (2004)]
(e) Against consummated acts. [PNB v. Adi (1982);
Rivera v. Florendo (1986); Ramos, Sr. v. CA (1989)]
Exception: If the act is of continuing nature and in
derogation of plaintiffs right at the outset.
(f) Against disposing of the case on the merits
[Ortigas and Company Limited Partnership v. CA
(1988)]
(g) To stop the execution of judgment where the
judgment was already executed. [Meneses v.
Dinglasan (1948)]
(b) Sec. 1, PD 605: no court of the Philippines shall

have jurisdiction to issue any restraining order,
preliminary injunction or preliminary mandatory
injunction in any case involving or growing out of
the issuance, approval or disapproval, revocation
or suspension of, or any action whatsoever by the
proper administrative official or body on
concessions, licenses, permits, patents, or public
grants of any kind in connection with the
disposition, exploitation, utilization, exploration,
and/or development of the natural resources of
the Philippines.
(c) Sec. 2, PD 385: no restraining order, temporary or
permanent injunction shall be issued by the court
against any government financial institution in
any action taken by such institution in compliance
with the mandatory foreclosure whether such
restraining order, temporary or permanent
injunction is sought by the borrower(s) or any
third party or parties, except after due hearing in
which it is established by the borrower and
admitted by the government financial institution
concerned that twenty percent (20%) of the
outstanding arrearages has been paid after the
filing of foreclosure proceedings.
Exception: But where the lower court enforced its

judgment before a party against whom the
execution was enforced could elevate her appeal
in an injunction suit, which was instituted to
prevent said execution, an independent petition
for injunction in the Court of Appeals is justified.
[Manila Surety and Fidelity v. Teodoro (1967)]
Preliminary Mandatory Injunction

Requires the performance of a particular act or acts
Requisites of mandatory injunction
(a) Invasion of the right is material and substantial
(b) Right of the complainant is clear and
unmistakable
(c) Urgent and paramount necessity for the writ to
prevent serious damages [Bautista v. Barcelona
(1957)]
(d) The effect would not be to create a new relation
between the parties [Alvaro v. Zapata, (1982)]
(h) The CFI has no power to issue a writ of injunction

against the Register of Deeds if its effect is to
render nugatory a writ of execution issued by the
National Labor Relations Commission. [Ambrosio
v. Salvador (1978)]
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Rule 58 Provides for both a Main Action for Injunction

and an Ancillary Writ of Preliminary Injunction (Asked
in the 2006 Bar Exam)
Mandatory injunction does not lie in the following

instances:
(a) to compel cohabitation [Arroyo v. Vasquez (1921)]
(b) cancellation of attachment [Levy Hermanos v.
Lacson (1940)]
(c) release imported goods pending hearing before
the Commissioner of Customs. [Commissioner of
Customs v. Cloribel (1967)]
(d) to take property out of the possession or control
of one party and place it into that of another
whose title has not clearly been established [Pio
v. Marcos (1974)]
Injunction
Prohibition
Generally
directed
against a party in the
action
Directed
against
a
court/tribunal/person
exercising
judicial
powers
may be on the ground
that the court against
whom the writ is sought
acted without/in excess
of jurisdiction
Always a main action
Does not involve the

courts jurisdiction
May be the main action

itself,
or
just
a
provisional remedy in the
main action
Injunction
Main action
seeks
a
embodying
injunction
judgment
a
final
Based on all evidence

gathered by court to
determine main action
Preliminary injunction
Ancillary; exists only as
part or incident of an
independent action or
proceeding
sole object of which is to
preserve the status quo
until the merits can be
heard
based solely on initial
and incomplete evidence
As a matter of course, in an action for injunction, the

auxiliary remedy of preliminary injunction, whether
prohibitory or mandatory, may issue.
The evidence needed to establish the requisites for a
preliminary injunction need not be conclusive or
complete. It is generally based on initial, incomplete
evidence that gives the court an idea of the
justification for the preliminary injunction pending
the decision of the case on the merits. .
Note: It does not necessarily proceed that when a
writ of preliminary injunction is issued, a final
injunction will follow [Urbanes v. CA (2001)]
WHEN WRIT MAY BE ISSUED
GROUNDS FOR OBJECTION TO, OR FOR THE DISSOLUTION

OF INJUNCTION OR RESTRAINING ORDER
GROUNDS FOR ISSUANCE OF PRELIMINARY INJUNCTION
[Rule 58, Sec. 3] (Asked in the 2006 bar exam)

(a) Applicant is entitled to the relief demanded, and
the relief consists in
(1) restraining the commission or continuance of
the acts or acts complained of, or
(2) in requiring performance of an act or acts;
(b) Commission, continuance or non-performance of
the acts complained of during the litigation
would probably work injustice to the applicant; or
(c) A party, court, agency or a person is doing,
threatening, or is attempting to do, or is
procuring or suffering to be done, some act or
acts probably in violation of the rights of the
applicant respecting the subject of the action or
proceeding, and tending to render the judgment
ineffectual.
Grounds for Objection to/Motion for Dissolution of

Injunction/Restraining Order [Rule 58, Sec. 6]
(a) Insufficiency of application
(b) other grounds (e.g. applicants bond is
insufficient/defective), upon affidavits of the party
or person enjoined
(c) if it appears after hearing that although the
applicant is entitled to the injunction or
restraining order, the issuance or continuance
thereof would cause irreparable damage to the
party/person enjoined, while the applicant can be
fully compensated for such damages as he may
suffer, provided the former files a bond
If it appears that the extent of the preliminary
injunction or restraining order granted is too great, it
may be modified.
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Global Injunction of a Foreign Court (Asked in the

2007 Bar Exam)
A global injunction issued by a foreign court to
prevent dissipation of funds against the defendant
who has assets in the Philippines may be enforced in
our jurisdiction, subject to our procedural laws
(Suggested Answers to the 2007 Bar Exam, UP Law
Center)
(a) Acquisition, clearance and development of the

right-of-way and/or site or location of any
national government project;
(b) Bidding or awarding of contract/ project of the
national government as defined under Section 2
hereof;
(c) Commencement
prosecution,
execution,
implementation, operation of any such contract
or project;
(d) Termination or rescission of any such
contract/project; and
(e) The undertaking or authorization of any other
lawful
activity
necessary
for
such
contract/project.
As a general rule, no sovereign is bound to give

effect within its dominion to a judgment or order of a
tribunal of another country.
However, under the rules of comity, utility and
convenience, nations have established a usage
among civilized states by which final judgments of
foreign courts of competent jurisdiction are
reciprocally respected and rendered efficacious
under certain conditions that may vary in different
countries. [St. Aviation Services v. Grand International
Airways (2006)]
This prohibition shall apply in all cases, disputes or

controversies instituted by a private party, including
but not limited to cases filed by bidders or those
claiming to have rights through such bidders
involving such contract/project.
This prohibition shall NOT APPLY when the matter is
of extreme urgency involving a constitutional issue,
such that unless a temporary restraining order is
issued, grave injustice and irreparable injury will
arise. The applicant shall file a bond, in an amount to
be fixed by the court, which bond shall accrue in
favor of the government if the court should finally
decide that the applicant was not entitled to the
relief sought.
Note: In Pangalangan and Coquias book on Conflict

of Laws (2000), citing Cheshire, it was stated that an
interlocutory or provisional judgment of a foreign
court, creates no obligation on the forum court to
enforce it.
DURATION OF A TEMPORARY RESTRAINING ORDER
General rule: TRO is effective only for a period of 20

days from service on the party or person sought to be
enjoined
Any TRO, preliminary injunction, or preliminary

mandatory injunction issued in violation of Sec. 3 is
void and of no force and effect. [Sec 4]
Exceptions: If the matter is of extreme urgency and

the applicant will suffer grave injustice and
irreparable injury: effective for only 72 hours from
issuance [Rule 58, Sec.5]
Issued
by:
RTC
CA
SC

SUMMONS IN RELATION TO ATTACHMENT
When an application for a writ of preliminary

injunction or a temporary restraining order is
included in a complaint or any initiatory pleading,
the case, if filed in a multiple-sala court, shall be
raffled only after notice to and in the presence of the
adverse party or the person to be enjoined. In any
event, such notice shall be preceded, or
contemporaneously accompanied, by service of
summons, together with a copy of the complaint or
initiatory pleading and the applicant's affidavit and
bond, upon the adverse party in the Philippines.
Effectivity:
20 days, non-extendible (including the
original 72 hours)
May be effective for 60 days from service
on the party or person sought to be
enjoined.
May be effective until further orders
IN RELATION TO RA 8975, BAN ON ISSUANCE OF TRO OR

WRIT OF INJUNCTION IN CASES INVOLVING GOVERNMENT
INFRASTRUCTURE PROJECTS
Exception:
Where the summons could not be served personally
or by substituted service despite diligent efforts, or
the adverse party is a resident of the Philippines
temporarily absent therefrom or is a nonresident
thereof,
the
requirement
of
prior
or
contemporaneous service of summons shall not
apply. [Rule 58, Sec.4] The executive judge of a
Sec. 3, RA 8975: No court, except the Supreme Court,

shall issue any TRO, preliminary injunction or
preliminary mandatory injunction against the
government, or any of its subdivisions, officials or any
person or entity, whether public or private acting
under the government direction, to restrain, prohibit
or compel the following acts:
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CIVIL PROCEDURE
multiple-sala court or the presiding judge of a single

sala court may issue ex parte a TRO effective for only
72 hours from ISSUANCE if the matter is of extreme
urgency and the applicant will suffer grave injustice
and irreparable injury. However, he shall
immediately comply with the provisions of Rule 38,
Sec. 4 as to service of summons and the documents
to be served therewith. [Rule 38, Sec. 5]
dissipated or materially injured, and that its value

is probably insufficient to discharge the mortgage
debt, or that the parties have so stipulated in the
contract of mortgage;
(c) After judgment, to preserve the property during
the pendency of an appeal, or to dispose of it
according to the judgment, or to aid execution
when the execution has been returned unsatisfied
or the judgment obligor refuses to apply his
property in satisfaction of the judgment, or
otherwise to carry the judgment into effect;
(d) Whenever in other cases it appears that the
appointment of a receiver is the most convenient
and feasible means of preserving, administering,
or disposing of the property in litigation. [Rule 59,
Sec. 1]
RECEIVERSHIP (Asked in the 2001 Bar Exam)

NATURE
Receiver.
person appointed by the court in behalf of all the
parties to the action for the purpose of preserving
and conserving the property in litigation and prevent
its possible destruction or dissipation if it were left in
the possession of any of the parties.
Specific situations when a receiver may be appointed

(a) If a spouse without just cause abandons the other
or fails to comply with his/her obligations to the
family, the aggrieved spouse may petition the
court for receivership. [Family Code, Article 101]
(b) The court may appoint a receiver of the property
of the judgment obligor; and it may also forbid a
transfer or other disposition of, or any
interference with, the property of the judgment
obligor not exempt from execution. [Rule 39, Sec.
41]
(c) After the perfection of an appeal, the trial court
retains jurisdiction to appoint a receiver of the
property under litigation since this matter does
not touch upon the subject of the appeal. [Rule
41, Sec. 9; Acua v. Caluag (1957)]
(d) After final judgment, a receiver may be appointed
as an aid to the execution of judgment. [Philippine
Trust Company v. Santamaria (1929)]
(e) Appointment 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 rights of the
real owner. [Dolar v. Sundiam (1971)]
PURPOSE
The purpose of a receivership as a provisional

remedy is to protect and preserve the rights of the
parties during the pendency of the main action,
during the pendency of an appeal or as an aid in the
execution of a judgment when the writ of execution
has been returned unsatisfied. The receivership
under Rule 59 is directed to the property which is the
subject of the action and does not refer to the
receivership authorized under banking laws and
other rules or laws. Rule 59 presupposes that there
is an action and that the property subject of the
action requires its preservation. Receivership under
Rule 59 is ancillary to the main action. (Riano).
Commodities Storage v. CA (1997): The guiding
principle is the prevention of imminent danger to the
property. If an action by its nature, does not require
such protection or preservation, said remedy cannot
be applied for and granted.
Arranza v. B.F. Homes (2000): Receivership is aimed
at the preservation of, and at making more secure,
existing rights; it cannot be used as an instrument for
the destruction of those rights.
Alcantara v. Abbas (1963): The general rule is that

neither party to the litigation should be appointed as
a receiver without the consent of the other because a
receiver is supposed to be an impartial and
disinterested person.
CASES WHEN RECEIVER MAY BE APPOINTED
(a) When it appears from the verified application and

other proof that the applicant has an interest in
the property or fund which is the subject of the
action or proceeding, and that such property or
fund is in danger of being lost, removed, or
materially injured unless a receiver be appointed
to administer and preserve it;
(b) When it appears in an action by the mortgagee
for the foreclosure of a mortgage that the
property is in danger of being wasted or
Abrigo v. Kayanan (1983): A clerk of court should not

be appointed as a receiver as he is already burdened
with his official duties.
REQUIREMENTS BEFORE ISSUANCE OF AN ORDER
Requisites and Procedure

(a) Verified application filed by the party requesting
for the appointment of the receiver;
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CIVIL PROCEDURE
(b) Applicant must have an interest in the property or

funds subject of the action;
(c) Applicant must show that the property or funds is
in danger of being lost, wasted, or dissipated;
(d) Application must be with notice and must be set
for hearing;
(e) Before appointing a receiver, the court shall
require applicant to post a bond in favor of the
adverse party. When the receiver is appointed, the
receiver shall file a bond then take his oath.
(f) Before entering upon his duties, the receiver must
be sworn to perform his duties faithfully.
Liability for refusal or neglect to deliver property to

receiver
(a) Contempt; and
(b) Be liable to the receiver for the money or the
value of the property and other things so refused
or neglected to be surrendered together with all
damages that may have been sustained by the
party or parties entitled thereto as a consequence
of such refusal or neglect. [Rule 59, Sec. 7]
TWO (2) KINDS OF BOND
(a) Applicants bond

(b) Receivers bond
Who appoints receiver

(a) Court where the action is pending
(b) CA
(c) SC
(d) During 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 origin. [Rule 59, Sec. 1]
TERMINATION OF RECEIVERSHIP
Ground
The necessity for a receiver no longer exists
Procedure
(a) Motu proprio or on motion of either party
(b) Notice to all interested parties and hearing [Rule
59, Sec. 8]
Denial of application or discharge of receiver

(a) If the appointment sought or granted is without
sufficient cause
(b) Adverse party files a sufficient bond to answer for
damages [Rule 59, Sec. 3]
(c) Bond posted by the applicant for grant of
receivership is insufficient
(d) Bond of receiver is insufficient
Effect
(a) Settle accounts of receiver
(b) Delivery of funds to person entitled
(c) Discharge of receiver
(d) Receiver entitled to reasonable compensation to
be taxed as costs against defeated party.
REPLEVIN (Asked in the 1999 Bar Exam)
POWERS OF A RECEIVER
(a) Bring and defend in such capacity actions in his

own name with leave of court
(b) Take and keep possession of the property in
controversy
(c) Receive rents
(d) Collect debts due to himself as receiver or to the
fund, property, estate, person, or corporation of
which he is the receiver
(e) Compound for and compromise the same
(f) Make transfers
(g) Pay outstanding debts
(h) Divide the money and other property that shall
remain among the persons legally entitled to
receive the same
(i) Generally, to do such acts respecting the property
as the court may authorize
(j) Invest funds in his hands, ONLY by order of the
court upon the written consent of all the parties.
[Rule 59, Sec. 6]
WHEN MAY WRIT BE ISSUED
Nature
Replevin may be a main action or provisional
remedy. As a principal action its ultimate goal is to
recover personal property capable of manual delivery
wrongfully detained by a person. Used in this sense,
it is considered as a suit in itself. Replevin under Rule
60 is the provisional remedy. [Riano]
No action may be filed against a receiver without

leave of the court which appointed him.
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Replevin
Preliminary Attachment
Available only where the

principal relief sought in
the action is recovery of
personal property, the
other
reliefs
(e.g.
damages) being merely
incidental thereto.
Can be sought only
where the defendant is
in actual or constructive
possession
of
the
personalty involved.
Available even if the

recovery of personal
property is only an
incidental relief sought
in the action.
May be resorted to even
if the personalty is in the
custody of a third
person.
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CIVIL PROCEDURE
Replevin
Preliminary Attachment
Extends only to personal

property capable of
manual delivery.
Available to recover
personal property even if
the
same
is
not
concealed, removed or
disposed of.
Extends to all kinds of

property, whether real,
personal or incorporeal.
To
recover
the
possession of personal
property
unjustly
detained (presupposed
that the same is being
concealed, removed or
disposed of to prevent its
being found or taken by
the applicant.
Can still be resorted to
even if the property is in
custodia legis.
Cannot be availed of if
the property is in
custodia legis (e.g. under
attachment,
seized
under a search warrant).
thereof according to the best of his knowledge,

information, and belief;
(d) That the property has not been distrained or
taken for a tax assessment or a fine pursuant to
law, or seized under a writ of execution or
preliminary attachment, or otherwise placed
under custodia legis, or if so seized, that it is
exempt from such seizure or custody; and
(e) The actual market value of the property. [Rule 60,
Sec. 2]
Bond
The applicant must also give a bond, executed to the
adverse party in double the value of the property as
stated in the affidavit. [Rule 60, Sec.2]
Redelivery bond
The adverse party may, at any time before the
delivery of the property to the applicant, require the
return of the property by filing with the court where
the action is pending a bond executed to the
applicant, in double the value of the property as
stated in the applicants affidavit. [Rule 60, Sec. 5]
Except:
(a) when the seizure is
illegal; [Bagalihog v.
Fernandez (1991)] and
(b) where there is reason
to believe that the
seizure
will
not
anymore be followed
by the filing of the
criminal action in
court or there are
conflicting
claims.
[Chua v. CA (1993)]
Order of Replevin
Upon the filing of affidavit and approval of the bond,
the court shall issue an order and the corresponding
writ of replevin describing the personal property
alleged to be wrongfully detained and requiring the
sheriff forthwith to take such property into his
custody. [Rule 60, Sec. 3]
A writ of replevin may be served anywhere in the
Philippines.
SHERIFFS DUTY IN THE IMPLEMENTATION OF THE WRIT;
WHEN PROPERTY IS CLAIMED BY THIRD PARTY
REQUISITES
Application
Who may apply: party praying for the recovery of
possession of personal property. Applicant need not
be the owner. It is enough that he has right to its
possession. [Yang v. Valdez (1989)]
When:
(a) at the commencement of the action or
(b) before the answer [unlike attachment, injunction
and support pendente lite (anytime before final
judgment) and receivership (anytime even after
final judgment)].
Disposition of Property by Sheriff

(a) The sheriff shall retain the property for 5 days.
The adverse party may object to the sufficiency of
the bond or surety or he may file a redelivery
bond.
(b) If after 5 days and the adverse party failed to
object or his redelivery bond is insufficient, the
sheriff shall deliver the property to the applicant.
[Rule 60, Sec. 6]
(c) The defendant is entitled to the return of the
property under a writ of replevin if:
(1) He seasonably posts a redelivery bond [Rule
60, Sec. 5]
(2) Plaintiffs bond is found to be insufficient or
defective and is not replaced with proper bond
(3) Property is not delivered to the plaintiff for any
reason [Rule 60, Sec. 6]
AFFIDAVIT AND BOND; REDELIVERY BOND
(a) The applicant must show by his own affidavit or

that of some other person who personally knows
the facts:
(b) That the applicant is the owner of the property
claimed, particularly describing it, or is entitled to
the possession thereof;
(c) That the property is wrongfully detained by the
adverse party, alleging the cause of detention
Where Property Claimed by Third Person
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When third party claims the property and such

person makes affidavit of his title thereto stating his
grounds, and serves such affidavit upon the sheriff
while the latter has possession of the property and a
copy upon the applicant, the sheriff SHALL NOT BE
BOUND to keep property under replevin or deliver
property to the applicant UNLESS the applicant files
a bond approved by the court in favor of the third
person (the bond should not be less than the value
of stated under Sec. 60, Sec. 2; the court shall
determine the value in case of disagreement).
ORDINARY CIVIL ACTIONS VERSUS SPECIAL CIVIL

ACTIONS
The fact that an action is subject to special rules
other than those applicable to ordinary civil actions is
what makes a civil action special. [Riano]
Ordinary Civil Action
Governed by ordinary
rules
No claim for damages for the taking or keeping of

the property may be enforced against the bond
UNLESS the action is filed within 120 days from filing
of the bond.
Special Civil Action

Also
governed
by
ordinary
rules
but
subject to specifically
prescribed rules (Rules
62 to 71)
Some concepts applicable to ordinary civil actions

are not applicable in special civil actions. E.g.:
(a) the definition of a cause of action requiring
violation of a right does not appear to be relevant
to the special civil action of declaratory relief and
interpleader;
(b) ordinary civil actions may be filed initially in MTC
or RTC depending on jurisdictional amount while
some special civil actions can only be filed in MTC
(forcible entry and unlawful detainer) and some
cannot be commenced in MTC (certiorari,
prohibition, mandamus). [Riano]
Special Civil Actions

NATURE OF SPECIAL CIVIL ACTIONS
Rules on ordinary civil actions shall apply to special
civil actions insofar as they are not inconsistent with
or may supplement the rules governing the latter.
[Rule 1, Sec. 3]
JURISDICTION AND VENUE

Venue is governed by the general rules on venue,
except as otherwise indicated in the particular rules
for special civil actions.
Since a civil action in general is one by which a party

sues another for the enforcement of a right, or the
prevention or redress of a wrong, a special civil action
is generally brought or filed for the same purpose.
[Riano]
3 special civil actions within the jurisdiction of inferior

courts:
(a) interpleader, provided the amount involved is
within its jurisdiction [Makati Development Corp. v.
Tanjuatco (1969)]
(b) ejectment suits [Rule 70]
(c) contempt [Rule 71]
HOW COMMENCED:
(A) COMPLAINT
(1) interpleader
(2) expropriation
(3) foreclosure of real estate mortgage
(4) partition
(5) forcible entry and unlawful detainer
(B) PETITION
(6) declaratory relief
(7) review of adjudications of Constitutional
commissions
(8) certiorari
(9) prohibition
(10) mandamus
(11) quo warranto
(12) contempt
INTERPLEADER
DEFINITION
A remedy whereby a person who has property in his

possession or has an obligation to render wholly or
partially, without claiming any right in both, comes
to court and asks that the defendants who have
made conflicting claims upon the same property or
who consider themselves entitled to demand
compliance with the obligation be required to litigate
among themselves in order to determine who is
entitled to the property or payment or the obligation
[Beltran v. PHHC, (1969)]
Writs of injunction, mandamus, certiorari,

prohibition, quo warranto and habeas corpus issued
by RTCs are enforceable within their respective
judicial regions. [B.P. 129, Section 21]
PURPOSE
(a) To compel conflicting claimants to interplead and

litigate their several claims among themselves.
[Rule 62, Sec. 1]
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(b) To protect a person against double vexation in

respect of one liability [Beltran, supra]
Within the time for filing an answer, each

claimant may file a motion to dismiss.
Grounds:
(a) impropriety of the interpleader action, or
(b) other appropriate grounds specified in
Rule 16
REQUISITES FOR INTERPLEADER
(a) There must be two or more claimants with

adverse or conflicting interests to a property in
the custody or possession of the plaintiff.
(b) The plaintiff has NO CLAIM upon the subject
matter of the adverse claims, or if he has an
interest at all, such interest is NOT DISPUTED by
the claimants.
(c) The subject matter of the adverse claims must be
one and the same.
The period to file the answer shall be tolled.
If the motion is denied, an answer may be filed

within the remaining period, in no case less
than 5 days (reckoned from notice of denial)
[Rule 62, Sec. 4].
Procedure
Complaint filed by the person against whom
conflicting claims are or may be made. [ibid]
The docket and other lawful fees paid by the
complainant, and costs and litigation expenses
shall constitute a lien or charge upon the
subject matter of the action, unless otherwise
ordered by the court. [Rule 62, Sec. 7]
The parties may file counterclaims, crossclaims, third-party complaints and responsive
pleadings thereto. [Rule 62, Sec. 5]
Pre-trial
Court order requiring the conflicting claimants
to interplead with one another. If the interests of
justice so require, the court may direct that the
subject matter be paid or delivered to the court.
[Rule 62, Sec. 2]
Court shall determine conflicting claimants

respective rights and adjudicate their several
claims. [Rule 62, Sec. 6]
WHEN TO FILE
Whenever conflicting claims upon the same subject

matter are or may be made against a person who
claims no interest in the subject matter or an interest
which is not disputed by the claimants. [Rule 62, Sec.
1]
Summons, copy of complaint and order served

upon the conflicting claimants. [Rule 62, Sec. 3]
Each claimant shall file his answer within 15 days

from service of the summons, serving a copy
thereof upon each of the other conflicting
claimants, who may file their reply thereto.
Cannot be availed of to resolve the issue of breach of

undertakings made by defendants, which should be
resolved in an ordinary action for specific
performance or other relief [Beltran, supra].
DECLARATORY RELIEFS AND SIMILAR REMEDIES
WHO MAY FILE THE ACTION
If claimant fails to plead within the time herein

fixed, the court may, on motion, declare him in
default and render judgment barring him from
any claim in respect to the subject matter.
(a) a person interested under a deed, will, contract or

other written instrument
(b) a person whose rights are affected by a statute,
executive order or regulation, ordinance or any
other governmental regulation [Rule 63, Sec. 1]
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Parties
(a) all persons who have or claim any interest which
would be affected by the declaration [Rule 63,
Sec. 2]
(b) If action involves the validity of a
statute/executive
order/regulation/other
governmental regulation, the Solicitor General
shall be notified. [Rule 63, Sec. 3]
(c) If action involves the validity of a local
government ordinance, the prosecutor/attorney
of the LGU involved shall be notified. [Rule 63,
Sec. 4]
Subject Matter
Validity of a statute, EO
or regulation, or any
governmental regulation
Validity of a local
government ordinance
Constitutionality of a
local
government
ordinance
(2) If before the final termination of the case, a

breach or violation of an instrument or a
statute, etc. should take place, the action may
be converted into an ordinary action. [Rule 63,
Sec. 6]
(d) actual justiciable controversy [Velarde v. SJS
(2004)]
(e) adverse interests between the parties
A declaratory relief is not available for a
declaration of citizenship [Villa-Abrille v. Republic
(1956)] or the validity of a registration certificate
[Obiles v. Republic (1953)] as they are unilateral in
nature and without conflicting adverse interests.
Notice Given To
Sol Gen
(f) issue must be ripe for judicial determination

[Velarde v. SJS (2004)]
(g) adequate relief is not available through other
means or other forms of action or proceedings.
[Ollada v. Central Bank (1962)]
Prosecutor or attorney of
the LGU
Sol Gen
A court decision cannot be the subject of a

declaratory relief since there exists other
remedies, i.e., appeal or a motion for clarificatory
judgment [Tanda v. Aldaya (1956)]
Baguio Citizens Action v. City Council of Baguio (1983):

Non-joinder of interested persons is not a
jurisdictional defect; but persons not joined shall not
be prejudiced in their interests unless otherwise
provided by the Rules.
WHEN COURT
DECLARATION
MAY
REFUSE
TO
MAKE
JUDICIAL
(a) where a decision would not terminate the

uncertainty or controversy which gave rise to the
action, or
(b) where the declaration or construction is not
necessary and proper under the circumstances.
[Rule 63, Sec. 5]
Commission of Customs v. Cloribel (1977): A thirdparty complaint is not available in a declaratory

relief.
Visayan Packing v. Reparations Commission (1987): A
compulsory counterclaim may be set up in a petition
for declaratory relief.
CONVERSION TO ORDINARY ACTION
Requisites
(a) before the final termination of the case
(b) a breach or violation of an instrument or a
statute, executive order or regulation, ordinance,
or any other governmental regulation should take
place
Where filed
(a) in the proper RTC [Rule 63, Sec. 1]
(b) not within the original jurisdiction of the Supreme
Court, even if pure questions of law are involved.
[Remotigue v. Osmea (1967)]
Effect
The parties shall be allowed to file such pleadings as
may be necessary or proper. [Rule 63.6]
REQUISITES OF ACTION FOR DECLARATORY RELIEF
(a) subject matter of the controversy must be a deed,

will, contract or other written instrument, statute,
executive order or regulation, or ordinance [Rule
63, Sec. 1];
(b) the terms of said documents and the validity
thereof are doubtful and require judicial
construction [Santos v. Aquino (1953)]
(c) no breach of the documents in question.
[Reparations Commission v. Northern Lines (1970)]
Otherwise, an ordinary civil action is the remedy.
(1) Concept of a cause of action in ordinary civil
actions does not apply.
PROCEEDINGS CONSIDERED AS SIMILAR REMEDIES
Reformation of an instrument [Arts. 1359-1369 Civil

Code]
Definition
Art. 1359, Civil Code. When, there having been a
meeting of the minds of the parties to a contract,
their true intention is not expressed in the instrument
purporting to embody the agreement, by reason of
mistake, fraud, inequitable conduct or accident, one
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of the parties may ask for the reformation of the

instrument to the end that such true intention may
be expressed.
(c) An aggrieved party may bring the questioned

judgment, etc. directly to the SC on certiorari
under Rule 65. [Rule 64, Sec. 2]
If mistake, fraud, inequitable conduct, or accident

has prevented a meeting of the minds of the parties,
the proper remedy is not reformation of the
instrument but annulment of the contract.
Such petition for certiorari shall not stay the

execution of the judgment, etc. sought to be
reviewed unless otherwise directed by the Supreme
Court [Rule 64, Sec. 8]
Art.1369, Civil Code. The procedure for the

reformation of instrument shall be governed by rules
of court to be promulgated by the Supreme Court
PROCEDURE
See next page.
Consolidation of ownership [Art. 1607 Civil Code] [Rule

63, Sec. 1(2)]
Definition
Art. 1607, Civil Code. In case of real property, the
consolidation of ownership in the vendee by virtue of
the failure of the vendor to comply with the
provisions of article 1616 shall not be recorded in the
Registry of Property without a judicial order, after the
vendor has been duly heard.
Quieting of title to real property [Arts. 476-481 Civil
Code]
Definition
Art. 476, Civil Code. Whenever there is a cloud on title
to real property or any interest therein, by reason of
any instrument, record, claim, encumbrance or
proceeding which is apparently valid or effective but
is in truth and in fact invalid, ineffective, voidable, or
unenforceable, and may be prejudicial to said title,
an action may be brought to remove such cloud or to
quiet the title.
An action may also be brought to prevent a cloud
from being cast upon title to real property or any
interest therein.
Art. 481, Civil Code. The procedure for the quieting of
title or the removal of a cloud therefrom shall be
governed by such rules of court as the Supreme
Court shall promulgated.
REVIEW OF JUDGMENTS AND FINAL ORDERS OR
RESOLUTION OF THE COMELEC AND COA
SCOPE
(a) Applicable only to judgments and final orders of

the COMELEC and COA [Rule 64, Sec. 1]
(b) Judgments/orders of the Civil Service
Commission are now reviewable by the Court of
Appeals under Rule 43, eliminating recourse to
the Supreme Court (SC). [RA 7902; SC Revised
Administrative Circular No. 1-95]
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Order to Comment [Rule 64, Sec. 6]

If the SC finds the petition sufficient in form and
substance, it shall order the respondents to file
their comments on the petition within 10 days from
notice thereof.
File a petition for review.

When [Rule 64, Sec. 3]:
(a) Within 30 days from notice of judgment/final
order/resolution sought to be reviewed
(b) Filing of motion for reconsideration/new trial with
Constitutional commission interrupts the 30-day
period. If motion is denied, aggrieved party may
file petition within remaining period, which shall
not be less than 5 days from notice of denial.
Grounds for dismissal:

(a) Petition not sufficient in form and substance
(b) Petition was filed manifestly for delay
(c) the questions raised are too unsubstantial to
warrant further proceedings.
Form [Rule 64, Sec. 5]: verified and accompanied by

(annexes):
(a) a clearly legible duplicate original or certified true
copy of the subject judgment, etc.
(b) certified true copies of such material portions of
the record referred to in the petition
(c) other documents relevant and pertinent to the
petition
(d) proof of service of a copy of the petition on the
Commission and the adverse party
(e) proof of the timely payment of the docket and
other lawful fees
Comments of Respondents [Rule 64, Sec. 7]

Requirements:
(a) original copy with certified true copies of
material portions of the record as are referred
to in the comment and certified true copies of
other supporting papers
(b) one original (properly marked) and four
copies, unless the case is referred to the
Court En Banc, in which event, the parties
shall file ten additional copies (with plain
copies of all documents attached to the
original)
in one original (properly marked) and four copies,

unless the case is referred to the Court En Banc, in
which event, the parties shall file ten additional
copies. (containing plain copies of all documents
attached to the original copy of the petition)
Parties to cases before the Supreme Court are

further required, on voluntary basis for the first
six months following the effectivity of this Rule
and compulsorily afterwards unless the period is
extended, to submit, simultaneously with their
court-bound papers, soft copies of the same and
their annexes (the latter in PDF format) either by
email to the Courts e-mail address or by
compact disc (CD). This requirement is in
preparation for the eventual establishment of an
e-filing paperless system in the judiciary.
[Efficient Use of Paper Rule, Section 5]
Parties to cases before the Supreme Court are further

required, on voluntary basis for the first six months
following the effectivity of this Rule and compulsorily
afterwards unless the period is extended, to submit,
simultaneously with their court-bound papers, soft
copies of the same and their annexes (the latter in
PDF format) either by email to the Courts e-mail
address or by compact disc (CD). This requirement is
in preparation for the eventual establishment of an efiling paperless system in the judiciary. [Efficient Use
of Paper Rule, Section 5]
Contents [Rule 64, Sec. 5]:
(a) name of aggrieved party (petitioner)
(b) respondents: Commission concerned and
person(s) interested in sustaining the judgment a
quo
(c) facts
(d) issues involved
(e) grounds and brief arguments relied upon for
review
(f) prayer for judgment annulling or modifying the
question judgment, etc.
(g) material dates showing that it was filed on time
(h) certification against non-forum shopping
Copy of the comment shall be served on the

petitioner.
Decision [Rule 64, Sec. 9]

Case is deemed submitted for decision upon:
(a) filing of the comments on the petition, and such
other pleadings or papers as may be required or
allowed.
(b) expiration of the period to file the pleadings.
Findings of fact of the Commission supported by

substantial evidence shall be final and nonreviewable.
Exceptions: SC sets the case for oral argument or

requires parties to submit memoranda.
Failure to comply with foregoing requirements shall

be sufficient ground for dismissal.
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Application of Rule 65 under Rule 64
is read in relation to Section 3, Rule 46, which states

that failure to comply with any of the documentary
requirements, such as the attachment of relevant
pleadings, shall be sufficient ground for the
dismissal of the petition. [Radio Philippines Network
v. Yap (2012)]
DISTINCTION IN THE APPLICATION OF RULE 65 TO

JUDGMENTS OF THE COMELEC AND COA AND THE
APPLICATION OF RULE 65 TO OTHER TRIBUNALS, PERSONS
AND OFFICERS
Rule 64
Rule 65
Directed only to the

judgments, final orders
or
resolutions
of
COMELEC and COA
Filed within 30 days
from notice of the
judgment
The filing of a MR or a
Motion for New Trial if
allowed, interrupts the
period for the filing of
the petition for certiorari.
If the motion is denied,
the aggrieved party may
file the petition within
the remaining period,
but which shall not be
less than 5 days
reckoned from the notice
of denial.
Directed to any tribunal,

board,
or
officer
exercising judicial or
quasi-judicial functions
Filed within 60 days
from notice of the
judgment
The period within which
to file the petition if the
MR or new trial is
denied, is 60 days from
notice of the denial of
the motion.
Note: (In the 2005 and 2008 Bar Exams, bar

examinees were asked to compare Petition for review
on Certiorari and Certiorari)
Certiorari
Suarez v. NLRC (1998): Questions of fact cannot be
raised in an original action for certiorari. Only
established or admitted facts may be considered.
Medran v. CA (1949): Findings of fact of CA are not
binding upon SC in an original action for certiorari.
Republic v. St. Vincent de Paul (2012): Time for filing:
Under Section 4, Rule 65 of the Rules of Court and
as applied in Laguna Metts Corporation, the general
rule is that a petition for certiorari must be filed
within sixty (60) days from notice of the judgment,
order, or resolution sought to be assailed. Under
exceptional circumstances, however, and subject to
the sound discretion of the Court, said period may be
extended
Prohibition
Prohibition is a preventive remedy. However, to
prevent the respondent from performing the act
sought to be prevented during the pendency of the
proceedings for the writ, the petitioner should obtain
a restraining order and/or writ of preliminary
injuction. [Regalado]
CERTIORARI, PROHIBITION AND MANDAMUS

The original action of certiorari is not a substitute for
appeal. [Lobite v. Sundiam (1983)]
Exceptions:
(a) appeal is not a speedy and adequate remedy
[Salvadores v. Pajarillo (1947)]
(b) the orders were issued either in excess of or
without jurisdiction [Aguilar v. Tan (1970)]
(c) special considerations, i.e., public welfare or
public policy [Jose v. Zulueta (1961)]
(d) the order is a patent nullity [Marcelo v. De
Guzman (1982)]
(e) the decision in the certiorari case will avoid future
litigations [St. Peter Memorial Park v. Campos
(1975)]
(f) when the broader interest of justice so requires
[Mendez v. CA (2012)]
(g) when the writs issued are null and void [Mendez v.
CA (2012)]
(h) when the questioned order amounts to an
oppressive exercise of judicial authority [Mendez
v. CA (2012)]
Enriquez v. Macadaeg (1949) : Prohibition is the

remedy where a motion to dismiss is improperly
denied.
Mandamus
A writ of mandamus will not issue to control the
exercise of official discretion or judgment, or to alter
or review the action taken in the proper exercise of
the discretion of judgment, for the writ cannot be
used as a writ of error or other mode of direct review.
However, in extreme situations generally in criminal
cases, mandamus lies to compel the performance of
the fiscal of discretionary functions where his
actuations are tantamount to a wilful refusal to
perform a required duty. [Regalado]
General rule: In the performance of an official duty or
act involving discretion, such official can only be
The requirement in Section 1 of Rule 65 of the Rules

of Court to attach relevant pleadings to the petition
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CIVIL PROCEDURE
directed by mandamus to act but not to act in one

way or the other.
Exception: gross abuse of discretion, manifest
injustice, palpable excess of authority [Kant Wong v.
PCGG (1987)]
ORDER TO COMMENT
If the petition is sufficient in form and
substance to justify such process, the
court shall issue an order requiring the
respondent(s) to comment on the petition
within 10 days from receipt of a copy
thereof.
Mandamus can be availed of only by the party who

has direct legal interest in the right sought to be
enforced. HOWEVER, if the question is one of public
right, it is sufficient to show that the petitioner is a
citizen. [Tanada v. Tuvera (1985)]
Such order shall be served on the

respondents in such manner as the court
may direct, together with a copy of the
petition and any annexes thereto. [Rule
65, Sec. 6]
WHEN PETITION FOR CERTIORARI, PROHIBITION AND

MANDAMUS IS PROPER
See Annex F.
Procedure
HEARING OR MEMORANDA
After the comment or other pleadings
required by the court are filed, or the time for
the filing thereof has expired, the court may
hear the case or require the parties to submit
memoranda. [Rule 65, Sec. 8]
FILE
PETITION
FOR
CERTIORARI/
PROHIBITION / MANDAMUS.
When filed:
(a) Not later than 60 days from notice of
judgment/order/resolution
(b) If a motion for reconsideration/new trial
is filed, the 60-day period shall be
counted from notice of denial of motion.
(c) Extension may be granted for compelling
reasons, not exceeding 15 days. [Rule 65,
Sec. 4]
JUDGMENT
If after such hearing or submission of
memoranda or the expiration of the period
for the filing thereof, the court finds that
the allegations of the petition are true, it
shall render judgment for the relief prayed
for or to which the petitioner is entitled.
Where filed:
(a) Supreme Court
(b) Court of Appeals
If it involves the acts of a quasi-judicial
agency, the petition shall be filed only in
the CA, unless otherwise provided by law
or the Rules.
(c) Regional Trial Court, if it relates to acts /
omissions of a lower court / corporation /
board / officer / person.
Sandiganbayan, if it is in aid of its appellate
jurisdiction. [Rule 65, Sec. 4]
The court, however, may dismiss the

petition if it finds the same to be (1)
patently without merit, (2) prosecuted
manifestly for delay, or that (3) the
questions raised therein are too
unsubstantial to require consideration.
[Rule 65, Sec. 8]
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Mandamus Distinguished From Injunction

Mandamus
Injunction
Special civil action
Ordinary civil action
Directed
against
a Directed
against
a
tribunal,
corporation litigant
board or officer
Purpose is for the Purpose is for the
tribunal,
corporation, defendant either to
board or officer to refrain from an act or to
perform a ministerial perform not necessarily a
and legal duty
legal and ministerial duty
Purpose is to perform a Purpose is to prevent an
positive legal duty and act to maintain the
not to undo what has status quo between the
been done
parties
SERVICE AND ENFORCEMENT OF ORDER

OR JUDGMENT
A certified copy of the judgment rendered
shall be served upon the court, quasi-judicial
agency, tribunal, corporation, board, officer
or person concerned in such manner as the
court may direct, and disobedience thereto
shall be punished as contempt.
An execution may issue for any damages or
costs awarded in accordance with section 1
of Rule 39. [Rule 65, Sec. 9]
INJUNCTIVE RELIEF
Rule 65, Sec. 7 provides for the issuance of a

temporary restraining order, and not only for a writ of
preliminary injunction, but such order shall be
subject to the rules on the grounds and duration
thereof. [Regalado]
EXCEPTIONS TO FILING OF MOTION FOR RECONSIDERATION

BEFORE FILING PETITION
General rule: A motion for reconsideration must first

be availed of before certiorari to enable the lower
court to correct its mistakes without the intervention
of the lower courts. [BA Finance v. Pineda (1982)]
CERTIORARI
DISTINGUISHED
FROM
APPEAL
BY
CERTIORARI;
PROHIBITION
AND
MANDAMUS
DISTINGUISHED FROM INJUNCTION; WHEN AND WHERE TO
FILE PETITION
Exceptions:
(a) the order is a patent nullity [Vigan Elec. Light v.
Public Service Commission (1964)]
(b) the questions raised in the certiorari have been
duly raised and passed upon by the lower court
[Fortich-Celdran v. Celdran (1967)] or are the same
as those raised and passed upon in the lower
court [Pajo v. Ago (1960)]
(c) there is an urgent necessity for the resolution of
the question and delay would prejudice the
interests of the government [Vivo v.Cloribel (1966)]
(d) the MR would be useless [People v. Palacio
(1960)]
(e) the petitioner was deprived of due process and
there is extreme urgency for relief [Luzon Surety v.
Marbella (1960)]
(f) the proceeding was ex parte in which the
petitioner had no opportunity to object [Republic
v. Maglanoc (1963)]
(g) the issue raised is purely a question of law or
where the public interest is involved [PALEA v.
PAL (1982)]
Certiorari Distinguished From Appeal

Certiorari
Appeal
Proper to correct errors Proper where error is not
of jurisdiction committed one of jurisdiction but an
by lower courts, grave error of law or fact which
abuse of discretion which is a mistake of judgment
is tantamount to lack of
jurisdiction
Certiorari
invokes Appeal
when
filed
original jurisdiction of the invokes the appellate
court
Within 60 days from Filed within period of
notice of judgment, order appeal
or resolution
An
original
and Continuation
of
the
independent action
original case
Impleads the tribunal, Parties to an appeal are
court, board or officer
the original parties of the
case
RELIEFS PETITIONER IS ENTITLED TO
Petitioner may be entitled to:

(a) Injunctive relief Court may may issue orders
expediting the proceedings, and it may also grant
a temporary restraining order or a writ of
preliminary injunction for the preservation of the
rights of the parties [Rule 65, Sec. 7]
(b) Incidental reliefs as law and justice may require
[Rule 65, Secs. 1 and 2]
(c) Other reliefs prayed for or to which the petitioner
is entitled [Rule 65, Sec. 8]
Prohibition Distinguished From Injunction

Prohibition
Injunction
Directed to the court or Directed against a party
tribunal directing it to to the action
refrain
from
the
performance of acts
which
it
has
no
jurisdiction to perform
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DISTINGUISH FROM QUO WARRANTO IN THE OMNIBUS

ELECTION CODE
FACTIONS/OMISSIONS OF MTC/RTC IN ELECTION CASES
Jurisdiction in Election Cases [Omnibus Election

Code, Sec. 268]:
ROC Rule 66
OEC Sec. 253
Filed by whom
Solicitor General or Public Any voter
Prosecutor in behalf of the
Republic; Individual
Where filed
By SolGen: RTC Manila, COMELEC, if against
CA or SC; Otherwise, RTC election of a Member
with
jurisdiction
over of Congress, Regional,
territorial area where Provincial or City
respondent resides, CA or Officer;
SC
appropriate RTC or
MTC, if against a
municipal or barangay
officer
Period for filing
Within 1 year from ouster, Within 10 days after
or from the time the right proclamation
of
to the position arose
results
Against whom, grounds
A person, who usurps, Ineligibility
or
intrudes into or unlawfully disloyalty
to
the
holds or exercises a public Republic
office,
position
or
franchise;
RTC: has the exclusive original jurisdiction to try and

decide any criminal action or proceedings for
violation of the Omnibus election Code
Exception: those relating to the offense of failure to
register or failure to vote which shall be under the
jurisdiction of the metropolitan or municipal trial
courts.
From the decision of the courts, appeal will lie the
same as in other criminal cases.
Note: RA 7691 which expanded the jurisdiction of the
MTC, did not divest the RTC of its jurisdiction over
the said offenses, even if the imposable penalty is
not more than 6 years of imprisonment [COMELEC v.
Noynay (1998)]
WHERE TO FILE PETITION [Rule 65, Sec. 4]
The petition shall be filed:

(a) In the SC; or
(b) In the RTC exercising jurisdiction over the
territorial area , if it relates to the acts or
omissions of a lower court or of a corporation,
board, officer or person;
(c) In the CA, whether or not the same is in aid of its
appellate jurisdiction; or
(d) In the Sandiganbayan, if it is in aid of its appellate
jurisdiction.
A public officer, who does

or suffers an act which, by
provision
of
law,
constitutes a ground for
forfeiture of office
Note: If it involves the acts or omissions of a quasijudicial agency, and unless otherwise provided by
law or these rules, the petition shall be filed in and
cognizable only by the CA.
EFFECTS OF FILING OF AN UNMERITORIOUS PETITION
How commenced
By a verified petition [Rule 66, Sec. 1]
WHEN THE GOVERNMENT COMMENCES AN ACTION AGAINST
INDIVIDUALS
[Rule
(a) By Government, brought in the name of the

Republic of the Philippines, against:
(1) A person who usurps, intrudes into, or
unlawfully holds or exercises a public office,
position or franchise
(2) A public officer who does not or suffers an act
which, by the provision of law, constitutes a
ground for the forfeiture of his office
(3) An association which acts as a corporation
within the Philippines without being legally
incorporated or without lawful authority so to
act [Rule 66, Sec. 1]
65, Sec. 8]
The court, however, may dismiss the petition if it
finds the same to be patently without merit,
prosecuted manifestly for delay, or that the
questions raised therein are too unsubstantial to
require consideration.
QUO WARRANTO
Quo warranto is the remedy to try disputes with
respect to the title to a public office.
(b) When Solicitor General or public prosecutor

MUST commence action:
(1) When directed by the President of the
Philippines.
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(2) When upon complaint or otherwise, he has

good reason to believe that any case specified
in Sec. 1 can be established by proof. [Rule 66,
Sec. 2]
any part thereof or any interest therein, showing

as far as practicable the separate interest of each
defendant.
(d) The following must be clearly stated in the
complaint , if applicable:
(1) If the title to any property sought to be
expropriated appears to be in the Republic of
the Philippines, although occupied by private
individuals;
(2) If the title is otherwise obscure or doubtful so
that the plaintiff cannot with accuracy or
certainty specify who are the real owners.
[Rule 67, Sec. 1]
(c) When Solicitor General or public prosecutor MAY

commence action:
(1) with permission of the court
(2) at the request and upon the relation of
another person
(3) Officer bringing such action may first require
an indemnity for the expenses and costs of the
action in an amount approved by and
deposited in court. [Rule 66, Sec. 3]
TWO STAGES IN EVERY ACTION FOR EXPROPRIATION

WHEN INDIVIDUAL MAY COMMENCE AN ACTION
By a person claiming to be entitled to a public office

or position, brought in his own name, against
another who usurped or unlawfully held or exercised
such public office or position [Rule 66, Sec. 5]
Determination of the authority of the plaintiff to

exercise the power of eminent domain and the
propriety of its exercise in the context of the facts.
This stage is terminated by either an order of
dismissal of the action or order of the condemnation
declaring that expropriation is proper and legal.
These orders are final and therefore appealable.
[Municipality of Bian v. Garcia (1989)]
JUDGMENT IN QUO WARRANTO ACTION
When the respondent is found guilty of usurping,

intruding into, or unlawfully holding or exercising a
public office, position, or franchise, judgment shall
be rendered that such respondent be ousted and
altogether excluded therefrom, and that the
petitioner or relator recover his costs. [Rule 66, Sec.
9]
It includes an inquiry into the propriety of the

expropriation its necessity and public purpose.
[Riano]
Determination of just compensation.
This is done with the assistance of not more than
three (3) commissioners.
RIGHTS OF A PERSON ADJUDGED ENTITLED TO PUBLIC

OFFICE
If judgment be rendered in favor of the person

averred in the complaint to be entitled to the public
office he may, after taking the oath of office and
executing any official bond required by law, take
upon himself the execution of the office, and may
immediately thereafter demand of the respondent
all the books and papers in the respondent's custody
or control appertaining to the office to which the
judgment relates.
The order fixing just compensation is also final and

appealable (Ibid). Just compensation is to be
determined as of the date of the taking of the
propriety or the filing of the complaint, whichever
comes first.
Ansaldo v. Tantuico (1990): There is taking when the
owner is actually deprived or dispossessed of his
property; when there is a practical destruction or a
material impairment of the value of his property or
when he is deprived of the ordinary use thereof.
The person adjudged entitled to the office may also

bring action against the respondent to recover the
damages sustained by such person by reason of the
usurpation. [Rule 66, Sec. 10]
Bardillon v. Bgy. Masili (2003): An expropriation suit is

incapable of pecuniary estimation. Accordingly, it
falls within the jurisdiction of RTCs, regardless of the
value of the subject property.
EXPROPRIATION
MATTERS TO ALLEGE IN COMPLAINT FOR EXPROPRIATION
The complaint for expropriation must be VERIFIED.

Contents:
(a) The right and purpose of expropriation
(b) Description of the real or personal property
sought to be expropriated;
(c) The complaint shall join as defendants all
persons owning or claiming to own, or occupying
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Rule 67
depositary
Amount for deposit
equivalent to 100%
assessed value of the
property for purposes of
taxation.
WHEN PLAINTIFF CAN IMMEDIATELY ENTER INTO

POSSESSION OF THE REAL PROPERTY, IN RELATION TO RA
8974
Sec. 4. of RA 8974 otherwise known as An Act to
facilitate the acquisition of right-of-way, site or
location for national government infrastructure
projects and for the purposes: [w]henever it is
necessary to acquire real property for the right-ofway or location for any national government
infrastructure project through expropriation, the
appropriate implementing agency shall initiate the
expropriation proceedings before the proper court
under the following guidelines:
(a) Upon the filing of the complaint, and after due
notice to the defendant, the implementing
agency shall immediately pay the owner of the
property the amount equivalent to the sum of (1)
100% of the value of the property based on the
current relevant zonal valuation of the Bureau of
Internal Revenue (BIR); and (2) the value of the
improvements and/or structures as determined
under Section 7 hereof;
(b) In provinces, cities, municipalities and other areas
where there is no zonal valuation, the BIR is
hereby mandated within the period of sixty (60)
days from the date of the expropriation case, to
come up with a zonal valuation for said area; and
(c) In case the completion of a government
infrastructure project is of utmost urgency and
importance, and there is no existing valuation of
the area concerned, the implementing agency
shall immediately pay the owner of the property
its proffered value taking into consideration the
standards prescribed in Section 5 hereof.
Initial deposit with an

authorized government
Immediate payment to
the property owner
Amount to be paid is:

100% of the value of
the land as stated in
the tax declaration or
current
zonal
valuation, whichever
is higher, and the
value
of
improvements, OR
in the case of utmost
urgency, the proffered
value of the property
to be seized
See table of comparison under the preceding

subsection, column of RA 8974.
DEFENSES AND OBJECTIONS
No Objection Or Defense
To The Taking
Has Objection Or
Defense To The Taking
What to file and serve

Notice of appearance Answer
and manifestation
complaint
to
the
Period to file
Time stated in the summons
Contents
Manifestation to the Specifically
effect that he has no designating/identifying
objection or defense;
the property in which he
claims to have an
Specifically
interest in and the
designating/identifying
nature and extent of
the property in which he the interest;
claims to be interested
ALL his objections and
defenses
to
the
complaint
or
any
allegation therein
Prohibited
Counterclaim,
crossclaim,
third
party
complaint
in
any
pleading
Riano opines that Sec. 2 of Rule 67 is deemed

modified by RA 8974. He noted the following
differences:
RA 8974
Upon filing of the
complaint
Right-of-way, site or
location of national
government
infrastructure
projects
RA 8974
NEW SYSTEM OF IMMEDIATE PAYMENT OF INITIAL JUST

COMPENSATION
Upon compliance with the guidelines abovementioned, the court shall immediately issue to the
implementing agency an order to take possession of
the property and start the implementation of the
project.
Rule 67
Before issuance of writ of
possession
Expropriation
proceedings initiated by
the national government
A foreclosure action must be brought in the RTC of

the province where the land or any part thereof is
situated.
A defendant waives all defenses and objections not
so alleged, but the court, in the interest of justice,
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may permit amendments to the answer not to be

made later than ten (10) days from filing thereof.
and report to the court the just compensation for the

property sought to be taken. [Rule 67, Sec. 5]
At the trial of the issue of just compensation,

whether the defendant has previously appeared or
answered, he may present evidence as to the amount
of the compensation to be paid for his property, and
he may share in the distribution of the award. [Rule
66, Sec. 3]
APPOINTMENT OF COMMISSIONERS; COMMISSIONERS

REPORT; COURT ACTION UPON COMMISSIONERS REPORT
Order of appointment to be served on the parties.

Objections to the appointment of any of the
commissioners shall be filed in court within ten (10)
days, and shall be resolved within thirty (30) days
after all the commissioners have received copies of
the objections.
ORDER OF EXPROPRIATION
It declares that the plaintiff has a lawful right to take

the property sought to be expropriated for the public
use or purpose described in the complaint, upon
payment of just compensation to be determined as
of the date of the taking of the property or the filing
of the complaint whichever is earlier.
Powers and duties of commissioners:

(a) Parties can present evidence before the
commissioners and the latter have the power to
administer oaths or hearings before them;
(b) They can, after due notice to the parties to attend,
view and examine the property sought to be
expropriated and its surroundings and may
measure the same;
It is issued by the court in which the complaint for

expropriation is filed when:
(a) objections or defenses of the defendant have
been overruled, or
(b) the defendant raised no such defense or
objection, or
(c) No party appears to defend. [Rule 67, Sec. 4]
Exception: when the parties agree otherwise, the

commissioners cannot view and examine the
property
(1) The commissioners shall assess the
consequential damages to the property taken
and deduct from such consequential damages
the consequential benefits derived by the
owner from the public use or purpose of the
property taken, the operation of its franchise
by the corporation or person taking the
property.
(2) In no case shall the consequential benefits
assessed exceed the consequential damages
assessed, or the owner be deprived of the
actual value of his property so taken. [Rule 67,
Sec. 6]
(c) The commissioners shall make full and accurate
report to the court of all their proceedings.
(1) The report shall be filed within 60 days from
the date the commissioners were notified of
their appointment.
(2) Upon filing of the report, the clerk of court
shall serve copies thereof on all interested
parties, with notice that they are allowed ten
(10) days within which to file objections to the
findings of the report, if the parties desire.
[Rule 67, Sec. 7]
(d) After the 10-day period for objecting to the
commissioners report, the court, after hearing,
may:
(1) ACCEPT the report and render JUDGMENT in
accordance therewith;
(2) RECOMMIT the report to the commissioners
for further report of facts;
ASCERTAINMENT OF JUST COMPENSATION
Just Compensation
is defined as the full and fair equivalent of the
property taken from its owner by the expropriator.
Determined as of the date of taking of the property,
or the filing of the complaint, whichever came first.
[Rule 67, Sec. 4]
The measure is not the takers gain, but the owners
loss. To compensate is to render something which is
equal in value to that taken or received.
The word just is used to intensify the meaning of
the word compensation; to convey the idea that
the equivalent to be rendered for the property taken
shall be real, substantial, full, and ample.
In eminent domain or expropriation proceedings, the
general rule is that the just compensation which the
owner of condemned property is entitled to is the
market value.
Market Value
Is that sum of money which a person desirous but
not compelled to buy, and an owner willing but not
compelled to sell, would agree on as a price to be
given and received therefore. [BPI v. CA (2004)]
Upon the rendition of the order of expropriation, the
court shall appoint not more than 3 competent and
disinterested persons as commissioners to ascertain
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(3) SET ASIDE the report and APPOINT new

commissioners;
(4) ACCEPT the report IN PART and REJECT it IN
PART;
(b) Extrajudicially proper only when so provided in

contracts in accordance with Act. No. 3135;
governed by A.M. No. 99-10-05-0.
Monte de Piedad v. Rodrigo (1931) : A foreclosure
action must be brought in the RTC of the province
where the land or any part thereof is situated.
And make such order or render judgment as shall

secure to the plaintiff the property essential to
the exercise of his right of expropriation and to
the defendant just compensation for the property
so taken. [Rule 67, Sec. 8]
If a mortgage contract covers several distinct parcels

of land situated in different provinces, the action may
be brought in the RTC of any of the provinces and
the judgment will be enforceable against any of the
parcels of land involved.
RIGHTS OF PLAINTIFF UPON JUDGMENT AND PAYMENT
(a) Right to enter upon the property expropriated

and appropriate it for the public use or purpose
as stated. Upon payment by the plaintiff to the
defendant of the compensation fixed by the
judgment, with legal interest thereon from the
taking of the possession of the property, or after
tender to him of the amount so fixed and
payment of the costs, the plaintiff shall have the
right to enter upon the property expropriated and
to appropriate it for the public use or purpose
defined in the judgment, or to retain it should he
have taken immediate possession thereof under
Sec. 2. [Rule 67, Sec. 10]
(b) Right to enter upon the property even pending
appeal. The right of the plaintiff to enter upon the
property of the defendant and appropriate the
same for public use or purpose shall not be
delayed by an appeal from the judgment.
JUDGMENT ON FORECLOSURE FOR PAYMENT OR SALE
Judgment
Payment
If upon the trial, the court shall find the facts set
forth in the complaint to be true, it shall ascertain
the amount due to the plaintiff upon the mortgage
debt or obligation, including interest and other
charges as approved by the court, and costs, and
shall render judgment for the sum so found due and
order that the same be paid to the court or to the
judgment obligee within a period of not less than 90
days nor more than 120 days from the entry of
judgment (equity of redemption).
Sale
In default of such payment the property shall be sold
at public auction to satisfy the judgment. [Rule 68,
Sec. 2]
The judgment entered in expropriation proceedings

shall state definitely, by an adequate description, the
particular property or interest therein expropriated,
and the nature of the public use or purpose for which
it is expropriated. [Rule 67, Sec. 13]
SALE OF MORTGAGED PROPERTY; EFFECT
(a) When the defendant fails to pay the amount of

the judgment within the period specified therein,
the court, upon motion, shall order the property
to be sold in the manner and under the provisions
of Rule 39 and other regulations governing sales
of real estate under execution.
(1) It is the ministerial duty of the court to order
the foreclosure of the property when the debt
is not paid within the period specified.
(2) A motion for such order of sale is non-litigable
and may be made ex parte. [Govt of P.I. v De
las Cajigas (1931)]
(b) Such sale shall not affect the rights of persons
holding prior encumbrances upon the property or
a part thereof, and
(c) When confirmed by an order of the court, also
upon motion, it shall operate to divest the rights
in the property of all the parties to the action and
to vest their rights in the purchaser, subject to
such rights of redemption as may be allowed by
law.
EFFECT OF RECORDING OF JUDGMENT
When real estate is expropriated, a certified copy of

the judgment entered in expropriation proceedings
shall be recorded in the registry of deeds of the place
in which the property is situated, and its effect shall
be to vest to plaintiff the title to the real estate so
described for such public use or purpose. [Rule 67,
Sec. 13]
FORECLOSURE OF REAL ESTATE MORTGAGE
(Asked in the 2003 Bar Exam)
The cause of action in a foreclosure suit is generally
the non-payment of the mortgage loan, but it may
be on other grounds which under the contract
warrant the foreclosure, such as the violation of the
other conditions therein.
Foreclosure may be made:
(a) judicially governed by Rule 68
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(d) Possession: Upon the finality of the order of

confirmation or upon the expiration of the period
of redemption when allowed by law, the
purchaser at the auction sale or last
redemptioner, if any, shall be entitled to the
possession of the property, unless a third party is
actually holding the same adversely to the
judgment obligor.
(e) The said purchaser or last redemptioner may
secure a writ of possession, upon motion, from
the court which ordered the foreclosure. [Rule 68,
Sec. 3]
(f) The purchaser is entitled to a writ of possession
and it is ministerial upon the court to issue a writ
of possession in his favor upon an ex parte
motion. [Barican, et al v Caguioa, et al, (1986)]
If the debtor dies, the deficiency may be filed as a

claim against his estate. [Rule 86, Sec. 7]
Exceptions:
(a) Third Party Mortgagor - No deficiency judgment
may be rendered where the mortgage was
executed by a third person to secure the
obligation of a debtor, such third person not
having assumed personal liability for the debt.
The remedy is an ordinary action against the
debtor. [Philippine Trust Co. v. Echaus Tan Siusa
(1929)]
(b) Extrajudicial Foreclosure - There can be no
deficiency judgment because there was no
judicial proceeding in the foreclosure. Recovery
can be made through a separate action. [DBP v
Mirang (1975); DBP v Zaragosa, (1978); PNB v CA
(1999)]
DISPOSITION OF PROCEEDS OF SALE
Claims to be satisfied by the proceeds of the public

sale of mortgaged property (in order):
(a) Costs incurred in the sale of property
(b) Claim of the person foreclosing the property
(c) Claims of junior encumbrancers in the order of
their priority
Instances when court cannot render deficiency

judgment
JUDICIAL FORECLOSURE V. EXTRAJUDICIAL FORECLOSURE
If proceeds of the sale exceeds the cost of the sale as

well as the claims of the person foreclosing the
property and junior encumbrancers, the residual
amount shall be given to the mortgagor or his agent,
or to the person entitled to it. [Rule 68, Sec. 4]
If the proceeds of the sale is less than the amount of
the claims to be satisfied, the person foreclosing the
property may move for a DEFICIENCY JUDGMENT
from the court confirming the foreclosure sale, to
recover the amount of the deficiency in his claim.
Judicial Foreclosure
Governed by the Rules of
Court
Involves the filing of an
independent action
Equity of redemption
EXCEPT
if
the
foreclosure is in favor of
banks as mortgagees, a
Right of redemption
exists
There could be a
deficiency judgment
DEFICIENCY JUDGMENT
Definition: A judgment against a debtor for the

unpaid balance of the debt if a foreclosure sale or a
sale of repossessed personal property fails to yield
the full amount of the debt due; also termed a
deficiency decree. (Blacks Law Dictionary)
Recovery of deficiency is
by mere motion for a
deficiency judgment
General rule: Sec. 6 provides for a deficiency

judgment which shall be rendered, on motion, when
the foreclosure sale did not produce proceeds
sufficient to satisfy the judgment.
Extrajudicial Foreclosure
Governed by Act 3135 as
amended
Does not require filing of
an action
Right of redemption
No deficiency judgment
because there is no
judicial proceeding
BUT deficiency can be
recovered
Recovery of deficiency is
by
an
independent
action
Registration [Rule 68, Sec. 7]

A CERTIFIED COPY of the final order confirming the
sale shall be registered in the Registry of Deeds.
In extrajudicial foreclosure, the mortgagee can also

recover by action any deficiency in the mortgage
account which was not realized in the foreclosure
sale. [PNB v. CA (1999)]
If No Right Of
Redemption Exists
The Certificate of Title
in the name of the
mortgagor shall be
cancelled, and a new
one issued in the name
of the purchaser.
A motion for deficiency judgment may be made only

after the sale and after it becomes known that a
deficiency exists. [Governor of the Philippine Islands v.
Torralba Vda. de Santos (1935)]
PAGE 131
If A Right Of Redemption
Exists
The Certificate of Title in
the name of the
mortgagor shall NOT be
cancelled,
but
the
Certificate of Sale and
the order confirming the
UP COLLEGE OF LAW
CIVIL PROCEDURE
sale shall be registered

and
a
brief
memorandum thereof
shall be made by the
Registrar of Deeds upon
the certificate of title
If The Property Is
Redeemed
The
Deed
of
Redemption shall be
registered with the
Registry of Deeds and a
brief
memorandum
thereof shall be made
by the Registrar of
Deeds
on
said
certificate of title.
Equity Of Redemption
where the mortgagee is
the Philippine National
Bank or a bank or
banking
institution.
[Huerta Alba Resort, Inc.
v. CA (2000)]
If The Property Is Not

Redeemed
The FINAL Deed of
Sale executed by the
sheriff in favor of the
purchaser
at
the
foreclosure sale shall
be registered with the
Registry of Deeds.
The mortgagor may

exercise his equity of
redemption in judicial
foreclosure before the
sale is confirmed by the
court
(Raymundo
v
Sunico, 1913; Rosales v
Suba, 2003).
No right of redemption is
recognized in a judicial
foreclosure, except only
Right Of Redemption
Confirmation of the sale of mortgaged real property

vests title in the purchaser including the equity of
redemption, it retroacts to the date of the sale. It
cuts off all the rights or interests of the mortgagor
and of the mortgagee. [Lozame v Amores (1985]].
The motion for the confirmation of the sale requires
a hearing to grant an opportunity to the mortgagor
to show cause why the sale should not be confirmed
[Tiglao v Botones, 90 Phil 275], as by proof of
irregularities therein or of gross inadequacy of the
price. Lack of notice vitiates the confirmation of the
sale.
The Certificate of Title

in the name of the
mortgagor shall be
cancelled and a new
one shall be issued in
the name of the
purchaser.
PARTITION
Partition of property may be:
(a) Extrajudicial by agreement
(b) Judicial compulsory; governed by Rule 69
EQUITY OF REDEMPTION VERSUS RIGHT OF REDEMPTION
Equity Of Redemption
Right of the defendant
mortgagor to extinguish
the mortgage and retain
ownership
of
the
property by paying the
amount fixed in the
decision of the court
within 90 to 120 days
after entry of judgment
or even after the
foreclosure sale but prior
to
its
confirmation.
[Limpin v. Intermediate
Appellate Court (1988)]
Right Of Redemption
Right of redemption is
the right granted to the
debtor-mortgagor, his
successor-in-interest or
any judicial creditor of
said debtor-mortgagor
or any person having a
lien in the property
subsequent
to
its
mortgage or deed of
trust, under which the
property is sold, to
redeem the property
within 1 year from the
registration
of
the
sheriffs certificate of
foreclosure sale. [De
Castro v. Intermediate
Appellate Court [1988)]
The right of redemption
in relation to a mortgage
is understood in the
sense of a prerogative to
re-acquire
mortgaged
property
after
registration
of
the
foreclosure sale. It exists
only in the case of the
extrajudicial foreclosure
of the mortgage.
Even if the parties resorted to judicial partition, they

may still make an amicable partition of the property.
[Secs. 2 and 12]
WHO MAY FILE COMPLAINT; WHO SHOULD BE MADE
DEFENDANTS
Filed by person having the right to compel the

partition of real estate, [Sec. 1], or of personal
property, or of both real and personal property. [Sec.
13]
The plaintiff is the person who is supposed to be a
co-owner of the property. The defendants are all the
co-owners, who are indispensable parties.
Sepulveda v. Pelaez (2005): All persons considered as
co-owners and interested in the property to be
partitioned are indispensable parties to the action
and must be impleaded.
Exceptions to the Right to Ask for Partition
(a) When there is a stipulation against it, not
exceeding 10 years [Art. 494, Civil Code]
(b) When partition is prohibited by the donor or
testator for a period not exceeding 20 years [Art.
494, 1083 Civil Code]
(c) When partition is prohibited by law (e.g. ACP,
party wall) [Art. 494, Civil Code]
(d) When the property is not subject to a physical
division and to do so would render it
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unserviceable for the use for which is it intended

[Art. 495 Civil Code] or
(e) When the condition imposed upon voluntary heirs
before they can demand partition has not yet
been fulfilled. [Art. 1084 Civil Code]
They must accept all or none. Parties who had

received the property assigned to them are
precluded from subsequently attacking its validity of
any part of it.
Partition may be inferred from circumstances
sufficiently strong to support the presumption. Thus,
after a long possession in severalty, a deed of
partition may be presumed.
MATTERS TO ALLEGE IN THE COMPLAINT FOR PARTITION
Contents of complaint for partition

(a) Nature and extent of the complainants title
(b) Adequate description of the real estate of which
the partition is demanded
(c) All other persons interested in the property must
be impleaded. [Rule 69, Sec. 1]
Recitals in deeds, possession and occupation of land,

improvements made thereon for a long series of
years, and acquiescence for 60 years, furnish
sufficient evidence that there was an actual partition
of land either by deed or by proceedings in the
probate court, which had been lost and were not
recorded.
TWO (2) STAGES IN EVERY ACTION FOR PARTITION
Determination of the propriety of partition

This involves a determination of whether the subject
property is owned in common and whether all the
co-owners are made parties in the case.
The order may also require an accounting of rents
and profits recovered by the defendant. This order of
partition is appealable. [Miranda v. Court of Appeals
(1976)]
Where a tract of land held in common has been

subdivided into lots, and one of the lots has long
been known and called by the name of one of the
tenants in common, and there is no evidence of any
subsequent claim of a tenancy in common, it may
fairly be inferred that there has been a partition and
that such lot was set off to him whose name it bears.
If not appealed, then the parties may partition the

common property in the way they want. If they
cannot agree, then the case goes into the second
stage. However, the order of accounting may in the
meantime be executed. [De Mesa v. CA (1994)]
Venue
Actions for partition should be filed in the RTC of the
province where the property or part thereof is
situated.
The actual partitioning of the subject property

This is also a complete proceeding and the order or
decision is appealable.
If several distinct parcels of land are situated in

different provinces, venue may be laid in the RTC of
any of said provinces. [Pancho v. Villanueva,(1956)]
When 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 negate such partition.
ORDER OF PARTITION AND PARTITION BY AGREEMENT
Order of partition
After trial, if the court finds that the plaintiff has the
right to the property subject of partition, it shall issue
an order demanding the partition of the real estate
st
among all the parties in interest. [Sec. 2] (Refers to 1
stage of partition)
There can be no partition again because there is no

more common property. [Noceda v. CA (1999)]
Crucillo v. IAC, 1999: Oral partition of land when the
same is fully consummated is valid and binding upon
the parties thereto.
Partition by Agreement
After the issuance of the order of partition, the
parties will then be asked if they agree to make
partition of the property among themselves
Maglucot-aw et al. v. Maglucot et al. (2000): Parties to

a partition proceeding, who elected to take under
partition, and who took possession of the portion
allotted to them, are estopped to question title to
portion allotted to another party. A person cannot
claim both under and against the same instrument.
In other words, they accepted the lands awarded
them by its provisions, and they cannot accept the
decree in part, and repudiate it in part.
If they agree, proper instruments of conveyance

will be executed to effect the partition.
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pays to the other parties such amounts as the

commissioners deem equitable
After the execution of instruments of

conveyance, the court shall confirm the
partition through a final order.
Exception: if one of the parties asks that the property

be sold instead of being so assigned, then the court
shall ORDER the commissioners to sell the real
estate at public sale under such conditions and
within such time as the court may determine. [Rule
69, Sec. 5]
The final order of partition and the instruments

of conveyance shall be registered with the
Registry of Deeds where the property is
situated. [Rule 69, Sec. 2]
Commissioners Report
The commissioners shall make a full and
accurate report to the court of all their
proceedings as to the partition, or the
assignment of real estate to one of the parties or
the sale of the same.
If they do not agree, there will be a partition by

commissioners.
A party shall recover from another his just share of
rents and profits received by such other party from
the real estate in question, and the judgment shall
include an allowance for such rents and profits. [Rule
69, Sec. 8]
Upon filing the report, the clerk of court shall

serve copies thereof on all interested parties with
notice that they are allowed 10 days within which
to file objections to the findings of the report, if
they so desire.
A final order decreeing partition and accounting may

be appealed by any party aggrieved thereby. [Rule
69, Sec. 2]
PARTITION BY COMMISSIONERS; APPOINTMENT OF
COMMISSIONERS, COMMISSIONERS REPORT; COURT
ACTION UPON COMMISSIONERS REPORT
No proceeding had before or conducted by the

commissioners shall pass the title to the
property or bind the parties until the court
accepts the commissioners report and rendered
judgment thereon. [Rule 69, Sec. 6]
Appointment of commissioners
If the parties are unable to agree upon the partition,
the court shall appoint not more than 3 competent
and disinterested persons as commissioners to make
the partition, commanding them to set off to the
plaintiff and to each party in interest such part and
proportion of the property as the court shall direct.
[Rule 69, Sec. 3]
Duties of Commissioners [Rule 69, Sec. 4]:
(a) view and examine the real estate, after due notice
to the parties to attend at such view and
examination
(b) hear the parties as to their preference in the
portion of the property to be set apart to them
and the comparative value thereof
(c) set apart the same to the parties in lots or parcels
as will be most advantageous and equitable,
having due regard to the improvements, situation
and quality of the different parts thereof.
General rule: If the commissioners should determine
that the real estate cannot be divided without
prejudice to the interests of the parties, the court
may order that the property be assigned to one of
the parties willing to take the same PROVIDED he
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PARTITION OF PERSONAL PROPERTY
Upon the expiration of the 10-day period,

or even before the expiration of such
period but after the interested parties filed
their objections to the report/statement of
agreement, the court, upon hearing, may:
(a) ACCEPT the commissioners report and
render JUDGMENT based upon it.
(b) RECOMMIT the report to the
commissioners for further report of
facts if there is cause to do the same
(c) SET ASIDE the report and APPOINT
new commissioners
(d) ACCEPT the report IN PART and
REJECT it IN PART
(e) Make such order and render such
judgment as shall effectuate a fair and
just partition of the real estate or of its
value, if the property is assigned or sold
between the several owners thereof.
[Rule 69, Sec. 7]
The provisions of Rule 69 shall apply to partitions of

estates composed of personal property, or of both
real and personal property, in so far as the same may
be applicable. [Rule 69, Sec. 13]
PRESCRIPTION OF ACTION
The right of action to demand partition does not

prescribe [De Castro v. Echarri (1911)], EXCEPT where
one of the interested parties openly and adversely
occupies the property without recognizing the coownership [Cordova v. Cordova (1958)] in which case,
acquisitive prescription may set in.
If a co-owner repudiates the co-ownership and
makes known such repudiation to the other coowners, then partition is no longer a proper remedy
of the aggrieved co-owner. He should file an accion
reivindicatoria, which is prescriptible. [Roque v. IAC
(1988)]
FORCIBLE ENTRY AND UNLAWFUL DETAINER
(Asked in the 2000 Bar Exam in Relation to a Pending
Action for Specific Performance)
JUDGMENT AND ITS EFFECTS
Contents of Judgment
Effects of Judgment
DEFINITIONS AND DISTINCTION
If Actual Partition Is Properly Made
Forcible Entry
(a) Resorted to when a person is deprived of
possession of any land or building by (1) force, (2)
intimidation, (3) strategy, (4) threat, or (5) stealth.
(FISTS)
(b) Must be brought at any time within 1 year after
such unlawful deprivation in the proper MTC
against the person unlawfully depriving him of
possession or against any person or persons
claiming under them.
(c) Action must be for the restitution of possession of
property together with damages and costs. [Rule
70, Sec. 1]
(d) The owners of a property have no authority to use
force and violence to eject alleged usurpers who
were in prior physical possession of it.
(e) They must file the appropriate action in court and
should not take the law into their own hands.
[Laurora v. Sterling Technopark (2003)]
Judgment
shall
state Judgment shall vest
definitely, by metes and in each party to the
bounds
and
adequate action in severalty
description, the particular the portion of the
portion of the real estate real estate assigned
assigned to each party.
to him.
If The Whole Property Is Assigned To One Of The
Parties After Payment
Judgment shall state the fact Judgment shall vest
of such payment and of the in the party making
assignment of the real estate the payment the
to the party making the whole of the real
payment.
estate free from any
interest on the part
of the other parties.
If Property Is Sold And Sale Is Confirmed By The Court
Judgment shall state the Judgment shall vest
name of the purchaser or the real estate in the
purchasers and a definite purchaser(s),
description of the parcels of making
the
real estate sold to each payment(s)
free
purchaser
from the claims of
any parties to the
action.
Unlawful Detainer
(a) Resorted to when a lessor, vendor, vendee, or
other person against whom the possession of any
land or building is unlawfully withheld, after the
expiration or termination of the right to hold
possession by virtue of an express or implied
contract.
(b) May also be brought by the legal representative
or assigns of any such lessor, vendor, vendee, or
other persons.
A certified copy of the judgment shall in either case

be recorded in the registry of deeds of the place in
which the real estate is situated. [Rule 69, Sec. 11]
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(c) Must be brought at any time within 1 year after

the unlawful withholding of possession in the
proper Municipal Trial Court against the person
unlawfully withholding possession or persons
claiming under them.
(d) Action must be for the restitution of possession of
property together with damages and costs. [Rule
70.1]
Forcible Entry
Possession
becomes
unlawful right from the
very start (i.e. from the
time of entry) as he
acquires possession by
FISTS.
The
deprivation
of
physical possession of
land and building is
effected through force,
intimidation, strategy,
threat
or
stealth
(FISTS).
The issue centers on
who was in prior
possession de facto.
Previous demand upon
defendant to vacate not
required.
The plaintiff must allege
and prove that he was in
prior
physical
possession
of
the
premises until deprived
thereof.
1-year period counted
from date of actual
entry on the land.
(e) in the proper MTC or MeTC

Nature:
(a) special civil action involving realty;
(b) subject to the Rules on Summary Procedure;
[Rule 70, Sec. 3]
(c) under the original exclusive jurisdiction of first
level courts;
(d) nature of the action is determined by the
allegation of the complaint and the character of
the relief sought; [Abrin v. Campos (1991)]
(e) one co-owner may institute the action.
Unlawful Detainer
Possession was lawful at
first but later becomes
illegal, as when the lease
contract has expired and
the lessee refuses to
vacate the premises
despite demand.
The unlawful withholding
of possession is made
after the expiration or
termination of the right to
hold possession under
any contract, express or
implied.
The issue centers on
whether the defendants
right to possess has
expired or not.
Previous demand to
vacate
required
(jurisdictional).
The plaintiff need not be
in
prior
physical
possession.
Accion Publiciana
A plenary action for recovery of the right to possess
and which should be brought in the proper regional
trial court when the dispossession has lasted for
more than one year.
Accion Reivindicatoria
Also called accion de reivindicacion, it seeks the
recovery of ownership and includes the jus utendi
and the jus fruendi, which must be brought in the
proper regional trial court.
It is thus an action whereby plaintiff alleges
ownership over a parcel of land and seeks recovery of
its full possession. [Javier v. Veridiano (1994)]
HOW TO DETERMINE JURISDICTION IN ACCION PUBLICIANA
AND ACCION REINVINDICATORIA
A/P and A/R are actions involving title to or

possession of real property or an interest therein
(a) RTC has jurisdiction where the assessed value of
the property exceeds P20K or, in MM, P50k
(b) MTC has jurisdiction if the assessed value does
not exceed said amounts
1-year period counted

from date of last demand
or last letter of demand.
WHO MAY INSTITUTE THE ACTION AND WHEN; AGAINST

WHOM THE ACTION MAY BE MAINTAINED
Who may File, When, Against Whom

Who
A person deprived of the possession of any land or
building by force, intimidation, threat, strategy, or
stealth, or a lessor, vendor, vendee, or other person
against whom the possession of any land or building
is unlawfully withheld after the expiration or
termination of the right to hold possession, by virtue
of any contract, express or implied, or the legal
representatives or assigns of any such lessor, vendor,
vendee, or other person
DISTINGUISHED FROM ACCION PUBLICIANA AND ACCION

REINVINDICATORIA
Accion Interdictal
(a) the summary action for forcible entry
(detentacion)
(b) where the defendants possession of property is
illegal ab initio, or
(c) the summary action for unlawful detainer
(desahucio) where the defendants possession
was originally lawful but ceased to be so by the
expiration of his right to possess,
(d) both of which must be brought within one year
from the date of actual entry to the land, in case
of forcible entry, and from the date of last
demand, in case of unlawful detainer,
When
At any time within 1 year after such unlawful
deprivation or withholding of possession in the
proper MTC
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Against Whom
The person or persons unlawfully withholding or
depriving of possession, OR any person or persons
claiming under them [Rule 70, Sec. 1]
Jakihaca v. Aquino (1990): Demand upon a tenant

may be oral.
Dakudao v. Consolacion (1983): A 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, failing which, an action for
unlawful detainer may be instituted against him.
PLEADINGS ALLOWED
Pleadings must be verified. [Rule 70, Sec. 4]

Allowed pleadings [Rule 70, Sec. 4]:
(a) Complaint
(b) Compulsory Counterclaim pleaded in the answer
(c) Cross-claim pleaded in the answer
(d) Answer
Muoz v. CA (1992): 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 1 year, and only thereafter
filed forcible entry suit following demand to vacate.
ACTION ON THE COMPLAINT
From the examination of the allegations in the

complaint and such evidence as may be attached
thereto, the court may:
(a) DISMISS the case outright based on the grounds
for dismissal for ordinary civil actions apparent in
the complaint, or
(b) ISSUE SUMMONS, if no ground for dismissal is
found. [Rule 70, Sec. 5]
Refugia v. CA (1996): Tolerance must be presented

right from the start of possession sought to be
recovered to categorize a cause of action as one of
unlawful detainer.
Zobel v. Abreu (1956): When failure to pay rent or
comply with the condition of lease is the ground for
ejectment, plaintiff should give 2 demands (which
may be embodied in 1 demand letter):
(a) demand to pay rental or comply with conditions
of the lease, and if this is not complied with,
(b) demand to vacate
Cases requiring referral to conciliation, where there is

no showing of compliance with such requirement,
shall be dismissed without prejudice, and may be
revived only after that requirement have been
complied with. [Rule 70, Sec. 12]
Yap v. Cruz (1992): Notice and demand to vacate is

required on a lease on a month-to-month period to
render effective the termination of the lease upon
the expiration of the month, and prevent an implied
renewal of the lease.
WHEN DEMAND IS NECESSARY
In cases of unlawful detainer, the action by the lessor

shall be commenced only after:
(a) demand to pay or comply with the conditions of
the lease and to vacate is made upon the lessee,
or
(b) by serving written notice of such demand upon
the person found on the premises, or
(c) by posting such notice on the premises if no
person be found thereon, and the lessee fails to
comply therewith after 15 days in the case of land
or 5 days in the case of buildings. [Rule 70, Sec. 2]
Penas, Jr. v. CA (1994): An alternative demand to

either renew the expired lease contract at a higher
rental rate or vacate is not a definite demand to
vacate and therefore, insufficient basis for the filing
of an action for unlawful detainer.
Uy v. CA (1989): Refusal to collect or accept rentals is
not a defense. There must be consignation.
Exceptions (prior demand not required):

(a) Where purpose of the action is to terminate the
lease by reason of the expiry of its term, and is not
for failure to pay rentals or comply with the terms
of the lease contract. [Arquelada v. Philippine
Veterans Bank (2000) ]
(b) When the purpose of the suit is not for ejectment
but for the enforcement of the terms of the
contract. [Guanson v. Ban (1946)]
(c) When the defendant is not a tenant but a mere
intruder. [id]
Procedure
Filing of complaint.
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CIVIL PROCEDURE
After the court has examined the allegations in

the complaint and supporting evidence attached
to the same, the court may:
(a) DISMISS the case outright based on the
grounds for dismissal for ordinary civil actions
apparent in the complaint, or
(b) ISSUE SUMMONS, if no ground for dismissal
is found. [Rule 70, Sec. 5]
Not later than 30 days after the last answer is

filed, a PRELIMINARY CONFERENCE shall be
held.
Rule 18 applicable. Effects of failure to appear:
(a) When the plaintiff does not appear
(1) It shall be a cause for dismissal of his
complaint
(2) All cross-claims shall be dismissed
(3) The defendant who appears in the
absence of the plaintiff shall be entitled
to the judgment on his counterclaim
(b) When the defendant does not appear
The plaintiff shall be entitled to judgment
(This is true when there is only one
defendant or when all of the defendants did
not appear)
Cases requiring referral to conciliation, where

there is no showing of compliance with such
requirement, shall be dismissed without prejudice,
and may be revived only after that requirement
have been complied with. [Rule 70, Sec. 12]
General rule: No postponement of

preliminary conference shall be granted.
The defendant shall file his ANSWER and

serve a copy of it to the plaintiff within 10 days
from service of summons. [Rule 70, Sec. 6]
the
Exception: Highly meritorious grounds and

without prejudice to such sanctions as the court
in the exercise of sound discretion may impose
on the movant. [Rule 70, Sec. 8]
Failure of the defendant to answer within the

period provided above shall give power to the
court, motu propio or on motion, to render
judgment as may be warranted by the facts
alleged in the complaint and limited to what is
prayed for therein. [Rule 70, Sec. 7]
Affirmative and negative defenses and crossclaims and compulsory counterclaims not
pleaded in the answer are deemed waived.
The court shall issue an ORDER stating matters

taken up during the preliminary conference
within 5 days after the termination of the same.
Exception: lack of jurisdiction over the subject

matter.
Contents of the Order:

(a) Whether the parties have arrived at an
amicable settlement, and if so, terms thereof;
(b) The stipulations or admissions entered into
by the parties;
(c) Whether, on the basis of the pleadings and
the stipulations and admissions made by the
parties, judgment may be rendered without
the need of further proceedings, in which
event the judgment shall be rendered within
30 days from issuance of the order;
(d) A clear specification of material facts which
remain controverted;
Such other matters intended to expedite the
disposition of the case. [Rule 70, Sec. 9]
Answers to the counterclaims or cross-claims shall

be served and filed within 10 days from service of
the answer in which they are pleaded.
Where there is a defense of tenancy, there must

be a preliminary hearing on the question of
tenancy relations. [Bayog v. Natino (1996)] If there
is a prima facie showing of tenancy, the court
should dismiss the case for lack of jurisdiction
(jurisdiction belongs to the DARAB). [Baranda v.
Padios (1987)]
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The parties shall submit affidavits of their

witnesses and other evidence on the factual
issues defined in the order, together with their
position papers setting forth the law and the facts
relied upon by them within 10 days from receipt of
the order. [Rule 70, Sec. 10]
Judgment
General Rule: The court shall render judgment
within 30 days from the date of its receipt of
the affidavits and position papers OR the
expiration of the period for filing the same.
[Rule 70, Sec. 11]
Affidavits required to be submitted shall state

only facts of direct personal knowledge of the
affiants which are admissible in evidence, and
shall show their competence to testify to the
matters stated therein.
Exception: Should the court find it necessary

to clarify certain material facts, it may during
the 30-day period issue an ORDER specifying
the matters to be clarified and require the
parties to submit affidavits or other evidence
on the said matters within 10 days from
receipt of said order. Judgment shall be
rendered within 15 days after receipt of the
last affidavit or the expiration of the period for
filing the same. [Ibid.]
Violation of this requirement may subject the

party or the counsel who submits the same to
disciplinary action and shall be cause to expunge
the inadmissible affidavit or portion thereof from
the records. [Rule 70, Sec. 14]
The court shall not resort to the foregoing

procedure just to gain time for the rendition of
the judgment. [Id.]
If the trial court finds that the allegations of
the complaint are TRUE, it shall render
judgment in favor of the plaintiff for
(a) restitution of the premises,
(b) the just sum due as arrears of rent or
reasonable compensation for the use and
occupation of the premises.
(c) attorneys fees and costs. [Rule 70, Sec. 17]
If the court finds that the allegations of the
plaintiffs are NOT TRUE, it shall render
judgment for the defendant to recover his
costs. [Ibid.]
The judgment rendered in an action for
forcible entry shall be conclusive with respect
to the possession only, and it shall not in any
way affect the title or ownership of the land or
building. Hence, such judgment shall not bar
an action between the same parties with
respect to the title of the land or building.
The judgment or final order shall be
appealable to the appropriate RTC. [Rule 70,
Sec. 18]
Execution of judgment
General Rule: If judgment is rendered against a
defendant, execution shall issue immediately. [Rule
70, Secs. 19 and 21]
Exception: Appeal has been duly perfected by the
defendant and bond has been posted.
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UP COLLEGE OF LAW
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(b) An accion publiciana does not suspend an

ejectment suit against the plaintiff in the former
[Ramirez v. Bleza (1981)].
(c) A writ of possession case where ownership is
concededly the principal issue before the
Regional Trial Court does not preclude nor bar
the execution of the judgment in an unlawful
detainer suit where the only issue involved is the
material possession or possession de facto of the
premises [Heirs of F. Guballa, Sr. v CA (1988)].
(d) An action for quieting of title to the property is
not a bar to an ejectment suit involving the same
property [Quimpo v. de la Victoria (1972)].
(e) Suit for specific performance with damages do
not affect ejectment actions (e.g., to compel
renewal of lease contract) [Desamito v. Cuyegkeng
(1966)]; (Asked in the 2000 Bar Exam)
(f) An action for reformation of instrument (e.g. from
deed of absolute sale to one of sale with pacto de
retro ) does not suspend an ejectment suit
between the same parties [Judith v. Abragan
(1975)].
(g) An action for reconveyance of property or accion
reivindicatoria also has no effect on ejectment
suits regarding the same property [Del Rosario v.
Jimenez (1963)].
(h) Neither do suits for annulment of sale, or title, or
document affecting property operate to abate
ejectment actions respecting the same property
[Salinas v. Navarro - annulment of deed of sale
with assumption of mortgage and/or to declare the
same an equitable mortgage (1983); Ang Ping v.
RTC - annulment of sale of title (1987); Caparros v.
C.A. - annulment of title (1989); Dante v. Sison annulment of sale with damages 174 SCRA 517;
Galgala v. Benguet Consolidated, Inc. - annulment
of document (1989)].
Lu v. Siapno (2000): Although immediately

executory, the judge should not order immediate
execution in his decision.
Kaw v. Anunciacion (1995): There must be notice of
the judgment and a motion with notice to the
adverse party.
PRELIMINARY INJUNCTION AND PRELIMINARY MANDATORY
INJUNCTION
Preliminary injunction
The court may grant preliminary injunction in
accordance with Rule 58 to prevent the defendant
from committing further acts of dispossession
against the plaintiff.
A possessor deprived of his possession may move for
a preliminary mandatory injunction within 5 days to
restore him in his possession of the property. The
court then shall decide the motion within 30 days
from the filing thereof. [Rule 70, Sec. 15]
RESOLVING DEFENSE OF OWNERSHIP
When ownership is raised as a defense, the court

may resolved the issue of ownership but only under
these conditions:
(a) When the issue of possession cannot be resolved
without resolving the issue of ownership; and
(b) The issue of ownership shall be resolved only to
determine the issue of possession [Rule 70, Sec.
16].
When the defendant asserts ownership over the
property, the inferior court is not divested of its
jurisdiction [Rural Bank of Sta. Ignacia, Inc v
Dimatulac (2003)]
HOW TO STAY THE IMMEDIATE EXECUTION OF JUDGMENT
General Rule: If judgment is rendered against a

defendant, execution shall issue immediately. [Rule
70, Sec. 19 and 70.21]
The judgment rendered in an action for forcible entry

or unlawful detainer shall be conclusive with respect
to the possession only, and it shall not in any way
affect the title or ownership of the land or building.
Hence, such judgment shall not bar an action
between the same parties with respect to the title of
the land or building. [Rule 70, Sec. 18]
Exception: Appeal has been duly perfected by the

defendant and bond has been posted.
Procedure for staying the execution of judgment:
(a) defendant perfects his appeal in due time;
(b) defendant files a sufficient supersedeas bond
approved by the Municipal Trial Court; and
(c) during the pendency of the appeal, he deposits
with the appellate court the amount of rent due
from time to time under the contract, if any, on or
before the 10th day of each succeeding month.
[Rule 70, Sec. 19]
Matters Not Constituting Prejudicial Question to

Ejectment [Arcal v. Court of Appeals (1998)]
(a) Injunction suits instituted in the RTC by
defendants in ejectment actions in the municipal
trial courts or other courts of the first level
[Nacorda v. Yatco (1996)] do not abate the latter,
and neither do proceedings on consignation of
rentals [Lim Si v. Lim (1956)]
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BUT upon motion of the plaintiff within 10 days from

the perfection of the appeal to the RTC, the court
may still issue a preliminary mandatory injunction to
restore the plaintiff in possession if the court is
satisfied that the defendants appeal is frivolous or
dilatory, or that the appeal of the plaintiff is prima
facie meritorious. [Rule 70, Sec. 20]
According to Nature
(a) Civil
(b) Criminal
PURPOSE AND NATURE OF EACH
Direct Contempt (Contempt In Facie Curiae)

A misbehavior committed in the presence of or so
near a court or judge so as to obstruct or interrupt
the proceedings before the same, including:
(a) disrespect toward the court
(b) offensive personalities toward others
(c) refusal to be sworn or to answer as a witness or to
subscribe an affidavit/deposition when lawfully
required to do so.
SUMMARY PROCEDURE, PROHIBITED PLEADINGS
Prohibited pleadings and motions [Rule 70, Sec. 13]:

(a) Motion to dismiss
Exceptions:
(1) Motion to dismiss based on lack of jurisdiction
over the subject matter
(2) Motion to dismiss for failure to comply with
section 12 (referral to Lupon for conciliation)
(b) Motion for a Bill of Particulars
(c) Motion for New Trial
(d) Motion for reconsideration of a judgment
(e) Motion for reopening of trial
(f) Petition for relief from judgment
(g) Motion for extension of time to file pleadings,
affidavits or other papers
(h) Memoranda
(i) Petition for Certiorari, Mandamus or Prohibition
court
(j) Motion to declare defendant in default
(k) Dilatory motions for postponement
(l) Reply
(m) Third-party complaints
(n) Interventions
It can be punished summarily without hearing. It is

conduct directed against or assailing the authority
and dignity of the court or a judge, or in the doing of
a forbidden act. [Encinas v. National Bookstore
(2005); Rule 71, Sec. 1]
Indirect Contempt (Constructive Contempt)
A misbehavior perpetrated outside of the sitting of
the court. [Patricio v. Suplico (1991)]
Acts of indirect contempt:
(a) Misbehavior of an officer of the court in the
performance of his official duties or in his official
transactions;
(b) Disobedience of or resistance to a lawful writ,
process, order, or judgment of a court, including
the act of a person who, after being dispossessed
or ejected from any real property by the judgment
or process of any court of competent jurisdiction,
enters or attempts to or induces another to enter
into or upon such real property, for the purpose of
executing acts of ownership or possession, or in
any manner disturbs the possession given to the
person adjudged to be entitled thereto;
(c) Any abuse of or any unlawful interference with
the processes or proceedings of a court not
constituting direct contempt;
(d) Any improper conduct tending, directly or
indirectly, to impede, obstruct or degrade the
administration of justice;
(e) Assuming to be an attorney or an officer of the
court, and acting as such without authority;
(f) Failure to obey a subpoena duly served;
(g) The rescue or attempted rescue, of a person or
property in the custody of an officer by virtue of
an order or process of a court held by him. [Rule
71, Sec. 3]
CONTEMPT
Definition
Contempt of court
Is a defiance of the authority, justice or dignity of the
court, such conduct as tends to bring the authority
and administration of the law into disrespect of, to
interfere with, or prejudice parties litigant or their
witnesses during litigation.
It is defined as a disobedience to the court by setting
up an opposition to its authority, justice and dignity.
It signifies not only a willful disregard or
disobedience to the courts order but such conduct
as tends to bring the authority of the court and the
administration of law into disrepute or in some
manner to impede the due administration of justice.
[Heirs of Trinidad de Leon Vda. de Ramos v. Court of
Appeals (2004)]
Two Aspects of Contempt Of Court

Civil Contempt is the failure to do something ordered
to be done by a court or a judge for the benefit of the
opposing party therein. [People v. Godoy, 1995];
KINDS OF CONTEMPT
According to the Manner of Commission

(a) Direct
(b) Indirect
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CIVIL PROCEDURE
remedial or compensatory in nature; instituted for

the benefit of private party.
Radio Phils Network v. Yap (2012):_To be considered

contemptuous, an act must be clearly contrary to or
prohibited by the order of the court or tribunal. A
person cannot, for disobedience, be punished for
contempt unless the act which is forbidden or
required to be done is clearly and exactly defined, so
that there can be no reasonable doubt or uncertainty
as to what specific act or thing is forbidden or
required.
Criminal Contempt is conduct directed against the

authority and dignity of a court or of a judge, as in
unlawfully assailing or discrediting the authority and
dignity of a court or a judge or in doing a forbidden
act [People v. Godoy, 1995]; punitive in nature, thus,
the proceedings are to be conducted in accordance
with the principles and rules applicable to criminal
cases [SEC v. Recto, 1999].
REMEDY AGAINST DIRECT CONTEMPT; PENALTY
SEC v. Recto (1999): The violation of a TRO issued by

the SEC or any quasi-judicial tribunal is criminal
contempt so that acquittal of the respondents is
unappealable.
REMEDY AGAINST INDIRECT CONTEMPT; PENALTY
Crucillo v. IAC (1999): A writ of execution issued by a

court after 5 years from entry of final judgment is
void, and disobedience thereto does not constitute
indirect contempt.
Procedure for Indirect Contempt

[Secs. 4-6]
Who
Court Motu Propio
Initiates
How it is By ORDER or any
initiated
WRITTEN CHARGE
requiring
respondent to show
cause
why
he
should not be held
in contempt.
HOW CONTEMPT PROCEEDINGS ARE COMMENCED
See Annex G.
Panado v. CA (1998): The power to declare a person

in contempt of court serves to protect and preserve
the dignity of the court, the solemnity of the
proceedings therein and the administration of
justice.
But this must be wielded sparingly. For this power
should be exercised on the preservative and not on
the vindictive principle.
Where it is
initiated
Only occasionally should the court invoke its inherent

power in order to retain that respect without which
the administration of justice must falter or fail.
Party
By a VERIFIED
PETITION with
supporting
particulars and
certified
true
copy
of
documents
or
papers involved
and
full
When the contempt iscompliance
directed against
with
an RTC or equivalentthe
or requirements
higher rank:
Same court
for
filing
When the contempt isinitiatory
directed against
a lower court:
pleadings
in
(a) RTC of the place ordinary
where the lower
civil
court is sitting; or actions.
(b) in same lower court subject to
appeal to higher court
If hearing is not immediately conducted,
respondent may be released upon filing
of BOND in the amount fixed by the
court.
Appeal may be taken in proper courts
as in criminal cases.
Execution of judgment shall not be
suspended even by appeal UNLESS
bond is filed conditioned upon the
performance by the respondent of that
judgment should it be decided against
him on appeal.
LandBank v. Listana (2003): Only the court which

rendered the order commanding the doing of a
certain act is vested with the right to determine
whether or not the order has been complied with, or
whether a sufficient reason has been given for noncompliance, and, therefore, whether a contempt has
been committed.
Hearing
and Bail
The power to determine the existence of contempt of

court rests exclusively with the court contemned. No
court is authorized to punish a contempt against
another.
Execution
of
Judgment
Quasi-judicial agencies that have the power to cite

persons for indirect contempt pursuant to Rule 71
can only do so by initiating them in the proper RTC. It
is not within their jurisdiction and competence to
decide the indirect contempt cases. These matters
are still within the province of the RTCs.
ACTS DEEMED PUNISHABLE AS INDIRECT CONTEMPT
Appeal
(a) Misbehavior of an officer of the court in the

performance of his official duties or in his official
transactions;
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(b) Disobedience of or resistance to a lawful writ,

process, order, or judgment of a court, including
the act of a person who, after being dispossessed
or ejected from any real property by the judgment
or process of any court of competent jurisdiction,
enters or attempts to or induces another to enter
into or upon such real property, for the purpose of
executing acts of ownership or possession, or in
any manner disturbs the possession given to the
person adjudged to be entitled thereto;
(c) Any abuse of or any unlawful interference with
the processes or proceedings of a court not
constituting direct contempt;
(d) Any improper conduct tending, directly or
indirectly, to impede, obstruct or degrade the
administration of justice;
(e) Assuming to be an attorney or an officer of the
court, and acting as such without authority;
(f) Failure to obey a subpoena duly served;
(g) The rescue or attempted rescue, of a person or
property in the custody of an officer by virtue of
an order or process of a court held by him. [Rule
71, Sec. 3]
administratrix of the property. The non-payment of

rentals, which is a civil debt, is covered by the
constitutional guarantee against imprisonment.
[Regalado]
CONTEMPT AGAINST QUASI-JUDICIAL BODIES
Rule 71 applies to contempt committed against

persons, entities, bodies or agencies exercising
quasi-judicial functions, or shall have suppletory
effect to such rules as they may have adopted
pursuant to authority granted to them by law to
punish for contempt.
Where to file: RTC of the place wherein the contempt
has been committed. [Rule 71, Sec. 12]
It is not within the jurisdiction and competence of
quasi-judicial bodies to decide indirect contempt
cases. The requirement for a verified petition must
also be complied with (e.g. DARAB has no power to
decide the contempt charge filed before it). [Land
Bank v Listana (2003)]
Rule 71, Sec. 12 confers contempt powers on all
Quasi-Judicial entities or supplements their rules,
unless the applicable law provides otherwise.
WHEN IMPRISONMENT SHALL BE IMPOSED
When the contempt consists in the refusal or

omission to do an act which is yet in the power of the
respondent to perform, he may be imprisoned by
order of the court concerned until he performs it.
[Rule 71, Sec. 8].
Acts or violations against quasi-judicial bodies

punishable as contempt: where a person, without
lawful excuse, fails to appear, make oath, give
testimony or produce documents when required to
do so by the official or body exercising such powers.
Other acts or violations cannot be punished as
contempt unless specifically defined in the governing
law as contempt of court or if it authorizes the quasijudicial body to punish for contempt, and providing
the corresponding penalty. [People v. Mendoza
(1953), 13, Ch. 3, Bk VII, Admin Code of 1987]
The respondent carried the keys to his prison in his

own pocket. [Galvez v. Republic Surety & Insurance
Co., Inc. (1959)]
Only the judge who ordered the confinement of the
person for contempt of court can issue the Order of
Release. [Inoturan v Limsiaco, Jr. (2005)]
Rule 71, Sec. 8 does not apply to tenants who refused
or failed to pay their rentals to the special
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ANNEX A
(1) Service on person associated in
an entity without juridical
personality [Rule 14, Sec. 8]
(2) Service upon minors and

incompetents [Rule 14, Sec. 10]
(3) Service upon prisoner [Rule 14,
Sec. 9]
(4) Service upon domestic private
juridical entity [Rule 14, Sec. 11]
(5) Service upon foreign private

juridical entity [Rule 14, Sec. 12]
(6) Service upon public corporations
[Rule 14, Sec. 13]
(7) Extraterritorial service [Rule 14,
Sec. 15]
(8) Service
upon
a
resident
temporarily
out
of
the
Philippines [Rule 14, Sec. 16]
(9) Service upon a defendant whose
identity or whereabouts are
unknown [Rule 14, Sec. 14]
CIVIL PROCEDURE
If sued under the name by which they are commonly known Serve upon
either:
(a) Any/all the defendants;
(b) Person in charge of the office
The service does not bind individually any person whose connection with the
entity was already severed before the service
Serve upon the minor/incompetent and on his legal guardian.
(a) If there is no guardian, plaintiff may apply for the appointment of a
guardian ad litem.
(b) If minor, may serve on his parents.
Serve upon the officer having management of the jail/prison
Serve upon either the:
(1) President
(2) Managing partner
(3) General manager
(4) Corporate secretary
(5) Treasurer
(6) In-house counsel
Serve upon the resident agent;
Otherwise, upon either:
(1) Government official designated by law;
(2) Any officer or agent of the corporation within the Philippines
If the defendant is the Republic of the Philippines Serve upon the OSG
If the defendant is a province/city/municipality or like public corporations
Serve upon the executive head or other officers as the law/court may direct
Requisites: (Asked in the 1997 and 2008 Bar Exam)
(1) Defendant does not reside or is not found in the Philippines;
(2) Action either:
(a) Affects the plaintiffs personal status;
(b) Relates to or the subject matter of which is property within the
Philippines in which defendant has a lien/interest;
(c) Demands a relief which consists wholly/partially in excluding the
defendant from any interest in any property within the Philippines;
(d) Has defendants property in the Philippines, attached.
Modes of service:
(1) With leave of court, serve outside the Philippines by personal service; or
(2) With leave of court, serve by publication in a newspaper of general
circulation, in which case copy of the summons and order of the court
must also be sent by registered mail to the defendants last known
address;
(3) Any other manner the court deems sufficient
The court order granting extraterritorial service shall specify a period of at
least 60 days within which the defendant must answer.
With leave of court, may serve extraterritorially
With leave of court, by publication in a newspaper of general circulation
PAGE 144
UP COLLEGE OF LAW
CIVIL PROCEDURE
ANNEX B
Subpoena Duces Tecum
OrdeffFor Production or Inspection
Nature
Process requiring a person to bring with him any Order any party to produce and permit the inspection
books, documents, documents, or other things under and copying or photographing, by or on behalf of the
his control or possession.
moving party,
(a) of any designated documents, papers, books,
accounts, letters, photographs, objects or tangible
things, not privileged,
(b) which constitute or contain evidence material to any
matter involved in the action and which are in his
possession, custody or control, or
Order any party to permit entry upon designated land
or other property in his possession or control for the
purpose of inspecting, measuring, surveying, or
photographing the property or any designated relevant
object or operation thereon.
To whom directed
To any person
Only to a party
When it may be asked
Only during trial
Before and/or during trial
Issued by whom
Issued by a court before whom the witness is required Issued by the court where the action is pending
to attend, or court where the deposition is to be taken
or clerk or body authorized by law or any justice of the
Supreme Court or CA in any case or investigation
pending within the Philippines
When issued
Issued upon request to the clerk (no notice)
Issued upon motion (application with notice to the other
party)
W/N it is necessary to show good cause
NO
YES
Grounds for quashal
unreasonable, oppressive, irrelevant, or
No good cause shown
the person in whose behalf the subpoena is issued
fails to advance the reasonable costs of the
production thereof
Consequence of disobedience
Constitutes contempt of the court from which the See Rule 29, Sec. 3
subpoena is issued
PAGE 145
UP COLLEGE OF LAW
CIVIL PROCEDURE
ANNEX C
Provision Highlights
Applicability
Section 1. REFUSAL TO ANSWER. If a party or other deponent refuses to

answer any question upon oral examination
(a) the examination may be completed on other matters or
(b) adjourned as the proponent of the question may prefer.
The proponent may thereafter apply (i.e., by MOTION FOR THE
ISSUANCE OF AN ORDER TO COMPEL AN ANSWER) to the proper court
of the place where the deposition is being taken, for an order to compel
an answer.
PARTY OR DEPONENT /WITNESS IN

(a) RULE 23 (depositions de bene
esse),
(b) RULE 24 (depositions in perpetua
rei memoriam)
(c) RULE 25. INTERROGATORIES TO
PARTIES
IF THE APPLICATION IS GRANTED

(a) the court shall require the refusing party or deponent to answer the
question or interrogatory, and
(b) if it also finds that the refusal to answer was without substantial
justification, it may require the refusing party or deponent or the
counsel advising the refusal, or both of them, to pay the proponent
the amount of the reasonable expenses incurred in obtaining the
order, including attorney's fees.
IF THE APPLICATION IS DENIED and the court finds that it was filed
without substantial justification, the court may require the proponent or
the counsel advising the filing of the application, or both of them, to pay
to the refusing party or deponent the amount of the reasonable expenses
incurred in opposing the application, including attorney's fees.
Section 2. Contempt of court. If a party or other witness
(a) refuses to BE SWORN OR
(b) refuses to answer any question
after being directed to do so by the court of the place in which the
deposition is being taken, the refusal may be considered a contempt of
that court.
Section 3. Other consequences. THE AGGRIEVED PARTY MAY APPLY
FOR:
An order
(a) that the matters regarding which the questions were asked, or the
character or description of the thing or land, or the contents of the
paper, or the physical or mental condition of the party,
(b) or any other designated facts shall be taken to be established for the
purposes of the action in accordance with the claim of the party
obtaining the order;
An order
(a) refusing to allow the disobedient party to support or oppose
designated claims or defenses or
(b) prohibiting him from introducing in evidence designated documents
or things or items of testimony, or
(c) from introducing evidence of physical or mental condition;
An order
(a) striking out pleadings or parts thereof, or
(b) staying further proceedings until the order is obeyed, or
(c) dismissing the action or proceeding or any part thereof, or
(d) rendering a judgment by default against the disobedient party; and
IN LIEU OF ANY OF THE FOREGOING ORDERS OR IN ADDITION
THERETO, an order directing the arrest of any party or agent of a party
for disobeying any of such orders except an order to submit to a physical
or mental examination.
PAGE 146
PARTY OR WITNESS IN
(a) RULE 23 (depositions de bene
esse),
(b) RULE 24 (depositions in perpetuam
rei memoriam)
PARTY or an OFFICER OR MANAGING
AGENT OF A PARTY in RULE 23, 24,
25 who refuses to obey an order made
under RULE 29 Section 1
PARTY who refuses to obey an order
under RULE 27 to produce any
document or other thing for inspection,
or to permit entry upon land
PARTY who refuses to obey an order
made under RULE 28 requiring him to
take a physical examination
(APPLIES TO all modes of discovery
except RULE 26 ON REQUEST FOR
ADMISSION BY AN ADVERSE PARTY)
UP COLLEGE OF LAW
CIVIL PROCEDURE
Provision Highlights
Applicability
Section 4. Expenses on refusal to admit.

If a party after being served with a request under Rule 26
(a) refuses to admit the genuineness of any document or the truth of any
matter of fact and
(b) serves a sworn denial thereof, and
(c) if the party requesting the admissions thereafter proves the
genuineness of such document or the truth of any such matter of fact
(d) he may apply to the court for an order requiring the other party to pay
him the reasonable expenses incurred in making such proof, including
attorney's fees.
PARTY SERVED WITH A REQUEST

RULE 26
ADMISSION BY AN
ADVERSE PARTY
Unless the court finds THAT THERE WERE GOOD REASONS FOR THE
DENIAL OR THAT ADMISSIONS SOUGHT WERE OF NO SUBSTANTIAL
IMPORTANCE, SUCH ORDER SHALL BE ISSUED.
SECTION 5. FAILURE OF PARTY TO ATTEND OR SERVE ANSWERS.
If a party or an officer or managing agent of a party
wilfully fails to appear before the officer who is to take his deposition,
after being served with a proper notice, or
fails to serve answers to interrogatories submitted under Rule 25 after
proper service of such interrogatories,
The court on motion and notice, may
strike out all or any part of any pleading of that party, or
dismiss the action or proceeding or any part thereof, or
enter a judgment by default against that party,
and in its discretion, order him to pay reasonable expenses incurred by
the other, including attorney's fees
SECTION 6. EXPENSES AGAINST THE REPUBLIC OF THE PHILIPPINES.
Expenses and attorney's fees are not to be imposed upon the Republic of
the Philippines under this Rule
PAGE 147
PARTY OR AN OFFICER OR
MANAGING AGENT OF A PARTY
RULE 23 (depositions de bene esse),
RULE 24 (depositions in perpetuam rei
memoriam)
RULE 25 INTERROGATORIES TO
PARTIES
Applies to all provisions in Rule 29

requiring a noncompliant party or
witness (who represents the Republic
in an official capacity) to pay.
UP COLLEGE OF LAW
CIVIL PROCEDURE
ANNEX D
JUDGMENT OR FINAL ORDER (order
that disposes of the action or proceeding)
If no appeal has been perfected, or the

period of appeal has expired
Prevailing Party applies (by motion) for a

writ of execution, whic h is granted by the
judge since it is a matter of right
If an appeal has been perfected and duly

resolv ed, there are two ways by whic h
execution can be carried out
Prevailing party files a

motion in the court of
origin,
submitting
therewith certified true
copies of the judgment or
judgments or final order
or orders sought to be
enforced and of the entry
thereof, with notice to
the adverse party1.
PAGE 148
The appellate court

may, on motion in the
same case, when the
interest of justice so
requires, direct the
court of origin to issue
the writ of execution.
UP COLLEGE OF LAW
CIVIL PROCEDURE
ANNEX E
Situation 1: Trial Court still has

jurisdiction over the case and is in
possession of either the original record
or the record on appeal, as the case
may be.
Situation 2: Trial court has lost

jurisdiction
In Situation1, prevailing party files a MOTION WITH

NOTICE TO THE ADVERSE PARTY in the Trial
Court. In Situation2, prevailing party files the motion
for execution pending appeal in the appellate court.
Discretionary execution may be

granted only for GOOD REASONS to
be stated in a SPECIAL ORDER.
NOTE HOWEVER that Discretionary execution may be stayed upon approval by the proper
court of a SUFFICIENT SUPERSEDEAS BOND FILED by the party against whom it is
directed, conditioned upon the performance of the judgment or order allowed to be executed
in case it shall be finally sustained in whole or in part. The bond thus given m ay be
proceeded against on motion with notice to the surety
IN CASE the judgment w hic h was executed pending appeal is reversed

totally or partially, or annulled, on appeal or otherwise, the trial court may, on
motion, issue such orders of restitution or reparation of dam ages as
equity and justice m ay w arrant under the circumstances
PAGE 149
UP COLLEGE OF LAW
CIVIL PROCEDURE
ANNEX F
Certiorari
(Asked In 2000 And 2006 Bar
Exams)
(a) When any tribunal, board or
officer exercising judicial or
quasi-judicial functions has
acted:
(1) without or in excess of its
jurisdiction; or
(2) with grave abuse of discretion
amounting to lack or excess
1
of its or his jurisdiction
(b) AND there is no appeal, or any
plain, speedy, and adequate
2
remedy in the ordinary course of
law. (Rule 65, Sec. 1)
To correct an act performed by the

respondent
Discretionary acts
Aggrieved person
Those exercising judicial or quasijudicial functions
(a) Verified
(b) alleging the facts with certainty
(c) PRAYER: that judgment be
rendered annulling or modifying
the proceedings of such tribunal,
etc., and granting such incidental
reliefs as law and justice may
require.
(d) accompanied by a certified true
copy of the subject judgment,
etc., copies of all relevant
pleadings and documents, and a
certification
of
non-forum
shopping.
Prohibition
Grounds
(a) When the proceedings of any
tribunal, corporation, board,
officer or person, whether
exercising
judicial,
quasijudicial, or ministerial functions,
are
(1) without or in excess of its or
his jurisdiction; or
(2) with grave abuse of discretion
amounting to lack or excess
of its or his jurisdiction
(b) AND there is no appeal or any
other plain, speedy, and
adequate remedy in the ordinary
course of law. (Rule 65, Sec. 2)
Purpose
To prevent the commission or
carrying out of an act
Act sought to be controlled
Discretionary and ministerial acts
Petitioner
Aggrieved person
3
Respondent
Those exercising judicial and/or
non-judicial functions
Form of petition
(a) verified
rendered commanding the
respondent to desist from
further proceedings in the action
or matter specified therein, or
otherwise
granting
such
incidental reliefs as law and
justice may require.
(d) accompanied by a certified true
copy of the subject judgment,
etc., copies of all relevant
pleadings and documents, and a
certification
of
non-forum
shopping.
Mandamus
(Asked In The 2006 Bar Exam)
(a) When any tribunal, corporation,
board, officer or person
(1) unlawfully
neglects
the
performance of an act which
the law specifically enjoins as
a duty resulting from an
office, trust or station; or
(2) unlawfully excludes another
from the use and enjoyment
of a right or office to which
such other is entitled
(b) AND there is no other plain,
speedy and adequate remedy in
the ordinary course of law. (Rule
65, Sec. 3)
To compel the performance of the
act desired
Ministerial acts
Aggrieved person
Those exercising judicial and/or
non-judicial functions
(a) verified
rendered
commanding
the
respondent, immediately or
some other time to be specified
by the court, to do the act
required to be done to protect
the rights of the petitioner, and
to pay the damages sustained by
the petitioner by reason of the
wrongful acts of the respondent.
(d) contains a certificate of nonforum shopping.
Without jurisdiction
Excess of jurisdiction
Grave abuse of discretion
If respondent does not have the legal power to determine the case
If respondent has the legal power to determine the case but oversteps such power
If respondent has the legal power to determine the case but acts in a capricious, whimsical, arbitrary or
despotic manner in the exercise of his judgment
A remedy is plain, speedy and adequate if it will promptly relieve the petitioner from the injurious effects of the judgment and the acts of the
lower court or agency. [Silvestre v. Torres (1946)]
3
When the petition filed relates to the acts or omissions of a judge, court, quasi-judicial agency, tribunal, corporation, board, officer or person,
the petitioner shall join, as private respondent or respondents with such public respondent or respondents, the person or persons interested in
sustaining the proceedings in the court; and it shall be the duty of such private respondents to appear and defend, both in his or their own
behalf and in behalf of the public respondent or respondents affected by the proceedings. xxx
If the case is elevated to a higher court by either party, the public respondents shall be included therein as nominal parties. However, unless
otherwise specifically directed by the court, they shall not appear or participate in the proceedings therein. [Rule 65, Sec. 5]
PAGE 150
UP COLLEGE OF LAW
CIVIL PROCEDURE
ANNEX G
Direct Contempt
Indirect Contempt
How Committed
Can be committed only in the presence of or so near a Can be committed anywhere as long as the acts
court or judge.
mentioned in Sec. 3 are done.
Nature of Proceedings
The person guilty of misbehavior is summarily adjudged The person guilty of misbehavior may be punished
by the court against which the contempt was only after charge in writing has been filed, and an
committed at the very moment of the perpetration.
opportunity given to the accused to be heard by himself
[Rule 71, Sec. 1]
or counsel [Rule 71, Sec. 3]
Punishment
If the contempt is directed against an RTC, a court of equivalent or higher rank:
FINE = not exceeding P2,000; or
IMPRISONMENT = not exceeding 10 days; or both
IMPRISONMENT = not exceeding 6 months; or both
If the contempt is directed against a lower court:
FINE = not exceeding P200; or
IMPRISONMENT = not exceeding 1 day; or both
IMPRISONMENT = not exceeding 1 month; or both
[Rule 71, Sec. 1]
[Rule 71, Sec. 7]
How proceedings commenced
Summarily adjudged by the court against which the (a) By the court motu propio thru an ORDER or any
contempt is directed and punished there and then.
formal charge
[Rule 71, Sec. 1]
(b) In all other cases, by a VERIFIED PETITION.
(If the contempt charges arose out of or are related to
a principal action pending in the court, the petition for
contempt shall allege that fact, but said petition shall
be docketed, heard and decided separately, unless the
court in its discretion orders the consolidation of the
contempt charge and the principal action for joint
hearing and decision.)
[Rule 71, Sec. 4]
Remedy
No appeal, but subject to certiorari or prohibition.
May be appealed to the proper court as in criminal
[Rule 71, Sec. 2]
cases, but execution shall not be suspended until
BOND is filed. [Rule 71, Sec. 11]
PAGE 151
UP COLLEGE OF LAW
EVIDENCE
PAGE 152
UP COLLEGE OF LAW
CRIMINAL PROCEDURE
General Matters
Jurisdiction Over the
Subject Matter
DISTINGUISH JURISDICTION OVER SUBJECT

MATTER FROM JURISDICTION OVER PERSON
OF THE ACCUSED
Conferred by law;
May be acquired by
Can never be acquired consent of the accused or
solely by consent of the by waiver of objections.
accused.
JURISDICTION OVER SUBJECT MATTER
The right to act or the power and authority to hear

and determine a cause [Gomez v. Montalban (548
SCRA 693)]
Right to object is never

waived
The absence of courts
jurisdiction
over
the
subject matter may be
raised at any stage of the
proceeding.
General Rule: It is conferred by law and

determined by the allegations of the complaint
[People v. Catalan (2012)]
Principle of adherence of jurisdiction/continuing
jurisdiction- Once a court acquires jurisdiction over a
controversy, it shall continue to exercise such
jurisdiction until the final determination of the case.
[Palana v. People (2007)]
Right to object may be

waived
Failure of the accused to
make objection in time
would constitute a waiver
of the objection.
REQUISITES FOR EXERCISE OF CRIMINAL

JURISDICTION
(1) SUBJECT MATTER JURISDICTION - WON the
court has jurisdiction over the offense by virtue of
the imposable penalty and its nature;
Exception: Where the succeeding statute expressly

provides, or is construed that it is intended to operate
to actions pending before its enactment [Palana v.
People (2007)]
(2) Jurisdiction over the PERSON of the accused;

(3) TERRITORIAL JURISDICTION - WON the action
has been filed within the TERRITORIAL
JURIDICTION of the court:
JURISDICTION OVER THE PERSON OF THE ACCUSED
Acquired either by [Antiporda vs Garchitorena (1999),

citing Arula vs Espino (1969)]:
(1) ARREST of accused; or
(2) VOLUNTARY APPEARANCE/SUBMISSION of
the accused to the jurisdiction of the court
Voluntary appearance of the accused
accomplished by:
(a) By filing pleadings seeking affirmative relief
Jurisdiction Over The

Person of the Accused
Refers to VENUE (see below) or the place where

the case is to be tried. The action should be
instituted and tried in the municipality or territory
where offense has been committed or where any
one of the essential ingredients thereof took
place. [Sec 15(a), Rule 110]
is
For transitory/ continuing offenses, the courts of

the territories where the essential ingredients of
the crime took place have concurrent jurisdiction.
The first court taking cognizance of the case will
exclude the others [People vs Grospe (1988)].
Exception: Special appearance to challenge the

jurisdiction of the court over the person is not
voluntary submission [Garcia v. Sandiganbayan
(2009)];
(b) By giving Bail
JURISDICTION OF CRIMINAL COURTS
CRIMINAL JURISDICTION OF COURTS
MTC/MeTC/MCTC
RTC
SANDIGANBAYAN
(1) Exclusive original jurisdiction over

all violations of city/municipal
ordinances committed within their
respective territorial jurisdiction.
[Sec. 32(1), BP 129]
all offenses punishable with
(1) Exclusive original jurisdiction in

all criminal cases not within the
exclusive jurisdiction of any
court/tribunal/body. [Sec. 20, BP
129]
(2) Exclusive appellate jurisdiction
over all cases decided by the
(1) Exclusive original jurisdiction

in those cases expressly
enumerated in PD 1606, as
amended by RA 8249:
violations of RA 3019, RA 1379,
and Chapter II, Section 2, Title
VII, Book II of the RPC
PAGE 153
UP COLLEGE OF LAW
CRIMINAL PROCEDURE
MTC/MeTC/MCTC
RTC
imprisonment not exceeding 6

years irrespective of the amount of
fine, and regardless of other
imposable accessory or other
penalties, including the civil
liability arising from such offenses
or predicated thereon, irrespective
of kind, nature, value, or amount
thereof. [Sec. 32(2), BP 129]
offenses involving damage to
property
through
criminal
negligence they shall have
exclusive original jurisdiction
thereof. [Sec. 32(2), BP 129; RA
7691]
MTC
within
its
territorial
jurisdiction [Sec. 22, BP 129]
(3) Criminal cases where one or
more of the accused is below 18
years of age but not less than 15
years, or where one or more of
the victims is a minor at the time
of the commission of the offense
[RA 9344]
(4) Cases against minors cognizable
under the Dangerous Drugs Act,
as amended [RA 8369, Family
Courts Act of 1997]
(5) Violations of Republic Act No.
7610, the Child Abuse Act.
(6) Cases of domestic violence
against women and children. If
an act committed against women
and children likewise constitute a
criminal offense, the accused or
batterer shall be subject to
criminal proceedings and the
corresponding penalties. [RA
8369, Family Courts Act of 1997]
(7) Violations of
intellectual
property rights [A.M. No. 03-0303-SC (2003); RA 8293]
(8) Money Laundering Cases [RA
9160]
Exception: those committed by
public officers and private
persons who are in conspiracy
with such public officers shall be
under the jurisdiction of the
Sandiganbayan
Exception (for Nos. 1-3): Cases falling

within the exclusive jurisdiction of the
RTC and of the Sandiganbayan
(4) Cases classified under the Revised
Rules on Summary Procedure: [SC
Resolution, October 15, 1991]
(a) Violations of traffic laws/rules/
regulations;
(b) Violations of rental law;
(c) Cases where the penalty
prescribed by law for the
offense
charged
is
imprisonment not exceeding 6
months, or a fine not exceeding
P1,000, or both, irrespective of
other imposable penalties,
accessory or otherwise, or of
the civil liability arising
therefrom
(d) Offenses involving damage to
property through criminal
negligence(imposable
fine
does not exceed P10,000)
(5) Violations of BP 22 [A.M. No. 0011-01-SC (2003)]
(6) Special jurisdiction to decide on
applications for bail in criminal
cases in the absence of all RTC
judges in a province or city [Sec.
35, BP 129]
SANDIGANBAYAN
Officials enumerated are the ff:
(a) Officials of the executive
branch
occupying
the
positions of regional director
and
higher,
otherwise
classified as Grade '27' and
higher, of the Compensation
and Position Classification
Act of 1989 (RA 6758)
(b) Members of Congress and
officials thereof classified as
Grade'27'and up under the
Compensation and Position
Classification Act of 1989
(c) Members of the judiciary
without prejudice to the
provisions of the Constitution
(d) Chairmen and members of
Constitutional Commissions,
without prejudice to the
provisions of the Constitution
(e) All other national and local
officials classified as Grade
27
(2) Other offenses or felonies
whether simple or complexed
with other crimes committed
by public officials and
employees in relation to their
office
Requisites:
(a) Accused is any one of the
public officials enumerated
in subsection (a) of Sec. 4 of
RA 8249, grade 27 or higher
(b) Accused commits any other
offense or felony, than those
specified in subsec. (a),
whether
simple
or
complexed
with
other
crimes
(c) The offender commits such
other offense or felony in
relation to his office
(3) Cases filed in pursuant to and
in connection with EO 1, 2, 14,
14-A, issued in 1986
PAGE 154
UP COLLEGE OF LAW
CRIMINAL PROCEDURE
General rule: Ordinary courts will have jurisdiction

over cases involving members of the armed forces,
and other persons subject to military law, regardless
of who the co-accused or victims are.
In People v. Pangilinan, G.R No. 152662, June 13,

2012, the Court made a pronouncement to the effect
that there is no more distinction between cases
under the RPC and those covered by special laws
with respect to the interruption of the period of
prescription.
Exception: When the offense is service-oriented, then

it will be tried by the court martial. PROVIDED: the
President may, in the interest of justice, order/direct
at any time before arraignment that any such
crimes/offenses be tried by the proper civil courts
WHO MAY FILE THEM, CRIMES THAT CANNOT

BE PROSECUTED DE OFFICIO (BAR 1990, 2000)
MILITARY COURTS
CASES THAT CANNOT BE PROSECUTED DE OFICIO
(1) Adultery/concubinage [Sec. 5, Rule 110]

(2) Seduction, abduction, acts of lasciviousness
(3) Defamation which consists of imputation of any
of the foregoing offenses.
Prosecution of Offenses
CRIMINAL ACTIONS, HOW INSTITUTED (BAR
1999)
WHO MAY FILE A COMPLAINT?
(1) Adultery and concubinage The offended spouse.

Both guilty parties should be included if both are
alive. [Sec 5, Rule 110] However, prosecution will not
prosper if the offended party consented to the
offense.
(2) Seduction, abduction and acts of lasciviousness
The offended party or her parents, grandparents, or
guardian, nor, in any case, if the offender has been
expressly pardoned by them. [Sec 5, Rule 110]
General rule: If the offended party is a
MINOR, he or she has the right to initiate
the prosecution of such offenses
independently
of
his/her
parents,
grandparents, or guardians
Exceptions: If the minor is:
(a) Incompetent, or
(b) Incapable of doing so
(3) Oral defamation can only be brought upon
instance and upon complaint of the offended party.
IN GENERAL
A criminal action is commenced by the filing of a

complaint or information. The complaint may be
filed either with the MTC or with a public prosecutor
for purposes of conducting a preliminary
investigation.
INSTITUTION AND COMMENCEMENT OF ACTIONS
The criminal action is commenced when the

complaint or information is filed in court
For offenses which require a preliminary
investigation (Section 1 of Rule 112: where the penalty
prescribed by law is at least four years, two months
and one day), the criminal action is instituted by
filing the complaint with the appropriate officer for
PI. [Sec. 1(a), Rule 110]
For all other offenses, or in offenses cognizable by
inferior courts (Municipal Trial Courts or Municipal
Circuit Trial Courts), the complaint or information is
filed directly with said courts or the complaint is filed
with the fiscal. [Sec. 1(b), Rule 110]
EFFECT OF:
DEATH OF OFFENDED PARTY
Death after filing the complaint would not deprive

the court of the jurisdiction.
The State shall initiate the action on behalf of the
offended party in case of his death/incapacity AND
he has no known parents/grandparents/ guardians.
In Metropolitan Manila and other chartered cities,

the complaint shall be filed with the office of the
public prosecutor unless otherwise provided in their
charters. [Sec. 1(b), Rule 110]
In adultery/concubinage, death does not extinguish

the criminal liability of accused.
EFFECT OF THE INSTITUTION OF CRIMINAL ACTION ON THE

PRESCRIPTIVE PERIOD (BAR 1993)
DESISTANCE BY OFFENDED PARTY
It does not bar the People of the Philippines from

prosecuting the criminal action, but it operates as a
waiver of the right to pursue civil indemnity.
General Rule: The institution of a criminal action shall

interrupt the running of the period of prescription of
the offense charged unless otherwise provided in
special laws. [Sec. 1, Rule 110]
PARDON BY OFFENDED PARTY
(a) In rape, seduction, abduction and acts of

lasciviousness of a minor The pardon will be
PAGE 155
UP COLLEGE OF LAW
CRIMINAL PROCEDURE
effective if given by both parents and the

offended party.
(b) In seduction, abduction and acts of lasciviousness
(4) The acts of the officer are without or in excess of

authority;
(5) The prosecutions is under an invalid
law/ordinance/regulation;
(6) When double jeopardy is clearly apparent;
(7) The court has no jurisdiction over the offense;
(8) A case of persecution rather than prosecution;
(9) The charges are manifestly false and motivated
by the lust for vengeance;
(10) There is clearly no prima facie case against the
accused and MTQ on that ground has been
denied; [Samson vs Guingona (2000)]
(11) Preliminary injunction has been issued by the SC
to prevent the threatened unlawful arrest of
petitioners.
Express pardon by the offended party, parents,

grandparents or guardian will prevent
prosecution. [Rule 110, Sec. 5]
(c) The parents/grandparents/guardian of the
offended minor (in that order) cannot extend a
valid pardon without conformity of the offended
party, even if the latter is a minor. [US v. Luna
(1902)]
(d) If the offended woman is of age and not
incapacitated, only she can extend a valid
pardon which would absolve the offender.
CONTROL OF PROSECUTION
General Rule: All criminal actions commenced by a
complaint or information shall be prosecuted under
the DIRECTION and CONTROL of the prosecutor.
[Sec. 5, Rule 110]
General rule: Pardon must be made before the filing

of the criminal complaint in court.
Exception: In rape, where marriage between the
offender and the offended party would be effective
as pardon even when the offender has already
commenced serving his sentence.
Exception: In case of heavy work schedule of the

public prosecutor OR in the event of lack of public
prosecutors,
If there is more than one accused, the pardon must

be extended to all offenders.
The private prosecutor may be authorized in writing

by the Chief of the Prosecution Office or the Regional
State Prosecutor to prosecute the case SUBJECT to
the approval of the court.
Pardon or desistance extinguishes civil liability.

Pardon or express condonation has the effect of
waiving the civil liability with regard to the interest of
the injured party. Liability arising from an offense is
extinguished in the same manner as other
obligations.
Pardon
However, the criminal action is still prosecuted under

the direction and control of the public prosecutor.
[Riano]
EXTENT OF THE PROSECUTORS CONTROL
PRIOR TO THE FILING OF THE CASE
Consent
Refers to past acts
Refers to future acts
In order to absolve the

accused from liability, it
must be extended to both
offenders
In order to absolve the

accused from liability, it is
sufficient even if granted
only to the offending
spouse
Matters within the control and supervision of the

prosecutor:
(1) What case to file
(2) Whom to prosecute
(3) Manner of prosecution
(4) Right to withdraw information before
arraignment even without notice and hearing
AFTER A CASE IS FILED
CRIMINAL ACTIONS, WHEN ENJOINED

General rule: The prosecution of a criminal case may
not be enjoined by prohibition/injunction. [Domingo
v. Sandiganbayan, 1986]
It is the prosecutors duty to proceed with the

presentation of his evidence.
The prosecutor has no power to dismiss the action
without the courts consent.
Exceptions (Bar 1999):

(1) To afford protection to the constitutional rights of
the accused;
(2) Necessary for the orderly administration for
justice or to avoid multiplicity of actions;
(3) There is a prejudicial question which is sub judice;
LIMITATIONS OF CONTROL BY THE COURT
(1) Prosecution is entitled to notice of hearing

(2) Court must await for petition for review
(maximum of 60 days)
(3) Prosecutions stand to maintain prosecution
should be respected by the court
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(4) The court must make its own independent

assessment of evidence in granting or dismissing
motion to dismiss. Otherwise, the judgment is
void.
information before arraignment, otherwise he is

deemed to have waived his objections to such a
defect. [People v. Teodoro (2009)]
DESIGNATION OF OFFENSE
Aver the acts and omissions constituting the offense.
Specify
the
qualifying
and
aggravating
circumstances [Sec. 8 and 9,Rule 110)](Bar 2001)
EFFECTS OF THE LACK OF INTERVENTION BY THE FISCAL IN

THE TRIAL
Although the private prosecutor had previously been

authorized by the special counsel to present the
evidence for the prosecution, in view of the absence
of the City Fiscal at the hearing, it cannot be said
that the prosecution of the case was under the
control of the City Fiscal. It follows that the evidence
presented by the private prosecutor at said hearing
could not be considered as evidence for the plaintiff
[People v. Beriales, (1976)].
This is a procedural requirement to safeguard the

right of the accused to be informed of the nature and
cause of the accusation against him.
SUFFICIENCY OF COMPLAINT OR INFORMATION
Specific acts of accused do not have to be described

in detail in the information, as it is enough that the
offense be described with sufficient particularity to
make sure the accused fully understands what he is
being charged with. [Guy v. People (2009)]
COMPLAINT DEFINED
CAUSE OF THE ACCUSATION
A sworn written statement charging a person with an

offense, subscribed by the offended party, any peace
officer or other public officer charged with the
enforcement of the law violated. [Sec. 3, Rule 110]
WHAT TO ALLEGE
Where the law prescribes exceptions

General rule: Where the law alleged to have been
violated prohibits generally acts therein defined AND
is intended to apply to all persons indiscriminately,
BUT prescribes certain limitations/exceptions from
its violation, the indictment/information is sufficient
if it alleges facts which the offender did as
constituting a violation of law, without explicitly
negating the exception, as the exception is a matter
of defense which the accused has to prove.
INFORMATION DEFINED
An accusation in writing, charging a person with an

offense, subscribed by the prosecutor and filed with
the court. [Sec. 4, Rule 110; People vs Cinco (2009)]
FORM & SUBSTANCE
Sufficiency of complaint or information

A complaint or information is sufficient if it states:
(1) the name of the accused;
(2) the designation of the offense given by the
statute;
(3) the acts or omissions complained of as
constituting the offense;
(4) the name of the offended party;
(5) the approximate date of the commission of the
offense; and
(6) the place where the offense was committed. [Sec.
6, Rule 110]
Exception: Where the statute alleged to have been

violated applies only to specific classes of persons
and special conditions and the exemptions from its
violation are so incorporated in the language
defining the crime that the ingredients of the offense
cannot be accurately and clearly set forth if the
exemption is omitted, then the indictment must
show that the accused does not fall within the
exemptions.
Qualifying and aggravating circumstances must be
alleged; otherwise, they are not to be considered even
if proven during the trial. [Sec. 8, Rule 110]
Test for sufficiency of the complaint or information is

whether the crime is described in intelligible terms
with such particularity as to apprise the accused with
reasonable certainty of the offense charged. [Lazarte,
Jr. vs Sandiganbayan (2009)]
Where exceptions form as ingredients of offense

If the exception is needed for defining the offense,
then the information should negate the exception.
[US vs Chan Toco (1908)]
An accused is deemed to have waived his right to

assail the sufficiency of the information when he
voluntarily entered a plea when arraigned and
participated in the trial. [Frias v. People (2007)]
Where complex crime is charged

Where what is alleged in the information is a
complex crime and the evidence fails to support the
charge as to one of the component offenses, the
Consequently, objections as to form cannot be made

for the first time on appeal. The accused should have
moved for a bill of particulars or for quashal of
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CRIMINAL PROCEDURE
defendant can only be convicted of the offense

proven.
AMENDMENT
OR
SUBSTITUTION
OF
COMPLAINT OR INFORMATION [SEC. 14, RULE
110] (BAR 2001, 2002)
DUPLICITY OF THE OFFENSE; EXCEPTION (BAR

2005)
AMENDMENTS IN FORM AND SUBSTANCE BEFORE PLEA
General rule: It must be made BEFORE the accused

enters his plea.
in an information or complaint
means the joinder of two or more separate and
distinct offenses in one and the same information or
complaint.
DUPLICITY OF OFFENSE
Exception: If the amendment downgrades the nature

of the offense charged in, or excludes any accused
from, the complaint/information, it can be made
only upon motion of the prosecutor, with notice to
the offended party and with leave of court. The court
is mandated to state its reasons in resolving the
motion of the prosecutor and to furnish all parties,
especially the offended party, of copies of its order.
General rule: The information must charge only one

offense.[Sec. 13, Rule 110]
Objection to a complaint or information which
charges more than one offense must be timely
interposed before trial. [Sec 3, Rule 120] Failure to do
so constitutes a waiver, [People v Tabio (2008)] and
the court may convict him of as many offenses as are
charged and proved, and impose on him the penalty
for each offense. [Sec 3, Rule 120]
AMENDMENTS MADE AFTER PLEA AND DURING TRIAL
Formal can only be made under two conditions

(1) Leave of court must be secured
(2) It does not cause prejudice to the rights of the
accused. [Sec 14, Rule 110] The test as to WON a
defendant is prejudiced by the amendment of
information is:
(a) WON a defense under the information as it
originally stood would be available after the
amendment is made, and
(b) WON any evidence defendant might have
would be equally applicable to the
information in the one form as in the other.
[People vs Casey (1981)]
(c) An amendment is only in form
Exception: When the law prescribes a single

punishment for various offenses
Remedy: The filing of a motion to quash is the
remedy in case of duplicity of offense in an
information
Waiver: Should there be duplicity of offense in the
information, the accused must move for the quashal
of the same before arraignment.Otherwise, he is
deemed to have waived the objection
SEVERAL MODES
DUPLICITOUS
OF
COMMITTING
OFFENSE
Substantial proscribed. [People vs. Zulueta (1951)]

Substantial matter in a complaint is the recital of
facts constituting the offense charged and
determinative of the jurisdiction of the court. All
other matters are merely of form. [Almeda vs Villaluz
(1975)]
NOT
General rule: In case of crimes susceptible of being

committed in various modes, the allegations in the
information of the various ways of committing the
offense would be regarded as a description of only
one offense and information is not rendered
defective.
Exception: if it is beneficial to the accused. [Ricarzevs

CA (2007)]
Substitution a complaint or information may be
substituted if it appears at any time before judgment
that a mistake has been made in charging the proper
offense, the court shall dismiss the original
complaint or information upon the filing of a new
one charging the proper offense, provided the
accused would not be placed in double jeopardy.
[Sec 14, Rule 110]
Exceptions:
(a) Complex crimes
(b) Special complex crimes
(c) Continuous crimes
(d) Crimes susceptible of being committed in various
modes
(e) Crimes which another offense is an ingredient
[People v. Camerino (1960)]
Subject to the Sec 19, Rule 119, when it becomes

manifest at any time before judgment that a mistake
has been made in charging the proper offense and
the accused cannot be convicted of the offense
charged or any other offense necessarily included
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CRIMINAL PROCEDURE
therein, the accused shall not be discharged if there

appears good cause to detain him. The court shall
commit the accused to answer the proper offense
and dismiss the original case upon the filing of the
proper information.
General Rule: Principle of Territoriality

Subject to existing laws, in all criminal prosecutions,
the action must be instituted and tried in the courts
of the municipality or territory where the offense was
committed or any of its essential ingredients
occurred (Sec. 15(a), Rule 110).
Limitations:
(1) No judgment has yet been rendered
(2) The accused cannot be convicted of the offense
charged or of any other offense necessarily
included therein
(3) The accused would not be placed in double
jeopardy
Exceptions:
Felony
Formal or
changes
Committed on a railroad
train, aircraft, or any other
public or private vehicle in
the court of its trip
Substitution
Substantial Substantial change form

original
Can be effected without Must be with leave of

leave of court
court
May be instituted and

tried in the court of any
municipality or territory
where such train, aircraft,
or other vehicle passed
during such trip, including
place of departure and
arrival
Committed on board a May be instated and tried

vessel in the course of its in the proper court of the
voyage
first port of entry or of any
municipality or territory
through which vessel
passed, subject to the
generally
accepted
principles of international
law
Only as to form, there is Another PI is entailed and

no need for another PI accused has to plead
and retaking of plea
anew
Amended
information
refers to the same offense
charged in the original
information or to an
offense which is included
in the original charge; can
invoke double jeopardy
Venue
Felonies under Art. 2, RPC Cognizable by the proper

court where criminal
action was first filed
Distinction between substitution and amendment (Bar

1994)
Amendment
Involves
a
different
offense which does not
include those provided in
the
original
charge;
cannot invoke double
jeopardy
VENUE OF CRIMINAL ACTIONS

Place where action is to be instituted
Criminal actions shall be instituted and tried in the
court of the municipality or territory
(1) where the offense was committed; or
(2) where any of its essential ingredients occurred.
[Sec. 15(a), Rule 110]
Piracy
Venue of piracy has not

territorial limits. It may be
tried anywhere. [People v.
Lol-lo GR No. 17958,
February 27, 1922]
Libel
May be instituted at the

election of the offended
part or suing party in the
province or city, subject to
Art. 360, RPC
In cases filed under BP 22 Action shall be filed in the

place where the check
was dishonored or issued.
In case of a cross-check, in
the
place
of
the
depositary or collecting
bank
Venue is jurisdictional
The court has no jurisdiction to try an offense
committed outside its territorial jurisdiction. It
cannot be waived, or changed by agreement of the
parties, or by the consent of the defendant.
How venue or jurisdiction determined
Venue in criminal cases is jurisdictional.
One cannot be held to answer for any crime
committed by him except in the jurisdiction where it
was committed or where an essential ingredient
thereof took place. The place where the accused was
arrested is of no moment. [People vs Enriquez]
In
exceptional To ensure a fair trial and
circumstances
impartial inquiry, the SC
shall have the power to
order a change of venue
or place of trial to avoid
miscarriage of justice
(Sec. 5(4), Art. VII, 1987
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UP COLLEGE OF LAW
CRIMINAL PROCEDURE
Felony
made before the prosecution starts presenting its

evidence and under circumstances affording the
offended party a reasonable opportunity to make
such reservation [Sec. 1, Rule 111]
Venue
Constitution)
INTERVENTION OF OFFENDED PARTY [SEC. 16,

RULE 110]
General rule: An offended party has the right to
intervene in the prosecution of a crime
SEPARATE ACTION FILED BY THE ACCUSED
No counterclaim, cross-claim or 3rd-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 litigated in a separate civil
action. [Sec. 1, Rule 111]
Note: This is still subject to the control of the

prosecutor. [Phil. Rabbit Bus Lines vs People (2004)]
WHEN SEPARATE CIVIL ACTION IS SUSPENDED
Exceptions:
(1) Where, from the nature of the crime and the law
defining and punishing it, no civil liability arises in
favor of a private offended party.
(2) Where, from the nature of the offense, the private
offended party is entitled to civil indemnity arising
therefrom but he has waived the same or has
expressly reserved his right to institute a separate
civil action or he has already instituted such
action.
(3) Offended party has already instituted action for
civil claims
After the criminal action has been commenced, the

separate civil action arising therefrom cannot be
instituted until final judgment has been entered in
the criminal action. [Sec 2, Rule 111]
The civil action, which should be suspended after the
institution of the criminal action, is that arising from
delict or crime.
Civil actions under Arts. 32-34 and 2176 of the Civil
Code are exempted from the rule that after a
criminal action has been commenced, the civil action
which has been reserved cannot be instituted until
final judgment has been rendered in the criminal
action. [Sec. 3, Rule 111]
Prosecution of Civil Action

HOW INSTITUTED
EFFECT OF THE DEATH OF ACCUSED OR

CONVICT ON CIVIL ACTION [SEC. 4, RULE 111]
(1) Criminal liability is extinguished [Art. 89, RPC]
(2) As regards civil liability:
General rule: The civil action for the recovery of civil

liability arising from the offense charged is deemed
instituted with the criminal action. [Sec. 1, Rule 111]
Death is before arraignment: Dismissal of case

without prejudice to filing of civil action against
estate of the deceased
Exception [Sec. 1, Rule 111]: If the offended party:

(1) Waives the civil action;
(2) Institutes the civil action prior to the criminal
action; or
(3) Reserves the right to institute it separately
Death is after arraignment and during pendency of

criminal action: Extinguishes civil liability arising
from the delict
RULE ON IMPLIED INSTITUTION OF CIVIL

ACTION WITH CRIMINAL ACTION
WHEN
CIVIL
ACTION
INDEPENDENTLY
MAY
Death during pendency of appeal: Criminal liability

and civil liability based thereon [People vs Ayochok
(2010)]
PROCEED
Exception: Independent civil actions instituted under

Arts. 32, 33, 34 and 2176 of the Civil Code, or those
instituted to enforce liability arising from other
sources of obligation may be continued against the
estate or legal representative of the accused after
proper substitution or against his estate.
Under the Rules, only civil liability ARISING FROM

the crime charged is deemed instituted, hence, the
civil actions under the Civil Code, specifically Arts.
32, 33, 34, and 2176, remain separate, distinct, and
independent of any criminal prosecution although
based on the same act. [Philippine Rabbit Bus Lines
Inc. v. People (2004)]
When reservation is made: The reservation of the
right to institute separately the civil action shall be
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As regards the parties in the civil action:

The heirs of the accused may be substituted without
requiring
the
appointment
of
an
executor/administrator.
RULE ON FILING FEES IN CIVIL ACTION DEEMED

INSTITUTED WITH THE CRIMINAL ACTION
Court may appoint guardian ad litem for the minors.

Court shall order legal representative/s to appear
and be substituted within 30 days from notice.
Filing fees apply when damages are being claimed

by the offended party.
FILING FEES OF CIVIL ACTION DEEMED INSTITUTED IN

CRIMINAL ACTION
General Rule: The actual damages claimed or

recovered by the offended party are not included in
the computation of the filing fees. [Sec. 1, Rule 111]
PREJUDICIAL QUESTION (1999 BAR) [SECS. 6

AND 7, RULE 111]
When the amount of damages, other than actual, is

specified in the complaint or information filed in
court, then the corresponding filing fees shall be
paid by the offended party upon the filing thereof in
court for trial;
ELEMENTS OF PREJUDICIAL QUESTION
Prejudicial Question: is that which arises in a case the

resolution of which is a logical antecedent of the issue
involved therein, and the cognizance of which
pertains to another tribunal.
When a civil action may be considered prejudicial:
(a) the civil case involves facts intimately related to
those upon which the criminal prosecution would
be based;
(b) in the resolution of the issue/s raised in the civil
action, the guilt/innocence of the accused would
necessarily be determined;
(c) jurisdiction to try the action is lodged in another
tribunal [Basis of a) to c): Magestrado v. People
(2009)]
(d) Action is instituted prior to the institution of the
criminal action [Pimentel v. Pimentel (2010)]
In any other casei.e., when the amount of damages

is not so alleged in the complaint or information filed
in court, the corresponding filing fees need not be
paid and shall simply constitute a first lien on the
judgment, except on an award for actual damages.
[General vs Claravall (1991)]
Exceptions: In criminal actions for violation of BP22,
the amount of the check involved shall be considered
as the actual damages for which no separate civil
action is allowed. In estafa cases, the filing fees shall
be paid based on the amount involved. [A.M. No. 042-04]
Rationale: to avoid two conflicting decisions in the

civil case and in the criminal case. [Sy Thiong Siou vs
Sy Chim (2009)]
When paid: Upon the filing of the criminal action
EFFECT (BAR 1995, 1999, 2010)
General rule: Where both a civil and a criminal case

arising from the same facts are filed in court, the
criminal case takes precedence [Sec 2, Rule 111]
Preliminary Investigation
Exception: If there exists a prejudicial question which

should be resolved first before an action could be
taken in the criminal case.
PRELIMINARY INVESTIGATION, DEFINED
NATURE OF RIGHT
It is an inquiry or proceeding to determine whether
there is sufficient ground to engender a wellfounded belief that a crime has been committed and
the respondent is probably guilty thereof, and should
be held for trial. [Sec. 1, Rule 112]
WHERE TO FILE PETITION FOR SUSPENSION IS FILED [SEC.

6, RULE 111]
Office of the prosecutor (in the PI stage);

Court conducting the PI; or
Court where criminal action has been filed for trial, at
any time before the prosecution rests.
NATURE OF THE RIGHT TO PRELIMINARY INVESTIGATION
It is a statutory right in those instances where it is

required, and to withhold it would violate the
constitutional right to due process. [People vs.
Oandasa (1968)]
Note: The Rule precludes a motu proprio suspension

of the civil action. [Riano]
Not a mere formal or technical right but a substantial

right.
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CRIMINAL PROCEDURE
protect the state from useless and expensive trials.

[Tandoc vs. Resultan (1989)]
RIGHT TO PRELIMINARY INVESTIGATION
The right to preliminary investigation is a personal

right which the accused may waive either expressly or
by implication.
SCOPE OF PI
A PI is merely inquisitorial, and it is often the only
means of discovering the persons who may
reasonably be charged with a crime, to enable the
prosecutor to prepare his complaint or information.
It is not a trial of the case on the merits and does
not place the persons against whom it is taken in
jeopardy.
When the accused waives his right to preliminary

investigation, the fiscal may forthwith file the
corresponding information with the proper court.
[People vs Perez (1960)]
An application for or admission to bail shall not bar
the accused from assailing the regularity or
questioning the absence of a preliminary
investigation of the charge against him provided that
he raises the challenge before entering his plea [Sec.
26, Rule 114].
INSTANCES WHEREIN THE RIGHT TO
WAIVED:
WHO MAY CONDUCT DETERMINATION OF

EXISTENCE OF PROBABLE CAUSE
Probable cause
The existence of such facts and circumstances as
would excite the belief, in a reasonable mind, acting
on the facts within the knowledge of the prosecutor,
that the person charged was guilty of the crime for
which he was prosecuted
PI IS DEEMED
(1) Express waiver or by silence [Herrera, Vol. IV, p.

278, 2007 ed.]
(2) Failure to invoke it during arraignment [People v.
De Asis, GR No. 105581, Dec. 7, 1993]; and
(3) Consenting to be arraigned and entering a plea of
not guilty without invoking the right to PI [People
v. Bulosan, GR No. 58404, April 15, 1988]
Generally [Rule 112, Sec. 2 as amended by A.M. No.

05-8-26-SC]
1) Provincial/city prosecutors and their assistants;
2) National and regional state prosecutors;
3) Other officers as may be authorized by law.
The waiver, whether express or implied, must be in a

clear and unequivocal manner [Herrera, Vol. IV, p.278,
2007 ed.]
The prosecutor
If the determination of probable cause is for
purposes of indictment; such finding will not be
disturbed by the court unless there is finding of grave
abuse of discretion
The right to PI cannot be raised for the first time on

appeal [Pilapil v. Sandiganbayan, GR No. 101978,
April 7, 1993]
INSTANCES WHEREIN THE RIGHT TO
WAIVED:
The Court
If the determination of probable cause is for
purposes of issuance of warrant of arrest
PI IS NOT DEEMED
(1) Failure to appear before the prosecutor during the

clarificatory hearing or when summoned,w hen the
right was invoked at the start of the proceeding
[Larranaga v. CA, GR No. 130644, March 13, 1998];
or
(2) When the accused filed an application for bail
and was arraigned over his objection and the
accused demand that preliminary investigation be
conducted [Go v. CA, GR No. 101837, Feb. 11, 1992]
COMELEC, when vested

COMELEC may conduct investigation as regards
election offenses. [Sec. 2(6), Art. IX-C, Consti; Sec.
265, Omnibus Election Code]
PURPOSES OF PRELIMINARY INVESTIGATION

To determine whether or not a crime has been
committed and whether or not there is probable
cause to believe that the accused is guilty. [Raro vs.
Ombudsman
The Ombudsman and his Deputies, as protectors of
the people, shall act promptly on complaints filed in
any form or manner against public officials or
employees of the Government, or any subdivision,
agency or instrumentality thereof, including GOCCs
and shall, in appropriate cases, notify the
complainants of the action taken and the result
thereof. [Sec. 12, Art. XI, Constitution]
To secure the innocent against hasty, malicious and

oppressive prosecution, and to protect him from an
open and public accusation of a crime, from the
trouble, expense, anxiety of a public trial, and also
The Ombudsman is authorized to conduct

preliminary investigation and to prosecute all
criminal cases involving public officers and
employees, not only those within the jurisdiction of
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the Sandiganbayan, but also those within the

jurisdiction of regular courts as well.
MCTC from those authorized to conduct a PI

effective October 3, 2005.
Note: RTC judges have NO power to conduct PI; and

MTC judges cannot conduct PI anymore after A.M.
No. 05-8-26-SC eliminated judges of the MTC and
PROCEDURE FOR PRELIMINARY INVESTIGATION
[Sec. 3,
Rule 112 of Rules of Criminal Procedure]

RESOLUTION OF INVESTIGATING PROSECUTOR
[SEC. 4, RULE 112]
Filing of the complaint [Sec. 3(a), Rule 112]

(1) Stating the respondents name and address
(2) Include the affidavits of complainant and the witnesses,
and other documents to establish probable cause,
which must be subscribed and sworn to before a
prosecutor or government official authorized to
administer oath or notary public
(3) In such number of copies as there are respondents, plus
2 copies for the official file
If he finds probable cause to hold respondent for trial,

he shall prepare a resolution and certify under oath
in the information that:
a. He or an authorized officer has personally
examined the complainant and his
witnesses;
b. That there is reasonable ground to believe
that a crime has been committed and that
the accused is probably guilty thereof;
c. That the accused was informed of the
complaint and evidences against him;
d. That he was given opportunity to submit
controverting evidence
Action of the investigating officer [Sec. 3(b), Rule 112]

(1) Within 10 days after the filing of the complaint, the
investigating officer will either:
(2) Dismiss, if he finds no ground to continue; or
(3) Issue a subpoena to the respondent, attaching the
complaint and other documents.If subpoena is not
possible, the investigating officer shall decide based on
what complainant presented.
(4) Respondent has the right to examine the evidence
submitted by complainant, and copy evidence at his
expense.
If he finds no probable cause, he shall recommend

the dismissal of the complaint
REVIEW [SEC. 4, RULE 112]
Within 5 days from resolution, the investigating
officer will forward the case to the prosecutor or to
the Ombudsman in cases cognizable by
the Sandiganbayan in the exercise of its
original jurisdiction.
Defendants counter-affidavit
Must be made within 10 days from receipt of complaint, and

must comply with the same requirements as a complaint.
[Sec. 3(c), Rule 112]
If not made within 10 days, the investigating officer shall
resolve the complaint based on the evidence presented by the
complainant [Sec. 3(d), Rule 112]
Within 10 days from receipt of the resolution,

the prosecutor/Ombudsman will act on the case.
Clarificatory Hearing [Sec. 3(e), Rule 112]

The investigator must conduct a hearing within 10 days from
receipt of the counter-affidavit. The hearing must be finished
in 5 days.
No complaint/information may be filed or dismissed

by an investigating prosecutor without the prior
written authority or approval of the prosecutor or
Ombudsman.
Hearing is conducted only if there are such facts and issues to

be clarified from a party or a witness.
In case the investigation officer recommends the

dismissal
of
the
complaint
but
the
prosecutor/Ombudsman disagrees, the latter may file
the information himself or any deputy or order any
prosecutor to do so without conducting a new PI.
Parties may be present evidence, but they have no right to

examine or cross-examine. Questions of parties shall be
submitted to the investigating officer.
Within 10 day after the investigation, the officer shall
determine WON there is sufficient ground to hold respondent
for trial.
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Follow the procedure outlined in Sec. 3(a), Rule 112

above.
Note: The DOJ Secretary may file the information

without conducting another PI or dismiss the
information filed by the prosecutor. The DOJ
Secretary may review resolutions, via petition for
review to the Secretary of Justice, of his subordinates
in criminal cases despite the information being filed
in court (Community Rural Bank of Guimba v.
Talavera, AM No. RTJ-05-1909, April 6, 2005) See
also DOJ Circular No. 70
REMEDY OF AN AGGRIEVED PARTY
RESOLUTION OF THE DOJ SECRETARY
AGAINST
Within 10 days after the filing of the

complaint/information, if the judge finds no PC after
personally evaluating the evidence or after personally
examining in writing and under oath the complainant
and his witnesses in the form of searching questions
and answers, he shall dismiss the same.
THE
Such resolution may be nullified in a petition for

certiorari under Rule 65 on grounds of grave abuse
of discretion resulting to lack or excess of jurisdiction
[Ching v. Sec. of Justice, 2006]
The judge may require submission of additional

evidence within 10 days from notice, to determine the
existence of PC.
The DOJ resolution is appealable administratively

before the Office of the President and the decision of
the latter may be appealed before the CA pursuant
to Rule 43 [De Ocampo v. Sec, of Justice, 2006]
If the judge still finds no

PC despite the additional
evidence, he shall dismiss
the case within 10 days
from its submission or
expiration of said period.
WHEN WARRANT OF ARREST MAY ISSUE

If the judge finds probable cause, he shall issue a
warrant of arrest, or a commitment order if the
accused has already been arrested, and hold him for
trial.
If the judge is satisfied

that there is no need to
place the accused under
custody, he may issue
summons instead.
The PI conducted by the prosecutor is EXECUTIVE in

nature, it is for the purpose of determining whether
or not there exists sufficient ground for the filing of
information;
The PI conducted by the judge which is properly
called PRELIMINARY EXAMINATION is for the
determination of probable cause for the issuance of
warrant of arrest [P/Supt. Cruz v. Judge Areola, AM
No. RTJ-01-1642, March 6, 2002]
CASES NOT REQUIRING
INVESTIGATION
If the judge finds PC, he

shall issue a warrant of
arrest or a commitment
order (if the accused had
already been arrested)
and hold him for trial.
REMEDIES OF ACCUSED IF THERE WAS NO

PRELIMINARY INVESTIGATION
EFFECT OF DENIAL
INVESTIGATION
PRELIMINARY
OF
RIGHT
TO
PRELIMINARY
The absence of PI:

(1) does not impair the validity of the information or
otherwise render it defective;
(2) neither does it affect the jurisdiction of the court;
(3) nor constitute a ground for quashing the
information.
CASES NOT REQUIRING A PRELIMINARY INVESTIGATION

NOR COVERED BY RULE ON SUMMARY PROCEDURE [SEC.
8, RULE 112]
Cases punishable by imprisonment of less than 4

years, 2 months and 1 day, filed with the prosecutor
or MTC/MCTC
The trial court, instead of dismissing the information,

should hold in abeyance the proceedings and order
the public prosecutor to conduct a PI. [Villaflor v.
Vivar(2001)]
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UP COLLEGE OF LAW
CRIMINAL PROCEDURE
should remain under custody and correspondingly

be charged in court. (DOJ-NPS Manual)
IF PRELIMINARY INVESTIGATION IS BEING CONDUCTED
Injunction and writs of restraint

General rule: The power of the Fiscal to investigate
crimes committed within his jurisdiction will,
ordinarily, not be restrained.
General rule: PI is required to be conducted before a

complaint/ information is filed for an offense where
the penalty prescribed by law is at least 4 years, 2
months and 1 day, without regard to the fine. [Sec. 1,
Rule 112]
Exception: Extreme cases may exist where relief in

equity may be availed of to stop a purported
enforcement of a criminal law where it is necessary
(a) for the orderly administration of justice; (b) to
prevent the use of the strong arm of the law in an
oppressive and vindictive manner; (c) to avoid
multiplicity of actions; (d) to afford adequate
protection to constitutional rights; and (e) in proper
cases, because the statute relied upon is
unconstitutional, or was "held invalid." [Ladlad v.
Velasco (2007)]
Exception: When a person is lawfully arrested

without a warrant involving an offense that requires
a PI, a complaint/information may be filed without
conducting the PI if the necessary inquest is
conducted.
However, before the complaint or information is filed,
the person arrested may ask for a PI, but he must
sign a waiver of the provisions of Art. 125, RPC in the
presence of his counsel. Notwithstanding the waiver,
he may apply for bail and the investigation must be
terminated within 15 days from its inception.
INQUEST
DEFINITION
An informal and summary investigation conducted

by a public prosecutor in criminal cases involving
persons arrested and detained without the benefit of
a warrant of arrest issued by the court for the
purpose of determining whether or not said persons
After the filing of the complaint/ information in court

without a PI, the accused may within 5 days from the
time he learns of its filing, ask for a PI with the same
right to adduce evidence in his defense as provided
in Rule 112. [Sec. 6, Rule 112]
(b) other supporting evidence gathered by the police

in the course of the latter's investigation of the
criminal incident involving the arrested or
detained person.
PROCEDURE FOR INQUEST PROCEEDINGS
Considered commenced upon receipt by the Inquest

Officer from the law enforcement authorities of the
complaint/referral documents which should include:
(a) affidavit of arrest, investigation report, statement
of the complainant and witnesses, all of which
must be subscribed and sworn to before him
It must be terminated within the period prescribed

under the provisions of Article 125 of the RPC, as
amended.
INQUEST
No
Probable
Cause
Accused
wants PI
and is
willing to
waive Art.
125
Dismiss
the case
For PI
PAGE 165
Warrantless
arrest as not
valid
There is PC
and arrest
was valid
Release
for regular
PI
File
information
UP COLLEGE OF LAW
CRIMINAL PROCEDURE
In flagrante delicto
When the person to be arrested:
(a) has committed,
(b) is actually committing, or
(c) is attempting to commit
an offense in the presence of the peace officer OR
private person who arrested him. (Rule 113, Sec.
5(a))
Arrest
DEFINITION
The taking of a person into custody in order that he
may be bound to answer for the commission of an
offense. (Rule 113, Sec. 1)
IMMUNITY FROM ARREST
Requisites:
(i) The person to be arrested must execute an OVERT
act indicating that he has just committed, is
actually committing, or is attempting to commit a
crime; and
(ii) Such overt act is done in the presence or within
the view of the arresting officer [ Zalameda v.
People (2009); People v. Laguio (2007)]
Parliamentary Immunity
Senators and Members of the House of
Representatives, while Congress is in session and for
offenses punishable by not more than 6 years
imprisonment. (Art. VI, Sec. 11, 1987 Constitution)
Diplomatic Immunity
Ambassadors and ministers of foreign countries and
their duly registered domestics subject to the
principle of reciprocity (RA 75)
In his presence means: [People v. Evaristo (1992)]

He sees the offense, even though at a distance;
He hears the disturbances created by the offense
and proceeds at once to the scene; or
Offense is continuing or has been consummated at
the time arrest is made.
ARREST, HOW MADE

MODES OF EFFECTING ARREST
(1) By an actual restraint of a person to be arrested.

(2) By his submission to the custody of the person
making the arrest. (Rule 113, Sec. 2, Par. 1)
Entrapment
An arrest made after an entrapment does not require
a warrant inasmuch as it is considered a valid
warrantless arrest pursuant to Rule 113, Sec. 5(a) of
the Rules of Court. [Teodicio v. CA (2004)]
It is enough that there be an intent on the part of one

of the parties to arrest the other and an intent on the
part of the other to submit, under the belief and
impression that submission is necessary. [Sanchez v.
Demetriou (1993)]
Buy-bust operation
When the appellant is caught in flagrante as a result
of the buy-bust operation, the policemen are not
only authorized but are also under obligation to
apprehend the drug pusher even without a warrant
of arrest. [People v. de Lara (1994)]
NO UNNECESSARY VIOLENCE
No violence or unnecessary force shall be used in

making an arrest. (Rule 113, Sec. 2, Par. 2)
Application of actual force, manual touching of the
body, physical restraint or a formal declaration of
arrest is not required.
Hot pursuit arrest

When an offense has just been committed and the
officer or private person has probable cause to
believe, based on PERSONAL knowledge of facts or
circumstances, that the person to be arrested has
committed it (Rule 113, Sec. 5(b))
TIME TO MAKE ARREST
An arrest may be made on any day and at any time

of the day or night. (Rule 113, Sec. 6)
Requisites:
(i) An offense has just been committed; and
ARREST WITHOUT WARRANT, WHEN LAWFUL

(1997, 2000, 2003, 2004 BAR)
There must be a large measure of immediacy

between the time the offense was committed and
the time of the arrest. If there was an appreciable
lapse of time between the arrest and the
commission of the crime, a warrant of arrest must
be secured [People v. del Rosario (1999); People v.
Agojo (2009)];
General rule: No peace officer or person has the

power or authority to arrest anyone without a
warrant except in those cases expressly authorized
by law. [Umil v. Ramos (1991)]
Exceptions (Rule 113, Sec. 5)
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CRIMINAL PROCEDURE
(ii) The person making the arrest has probable cause

to believe, based on personal knowledge of facts,
that the person to be arrested has committed it.
the inadmissibility of evidence seized during an

illegal warrantless arrest [People v. Nuevas, supra].
Waiver of the illegality of the arrest
Any objection involving the arrest or the procedure in
the courts acquisition of jurisdiction over the person
of an accused must be made BEFORE he enters his
plea; otherwise the objection is deemed waived
[Zalameda v. People (2009)].
Probable cause must be based on personal

knowledge which means an actual belief or
reasonable grounds of suspicion [Abelita III v. Doria
(2009)].
Arrest of escaped prisoner
When the person to be arrested is a prisoner who has
escaped: (Rule 113, Sec. 5(c))
(a) From a penal establishment or place where he is
serving final judgment OR temporarily confined
while his case is pending; or
(b) While being transferred from one confinement to
another.
There is waiver if the accused voluntarily enters his

plea and participates during trial, WITHOUT
previously invoking his objections thereto [Leviste v.
Hon Alameda (2010_); Borlongan v. Pea (2010)].
There must be clear and convincing proof that the
accused had an actual intention to relinquish his
right to question the existence of probable cause
[Leviste v. Hon Alameda, supra; Borlongan v. Pea,
supra].
Escapee may be immediately pursued or re-arrested

without a warrant at any time and in any place within
the Philippines. (Rule 113, Sec. 13)
An application for or admission to bail shall not bar

the accused from challenging the validity of his
arrest or the legality of the warrant issued, provided
that he raises the objection before he enters his plea.
(Rule 114, Sec. 26).
Rationale: At the time of arrest, the escapee is in

continuous commission of a crime (i.e. evasion of
service of sentence).
Notes: Where a warrantless arrest is made under the
in flagrante and hot pursuit exceptions, the person
arrested without a warrant shall forthwith arrested
delivered to the nearest police station or jail. (Rule
113, Sec. 5, last par.)
When cured
When the accused voluntarily submits to the
jurisdiction of the trial court [Dolera v. People (2009);
People v. Alunday (2008)].
A WARRANTLESS arrest maybe made not only by a

peace officer but also by a private person.
By the filing of an information in court and the

subsequent issuance by the judge of a warrant of
arrest [Sanchez v. Demetriou (1993)
Other lawful warrantless arrest

(a) Where a person who has been lawfully arrested
escapes or is rescued (Rule 113, Sec. 13) Any
person may immediately pursue or retake him
without a warrant at any time and in any
place within the Philippines.
(b) By the bondsman, for the purpose of surrendering
the accused. (Rule 114, Sec. 23)
(c) Where the accused who is released on bail
attempts to leave the country without
permission of the court where the case is
pending. (Rule 114, Sec. 23)
METHOD OF ARREST
BY OFFICER WITH WARRANT
Duties of the arresting officer

(1) Execution of warrant (Rule 113, Sec. 4)
The head of the office to whom the warrant of
arrest was delivered shall cause the warrant to be
executed within 10 days from its receipt.
The officer to whom it was assigned for execution
shall make a report to the judge who issued the
warrant within 10 days after expiration of the
period to execute.
RULES ON ILLEGALITY OF ARREST
Effect of illegal arrest

The legality of the arrest affects only the jurisdiction
of the court over the person of the accused [People v.
Nuevas (2007)].
In case of the officers failure to execute, he shall

state the reasons therefor.
(2) The officer shall inform the person to be arrested
of (1) the cause of the arrest and (2) the fact that a
A waiver of the right to question an illegal

warrantless arrest does not also mean a waiver of
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warrant has been issued for his arrest. (Rule 113,

Sec. 7)
BY OFFICER WITHOUT WARRANT
Duties of arresting officer without warrant

The officer shall inform the person to be arrested of
(1) his authority and (2) the cause of the arrest. (Rule
113, Sec. 8)
Exceptions:
(a) When he flees;
(b) When he forcibly resists before the officer has
opportunity to so inform him;
(c) When the giving of such information will
imperil the arrest.
Exceptions:
(a) When the person to be arrested is engaged in the
commission of the offense;
(b) When he is pursued immediately after its
commission;
(c) When he has escaped, flees or forcibly resists
before the officer has the opportunity to so inform
him; or
(d) When the giving of such information will imperil
the arrest.
The officer need not have the warrant in his

possession at the time of the arrest BUT after the
arrest, if the person arrested so requires, the
warrant shall be shown to him as soon as
practicable. (Rule 113, Sec. 7)
This is not a case of a warrantless arrest but
merely an instance of an arrest effected by the
police authorities without having the warrant in
their possession at that precise moment. [Mallari
v. CA (1996)]
BY PRIVATE PERSON (CITIZENS ARREST)
Duties of private person effecting an arrest

(1) The private person shall inform the person to be
arrested of (1) the intention to arrest him and (2)
the cause of the arrest. (Rule 113, Sec. 9)
(3) The officer executing the warrant shall arrest the

accused and deliver him to the nearest police
station or jail without unnecessary delay (Rule 113,
Sec. 3)
(4) No violence or unnecessary force shall be used
in making an arrest. (Rule 113, Sec. 2, last par.).
Exceptions: Same as those for arrest by an officer

without a warrant.
(2) The private person must deliver the arrested
person to the nearest police station or jail, and he
shall be proceeded against in accordance with
Rule 112, Sec. 7. Otherwise, the private person
may be held liable for illegal detention.
Rights of the arresting officer

(1) To summon assistance (Rule 113, Sec. 10)
He may orally summon as many persons as he
deems necessary to assist him in effecting the
arrest.
REQUISITES OF A VALID WARRANT OF ARREST
(2) To break into building or enclosure (Rule 113, Sec.

11)
ESSENTIAL REQUISITES OF A VALID ARREST WARRANT

(ART. III, SEC. 2, 1987 CONSTITUTION)
Must be issued upon probable cause determined

PERSONALLY by the judge after examination under
oath or affirmation of the complainant and the
witnesses he may produce; and
Requisites:
(a) The person to be arrested is or is reasonably
believed to be in said building;
(b) He has announced his authority and purpose
of entering therein; and
(c) He has requested and been denied
admittance.
Also applicable where there is a valid arrest
without a warrant.
The warrant must particularly describe the person to

be arrested.
INSTANCES WHEN JUDGE ISSUES WARRANT OF ARREST
Upon the filing of the information by the public

prosecutor and after personal evaluation by the
judge of the prosecutors resolution and supporting
evidence. (Rule 112, Sec. 5(a))
(3) To break out from the building/enclosure when

necessary to liberate himself (Rule 113, Sec. 12)
Also applicable where there is a valid warrantless
arrest.
The judge does not have to personally examine the

complainant and his witnesses. Established doctrine
provides:
(4) To search the person arrested for dangerous

weapons or anything which may have been used
or constitute proof in the commission of an
offense without a warrant (Rule 126, Sec. 13)
He shall personally evaluate the report and the

supporting documents submitted by the fiscal
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regarding the existence of probable cause and, on

the basis thereof, issue a warrant of arrest; OR
to guarantee his appearance before any court as

required under conditions hereinafter specified. [Rule
114, Sec. 1]
If on the basis thereof he finds NO probable cause,

he may disregard the fiscals report and require the
submission
of
supporting
affidavits
of
witnesses.[People v. Gray (2010); AAA v. Carbonell
(2007))]
PURPOSES
(1) To relieve an accused from imprisonment until his

conviction and yet secure his appearance at the
trial. [ People v. The Hon. Donato (2011)]
(2) To honor the presumption of innocence until his
guilt is proven beyond reasonable doubt [Art. III,
Sec. 14, Const]; and
(3) To enable him to prepare his defense without
being subject to punishment prior to conviction
[Cortes v. Judge Catral (1997)].
DETERMINATION OF PROBABLE CAUSE FOR

ISSUANCE OF WARRANT OF ARREST
Probable cause test
Probable cause, in connection with the issuance of a
warrant of arrest, assumes the existence of facts and
circumstances that would lead a reasonably discreet
and prudent man to believe that a crime has been
committed and that it was likely committed by the
person sought to be arrested. [People v. Tan (2009)]
AS REGARDS THE REQUIREMENT OF CUSTODY
General Rule: Custody of the law is required before

the court can act on an application for bail [Miranda
v. Tuliao (2006)]
Probable cause demands more than suspicion but it

requires less than evidence that would justify
conviction. [People v. Gabo (2010)]
Exceptions (When witness/es post bail):

(1) When bail is required to guarantee the
appearance of a material witness [Sec. 14, Rule
119];
(2) When bail is required to guarantee the
appearance of a prosecution witness in cases
where there is substitution of the information
[Riano, citing Sec. 14, Rule 110]
DISTINGUISH PROBABLE CAUSE OF FISCAL

FROM THAT OF A JUDGE
Fiscal
Executive
of PC
Judge
determination Judicial determination of

PC
WHEN A MATTER OF RIGHT; EXCEPTIONS
Determination of PC to Determination of PC to
hold a person for trial
issue a warrant of arrest
BAIL AS A MATTER OF RIGHT
When bail is a matter of right [Rule114, Sec. 4]

(1) Before or after conviction pending appeal by the
MTC.
(2) Before conviction by RTC of all offenses
punishable by penalty lower than reclusion
perpetua.
W/N there is reasonable W/N a warrant of arrest

ground to believe that the should be issued
accused is guilty of the
offense charged and
should be held for trial
Rule: The determination of probable cause for
issuing a warrant of arrest is made by the judge. The
preliminary investigation proper---whether or not
there is a reasonable ground to believe that the
accused is guilty of the offense charged---is the
function of the investigating prosecutor [AAA v.
Carbonell (2007)].
WHEN BAIL NOT AVAILABLE
When evidence of guilt is strong in capital offenses or

those punishable by death, reclusion perpetua or life
imprisonment.
Exception: When the accused is a minor, he is
entitled to bail regardless of whether the evidence of
guilt is strong.
Capital Offense
An offense which under the law existing at the time
of commission and of the application for admission
to bail is punishable by death. [Rule 114, Sec. 6]
Bail
NATURE
The capital nature of the offense is determined by

the penalty prescribed by law and not the one actually
imposed.
DEFINITION
Bail is the security given for the release of a person in

custody of the law, furnished by him or a bondsman,
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Note: R.A. 9346 (An Act Prohibiting the Imposition of

in the Philippines) enacted on June 24, 2006 (which
repealed R.A. No. 8177 and R. A. No. 7659)
prohibited the imposition of death penalty. Under
R.A. 9346, it stated that:
Note: In hearing the petition for bail, the prosecution

has the burden of showing that the evidence of guilt
is strong. [Rule 114, Sec. 8]
In deportation proceedings, bail is discretionary upon
the Commissioner of Immigration and Deportation.
[Harvey v. Defensor-Santiago (1990)]
Section 7. Capital offense or an offense punishable by

reclusion perpetua or life imprisonment
WHEN APPLICATION FOR BAIL AFTER CONVICTION SHALL

BE DENIED:
Bail in extradition proceedings

Basis: [Gov. of USA vs Purganan & Jimenez (2002)]
If the penalty imposed by the trial court is

imprisonment exceeding 6 years, the accused shall
be denied bail or his bail shall be cancelled upon
showing by the prosecution, with notice to the
accused, of any of the following:
(1) Recidivism, quasi-recidivism, or habitual
delinquency or commission of a crime
aggravated by reiteration of the accused.
(2) The accused previously escaped from legal
confinement, evaded sentence or violated bail
conditions without valid justification.
(3) Commission of offense while under probation,
parole or conditional pardon by the accused.
(4) Probability of flight.
(5) Undue risk that the accused may commit another
crime during pendency of appeal.
General Rule: Right to bail is available only in

criminal proceedings and does not apply to
extradition proceedings because extradition courts
do not render judgments of conviction or acquittal.
Exception: Only upon a clear and convincing
evidence:
(a) that once granted, the applicant will not be flight
risk or will not pose danger to the community;
and
(b) that there exists special humanitarian and
compelling circumstances.
Note: Bail is a matter of discretion in extradition
proceedings [Government of Hong Kong Special
Administrative Region v. Olalia (2007)]
HEARING OF APPLICATION FOR BAIL IN

CAPITAL OFFENSES [SEC. 8, RULE 114]
Note: RA 9346, Section 7. Capital offense or an
offense punishable by reclusion perpetua or life
imprisonment or life imprisonment
Right to bail is not available:

(1) To military personnel accused under general
courts martial [Comendador v. de Villa (1991)]
(2) After a judgment of conviction has become final
If he applied for probation before finality, he may
be allowed temporary liberty under his bail [Rule
114, Sec. 24].
(3) After the accused has commenced to serve his
sentence [Rule 114, Sec. 24]
CONVICTION
This refers to conviction by the trial court, which has

not become final, as the accused still has the right to
appeal. After conviction by the trial court, the
accused convicted of a capital offense is no longer
entitled to bail, and can only be released when the
conviction is reversed by the appellate court. [Section
13, Article III, Const.]
WHEN A MATTER OF DISCRETION [RULE 114,

SEC. 5]
(1) Before conviction, in offenses punishable by
death, reclusion perpetua or life imprisonment
and evidence of guilt is not strong
(2) Upon conviction by the RTC of an offense not
punishable by death, reclusion perpetua or life
imprisonment.
PROSECUTION HAS BURDEN OF PROOF
At the hearing of an application for bail filed by a

person in custody for the commission of an offense
punishable by reclusion perpetua or life
imprisonment, the prosecution has the burden of
showing that evidence of guilt is strong.
It may be filed in and acted upon by the RTC

despite the filing of notice of appeal, provided
that it has not transmitted the original record to
the appellate court.
Evidence of Guilt in the Constitution and the Rules

refers to a finding of innocence or culpability,
regardless of the modifying circumstances.
If the RTC decision changed nature of the offense

from non-bailable to bailable, the application for
bail can be resolved only by the appellate court.
REGARDING MINORS CHARGED WITH A CAPITAL OFFENSE
If the person charged with a capital offense is

admittedly a minor, which would entitle him, if
convicted, to a penalty next lower than that
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prescribed by law, he is entitled to bail regardless of

whether the evidence of guilt is strong. The reason
for this is that one who faces a probable death
sentence has a particularly strong temptation to flee.
recognizance, the application may only be filed in the

court where the case is pending, on trial, or appeal.
GUIDELINES IN FIXING AMOUNT OF BAIL [RULE
114, SEC. 9]
This reason does not hold where the accused has

been established without objection to be minor who
by law cannot be sentenced to death.
Primarily, but not limited to, the following factors:

(1) Financial ability of the accused
(2) Nature and circumstances of the offense
(3) Penalty for the offense charged
(4) Character and reputation of the accused
(5) Age and health of the accused
(6) Probability of the accused appearing at the trial
(7) Forfeiture of other bail
(8) Fact that accused was a fugitive from justice
when arrested
(9) Forfeiture of other bail
(10) Pendency of other cases where the accused is on
bail.
DUTY OF JUDGE TO CONDUCT HEARING
Duties of the trial judge in a petition for bail

(a) Notify the prosecutor of the hearing and require
him to submit his recommendation;
(b) Conduct a hearing of the application regardless
of whether or not prosecution refuses to present
evidence to show that the guilt of the accused is
strong;
(c) Decide whether the evidence of guilt of the
accused is strong based on the summary of the
evidence of the prosecution;
(d) If the guilt of the accused is not strong, discharge
the accused upon the approval of the bail bond.
Otherwise, petition should be denied. [Riano,
citing Narciso v. Santa Romana-Cruz, 328 SCRA
505]
BAIL WHEN NOT REQUIRED [SEC. 16, RULE 114]

When a person has been in custody for a period
equal to or more than the possible maximum
imprisonment of the offense charged to which he
may be sentenced.
If the maximum penalty is destierro, he shall be
released after 30 days of preventive imprisonment.
Note: Evidence presented during the bail hearing are

automatically reproduced at the trial [Sec. 8, Rule
114]
In cases filed with the MTC/MCTC for an offense

punishable by an imprisonment of less than 4 yrs, 2
mos. and 1 day, and the judge is satisfied that there
is no necessity for placing the accused under
custody. [Riano, citing Sec. 8, Rule 112]
WHERE THE APPLICATION IS FILED: [SEC. 17, RULE 114; AS

AMENDED BY AM 05-08-26]
General Rule: The application may be filed with the

court where the case is pending.
In cases where a person is charged with violation of a

municipal/city ordinance, a light felony and/or
criminal offense, the penalty of which is not higher
than 6mos imprisonment and/or a fine of 2000 or
both where it is established that he is unable to post
the required cash or bail bond. [Sec. 1, RA 6036]
Exceptions:
(a) If the judge of the court where the case is pending
is absent or unavailable, the application may be
filed with any RTC/MTC/MeTC/MCTC judge in
the province, city or municipality.
(b) Where the accused is arrested in a province,
city/municipality other than where the case is
pending, the application may be filed with any
RTC of the said place. If no judge is available,
then with any MeTC/MTC/MCTC judge in the
said place. Judge who accepted the application
shall forward it, together with the order of
release and other supporting papers where the
case is pending
(c) When a person is in custody but not yet charged,
he may apply with any court in the province or
city/municipality where he is held.
Exceptions:
(a) Caught committing the offense in flagrante
(b) When accused confesses to the commission of
the offense unless he later repudiates the same in
a sworn statement or in open court as having
been extracted through force or intimidation
(c) Found to have previously escaped legal
confinement, evaded sentence, or jumped bail
(d) Found to have violated Sec. 2 of RA 6036 which
provides that the violation of the accused of the
sworn statement (required instead of bail) shall
justify the court to order his immediate arrest, if
the accused failure to report is not justified
(e) Accused is a recidivist or habitual delinquent or
has been previously convicted for an offense to
Note: Where the grant of bail is a matter of

discretion, or the accused seeks to be released on
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which
the
law/ordinance
attaches
an
equal/greater penalty or for two/more offenses
to which it attaches a lighter penalty
(f) Accused committed the offense while on parole or
under conditional pardon
(g) Accused has previously been pardoned for
violation of municipal/city ordinance for at least
two times [Riano, citing Sec. 1, RA 6036]
Automatic Cancellation
(1) Upon acquittal of the accused
(2) Upon dismissal of the case
(3) Upon execution of judgment of conviction
INCREASE OR REDUCTION OF BAIL

After the accused is admitted to bail and for good
cause, the court may increase or decrease the
amount.
Bail is no longer a waiver of these objections [Rule

114, Sec. 26; Leviste v. Alameda (2011)].
APPLICATION NOT A BAR TO OBJECTIONS IN

ILLEGAL ARREST, LACK OF OR IRREGULAR
PRELIMINARY INVESTIGATION
REDUCED BAIL
Provided that the proper objections are timely raised

(i.e., before accused enters a plea), an application or
an admission to bail shall NOT bar the accused from
challenging or questioning the:
(1) Validity of his arrest.
(2) Legality of the arrest warrant.
(3) Regularity of preliminary investigation
(4) Absence of preliminary investigation
Person in custody for a period equal to or more than

the minimum of the principal penalty prescribed for
the offense charged may be released on a reduced
bond. [Rule 114, Sec. 16]
The court shall resolve the objections as early as

practicable but not later than the start of the trial of
the case.
INCREASED BAIL
Accused may be committed to custody if he does not

give bail in the increased amount within a
reasonable period of time. [Rule 114, Sec. 20]
HOLD DEPARTURE ORDER & BUREAU OF

IMMIGRATION WATCHLIST
Bondsmen can prevent accused from leaving country
by arresting him or asking for him to be re-arrested
by a police officer upon written authority. [Rule 114,
Sec. 23]
FORFEITURE AND CANCELLATION OF BAIL

FORFEITURE OF BAIL [RULE 114, SEC. 21]
If the accused failed to appear in person as required,

bondsmen are given 30 days within which to:
(1) Produce the body of the principal or give reason
for the non-production. Bondsmen may:
(a) Arrest the accused;
(b) Cause him to be arrested by a police
officer or any other person of suitable age or
discretion upon written authority endorsed
on a certified copy of the undertaking.
(2) Explain why the accused failed to appear.
(a) If the bondsmen fail to do these,
judgment is rendered against them, jointly
and severally, for the amount of the bail.
(b) Bondsmens liability cannot be mitigated
or reduced, unless the accused has been
surrendered or is acquitted.
The accused may be prohibited from leaving the

country during the pendency of his case. [PP v. Uy
Tuising (1935); Manotoc v. CA (1986)] If the accused
released on bail attempts to depart from the
Philippines without the permission of the court
where his case is pending, he may be re-arrested
without warrant. [Rule 114, Sec. 23]
Hold-Departure/ Watchlist/ Allow Departure Orders
A hold-departure order may be issued only by the
RTCs in criminal cases within their exclusive
jurisdiction. [SC Circular No. 39-97 (June 19, 1997)]
SC Circular 39-97 deals with criminal cases pending
in the RTC. This created a void, as to those cases
pending in the MTC as well as those under
preliminary investigation. Thus the DOJ promulgated
DOJ Circular No. 41 governing the issuance of HDO,
Watchlist Orders, and Allow Departure Orders.
[Whereas clause of DOJ Circular No. 41]
CANCELLATION OF BAIL [RULE 114, SEC. 22]
Application by bondsmen
Upon application of the bondsmen with due notice
to the prosecutor, bail may be cancelled upon:
(a) surrender of the accused; OR
(b) proof of his death
Hold Departure Order

When it may issue
Watchlist Order
Against the accused, irrespective of Against the accused, irrespective of

nationality, in criminal cases falling within nationality, in criminal cases pending
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the jurisdiction of first-level courts (MeTC, before the RTC

MTC, MCTC)
Against the respondent, irrespective of
Against the alien whose presence is nationality, in criminal cases pending
required either as a defendant, preliminary investigation, PFR, or MR
respondent, or witness in a civil or labor before the DOJ or any of its prosecution
case pending litigation, or any case before offices
an administrative agency of the
government.
Against any person pursuant to the AntiTrafficking in Persons Act of 2003 (RA
Against any person, either motu proprio, 9208) or in the interest of national
or upon the request by the Head of a security, public safety or public health
Department of the Government, the Chief
Justice of the Supreme Court for the
Judiciary; the Senate President or the
House Speaker for the Legislature, when
the adverse party is the Government or
any of its agencies or instrumentalities, or
in the interest of national security, public
safety or public health.
Validity
Grounds
for
cancellation
5 years reckoned from the date of its 60 days reckoned from the date of its
issuance, unless sooner terminated
issuance, unless sooner terminated or
extended for a non-extendible period of
not more than 60 days
lifting
or When the validity period has already When the validity period has already
expired
expired
When the accused has been allowed to
leave the country during the pendency of
the case, or has been acquitted of the
charge, or the case in which the
warrant/order of arrest was issued has
been dismissed or the warrant/order of
arrest has been recalled.
When the accused has been allowed by

the court to leave the country during the
pendency of the case, or has been
acquitted of the charge
When the PI is terminated, or when the
PFR or MR has been denied and/or
dismissed
When Allow Departure Orders (ADOs) may issue: for

exceptional reasons to allow the person to leave
upon submission of the following:
(1) An affidavit of purpose, including an undertaking
to report to the DOJ immediately upon return
(2) Authority to travel or travel clearance from the

court or appropriate government office or from
the investigating prosecutor
Rights of the Accused
The Rules or the law may, however, provide for a

presumption of guilt. [Hizon v. CA (2009)]
RIGHTS OF ACCUSED AT THE TRIAL [RULE 115]

TO BE PRESUMED INNOCENT UNTIL THE CONTRARY IS
PROVED BEYOND REASONABLE DOUBT
In Hizon v. Court of Appeals (2009), the Court

stressed that the statutory presumption is merely
prima facie. At no instance can the accused be
denied the right to rebut the presumption.
The presumption of regularity in the performance of

official duty cannot by itself overcome the
presumption of innocence nor constitute proof
beyond reasonable doubt. [People v. Sanchez (2008)]
Proof beyond reasonable doubt does not mean such

a degree of proof as, excluding possibility of error,
produces absolute certainty. Moral certainty only is
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required, or that degree of proof which produces

convinction in an unprejudiced mind. [Rule 133, Sec.2]
Effects: Waiver of right to be present, right to present

evidence and right to cross-examine witnesses.
[Gimenez v. Nazareno (1988)]
Where the evidence in a criminal case is evenly

balanced, the constitutional presumption of
innocence titlts the scales in favor of the accused
[People v. Erguioza (2008)]. This is the equipoise
rule.
Right to counsel
(a) It means reasonably effective legal assistance.
[Gideon v. Wainright (1963)]
(b) It is absolute and may be invoked at all times,
even on appeal. [Telan v. CA (1991)]
(c) Duty to appoint counsel de oficio is mandatory
only at the time of arraignment. [Sayson v. People
(1988)]
(d) Violation of this right entitles the accused to new
trial. [People v. Serzo (1997)]The right to counsel
may be waived but to insure that the waiver is
voluntary and intelligent, the waiver must be in
writing and in the presence of the counsel of the
accused [People v. Del Castillo (2004)]. It must
also not be contrary to law, public order, public
policy, morals or good customs.
(e) Even a person under investigation for an offense
shall the right to have a competent and
independent counsel preferably of his own
choice Included in this right is the right to be
informed of his right to counsel [Sec. 12[1], Art. II,
1987 Constitution; Sec 2(b) RA 7438].
TO BE INFORMED OF THE NATURE AND CAUSE OF

ACCUSATION AGAINST HIM
An accused cannot be convicted of an offense, unless

it is clearly charged in the complaint or information.
[People v. Ortega (1997)]
Charge must be set forth with sufficient particularity
to enable the accused to intelligently prepare his
defense. [Balitaan v. CFI of Batangas (1982)]
The purpose is served by arraignment. [Borja v.
Mendoza (1977)] The title of the complaint, or the
designation of the offense charged or the particular
law violated is not controlling. No information for a
crime will be sufficient if it does not accurately and
clearly allege the elements of the crime charged.
[People v. Dimaano (2005)]
Right to defend in person

Only when it sufficiently appears that he can protect
his rights without the assistance of counsel [Sec. 1[b],
Rule 115, Rules of Court]
TO BE PRESENT AND DEFEND IN PERSON AND BY COUNSEL

AT EVERY STAGE OF THE PROCEEDINGS
Right to be present
General Rule: Presence of the accused during the
criminal action is not required and shall be based on
his sole discretion.
TO TESTIFY AS WITNESS IN HIS BEHALF
But subject to cross-examination on any matter

covered by his direct examination. (Sec. 1[d]. Rule 115)
Silence will not, in any manner, prejudice him.
Exception: Presence of the accused is mandatory:

(a) For purposes of identification;
(b) At arraignment; [Rule 116, Sec. 1(b)]
(c) At the promulgation of judgment;
RIGHT AGAINST SELF-INCRIMINATION (2005 BAR)
The right against self-incrimination has no

application to juridical persons. [BASECO v. PCGG
(1987)]
Exception: If the conviction is for a light offense. [Rule

120, Sec. 6]
The constitutional guaranty, that no person shall be

compelled in any criminal case to be a witness
against himself, is limited to a prohibition against
compulsory testimonial self-incrimination. The
corollary to the proposition is that, an ocular
inspection of the body of the accused is permissible.
[Villafor vs. Summers (1920)] The proviso is that
torture of force shall be avoided.
This right may be waived when:

(1) The accused is absent without just cause at the
trial of which he had notice; or
(2) The accused under custody escapes, until custody
over him is regained.
Trial in absentia
Requisites: [Parada v. Veneracion (1997)]
(a) Prior arraignment;
(b) Proper notice of the trial;
(c) Failure to appear is unjustifiable.
The right is applicable to one who is compelled to

produce a document, and one who is compelled to
furnish a specimen of his handwriting, for in both
cases, the witness is required to furnish evidence
against himself. [People v. Nicandro (1986)]
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An accused occupies a different tier of protection

from an ordinary witness. He is entitled 1) to be
exempt from being a witness against himself, and 2)
to testify as witness in his own behalf; BUT if he
offers himself as a witness he may be crossexamined as any other witness; however, his neglect
or refusal to be a witness shall not in any manner
prejudice or be used against him. [People v. Judge
Ayson (1989)]
If a subpoena is issued and the witness failed to

appear, the court should order the arrest of the
witness if necessary. [People v. Montejo (1967)]
RIGHT TO SPEEDY, IMPARTIAL, AND PUBLIC TRIAL
In determining whether or not the right to speedy

disposition of cases has been violated, this Court has
laid down the following guidelines [Tan v. People
(2009); Olbes v. Buemio (2009)]:
(a) Length of the delay;
(b) Reasons for such delay;
(c) Assertion or failure to assert such right by the
accused; and
(d) Prejudice caused by the delay.
Thus, the right may be waived by the failure to timely

assert the right, that is, by answering an incriminating
question [Beltran v. Samson (1929)] when the
accused testifies in his own behalf and is crossexamined on matters covered by the direct
examination. [Sec. 1(f), Rule 115] The questions on
cross examination should be on matters related to
his direct examination. [People v. Judge Ayson, supra]
Remedy against denial of right:

(a) Motion to Dismiss [Corpuz v Sandiganbayan
(2004)]
The accused is not entitled to a dismissal where
such delay was caused by proceedings or motions
instituted by him.A dismissal based on a violation
of the right to speedy trial is equivalent to an
acquittal and double jeopardy may attach even if
the dismissal is with the consent of the accused.
[Condrada v. People (2003)]
(b) Mandamus. [Lumanlao v. Hon. Peralta (2006)]
RIGHT TO CONFRONTATION
Applies to any witness against the accused at the

trial.
Where the adverse party is deprived of the right to
cross-examine the persons who executed the
affidavits, said affidavits are generally rejected for
being hearsay. [Estrella v. Robles, Jr. (2007)]
RIGHT TO APPEAL
HOWEVER, either party may utilize as part of its

evidence the testimony of a witness who is deceased,
out of or cannot with due diligence be found in the
Philippines, unavailable or otherwise unable to
testify, given in another case or proceeding, judicial
or administrative, PROVIDED they involve the same
parties and subject matter and the adverse party had
the opportunity to cross-examine him. [Sec. 1(f), Rule
115]
In all criminal prosecutions, the accused shall have

the right to appeal in the manner prescribed by law.
[Hilario v. People (2008)]
An appeal in criminal case opens the ENTIRE case
for review and the appellate court may correct even
unassigned errors. [People v. Tambis (2008)]
The right to appeal is a statutory right and the
requirements must be complied with; otherwise, the
right is lost. [People v. Sabellano (1991)]
This right is waived by non-appearance. [Carredo v.

People (1990)]
If the accused escapes from confinement, appeal is

not allowed unless he voluntarily surrenders within
period for appeal. [People v. Omar (1991)]
The right does not apply in a preliminary

investigation. They parties may, however, submit to
the investigating officers questions which may be
asked to the party or witness concerned. [Sec. 3(e),
Rule 112]
The right to appeal is lost by the unjustified failure to

appear at the promulgation of judgment of
conviction [Villena v. People, (2011)]
Identification by a witness of the accused is

inadmissible if the accused had no opportunity to
confront witness. [People v. Lavarias (1968)]
RIGHTS OF PERSONS UNDER CUSTODIAL

INVESTIGATION [SEC. 2, RA 7438]
Custodial Investigation involves any questioning
initiated by law enforcement officers after a person
has been taken into custody or otherwise deprived of
his freedom of action in any significant way. [Aquino
v Paiste (2008)]
RIGHT TO COMPULSORY PROCESS
This right may be invoked by the accused to secure

the attendance of witnesses and the production of
witnesses in his behalf.
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AND TO HAVE COMPETENT AND INDEPENDENT COUNSEL,

PREFERABLY OF HIS OWN CHOICE, WHO SHALL AT ALL
TIMES BE ALLOWED TO CONFER PRIVATELY WITH THE
PERSON ARRESTED, DETAINED OR UNDER CUSTODIAL
INVESTIGATION
It shall include the practice of issuing an invitation

to a person who is investigated in connection with an
offense he is suspected to have committed, without
prejudice to the liability of the inviting officer for
any violation of law.
TO BE ALLOWED VISITS BY OR CONFERENCES WITH:
Any member of his immediate family ("Immediate

family" includes his or her spouse, fianc or fiance,
parent or child, brother or sister, grandparent or
grandchild, uncle or aunt, nephew or niece, and
guardian or ward), or
TO BE ASSISTED BY COUNSEL AT ALL TIMES
Waiver of the right to counsel must be made with the

assistance of counsel. [Art. 3, Sec. 12(1), Constitution]
Specifically in the following instances:
(a) Signing of the written custodial report;
(b) Signing of the written extra-judicial confession
(2008 Bar)
Any medical doctor or

Priest or religious minister, chosen by him or by any
member of his immediate family or by his counsel, or
by any national NGO duly accredited by the
Commission on Human Rights or by any
international NGO duly accredited by the Office of
the President.
Requisites for the validity of an extrajudicial confession

made by a person arrested, detained or under
custodial investigation:
(1) It shall be in writing and signed by such
person; and
(2) It must be signed in the presence of his
counsel
OR, in the latters absence, upon a valid waiver;
CONSEQUENCES OF VIOLATION OF CUSTODIAL RIGHTS
Failure to inform
Any arresting public officer or employee, or any
investigating officer, shall suffer a fine of P6,000.00
or a penalty of imprisonment of not less than 8 years
but not more than 10 years, or both.
In the event of a valid waiver, it must be signed in

the presence of any of the parents, elder brothers
and sisters, his spouse, the municipal mayor, the
municipal judge, district school supervisor, or
priest or minister of the gospel as chosen by him.
The investigating officer who has been previously

convicted of a similar offense shall suffer the penalty
of perpetual absolute disqualification.
(c) Signing of the waiver to the provisions of Art. 125,

RPC.
Obstruction, prevention or prohibition of right to visits

or conferences
Any person guilty thereof shall suffer the penalty of
imprisonment of not less than 4 years nor more than
6 years and a fine of P4,000.00
The modifier competent and independent in the 1987

Constitution is not an empty rhetoric. It stresses the
need to accord the accused, under the uniquely
stressful conditions of a custodial investigation, an
informed judgment on the choices explained to him
by a diligent and capable lawyer [Lumanog v. People
(2010)]
Arraignment and Plea
If he cannot afford to have his own counsel, he must

be provided with a competent and independent
counsel by the investigating officer.
ARRAIGNMENT AND PLEA, HOW MADE
Assisting counsel may be any lawyer, except those:

(a) Directly affected by the case;
(b) Charged
with
conducting
preliminary
investigation;
(c) Charged with the prosecution of crimes. [Sec. 3,
RA 7438)
DEFINITION
The stage where the accused is formally informed of

the charge against him by reading before him the
information/complaint and asking him whether he
pleads guilty or not guilty. [Rule 116, Sec. 1(a)]
It is the stage where the issues are joined and
without which the proceedings cannot advance
further or, if held, will otherwise be void. [Borja v.
Mendoza (1977)]
TO REMAIN SILENT
TO BE INFORMED, IN A LANGUAGE KNOWN TO AND
UNDERSTOOD BY HIM, OF HIS RIGHTS TO REMAIN SILENT
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DUTY OF THE COURT BEFORE ARRAIGNMENT
The Court shall issue an order directing the public

prosecutor to submit the record of the PI to the
branch COC for the latter to attach the same to the
record of the case.
The court shall [Rule 116, Sec. 6]:

(a) Inform the accused of his right to counsel;
(b) Ask him if he desires to have one; and
(c) Must assign a counsel de officio to defend him;
unless the accused:
(1) Is allowed to defend himself in person; or
(2) Has employed a counsel of his choice.
The court shall inform the accused of his right to

counsel and ask him if he desires to have one.
Unless the accused is allowed to defend himself in
person or has employed counsel of his choice, the
court must assign a counsel de oficio to defend him.
BEFORE ARRAIGNMENT AND PLEA, THE ACCUSED MAY

AVAIL OF ANY OF THE FOLLOWING:
(1) Bill of particulars to enable him to properly

plead and prepare for trial
(2) Suspension of arraignment upon motion, the
proper party may ask for suspension of
arraignment to pursue a petition for review before
the DOJ Secretary under Sec. 11, Rule 116; period
of suspension shall not exceed 60 days from
filing of petition with the reviewing office
(3) Motion to Quash at anytime before entering his
plea, the accused may move to quash the
complaint or information on any of the grounds
under Sec. 3, Rule 117 in relation to Sec. 1, Rule 117
(4) Challenge the validity of the arrest or legality of
the warrant or assail the regularity or question
the absence of preliminary investigation of the
charge,
Arraignment
If accused pleads Not Guilty
Affirmative defense (admits the
charge but raises exempting or
justifying circumstances), then
Reverse Order of Trial
Negative defense (denies the
charge), then proceed to regular
trial
If accused pleads Guilty
PROVIDED that if the accused does not question the

legality of the arrest or search, this objection is
deemed waived.
For Non-Capital Offenses,

promulgate judgment of
conviction
HOW ARRAIGNMENT MADE
In general
For Capital Offenses, the

prosecution is still required to
prove guilt beyond reasonable
doubt
If accused does not enter ANY plea, a
plea of Not Guilty is entered by the Court
Note: The time of the pendency of a motion to quash
or for a bill of particulars or other causes justifying
suspension of the arraignment shall be excluded in
computing the period. [Rule 116, Sec. 1(g)]
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If the accused is under preventive detention

The case shall be raffled and its records transmitted
to the judge to whom the case was raffled within 3
days from the filing of the information or complaint.
How Arraignment is Made

(a) In open court where the complaint or information
has been filed or assigned for trial
(b) By the judge or clerk of court
(c) By furnishing the accused with a copy of the
complaint or information
(d) Reading it in a language or dialect known to the
accused
(e) Asking the accused whether he pleads guilty or
not guilty
The accused shall be arraigned within 10 days from

the date of the raffle.
SPECIFIC RULES ON ARRAIGNMENT
(a) Trial in absentia may be conducted only after

valid arraignment.
(b) Accused must personally appear during
arraignment and enter his pleal; counsel cannot
enter plea for the accused.
(c) Accused is presumed to have been validly
arraigned in the absence of proof to the
contrary.
(d) Generally, judgment is void if accused has not
been validly arraigned.
(e) If accused went into trial without being arraigned,
subsequent arraignment will cure the error
provided that the accused was able to present
evidence and cross examine the witnesses of the
prosecution during trial.
When Arraignment Should be Held

General Rule: Accused should be arraigned within 30
days from the date the court acquires jurisdiction
over his person.
Exception: Unless a shorter period is provided for by
law:
(1) When an accused is under preventive detention,
his case should be raffled within 3 days from
filing and accused shall be arraigned within 10
days from receipt by the judge of the records of
the case (RA 8493 Speedy Trial Act)
(2) Where the complainant is about to depart from
the Philippines with no definite date of return, the
accused should be arraigned without delay (RA
4908)
(3) Cases under RA 7610 (Child Abuse Act), the trial
shall be commenced within 3 days from
arraignment
(4) Cases under the Dangerous Drugs Act
(5) Cases under SC AO 104-96, i.e. heinous crimes,
violations of the Intellectual Property Rights Law,
these cases must be tried continuously until
terminated within 60 days from commencement
of the trial and to be decided within 30 days from
the submission of the case
If an information is amended in substance which

changes the nature of the offense, arraignment on
the amended information is MANDATORY.
EXCEPT if the amendment is only as to form
See Teehankee, Jr. v. Madayag, GR No. 103102, March
6, 1992
WHEN SHOULD PLEA OF NOT GUILTY BE
ENTERED
INSTANCES WHEN A PLEA OF NOT GUILTY TO BE ENTERED
FOR THE ACCUSED [RULE 116, SEC. 1(C)]
(a) When the accused so pleaded

(b) When he refuses to plead
(c) When he makes a conditional or qualified plea of
guilt
(d) When the plea is indefinite or ambiguous
(e) When he pleads guilty but presents exculpatory
evidence
In case of failure of the OFFENDED PARTY to appear

despite due notice, the court may allow the accused
to enter a plea of guilty to a lesser offense which is
necessarily included in the offense charged with the
conformity of the trial prosecutor alone. [Sec. 1(f),
Rule 116; SC AM No. 03-1-09-SC Part B(2)]
If the accused who pleaded guilty presents

exculpatory evidence, his plea of guilt is withdrawn.
The judge must order the accused to plead again or
at least direct that a new plea of not guilty be
entered for him, otherwise there shall be no standing
plea for the accused. This is significant because if
there is no standing plea, the accused cannot invoke
double jeopardy later on.
In case of failure of ACCUSED to appear despite due

notice, there is NO ARRAIGNMENT IN ABSENTIA
[Nolasco v. Enrile (1985)] - The presence of the
accused is not only a personal right but also a public
duty, irrespective of the gravity of the offense and the
rank of the court.
There can be no trial in absentia without
first arraigning the accused; otherwise, the
judgment is null and void.
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WHEN ACCUSED MAY ENTER A PLEA OF GUILTY

TO A LESSER OFFENSE [RULE 116, SEC. 2]
Rationale: To proceed with more care where the

possible punishment is in its severest form; to avoid
improvident pleas of guilt.[People v. Samontanez
(2000)]
PLEA TO A LESSER OFFENSE DURING ARRAIGNMENT
At arraignment, the accused, with the consent of the

offended party and prosecutor, may be allowed by
the trial court to plead guilty to a lesser offense
which is necessarily included in the offense charged.
IMPROVIDENT PLEA OF GUILTY TO A CAPITAL

OFFENSE
DEFINITION
Plea without proper information as to all the

circumstances affecting it; based upon a mistaken
assumption or misleading information/advice.
[Blacks Law Dictionary]
PLEA TO A LESSER OFFENSE AFTER ARRAIGNMENT BUT

BEFORE TRIAL
After arraignment but before trial, the accused may

still be allowed to plead guilty to said lesser offense
after withdrawing his plea of not guilty. No
amendment of the complaint or information is
necessary.
General rule: An improvident plea should not be

accepted. If accepted, it should not be held to be
sufficient to sustain a conviction. [People v. De
Ocampo Gonzaga (1984)] The case should be
remanded to the lower court for further proceedings.
PLEA TO A LESSER OFFENSE AFTER TRIAL HAS BEGUN
After the prosecution has rested its case, a change of

plea to a lesser offense may be granted by the judge,
with the approval of the prosecutor and the offended
party if the prosecution does not have sufficient
evdiecne to establish the guilt of the accused for the
crime charged. The judge cannot on its own grant
the change of plea.
Exception: If the accused appears guilty beyond

reasonable doubt from the evidence adduced by the
prosecution and defense.
WHEN IMPROVIDENT PLEA MAY BE WITHDRAWN
At any time before judgment of conviction becomes

final, the court may permit an improvident plea of
guilty to be withdrawn and be substituted by a plea
of not guilty.
ACCUSED PLEAD GUILTY TO CAPITAL OFFENSE,

WHAT THE COURT SHOULD DO [SEC. 3, RULE
116]
The withdrawal of a plea of guilty is not a matter of

right of the accused but of sound discretion of the
trial court [People v. Lambino, 103 Phil 504, 1958]
DUTY OF THE COURT WHEN ACCUSED PLEADS GUILTY TO A

CAPITAL OFFENSE
(1) Conduct a searching inquiry into the voluntariness

and full comprehension of the consequences of the
pleas
(2) Require prosecution to present evidence to prove
the guilt and precise degree of culpability of the
accused
(3) Ask the accused if he desires to present evidence
in behalf and allow him to do so if he desires
The reason for this is that trial has already begun

and the withdrawal of the plea will change the
theory of the case and put all past proceedings to
waste. Moreover, at this point, there is a presumption
that the plea was made voluntarily
GROUNDS
FOR
SUSPENSION
ARRAIGNMENT [RULE 116, SEC. 11]
SEARCHING INQUIRY
[RULE 116, SEC.
3]
The procedure in Sec. 3, Rule 116 is mandatory.
The plea must be clear, definite and unconditional.
It must be based on a free and informed judgment.
OF
PLEA OF GUILTY TO A CAPITAL OFFENSE
UNSOUND MENTAL CONDITION OF THE ACCUSED AT THE

TIME OF THE ARRAIGNMENT
(1) When the accused can neither comprehend the

full import of the charge nor can he give an
intelligent plea.
(2) The court shall order his mental examination and,
if necessary, his confinement.
(3) The need for suspension may be determined from
physical and outward manifestations at the time
of arraignment indicative of a mental disorder
which the court had observed and defense
counsel had called attention to. [People v.
Alcalde (2002)]
The judge must ask whether the accused was

assisted by counsel during CI and PI; ask questions
on age, educational attainment and socio-economic
status; and ask the defense counsel WON he
conferred with the accused. [People v. Nadera
(2000)]
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CRIMINAL PROCEDURE
Motion to Quash
(4) 3 major criteria to determine insanity: [People v.

Dungo (1991)]
(a) DELUSION TEST Insanity is manifested by
a false belief for which there is no reasonable
basis and which would be incredible under
the given circumstances.
(b) IRRESISTIBLE IMPULSE TEST The accused
has lost the power to choose between right
and wrong, to avoid the act in question, his
free agency being at that time destroyed.
(c) RIGHT AND WRONG TEST A perverted
condition of mental and mortal faculties as
to render him incapable of distinguishing
between right and wrong
(5) Tests to determine insanity: [People v. Pascual
(1993)]
(a) TEST OF COGNITION Complete
deprivation of intelligence in committing the
criminal act. It is the test adopted in this
jurisdiction.
(b) TEST OF VOLITION A total deprivation of
free will.
Time for Filing: Any time before the accused enters

his plea [Sec. 1, Rule 117]
Form and Contents
(a) Must be in writing;
(b) Signed by the accused/his counsel; and
(c) Distinctly specify the factual and legal grounds.
[Sec. 2, Rule 117]
In case of Summary Procedure
MTQ is allowed only if made on the grounds of lack
of jurisdiction or failure to comply with barangay
conciliation proceedings. [Sec. 19, Rules on Summary
Procedure]
GROUNDS [RULE 117, SEC. 3] (1998 BAR)
The following grounds for MTQ are EXCLUSIVE:
(1) Facts charged do not constitute an offense
(2) Court trying the case has no jurisdiction over the
offense charged.
person of the accused.
(4) Officer who filed the information had no authority
to do so.
(5) The information does not conform substantially
to the prescribed form.
(6) More than one offense is charged
Exception: When a single punishment for various
offenses is prescribed by law
(7) Criminal action or liability has been extinguished.
(8) Averments which, if true, would constitute a legal
excuse or justification.
(9) Accused has been previously convicted or
acquitted of the offense charged, or the case against
him was dismissed or otherwise terminated without
his express consent (Double Jeopardy Rule)
PREJUDICIAL QUESTION EXISTS
Rationale: A prejudicial question

determinative of guilt or innocence.
would
be
It may be raised during PI. If the information is filed

in court, it may be raised as ground to suspend the
arraignment.
PENDING PETITION FOR REVIEW OF THE RESOLUTION OF
THE PROSECUTOR WITH THE DOJ OR OFFICE OF THE
PRESIDENT.
The accused should file a motion to suspend and to

secure a ruling on his petition for review within 60
days from the filing of the petition. (DOJ Circular No.
70)
Rationale: Need to observe judicial courtesy and to
avoid legal complications in case the resolution
would be different from the offense for which the
accused was arraigned, especially if it would upgrade
the offense.
Note: Although the rule is that grounds not asserted

in the motion to quash are waived, the following
objections are not subject to waiver:
(1) Facts charged do not constitute an offense
offense charged
(3) Criminal action or liability has been extinguished
(4) Double jeopardy
With the arraignment of the accused, the DOJ

Secretary can no longer entertain the appeal or
petition for review because petitioner had already
waived or abandoned the same. [Gandarosa v. Flores,
July 17, 2007]
FACTS CHARGED DO NOT CONSTITUTE AN OFFENSE
An information which does not charge an offense or

does not allege essential elements of a crime is void.
PENDING MOTION TO QUASH
If petition for review is not resolved within 60 days,

court may insist on arraigning already
Test: WON the facts alleged, if hypothetically

admitted, would establish the essential elements of
the offense, as defined by law without considering
matters aliunde. [People v. Romualdez (2008)]
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CRIMINAL PROCEDURE
place where he may be found. [Parulan v. Director of

Prisons (1968)]
That a) the missing element may be proved during

the trial or that b) the prosecution has presented
evidence to establish the same cannot have the effect
of validating the void information or of proving an
offense which does not exist. [People v. Asuncion
(1988)]
COURT HAS NO JURISDICTION OVER THE PERSON OF THE

ACCUSED
How jurisdiction is acquired

(a) By arrest of the accused; or
(b) By his voluntary appearance in court.
Instead of dismissing, the court should give the

prosecution an opportunity to amend the
information. [Rule 117, Sec. 4]
(a) Should the prosecutor fail to make the
amendment or should the information suffer from
the same defect despite amendment, the MTQ shall
be granted. [Rule 117, Sec. 4]
(b) When the prosecutor dismisses the case, the
prosecutor should file a valid information, not a
petition for review for certiorari.
It is waivable expressly or by implication, unlike

jurisdiction over the territory and the subject matter.
When the accused files a MTQ based on this ground,
he must do so only on this ground. If he raises other
grounds, he is deemed to have submitted his person
to the jurisdiction of the court. [Sanchez v. Demetriou
(1993)]
The defect is not cured by a failure to move to quash

or by a plea of guilty. [Suy Sui v. People (1953)]
When the objection is raised, the court should

resolve it before conducting trial to avoid
unnecessary expenditure of time and money. [Mead
v. Argel (1982)]
General Rule: In a MTQ, facts other than those

alleged in the complaint/information may NOT be
considered by the court.
OFFICER WHO FILED INFORMATION HAD NO AUTHORITY TO

DO SO
Exceptions:
(a) Facts already admitted by the prosecution [People
v. Navarro];
(b) Undisputed facts apparent from the records of
the PI and not denied by the prosecutor. [Salonga
v. Pano (1985)]
(c) Undisputed or undeniable facts that destroy the
prima facie truth accorded to allegations of the
information. [People v. de la Rosa (1988)]
(d) ROC expressly permits the investigation of facts
alleged. [People v. Alagao (1966)] [Rule 117, Sec.
2(f)(h), 4 & 5]
Authority to file and prosecute criminal cases is

vested in:
(a) Provincial fiscals and their assistants.
(b) City fiscals and their assistants.
(c) Chief State Prosecutor and his deputies
(d) Other officers authorized by law (Ombudsman,
COMELEC, etc.)
The prosecutor who signed the information must
have territorial jurisdiction to conduct preliminary
investigation of the offense. [Cudia v. CA (1998)]
An Information filed in the Sandiganbayan must be
signed by a graft investigating officer with prior
approval of the Ombudsman.
COURT HAS NO JURISDICTION OVER THE OFFENSE

CHARGED
Jurisdiction over the subject matter: The power to

adjudge concerning the general question involved
(See Discussion on Jurisdiction)
Election Offenses: Must be signed by the duly

deputized prosecutors and legal officers of the
COMELEC.
In a criminal prosecution, the place where the offense

was committed not only determines venue, but is an
essential element of jurisdiction. [Rule 110, Sec. 15;
Lopez v. City Judge (1966)]
Lack of authority of the officer to is not cured by

silence, acquiescence, express consent or even by
amendment.
In private crimes, the complaint of the offended party

is necessary to confer authority to the court.
COMPLAINT/INFORMATION
DOES
NOT
SUBSTANTIALLY TO THE PRESCRIBED FORM
The court had jurisdiction over the case since, for as

long as he continues to evade the service of his
sentence, he is deemed to continue committing the
crime, and may be arrested without warrant at any
CONFORM
The formal and substantial requirements are

provided for in Rule 110, Sec. 6-12.
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General Rule: Lack of substantial compliance renders

the accusatory pleading nugatory.
Protection from prosecution under a statute of

limitation is a substantive right. [People v.
Exception: Mere defects in matter of form may be

cured by amendment.
Objections not raised are deemed waived, and the
accused cannot seek affirmative relief on such
ground nor raise it for the first time on appeal.
[People v. Garcia (1997)]
CONTAINS AVERMENTS WHICH, IF TRUE,

CONSTITUTE A LEGAL EXCUSE OR JUSTIFICATION
WOULD
Justifying Circumstances [Art 11, RPC]
Vague or broad allegations are generally not

grounds for a MTQ. The correct remedy is to file for a
bill of particulars. [Rule 116, Sec. 9]
Exempting Circumstances [Art 12, RPC]

DISTINGUISH FROM DEMURRER TO EVIDENCE
Motion to Quash
MORE THAN ONE OFFENSE IS CHARGED
Demurrer to Evidence
Filed before entering plea Filed after the prosecution

has rested its case
General Rule: The complaint or information must

charge only one offense. [Rule 110, Sec. 13]
Does not go into the Based

upon
the
merits of the case
inadequacy
of
the
evidence adduced by the
prosecution
Exception: Those cases in which existing laws

prescribe a single punishment for various offenses.
(a) Complex and compound crimes, EXCEPT where
one offense was committed to conceal another.
(b) An offense INCIDENTAL to the gravamen of the
offense charged.
(c) A specific crime set forth in various counts, each
of which may constitute a distinct offense. The
narration of the specific of the specific acts is
considered a bill of particular of facts upon which the
inference of guilt of the accused may be based
[People v. Yap (1968)]
Grounds are stated in Ground is insufficiency of

Rule 117
evidence to convict
Does not require a prior May be filed either with
leave of court
leave or without leave of
court
This ground is waivable. The accused may be

convicted of all the offenses alleged and proved if he
goes to trial without objecting to the inclusion of 2 or
more separate offenses in the same information.
[People v. Villamor (1998)]
If the criminal acts are committed on different
occasions, each constitutes a separate offense.
Granting
does
not
necessarily
follow
a
dismissal (Court may
order the filing of a new
complaint or information)
Granting is deemed an
acquittal
and
would
preclude the filing of
another information or
appeal by the prosecution
If the court, in denying the

motion to quash acts with
grave abuse of discretion,
then
certiorari
or
prohibition lies
The order denying the

motion for leave to file a
demurrer shall not be
reviewable by appeal or
by
certiorari
before
judgment
If the court denies the
demurrer to evidence filed
with leave of court, the
accused may adduce
evidence in his defense.
When the demurrer is
filed without leave, the
accused waives the right
to present evidence and
submits the case for
judgment [Sec. 23, Rule
119]
CRIMINAL ACTION OR LIABILITY HAS BEEN EXTINGUISHED
How criminal liability is extinguished

(a) Death of the accused - Liability for pecuniary
penalties is extinguished only if death occurs
before final judgment.
(b) Service of Sentence - Execution must be by virtue
of a final judgment and in the form prescribed by
law.
(c) Amnesty
(d) Absolute pardon
(e) Prescription of the crime
(f) Prescription of the penalty
(g) Pardon in private offenses
Enjoyment of an accrued right cannot forever be left
on a precarious balance. [People v. Reyes (1989)]
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EFFECTS OF SUSTAINING THE MOTION TO

QUASH
Court order sustaining motion
General Rule: Court may order that another
complaint or information be filed. [Rule 117, Sec. 5]
Consequence:
Arraignment
General Rule: If in custody, the accused shall not be

discharged unless admitted to bail. [Rule 117, Sec. 5]
The order must state either release of the accused or
cancellation of his bond.
EXCEPTION TO THE RULE THAT SUSTAINING

THE MOTION IS NOT A BAR TO ANOTHER
PROSECUTION (BAR 1994)
General Rule: A MTQ will not be a bar to another
prosecution for the same offense. [Rule 117, Sec. 6]
Exception: When there is no order sustaining the

motion is made OR if there is one, no new
information is filed within the time specified in the
order or within such further time as the court may
allow for good cause.
Exception: If the ground for the quashal is either:

(1) The criminal action or liability has been
extinguished; OR
(2) The accused has been previously convicted, or in
jeopardy of being convicted, or acquitted of the
offense charged.
Exception to the exception: If he is in custody for

another charge.
Remedies of the prosecution
General Rule: To amend the information to correct
the defects if the TC makes the order, and thereafter
prosecute on the basis of the amended information.
[Rule 117, Sec. 4]
DOUBLE JEOPARDY
The right against double jeopardy prohibits the
prosecution for a crime of which he has been
previously convicted or acquitted [Caes v. IAC, 179
SCRA 54]
Exception: Prosecution is precluded where the

ground for quashal would bar another prosecution
for the same offense.
RULE OF DOUBLE JEOPARDY
When a person is charged with an offense and the

case is terminated either by acquittal or conviction or
in any other manner without the express consent of
the accused, the latter cannot again be charged with
the same or identical offense. [Rule 117, Sec. 3(i)]
Prosecution may appeal from the order of quashal to

the appellate court.
If the information was quashed because it did not
allege the elements of the offense, but the facts so
alleged constitute another offense under a specific
statute, the prosecution may file a complaint for
such specific offense where dismissal is made prior
to arraignment and on MTQ. [People v. Purisima
(1978)]
KINDS OF DOUBLE JEOPARDY [Art III, Sec. 21, Consti]
(1) No person shall be put twice in jeopardy for the

SAME OFFENSE.
(2) When an act punished by a law and an ordinance,
conviction or acquittal under either shall be a bar to
another prosecution for the SAME ACT.
Order granting MTQ
Interlocutory
Final Order
Not appealable absent a

showing of GAD. If there
is GAD, then file petition
for certiorari
Immediately appealable
but subject to rules on
double jeopardy
Consequence:
(Prosecution):
Amend
information if possible
Note: The remedy for an order denying a MTQ is to

go to trial, without prejudice to reiterating the special
defenses invoked in their MTQ. [Serana v.
Sandiganbayan (2008)] However, if the court in
denying the motion to quash acts without or in
excess of jurisdiction or with grave abuse of
discretion, then certiorari or prohibition lies. [Lazarte
v. Sandiganbayan; Javier v. Sandiganbayan (2009)]
Exception: If MTQ was based on the following:

(1) Criminal action or liability has been extinguished
(2) Double jeopardy
Order denying MTQ
SAME OFFENSE
The offenses are penalized either by different

sections of the same law or by different statutes.
Must examine the essential elements of each:
Test: WON evidence that proves one offense would
likewise prove the other. [People v. Ramos (1961)]
Does not dispose of the Disposes of the case upon

case upon its merits
its merits
It is not necessary to have absolute identity. [People

v. Relova (1987)]
Proper remedy: appeal Proper remedy: appeal

after the trial
the order
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CRIMINAL PROCEDURE
SAME ACT
An offense penalized by ordinance is, by definition,

different from an offense penalized under a statute.
Hence, they would never constitute double jeopardy.
However, the second sentence of the constitutional
protection was precisely intended to extend to
situations not covered by the first sentence. Although
the prior offense charged under an ordinance be
different from the offense charged under a national
statute, the constitutional protection is available
provided that both arise from the same act or set of
acts. [People v. Relova (1987)]
DISMISSAL = ACQUITTAL
(a) Demurrer to evidence

(b) Dismissal due to violation of right to speedy trial
(even if dismissal was upon motion of the
accused or with his express consent)
DISMISSAL VS. ACQUITTAL
Liability is produced both under an ordinance and a

national statute.
Dismissal
Acquittal
Does not decide the case

on the merits. Does not
determine innocence or
guilt
Always based on the

merits. Defendants guilt
was not proven beyond
reasonable doubt.
Double jeopardy will not Double jeopardy always

always attach
attaches
REQUISITES TO SUCCESSFULLY INVOKE DOUBLE JEOPARDY
(a) A first jeopardy must have attached;

(b) The first jeopardy must have been validly
terminated; and
(c) The second jeopardy must be for the same
offense OR the second offense necessarily
includes or is necessarily included in the offense
charged in the first information, or is an attempt
to commit the same or a frustration thereof
[People v. Espinosa, 409 SCRA 256]
Tests for determining whether the two offenses are

identical: There is IDENTITY between the two
offenses not only when the second offense is exactly
the same as the first, but also when the second
offense is an attempt to or frustration of or is
necessarily included in the offense charged in the
first information.
Exception to the Identity Rule:
(1) The graver offense developed due to supervening
facts arising from the same act or omission
constituting the former charge.
(2) The facts constituting the graver charge became
known or were discovered only after a plea was
entered in the former complaint or information.
(3) The plea of guilty to the lesser offense was made
without the consent of the prosecutor and of the
offended party EXCEPT when offended party
failed to appear during such arraignment.
REQUISITES FOR FIRST JEOPARDY TO ATTACH
(a) The accused has been convicted/acquitted, OR

the case against him was dismissed/terminated
without his express consent;
(b) That the conviction, acquittal or dismissal was
made by the court with competent jurisdiction;
(c) There is a valid complaint or information or other
formal charge is sufficient in form and substance
to sustain conviction;
(d) The accused pleaded to the charge. [Riano, citing
several cases People v. Honrales (2010)]
PROVISIONAL DISMISSAL (BAR 2003) [SEC. 8,

RULE 117]
Exception: A dictated, coerced and scripted verdict of

acquittal is a void judgment. It neither binds nor bars
anyone. [Galman v. Sandiganbayan (1986)]
DEFINITION
A case is dismissed without prejudice to its being

refiled or revived.
WITHOUT EXPRESS CONSENT

It refers only to dismissal or termination of the case.
It does NOT refer to the conviction or acquittal.
[People v. Labatete (1960)]
Rule: Cases are provisionally dismissed where there

has already been arraignment and the accused
consented to a provisional dismissal.
If consent is not express, dismissal will be regarded

as final i.e. with prejudice to refilling. [Caes v. IAC
(1989)]
Grounds for provisional dismissal

Section 8 does not state the grounds for provisional
dismissal. However, according to the case of Los
Baos v. Pedro (2007), the delimitation of the
grounds available in a MTQ suggests that where the
grounds cited are those listed under Section 3, then
the appropriate remedy is to file a motion to quash,
Exception: Dismissal has the effect of acquittal even

with the consent of the accused when predicated on
(1) insufficiency of the prosecutions evidence or (2)
denial of the right to a speedy trial. [Alamario v. CA
(2001)]
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and not any other remedy. Conversely, where a

ground does not appear under Section 3, then a
motion to quash is not a proper remedy. A motion
for provisional dismissal may then apply if the
conditions required by Section 8 obtain.
(3) Notice to the offended party
Pre-trial
WHEN DISMISSAL BECOMES PERMANENT: TIME BAR RULE
JUDICIAL AFFIDAVIT RULE (A.M. No. 12-8-8-SC):
(a) One year after issuance of the order without the

case having been revived for offenses punishable:
[Rule 117, Sec. 8]
(1) By imprisonment not exceeding 6 yrs
(2) By fine of any amount
(3) By both
(b) 2 yrs after issuance of the order without the case
having been revived for offenses punishable by
imprisonment of more than 6 yrs.
(c) The State may revive beyond the periods provided
there is a justifiable necessity for the delay.
(d) The Court is not mandated to apply Sec. 8
retroactively simply because it is favorable to the
accused. The time-bar under the new rule was
fixed for the benefit of the State and the accused,
and not for the accused only. [People v. Lacson
(2003)]
Sec. 9: Application of rule to criminal actions.

(a) This rule shall apply to all criminal actions:
(1) Where the maximum of the imposable penalty
does not exceed six years;
(2) Where the accused agrees to the use of
judicial affidavits, irrespective of the penalty
involved; or
(3) With respect to the civil aspect of the actions,
whatever the penalties involved are.
(b) The prosecution shall submit the judicial
affidavits of its witnesses not later than five days
before the pre-trial, serving copies if the same
upon the accused. The complainant or public
prosecutor shall attach to the affidavits such
documentary or object evidence as he may have,
marking them as Exhibits A, B, C, and so on. No
further judicial affidavit, documentary, or object
evidence shall be admitted at the trial.
(c) If the accused desires to be heard on his defense
after receipt of the judicial affidavits of the
prosecution, he shall have the option to submit
his judicial affidavit as well as those of his
witnesses to the court within ten days from
receipt of such affidavits and serve a copy of each
on the public and private prosecutor, including
his documentary and object evidence previously
marked as Exhibits 1, 2, 3, and so on. These
affidavits shall serve as direct testimonies of the
accused and his witnesses when they appear
before the court to testify.
Conditions sine qua non to the application of the

time-bar rule:
(a) The prosecution with the express conformity of
the accused OR the accused moves for the
provisional (sin perjucio) dismissal of the case; OR
both the prosecution and the accused move for a
provisional dismissal of the case;
(b) The offended party is notified of the motion for
the provisional dismissal of the case
(c) The court issues an order granting the motion and
dismissing the case provisionally;
(d) The public prosecutor is served with a copy of the
order of provisional dismissal of the case. [People v.
Lacson (2003)]
MATTERS TO BE CONSIDERED DURING PRETRIAL
HOW TO REVIVE A CASE:
(1) Refiling of the information

(2) Filing of a new information for the same offense
or one necessarily included in the original offense
charged.
Section 1. Pre-trial; mandatory in criminal cases

Pre-trial is MANDATORY in all criminal cases. Its
main objective is to achieve an expeditious resolution
of the case.
REQUISITE PROCEDURE [RULE 117, SEC. 8]
Motion can be made:

(1) By the prosecution, with the express conformity of
the accused
(2) By the accused
(3) By both
COVERAGE [RULE 118, SEC. 1]
The court shall order pre-trial in ALL criminal cases

cognizable by the Sandiganbayan, RTC and MTC or
MTCC or MCTC or MeTC.
PERIOD [RULE 118, SEC. 1]
Requisites for Provisional Dismissal (See Conditions

sine qua non for time-bar rule):
(1) Consent of the prosecutor
(2) Consent of the accused
General Rule: After arraignment and within 30 days

from the time the court acquires jurisdiction over the
person of the accused.
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multi-count indictment in return for a lighter

sentence than that for the graver charge. [People v.
Mamarion (2003)]
Exception: If a shorter period is provided by special or

SC circulars.
THINGS CONSIDERED DURING PRE-TRIAL
[RULE 118, SEC. 1]
/ PURPOSES
The conviction of the accused of the lesser offense

precludes the filing and prosecution of the offense
originally charged in the information, EXCEPT when
the plea of guilty to a lesser offense is without the
consent of the offended party and the prosecutor.
[People v. De Luna (1989); Rule 117, Sec. 7 (c)]
(a) Plea bargaining

(b) Stipulation of facts
(c) Marking for identification of evidence
(d) Waiver of objections to admissibility of evidence
(e) Modification of the order of trial if accused admits
the charge but interposes a lawful defense
(reverse trial)
(f) Other matters that will promote a fair and
expeditious trial of the civil and criminal aspects
of the case
Rule 116, Section 2: Plea of guilty to a lesser offense.

At arraignment, the accused, with the consent of the
offended party and the prosecutor, may be allowed
by the trial court to plead guilty to a lesser offense
which is necessarily included in the offense charged.
After arraignment but before trial, the accused may
still be allowed to plead guilty to said lesser offense
after withdrawing his plea of not guilty. No
amendment of the complaint or information is
necessary.
ROLE OF THE JUDGE
During the pre-trial, the judge shall be the one to ask

questions on issues raised therein and all questions
must be directed to him to avoid hostilities between
the parties. [SC AM 03-1-09-SC]
EFFECT WHEN THE PROSECUTION AND THE OFFENDED

PARTY AGREE TO THE PLEA OFFERED BY THE ACCUSED
STIPULATION OF FACTS
This is no longer prohibited in criminal cases. [People

vs Hernandez (1996)]
The Court shall:

(a) Issue an order which contains the plea bargaining
arrived at;
(b) Proceed to receive evidence on the civil aspect of
the case; and
(c) Render and promulgate judgment of conviction,
including the civil liability or damages duly
established by the evidence [SC AM 03-1-09-SC]
However, in a case of rape with the allegation that

victim is below 12 yrs of age which qualifies said
crime and increases its penalty to death, nothing
short of proof beyond reasonable doubt of every fact
necessary to constitute the elements of the crime
must be established. Circumstances that qualify a
crime and increases its penalty to death cannot be
the subject of stipulation. [People vs Sitao (2002)]
PRE-TRIAL AGREEMENT
FORM
MARKING FOR IDENTIFICATION OF THE EVIDENCE OF

PARTIES
General Rule: Court approval is required.
Proffer of exhibits is not allowed. It ought to be done

at the time a party closes the presentation of
evidence.
Exception: Agreements not covering matters referred

to in Rule 118, Sec. 1. [SC A.M. No. 03-1-09-SC]
REQUIRED FORM OF PRE-TRIAL AGREEMENT
WHAT THE COURT SHOULD DO WHEN

PROSECUTION AND OFFENDED PARTY AGREE
TO THE PLEA OFFERED BY THE ACCUSED
(1) Must be in writing

(2) Signed by the accused
(3) Signed by his counsel
PLEA BARGAINING
If this is not followed, the admissions cannot be used

against the accused (i.e. inadmissible in evidence).
The constitutional right to present evidence is waived
expressly.
It is the process in criminal process whereby the 1)

accused, 2) offended party, and the 3) prosecution
work out a mutually satisfactory disposition of the
case subject to court approval. [See also DOJ Circular
No. 35 (June 31, 1990), as amended by Circular No. 55
for the guidelines on plea bargaining as well as note
on Rule 116]
EFFECT
The stipulations become binding on the parties who

made them. They become judicial admissions of the
fact or facts stipulated. (2008 Bar)
It usually involves the defendants pleading guilty to

a lesser offense or to one or some of the counts of a
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Even if placed at a disadvantageous position, a party

may not be allowed to rescind them unilaterally; he
must assume the consequences of the disadvantage.
[Bayas vs Sandiganbayan (2002)]
(b) Limits the trial to those matters not disposed of

(c) Control the course of the action during trial
Exception: If modified by the court to prevent
manifest injustice.
NON-APPEARANCE DURING PRE-TRIAL [RULE

118, SEC. 3]
The court may impose proper sanctions or penalties
(reprimand, fine or imprisonment), if counsel for the
accused or the prosecutor:
(1) does not appear at the pre-trial conference; and
(2) does not offer an acceptable excuse,
REFERRAL OF SOME CASES FOR COURT

ANNEXED MEDIATION AND JUDICIAL DIPUTE
RESOLUTION
A.M. No. 03-1-09-SC
RE: PROPOSED RULE ON GUIDELINES TO BE
OBSERVED BY TRIAL COURT JUDGES AND CLERKS
OF COURT IN THE CONDUCT OF PRE- TRIAL AND
USE OF DEPOSITION-DISCOVERY MEASURES
RESOLUTION
Rationale: to enforce the mandatory requirement of

pre-trial in criminal cases. [Rule 118, Sec. 1]
Note: The accused is not included because his
constitutional right to remain silent may be violated.
The accused is not required to attend (unless
ordered by the court) and is merely required to sign
the written agreement arrived at in the pre-trial
conference, if he agrees to the contents of such.
CRIMINAL CASES
After the arraignment, the court shall forthwith set
the pre-trial conference within thirty days from the
date of arraignment, and issue an order:
(a) Requiring the private offended party to appear
thereat for purposes of plea-bargaining except
for violations of the Comprehensive Dangerous
Drugs Act of 2002, and for other matters
requiring his presence;
(b) Referring the case to the Branch COC, if
warranted, for a preliminary conference to be set
at least three days prior to the pre-trial to mark
the documents or exhibits to be presented by
the parties and copies thereof to be attached to
the records after comparison and to consider
other matters as may aid in its prompt
disposition; and
(c) Informing the parties that no evidence shall be
allowed to be presented and offered during the
trial other than those identified and marked
during the pre-trial except when allowed by the
court for good cause shown. In mediatable
cases, the judge shall refer the parties and their
counsel to the PMC unit for purposes of
mediation if available.
Complainant is also not required to appear during

pre-trial. It is the prosecutor who is required to
appear at the pre-trial.
PRE-TRIAL ORDER [RULE 118, SEC. 4]
ISSUANCE
(a) Issued by the court

(b) Within 10 days after the pre-trial. [SC AM 03-109-SC]
(c) Judgment of acquittal based on pre-trial despite
disputed documents and issues of fact amounts to
grave error and renders the judgment void.
[People vs Santiago (1989)]
CONTENTS
(a) Actions taken;

(b) Facts stipulated;
(c) Evidence marked;
(d) Admissions made;
(e) The number of witnesses to be presented; and
(f) The schedule of trial.
Trial
Note: Letters (d) to (f) are added by SC AM 03-1-09SC to the requirements under Rule 118, Sec. 4
INSTANCES WHEN PRESENCE OF ACCUSED IS

REQUIRED BY LAW
EFFECT
(a) Binds the Parties
PRESENCE IS MANDATORY:
The procedure is substantially the same in civil

cases, except that any modification of the pretrial order in civil cases must be made before the
trial. No such limitation is provided for in criminal
cases. (1997 Bar)
(a) During trial, for purposes of identification;

(b) At arraignment; [Rule 116, Sec. 1(b)]
(c) At the promulgation of judgment;
Exception: If the conviction is for a light offense.
[Rule 120, Sec. 6]
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REQUISITES
BEFORE
TRIAL
CAN
BE
SUSPENDED ON ACCOUNT OF ABSENCE OF
WITNESS
(a) The witness must be either absent or unavailable
(b) The absent or unavailable witness must be
essential [Riano]
waiver. The statement taken may be admitted in

behalf of or against the accused.
TRIAL IN ABSENTIA (1998 BAR)
REQUISITES
ABSENCE OR UNAVAILABILITY OF AN ESSENTIAL WITNESS
(1) Accused has been arraigned;

(2) He was duly notified of trial;
(3) His failure to appear is unjustified.
Absent means that his whereabouts are unknown

or cannot be determined by due diligence.
Purpose: To speed up disposition of cases.

General rule: The right to be present at ones trial
may be waived.
Unavailable means that his whereabouts are

known but presence for trial cannot be obtained by
due diligence.
Exceptions: At certain stages: [Lavides v. CA (2000)]

(a) Arraignment and plea
(b) Promulgation of sentence, unless for light offense
(c) During trial whenever necessary for ID purposes
Exception to the ID purposes exception: If the
accused unqualifiedly admits in open court
after arraignment that he is the person
named as the defendant in the case on trial.
Essential witness: indispensible, necessary, or

important in the highest degree [Blacks Law
Dictionary]
The period of delay resulting from the absence or
unavailability of an essential witness shall be
excluded in computing the time within which trial
must commence. [Rule 119, Sec. 3]
REMEDY WHEN ACCUSED IS NOT BROUGHT TO

TRIAL WITHIN THE PRESCRIBED PERIOD
However, in any case in which:

(1) Counsel for the accused, the public prosecution or
public attorney,
(2) KNOWINGLY allows the case to be set for trial
WITHOUT disclosing the fact that a necessary
witness would be unavailable for trial OR
otherwise willfully fails to proceed to trial without
justification consistent with the provisions of this
Act,
EFFECT OF DELAY [RULE 119, SEC. 9]
On motion of the accused, the information may be

dismissed on the ground of denial of his right to
speedy trial. (2007 Bar)
Factors to consider: (a) duration of the delay; (b)
reason therefor; (c) assertion of the right or failure to
assert it; and (d) prejudice caused by such delay.
[Mari and People v. Hon. Gonzales (2011)]
The court may, without prejudice to any appropriate

criminal and/or administrative charges to be
instituted by the proper party against the erring
counsel if and when warranted, punish any such
counsel or attorney. (Speedy Trial Act)
Must be raised prior to trial; otherwise, the right to

dismiss is considered waived under Rule 119, section
9.
Burden of Proof
(a) The accused has the burden of proving the
ground of denial of right to speedy trial for the
motion.
(b) The prosecution has the burden of going forward
with the evidence to establish the exclusion of
time under Rule 119, Sec. 3.
CONDITIONAL EXAMINATION [RULE 119, SEC. 15]
When it satisfactorily appears that a witness for the

prosecution is too sick or infirm to appear at the trial
as directed by the court, or has to leave the
Philippines with no definite date of returning, he may
forthwith be conditionally examined before the court
where the case is pending.
Subject to the rules on double jeopardy. Hence, if

with prejudice, the case cannot be revived anymore.
Such examination, in the presence of the accused, or

in his absence after reasonable notice to attend the
examination has been served on him, shall be
conducted in the same manner as an examination at
the trial.
REQUISITES FOR DISCHARGE OF ACCUSED TO

BECOME A STATE WITNESS
DISCHARGE OF A CO-ACCUSED
Failure or refusal of the accused to attend the

examination after notice shall be considered a
General rule: It is the duty of the prosecutor to include

all the accused in the complaint/information.
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Exception: Prosecutor may ask the court to discharge

one of them after complying with the conditions
prescribed by law. [Rule 119, Sec. 17] This applies only
when the information has already been filed in court.
Conviction of the accused against whom discharged

state witness testified is NOT required.
Subsequent amendment of the information does not
affect discharge. [People v. Taruc (1962)]
REQUISITES [RULE 119, SEC. 17]
(1) Two or more persons are jointly charged with the

commission of any offense.
(2) Upon motion of the prosecution before resting its
case
Petition for discharge is filed before the defense has
offered its evidence. [People v. Anion (1988)]
(3) Hearing in support of the discharge where the
prosecution is to present evidence and the sworn
statement of each proposed state witness.
(4) The court is satisfied of the following:
(a) Absolute necessity for the testimony of the
accused whose discharge is requested;
DEMURRER TO EVIDENCE (1998, 2001, 2004

BAR)
DEFINITION
Objection by one of the parties to the effect that the

evidence which his adversary produced is insufficient
in point of law, whether true or not, to make out a
case or sustain the issue. [Gutib v. CA (1999)]
General Rule: An order granting the accuseds
demurrer to evidence amounts to an acquittal.
He alone has the knowledge of the crime, and

not when his testimony would simply
corroborate or strengthen the evidence in the
hands of the prosecution. [Flores v.
Exception: When there is a finding that there was

grave abuse of discretion on the part of the trial court
in dismissing a criminal case by granting the
accuseds demurrer to evidence. [Hon. Mupas v.
People (2011)]
(b) There is no other direct evidence available for

the proper prosecution of the offense, except
the testimony of the said accused;
(c) The testimony can be substantially
corroborated in its material points;
(d) The accused does not appear to be the most
guilty;
(e) The accused has not, at any time, been
convicted of any offense involving moral
turpitude
The order granting the demurrer is not appealable

but may be reviewed via certiorari (Rule 65). [People
v. Sandiganbayan, Marcos, et al. (2012)]
Purpose: to prevent the filing of demurrer based on
frivolous and flimsy grounds.
HOW INITIATED [RULE 119, SEC. 23]
By the court motu proprio, after giving the

prosecution the opportunity to be heard;
Upon demurrer to evidence filed by the accused:
(a) With leave of court;
(b) Without leave of court.
Note: The evidence adduced in support of the

discharge shall automatically form part of the trial.
MOTION FOR LEAVE TO FILE DEMURRER [RULE
119, SEC.
23]
(a) It must specifically state its grounds.
(b) It must be filed within a non-extendible period of
5 days after the prosecution rests (i.e. after the
court shall have ruled on the prosecutions formal
offer). Prosecution may then oppose within a
non-extendible period of 5 days from receipt.
(c) If leave of court is granted, the demurrer must be
filed within a non-extendible period of 10 days
from notice. Prosecution may oppose within a
similar period.
EFFECTS OF DISCHARGE OF ACCUSED AS STATE

WITNESS
EFFECT OF DISCHARGE
General rule: The order of discharge shall: [Rule 119,

Sec. 18]
(a) Amount to an acquittal of the discharged
accused;
(b) Bar future prosecutions for the same offense.
Exception: If the accused fails/refuses to testify
against his co-accused in accordance with his sworn
statement constituting the basis for his discharge.
EFFECT OF GRANTING DEMURRER
Any error in asking for and in granting the discharge

cannot deprive the discharged of the acquittal and
the constitutional guaranty against double jeopardy.
[People v. Verceles (2002)]
The court dismisses the action on the ground of

insufficiency of evidence. [Rule 119, Sec. 23]
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CRIMINAL PROCEDURE
Judgment
Sufficient evidence for frustrating a demurrer is

evidence that proves: [Gutib v. CA (1999)]
(a) Commission; and
(b) Precise degree of participation.
REQUISITES OF A JUDGMENT
FORM [RULE 120, SEC. 1]
EFFECT OF DENIAL OF MOTION FOR LEAVE TO FILE

DEMURRER
(a) Written in official language.
(a) Accused should choose to insist on filing

demurrer even without leave (see consequences
below) OR to present evidence for his defense
(b) Order denying the motion for leave or order
denying the demurrer itself, is not reviewable by
appeal or by certiorari before judgment. [Rule
119, Sec. 23]
(c) It is interlocutory, but it may be assigned as error
and reviewed in the appeal that may be taken
from the decision on the merits [Cruz v. People
(1999)]
If given verbally, it is incomplete. [People v.

Catolico (1972)]
(b) Personally and directly prepared by the judge.
(c) Signed by the judge.
The judge who presided over the entire trial
would be in a better position to ascertain the
truth or falsity of the testimonies.
But the judge who only took over can render a
valid decision by relying on the transcript. It does
not violate due process. [People v. Badon (1999)]
RIGHT OF THE ACCUSED TO PRESENT EVIDENCE AFTER

DEMURRER IS DENIED [RULE 119, SEC. 23]
(d) Contains clearly and distinctly a statement of

facts proved and the law upon which judgment is
based.
Filed with Leave of Court Filed without Leave of Court

May adduce evidence Waives the right to present
in his defense
evidence
There is sufficient compliance if the decision

summarizes the evidence of both parties,
synthesizes the findings and concisely narrates
how the offense was committed.
Purpose: To determine Submits

the
case
for
WON demurrer was judgment on the basis of the
filed merely to stall the evidence for the prosecution
proceedings
Implied leave of court
is no longer sufficient
and prevents accused
from
presenting
evidence [e.g. accused
files
motion
with
reservation to present
evidence
in
case
motion is denied]
Failure on the part of the TC to make a finding of

fact is a revocable error.
If there are 2 or more accused

and only one presents a
demurrer without leave of
court,
JUDGE WHO PENNED THE DECISION NEED NOT BE THE ONE

WHO HEARD THE CASE
The fact alone that the judge who heard the evidence
was not the one who rendered the judgment but
merely relied on the record of the case does not
render his judgment erroneous or irregular,
especially when the evidence on record is sufficient
to support its conclusion. [People v. Alfredo (2010)]
General rule: The court may

defer resolution until decision
is rendered on the other
accused
Exception: If it can be shown
from the decision that the
resolution on the demurrer
was rendered not only on the
basis of the prosecutions
evidence but also on the
evidence adduced by his coaccused
CONTENTS OF JUDGMENT
CONVICTION [SEC. 2, RULE 119]
The judgment of conviction shall state:

(1) The legal qualification of the offense constituted
by the acts committed by the accused and the
aggravating/mitigating circumstances which
attended its commission.
(2) The participation of the accused in the offense,
whether as principal, accomplice or accessory
after the fact.
(3) The penalty imposed upon the accused.
The penalty should not be imposed in the
alternative. There should be no doubt as to the
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CRIMINAL PROCEDURE
offense committed and the penalty for it.

(4) The civil liability or damages caused by his
wrongful act/omission to be recovered from the
accused by the offended party, if there is any,
unless the enforcement of the civil liability by a
separate civil action has been reserved/waived.
Exception: He can be convicted of an offense proved

provided it is included in the charge, or of an offense
charged which is included in that which is proved.
[Rule 120, Sec. 4]
(a) The accused can be convicted of an offense only
when it is both charged and proven.
(b) The mere fact that the evidence presented would
indicate that a lesser offense outside the courts
jurisdiction was committed does not deprive the
court of its jurisdiction, which had vested in it
under the allegations in the information.
Proof Beyond Reasonable Doubt

Degree of proof which produces conviction in an
unprejudiced mind. [People v. Bacalzo (1991)]
Judgment for two or more offenses [Sec. 3, Rule 120]
General Rule: Complaint/information must charge
only one offense [Sec. 13, Rule 110]
Exception: Cases in which existing laws prescribe a
single punishment for various offenses [Sec. 13, Rule
110]
Exception to the exception: Where there are facts that

supervened after the filing of the information which
change the nature of the offense.
When an offense includes or is included in another
[Rule 120, Sec. 5]
The offense charged necessarily includes the offense
proved
when
some
of
the
essential
elements/ingredients of the former, as alleged in the
complaint/information, constitute the latter.
General Rule: Duplicitous information is subject to a

motion to quash [Sec. 3(f), Rule 117]
Exception: Defect is waived when accused fails to
move for quashal.
THUS, where the accused fails to object to 2 or more
offenses charged in a single information/complaint
before trial, the court may:
(a) Convict him of as many offenses as are charged
and proved; and
An offense charged is necessarily included in the

offense proved when the essential ingredients of the
former constitute or form part of those constituting
the latter.
Effect
The accused shall be convicted of: [Rule 120, Sec. 4]
(1) The offense proved which is included in the
offense charged; or
(2) The offense charged which is included in the
offense proved
Exception: One of the offenses has been a

necessary means for committing the other
offense and where both have been the result of a
single act.
(b) Impose on him the penalty for each offense,
setting out separately the findings of fact and law
in each offense.
Exception: Maximum duration of offense: Follow
the three-fold rule on the service of penalty.
The right to be informed of the charges has not been

violated because where an accused is charged with a
specific crime, he is duly informed also of lesser
crimes/offenses included therein. [People v. Villamar
(1998)]
Judgment in case of variance between allegation and

proof [Sec. 4, Rule 120]
General rule: The defendant can be convicted only of
the crime with which he is charged.
Where a complex crime is charged and the evidence

fails to support the charge as to one of the
component offenses, the accused can be convicted of
the one which is proven.
Rationale: He has the right to be informed of the

nature of the offense with which he is charged before
he is put on trial. [People v. Guevarra]
State liability for unjust conviction

The DOJ Board of Claims is authorized to
receive/evaluate/process/investigate
claims
of
victims of unjust imprisonment/detention and
victims of violent crimes. [RA 7309]
However, minor variance between the information

and the evidence:
(a) Does not alter the nature of the offense;
(b) Does not determine or qualify the crime or
penalty;
(c) Cannot be ground for acquittal.
Requirements for compensation:

(1) Unjust accusation;
(2) Unjust conviction; and
It is the same as knowingly rendering an unjust
judgment - It is contrary to law or is not
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CRIMINAL PROCEDURE
supported by the evidence and the same is

made with conscious and deliberate intent to do
an injustice. [Art. 204, RPC]
(3) Unjust imprisonment.
The Court may hold accused civilly liable even when

it acquits him. Acquittal extinguishes civil liability
only when the judgment includes a declaration that
the facts from which the civil liability might arise did
not exist.
(a) The court may nonetheless hold the accused
civilly liable in favor of the offended party, or it
may deny the award of civil damages expressly or
impliedly by being silent on the matter.
(b) The losing party may appeal the ruling on the civil
liability, as in any other ordinary appeal, in his
name and not in the name of the People
The Judge acquitting an accused cannot punish him
at the same time.
ACQUITTAL
Definition
A finding of not guilty based on the merits, either:
(a) The evidence does not show that his guilt is
beyond reasonable doubt; or
(b) A dismissal of the case after the prosecution has
rested its case and upon motion of the accused
on the ground that the evidence fails to show
beyond doubt that accused is guilty.
Reasonable Doubt
Doubt engendered by an investigation of the whole
proof and an inability, after such investigation, to let
the mind rest upon the certainty of guilt.
PROMULGATION OF JUDGMENT; INSTANCES OF

PROMULGATION OF JUDGMENT IN ABSENTIA
(1997 BAR)
PROMULGATION
Acquittal [Rule 120]
An official proclamation or announcement of a

judgment or order.
Dismissal [Rule 117]
Terminates the case
Requisites for the valid promulgation of a court

decision:
(1) There must be a judge or judges legally
Decision on the merits Not on the merits but no

based on a finding that finding that accused is not
the accused is not guilty guilty
appointed or elected and actually acting

either de jure or de facto, and
(2) The said judgment must be duly signed and
promulgated during the incumbency of the
judge who signed it. [Miguel v Municipal Trial
Court (1986)]
The judgment shall state whether:

(1) The evidence of the prosecution absolutely failed
to prove the guilt of the accused; or
(2) It merely failed to prove his guilt beyond
reasonable doubt.
Judgment/sentence
does
not
become
a
judgment/sentence in law until it is:
(1) Read and announced to the defendant; or
(2) Has become a part of the record of the court. [US
v. CFI of Manila, 24 Phil 321]
In either case, the judgment shall determine if the

act or omission from which the civil liability might
arise did not exist [Sec. 2, Rule 120]
Number 2 does not extinguish the civil liability
arising from his acts, since the civil liability arose not
from a crime but from the damage caused by such
acts, which can be proven by a lower quantum of
evidence.
Where there is no promulgation of judgment, no

right to appeal accrues.
NOTICE FOR PROMULGATION
Clerk of Court gives notice to accused personally or

through bondsman or warden and counsel.
General rule: The court has authority to express

disapproval of certain acts even if judgment is for
acquittal.
If the accused jumps bail or escapes from prison and

was tried in absentia, notice will be served in last
known address. [Rule 120, Sec. 6]
Exception: The court is not permitted to censure the

accused in a judgment for acquittal no matter how
light, a censure is still a punishment.
Sin perjuicio judgment

A judgment without a statement of the facts in
support of its conclusion to be later supplemented
by the final judgment. [Dizon v. Lopez (1997)]
Acquittal based on reasonable ground does not bar

a separate civil action based on quasi-delict. [Lontoc
v. MD Transit (1988)]
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Merely reading the dispositive portion of the decision

is not sufficient.
Promulgation when accused is confined/detained in

another city
Judgment must state the facts and the law on which

it is based.
While SC has expressed approval of the practice of
some judges withholding the dispositive portion from
their opinions until the very last moment of
promulgation in order to prevent leakage, such refers
to the preparation of the decision and not to
promulgation.
It will be done in the RTC who has jurisdiction over

the place of confinement. In this case, the court
promulgating the judgment shall have authority to
accept notice of appeal and to approve the bail bond
pending appeal. [Sec. 6, Rule 120]
There is no more reason to keep it a secret at the

stage of promulgation.
Promulgation is made by recording the judgment in

the criminal docket and serving a copy at the
accuseds last known address or through counsel.
[Sec. 6, Rule 120]
Failure to appear at the scheduled date of

promulgation
(a) Promulgation where judge is absent [Rule 120,

Sec. 6]
Promulgation date where judge no longer a judge is

void.
The judgment may be promulgated by the clerk

of court when the judge is absent or outside the
province or city.
If at the time of the promulgation, the judge penning

the decision has ceased being a judge of the court,
the decision would not be an act of the court. [People
v. Dimalanta]
(b) Presence of accused required; exception [Rule 120,

Sec. 6]
General rule: Presence of the accused is mandatory.
Exception: Convictions for light offenses.
Conviction for light He may appear through
offense
counsel/representative
To prevent subversion of
Promulgation
in
judicial process and enable
absentia
enforcement of civil liability
No appeal is necessary;
judgment is final and
executory.
Note the old rule that
Verdict of acquittal
presence of the accused
during
promulgation
of
judgment is required only in
case of conviction
Promulgation by a succeeding judge produces no

legal effect since it cannot restore validity to a
document already void.
WHEN DOES JUDGMENT BECOME FINAL [RULE
120, SEC. 7]
JUDGMENT BECOMES FINAL:
(1) After the lapse of the period for perfecting an

appeal;
(2) When the sentence has been partially/totally
satisfied or served;
(3) The accused has expressly waived in writing his
right to appeal, or
(4) When the accused applies for probation, and
thereby waives right to appeal.
(5) Judgment also becomes final when judgment is
an acquittal. [People v. Sandiganbayan (2010)]
If the judgment is for conviction and the failure of the

accused to appear was without justifiable cause, he
shall lose the remedies available in the ROC against
the judgment and the court shall order his arrest.
Exception to finality of judgment if of acquittal: Cases

where death penalty was imposedautomatic
review; judgment does not become final after the
promulgation and by the TCs issuance of a
commitment order. [Sec, 10, Rule 122]
However, within 15 days from promulgation of

judgment, he may surrender and file a motion for
leave of court to avail of these remedies. He shall
state the reasons for his absence.
Note: Before the judgment becomes final, the TC has

plenary power to make, either on motion or motu
proprio, such amendment or alterations as it may
deem best, within the frame of law, to promote the
ends of justice.
If he proves his absence was for a justifiable cause,

shall be allowed to avail of the remedies within 15
days from notice. [Sec. 6, Rule 120; People v. De
Grano (2009)]
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After finality, the TC is divested of authority to

amend/alter the judgment, except to correct clerical
errors.
REQUISITES
That the evidence: [Jose v. CA (1997)]

(a) Was discovered after the trial;
(b) Could not have been discovered and produced at
the trial even with the exercise of reasonable
diligence. [US v. Pico (1982)]
(c) Burden of proving this is on the accused. [US v.
Torrente (1922)]
(d) Is
material,
not
merely
cumulative/corroborative/impeaching; and
(e) Is of such weight that it would probably change
the judgment if admitted.
It must be of weighty influence and will affect the
result of the trial. [People v. Alfaro (2003)]
New trial or Reconsideration

GROUNDS FOR NEW TRIAL [RULE 121, SEC. 2]
That errors of law or irregularities prejudicial to the
substantial rights of the accused have been
committed during the trial;
General rule: Error of the defense counsel in the
conduct of the trial is neither an error of law nor an
irregularity.
EXCEPTIONS
Interest of justice as gauge for introduction of new

evidence:
In People v. Almendras (2003), the court ruled that a
motion for a new trial may be granted on a ground
not specifically provided in the rules, provided that it
is sought in the interest of justice. In that case, the
relief of a new trial was granted to a client who has
suffered by reason of his/her counsels gross mistake
and negligence.
Exception: Acquittal would in all probability have

followed the introduction of certain testimony which
was not submitted at the trial under improper or
injudicious advice of incompetent counsel.
Irregularities must be with such seriousness as to
affect prejudicially the substantial rights of the
accused.
When there is variance in 2 reports:

In People v. del Mundo (1996), the court allowed the
presentation in a new trial of a police report, not new,
and which could have been discovered with due
diligence, because the evidence contained in such
was at such variance with the health officers report
at trial, that its contents raised doubts to the guilt of
the accused.
That new and material evidence has been discovered

which the accused could not with reasonable
diligence have discovered and produced at the trial
and which if introduced and admitted would
probably change the judgment. [Estino v. People
(2007)]. The determinative test is the presence of
due or reasonable diligence to locate the thing to be
used as evidence in the trial. [Briones v. People
(2009)]
EFFECTS OF GRANTING A NEW TRIAL OR

RECONSIDERATION [RULE 121, SEC. 6]
GROUNDS FOR RECONSIDERATION

Errors of law OR fact in the judgment, which requires
no further proceedings. [Rule 121, Sec. 3]
IN ALL CASES:
(a) The original judgment set aside or vacated;

(b) A new judgment is rendered accordingly.
(c) Specific effects when granted upon different
grounds:
REQUISITES BEFORE A NEW TRIAL MAY BE

GRANTED ON GROUND OF NEWLY DISCOVERED
EVIDENCE
Ground
Effect
The Court may:
Errors of law or irregularities All proceedings and evidence affected shall be Allow introduction of additional
committed during the trial
set aside and taken anew
evidence in the interest of justice
If error or irregularity goes into the jurisdiction,
the entire proceeding is void and must be set
aside
Newly-discovered evidence
Evidence already adduced shall stand and the Allow introduction of other such
newly-discovered and such other evidence evidence in the interest of justice
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CRIMINAL PROCEDURE
Ground
Effect
The Court may:
shall be taken and considered together with

the evidence already in the record
REMEDY AGAINST GAD IN GRANTING MNT/MFR
Appeal
The SC
Certiorari or prohibition. Otherwise, the prosecution

may no longer have opportunity to question the
order if accused is acquitted after a new trial is
conducted (because there will be double jeopardy).
[Luciano v. Estrella (1970)]
APPLICATION OF
CRIMINAL CASES
NEYPES
DOCTRINE
IN
FRESH PERIOD TO APPEAL AFTER DENIAL OF MNT/MR
Neypes Doctrine: The Court allows a fresh period of

15 days within which to file the notice f appeal in the
RTC, counted from receipt of the order dismissing a
MNT or MR.
Henceforth, this fresh period rule shall also apply
to Rule 40 governing appeals from the Municipal
Trial Courts to the Regional Trial Courts; Rule 42 on
petitions for review from the Regional Trial Courts to
the Court of Appeals; Rule 43 on appeals from
quasi-judicial agencies to the Court of Appeals and
Rule 45 governing appeals by certiorari to the
Supreme Court. (Neypes v. CA, 2005)
The SC
For cases decided by

RTC
(a) If it involves questions of law
only
(b) If it involves constitutionality or
validity
of
any
treaty/law/ordinance/EO/
regulation or the jurisdiction of
the inferior court
(c) In criminal cases involving
offenses for which the penalty
imposed is death or life
imprisonment
(d) Other
offenses,
which,
although not so punished,
arose out of the same
occurrence or which may have
been committed by the
accused on the same occasion,
as that giving rise to the more
serious offense
CA or Sandiganbayan
HOW APPEAL TAKEN

Note: The right to appeal is not a natural right nor a
part of due process but merely a statutory privilege
and may be exercised only in the manner and in
accordance with the provisions of the law. [Estarija v.
People (2009)]
Appeal
WHO MAY APPEAL
EFFECT OF AN APPEAL
An appeal in a criminal proceeding throws the whole
case open for review and it becomes the duty of the
appellate court to correct an error as may be found
in the appealed judgment, WON it is made the
subject of assignment of errors. [People v. Calayca
(1999)]
General Rule: Any party may appeal from a judgment

or final order [Section 1, Rule 122]
Exceptions:
(1) Party may not appeal if the accused will be placed
in double jeopardy by such action [Section 1, Rule
122]
(2) If the judgment is for conviction and the accused
fails to appear without justifiable cause, he would
lose the remedy to appeal [Sec. 6,Rule 120]
WHERE TO APPEAL [RULE 122, SEC. 2]

Appeal
For cases decided by
The RTC
MTC/MeTC/MCTC
The
RTC or MTC/MeTC/MCTC (if it is
Sandiganbayan government duty-related - i.e. filed
under EO 1, 2, 4 and 14-A)
The CA
RTC (if it involves questions of fact
and of law)
[Rule 122, Sec. 6 and 9]

When appeal to be taken
Within 15 days from promulgation of the judgment or
from notice of the final order appealed from.
The period to appeal shall be suspended from the
time a MNT or MR is filed until notice of the order
overruling the motion has been served upon the
accused or his counsel.
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Cases governed by the Revised Rules on Summary

Procedure
Transmission of record to RTC

Within 5 days from perfection of the appeal, the COC
shall transmit the original record to the appropriate
RTC.
PROCEDURE IN THE CA
(a) Parties and title [Rule 124, Sec. 1]

In all criminal cases appealed to the CA:
APPELLANT The party appealing;
APPELLEE The party adverse to the appellant.
Notification of parties
Upon receipt of the complete record, TSN and
evidence of the case, the RTC COC shall notify the
parties of such fact.
The title of the case shall remain as it was in the

court of origin (i.e. People v. John Doe).
Submission of memoranda/briefs
Within 15 days from receipt of said notice, the parties
may submit memoranda/briefs, or may be required
by the RTC to do so.
(b) Appointment of counsel de oficio [Rule 124, Sec. 2]

(c) Brief for appellant [Rule 124, Sec. 3]
Appellant shall file 7 copies of his brief with the
clerk of court, accompanied by proof of service of
2 copies on the appellee.
Decision
After submission of such memoranda/briefs or upon
the expiration of the period to file the same, the RTC
shall decide the case on the basis of the entire record
of the case and of such memoranda/briefs as may
have been filed.
It shall be filed within 30 days from receipt by the

appellant (his counsel) of the CA clerk of courts
notice that the evidence is already attached to the
record.
[Rule 123, Sec. 1]

General rule: The procedure to be observed in the
MeTC/MTC/MCTC shall be the same as that in the
RTC.
(d) Brief for appellee [Rule 124, Sec. 4]

Appellee shall file 7 copies of his brief with the
clerk of court, accompanied by proof of service of
2 copies on the appellant.
Exceptions:
(1) Where a particular provision applies only to either
of said courts;
(2) Criminal cases governed by the Revised Rules on
Summary Procedure.
It shall be filed within 30 days from receipt of the

appellants brief.
(e) Reply to appelles brief [Rule 124, Sec. 4]
Appellant may (i.e. optional) file a reply brief
covering matters raised in the appellees brief but
not in the brief of the appellant.
Offenses falling under the MTC/MCTCs Jurisdiction:

[Salcedo v. Nobles-Bans (1985)]
Notwithstanding the uniform procedure rule, if the
offense falls under the jurisdiction of the MTC/MCTC,
complaint/information may be filed directly with said
courts or with the City Prosecutors Office.
It must be filed within 20 days from receipt of the

appellees brief.
(f) Extension of time for filing briefs [Rule 124, Sec. 5]
General Rule: Extension of time for the filing of
briefs is not allowed.
Offenses falling under the MeTCs Jurisdiction:

[Salcedo v. Nobles-Bans (1985)]
In Metro Manila and other chartered cities, criminal
cases shall be commenced only by information; thus,
the complaint may be filed only with the Office of the
City Prosecutor
Exception: for good and sufficient cause

It is sought through a motion for extension, which
must be filed before the expiration of the time
sought to be extended.
If the case is directly filed with the court, the case

should not be dismissed. The court should just refer
it to the City Prosecutor for the filing of the
corresponding information.
Court may grant as many extensions as may be

asked. [Gregorio v. CA (1976) ]
(g) Form of briefs [Rule 124, Sec. 6]
Briefs shall be printed/encoded/ typewritten, in
double space, on legal size good quality unglazed
paper, 330mm in length by 216mm in width.
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Likewise, when accused flees after the case has

been submitted for decision, he is deemed to
have waived his right to appeal. [People v. Ang
Gioc (1941)]
Mimeographed copies are not allowed.

(h) Contents of brief
The briefs in criminal cases shall have the same
contents as provided in Rule 44, Sec. 13-14. [Rule
124, Sec. 7]
Exception: Appeal will not be dismissed despite

escape:
(a) In one exceptional case, the appellant took
advantage of a mass jailbreak (because,
according to his counsel de oficio he was
innocent and wanted to elude an unjust
punishment) but was recaptured 2 hours after,
the SC said circumstances were not sufficient
to justify dismissal of the appeal. [People v.
Valencia (1949)]
(b) If there was absolutely no evidence against
the accused as found by the appellate court,
he should be acquitted in order to prevent an
injustice by technicalities. [People v.
Buenaventura (1994)]
(c) In case of automatic review. [People v. Cornelio
(1971)]
(1) Appellants brief: [Rule 44, Sec. 13]

(a) SUBJECT INDEX
(b) ASSIGNMENT OF ERRORS
(c) STATEMENT OF THE CASE
(d) STATEMENT OF FACTS
(e) ISSUES
(f) ARGUMENTS
(g) RELIEF
(h) ATTACHMENT
(2) Appellees brief: [Rule 44, Sec. 14]
(a) SUBJECT INDEX
(b) STATEMENT OF FACTS; or COUNTERSTATEMENT OF FACTS
(c) ARGUMENTS
(C) CA may dismiss the appeal upon appellees

motion or motu proprio.
(i) Dismissal of appeal for abandonment or failure to

prosecute [Rule 124, Sec. 8]
PROMPT DISPOSITION OF APPEAL [Rule 124, Sec. 9]
Grounds:
(A)Appellant fails to file his brief within the
prescribed time;
Appeals of accused who are under detention are

given precedence in their disposition over other
appeals.
Exception: Where the appellant is represented by

a counsel de oficio.
The accused need not be present in court during the

hearing of the appeal.
If failure to file brief on time is the ground,

appellant must be given NOTICE to give him
opportunity to reason out why his appeal should
not be dismissed.
REVERSAL
However, dismissal is proper despite lack of

notice:
Exception: When the CA, after an examination of the

record and of the parties evidence, is of the opinion
that error was committed and such error injuriously
affected the appellants substantial rights.
/ MODIFICATION OF JUDGMENT ON APPEAL

[Rule 124, Sec. 10]
General
rule:
No
judgment
shall
be
reversed/modified.
(a) If appellant has filed a MFR or motion to set

aside the order dismissing the appeal, in
which he stated the reason why he failed to
file his brief on time and the appellate court
denied the motion after considering reason.
[Baradi v. People (1948)]
(b) If appeal was dismissed without notice but
appellant took no steps to have the appeal
reinstated. Such action amounts to
abandonment. [Salvador v. Reyes (1949)]
When it involves credibility of witnesses, appellate

courts will not generally disturb the TCs findings.
Rationale: The TC is in a better position to decide the
question, having seen and heard the witnesses
themselves. [People v. Cabiling (1976)]
SCOPE OF CAS JUDGMENT [Rule 124, Sec. 11]
The CA may:
(1) Reverse/affirm/modify the judgment;
(2) Increase/reduce the penalty imposed by the TC;
(3) Remand the case to the RTC for new trial or
retrial;
(B)If the appellant escapes from prison/confinement,

jumps bail or flees to a foreign country during the
pendency of the appeal.
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UP COLLEGE OF LAW
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(4) Dismiss the case.

When the accused appeals from the sentence of
the TC, he waives the constitutional safeguard
against double jeopardy and throws the whole
case open to the review of the appellate court,
which is then called upon to render such
judgment as law and justice dictate, WON
favorable to the accused and WON made the
subject of assignment of errors. [Ko Bu Lin v. CA
(1982)]
(2) If the judgment also imposes a lesser penalty for

offenses committed on the same occasion or
which arose from the same occurrence that gave
rise to the more severe offense for which death is
imposed, and the accused appeals:
The appeal shall be automatically included in the
case certified for review in the SC
(3) If the CA imposes reclusion perpetua, life
imprisonment or a lesser penalty:
(a) It shall render and enter judgment imposing
such penalty.
(b) Appeal here is not automatic. The accused
has to file a notice of appeal with the CA.
CAS POWER TO RECEIVE EVIDENCE [Rule 124, Sec. 12]

The CA has power to try cases and conduct hearings,
receive evidence and perform any and all acts
necessary to resolve factual issues in cases:
(1) Falling within its original jurisdiction;
(2) Involving claims for damages arising from
provisional remedies;
(3) Where the court grants a new trial based only on
the ground of newly-discovered evidence.
CAs trials and hearings must be continuous and
completed within 3 months, unless extended by the
Chief Justice.
JUDGMENT TRANSMITTED AND FILED IN TC
When the CAs entry of judgment is issued, a certified

true copy of the judgment shall be attached to the
original record. These shall be remanded to the clerk
of the court from which the appeal was taken. [Rule
124, Sec. 17]
This copy of the entry serves as the formal notice to
the court from which the appeal was taken of the
disposition of the case in the appellate court, so that
the judgment may be executed and/or placed or
noted in the proper file.
QUORUM IN THE CA [Sec. 11, BP 129]
(a) 3 CA Justices constitute a quorum for the sessions

of a division.
(b) The unanimous vote of the 3 Justices of a division
is necessary for the pronouncement of a
judgment or final resolution
(c) Decision is reached through a consultation before
the writing of the opinion by a member of the
division.
(d) If there is lack of unanimity, the Presiding Justice
shall direct the CA raffle committee to designate
2 additional Justices to sit temporarily with them.
They shall then form a special division of 5
members.
The concurrence of a majority of that special division
is necessary for the pronouncement of a judgment or
final resolution.
MNT DURING THE PENDENCY OF APPEAL IN THE CA

[Rule 124, Sec. 14]
(a) Appellant may file MNT on the ground of newly
discovered evidence material to his defense any
time:
(1) After the appeal from the lower court has been
perfected, but
(2) Before the CA judgment convicting him
becomes final.
(b) The motion shall conform to Rule 121, Sec. 4.
(c) If the CA grants a MNT, it may either: [Rule 124,
Sec. 15]
(1) Conduct the hearing and receive evidence;
(2) Refer the trial to the court of origin.
Designation of the additional Justices shall be made

strictly by raffle and rotation among all other CA
Justices.
MFR OF CA JUDGMENT [Rule 124, Sec. 16]

MFR may be filed within 15 days from notice of the
CA judgment or final order, with copies served on the
adverse party.
SC [Rule
124, Sec. 13]
(1) If the CA finds that death penalty should be
imposed:
(a) AUTOMATIC REVIEW CA shall render
judgment but refrain from making an entry of
judgment. It shall then certify the case and
elevate its entire record to the SC for review.
The accused does not have to do anything.
(b) Note: Death penalty has been abolished.
CERTIFICATION OR APPEAL OF CASES TO THE
The mittimus shall be stayed during the MFRs

pendency.
General rule: No party shall be allowed a 2nd MFR of
a judgment or final order. [Sec. 11, BP 129]
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Exception: Where the 1st MFR resulted in a reversal

or substantial modification of the original decision or
final resolution.
Ordinary appeal
When available:
(a) When the penalty imposed by the RTC is life
imprisonment, decision is appealable directly to
the SC by filing a notice of appeal with the RTC.
[Rule 122, Sec. 3]
(b) When an accused was charged with 2 or more
offenses committed on the same occasion or
arising out of the same occurrence, and in one of
those 2 cases, he was sentenced to life
imprisonment or death penalty, the appeal with
respect to the others, though punished with a
lesser penalty, is to the SC. [Rule 122, Sec. 3]
(c) When the penalty of reclusion perpetua or death
is imposed on some of the defendants and a
lesser penalty on the other co-defendants, on
account of their varying degree of participation in
the commission of the offense or due to the
presence of modifying circumstances, in which
case the decision on the non-life convicts is
directly appealable to the SC. [People v. Carino]
In this case, the party adversely affected by the

reversal/modification may himself file a MFR of the
latest judgment of the court, because with respect to
him, said motion is a first pleading of that nature.
[Rule 124, Sec. 18]
Provisions of Rules 42, 44-46 and 48-56 relating to
procedure in the CA and the SC in original and
appealed civil cases, shall be applied to criminal
cases insofar as they are applicable and not
inconsistent with the provision of this Rule.
APPLICABLE CIVIL PROCEDURE RULES
PROCEDURE IN THE SC
(a) Uniform procedure [Rule 125, Sec. 1]

General rule: The procedure in the SC in original and
in appealed cases shall be the same as in the CA.
Exception: If the Constitution or law provides
otherwise.
In these cases, the SC reviews not only errors of law

but also the findings of fact by the TC.
(b) What the SC may do on review

In a criminal case, an appeal to the SC throws open
the whole case for review and it becomes its duty to
correct such errors as may be found in the judgment
appealed from, WON they were assigned as errors.
[People v. Olfindo (1924)]
Petition for review on certiorari

(a) When available:
(b) When constitutionality/validity of any treaty,
executive agreement, law, ordinance or executive
order or regulation is in question.
(c) When validity of law is questioned by an accused
convicted under it by the TC, the SC cannot
review the evidence or pass upon any other
question of law which may appear on the record,
but will only confine itself to the question of the
in/validity of that law. [Trinidad v. Sweeney (1904)]
(d) When the jurisdiction of any inferior court is in
issue.
(e) When only an error or question of law is involved.
It may examine the judgment as to the qualification

of the crime and the degree of the penalty imposed.
[Macali v. Revilla (1926)]
It may also assess and award civil indemnity.
[Quemel v. CA (1946)]
(c) Ways by which a case may reach the Supreme
Court
Automatic review
It is not a matter of right on the part of the accused,
but a matter of law.
On decisions of the CA and the Sandiganbayan.

As a rule, review here is limited to errors of law.
General rule: Certiorari is used to correct only errors
of jurisdiction and not errors of judgment of an
inferior court. For errors of judgment, ordinary
appeal is available.
When available:
(a) When the RTC judgment upon the accused
imposes death penalty. [Rule 122, Sec. 10]
(b) When the RTC decision is appealed to CA and the
latter is of the opinion that the penalty imposed
should be death or life imprisonment. CA
judgment is imposed but no entry of judgment is
made; instead, the case is certified and the entire
record is elevated to the SC for review. [Rule 124,
Sec. 13]
Exception: Cases where certiorari is granted despite

existence of the remedy of appeal:
(1) Where public welfare and advancement of public
policy so dictate.
(2) Where the broader interests of justice so require.
(3) Where the orders complained of were found to be
completely null and void.
(4) Where appeal was not considered as the
appropriate remedy.
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If case is decided by a division of the SC whose

members are equally divided, the case shall be heard
and decided by the SC en banc.
(d) Failure to specify appellate court

Failure of appellant to specify in his notice of appeal
the court to which the appeal is being made is not
fatal. [RA 296]
(h) Constitutional provisions on SC composition [Art.

8, Sec. 4, Consti]
(a) SC Composition: 1 Chief Justice + 14 Associate
Justices.
(b) SC may sit en banc or (in its discretion) in divisions
of 3, 5 or 7 members.
(c) No doctrine or principle of law laid down by the
SC in a decision rendered en banc or in division
may be modified/reversed.
(e) Erroneous choice / mode of appeal

In the case of People v. Resuello (1969), the
contention of the adverse party that the ordinary
appeal filed by appellant shall be dismissed because
the proper remedy is petition for review on certiorari
(only questions of law were involved) was rejected.
The SC said that in cases similarly situated, and as
long as the steps formally required for the perfection
of an appeal were taken in due time, appeal may be
given due course, without prejudice to requiring the
appellant to file the necessary petition for review on
certiorari which is also a form of appeal.
EFFECT OF APPEAL BY ANY OF SEVERAL

ACCUSED [RULE 122, SEC. 11]
General rule: An appeal taken by one or more of
several accused shall not affect those who did not
appeal.
(a) As to the appealing party, the execution of
judgment appealed from is stayed upon the
perfection of the appeal.
(b) As to the co-accused who did not appeal, the
judgment of the TC insofar as it relates to him
becomes final and the appellate court has no
power to interfere with it. [Salvatierra v. CA (1996)]
(f) Review of CA decisions

The procedure for the review by the SC of CA
decisions on criminal shall be the same as in civil
cases. [Rule 125, Sec. 2]
General rule: The SCs appellate jurisdiction in cases
brought to it from the CA is limited to reviewing and
revising the errors of law incurred by the latter.
(a) The CAs findings of fact are final.
(b) If an appeal in the SC involves questions of facts,
the SC has no jurisdiction and should dismiss
appeal. [Guico v. Mayuga (1963)]
Exception: Insofar as the judgment of the appellate

court is favorable and applicable to those who did
not appeal or who withdrew his appeal. [People v.
Gandia (2008)]
Exception: [Vargas v. CA; Napolis v. CA (1972)]

(a) When the conclusion is a finding founded entirely
on speculations/surmises/conjectures;
(b) When the inference made is manifestly
mistaken/absurd/impossible;
(c) When there is GAD;
(d) When the judgment is based on a
misapprehension of facts;
(e) When the findings of facts are conflicting;
(f) When the CA, in making its findings, went beyond
the issues of the case and the same are contrary
to the admissions of both appellant and appellee.
The appeal of the offended party from the civil

aspect shall not affect the criminal aspect of the
judgment or order appealed from.
GROUNDS FOR DISMISSAL OF APPEAL
WHEN APPEAL BY THE PEOPLE WILL NOT LIE
The People/State cannot appeal when it will put the

accused in double jeopardy. The constitutional
mandate against double jeopardy prohibits not only
a subsequent prosecution in a new and independent
cause but extends also to appeal in the same case by
the prosecution after jeopardy had attached.
[Republic v. CA]
(g) Decisions if opinion is equally divided [Rule 125,

Sec. 3]
When the SC en banc is equally divided in opinion or
the necessary majority cannot be had on WON to
acquit the appellant, the case shall again be
deliberated upon.
The prosecution cannot appeal from a judgment of

acquittal
Rationale: A verdict of that nature is immediately
final and to try on the merits, even in an appellate
court, places the accused in double jeopardy. [Central
Bank v. CA (1989)]
If no decision is reached after re-deliberation, the

lower courts judgment of conviction shall be
reversed and the accused is acquitted.
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Dismissal of case upon filing of demurrer by the

accused was held to be final even though based on
erroneous interpretation of the law. Hence, an
appeal therefrom by the prosecution would
constitute double jeopardy. [US v. Kilayko (1916)]
may produce, and particularly describing the place to

be searched, and the things/persons to be seized.
(Art. III, Sec. 2, 1987 Const.)
Exclusionary rule: Any evidence obtained in violation
of this or the preceding section (Art. III, Sec. 2) shall
be INADMISSIBLE for any purpose in any
proceeding. (Art. III, Sec. 3, Par. 2, 1987 Const.)
Where the TC has jurisdiction but mistakenly

dismisses the complaint/information on the ground
of lack of it, the order of dismissal is unappealable.
[People v. Duran (1960)]
An appeal by the People will not lie if the purpose is
to correct the penalty imposed by the trial court or to
include in a judgment a penalty erroneously omitted.
[People v. Paet (1956)]
Doctrine of attenuation: Despite the illegality in

obtaining evidence, such evidence may be
admissible if the connection between the evidence
and the illegal method is sufficiently remote or
attenuated so as to dissipitate the taint [Wong Sun v.
US (1963)]
The preclusion against appeal by the State from

judgments or final orders having the effect of
acquittal, applies even though accused did not raise
question of jeopardy. [People v. Ferrer (1956)]
This constitutional guarantee is NOT a blanket

prohibition against ALL searches and seizures. It
operates only against unreasonable searches and
seizures.
What constitutes a reasonable or unreasonable
search or seizure in any particular case is purely a
judicial question. [Rodriguez v. Villamiel (1937)]
Search and Seizure
CONSTITUTIONAL PROTECTION IS AGAINST

OFFICERS ACTS, NOT PRIVATE PERSONS
NATURE OF SEARCH WARRANT
People v. Marti (1991); also People v. Bongcarawan

(2002): Search and seizure clauses are restraints
upon the government and its agents, not upon
private individuals.
DEFINITION
It is an order in writing; issued in the name of the

People of the Philippines; signed by a judge; and
directed to a peace officer, commanding him to
search for personal property described in the warrant
and bring it before the court. (Rule 126, Sec. 1)
However, if the private person is acting upon orders

of government officials, the principle of agency
applies, because in fact such private person is acting
in the interest of government, and is therefore
subject to the prohibition against unreasonable
searches and seizures.
If it is without the judges signature: it is fatally

defective.
NATURE OF A SEARCH WARRANT
A search warrant (SW) is in the nature of a criminal

process akin to a writ of discovery, employed by the
state to procure relevant evidence of a crime.
[Malaloan v. CA (1994)]
General rule: Search of property is unreasonable

unless it has been authorized by a valid search
warrant.
Exceptions: Valid warrantless searches.
They are not available to individuals in the course of

civil proceedings.
DISTINGUISH FROM WARRANT OF ARREST

Search Warrant
It is interlocutory in character -- it leaves something

more to be done, which is the determination of the
guilt of the accused.
BASIS:
CONSTITUTIONAL
SAFEGUARD
UNREASONABLE SEARCH AND SEIZURES
PUBLIC
Warrant of Arrest
Nature
Order in writing in the

name of the RP signed by
the judge and directed to
the peace officer to search
personal
property
described therein and to
bring it to court. (Rule 126,
AGAINST
No search warrant or warrant of arrest shall issue

except upon probable cause to be determined
personally by the judge after the examination under
oath/affirmation of the complaint and the witness he
PAGE 201
Order directed to the

peace officer to execute
the warrant by taking the
person stated therein into
custody that he may be
bound to answer for the
commission
of
the
UP COLLEGE OF LAW
CRIMINAL PROCEDURE
Search Warrant
Warrant of Arrest
Sec. 1)
Exception: (Malaloan v. CA [1994] subject to Rule

126, Sec. 1)
If a case has not yet been filed, it may be filed in a
court with a territorial jurisdiction other than that
where the illegal articles sought to be seized are
located.
offense.
Determination of Probable Cause
The
judge
must
personally examine the
complainant
and
witnesses in the form of
searching questions and
answers. (Rule 126, Sec.5)
The judge does not have

to personally examine the
complainant and his
witnesses. Instead, he
may opt to personally
evaluate the report and
supporting
documents
submitted
by
the
prosecutor
[AAA
v.
Carbonell (2007)].
The examination must be Examination

under oath or affirmation under oath.
of the complainant and
his witnesses.
must
This is aside from the consideration that a criminal

action may be filed in different venues under the
rules for continuing crimes, or where different trial
courts have concurrent original jurisdiction over the
same criminal offense.
The ruling may be applicable:
(a) When the crime is found to have been committed
in a particular place WITHIN the judicial region.
(b) Where a particular court, by reason of its
territorial area, has jurisdiction.
(c) And where prosecutor, who filed the complaint or
information in said court, has territorial
jurisdiction different from the court within the
same judicial region which actually issued the
warrant.
be
Form of Writ
It
must
particularly It
must
particularly
describe the place to be describe the person to be
searched and the things arrested.
to be seized.
A.M. No. 03-8-02-SC

The Executive Judges and, whenever they are on
official leave of absence or are not physically present
in the station, the Vice-Executive Judges of Manila
and Quezon City RTCs of Manila City shall have
authority to act on applications for search warrants
involving:
(a) heinous crimes;
(b) illegal gambling;
(c) illegal possession of firearms and ammunitions
(d) violations of the Comprehensive Dangerous
Drugs Act of 2000;
(e) the Intellectual Property Code, the
(f) the Anti-Money Laundering Act of 2001,
(g) the Tariff and Customs Code; and,
(h) other relevant laws that may hereafter be
enacted by Congress, and included herein by the
Supreme Court.
When Executed
Generally served in the May be made at any time
day time, unless there be of the day or night. (Rule
a direction in the warrant 113, Sec. 2)
that it may be served at
any time of the day or
night. (Rule 126, Sec. 9)
Period of Validity
Valid for ten (10) days Does not expire
(Rule 126, Sec. 9).
terminal life).
(No
APPLICATION FOR SEARCH WARRANT, WHERE

FILED
APPLICATION
Where filed (Rule 126, Sec. 2)

Any court within whose territorial jurisdiction the
crime was committed.
Substance of application
Requisites for issuing a search warrant (Rule 126,
Sec. 4)
A Search Warrant shall NOT issue EXCEPT:
(a) Upon probable cause in connection with one
specific offense;
(b) To be determined personally by the judge;
(c) After examination under oath or affirmation of the
complainant and the witness he may produce;
(d) Particularly describing the place to be searched
and the things to be seized which may be
anywhere in the Philippines.
For compelling reasons stated in the application:

(a) If the place of the commission of the crime is
known, any court within the judicial region where
the crime was committed.
(b) Any court within the judicial region where the
warrant shall be enforced.
However, if the criminal action has already been
filed, the application shall only be made in the court
where the criminal action is pending.
PAGE 202
UP COLLEGE OF LAW
CRIMINAL PROCEDURE
that an escape or the destruction of evidence is

imminent.
ISSUANCE AND FORM OF SEARCH WARRANT
If the judge is satisfied of the existence of facts upon

which the application is based or that there is
probable cause to believe that they exist, he shall
issue the warrant, which must be substantially in the
form prescribed by these Rules. (Rule 126, Sec. 6)
Search of house, room, or premise, to be made in

presence of two witnesses
No search of a house, room, or any other premises
shall be made except in the presence of the lawful
occupant thereof or any member of his family or in
the absence of the latter, two witnesses of sufficient
age and discretion residing in the same locality. (Rule
126, Sec. 8)
SW must be in writing and contain:

(a) Name of person against whom it is directed;
(b) Offense for which it was issued;
(c) The place to be searched and
(d) The description of the specific things to be seized;
(e) A directive to law enforcement officers to search
and seize;
(f) And for them to bring in court the things seized;
(g) Signature of the judge issuing it.
Time of making search

Day time, unless the affidavit asserts that the
property is on the person or in the place ordered to
be searched, in which case a direction may be
inserted that it be served at any time of the day or
night. (Rule 126, Sec. 9)
VALIDITY OF SEARCH WARRANT
Period of validity: 10 days from its date. Thereafter, it

shall be void. (Rule 126, Sec. 10)
A SW violates Rule 126, Sec. 9 if the time for making

the search is left blank, thus enabling the officers to
conduct the search in the evening of the appointed
search, causing untold conveniences to the person
searched. [Asian Surety v. Herrera (1973)]
Lifetime of SW ends when a return has already been

made. [Mustang Lumber v. CA (1996)]
Where a search is to be made during the night time,

the authority for executing the same at that time
should appear in the directive on the face of the SW.
[Asian Surety, supra]
SERVICE OF SEARCH WARRANT
Right to break door or window to effect search

The officer, if refused admittance to the place of
directed search after giving notice of his purpose and
authority, may break open any outer or inner door or
window of a house or any part of a house or anything
therein to execute the warrant to liberate himself or
any person lawfully aiding him when unlawfully
detained therein. (Rule 126, Sec. 7)
Knock and announce principle
Generally, officers executing a search must
following acts:
(a) Announce their presence;
(b) Identify themselves to the accused and
persons who rightfully have possession
premises to be searched;
(c) Show to them the search warrant; and
(d) Explain the warrant in a language or
known and understood by them.
POST-SERVICE
Receipt of property seized

How receipt is given (Rule 126, Sec. 1)
If lawful occupant was The officer seizing the
present
property under the SW
must give a detailed
receipt for the same to the
lawful occupant of the
premises
in
whose
presence the search and
seizure were made.
do the
to the
of the
If he was not present

dialect
When unannounced intrusion is permissible

(a) Person in the premises refuses to open it upon
demand;
(b) Person in the premises already knew of the
identity and authority of the officers;
(c) When the officers have an honest belief that there
is an imminent danger to life and limb;
(d) When those in the premises, aware of the
presence of someone outside, are then engaged
in activities which justifies the officers to believe
PAGE 203
The officer seizing the

property under the SW
must, in the presence of
at least 2 witnesses of
sufficient
age
and
discretion residing in the
same locality, leave a
receipt in the place in
which he found the seized
property.
UP COLLEGE OF LAW
CRIMINAL PROCEDURE
Delivery of property and inventory thereof to court

(Rule 126, Sec. 12)
The officer must forthwith deliver the property seized
to the judge who issued the warrant, together with a
true inventory thereof duly verified under oath.
PERSONAL EXAMINATION BY JUDGE OF THE

APPLICANT AND WITNESSES
Aside from the requirements mandated by Rule 126,
Sec. 4, the rule requires the judge to comply with a
specific procedure in the conduct of the examination
of the complainant and the witnesses he may
produce. (Rule 126, Sec. 5):
(a) The examination must be PERSONALLY
conducted by the judge;
(b) The examination must be in the form of searching
questions and answers;
(c) The complainant and the witnesses shall be
examined on those facts personally known to
them;
(d) The statements must be in writing and under
oath; and
(e) The sworn statements of the complainant and
the witnesses, together with the affidavits
submitted, shall be attached to the record.
10 days after issuance of the search warrant, the

issuing judge shall ascertain if the return has been
made, and if none, shall summon the person to
whom the warrant was issued and require him to
explain why no return was made.
If the return has been made, the judge shall
ascertain whether Sec. 11 of Rule 126 has been
complied with and shall require that the property
seized be delivered to him. The judge shall see to it
that delivery has been complied with.
The return on the search warrant shall be filed and
kept by the custodian of the log book on search
warrants who shall enter therein the date of the
return, the result, and other actions of the judge.
EXAMINATION MUST BE PERSONALLY CONDUCTED BY THE

JUDGE; DETERMINED BY JUDGE HIMSELF
Goods seized remain under the courts custody and

control until the institution of the appropriate
criminal action with the proper court. [Tenorio v. CA
(2003)]
Searching questions and answers

Such questions which have the tendency to show the
commission of a crime and the perpetrator thereof.
[Luna v. Plaza (1968)]
PROBABLE CAUSE
In search cases, the application must be supported

by substantial evidence: that the items sought are in
fact seizable by virtue of being connected with
criminal activity and the items will be found in the
place to be searched. [People v. Tuan (2010)]
WARRANTS GENERALLY ISSUED UPON PROBABLE CAUSE
Probable cause: Such facts and circumstances which

would lead a reasonably discreet and prudent man
to believe that an offense has been committed, and
that objects sought in connection with the offense
are in the place sought to be searched. [Santos v.
Pryce Gases Inc. (2007)
A search warrant issued by a judge who did not ask

searching questions but only leading ones and in a
general manner is invalid. [Uy v. BIR (2000)]
This probable cause must be shown to be within the

personal knowledge of the complainant or the
witnesses he may produce and not based on mere
hearsay.
Although there is no hard-and-fast rule governing

how a judge should conduct his investigation, it is
axiomatic that the examination must be probing and
exhaustive, not merely routinary, general, peripheral,
perfunctory or pro forma. The judge must not simply
rehash the contents of the affidavit but must make
his own inquiry on the intent and justification of the
application. [Yao v. People (2007)]
The probable cause must refer only to one specific

offense. [Roan v. Gonzales (1986)]
A probable cause to arrest does not necessarily
involve a probable cause to search and vice-versa.
Judge must examine under oath or affirmation the

complainant and the witness he may produce
PROBABLE CAUSE JUSTIFYING WARRANTLESS ARREST

AND WARRANTLESS SEARCH
A warrant NOT based on personal knowledge is void.
This implies probability of guilt and requires more

than bare suspicion but less than evidence which
would justify conviction. It is not determined by a
fixed formula but is resolved according to the facts of
each case.
Examination under oath

Oath: Includes any form of attestation by which a
party signifies that he is bound in conscience to
perform an act faithfully and truthfully.
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UP COLLEGE OF LAW
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The oath required must refer to the truth of facts

within the personal knowledge of the petitioner or
his witnesses. [Alvarez v. CFI (1937)]
is constitutionally objectionable.
Pictures v. Flores (1993)]
[Columbia

AND THINGS TO BE SEIZED
Warrant issued must particularly describe the place
to be searched and the persons to be seized.
Exceptions:
(a) Where, by the nature of the goods to be seized,
their description must be rather general, it is not
required that a technical description be given, for
this would mean that no SW could issue. [People
v. Rubio (1932)]
(b) The general description of the documents listed
in the SW does not render the SW void if the SW
is severable, and those items not particularly
described may be cut off without destroying the
whole SW. [Uy v. BIR (2001)]
PERSONAL PROPERTY TO BE SEIZED
Mere affidavits of the complainant or his witnesses

are not sufficient. The examining judge has to take
depositions in writing of the complaint or his
witnesses, and attach the same to the record.
[Prudente v. Judge Dayrit (1989), citing Roan]
Description of place to be searched is sufficient if the

officer with the SW can, with reasonable efforts,
ascertain and identify the place intended. [People v.
Veloso (1925)]
WHAT MAY BE SEIZED (RULE 126, SEC. 3)
(a) Personal property subject of the offense.

(b) Personal property stolen/embezzled and other
proceeds/fruits of the offense.
(c) Personal property used or intended to be used as
the means of committing an offense.
An apparent typographical error will not necessarily

invalidate the SW, as long as the application
contains the correct address. [Burgos v. Chief of Staff
(1984)]
The rule does not require that the property to be

seized should be owned by the person against whom
the search warrant is directed. It is sufficient that the
person against whom the warrant is directed has
control of possession of the property sought to be
seized. [Burgos v. Chief of Staff (1984)]
PARTICULARITY OF THINGS TO BE SEIZED
Scope
Personal property only. SW does not issue for seizure
of immovable properties.
Ownership of the property seized is immaterial. It is
sufficient that the person against whom SW is
directed has control/possession of the property. [Yao
v. People (2007)]
RULES ON DNA EVIDENCE

(OCTOBER 2, 2007)
A.M. NO. 06-11-5-SC
The appropriate court may, at any time, either motu

proprio or on application of any person who has a
legal interest in the matter in litigation, order a DNA
testing. Such order shall issue after due hearing and
notice to the parties. (Sec. 4)
General rule: Things to be seized must be described

particularly. General search warrants are not
allowed. Otherwise, the search and seizure of the
items in the implementation of such SW is illegal
and the items seized are inadmissible in evidence.
Art. III, Sec. 2 of the 1987 Const.)
(a) SWs authorizing the seizure of books of accounts
and records showing all the business
transactions of certain persons, regardless of
whether the transactions were legal or illegal, are
general warrants prohibited by law. [Stonehill v.
Diokno (1967)]
(b) Likewise, a description of things to be seized as
subversive documents, propaganda materials,
FAs, printing paraphernalia and all other
subversive materials hardly provided a definite
guideline to the executing officers. [Dizon v. Hon.
Castro (1985)]
(c) And where the language used is too allembracing as to include all the paraphernalia of
petitioner in the operation of its business, the SW
In a search incidental to an arrest even WITHOUT a

warrant, the person arrested may be searched for
(Rule 126, Sec. 13)
(1) Dangerous weapons.
(2) Anything which may have been used or constitute
proof in the commission of the offense.
EXCEPTIONS
TO
REQUIREMENT
SEARCH
WARRANT
SEARCH INCIDENTAL TO LAWFUL ARREST
Warrantless searches allowed as an incident of lawful

arrest
A person lawfully arrested may be searched for (1)
dangerous weapons or (2) anything which may have
been used or (3) constitute proof in the commission
of an offense without a search warrant. (Rule 126,
Sec. 13)
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UP COLLEGE OF LAW
CRIMINAL PROCEDURE
SEARCH OF MOVING VEHICLE
The arrest must precede the search; generally, the

process cannot be reversed. Nevertheless, a search
substantially contemporaneous with an arrest can
precede the arrest at if the police have probable
cause to make the arrest at the outset of the search.
[Riano (2011)]
Search of moving vehicle

Rationale: Peace officers may lawfully conduct
searches of moving vehicles without need of a
warrant as it is impracticable to secure a judicial
warrant before searching a vehicle since it can be
quickly moved out of the locality or jurisdiction in
which the warrant may be sought. [People v. Tuazon
(2007)]
The rule assumes that the arrest is legal. If the arrest

is illegal, then the search is illegal and as a result,
the things seized are inadmissible as evidence.
[People v. Aruta (1998)]
However, these searches would be limited to visual

inspection and the vehicles or their occupants cannot
be subjected to physical or body searches, except
where there is probable cause to believe that the
occupant is a law offender or the contents of the
vehicles are instruments or proceeds of some
criminal offense.
The search is confined to his person, but as an

incident of an arrest, the place or premises where the
arrest was made can also be searched without a
search warrant. The extent and reasonableness of the
search must be decided on its own facts and
circumstances. [Nolasco v. Pao (1985);
The search and seizure without warrant of vessel and

aircrafts for violation of customs laws has been a
traditional exception to the requirement of SW.
[Roldan v. Hon. Arca (1975)]
Where a search is first undertaken, and an arrest was

effected based on evidence produced by such search,
both search and arrest are illegal. [Lui v. Matillano
(2004)]
Nonetheless, in all cases falling under this category,

there must be a showing of a PC of a violation of the
law. [Caroll v. US (1924)]
CONSENTED SEARCH
Consented warrantless search

Jurisprudence requires that in case of consented
searches or waiver of the constitutional guarantee
against obtrusive searches, it must first appear that
(1) the right exists;
(2) the person involved had knowledge, either actual
or constructive, of the existence of such right; and
(3) the said person had an actual intention to
relinquish the right. [People v. Nuevas (2007)]
CHECK POINTS; BODY CHECKS IN AIRPORT
Searches conducted in checkpoints [People v.

Vinecario (2004)]
They are valid as long as they are warranted by the
exigencies of public order and conducted in a way
least intrusive to motorists.
The vehicle is neither searched nor its occupants
subjected to a body search (i.e. inspection of the
vehicle is limited to a visual search).
Consent to a search is not to be lightly inferred, but

must be shown by clear and convincing evidence. It is
the State which has the burden of proving, by clear
and positive testimony, that the necessary consent
was obtained and that it was freely and voluntarily
given. [Valdez v. People (2007)]
Routine inspections are not regarded as violative of

an individuals right against unreasonable search:
(a) Where the officer merely draws aside the curtain
of a vacant vehicle which is parked on the public
fair grounds;
(b) Officer simply looks into a vehicle;
(c) Officer flashes a light therein without opening
cars doors;
(d) Occupants not subjected to a physical search;
(e) Inspection is limited to usual search or inspection;
or
(f) Routine check is conducted in a fixed area [People
v. CA (2002)]
A peaceful submission to a search or seizure is not a

consent or an invitation thereto, but is merely a
demonstration of regard for the supremacy of the
law. [People v. Nuevas (2007)]
When is consented search reasonable: Only if kept
within the bounds of the actual consent.
A persons consent may limit the extent/scope of a
warrantless search in the same way that the
specifications of a warrant limit the search pursuant
thereto.
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Under this theory, PC is not required to conduct a

stop and frisk BUT, nevertheless, mere
suspicion/hunch will not validate a stop and frisk.
PLAIN VIEW SITUATION
Plain view doctrine (2008 Bar)

Requisites (PIA): [People v. Valdez (1999), People v.
Salanguit (2001)]
(1) A prior valid intrusion i.e., based on the valid
warrantless arrest in which the police are legally
present in the pursuit of their official duties;
(2) Evidence was inadvertently discovered by the
police who have a right to be where they are;
(3) Evidence must be immediately apparently illegal
(i.e., drug paraphernalia);
(4) Plain view justified mere seizure of evidence
without further search.
Test: Genuine reason - Reasonable belief based on

genuine reason and in the light of the officers
experience and the surrounding circumstances, that
a crime has either taken place or is about to take
place and the person to be stopped is armed and
dangerous.
ENFORCEMENT OF CUSTOM LAWS
Customs search
For the enforcement of customs duties and tariff
laws, the Collector of Customs is authorized to effect
searches and seizure. [General Travel Services v. David
(1966)]
Limitations: [People v. Musa (1993)]

(1) It may not be used to launch unbridled searches
and indiscriminate seizures.
(2) Does not extend to a general exploratory search
made solely to find evidence of defendants guilt.
The Tariff Code authorizes customs officers to:

(a) Enter, pass through or search any land, enclosure,
warehouse;
(b) Inspect/search/examine any vessel/aircraft and
any trunk/package/box/envelope or any person
on board, or stop and examine any
vehicle/beast/person
suspected
of
holding/conveying
any
dutiable/prohibited
article introduced into the Philippines contrary to
law.
The doctrine is usually applied where a police officer

is not searching for evidence against the accused,
but nonetheless inadvertently comes across an
incriminating object.
Even if an object is in plain view, before it can be
seized without a SW, its incriminating nature must
first be apparent.
Where police officers are on the premises pursuant
to a valid consent to a search, an item falling into
their plain view may properly be seized even if the
item is not connected with their purpose in entering.
General rule: The Tariff and Customs Code does not

require a warrant for such searches.
Exception: In the search of a dwelling house, SW is
required.
STOP AND FRISK SITUATION
A limited protective search of outer clothing for

weapons. [Malacat v. CA (1997)]
OTHER EXCEPTIONS
Exigent and Emergency Circumstances
Example: There was a prevailing general chaos and
disorder because of an ongoing coup, and the raid of
the office/building was precipitated by an
intelligence report that said office was being used as
HQ by the RAM. Also, the surveillance team before
the raid was fired upon by the people inside. The
raiding team had no opportunity to apply for warrant
as the court then was closed. [People v. de Gracia
(1994)]
Where a police officer observes unusual conduct,

which leads him reasonably to conclude in the light
of his experience that criminal activity may be afoot,
and that a person with whom he is dealing may be
armed and presently dangerous,
Where in the course of investigating this behavior he
identifies himself as a policeman and makes
reasonable inquiry, and where nothing in the initial
stage of the encounter serves to dispel his reasonable
fear for his own or others safety, he is entitled for the
protection of himself and others in the area to
conduct a carefully limited search of outer clothing of
such persons in an attempt to discover weapons
which might be used to assault him. [Terry v. Ohio
(1968)]
Buy-bust Operation: No need for SW (or warrant of

arrest) because the accused is caught in flagrante
delicto.
A form of entrapment legally employed by peace
officers as an effective way of apprehending drug
dealers in committing an offense.
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Entrapment: Employment of such ways and means

for the purpose of trapping or capturing a
lawbreaker
(b) Compliance with procedural and substantial

requisites.
Matters of defense are to be raised in the criminal
action. [DOH v. Sy Chi Siong (1989)]
Private Searches and State Expansion of Private

Search
File a motion to return seized things.

This is the remedy used if the search was already
conducted and goods were seized as a consequence
thereof.
Where the motion will be filed follows the same rules
as 2(c) above.
The evidence was obtained by a private person

acting in a private capacity without state
participation and intervention. It was company SOP.
Constitutional rights cannot be invoked when there is
no government interference. [People v. Marti (1999)]
REMEDIES FROM UNLAWFUL SEARCH AND
SEIZURE
Motion to quash a search warrant or to suppress

evidence. (2005, 2007 Bar)
A motion to suppress as evidence the objects
illegally taken (exclusionary rule) any evidence
obtained through unreasonable searches and
seizures shall be inadmissible for any purpose in any
proceeding.
WHO MAY AVAIL OF REMEDIES
Only the party whose rights have been impaired

thereby; the objection to an unlawful search and
seizure is purely personal and cannot be availed of
by third parties. [Stonehill v. Diokno (1967); Santos v.
Pryce Gases, Inc. (2007)]
Rule 126, Sec. 14
Where to file
If criminal action has been Court where the action

filed
has been instituted.
REMEDIES
Employ any means to prevent the search.

Without a SW, the officer cannot insist on entering a
citizens premises. If he does so, he becomes an
ordinary intruder.
If no criminal action has Court that issued SW.

been instituted
If no criminal action is
filed and motion is first
filed with the court that
issued the SW, but it
failed to resolve the
motion and a criminal
case is subsequently filed
in another court
The person to be searched may resist the search and

employ any means necessary to prevent it, without
incurring any criminal liability. [People v. Chan Fook
(1921)]
File criminal action against officer.
A public officer/employee who procures a SW
without just cause is criminally liable under Art. 129,
RPC (Search warrants maliciously obtained and
abuse in the service of those legally obtained).
Court
where
the
subsequent
criminal
action
has
been
instituted.
Grounds for a Motion to Quash [Bache & Co. v. Ruiz

(1971)]
(1) No personal examination by the judge.
(2) More than one specific offense.
(3) No particular description.
File a Motion to Quash the illegal SW.

This remedy is employed if search is not yet
conducted.
Who may file

(1) Person injured.
(2) Person searched.
(3) Owner of the property.
General rule: The motion must be filed before the

sala of the judge who issued it. Only the court that
issued the SW may order revocation of SW or release
of things seized. [Pagkalinawan v. Gomez (1967)]
An accused may file a Motion to Suppress Evidence if

he is not among the persons who can file a Motion to
Quash.
Exception: Where the SW is issued by one court and

the criminal action based on the results of the search
is afterwards filed in another court, the motion may
be filed in either court. [People v. CA (1999)]
Effect of failure to quash warrant

(1) Where no MTQ the SW was filed in or resolved by
the issuing court, the interested party may move in
the court where the criminal case is pending for the
What may be raised in the MTQ.

(a) Existence or non-existence of probable cause at
the time of issuance of the SW;
PAGE 208
UP COLLEGE OF LAW
CRIMINAL PROCEDURE
suppression of the personal property seized IF the

same is offered therein as evidence (REGALADO).
(2) The MTQ a SW and Motion to Suppress Evidence
are alternative, not cumulative remedies.
(3) Conducting the search without the required

witnesses.
Against judge:
(1) For knowingly rendering an unjust interlocutory
order.
(2) Inexcusable negligence or ignorance.
Effects of illegal search

(1) Illegally seized evidence may not be admitted in
evidence in any proceeding. (Art. III, Sec. 2, 1987
Const.)
(2) DISPOSITION OF ILLEGALLY SEIZED PROPERTY
CIVIL LIABILITIES
Violation of the following:

(1) Violation of rights and liberties (Art. 32 [9], CC)
(2) Malicious prosecution and acts referred to Art. 32.
(Art. 2218, CC)
General rule: Goods seized by virtue of an illegal

warrant must be returned. [Castro v. Pabalan (1976)]
Exception: If possession of the things seized is
prohibited by law, they should not be returned.
Malice or bad faith is not required.

Not only official actions, but makes all persons who
are responsible for the violation liable for damages
[MHP Garments v. CA (1994)]
However, where the accused obtained goods from

another through payment of bouncing checks and
thereafter sold said goods to a buyer in good faith,
but said goods were taken from the purchaser with
the use of a SW although the criminal case for estafa
against the accused was still pending, the goods
should be returned to the buyer. The buyer is entitled
to possession of goods until restitution is ordered by
the court in the criminal case. [Yu v. Honrado (1980)]
Provisional Remedies
NATURE
Provisional remedies in civil actions, insofar as they
are applicable, may be availed of in connection with
the civil action deemed instituted with the criminal
action. [Rule 127, Sec. 1]
Waiver of immunity against unreasonable searches

and seizure. [Pasion v. Locsin (1938)]
The constitutional immunity against unreasonable
searches and seizure is a personal right that may be
waived expressly/impliedly ONLY by the person
whose right is being invaded or one who is expressly
authorized to do so in his behalf.
Where the civil action has actually been instituted, or

proceeded independently of the criminal action,
these provisional remedies cannot be availed of in
the criminal action but may be applied for in the
separate civil action. (Regalado)
Requisites of a valid waiver

(1) It must appear that the right exists;
(2) That the person involved had knowledge, (actual
or constructive) of the existence of such right;
(3) That the person had an actual intention to
relinquish the right.
If the civil action is suspended on account of filing of

the criminal action
The court with which the civil case is filed is not
thereby deprived of its authority to issue auxiliary
writs that do not go into the merits of the case.
[Ramcar Inc v. de Leon]
CRIMINAL LIABILITY
Violation of the following:

(1) Violation of domicile (RPC Art. 128)
(2) SW maliciously obtained (Art. 129)
(3) Searching domicile without witnesses (Art. 130)
(4) Unjust interlocutory order (Art. 206)
Not available when:

(1) Offended party has waived the civil claim.
(2) Offended party has reserved the civil claim.
(3) Offended party has already instituted a separate
civil action.
(4) Criminal action carries with it no civil liability.
Grounds:
Against public officer or employer:
(1) Entering without authority; against the will;
refuses to leave.
(2) SW procured without just cause or if with just
cause, exceeds his authority or uses unnecessary
severity of force.
KINDS OF PROVISIONAL REMEDIES

Reference to provisional remedies in Rule 127 is
made in general terms, hence preliminary injunction,
preliminary attachment, receivership, replevin or
support pendent lite may be availed of. (Riano)
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The accused may present evidence to prove his

defense and damages, if any, arising from the
issuance of a provisional remedy in the case. [Rule
119, Sec. 11(b)]
Issuance and implementation of the writ [Gonzalez v.

State Properties (2001)]
PRELIMINARY ATTACHMENT
Issuance of writ
May be done before

acquisition of jurisdiction
over the accused; may be
ex-parte
Enforcement of writ
Only after acquisition of

jurisdiction
over
the
person of the defendant
When
When proper [Rule 127, Sec. 2]

When the civil action is properly instituted in the
criminal action, the offended party may have the
property of the accused attached as security for the
satisfaction of any judgment that may be recovered
from the accused in the following cases:
(1) When the accused is about to abscond from the
Philippines
(2) When the criminal action is based on a claim for
money or property embezzled or fraudulently
misapplied or converted to the use of the accused
who is a public/corporate officer, attorney, factor,
broker, agent or clerk, in the course of his
employment as such, or by any other person in a
fiduciary capacity, or for a willful violation of duty
(3) When the accused has concealed, removed or
disposed of his property, or is about to do so
(4) When the accused resides outside the Philippines
No notice to the adverse party, or hearing on the

application is required before a writ of preliminary
attachment may issue as a hearing would defeat the
purpose of the provisional remedy. The time which
such hearing would take could be enough to enable
the defendant to abscond or dispose of his property
before a writ of attachment may issue [Mindanao
Savings etc. v. CA, 172 SCRA 480]
PAGE 210
UP COLLEGE OF LAW
EVIDENCE
PAGE 211
UP COLLEGE OF LAW
EVIDENCE
General Principles of
Evidence
on the accused [Sec. 14,

Art. III]
PROOF vs. EVIDENCE
CONCEPT OF EVIDENCE
The means, sanctioned by these rules, of
ascertaining in a judicial proceeding, the truth
respecting a matter of fact [Sec. 1, Rule 128]
Result or effect of
evidence [Regalado]
SCOPE OF THE RULES OF EVIDENCE

General rule: Principle of uniformity
Rules of evidence shall be the same in all courts and
in all trials and hearings. [Sec. 2, Rule 128]
FACTUM PROBANS vs. FACTUM PROBANDUM
Proof
Evidence
Civil Cases
Exception: If otherwise provided by:

(1) Law (e.g., 1987 Constitution, statutes);
(2) Rules of Court. [Sec. 2, Rule 128]
Mode and manner of

proving competent facts
in judicial proceedings
[Bustos v. Lucero, 81 Phil
640]
Criminal Cases
Facts or material
evidencing the
proposition
The proposition to be
established
The rules of evidence are specifically applicable only

in judicial proceedings. [Sec. 1, Rule 128]
The evidentiary fact

tending to prove the fact
in issue
The ultimate fact sought

to be established
In quasi-judicial proceedings, the same apply by

analogy [Sec. 4, Rule 1], except in cases where the
governing law in the particular proceeding
specifically adopts the rules of evidence in the Rules
of Court. [Regalado]
Facts or material
evidencing the
proposition
The proposition to be
established
APPLICABILITY
[Source: Regalado]
CLASSIFICATION OF EVIDENCE
Administrative investigations shall be conducted

without necessarily adhering strictly to the technical
rules of procedure and evidence applicable to judicial
proceedings [Dela Cruz v. Malunao (2012)]
Object, documentary and testimonial evidence

Object
Addressed to
the senses of the
court. [Sec. 1,
Rule 130]
Note: There is a different rule for Rules on Electronic

Evidence since it covers quasi-judicial and
administrative bodies [Sec, 2, Rule 1, Rules on
Electronic Evidence]
EVIDENCE IN CIVIL CASES vs. EVIDENCE IN
CRIMINAL CASES
Civil Cases
Criminal Cases
Preponderance of
Proof beyond reasonable
evidence [Sec. 1, Rule 133] doubt [Sec. 2, Rule 133]
Offer of compromise NOT Offer of compromise by
an admission of any
the accused may be
liability [Sec. 27, Rule 130] received in evidence as an
implied admission of guilt
(except for quasi-offenses
or those allowed by law
to be compromised) [Sec.
27, Rule 130]
Presumption of
innocence does NOT
apply
Documentary
Testimonial
Consist of
Testimony or
writings or any deposition of a
material
witness
containing
letters, words,
numbers,
figures, symbols
or other modes
of written
expressions
offered as proof
of their contents
[Sec. 2, Rule 130]
Cumulative and corroborative evidence

Cumulative
Corroborative
Evidence of the same Additional evidence of a

kind and to the same different character to the
state of facts
same point
Prima facie and conclusive evidence
Presumption of
innocence a
constitutional guarantee
Prima facie
PAGE 212
Conclusive
UP COLLEGE OF LAW
Standing alone, unexplained

or uncontradicted, is
sufficient to maintain the
proposition affirmed
EVIDENCE
Exclusionary rules of evidence by law are either

constitutional or statutory, as such:
Class of evidence
which the law does
not allow to be
contradicted
Primary and secondary evidence

Primary
Secondary
(a) Best Evidence

(a) Substitutionary
(b) That which the law
Evidence
regards as affording (b) Inferior to primary;
the
greatest
permitted only when
certainty of the fact
the best evidence is
in question
not available
ADMISSIBILITY OF EVIDENCE
REQUISITES FOR ADMISSIBILITY OF EVIDENCE
Evidence is admissible when it is:

(1) Relevant to the issue and
(2) Not excluded by law or the ROC. [Sec. 3, Rule 128]
WHEN DETERMINED
Admissibility is determined at the time it is offered to

the court [Sec. 35, Rule 132]
RELEVANCE OF EVIDENCE & COLLATERAL MATTERS
Relevancy
Evidence must have such a relation to the fact in
issue as to induce belief in its existence or nonexistence. [Sec. 4, Rule 128]
Collateral matters
Matters other than the fact in issue which are offered
as a basis for inference as to the existence or nonexistence of the facts in issue [Regalado]
Constitutional
Statutory
Unreasonable searches
and seizures; privacy of
communication
and
correspondence. [Secs.
2-3, Art. III]
Lack of documentary
stamp tax to documents
required to have one
makes such document
inadmissible as evidence
in court until the requisite
stamp/s shall have been
affixed
thereto
and
cancelled. [Sec. 201, NIRC]
Miranda Rights: right to

counsel, prohibition of
torture, force, violence,
threat, intimidation or
other
means
which
vitiate the free will;
prohibition of secret
detention
places,
solitary, incommunicado.
[Sec. 12, Art. III]
Any
communication
obtained by a person, not
being authorized by all the
parties to any private
communication,
by
tapping any wire/cable or
using
any
other
device/arrangement
to
secretly
overhear/intercept/record
such information by using
any device, shall not be
admissible in evidence in
any
judicial/quasijudicial/legislative/
administrative hearing or
investigation. [Secs. 1 and
4, R.A. 4200 (WireTapping Act)]
No person shall be Rules

on
Electronic
compelled to be a Evidence [Sec. 1,Rule 9,]
witness against himself.
[Sec.17, Art.III]
General Rule: Evidence on collateral matters is NOT

allowed. [Sec. 4, Rule 128]
Under the ROC, Rule 130 is the applicable rule in

determining the admissibility of evidence.
Exception: When it tends in any reasonable degree to

establish the probability or improbability of the fact
in issue. [Sec. 4, Rule 128]
Note: Evidence illegally obtained is inadmissible on a

timely motion or action to suppress [Stonehill v.
Diokno (1967)]
Note: What is prohibited by the Rules is not evidence

of all collateral matters, but evidence of irrelevant
collateral facts. [Regalado]
DOCTRINES OF ADMISSIBILITY
(1) Multiple admissibilityWhere the evidence is

relevant and competent for two or more
purposes, such evidence shall be admitted for any
or all the purposes for which it is offered, provided
it satisfies all the requisites of law for its
admissibility therefor. [Regalado]
Competence
Evidence not excluded by:
(1) Law, or
(2) The ROC [Sec. 3, Rule 128]
Determined by the prevailing exclusionary rules of
evidence [Regalado]
(2) Conditional admissibilityWhere the evidence at

the time of its offer appears to be immaterial or
irrelevant unless it is connected with the other
PAGE 213
UP COLLEGE OF LAW
EVIDENCE
facts to be subsequently proved, such evidence

may be received, on condition that the other facts
will be proved thereafter; otherwise, the evidence
already given shall be stricken out.
Burden of Proof
evidence that he has

presented) that he (the
potential proponent) has
to overcome. That factum
probandum may, but does
not have to be, nor is
limited to a "prima facie
presumption." Likewise, a
party will not have any
burden of evidence at all if
the adverse party has not
established any factum
probandum in the first
place. (Prof. Victoria A.
Avena)
Note: This is applied in the case of People v. Yatco

(97 Phil 940) subject to the qualification that
there should be no bad faith on the part of the
proponent. The qualification appears to avoid
unfair surprises. [Regalado]
(3) Curative admissibilityWhere the court has
admitted incompetent evidence adduced by the
adverse party, a party has a right to introduce the
same kind of evidence in his/her behalf.
[Regalado]
Direct evidence vs. circumstantial evidence
Direct
Does
not
shift Shifts from party to party
throughout the trial
depending
upon
the
exigencies of the case in
the course of the trial
Circumstantial
Proves the fact in dispute Proof of a fact/s from

without the aid of any which, taken either singly
inference or presumption or
collectively,
the
existence of a particular
fact in dispute may be
inferred as a necessary or
probable consequence
Generally determined by Generally determined by

the pleadings filed by the the developments at the
party
trial, or by the provisions
of
substantive
or
procedural law
Positive evidence vs. negative evidence

Positive
WHERE BURDEN OF PROOF IS FIXED
The burden of proof is fixed by pleadings. [Riano]
Negative
EQUIPOISE RULE/EQUIPONDERANCE DOCTRINE
Witness affirms that a Witness states he/she did

fact did or did not occur not see or know of the
occurrence of a fact (e.g.,
denial)
The doctrine refers to the situation where the

evidence of the parties are evenly balanced or there
is doubt on which side the evidence preponderates.
In this case, the decision should be against the party
with the burden of proof. [Rivera v. CA (284 SCRA
672); Marubeni v. Lirag (2001)]
Competence vs. credibility

Competence
Credibility
Eligibility of evidence to Worthiness of

be received as such
believability
Burden of Evidence
In criminal cases, the equipoise rule provides that

where the evidence is evenly balanced, the
constitutional presumption of innocence tilts the
scales in favor of the accused. [Malana v. People
(2008)]
belief;
BURDEN OF PROOF AND BURDEN OF EVIDENCE

Burden of Proof
Burden of Evidence
Duty of a party to present

evidence on the facts in
issue
necessary
to
establish his/her claim or
defense by the amount
of evidence required by
law [Sec. 1, Rule 131]
A party will have the

burden of evidence only
(i.e., will have to be a
proponent) if there is any
factum
probandum
(whether evidentiary or
otherwise)
that
the
adverse party has already
established (whether by
law, rule, or by virtue of
PRESUMPTIONS
PAGE 214
Conclusive
Disputable
Inferences which the law

makes so peremptory
that it will not allow them
to be overturned by any
contrary proof however
strong [Datalift Movers v.
Belgravia Realty (2006)]
Satisfactory if
uncontradicted, but may
be contradicted and
overcome by other
evidence [Sec. 3, Rule 131]
UP COLLEGE OF LAW
EVIDENCE
administrative or quasi-judicial bodies [Sec. 5, Rule

133]
LIBERAL CONSTRUCTION OF THE RULES OF

EVIDENCE
Like all other provisions under the ROC, rules of
evidence must be liberally construed. [Sec. 6, Rule 1]
The amount of relevant evidence which a reasonable

mind might accept as adequate to support a
conclusion [Sec. 5, Rule 133]
Rules on Electronic Evidence shall likewise be

construed liberally. [Sec. 2, Rule 2, Rules on Electronic
Evidence]
QUANTUM OF EVIDENCE
SUFFICIENCY OF EVIDENCE)
(WEIGHT
CLEAR AND CONVINCING EVIDENCE
Standard of proof required in granting or denying

bail in extradition cases [Government of Hongkong
Special Administrative Region v Olalia, Jr. (2007)]
AND
Intermediate in character lower than proof beyond
reasonable doubt, but higher than preponderance of
evidence
PROOF BEYOND REASONABLE DOUBT
Applicable quantum of evidence in criminal cases

[Sec. 2, Rule 133]
Judicial Notice and Judicial

Admissions
Only moral certainty is required that degree of

proof which produces conviction in an unprejudiced
mind. [Sec. 2, Rule 133]
The burden is on the prosecution to prove guilt
beyond reasonable doubt, NOT on the accused to
prove his/her innocence. [Boac v People (2008)]
WHAT NEED NOT BE PROVED

(1) Facts of Judicial Notice
(2) Judicial Admissions
(3) Conclusive Presumptions
The prosecution must not rely on the weakness of

the evidence of the defense. [Ubales v People (2008);
People v Hu (2008)]
JUDICIAL NOTICE
Judicial notice is the cognizance of certain facts that

judges may properly take and act on without proof
because these facts are already known to them. Put
differently, it is the assumption by a court of a fact
without need of further traditional evidentiary
support. The principle is based on convenience and
expediency in securing and introducing evidence on
matters which are not ordinarily capable of dispute
and are not bona fide disputed. [Republic v.
PREPONDERANCE OF EVIDENCE
Applicable quantum of evidence in civil cases [Sec. 1,

Rule 133]
Means that the evidence adduced by one side is, as a
whole, superior to or has greater weight than that of
the other. [Habagat Grill v. DMC-Urban Property
Developer, Inc.(2005); Bank of the Philippine Islands v
Reyes (2008)]
MATTERS OF JUDICIAL NOTICE
In determining preponderance of evidence, the court

may consider:
(1) All the facts and circumstances of the case;
(2) The witnesses manner of testifying, their
intelligence, their means and opportunity of
knowing the facts to which they testify, the nature
of the facts to which they testify, the probability or
improbability of their testimony;
(3) The witnesses interest or want of interest, and
also their personal credibility so far as the same
may legitimately appear upon the trial;
(4) Number of witnesses (although preponderance is
not necessarily equated with the number of
witnesses). [Sec. 1, Rule 133]
MANDATORY
Needs no introduction of evidence [Sec. 1, Rule 129]:

(1) Existence and territorial extent of states;
(2) Their political history, forms of government, and
symbols of nationality;
(3) Law of nations;
(4) Admiralty and maritime courts of the world and
their seals;
(5) Political constitution and history of the
Philippines;
(6) Official acts of the legislative, executive and
judicial departments of the Philippines;
(7) Laws of nature;
(8) Measure of time; and
(9) Geographical divisions.
SUBSTANTIAL EVIDENCE
Degree of evidence required in cases filed before
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EVIDENCE
Note: It would be error for the court not to take

judicial notice of an amendment to the Rules of
Court [Riano citing Siena Realty v. Gal-lang (428
SCRA 422)]
is either 1) generally known within the territorial

jurisdiction of the trial court; or b) capable of
accurate and ready determination by resorting to
sources whose accuracy cannot reasonably be
questionable. [Riano]
DISCRETIONARY
(1) Matters of public knowledge;

(2) Matters
capable
of
unquestionable
demonstration; and
(3) Matters ought to be known to judges because of
their judicial functions. [Sec. 2, Rule 129]
JUDICIAL ADMISSIONS
To be a judicial admission, the same:
(1) Must be made by a party to the case;
(2) Must be made in the course of the proceedings in
the same case; and
(3) May be verbal or written. [Sec. 4, Rule 129]
REQUISITES
For the court to take judicial notice, three material

requisites should be present:
(1) The matter must be one of common and general
knowledge;
(2) It must be well and authoritatively settled and
not doubtful or uncertain;
(3) It must be known to be within the limits of the
jurisdiction of the court. [State Prosecutors v, Muro
(1994)]
As regards judicial admissions made in the trial of

another case: the same would be considered an
extrajudicial admission for the purpose of the other
proceeding where such admission is offered. [Riano]
WHERE JUDICIAL ADMISSIONS MAY BE MADE
(a) Pleadings filed by the parties (including

admissions made in pleadings which are
withdrawn/superseded by an amended pleading
[Regalado])
(b) The course of the trial either by verbal/written
manifestations/stipulations
(c) Other stages of judicial proceedings
Judicial notice is not judicial knowledge. The mere

personal knowledge of the judge is not the judicial
knowledge of the court, and he is not authorized to
make his individual knowledge of a fact, not
generally or professionally known, the basis of his
action. Judicial cognizance is taken only of those
matters which are "commonly" known. [State
Prosecutors v. Muro (1994)]
HOW JUDICIAL ADMISSIONS MAY BE OBTAINED
(a) Depositions
(b) Written interrogatories
(c) Request for admissions [Regalado; see also Civil
Procedure Rules]
With Respect to Courts Own Acts and Records

A court MAY take judicial notice of its own acts and
records in the same case. [Republic v Court of
Appeals (1997)]
There are averments made in pleadings which are

not deemed admissions even if the adverse party
fails to make a specific denial of the same like
immaterial allegations (Sec. 11, Rule 8), conclusions,
non-ultimate facts in the pleading (Sec. 1, Rule 8) as
well as the amount of liquidated damages (Sec. 11,
Rule 8). [Riano]
With Respect to Records of Other Cases

General Rule: Courts CANNOT take judicial notice of
the contents or records of other cases even if both
cases may have been tried or are pending before the
same judge. [Prieto v. Arroyo (1965)]
Although an admission made during the pre-trial is

deemed to have been made in the course of the
judicial proceeding and is necessarily a judicial
admission, an admission made by the accused in the
pre-trial of a criminal case is not necessarily
admissible against him. To be admissible, it must
comply with the conditions set forth under Sec. 2,
Rule 118 [Riano]
Exceptions:
(1) When there is no objection, with the knowledge of
the opposing party, the contents of said other
case are clearly referred to and adopted or read
into the record of the latter; or
(2) When the original or part of the records of the
case is actually withdrawn from the archives at
the courts discretion upon the request, or with
the consent, of the parties, and admitted as part
of the record of the pending case [Tabuena v. CA
(1991)]
EFFECT OF JUDICIAL ADMISSIONS
(1) It does NOT require proof. [Sec. 4, Rule 129]

(2) It is conclusive upon the party making it, and
hence, CANNOT be contradicted. [Sec. 4, Rule
129]
The principal guide in determining what facts may be

assumed to be judicially known is that of notoriety. It
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UP COLLEGE OF LAW
EVIDENCE
An original complaint, after being amended, loses its

character as a judicial admission, which would have
required no proof. It becomes merely an extrajudicial admission requiring a formal offer to be
admissible. [Torres v CA (1984)].
and doer of the whole act; otherwise, that things

which a person possesses or exercises acts of
ownership over, are owned by him;
(11) Person in possession of an order on himself for
the payment of the money or the delivery of
anything has paid the money or delivered the
thing accordingly;
(12) Person acting in public office was regularly
appointed or elected to it;
(13) Official duty has been regularly performed;
(14) A court or judge acting as such, whether in the
Philippines or elsewhere, was acting in the
lawful exercise of jurisdiction;
(15) All the matters within an issue raised in a case
were laid before the court and passed upon by it;
all matters within an issue raised in a dispute
submitted for arbitration were laid before
arbitrators and passed upon by them;
(16) Private transactions have been fair and regular;
(17) Ordinary course of business has been followed;
(18) There was a sufficient consideration for a
contract;
(19) Negotiable instrument was given or indorsed for
a sufficient consideration;
(20) An indorsement of negotiable instrument was
made before the instrument was overdue and at
the place where the instrument is dated;
(21) A writing is truly dated;
(22) Letter duly directed and mailed was received in
the regular course of the mail;
(23) Presumptions concerning absence:
(a) Ordinary but continued absence of:
(i) 7 years, it being unknown WON the
absentee still lives, he is considered
dead for all purposes, except for those
of succession
(ii) 10 yearsthe absentee shall be
considered dead for the purpose of
opening his succession; but if he
disappeared after the age of 75 years,
an absence of 5 years shall be sufficient
to open his succession
(iii) 4 consecutive yearsthe spouse
present may contract a subsequent
marriage if s/he has a well-founded
belief that the absent spouse is already
dead; but where there is danger of
death, an absence of only 2 years shall
be sufficient for remarriage
(b) Qualified absence
(i) A person on board a vessel lost during
a sea voyage, or an aircraft which is
missing, who has not been heard of for
4 years since the loss of the vessel or
aircraft
(ii) A member of the armed forces who has
taken part in armed hostilities, and has
A party who judicially admits a fact cannot later

challenge that fact as judicial admissions are a
waiver of proof; production of evidence is dispensed
with. [Alfelor v Halasan (2006)]
HOW JUDICIAL ADMISSIONS MAY BE CONTRADICTED
As an exception to the general rule, judicial

admissions may be contradicted only by showing
that:
(1) It was made through palpable mistake; [Sec. 4,
Rule 129]
(2) No such admission was made. [Sec. 4, Rule 129]
This may be invoked when the statement of a
party is taken out of context or that his statement
was made not in the sense it is made to appear by
the other party [Phil. Health Care Providers v.
Estrada, 2008 citing Atillo, III v. CA, 1997]
CONCLUSIVE PRESUMPTIONS
Instances of Conclusive Presumptions

[Sec. 2, Rule 131]
(1) Whenever a party has, by his own
declaration/act/omission,
intentionally
and
deliberately led another to believe a particular
thing is true and to act upon such belief, he
cannot, in any litigation arising out of such
declaration/act/omission, be permitted to falsify
it.
(2) The tenant is not permitted to deny the title of his
landlord at the time of the commencement of the
relation of landlord and tenant between them.
As Distinguished from Disputable Presumptions
[Sec. 3, Rule 131]
(1) Person is innocent of a crime or wrong;
(2) Unlawful act is done with an unlawful intent;
(3) Person intends the ordinary consequences of his
voluntary act;
(4) Person takes ordinary care of his concerns;
(5) Evidence willfully suppressed would be adverse
if produced;
(6) Money paid by one to another was due to the
latter;
(7) Thing delivered by one to another belonged to
the latter;
(8) Obligation delivered up to the debtor has been
paid;
(9) Prior rents or installments had been paid when a
receipt for the later ones is produced;
(10) A person found in possession of a thing taken in
the doing of a recent wrongful act is the taker
PAGE 217
UP COLLEGE OF LAW
EVIDENCE
been missing for 4 years

(iii) A person who has been in danger of
death under other circumstances and
whose existence has not been known
for 4 years
(24) Acquiescence resulted from a belief that the
thing acquiesced in was conformable to the
law/fact;
(25) Things have happened according to the ordinary
course of nature and ordinary nature habits of
life;
(26) Persons acting as copartners have entered into a
contract of co-partnership;
(27) A man and woman deporting themselves as
husband and wife have entered into a lawful
contract of marriage;
(28) Property acquired by a man and a woman who
are capacitated to marry each other and who live
exclusively with each other as husband and wife
without the benefit of marriage or under a void
marriage, has been obtained by their joint
efforts, work or industry;
(29) In cases of cohabitation by a man and a woman
who are not capacitated to marry each other and
who have acquired property through their actual
joint contribution of money, property or industry,
such contributions and their corresponding
shares including joint deposits of money and
evidences of credit are equal;
(30) Presumptions governing children of women who
contracted another marriage within 300 days
after termination of her former marriage (in the
absence of proof to the contrary):
When child was born
reports of cases adjudged in tribunals of the

country where the book is published, contains
correct reports of such cases;
(35) A trustee or other person whose duty it was to
convey real property to a particular person has
actually conveyed it to him when such
presumption is necessary to perfect the title of
such person or his successor in interest;
(36) Presumptions
regarding
survivorship:
(Applicable for all purposes except succession)
(a) When 2 persons perish in the same
calamity,
(b) And it is not shown who died first,
(c) And there are no particular circumstances
from which it can be inferred,
(d) The survivorship is determined from the
probabilities resulting from the strength
and the age of the sexes:
Situation
Considered to have been

conceived during the former
marriage, provided it be born
within 300 days after the
termination of the former
marriage
After 180 days

following the
celebration of the
subsequent
marriage
Considered to have been

conceived during the
subsequent marriage, even
though it be born within the
300 days after the termination
of the former marriage.
Person presumed to have survived
Both < 15 y/o
The older
Both > 60 y/o
The younger
One < 15 y/o,

the other > 60
y/o
The one <15
Both > 15 and <

60 y/o, of
The male
different sexes
Both > 15 and
<60 y/o, of the
same sex
Presumption
Before 180 days

after the
solemnization of the
subsequent
marriage
The older
(37) As between 2 or more persons called to succeed

each other: If there is a doubt as to which of
them died first, whoever alleges the death of
one prior to the other, shall prove the same. In
the absence of proof, they shall be considered to
have died at the same time.
JUDICIAL NOTICE OF FOREIGN LAWS, LAW OF
NATIONS AND MUNICIPAL ORDINANCES
FOREIGN LAWS
General Rule: Courts cannot take judicial notice of

foreign laws. [Yao-Kee v. Sy-Gonzales (1988)]
Exceptions: The court may take judicial notice of the
foreign law:
(1) Where the foreign law is within the actual
knowledge of the court such as when the law is
generally well-known, had been ruled upon in
previous cases before it and none of the parties
claim otherwise [PCIB v Escolin (1974)]
(31) A thing once proved to exist continues as long as

is usual with things of the nature;
(32) The law has been obeyed;
(33) A printed/published book, purporting to be
printed/published by public authority, was so
printed/published;
(34) A printed/published book, purporting to contain
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EVIDENCE
(2) When the foreign law is part of a published

treatise, periodical or pamphlet and the writer is
recognized in his/her profession or calling as
expert in the subject [Sec. 46, Rule 130]
Under the Doctrine of Processual Presumption: In the

absence of proof, the foreign law will be presumed to
be the same as the laws of the jurisdiction hearing
the case. [Northwest Orient Airlines v Court of Appeals
(1995)]
Exceptions: Court may refuse exhibition of object

evidence and rely on testimonial evidence alone if:
(1) Exhibition is contrary to public policy, morals or
decency;
(2) It would result in delays, inconvenience,
unnecessary expenses, out of proportion to the
evidentiary value of such object; [People v. Tavera]
(3) Evidence would be confusing or misleading.
[People v. Saavedra]
LAW OF NATIONS
COMPETENT
The Philippines adopts the generally accepted

principles of international law as part of the law of
the land. [Sec. 2, Art. II, 1987 Constitution]
Evidence be Authenticated
To authenticate the object is to show that the object
is the very thing that is either the subject matter of
the lawsuit or the very one involved to prove an issue
in the case.
Being part of the law of the land, they are therefore

in the nature of local laws, and hence, subject to
mandatory judicial notice under Sec. 1 of Rule 129.
Authentication be Made by Competent Witness

To authenticate the object, the witness must have
the capacity to identify the object as the very thing
involved in the litigation.
MUNICIPAL ORDINANCES
Municipal trial courts are required to take judicial

notice of the ordinances of the municipality or city
wherein they sit. [(US v. Blanco, 37 Phil 126)]
A witness can testify to those facts which he/she

knows of his/her personal knowledge; that is, which
are derived from his/her own perception. [Sec. 36,
Rule 130]
However, in the case of the RTC, they must take such

judicial notice only (a) when required to do so by
statute (City of Manila v. Garcia (1967)); and b) in a
case of appeal before them wherein the inferior court
took judicial notice of an ordinance involved in said
case [(US v. Blanco, 37 Phil 126)] [Regalado]
CATEGORIES OF OBJECT EVIDENCE

The thing itself
UNIQUE OBJECTS
Objects that have readily identifiable marks, e.g., a

caliber 45 pistol by virtue of its serial number
Object (Real) Evidence
OBJECTS MADE UNIQUE
Objects with no unique characteristic but are made

readily identifiable, e.g., a typical kitchen knife with
identifying marks placed on it by the witness
NATURE OF OBJECT EVIDENCE

Those addressed to the senses of the court [Sec. 1,
Rule 130]
NON-UNIQUE OBJECTS
The right against self-incrimination CANNOT be

invoked against object evidence. [People v. Malimit,
(1996)]
Objects with no identifying marks and cannot be

marked, e.g., narcotic substances
DEMONSTRATIVE EVIDENCE
Not the actual thing, rather it represents or
demonstrates the real thing, e.g., photographs,
motion pictures and recordings [Riano]
REQUISITES OF ADMISSIBILITY
(1) Evidence must be relevant;
(2) Evidence must be authenticated;
(3) Authentication must be made by a competent
witness; and
(4) Object must be formally offered [Sec. 34, Rule
132]
Audio, photographic and video evidence of events,

acts or transactions shall be admissible provided
they shall be:
(1) Shown, presented or displayed to the court; and
(2) Identified, explained or authenticated:
(a) By the person who made the recording, or
RELEVANT
General Rule: When an object is relevant to the fact in

issue, it may be exhibited to, examined or viewed by
the court. [Sec. 1, Rule 130]
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EVIDENCE
(b) By some other person competent to testify on

the accuracy thereof [Sec. 1, Rule 11, Rules on
Electronic Evidence]
(a) Accused or the person/s from whom the drugs

were seized, or his/her representative or
counsel
(b) Representative from the media and the
Department of Justice
(c) Any elected public official
(4) Who shall be required to sign the copies of the
inventory and be given a copy thereof. [Sec. 21,
Art. II, R.A. 9165 or the Comprehensive Dangerous
Drugs Act of 2002]
EPHEMERAL ELECTRONIC COMMUNICATIONS
Refers to telephone conversations, text messages,

chatroom sessions, streaming audio, streaming
video, and other electronic forms of communication
the evidence of which is not recorded or retained.
[Sec. 1(k), Rule 2, Rules on Electronic Evidence]
Non-compliance with Sec. 21 of R.A. 9165,

particularly the making of the inventory and their
photographing of the drugs confiscated will not
render the drugs inadmissible in evidence. The issue
if there is non-compliance with the law is not
admissibility, but of weight evidentiary merit or
probative value. [People v Del Monte (2008)]
How proven:
(1) By the testimony of a person who was a party to
the same;
(2) By the testimony of a person who has personal
knowledge thereof; or
(3) In the absence or unavailability of such
witnesses, by other competent evidence [Sec. 2,
Rule 11, Rules on Electronic Evidence]
PURPOSE OF ESTABLISHING CHAIN OF CUSTODY
To guaranty the integrity of the physical evidence

and to prevent the introduction of evidence which is
not authentic. [Riano]
When recorded, the communication ceases to be

ephemeral and shall be proven in the same manner
as proving audio, photographic and video evidence
[Sec. 2, Rule 11, Rules on Electronic Evidence].
Note: A unique characteristic of narcotic substances

is that they are not readily identifiable. Hence, in
authenticating the same, a more stringent standard
than that applied to readily identifiable objects is
necessary. This exacting standard entails a chain of
custody of the item with sufficient completeness to
render it improbable for the original item to be
exchanged with another, contaminated or tampered
with [Lopez v. People (2008)]
VIEW OF AN OBJECT OR SCENE

When an object is relevant to the fact in issue, it may
be viewed by the court. [Sec. 1, Rule 130]
Court has an inherent power to order view when
there is a need to do so. [Riano, citing Sec. 1, Rule 130]
Inspection may be made inside or outside the
courtroom. An inspection outside should be made in
the presence of the parties or at least with the
previous notice to them. [Riano, citing Moran]
RULE ON DNA EVIDENCE

[A.M. No. 06-11-5-SC]
MEANING OF DNA
CHAIN OF CUSTODY
In relation to Sec. 21 of the Comprehensive
Dangerous Drugs Act of 2002
The totality of the DNA profiles, results and other

genetic information directly generated from DNA
testing of biological samples. [Sec. 3c]
MEANING OF CHAIN OF CUSTODY
APPLICATION FOR DNA TESTING ORDER
A method of authenticating evidence which requires

that the admission of an exhibit be preceded by
evidence sufficient to support a finding that the
matter in question is what the proponent claims it to
be [Lopez v People (2008), as cited in People v Dela
Cruz (2008) and People v Agulay (2008)]
With prior court order

(1) The appropriate court may, at any time, either (i)
motu proprio or (ii) on application of any person
who has a legal interest in the matter in litigation,
order a DNA testing.
(2) Such order shall issue after due hearing and
notice to the parties upon a showing of the
following:
(a) A biological sample exists that is relevant to
the case;
(b) The biological sample: (i) was not previously
subjected to the type of DNA testing now
requested; or (ii) was previously subjected to
IN RELATION TO DRUG CASES
The apprehending team having initial custody and

control of the drugs shall:
(1) Physically inventory, and
(2) Photograph the same,
(3) In the presence of
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EVIDENCE
DNA testing, but the results may require

confirmation for good reasons;
(c) The DNA testing uses a scientifically valid
technique;
(d) The DNA testing has the scientific potential to
produce new information that is relevant to
the proper resolution of the case; and
(e) The existence of other factors, if any, which
the court may consider as potentially affecting
the accuracy of integrity of the DNA testing.
[Sec. 4]
(c) Compliance
with
scientifically
standards in conducting the tests
valid
(3) Forensic DNA laboratory

(a) Accreditation by any reputable standardssetting institution
(b) Qualification of the analyst who conducted
the tests
(c) If not accredited, relevant experience of the
laboratory in forensic work and its credibility
(4) Reliability of the testing result [Sec. 7]
Without prior court order

This Rule shall not preclude a DNA testing, without
need of a prior court order, at the behest of any
party. [Sec. 4]
Vallejo Standard
In assessing the probative value of DNA evidence,
courts should consider the following:
(a) How the samples were collected
(b) How they were handled
(c) The possibility of contamination of the samples
(d) The procedure followed in analyzing the samples,
whether the proper standards and procedures
were followed
(e) Qualification of the analyst who conducted the
tests [People v. Vallejo (2002)]
POST-CONVICTION DNA TESTING
How obtained:
(1) Without need of prior court order
(2) Available to the prosecution or any person
convicted by final and executory judgment
Requisites:
(1) A biological sample exists
(2) Such sample is relevant to the case
(3) The testing would probably result in the reversal
or modification of the judgment of conviction.
[Sec. 6]
RULES ON EVALUATION OF RELIABILITY OF THE DNA

TESTING METHODOLOGY
Factors that determine the reliability of the DNA

Testing Methodology
(1) Falsifiability of the principles or methods used
(2) Subject to peer review and publication of the
principles or methods
(3) General acceptance of the principles or methods
by the scientific community
(4) Existence and maintenance of standards and
controls to ensure the correctness of data
generated
(5) Existence of an appropriate reference
population database
(6) General degree of confidence attributed to
mathematical calculations used in comparing
DNA profiles
(7) Significance and limitation of statistical
calculations used in comparing DNA profiles
Remedy if Results Favorable to the Convict

Convict or the prosecution may file a petition for a
writ of habeas corpus in the court of origin, CA or SC
or any member of said courts. [Sec. 10]
General Rule: If the court, after due hearing, finds the
petition meritorious, it shall reverse or modify the
judgment of conviction and order the release of the
convict. [Sec. 10]
Exception: If continued detention is justified for a
lawful cause. [Sec. 10]
ASSESSMENT AND PROBATIVE VALUE OF DNA EVIDENCE
AND ADMISSIBILITY
Factors in assessing the probative value of DNA

evidence
(1) Chain of custody
(a) How the biological samples were collected
(b) How they were handled
(c) Possibility of contamination
Documentary Evidence
MEANING OF DOCUMENTARY EVIDENCE
Consist of writings or any material containing letters,
words, numbers, figures, symbols or other modes of
written expressions offered as proof of their contents
[Rule 130, Sec. 2]
(2) DNA testing methodology

(a) Procedure followed in analyzing the samples
(b) Advantages and disadvantages of the
procedure
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EVIDENCE
To be deemed documentary evidence, such writings

or materials must be offered as proof of their
contents. If offered for some other purpose, they
constitute OBJECT EVIDENCE.
ALL duplicates or counterparts must be

accounted for before using copies [De Vera v.
Aguilar (1993)]
How to prove contents:
(a) Copy,
(b) Recital of its contents in some authentic
document, or
(c) Testimony of witnesses (in the order stated)
[Section 5, Rule 130]
How to prove loss/destruction: Through the
testimony of:
(a) The person or persons who executed it;
(b) The person before whom its execution was
acknowledged; or
(c) Any person who was present and saw it
executed and delivered, or who, after its
execution and delivery, saw it and recognized
the signatures, or by a person to whom the
parties to the instruments had previously
confessed the execution thereof. [Director of
Lands v. CA (1971)]
REQUISITES FOR ADMISSIBILITY

(1) Relevant
(2) Competent
(a) Document be Authenticated
(b) Authenticated by Competent Witness
(3) Formally Offered in Evidence
BEST EVIDENCE RULE
MEANING OF THE RULE
When the subject of inquiry is the contents of a

document, no evidence shall be admissible other
than the original document itself. [Rule 130, Sec. 3]
APPLICABILITY
Only when the subject of inquiry is the contents of a

document [Rule 130, Sec. 3]
The BER does not apply when the issue is only as to
WON such document was actually executed or in the
circumstances relevant to its execution. [People v
Tandoy (1990)]
(2) When the original is in the custody or under the

control of the party against whom it is offered,
and the latter fails to produce it after reasonable
notice
As applied in the case of affidavits and depositions:
(3) When the original consists of numerous accounts

or other documents which cannot be examined in
court without great loss of time, and the fact
sought to be established from them is only the
general result of the whole
Affidavits and depositions are considered as not

being the best evidence, hence not admissible if the
affiants or deponents are available as witnesses.
[Regalado citing 4 Martin, op cit., p. 82]
(4) When the original is a public record in the custody

of a public officer or is recorded in a public office
MEANING OF ORIGINAL DOCUMENT
(1) One the contents of which are the subject of

inquiry
(2) All such copies executed at or about the same
time, and with identical contents
(5) When the original is outside the jurisdiction of the

court, secondary evidence is admissible [PNB v.
Olila (98 Phil 1002)]
RULES ON ELECTRONIC EVIDENCE
[A.M. NO. 01-7-01- SC]
Note: Carbon copies are deemed duplicate

originals. [People v Tan (1959)]
APPLICABILITY
(3) All such entries made and repeated in the regular

course of business, at/near the time of the
transaction [Rule 130, Sec. 4]
The Rules on Electronic Evidence applies only to civil

actions,
quasi-judicial
proceedings
and
administrative proceeding, not to criminal action.
[Ang v. CA (2010)]
REQUISITES FOR INTRODUCTION OF SECONDARY EVIDENCE

(EXCEPTIONS TO BER)
MEANING OF ELECTRONIC DEVICE; ELECTRONIC DATA

MESSAGE
(1) When the original has been lost or destroyed, or

cannot be produced in court, without bad faith on
the offerors part
Proponent must prove due execution, loss,
destruction or unavailability of the original
(Rule 130, Sec. 5) and reasonable diligence and
good faith in the search for/attempt to produce
the original [Tan v. CA (1985)]
Electronic document
(1) Information or the representation of information,
data, figures, symbols or other modes of written
expression,
(2) Described or however represented, by which a
right is established or an obligation extinguished,
or by which a fact may be proved and affirmed,
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EVIDENCE
(3) Which is received, recorded, transmitted, stored

processed, retrieved or produced electronically.
(4) It includes digitally signed documents and any
print-out or output, readable by sight or other
means, which accurately reflects the electronic
data message or electronic document.
(5) The nature and quality of the information which

went into the communication and information
system upon which the electronic data message
or electronic document was based; or
(6) Other factors which the court may consider as
affecting the accuracy or integrity of the
electronic document or electronic data message.
For purposes of these Rules, the term electronic

document may be used interchangeably with
electronic data message.
In any dispute involving the integrity of the

information and communication system in which an
electronic document or electronic data message is
recorded or stored, the court may consider, among
others, the following factors:
(1) Whether the information and communication
system or other similar device was operated in a
manner that did not affect the integrity of the
electronic document, and there are no other
reasonable grounds to doubt the integrity of the
information and communication system;
(2) Whether the electronic document was recorded
or stored by a party to the proceedings with
interest adverse to that of the party using it; or
(3) Whether the electronic document was recorded
or stored in the usual and ordinary course of
business by a person who is not a party to the
proceedings and who did not act under the
control of the party using it.
Electronic data message

Information generated, sent, received or stored by
electronic, optical or similar means
PROBATIVE VALUE OF ELECTRONIC DOCUMENTS OR
EVIDENTIARY WEIGHT; METHOD OF PROOF
Factors in assessing evidentiary weight of electronic

evidence [Rule 7, Sec. 1]
In assessing the evidentiary weight of an electronic
document, the following factors may be considered:
(1) The reliability of the manner or method in which it
was generated, stored or communicated,
including but not limited to
(a) Input and output procedures,
(b) Controls, tests and checks for accuracy and
reliability of the electronic data message or
document,
(c) In the light of all the circumstances as well as
any relevant agreement;
(2) The reliability of the manner in which its
originator was identified;
(3) The integrity of the information and
communication system in which it is recorded or
stored, including but not limited to the hardware
and computer programs or software used as well
as programming errors;
(a) Whether the information and communication
system or other similar device was operated in
a manner that did not affect the integrity of
the electronic document, and there are no
other reasonable grounds to doubt the
integrity
of
the
information
and
communication system [Rule 7, Sec. 2];
(b) Whether the electronic document was
recorded or stored by a party to the
proceedings with interest adverse to that of
the party using it [Rule 7, Sec. 2]; or
(c) Whether the electronic document was
recorded or stored in the usual and ordinary
course of business by a person who is not a
party to the proceedings and who did not act
under the control of the party using it [Rule 7,
Sec. 2]
(4) The familiarity of the witness or the person who
made the entry with the communication and
information system;
Text messages have been classified as ephemeral

electronic communication under Section 1(k), Rule 2
of the Rules on Electronic Evidence, and shall be
proven by the testimony of a person who was a party
to the same or has personal knowledge thereof.
[Vidallon-Magtolis v. Salud (2005)]
Method of Proof
(1) Affidavit of Evidence [Rule 9, Sec. 1]
(a) Must state facts:
(i) Of direct personal knowledge, or
(j) Based on authentic records
(b) Must affirmatively show the competence of
the affiant to testify on the matters contained
in the affidavit
(2) Cross-Examination of Deponent [Rule 9, Sec. 2]
(a) Affiant shall affirm the contents of the
affidavit in open court.
(b) Affiant may be cross-examined as a matter of
right by the adverse party.
AUTHENTICATION OF ELECTRONIC DOCUMENTS &
ELECTRONIC SIGNATURES
[Rule 5, secs. 1 to 3; Rule 11, secs. 1 to 2, Rules on

electronic evidence]
Of Electronic Documents
Burden of proving authenticity: The person seeking
to introduce the electronic document [Rule 5, Sec. 1]
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EVIDENCE
PAROL EVIDENCE
Manner of Authentication:
(1) By evidence that it had been digitally signed by
the person purported to have signed the same;
(2) By evidence that other appropriate security
procedures or devices as may be authorized by
the Supreme Court or by law for authentication of
electronic documents were applied to the
document; or
(3) By other evidence showing its integrity and
reliability to the satisfaction of the judge. [Rule 5,
Sec. 2]
MEANING OF PAROL EVIDENCE
Any evidence aliunde, whether oral or written, which

is intended or tends to vary or contradict a complete
and enforceable agreement embodied in a
document. [Regalado]
APPLICATION OF THE PAROL EVIDENCE RULE
General Rule
When the terms of an agreement (including wills)
have been reduced to writing, it is considered as
containing all the terms agreed upon and there can
be, between the parties and their successors in
interest, no evidence of such terms other than the
contents of the written agreement. [Rule 130, Sec. 9]
Of Electronic Signatures [Rule 6, Sec. 2]

(1) By evidence that a method or process was utilized
to establish a digital signature and verify the
same;
(2) By any other means provided by law; or
(3) By any other means satisfactory to the judge
Exception
It does not apply when 3rd parties are involved.
[Lechugas v. CA (1986)]
ELECTRONIC DOCUMENTS & THE HEARSAY RULE
Business Records as Exception to the Hearsay Rule

What Constitute Business Records: Records of any
business, institution, association, profession,
occupation, and calling of every kind, whether or not
conducted for profit, or for legitimate purposes [Rule
2, Sec. 1b]
WHEN PAROL EVIDENCE CAN BE INTRODUCED
Requisites
(1) Made by electronic, optical or other similar means
(2) Made at or near the time of or from transmission
or supply of information
(3) Made by a person with knowledge thereof
(4) Kept in the regular course or conduct of a
business activity,
(5) Such was the regular practice to make the
memorandum, report, record, or data compilation
by electronic, optical or similar means
(6) Abovementioned facts shown by the testimony of
the custodian or other qualified witnesses [Rule 8,
Sec. 1]
Grounds for presenting parol evidence:

(1) An intrinsic ambiguity, mistake or imperfection in
the written agreement
(a) Intrinsic ambiguity writing admits of two
constructions both of which are in harmony
with the language used
Note: If ambiguity is intermediate (both latent
and patent), parol evidence is admissible
[Regalado citing 20 Am. Jur 1011]
(b) Mistake refers to mistake of fact which is
mutual to the parties [BPI v. Fidelity and
Surety, Co, 1927]
(c) Imperfection includes inaccurate statement
in the agreement or incompleteness in the
writing or the presence of inconsistent
provisions [Regalado]
(2) Failure of the written agreement to express the
true intent and agreement of the parties thereto
Purpose: To enable court to ascertain the true
intention of the parties [Tolentino v. Gonzales Sy
Chiam (1927)]
(3) Validity of the written agreementParol Evidence
may be admitted to show:
(a) True consideration of a contract
(b) Want/Illegality of consideration
(c) Incapacity of parties
(d) Fictitious/simulated contract
(e) Fraud in inducement [Regalado]
(1) When a party presents parol evidence to modify,

explain or add to the terms of a written
agreement
(2) Ground/s for presenting parol evidence is put in
issue in the pleading
Exception to the Exception

(1) Untrustworthiness of the source of information
(2) Untrustworthiness of the method of the
preparation, transmission or storage thereof
(3) Untrustworthiness of the circumstances of the
preparation, transmission or storage thereof [Rule
8, Sec. 2]
AUDIO, PHOTOGRAPHIC, VIDEO & EPHEMERAL EVIDENCE
If the foregoing communications are recorded or

embodied in an electronic document, then the
provisions of Rule 5 (Authentication of Electronic
Documents) shall apply.
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EVIDENCE
(4) Existence of other terms agreed to by the parties

or their successors in interest after the execution
of the written agreement.
Private
Private documents
General Rule: When offered
authentication is necessary
Parol evidence rule
When evidence of authenticity of a private writing is not

required
(1) Ancient Documents Authentication NOT
necessary provided that private document be:
(a) More than 30 years old;
(b) Produced from the custody in which it would
naturally be found if genuine; and
(c) Unblemished by any alterations or
circumstances of suspicion. [Rule 132, Sec. 21]
Note: Other instances when authentication is not
required:
(a) Writing is a public document/record [Rule 132,
Sec. 19]
(b) Notarial
document
acknowledged,
proved/certified [Rule 132, Sec. 30]
(c) When authenticity and due execution has
been admitted [See Rule 8, Sec. 8]
(d) That which it is claimed to be: Authentication
not necessary [Rule 132, Sec. 20]
Prohibits introduction of Prohibits the varying of

substitutionary evidence the terms of a written
in lieu of original agreement
document regardless of
whether it varies the
contents of the original
Applies to all kinds of Applies
only
to
documents
documents contractual in
nature (Exception: Wills)
Can be invoked only
when the controversy is
between the parties to
the written agreement,
their privies or any party
directly affected thereby
How to prove genuineness of handwriting

(1) By any witness who believes it to be the
handwriting of such person because:
(a) He has seen the person write;
(b) He has seen writing purporting to be his upon
which the witness has acted or been charged,
and has thus acquired knowledge of the
handwriting of such person [Rule 132, Sec. 22]
(2) A comparison by the witness or the court of the
questioned handwriting, and admitted genuine
specimens thereof or proved to be genuine to the
AUTHENTICATION AND PROOF OF DOCUMENTS

MEANING OF AUTHENTICATION
Preliminary step in showing the admissibility of

evidence
PUBLIC AND PRIVATE DOCUMENTS
When offered as
authentic, due execution
authentic,
Additional Modes of Authentication under American

Jurisprudence [Regalado]
(1) Doctrine of Self-Authentication
Where the facts in writing could only have been
known by the writer
(2) Rule of Authentication by Adverse Party
Where the reply of the adverse party refers to and
affirms the transmittal to him and his receipt of the
letter in question, a copy of which the proponent is
offering as evidence
Contemplates situation Presupposes that the

wherein original writing is original document is
not available and/or available in court
there is a dispute as to
whether said writing is
the original
Private
as
How to Prove Due Execution and Authenticity

(1) By anyone who saw the document executed or
written; OR
(2) By evidence of the genuineness of the signature
or handwriting of the maker [Rule 132, Sec. 20]
DISTINCTIONS BETWEEN BEST EVIDENCE RULE & PAROL

EVIDENCE RULE
Can be invoked by any

party to an action
regardless of whether or
not such party
participated in the writing
involved
Public
and authenticity must be execution and

proved
authenticity
Collateral agreements
General Rule: Parol evidence rules apply
Exceptions:
(a) Collateral agreement is not inconsistent with the
terms of the written contract
(b) Collateral agreement has not been integrated in
and is independent of the written contract
(c) Collateral agreement is subsequent to and
novatory of the written contract
(d) Collateral agreement constitutes a condition
precedent which determines whether the written
contract may become operative or effective (does
not apply to conditions subsequent not stated in
the agreement) [Regalado]
Best evidence rule
Public
Admissible without
further proof of its due
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EVIDENCE
satisfaction of the judge [Rule 132, Sec. 22]

(3) Expert evidence [Rule 130, Sec. 49]
(2) Certificate
(a) Accompanying the written statement
(b) Must state that that such officer has the
custody
Public documents
Kinds of public documents
(1) Written official acts or records of the official acts
of the sovereign authority, official bodies and
tribunals, and public officers, whether of the
Philippines or of a foreign country
(2) Public records, kept in the Philippines, of private
documents required by law to be entered therein
(3) Notarial documents (except last wills and
testaments) [Rule 132, Sec. 19]
WHAT TO ESTABLISH TO IMPEACH JUDICIAL RECORD

[RULE 132, SEC. 29]
(1) Want of jurisdiction in the court or judicial officer;

(2) Collusion between the parties; OR
(3) Fraud in the party offering the record, with
respect to the proceedings
PROOF OF NOTARIAL DOCUMENTS
Notarial Documents (except last wills and

testaments) [Rule 132, Sec. 30]
(1) May be presented in evidence without further
proof, the certificate of acknowledgment being
prima facie evidence of the execution of the
instrument or document involved.
(2) Such notarized documents are evidence, even
against 3rd persons, of the facts which gave rise
to their execution and of the date of execution.
[Rule 132, Sec. 23]
Proof of public documents

Records of Official Acts [Rule 132, Sec. 24]
(1) By an official publication thereof; or
(2) By an attested copy of the document
Note: Documents without documentary stamp
affixed thereto, unless specifically exempted by law,
may not be admitted or used in evidence in any court
until the requisite stamp shall have been affixed.
[Sec. 201, NIRC] Also, there is a presumption that the
requisite stamps have been affixed in the original
copy when only the carbon copies of the same are
available. [Mahilum v CA (1966)]
ALTERATIONS IN A DOCUMENT
[RULE 132, SEC. 3]
Requisites
(1) Document is being presented as genuine;
(2) Document has been altered and appears to have
been altered;
(3) Alteration was made after execution of the
document; and
(4) Alteration is in a part material to the question in
dispute
ATTESTATION OF A COPY
[RULE 132, SEC. 25]
(1) Must be made by the officer having the legal

custody of the record, or by his deputy
(2) Must state that the copy is a correct copy of the
original or a specific part thereof, as the case may
be
(3) Must be under the official seal of the attesting
officer, if there be any, or if he be the clerk of a
court having a seal, under the seal of such court
What to Show about the Alteration

(1) Was made by another, without his concurrence;
(2) Was made with the consent of the parties
affected by it;
(3) Was otherwise properly or innocently made; or
(4) Did not change the meaning or language of the
instrument.
If the record is not kept in the Philippines, attested

copy must be accompanied with a certificate, which
(1) May be made by a secretary of the
embassy/legation, consul-general, consul, viceconsul, consular agent or any officer in the
foreign service of the Philippines stationed in the
foreign country in which the record is kept;
(2) Must state that such officer has the custody; and
(3) Must be authenticated by the seal of his office.
Whose Burden of Proof

Party producing the document must account for the
alteration. Failure to do so would result in the
inadmissibility of evidence.
DOCUMENTARY EVIDENCE IN AN UNOFFICIAL LANGUAGE
[RULE 132, SEC. 33]
PROOF OF LACK OF RECORD

[RULE 132, SEC. 28]
NOT admissible unless accompanied by a translation

into English or Filipino.
(1) Written statement

(a) Signed by an officer having the custody of an
official record or by his deputy
(b) Must state that after diligent search, no record
or entry of a specified tenor is found to exist in
the records of his office
Parties or their attorneys are directed to have the

translation prepared before trial.
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Effect if Witness Has Interest in the Subject Matter

A person is not disqualified (except if covered by the
Dead Mans statute). The effect is only on credibility,
but not competency.
Testimonial Evidence
WITH RESPECT TO A WITNESS
Relationship
Mere relationship does not impair credibility. To
warrant rejection, it must be clearly shown:
(1) Testimony was inherently improbable or defective
(2) Improper/evil motives had moved the witness to
incriminate falsely
QUALIFICATIONS OF A WITNESS
[RULE 130, SEC. 20]
All persons who can perceive, and, perceiving, can
make their known perception to others, may be
witnesses.
Religious/political belief, interest in the outcome of
the case, or conviction of a crime unless otherwise
provided by law, shall not be ground for
disqualification.
BY REASON OF MENTAL INCAPACITY OR IMMATURITY
Mental Incapacity [Rule 130, Sec. 21a]

Requisites:
(1) Person must be incapable of intelligently making
known his perception to others
(2) His incapability must exist at the time of his
production for examination
WHEN DETERMINED
At the time the said witness are produced for

examination/at the taking of their depositions
A mental retardate is not for this reason alone

disqualified from being a witness. Acceptance of his
testimony depends on its nature and credibility or,
otherwise put, the quality of his perceptions and the
manner he can make them known to the court.
[People v. Salomon (1993)]
Note: With respect to children of tender years,

competence at the time of the occurrence is also
taken into account.
IN CASE PERSON IS CONVICTED OF A CRIME
General Rule: Not disqualified

Exceptions: If the person is convicted of:
(a) Falsification of documents,
(b) Perjury, or
(c) False testimony
Immaturity [Rule 130, Sec. 21b]

Requisites:
(1) Mental maturity of the witness (child) must
render him incapable of perceiving the facts
respecting which he is examined.
(2) He is incapable of relating his perception
truthfully.
COMPETENCY VS. CREDIBILITY OF A WITNESS

Competency
A matter of law and of
rules
Credibility
Has nothing to do with
the law or rules
Incapacity must occur at the time the witness

perceives the event.
Refers to the basic

Refers to the weight and
qualifications of a witness trustworthiness or
as his capacity to perceive reliability of the testimony
and his capacity to
communicate his
perception to others
Unsound mind
(a) Includes
any
mental
aberration
(organic/functional), induced by drugs/hypnosis
(b) Not disqualified as long as the witness can
convey ideas by words/signs
Deaf-Mutes
Not disqualified when they can understand and
appreciate sanctity of oath, can comprehend facts
that they are going to testify to and communicate
through a qualified interpreter
DISQUALIFICATIONS OF A WITNESS
(1) Disqualification by reason of mental incapacity or
immaturity;
(2) Disqualification by reason of marriage;
(3) Disqualification by reason of death or insanity of
adverse party;
(4) Disqualification by reason of privileged
communication;
(5) Disqualification by reason of parental and filial
privilege
Child Witness
Must have capacity for observation, recollection and
communication
BY REASON OF MARRIAGE
Also known as Marital Disqualification Rule or

Spousal Immunity
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(2) He may also testify where he was the one sued by

the decedents estate since the action then is not
against the estate. [Tongco v. Vianzon (1927)]
(3) He may likewise testify where the estate had filed
a counterclaim against him or where the estate
cross-examined him as to matters occurring
during the lifetime of the deceased. [Goi v. CA
(1986)]
(4) No application to a mere witness
(5) No application to nominal parties, officers and
stockholders against corporations
(6) Cannot be used in a negative testimony
(7) If the testimony is offered to prove a claim less
than what is written
(8) If the defendant did not object
(9) When there is an existence of fraud
(10) When the party cross-examines the witness
Requisites
(1) Marriage is valid and existing as of the time of the
offer of testimony.
(2) Other spouse is a party to the action.
Exceptions [Rule 130, Sec. 22]
Spouse MAY testify for or against the other even
without the consent of the latter:
(1) In a civil case by one against the other
(2) In a criminal case for a crime committed by one
against the other or the latter's direct
descendants/ascendants.
Rationale [Alvarez v. Ramirez (2005)]
(1) There is identity of interests between husband
and wife;
(2) If one were to testify for or against the other,
there is a consequent danger of perjury;
(3) Policy of the law is to guard the security and
confidence of private life, and to prevent domestic
disunion and unhappiness; and
(4) Where there is want of domestic tranquility, there
is danger of punishing one spouse through the
hostile testimony of the other.
Rationale
To discourage perjury and protect the estate from
fictitious claims
Note: On applicabilityThe DMS is still applicable
even if the property has already been judicially
adjudicated to the heirs regardless whether the
deceased died before or after the suit.
If the husband imputed the conviction to the wife,

then marital disqualification is waived.
PRIVILEGED COMMUNICATIONS
(1) Husband and wife (marital privilege) [Rule 130,

Sec. 24a]
(2) Attorney and client [Sec. 24(b), Rule 130]
(3) Physician and patient [Sec. 24(c), Rule 130]
(4) Priest and penitent [Sec. 24(d), Rule 130]
(5) Other privileged communication not in the ROC
(a) Newsmans privilege
(b) Information in conciliation proceedings
(c) Data Privacy Act
(6) Parental and filial privilege rule [Sec. 25, Rule 130]
If the spouse is a co-accused, he/she cannot be

called as an adverse party witness under this Rule.
BY REASON OF DEATH OR INSANITY OF ADVERSE PARTY
Also known as Dead Mans Statute or Survivorship

Rule
Requisites [Rule 130, Sec. 23]
(1) Defendant is the executor or administrator or a
representative of the deceased or of the person of
unsound mind;
(2) Suit is upon a claim by the plaintiff against the
estate of said deceased or person of unsound
mind;
(3) Witness is the plaintiff, or an assignor of that
party, or a person in whose behalf the case is
prosecuted; and
(4) Subject of the testimony is as to any matter of
fact occurring before the death of such deceased
person or before such person became of unsound
mind.
Husband and wife

Rationale
Confidential nature of the privilege; to preserve
marital and domestic relations
Requisites
(1) There must be a valid marriage between the
husband and wife;
(2) There is a communication received in confidence
by one from the other; and
(3) The confidential communication was received
during the marriage.
When the Dead Mans Statute Is Inapplicable

(1) The survivor may testify against the estate of the
deceased where the latter was guilty of fraud
which fraud was established by evidence other
than the testimony of the survivor. [Ong Chua v.
Carr (1929)]
A widow of a victim allegedly murdered may testify

as to her husbands dying declaration as to how he
died the since the same was not intended to be
confidential. [US v. Antipolo (1918)]
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(4) When the communication was intended for an

unlawful purpose
(5) When the communication was received from third
persons not acting in behalf/as agents of clients
(6) When the communication was made in the
presence of third parties stranger to the attorneyclient relationship
(7) When the communication has something to do
with a clients contemplated criminal act [People
v. Sandiganbayan (1997)] [Regalado]
When Not Applicable

(1) When the communication was not intended to be
kept in confidence
(2) When the communication was made prior to the
marriage
(3) When the communication was overheard/comes
into the hands of a third party whether legally or
not
(4) Waiver of the privilege
(5) In a civil case by one against the other
(6) In a criminal case for a crime committed by one
against the other or the latter's direct
descendants/ascendants.
General Rule: The attorney-client privilege may not

be invoked to refuse to divulge the identity of the
client.
In Contrast to Marital Disqualification

Marital Disqualification
One spouse should be a
party to the case;
Exceptions [Regala v. Sandiganbayan (1996)]:

(1) When a strong probability exists that revealing
the name would implicate that person in the very
same activity for which he sought the lawyers
advice;
(2) When disclosure would open the client to liability;
(3) When the name would furnish the only link that
would form the chain of testimony necessary to
convict.
Marital Privilege
Neither of the spouses
needs to be a party;
Applies only if the

Does not cease even after
marriage is existing at the the marriage is dissolved;
time the testimony is
and
offered; and
Constitutes a total
prohibition on any
testimony for or against
the spouse of the witness.
Prohibition is limited to
testimony on confidential
communications between
spouses.
Physician and patient

Requisites
(1) Physician is authorized to practice medicine,
surgery or obstetrics;
(2) Information was acquired or the advice or
treatment was given by him in his professional
capacity for the purpose of treating and curing
the patient;
(3) Information, advice or treatment, if revealed,
would blacken the reputation of the patient; and
(4) Privilege is invoked in a civil case, whether or not
the patient is a party thereto.
Attorney and client

Requisites
(1) There must be a communication made by the
client to the attorney or an advice given by the
attorney to his client;
(2) The communication must have been given in
confidence; and
(3) The communication or advice must have been
given either in the course of the professional
employment or with a view to professional
employment.
Where Applicable:
(a) All forms of communication, advice or treatment
(b) Information acquired by the physician from his
personal observations and examination of the
patient
Attorneys secretary, stenographer, or clerk are also

covered by the rule and cannot be examined
concerning any fact the knowledge of which has
been acquired in such capacity without the consent
of the client AND their employer.
Physician-patient relationship need not be entered

into voluntarily.
When Not Applicable:
(a) Communication was not given in confidence
(b) Communication was irrelevant to the professional
employment
(c) Communication was made for an unlawful
purpose
(d) Communication
was
intended
for
the
commission/concealment of a crime
(e) Communication was intended to be made
public/divulged in court
When Not Applicable

(1) When the communication made was not for the
purpose of creating relationship (even if
afterwards he become counsel)
(2) When the communication was intended to be
made public
(3) When the communication was intended to be
communicated to others
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(f) When there was a waiver

(g) When the doctor was presented as an expert
witness and only hypothetical problems were
presented to him. [Lim v. CA (1992)]
Parental and filial privilege rule

General Rule: A person cannot be compelled to
testify against his parents (parental privilege), other
direct ascendants, children or other direct
descendants (filial privilege).
Priest and penitent

Requisites
(1) Confession was made to, or advice given by him
pursuant to a religious duty enjoined in the
course of discipline of the sect or denomination of
the priest.
(2) Confession or advice was confidential and
penitential in character.
Exception [Art. 215, Family Code]: Descendant may be

compelled to give his testimony:
(1) In a criminal case; and
(2) When such testimony is indispensable in a crime
committed against said descendant; or
(3) In a crime committed by one parent against the
other.
Public officers
Requisites
(1) Communication was made to the public officer in
official confidence; and
(2) Public interest would suffer by the disclosure of
such communication.
EXAMINATION OF WITNESSES
RIGHTS AND OBLIGATIONS OF A WITNESS
[RULE 132, SEC. 3]
Obligation of a witness
To answer questions, although his answer may tend
to establish a claim against him.
Elements of presidential communications privilege

(1) Must relate to a quintessential and nondelegable presidential power;
(2) Must be authored or solicited and received by a
close advisor of the President or the President
himself; and
(3) Privilege may be overcome by a showing of
adequate need such that the information sought
likely contains important evidence and by the
unavailability of the information elsewhere. [Neri
v. Senate (2008)]
Rights of a witness
(1) To be protected from irrelevant, improper, or
insulting questions, and from harsh or insulting
demeanor
(2) Not to be detained longer than the interests of
justice require
(3) Not to be examined except only as to matters
pertinent to the issue
(4) Not to give an answer which will tend to subject
him to a penalty for an offense unless otherwise
provided by law, e.g., Sec. 8, RA 1379 and other
immunity statutes which grant the witness
immunity from criminal prosecution for offenses
admitted
(5) Not to give an answer which will tend to degrade
his reputation, unless it to be the very fact at issue
or to a fact from which the fact in issue would be
presumed. But a witness must answer to the fact
of his previous final conviction for an offense.
Other Privileged Communication not in the ROC:

Newsmans Privilege [RA 53, as amended by RA 1477]
General Rule: Publisher, editor or duly accredited
reporter cannot be compelled to reveal the source of
any news report or information related in confidence
Exception: Court/House/Committee in Congress
finds that such revelation is demanded by security of
the State
Information in Conciliation Proceedings
All information and statements made at conciliaton
proceedings shall be treated as privileged
communications. [Art. 233, Labor Code]
One-Day Examination of Witness Rule

[AM 03-1-09-SC] [2009 BAR]
A witness has to be fully examined in one (1) day
only. It shall be strictly adhered to subject to the
courts' discretion during trial on whether or not to
extend the direct and/or cross-examination for
justifiable reasons.
Data Privacy Act

Personal information controllers may invoke the
principle of privileged communication over privileged
information that they lawfully control or process.
Subject to existing laws and regulations, any
evidence gathered on privileged information is
inadmissible. [Sec. 15, RA 10173]
ORDER IN THE EXAMINATION OF AN INDIVIDUAL WITNESS
[RULE 132, SEC. 4]

(1) Direct examination
(2) Cross examination
(3) Re-direct examination
(4) Re-cross examination
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LEADING AND MISLEADING QUESTIONS

[RULE 132, SEC. 10]
Direct Examination [Rule 132, Sec. 4]

Who conducts: Proponent
Why conducted: Examination-in-chief of a witness
by the party presenting him, on the facts
relevant to the issue.
Questions not allowed

(1) Misleading Questions [Sec. 10, Rule 132]
(a) Questions that assume as true a fact not yet
testified to by the witness, or contrary to that
which he has previously stated.
(b) NEVER allowed
(2) Leading Questions
Questions that suggest to the witness the answer,
which the examining party desires.
Cross Examination [Rule 132, Sec. 6]

Who conducts: Opponent
When conducted: Upon the termination of the
direct examination
Why conducted: To test the witnesss accuracy
and truthfulness, and freedom from interest
or bias, or the reverse, and to elicit all
important facts bearing upon the issue
What matters are covered: Any matters stated in
the direct examination, or connected
therewith
General Rule: Leading questions are not allowed.

Exceptions:
(1) On cross examination;
(2) On preliminary matters;
(3) When there is a difficulty is getting direct and
intelligible answers from a witness who is
ignorant, or a child of tender years, or is of feeble
mind, or a deaf-mute;
(4) On an unwilling or hostile witness;
A witness may be considered hostile only when
declared by the court, upon adequate showing
of his: [Sec. 12, Rule 132]
(a) Adverse interest;
(b) Unjustified reluctance to testify;
(c) His having misled the party into calling him
to the witness stand.
(5) On a witness who is an adverse party or an
officer/director or managing agent of a
public/private
corporation
or
of
a
partnership/association which is an adverse
party.
Re-Direct Examination [Rule 132, Sec. 7]

Who conducts: Proponent
When conducted: After cross-examination of the
witness
Why conducted: To explain or supplement his
answers given during the cross-examination
What matters are covered: Those stated in the
cross-examination, and matters not dealt with,
if allowed by the Court
Re-Direct Examination [Rule 132, Sec. 7]

Who conducts: Opponent
When conducted: Upon the conclusion of the redirect examination
What matters are covered: Those stated in his redirect examination, and also on such other
matters as may be allowed by the court in its
discretion.
METHODS OF IMPEACHMENT OF ADVERSE PARTYS

WITNESS
[RULE 132, SEC. 11]
(1) By contradictory evidence;

(2) By evidence that his general reputation for truth,
honesty or integrity is bad;
(3) By evidence that he has made at other times
statements inconsistent with his present
testimony.
Recalling the Witness [Rule 132, Sec. 9]

Who conducts: Either party
When conducted: After both sides have
concluded the examination of a witness, and
with leave of court
Why conducted:
(1) Particularly identified material points were
not covered in cross-examination
(2) Particularly described vital documents were
not presented to the witness
(3) Cross-examination was conducted in so inept
a manner as to result in a virtual absence
thereof [People v. Rivera (1991)]
How the Witness Is Impeached by Evidence of

Inconsistent Statements (Laying the Predicate)
Elements
(1) The alleged statements must be related to the
witness including the circumstances of the times
and places and the persons present. If the
statements are in writing they must be shown to
him.
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(2) Witness may be asked whether he made such

statements and also to explain them if he admits
making those statements.
Content [Sec. 3]
A judicial affidavit shall be prepared in the language
known to the witness and, if not in English or Filipino
accompanied by a translation in English or Filipino,
and shall contain the following:
(a) The name, age, residence or business address,
and occupation of the witness;
(b) The name and address of the lawyer who
conducts or supervises the examination of the
witness and the place where the examination is
being held;
(c) A statement that the witness is answering the
questions asked of him, fully conscious that he
does so under oath, and that he may face
criminal liability for false testimony or perjury;
(d) Questions asked of the witness and his
corresponding answers, consecutively numbered,
that:
(1) Show the circumstances under which the
witness acquired the facts upon which he
testifies;
(2) Elicit from him those facts which are relevant
to the issues that the case presents; and
(3) Identify the attached documentary and object
evidence and establish their authenticity;
(e) The signature of the witness over his printed
name; and
(f) A jurat with the signature of the notary public who
administers the oath or an officer who is
authorized by law to administer the same.
Purpose
To allow the witness to admit or deny the prior
statement and afford him an opportunity to explain
the same.
Evidence of the good character of a witness
Evidence of the witness good character is not
admissible until such character has been impeached
[Sec. 14, Rule 132]
JUDICIAL AFFIDAVIT RULE
[AM 12-8-8-SC]
Scope [Sec. 1]
Applies to all actions and proceedings, and incidents
requiring the reception of evidence before the courts,
quasi-judicial bodies, whose rules of procedure are
subject to disapproval of the Supreme Court, insofar
as their existing rules of procedure contravene the
provisions of this Rule, and investigating officers and
bodies authorized by the SC to receive evidence,
including the IBP
Submission of Judicial Affidavits and Exhibits in Lieu
of Direct Testimonies. [Sec. 2]
(a) The parties shall file with the court and serve on
the adverse party, personally or by licensed
courier service, not later than five days before
pre-trial or preliminary conference or the
scheduled hearing with respect to motions and
incidents, the following:
(1) The judicial affidavits of their witnesses, which
shall take the place of such witnesses' direct
testimonies; and
(2) The parties' documentary or object evidence, if
any, shall be marked and attached to the
judicial affidavits
(b) Should a party or a witness desire to keep the
original document or object evidence in his
possession, he may, after the same has been
identified, marked as exhibit, and authenticated,
warrant in his judicial affidavit that the copy or
reproduction attached to such affidavit is a
faithful copy or reproduction of that original. In
addition, the party or witness shall bring the
original document or object evidence for
comparison during the preliminary conference
with the attached copy, reproduction, or pictures,
failing which the latter shall not be admitted
The judicial affidavit shall also contain a sworn

attestation executed by the lawyer who conducted or
supervised the examination of the witness, to the
effect that:
(1) He faithfully recorded or caused to be recorded
the questions he asked and the corresponding
answers that the witness gave; and
(2) Neither he nor any other person then present or
assisting him coached the witness regarding the
latter's answers. [Sec. 4]
A false attestation shall subject the lawyer
mentioned to disciplinary action, including
disbarment. [Sec. 4]
How to Offer [Sec. 6]
State the purpose of such testimony at the start of
the presentation of the witness
Objection [Sec. 6]
Adverse party may move to disqualify the witness or
to strike out his affidavit or any of the answers found
in it on ground of inadmissibility
This is without prejudice to the introduction of

secondary evidence in place of the original when
allowed by existing rules.
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Offer and Objections to Exhibits [Sec. 8]

Offer
When made: Upon the termination of the testimony
of his last witness
WITH RESPECT TO THE TESTIMONY

ADMISSIONS & CONFESSIONS
ADMISSIONS OF A PARTY
Admission
Any statement of fact made by a party against his
interest/unfavorable to the conclusion for which he
contends/is inconsistent with the facts alleged by
him
How made: Party shall immediately make an oral

offer of evidence of his documentary or object
exhibits, piece by piece, in their chronological
order, stating the purpose or purposes for which
he offers the particular exhibit.
It must:
(1) Involve matters of fact, not of law
(2) Be categorical and definite
(3) Knowingly and voluntarily made
Objection
Made after each piece of exhibit is offered
How made: Party shall state the legal ground for his
objection, if any, to its admission.
By Act, Declaration or Omission

Requisites for Admissibility
(1) Made by a party;
(2) Outside of court;
(3) Relates to a relevant fact; and
(4) Is against admitters interest. [Sec. 26, Rule 130]
The court shall immediately make its ruling

respecting that exhibit.
Note: It is sufficient that the exhibits are simply cited
by their markings during the offers, the objections,
and the rulings, dispensing with the description of
each exhibit.
Effect
May be given in evidence against the admitter [Sec.
26, Rule 130]
Effect of Non-compliance [Sec. 10]

Party who fails to submit is deemed to have waived
the submission of the same. The court, however, may
allow, only once, late submission, provided the delay
is for a valid reason and the defaulting party pays a
fine.
Note: Flight from justice is an admission by conduct

and circumstantial evidence of consciousness of
guilt. [US v. Sarikala (1918)]
Rationale
No man would make any declaration against himself
unless it is true. [Republic v. Bautista (2007)]
Court shall not consider affidavit of witness who fails

to appear at the scheduled hearing. Counsel who
failed to appear shall be deemed to have waived his
clients right to cross-examine the witnesses there
present.
As Distinguished from Judicial Admissions

Judicial
Judicial affidavits that do not conform with the

requirements cannot be admitted as evidence.
Extrajudicial
Made in connection with Any other admission [Rule

a judicial proceeding in 130, Secs. 26 and 32]
which it is offered [Rule
129, Sec. 4]
Issuance of Subpoena [Sec. 5]

If the government employee or official, or the
requested witness, who is neither the witness of the
adverse party nor a hostile witness, unjustifiably
declines to execute a judicial affidavit or refuses
without just cause to make the relevant books,
documents, or other things under his control
available for copying, authentication, and eventual
production in court, the requesting party may avail
himself of the issuance of a subpoena ad
testificandum or duces tecum under Rule 21 of the
Rules of Court. The rules governing the issuance of a
subpoena to the witness in this case shall be the
same as when taking his deposition except that the
taking of a judicial affidavit shall be understood to be
ex parte.
By Silence
Requisites for Admissibility:

When silence is deemed an admission: [People v.
Paragsa (84 SCRA 105)]
(1) Person heard or understood the statement;
(2) That he was at a liberty to make a denial;
(3) That the statement was about a matter affecting
his rights or in which he was interested and which
naturally calls for a response;
(4) That the facts were within his knowledge; and
(5) That the fact admitted from his silence is material
to the issue
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When not applicable:

(1) Statements adverse to the party were made in
the course of an official investigation, neither
asked to reply nor comment[Sec. 2(b), R.A. 7438]
(2) Party had justifiable reason to remain silent, ex.
Acting on advice of counsel [Regalado]
Admission
CONFESSIONS
A declaration of an accused acknowledging his guilt

of the offense charged, or of any offense necessarily
included therein [Sec. 33, Rule 130]
Confession
fact
or liability
Maybe express or tacit
Must be express
Maybe made by 3rd

parties, and in certain
cases, admissible against
a party
Can be made only by the

party
himself,
and
admissible against his coaccused
in
some
instances
RES INTER ALIOS ACTA RULE
Requisites
(1) Express and categorical acknowledgement of
guilt
(2) Facts admitted constitutive of a criminal offense
(3) Given voluntarily
(4) Intelligently made, realizing the importance or
legal significance of the act
(5) No violation of Secs. 12 and 17, Art. III of the
Constitution [Regalado]
With Respect to Admissions by a Third Party

General Rule: Inadmissible. The rights of a party
cannot be prejudiced by an act, declaration or
omission of another. (1st Branch) [Sec. 28, Rule 130]
Exceptions:
(1) Partners or agents admission [Sec. 29, Rule 130]
(2) Co-Conspirators admission [Sec. 30, Rule 130]
(3) Admission by privies [Sec. 31, Rule 130]
If the accused admits having committed the act in

question but alleges a justification therefore, the
same is merely an admission. [Ladiana v. People (393
SCRA 419)]
Partners or Agents Admission

The requisites are the following:
(a) Act or declaration must be within the scope of the
authority of the partner or agent;
(b) Act or declaration must have been made during
the existence of the partnership or agency; and
(c) Partnership or agency must be shown by
evidence other than the act or declaration.
Any confession, including a re-enactment, without

admonition of the right to silence and to counsel,
and without counsel chosen by the accused is
inadmissible in evidence. [People v. Yip Wai Ming
(1996)]
Co-Conspirators Admission
(a) Act or declaration must relate to the conspiracy;
(b) It must have been made during the existence of
the conspiracy; and
(c) Conspiracy must be shown by evidence other
than such act/declaration.
General Rule: An extra-judicial confession made by

an accused is not a sufficient ground for conviction.
[Sec. 3, Rule 133]
Exception: When corroborated by evidence of the
actual commission of a particular crime (corpus
delicti). [Sec. 3, Rule 133]
Existence of the conspiracy may be inferred from the

acts of the accused. [People v. Belen (1963)]
Effect of Extrajudicial Confession of Guilt:

General Rule: Not sufficient for conviction [Sec, 3,
Rule 133]
Rule 130, Sec. 30 applies only to extra-judicial

statements, not to testimony given on the stand.
[People v. Serrano (1959)]
Exception: Sufficient if corroborated by evidence of

corpus delicti [Sec. 3, Rule 133]
As regards extrajudicial admissions after termination of

conspiracy, before trial. General Rule: These
admissions are not admissible.
Corpus Delicti
Substance of the crime; the fact that a crime has
actually been committed [People v. Gutierrez (258
SCRA 70); People v. De Leon (2009)]
Exceptions:
(1) Made in the presence of the co-conspirator who
expressly/impliedly agreed (tacit admission)
(2) Facts in admission are confirmed in the
independent extrajudicial confessions made by
the co-conspirators after apprehension
As Distinguished from Admissions of a Party

Admission
Confession
Merely a statement of Acknowledgment of guilt
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EVIDENCE
(3) As a circumstance to determine credibility of

witness
(4) Circumstantial evidence to show the probability
of the latters participation [Regalado]
of witness but on knowledge of some other person

th
not on witness stand [Regalado 11 ed.]
Doctrine of Independently Relevant Statements
Statements or writings attributed to a person not on
the witness stand, which are being offered not to
prove the truth of the facts stated therein, but only to
prove that such were actually made.
Doctrine of Interlocking confessions [Regalado].

Extrajudicial statements of co-accused may be taken
into consideration in judging testimony of the
witness, provided:
(a) Statements are made by several accused
(b) Identical in all material respects
(c) There could have been no collusion
They are called as such because the statements are

admissible for some relevant reason independent of
their truth or falsity [Riano citing Am Jur]
They are admissible as:

(a) Circumstantial evidence to show probability of
participation
(b) Corroborative evidence if it is clear from other
facts and circumstances that other persons had
participated in the perpetration of the crime
charged and proved
These are NOT covered by the hearsay rule [People v.

Cusi (1965)]
REASON FOR EXCLUSION OF HEARSAY EVIDENCE
Lack of opportunity to cross-examine the outside

declarant
GENERAL RULE ON HEARSAY
A witness can testify only as to those facts which he

knows of his personal knowledge, or those derived
from his own perception. [Rule 130, Sec. 36]
Admission by Privies
Privies. Persons who are partakers or have an
interest in any action or thing, or any relation to
another [Riano citing Blacks Law Dictionary]
The hearsay rule is not limited to oral testimony or

statements; it applies to written, as well as oral
statements. [Consunji v. CA (2001)]

(a) There must be an act, declaration or an omission
by a predecessor-in-interest;
(b) Act, declaration or omission must have occurred
while he was holding (not after) the title to the
property; and
(c) Act, declaration or omission must be in relation to
the property.
If a party does not object to hearsay evidence, the

same is admissible, as a party can waive his right to
cross-examine [People v. Ola (1987)]
Repeated failure to cross-examine is an implied
waiver [Savory Luncheonette v. Lakas ng
Manggagawang Pilipino (1975)]
With Respect to Similar Acts

General Rule: Evidence that one did or did not do a
certain thing at one time is NOT ADMISSIBLE to
prove that he did or did not do the same or similar
nd
thing at another time. (2 Branch) [Sec. 34, Rule 130]
EXCEPTIONS
(1) Dying declaration

(2) Declaration against interest
(3) Act or declaration against pedigree
(4) Family reputation or tradition regarding pedigree
(5) Common reputation
(6) Part of the res gestae [Sec. 42, Rule 130]
(7) Entries in the course of business
(8) Entries in official records
(9) Commercial lists and the like
(10) Learned treaties
(11) Testimony or deposition at a former trial
(12) Exception to the hearsay rule on examination of
child witness
Exceptions: Said evidence may be received to prove:

(1) Specific intent or knowledge;
(2) Identity;
(3) Plan, system, or scheme;
(4) Habit;
(5) Custom, usage and the like.
HEARSAY RULE
MEANING OF HEARSAY
(1) Out-of-court statement

(2) Offered by the witness in court to prove the truth
of the matters asserted by the statement
Dying Declaration
Also known as antemortem statement
statement in articulo mortis [Sec. 37, Rule 130]
Any evidence, whether oral or documentary, if its

probative value is not based on personal knowledge
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EVIDENCE

(1) Declaration is one made by a dying person;
(2) Declaration was made under the consciousness
of an impending death;
(3) Declaration refers to cause and surrounding
circumstances of such death;
(4) Declaration is offered in any case wherein his
death is the subject of inquiry;
(5) Declarant is competent as a witness had he
survived [Geraldo v People (2008)]; and
(6) Declarant should have died. [People v. Macandog
(2001)]
Inability to testify means that the person is dead,

mentally incapacitated or physically incompetent.
Mere absence from the jurisdiction does not make
him ipso facto unavailable. [Fuentes v. CA (1996)]
Declaration against interest made by the deceased,
or by one unable to testify, is admissible even against
the declarants successors-in-interest or even against
third persons [Sec. 38, Rule 130]
As Distinguished from Admissions
Declaration against
Admission
interest
Rationale for Admissibility

As a general rule, when a person is at the point of
death, every motive to falsehood is silenced. [People
v Bacunawa (2001)]
The law considers the point of death as a situation so
solemn and awful as creating an obligation equal to
that which is imposed by an oath administered by
the court. [People v. Cerilla (539 SCRA 251)]
The foreboding may be gleaned from surrounding
circumstances, such as the nature of the declarants
injury and conduct that would justify a conclusion
that there was consciousness of impending death.
[People v. Latayada (2004)] If the declarants
statement is made under consciousness of
impending death, a subsequent belief in recovery
before his actual death does not bar admissibility of
his statement [Riano citing People v. Black (1979), 96
CA3d 846, 158 CR 449]
Admitter is a party
himself, or in privity with
such party;
Declarant is neither a
party nor in privity with a
party;
Admissible whether or
not admitter is available
as a witness
Admissible only when

declarant is unavailable
as a witness;
Can be made any time,

even during trial;
Must have been made

ante litem motam;
Admissible only against

the admitter; and
Admissible even against

rd
3 persons; and
Admissible NOT as an
exception to any rule
Admissible as an
exception to the hearsay
rule
Act or Declaration Against Pedigree

Meaning of Pedigree
(1) Relationship;
(2) Family genealogy;
(3) Birth;
(4) Marriage;
(5) Death;
(6) Dates when these facts occurred;
(7) Places where these facts occurred;
(8) Names of relatives; and
(9) Facts of family history intimately connected with
pedigree. [Sec. 39, Rule 130]
Objections to the dying declaration: May be

premised on any of the requisites for its admissibility
embodied in Sec. 37 of Rule 130. Counsel who wants
a dying declaration excluded must have to deal with
the primary question of whether or not the
evidentiary foundations for the introduction where
met. [Riano]
Dying declarations are admissible in favor of the
defendant as well as against him. [US v. Antipolo (37
Phil 726)]

(1) Declarant is dead or unable to testify;
(2) Declarant must be related by birth or marriage to
the person whose pedigree is in issue;
(3) Declaration was made before the controversy;
and
(4) Relationship between the declarant and the
person whose pedigree is in question must be
shown by evidence other than such declaration.
[Sec. 39, Rule 130]
Declaration Against Interest

(1) Declarant is dead or unable to testify;
(2) Declaration relates to a fact against the interest
of the declarant;
(3) At the time he made said declaration, declarant
was aware that the same was contrary to his
interest; and
(4) Declarant had no motive to falsify and believed
such declaration to be true [Sec. 38, Rule 130;
Ong v. Court of Appeals (1980)]
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EVIDENCE
Family Reputation or Tradition Regarding Pedigree

(1) Witness must be a member, by consanguinity or
affinity, of the same family as the subject; and
(2) Such reputation or tradition must have existed in
that family ante litem motam. [Sec. 40, Rule 130]
(c) Statement refer to occurrence in question and

attending circumstances (Sec. 42, Rule 130) or
that the statements must concern the
occurrence in question and its immediate
attending circumstances [Talidano v. Falcom
Maritime (2008)]
(2) Verbal acts - Statements, which accompany an
equivocal act material to the issue and give it a
legal significance
(a) Principal act must be equivocal
(b) Act must be material to the issue
(c) Statement must accompany the equivocal act
(d) Statement gives legal significance to
equivocal act [Talidano v. Falcom Maritime
(2008)]
(e) Must be made at the time, not after, the
equivocal act was being performed
Other Admissible Evidence

(1) Entries in family bibles or other family books;
(2) Charts;
(3) Engravings on rings;
(4) Family portraits and the like [Sec. 40, Rule 130]
This enumeration, by ejusdem generis, is limited to
"family possessions," or those articles which
represent, in effect, a family's joint statement of its
belief as to the pedigree of a person. [Jison v. CA
(1998)]
A dying declaration can be made only by the victim

after the attack while a statement as part of the res
gestae may be that of the killer himself after or
during the killing. [People v. Reyes]
A persons statement as to his date of birth and age,

as he learned of these from his parents or relatives, is
an ante litem motam declaration of a family tradition.
[Gravador v. Mamigo (1967)]
A statement not admissible as dying declaration

because it was not made under consciousness of
impending death, may still be admissible as part of
res gestae if made immediately after the incident.
[People v. Reyes]
Common Reputation
(1) Reputation pertains to:
(a) Facts of public or general interest more than
30 years old,
(b) Marriage, or
(c) Moral character
(2) Common reputation existed ante litem motam.
[Sec. 41, Rule 130]
Entries in the course of business

Requisites for Admissibility [Sec. 43, Rule 130]
(1) Entries were made at, or near the time of the
transactions referred to;
(2) Such entries were made in the ordinary or regular
course of business or duty;
(3) Entrant was in a position to know the facts stated
in the entries;
(4) Entrant did so in his professional capacity, or in
the performance of duty and in the regular course
of business; and
(5) Entrant is now dead or unable to testify.
[Northwest Airlines v. Chiong (2008)]
Other Admissible Evidence

(a) Monuments
(b) Inscriptions in public places [Sec. 41, Rule 130]
Pedigree may be established by reputation in the
family, but NOT in the community. [Rule 130, Secs.
40-41]
Common reputation is hearsay like any other
exception to the hearsay rule, but is admissible
because of trustworthiness. [Riano citing Reg. v.
Bedforshire, 4 E & B 535, 82 ECL 535, 542]
If the entrant is available as a witness, the entries will

not be admitted, but they may nevertheless be
availed of by said entrant as a memorandum to
refresh his memory while testifying on the
transactions reflected therein. [Cang Yui v. Gardner
(1916)]
Part of the Res Gestae [Sec. 42, Rule 130]

Admissible Statements
(1) Spontaneous statements - Statements made by a
person while a startling occurrence is taking
place or immediately prior or subsequent thereto,
with respect to the circumstances thereof
(a) Principal act be a startling occurrence
(b) Statement made before declarant had
opportunity to contrive [Talidano v. Falcom
Maritime (2008)]
Business records are exempt from the hearsay rule.

[Rule 8, Sec. 1, Rules on Electronic Evidence]
Entries in the payroll, being entries in the course of
business, enjoy the presumption of regularity [Sapio
v. Undaloc Construction (2008)]
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EVIDENCE
Entries in official records

(1) Entries were made by a public officer in the
performance of his duties or by a person in the
performance of a duty specially enjoined by law
[Sec. 44, Rule 130];
(2) Entrant must have personal knowledge of the
facts stated by him or such facts acquired by him
from reports made by persons under a legal
duty to submit the same [Salmon, Dexter & Co. v.
Wijangco (1924)]; and
(3) Entries were duly entered in a regular manner in
the official records.
(5) Adverse party had the opportunity to crossexamine the witness in the former case.
Exception to the Hearsay Rule on Examination of
Child Witness
A statement made by a child describing any act or
attempted act of child abuse, not otherwise
admissible under the hearsay rule, maybe admitted
in evidence in any criminal or non-criminal
proceeding subject to the following rules:
(a) Before such hearsay statement may be admitted,
its proponent shall make known to the adverse
party the intention to offer such statement and its
particulars to provide him a fair opportunity to
object. If the child is available, the court shall,
upon motion of the adverse party, require the
child to be present at the presentation of the
hearsay statement for cross-examination by the
adverse part. When the child is unavailable, the
fact of such circumstance must be proved by the
proponent.
(b) In ruling on the admissibility of such hearsay
statement, the court shall consider the time,
content and circumstances thereof which provide
sufficient indicia of reliability. It shall consider the
following factors:
(1) Whether there is a motive to lie;
(2) The general character of the declarant child;
(3) Whether more than one person heard the
statement;
(4) Whether the statement was spontaneous;
(5) The timing of the statement and the
relationship between the declarant child and
witness;
(6) Cross-examination could not show the lack of
knowledge of the declaration child;
(7) The possibility of faulty recollection of the
declarant of child is remote; and
(8) The circumstances surrounding the statement
are such that there is no reason to suppose
the declarant child misrepresented the
involvement of the accused.
(c) The child witness shall be considered unavailable
under the following situations:
(1) Is deceased, suffers from physical infirmity,
lack of memory, mental illness, or will be
exposed to severe psychological injury; or
(2) Is absent from the hearing and the proponent
of his statement has been unable to procure
his attendance by process or other reasonable
means.
When the child witness is unavailable, his hearsay
testimony shall be admitted only if corroborated by
other admissible evidence.
Entries in official records, just like entries in the

course of business, are merely prima facie evidence of
the facts therein stated. [secs. 43-44, Rule 130]
Entries in a police blotter are not conclusive proof of
the truth of such entries. [People v. Cabuang (1993)]
Baptismal certificates or parochial records of
baptism are not official records. [Fortus v. Novero
(1968)]
Commercial lists and the like
(1) Such statements are contained in a list;
(2) Compilation is published for use by persons
engaged in that occupation; and
(3) It is generally used and relied upon by them.
Learned treaties
(1) Published treatise, periodical or pamphlet is on a
subject of history, law, science, or art; and
(2) Court takes judicial notice of it, or
(3) Witness expert in the subject testifies that the
writer of the statement in the treatise, periodical
or pamphlet is recognized in his profession or
calling as expert in the subject
Testimony or deposition at a former trial
Requisites for Admissibility [Sec. 47, Rule 130; Manliclic
v. Calaunan (2007)]
(1) Witness is dead or unable to testify;
(2) His testimony or deposition was given in a former
case or proceeding, judicial or administrative,
between the same parties or those representing
the same interests;
(3) Former case involved the same subject as that in
the present case although on different causes of
action;
(4) Issue testified to by the witness in the former trial
is the same issue involved in the present case;
and
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EVIDENCE
OPINION RULE
General Rule: The opinion of a witness is not
admissible. [Sec. 48, Rule 130]
51(b), Rule 130]

(b) Evidence of the witness good character is not
admissible until such character has been
impeached. [Sec. 14, Rule 130]
Exceptions:
(1) Expert witness
(2) Ordinary witness
RULE ON EXAMINATION OF A CHILD WITNESS

A.M. No. 004-07-SC
OPINION OF EXPERT WITNESS
MEANING OF CHILD WITNESS
Expert witness is one who belongs to the profession

or calling which the subject matter of the inquiry
relates and who possesses special knowledge. [Sec.
49, Rule 130]
(1) Any person who at the time of giving testimony is

less than 18 years;
(2) In child abuse cases, a child includes one over 18
years but is found by the court as
(a) Unable to fully take care of himself, or
(b) Protect himself from abuse, neglect, cruelty,
exploitation, or discrimination
(c) Because of a physical or mental disability or
condition.
Opinion is:
(1) On a matter requiring
(a) Special knowledge,
(b) Skill,
(c) Experience, or
(d) Training
(2) Which he is shown to possess
APPLICABILITY OF THE RULE
(1) Shall apply in all criminal proceedings and noncriminal proceedings involving child witnesses.
[Sec. 1]
(2) The ROC provisions on deposition, conditional
examination of witnesses and evidence shall be
applied suppletorily. [Sec. 32]
OPINION OF ORDINARY WITNESS
Admissible if [Sec. 50, Rule 130]:

(1) Proper basis is given, and
(2) Regarding:
(a) Identity of a person about whom he has
adequate knowledge;
(b) Handwriting with which he has sufficient
familiarity;
(c) Mental sanity of a person with whom he is
sufficiently acquainted; and
(d) Impressions of the
(i) Emotion,
(ii) Behavior,
(iii) Condition, or
(iv) Appearance of a person.
COMPETENCY OF A CHILD WITNESS
Every child is presumed qualified to be a witness. To

rebut the presumption of competence enjoyed by a
child, the burden of proof lies on the party
challenging his competence. [Sec. 6(b)]
Requisites of Competency of a Child as Witness
[People v. Mendoza (1996)]:
(1) Capacity of observation;
(2) Capacity of recollection;
(3) Capacity of communication.
CHARACTER EVIDENCE
General Rule: Character evidence is not admissible.
When the court finds that substantial doubt exists

regarding the ability of the child to
perceive/remember/ communicate, distinguish truth
from falsehood, or appreciate the duty to tell the
truth in court, a competency exam shall be
conducted.
Exceptions:
CRIMINAL CASES
[RULE 130, SEC.51(A)]
(a) Accused May prove his good moral character,

which is pertinent to the moral trait involved in
the offense charged.
(b) Prosecution May not prove the bad moral
character of the accused, except in rebuttal.
(c) Offended Party His/her good or bad moral
character may be proved if it tends to establish in
any reasonable degree the probability or
improbability of the offense charged.
The age of the child by itself is not a sufficient basis

for a competency examination. [Sec. 6(a)]
The court has the duty of continuously assessing the
competence of the child throughout his testimony.
[Sec. 6(f)]
EXAMINATION OF A CHILD WITNESS
(1) In open court [Sec. 11]

(2) Alternative Modes
CIVIL CASES
(a) Moral character is admissible only when pertinent

to the issue of character involved in the case. [Sec.
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(a) Live-Link TV Testimony, in Criminal Cases

where Child is a Victim or a Witness [Sec. 25]
(i) If there is a substantial likelihood that the
child would suffer trauma from testifying in
the presence of the accused, his counsel or
the prosecutor.
(ii) Trauma must be of a kind which would
impair the completeness or truthfulness of
the childs testimony.
(b) Videotaped Deposition of a Child Witness
[Sec. 27]
(i) If the court finds that the child will not be
able to testify in open court at trial, it shall
issue an order that the deposition of the
child be taken and preserved by videotape.
(ii) The rights of the accused during trial,
especially the right to counsel and to
confront and cross-examine the child, shall
not be violated during the deposition.
Proponent of hearsay statement shall make known

to the adverse party the intention to offer such
statement and its particulars.
If the child is available, court shall require the child
to be present at the presentation of the hearsay
statement for cross-examination by the adverse
party.
If unavailable, the fact of unavailability must be
proved by the proponent and his hearsay testimony
must be corroborated by other admissible evidence.
SEXUAL ABUSE SHIELD RULE
General Rule [Sec. 30(a)]: The following are

INADMISSIBLE in any criminal proceeding involving
alleged child sexual abuse:
(1) Evidence offered to prove that the alleged victim
engaged in other sexual behavior;
(2) Evidence offered to prove the sexual
predisposition of the alleged victim.
LIVE-LINK TV TESTIMONY OF A CHILD WITNESS

[SEC. 25]
Exception [Sec. 30(b)]: Evidence of specific instances

of sexual behavior by the alleged victim to prove that
a person other than the accused was the source of
semen, injury or other physical evidence
Live-link television testimony, in criminal cases where

the child is a victim or a witness
The court may order that the testimony of the child
be taken by live-link television if there is a substantial
likelihood that the child would suffer trauma from
testifying in the presence of the accused, his counsel
or the prosecutor.
PROTECTIVE ORDERS
Video/audio tapes that are part of the court record

may be viewed only by parties, their counsel, their
expert witness and the guardian ad litem. [Sec. 31(b)]
The trauma must be of a kind which would impair

the completeness/truthfulness of the childs
testimony.
The court may issue additional orders to protect the

childs privacy. [Sec. 31(c)]
If it is necessary for the child to identify the accused

at trial, the court may allow the child to enter the
courtroom for the limited purpose of identifying the
accused, or the court may allow the child to identify
the accused by observing the image of the latter on a
television monitor.
Publication (or causing it) in any format any

identifying information of a child who is or is alleged
to be a victim/accused of a crime or a witness
thereof, or an immediate family of the child, shall be
liable for contempt of court. [Sec. 31(d)]
A child has a right at any court proceeding not to
testify regarding personal identifying information
that could endanger his physical safety or his family.
[Sec. 31(e)]
VIDEOTAPED DEPOSITION OF A CHILD WITNESS

[SEC. 27]
If the court finds that the child will not be able to

testify in open court at trial, it shall issue an order
that the deposition of the child be taken and
preserved by videotape.
Offer and Objection
The rights of the accused during trial, especially the

right to counsel and to confront and cross-examine
the child, shall not be violated during the deposition.
OFFER OF EVIDENCE
CONCEPT [Sec. 34, Rule 132]
(1) Court shall consider no evidence which has not
been formally offered
(2) Purpose for which the evidence is offered must be
specified
HEARSAY EXCEPTION IN CHILD ABUSE CASES
[Sec. 28]
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EVIDENCE
AS
DISTINGUISHED
FROM
DOCUMENTARY EVIDENCE
IDENTIFICATION
Kind of Evidence
OF
When to Offer
evidence
Offer shall be done orally unless allowed by the court
to be done in writing.
[Interpacific Transit v. Aviles (1990)]

Identification of
Formal Offer of Exhibit
Documentary Evidence
Done in the course of the Done only when the party
trial and accompanied by rests his/her case
the marking of the
evidence
Absence of an offer is a defect which is waived when

a party fails to object when the ground became
reasonably apparent, as when the witness is called to
testify without any prior offer. [Catuira v. CA (1994)]
There is a need for a formal offer of evidence because

without such offer, the court cannot determine
whether the evidence is admissible or not. [Riano]
The defect caused by the absence of formal offer of

exhibits can be cured by the identification of the
exhibits by testimony duly recorded and the
incorporation of the said exhibits in the records of the
case. [People v. Mate (1981)]
No evidentiary value can be given to pieces of

evidence not formally offered. [Dizon v, CTA (2008)]
OBJECTION
RATIONALE WHY FORMER OFFER IS NEEDED
CONCEPT
However, where the absence of an offer of

testimonial evidence was not objected to as when
the witness was cross-examined by the adverse party
despite failure to make an offer of the testimony, the
court must consider the testimony
Testimonial evidence
Immediately after offer is

made
The provisions of the ROC on the inclusion on appeal

of documentary evidence or exhibits in the records,
cannot be stretched as to include such pleadings or
documents not offered at the hearing of the case
[Candido v. CA, 1996)]
Question propounded in
the course of oral
examination
As soon as the grounds

become reasonably
apparent
Offer done in writing
What to object to
Within 3 days after notice

of the offer, unless a
different period is allowed
by the court
The grounds for objection must be specified in any
case.
WHEN OFFER IS NOT REQUIRED
(a) In a summary proceeding because it is a

proceeding where there is no full-blown trial;
(b) Documents judicially admitted or taken judicial
notice of;
(c) Documents, affidavits, and depositions used in
rendering a summary judgment;
(d) Documents or affidavits used in deciding quasijudicial or administrative cases [Bantolino v. Coca
Cola Bottlers, 2003 citing Rabago v. NLRC, 1991]
(e) Lost objects previously marked, identified,
described in the record, and testified to by
witness who had been subjects of crossexamination in respect to said objects [Tabuena v.
CA, 1991 citing People v. Napat-a, 1989] [Riano]
PURPOSES OF OBJECTION
[RIANO]
(a) Made to keep out inadmissible evidence that

would cause harm to clients cause (rules of
evidence are not self-operating)
(b) To protect the record (for future appeal)
(c) To protect witness from being embarrassed or
harassed
(d) To expose adversarys unfair tactics
(e) To give trial court an opportunity to correct its
own errors and at the same time warn the court
that a ruling adverse to the objector may supply a
reason to invoke a higher courts appellate
jurisdiction; and
(f) To avoid a waiver of inadmissibility
WHEN TO MAKE AN OFFER

[Sec. 35, Rule 132]
Kind of Evidence
Testimonial
When to object
When to Offer
Objections must be specific enough to adequately

inform the court the rule of evidence or of
substantive law that authorizes the exclusion of
evidence [Riano]
At the time the witness is

called to testify
Documentary and Object After the presentation of

a partys testimonial
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EVIDENCE
General Objections Do not clearly indicate to the

judge the ground upon which the objections are
predicated. In cases where the incompetency of the
evidence is so palpable that a mere general
objection is deemed sufficient and where the portion
of the evidence objected to is clearly pointed out, and
its illegality is apparent on its face, then the objection
must be allowed. [Riano]
(a) Incompetent,
(b) Irrelevant or
(c) Otherwise improper.
TENDER OF EXCLUDED EVIDENCE
[Rule 132, Sec. 40]
Documents marked as exhibits during the hearing
but which were not formally offered in evidence
cannot be considered as evidence nor shall they have
evidentiary value. [Vda. De Flores v. WCC (1977)]
FORMAL VS. SUBSTANTIVE OBJECTIONS

[RIANO]
FormalOne directed against the alleged defect in

the formulation of the question
SubstantiveObjections made and directed against
the very nature of the evidence
HOW TO TENDER EVIDENCE
Kind of evidence
REPETITION OF AN OBJECTION
[Sec. 37, Rule 132]
When it becomes reasonably apparent in the course
of the examination of a witness that the questions
being propounded are of the same class as those to
which objection has been made, whether such
objection was sustained or overruled, it shall be
sufficient for the adverse party to record his
continuing objection to such class of questions.
A court may, motu proprio, treat the objection as a
continuing one. [Keller v. Ellerman & Bucknall
Steamship]
How to
evidence
tender
the
Documentary
Offeror may have the

same attached or made
part of the record
Testimonial
Offeror may state for the

record the name and
other
personal
circumstances of the
witness
and
the
substance
of
the
proposed testimony
RATIONALE
(a) To allow the court to know the nature of the

testimony or the documentary evidence and
convince the trial judge to permit the evidence or
testimony; and
(b) Even if he is not convinced to reverse his earlier
ruling, the tender is made to create and preserve
a record for appeal [Riano]
RULING
[Sec. 38, Rule 132]
(a) Should be given immediately after the objection
is made, unless the court desires to take a
reasonable time to inform itself on the question
presented.
(b) Reason for sustaining or overruling an objection
need not be stated. However, if the objection is
based on two or more grounds, a ruling
sustaining the objection on one or some of them
must specify the ground/s relied upon.
(c) Reservation of a ruling by the court on an
objection to the admissibility of evidence, without
subsequently excluding the same, amounts to a
denial of an objection. [People v. Tavera]
2 METHODS OF MAKING THE TENDER

[Riano]
(a) Where the counsel tells the court what the
proposed testimony would be;
(b) By using the question and answer form
ERRONEOUS WAY OF MAKING TENDER
To make a mere general offer of proof without

producing the witness or stating the evidence where
by the fact in issue is to be proved. [Riano]
STRIKING OUT OF AN ANSWER

MOTION TO STRIKE
[Sec. 39, Rule 132]

(1) Court may sustain an objection and order the
answer given to be stricken off the record if:
(a) Witness answers the question before the
adverse party had the opportunity to object,
and
(b) Such objection is found to be meritorious.
(2) The court may also, upon motion, order the
striking out of answers, which are
PAGE 242
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CRIMINAL PROCEDURE
UP COLLEGE OF LAW
SPECIAL PROCEEDINGS
Preliminary Matters
(11) Judicial approval of voluntary recognition of

minor natural children
(12) Constitution of family home
(13) Declaration of absence and death
(14) Cancellation of correction of entries in the civil
registry. [Sec. 1, Rule 72]
SPECIAL PROCEEDINGS
A remedy by which a party seeks to establish a
status, right or a particular fact [Rule 1, Sec. 3(c)].
APPLICABLE RULES
If special rules are provided, they shall apply. But in
the absence of such special provisions, the rules
applicable in special proceedings shall be applied
[Rule 72, Sec. 2].
In the absence of special provisions, the rules

provided for in ordinary actions shall be, as far as
practicable, applicable in special proceedings. [Sec.
2, Rule 72]
DIFFERENCE BETWEEN ACTION AND SPECIAL
PROCEEDING
There are special proceedings which are not part of

the ROC (e.g. Writs of amparo and habeas data).
Action
Special Proceeding
The distinction between final and interlocutory

orders in civil actions for purposes of determining the
issue of applicability is not strictly applicable to
orders in special proceedings. Rule 109 specifies the
orders from which appeals may be taken [Regalado].
Rule 33 regarding judgment on demurrer to
evidence is applicable to special proceedings [Matute
v. CA (1969)].
To protect/enforce a right To establish a

or prevent/ redress a
right/status/fact
wrong
SUBJECT MATTER AND APPLICABILITY OF

GENERAL RULES
Rules of special proceedings are provided for in the
following cases:
(1) Settlement of estate of deceased persons
(2) Escheat
(3) Guardianship and custody of children
(4) Trustees
(5) Adoption
(6) Rescission and revocation of adoption
(7) Hospitalization of insane persons
(8) Habeas corpus
(9) Change of name
(10) Voluntary dissolution of corporations
Initiated by pleading, and Initiated by petition,

parties respond through parties respond through
an answer
an opposition
Involves 2 or more parties May involve only 1 party

Governed by ordinary
rules supplemented by
special rules
- formal demand of ones right in a court of

justice in the manner prescribed by the court or by
the law.
ACTION
- application or proceeding to
establish the status or right of a party, or particular
fact. No formal pleadings are required, unless the
statute expressly so provides.
SPECIAL PROCEEDING
VENUES AND JURISDICTIONS FOR SPECIAL PROCEEDINGS

Settlement of the Estate of Residence of the decedent
a Deceased Person
If non-resident, place where he had an estate
Escheat
Appointment of Guardians
Appointment of Trustees
Adoption
Governed by special rules,

supplemented by ordinary
rules
Person dies intestate leaving no heir Residence of the

decedent or if non-resident, place where he had estate
Reversion where land lies in whole or in part
Unclaimed Balances Act where deposits are located
Where minor resides
Where incompetent resides
Where will was allowed or
Where the property or portion thereof affected by the
trust is situated
Domestic where adopter resides
PAGE 244
MTC if gross value of the

estate does not exceed
P300,000, or does not
exceed P400,000 in
Metro Manila
otherwise, RTC
RTC
RTC
RTC
Family Court
RTC
RTC
Family Court
UP COLLEGE OF LAW
Rescission of Adoption
Habeas Corpus
Habeas Data
SPECIAL PROCEEDINGS
Inter-country Adoption ICAB or, where adoptee resides

if filed with the Family Court
Where adoptee resides
If filed with RTC, where detainee is detained
For the custody of minors, where petitioner resides or

where minor may be found
Where the petitioner or respondent resides, or that which
has jurisdiction over the place where the data or
information is gathered, collected, or stored, at the option
of the petitioner
Amparo
Where the threat, act or omission was committed or any

of its elements occurred
Change of Name
Judicial - where petitioner resides

Administrative:
(a) Local civil registry where the record sought to be
changed is kept
(b) Local civil registry of the place of residence of the
interested party (only if petitioner migrated to another
place in the Philippines and it is impractical to file
where records sought to be changed are kept)
(c) Philippine consulates only for non-resident citizen
Where Absentee resides before his disappearance
Appointment of
Representative of
Absentee/ Declaration of
Absence
Cancellation / Correction of
Entries in Civil Registries
Petition for declaration of
nullity, annulment, legal
separation
Judicial - Where corresponding civil registry is located

Administrative - Same as change of name
Where petitioner or respondent has been residing for at
least 6 months prior to the date of filing
If non-resident petitioner, where he may be found at the
election of the petitioner
MODES OF SETTLEMENT OF ESTATE [HERRERA]

(1) Extrajudicial Settlement of Estate [Rule 73,
Section 1]
(2) Summary Settlement of Estate of Small Value
(3) Partition [Rule 69]
(4) Probate of Will [Rule 75-79]
(5) Petition for Letters of Administration [Rule 79]
ICAB or Family Court

Family Court
SC, CA, RTC, MTC in the
province or city in case
there is no RTC judge
Sandiganbayan, only in
aid of its appellate
jurisdiction
Family Court, CA, SC
RTC generally
If concerning public data
files or government
offices, SC, CA or
Sandigabayan
RTC,
Sandiganbayan,
CA, SC or any justice
thereof
RTC
Local Civil Registry/
Philippine consulate
RTC
RTC
Local Civil Registry/
Philippine consulate
Family Court
JURISDICTION OF RTCS
When the value of the estate exceeds P300,000 or

P400,000 in Metro Manila. [SC Circular 21-99]
JURISDICTION OF MTCS
When the value of the estate does not exceed

P300,000 or P400,000 in Metro Manila. [SC Circular
21-99]
inhabitant of the
Inhabitant of foreign
Philippines at time of
country
death (citizen/alien)
Settlement of Estate of
Deceased Persons, Venue
and Process
RTC of the province in RTC of any province in

which he resides
which he had estate
Court first taking cognizance shall exercise
jurisdiction to the exclusion of all other courts and
WHICH COURT HAS JURISDICTION
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UP COLLEGE OF LAW
SPECIAL PROCEEDINGS
cannot be divested by subsequent act of interested

parties. [Sandoval v. Santiago (1949)]
TESTATE PROCEEDINGS TAKE PRECEDENCE
INTESTATE PROCEEDINGS OF THE SAME ESTATE.
intervening in the administration thereof in order to

remedy or repair any injury that may be done thereto.
[Dariano vs. Fernandez Fidalgo (1909)]
OVER
There seems, however, to be a general tendency, in

the absence of express and specific restrictions to the
contrary, to uphold the exercise by the probate court
of such incidental powers as are, within the purview
of their grant of authority, reasonably necessary to
enable them to accomplish the objects for which
they were invested with jurisdiction and to perfect
the same. [In Re: Baldomero Cosme (1937)]
Thus, if in the course of intestate proceedings

pending before a court of first instance, it is found
that the decedent had left a last will, proceedings for
the probate of the latter should replace the intestate
proceedings even if at that stage an administrator
had already been appointed, the latter being
required to render final account and turn over the
estate in his possession to the executor subsequently
appointed. This, however, is understood to be
without prejudice; that should the alleged last will be
rejected or is disapproved, the proceeding shall
continue as an intestacy. [Uriarte vs. CFI (1970)]
General Rule: Jurisdiction assumed by a court shall
not be contested in a suit or proceeding,
Summary Settlement of
Estates
General Rule: Judicial Settlement
Exceptions:
(1) In an appeal from that court, in the original case,
OR
(2) When the want of jurisdiction appears on the
record.
Exception:
(1) Extrajudicial Settlement of Estate
(2) Summary Settlement of Estate of Small Value
Court intervention not
required
VENUE IN JUDICIAL SETTLEMENT OF ESTATE

RULE 73 RELATES TO VENUE AND NOT TO JURISDICTION
The place of residence of the deceased in settlement
of estates, probate of will, and issuance of letters of
administration does not constitute an element of
jurisdiction over the subject matter. It is only
constitutive of venue.
Summary judicial
adjudication needed
No will (intestate)
Will may or may not exist

(intestate/testate)
No debts
Debts may or may not

exist
Heirs are all of age, or

minors are represented by
judicial or legal reps
MEANING OF TERM RESIDES
Resides - in the section is viewed in its popular sense,

meaning, the personal, actual or physical habitation
of a person, actual residence of place of abode and
not to his permanent residence or domicile.
Gross value of estate may

not exceed P10,000
Bond filed at Register of Bond filed at and to be
deed in the amount equal determined by the court
to the value of the
personal property
EXTENT OF JURISDICTION OF PROBATE COURT

PROBATE COURT IS OF LIMITED JURISDICTION
General rule: Probate court cannot decide questions

as to ownership of property alleged to be part of the
estate of the deceased but claimed by some other
person to be his property.
EXTRAJUDICIAL SETTLEMENT BY AGREEMENT

BETWEEN HEIRS, WHEN ALLOWED
REQUISITES
Exceptions:
(1) In a provisional manner to determine whether
said property should be included or excluded in
the inventory, without prejudice to final
determination of title in a separate action
(2) With consent of all the parties, without prejudice
to third persons [Trinidad v. CA (1991)]
(3) If the question is one of collation or advancement
(1) Decedent died intestate

(2) No debts OR the heirs have already paid such at
the time of partition
(3) Heirs are all of age or the minors are represented
by their judicial or legal representatives
(4) Settlement made in public instrument filed with
the register of deeds
(5) Fact of the extrajudicial settlement shall be
published in a newspaper of general circulation 3
times a week, once each week. [Sec. 1, Rule 74]
POWERS AND DUTIES OF PROBATE COURT

It is the duty of courts of probate jurisdiction to guard
jealously the estates of the deceased person by
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UP COLLEGE OF LAW
SPECIAL PROCEEDINGS
PROCEDURE
Death of the decedent
VALIDITY OF COMPROMISE AGREEMENT
Division of estate in public instrument or affidavit of

adjudication
Such is VALID, binding upon the parties as

individuals, upon the perfection of the contract, even
without previous authority of the court to enter into
such agreement. [Borja v. Vda. De Borja (1972)]
Filing of the public instrument, or affidavit of

adjudication if there is only one heir, with the proper
Registry of Deeds
NO PRECLUSION FROM INSTITUTING ADMINISTRATION

PROCEEDINGS
Sec. 1, Rule 74 does not preclude the heirs from

instituting administration proceedings, even if the
estate has no debts or obligations, if they do not
desire to resort for good reasons to an ordinary action
for partition. While Sec. 1 allows the heirs to divide
the estate among themselves as they may see fit, or
to resort to an ordinary action for partition, the said
provision does not compel them to do as if theyhave
good reasons to take a different course of action.
[Pereira v CA (1989)]
Publication of notice of the fact of extrajudicial

settlement once a week for 3 consecutive weeks in a
newspaper of general circulation in the province, and
after such other notice to interested persons as the
court may direct
Hearing to be held not less than 1 month nor more
than 3 months from the date of the last publication
of notice
TWO-YEAR PRESCRIPTIVE PERIOD

Claim by creditors and deprived heirs must be filed
within 2 years from the time of distribution/
publication.
Filing of bond equivalent to the value of personal

property
If there is no
disagreement
between
the
heirs
If
there
is
disagreement
If only one heir
The parties may divide the estate

among themselves by means of a
public instrument filed in the office
of register of deeds.
They may divide the estate in an
ordinary action of partition.
He may adjudicate to himself the
entire estate by means of an
affidavit filed in the Registrar of
Deeds.
PRESUMPTION OF NO DEBTS
It shall be presumed that the decedent left no debts

if no creditor files a petition for letters of
administration within 2 years after the death of the
decedent. [Sec. 4, Rule 74]
AFFIDAVIT OF SELF-ADJUDICATION BY SOLE
HEIR
Affidavit of Self-adjudication by sole heir
If there is only one heir, he may adjudicate to himself
the entire estate by means of an affidavit filed in the
office of register of deeds. [Sec. 1, Rule 74]
BOND REQUIREMENT
Required only if personal property is involved

because real estate is subject to lien
File a bond equal to the value of the personal
property involved as certified to under oath by the
parties, conditioned upon the payment of any just
claim that may be filed of deprived heirs and
creditors. [Sec. 1, Rule 74]
BOND REQUIREMENT
File a bond equal to the value of the personal

property involved as certified to under oath by the
parties, conditioned upon the payment of any just
claim that may be filed [Sec. 1, Rule 74]
SUMMARY SETTLEMENT OF ESTATES OF SMALL
VALUE
NOT BINDING ON ANY PERSON WHO:
(1) Has not participated in the extrajudicial

settlement; or
(2) Had no notice thereof. [Sec. 1, Rule 74]
WHEN ALLOWED
(1) Gross value of estate does not exceed P10,000

(2) Fact is made to appear to the RTC
(3) Through petition of an interested person
(4) Upon hearing
(a) Held not less than 1 month nor more than 3
months
(b) Counted from the date of the last publication
of a notice
(5) Notice
(a) Which shall be published once a week for 3
consecutive weeks
VALIDITY OF ORAL PARTITION
Such is VALID, because there is no law that requires

partition among heirs to be in writing to be valid.
[Pada Kilario v. CA (2000)]
Requirement under Rule 74.1 is merely for the
protection of creditors and the heirs themselves
against tardy claims. Where there are no creditors,
the requirements no longer apply.
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UP COLLEGE OF LAW
SPECIAL PROCEEDINGS
(b) In a newspaper of general circulation in the

province
(c) It is not required that publication be for a
complete 21 days. What is required is that it
be published for once a week for 3 consecutive
weeks.
(6) Notice to interested persons as the court may
direct. [Sec. 2, Rule 74]
will make provisions for such in its resolution of the

proceedings.
REMEDIES OF AGGRIEVED PARTIES AFTER
EXTRA-JUDICIAL SETTLEMENT OF ESTATE
(1) CLAIM AGAINST THE BOND OR THE ESTATE WITHIN TWO
YEARS
Bond and real estate remain charged

Rule: bond and real estate shall remain charged
with a liability to creditor, heirs or other persons
for the full period of 2 years after such
distribution, notwithstanding any transfers of real
estate that may have been made.
Upon fulfillment of the requisites, the court may

proceed summarily without the appointment of an
executor/administrator and without delay,
(1) to grant, if proper, allowance of the will, if any
there be
(2) to determine who are persons legally entitled to
participate in the estate
(3) to apportion and divide among them after the
payment of such debts of the estate
(4) persons in own right if of lawful age, or their
guardians, will be entitled to receive and enter
into possession of the portions of the estate so
awarded to them respectively. [Sec. 2, Rule 74]
When applicable: There is an heir or other person

who
(a) has been unduly deprived of his lawful
participation in the estate:
He shall have a right to compel the
settlement of the estate in the courts for the
purpose
of
satisfying
such
lawful
participation.
PROCEDURE
(b) has been unduly deprived of his lawful

participation payable in money: The court
having jurisdiction of the estate may, by order
for that purpose, after hearing,
(i) settle the amount of such debts or lawful
participation, and
(ii) order how much and in what manner each
distributee shall contribute in the payment
thereof, and
(iii) may issue execution against the bond or
against the real estate belonging to the
deceased, or both.
Death of the decedent

Application for summary settlement with an
allegation that the gross value of the estate does not
exceed P10K
Publication of notice of the fact of summary
settlement once a week for 3 consecutive weeks in a
newspaper of general circulation in the province, and
after such other notice to interested persons as the
court may direct
Hearing to be held not less than 1 month nor more
than 3 months from the date of the last publication
of notice
When not applicable:

(a) To persons who have participated or taken
part or had notice of the extrajudicial partition
(b) When the provisions of Sec. 1 of Rule 74 have
been strictly complied with (all persons or
heirs of the decedent have taken part in the
extrajudicial settlement or are represented by
themselves or through guardians)
Court to proceed summarily, without appointing an

executor/administrator (executor/administrator),
and to make orders as may be necessary
Grant allowance of the will, if any
This is only a Bar against the parties who had

taken part in the extrajudicial proceedings,
but not against third persons not parties
thereto
Determine persons entitled to estate

Pay debts of estate which are due
Period for Claim of Minor or Incapacitated Person

If on the date of the expiration of the period of 2
years, the person authorized to file a claim is:
(1) a minor or mentally incapacitated, or is in
prison or
(2) outside the Philippines,
Filing of bond fixed by the court

Partition of estate
Notes: There is no requirement regarding the lack of
debts (unlike extrajudicial partition) in summary
settlement of estates of small value since the court
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SPECIAL PROCEEDINGS
He may present his claim within 1 year after such

disability is removed. [Sec. 5, Rule 74]
(2) Mandatory
(3) Imbued with public policy, thus imprescriptible
and the doctrine of estoppel does not apply
After the two years has passed, claimant must

file an ordinary action against the distributees
within the statute of limitations.
General Rule: A probate proceeding only looks at

extrinsic validity.
(2) ACTION TO ANNUL A DEED OF EXTRAJUDICIAL
Extrinsic validity - due execution of the will (whether

or not the testator, being of sound mind, freely
executed the will in accordance with the formalities
prescribed by law)
PARTITION
Prescriptive period: within 4 years from the

discovery of the fraud (deemed to have taken
place when said instrument was filed with the
Register of Deeds and new certificates of title
were issued in the name of respondents). [Gerona
v. De Guzman, 11 SCRA 154 (1964)] Note, this
was decided before the New Civil Code took effect.
Exception:
Principle of Practical Consideration
The probate court may pass upon the intrinsic
validity of the will because there is apparent defect in
its face this is also known as the principle of
practical consideration [Nepomuceno v CA (1985)].
(Ex. When on the face of the will the petitioner
appears to be preterited)
HOWEVER in Amerol v. Bagumbaran (1987), the

Court applied Article 1144 (NCC) which stated
that actions upon an obligation created by law
must be brought within 10 years from the time
the right of action accrues. Since implied or
constructive trusts are obligations created by law,
then the prescriptive period to enforce the same
prescribes in 10 years. Thus, an action for
reconveyance based on an implied or constructive
trust must perforce prescribe in 10 years and not
otherwise.
But the remedy of certiorari is available, where the

grounds for dismissal are indubitable (e.g. grave
abuse of discretion of the judge when there is clearly
preterition and the said judge still continues the
probate proceedings)
EFFECT OF PROBATE OF WILL
Decree of probate is conclusive as to its due

execution, subject to the right of appeal. (Thus, no
suit for forgery of a will, which has been duly
probated and such order becoming final)
Optional: See also separate opinion of Justice

Padilla re Amerol v. Bagumbayan, which
distinguishes between dolo causante (4 years)
and dolo incidente (10 years).
[Rodelas v Aranza (1982)]:

General Rule: If a holographic will has been lost or
destroyed and no other copy is available, the will
cannot be probated because the best and only
evidence is the handwriting of the testator in said
will.
(3) NEW ACTION TO ANNUL SETTLEMENT WITHIN

REGLEMENTARY PERIOD OF TWO YEAR
(4) REOPENING BY INTERVENTION BEFORE RENDITION OF

JUDGMENT WITHIN THE REGLEMETARY PERIOD OF TWO
YEARS
Exception: A photostatic copy or Xerox of the

holographic will may be allowed because
comparison can be made with the standard writings
of the testator.
(5) PETITION FOR RELIEF ON THE GROUND OF FRAUD,

ACCIDENT, MISTAKE OR EXCUSABLE NEGLIGENCE
within 60 days after the petitioner learns of the
judgment, final order or other proceedings to be
set aside and not more than 6 months after such
judgment or order is entered or taken
WHO MAY PETITION FOR PROBATE; PERSONS

ENTITLED TO NOTICE
(6) RESCISSION IN CASE OF PRETERITION
PETITIONER FOR THE ALLOWANCE OF THE WILL
(1) Executor
(2) Devisee
(3) Legatee
(4) Other person interested in the estate
(5) Testator himself, during his lifetime [Sec. 1, Rule
76]
Production and Probate of

Will
MEANING OF INTEREST IN ESTATE
NATURE OF PROBATE PROCEEDING

(1) In Rem
An interested party is one who would be benefited by

the estate such as an heir or one who has claim
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UP COLLEGE OF LAW
SPECIAL PROCEEDINGS
against the estate like a creditor. [Sumilang v.

Ramagosa (1967)]
instrument should be his will at the time of fixing

his signature thereto [Sec. 9, Rule 76]
JURISDICTION, HOW ACQUIRED
Note: The grounds for disallowance of will are

exclusive.
(1) Attaching a mere copy of will to the petition or

(2) Delivery of will, even if no petition is filed or
(3) Filing of the original petition and compliance with
Sec 3-4 Rule 76.
(a) Publication for 3 weeks of the order
(b) Notice to all interested persons (If by mail, 20
days before hearing; if through personal
service, 10 days before hearing)
REPROBATE; REQUISITES BEFORE WILL

PROVED OUTSIDE ALLOWED IN THE
PHILIPPINES; EFFECTS OF PROBATE
REPROBATE
Wills proved and allowed in a foreign country,

according to the laws of such country, may be
allowed, filed, and recorded by the proper Court of
First Instance in the Philippines (now RTC). [Sec. 1,
Rule 77]
If testator files for probate of his will, no publication

is required and notice is only to the compulsory heirs.
[Sec. 3, Rule 76]
REQUISITES FOR ALLOWANCE

(1) Copy of the will
(2) Order or decree of the allowance in foreign
country
(3) Filed with a petition for allowance in the
Philippines by executor or other person interested
(4) Court having jurisdiction shall fix a time and
place for the hearing
(5) Cause notice thereof to be given as in case of an
original will presented for allowance. [Sec. 2, Rule
77]
Allowance or Disallowance of
Will
CONTENTS OF PETITION FOR ALLOWANCE OF
WILL
(1) Jurisdictional facts
(a) Death of the decedent
(b) Residence at the time of death in the province
where the probate court is sitting
(c) Or if he is an inhabitant of a foreign country,
his leaving his estate in such province
(2) Names, ages, and residences of the heirs,
legatees, and devisees of the testator or decedent
(3) Probable value and character of the property of
the estate
(4) Name of the person for whom letters are prayed
(5) If the will has not been delivered to the court, the
name of the person having custody of it. [Sec. 2,
Rule 76]
EFFECT
The will shall have the same effect as if originally

proved and allowed in such court.
Letters Testamentary and of

Administration
WHEN AND TO WHOM LETTERS OF
ADMINISTRATION GRANTED
Letters Testamentary issued to the executor named
in the will, if s/he is competent, accepts the trust,
and gives the required bond. [Sec. 4, Rule 78]
DEFECT IN PETITION
Defect in petition will not void the allowance of the

will, or the issuance of letters testamentary or of
administration with the will annexed. [Sec. 2, Rule 76]
GROUNDS FOR DISALLOWING A WILL
(1) If not executed and attested as required by law
(2) If the testator was insane, or otherwise mentally
incapable to make a will, at the time of its
execution
(3) If executed under duress, or the influence of fear,
or threats
(4) If procured by undue and improper pressure and
influence, on the part of the beneficiary, or of
some other person for his benefit
(5) If the signature of the testator was procured by
fraud or trick, and he did not intend that the
Letters of Administration issued to an administrator

when
(1) No executor named or
(2) Executor or executors are incompetent, refuse the
trust, or fail to give bond or
st
(3) Or person dies intestate. [1 par., Sec. 6, Rule 78]
WHO ARE INCOMPETENT TO SERVE
(1) Minor
(2) Non-resident
(3) One who, in the opinion of the court, is unfit to
exercise the duties of the trust by reason of
drunkenness,
improvidence,
want
of
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SPECIAL PROCEEDINGS
understanding or integrity or conviction of an

offense involving moral turpitude. [Sec. 1, Rule 78]
30-DAY PERIOD MAY BE WAIVED

Just as the order of preference is not absolute and
may be disregarded for valid cause, so may the 30day period be likewise waived under the permissive
tone in paragraph (b) of said rule which merely
provides that said letters as an alternative, may be
granted to one or more of the principal creditors.
[Herrera]
An executor of an executor cannot administer the

estate of the first testator. [Sec. 2, Rule 78]
ORDER OF PREFERENCE
ORDER OF PREFERENCE IN THE GRANT OF
ADMINISTRATION
(1) Surviving spouse or next of kin, or both, or to such

person as the surviving spouse, or next of kin
requests to have appointed, if competent and
willing to serve.
(2) If those in (a) be incompetent or unwilling, or if
the husband or widow, or next of kin, neglects for
30 days after the death of the person to apply for
administration or to request that administration
be granted to some other person, it may be
granted to one or more of the principal creditors, if
competent and willing to serve.
(3) If there is no (b), it may be granted to such other
person as the court may select. [Sec. 6, Rule 78]
Co-administrators may be appointed. [Matute v.

Court of Appeals (1969)]
OPPOSITION TO ISSUANCE OF LETTERS
TESTAMENTARY; SIMULTANEOUS FILING OF
PETITION FOR ADMINISTRATION
Who may oppose: Any person interested in will [Sec.
1, Rule 79]
MEANING OF INTERESTED PERSON
One who would be benefited by the estate, such as

an heir, or one who has a claim against the estate,
such as a creditor; thus interest must be immaterial
and direct, not merely indirect or contingent.
[Saguinsin v. Lindayag, 6 SCRA 874]
Next of kin are those entitled by law to receive the

decedent properties. [Gonzalez v. Aguinaldo, et al.,
(1990)]
GROUNDS
(1) Incompetency of the person/s named in the will

as executor/s, or
(2) Contestants right to the administration [Sec. 4,
Rule 79]
REASON FOR ORDER OF PREFERENCE
Those who would reap the benefit of a wise, speedy

and economical administration of the estate, or, on
the other hand, suffer the consequences of waste,
improvidence or mismanagement, have the highest
interest and most influential motive to administer
the estate correctly. [Gonzalez v. Aguinaldo, et al.,
(1990)]
Form required: State in writing the grounds why letter

should not issue; the court shall then hear and pass
upon sufficiency of such grounds. [Sec. 1, Rule 79]
Mere failure to apply for letters of administration

does not remove preference. [1 ALR 1247]
CONTENTS

(2) Name, age and residence of heirs and the name
and age of creditors
(3) Probable value of the estate
(4) Name of person to whom letter is prayed [Sec. 2,
Rule 79]
General Rule: The court cannot set aside order of

preference
Exceptions: If the person enjoying such preferential
rights is
(1) Unsuitable
(2) Incompetent
(3) Unwilling
(4) Neglect to apply for letters 30 days after the
death of the decedent
JURISDICTIONAL FACTS
(1) Death of the testator

(2) His/her residence at the time of death in the
province where the probate court is sitting or,
(3) If an inhabitant of a foreign country, his/her
having left his estate in such province [Diez v.
Serra, (1927)]
Court may reject order of preference when

circumstances warrant. [Villamor v. Court of Appeals,
(1988)]
PUBLICATION AND NOTICE
Publication of notice for 3 weeks successively and

notice to heirs, creditors and interested persons are
jurisdictional. [Sec. 3, Rule 79 and Secs. 3 & 4, Rule
76]
The order of preference is not absolute for it depends

on the attendant facts and circumstances of each
case. The selection of an administrator lies in the
sound discretion of the trial court. [In Re Suntay,
(2007)]
PAGE 251
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SPECIAL PROCEEDINGS
SIMULTANEOUS FILING OF OPPOSITION AND PETITION:
A
petition may, at the same time, be filed for letters of
administration to himself, or to any competent
person or person named in the opposition. [Sec. 4,
Rule 79]
RESTRICTIONS ON
ADMINISTRATORS
POWERS
OF
EXECUTORS
AND
(1) Executor or Administrator Chargeable with all

Estate and Income
Chargeable in his account with the whole of the
estate which has come into his possession, at the
value of the appraisement contained in the
inventory:
(1) With all the interest,
(2) Profit
(3) Income of such estate and
(4) With the proceeds of as much of the estate as
is sold by him, at the price at which it was
sold. [Sec. 1, Rule 85]
Lack of interest in the proceedings is equal to lack of

legal capacity to institute proceedings. [Herrera]
Appointment of Regular Administrator is final and
thus, appealable.
POWERS AND DUTIES OF EXECUTORS AND
ADMINISTRATORS; RESTRICTIONS ON THE
POWERS
GENERAL POWERS AND DUTIES OF EXECUTORS AND
ADMINISTRATORS
(2) Prohibited from Profiting by Increase or Losing by

Decrease in Value
(a) No executor/administrator shall profit by the
increase, or suffer loss by the decrease or
destruction, without his fault, of any part of
the estate
(b) Account for the excess (when sold for more)
(c) If sold for less, not responsible for loss, if
justly made
(d) If settled claim for less - He is entitled to
charge in his account only the amount he
actually paid on the settlement [Sec. 2, Rule
85]
(e) Not accountable for debts due the deceased
which remain uncollected without his fault
[Sec. 3, Rule 85]
(1) Have Access to Partnership Books and Property

at All Times
(a) Have access to, and may examine and take
copies of, books and papers relating to the
partnership business,
(b) Examine and make invoices of the property
belonging to such partnership
(c) The surviving partner or partners, on request,
shall exhibit to him all such books, papers,
and property in their hands or control. [Sec. 1,
Rule 84]
Failure to freely permit the exercise of the may
subject any partner for contempt.
(2) Keep Buildings in Tenantable Repair
(a) Houses and other structures and fences
belonging to the estate, and
(b) Deliver the same in such repair to the heirs or
devisees when directed so to do by the court.
[Sec. 2, Rule 84]
(3) Accountable for Income from Realty Used by Him

If the executor/administrator uses or occupies
any part of the real estate himself, he shall
account for it as may be agreed upon between
him and the parties interested, or adjusted by the
court with their assent and if the parties do not
agree upon the sum to be allowed, the same may
be ascertained by the court, whose determination
in this respect shall be final. [Sec. 4, Rule 85]
(3) Right to Possession and Management of the Real

and Personal Properties
(a) So long as it is necessary for the payment of
the debts and the expenses of administration
(b) Administrator cannot exercise the right of
legal redemption over a portion of the
property owned in common sold by one of the
other co-owners since this is not within the
powers of administrator. [Sec. 3, Rule 84]
(4) Accountable if He Neglects or Delays to Raise or

Pay Money
(a) Neglects or unreasonably delays to raise
money, by collecting the debts or selling the
real or personal estate of the deceased, or
(b) Neglects 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.
(c) Damages sustained may be charge and
allowed against executor or administrator in
his/her account; liable on his/her bond. [Sec.
5, Rule 95]
Note: When the estate of a deceased is already

subject of a testate or intestate proceeding, the
administrator cannot enter into any transaction
involving it without any prior approval of the Court.
[Estate of Olave v. Reyes (1983)]
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UP COLLEGE OF LAW
SPECIAL PROCEEDINGS
(5) Only Necessary Expenses shall be allowed

(a) The
amount
paid
by
an
executor/administrator for costs awarded
against him shall be allowed in his
administration account [Sec. 6, Rule 85]
(b) Unless it appears that the action or
proceeding in which the costs are taxed was
prosecuted or resisted without just cause, and
not in good faith.
(c) When the executor is an attorney, cannot
charge against estate any professional fees
for legal services rendered. [Sec. 7, Rule 85]
PROCEDURE FOR APPOINTMENT
There must first be notice and publication. Notice

through publication of the petition is a jurisdictional
requirement even in the appointment of a special
administrator. [De Guzman v. Angeles (1988)]
Appointment of special administrator lies entirely in
the sound discretion of the court. [De Gala v.
Gonzales, 53 Phil. 104 (1929)]
POWERS AND DUTIES OF SPECIAL ADMINISTRATOR
(1) Take possession and charge of the goods,

chattels, rights, credits, and estate of the
deceased, and
(2) Preserve the same for the executor/administrator
afterwards appointed, and
(3) For that purpose may commence and maintain
suits as administrator.
(4) May sell only such perishable and other property
as the court orders sold.
(5) Not liable - to pay any debts of the deceased
unless so ordered by the court. [Sec. 2, Rule 80]
Necessary expenses
Such expenses as are entailed for the
preservation and productivity of the estate and
for its management for purpose of liquidation,
payment of debts, and distribution of the residue
among persons entitled thereto. [Hermanos v.
Abada (1919)]
Attorneys fees as expenses of administration
Administrator may not recover attorneys fees
from estate.
WHEN SPECIAL ADMINISTRATOR CEASES DUTIES
(6) Executor or Administrator to Make Inventory and

Render Account
When letters testamentary/administration are

granted on the estate of the deceased
(1) He shall deliver to the executor/administrator the
goods, chattels, money, and estate of the
deceased in his hands.
(2) The executor/administrator may prosecute to
final judgment suits commenced by such SA.
[Sec. 3, Rule 80]
Accounting mandatory
Within 1 year from the time of receiving letters
testamentary or of administration unless the
court otherwise directs [Sec. 8, Rule 85]
The fact that the heirs of the estate have entered
into an extrajudicial settlement and partition in
order to put an end to their differences cannot in
any way be interpreted as a waiver of the
objections of the heirs to the accounts submitted
by the administrator. [Joson v. Joson (1961)]
Appointment
of
Special
Administrator
is
interlocutory and is not appealable. [Garcia v. Flores,
101 Phil. 781 (1957)]
GROUNDS FOR REMOVAL OF ADMINISTRATOR
REVOCATION OF ADMINISTRATOR
Examination on Oath by Court

As to the correctness of his account before the
same is allowed, except when no objection is
made to the allowance of the account and its
correctness is satisfactorily established by
competent proof [Sec. 9, Rule 85]
When the decedents will is allowed and proved after

a letters of administration has been issued, the
administration is deemed revoked.
REMOVAL OF EXECUTOR OR ADMINISTRATOR
Grounds
(1) Neglects to:
(a) Render his account
(b) Settle the estate according to law
(c) Perform an order or judgment of the court, or
a duty expressly provided by these rules
(2) Absconds
(3) Becomes insane or
(4) Becomes incapable or unsuitable to discharge
the trust. [Sec. 2, Rule 82]
The heirs, legatees, distributees, and creditors of

the estate shall have the same privilege as the
executor/administrator of being examined on
oath on any matter relating to an administration
account. [Sec. 9, Rule 85]
APPOINTMENT OF SPECIAL ADMINISTRATOR
WHEN APPOINTED
(1) When there is delay in granting letters

testamentary or administration, or
(2) By any cause, including an appeal from allowance
or disallowance of a will. [Sec. 1, Rule 80]
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UP COLLEGE OF LAW
SPECIAL PROCEEDINGS
Publication for 3 consecutive weeks and posting in 4

public places in the province and in 2 public places in
the municipality where the decedent last resided.
[Sec. 4, Rule 86]
EFFECT OF REMOVAL, DEATH, OR RESIGNATION
(1) The remaining executor/administrator may

administer the trust alone, unless the court
grants letters to someone to act with him.
(2) If there is no remaining executor/administrator,
administration may be to any suitable person.
[Sec. 2, Rule 82]
STATUTE OF NON-CLAIMS
CLAIMS COVERED (EXCLUSIVE)
(1) Claims for money against the decedent arising
from contract
(a) Express or implied
(b) Due or not
(c) Contingent or not
(2) Claims for funeral expenses
(3) Expenses for the last sickness
(4) Judgment for money against the decedent. [Sec.
5, Rule 86]
Acts of the executor/administrator before

removal/resignation are valid. [Sec. 3, Rule 82]
Claims against the Estate

ESTATE BURDENED WITH LIEN OF CREDITORS
Upon the death of the person, all his property is
burdened with all his debts, his debts creating an
equitable lien thereon for the benefit of the creditors.
The period, once fixed by the courts, is mandatory.

General Rule: Failure to make the claim within the
time fixed by the Courts will result in barring any
recovery. [Sec. 5, Rule 86]
And such lien continues until the debts are

extinguished either by the payment, prescription, or
satisfaction in one of the modes recognized by law.
[Suiliong & Co. v. Chio Tayaan, 12 Phil. 13]
Purpose: to settle the estate with dispatch, so that

the residue may be delivered to the persons entitled
thereto without their being afterwards called upon to
respond in actions for claims.
PURPOSE OF PRESENTATION OF CLAIMS

AGAINST ESTATE
(1) To protect the estate of the deceased.
(2) Executor/administrator will be able to examine
each claim, determine whether it is a proper one
which should be allowed.
(3) To appraise the administrator and the probate
court of the existence of the claim so that a
proper and timely arrangement may be made for
its payment in full or by pro-rata portion in the
due course of the administration. [Estate of Olave
v. Reyes (1983)]
Exception:
(1) When set forth as counterclaims in any action
that the executor/administrator may bring
against the claimants
(2) If the decedent is a creditor and the executor or
administrator commences an action or continues
the action - the debtor may set forth by answer
the claims he has against the decedent, instead
of presenting them independently to the court.
[Sec. 5, Rule 86]
CONTINGENT CLAIM WHEN ALLOWED
TIME WITHIN WHICH CLAIMS SHALL BE FILED;

EXCEPTIONS
General Rule: Claims must be filed within the time
specified by the court in its notice which shall not be
less than 6 months nor more than 12 months from the
date of the first publication of the notice. [Sec. 2,
Rule 86]
(1) When it becomes absolute;

(2) Presented to the court or executor/administrator
within 2 years from the time limited for other
creditors to present their claims; and
(3) Not disputed by executor/administrator
IF DISPUTED
It may be proved and allowed or disallowed by the

court as the facts may warrant [Sec. 5, Rule 88]
Exception:
Belated Claims
The Court has the discretion, for cause and upon
such terms as are equitable, to allow contingent
claims presented beyond the period previously fixed
provided they are filed within 1 month from the
expiration of such period but in no case beyond the
date of entry of the order of distribution. [Danan v.
Buencaminao (1981); Sec. 2, Rule 86]
Mutual claims may be set off against each other in

such action.
Effect if a debtor obtains a favorable judgment
against the estate: the amount shall be considered
the true balance against the estate, as though the
claim had been presented directly before the court in
the administration proceedings
PAGE 254
UP COLLEGE OF LAW
SPECIAL PROCEEDINGS
The presentation of money claim may be waived.

[Ignacio v. Pampanga Bus co., Inc., (1967)]
(2) If not sufficient

The part of the estate not disposed of by will shall
be appropriated for the purpose [Sec. 2,Rule 88]
If obligation solidary - file claim against decedent as

if he is the only debtor
If obligation joint - claim confined to the portion
belonging to the decedent [Sec. 6, Rule 86]
PERSONALTY FIRST CHARGEABLE FOR DEBTS, THEN

REALTY
General Rule: Personal estate not disposed of by will

shall be FIRST chargeable [Sec. 3, Rule 88]
CLAIM OF EXECUTOR OR ADMINISTRATOR

AGAINST THE ESTATE
Exception
(1) Not sufficient for the purpose; or
(2) Its sale will redound to the detriment of the
participants for the estate
PROCEDURE TO FOLLOW IF THE EXECUTOR OR

ADMINISTRATOR HAS A CLAIM AGAINST THE ESTATE HE
REPRESENTS [Sec. 8, Rule 86]
In which case
(a) The whole of the real estate not dispose of by will,
or so much thereof as is necessary, may be sold,
mortgaged, or otherwise encumbered for that
purpose by the executor/administrator,
(b) Court approval must be obtained first
(c) Any deficiency shall be met by contributions in
accordance with the provisions of S6 of this rule.
[Sec. 3, Rule 88]
Executor/Administrator shall give notice thereof, in

writing, to the court
The court shall appoint a special administrator who

shall have the same powers and liabilities as the
general executor/administrator in the adjustment
of such claim.
ESTATE TO BE RETAINED TO MEET CONTINGENT CLAIMS
If court is satisfied that such claim is valid:

(1) It may order the executor/administrator to retain
in his hands sufficient estate
(2) For the purpose of paying the contingent claim
when such becomes absolute.
The court may order the executor or administrator

to pay to the special administrator necessary funds
to defend such claim.
PAYMENT OF DEBTS
If estate insolvent - Retain a portion equal to the

dividend of the other creditors. [Sec. 4, Rule 88]
DEBTS PAID IN FULL IF ESTATE SUFFICIENT
(1) After all money claims heard and ascertained;

and
(2) It appears that there are sufficient assets to pay
the debts
PAYMENT OF CONTINGENT CLAIM
If allowed - Creditor shall receive payment to the

same extent as the other creditors if the estate
retained by the executor/administrator is sufficient.
Claim not presented after becoming absolute and
allowed within 2 year period
Executor/administrator shall pay the same within

the time limited for that purpose. [Sec. 1, Rule 88]
The probate court may hold in abeyance intestate
proceedings pending determination of a civil case
against the administrator.
The assets retained in the hands of the

executor/administrator, not exhausted in the
payment of claims, shall be distributed by the order
of the court to the persons entitled
The heirs of the estate may not demand the closing

of an intestate proceeding at anytime where there is
a pending case against the administrator of the
estate. The court can rightfully hold in abeyance until
the civil case is settled. [Dinglasan v. Chia, (1956)]
But the assets so distributed may still be applied to

the payment of the claim when established, and the
creditor may maintain an action against the
distributees to recover the debt, and such
distributees and their estates shall be liable for the
debt in proportion to the estate they have
respectively received. [Sec. 5, Rule 88]
PART OF ESTATE FROM WHICH DEBT PAID WHEN PROVISION

MADE BY WILL
(1) Testator provided for payment of debt

Expenses of administration, or family expenses
shall be paid according to such provisions
COURT TO FIX CONTRIBUTIVE SHARES WHERE DEVISEES,

LEGATES, OR HEIRS HAVE BEEN IN POSSESSION
(1) Possession before debts and expenses paid

Court shall
PAGE 255
UP COLLEGE OF LAW
SPECIAL PROCEEDINGS
(a) Hear and settle the amount of their several

liabilities
(b) Order how much and in what manner each
shall contribute
(c) May issue execution as circumstances require.
[Sec. 6, Rule 88]
residing in the Philippines and the other creditor,

according to their respective claims. [Sec. 10, Rule
88]
ORDER OF PAYMENT OF DEBTS
Before the expiration of the time limited for the

payment of the debts
(1) The court shall order the payment thereof, and
the distribution of the assets received by the
executor/administrator for that purpose among
the creditors,
(2) As the circumstances of the estate require and in
accordance with the provisions of this rule [Sec. 11,
Rule 88]
(2) Liability of heirs and distributes

Heirs are not required to respond with their own
property for the debts of their deceased
ancestors. But after partition of an estate, the
heirs and distributees are liable individually for
the payment of all lawful outstanding claims
against the estate in proportion to the amount or
value of the property they have respectively
received from the estate. [Govt of P.I. v.
Pamintuan, 55 Phil. 13 (1930)]
APPEAL TAKEN FROM A DECISION OF THE COURT

CONCERNING THE CLAIM
The court may:

(1) Suspend the order for payment or order the
distribution among creditors whose claims are
definitely allowed
(2) Leave in the hands of executor/administrator
sufficient assets to pay the claim disputed and
appealed.
When a disputed claim is finally settled
court
shall order the claim to be paid out of the assets
retained to the same extent and in the same
proportion with the claims of other creditors. [Sec. 12,
Rule 88]
ORDER OF PAYMENT IF ESTATE IS INSOLVENT
Executor/administrator pays the debts against the

estate, observing the provisions of Articles 1059 and
2239 to 2251 of the Civil Code. (Preference of
Credits) [Sec. 7, Rule 88]
DIVIDENDS TO BE PAID IN PROPORTION TO CLAIMS
If no assets sufficient to pay credits of any one class

of creditors after paying preferred credits, Each
creditor within such class shall be paid dividend in
proportion to his claim. No creditor of any one class
shall receive any payment until those of the
preceding class are paid. [Sec. 8, Rule 88]
FROM TIME TO TIME FURTHER ORDERS OF DISTRIBUTION
(1) Whole of the debts not paid on first distribution;

and
(2) If the whole assets not distributed or other assets
afterwards
come
to
the
hands
of
executor/administrator. [Sec. 13, Rule 88]
INSOLVENT NON-RESIDENT
His estate found in the Philippines shall be so

disposed of that his creditors here and elsewhere
may receive each an equal share, in proportion to
their respective credits. [Sec. 9, Rule 88]
CREDITORS TO BE PAID IN ACCORDANCE WITH TERMS OF

ORDER
When an order is made for the distribution of assets

among creditors, the executor or administrator shall,
as soon as the time of payment arrives, pay the
creditors the amounts of their claims, or the dividend
thereon, in accordance with the terms of such
order.[Sec. 14, Rule 88]
INSOLVENT RESIDENT WITH FOREIGN CREDITORS AND

FOREIGN CLAIMS PROVEN IN ANOTHER COUNTRY
(1) Executor/administrator in the Philippines had

knowledge of the presentation of such claims in
such country; and
(2) Executor/administrator had opportunity to
contest such allowance
COURT SHALL ALLOW EXECUTOR OR ADMINISTRATOR A

TIME FOR DISPOSING THE ESTATE AND PAYING DEBTS AND
LEGACIES
The court shall:

(1) Receive a certified list of such claims, when
perfected in such country,
(2) And add the same to the list of claims proved
against the deceased person in the Philippines
(3) So that a just distribution of the whole estate may
be made equally among all its creditors
Period allowed to original or executor or

administrator
(1) Not exceeding 1 year
(2) Two years when special circumstances require
[Sec. 15, Rule 88]
But the benefit of this and the preceding sections

shall not be extended to the creditors in another
country if the property of such deceased person there
found is not equally apportioned to the creditors
PAGE 256
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SPECIAL PROCEEDINGS
WHEN RECOVERY OF PROPERTY FRAUDULENTLY CONVEYED

BY DECEASED MAY BE RECOVERED
Extension allowed to successor of Dead Executor or

Administrator
(1) Not exceeding 6 months at a time and not
exceeding six months beyond the time allowed to
original executor or administrator or
(2) Not exceeding two years and a half.
[Moran 525, 1980 Ed.; Sec. 16, Rule 88]
(1) There is deficiency of assets and the deceased, in

his lifetime, had conveyed real or personal
property, right or interest therein, or debt or credit
with intent to defraud his creditors or avoid any
right, debt or duty; or
(2) Had so conveyed such property, right, interest,
debt or credit that by law the conveyance would
be void as against the creditors; and
(3) The subject of the attempted conveyance would
be liable to attachment by any of them in his
lifetime. [Sec. 9, Rule 87]
Ground for Extension

(1) Original executor/administrator dies
(2) New administrator appointed
Requisites
(1) Executor/administrator must apply.
(2) Notice of the time and place of hearing.
(3) Court must hear the application.
DUTY OF EXECUTOR/ADMINISTRATOR
(1) Commence and prosecute to final judgment an

action for the recovery of such property, right,
interest, debt or credit for benefit of the creditors
(2) Provided, creditors make an application and pay
such part of the costs and expenses or give
security therefor. [Sec. 9, Rule 87]
Actions by and against

Executors and Administrators
If a person before granting letters testamentary or

administration
(1) Embezzles or alienates
(2) Any of the money, goods, chattels, or effects of
such deceased
ACTIONS THAT MAY BE BROUGHT AGAINST

EXECUTORS AND ADMINISTRATORS
ACTIONS WHICH MAY AND WHICH MAY NOT BE BROUGHT
AGAINST THE EXECUTOR OR ADMINISTRATOR
Consequence: Such person shall be liable to an

action in favor of the executor/administrator of the
estate for double the value of the property sold,
embezzled, or alienated, to be recovered for the
benefit of such estate. [Sec. 8, Rule 87]
Actions to be brought against Administrators

(1) Recover real or personal property or interest
therein
(2) Or to enforce a lien thereon and
(3) Actions to recover damages for an injury to a
person or property [Aguas v. Llenos (1962)]
REQUISITES BEFORE CREDITOR MAY BRING AN ACTION FOR

RECOVERY OF PROPERTY FRAUDULENTLY CONVEYED BY
THE DECEASED
Claims against the administrator may be presented

in the administration proceedings but not against
third persons.
ACTIONS WHICH
ADMINISTRATORS
MAY
NOT
BROUGHT
Any creditor may commence and prosecute to final

judgment a like action for the recovery of the subject
of the conveyance or attempted conveyance if the
following requisites are satisfied:
AGAINST
ALLOWED IN TWO INSTANCES
Claim for the recovery of money or debt or interest

cannot be brought against executors/administrators.
[Aguas v. Llenos (1962)]
(1) If executor/administrator failed to commence

such action
(a) With court permission
(b) In the name of the executor/administrator
(c) He files a bond, conditioned to indemnify the
executor/administrator against the cost and
expenses incurred by such action
(2) If conveyance or attempt is made in favor of
executor/administrator
(a) No need for court permission
(b) No need for Bond.
(c) Action shall be brought in the name of all the
creditors
EXECUTOR OR ADMINISTRATOR MAY BRING OR DEFEND

ACTIONS WHICH SURVIVE
For the recovery or protection of the property or

rights of the deceased [Sec. 2, Rule 87]
Covers injury to property i.e. not only limited to
injuries to specific property, but extends to other
wrongs by which personal estate is injured or
diminished. [Javier v. Araneta, 93 Phil. 1115; Aguas v.
Llenos, supra]
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UP COLLEGE OF LAW
SPECIAL PROCEEDINGS
or any other person having the same in his

possession.
EFFECT
Such creditor shall have a lien upon any judgment

recovered by him in the action for such costs and
other expenses incurred therein as the court deems
equitable. [Sec. 10, Rule 87]
If there is a controversy as to who are heirs or shares

heard and decided as in ordinary cases. [Sec. 1,
Rule 90]
EFFECT OF FINAL DECREE OF DISTRIBUTION
(1) In rem and binding against the whole world.
(2) All persons having interest in the subject matter
involved, whether they are notified or not, are
equally bound. [Philippine Savings Bank v. Lantin
(1983)]
(3) The court acquires jurisdiction over all persons
interested, through the publication of the notice
prescribed and any order that may be entered
therein is binding against all of them.[Ramon v.
Ortuzar (1951)]
(4) The only instance where a party interested in a
probate proceeding may have a final liquidation
set aside is when he is left out by reason of
circumstances beyond his control or through
mistake or inadvertence not imputable to
negligence. [Vda. De Alberto v. CA (1989)]
Distribution and Partition

Before there could be a distribution of estate, the
following stages must be followed:
(1) Liquidation of the estate i.e. payment of
obligations of the deceased.
(2) Collation and Declaration of heirs : to determine
to whom the residue of the estate should be
distributed.
(a) Determination the right of a natural child
(b) Determination of proportionate shares of
distributes.
Afterwards, the residue may be distributed and
delivered to the heirs. [Herrera]
LIQUIDATION
General Rule: Before an order of distribution or
assignment, it must be shown that the debts,
funeral expenses and expenses of administration,
allowances, taxes, etc., chargeable to the estate
have been paid.
REMEDY OF AN HEIR ENTITLED TO RESIDUE BUT

NOT GIVEN HIS SHARE
The better practice for the heir who has not received
his share is to demand his share through a proper
motion in the same probate or administrative
proceedings, or for reopening of the probate or
administrative proceedings if it had already been
closed, and not through an independent action.
[Guilas v. Judge of the CFI of Pampanga, (1972)]
Exception: The distributees give a bond conditioned

on the payment of above obligations [Sec. 1, Rule 90]
PROJECT OF PARTITION
A project of partition is merely a proposal for the
distribution of the hereditary estate which the court
may accept or reject. [Solivio v. CA, (1990)]
INSTANCES WHEN PROBATE COURT MAY ISSUE WRIT OF

EXECUTION
General Rule: Writ of Execution is not allowed in

probate proceedings [Vda de Valera v. Ofilada, 59
SCRA 96]
The executor/administrator has no duty to prepare

and present the same under the Rules. The court
may, however, require him to present such project to
better inform itself of the condition of the estate. [3
Moran 541, 1980 Ed.]
Exceptions:
(1) To satisfy the contributive shares of devisees,
legatees and heirs in possession of the decedents
assets [Sec. 6, Rule 88]
(2) To enforce payment of expenses of partition,
provided:
(a) No sufficient effects are retained in the hands
of the executor or administrator at the time of
distribution
(b) Expenses of partition are to be paid by
interested parties in proportion to their
respective shares or interest
(c) Such apportionment are settled and allowed
by the court
(d) Any person interested in the partition does not
pay his/her proportion or share [Sec. 3, Rule
90]
It is the court that makes that distribution of the

estate and determines the persons entitled thereto
(1) On application of executor/administrator or
person interested in the estate
(2) Notice
(3) Hearing
Court shall assign the residue of the estate to the
persons entitled to the same, naming them and the
proportions, or parts, to which each is entitled.
Such persons may demand and recover their
respective shares from the executor/administrator,
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(3) To satisfy the costs when a person is cited for

examination in probate proceedings [Sec. 13, Rule
142]
(b) Courts discretion

(c) If an inventory has already been filed
(2) Faithful management
That he will manage and dispose of all such
estate, and faithfully discharge his trust in
relation thereto, according to law and the will of
the testator or the provisions of the instrument or
order under which he is appointed
Trustees
DISTINGUISHED FROM EXECUTOR OR
ADMINISTRATOR
Araneta v. Perez (1962): A trustee, like an
executor/administrator, holds an office of trust,
particularly when the trustee acts as such under
judicial authority.
(3) Accounting
That he will render upon oath at least once a year
until his trust is fulfilled, unless he is excused in
any year by the court, a true account of the
property in his hands and the management and
disposition thereof, and will render such other
accounts as the court may order
The duties of executor/administrator are however,

fixed and/or limited by law whereas those of the
trustee of an express trust are, usually governed by
the intention of the trustor or the parties, if
established by contract. Besides, the duties of
trustees may cover a wider range than those of
executor/administrator of the estate of deceased
persons.
(4) Settlement of account and delivery of estate.

That at the expiration of his trust he will settle his
account in court and pay over and deliver all the
estate remaining in his hands, or due from him on
such settlement, to the person or persons entitled
to thereto. [Sec. 6, Rule 98]
CONDITIONS OF THE BOND

Trustee must file bond before performing duties
(1) Filed with the clerk of court
(2) Amount fixed by the judge
(3) Payable to the government of Philippines
(4) Sufficient and available for the protection of any
party in interest
REQUISITES FOR THE REMOVAL AND

RESIGNATION OF A TRUSTEE
(1) Petition by parties beneficially interested
(2) Due notice to the trustee
(3) Hearing
If the trustee fails to furnish a bond as required by

the court, he fails to qualify as such. Nonetheless, the
trust is not defeated by such a failure to give bond,
he is considered to have declined or resigned the
trust. [Sec. 5, Rule 98]
GROUNDS FOR REMOVAL
GROUNDS FOR REMOVAL AND RESIGNATION OF

A TRUSTEE
(1) Removal appears essential in the interest of
petitioner;
(2) Trustee is insane;
(3) Otherwise incapable of discharging his trust; or
(4) Evidently unsuitable
WHEN EXEMPT
(1) When testator has directed such exemption; or

(2) All persons beneficially interested in the trust,
request such exemption
GROUNDS FOR RESIGNATION
Exemption may be cancelled by the court at any

time. [Sec. 5, Rule 98]
EXTENT OF AUTHORITY OF TRUSTEE
He may resign but the court will determine if

resignation is proper
NATURE OF POSSESSION
The possession of the property by the trustee is not

an adverse possession, but only a possession in the
name and in behalf of the owner of the same.
A trustee may acquire the trust estate by prescription
provided there is a repudiation of the trust, such
repudiation being open, clear and unequivocal,
known to the cestui que trust [Salinas v. Tuazon
(1931)].
CONDITIONS
(1) Inventory
That the trustee will make and return to the
court, at such time as it may order, a true
inventory of all the real and personal estate
belonging to him as trustee, which at the time of
the making of such inventory shall have come to
his possession or knowledge.
TERRITORIALITY OF AUTHORITY OF TRUSTEE
The powers of a trustee appointed by a Philippine

court cannot extend beyond the confines of the
territory of the Republic.
Exemption from inventory:

(a) When trustee is not the original trustee
appointed
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This is based on the principle that his authority

cannot extend beyond the jurisdiction of the
Republic, under whose courts he was appointed.
[Herrera]
The court shall direct a copy of the order to be

published before the hearing at least once a week
for 6 consecutive weeks in some newspaper of
general circulation published in the province, as
the court shall deem best
Escheat
The court shall hear the case and judge whether or

not the estate shall be escheated
Escheat is a proceeding where the real and personal

property of a person deceased in the Philippines,
who dies without leaving any will and without any
legal heirs, becomes the property of the State.
If the court rules in favor of the Republic,

It shall assign the personal estate to the
municipality or city where the deceased last
resided, and the real estate to the
municipalities or cities, respectively, in which
the same is situated.
It is an incident or attribute of sovereignty and rests

on the principle of ultimate ownership by the state of
all property within its jurisdiction.
WHEN TO FILE
(1) Person dies intestate;
(2) Left properties in the Philippines; and
(3) Leaves no heir or person by law entitled to the
same [Sec. 1, Rule 91]
If the deceased never resided in the

Philippines, the whole estate may be
assigned to the respective municipalities or
cities where the same is located.
REQUISITES FOR FILING OF PETITION

(1) A person died intestate
(2) He left no heirs or persons by law entitled to the
same
(3) Deceased left properties [City of Manila v.
Archbishop of Manila, 36 Phil. 815]
Such estate shall be for the benefit of public

schools, and public charitable institutions and
centers in said municipalities or cities.
The right of escheat may be waived, either expressly
or impliedly. [Roman Catholic Archbishop of Manila v.
Monte de Peidad, et al., 68 Phil. 1]
Note: Must be initiated by the Government through

the Solicitor General.
The Court must fix a date and place for hearing,
which shall not be more than 6 months after the
entry of the order
REMEDY OF RESPONDENT AGAINST PETITION;

PERIOD FOR FILING A CLAIM
PERIOD TO APPEAL AND CLAIM THE ESTATE
Appeal must be made within 5 years from date of

judgment; otherwise, barred forever [Sec. 5, Rule 91]
PROCEDURE
Solicitor General or his representative in behalf of

the Republic of the Philippines to file the petition:
(a) Deceased was a resident of the Philippinesin
the RTC of the province where he last resided
(b) Deceased was a non-residentin the RTC of
the province in which he had an estate
Actions for reversion or escheat of properties
alienated in violation of the Constitution or of any
statutein the province where the land lies in
whole or in part
FILED BY WHOM
(a) Devisee, legatee, heir, widow, widower, or other

person entitled to such estate appears
(b) Such person shall have possession of and title to
the same, or if sold, the municipality or city shall
be accountable to him for the proceeds after
deducting reasonable charges for the care of the
estate [Sec. 5, Rule 91]
PERIOD FOR FILING CLAIM
5 years from date the property was delivered to the

State [Sec. 5, Rule 91]
If the petition is sufficient in form and substance,

the court shall fix a date and place for the hearing
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Guardianship
Hearing
The power of protective authority given by law and

imposed on an individual who is free and in the
enjoyment of his rights, over one whose weakness on
account of his age or other infirmity renders him
unable to protect himself [Herrera].
If granted,s ervice of judgement to the Local Civil

Registrat and payment of bond to the guardian.
GENERAL POWERS AND DUTIES OF GUARDIANS
(a) Care and custody of the person of his ward and
management of his property.
(b) Management of his property only.
(c) Management of property within the Philippines
(in case of non-resident ward). [Sec. 1, Rule 96]
GUARDIAN
A person lawfully invested with power and charged
with the duty of taking care of a person who for some
peculiarity or status or defect of age, understanding
or self-control is considered incapable of
administering his own affairs [Herrera].
Specific duties
(1) To pay the just debts of the ward out of:
(a) Personal property and the income of the
real property of the ward, if the same is
sufficient
(b) Real property of the ward upon obtaining
an order for its sale or encumbrance. [Sec. 2,
Rule 96]
(2) To settle all accounts of his ward [Sec. 3, Rule
96]
(3) To demand, sue for, receive all debts due him,
or, with the approval of the court, compound for
the same and give discharges to the debtor on
receiving a fair and just dividend of the property
and effects [Sec. 3, Rule 96]
(4) To appear for and represent the ward in all
actions and special proceedings, unless another
person is appointed for that purpose [Sec. 3,
Rule 96]
(5) To manage the property of the ward frugally and
without waste, and apply the income and profits
thereon, insofar as may be necessary, to the
comfortable and suitable maintenance of the
ward. If such income and profits be insufficient
for that purpose, to sell or encumber the real or
personal property, upon being authorized by the
court to do so [Sec. 4, Rule 96]
(6) To consent to a partition of real or personal
property owned by the ward jointly or in
common with others, upon:
(a) Authority granted by the court after hearing
(b) Notice to relatives of the ward, and
(7) A careful investigation as to the necessity and
propriety of the proposed action. [Sec. 5, Rule
96]
(8) To submit to the court a verified inventory of the
property of the ward:
(a) Within three months after his appointment
(b) Annually, and
(9) Whenever required upon the application of an
interested person. [Sec. 7, Rule 96]
(10) To report to the court any property of the ward
not included in the inventory which is discovered,
or succeeded to, or acquired by the ward within
BASIS: PARENS PATRIAE

It is the States duty to protect the rights of
persons/individuals who because of age/incapacity
are in an unfavorable position vis--vis other parties
[Nery v. Lorenzo (1972)].
KINDS OF GUARDIANS [Regalado]
(1) Legal Guardian deemed as guardian by

provision of law, without need of court
appointment [Article 320, Civil Code; Article 225,
Family Code]
(2) Guardian ad Litem appointed by the court to
prosecute or defend a minor, insane or person
declared to be incompetent, in a court action.
(3) Judicial Guardian appointed by the court in
pursuance to law, as guardians for insane
persons, prodigals, minor heirs of deceased war
veterans and other incompetent persons.
(a) Guardian over the person.
(b) Guardian of the property.
(c) General Guardian has custody and care of
the wards person and property.
The Rules on Guardianship in the Rules of Court
govern guardianship of incompetent. Guardianship
of minor is now governed by AM 03-02-05-SC.
GUARDIANSHIP OF INCOMPETENT
PROCEDURE
Filing of Petition
Court issues order setting time for hearing
Notice to the incompetent and persons mentioned

in the petition
Publication only if incompetent is a non-resident.
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3 months after such discovery, succession, or

acquisition [Sec. 4, Rule 96]
(11) To render to the court for its approval an
accounting of the property:
(a) One year from his appointment
(b) Every year thereafter, and
(12) As often as may be required. [Secs. 7 & 8, Rule
96]
evidence of the petitioner and next of kin, and other

persons interested, together with their witnesses,
and grant or deny the petition as the best interests of
the ward may require. [Sec. 3, Rule 95]
ORDER FOR SALE OR ENCUMBRANCE
Contents:
(1) Grounds for the sale or encumbrance.
(2) Manner of sale (public or private)
(3) Time and manner of payment
(4) Security, if payment deferred
(5) Additional bond from guardian, if required. [Sec.
4, Rule 95]
REIMBURSEMENT OF REASONABLE EXPENSES
The court may authorize reimbursement to the

guardian, other than a parent, of reasonable
expenses incurred in the execution of his trust. [Sec.
8, Rule 96]
Duration: Not more than 1 year, unless renewed.
PAYMENT OF COMPENSATION
Court may order payment of reasonable

compensation not exceeding 10% of the net income
of the ward. [Sec. 8, Rule 96]
INVESTMENT
PROPERTY
OF
PROCEEDS
AND
MANAGEMENT
OF
The court may authorize and require the guardian to

invest the proceeds of sales or encumbrances, and
any other money of his ward in his hands, in real or
personal property, for the best interests of the ward.
EMBEZZLEMENT, CONCEALMENT, OR CONVEYANCE OF

WARDS PROPERTIES
Complaint filed by Whom

(1) The guardian or ward, or
(2) Any person having actual or prospective interest
in the property of the ward.
The court may make such other orders for the

management, investment, and disposition of the
property and effects, as circumstances may warrant.
[Sec. 1, Rule 95]
Court Examination
The court may require any person suspected of
having embezzled, concealed, or disposed of any
money, goods or interest, or a written instrument
belonging to the ward or his property to appear for
examination concerning any thereof and issue such
orders as would secure the property against such
embezzlement, concealment or conveyance [Sec. 6,
Rule 96]
CONDITIONS OF THE BOND OF THE GUARDIAN

(Applicable for both Guardianship of Minors and
incompetents)
(1) To make and return to the court, within three
months after the issuance of his letters of
guardianship, a TRUE AND COMPLETE
INVENTORY of all the real and personal property
of his ward which shall come to his possession or
knowledge or to the possession or knowledge of
any other person in his behalf
(2) To FAITHFULLY EXECUTE THE DUTIES OF HIS
TRUST, to manage and dispose the property
according to this rule for the best interests of the
ward, and to provide for his proper care, custody
and education
(3) To render a TRUE AND JUST ACCOUNT of all the
property of the ward in his hands, and of all
proceeds or interest derived from them, and of
the management and disposition of the same, at
the time designated by this rule and such other
times as the court directs and at the expiration of
his trust, to settle his accounts with the court and
deliver and pay over all the property, effects, and
monies remaining in his hands, or due from him
on such settlement, to the person lawfully
entitled thereto
(4) To perform all orders of the court and such other
duties as may be required by law. [Sec. 1, Rule 94]
Selling and Encumbering the Property of the Ward

Grounds
(1) When the income of a property under
guardianship is insufficient to maintain and
educate the ward
(2) When it is for the benefit of the ward that his
personal or real property or any part thereof be
sold, mortgaged or otherwise encumbered, and
the proceeds invested in safe and productive
security, or in the improvement or security of
other real property. [Sec. 1, Rule 95]
How: Verified petition filed by the guardian.
ORDER TO SHOW CAUSE
The court shall order the wards next of kin and all
persons interested in the property to appear at a
reasonable time and place and show cause why the
petition should not be granted. [Sec. 2, Rule 95]
At the time and place designated in the order to
show cause, the court shall hear the allegations and
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RULE ON GUARDIANSHIP OVER MINORS (A.M.

No. 03-02-05-SC)
General Rule:
The father and the mother shall jointly exercise legal
guardianship over the property of their
unemancipated common child without the necessity
of a court appointment. [Sec. 3; also Article 225,
Family Code]
(6) Names, ages, and residences of relatives within

the 4th civil degree of the minor, and of persons
having him in their care and custody
(7) Probable value, character and location of the
property of the minor
(8) Name, age and residence of the person for whom
letters of guardianship are prayed.
The petition shall be verified and accompanied by a
certification against forum shopping.
In case of disagreement, the fathers decision shall

prevail, unless there is a judicial order to the contrary.
[Article 225, Family Code]
No defect in the petition or verification shall render

void the issuance of letters of guardianship. [Sec. 7]
However, if the market value of the property or the

annual Income of the child exceeds P50,000.00, the
parent concerned shall furnish a bond.
Who may file Opposition

(1) Any interested person [Sec. 10]
(2) The social worker ordered to make the case study
report, if he finds that the petition for
guardianship should be denied. [Sec. 9]
PETITION FOR APPOINTMENT OF GUARDIAN
Who may file

(1) Resident minor
(a) Any relative
(b) Other person on behalf of a minor
(c) The minor himself, if 14 years of age or over
(d) The Secretary of DSWD or the Secretary of
DOH, in the case of an insane minor who
needs to be hospitalized. [Sec. 2]
(2) Non-resident minor
(a) Any relative or friend of such minor
(b) Anyone interested in his property,
expectancy or otherwise. [Sec. 12]
How
If Interested person - by filing a written opposition.
[Sec. 10]
If social worker by filing an intervention if based on
finding the petition should be denied. [Sec. 9]
Grounds for Opposition
(1) Majority of the minor
(2) Unsuitability of the person for whom letters are
prayed.
in
Where to file
Resident minor - Family Court of the province or city
where the minor actually resides
Procedure
Court shall fix a time and place for hearing.
Non-resident minor - Family Court of the province or

city where his property or any part thereof is situated
[Sec. 3]
Filing of petition.
Grounds for Filing

(1) Death, continued absence, or incapacity of his
parents
(2) Suspension, deprivation or termination of
parental authority
(3) Remarriage of his surviving parent, if the latter is
found unsuitable to exercise parental authority
(4) When the best interests of the minor so require.
[Sec. 4]
Notice requirement
Court shall cause reasonable notice to be given
to:
(a) The persons mentioned in the petition
(b) The minor, if he is 14 years of age or over
For non-resident minors, notice shall be given to
the minor by publication or any other means as
the court may deem proper.
Contents of Petition
(2) Name, age and residence of the prospective ward
(3) Ground rendering the appointment necessary or
convenient
(4) Death of the parents of the minor or the
termination, deprivation or suspension of their
parental authority
(5) Remarriage of the minors surviving parent
The court may also direct other general or special

notice to be given.
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(5) Availability to exercise the powers and duties of a

guardian for the full period of the guardianship
(6) Lack of conflict of interest with the minor
(7) Ability to manage the property of the minor.
[Secs. 5 & 10]
Case Study Report

Court shall order a social worker to conduct a case
study of the minor and all the prospective
guardians and submit his report and
recommendation to the court for its guidance
before the scheduled hearing.
Grounds are not exhaustive. [Herrera]

Powers and Duties
In general
(1) Guardian of resident minor: Care and custody of
the person of his ward and the management of
his property, or only the management of his
property.
(2) Guardian of non-resident minor: Management of
all his property within the Philippines [Sec. 17]
Hearing
Compliance with notice requirement must be
shown.
The prospective ward shall be presented to
the court. If the minor is non-resident, the
court may dispense with his presence.
At the discretion of the court, the hearing on
guardianship may be closed to the public.
The records of the case shall not be released
without court approval.
Bonds of Guardians
Before a guardian enters upon the execution of his
trust, or letters of guardianship issue, he must file a
bond as determined by the Court. [Sec. 14]
Whenever necessary, the court may require the
guardian to post a new bond and may discharge
from further liability the sureties on the old bond.
[Sec. 15]
Issuance or denial of letters of guardianship.
Liability: In case of breach of any of its conditions, the

guardian may be prosecuted in the same proceeding
for the benefit of the ward or of any other person
legally interested in the property. [Sec. 15]
Service of final and executory judgment or order

upon the Local Civil Registrar of the municipality
or city where the minor resides and the Register of
Deeds of the place where his property or part
thereof is situated, who shall annotate the same in
the corresponding title, and report to the court
their compliance within fifteen days from receipt
of the order.
REMOVAL, RESIGNATION,
GUARDIANSHIP
AND
TERMINATION
OF
Removal
How: Upon reasonable notice to the guardian.
Grounds: The guardian:
(1) Becomes insane or otherwise incapable of
discharging his trust
(2) Is found to be unsuitable
(3) Wasted or mismanaged the property of the ward
(4) Failed to render an account or make a return for
thirty days after it is due. [Sec. 14]
THE GUARDIAN
Order of Preference of Appointment (in default of

parents or a court-approved guardian)
(1) The surviving grandparent. In case several
grandparents survive, the court shall select any of
them taking into account all relevant
considerations.
(2) The oldest brother or sister of the minor over 21
years of age, unless unfit or disqualified.
(3) The actual custodian of the minor over 21 years of
age, unless unfit or disqualified.
(4) Any other person, who in the sound discretion of
the court, would serve the best interests of the
minor
Resignation
Ground: Any justifiable cause.
Upon the removal or resignation of the guardian, the
court shall appoint a new one.
No motion for removal or resignation shall be
granted unless the guardian has submitted the
proper accounting of the property of the ward and
the court has approved the same. [Sec. 24]
Qualifications
The court shall consider the guardians:
(1) Moral character
(2) Physical, mental and psychological condition
(3) Financial status
(4) Relationship of trust with the minor
Termination
Grounds
(1) The ward has come of age.
(2) The ward has died.
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How
(1) Court motu proprio terminates guardianship
(2) Upon verified motion of any person allowed to file
a petition for guardianship.
Publication at least once a week for three

consecutive weeks in newspaper of general
circulation in province or city where the court is
situated. Court shall notify the Solicitor General if
the petition prays for a change of name.
The guardian shall notify the court of the fact of

coming of age or death of the ward within 10 days of
its occurrence. [Sec. 25]
Child and Home Study Report
The final and executory judgment or order removing

a guardian or terminating the guardianship shall be
served upon the Local Civil Registrar of the
municipality or city where the minor resides and the
Register of Deeds of the province or city where his
property or any part thereof is situated, who shall
enter the final and executory judgment or order in
the appropriate books in their offices. [Sec. 26]
Hearing within 6 months from issuance of Order
Supervised Trial Custody for at least 6 months
Decree of Adoption
Adoption
A juridical act which creates between two persons a
relation similar to that which results from filiation.
[Prasnick v. Republic, 98 Phil. 669 (1956)]
Amendment of Birth Certificate

EFFECTS OF ADOPTION
Objective: Best interest of the child [Sec. 1]

DISTINGUISH DOMESTIC ADOPTION
INTER-COUNTRY ADOPTION
See Annex A.
Parental Authority
All legal ties between thr biological parents and
adoptee are severed, and the same shall be vested
on the adopter, except if the biological parent is the
spouse of the adopter [Sec. 16, RA 8552]
FROM
DOMESTIC ADOPTION ACT

RA 8552 (Domestic Adoption Act) and the Rule on
Adoption govern the domestic adoption of Filipino
children.
Legitimacy
The adoptee shall be considered legitimate
son/daughter of the adopter for all intents and
purposes, and entitled to all rights and obligations
provided by law to legitimate children born to them
without discrimination of any kind. Adoptee is
entitled to love, guidance, and support. [Sec. 17, RA
8552]
General Rule: Husband and wife shall adopt jointly

Exceptions:
(1) If one spouse seeks to adopt the legitimate child
of other
(2) If one spouse seeks to adopt his own illegitimate
child, provided the other spouse has signified
his/her consent
(3) If spouses are legally separated [Sec. 7(c), RA
8552]
Succession
Adopter and adoptee shall have reciprocal rights of
succession without distinction from legitimate
filiation, in legal and intestate succession. If adoptee
and his/her biological parents had left a will, the law
on testamentary succession shall govern. [Sec. 18, RA
8552]
PROCEDURE
Order of Hearing
Book of Adoptions
The Clerk of Court shall keep a book of adoptions
showing the date of issuance of the decree in each
case, compliance by the Civil Registrar with the
courts order, and all incidents arising after the
issuance of the decree. [Sec. 17, Adoption Rule (AR)]
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Confidentiality of Adoption Proceedings

All hearings in adoption cases, after compliance with
the jurisdictional requirements shall be confidential
and shall not be open to the public.
(5) VESTED RIGHTS shall be RESPECTED. [Sec. 20,

RA 8552]
INTER-COUNTRY ADOPTION
RA 8043 (Inter-country Adoption Act) governs the
adoption of Filipino children by:
(1) Foreign nationals, and
(2) Filipino citizens permanently residing abroad.
[Sec. 3 (a)]
If the court finds that the disclosure of the

information to a third person is necessary for security
reasons or for purposes connected with or arising out
of the adoption and will be for the best interests of
the adoptee, the court may, upon proper motion,
order the necessary information to be released,
restricting the purposes for which it may be used.
[Sec. 15, RA 8552]
WHEN ALLOWED
INTER-COUNTRY ADOPTION AS THE LAST RESORT;
INTEREST OF THE CHILD AS OBJECTIVE
BEST
The Inter-country Adoption Board (ICAB) shall

ensure that all possibilities for adoption of the child
under the Family Code (domestic adoption) have been
exhausted and that inter-country adoption is in the
best interest of the child [Sec. 7, RA 8043]
INSTANCES WHEN ADOPTION MAY BE RESCINDED

RESCISSION OF ADOPTION OF THE ADOPTEE
Who May File

(1) Adoptee who is over 18 years of age
(2) If the adoptee is a minor, with the assistance of
the DSWD
(3) If the adoptee is over 18 years of age but
incapacitated, by his guardian or counsel. [Sec. 19,
RA 8552]
FUNCTIONS OF THE RTC
(1) Filing of petition may be made with the Family

Court having jurisdiction over the place where the
child resides or may be found. [Sec. 28, AM 02-602 SC or AR Part II]
(2) Court shall determine whether or not petition is
sufficient in form and substance and a proper
case for inter-country adoption.
(3) Transmit the petition to the ICAB for appropriate
action.
Grounds: Committed by the adopter

(1) Repeated physical and verbal maltreatment
despite having undergone counseling
(2) Attempt on the life of the adoptee
(3) Sexual assault or violence
(4) Abandonment or failure to comply with parental
obligations.
Adoption, being in the best interests of the child,
shall not be subject to rescission by the adopter.
Writ of Habeas Corpus
However, the adopter may disinherit the adoptee

for causes provided in Article 919 of the Civil
Code. [Sec. 19, RA 8552]
Essentially a writ of inquiry, granted to test the right

under which a person is detained, and to relieve a
person if such restrain is illegal
Where to file: Family Court of the city or province

where the adoptee resides. [Sec. 20, AR]
Extends to all cases of illegal confinement or

detention by which any person is deprived of his
liberty, or by which the rightful custody of any person
is withheld from the person entitled thereto. [Sec. 1,
Rule 102]
When to file:
(1) Within 5 years after reaching age of majority
(2) If he was incompetent at the time of the
adoption, within 5 years after recovery from such
incompetency. [Sec. 21, AR]
Can only be suspended in cases of rebellion or

invasion and when public interest requires it (Art. III
Sec. 15)
Effects of Rescission of Adoption

(1) RESTORATION OF PARENTAL AUTHORITY to
original parent if adoptee is a minor.
(2) RECIPROCAL RIGHTS AND OBLIGATIONS of
adopter and adoptee are EXTINGUISHED.
(3) CANCELLATION of amended birth certificate and
RESTORE ORIGINAL.
(4) SUCCESSIONAL RIGHTS SHALL REVERT to its
status PRIOR TO ADOPTION, as of the date of
final judgment of rescission.
VITAL PURPOSES:
In General
(1) To obtain relief from illegal confinement
(2) To liberate those who may be imprisoned without
sufficient cause
(3) To deliver them from unlawful custody
[Villavicencio v. Lukban (1919)]
Prime specification of the application for a writ of
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SPECIAL PROCEEDINGS
habeas corpus is restraint of liberty. [Moncupa v.

Enrile (1986)]
NATURE
Not a suit between private parties, but an inquisition
by the government, at the suggestion and instance
of an individual, but still in the name and capacity of
the sovereign. [Alimpoos v. CA, 106 SCRA 159 (1981)]
In the case of minors

(1) Prosecuted for the purpose of determining the
right of custody of a child.
(2) Question of identity is relevant and material and
must be convincingly established. [Tijing v. CA
(2008)]
Proceedings in habeas corpus are separate and

distinct from the main case from which the
proceedings spring.
To resolve questions of custody of a minor

The underlying rationale is not the illegality of the
restraint but the right of custody. [Tijing v. CA (2001)]
Ex parte Bollman: the question whether one shall be

imprisoned is always distinct from the question of
whether the individual shall be convicted or
acquitted of the charge on which he is tried, and
therefore these questions are separate, and may be
decided in different courts [Herrera, citing 4 Cranch,
75, 101]
WHO MAY ISSUE THE WRIT

(1) The SC,CA, and RTC have concurrent jurisdiction
to issue WHC [Sec.2, Rule 102]
(2) Family courts have jurisdiction to hear petitions
for custody of minors and the issuance of the
WHC in relation to custody of minors
In the case of People v. Valte (1922), it was stated that

the writ of habeas corpus is not designed to interrupt
the orderly administration of the laws by a
competent court acting within the limits of its
jurisdiction, but is available only for the purpose
relieving from illegal restraint.
TEMPORARY RELEASE MAY CONSTITUTE

RESTRAINT -ELEMENTS
(a) Where a person continued to be unlawfully
denied one or more of his constitutional rights
(b) Where there is present denial of due process
(c) Where the restraint is not merely involuntary but
appear to be unnecessary
(d) Where a deprivation of freedom originally valid
has in light of subsequent developments become
arbitrary [Moncupa v. Enrile (1986)]
Proceedings on habeas corpus to obtain release from

custody under final judgment being in the nature of
collateral attack, the writ deals only with such radical
defects as render the proceeding or judgment
absolutely void, and cannot have the effect of
appeal, writ of error or certiorari, for the purpose of
reviewing mere error and irregularities in the
proceedings. [People v. Valte (1922)]
General Rule: Release of detained person, whether

permanent or temporary, makes the petition for
habeas corpus moot.
WHC MAY BE USED WITH WRIT OF CERTIORARI

FOR PURPOSES OF REVIEW
The two writs may be ancillary to each other where
necessary to give effect to the supervisory powers of
higher courts.
Exception:
(1) Doctrine of Constructive Restraint- Unless there
are restraints attached to his release which
precludes freedom of action in which case the
Court can still inquire into the nature of his
involuntary restraint
The essential object and purpose of
habeas corpus is to inquire into all
involuntary restraint. Any restraint
preclude freedom of action is
[Villavicencio v Lukban (1919)]
WHC reaches the body of the jurisdictional matters,

but not the record. Writ of certiorari reaches the
record but not the body [Galvez v. CA (1994)]
the writ of
manner of
which will
sufficient.
While generally, the WHC will not be granted when

there is an adequate remedy like writ of error,
appeal, or certiorari, it may still be available in
exceptional cases [Herrera, citing 39 C.J.S. Habeas
corpus 13, 486-488]
(2) Violation of freedom from threat by the apparent

threat to life, liberty and security of their person
from the following facts:
(a) Threat of killing their families if they tried to
escape
(b) Failure of the military to protect them from
abduction
(c) Failure of the military to conduct effective
investigation [Secretary of Justice v. Manalo]
WHC IS NOT THE PROPER REMEDY FOR THE

CORRECTION OF ERRORS OF FACT OR LAW
Exception: Error affects courts jurisdiction (making
the judgment void) [Herrera]
WHC does not lie where the petitioner has the
remedy of appeal or certiorari. [Galvez v. CA (1994)]
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SPECIAL PROCEEDINGS
WHC IS NOT PROPER:

(a) To assert or vindicate denial of right to bail
[Galvez v. CA (1994)]
(b) For correcting errors in appreciation of fact or law
[Sotto v. Director of Prisons (1962)]
CONTENTS OF THE RETURN

Made by the person or officer in whose custody the
prisoner is found:
(1) Whether he has or has not the party in his
custody or power, or under restraint
(2) If he has the party in his custody or power, or
under restraint, the authority and the true and
whole cause thereof, set forth at large, with a
copy of the writ, order execution, or other process,
if any, upon which the party is held
(3) If the party is in his custody or power or is
restrained by him, and is not produced,
particularly the nature and gravity of the sickness
or infirmity of such party by reason of which he
cannot, without danger, be bought before the
court or judge
(4) If he has had the party in his custody or power, or
under restraint, and has transferred such custody
or restraint to another, particularly to whom, at
what time, for what cause, and by what authority
such transfer was made. [Sec. 10, Rule 102]
WHC IS PROPER:
(a) Remedy for reviewing proceedings for deportation
of aliens [De Bisschop v. Galang, (1963)]
(b) Where the court has no jurisdiction to impose the
sentence [Banayo v. President of San Pablo, 2 Phil.
413 (1903)]
CONTENTS OF THE PETITION
Who May Apply
(1) The party for whose relief it is intended, or
(2) By some person on his behalf [Sec. 3, Rule 102]
Some person any person who has a legally justified
interest in the freedom of the person whose liberty is
restrained or who shows some authorization to make
the application [Velasco v. CA (1995)]
REQUISITES OF APPLICATION:
The return or statement shall be signed by the

person who makes it; and shall also be sworn by him
if the prisoner is not produced, and in all other cases,
unless the return is made and signed by a sworn
public officer in his official capacity. [Sec. 11, Rule 102]
(1) That the person in whose behalf the application is

made is imprisoned or restrained of his liberty
(2) The officer or name of the person by whom he is
so imprisoned or retrained or if both are unknown
or uncertain, such officer or person may be
described by an assumed appellation, and the
person who is served with the writ shall be
deemed the person intended
(3) The place where he is so imprisoned or
restrained, if known
(4) A copy of the commitment or cause of detention
of such person, if it can be procured without any
legal authority, such fact shall appear.
WHEN THE RETURN CONSIDERED EVIDENCE, AND WHEN

ONLY A PLEA
(a) When the prisoner is in custody under a warrant

of commitment in pursuance of law, the return
shall be considered prima facie evidence of the
cause of restraint.
(b) If he is restrained of his liberty by any alleged
private authority, the return shall be considered
only as a plea of the facts therein set forth, and
the party claiming the custody must prove such
facts. [Sec. 13, Rule 102]
PROCEDURE
(1) Application for the writ by petition [Sec. 3, Rule

102]
(2) Grant or disallowance by court or judge [Secs. 4 &
5, Rule 102]
(3) Clerk of Court issues the writ under the seal of
court (in case of emergency, by the judge himself)
[Sec. 5. Rule 105]
(4) Service:
(a) By whom: sheriff or other proper officer
(b) How: leaving the original with the person to
whom it is directed and preserving a copy on
which to make return
(c) To whom: officer in custody or any officer
(when in custody of person other than an
officer) [Sec. 7, Rule 105]
(5) Execution and return:
(a) Officer brings the person before the judge,
and
(b) Officer makes due return [Sec. 8, Rule 102]
DISTINGUISH PEREMPTORY WRIT FROM

PRELIMINARY CITATION
PRELIMINARY CITATION requires the respondent to
appear and show cause why the peremptory writ
should not be granted
unconditionally commands the
respondent to have the body of the detained person
before the court at a time and place therein specified
[Lee Yick Hon v. Collector of Customs, (1921)]
PEREMPTORY WRIT
WHEN WRIT NOT PROPER OR APPLICABLE

WHC will not issue where:
(1) The person alleged to be restrained of his liberty
is in custody of an officer
(2) Under process issued by the court or judge
(3) By virtue of a judgment or order of a court of
record
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SPECIAL PROCEEDINGS
(4) The Court or judge had jurisdiction to issue the

process, render the judgment or make the order.
[Sec. 4, Rule 102]
DISTINGUISHED FROM WRIT OF AMPARO AND
HABEAS DATA
The operative act is detention or restraint (whether or

not physical). If there is none, no WHC will issue
despite the possibility of respondent being liable to
civil, criminal, or administrative action.
See Annex B.
CUSTODY OF MINORS AND WRIT OF HABEAS

CORPUS IN RELATION TO CUSTODY OF MINORS
(A.M. NO. 03-04-04-SC)
Judicial discretion is exercised in the issuance of the

writ, and will not issue as a matter of course
[Eugenio, Sr. v. Velez (1990)]
APPLICABILITY
Applies to petitions for custody of minors and writs of

habeas corpus in relation thereto.
Improper arrest or lack of preliminary investigation is

not a valid ground for the issuance of WHC. The
proper remedy is a motion to quash the warrant of
arrest and/or information before the trial court
[Ilagan v. Enrile, 1985]
Rules of Court shall apply suppletorily. [Sec. 1]

PETITION FOR RIGHTFUL CUSTODY
Verified petition for the rightful custody of a minor

may be filed by any person claiming such right.
Posting of a bail is not a waiver of the right to

challenge the validity of the arrest, and therefore the
right to resort to WHC [Sec. 26, Revised Rules of
Criminal Procedure]
Party against whom it may be filed shall be

designated as the respondent. [Sec. 2]
A person discharged on bail is not entitled to WHC,

because such person is not imprisoned or restrained
of his liberty in such a way as to entitle him to the
WHC. [Tan Me Nio v. Collector of Customs, (1916)]
WHERE TO FILE
WHEN DISCHARGE NOT AUTHORIZED
CONTENTS:
Filed with the Family Court of the province or city

where the petitioner resides or where the minor may
be found. [Sec. 3]
DISCHARGE FROM CUSTODY WILL NOT BE ALLOWED IF:
(1) The personal circumstances of the petitioner and

of the respondent
(2) The name, age and present whereabouts of the
minor and his or her relationship to the petitioner
and the respondent
(3) The material operative facts constituting
deprivation of custody
(4) Such other matters which are relevant to the
custody of the minor [Sec. 4]
(1) Jurisdiction appears after the writ is allowed,

despite any informality or defect in the process,
judgment, or order.
(2) Person is charged with or convicted of an offense
in the Philippines
(3) Person is suffering imprisonment under lawful
judgment [Sec. 4, Rule 102]
(4) If it appears that the prisoner was lawfully
committed, and is plainly and specifically
charged in the warrant of commitment with an
offense punishable by death [Sec. 14, Rule 102]
(5) Even if the arrest of a person is illegal, due to
supervening events
(a) Issuance of a judicial process
[Sayo v. Chief of Police of Manila (1948)]
Verified and accompanied with a certificate against

forum shopping signed by the petitioner personally.
[Sec. 4]
If court is satisfied that the petition is sufficient in
form and substance, it shall direct the clerk of court
to issue summons, which shall be served together
with a copy of the petition personally on the
respondent. [Sec. 5]
Judicial process is defined as a writ, warrant,

subpoena, or other formal writing issued by
authority of law. [Malaloan v. CA (1994)]
ANSWER TO THE PETITION
(b) The filing before a trial court a complaint

which issued a hold departure order and
denied motion to dismiss and to grant bail
[Velasco v. CA(1995)]
General Rule: Motion to dismiss the petition is not

allowed. Any other ground that might warrant the
dismissal of the petition may be raised as an
affirmative defense in the answer.
(c) Filing of an information for the offense for

which the accused is detained bars the
availability of WHC [Velasco v. CA (1995)]
Exception: On the ground of lack of jurisdiction over

the subject matter or over the parties. [Sec. 6]
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Verified Answer Personally verified and filed within

5 days after service of summons. [Sec. 7]
the issue is not settled through mediation, the court

shall proceed with the pre-trial. [Sec. 12]
Case study upon the filing of the verified answer or

the expiration of the period to file it, the court may
order a social worker to make a case study of the
minor and the parties and to submit to the court at
least 3 days before pre-trial. [Sec. 8]
Ater an answer has been filed or after expiration of

the period to file it, the court may issue a provisional
order awarding custody of the minor to:
(1) Both parents jointly
(2) Either parent
(3) The grandparent, or if there are several
grandparents, the grandparent chosen by the
minor over 7 years of age and of sufficient
discernment
(4) The eldest brother or sister over 21 years of age
(5) The actual custodian of the minor over 21 years of
age
(6) Any other person or institution the court may
deem suitable. [Sec. 13]
MANDATORY PRE-TRIAL
Notice - 15 days after the filing of the answer or the

expiration of the period to file answer, the court shall
issue an order:
(1) Fixing a date for the pre-trial conference
(2) Directing the parties to file and serve their
respective pre-trial briefs
(3) Requiring the respondent to present the minor
before the court.
INTERIM RELIEFS
The notice of its order shall be served separately on

both the parties and their respective counsels. [Sec.
9]
Temporary visitation rights - court shall provide in its

order awarding provisional custody appropriate
visitation rights to the non-custodial parent or
parents.
Pre-trial brief contains the following:

(1) A statement of the willingness of the parties to
enter into agreements that may be allowed by
law, indicating its terms
(2) A concise statement of their respective claims
together with the applicable laws and authorities
(3) Admitted facts and proposed stipulations of facts
(4) The disputed factual and legal issues
(5) All the evidence to be presented
(6) The number and names of the witnesses and
their respective affidavits
(7) Such other matters as the court may require to be
included.
Unless the court finds said parent or parents unfit or

disqualified.
The temporary custodian shall give the court and
non custodial parent or parents at least 5 days'
notice of any plan to change the residence of the
minor or take him out of his residence for more than
3 days. [Sec. 15]
Hold Departure Order the minor child shall not be
brought out of the country without prior order from
the court while the petition is pending.
Failure to file the pre-trial brief or to comply with its

required contents has same effect as failure to
appear at the pre-trial. [Sec. 10]
If the petitioner fails to appear personally at the pretrial, the case shall be dismissed.
The Court, motu proprio or upon application under

oath, may issue ex parte a hold departure order,
addressed to the Bureau of Immigration and
Deportation (BID), directing it not to allow the
departure of the minor from the Philippines without
court permission.
Unless his counsel or a duly authorized

representative appears in court and proves a valid
excuse for the non-appearance of the petitioner.
[Sec. 11]
The Family Court issuing the hold departure order

shall furnish the DFA and the BID of the DOJ a copy
of the hold departure order within 24 hours from its
issuance.
If the respondent has filed his answer but fails to

appear at the pre-trial, the petitioner shall be
allowed to present his evidence ex parte. The Court
shall then render judgment on the basis of the
pleadings and the evidence thus presented. [Sec. 9]
The court may recall the hold departure order motu

proprio or upon verified motion of any of the parties
after summary hearing. [Sec. 16]
Protection Order (PO) - court may issue a PO
requiring any person:
(1) To stay away from the home, school, business, or
place of employment of the minor, other parent
or any other party, or from any other specific
place
At the pre-trial, the parties may agree on the custody

of the minor. If the parties fail to agree, the court
may refer the matter to a mediator who shall have 5
days to effect an agreement between the parties. If
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(2) To cease and desist from harassing, intimidating,

or threatening such minor or the other parent or
any person to whom custody of the minor is
awarded
(3) To refrain from acts or omission that create an
unreasonable risk to minor
(4) To permit a parent, or a party entitled to visitation
by a court order or a separation agreement, to
visit the minor at stated periods
(5) To permit a designated party to enter the
residence during a specified period of time in
order to take personal belongings not contested
in a proceeding pending with the Family Court
(6) To comply with such other orders as are
necessary for the protection of the minor. [Sec. 17]
refer the case to the Family Court as soon as its

presiding judge returns to duty.
Petition may also be filed with the appropriate
regular courts in places where there are no Family
Courts.
The petition may be filed with the SC, CA, or with any
of its members and shall be enforceable anywhere in
the Philippines. The writ may be made returnable to
a Family Court or to any regular court within the
region where the petitioner resides or where the
minor may be found for hearing and decision on the
merits.
Upon return of the writ, the court shall decide the
issue on custody of minors. [Sec. 20]
JUDGMENT
Court shall render judgment awarding the custody of

the minor to the proper party considering the best
interests of the minor.
Writ of Amparo
If both parties are unfit to have the care and custody

of the minor, the court may designate either the
paternal or maternal grandparent of the minor, or
his oldest brother or sister, or any reputable person
to take charge of such minor, or commit him to any
suitable home.
(a) Literally means to protect

(b) Came originally from Mexico and evolved into
many forms
(1) Amparo libertad for protection of personal
freedom
(2) Amparo contra leyes for judicial review of the
constitutionality of statutes
(3) Amaparo casacion judicial review of
constitutionality and legality of judicial
decisions
(4) Amparo agrario for protection of peasants
rights
Court may order either or both parents to give an

amount necessary for the support, maintenance and
education of the minor, irrespective of custodianship.
The court may also issue any order that is just and
reasonable permitting the parent who is deprived of
the care and custody of the minor to visit or have
temporary custody. [Sec. 18]
Appeal
Appeal from the decision shall be allowed, unless the
appellant has filed a motion for reconsideration or
new trial within 15 days from notice of judgment.
(c) AM No 7-9-12-SC (Rules on the Writ of Amparo)

[Amparo Rule] was promulgated by the Supreme
Court by virtue of the 1987 Constitution stating
that the SC has the power to [p]romulgate rules
concerning the protection and enforcement of
constitutional rights (Art VIII Sec. 5)
An aggrieved party may appeal from the decision by

filing a Notice of Appeal within 15 days from notice of
the denial of the motion for reconsideration or new
trial and serving a copy on the adverse parties. [Sec.
19]
Interpreted as the additional power to

promulgate rules to protect and enforce rights
guaranteed by the fundamental law of the land.
COVERAGE
WRIT OF HABEAS CORPUS IN RELATION TO

CUSTODY OF MINORS
A verified petition for a writ of habeas corpus
involving custody of minors filed with the Family
Court. The writ shall be enforceable within the
judicial region the Family Court belongs.
WRIT OF AMPARO
However, the petition may be filed with a regular

court in the absence of the presiding judge of the
Family Court provided that the regular court shall
The writ shall cover:

(1) Extralegal killings (killings committed without
due process of law) and
(2) Enforced disappearances [Sec. 1, Amparo Rule]
Remedy available to any person whose right to life,

liberty and security is violated or threatened with
violation by an unlawful act or omission of a public
official or employee, or of a private individual or
entity.
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degree of consanguinity or affinity, in default of

those mentioned in the preceding paragraph or
(4) Any concerned citizen, organization, association
or institution if there is no known member of the
immediate family or relative of the aggrieved
party.
Elements of Enforced Disappearance:

(a) An arrest, detention or abduction of a person by a
government official or organized groups or
private individuals acting with the direct or
indirect acquiescence of the government
(b) The refusal of the State to disclose the fate or
whereabouts of the person concerned or a refusal
to acknowledge the deprivation of liberty which
places such persons outside the protection of law
[Sec. of National Defense v. Manalo (2008)]
The filing of a petition by the aggrieved party

suspends the right of all other authorized parties to
file similar petitions. [Sec. 2]
RATIO FOR PREFERENCE
The writ applies only to the right to life, liberty and

security of persons and not the property.
(1) Necessary for the prevention of indiscriminate

and groundless filing of petitions for amparo
which may even prejudice the right to life, liberty
or security of the aggrieved party
(2) Untimely resort to the writ by a non-member of
the family may endanger the life of the
aggrieved party
Right to security as a guarantee of protection by

the government, is violated by the apparent threat to
the life, liberty and security of their person.
DISTINGUISH FROM WRIT OF HABEAS CORPUS
AND HABEAS DATA
See Annex C
WHERE TO FILE
(1) RTC where the threat, act or omission was

committed or any of its element occurred
(2) Sandiganbayanunlike the writ of habeas
corpus, because public officials and employees
will be respondents in amparo petitions
(3) Court of Appeals
(4) Supreme Court
(5) Any justice of such courts [Sec. 3]
DISTINGUISH WRIT OF AMPARO FROM SEARCH

WARRANT
Secretary of Defense v. Manalo (2008): The production
order under the Amparo Rule should not be
confused with a search warrant for law enforcement
under Article III, Section 2 of the 1987 Constitution.
May be filed on any day, including Saturdays,

Sundays, and holidays; from morning until evening.
The Constitutional provision is a protection of the

people from the unreasonable intrusion of the
government, not a protection of the government
from the demand of the people such as respondents.
CONTENTS
(1) The personal circumstances of the petitioner;

(2) The name and personal circumstances of the
respondent responsible for the threat, actor
omission or if the name is unknown or uncertain,
the respondent may be described by an assumed
appellation;
(3) The right to life, liberty and security of the
aggrieved party violated or threatened with
violation by an unlawful act or omission of the
respondent, and how such threat or violation is
committed with the attendant circumstances
detailed in supporting affidavits;
(4) The investigation conducted, if any, specifying the
names, the personal circumstances and
addresses of the investigating authority or
individuals, as well as the manner and conduct of
the investigation, together with any report;
(5) The actions and recourses taken by the petitioner
to determine the fate or whereabouts of the
aggrieved party and the identity of the person
responsible for the threat, act or omission; and
(6) The relief prayed for.
Instead, the Amparo production order may be

likened to the production of documents or things
under Section 1, Rule 27 of the Rules of Civil
Procedure i.e. Upon motion of any party showing
good cause therefor, the court in which an action is
pending may (a) order any party to produce and
permit the inspection and copying or photographing,
by or on behalf of the moving party, of any designated
documents, papers, books of accounts, letters,
photographs, objects or tangible things, not privileged,
which constitute or contain evidence material to any
matter involved in the action and which are in his
possession, custody or control...
WHO MAY FILE
(1) Aggrieved party
(2) Any member of the immediate family namely: the
spouse, children and parents of the aggrieved
party
(3) Any ascendant, descendant or collateral relative
of the aggrieved party within the fourth civil
May include a general prayer and equitable reliefs.
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Signed and verified [Sec. 5]
BUT: The court, justice, or judge may call for a

preliminary conference to simplify the issues and
determine the possibility of obtaining stipulations
and admissions from the parties. [Sec. 13]
No docket fees and other lawful fees. [Sec. 4]

CONTENTS OF RETURN
Upon the filing of the petition, the court shall order
the issuance of the writ.
PROHIBITED PLEADINGS AND MOTIONS
(1) Motion to dismiss

(2) Motion for extension of time to file return,
opposition, affidavit, position paper and other
pleadings
(3) Dilatory motion for postponement
(4) Motion for a bill of particulars
(5) Counterclaim or cross-claim
(6) Third-party complaint
(7) Reply
(8) Motion to declare respondent in default
(9) Intervention
(10) Memorandum
(11) Motion for reconsideration of interlocutory
orders or interim relief orders and
(12) Petition for certiorari, mandamus or prohibition
against any interlocutory order. [Sec. 11]
The respondent shall file a verified written return

together with supporting affidavits within 72 hours
after service of the writ.
CONTENTS:
(1) The lawful defenses to show that the respondent

did not violate or threaten with violation the right
to life, liberty and security of the aggrieved party,
through any act or omission
(2) The steps or actions taken by the respondent to
determine the fate or whereabouts of the
aggrieved party and the person responsible for
the threat, act or omission
(3) All relevant information in the possession of the
respondent pertaining to the threat, act or
omission against the aggrieved party and
(4) If the respondent is a public official or employee
the return shall further state the actions that
have been or will still be taken.
(5) The return shall also state matters relevant to the
investigation, its resolution and the prosecution
of the case.
Allows motion for new trial and petition for relief

from judgment
JUDGMENT
The court shall render judgment within ten (10) days

from the time of petition is submitted for decision.
ARCHIVING AND REVIVAL OF CASES
No general denial allowed. [Sec. 9]
If the case cannot proceed for valid cause, the court

shall not dismiss the petition but shall archive it. If
after the lapse of two (2) years from the notice of
archiving, the petition shall be dismissed for failure
to prosecute. [Sec. 20]
TO WHOM RETURNABLE
(1) If filed with RTC, returnable to RTC or any judge

(2) If filed with Sandiganbayan, CA or any justice,
returnable to such court or any justice or the RTC
where the threat, act or omission was committed
or any of its elements occurred.
(3) If filed with the SC, returnable to the SC or any
justice, or to the CA, SB or any of its justices, or
the RTC where the threat, act or omission was
committed or any of its elements occurred. [Sec.
3]
INSTITUTION OF SEPARATE ACTIONS

The Rule shall neither preclude the filing of separate
criminal, civil or administrative actions nor suspend
the filing of criminal, civil or administrative actions.
[Sec. 21]
But a claim for damages should instead be filed in a
proper civil action.
OMNIBUS WAIVER RULE
DEFENSES NOT PLEADED DEEMED WAIVED.
If the evidence so warrants, the amparo court may

refer the case to the Department of Justice for
criminal prosecution, because the amparo
proceeding is not criminal in nature and will not
determine the criminal guilt of the respondent.
All defenses shall be raised in the return, otherwise,

they shall be deemed waived. [Sec. 10]
EFFECT OF FAILURE TO FILE A RETURN
In case the respondent fails to file a return, the court,
justice or judge shall proceed to hear the petition ex
parte.
EFFECT OF FILING OF A CRIMINAL ACTION

When a criminal action has been commenced, NO
SEPARATE PETITION for the writ shall be filed.
PROCEDURE FOR HEARING ON THE WRIT

SUMMARY HEARING
Hearing on the petition shall be summary.
Reliefs under the writ shall be available by motion in

a criminal case.
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for the purpose of inspecting, measuring,

surveying, or photographing the property or any
relevant object or operation thereon.
Procedure under this Rule shall govern the

disposition of the reliefs available under the writ of
amparo. [Sec. 22]
The motion shall state in detail the place or

places to be inspected. It shall be supported by
affidavits or testimonies of witnesses having
personal
knowledge
of
the
enforced
disappearances or whereabouts of the aggrieved
party.
CONSOLIDATION
When a criminal action is filed subsequent to the
filing of a petition for the writ, the latter shall be
consolidated with the criminal action.
When a criminal action and a separate civil action
are filed subsequent to a petition for a writ of
amparo, the latter shall be consolidated with the
criminal action.
If the motion is opposed on the ground of

national security or of the privileged nature of the
information, the court, justice or judge may
conduct a hearing in chambers to determine the
merit of the opposition.
After consolidation, the procedure under this Rule

shall continue to apply to the disposition of the
reliefs on the petition. [Sec. 23]
The movant must show that the inspection order

is necessary to establish the right of the
aggrieved party alleged to be threatened or
violated.
Interim Reliefs Available to Petitioner and

Respondent
Upon filing of the petition or at any time before final
judgment
The inspection order shall specify the person or

persons authorized to make the inspection and
the date, time, place and manner of making the
inspection and may prescribe other conditions to
protect the constitutional rights of all parties.
The order shall expire five (5) days after the day of
its issuance, unless extended for justifiable
reasons. [Sec. 14(b)]
INTERIM
RELIEFS
AVAILABLE
TO
THE
PETITIONER
(1) TEMPORARY PROTECTION ORDER. The court,
justice or judge, upon motion or motu proprio,
may order that the petitioner or the aggrieved
party and any member of the immediate family
be protected in a government agency or by an
accredited person or private institution capable of
keeping and securing their safety.
If the
petitioner is an organization, association or
institution referred to in Section 3(c) of this Rule,
the protection may be extended to the officers
concerned.
(a) Requires hearing, may be availed of both the

petitioner and the respondent
(b) If the court, justice or judge gravely abuses his
or her discretion in issuing the inspection
order, the aggrieved party is not precluded
from filing a petition for certiorari with the
Supreme Court
(3) PRODUCTION ORDER. The court, justice or judge,
upon verified motion and after due hearing may
order any person in possession, custody or control
of any designated documents, papers, books,
accounts, letters, photographs, objects or
tangible things, or objects in digitized or
electronic form which constitute or contain
evidence relevant to the petition or the return, to
produce and permit their inspection, copying or
photographing by or on behalf of the movant.
The SC shall accredit the persons and private

institutions that shall extend temporary
protection to the petitioner or aggrieved party
and any member of the immediate family, in
accordance to the guidelines which it shall issue.
The accredited persons and private persons and
private institutions shall comply with the rules
and conditions that may be imposed by the court,
justice or judge. [Sec. 14(a)]
Different from the inspection and production
order in that the temporary protection order
and the witness protection order do not need a
verification and may be issued motu proprio or
ex parte.
Grounds for Opposition

(a) National security
(b) Privileged nature of the information
In which case the court, justice or judge may
conduct a hearing in chambers to determine the
merit of the opposition. [Sec. 14(c)]
(2) INSPECTION ORDER. The court, justice or judge

upon verified motion and after due hearing may
order any person in possession or control of a
designated land or other property, to permit entry
(i) Only granted upon motion and hearing

(ii) Not the same as search warrant for law
enforcement under Art. III, Sec. 2 of the
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Constitution since the latter is a protection of

the people from unreasonable intrusion of the
government, not a protection of the
government from the demand of the people
such as respondents
(iii) More similar to production of documents or
things under Sec. 1 Rule 27 of Rules of Civil
Procedure
evidence of the ordeal will come from the victims

themselves.
Their statements can be corroborated by other
evidence such as physical evidence left by the torture
or landmarks where detained.
(4) WITNESS PROTECTION ORDER. The court, justice or

judge, upon motion or motu proprio, may refer the
witnesses to
(a) The Department of Justice for admission to
the Witness Protection, Security and Benefit
Program.
(b) Other government agencies, or to accredited
persons or private institutions capable of
keeping and securing their safety. [Sec. 14(d)]
INTERIM
RELIEFS
AVAILABLE
RESPONDENT
(a) Inspection Order
(b) Production Order [Sec. 15]
TO
Change of Name and

Entries in the Civil Registry
DIFFERENCES UNDER THE APPLICABLE RULES
(RULE 103, RULE 108, RA 9048)
See Annex D
THE
GROUNDS FOR CHANGE OF NAME

See Annex D
JURISPRUDENCE
Laperal vs. Republic (1962): Legal separation is not a
ground for the female spouse to apply for a change
of name under Rule 103.
REQUISITES
(1) Verified motion of the respondent

(2) Due hearing
(3) Affidavits or testimonies of witnesses having
personal knowledge of the defenses of the
respondent. [Sec. 15]
No Yao Siong v. Republic (1966): The name that can

be changed is the name that appears in the civil
register, and not in the baptismal certificate or that
which the person is known in the community.
QUANTUM OF PROOF IN APPLICATION FOR

ISSUANCE OF WRIT: SUBSTANTIAL EVIDENCE
The parties shall establish their claims by substantial
evidence.
Ong Huan Tin v. Republic (1967): An alien may petition

for change of name but he must be domiciled in the
Philippines.
IF RESPONDENT IS A PUBLIC OFFICIAL OR EMPLOYEE
Oshito vs. Republic (1967): Verification is a formal, not

a jurisdictional, requirement. The lack of verification
is not a ground for dismissing the petition. However,
before setting the petition for hearing, the court
should have required the petitioner to have the
petition verified.
(a) Must prove that extraordinary diligence as

required as required by the applicable laws, rules
and regulations was observed in the performance
of duty.
(b) Cannot invoke the presumption that official duty
has been regularly performed to evade
responsibility or liability
Go Chiung Beng vs. Republic (1972): All aliases of the

applicant must be set forth in the petitions title.
Such defect is fatal, even if said aliases are contained
in the body of the petition.
IF RESPONDENT IS A PRIVATE INDIVIDUAL OR ENTITY
Must prove that ordinary diligence as required by

applicable laws, rules and regulations was observed
in the performance of duty. [Sec. 17]
Secan Kok vs. Republic (1973): A change of name

granted by the court affects only a petitioner. A
separate petition for change of name must be filed
for his/her spouse and children.
Sec. of Justice v. Manalo (supra): With the secret

nature of an enforced disappearance and the torture
perpetrated on the victim during detention, it
logically holds that much of the information and
Silverio vs. Republic (2007): A persons first name

cannot be changed on the ground of sex
reassignment. RA 9048 does not sanction a change
of first name on the ground of sex reassignment.
Before a person can legally change his given name,
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he must present proper or reasonable cause or any

compelling reason justifying such change. In
addition, he must show that he will be prejudiced by
the use of his true and official name. Silverio failed to
show, or even allege, any prejudice that he might
suffer as a result of using his true and official name.
Rather than avoiding confusion, changing
petitioners first name may only create grave
complications in the civil registry and the public
interest.
(1) he has properties which have to be taken cared of

or administered by a representative appointed by
the Court [Article 384, Civil Code];
(2) the spouse of the absentee is asking for
separation of property [Article 191, Civil Code]; or
(3) his wife is asking the Court that the
administration of an classes of property in the
marriage be transferred to her [Article 196, Civil
Code].
General Rule: No independent action for declaration
of presumption of death [Nicolai v. Szatrow, 1948)]
No law allows the change of entry in the birth

certificate as to sex on the ground of sex
reassignment. RA 9048 only allows correction of
clerical or typographical errors. A correction in the
civil registry involving the change of sex is not a mere
clerical or typographical error. The birth certificate of
petitioner contained no error. All entries therein,
including those corresponding to his first name and
sex, were all correct. No correction is necessary.
Exception: For purpose of contracting a second

marriage [Article 41, Family Code]
WHO MAY FILE; WHEN TO FILE
Petition for Appointment of a Representative [PAR]
to provisionally represent absentee
When a person:
(1) Disappears from his domicile, his whereabouts
being unknown
(2) Has not left an agent to administer his property or
the power conferred upon the agent has expired.
[Sec. 1, Rule 107]
People vs. Cagandahan (2008): Intersexuality is a

valid ground for change of name and change of entry
of sex in the civil registry. Where the person is
biologically or naturally intersex the determining
factor in his gender classification would be what the
individual, having reached the age of majority, with
good reason, thinks of his sex. Sexual development
in cases of intersex persons makes the gender
classification at birth inconclusive. It is at maturity
that the gender of such persons is fixed.
Who may file PAR

(1) Any interested party
(2) Relative
(3) Friend [Sec. 1, Rule 107]
Petition for Declaration of Absence and Appointment
of Trustee or Administrator [PDA]
Failure to implead the local civil registrar as well as

all persons who have or claim any interest did not
render the petition fatally defective. Cagandahan
furnished the local civil registrar a copy of the
petition, the order to publish, and all pleadings,
orders or processes in the course of the proceedings.
There was therefore substantial compliance of the
provisions of Rules 103 and 108 of the Rules of Court.
Filed after 2 years:

(1) From the disappearance of and without any news
from the absentee OR
(2) Since the receipt of the last news about him.
Filed after 5 years, if the absentee left an
administrator of his property. [Sec. 2, Rule 107]
Who may file PDA and be appointed
(1) The spouse present
(2) The heirs instituted in a will, who may present an
authentic copy of the same
(3) The relatives who would succeed by the law of
intestacy
(4) Those who have over the property of the absentee
some right subordinated to the condition of his
death. [Sec. 2, Rule 107]
Absentees
PURPOSE OF THE RULE
In Re: Petition for Declaration of Absence of Roberto L.
Reyes (1986): The declaration of absence made in
accordance with the provisions of the Civil Code has
for its SOLE PURPOSE to enable the taking of the
necessary precautions for the administration of the
estate of the absentee.
WHEN TERMINATED
(1) Absentee appears personally or through an agent
(2) Absentees death is proved and heirs appear
(3) Third person appears, showing that he acquired
title over the property of the absentee
There is a need to have a person judicially declared

an absentee when:
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Entries in the Civil Registry
Under RA 9048, as amended by RA 10172:

CLERICAL or TYPOGRAPHICAL ERRORS
General Rule: Entry in a civil register shall be changed
or corrected with a judicial order.
ENTRIES SUBJECT TO CANCELLATION OR

CORRECTION UNDER RULE 108, IN RELATION TO
RA 9048
Under RULE 108: SUBSTANTIAL CHANGES in
entries in the civil registry, excluding name (governed
by Rule 103).
Exception:
(a) Clerical or typographical errors and
(b) Change of first name or nickname, the day and
month in the date of birth or sex of a person
where it is patently clear that there was a clerical
or typographical error or mistake in the entry,
which can be corrected or changed by the
concerned city or municipal civil registrar or
consul general in accordance with the provisions
of this Act and its implementing rules and
regulations. [Sec. 1, RA 9048, as amended]
SUBSTANTIAL CHANGE change that affects the civil
status, citizenship, or nationality of a party.

(1) Births
(2) Marriage
(3) Deaths
(4) Legal separations
(5) Judgments of annulments of marriage
(6) Judgments declaring marriages void from the
beginning
(7) Legitimations
(8) Adoptions
(9) Acknowledgments of natural children
(10) Naturalization
(11) Election, loss or recovery of citizenship
(12) Civil interdiction
(13) Judicial determination of filiation
(14) Voluntary emancipation of a minor
(15) Changes of name [Sec. 2, Rule 108]
Clerical or typographical error: A mistake committed

in the performance of clerical work in writing,
copying, transcribing or typing an entry in the civil
register that:
(1) Is harmless and innocuous.
(2) Is visible to the eyes or obvious to the
understanding (Patent)
(3) Can be corrected or changed only by reference to
other existing record or records
(4) Does not involve the change of nationality, age,
status or sex of the petitioner. [Sec. 2(3), RA 9048,
as amended]
Such changes have public interest implications and

must only be made upon approval of the Court.
Note: The procedure recited in Rule 103 regarding

change of name and in Rule 108 concerning the
cancellation or correction of entries in civil registry
are separate and distinct. They may not be
substituted one for the other. If both reliefs are to be
sought in the same proceedings all the requirements
of Rule 103 and 108 must be complied with.
[Republic v. Valencia (1986)]
Cancellation or correction of substantial errors is

allowed provided proceeding is adversary. [Chiao Ben
Lim v. Zosa (2004)]
APPROPRIATE ADVERSARY PROCEEDING
One where the trial court has conducted proceedings

where all relevant facts have been fully and properly
developed, where opposing counsel have been given
opportunity to demolish the opposite partys case,
and where the evidence has been thoroughly
weighed and considered. [Elosida v. Local Civil
Registrar of Quezon City (2002)]
PROCEDURAL
PROCEEDING
REQUIREMENTS
OF
AN
Appeals in Special
Proceeding
ADVERSARY
JUDGMENTS AND ORDERS FOR WHICH APPEAL

MAY BE TAKEN
(1) If it allows or disallows a will
(2) If it wholly determines who are the lawful heirs or
the distributive shares
(3) If it wholly or partially allows or disallows a claim
against a decedents estate, or any claim
presented on the decedents estate, or any claim
presented on the estates behalf on offset to
claim against it
(a) Parties Civil registrar and all persons who have

or claim any interest which would be affected are
made parties [Sec. 3, Rule 108]
(b) Notice and publication Reasonable notice to be
given to the persons named in the petition, and
publication once a week for 3 consecutive weeks
[Sec. 4, Rule 108]
(c) Opposition 15 days from notice of petition, or
from last date of publication of notice [Sec. 5,
Rule 109]
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(4) If
it
settles
the
account
of
an
executor/administrator/trustee/guardian
(5) If it constitutes a final determination in the lower
court of the rights of the party appealing in
proceedings relating to estate settlement or
administration of a trustee/guardian
controversy/appeal be distributed, upon compliance

with Rule 90. [Sec. 2, Rule 109]
Exception: Appointment of a special

administrator is not appealable
Remedy: Petition for certiorari under Rule 65, if
there is grave abuse of discretion.
(6) If it is the final order/judgment rendered in the
case, and affects the substantial rights of the
person appealing [Sec. 1, Rule 109]
Exception: Orders granting/denying a MFR/MNT
While some of the items in Rule 109. Sec. 1 may be
considered as interlocutory under ordinary special
actions, the nature of special proceedings declares
them as appealable as exceptions to Rule 41, Sec. 1.
WHEN TO APPEAL
In a special proceeding, the period of appeal is 30
days. [Sec. 3, Rule 41]
The appeal period may be interrupted by the filing of
an MFR/MNT. Once the appeal period expires
without an appeal/MF/MNT, the order becomes
final.[Sec. 3, Rule 41]
However, habeas corpus, amparo and habeas data
cases have different periods of appeal. See Annex C
MODES OF APPEAL
NOTICE and RECORD ON APPEAL REQUIRED. [Sec.
3, Rule 41]
Rule 109 contemplates multiple appeals during the
pendency of special proceedings. A record on appeal
in addition to the notice of appeal is thus
required to be filed as the original records of the case
should remain with the trial court to enable the rest
of the case to proceed in the event that a separate
and distinct issue is resolved by said court and held
to be final. However, a record on appeal is not
necessary where no other matter remained to be
heard and determined by the trial court after it
issued the appealed order granting the petition for
cancellation of birth record and change of surname
in the civil registry. [Republic v. Nishina (2010)]
RULE ON ADVANCE DISTRIBUTION
Notwithstanding a pending controversy/appeal in
estate settlement proceedings, the court may permit
that the estates parts which are not affected by the
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ANNEX A
Domestic Adoption (RA 8552)
Intercountry Adoption (RA 8043)

Governing Body
DSWD
Inter-country Adoption Board (ICAB)

When may adoption be resorted to
Adoption need not be the last resort
Adoption only as last resort: No child shall be

matched to a foreign adoptive family unless it is
satisfactorily shown that the child cannot be adopted
locally [Sec.11]
Who may adopt
(1) Any FILIPINO CITIZEN (regardless of where (1) FILIPINO CITIZEN permanently residing abroad
residing)
may file an application for inter-country adoption of a
(a) of legal age,
Filipino child if he/she:
(b) at least sixteen (16) years older than the
(a) is at least twenty-seven (27) years of age
adoptee, (may be waived when the adopter is
(b) at least sixteen (16) years older than the child
the biological parent of the adoptee, or is the
to be adopted, at the time of application
spouse of the adoptee's parent)
unless the adopter is the parent by nature of
(c) in possession of full civil capacity and legal
the child to be adopted or the spouse of such
rights,
parent:
(d) of good moral character, has not been
(c) has the capacity to act and assume all rights
convicted of any crime involving moral
and responsibilities of parental authority under
turpitude, emotionally and psychologically
his national laws, and has undergone the
capable of caring for children,
appropriate counseling from an accredited
(e) who is in a position to support and care for
counselor in his/her country;
his/her children in keeping with the means of
(d) has not been convicted of a crime involving
the family.
moral turpitude;
(e) is in a position to provide the proper care and
(2) Any ALIEN possessing the same qualifications as
support and to give the necessary moral values
above stated for Filipino nationals: Provided,
and example to all his children, including the
(a) that he/she has been living in the Philippines
child to be adopted
for at least three (3) continuous years prior to
(f) if married, his/her spouse must jointly file for
the filing of the application for adoption and
the adoption;
maintains such residence until the adoption
(g) is eligible to adopt under his/her national law;
decree is entered,
(h) agrees to uphold the basic rights of the child
(b) that his/her country has diplomatic relations
as embodied under Philippine laws, the U.N.
with the Republic of the Philippines,
Convention on the Rights of the Child, and to
(c) he/she has been certified by his/her diplomatic
abide by the rules and regulations issued to
or consular office or any appropriate
implement the provisions of this Act;
government agency that he/she has the legal
(i) comes from a country with whom the
capacity to adopt in his/her country, and
Philippines has diplomatic relations and
(d) that his/her government allows the adoptee to
whose government maintains a similarly
enter his/her country as his/her adopted
authorized and accredited agency and that
son/daughter;
adoption is allowed under his/her national
(e) that the requirements on residency and
laws;
certification of the alien's qualification to adopt
(j) possesses all the qualifications and none of the
in his/her country may be waived for the
disqualifications provided herein and in other
following:
applicable Philippine laws. [Sec. 9]
(i) a former Filipino citizen who seeks to adopt (2) ALIEN with above qualifications [Sec. 9]
a relative within the fourth (4th) degree of
consanguinity or affinity; or
(ii) one who seeks to adopt the legitimate
son/daughter of his/her Filipino spouse; or
(iii) one who is married to a Filipino citizen and
seeks to adopt jointly with his/her spouse a
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relative within the fourth (4th) degree of

consanguinity or affinity of the Filipino
spouse; or
(3) The GUARDIAN with respect to the ward after the
termination of the guardianship and clearance of
his/her financial accountabilities. [Sec. 7]
When 16 year difference may be waived:
(a) If adopter is the biological parent of adoptee
(b) If adopter is the spouse of adoptees parent
[Sec. 7]
Who may be adopted
(a) Any person below eighteen (18) years of age who
has been administratively or judicially declared
available for adoption;
(b) The legitimate son/daughter of one spouse by the
other spouse;
(c) An illegitimate son/daughter by a qualified
adopter to improve his/her status to that of
legitimacy;
(d) A person of legal age if, prior to the adoption, said
person has been consistently considered and
treated by the adopter(s) as his/her own child
since minority;
(e) A child whose adoption has been previously
rescinded; or
(f) A child whose biological or adoptive parent(s) has
died: Provided, That no proceedings shall be
initiated within six (6) months from the time of
death of said parent(s). Sec. 8
(a) Filipino children [Sec. 3(a)]

(b) Below 15 years of age [Sec. 3(b)]
(c) Who are legally free, meaning children who have
been voluntarily or involuntarily committed to the
DSWD [Sec. 3(f) and Sec. 8]
IRR of 2004 adds that: Any child who has been
voluntarily or involuntarily committed to the
Department as dependent, abandoned or neglected
pursuant to the provisions of the Child and Youth
Welfare Code may be the subject of Inter-Country
Adoption xxx [Sec. 26]
Venue
Petition for adoption shall be filed with Family Court Either with the Philippine RTC having jurisdiction over
of the province or city where the prospective adoptive the child, or with the Inter-country Board through an
parents reside [Sec. 6, Adoption Rule]
intermediate agency, in the country of the adoptive
parents [Sec. 10]
IRR of 2004 provides: Application shall be filed with
the Board or the Central Authority or the Foreign
Adoption Agency in the country where the applicant
resides. In case of foreign nationals who file petition
for adoption under RA 8552 or Domestic Adoption
Law, the Court after finding petition to be sufficient in
form and substance and proper case for inter-country
adoption shall immediately transmit the petition to
the board for appropriate action. (Sec. 30)
Trial Custody
Takes place in the Philippines
Where adoptive parents reside [Sec. 14]

Rescission
Only upon petition of adoptee, never by adopters. No provision limiting act of rescission only to adoptee.
However, the adopter may disinherit the adoptee. In IRR, the procedure is provided for when adoption
[Sec. 19]
process is terminated:
SECTION 47. DISRUPTION AND TERMINATION OF
PLACEMENT. - In the event of serious damage in the
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relationship between the child and the applicant/s
where the continued placement of the child is not in
his/her best interests, the Central Authority and/or
the FAA shall take the necessary measures to protect
the child, in particular, to cause the child to be
withdrawn from the applicant/s and to arrange for
his/her temporary care.
The Central Authority and/or FAA shall exhaust all
means to remove the cause of the unsatisfactory
relationship which impedes or prevents the creation of
a mutually satisfactory adoptive relationship. A
complete report should be immediately forwarded to
the Board with actions taken as well as
recommendations and appropriate plans. Based on
the report, the Board may terminate the pre-adoptive
relationship.
SEC. 48. NEW PLACEMENT FOR CHILD. - In the
event of termination of the pre-adoptive relationship,
the Board shall identify from the Roster of Approved
Applicants a suitable family with whom to place the
child. The Central Authority and/or the FAA may also
propose a replacement family whose application shall
be filed for the approval of the Board. No adoption
shall take place until after the Board has approved
the application of such replacement family.
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ANNEX B
RULE ON CUSTODY AND HABEAS CORPUS FOR
MINORS (A.M. 03-04-04)
HABEAS CORPUS (RULE 102)
Rights involved
Right to liberty
Rightful custody of the aggrieved party
Petition for the rightful custody of a minor

Situations applicable
Actual violation of the aggrieved partys right to Unlawful deprivation of rightful custody, or
liberty, or rightful custody [Sec. 1]
A minor is being kept from a parent by the other
parent (e.g. which parent shall have the care and
custody of a minor, when such parent is in the midst
of nullity or legal separation proceedings). [Herrera.
Also Secs. 2 & 20]
Party authorized to file
Party for whose relief it is intended or by some person Any person claiming rightful custody this covers:
in his behalf [Sec. 1]
(1) Unlawful deprivation of the custody of a minor
(2) Which parent shall have the care and custody of a
minor [Herrera]
Respondents
May or may not be an officer
Before which court or judicial authority filed
(1) RTC or any judge thereof
(2) CA or any member thereof in instances authorized
by law
(3) SC or any member thereof [Sec. 2]
(4) Special jurisdiction given to first level courts in the
absence of RTC judges in a province or city (Sec. 35,
BP 129)
(5) In aid of appellate jurisdiction of the
Sandiganbayan (RA 8249 further expanding its
jurisdiction)
A verified petition for a writ of habeas corpus involving

custody of minors shall be filed with the Family Court.
The writ shall be enforceable within its judicial region
to which the Family Court belongs.
However, the petition may be filed with the regular
court in the absence of the presiding judge of the
Family Court, provided, however, that the regular
court shall refer the case to the Family Court as soon
as its presiding judge returns to duty.
The petition may also be filed with the appropriate
regular courts in places where there are no Family
Courts. [Sec. 20]
Contents of the petition

Signed, verified either by the party for whose relief it is
intended, or by some person in his behalf and shall
set forth: (PDIC)
(1) That the person in whose behalf the application is
made is imprisoned or restrained on his liberty;
(2) The officer or name of the person by whom he is so
imprisoned or restrained or, if both are unknown or
uncertain, such officer or person may be described by
an assumed appellation, and the person who is served
with the writ shall be deemed the person intended;
(3) The place where he is so imprisoned or restrained,
if known;
(4) A copy of the commitment or cause of detention of
such person, if it can be procured without impairing
the efficiency of the remedy or, if the imprisonment or
restraint is without any legal authority, such fact shall
appear. [Sec. 3]
The verified petition shall allege the following:

(PRMO)
(1) The personal circumstances of the petitioner and of
the respondent
(2) The name, age and present whereabouts of the
minor and his or her relationship to the petitioner and
the respondent
(3) The material operative facts constituting
deprivation of custody and
(4) Such other matters which are relevant to the
custody of the minor.
The verified petition shall be accompanied by a
certificate against forum shopping, which the
petitioner must sign personally. [Sec. 4]
PAGE 282
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ANNEX C
WRIT MATRIX (COMPARISON OF THE WRITS)
WHC Writ of Habeas Corpus

WD Writ of Habeas Data
RWD Rules on Habeas Data
CA - Court of Appeals
RTC Regional Trial Court
Habeas Corpus
WA Writ of Amparo
RWA - Rules on the Writ of Amparo
SC Supreme Court
SB Sandiganbayan
CoC Clerk of Court
Amparo
Habeas Data
Nature, scope, function

All cases of illegal confinement and
detention which any person is
deprived of his liberty or rightful
custody of any person is withheld
from the person entitled [Sec. 1]
Involves right to life, liberty and

security violated or threatened with
violation by an unlawful act or
omission of a public official or
employee or a private individual or
entity.
Involves the right to privacy in life,

liberty or security violated or
threatened by an unlawful act or
omission of a public official or
employee, or of a private individual or
entity engaged in the gathering,
Actual violation before writ issues.
collecting or storing of data or
Note Villavicencio v. Lukban on It covers extralegal killings and information regarding the person,
applicability of the writ in case of enforced disappearances or threats family, home and correspondence of
constructive restraint.
thereof. [Sec. 1]
the aggrieved party. [Sec. 1]
Limitations
May be suspended in cases of Shall not diminish, increase or modify Shall not diminish, increase or modify
invasion or rebellion when public substantive rights [Sec. 23]
substantive rights [Sec. 23]
safety requires it [Art. III Sec. 15, 1987
Const.]
Who may file
By a petition signed and verified by
the party for whose relief it is
intended, or by some person on his
behalf [Sec. 3]
Petition filed by the aggrieved party

or by any qualified person or entity in
the following order:
(1) Any member of the immediate
family
(2) Any ascendant, descendant or
collateral
relative
of
the
aggrieved within the 4th civil
degree of consanguinity or
affinity
(3)
Any
concerned
citizen,
organization, association or
institution
Any aggrieved party may file a

petition for the WHD
However, in cases of extralegal
killings and enforced disappearances,
the petition may be filed by (also
successive):
(1) Any member of the immediate
family of the aggrieved
(2) Any ascendant, descendant or
collateral relative of the aggrieved
party within the fourth civil degree
of consanguinity or affinity [Sec.
2]
Filing by the aggrieved suspends the

right of all others [Sec. 2]
Where filed
Granted by:
Filed on any day and at any time:
(1) SC or any member thereof, on any (1) SB, CA, SC, or any justice of such
day and at any time
courts
(2) CA or any member thereof in (2) RTC of place where the threat,
instances authorized by law
act, or omission was committed or
(3) RTC or a judge thereof, on any
any element occurred [Sec. 4]
day and at any time, enforceable
only within his judicial district
PAGE 283
Petition may be filed with RTC where

the petitioner or respondent resides
or that which has jurisdiction over the
place where the data or information
is gathered, collected or stored, at
the option of petitioner
If public data files of government
offices, petition shall be filed with the
UP COLLEGE OF LAW
SPECIAL PROCEEDINGS
Habeas Corpus
Habeas Data
Amparo
[Sec. 2]
(4) MTC OR FIRST LEVEL COURTS in
the absence of RTC judges in a
judicial region [Sec. 35 BP 129]
SC, CA, or SB [Sec. 3]
Where enforceable
If SC or CA issued, anywhere in the Writ shall be enforceable anywhere in Writ shall be enforceable anywhere in
Philippines
the Philippines [Sec. 4]
the Philippines [Sec. 3]
If granted by the RTC or judge
thereof, it is enforceable in any part
of the judicial region [Sec 21, BP 129
which modified the term judicial
district in Sec 2, Rule 102 into judicial
region] where the judge sits
Where returnable
If the one that granted the writ:
If the one that granted the writ:
(1) Is the SC or CA, or a member (1) Is the SC or any of its justices,
thereof, returnable before such
returnable before such court or
court or any member thereof or an
any justice thereof, or before the
RTC
SB or CA or any of their justices, or
(2) An RTC, or a judge thereof,
to any RTC of the place where the
returnable before himself [Sec. 2]
threat, act or omission was
committed or any of its elements
occurred
(2) The SB or CA or any of their
justices, returnable before such
court or any justice thereof, or to
any RTC of the place where the
threat, act, or omission was
committed or any of its elements
occurred
(3) The RTC or any judge thereof,
returnable before such court or
judge [Sec. 3]
If issued by:
(1) The SC or any of its justices,
before such Court or any justice
thereof, or CA or SB or any of its
justices, or the RTC of the place
where
the
petitioner
or
respondent
resides/has
jurisdiction over the place where
the data or information is
gathered, stored or collected
(2) The CA or SB or any of its justices,
before such court or any justice
thereof, or the RTC (same with
scenario: SC issued and then
returned in RTC)
(3) RTC, returnable before such court
or judge [Sec. 4]
Docket Fees
Upon the final disposition of such Petitioner shall be exempted from
proceedings the court or judge shall the payment of the docket and other
make such order as to costs as the lawful fees
case requires [Sec. 19]
Court, justice or judge shall docket
the petition and act upon it
immediately [Sec 4]
None for indigent petitioner

Petition shall be docketed and acted
upon immediately, without prejudice
to subsequent submission of proof of
indigency not later than 15 days from
filing [Sec. 5]
Essential allegations/ Contents of petition

Signed and verified either by the
party for whose relief it is intended or
by some person on his behalf, setting
forth:
(1) The person in whose behalf whose
the application is made is
imprisoned or restrained of his
liberty
(2) Name of the person detaining
Signed and verified and shall allege:

(1) The personal circumstances of the
petitioner
(2) Name or appellation and
circumstances of the respondent
(3) The right to life, liberty, and
security violated or threatened
with violation,
(4) The investigation conducted, if
PAGE 284
Verified and written petition shall

contain:
(1) Personal circumstances of
petitioner and respondent
(2) Manner the right to privacy is
violated or threatened and its
effects
(3) Actions and recourses taken by
the petitioner to secure the data
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Habeas Corpus
SPECIAL PROCEEDINGS
Amparo
Habeas Data
another or assumed appellation

any, plus circumstances of each
or information
(3) Place where he is imprisoned or (5) The actions and recourses taken (4) The location of the files, registers,
restrained of his liberty
by the petitioner
or databases, the government
(4) Cause of detention [Sec. 3]
(6) Relief prayed for may include a
office, and the person in charge or
general prayer for other just and
control
equitable reliefs [Sec. 5]
(5) The reliefs prayed for Such other
relevant reliefs as are just and
equitable [Sec. 6]
When proper
Court or judge must, when a petition
is presented and it appears that it
ought to issue, grant the same and
then:
the clerk of court (CoC) shall issue
the writ under the seal of the court or
in case of emergency, the judge may
issue the writ under his own hand,
and may depute any officer or person
to serve it
Upon the filing of the petition, the

court, justice, or judge shall
immediately order the issuance of the
writ if on its face it ought to issue
CoC shall issue the writ under the
seal of the court or
In case of urgent necessity, the justice

or the judge may issue the writ under
his or her own hand, and may
deputize any officer or person to
Also proper to be issued when the serve it. [Sec. 6]
court or judge has examined into the
cause of restraint of the prisoner, and
is satisfied that he is unlawfully
imprisoned (Sec. 5]
Upon filing of the petition, the court,

justice, or judge shall immediately
order the issuance of the writ if on its
face it ought to issue.
CoC shall issue the writ under the
seal of the court and cause it to be
served within 3 days from issuance or
In case of urgent necessity, the justice
or judge may issue the writ under his
or her own hand, and may deputize
any officer or person to serve it [Sec.
7]
How and who serves

Writ may be served in any province by
the (a) sheriff, (b) other proper officer,
or (c) person deputed by the court or
judge
The writ shall be served upon the

respondent by a judicial officer or by
a person deputized by the court,
justice or judge who shall retain a
copy on which to make a return of
Service is made by leaving the service
original with the person to whom it is
directed and preserving a copy on In case the writ cannot be served
which to make return of service
personally on the respondent, the
rules on substituted service shall
If that person cannot be found, or has apply [Sec. 8]
not the prisoner in his custody,
service shall be made on any other
person having or exercising such
custody [Sec. 7]
The writ shall be served upon the

respondent by a judicial officer or by
a person deputized by the court,
justice or judge who shall retain a
copy on which to make a return of
service
In case the writ cannot be served
personally on the respondent, the
rules on substituted service shall
apply [Sec. 9]
Respondent
May or may not be an officer [Sec. 6] Respondent is a public official or A public official or employee or a
employee or private individual or private individual or entity engaged in
entity [Sec. 1]
gathering, collecting or storing data
[Sec. 1]
How executed and returned
The officer to whom the writ is Respondent files the return [Sec. 9]
directed shall convey the person so
imprisoned or restrained before:
(a) the judge allowing the writ, or
(b) -in his absence or disability,
PAGE 285
Respondent files the return [Sec. 10]
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Habeas Corpus
SPECIAL PROCEEDINGS
Amparo
Habeas Data
before some other judge of the

same court on the day specified in
the writ, unless person directed to
be produced is sick or infirm, and
cannot, without danger, be
brought therein
(c) officer shall then make due return
of the writ, with the day and cause
of the caption and restraint
according to the command
thereof [Sec. 8]
When to file return
On the day specified on the writ [Sec. Within 5 working days after service of Same with WA [Sec. 10]
8]
the writ [Sec. 9]
Contents of return
When the person to be produced is
imprisoned or restrained by an
officer, the person who makes the
return shall state, and in other cases
the person in whose custody the
prisoner is found shall state in writing
to the court or judge before whom
the writ is returnable:
(1) Truth of custody/power over the
aggrieved party
(2) If he has custody or power, or
under restraint, the authority and
the cause thereof, with a copy of
the writ, order, execution or other
process, if any upon which the
party is held
(3) If the party is in his custody or
power, and is not produced,
particularly the nature and gravity
of the sickness or infirmity
(4) If he has had the party in his
custody or power, and has
transferred such custody or
restraint to another, particularly
to whom, at what time, for what
cause, and by what authority such
transfer was made. [Sec. 10]
Within 5 working days after service of

the writ, the respondent shall file a
verified written return together with
supporting affidavits which shall,
contain:
(1) Lawful defenses
(2) The steps or actions taken to
determine
the
fate
or
whereabouts of the aggrieved
party
(3) All relevant information in the
possession of the respondent
pertaining to the threat, act or
omission against the aggrieved
party
(4) If the respondent is a public
official or employee, the return
shall further state acts:
(a) To verify identity of aggrieved
party
(b) To recover and preserve
evidence
(c) To identify and collect witness
statements
(d) To determine cause, manner,
location, and time of death or
disappearance
(e) To identify and apprehend
persons involved
(f) Bring suspected offenders
before a competent court
[Sec.9]
(1) Lawful defenses such as national

security, state secrets, privileged
communications, confidentiality
of the source of information of
media etc.
(2) In case of respondent in charge, in
possession or in control of the
data or information subject of the
petition:
(a) A disclosure of the data or
information
about
the
petitioner, the nature of such
data or information, and the
purpose for its collection
(b) The steps or actions taken by
the respondent to ensure the
security and confidentiality of
the data or information
(c) The currency and accuracy of
the data or information held
Other allegations relevant to the
resolution of the proceeding [Sec.10]
Is period of return extendable?

No, not even on highly meritorious Yes, by the court, for justifiable
grounds.
reasons [Sec. 10]
Is a general denial allowed?
Not allowed [Sec. 9]
PAGE 286
Not allowed [Sec. 10]
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Habeas Corpus
SPECIAL PROCEEDINGS
Amparo
Habeas Data
Defenses not pleaded

If not raised in return deemed waived
[Sec 10]
Effect of failure to file return
Court or justice shall proceed to hear Court, judge, or justice shall hear the
the petition ex parte [Sec. 12]
motion ex parte, granting the
petitioner such reliefs as the petition
may warrant
Unless the court in its discretion
requires the petitioner to submit
evidence [Sec. 14]
Nature of Hearing
Summary.
However, the court,
justice, or judge may call for a
preliminary conference to simplify the
issues and look at possibility of
obtaining
stipulations
and
admissions from the parties.
Summary.
With possibility of
preliminary conference similar to the
WA [Sec. 14]
Hearing on chambers may be

conducted where respondent invokes
the defense of national security or
Hearing shall be from day to day until state secrets, or the data is of
completed same priority as petitions privileged character [Sec. 12]
for WHC [Sec. 13]
Date and time of hearing
As specified in the writ [Sec. 8]
As specified in the writ, not later than As specified in the writ, not later than
7 days from the issuance of the writ 10 working days from the date of
[Sec. 6]
issuance writ [Sec. 7]
Prohibited pleadings
In custody of minors: a motion to

dismiss, except on the ground of lack
of jurisdiction [Sec. 6, Rule on
Custody of Minors and WHC]
Motion to dismiss, Motion for Same as WA [RWD Sec. 13]

extension of time to file opposition,
affidavit, position paper and other
pleadings, Dilatory motion for
postponement, Motion for bill of
particulars, Counterclaims or crossclaims, Third-party complaint, Reply,
Motion to declare respondent in
default, Intervention, Memorandum,
Motion for reconsideration of
interlocutory orders or interim relief
orders, petition for certiorari,
mandamus, or prohibition [Sec.11]
Burden of Proof/Standard of Diligence
Clear and convincing evidence [Dizon Establish claims by substantial Substantial evidence required to
v. Eduardo (1988)]
evidence
prove the allegations in the petition
(a) if respondent is a private [Sec. 16]
Note: no provision in Rule but in
individual or
entity, ordinary
Dizon v. Eduardo, the SC used clear
diligence
and convincing evidence, a stricter (b) if public official or employee,
standard than preponderance of
extraordinary diligence [Sec. 17]
evidence but less stricter that proof
PAGE 287
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Habeas Corpus
SPECIAL PROCEEDINGS
Amparo
Habeas Data
beyond reasonable doubt.

Presumption of Official duty
Yes. Consonant with Sec. 13, stating
that if warrant of commitment is in
pursuance with law, serves as prima
facie cause of restraint
Public official or employee cannot

invoke the presumption that official
duty has been regularly performed
[Sec. 17]
Judgment
The court shall render judgment Within 10 days from the time the
within 10 days from the time the petition is submitted for decision
petition
is
submitted
for [Sec. 16]
decision [Sec. 18]
Appeal
Within 48 hours from notice of the 5 working days from the date of 5 working days from the date of
judgment of final order appealed notice of adverse judgment to the SC notice of adverse judgment to the SC
[Sec. 39, BP 129]
under Rule 45 [Sec. 19]
under Rule 45 [Sec. 19]
Consolidation of actions
Consolidated with a criminal action Consolidated with a criminal action
filed subsequent to the petition [Sec. filed subsequent to the petition [Sec.
23]
21]
Effect of filing criminal action
No more separate petition shall be Same as WA [Sec. 21]
filed. Reliefs available by motion in
the criminal case [Sec. 22]
PAGE 288
UP COLLEGE OF LAW
SPECIAL PROCEEDINGS
ANNEX D
Rule 103
Rule 108
RA 9048
Applicability
Substantial Changes
Substantial changes in entries in the Change of First Names or Nicknames

civil registry (other than name)
Change brought about by clerical or
typographical errors
Nature
Judicial
Judicial
Administrative
Who May File
1.The person desiring to change his Natural person having direct and A natural person having direct and
name
personal interest in the correction of personal interest in the change of
2.Some other person on his behalf
error in an entry in the civil register
first name or nickname in the civil
register.
Where Filed
A natural person having direct and RTC of the province where the civil The local civil registry office of the
personal interest in the change of registry is located
city or municipality where the record
first name or nickname in the civil
being
sought
to
be
register.
corrected/changed is kept.
EXCEPTIONS:
If the petitioner has already migrated
to another place in the country, the
petition shall be filed with local civil
registrar of the place where the
interested party is presently residing
or domiciled
If the petitioner is a Filipino citizen
presently residing or domiciled in a
foreign country, the petition shall be
filed in the nearest Philippine
Consulate.
Rationale: It would not be practical
for him, in terms of transportation
expenses, time and effort, to appear
in person before the local civil
registrar
(LCR)
keeping
the
documents to be corrected or
changed
Standing of the LCR
Not a party to the proceeding
Made a party to the proceeding as a

respondent
Notice requirement
No mention of notice to be sent
The court shall cause reasonable

notice to be given to persons named
in the petition
Contents of Petition
Title: In Re: Petition for Change of

Name of X, also known as Y and Z, to
(1) Facts necessary to establish the

merits of the petition.
PAGE 289
UP COLLEGE OF LAW
SPECIAL PROCEEDINGS
Rule 103
Rule 108
ABC. X, Petitioner.
RA 9048
(2) A showing that the petitioner is
competent to testify to the
matters stated.
(3) Particular erroneous entry or
entries which are sought to be
corrected and/or the change
sought to be made.
Names or Aliases of the Applicant

(must appear in the caption of the
petition)
Omission is fatal to the petition
To allow a reader of the published
petition to notice the said aliases
Petitioner has been a bona fide
resident of the province where the
petition is filed for at least 3 years
prior to the date of such filing.
Cause for which the change of the
petitioner's name is sought
Petitioner must show a proper or
compelling reason for the change of
name + the fact that he will be
prejudiced by the use of his official
name.
Form of Petition
The petition shall be signed and Verified petition
verified.
(1) In the form of an affidavit

(2) Verified
(3) Subscribed and sworn to before
any person authorized by law to
administer oaths
Procedure for Changing of Name

(1) Filing of petition for change of (1) Filing of petition
(1) Filing of petition and its
name.
supporting papers in 3 copies to
(2) Court shall promulgate an order
be distributed to:
(2) Court shall promulgate an order
fixing the time and place for
(a) The
concerned
city
or
fixing a date and place for hearing
hearing the petition and cause
municipal civil registrar or the
the petition. The date set for the
reasonable notice to be given to
consul general
hearing shall NOT be:
the persons named in the petition.
(b) The Office of the Civil
Within 30 days prior to an election
Registrar General
AND
Civil registrar and all persons who
(c) The petitioner
Within 4 months after the last
have or claim any interest which
publication of the notice.
would be affected thereby shall (2) The City or Municipal Registrar or
be made parties to the
the Consul General shall post the
(3) Court shall direct a copy of the
proceeding
petition in a conspicuous place for
order to be published before the
ten 10 consecutive days after he
hearing
(3) Court shall direct a copy of the
finds the petition and its
At least once a week for 3 successive
order to be published before the
supporting documents sufficient
weeks
hearing
in form and substance.
In some newspaper of general
At least once a week for 3
circulation published in the
successive weeks
(3) The petition shall be published at
province.
In some newspaper of general
least once a week for 2
circulation published in the
consecutive weeks in a newspaper
(4) Hearing shall be conducted.
province.
of general circulation.
PAGE 290
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Rule 103
Rule 108
RA 9048
The SolGen or the proper

provincial or city fiscal shall (4) File opposition
(4) The City or Municipal Registrar or
appear on behalf of the Within 15 days from notice of the
the Consul General shall render a
Government of the Republic.
petition or from the last date of
decision not later than 5 working
publication
days after the completion of the
(5) Judgment granting or denying the
posting and/ or publication
change of name.
(5) Hearing shall be conducted.
requirement. He shall transmit a
Court may expedite the proceedings
copy of his decision together with
(6) Copy of judgments shall be
and also grant preliminary
the records of the proceedings to
furnished the civil registrar of the
injunction for preservation of
the Office of the Civil Registrar
municipality or city where the
rights of the parties
General within 5 working days
court issuing the same is situated,
from the date of the decision.
who shall forthwith enter the (6) Judgment granting or denying the
same in the civil register.
change of name.
Where the petition is denied by
the city or municipal civil registrar
(7) Copy of judgments shall be
or the consul general, the
furnished the civil registrar
petitioner may either appeal the
concerned who shall annotate the
decision to the civil registrar
same in the records
general or file the appropriate
petition with the proper court.
(5) The Civil Registrar General shall,
within 10 working days from
receipt of the decision granting a
petition, exercise the power to
impugn such decision by way of
an objection.
Grounds for objection
(a) The error is not clerical or
typographical
(b) The correction of an entry or
entries in the civil register is
substantial or controversial as it
affects the civil status of a
person
(c) The basis used in changing the
first name or nickname of a
person does not fall under one of
the valid grounds.
If the civil registrar general fails to
exercise his power to impugn the
decision of the city or municipal
registrar or of the consul general
within the period, such decision shall
become final and executory.
(6) The civil registrar general shall
immediately notify the city or
municipal civil registrar or the consul
general of the action taken on the
decision.
(7) Upon receipt of the notice thereof,
PAGE 291
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SPECIAL PROCEEDINGS
Rule 103
Rule 108
RA 9048
the city or municipal civil registrar or
the consul general shall notify the
petitioner of such action.
(8) Appeal. The petitioner
reconsideration with
registrar general or
appropriate petition
proper court.
may
the
file
with
seek
civil
the
the
Opposition
Any interested person
Civil registrar and any person having

or claiming interest under the entry
whose cancellation or correction is
sought
N/A
NOTE: The Civil Registrar General is
given the power to object to the
decision of the Local Civil Registrar
Grounds for Change of Name

Republic v. Hernandez: Valid
Grounds for Change of Name
(1) The name is ridiculous, tainted
with dishonor or extremely
difficult to write or pronounce.
(2) Change results as a legal
consequence of legitimation
(3) The change will avoid confusion.
(4) A sincere desire to adopt a
Filipino name to erase signs of
former alienage (Ang Chay vs.
Republic, 1970)
(5) Having continuously used and
been known since childhood by a
Filipino name, having been
unaware of alien parentage (Uy
vs. Republic, 1965)
Entries subject to cancellation or

correction:
(1)Birth
(2)Marriage
(3)Death
(4)Legal separation
(5)Judgment of annulment
(6)Judgment declaring marriage null
and void
(7)Legitimation
(8)Adoption
(9)Acknowledgment
of
natural
children
(10)Naturalization
(11)Election, loss or recovery of
citizenship
(12)Civil interdiction
(13)Judicial determination of filiation
(14)Voluntary emancipation of minor
(15)Changes of name
PAGE 292
Sec. 4: Grounds for Change of

FirstName or Nickname
(1) The first name or nickname is
ridiculous, tainted with dishonor
or extremely difficult to write or
pronounce.
(2) The new first name or nickname
has been habitually and
continuously used by the
petitioner and he has been
publicly known by the first name
or nickname in the community.
(3) The change will avoid confusion.

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CIVIL PROCEDURE

General Principles ................. 2

ACTION VS CAUSE OF ACTION .......................... 14

CONCEPT OF REMEDIAL LAW ............................ 2

MEANING OF ORDINARY CIVIL ACTIONS ........ 14

MEANING OF SPECIAL CIVIL ACTIONS ............. 14

SUBSTANTIVE LAW AS DISTINGUISHED FROM

RULE-MAKING POWER OF THE SUPREME COURT2

MEANING OF CRIMINAL ACTIONS ................... 14

PERSONAL ACTIONS AND REAL ACTIONS ...... 15

NATURE OF PHILIPPINE COURTS ..................... 3

Cause of Action ................... 16

COURT AS DISTINGUISHED FROM A JUDGE ................... 3

ELEMENTS OF A CAUSE OF ACTION ................. 16

MEANING OF A COURT ........................................... 3

COURTS OF ORIGINAL AND APPELLATE JURISDICTION .....

DOCTRINE OF NON-INTERFERENCE OR DOCTRINE OF

JUDICIAL STABILITY .............................................

MEANING OF CAUSE OF ACTION ...................... 16

RIGHT OF ACTION VERSUS CAUSE OF ACTION . 16

Parties to Civil Actions ....... 18

INDISPENSABLE PARTIES ........................................ 20

COMPULSORY AND PERMISSIVE JOINDER OF

PLEADINGS ALLOWED IN SMALL CLAIM CASES

PARTS OF A PLEADING .................................... 29

ALLEGATIONS IN A PLEADING ........................ 30

EFFECT OF AMENDED PLEADING

VOLUNTARY APPEARANCE ............................. 39

MOTIONS VERSUS PLEADINGS ................................. 42

MOTIONS FOR BILL OF PARTICULARS ............ 43

MOTION TO DISMISS ....................................... 45

Dismissal of Actions .......... 49

NOTICE OF PRE-TRIAL ..................................... 51

COMPELLING ATTENDANCE OF WITNESSES;

Modes of Discovery ............. 57

PRODUCTION OR INSPECTION OF DOCUMENTS

TYPES (AND DEFINITION) OF SUBPOENA ........ 55

BY WHOM ISSUED ............................................ 56

PHYSICAL AND MENTAL EXAMINATION OF

SUBPOENA DUCES TECUM DISTINGUISHED FROM ORDER FOR

COURT TO ISSUE THE ORDER FOR

SUBPOENA AD TESTIFICANDUM ..................... 56

CONSEQUENCES OF REFUSAL TO COMPLY WITH

SUBPOENA DUCES TECUM .............................. 56

Demurrer to Evidence ....... 66

JUDGMENT WITHOUT TRIAL ........................... 68

JUDGMENT ON THE PLEADINGS ..................... 69

MOTION FOR NEW TRIAL OR RECONSIDERATION

JUDGMENTS AND FINAL ORDERS SUBJECT TO APPEAL ... 74

EXECUTION AS A MATTER OF RIGHT (ANNEX D) .......... 95

RELIEF FROM JUDGMENTS, ORDERS AND OTHER

EXAMINATION OF OBLIGOR OF JUDGMENT

ANNULMENT OF JUDGMENTS OR FINAL ORDERS

Execution, Satisfaction and

HOW A JUDGMENT IS EXECUTED .................... 96

RULES ON REDEMPTION ................................ 102

EXAMINATION OF JUDGMENT OBLIGOR WHEN

DOES A PARTY LITIGANT ENJOY ANY DISCOVERY RIGHTS

EFFECT OF JUDGMENT OR FINAL ORDERS ... 104

Provisional Remedies ....... 106

PROVISIONAL REMEDIES .............................. 106

PRELIMINARY INJUNCTION ............................. 111

RECEIVERSHIP ................................................ 115

Special Civil Actions .......... 118