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REM TRANQUIL Transcript (Compre)
REM TRANQUIL Transcript (Compre)
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the
lawyer,
whether
upon
knowledge or upon the fact of fact.
What is the answer? B. The 30 days
is counted from the FACT OF
DEATH, not from the knowledge but
from the fact of death;
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1. Specific denial;
2. Qualified denial ( I admit the
portion and deny the rest); and
3. Lack of knowledge or information
to form a belief as to the truth
thereof.
The question raised before this case is when can
you use the denial. This is the case involving the
Marcoses, in the allegation was this; the
Marcoses responded
there were clear
allegations against them that they have
performed acts that affected the Philippine
economy and what did they say lack of
knowledge or information to form a belief as to
the truth thereof. What did the Supreme Court
say? Despite the serious and specific allegations
against them, the Marcoses responded by
simply saying that they had no knowledge or
information sufficient to form a belief as to
truth of such allegations. Such a general selfserving claim of ignorance alleged in the
petition for forfeiture was insufficient to raise
an issue. So what is the standard you have to
take note when it comes to lack of knowledge
or information to form a belief? It was cited in
the case of Morales vs. Court of Appeals, where
the court ruled that if an allegation directly and
specifically charges a party with having done,
performed or committed a particular act which
the latter did not in fact do A CATEGORICAL
AND EXPRESS DENIAL MUST BE MADE. Are we
clear? So if there is a clear allegation that you
have performed or you have done a particular
act, you cannot just deny by lack of knowledge
or information sufficient to form a belief as to
the truth thereof. Also pertinent to this case is a
GENERAL DENIAL. A general denial class,
wherein there are specific allegations of
wrongdoing that has been done and performed
cannot be denied by a general denial because A
GENERAL DENIAL WILL AMOUNT TO AN
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motion
for
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1. written
acknowledgment
or
admission of the one who received
it;
2. OFFICIAL RETURN and this provision
on official return apply only to
what? SHERIFFS, PROCESS SERVERS.
Sir, bakit ganun? Bakit may personal
service ang court? Did you not ask
yourself? Sir, bakit kasama sila dyan
eh di ba ang nagseserve lang yung
parties, sila-sila lang? For those of
you who work in courts, you know
what I mean because COURTS IN
CIVIL CASES serve notices, orders
and judgements/decisions - 9
RULE 13. That is why a proof of
service includes official returns
because courts in civil cases does
not promulgate in the trial court,
they do not promulgate. What do
they do? They serve orders, notices,
decisions and judgments;
3. AFFIDAVIT OF THE PERSON
SERVING this happens when there
is refusal to receive. The party
serving would be asked to prepare
an affidavit.
When you talk of ordinary mail, what is the
proof? AFFIDAVIT OF THE PERSON MAILING
showing the circumstances under 7.
Finally, proof of service by registered mail.
AFFIDAVIT OF THE PERSON MAILING and
REGISTRY RECEIPT. However, class it does not
end there. There is the duty of the person
serving to file in court, submit or present the
REGISTRY RETURN CARD. You will have to
submit to the court the registry return card.
What if in the bar exams class you were given
this scenario, the registered mail was never
received but the document was returned to the
sender, can it happen? YES! Change of address,
the addressee cannot be located the document
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statute
2. deny; or
3. order and amendment, but it
cannot defer the resolution of a
motion to dismiss.
Another case I would like to touch on this time,
still on motion to dismiss on presentation of
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kang maka-wiggle out at madali mong maconclude yung sagot eh. What is the coverage?
What matters could be subject of deposition?
ANY MATTER FOR AS LONG AS IT IS NOT
PRIVILEGED. Ok! Any matter for as long as it is
not privileged. Ok! Of course it says relevant
mater, hindi naman yung walang ka torya-torya
di ba!? Relevant matter for as long as it is not
privileged. Now, let me touch on privileged. Ok!
Para naman may tinatakbuhan tayo. What do
you mean by privileged? This is covered by
RULE 130 24 of the rules on evidence. Ok!
Privileged, I will not discuss that in details but I
will enumerate to you:
1. attorney-client;
2. doctor-patient;
3. penitent and priest;
4. husband and wife;
5. public officer in relation to the
state;
6. secrecy of bank deposit;
7. non-disclosure of who you voted
for, except in election fraud cases;
8. non-disclosure of trade secrets;
9. non-disclosure of result of census.
These
are
examples
of
privileged
communications. Do you follow? So, they
cannot compel you to testify in the same vain or
in the same manner, they cannot compel you to
be a deponent. Are we clear? They cannot
compel you to be a deponent. Ano pa, general
provisions? Class, THE FACT OF TAKING OF
DEPOSITION DOES NOT MEAN THAT YOU ARE
MAKING THE DEPONENT AS YOUR WITNESS.
Take note of this, the fact of taking, kapag
kinuha mo it does not mean that you are
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authentic
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1. absence or unavailability of
evidence: the requirements are as
follows:
a. the evidence should be material
and relevant; and
b. efforts have been made to
present or to procure the
evidence but despite diligent
efforts, it cannot be presented.
2. the most common ground for
postponement is sickness or illness
class you just do not claim that a
person is ill or sick of course you
will have to show that the presence
or the attendance of the witness or
counsel is indispensable; meaning
he is to be presented on that day,
the witness or that the lawyer is
required by court to be present on
that day so the presence of
someone who is asking for
postponement
is
what?
INDISPENSABLE and the nature of
the illness is that which would
render his what? His absence
excusable. Do you follow? So not
any kind of illness. Your honor
masakit ho ang ngipin ko ngayon.
Ok! Your honor medyo ah...kinakati
ho ako, may allergy ako ngayon. Do
you follow? Can be, the nature of
the illness is that which would
render it what? The absence
excusable. I do not want to ask you
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referee;
2.
an accountant; or
3.
an examiner.
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1. default proceedings;
2. ex-parte proceedings, in the nature
of course of default and ex-parte
proceedings where defendants do
not appear and matter is referred
to a clerk of court like land
registration cases;
1. long accounts;
2. there is a need for the account or
an account so that the court can be
guided in rendering the judgment;
and
3.
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SUMMARY
JUDGMENT
It is either a FULL OR
PARTIAL SUMMARY
JUDGMENT.
It is the PLAINTIFF OR
the DEFENDANT who
could ask for summary
judgment the
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GROUNDS
EFFECT OF 2ND
FILING
MNT
1. FAME ( fraud,
accident, mistake
and excusable
negligence); and
2. NEWLY
DISCOVERED
EVIDENCE.
A second MNT can
be allowed if the
ground was not yet
in existence at the
time of the filing of
the first MNT.
MR
1. Contrary to law;
2. Judgment is not
supported by
evidence; and
3.Award of
damages is
excessive.
A second MR is a
prohibited
pleading.
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APPEAL.
Both are grounded on FAME. Now, kapag
tinanong ka, WHAT ARE THOSE REMEDIES
WHEREIN FAME IS A GROUND:
1. motion to lift order of default;
2. motion for new trial;
3. petition for relief from judgment or
denial of an appeal;
Now, let me cite to you the 2010 case of Torres
vs. China Banking Corporation. The question is,
what is the remedy of a party in having been
prevented to file an appeal? Remember my
word, the word that I used PREVENTED. A party
has been what, prevented to file an appeal,
what is the remedy? According to the court the
proper remedy for allegations of MISTAKE OR
INEXCUSABLE NEGLIGENCE OF COUNSEL which
prevented a party from taking an appeal is a
PETITION FOR RELIEF FROM DENIAL OF APPEAL,
under RULE 38. Whether it be class a petition
for relief from judgment or a petition for relief
from denial of appeal, what is the period to file.
Ok! You have to memorize this, it is not 15days, it is not 60-days IT IS WITHIN 6 MONTHS
FROM ENTRY OF JUDGMENT BUT WITHIN 60DAYS FROM KNOWLEDGE. Are we clear? 6
months from entry of judgment but within 60days from knowledge. Let me illustrate this for
you. I have made this illustration in my classes,
undergrad classes. Class, look at this bottle look
at it as the 6-months period. Do you follow? Let
us say the 6-months period is from June 1 to at
the end December 1. Let us say, there was entry
of judgment on June 1, if you learned of the
judgment on August 1, until when can you file a
petition for relief judgment or for denial of
appeal? Until, technically October 1, right?
October 1. But what if you learn of the
judgment or you knew of the judgment on
November 15, until when can you file a petition
for relief? Until December 1! You cannot go out
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about
to
be
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1. Certiorari;
2. Prohibition;
3. Mandamus;
4. Quo Warranto;
5. Habeas Corpus;
6. Habeas Corpus and Custody of Minors;
7. Writ of Amparo;
8. Writ of Habeas Data.
Do you follow? The Court of Appeals has
original jurisdictions and in some of those, it has
also concurrent jurisdiction. Ok now, let us
move on...baka gutom na kayo ha?! Mukha
naming hindi pa kayo gutom, dilat pa naman
kayo eh. We still have 45 m inutes ok! My goal
is ah, hopefully in 45 minutes I am able to cover
yung civil procedure na gusto kong i-cover, so
that when I return after lunch I will start with
criminal procedure. Ok? That is my intention.
Ok? So you have to bear with me.
Now let me ask you, now the next question
WHAT ARE THE 2 ASPECTS OF RES JUDICATA?
According to the case of Barreto vs. Court of
Appeals. Sir, di ba isa lang yang res judicata na
yan?! This case cited the rule in RULE 39 47.
That is effect of judgments. They zeroed in on
subsections b and c. Subsection B is really res
judicata, subsection C is preclusion of issue and
in this case the court said: the DOCTRINE OF
RES JUDICATA is of 2 aspects:
1. the first, the effect of judgment as a
BAR TO THE PROSECUTION of second
action upon THE SAME CLAIM,
DEMAND OR CAUSE OF ACTION. In
simple words, the res judicata in
subsection B covers a bar to
prosectution involving, the same claim,
demand or cause of action;
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4. Quo Warranto;
5. Habeas Corpus;
EFFECT OF NON-COMPLIANCE
SUBPOENA DUCES
TECUM
It is a process
requiring the party or
A mode of discovery
The consequences of
non-compliance
is
found in RULE 29.
There is nothing really
express in terms of
arrest or contempt
because even in noncompliance
with
modes of discovery
like refusal to answer
a deposition question,
you
could
be
compelled to answer,
you could be placed in
contempt or even
arrest you will find
that in RULE 29.
the
person
in
possession to bring
the documents. You
could treat this as a
COMPULSIVE
PROCESS.
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WRONGFUL
THERE
IS
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original
holographic
will.
Yun
ang
pinagtatalunan, gusto i-mandamus. Yung may
possession or custody ng holographic will gusto
niya i-mandamus. What did the court say?
Without unnecessarily ascertaining whether the
obligation involved in the production of the
original holographic will is in the nature of
public or private duty, because that is the
determination for mansamus, rules of the
remedy of mandamus cannot be availed of by
respondent Lee if there lies another plain,
speedy and adequate remedy and what is that
plain, speedy and adequate remedy when you
talk of a holographic will? For that purpose
according to the court, the party is not
prevented from instituting probate proceedings
and require presentation of copies thereof. Do
you follow?! So here, how was it attacked?
There is a plain, speedy and adequate remedy
therefore mandamus will not lie. They did not
even determine whether it is a public or private
character.
Let us now proceed to QUO WARRANTO. Just
one point on quo warranto class. Calleja vs.
Panday, which court has jurisdiction when iy
comes to quo warranto involving USURPATION
OF OFFICE IN A CORPORATION? Ok! Not
usurpation of public office but usurpation of
office in a private coraporation, which court has
jurisdiction? The REGIONAL TRIAL COURT
having special jurisdiction or what you call the
COMMERCIAL COURTS.
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The next question is this WHAT IF THE COACCUSED IS A PRIVATE INDIVIDUAL there is a
public officer who falls within the jurisdiction of
Sandiganbayan, salary grade 27 will the
private individual falls within the jurisdciction of
Sandiganbayan? YES!!! In the case of Republic
vs. Court of Appeals, wherein private
contractors of the DPWH were joined as coaccused with nthe officers of the DPWH.
Let us now proceed and answer the next
question. WHICH COURT CAN ISSUE A HOLDDEPARTURE ORDER? The case of Mondejar vs.
Buban, the REGIONAL TRIAL COURT has
exclusive jurisdiction to issue hold-departure
order. This is based on Circular 39-97, that
LIMITS THE AUTHORITY TO ISSUE HDO to
criminal cases within the jurisdiction of second
level courts, when I say second level courts I am
referring to the regional trial court. However
class, the DEPARTMENT OF JUSTICE CAN ISSUE
A HOLD DEPARTURE ORDER, that is within the
power of the DOJ.
You have repeatedly heard of this JURISDICTION
IS DETERMINED BY THE ALLEGATIONS OF THE
COMPLAINT Foz vs. People. What does it
mean? Allegations in the complaint or
information does not confer jurisdiction. It is
the law that confers jurisdiction. However, it is
the allegations that determines. Iba yun! What
confers jurisdiction is the law, for the court to
know whether or not it has jurisdiction or it can
act, it is the allegations that determines
jurisdiction.
Ok! Let us look at Badiola vs. Court of Appeals.
WHAT HAPPENS IF THERE IS A WRONG MODE
OF APPEAL? What happens to the petition if
there is a wrong mode? The PETITION WILL BE
DISMISSED.
From a review of the CA on a RULE 43 review
of decisions of quasi-judicial agencies, where
will you go from the CA under RULE 43? You will
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PRELIMNARY
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follow? Mahaba yung provision, basta pinagrequire ng counter-affidavit PI yun!!! May PI. Do
you follow?! Eh sir, paano yung may replyaffidavit, may rejoinder, sa practice na yun.
Hindi yan required sainyo ngayon but some
prosecutors allow the parties to file that. Are
we clear?!
The
next
question
NOT
REQUIRING
PRELIMINARY INVESTIGATION WHERE CAN YOU
FILE IT, IN THE PROVINCES? You could file either
before the office of the prosecutor or before
the MTC. I would like to be very clear with that
MUNICIPAL TRIAL COURT. You could file it
before the office of the prosecutor or municipal
trial court. WALA NAMANG REQUIREMNT NG
PRELIMINARY INVESTIGATION RIGHT?!
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1. You
were
caught
while
COMMITTING, ABOUT TO COMMIT
OR HAS JUST COMMITTED, the
magic phrase IN HIS PRESENCE.
Do you follow? In his presence. Ibig
sabihin within his view, of the
arresting officer, in his presence.
Ok!
2. the second subsection there in 5
says, what? THE CRIME HAS JUST
BEEN COMMITTED, hindi kasama
ang about to and committing, but
just been committed but THERE IS
PERSONA KNOWLEDGE BASED ON
PROBABLE CAUSE, there was a
personal assessment. He was not
there, it was not in his presence but
there is probable cause to believe
that he was the one who
committed it. It is no longer
suspicion BUT THE PROBABILITY
THAT THE PERSON TO BE ARRESTED
BASED
ON
FACTS
AND
CIRCUMSTANCES IS THE ONE WHO
COMMITTED THE OFFENSE.
3. He
is
DETAINED
whether
temporarily or permanently and HE
ESCAPES. You will have to add to
this...ah sir may addition pa ba yan?
YES!
4. A person who is arrested without a
warrant is RESCUED, there could be
an arrest without a warrant - 13 of
the same rule.
5. There could also be an arrest
without a warrant if THE ACCUSED
WHO IS OUT ON BAIL attempts to
depart from the Philippines without
approval from the court, there
could be an arrest without a
warrant.
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PROVISIONAL
DISMISSAL
At the instance of
either the prosecution
or the accused.
May be grounded on
reasons other than
information for
defects and defenses
apparent in the
information or
complaint.
Before arraignment.
defects of information.
So a case could be
dismissed
provisionally even if
the information is not
defective. May be for
absence of witnesses,
lack of interest, but
that is not a ground
for motion to quash.
Even when the trial is
already on-going.
There could be a
provisional dismissal
even after
arraignment and when
trial is on-going.
Is by its own terms
impermanent until the
TIME-BAR RULE
applies. Ayun! Sinabi
na nila, it is provisional
until the time-bar
applies, at which time
it becomes
permanent.
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of
the
of
the
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BEFORE
JUDGMENT
is
rendered, any matter could be
subject of judicial notice
meaning full moon ba sa araw
na ganito? umuulan bas a araw
na ganito? Do you follow? The
court could take judicial notice
of that, you could call the
attention of the court.
1. mandatory;
2. discretionary,
discretionary?
what
are
of public knowledge ;
of unquestionable
demonstartion;
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1. copy;
2. recital
in
some
documents; or
authentic
3. testimony of witnesses
WHAT IF THE ORIGINAL IS RECORDED IN A
PUBLIC OFFICE OR IN THE CUSTODY OF A
PUBLIC OFFICER? Do you need to present the
original in court? NO! it is sufficient to present
simply a certified true copy or a certification.
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4. intrinsic ambiguity;
5. imperfection.
Now,let us look at this case of Chua-Gao vs.
Chua a 2008 case that explains to us whether or
not you need to present an original, in a case.
WHERE THE ISSUE IS ONLY AS TO WHETHER THE
DOCUMENT WAS ACTUALLY EXECUTED OR
EXIST OR THE CIRCUMSTANCES RELEVANT TO
OR SORROUNDING ITS EXECUTION, the best
evidence rule DOES NOT APPLY. Are we clear?
The best evidence rule will not apply when it is
a question of execution, its existence or the
circumstances surrounding its existence, you do
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as
INTERLOCKING
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is
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MEDICINE;
SURGEONS;
Let
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