Professional Documents
Culture Documents
UP Bar Reviewer 2013 Remedial Law
UP Bar Reviewer 2013 Remedial Law
Actions ................................. 14
APPLICABILITY ........................................................ 2
PROSPECTIVITY/RETROACTIVITY
................................ 2
4
4
CONSTITUTIONAL AND STATUTORY COURTS ............... 4
COURTS OF LAW AND EQUITY.................................. 4
PRINCIPLE OF JUDICIAL HIERARCHY .......................... 4
COURTS OF GENERAL AND SPECIAL JURISDICTION .........
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
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
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
............................... 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
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
Pre-Trial .............................. 50
CONCEPT OF PRE-TRIAL ................................. 50
DEFINITION ......................................................... 50
NATURE AND PURPOSE .................................. 50
PURPOSE ............................................................ 50
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
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
Judgments and
Final Orders ....................... 67
JUDGMENT ...................................................... 67
REQUISITES OF A VALID JUDGMENT .......................... 67
KINDS OF JUDGMENT ............................................. 67
Post-Judgment Remedies . 72
REMEDIES BEFORE
FINALITY OF JUDGMENT ................................. 72
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
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
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
161
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
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
................ 165
GUIDELINES IN FIXING
AMOUNT OF BAIL .................................................. 171
DISTINGUISH FROM
DEMURRER TO EVIDENCE .............................. 182
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
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
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
............................... 219
DOCUMENTARY EVIDENCE IN AN
UNOFFICIAL LANGUAGE ........................................ 226
219
219
219
219
DEMONSTRATIVE EVIDENCE ......................... 219
EPHEMERAL ELECTRONIC COMMUNICATIONS ........... 220
SPECIAL PROCEEDINGS
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
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
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
Distribution and
Partition ............................ 258
GUARDIAN ......................................................261
BASIS: PARENS PATRIAE ................................261
KINDS OF GUARDIANS ..........................................261
Absentees .........................276
PURPOSE OF THE RULE ................................. 276
WHO MAY FILE; WHEN TO FILE ...................... 276
WHEN TERMINATED ..................................... 276
Cancellation or Correction of
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
UP COLLEGE OF LAW
CIVIL PROCEDURE
PAGE 1
UP COLLEGE OF LAW
CIVIL PROCEDURE
General Principles
SUBSTANTIVE LAW
APPLICABILITY
PAGE 2
UP COLLEGE OF LAW
CIVIL PROCEDURE
Court
Judge
Tribunal
officially
assembled
under
authority of law
An
organ
of
the
government
with
a
personality separate and
distinct from judge
An office
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.]
PAGE 3
UP COLLEGE OF LAW
CIVIL PROCEDURE
Jurisdiction
JURISDICTION
Jurisdiction is defined as the authority to try, hear
and decide a case [Tolentino v. Leviste (2004)].
PAGE 4
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CIVIL PROCEDURE
Error of jurisdiction
Error of judgment
PAGE 5
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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]
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CIVIL PROCEDURE
SPECIFIC JURISDICTION
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;
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)]
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)]
PAGE 7
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CIVIL PROCEDURE
(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]
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.
PAGE 8
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(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.
PAGE 12
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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.
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Action
Cause of action
TOTALITY RULE
Actions
Action
PAGE 14
Action
Special Proceeding
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
UP COLLEGE OF LAW
CIVIL PROCEDURE
Real action
Action
Special Proceeding
Ownership or
possession of
real property is
involved
of
Can be immediately
and directly appealed
to the appellate court
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
DISTINCTION:
Personal
action
on
of
Mixed action
Both real and
personal
properties are
involved
Founded
both
on
The rules on
venue of real
actions govern
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
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
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
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
the
the
the
BASIS:
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CIVIL PROCEDURE
PURPOSES:
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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
No valid judgment if
indispensable party is
not joined.
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
PAGE 20
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[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
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.
PAGE 21
Permissive Joinder of
Parties
There
are
multiple
causes
of
action
separately belonging to
several persons.
UP COLLEGE OF LAW
CIVIL PROCEDURE
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.
Derivative Suit
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.
It is a remedy designed
by equity and has been
the principal defense of
the
minority
shareholders
against
abuses by the majority.
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
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CIVIL PROCEDURE
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)]
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.
Jurisdiction
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)
Venue
PAGE 23
UP COLLEGE OF LAW
CIVIL PROCEDURE
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]
Pleading
Motion
Purpose: To submit a
claim/defense
for
appropriate judgment
May be initiatory
Always
filed
judgment
PAGE 24
before
UP COLLEGE OF LAW
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;
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.
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.
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]
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).
PAGE 25
UP COLLEGE OF LAW
CIVIL PROCEDURE
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.
Kinds of counterclaims
Compulsory counterclaim
Permissive counterclaim
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)]
Compulsory counterclaim
Requisites of a compulsory counterclaim [Rule 6, Sec
7] (Asked in the 1998 bar exam)
PAGE 26
UP COLLEGE OF LAW
CIVIL PROCEDURE
[Rule 6, Sec.
11]
[NOTE: See also table in immediately preceding
subsection]
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.
Complaint in intervention
Same
Initiative is with a nonparty who seeks to join
the action
3rd-party complaint
Counterclaim
Cannot
exceed
the
amount stated in the
original complaint
PAGE 27
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.
COMPLAINT-IN-INTERVENTION
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]
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)]
PAGE 28
UP COLLEGE OF LAW
CIVIL PROCEDURE
[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;
(b) Motion for a bill of particulars;
(c) Motion for new trial, or for reconsideration of a
judgment, or for opening of trial;
(d) Petition for relief from judgment;
(e) Motion for extension of time to file pleadings,
affidavits or any other paper;
(f) Petition for certiorari, mandamus, or prohibition
against any interlocutory order issued by the
court;
(g) Motion to declare the defendant in default;
(h) Dilatory motions for postponement;
(i) Reply;
(j) Third party complaints; and
(k) Interventions.
AGAINST
FORUM
Verification
Pleadings need not be verified, unless otherwise
provided by the law/rules.
PAGE 29
UP COLLEGE OF LAW
CIVIL PROCEDURE
ALLEGATIONS IN A PLEADING
PAGE 30
UP COLLEGE OF LAW
CIVIL PROCEDURE
in
all
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]
SPECIFIC DENIALS
PAGE 31
UP COLLEGE OF LAW
CIVIL PROCEDURE
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
Compulsory counterclaim
General Rule: A compulsory counterclaim not set up
is considered barred. [Rule 9, Sec. 2]
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
Final Appealable
PAGE 32
UP COLLEGE OF LAW
CIVIL PROCEDURE
PAGE 33
UP COLLEGE OF LAW
CIVIL PROCEDURE
Acquisition of jurisdiction
FILING AND SERVICE OF PLEADINGS
DEFINITION
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
PAGE 34
UP COLLEGE OF LAW
CIVIL PROCEDURE
MANNER OF FILING
PAGE 35
UP COLLEGE OF LAW
CIVIL PROCEDURE
PAGE 36
UP COLLEGE OF LAW
CIVIL PROCEDURE
AMENDMENT
HOW TO AMEND PLEADINGS [Rule 10, Sec. 1]
PAGE 37
UP COLLEGE OF LAW
CIVIL PROCEDURE
AMENDMENTS TO CONFORM TO OR
PRESENTATION OF EVIDENCE [Rule 10, Sec.
AUTHORIZE
5] (Asked in
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.
PAGE 38
UP COLLEGE OF LAW
CIVIL PROCEDURE
Summons
PURPOSE
ISSUANCE OF SUMMONS
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
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.
PAGE 39
UP COLLEGE OF LAW
CIVIL PROCEDURE
PERSONAL SERVICE
SERVICE IN PERSON ON DEFENDANT
PAGE 40
UP COLLEGE OF LAW
CIVIL PROCEDURE
REQUISITES
MODES OF SERVICE
See Annex A.
SERVICE UPON A DEFENDANT WHERE HIS IDENTITY IS
UNKNOWN OR WHERE HIS WHEREABOUTS ARE UNKNOWN
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.
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.
PAGE 41
UP COLLEGE OF LAW
CIVIL PROCEDURE
See Annex A.
Motions
MOTIONS IN GENERAL
DEFINITION OF A MOTION
(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
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
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
PAGE 42
UP COLLEGE OF LAW
CIVIL PROCEDURE
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.
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.
PRO-FORMA MOTIONS
PAGE 43
UP COLLEGE OF LAW
CIVIL PROCEDURE
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.
(1) Deny;
(2) Grant the motion outright;
(3) Allow the parties the opportunity to be heard.
COMPLIANCE WITH THE ORDER AND EFFECT OF NONCOMPLIANCE
PAGE 44
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
UP COLLEGE OF LAW
CIVIL PROCEDURE
MOTION TO DISMISS
DEFINITION
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.
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)]
PAGE 45
UP COLLEGE OF LAW
CIVIL PROCEDURE
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.
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.
PAGE 46
UP COLLEGE OF LAW
CIVIL PROCEDURE
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.
Laches
PAGE 47
UP COLLEGE OF LAW
CIVIL PROCEDURE
RESOLUTION OF MOTION
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.
PAGE 48
UP COLLEGE OF LAW
CIVIL PROCEDURE
BAR BY 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 of Actions
PAGE 49
UP COLLEGE OF LAW
CIVIL PROCEDURE
DEFINITION
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).
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 without
prejudice
to
the
defendants right to
prosecute
his
counterclaim in the
same or in a separate
action
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
PAGE 50
UP COLLEGE OF LAW
CIVIL PROCEDURE
Who fails to
appear
Plaintiff
Defendant
Default by defendant
(Rule 9, Sec. 3)
Upon motion and notice
to defendant.
Requires proof of failure
to answer
Court
to
render
judgment,
unless
it
requires submission of
evidence
Relief awarded must be
the same in nature and
amount as prayed for in
the complaint
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
PAGE 51
UP COLLEGE OF LAW
CIVIL PROCEDURE
CALENDAR OF CASES
Civil Case
Criminal Case
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.
PAGE 52
UP COLLEGE OF LAW
CIVIL PROCEDURE
Civil Case
Criminal Case
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]
PAGE 53
UP COLLEGE OF LAW
CIVIL PROCEDURE
Intervention
PAGE 54
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CIVIL PROCEDURE
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
TIME TO INTERVENE
Intervention is allowed any time before TC renders
judgment. [Rule 19, Sec. 2]
Subpoena
PAGE 55
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CIVIL PROCEDURE
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.
PAGE 56
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CIVIL PROCEDURE
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.
Modes of Discovery
DEPOSITIONS PENDING ACTION; DEPOSITIONS
BEFORE ACTION OR PENDING APPEAL [Rules 23
and 24]
DEPOSITIONS UNDER RULE 23
PAGE 57
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CIVIL PROCEDURE
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)
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]
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
CIVIL PROCEDURE
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
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.
PAGE 59
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CIVIL PROCEDURE
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.
TO
ADVERSE
PURPOSE
PAGE 60
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PROCEDURE
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
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PROCEDURE
DEFERMENT OF COMPLIANCE
PAGE 62
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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)]
WAIVER OR PRIVILEGE
PHYSICIAN-PATIENT PRIVILEGE
Ground for
postponement
of trial
PAGE 63
UP COLLEGE OF LAW
Ground for
postponement
of trial
For absence of
evidence [Rule
30, Sec. 3]
For illness of
party/counsel
[Rule 30, Sec. 4]
CIVIL PROCEDURE
respectively
adduce
rebutting
SUBPOENA
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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]
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Grant of demurrer
The case
dismissed
shall
Denial of demurrer
be
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.
Sandiganbayan (2003)]
GROUND
DEFINITION:
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
Demurrer
Denial of demurrer
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MTD
Demurrer
Exams)
Demurrer in civil cases
DEMURRER
IN
CIVIL
AND
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
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
Judgment upon
compromise
Judgment by confession
An
affirmative
and
voluntary act of the
defendant himself. The
court exercises a certain
amount of supervision
over the entry of
judgment.
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
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CONTENTS OF A JUDGMENT
PARTS OF A JUDGMENT
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DEFINITION, NATURE
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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)]
Judgment
FOR THE CLAIMANT [Rule 35, Sec. 1]
FOR THE DEFENDANT [Rule 35, Sec. 2]
When
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
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Entry of judgment
Act of clerk of court in
entering the dispositive
portion of the judgment
in the book of entries of
judgment
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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]
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.
Supplemental decision
Post-Judgment Remedies
REMEDIES BEFORE FINALITY OF JUDGMENT
(a) Motion for Reconsideration
(b) Motion for New Trial
(c) Appeal
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APPEALS IN GENERAL
JUDGMENTS AND FINAL ORDERS SUBJECT TO APPEAL
15-DAY PERIOD
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MODES OF APPEAL
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.
Interlocutory Order
Must
clearly
and
distinctly state the law
and the facts on which it
is based
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.
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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
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]
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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.
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;
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Stay of execution
See next page.
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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.
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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Copies to be filed:
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 11-9-4SC, Section 5]
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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:
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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.
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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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
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.
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Period to Appeal
MTC to RTC
RTC to CA
MTC to RTC to
CA
QJA to CA
RTC to SC
RTC to CA to
Extensions
Effect of MR or MNT
No extensions allowed
No extensions allowed
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SC
CA to SC
CIVIL PROCEDURE
petitioners MR or MNT.
PERFECTION OF APPEAL
MTC to RTC
acquiring
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CIVIL PROCEDURE
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.
Filing of Petition
(a) File with the SC a verified petition for review on
certiorari.
(b) Unless otherwise directed by the court, the
number of court- bound papers that a party is
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.
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)
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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.
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.
PAGE 88
for
new
trial
or
UP COLLEGE OF LAW
CIVIL PROCEDURE
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)]
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)
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.
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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.
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Both periods must concur. They are also nonextendible and never interrupted.
ANNULMENT OF JUDGMENTS
ORDERS AND RESOLUTIONS
CONTENTS OF PETITION
OR
FINAL
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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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)]
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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.
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(asked in the
[Rule
39, Sec. 8]
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
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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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)].
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
UP COLLEGE OF LAW
Levy
CIVIL PROCEDURE
Garnishment
the same as the court
shall direct to satisfy the
judgment. (Sec. 9, Rule
39)
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.
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.
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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.
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(i)
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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
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
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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]
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RECOVERY OF
JUDGMENT:
PURCHASE
PRICE
AND
REVIVAL
OF
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ENTRY OF SATISFACTION
[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
PAGE 104
Conclusive as to
Title of the thing
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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
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.
OF
FOREIGN
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PURPOSES
Provisional Remedies
NATURE OF PROVISIONAL REMEDIES
DEFINITION
[Rule
DEFINITION
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REQUISITES
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Note:
Property in custodia legis may be attached by:
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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.
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PRELIMINARY INJUNCTION
DEFINITIONS
AND
DIFFERENCES:
DRELIMINARY
INJUNCTION AND TEMPORARY RESTRAINING ORDER;
STATUS QUO ANTE ORDER
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
Injunction
Cannot
without
hearing
be
granted
notice
and
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.
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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
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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
Injunction
Main action
seeks
a
embodying
injunction
judgment
a
final
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
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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
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
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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.
PURPOSE
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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]
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
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]
PAGE 116
Replevin
Preliminary Attachment
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Replevin
Preliminary Attachment
Cannot be availed of if
the property is in
custodia legis (e.g. under
attachment,
seized
under a search warrant).
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)].
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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
PURPOSE
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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]
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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
Notice Given To
Sol Gen
Prosecutor or attorney of
the LGU
Sol Gen
WHEN COURT
DECLARATION
MAY
REFUSE
TO
MAKE
JUDICIAL
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]
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PROCEDURE
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PAGE 122
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Rule 64
Rule 65
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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.
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]
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INJUNCTIVE RELIEF
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)]
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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;
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
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.
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EXPROPRIATION
MATTERS TO ALLEGE IN COMPLAINT FOR EXPROPRIATION
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Rule 67
depositary
Amount for deposit
equivalent to 100%
assessed value of the
property for purposes of
taxation.
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.
Immediate payment to
the property owner
No Objection Or Defense
To The Taking
Has Objection Or
Defense To The Taking
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
RA 8974
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
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ORDER OF EXPROPRIATION
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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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]
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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
Recovery of deficiency is
by mere motion for a
deficiency 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
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.
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
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CIVIL PROCEDURE
Equity Of Redemption
where the mortgagee is
the Philippine National
Bank or a bank or
banking
institution.
[Huerta Alba Resort, Inc.
v. CA (2000)]
Right Of Redemption
PARTITION
Partition of property may be:
(a) Extrajudicial by agreement
(b) Judicial compulsory; governed by Rule 69
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.
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Venue
Actions for partition should be filed in the RTC of the
province where the property or part thereof is
situated.
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)
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
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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.
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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Contents of Judgment
Effects of Judgment
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.
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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
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]
PLEADINGS ALLOWED
Procedure
Filing of complaint.
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the
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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]
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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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
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According to Nature
(a) Civil
(b) Criminal
PURPOSE AND NATURE OF EACH
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)]
KINDS OF CONTEMPT
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See Annex G.
Where it is
initiated
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.
Hearing
and Bail
Execution
of
Judgment
Appeal
PAGE 142
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CIVIL PROCEDURE
PAGE 143
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ANNEX A
(1) Service on person associated in
an entity without juridical
personality [Rule 14, Sec. 8]
(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
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
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CIVIL PROCEDURE
ANNEX C
Provision Highlights
Applicability
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
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
UP COLLEGE OF LAW
CIVIL PROCEDURE
ANNEX D
JUDGMENT OR FINAL ORDER (order
that disposes of the action or proceeding)
PAGE 148
UP COLLEGE OF LAW
CIVIL PROCEDURE
ANNEX E
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
PAGE 149
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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)
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
(b) alleging the facts with certainty
(c) PRAYER: that judgment be
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
(b) alleging the facts with certainty
(c) PRAYER: that judgment be
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
FINE = not exceeding P30,000; 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
FINE = not exceeding P5,000; 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
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.
is
MTC/MeTC/MCTC
RTC
SANDIGANBAYAN
PAGE 153
UP COLLEGE OF LAW
CRIMINAL PROCEDURE
MTC/MeTC/MCTC
RTC
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
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
MILITARY COURTS
Prosecution of Offenses
CRIMINAL ACTIONS, HOW INSTITUTED (BAR
1999)
IN GENERAL
EFFECT OF:
DEATH OF OFFENDED PARTY
UP COLLEGE OF LAW
CRIMINAL PROCEDURE
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]
Consent
PAGE 156
UP COLLEGE OF LAW
CRIMINAL PROCEDURE
COMPLAINT DEFINED
WHAT TO ALLEGE
INFORMATION DEFINED
UP COLLEGE OF LAW
CRIMINAL PROCEDURE
AMENDMENT
OR
SUBSTITUTION
OF
COMPLAINT OR INFORMATION [SEC. 14, RULE
110] (BAR 2001, 2002)
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
OF
COMMITTING
OFFENSE
NOT
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)]
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UP COLLEGE OF LAW
CRIMINAL PROCEDURE
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
Venue
Involves
a
different
offense which does not
include those provided in
the
original
charge;
cannot invoke double
jeopardy
Piracy
Libel
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
PAGE 159
UP COLLEGE OF LAW
CRIMINAL PROCEDURE
Felony
Venue
Constitution)
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
WHEN
CIVIL
ACTION
INDEPENDENTLY
MAY
PROCEED
UP COLLEGE OF LAW
CRIMINAL PROCEDURE
Preliminary Investigation
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]
PAGE 161
UP COLLEGE OF LAW
CRIMINAL PROCEDURE
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.
PI IS DEEMED
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 Court
If the determination of probable cause is for
purposes of issuance of warrant of arrest
PI IS NOT DEEMED
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]
PAGE 162
UP COLLEGE OF LAW
CRIMINAL PROCEDURE
[Sec. 3,
Defendants counter-affidavit
PAGE 163
UP COLLEGE OF LAW
CRIMINAL PROCEDURE
AGAINST
THE
PRELIMINARY
OF
RIGHT
TO
PRELIMINARY
PAGE 164
UP COLLEGE OF LAW
CRIMINAL PROCEDURE
INQUEST
DEFINITION
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)
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)]
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
Requisites:
(i) An offense has just been committed; and
PAGE 166
UP COLLEGE OF LAW
CRIMINAL PROCEDURE
When cured
When the accused voluntarily submits to the
jurisdiction of the trial court [Dolera v. People (2009);
People v. Alunday (2008)].
METHOD OF ARREST
BY OFFICER WITH WARRANT
PAGE 167
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CRIMINAL PROCEDURE
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.
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.
UP COLLEGE OF LAW
CRIMINAL PROCEDURE
PURPOSES
Judge
Determination of PC to Determination of PC to
hold a person for trial
issue a warrant of arrest
Bail
NATURE
DEFINITION
PAGE 169
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CRIMINAL PROCEDURE
CONVICTION
PAGE 170
UP COLLEGE OF LAW
CRIMINAL PROCEDURE
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
PAGE 171
UP COLLEGE OF LAW
CRIMINAL PROCEDURE
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
REDUCED BAIL
INCREASED BAIL
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
Watchlist Order
PAGE 172
UP COLLEGE OF LAW
CRIMINAL PROCEDURE
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.
PAGE 173
UP COLLEGE OF LAW
CRIMINAL PROCEDURE
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].
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.
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RIGHT TO CONFRONTATION
RIGHT TO APPEAL
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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.
DEFINITION
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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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
In general
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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
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Motion to Quash
would
be
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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]
COMPLAINT/INFORMATION
DOES
NOT
SUBSTANTIALLY TO THE PRESCRIBED FORM
CONFORM
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WOULD
Demurrer to Evidence
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
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Consequence:
Arraignment
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]
Interlocutory
Final Order
Immediately appealable
but subject to rules on
double jeopardy
Consequence:
(Prosecution):
Amend
information if possible
SAME OFFENSE
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SAME ACT
DISMISSAL = ACQUITTAL
Dismissal
Acquittal
DEFINITION
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Pre-trial
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/ PURPOSES
STIPULATION OF FACTS
PRE-TRIAL AGREEMENT
FORM
PLEA BARGAINING
EFFECT
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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.
Trial
Note: Letters (d) to (f) are added by SC AM 03-1-09SC to the requirements under Rule 118, Sec. 4
EFFECT
PRESENCE IS MANDATORY:
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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]
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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.
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Judgment
REQUISITES OF A JUDGMENT
FORM [RULE 120, SEC. 1]
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)]
CONTENTS OF JUDGMENT
CONVICTION [SEC. 2, RULE 119]
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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.
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]
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REQUISITES
EXCEPTIONS
IN ALL CASES:
Ground
Effect
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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Ground
Effect
Appeal
The SC
NEYPES
DOCTRINE
IN
The SC
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)]
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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.
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.
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.
PROCEDURE IN THE CA
Exceptions:
(1) Where a particular provision applies only to either
of said courts;
(2) Criminal cases governed by the Revised Rules on
Summary Procedure.
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Grounds:
(A)Appellant fails to file his brief within the
prescribed time;
REVERSAL
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;
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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
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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]
PROCEDURE IN THE SC
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]
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DEFINITION
PUBLIC
Warrant of Arrest
Nature
AGAINST
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Search Warrant
Warrant of Arrest
Sec. 1)
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)
must
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.
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
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.
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POST-SERVICE
do the
to the
of the
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PROBABLE CAUSE
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is constitutionally objectionable.
Pictures v. Flores (1993)]
[Columbia
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)]
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)]
SEARCH
WARRANT
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CONSENTED SEARCH
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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)]
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)]
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Where to file
REMEDIES
Court
where
the
subsequent
criminal
action
has
been
instituted.
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CIVIL LIABILITIES
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]
CRIMINAL 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.
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CRIMINAL PROCEDURE
PRELIMINARY ATTACHMENT
Issuance of writ
Enforcement of writ
When
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EVIDENCE
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EVIDENCE
General Principles of
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]
Proof
Evidence
Civil Cases
Criminal Cases
Facts or material
evidencing the
proposition
The proposition to be
established
Facts or material
evidencing the
proposition
The proposition to be
established
APPLICABILITY
[Source: Regalado]
CLASSIFICATION OF EVIDENCE
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]
Corroborative
Presumption of
innocence a
constitutional guarantee
Prima facie
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Conclusive
UP COLLEGE OF LAW
EVIDENCE
Class of evidence
which the law does
not allow to be
contradicted
Secondary
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]
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)]
DOCTRINES OF ADMISSIBILITY
Competence
Evidence not excluded by:
(1) Law, or
(2) The ROC [Sec. 3, Rule 128]
Determined by the prevailing exclusionary rules of
evidence [Regalado]
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EVIDENCE
Burden of Proof
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
Negative
Credibility
Burden of Evidence
belief;
Burden of Evidence
PRESUMPTIONS
PAGE 214
Conclusive
Disputable
Satisfactory if
uncontradicted, but may
be contradicted and
overcome by other
evidence [Sec. 3, Rule 131]
UP COLLEGE OF LAW
EVIDENCE
(WEIGHT
AND
Intermediate in character lower than proof beyond
reasonable doubt, but higher than preponderance of
evidence
JUDICIAL NOTICE
PREPONDERANCE OF EVIDENCE
MANDATORY
SUBSTANTIAL EVIDENCE
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EVIDENCE
DISCRETIONARY
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
(a) Depositions
(b) Written interrogatories
(c) Request for admissions [Regalado; see also Civil
Procedure Rules]
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)]
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EVIDENCE
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EVIDENCE
The older
The younger
Presumption
The older
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EVIDENCE
LAW OF NATIONS
COMPETENT
Evidence be Authenticated
To authenticate the object is to show that the object
is the very thing that is either the subject matter of
the lawsuit or the very one involved to prove an issue
in the case.
MUNICIPAL ORDINANCES
NON-UNIQUE OBJECTS
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]
RELEVANT
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EVIDENCE
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]
CHAIN OF CUSTODY
In relation to Sec. 21 of the Comprehensive
Dangerous Drugs Act of 2002
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EVIDENCE
(c) Compliance
with
scientifically
standards in conducting the tests
valid
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)]
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]
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]
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APPLICABILITY
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
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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]
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]
Exception
It does not apply when 3rd parties are involved.
[Lechugas v. CA (1986)]
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]
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EVIDENCE
Private
Private documents
General Rule: When offered
authentication is necessary
When offered as
authentic, due execution
authentic,
Private
as
Public
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]
Public
Admissible without
further proof of its due
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EVIDENCE
(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]
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]
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EVIDENCE
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.
WHEN DETERMINED
Credibility
Has nothing to do with
the law or rules
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
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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.
PRIVILEGED COMMUNICATIONS
PAGE 228
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EVIDENCE
Marital Privilege
Neither of the spouses
needs to be a party;
Prohibition is limited to
testimony on confidential
communications between
spouses.
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
PAGE 229
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EVIDENCE
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.
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.
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EVIDENCE
PAGE 231
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EVIDENCE
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
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EVIDENCE
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
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.
Effect
May be given in evidence against the admitter [Sec.
26, Rule 130]
Extrajudicial
By Silence
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EVIDENCE
Admission
CONFESSIONS
Confession
fact
or liability
Must be express
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]
Co-Conspirators Admission
The requisites are the following:
(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.
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
Confession
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EVIDENCE
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]
EXCEPTIONS
Dying Declaration
Also known as antemortem statement
statement in articulo mortis [Sec. 37, Rule 130]
PAGE 235
or
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EVIDENCE
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 NOT as an
exception to any rule
Admissible as an
exception to the hearsay
rule
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EVIDENCE
Common Reputation
Requisites for Admissibility
(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]
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EVIDENCE
(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.
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EVIDENCE
OPINION RULE
General Rule: The opinion of a witness is not
admissible. [Sec. 48, Rule 130]
Exceptions:
(1) Expert witness
(2) Ordinary witness
Opinion is:
(1) On a matter requiring
(a) Special knowledge,
(b) Skill,
(c) Experience, or
(d) Training
(2) Which he is shown to possess
(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]
CHARACTER EVIDENCE
General Rule: Character evidence is not admissible.
Exceptions:
CRIMINAL CASES
[RULE 130, SEC.51(A)]
CIVIL CASES
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EVIDENCE
PROTECTIVE ORDERS
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
[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.
OBJECTION
CONCEPT
Testimonial evidence
Question propounded in
the course of oral
examination
What to object to
PURPOSES OF OBJECTION
[RIANO]
When to object
When to Offer
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EVIDENCE
(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)]
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
Testimonial
RATIONALE
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]
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UP COLLEGE OF LAW
CRIMINAL PROCEDURE
UP COLLEGE OF LAW
SPECIAL PROCEEDINGS
Preliminary Matters
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].
Action
Special Proceeding
- 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
Escheat
Appointment of Guardians
Appointment of Trustees
Adoption
PAGE 244
UP COLLEGE OF LAW
Rescission of Adoption
Habeas Corpus
Habeas Data
SPECIAL PROCEEDINGS
Amparo
Change of Name
Appointment of
Representative of
Absentee/ Declaration of
Absence
Cancellation / Correction of
Entries in Civil Registries
Petition for declaration of
nullity, annulment, legal
separation
RTC
RTC
Local Civil Registry/
Philippine consulate
Family Court
JURISDICTION OF RTCS
Settlement of Estate of
Deceased Persons, Venue
and Process
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UP COLLEGE OF LAW
SPECIAL PROCEEDINGS
OVER
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
Summary judicial
adjudication needed
No will (intestate)
No debts
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
UP COLLEGE OF LAW
SPECIAL PROCEEDINGS
PROCEDURE
If there is no
disagreement
between
the
heirs
If
there
is
disagreement
PRESUMPTION OF NO DEBTS
BOND REQUIREMENT
BOND REQUIREMENT
WHEN ALLOWED
UP COLLEGE OF LAW
SPECIAL PROCEEDINGS
PROCEDURE
Partition of estate
PAGE 248
UP COLLEGE OF LAW
SPECIAL PROCEEDINGS
(2) Mandatory
(3) Imbued with public policy, thus imprescriptible
and the doctrine of estoppel does not apply
PARTITION
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)
(1) Executor
(2) Devisee
(3) Legatee
(4) Other person interested in the estate
(5) Testator himself, during his lifetime [Sec. 1, Rule
76]
UP COLLEGE OF LAW
SPECIAL PROCEEDINGS
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
DEFECT IN PETITION
(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
PAGE 250
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SPECIAL PROCEEDINGS
GROUNDS
CONTENTS
JURISDICTIONAL FACTS
UP COLLEGE OF LAW
SPECIAL PROCEEDINGS
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
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SPECIAL PROCEEDINGS
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.
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
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]
UP COLLEGE OF LAW
SPECIAL PROCEEDINGS
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]
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
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]
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SPECIAL PROCEEDINGS
Exception
(1) Not sufficient for the purpose; or
(2) Its sale will redound to the detriment of the
participants for the estate
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]
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UP COLLEGE OF LAW
SPECIAL PROCEEDINGS
INSOLVENT NON-RESIDENT
UP COLLEGE OF LAW
SPECIAL PROCEEDINGS
DUTY OF EXECUTOR/ADMINISTRATOR
MAY
NOT
BROUGHT
AGAINST
PAGE 257
UP COLLEGE OF LAW
SPECIAL PROCEEDINGS
EFFECT
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]
UP COLLEGE OF LAW
SPECIAL PROCEEDINGS
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
WHEN EXEMPT
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.
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SPECIAL PROCEEDINGS
Escheat
PROCEDURE
FILED BY WHOM
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SPECIAL PROCEEDINGS
Guardianship
Hearing
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
Filing of Petition
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SPECIAL PROCEEDINGS
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]
PAYMENT OF COMPENSATION
INVESTMENT
PROPERTY
OF
PROCEEDS
AND
MANAGEMENT
OF
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]
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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SPECIAL PROCEEDINGS
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.
Filing of petition.
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
(1) Jurisdictional facts
(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
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SPECIAL PROCEEDINGS
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]
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
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.
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)]
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
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]
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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WHEN ALLOWED
INTER-COUNTRY ADOPTION AS THE LAST RESORT;
INTEREST OF THE CHILD AS OBJECTIVE
BEST
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]
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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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)]
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)]
the writ of
manner of
which will
sufficient.
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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:
PROCEDURE
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HABEAS DATA
See Annex B.
APPLICABILITY
WHERE TO FILE
CONTENTS:
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MANDATORY PRE-TRIAL
INTERIM RELIEFS
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SPECIAL PROCEEDINGS
JUDGMENT
Writ of Amparo
WRIT OF AMPARO
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WHERE TO FILE
CONTENTS
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TO WHOM RETURNABLE
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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.
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.
UP COLLEGE OF LAW
SPECIAL PROCEEDINGS
TO
THE
REQUISITES
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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
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Cancellation or Correction of
Entries in the Civil Registry
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]
REQUIREMENTS
OF
AN
Appeals in Special
Proceeding
ADVERSARY
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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
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ANNEX A
Domestic Adoption (RA 8552)
DSWD
(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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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
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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ANNEX B
RULE ON CUSTODY AND HABEAS CORPUS FOR
MINORS (A.M. 03-04-04)
Rights involved
Right to liberty
Rightful custody of the aggrieved party
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)
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ANNEX C
WRIT MATRIX (COMPARISON OF THE WRITS)
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
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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]
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]
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Habeas Corpus
SPECIAL PROCEEDINGS
Amparo
Habeas Data
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,
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Habeas Corpus
SPECIAL PROCEEDINGS
Amparo
Habeas Data
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Habeas Corpus
SPECIAL PROCEEDINGS
Amparo
Habeas Data
Summary.
With possibility of
preliminary conference similar to the
WA [Sec. 14]
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
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
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Habeas Corpus
SPECIAL PROCEEDINGS
Amparo
Habeas Data
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]
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ANNEX D
Rule 103
Rule 108
RA 9048
Applicability
Substantial Changes
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
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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.
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Rule 103
Rule 108
RA 9048
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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
N/A
NOTE: The Civil Registrar General is
given the power to object to the
decision of the Local Civil Registrar
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