Pearl remedial reviewer

Reviewer Remedial Tan

for midtermsLaw Review- Atty.

cannot be obtained appropriate courts. d.

in

the

CIVIL PROCEDURE
Definition: a. Rule making power of the Supreme Court -art. 8, section 5, par.5, 1987 constitution provides for the rule making power of the SC: Promulgate rules concerning the protection and the enforcement of constitutional rights, pleadings, practice and procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the underprivileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court. b. Forum Shopping -is an act of malpractice that is proscribed and condemned as trifling with the courts and abusing their processes. It is improper conduct that tends to degrade the administration of justice. c. Principle of Hierarchy of Court - this principle means that a higher court will not entertain direct resort to it unless the redress desired

Temporary Restraining Order -summary hearing -prevents the doing of an act -requires the posting of a bond -the judge may issue ex parte a TRO effective only for 72 hours from issuance -its effectivity may be extended after conducting a summary hearing within the 72hours period until the application for preliminary injunction can be heard. -the total period of the effectivity of the TRO shall not exceed 20 days including the 72 hours. e. Principle of Recoupment Remedies: a. Failure to comply with the condition precedent (brgy. conciliation) -non referral of the case with the Barangay -remedy: defendant may file a motion to dismiss the case on the ground of prematurity or failure to state a cause of action under sec.1 based on failure to comply with the condition precedent. -amicable settlement/ compromise agreement/ non-compliance -remedy: execution of the amicable settlement within 6 months after the date of settlement under Sec. 417 of RA 7160. -repudiation of the settlement within 10 days from the date of settlement by sworn statement on the ground that the consent was vitiated by fraud, violence, or intimidation under Sec. 418 of RA 7160 1

Pearl remedial reviewer

-annulment of compromise agreement -issuance of certificate to file action. b. Rule 3 -sec2 rule3; real party in interest -remedy: if the case is not brought in the name or against the real party in interest a motion to dismiss may be filed on the ground that the complaint states no cause of action. -sec.10 rule 3: unwilling co-plaintiff -remedy: make the unwilling coplaintiff as one of the defendants or implead the said unwilling coplaintiff. -sec.11 rule 3: misjoinder or nonjoinder of parties -remedy: (not a ground for dismissal of the action) motion to implead or strike out the party defendant, in case of misjoinder, a separate action may be filed against the party misjoined. -sec.16 rule3: death of a party: -remedy: motion for substitution of parties -sec. 20 rule 3: death of a party on a contractual money claims -remedy: before entry of judgment action shall continue, and decision shall be enforced against the estate of the deceased. -sec. 21 rule 3: pauper litigant -remedy: motion to prosecute as pauper litigant, on the part of the adverse party he may file an opposition to the motion contesting the grant of such authority by showing that the plaintiff has means of livelihood or properties. c. Rule 57

-sec 12 rule 12: discharge of the writ of attachment -remedies: in the case of issuance of writ of attachment- defendant may file a motion to discharge attachment and by filing the necessary counter-bond sec 12 rule 57 -or he may file a motion to quash writ of attachment on the grounds specified under sec 13 rule 57 -in case of denial, file a motion for reconsideration, and if denied file a petition for certiorari. d. Rule 65 in re to rule 41interlocutory order e. Rule 9- motion to set aside an order of default remedy: in case of order of default- file a motion to lift the order of default under oath on the ground of FAME with affidavit of merit in accordance with sec. 3 rule 9. in case it is denied, file a motion for reconsideration, if denied, file a petition for certiorari under rule 65, the order being interlocutory under sec 1 rule 41, and if denied file a motion for reconsideration and if denied file a petition for review on certiorari under rule 45. Or, file a motion to admit answer together with the attached answer, before the rendition of judgment by default. Petition for relief from the final order of default on the ground of FAME with affidavit of merit. Denial on motion to amend a complaint rule 10: amendment of pleadings f.

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Pearl remedial reviewer

on the part of the plaintiff: motion to amend pleadings with attached amended pleading before the filing of responsive pleading even there is already a motion to dismiss. In case of denial of the motion, file a petition for mandamus under sec 3 rule 65, since it is ministerial for the court to allow amendment before the filing of responsive pleadings being a matter of right. - On the part of the defendant: defending party may file an answer to the amended pleading or complaint. Defending party may also file his comment or opposition to the motion to amend. g. Executionpetition for mandamus (Rule 65) Sec. 3. Petition for mandamus. When any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from the use and enjoyment of a right or office to which such other is entitled, and there is no other plain, speedy and adequate remedy in the ordinary course of law, the person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered commanding the respondent, immediately or at 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. The petition shall also contain a sworn certification of non-forum shopping as provided in the third paragraph of section 3, Rule 46. h. Motion for reconsideration was denied- petition for certiorari (Rule 65) -remedy: damages are excessive / evidence is insufficient/ contrary to law- motion for reconsideration. If the motion is denied- appeal from the judgment. i. j. Judgment on compromisehow to set aside?

Annulment of judgmenthow? -remedy: final and executory judgment, order, resolution of the RTC- party may file a petition for annulment of judgment before the court of appeals on the ground fraud (with affidavit of merit) or lack of jurisdiction. k. When the demurrer to evidence is grantedremedies -on the part of the defendant: after the plaintiff has rested his case and based on insufficiency of evidencedefendant may file a motion for demurrer to evidence. -on the part of the plaintiff: in case the motion is granted- plaintiff may file an appeal since it is an adjudication on the merits. Distinguish: 3

Pearl remedial reviewer

a. error of jurisdiction vs. error of judgment Error of Error of jurisdiction judgment •one where the • one that the court, officer or court may quasi-judicial commit in the body acts exercise of without or in jurisdiction, it excess of includes errors jurisdiction, or of procedure or with grave mistakes in the abuse of courts findings. discretion. • it renders the • such an error judgment void does not make or at least the courts voidable decision void. • correctible by • correctible by certiorari appeal b. compulsory counterclaim vs. permissive counterclaim COMPULSORY PERMISSIVE COUNTERCLAI COUNTERCLAI M M (1) One which (1) It does not arises out of or arise out of nor is necessarily is it necessarily connected with connected with the transaction the subject or occurrence matter of the that is the opposing party’s subject matter claim. of the opposing party’s claim. (2) It does not (2) It may require for its require for its adjudication the adjudication the presence of third presence of third parties of whom parties over the court cannot whom the court acquire cannot acquire jurisdiction. jurisdiction. (3) It is barred if (3) It is NOT

not set up in the barred even if action. not set up in the action. (4) Need not be (4) Must be answered; no answered, default. otherwise, the defendant can be declared in default. c. summary judgment vs. judgment on the pleadings SUMMARY JUDGMENT ON JUDGMENT THE PLEADINGS • based on the • based solely on pleadings, the pleadings. depositions, admissions and affidavits • available to • generally both plaintiff available only to and defendant the plaintiff, unless the defendant presents a counterclaim. there is • there is no no genuine issue or there is issue between an admission of the parties, i.e. material there may be allegations. issues but these are irrelevant • 10-day notice • 3-day notice required required May be On the merits interlocutory or on the merits d. motion to dismiss vs. demurrer to evidence MOTION TO MOTION TO DISMISS DISMISS UNDER RULE UNDER RULE

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Pearl remedial reviewer

16 • grounded on preliminary objections. • may be filed by any defending party against whom a claim is asserted in the action. • should be filed within the time for but prior to the filing of the answer of the defending party to the pleading asserting the claim against him.

33 (demurrer to evidence) • based on insufficiency of evidence. • may be filed only by the defendant against the complaint of the plaintiff. • may be filed only after the plaintiff has completed the presentation of his evidence.

Here the judgment in the first action is conclusive and constitutes a bar on every matter subject of the first action. It bars not only the issues litigated but the claim itself. Enumeration: a. effects of death of a party - Section 16. Death of party; duty of counsel. ∗ The death of the client will require his substitution by his legal representative to be ordered by the court wherein the case is pending, or even the appointment of an executor or administrator, but this time, by a court of probate jurisdiction. In the case of incapacity or incompetency of the party, this fact will merely entail the appointment of a guardian ad litem by the court trying the case upon being informed thereof by counsel of the parties, the parties themselves, or other reliable sources. ∗ These provisions apply where the claim survives and regardless of whether either the plaintiff or the defendant dies or whether the case is in the trial or appellate courts. No summons is required to be served on the substituted defendants. Instead, the order of substitution shall be served upon the parties substituted in the action, otherwise the court does not acquire jurisdiction over the substitute party. ∗ If there is failure to notify the fact of death: the case may continue and proceedings will be held valid,

e. res judicata, conclusiveness of judgment, law of the case -conclusiveness of judgment – this doctrine precludes the relitigation of an issue in a subsequent action between the same parties or their successor in interest where such issue had already been litigated by the parties in a previous action even if the causes of action are different. Does not necessarily bar the filing of another action between the same parties. What the doctrine bars is the re-litigation of the issues. -res judicata in its aspect and understood as bar by a prior judgment, precludes the filing of another action between the same parties on the same subject matter and for the same causes of action.

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Pearl remedial reviewer

and judgment will successors in interest.

bind

the

∗ The court cannot compel the lawyer to continue with the trial after the lawyer has notified the court of the death of his client. Otherwise, the entire proceeding is null and void; the court would have no jurisdiction over the estate, the heirs and the executors or administrators (Lawas vs. CA 146 SCRA 173) b. grounds for issuance of writ of preliminary injunction (previous exam: preliminary attachment) Sec. 3, Rule 58 A preliminary injunction may be granted when it is established: a. that the applicant is entitled to the relief demanded, and the whole or part of such relief consists in restraining the commission or continuance of the acts complained of, or in requiring the performance of an act or acts, either for a limited period or perpetually; b. that the commission, continuance or non performance of the act or acts complained of during the litigation would probably work injustice to the applicant; or c. that a party, court, or agency or a person is doing, threatening, or is attempting to do, or is procuring or suffering to be done, some act or acts probably in violation of the rights of the applicant respecting the subject of the action or proceeding, and tending to render the judgment ineffectual.

c. notice of lis pendens- when (grounds for cancellation) it is a notice of pendency of the action between the parties involving title to or right of possession over real property. Requisites: • Action affects the title or the right of possession of the real property. • Affirmative relief is claimed • Notice shall contain the name of the parties and the object of the action or defense and a description of the property affected thereby; and • Action in rem Grounds for cancellation: -the notice is for the purpose of molesting the adverse party; or -it is not necessary to protect the rights of the party who caused it to be recorded. d. grounds for new trial e. instances when appeal is not available-Rule 41 Problems: a. about the effect of the amended complaint without certification of non-forum shopping

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Pearl remedial reviewer

-failure to comply with the requirement shall not be curable by mere amendment of the complaint or other initiatory pleading but hall be cause for the dismissal of the case without prejudice unless otherwise provided upon motion and hearing (sec 5 r7) b. if you were the judge will you dismiss the case? Grounds -yes, sec5 r7 c. defendants died while the case is pending. Decide - sec20 r3, when the action is for recovery of money arising from contract, express or implied and the defendant dies before entry of final judgment in the court in which the action was pending at the time of such death, it shall not be dismissed but shall instead be allowed to continue until entry of final judgment. Concurrence of the following requisites: a. the action be one for recovery of money b. the money sought to be recovered arises from contracts, express or implied c. the defendant dies before entry of final judgment in the court in which the action is pending.

d. the answer was not verified, remedy of the plaintiff ? will you grant the motion for judgment on the pleadings? -remedy: pleadings may be amended or the court may order that the pleading may be verified at the discretion of the court. -opposing party- in case the pleading is unverified contrary to the requirements of the rules, the adverse party may move to strike out the pleading from the record of the case. e. The case was dismissed due to plaintiff’s failure to prosecute, same action was filed by the plaintiff, defendant moved for the dismissal on the ground of res judicata. Decide Essential conditions which must concur in order that res judicata may effectively apply are: a. the judgment sought to bar the new action must be final b. the decision must have been rendered by a court having jurisdiction over the subject matter and the parties c. the disposition of the case must be a judgment or order on the merits d. there must be between the first and second action identity of the parties, identity of subject matter and identity of causes of action. Definition and enumerations: 1. Properties exempt from execution Except as otherwise expressly provided by law, the following 7

Pearl remedial reviewer

property, and no other, shall be exempt from execution: (a) The judgment obligor’s family home as provided by law, or the homestead in which he resides, and land necessarily used in connection therewith; (b) Ordinary tools and implements personally used by him in hs trade, employment, or livelihood; © Three horses, or three cows, or three carabaos, or other beasts of burden such as the judgment obligor may select necessarily used by him in his ordinary occupation; (d) His necessary clothing and articles for ordinary personal use, excluding jewelry; (e) Household furniture and utensils necessary for housekeeping, and used for that purpose by the judgment obligor and his family, such as the judgment obligor may select, of a value not exceeding one hundred thousand pesos; (f) Provisions for individual or family use sufficient for four months; (g) The professional libraries and equipment of judges, lawyers, physicians, pharmacists, dentists, engineers, surveyors, clergymen, teachers, and other professionals, not exceeding three hundred thousand pesos in value; (h) One fishing boat and accessories not exceeding the total value of one hundred thousand pesos owned by a fisherman and by the lawful use of which he earns his livelihood; (i) So much of the salaries, wages, or earnings of the judgment obligor of his personal services within the

four months preceding the levy as are necessary for the support of his family; (j) Lettered gravestones; (k) Monies benefits, privileges, or annuities accruing or in any manner growing out of any life insurance; (l) The right to receive legal support, or money or property obtained as such support, or any pension or gratuity from the Government; (m) Properties specially exempt by law. But no article or species of property mentioned in his section shall be exempt from executio issued upon a judgment recovered for its price or upon a judgment of foreclosure of a mortgage thereon. 2. JUDGMENT ON THE PLEADINGS • based on the • based solely on pleadings, the pleadings. depositions, admissions and affidavits • available to • generally both plaintiff available only to and defendant the plaintiff, unless the defendant presents a counterclaim. there is • there is no no genuine issue or there is issue between an admission of the parties, i.e. material there may be allegations. issues but these SUMMARY JUDGMENT

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Pearl remedial reviewer

are irrelevant • 10-day notice • 3-day notice required required May be On the merits interlocutory or on the merits 3. VENUE OF ACTIONS Section 1. Venue of real actions. Actions affecting title to or possession of real property, or interest therein, 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. Forcible entry and detainer actions shall be commenced and tried in the municipal trial court of the municipality or city wherein the real property involved, or a portion thereof, is situated. Sec. 2. Venue of personal actions. All other 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. Sec. 3. Venue of actions against non-residents. If any of the defendants does not reside and is not found in the Philippines, and the action affects the personal status of the plaintiff, or any property of said defendant located in the Philippines, the action may be commenced and tried in the court of the place where the plaintiff resides, or

where the property or any portion thereof is situated or found. Sec. 4. When Rule not applicable. This Rule shall not apply: (a) In those cases where a specific rule or law provides otherwise; or (b) Where the parties have validly agreed in writing before the filing of the action on the exclusive venue thereof. Requisites for venue to be exclusive: (a) A valid written agreement (b)Executed by the parties before the filing of the action; and (c) Agreement to the exclusive nature of the venue. ∗ In the absence of qualifying or restrictive words, venue stipulation is merely permissive meaning that the stipulated venue is in addition to the venue provided for in the rule (Polytrade Corp. vs. Blanco 30 SCRA 187) Means of waiving venue: 1) failure to object by means of motion to dismiss (2) affirmative relief sought in the court where the case is filed (1)voluntary submission to the court where the case is filed (2)laches IF PROPERTY IS LOCATED AT THE BOUNDARIES OF TWO PLACES: file one case in either place at the option of the plaintiff. IF CASE INVOLVES TWO PROPERTIES LOCATED IN TWO DIFFERENT PLACES:

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Pearl remedial reviewer

(a) If the properties are the object of the same transaction, file it in any of the two places. (b) If they are the subjects of two distinct transactions, separate actions should be filed in each place. 4. Procedural rights for validity of judgment a. it must be in writing b. it must be personally and directly prepared by the judge c. it must state clearly and distinctly the facts and the law on which it is based. d. It must be signed by the judge e. It must be filed with the clerk of court. 5. VENUE 1. place where the action is instituted 2. may waived be JURISDICTION 1. power of the court to hear and decide a case 2. jurisdiction over the subject matter and over the nature of the action is conferred by law and cannot be waived 3.substantive 4. cannot be the subject of the agreement of the parties PERMISSIVE

COUNTERCLAI M (1) One which arises out of or is necessarily connected with the transaction or occurrence that is the subject matter of the opposing party’s claim. (2) It does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. (3) It is barred if not set up in the action.

COUNTERCLAI M (1) It does not arise out of nor is it necessarily connected with the subject matter of the opposing party’s claim.

(2) It may require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction. (3) It is NOT barred even if not set up in the action. (4) Need not be (4) Must be answered; no answered, default. otherwise, the defendant can be declared in default. 7. − Section 12. Class suit. REQUISITES OF A CLASS /REPRESENTATIVE SUIT: (a) subject matter of the controversy is one of common or general interest to many persons; (b)parties affected are so numerous that it is impracticable to bring them all before the court; (c) parties bringing the class suit are sufficiently numerous or representative of the class and 10

3.procedural 4.may be changed by the written agreement of the parties 6. COMPULSORY

Pearl remedial reviewer

can fully protect the interests of all concerned. 8. Requisites of permissive joinder of parties. (1) right to relief arises out of the same transaction or series of transactions; (2) there is a question of law or fact common to all the plaintiffs or defendants; and (3) such joinder is not otherwise proscribed by the provisions of the Rules on jurisdiction and venue. 9. Section 1. Who may intervene. ∗ Who may intervene: (a) One who has legal interest in the matter in litigation (b)One who has legal interest in the success of either of the parties, (c) One who has an interest against both parties (d)One who is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof FACTORS TO BE CONSIDERED BY THE COURT: (a) Whether or not the intervention will unduly delay or prejudice the adjudication of the rights of the original parties (b)Whether or not the intervenor’s rights may be fully protected in a separate proceeding 10. KINDS OF SERVICE SUMMONS: (1) personal service (2) substituted service (3) by publication OF

(4)any other form of service as the courts deemed sufficient SERVICE OF SUMMONS DIFFERENT ENTITIES A. SERVICE ON ENTITY WITHOU T JURIDICA L PERSONA LI-TY B. SERVICE UPON MINORS AND INCOMPE -TENTS ON

-upon any or all defendants being sued under common name; or -person in charge of office

-serve personally and on guardian or any person exercising parental authority over him; HOW. → In case of minors: by serving upon the minor, regardless of age, AND upon his legal guardian, or also upon either of his parents. → In case of incompetents: by serving on him personally AND upon his legal guardian, but not upon his parents, unless when they are his legal guardians IN ANY EVENT, if the minor or incompetent has no legal guardian, the plaintiff must obtain the appointment of a guardian ad litem for 11

Pearl remedial reviewer

C. SERVICE UPON PRISONE R D. SERVICE UPON DOMESTI C PRIVATE JURIDICA L ENTITY

him. - serve on officer having management of the jail or prison -To the president, managing partner, general manager, corporate secretary, treasurer, or in-house counsel.

* Service upon a person other than those mentioned is invalid and does not bind the corporation. E. - serve on resident SERVICE agent ; or if none; UPON gov’t official FOREIGN designated by law; or PRIVATE - on any officer or JURIDICA agent of the L ENTITY corporation within the Philippines. F. - in case defendant is SERVICE the Republic of the UPON Philippines by PUBLIC serving upon the CORPORA Solicitor General -TIONS - in case of a province, city or municipality, or like public corporations – by serving on its executive head, or on such other officer or officers as the law or the court may direct. G. 1. Requisites EXTRAa. defendant does not TERRITO- reside or is not found RIAL SER- within the Phil. VICE b. the action either: * affects the status of

plaintiff; *relates to or the subject of which is property within the Philippines in which defendant has a lien or interest; *demands a relief which consists wholly or in part in excluding the defendant from any interest in any property within the Phil; or *property of defendant has been attached in the Phil. 2. Mode of service a. with leave of court served outside the Phil. by personal service; or b. with leave of court serve by publication in a newspaper of general circulation, in which case copy of the summons and order of court must also be sent by registered mail to the last known address of defendant; or c. any other manner the court deem sufficient. Substituted service or with leave of court, personal service out of the Phil. as under extraterritorial service 12

H. SERVICE UPON RESIDEN T

Pearl remedial reviewer

TEMPORA -RILY OUT OF THE PHIL 11. GENERAL RULE: court cannot refuse execution UNLESS: (UCNID) 1. Execution is UNJUST OR IMPOSSIBLE 2. Equitable grounds like a CHANGE IN SITUATION 3. Judgment NOVATED by parties 4. Execution is enjoined 5. Judgment has become DORMANT

longer present his evidence and submits the case for decision based on the pr1osecution’s evidence 13. RULE 23 DEPOSITIONS PENDING ACTION Rules 23-28 provide for the DIFFERENT MODES OF DISCOVERY. DISCOVERY - is the procedure by which one party in an action is enabled to obtain before trial knowledge of relevant facts and of material evidence in the possession of the adverse party or of a witness. Rationale of discovery: to enable the parties to obtain the fullest possible knowledge of the issues and evidence long before the trial to prevent such trial from being carried on in the dark.

1. 2. 3. 4. 5.

Quashal of writ proper when: Improvidently issued Defective in substance Issued against the wrong party Judgment already satisfied Issued without authority CRIMINAL CASES 1. leave of court is necessary so that the accused could present his evidence if the demurrer is denied 3. if court denies the demurrer: a. if demurrer was with leave, accused may present his evidence b. if the demurrer was without leave, accused can no

12. CIVIL CASES 1. defendant need not ask for leave of court;

3. if court denies demurrer, defendant will present his evidence

Section 1. Depositions pending action, when may be taken. DEPOSITION – is a written testimony of a witness given in the course of a judicial proceeding in advance of the trial or hearing upon oral examination or in response to written interrogatories and where an opportunity is given for cross-examination. Depositions are intended as a means to compel disclosure of facts resting in the knowledge of a party or other person, which are relevant in a suit/proceeding.

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CLASSIFICATIONS OF DEPOSITIONS: (a) Depositions on ORAL EXAMINATION and Depositions upon WRITTEN INTERROGATORIES (b)Depositions DE BENE ESSE (those taken for purposes of a pending action); and, (c) Depositions IN PERPETUAM REI MEMORIAM (Rule 24) (those taken to perpetuate evidence for purposes of anticipated action, or in the event of further proceedings in a case on appeal, and to preserve it against danger of loss.) This Rule regulates depositions de bene esse ∗ Discovery is NOT MANDATORY but failure to avail carries sanctions in Rules 25 and 26.

(a) AFTER answer and deponent is not confined in prison. Section 3. Examination cross-examination. and

Section 4. Use of depositions. ∗ Where the witness is available to testify and the situation is not one of those excepted under Sec. 4, his deposition is inadmissible in evidence and he should be made to testify. It can be used as evidence by a party for any purpose under the specific conditions in Sec. 4. DEPONENT USE • any • by any party for contradicting or impeaching the testimony of deponent as witness • a party or any • by an adverse one who at the party for any time of the purpose deposition was an OFFICER, DIRECTOR, or MANAGING AGENT of a public or private corp., partnership, or association which is a party • witness, • by any party whether or not a for any purpose party if the court finds the 5 instances occurring

LIMITATIONS: (a) examination is conducted in bad faith (b) examination is conducted in such a manner as to annoy, embarrass or oppress the person subject to the inquiry (c) when the inquiry touches upon irrelevant or encroaches upon the recognized domains of privilege. WHEN TAKEN: WITH LEAVE OF COURT (a) after jurisdiction has been obtained over any defendant or over the property which is the subject of the action and BEFORE answer. (b)Deposition of a person confined in prison. WITHOUT LEAVE OF COURT

SCOPE OF DEPOSITIONS:

INQUIRY

IN

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Pearl remedial reviewer

1. Matter which is relevant to the subject of the pending action; 2. Not privileged 3. Not restricted by a protective order Section 10. Persons before whom depositions may be taken within the Philippines. Section 11. Persons before whom depositions may be taken in foreign countries. ∗ Persons before whom depositions may be take: WITHIN THE PHILIPPINES: (a) judge (b)notary public (c) any person authorized to administer oaths, as stipulated by the parties in writing OUTSIDE THE PHILIPPINES: (a) on notice, before a secretary of embassy or legation, consul general, consul, vice-consul, or consular agent of the Phil. (b) before such person or officer as may be appointed by commission or letters rogatory (c) any person authorized to administer oaths, as stipulated by the parties in writing Section 12. Commission or letters rogatory. COMMISSION LETTERS ROGATORY • issued to a • issued to the non-judicial appropriate foreign officer judicial officer of who will directly the foreign take the country who will testimony direct somebody in said foreign country to take

• applicable rules of procedure are those of the requesting court • resorted to if permission of the foreign country is given • leave of court is not necessary

down testimony • applicable rules of procedure are those of the foreign court requested to act • resorted to if the execution of the commission is refused in the foreign country •leave of court is necessary

Section 18. Motion to terminate or limit examination. WHEN TO FILE: (a) any time during the taking of the deposition (b)on motion or petition of any party or of the deponent; or (c) upon showing that the examination is conducted in

1. bad faith 2. in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party RULE 24 DEPOSITIONS BEFORE ACTION OR PENDING APPEAL Section 1. Depositions before action; petition. ∗ This Rule regulates the taking of depositions in perpetuam rei memoriam. Depositions under this Rule are also taken conditionally, to be used

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Pearl remedial reviewer

at the trial only in case deponent is not available.

the

Written interrogatories and the answers thereto must both be FILED and SERVED.

Depositions under this Rule do not prove the existence of any right and the testimony perpetuated is not in itself conclusive proof, either of the existence of any right nor even of the facts to which they relate, as it can be controverted at the trial in the same manner as though no perpetuation of testimony was ever had. However, in the absence of any objection to its taking, and even if the deponent did not testify at the hearing, the perpetuated testimony constitutes prima facie proof of facts referred to in the deposition. Section 6. Use of deposition. ∗ If deposition is taken under this Rule, it may be used in any action involving the SAME SUBJECT MATTER subsequently brought. Section 7. Depositions pending appeal. ∗ Sec. 7 is the procedure in perpetuating testimony AFTER JUDGMENT IN THE RTC and DURING THE PENDENCY OF AN APPEAL. RULE 25 INTERROGATORIES TO PARTIES Section 1. Interrogatories to parties; service thereof. ∗ PURPOSE of Written Interrogatories: to elicit facts from any adverse party (answers may also be used as admissions of the adverse party)

Section 4. Interrogatories.

Number

of

Section 5. Scope and use of interrogatories. ∗ A party may serve written interrogatories: WITHOUT LEAVE OF COURT – after answer has been served, for the first set of interrogatories. WITH LEAVE OF COURT – before answer has been served (reason: at that time, the issues are not yet joined and the disputed facts are not yet clear, when more than one set of interrogatories is to be served.) A judgment by default may be rendered against a party who fails to answer written interrogatories

The various modes of discovery are clearly intended to be cumulative, and not alternative or mutually exclusive.

Section 6. Effect of failure to serve written interrogatories. ∗ The provision and Rule 26 are directed to the party who fails and refuses to RESORT to the discovery procedures, and should not be confused with the provisions of Rule 29 which provides for sanctions or other consequences upon a party who refuses or fails to COMPLY with discovery procedures duly availed of by opponent. The justification for this provision is that the party in need

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Pearl remedial reviewer

of relevant facts having foregone the opportunity to inquire into the same from the other party through means available to him, he should not thereafter be permitted to unduly burden the latter with courtroom appearances or other cumbersome processes. Unless a party had been served written interrogatories, he may not be compelled by the adverse party:

Interroga tories

redirect, re-cross 4. no fixed time

interrogat ories 4. 15 days to answer unless extended or reduced by the court BY

RULE 26 ADMISSION ADVERSE PARTY

(a) to give testimony in open court, or (b) give a deposition pending appeal. The only exception is when the court allows it for GOOD CAUSE shown and to prevent a failure of justice. Depositio ns Upon Written Interroga tories to Parties under Rule 23 Sec. 25 As to 1. party or Deponen ordinary t witness As to 2. with Procedur interventi e on of the officer authorized by the Court to take deposition Interroga tories to Parties under Rule 25

Section 1. Request for admission. ∗ PURPOSE OF written request for admission is to expedite trial and relieve the parties of the costs of proving facts which will not be disputed on trial and the truth of which can be ascertained by reasonable inquiry. Section 2. Implied Admission. ∗ The effect of a failure to make a reply to a request for admission is that each of the matters of which an admission is requested is deemed admitted. Each matter must be denied SPECIFICALLY under oath setting forth in detail the reason why he cannot truthfully admit or deny.

1. party only

2.no interventi on. Written interrogat ories are directed to the party himself As to 3. direct, 3. only Scope cross, one set of

The answer to a request for admission under this rule may be made by the lawyer of the party and not necessarily the party himself.

Section 3. Effect of admission. ∗ USE: An admission under this section is for the purpose of the pending action only and cannot be used in other proceedings. 17

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RULE

27 PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS

RULE

28 PHYSICAL MENTAL EXAMINATION PERSONS

AND OF

Section 1. Motion for production or inspection; order. ∗ Production of documents affords more opportunity for discovery than a subpoena duces tecum because in the latter, the documents are brought to the court for the first time on the date of the scheduled trial wherein such documents are required to be produced. The test to be applied in determining the relevancy of the document and the sufficiency of their description is one of reasonableness and practicality.

Section 1. When examination may be ordered. ∗ The mental condition of a party is in controversy in proceedings for GUARDIANSHIP over an imbecile or insane person, while the physical condition of the party is generally involved in PHYSICAL INJURIES cases. Since the results of the examination are intended to be made public, the same are not covered by the physician-patient privilege.

PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS • essentially a mode of discovery • the Rules is limited to the parties to the action • the order under this Rule is issued only upon motion with notice to the adverse party

SUBPOENA DUCES TECUM

Section 4. Waiver of privilege. ∗ Where the party examined requests and obtains a report on the results of the examination the consequences are: (a) he has to furnish the other party a copy of the report of any previous or subsequent examination of the same physical and mental condition, and (b) he waives any privilege he may have in that action or any other involving the same controversy regarding the testimony of any other person who has so examined him or may thereafter examine him.

• means of compelling production of evidence • may be directed to a person whether a party or not • may be issued upon an ex parte application.

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RULE 29 REFUSAL TO COMPLY WITH MODES OF DISCOVERY SANCTIONS: 1. Contempt; 2. Payment of reasonable fees; 3. The matters regarding which the questions were asked, character or description of land et al., be taken to be in accordance with the claim of party obtaining the order; 4. Prohibiting the refusing party to produce evidence or support or oppose designated claims or defenses; 5. To strike out pleadings, order the dismissal of the action or stay the action until compliance or to render judgment by default. 6. Order the arrest of the refusing party except in cases of physical or mental examination. Defintions: a. stare decisis- embodies the rule that when the court has laid down a principle of law as applicable to a certain state of facts, it will adhere to that principle, and apply it to all future cases, where facts are substantially the same, regardless of whether the parties and property are the same. Under this principle, when a point of law has been settled by decision, it constitutes a precedent which is not afterwards to be departed from unless it is necessary to vindicate plain and obvious principles of law or to remedy continued injustice. b. the decision of the supreme court form part of the legal system

and failure of any court to apply them shall constitute an abdication of its duty to resolve a dispute in accordance with law, and shall be a ground for administrative action against an inferior court. Every court must take cognizance of decisions the Supreme Court has rendered because they are proper subjects of mandatory judicial notice and more importantly form part of the legal system. c. obiter dictum- opinion expressed by a court upon some question of law which is not necessary to the decision of the case before it. It is a remark made or opinion expressed by the judge in his decision upon a cause, by the way, that is, incidentally or collaterally and not directly upon the question before him, or upon a point not necessarily involved in the determination of the cause, or introduced by way of illustration or analogy or argument, such is not binding as precedent. d. law of the case- term applied to an established rule that when an appellate court passes on a question and remands a cause to a lower court for further proceedings, the question there settled becomes the law of the case upon subsequent appeal. It means whatever is once irrevocably established as the controlling legal rule between the same parties continues to be the law of the case so long as the facts of the case before the court. The doctrine applies only when a case is before a court a second time after ruling by an appellate court. 19

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15. GENERAL TYPES MOTION TO DISMISS:

OF

A

1. motion to dismiss before answer under Rule 16 Within the time for but before filing the answer to the complaint or pleading asserting a claim, a motion to dismiss may be made on any of the following grounds: (a) That the court has no jurisdiction over the person of the defending party; (b) That the court has no jurisdiction over the subject matter of the claim; © That venue is improperly laid; (d) That the plaintiff has no legal capacity to sue; (e) That there is another action pending between the same parties for the same cause; (f) That the cause of action is barred by a prior judgment or by the statute of limitations; (g) That the pleading asserting the claim states no cause of action; (h) That the claim or demand set forth in the plaintiff’s pleading has been paid, waived, abandoned, or otherwise extinguished; (i) That the claim on which the action is founded is unenforceable under the provisions of the statute of frauds; and (j) That a condition precedent for filing the claim has not been complied with. 2. motion to dismiss under Rule !7 a.upon notice by plaintiff A complaint may be dismissed by the plaintiff by filing a notice of dismissal at any time before

service of the answer or of a motion for summary judgment. Upon such notice being filed, the court shall issue an order confirming the dismissal. Unless otherwise stated in the notice, the dismissal is without prejudice, except that a notice operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in a competent court an action based on or including the same claim. b.upon motion of plaintiff Except as provided in the preceding section, a complaint shall not be dismissed at the plaintiff’s instance save upon approval of the court and upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiff’s motion for dismissal, the dismissal shall be limited to the complaint. The dismissal shall be without prejudice to the right of the defendant to prosecute his counterclaim in a separate action unless within fifteen (15) days from notice of the motion he manifests his preference to have his counterclaim resolved in the same action. Unless otherwise specified in the order, a dismissal under this paragraph shall be without prejudice. A class suit shall not be dismissed or compromised without the approval of the court. c.due to fault of plaintiff If, for no justifiable cause, the plaintiff fails to appear on the date of the presentation of his evidence 20

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in chief on the complaint, or to prosecute his action for an unreasonable length of time, or to comply with these Rules or any order of the court, the complaint may be dismissed upon motion of the defendant or upon the court’s own motion, without prejudice to the right of the defendant to prosecute his counterclaim in the same or in a separate action. This dismissal shall have the effect of an adjudication upon the merits, unless otherwise declared by the court. 3. motion to dismiss on demurrer to evidence after plaintiff has rested his case under Rule 33 After the plaintiff has completed the presentation of his evidence, the defendant may move for dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. If his motion is denied, he shall have the right to present evidence. If the motion is granted but on appeal the order of dismissal is reversed he shall be deemed to have waived the right to present evidence. 4. motion to dismiss the appeal filed either on the lower court ( Rule 41, Sec. 13 ) or in the appellate court ( Rule 50, Sec. 1 ) Sec. 13. Dismissal of appeal. Prior to the transmittal of the original record or the record on appeal to the appellate court, the trial court may motu proprio or on motion dismiss the appeal for having been taken out of time. Section 1. Grounds for dismissal of appeal.

An appeal may be dismissed by the Court of Appeals, on its own motion or on that of the 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 or the record on appeal within the period prescribed by these Rules; © Failure of the appellant to pay the docket and other lawful fees as provided in section 4 of Rule 41; (d) Unauthorized alterations, omissions or additions in the approved record on appeal as provided in section 4 of Rule 44; (e) Failure of the appellant to serve and file the required number of copies of his brief or memorandum within the time provided by these Rules; (f) Absence of specific assignment of errors in the appellant’s brief, or of page references to the record as required in section 13, paragraphs (a), (c), (d) and (f) of Rule 44; (g) Failure of the appellant to take the necessary steps for the correction or completion of the record within the time limited by the court in its order; (h) Failure of the appellant to appear at the preliminary conference under Rule 48 or to comply with orders, circulars, or directives of the court without justifiable cause; and (i) The fact that the order or judgment appealed from is not appealable. 16. forum shopping 21

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Failure to comply with the foregoing requirements shall not be curable by mere amendment of the complaint or other initiatory pleading but shall be cause for the dismissal of the case without prejudice, unless otherwise provided, upon motion and after hearing. The submission of a false certification or non-compliance with any of the undertakings therein shall constitute indirect contempt of court, without prejudice to the corresponding administrative and criminal actions. If the acts of the party or his counsel clearly constitute willful and deliberate forum shopping, the same shall be ground for summary dismissal with prejudice and shall constitute direct contempt, as well as a cause for administrative sanctions. 17. Section 5. Effect of failure to appear. EFFECT OF NON-APPEARANCE OF PLAINTIFF: -cause for dismissal of the action, with prejudice, unless otherwise ordered by the court. EFFECT OF NON-APPEARANCE OF DEFENDANT: - cause to allow the plaintiff to present evidence ex parte and the court to render judgment on the basis thereof. 18. Elements of a class suit 1. Subject matter of the controversy is one of common or general interest to many persons. 2. the persons are so numerous that it is impracticable to join them all as parties.

3. parties bringing the class suit are sufficiently numerous and representative of the class and can fully protect the interests of all concerned; and 4. the representative sues or defends for the benefit of all. 19. RULE 7. PARTS OF A PLEADING Section 1. Caption. The caption sets forth the name of the court, the title of the action, and the docket number if assigned. The title of the action indicates the names of the parties. They shall all be named in the original complaint or petition; but in subsequent pleadings, it shall be sufficient if the name of the first party on each side be stated with an appropriate indication when there are other parties. Their respective participation in the case shall be indicated. Sec. 2. The body. The body of the pleading sets forth its designation, the allegations of the party’s claims or defenses, the relief prayed for, and the date of the pleading. (a) Paragraphs. - The allegations in the body of a pleading shall be divided into paragraphs so numbered as to be readily identified, each of which shall contain a statement of a single set of circumstances so far as that can be done with convenience. A paragraph may be referred to by its number in all succeeding pleadings.

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(b) Headings. - When two or more causes of action are joined, the statement of the first shall be prefaced by the words “first cause of action,” of the second by “second cause of action,” and so on for the others. When one or more paragraphs in the answer are addressed to one of several causes of action in the complaint, they shall be prefaced by the words “answer to the first cause of action” or “answer to the second cause of action” and so on; and when one or more paragraphs of the answer are addressed to several causes of action, they shall be prefaced by words to that effect. (c) Relief. - The pleading shall specify the relief sought, but it may add a general prayer for such further or other relief as may be deemed just or equitable. (d) Date. - Every pleading shall be dated. Sec. 3. Signature and address. Every pleading must be signed by the party or counsel representing him, stating in either case his address which should not be a post office box. The signature of counsel constitutes a certificate by him that he has read the pleading; that to the best of his knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay. An unsigned pleading produces no legal effect. However, the court may, in its discretion, allow such deficiency to be remedied if it shall appear that the same was due to mere inadvertence and not

intended for delay. Counsel who deliberately files an unsigned pleading, or signs a pleading in violation of this Rule, or alleges scandalous or indecent matter therein, or fails to promptly report to the court a change of his address, shall be subject to appropriate disciplinary action. Sec. 4. Verification. Except when otherwise specifically required by law or rule, pleadings need not be under oath, verified or accompanied by affidavit. A pleading is verified by an affidavit that the affiant has read the pleading and that the allegations therein are true and correct of his knowledge and belief. A pleading required to be verified which contains a verification based on “information and belief,” or upon “knowledge, information and belief,” or lacks a proper verification, shall be treated as an unsigned pleading. Sec. 5. Certification against forum shopping. The plaintiff or principal party shall certify under oath in the complaint or other initiatory pleading asserting a claim for relief, or in a sworn certification annexed thereto and simultaneously filed therewith: (a) that he has not theretofore commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency and, to the best of his knowledge, no such other action or claim is pending therein; (b) if there is such other pending action 23

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or claim, a complete statement of the present status thereof; and (c) if he should thereafter learn that the same or similar action or claim has been filed or is pending, he shall report that fact within five (5) days therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed. Failure to comply with the foregoing requirements shall not be curable by mere amendment of the complaint or other initiatory pleading but shall be cause for the dismissal of the case without prejudice, unless otherwise provided, upon motion and after hearing. The submission of a false certification or non-compliance with any of the undertakings therein shall constitute indirect contempt of court, without prejudice to the corresponding administrative and criminal actions. If the acts of the party or his counsel clearly constitute willful and deliberate forum shopping, the same shall be ground for summary dismissal with prejudice and shall constitute direct contempt, as well as a cause for administrative sanctions. 20. An appeal may be taken from a judgment or final order that completely disposes of the case, or of a particular matter therein when declared by these Rules to be appealable. No appeal may be taken from:

(b) An order denying a petition for relief or any similar motion seeking relief from judgment; © An interlocutory order; (d) An order disallowing or dismissing an appeal; (e) An order denying a motion to set aside a judgment by consent, confession or compromise on the ground of fraud, mistake or duress, or any other ground vitiating consent; (f) An order of execution; (g) A judgment or final order for or against one or more of several parties or in separate claims, counterclaims, cross-claims and third-party complaints, while the main case is pending, unless the court allows an appeal therefrom; and (h) An order dismissing an action without prejudice. In all the above instances where the judgment or final order is not appealable, the aggrieved party may file an appropriate special civil action under Rule 65. PROHIBITED PLEADINGS / MOTIONS UNDER THE RULE ON SUMMARY PROCEDURE: (1) 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 prior section (referral to the Lupon) (2) Motion for a bill of particulars (3) Motion for a new trial or for reconsideration of a judgment or for reopening of trial (4) Petition for a relief from judgment

(a) An order denying a motion for new trial or reconsideration;

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(5) Motion for extension of time to

file pleadings, affidavits, or any other paper (6) Memoranda (7) Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court (8) Motion to declare defendant in default (9) Dilatory motions for postponement (10) Reply (11) Third party complaints (12) Interventions The filing of a prohibited pleading will not suspend the period to file an answer or to appeal.

the parties of the court’s pre-trial order, they shall submit (1) the affidavits of their witnesses (2) and other evidence on the factual issues set forth in the pre-trial order, TOGETHER WITH THEIR POSITION PAPERS SETTING FORTH THE LAW AND THE FACTS RELIED UPON BY THEM. Provisional remedies: CERTI PROHI ORA-RI BITION Purpos Inten preven e of ded as t the the commi a writ. correcti ssion or ve remedy carryin out annul g of an and act modify a procee ding Act Discreti Discreti sought on-ary on-ary to be act and control ministe -led. rial act With Exercisi Judicial respec ng and /or t to judicial nonrespon and quasi dent. quasijudicial judicial functio functio n n MAN DAMUS Intend ed to comp el perfor mance of an act desire d Minist erial act Judicia l and /or nonquasi judicia l functi on

Although a motion to dismiss is a prohibited pleading, its filing after the answer had already been submitted does not constitute a pleading prohibited by the summary rules. What the rules proscribe is a motion to dismiss that would stop the running of the period to file an answer and cause undue delay.

∗ The issuance of the pre-trial order is an important part of the summary procedure because it is its receipt by the parties that begins the ten-day period to submit the affidavits and other evidence. TRIAL PROCEDURE No trial date is set. No testimonial evidence is required nor cross-examination of witnesses allowed. All that is required is that within (10) days from receipt by

QUO WARRANTO – a proceeding or writ issued by the court to determine the right to use an

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office, position or franchise and to oust the person holding or exercising such office, position or franchise if his right is unfounded or if a person performed acts considered as grounds for forfeiture of said exercise of position, office or franchise. Quo warranto may also be used when an association acts as a corporation within the Philippines without being legally incorporated or without lawful authority so to act. QUO WARRANTO IN ELECTORAL PROCEEDINGS - To contest the right of an elected public officer to hold public office. QUO WARRANTO UNDER RULE 66 prerogative writ by w/c the govt. can call upon any person to show by what title he holds a public office or exercises a public franchise - an electoral - three grounds: proceeding usurpation, under the forfeiture, or Omnibus illegal Elections Code association for the exclusive purpose of impugning the election of a public officer on the ground of ineligibility or disqualification to hold the office - petition must presupposes be filed w/in 10 that the days from the respondent is proclamation of already actually

the candidate

- may be filed by any registered candidate for the same office and, who, even if the petition prospers, would not be entitled to that office.

holding office and action must be commenced within one year from cause of ouster or right of petitioner to hold office arose - the petitioner must be the government or the person entitled to the office and who would assume the same if his action succeeds.

JUDICIAL EXTRAJUDICIAL FORECLOSURE FORECLOSURE Requires court No court intervention intervention necessary There is only an Right of equity of redemption redemption exists Alternative Proper only remedy to when provided personal action for in the for the amount contract due to satisfy mortgage debt EQUITY OF REDEMPTION - right of the defendant mortgagor to extinguish the mortgage and retain ownership of the property by paying the debt w/in 90-120 days after the RIGHT OF REDEMPTION - right of the debtor, his successor in interest or any judicial creditor or judgment creditor of said debtor or any person having a lien on the

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entry of judgment or even after the foreclosure sale but prior to confirmation

- governed Rule 68 ACCION INTERDIC TAL summar y action for the recovery of physical possessio n where the dispossess ion has not lasted for more than one year. ejectme nt proceedin g under Rule 70; either forcible entry or unlawful detainer

property subsequent to the mortgage or deed of trust under w/c the property is sold to redeem the property w/in 1 year from the registration of the Sheriff’s certificate of foreclosure sale by - governed by Secs. 29-31 of Rule 39 ACCION REINVIDI CA-TORIA an action for the recovery of ownership , w/c necessaril y includes the recovery of possessio n.

ACCION PUBLICIA NA a plenary action for the recovery of the real right of possessio n when the disposses sion has lasted for more than one year.

 All cases of forcible entry and unlawful detainer irrespectiv e of the amount of damages or unpaid rentals sought to be recovered should be brought to the MTC.

 RTC has jurisdictio n if the value of the property exceeds P20,000 outside Metro Manila; P50,000 within Metro Manila,  MTC has jurisdictio n if the value of the property does not exceed P20,000 – outside Metro Manila; P50,000 within Metro Manila

 RTC has jurisdictio n if the value of the property exceeds P20,000 outside Metro Manila; P50,000 within Metro Manila,  MTC has jurisdictio n if the value of the property does not exceed P20,000 – outside Metro Manila; P50,000 within Metro Manila

Subject to Rules on Summary Procedure FORCIBLE UNLAWFUL ENTRY DETAINER possession of the land by the defendant is unlawful from the beginning as possession is inceptively lawful but it becomes illegal by reason of the

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he acquires possession by Force, Intimidation, Strategy, Threat or Stealth (FISTS) no previous demand for the defendant to vacate the premises is necessary the plaintiff must prove that he was in prior physical possession of the premises until he was deprived thereof by the defendant the 1 year period is generally counted from the date of actual entry on the land

termination of his right to the possession of the property under his contract w/ the plaintiff demand is jurisdictional if the ground is non-payment of rentals or failure to comply with lease contract the plaintiff need not have been in prior physical possession

reasonable value of the use and occupation of the premises on or before the 10th day of each succeeding month or period. ∗ However the RTC may issue a writ of preliminary mandatory injunction to restore plaintiff in possession if the court is satisfied that defendant’s appeal is frivolous or dilatory or appeal of plaintiff is prima facie meritorious, upon motion of plaintiff within 10 days from perfection of appeal. ∗ If there is no formal contract between parties; there can still be unlawful detainer because ejectment considers implied contracts. Possession by tolerance creates an implied promise to vacate the premises upon the demand of the owner. (Peran vs. CFI of Sorsogon) DIRECT CONTEMPT summary nature INDIRECT CONTEMPT punished after being charged and hearing GROUNDS: a) Misbehavior of an officer of a court in the performance of his official duties or in his official transactions. b) Disobedience of or resistance to a lawful writ, process, order, or judgment. Unauthorized intrusion to any real property 28

period is counted from the date of last demand or last letter of demand

in

JUDGMENT on ejectment proceedings are IMMEDIATELY EXECUTORY unless the defendant: (1) perfects his appeal, (2) files sufficient supersedeas bond to pay the rents, damages and costs accruing down to the time of judgment appealed from; and (3) deposits with the appellate court the amount of rent due from time to time under the contract or in the absence of a contract, the

GROUNDS: a) misbehavior in the presence of or so near a court as to obstruct or interrupt the proceedings. b) Disrespect towards the court.

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c) Offensive personalities towards others. d) Refusal to sworn or answer witness or subscribe affidavit deposition. be to as to an or

after being ejected; c) Any abuse or any unlawful interference w/ the proceedings not constituting direct contempt. d) Any improper conduct tending to degrade the administration of justice. e) Assuming to be an attorney or an officer of the court w/o authority. f) Failure to obey a subpoena g) Rescue, or attempted rescue, of a person or property in the custody of an officer. a. RTC – fine not exceeding P30,000 or imprisonment not exceeding 6 months or both b. MTC – fine not exceeding P5,000 or imprisonment not exceeding (1) month or both

the same may be punished for contempt if he disobeys. NO contempt however lies in judgments for money (Section 9) and judgments for specific act (Section 10) under Rule 39. REMEDIES to challenge contempt judgments: DIRECT CONTEMPT The person adjudged in direct contempt may avail himself of the remedies of certiorari or prohibition. The execution of the judgment shall be suspended pending resolution of the petition, provided such person files a bond and conditioned that he will abide by and perform the judgment should the petition be decided against him. INDIRECT CONTEMPT The person adjudged for indirect contempt may appeal such judgment or final order to the proper court as in criminal cases. The execution of the judgment shall NOT be suspended until a bond is filed by the person adjudged in contempt. ∗ The judgment against a person adjudged to be in contempt is immediately executory and can be stopped only by filing a bond. INTERPLEADER 1. an original action 2. presupposes that plaintiff has no interest in the subject matter of the action or has INTERVENTION 1. ancillary action 2. proper in any of the four situations: person having (a) legal interest in the matter in 29

If committed against: a. RTC – fine not exceeding P2, 000 or imprisonment not exceeding (10) days or both. b. MTC – fine not exceeding P200 or imprisonment not exceeding (1) day, or both.

∗ In special judgments under Rule 39 Section 11, the person required by the judgment to obey

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interest therein in whole or in part which is not disputed by the other parties

litigation, or (b) success of either of the parties, or (c) an interest against both, or (d) is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof. (Rule 19, Sec. 1.) 3. defendants 3. defendants are being sued are original precisely to parties to the interplead them pending suits INJUNCTION PROHIBITION 1. directed 1. Directed against a party against a court, in the action tribunal or a person exercising judicial powers 2. does not 2. Based on the involve round that the jurisdiction of court against the court whom the writ is sought had acted without or in excess of jurisdiction 3. it may be the 3. Always the main action main action itself or just a provisional remedy REPLEVIN ATTACHMENT 1. may be 1. Available

sought only when the principal action is recovery of personal property. 2. Can be sought only when defendant is in actual possession of the property. 3. Only extends to personal property capable of manual delivery.

even if recovery of property is only incidental to the relief sought. 2. May be resorted to even if the property is in possession of a third person.

3. Extends to all types of property whether real, personal or incorporeal. 4. Cannot be 4. Can be availed of when availed of even property is in if property is in custodia legis custodia legis. 5. Available before defendant answers 6. Bond is double the value of the property 5. From commencement but before entry of judgment 6. Fixed by the court

SPECIAL PROCEEDINGS
A remedy by which a party seeks to establish a status, a right or a particular fact (Rule 1, Section 3) JURISDICTION : Regional Trial Court Exception: MTC can entertain Special proceedings where:

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1. the gross value of the estate does not exceed 200T/400T (BP 129) 2. It acts in Cadastral and Land Registration Proceedings (Sec. 35 Judiciary Act) ∧ appeal is taken to the CA, not to the RTC since MTC is equal to RTC in this instance 3. Habeas Corpus where no RTC judge is available Venue on settlement proceedings: 1. If the decedent is an inhabitant of the Philippines. – RTC in province which he resides at the time of death. 2. If decedent is an inhabitant of a foreign country. – RTC of any province in which he had estate. ORDINARY SPECIAL ACTION PROCEEDING •to protect or •involves the enforce a right establishment of or prevent or the right, status redress a wrong or fact •involves two or •may involve more parties only one party •governed by •governed by ordinary rules special rules supplemented supplemented by special rules by ordinary rules heard by heard by courts of general courts of limited jurisdiction jurisdiction •pleadings are •petition or required application is sufficient EXTRAJUDICIA JUDUCIAL L SETTLEMENT SETLLEMENT 1. no court 1. requires intervention summary judicial adjudication

2. value of the estate immaterial 3. allowed only in intestate succession 4. there must be no outstanding debts of the estate at the time of settlement 5. resorted at the instance and by agreement of all heirs

2. gross estate must not exceed P10T 3. allowed in both testate and intestate 4. available even if there are debts; it is the court which will make provision for its payment 5. may be instituted by any interested party even a creditor of the estate without the consent of all heirs 6. amount of 6. bond to be bond is equal to determined by the value of the court personal property PETITIONS FOR THE CORRECTION, CANCELLATION OF ENTRIES verified petition filed in the place where the corresponding registry is located Civil registrar concerned is made a party to the proceeding as a respondent. By any person interested in any

PETITIONS FOR CHANGE OF NAME Petition to be filed in the RTC where the petitioner resides Solicitor General must be notified by service of a copy of the petition. Petition is filed by person

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desiring to change his name order for hearing shall be published once a week for three consecutive weeks

ACT, EVENT, ORDER or DECREE order shall also be published once for three consecutive weeks and court shall cause reasonable notice to persons named in petition service of judgment shall be upon the civil register concerned

proceedings nature.

be

adversarial

in

∗ Requisites of Adversarial proceedings: 1. Proper petition is filed where the Civil Registrar and all parties interested are impleaded. 2. The order of the hearing must be published 3. Notice thereof must be given to the Solicitor General and all parties affected thereby. 4. Opportunity for the respondents to be heard. 5. Full blown trial. NOTE: Proceedings for the correction of entries should not be considered as establishing one’s status is a manner conclusively beyond dispute. The status corrected would not have a superior quality for evidentiary purposes. There is no increase or dimunition of substantive right.

SOME RESTRICTIONS ON POWER OF ADMINISTRATOR/EXECUTOR: 1. cannot acquire by purchase, even at public or judicial auction, either in person or mediation of another, the property under administration 2. cannot borrow money without authority of the court 3. cannot speculate with funds under administration 4. cannot lease the property for more than one year 5. cannot continue the business of the deceased unless authorized by the court 6. cannot profit by the increase or decrease in the value of the property under administration CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL REGISTRY ∗ This Rule applies not only to proceedings for correction of innocuous or clerical errors but also to correct substantial errors such as citizenship,status,and legitimacy. However in the latter case, it is necessary that the

CRIMINAL PROCEDURE
REPUBLIC ACT 8249 AN ACT FURTHER DEFINING THE JURISDICTION OF THE SANDIGANBAYAN, AMENDING FOR THE PURPOSE PRESIDENTIAL DECREE NO. 1606, AS AMENDED, PROVIDING FUNDS THEREFOR, AND FOR OTHER PURPOSES. SECTION 1. The first paragraph of the Presidential Decree 1606, as amended, is hereby further amended to read as follows: “SECTION 1. Sandiganbayan; Composition; Qualifications; Tenure; 32

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Removal and Compensation. – A special court, of the same level as the Court of Appeals and possessing all the inherent powers of a court of justice, to be known as the Sandiganbayan is hereby created composed of a Presiding justice and fourteen associate justices who shall be appointed by the President.” SEC. 2. Section 2 of the same decree is hereby further amended to read as follows: “SEC. 2. Official Station; Place of Holding Sessions. The Sandiganbayan shall have its principal office in the Metro Manila area and shall hold sessions thereat for the trial and determination of cases filed with it: Provided, however, That cases originating from the principal geographical regions of the country, that is, from Luzon, Visayas or Mindanao, shall be heard in their respective regions of origin except only when the greater convenience of the accused and of the witnesses, or other compelling considerations require the contrary, in which instance a case originating from one geographical region may be heard in another geographical region; Provided, further, That for this purpose the presiding justice shall authorized any division or divisions of the court to hold sessions at anytime and place outside Metro Manila and where the interest of justice so requires, outside the territorial boundaries of the Philippines. The Sandiganbayan may require the services of the personnel and the use of facilities of the courts or other government offices where

any of the divisions is holding sessions and the personnel of such courts or offices shall be subject to the orders of the Sandiganbayan. SEC. 3. The second paragraph of Section 3 of the same decree is hereby deleted. SEC. 4. Section 4 of the same decree is hereby further amended to read as follows: “SEC. 4. Jurisdiction. – The Sandiganbayan shall exercise exclusive original jurisdiction in all cases involving: :a. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII, Book II of the Revised Penal Code, where one or more of the accused are officials occupying the following positions in the government, whether in a permanent, acting or interim capacity, at the time of the commission of the offense: “(1) Official of the executive branch occupying the positions of regional director and higher, otherwise classified as Grade ‘27’ and higher, of the Compensation and Position Classification Act of 1989 (Republic Act No. 6758), specifically including: “(a) Provincial governors, vice-governors, members of the sangguniang panlalawigan, and provincial treasurers, assessors, engineers, and other provincial department heads; “(b) City mayors, vicemayors, members of the sangguniang panlungsod, city treasurers, assessors, engineers, and other department heads; 33

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“(c) Officials of the diplomatic service occupying the position of consul and higher; “(d) Philippine army and air force colonels, naval captains, and all officers of higher rank; “(e) Officers of the Philippine National Police while occupying the position of provincial director and those holding the rank of senior superintendent or higher; “(f) City and provincial prosecutors and assistants, and officials and prosecutors in the Office of the Ombudsman and provincial prosecutors; “(g) Presidents, directors or trustees, or managers of government-owned or controlled corporations, state universities or educational institutions or foundations; “(2) Members of Congress and officials thereof classified as Grade ‘27’ and up under the Compensation and Position Classification Act of 1989; “(3) Members of the Judiciary without prejudice to the provisions of the Constitutions; “(4) Chairmen and members of Constitutional Commissions, without prejudice to the provisions of the Constitution; and “(5) All other national and local officials classified as Grade ‘27’ and higher under the Compensation and Position Classification Act of 1989. ‘b. Other offenses or felonies whether simple or complexed with other crimes committed by the public officials and employees mentioned in subsection a of this section in relation to their office.

“c. Civil and criminal cases filed pursuant to and in connection with Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986. “In cases where none of the accused are occupying positions corresponding to Salary Grade ‘27’ or higher, as prescribed in said Republic Act No. 6758, or military or PNP officers mentioned above, exclusive original jurisdiction thereof shall be vested in the proper regional trial court, metropolitan trial court, municipal trial court and municipal circuit trial court, as the case may be, pursuant to their respective jurisdictions as provided in Batas Pambansa 129, as amended. The Sandiganbayan shall exercise exclusive appellate jurisdiction over final judgments, resolutions or orders of regional trial courts whether in the exercise of their own original jurisdiction or of their appellate jurisdiction as herein provided. “The Sandiganbayan shall have exclusive original jurisdiction over petitions for the issuance of writs of mandamus, prohibition, certiorari, habeas corpus, injunctions, and other ancillary writs and processes in aid of its appellate jurisdiction and over petitions of similar nature, including quo warranto, arising or that may arise in cases filed or which be filed under Executive Order Nos. 1, 2, 14 and 14-A issued in 1986. Provided, that the jurisdiction over these petitions shall not be exclusive of the Supreme Court. “The procedure prescribed in Batas Pambansa 129, as well as the implementing rules that the 34

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Supreme Court has promulgated and may hereafter promulgate, relative to appeals/petitions for review to the Court of Appeals, shall apply to appeals and petitions for review filed with the Sandiganbayan. In all cases elevated to the Sandiganbayan and from Sandiganbayan to the Supreme Court, the Office of the Ombudsman, through its Special Prosecutor, shall represent the People of the Philippines, except in cases filed pursuant to Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986. “In case private individuals are charge as co-principals, accomplices, or accessories with the public officers or employees, including those employed in government-owned or controlled corporations, they shall be tried jointly with said public officers and employees in the proper courts which shall exercise exclusive jurisdiction over them. “Any provisions of law or Rules of Court to the contrary notwithstanding, the criminal action and the corresponding civil action for the recovery of civil liability shall at all times be simultaneously instituted with, and jointly determined in, the same proceeding by the Sandiganbayan or the appropriate courts, the filing of the criminal action being deemed to necessarily carry with it the filing of such civil action separately from the criminal action shall be recognized: Provided, however, That where the civil action had heretofore been filed separately but judgment therein has not yet been rendered, and the

criminal case is hereafter filed with the Sandiganbayan or the appropriate court, said civil action shall be transferred to the Sandiganbayan or the appropriate court, as the case may be, for consolidation and joint determination with the criminal action, otherwise the separate civil action shall be deemed abandoned.” SEC. 5. Section 7 of the same decree is hereby further amended to read as follows: “SEC. 7. Form, Finality and Enforcement of Decisions. – all decisions and final orders determining the merits of a case or finally disposing of the action or proceedings of the Sandiganbayan shall contain complete findings of the facts and the law on which they are based, on all issues properly raised before it and necessary in deciding the case. “A petition for reconsideration of any final order or decision may be filed within fifteen (15) days from promulgation or notice of the final order or judgment, and such motion for reconsideration shall be decided within thirty (30) days from submission thereof. “Decisions and final orders of the Sandiganbayan shall be appealable to the Supreme Court by petition for review on certiorari raising pure questions of law in accordance with Rule 45 of the Rules of Court. Whenever, in any case decided by the Sandiganbayan, the penalty of reclusion perpetua, life imprisonment or death is imposed, the decision shall be appealable to 35

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the Supreme Court in the manner prescribed by the Rules of Court. “Judgments and orders of the Sandiganbayan shall be executed and enforced in the manner provided by law. “Decisions and final orders of other courts in cases cognizable by said courts under this decree as well as those rendered by them in the exercise of their appellate jurisdiction shall be appealable to, or be reviewable by, the Sandiganbayan in the manner provided by Rule 122 of the Rules of Court.” “In case, however, the imposed penalty by the Sandiganbayan or the regional trial court in the proper exercise of their respective jurisdiction, is death, review by the Supreme Court shall be automatic, whether or not the accused files an appeal.” SEC. 6. Appropriations. – The amount necessary to carry out the initial implementation of this Act shall be charged against the current fiscal year appropriations of the Sandiganbayan. Thereafter, such sums as may be needed for its continued implementation shall be included in the annual General Appropriations Act. SEC. 7. Transitory Provision. – This act shall apply to all cases pending in any court over which trial has not begun as of the approval thereof. SEC. 8. Separability of Provisions. – If for any reason any provision of this Act is declared unconstitutioal or invalid, such parts or portions not affected thereby shall remain in full force and effect.

SEC. 9. Repealing Clause. All acts, decrees, general orders and circulars, or parts thereof inconsistent with the provisions of this Act are hereby repealed or modified accordingly. SEC. 10. Effectivity. This Act shall take effect fifteen (15) days after its complete publication in at least two (2) newspapers of general circulation. Approved: 05 February 1997. A.M. No. 01-1-03-SC Re: Amendment to Section 3, Rule 41 of the 1997 Rules of Civil Procedure. The Court resolved to AMEND Section 3, Rule 41 of the 1997 Rules of Civil Procedure to read as follows: Sec. 3. Period of ordinary appeal; appeal in habeas corpus cases.- The appeal shall be taken within fifteen (15) days from notice of the judgment or final order appealed from. Where a record on appeal is required, the appellant shall file a notice of appeal and a record on appeal within thirty (30) days from notice of the judgment or final order. However, an appeal in habeas corpus cases shall be taken within forty-eight (48) hours from notice of the judgment or final order appealed from. The period of appeal shall be interrupted by a timely motion for new trial or reconsideration. No motion for extension of time to file a motion for new trial or

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reconsideration shall be allowed. (n) The amendment shall take effect on 15 July, 2001 following the publication of this Resolution in two (2) newspapers of general circulation not later than 30 June 2001. Promulgated this 19th day of June, 2001. PROSECUTION OF OFFENSES 2000 Amendment Sec. 1. Institution of criminal actions. – Criminal actions shall be instituted as follows: (A) FOR OFFENSES WHERE A PRELIMINARY INVESTIGATION IS REQUIRED PURSUANT TO SECTION 1 OF RULE 112, BY FILING THE COMPLAINT WITH THE PROPER OFFICER FOR THE PURPOSE OF CONDUCTING THE REQUISITE PRELIMINARY INVESTIGATION. (b) For all other offenses, by filing the complaint or information directly with the Municipal Trial Courts and Municipal Circuit Trial Courts, or the complaint with the office of the prosecutor. In Manila and other chartered cities, the complaint shall be filed with the office of the prosecutor unless otherwise provided in their charters. THE INSTITUTION OF THE CRIMINAL ACTION SHALL INTERRUPT THE RUNNING OF THE PERIOD OF PRESCRIPTION OF THE OFFENSE CHARGED UNLESS OTHERWISE PROVIDED IN SPECIAL LAWS.

PRELIMINARY INVESTIGATION IS REQUIRED: Where the offense is punishable by imprisonment of at least four (4) years, two (2) months and one (1) day, without regard as to the fine except as provided in Section 7 of Rule 112. ∗ Under the amendment, the institution of ALL CRIMINAL ACTIONS shall be the same, including those offenses that are subject to the rule on Summary Procedure in relation to the interruption of the period of prescription. ∗ In the filing of all criminal actions, even those subject to summary procedure shall interrupt the running of the prescriptive period, except those punishable by special laws. Requisites of a complaint: 1. it must be in writing and under oath; 2. it must charge a person with an offense; 3. it must be subscribed by the offended party, by any peace officer or public officer charged with the enforcement of the law violated Requisites of an information: 1. it must be in writing; 2. it must charge a person with an offense; 3. it must be subscribed by the fiscal; 4. it must be filed in court

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Section 5. Who must prosecute criminal actions. FISCAL’S DISCRETION IN PROSECUTION Prior to filing a case in court: 1. A prosecuting attorney cannot be compelled to file a particular information when he is convinced that he does not have the necessary evidence. 2. The court cannot interfere with the Fiscal’s discretion and control of the criminal prosecution. REMEDY: appeal the Fiscal’s decision to the Dept. of Justice &/or ask for a special prosecutor After the filing of the case: 1. Once a case is filed in court, the court acquires jurisdiction and such continues until the termination of the case. 2. Criminal prosecution cannot be restrained or stayed by injunction, preliminary or final. 3. Prosecutor has no more control of the case and desired relief must be addressed to the court. Offenses prosecuted only by the offended party: 1. Adultery and concubinage (by the offended spouse) 2. Seduction, abduction, and acts of lasciviousnes (by offended party, parents, grandparents, guardian, state) 3. Defamation – which consists in the imputation of an offense mentioned above (by offended party) ∗ RAPE is now classified under crimes against persons. It may

now be filed by the prosecutor. (RA 8353) * Compliance is not jurisdictional, but merely a CONDITION PRECEDENT. In the sense that if non-compliance is not objected to, the action may still proceed. Section 6. Sufficiency complaint or information. of

Minimum requirements for a valid complaint or information: 1. Name of the accused, including any appellation or nickname -- When offense is committed by more than one person, all of them shall be included in the complaint or information 2. The designation of the offense by the statute 3. The acts or omissions complained of as constituting the offense 4. The name of the offended party 5. The approximate time of the commission of the offense 6. The place wherein the offense was committed 2000 Amendment Sec. 14. Amendment or substitution. (now requires) – “any amendment before plea, which downgrades the nature of the offense charged in or excludes any accused from the complaint or information, can be made only upon motion by the prosecutor, with notice to the offended party and with leave of court. The court shall state its reasons in resolving the motion and copies of its order

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shall be furnished all parties, especially the offended party.” ∗ Before entering plea, amendment of a complaint or information is a matter of right, in substance and in form. ∗ If the amendment downgrades the offense or excludes one of the accused, it can only be made upon motion by the prosecutor, with notice to the offended party and with leave of court. ∗ After the plea and during the trial, amendment is a matter of judicial discretion (requires leave of court) but only as to matters of form, and when the same can be done without prejudice to the rights of the accused. ∗ If a complaint is erroneous in charging the proper offense, the courts must dismiss it upon filing of a new one. (Sec. 19, Rule 119) AMENDMENT SUBSTITUTION OF INFORMATION OR COMPLAINT 1. Involves substantial change from the original charge 2. Substitution of information must be with leave of court as the original information has to be dismissed. 3. Another preliminary investigation is

1. May involve either formal or substantial changes 2. Amendment before the plea has been entered can be effected without leave of court. 3. Amendment is only as to form, there is no need

for another preliminary investigation and the retaking of the plea of the accused. 4. An amended information refers to the same offense charged in the original information or to an offense which necessarily includes or is necessarily included in the original charge, hence substantial amendments to the information after the plea has been taken cannot be made over the objection of the accused, for if the original information would be withdrawn, the accused could invoke double jeopardy.

entailed and the accused has to plead anew to the new information 4. Requires or presupposes that the new information involves a different offense which does not include or is not necessarily included in the original charge, hence the accused cannot claim double jeopardy.

2000 Amendment Sec. 1. Institution of criminal and civil actions. – (a) When a criminal action is instituted, the civil action for the recovery of civil liability ARISING FROM THE OFFENSE CHARGED SHALL BE DEEMED instituted with the criminal action unless the offended party waives 39

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the civil action, reserves his right to institute it separately, or institutes the civil action prior to the criminal action. EXCEPT AS OTHERWISE PROVIDED IN THESE RULES, NO FILING FEES SHALL BE REQUIRED FOR ACTUAL DAMAGES. NO COUNTERCLAIM, CROSS-CLAIM OR THIRD PARTY COMPLAINT MAY BE FILED BY THE ACCUSED IN THE CRIMINAL CASE, BUT ANY CAUSE OF ACTION WHICH COULD HAVE BEEN THE SUBJECT THEREOF MAY BE LITIGATED IN A SEPARATE CIVIL ACTION. (B) THE CRIMINAL ACTION FOR VIOLATION OF BATAS PAMBANSA BLG. 22 SHALL BE DEEMED TO INCLUDE THE CORRESPONDING CIVIL ACTION. NO RESERVATION TO FILE SUCH CIVIL ACTION SEPARATELY SHALL BE ALLOWED. UPON FILING OF THE AFORESAID JOINT CRIMINAL AND CIVIL ACTIONS, THE OFFENDED PARTY SHALL PAY IN FULL THE FILING FEES BASED ON THE AMOUNT OF THE CHECK INVOLVED, WHICH SHALL BE CONSIDERED AS THE ACTUAL DAMAGES CLAIMED. WHERE THE COMPLAINT OR INFORMATION ALSO SEEKS TO RECOVER LIQUIDATED, MORAL, NOMINAL, TEMPERATE OR EXEMPLARY DAMAGES, THE OFFENDED PARTY SHALL PAY ADDITIONAL FILING FEES BASED ON THE AMOUNTS ALLEGED THEREIN. IF THE AMOUNTS ARE NOT SO ALLEGED BUT ANY OF THESE DAMAGES ARE

SUBSEQUENTLY AWARDED BY THE COURT, THE FILING FEES BASED ON THE AMOUNT AWARDED SHALL CONSTITUTE A FIRST LIEN ON THE JUDGMENT. WHERE THE CIVIL ACTION HAS BEEN FILED SEPARATELY AND TRIAL THEREOF HAS NOT YET COMMENCED, IT MAY BE CONSOLIDATED WITH THE CRIMINAL ACTION UPON APPLICATION WITH THE COURT TRYING THE LATTER CASE. IF THE APPLICATION IS GRANTED, THE TRIAL OF BOTH ACTIONS SHALL PROCEED IN ACCORDANCE WITH SECTION 2 OF THIS RULE GOVERNING CONSOLIDATION OF THE CIVIL AND CRIMINAL ACTIONS. (Circ. 57-97) Instances when civil liability arising from offense charged not concurrently determined in the criminal action: 1. when the offended party waives the civil action 2. when the offended party reserves his right to institute a separate civil action 3. when the offended party institutes a civil action prior to the criminal action. ∗ WHEN RESERVATION SHALL BE MADE: Reservation to institute a separate civil action shall be made: 1. before the prosecution starts to present its evidence 2. under circumstances affording the offended party to a reasonable opportunity to make such reservation.

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∗ PURPOSE: to prevent the offended party from recovering damages twice for the same act or omission. ∗ ACQUITTAL IN A CRIMINAL CASE DOES NOT BAR CONTINUATION OF THE CIVIL CASE WHERE: 1. the acquittal is based on reasonable doubt 2. the decision contains a declaration that the liability of the accused is not criminal but only civil 3. the civil liability is not derived from or based on the criminal act of which the accused is acquitted. 2000 Amendment Sec. 4. Effect of death on civil actions. – The death of the accused after arraignment and during the pendency of the criminal action shall extinguish the civil liability arising from the delict. However, the independent civil action instituted under section 3 of this Rule or which thereafter is instituted to enforce liability arising from other sources of obligation may be continued against the estate or legal representative of the accused after proper substitution or against said estate, as the case may be. The heirs of the accused may be substituted for the deceased without requiring the appointment of an executor or administrator and the court may appoint a guardian ad litem for the minor heirs. The court shall forthwith order said legal representative or representatives to appear and be

substituted within a period of thirty (30) days from notice. A final judgment entered in favor of the offended party shall be enforced in the manner especially provided in these rules for prosecuting claims against the estate of the deceased. If the accused dies before arraignment, the case shall be dismissed without prejudice to any civil action the offended party may file against the estate of the deceased. (n) Elements of a prejudicial question: 1. The civil action must be instituted prior to the criminal action. 2. The civil action involves an issue similar or intimately related to the issue raised in the criminal action. 3. The resolution of such issue determines whether or not the criminal action may proceed. . Duplicity of offense. (Doctrine of duplicity) GENERAL RULE: A single complaint or information must charge only one offense. EXCEPTION: Complex crimes -where the law prescribes a single punishment for various crimes ∗ During preliminary investigation, searching questions and answers are ASKED.

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REMEDIES OF THE ACCUSED IF THERE WAS NO PRELIMINARY INVESTIGATION: 1. Refuse to enter a plea upon arraignment and object to further proceedings upon such ground 2 Insist on a preliminary investigation 3. File a certiorari, if refused 4. Raise lack of preliminary investigation as error on appeal 5. File for prohibition PURPOSE OF PRELIMINARY INVESTIGATION: To protect the accused from the inconvenience, expenses and burden of defending himself in a formal trial unless the reasonable probability of his guilt shall have been first ascertained in a fairly summary proceeding by a competent officer. It is also intended to protect the state from having to conduct useless and expensive trials. Section 2. Officers authorized to conduct preliminary investigation. Persons authorized to conduct a preliminary investigation: 1. Provincial or city fiscal and their assistants 2. Judges of the MTC and MCTC 3. National and regional state prosecutors 4. Such other officers as may be authorized by law such as: the COMELEC, Ombudsman and PCGG 2000 Amendment Sec. 3. Procedure. – The preliminary investigation shall be conducted in the following manner:

(a) The complaint shall state the address of the respondent and shall be accompanied by affidavits of the complainant and his witnesses, AS WELL AS OTHER SUPPORTING DOCUMENTS TO ESTABLISH PROBABLE CAUSE. They shall be in such number of copies as there are respondents, plus two (2) copies for the official file. The affidavits shall be subscribed and sworn to before any prosecutor or government official authorized to administer oath, or, in their absence or unavailability, before a notary public, each of whom must certify that he personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits. (b) Within ten (10) days after the filing of the complaint, the investigating officer shall either dismiss it if he finds no ground to continue with the investigation, or issue a subpoena to the respondent, attaching to it a copy of the complaint and its supporting affidavits and documents. THE RESPONDENT SHALL HAVE THE RIGHT TO EXAMINE THE EVIDENCE SUBMITTED BY THE COMPLAINANT WHICH HE MAY NOT HAVE BEEN FURNISHED AND TO COPY THEM AT HIS EXPENSE. IF THE EVIDENCE IS VOLUMINOUS, THE COMPLAINANT MAY BE REQUIRED TO SPECIFY THOSE WHICH HE INTENDS TO PRESENT AGAINST THE RESPONDENT, AND THESE SHALL BE MADE AVAILABLE FOR EXAMINATION OR COPYING BY THE RESPONDENT AT HIS EXPENSE. 42

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OBJECTS AS EVIDENCE NEED NOT BE FURNISHED A PARTY BUT SHALL BE MADE AVAILABLE FOR EXAMINATION, COPYING, OR PHOTOGRAPHING AT THE EXPENSE OF THE REQUESTING PARTY. (c) Within ten (10) days from receipt of the subpoena with the complaint and supporting affidavits and documents, the respondent shall submit his counter-affidavit and that of his witnesses AND OTHER SUPPORTING DOCUMENTS RELIED UPON FOR HIS DEFENSE. The counter-affidavits shall be subscribed and sworn to and certified as prescribed in paragraph (a) of this section, with copies thereof furnished by him to the complainant. THE RESPONDENT SHALL NOT BE ALLOWED TO FILE A MOTION TO DISMISS IN LIEU OF A COUNTER-AFFIDAVIT. (d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-affidavits within the ten (10) day period, the investigating officer shall resolve the complaint based on the evidence presented by the complainant. (e) The investigating officer may set a hearing if there are facts and issues to be clarified from a party or a witness. The parties can be present at the hearing but without the right to examine or crossexamine. They may, however, submit to the investigating officer questions which may be asked to the party or witness concerned.

The hearing shall be held within ten (10) days from submission of the counter-affidavits and other documents or from the expiration of the period for their submission. IT SHALL BE TERMINATED WITHIN FIVE (5) DAYS. (f) Within ten (10) days after the investigation, the investigating officer shall determine whether or not there is sufficient ground to hold the respondent for trial. ∗ A motion to dismiss is now a prohibited pleading when the case is under preliminary investigation and requires that the respondent should submit counter-affidavits or other supporting documents relied upon by him for his defense. 2000 Amendment Sec. 4. Resolution of investigating prose-cutor and its review. -- If the investigating prosecutor finds cause to hold the respondent for trial, he shall prepare the resolution and information. He shall certify under oath in the information that he, or as shown by the record, an authorized officer, has personally examined the complainant and his witnesses; that there is reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof; that the accused was informed of the complaint and of the evidence submitted against him; and that he was given an opportunity to submit controverting evidence. Otherwise, he shall recommend dismissal of the complaint. 43

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Within five (5) days from his resolution, he shall forward the records of the case to the provincial or city prosecutor or chief state prosecutor, OR TO THE OMBUDSMAN OR HIS DEPUTY IN CASES OF OFFENSES COGNIZABLE BY THE SANDIGANBAYAN IN THE EXERCISE OF ITS ORIGINAL JURISDICTION. They shall act on the resolution within ten (10) days from their receipt thereof and shall immediately inform the parties of such action. No complaint or information may be filed or dismissed by an investigating prosecutor without the prior written authority or approval of the provincial or city prosecutor or chief state prosecutor OR THE OMBUDSMAN OR HIS DEPUTY. Where the investigating prosecutor recommends the dismissal of the complaint but his recommendation is disapproved by the provincial or city prosecutor or chief state prosecutor OR THE OMBUDSMAN OR HIS DEPUTY on the ground that a probable cause exists, the latter may, by himself, file the information against the respondent, or direct another assistant prosecutor or state prosecutor to do so without conducting another preliminary investigation. If upon petition by a proper party under such rules as the Department of Justice may prescribe or motu propio, the Secretary of Justice reverses or

modifies the resolution of the provincial or city prosecutor or chief state prosecutor, he shall direct the prosecutor concerned to file the corresponding information without conducting another preliminary investigation or to dismiss or move for dismissal of the complaint or information with notice to the parties. The same rule shall apply in preliminary investigations conducted by the officers of the Office of the Ombudsman. ∗ Under the amendment, whether the recommendation of the investigating officer is to file or dismiss the case, he shall, within 5 days from his resolution, forward the records of the case to the provincial or city prosecutor or chief state prosecutor or; for offenses cognizable by the Sandiganbayan in the exercise of its original jurisdiction to the Ombudsman or his deputy the latter shall take appropriate actions thereon within 10 days from receipt and shall immediately inform the parties of said action. ∗ This refers to a petition for review of the prosecutor’s resolution pending at either the Department of Justice or the Office of the President; provided that the period of suspension shall not exceed 60 days counted from the filing of the petition with the reviewing officer. ∗ The municipal judge conducting preliminary investigation has no authority to determine the character of the crime but only to 44

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determine whether or not the evidence presented supported prima facie the allegation of fact contained in the complaint. ∗ If the prosecutor disagrees with the findings of the investigating judge on the existence of probable cause, the prosecutor’s ruling shall prevail, subject to the procedure in the last paragraph of section 5. ∗ It is the prosecutor who is given by law direction and control of all criminal actions. This function is executive, not judicial. Hence, when a preliminary investigation is conducted by a judge, the judge performs a non-judicial function, as an exception to his usual judicial duties. Conditions before the investigating municipal trial judge can issue a warrant of arrest: 1. Have examined in writing and under oath the complainant and his witnesses by searching questions and answers; 2. Be satisfied that a probable cause exists; 3. That there is a need to place the respondent under immediate custody in order not to frustrate the ends of justice ∗ PROBABLE CAUSE: Sufficient facts must be presented to the judge or magistrate issuing the warrant to convince him that there is probable cause for believing that the person whose arrest is sought committed the crime charged. It is not required to prove that the

particular person has committed the crime.

actually

∗ The judge need not personally examine the complaint and witnesses in the determination of probable cause for the issuance of the warrant of arrest. He is only required to: 1. Personally evaluate the report and the supporting documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest; 2. If on the basis thereof he finds no probable cause, he may disregard the prosecutor’s report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause. ∗ The amendment in subsection (b) regarding the issuance of warrants of arrest by the MTC contemplates two (2) distinct situations. Two types of offenses may be filed in the MTC for preliminary investigation: 1. a case cognizable by the RTC may be filed with the MTC for preliminary investigation; 2. even if it is cognizable by the MTC because it is an offense where the penalty prescribed by law is at least four (4) years, two (2) months and one (1) day without regard to the fine. ® In either situation, the MTC is authorized to issue a warrant of arrest if there is necessity of placing the respondent under immediate custody, in order not to

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frustrate the ends of justice, he shall issue a warrant of arrest. Sec. 7. When accused lawfully arrested without warrant. TWO SITUATIONS CONTEMPLATED UNDER THIS RULE: 1. When a person is lawfully arrested without a warrant for an offense requiring a preliminary investigation (sec. 1, Rule 112) and no complaint or information has yet been filed, he may ask for a preliminary investigation by signing a waiver of the provisions of Art. 125 of the RPC in the presence of his counsel. 2. When the complaint or information was filed without preliminary investigation, the accused may, within 5 days from the time he learns of the filing of the information, ask for a preliminary investigation with the same right to adduce evidence in his favor in the manner prescribed in this Rule. ∗ The request for preliminary investigation should be made before plea, otherwise the right to ask for a preliminary investigation shall be deemed WAIVED. ∗ Procedure to be followed in cases which do not require preliminary investigation: 1. Evaluate the evidence presented 2. Conduct searching questions or answers 3. Require the submission of additional evidence

∗ For cases under the Revised Rules on Summary Procedure, no warrant shall be issued except where the accused fails to appear after being summoned. Arrest – the taking of a person into custody in order that he may be bound to answer for the commission of an offense (Sec. 1 Rule 113) ∗ Modes of Arrest 1. arrest by virtue of a warrant 2. arrest without a warrant under statutorily provided exceptional circumstances ∗ Essential requisites of a valid warrant of arrest: 1. It must be issued upon probable cause which must be determined personally by a judge after examination under oath or affirmation of the complainant and the witnesses he may produce 2. The warrant must particularly describe the person to be seized − Section made. 2. Arrest; how

∗ Modes of Effecting Arrest 1. By an actual restraint of the person to be arrested 2. By his submission to the custody of the person making the arrest − Section 4. Execution of warrant. ∗ The head of the office to whom the warrant has been delivered for execution shall cause the warrant to be executed within 10 days from receipt thereof.

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∗ Within ten days after the expiration of such period, the officer to whom it was assigned for execution, shall make a report to the judge who issued the warrant and, in case of his failure to execute, shall state the reasons thereof. ∗ A warrant of arrest does not become stale or functus officio unlike a search warrant which is valid only for 10 days. A warrant of arrest remains valid until arrest is effected or the warrant lifted. ∗ The rule as amended no longer requires a return of the warrant of arrest but a report. WARRANTLESS ARRESTS: 1. The person to be arrested has committed, is actually committing, or is attempting to commit an offense. 2. The peace officer has probable cause to believe based on personal knowledge of facts or circumstances indicating that the person to be arrested has committed a crime. 3. The person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. ∗ The present rule removed the requirement that an offense must have in fact been committed and clarified that probable cause to be based on personal knowledge of facts “facts and circumstances” that the person to be arrested has

committed it would be sufficient to justify a warrantless arrest for an offense that has just been committed. ∗ The indubitable existence of a crime is not necessary to justify a warrantless arrest and that “personal knowledge of facts” in arrests without warrant must be based upon probable cause, which means an actual belief or reasonable grounds of suspicion. ∗ The ground of suspicion are reasonable when, in the absence of actual belief of the arresting officers, the suspicion that the person to be arrested is probably guilty of committing the offense is based on actual facts, i.e., supported by circumstances sufficiently strong in themselves to create the probable cause of guilt of the person to be arrested. ∗ The reasonable suspicion therefore must be founded on probable cause, coupled “with good faith on the part of the peace officers making the arrest.” ∗ The only difference is that in in flagrante arrests, the facts constituting probable cause occur in the presence of the arresting person, while in hot pursuit, knowledge of the facts occurred after the commission of the crime. Bail -- the security given for the release of a person in custody of the law, furnished by him or a bondsman, conditioned upon his appearance before any court as required under the conditions 47

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specified by the rule. (Sec. 1, Rule 114) ∗ 1. 2. 3. 4. Forms of bail: corporate surety property bond cash deposit recognizance

Conditions of Bail: (a) The undertaking shall be effective upon approval, and, unless cancelled, shall remain in force at all stages of the case until promulgation of the judgment of the RTC, irrespective of whether the case was originally filed in or appealed to it; (b) The accused shall appear before the proper courts whenever so required by the court or these Rules; (c) The failure of the accused to appear at the trial without justification despite due notice shall be deemed a waiver of his right to be present thereat. In such case, the trial may proceed in absentia; (d) The bondsman shall surrender the accused to court for execution of the final judgment. Availability of bail to an accused. May be summarized as follows: 1. Regardless of stage of the criminal prosecution, no bail shall be allowed if the accused is charged with a capital offense or an offense punishable by reclusion perpetua and the evidence of guilt is strong. 2. Before and after conviction by the MTC, bail is a matter of right. (Sec.4)

3. Before conviction by the RTC whether in the exercise of its original or appellate jurisdiction, bail is a matter of right. (Sec.4) 4. Upon conviction by the RTC of an offense not punishable by death, reclusion perpetua or life imprisonment, admission to bail is discretionary. 5. After conviction by the RTC wherein a penalty of imprisonment exceeding 6 but not more than 20 years is imposed, and not one of the circumstances below is present and proved, bail is a matter of discretion. (Sec.5) - Recidivism, quasi-recidivism or habitual delinquency or commission of crime aggravated by the circumstances of reiteration. - Previous escape from legal confinement, evasion of sentence or violation of the conditions of bail without valid justification. - Commission of the offense while on probation, parole or under conditional pardon - Circumstance of the accused or his case indicate the probability of flight if released on bail - Undue risk of commission of another crime by the accused during pendency of appeal. 6. After conviction by the RTC imposing a penalty of imprisonment exceeding 6 years but not more than 20 years and any of the circumstance enumerated above and other similar circumstance is present and proved, no bail shall be granted. 7. After judgment has become final unless accused applied for probation before commencing to serve sentence of penalty and

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offense within purview of probation law. (Sec. 24) Capital offense – one which, under the law existing at the time of its commission, and at the time of the application to be admitted to bail, may be punished by death. CAN BE RELEASED WITHOUT BAIL 1. Offense charged is violation of an ordinance, light felony or a criminal offense, the imposable penalty wherefore does not exceed 6 months of imprisonment and/or fine of P 2,000 under R.A.6036. 2. Where the accused has applied for probation and before the same has been resolved but no bail was filed or the accused is incapable of filing one, in which case he may be released on recognizance 3. In case of a youthful offender held for physical or mental examination, trial or appeal, if unable to furnish bail and under the circumstances under PD 603, as amended ON 1. A person in REDUCED custody for a period BAIL OR ON equal to or more

HIS OWN than the minimum RECOGNIZA of the principal NCE penalty prescribed for the offense charged, without application of the indeterminate sentence law or any modifying circumstance shall be released on reduced bail or on his own recognizance. UNDER THE General Rule: no REVISED bail RULES ON Exception: SUMMARY 1. When a warrant PROCEDUR of arrest is issued E for failure to appear hen required by the court 2. When the accused - is a recidivist; - is a fugitive from justice; - is charged with physical injuries - does not reside in the place where the violation of the law or ordinance is committed; or -has not reside in the place where the violation of the law or ordinance is committed; or -has no known residence RIGHTS OF THE ACCUSED: A) To be presumed innocent

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B) To be informed of the nature and the cause of the accusation against him. ∗ An arraignment thus becomes indispensable as the means for bringing the accused into court and notifying him of the cause he is required to meet. ∗ When a person is charged in a complaint with a crime and the evidence does not show that he is guilty thereof, but does show that he is guilty of some other crime or a lesser offense, the court may sentence him for the lesser offense, provided the lesser offense is a cognate offense and is included in the complaint with the court. ∗ In capital offenses, when there is a discrepancy between the designation of the crime in the preamble to the information and the facts pleaded in the body, the court should call the attention of the accused, so that he may be fully apprised of the nature and cause of the accusation against him. C) To be present and defend in person and by counsel at every stage of the proceeding ∗ The presence of the accused is not required at every stage of the trial but ONLY: 1. During arraignment (Sec. 1b, rule 116) 2. Promulgation of judgment except when the conviction is for a light offense, in which case, it may be pronounced in the presence of his counsel or a representative

3. When ordered by the court for purposes of identification Purpose of trial in absentia → to speed up the disposition of criminal cases, trial of which could in the past be indefinitely deferred and many time completely abandoned because of the defendant’s escape. Conditions for trial in absentia to apply: 1. accused has been arraigned 2. he has been duly notified of the trial 3. his failure to appear is unjustified ® The law securing to an accused person the right to be present at every stage of the proceedings has no application to the proceedings before the Court of Appeals and the Supreme Court nor to the entry and promulgation of their judgments The defendant need not be present in court during the hearing of the appeal. (Sec. 9 Rule 124) ∗ An escapee who has been duly tried in absentia waives his right to present evidence on his own behalf and to confront and cross-examine witnesses who testifies against him. (Gimenez vs. Nazareno) or to appeal unless he voluntarily submits to the jurisdiction of the court or is otherwise arrested within 15 days from notice of judgment against him. (People vs. Mapalao). D) Right to counsel.

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∗ The duty of the court to appoint a counsel de oficio when the accused has no legal counsel of choice and desires to employ the services of one is mandatory only at the time of arraignment (Sec. 6 Rule 116) E) To testify as witness in his own behalf. ∗ If he should testify on his own behalf, he may be cross-examined as to any matter stated in his direct examination. F) Right against selfincrimination. ∗ The right against selfincrimination is not self-executing or automatically operational. It must be asserted. Right of the accused against self-incrimination vs. right of that of an ordinary witness ∗ The ordinary witness may be compelled to take the witness stand and claim the privilege as each question requiring an incriminating answer is shot at him, an accused may altogether refuse to take the witness stand and refuse to answer any and all questions. G) Right to confront and cross examine the witnesses against him at trial. ∗ Either party may utilize as part of its evidence the testimony of a witness who died, out of or cannot with due diligence be found in the country, unavailable or otherwise unable to testify, given in another case or proceeding, judicial or

administrative, involving the same parties and subject matter, the adverse party having had the opportunity to cross-examine him. H) Right to speedy, impartial and public trial. Remedies available to the accused when his right to a speedy trial is violated: 1. He should ask not for the dismissal but for the trial of the case 2. Unreasonable delay of the trial of a criminal case as to make the detention of defendant illegal gives ground for habeas corpus as a remedy for obtaining release so as to avoid detention for a reasonable period of time 3. Accused would be entitled to relief in a mandamus proceeding to compel the dismissal of the information Public trial - The court may upon its own motion exclude the public from the courtroom if the evidence to be produced during the trial is of such a character as to be offensive to decency or public moral. The court may also, upon motion of the accused, exclude the public from trial except court personnel and the counsel for the parties (Sec. 13 Rule 119) I) Right to appeal on all cases allowed by law and in the manner prescribed by law. Arraignment - consists of reading the information to the accused and asking him, in open court whether or not he is guilty of what is alleged against him 51

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-- The accused must personally enter his plea though he be charged with a light offense only. ∗ An arraignment on the amended complaint/ information is mandatory, the petitioner having the constitutional right to be informed of the charge against him. Unless he had already been arraigned and the amendment is only as to form in which case there is no need to retake his plea. (Teehankee, Jr. vs. Madayag). ∗ The rule that the accused may be sentenced for as many offenses as are charged in the information shall apply only if the accused is formally arraigned and required to plead on all the offenses as are charged in the information. Otherwise, the accused cannot be convicted of the offense with respect to which he was not properly arraigned. Plea - the matter which the accused on his arraignment, alleges in answer to the charge against him. ∗ There can be no double jeopardy where the accused has not yet pleaded to the offense. ∗ A mere written manifestation is not a valid plea. For jeopardy to attach, it is necessary that the defendant has been arraigned and has pleaded to the charge because it is from that moment that the issues are deemed joined. Purpose of Plea

→ to make an issue. Without an issue, there is nothing to be tried and nothing on which the judgment and sentence of a court can be properly predicated ∗ When the accused pleads guilty but presents exculpatory evidence, his plea shall be deemed withdrawn and a plea of not guilty shall be entered for him. (People vs. Baliscan, 17 SCRA 1119) SEC. 11. Suspension of arraignment.-Upon motion by the proper party, the arraignment shall be suspended in the following cases: (a) The accused appears to be suffering from an unsound mental condition which effectively renders him unable to fully understand the charge against him and to plead intelligently thereto. In such case, the court shall order his mental examination and, if necessary, his confinement for such purpose; (b) There exists a prejudicial question; and (c) A petition for review of the resolution of the prosecutor is pending at either the Department of Justice, or the Office of the President; Provided, That the period counted from the filing of the petition with the reviewing office. (12a) Withdrawal of improvident plea of guilty. ∗ At any time before the judgment of conviction becomes final, the court may permit an improvident plea of guilty to be withdrawn and be substituted by a plea of not guilty. This is not a matter of 52

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absolute right on the part of the defendant but lies entirely within the sound discretion of the trial court, and appellate courts shall not interfere with such discretion in the absence of clear abuse thereof. A plea of guilty later withdrawn is not admissible in evidence against an accused. In order to be valid, the plea must be an unconditional admission of guilt. It must be of such nature as to foreclose the defendant’s right to defend himself from said charge, thus leaving the court no alternative but to impose the penalty fixed by law. Duties of the court when the accused appears at the arraignment without counsel: 1. inform the accused of his right to counsel 2. ask him if he desires to have one 3. if he desires and is unable to employ an attorney, the court must assign an attorney de oficio to defend him; and 4. if the accused desires to procure an attorney of his own, the court must grant him a reasonable time therefor. Failure of the courts to fulfill/comply with this duty is a denial of due process. Time to move to quash. ∗ The accused may move to quash the complaint or information at any time BEFORE entering his plea. Instances where a motion to quash may be filed AFTER plea:

1. failure to charge an offense 2. lack of jurisdiction over the offense charged 3. extinction of the offense or penalty 4. jeopardy .Grounds. (b) That the court trying the case has no jurisdiction over the offense charged; (c) That the court trying the case has no jurisdiction over the person of the accused; (i) That the accused has been previously convicted or acquitted of the offense charged OR THE CASE AGAINST HIM WAS DISMISSED OR OTHERWISE TERMINATED WITHOUT HIS EXPRESS CONSENT. Requisites for criminal jurisdiction: 1. the offense is one which the court is by law authorized to take cognizance of 2. the offense must have been committed within its territorial jurisdiction 3. the person charged with the offense must have been brought to its presence for trial, forcibly by warrant of arrest or upon his voluntary submission to the court JURISDICTION JURISDICTION OF THE OVER THE SUBJECT PERSON OF MATTER THE ACCUSED 1. Derived from 1. May be the law. It can acquired by never be consent of the acquired solely accused or by by consent of waiver of the accused. objections. 2. Objection that 2. If he fails to 53

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the court has no jurisdiction of the subject matter may be made at any stage of the proceeding, and the right to make such objection is never waived.

make his objection in time, he will be deemed to have waived it.

discharged therefrom, unless he is in custody for another offense. Procedure in case of Denial of Motion to Quash: The defendant should go to trial without prejudice on his part to present the special defenses he had invoked in his motion and, if after trial on the merits, an adverse decision is rendered to appeal therefrom in the manner authorized by law. ∗ A motion to quash is always addressed to the discretion of the court. Neither certiorari nor prohibition lies against an order of the court granting or denying a motion to quash an information. ∗ An order sustaining a motion to quash based on the ground that the criminal action on the liability has been extinguished or on double jeopardy constitutes a bar to another prosecution for the same offense. Jeopardy -- exposure to danger. When a person is prosecuted before a court which has authority to decide the issue between the State and himself, he is then exposed to danger in that he is in peril of life and liberty Extent of protection afforded by the rule on double jeopardy : 1. against the peril of a second punishment 2. against the peril of a second trial for the same offense or for an attempt to commit the same of frustration thereof.

Instances when the criminal action or liability is extinguished as a ground of a motion to quash: 1. death of the convict, as to personal penalties 2. service of the sentence 3. amnesty 4. absolute pardon 5. prescription of the crime 6. prescription of the penalty 7. marriage of the offender with the offended party, as provided in Article 344 of the same Code. Courses of action the court may take if it sustains a motion to quash: 1. the dismissal of the information, which is deemed to all intents and purposes, wiped out and the case then stood as if no information had ever been filed 2. the filing of a new information, if the accused is in custody he shall remain so unless he is released on bail. If there is no such order or if there is such order and no new information is filed within the period fixed in the order or within such further time as the court may allow for good cause shown, the accused, who is in custody, shall be

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Requisites for double jeopardy: 1. the accused has been convicted or acquitted 2. the case against him has been dismissed or otherwise terminated without his express consent 3. the court which convicted or acquitted the accused or dismissed or terminated the case is a court of competent jurisdiction 4. the complaint or information was valid and sufficient in form and substance to sustain a conviction 5. the accused has pleaded to the charge 6. there is a subsequent prosecution against the accused for the offense charged, or for any attempt to commit the same or frustration thereof, or for any offense which necessarily includes or is necessarily included in the offense charged in the former prosecution. Dismissal vs. Acquittal - Acquittal is always based on the merits, that is, the defendant is acquitted because the evidence does not show defendant’s guilt beyond reasonable doubt; but dismissal does not decide the case on the merits or that the defendant is not guilty. Occasions when double jeopardy will attach even if the motion to dismiss the case is made by the accused himself: 1. the ground is insufficiency of evidence of the prosecution 2. when the proceedings have been unreasonably prolonged in violation of the right to a speedy trial. (People vs. Gines).

∗ If the dismissal is based on insufficiency of evidence to establish the guilt of the accused beyond reasonable doubt, the dismissal is actually an acquittal. ∗ If the dismissal is based on the right of the accused to a speedy trial, the dismissal amounts to an acquittal and operates to bar another prosecution for the same offense even if the dismissal were upon motion of the accused. ∗ The discharge of a defendant on a preliminary investigation is not such an adjudication in his favor as will bar a subsequent prosecution for the offense. This is because a preliminary investigation is not trial or any part thereof and does not have for its object that of determining definitely the guilt of the accused by proofs, counterproofs, and the other formalities prescribed by law. Sec. 8. Provisional dismissal. – A case shall not be provisionally dismissed except with the express consent of the accused and with notice to the offended party. The provisional dismissal of offenses punishable by imprisonment not exceeding six (6) years or a fine of any amount, or both, shall become permanent one (1) year after issuance of the order without the case having been revived. With respect to offenses punishable by imprisonment of more than six (6) years, their provisional dismissal shall become permanent two (2) years after

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issuance of the order without the case having been revived. (n) ® If a case is provisionally dismissed with the consent of the prosecutor and the offended party, the failure to reinstate it within the given period will make the dismissal permanent. PERIOD FOR REINSTATEMENT: a) offenses punishable by imprisonment not exceeding 6 years = ONE YEAR b) offenses punishable by imprisonment of more than 6 years = TWO YEARS Otherwise the dismissal shall be removed from being provisional and becomes permanent. Section 9. Failure to move to quash or to allege any ground therefor. ∗ If the accused does not move to quash the complaint or information before he pleads thereto he shall be taken to have waived all objections which are grounds for a motion to quash, EXCEPT: when the complaint or information 1. does not charge an offense 2. the court is without jurisdiction over the offense charged 3. the offense or penalty has been extinguished 4. jeopardy Requisites before the pre-trial agreement can be used as evidence: 1. they are reduced to writing 2. the pre-trial agreement is signed by the accused and his counsel

Subjects considered during the pre-trial: 1. plea bargaining 2. stipulation of facts 3. marking for identification of evidence of the parties 4. waiver of objections to admissibility of evidence 5. modification of the order of trial if the accused admits the charge but interposes a lawful defense; and 6. such other matters as will promote a fair and expeditious trial Plea bargaining process whereby the accused and the prosecutor in a criminal case work out a mutually satisfactory disposition of the case subject to court approval. It usually involves the defendant’s pleading guilty to a lesser offense or to only one or some of the counts of a multi-count indictment in return for a lighter sentence than that for the graver charge Demurrer to evidence. The motion for leave of court to file demurrer to evidence shall specifically state its grounds and shall be filed within a non-extendible period of five (5) days after the prosecution rests its case. If leave of court is granted, the accused shall file the demurrer to evidence within a non-extendible period of ten (10) days from notice. The prosecution may oppose the demurrer to evidence within a similar period from its receipt. The order denying the motion for leave of court to file demurrer to 56

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evidence or the demurrer itself shall not be reviewable by appeal or certiorari before judgment. (n) Judgment does not become effective until it is promulgated. And where the judgment is modified, the modified sentence does not become a sentence in law until the same has been read or announced to the defendants or has become a part of the record of the court. Promulgation of judgment official proclamation or announcement of judgment. It consists of reading the judgment or sentence in the presence of the accused and any judge of the court rendering the judgment. ∗ When the judge is absent or outside of the province or city, the judgment may be promulgated by the clerk of court. ∗ To be valid, the judgment must be signed and promulgated during the incumbency of the judge who signed the same. However, it is not necessary that the judge who prepares and signs the decision be the one who heard the case. ∗ The proper clerk of court shall give notice to accused personally or through his bondsman or warden and counsel requiring him to be present at the promulgation if he fails to appear at the promulgation shall consist of recording of the judgment in the docket and a copy thereof shall be served upon the accused and his counsel.

∗ If the accused is confined or detained in another province or city, the judgment may be promulgated by the executive judge of the RTC having jurisdiction over the place of confinement or detention upon request of the court that rendered the judgment. ∗ The judgment or sentence, which must be promulgated in the presence of the defendant, is the sentenced rendered by the RTC after the trial of the case by the said court. What is required of the judgment of the appellate court is that certified copies of the same must be sent by the clerk of the appellate court to the lower court not for promulgation or reading thereof to the defendant, but for the execution of the judgment against him. ∗ Where the accused fails to appear without justifiable cause, despite due notice to him, his bondsmen or counsel, he is considered to have waived his right to appeal. However, if within fifteen-day period of appeal, he voluntarily surrenders to the court or is otherwise arrested, then he may avail of the right to appeal within said period of appeal. Modification of judgment. ∗ Upon motion of the accused, a judgment of conviction may be modified or set aside by the court before it has become final or before an appeal has been perfected.

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∗ The prosecutor cannot ask for the modification or setting aside of a judgment of conviction because the rules clearly provide that a judgment of conviction may be modified or set aside by the court rendering upon motion of the accused. New trial - the rehearing of a case already decided but before the judgment of conviction therein rendered has become final, whereby errors of law or irregularities are expunged from the record, or new evidence is introduced, or both steps are taken Cases when the trial court lose jurisdiction over its sentence even before the lapse of 15 days: 1. When the defendant voluntarily submits to the execution of the sentence 2. When the defendant perfects his appeal. The moment the appeal is perfected the court a quo loses jurisdiction over it, except for the purpose of correcting clerical errors. − Section 2. Grounds for new trial. Grounds for a new trial in criminal cases: 1. errors of law or irregularities committed during the trial prejudicial to the substantial rights of the accused 2. new and material evidence discovered: “During the trial” - refers to every stage of the trial from arraignment to judgment

Requisites before a new trial may be granted on the ground of newly discovered evidence: 1. that the evidence was discovered after trial 2. that such evidence could not have been discovered and produced at the trial even with the exercise of reasonable diligence 3. that it is material not merely cumulative, corroborative or impeaching 4. the evidence is of such a weight that it would probably change the judgment if admitted Section 3. Grounds for reconsideration. Grounds of motion for reconsideration 1. errors of law 2. errors of fact in the judgment, which require no further proceedings Section 4. Form of motion and notice to the prosecutor. Requisites for a motion for new trial or reconsideration: → The motion for a new trial or reconsideration shall be: 1. in writing 2. filed with the court 3. State grounds on which it is based 4. If the motion for new trial is based on a newly discovered evidence, it must be supported by the affidavits of the witness by whom such evidence is expected to be given, or duly authenticated copies of documents which it is proposed to introduce in evidence. 5. Notice of the motion for new trial or reconsideration shall be given to the fiscal 58

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Effects of granting a new trial or reconsideration: 1. when a new trial is granted on the ground of errors of law or irregularities committed during the trial, all proceedings and evidence not affected by the commission of such errors and irregularities shall stand, but those affected thereby shall be set aside and taken anew. The court may, in the interest of justice, allow the introduction of additional evidence 2. when a new trial is granted on the ground of newly discovered evidence, the evidence already taken shall stand, and the newly discovered and such other evidence as the court may, in the interest of justice, allow to be introduced, shall be taken and considered together with the evidence already in the record 3. In all cases, when the court grants new trial or reconsideration, the original judgment shall be set aside and a new judgment rendered accordingly. - The effect of the granting of a new trial is not to acquit the accused of the crime of which the judgment finds him guilty, but precisely to set aside said judgment so that the case may be tried de novo as if no trial had been before, for the purpose of rendering a judgment in accordance with the law, taking into consideration the evidence to be presented during the second trial. How appeal is taken:

1. Appeal to the Regional Trial Court: by filing a notice of appeal with the court which rendered the judgment or order appealed from and serving a copy to the adverse party 2. Appeal to the Court of Appeals from decision of the Regional Trial Court in the exercise of its original jurisdiction: by filing a notice of appeal with the court which rendered the judgment or order appealed from and serving a copy to the adverse party 3. Appeal to the Court of Appeals in cases decided by Regional Trial Court in the exercise of its appellate jurisdiction: by petition for review 4. Appeal to the Supreme Court in cases where penalty imposed is life imprisonment or where a lesser penalty is imposed but involving offenses committed on the same occasion or arising out of the same occurrence that gave rise to the more serious offense for which the penalty of death or life imprisonment is imposed: by filing a notice of appeal with the court which rendered the judgment or order appealed from and serving a copy to the adverse party 5. Death penalty: automatic review by the Supreme Court 6. Other appeals to the Supreme Court: by petition for review on certiorari Exceptions to the rule that finds of fact of the Court of Appeals is conclusive upon the Supreme Court: 1. when the conclusion is a finding grounded entirely on speculation, surmises or conjectures 59

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2. when the inference made is manifestly absurd, mistaken or impossible 3. when there is grave abuse of discretion in the appreciation of facts 4. when the judgment is premised on a misapprehension of facts 5. when the findings of fact are conflicting 6. when the Court of Appeals in making its findings went beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee 7. when certain material facts and circumstances had been overlooked which, if taken into account would after the result as it would give rise to reasonable doubt to acquit the accused. Question of law - when the doubt or difference arises as to what the law is on a certain state of facts. It must not involve an examination of the probative value of the evidence presented by the litigants or any of them. Question of fact - when the doubt or difference arises as to the truth or the falsehood of alleged facts Search warrant defined. Elements of search warrant: 1. order in writing 2. signed by the judge in the name of the People of the Philippines 3. commanding a peace officer to search personal property 4. bring the property before the court

NATURE OF SEARCH WARRANTS - Search warrants are in the nature of criminal process and may be invoked only in furtherance of public prosecutions. Search warrants have no relation to civil process or trials and are not available to individuals in the course of civil proceedings, nor for the maintenance of any mere private right SEARCH vs. SEIZURE ∗ The term search as applied to searches and seizures is an examination of a man’s house or other buildings or premises or of his person with a view to the discovery of contraband or illicit or stolen property or some evidence of guilt to be used in the prosecution of a criminal action for some offense with which he is charged ∗ A seizure is the physical taking of a thing into custody GENERAL WARRANT → A process which authorizes the search and seizure of things, in a general manner, without specifying or describing them with particularity, like the equipment, paraphernalia, communications, records, publications, documents, instruments, items, supplies, and other evidence in connection with the violation of an offense. WARRANT OF SEARCH ARREST WARRA NT 1. order directed 1. order to the peace writing in in the 60

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officer to execute the warrant by taking the person stated therein into custody that he may be bound to answer for the commission of the offense. 2. does not become stale

name of the RP signed by the judge and directed to the peace officer to search personal property described therein and to bring it to court. (sec. 1) 2. validity is for 10 days only (sec. 9) 3. may be 3. to be served served on any only in daytime day and at any unless the time of day or affidavit alleges night. (sec. 6, that the rule 113). property is on the person or in the place to be searched. (sec. 8) 4. upon probable cause to be determined personally by the judge after examination in writing and under oath in the form of searching answers and questions. 5. only issued if 5. sworn there is a statements and necessity of affidavits of placing accused complainant and under witnesses must immediate be submitted to custody court. Requisite for issuing search warrant. Kinds of property to be seized: 1. subject of the offense 2. proceeds or fruits of the offense 3. the means used or intended to be used for committing an offense

Requisites for the issuance of a valid search warrant: 1. probable cause 2. which must be determined personally by the judge himself after oath and affirmation and not by the applicant or any other person 3. the judge must, before issuing the warrant, personally examine in the form of searching questions and answers, in writing and under oath, the complaint and any witness he may produce, on facts personally known to them 4. the probable cause must be in connection with one specific offense 5. the warrant issued must particularly describe the place to be searched and the persons or things to be seized 6. the sworn together with the affidavits submitted by witnesses must be attached to the record. ∗ PROBABLE CAUSE - facts and circumstances which could lead a reasonable, discreet and prudent man to believe that the property subject of an offense are in the place sought to be searched. - The requirement of probable cause to be determined by a judge, does not extend to deportation proceedings ∗ Reason for requiring that no search warrant shall issue for more than one specific offense: → It would place the sanctity of the domicile and the privacy of communication and correspondence at the mercy of

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the whims, caprice or passion of peace officers. ∗ Reason of requiring that a search warrant must particularly describe the place to be searched and the persons or things to be seized: → to limit the things to be seized to those, and only those, particularly described in the search warrant – to leave the officers of the law no discretion regarding what articles they shall seize, to the end that “ unreasonable searches and seizure” may not be made, that abuses may not be committed… Therefore, no other property than those described in the search warrant may be taken thereunder. Search incident to lawful arrest. A person lawfully arrested may be searched for dangerous weapons or anything, which may be used as proof of the commission of an offense, without a search warrant. Cases where warrantless searches and seizures valid: 1. search of moving vehicles 2. consented search without a warrant 3. seizure of evidence in plain view 4. enforcement of customs law, except in dwelling house 5. search based on probable cause under extraordinary circumstances ∗ The remedy for questioning the validity of a search warrant can only be sought in the court that issued it, not in the sala of another judge of concurrent jurisdiction.

∗ Waiver of legality and admissibility - Objection to the legality of the search warrant as to the admissibility of the evidence obtained or deemed waived where no objection of the search warrant was raised during the trial of the case nor to the admissibility of the evidence obtained through said warrant. Total Exclusionary Rule - Excludes as inadmissible in evidence those that were illegally seized in violation of the provisions of the Constitution applies a restraint directed only against the government and its agencies tasked with the enforcement of the law. It could only be invoked against the state to whom the restraint against the arbitrary and unreasonable exercise of power is imposed. GENERAL RULE: A motion to quash a search warrant or to suppress evidence may only be filed and acted upon only by the court where the action is pending. EXCEPTION: If no criminal action has been filed, the motion may be filed in and resolved by the court that issued the search warrant. EXCEPTION to the EXCEPTION: If the criminal case is subsequently filed in another court and the motion to quash is still not resolved by the issuing court, the motion shall not be resolved by the former court unless compelling reasons warrant its resolution by the latter court. 62

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Filing of motion to quash is without prejudice to any proper recourse to the appropriate higher court by the party aggrieved. All grounds and objections then available, existent or known shall be raised in the original or subsequent proceedings for the quashal of the warrant, otherwise they shall be deemed waived. In view of the foregoing amendment, it seems that the OMNIBUS MOTION RULE is no longer applicable because the motion to quash or motion to suppress evidence is now filed in one court. 1. Those to which parties litigant may resort for the preservation or protection of their rights or interests and for no other purposes during the pendency of the action 2. They are applied a pending litigation for the purposes of securing the judgment or preserving the status quo, and in some cases after judgment, for the purpose of preserving or disposing of the subject matter. Availability of provisional remedies. ∗ Nature of Provisional Remedies 1. Those to which parties litigant may resort for the preservation or protection of their rights or interests and for no other purposes during the pendency of the action. 2. They are applied a pending litigation for the purposes of securing the judgment or preserving the status quo, and in

some cases after judgment, for the purpose of preserving or disposing of the subject matter. Kinds of provisional remedies 1. attachment 2. injunction 3. receivers 4. delivery of personal property 5. support pendente lite

− Section 2. Attachment. - It was held by the Supreme Court that the public prosecutor has the authority to apply for preliminary attachment as may be necessary to protect the interest of the offended party, particularly considering that the corresponding civil liability of the culprits is to be determined therein, no reservation having been made of the right to enforce it in a separate civil action.
∗ Attachment may be availed of only when the civil action arising from the crime has not been expressly waived or not reserved and only in the following cases: a) when the accused is about to abscond from the Philippines; b) when the criminal action is based on a claim for money or property embezzled or fraudulently misapplied or converted to the use of the accused who is a public officer or a corporate officer or an attorney, broker, or agent or clerk in the course of employment or by a person in a fiduciary capacity. c) when the accused has concealed, removed or about to dispose of his property 63

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d) when abroad.

the

accused

resides

EVIDENCE
FACTUM PROBANDUM - the ultimate fact sought to be established. ∧ It may be ascertained in: a) pleadings submitted by the parties b) pre-trial order c) issues which are tried with the express or implied consent of the parties. (Sec. 5, Rule 10) FACTUM PROBANS - the material evidencing the proposition. It is the fact by which the factum probandum is established. CLASSIFICATION OF EVIDENCE: A. Depending on its ability to establish the fact in dispute, an evidence may be: 1. Direct evidence—evidence which proves the fact in dispute without the aid of any inference or presumption. 2. Circumstantial evidence— such evidence from which the existence of a particular fact in dispute may be inferred as a necessary or probable consequence. B. Depending on the degree of its value in establishing a disputed fact, an evidence may be: 1. Prima Facie—evidence which suffices for the proof of a particular fact until contradicted and overcome by other evidence.

2. Cumulative evidence— evidence which is of the same kind and character as that already given and tends to prove the same proposition. 3. Corroborative evidence— evidence which is of a different kind and character as that already given and tends to prove the same proposition. 4. Conclusive evidence— evidence which is incontrovertible or the law does not allow it to be contradicted. C. Depending on its weight and acceptability, an evidence may be: 1. Primary or best evidence—if it affords the greatest certainty of the fact in question. 2. Secondary evidence— evidence which is inferior to the primary evidence. D. Depending on its nature, an evidence may be: 1. Object evidence—if it is addressed to the senses of the court and is capable of being exhibited to examined or viewed by the court. Also known as autoptic proference. 2. Documentary evidence— evidence which consists of writings, words, numbers, figures, symbols or other modes of written expressions offered as proof of their contents. 3. Testimonial evidence— evidence which consists of the narration or deposition by one who has observed or has personal knowledge of that to which he is testifying.

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E. Depending on its quality, an evidence may be: 1. Relevant evidence—if it has a relation to the fact in issue as to induce belief in its existence or non-existence. 2. Admissible evidence—if is relevant to the issue and is not excluded by law or the Rules of Court. This is also known as Competent evidence. 3. Credible evidence—if it is not only admissible evidence but also believable and used by the court in deciding a case. REQUISITES FOR ADMISSIBILITY OF EVIDENCE: The evidence must be— 1. Relevent—has a logical connection with the fact in issue. 2. Competent—not excluded by the law or the rules. PRINCIPLES OF ADMISSIBILITY 2 AXIOMS OF ADMISSIBILITY: 1. Axiom of Relevancy -None but facts having rational probative value are admissible ; and 2. Axiom of Competency - All facts having rational probative value are admissible unless some specific rule forbids their admission. KINDS OF ADMISSIBILITY: 1. MULTIPLE—evidence will be received if it satisfies all the requirements prescribed by law in order that it may be admissible for the purpose for which it is presented, even if it does not satisfy the other requisites for its admissibility for other purposes. 2.CONDITIONAL—A fact offered in evidence may appear to be immaterial unless it is connected

with other facts to be subsequently proved. In such case, evidence of that fact may be received on condition that the other facts be afterwards proved. 3.CURATIVE—an improper evidence is offered and admitted by the court over the objection of the adverse party; in such case, the adverse party is likewise entitled to introduce a similar improper evidence to counteract that already given. ∗ The following facts need not be proved: 1. Those which the courts may take judicial notice (Rule 129); 2. Those which are judicially admitted (Rule 129); 3. Those which are presumed (Rule 131). THE LAW OF NATIONS - The law of nations which is the subject of judicial notice is the law which regulates the relations of the dominant powers of the earth. It is not a foreign municipal law which our courts are not authorized to take judicial notice of but the compilation of rules which by common consent of mankind have been acquiesced in as law. Discretionary Judicial Notice: matters which are 1. of public knowledge; or 2. capable of unquestionable demonstration; or 3. those that judges ought to know by reason of their judicial functions. JUDICIAL ADMISSION--the admission made in the course of

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the proceedings in the same case by a party. Judicial Admissions May Be Made in: 1. the pleadings filed by the parties; 2. in the course of the trial either by verbal or written manifestations or stipulations; or 3. in other stages of the judicial proceeding, as in the pre-trial of the case; 4. admissions obtained through depositions, written interrogatories or requests for admissions. Judicial admissions may be contradicted only when it is shown that: 1. it was made through palpable mistake; or 2. that no such admission was made. Judicial admissions in pleadings later amended ∗ In civil cases, an amended pleading becomes a judicial admission and the contents of the pleading it amends not included in the amended pleading becomes extrajudicial admissions which must be offered in evidence for it to be considered by the trial court. ∗ In criminal cases, the accused’s plea of guilty later withdrawn cannot be offered in evidence against the accused as it will not be in the interest of justice and fairplay to allow the accused to withdraw his plea and thereafter use this against him.

∗ Judicial admissions are always conclusive upon the admitter and does not require formal offer as evidence, unlike in the case of extra-judicial admissions. Object Evidence Not a rule of exclusion thus other kinds of evidence may be presented even if there is an object evidence. Requisites of object evidence to be admissible: 1. relevant and competent 2. must be in the same condition when it is presented in court as it was during the occurrence of the fact in issue. ∗ REMEDIES when object evidence cannot be brought to court: 1.Ocular inspection or “view”— the court can go to the place where the object is located. ∧ View part of the trial—The inspection or view outside the courtroom should be made in the presence of the parties or at least with previous notice to them in order that they may show the object to be viewed. Such inspection is a part of the trial, inasmuch as evidence is thereby being received. The parties are entitled to be present any stage of the trial, and consequently they are entitled to be at least notified of the time and place set for the view. 2.Actual representations authenticated or identified by testimonial evidence. Example, a photograph of dilapidated building identified by the photographer or by any other person who can

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testify to accuracy.

its

exactness

and

Grounds for excluding OBJECT EVIDENCE: ∧ Inherent Limitations: 1)irrelevancy / immateriality 2) illegally obtained evidence ∧ Non-inherent Limitations: 1. Undue prejudice 2. Indecency or impropriety 3. Offensiveness to sensibilities 4. Inconvenience and unnecessary expense of litigation. PAROL BEST EVIDENCE EVIDENCE RULE (PER) RULE (BER) Presupposes Contemplates that the original a situation when is available in the original is court; not available in court and/or there is a dispute as to whether said writing is the original. Prohibits the Prohibits the varying of the introduction of terms of a substitutionary written evidence in lieu agreement; of the original document regardless of whether or not it varies the contents of the original; Can be Can be invoked only invoked by any when the party to an controversy is action between the regardless of parties to the whether such written party

agreement, their privies, or any party directly affected thereby. With the exception of wills, the PER applies only to documents which are contractual in nature.

participated or not in the writing involve. Applies to all kinds of writing.

Best Evidence Rule is a rule of exclusion thus, subject to the exceptions under Rule 130, Sec. 3, it is mandatory that the original copy be presented in court. This rule applies only to documentary evidence, not to object evidence. THREE (3) CONCEPTS OF “ORIGINAL” UNDER THE BEST EVIDENCE RULE (Sec. 4) 1. One the contents of which is the subject of inquiry; 2. When a document is in two or more copies executed at or about same time with identical contents, all such copies are equally regarded as originals; 3. When an entry is repeated in the regular course of business, one being copied from another at or near the time of the transaction. SECONDARY EVIDENCE − Section 5. When original document is unavailable. ∗ In case of loss or destruction of the original document, the following are admissible after proving EXECUTION or EXISTENCE, CAUSE OF ITS UNAVAILABILITY 67

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without bad faith on the part of the offeror, and REASONABLE EFFORT: 1.a copy; 2.a recital of the contents in some authentic document; or 3.the testimony of witnesses. ∧ These secondary parole evidence should be presented in the order stated. REQUISITES FOR APPLICABILITY OF PAROL EVIDENCE RULE: 1. There must be a valid contract; 2. The terms of the agreement must be reduced to writing; 3. The dispute is between parties and their successors in interest; and 4. There is dispute as to the terms of the agreement. Intrinsic or Latent Ambiguity— when the writing on its face appears clear and unambiguous but there are collateral matters or circumstances which make the meaning uncertain. Example: if a devise in a will were made to Loi Velarde, sister of Joseph Velarde,” an intrinsic ambiguity would exist if Loi Velarde is actually not the sister of Joseph Velardebut the wife of Joseph Velarede while his sister’s name is Joy. ∗ Extrinsic or Patent Ambiguity —ambiguity is apparent on the face of the writing itself and requires something to be added in order to ascertain the meaning of the words used. Intermediate Ambiguity—Where the ambiguity consists in the use of equivocal words designating the person or subject matter, parol

evidence of collateral or extrinsic matter may be introduced for the purpose of aiding the court in arriving at the meaning of the language used. ∧ INTRINSIC and INTERMEDIATE AMBIGUITIES are curable by evidence aliunde or extraneous evidence. PATENT AMBIGUITY is not cured by evidence aliunde. Disqualificatio n by REASON OF MARRIAGE (Sec. 23) Can be invoke only if one of the spouses is a party to the action; Applies only if the marriage is existing at the time the testimony is offered; Constitutes a total prohibition for or against the spouse of the witness. The objection would be raised on the ground of marriage. The married witness would not be allowed to take the stand at all because of the disqualification. Even if the testimony is, for Disqualificatio n by REASON OF MARITAL PRIVILEGE (Sec. 24(a) ) Can be claimed whether or not the other spouse is a party to the action; Can be claimed even after the marriage is dissolved; Applies only to confidential communications between the spouses the married person is on the stand but the objection of privilege is raised when confidential marital communication is inquired into.

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or against the objecting spouse, the spouse-witness cannot testify. MARITAL DISQUALIFICA TION RULE Only a partial It is a disqualification complete and as the witness is absolute not completely disqualification; disqualified but is only prohibited from testifying on the matters therein specified; Applies only to Applies to a a civil case or civil or criminal special case, subject proceeding over only to the two the estate of a exceptions deceased or provided insane person. therein: (1)except in a civil case by one against the other; or (2) in a criminal case for a crime committed by one against the other or the latter’s direct descendants or ascendants). DEAD MAN’S STATUTE ADMISSION CONFESSION 1.statement of 1.statement of fact which does fact which not involve an involve an

acknowledgmen t of guilt or liability; 2. may be made by third persons and in certain cases, are admissible against a party; 3. express tacit

acknowledgment of guilt or liability; 2. can be made only by the party himself and, in some instances, are admissible against his coaccused; or 3. always express ADMISSIONS

DECLARATION S AGAINST INTEREST 1.made against the proprietary or pecuniary interest of the parties 2. made by a person who is either deceased or unable to testify

1.need not be made against pecuniary or proprietary interest; 2.made by a party himself, and is primary evidence and competent though he be present in court and ready to testify; 3. must be made 3. may be made ante litem any time. motam CONFESSION - a categorical acknowledgment of guilt made by an accused in a criminal case, without any exculpatory statement or explanation. ∧ If the accused admits having committed the act in question but alleges a justification therefore, the same is merely an admission.

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∧ there can also be a confession of judgment in a civil case where the party expressly admits his liability. JUDICIAL CONFESSION—is one made before a court in which the case is pending and in the course of legal proceedings therein and, by itself, can sustain a conviction even in capital offenses. EXTRA-JUDICIAL CONFESSION— is one made in any other place or occasion and cannot sustain a conviction unless its voluntariness is proven and unless corroborated by evidence of the corpus delicti. REQUIREMENTS FOR AN EXTRAJUDICIAL CONFESSION TO BE ADMISSIBLE: 1. It must be express (Sec. 33, Rule 130 Rules of Court); 2. Voluntary (1987 Constitution) 3. With assistance of competent and independent counsel (1987 Constitution) 4. Must be in writing (R.A.7438); GENERAL RULE: an EXTRAJUDICIAL CONFESSION is admissible against the confessor only. It is incompetent evidence against his co-accused for being hearsay and because of the res inter alios acta rule. EXCEPTIONS: When admissible against the co-defendants: 1. If the co-defendants impliedly acquiesced in or adopted said confession; 2. If the accused persons voluntarily and independently executed identical confession without collusion, and corroborated

by other evidence—INTERLOCKING CONFESSIONS 3. Where the accused admitted the facts stated by the confessant after being apprised by such confession; 4. If they are charged as coconspirators of the crime which was confessed by one of the accused and said confession is used only as corroborating evidence; 5. Where the confession is used as circumstantial evidence to show the probability of participation by the co-conspirator; 6. When the confessant testified for his co-defendant; 7. Where the co-conspirator’ extrajudicial confession is corroborated by other evidence of record. CLASSIFICATION OF OUT-OFCOURT STATEMENTS: 1. HEARSAY-- Those which are considered as hearsay and therefore inadmissible, this occurs when the purpose for introducing the our-of-court statement is to prove the truth of the facts asserted therein; 2. NON-HEARSAY—Admissible. This occurs when the purpose for introducing the statement is not to prove the truth of the facts asserted therein but only the making of the statements and are admissible in evidence when the making of the statement is relevant. These are so-called INDEPENDENTLY RELEVANT STATEMENTS. 3. EXCEPTIONS TO THE HEARSAY RULE—Those which are 70

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hearsay but are considered as exceptions to the hearsay rule and are therefore admissible. These are from Sections 37 to 47 of Rule 130. HEARSAY EVIDENCE: ∧ They are admissible by reason of NECESSITY and TRUSTWORTHINESS. ∧ Hearsay evidence not objected to may be admissible but, whether objected to or not, has no probative value and as opposed to direct and primary evidence, the latter always prevails. EXCEPTIONS TO THE HEARSAY RULE: 1. Dying Declaration; 2. Declaration Against Interest; 3. Act or declaration About pedigree; 4. Family reputation or tradition regarding pedigree; 5. Common reputation; 6. Res Gestae; 7. Entries in the ordinary course of business; 8. Entries in official records; 9. Commercial lists; 10. Learned treatises; Dying declaration REQUISITES: 1. That death is imminent and the declarant is conscious of that fact; 2. That the declaration refers to the cause and and surrounding circumstances of such death; 3. That the declaration relates to the facts which the victim is competent to testify to; and 4. That the declaration is offered in a case wherein the declarant’s death is subject of the inquiry.

RES GESTAE – literally means things done; it includes the circumstances, facts, and declarations incidental to the main fact or transaction necessary to illustrate its character and also includes acts, words or declaration which are closely connected therewith as to constitute part of the transaction. TWO TYPES OF PART OF RES GESTAE: 1. Statements made by a person while a startling occurrence is taking place or immediately prior or subsequent thereto with respect to the circumstances thereof (SPONTANEOUS STATEMENTS) 2. Statements accompanying an equivocal act material to the issue, and giving it a legal significance (VERBAL ACTS). REQUISITES OF ADMISSIBILITY OF SPONTANEOUS STATEMENTS: 1. there must be a startling occurrence 2. the statement must relate to the circumstances of the starling occurrence 3. the statement must be spontaneous REQUISITES OF ADMISSIBILITY OF VERBAL ACTS: 1. the act or occurrence characterized must be equivocal 2. verbal acts must characterize or explain the equivocal act 3. equivocal act must be relevant to the issue 4. verbal acts must be contemporaneous with the equivocal act 71

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VERBAL ACTS the res gestae is the equivocal act  verbal act must be contemporaneou s with or must accompany the equivocal act

SPONTANEOUS STATEMENTS the res gestae is the startling occurrence statements be may be made prior, while or immediately after the startling occurrence

PRESUMPTION IS JURIS may be divided into: 1. CONCLUSIVE PRESUMPTION (jure et de jure)—which is a presumption of law that is not permitted to be overcome by any proof to the contrary; and 2. DISPUTABLE PRESUMPTIONS (juris tantum)—is that which the law permits to be overcome or contradicted by proofs to the contrary; otherwise, the same remains satisfactory. LEADING QUESTION—Question which suggests to the witness the answer which the examining party desirers. EXCEPTIONS: 1. On preliminary matters; 2. On cross-examination; 3. To adverse party witness; 4. To hostile witness; 5. To unwilling witness; 6. To children of tender age; 7. To deaf-mutes; 8. To those who are ignorant; 9. To those who are of weak minds; 10. To the officers of the adverse party who is a juridical person. MISLEADING QUESTION- one which assumes as true a fact not yet testified to by the witness, or contrary to that which he has previously stated. It is NOT allowed. PUBLIC PRIVATE WRITING WRITING As to a public a authentic document private ity is writing admissible must be evidence, proved without relative to 72

Opinion of a witness is not admissible. EXCEPTIONS: 1. On a matter requiring SPECIAL knowledge, skill, experience or training which he is shown to possess (Sec. 49); 2. The identity of a person about whom he has adequate knowledge (Sec. 50[a]); 3. A handwriting with which he has sufficient familiarity (Sec. 50 [b]); 4. The mental sanity of a person with whom he is sufficiently acquainted (Sec. 50 [c]); 5. The witness’ impressions of the emotion, behavior, condition or appearance of a person (Sec. 50 [d]);. CLASSIFICATION OF PRESUMPTIONS: 1. PRESUMPTION IS JURIS OR OF LAW—deduction which the law expressly directs to be made from particular facts. 2. PRESUMPTION IS HOMINIS OR OF FACT—deduction which reason draws from facts proved without an express direction from the law to that effect.

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further proof of its genuinene ss and due execution

As to a public persons instrumen bound t is evidence even against third persons, of the fact which gave rise to its due execution and to the date of the latter;

its due execution and genuinene ss-its authenticit y-before it may be received in evidence. a private writing binds only the parties who executed them or their privies, insofar as due execution and date of the document are concerned .

1. Objection-when the evidence is offered. 2. Motion to strike out or Expunge - examples are: a. when the witness answers prematurely before there is reasonable opportunity for the party to object (Sec. 39); b. unresponsive answers; c. answers that are incompetent, irrelevant, or improper (Sec. 39); d. uncompleted testimonies where there was no opportunity for the other party to cross-examine. “tender of excluded evidence”? ∧ Where the court refuses to permit the counsel to present testimony which he thinks is competent, material and necessary to prove his case, the method of properly preserving the record to the end that the question may be saved for the purpose of review, is through the making of an offer of proof (tender of excluded evidence). PURPOSES: 1. to inform the court what is expected to be proved; and 2. procuring exceptions to the exclusion of the offered evidence so that the appellate court may determine from the record whether the proposed evidence is competent. PREPONDERANCE OF EVIDENCE —evidence which is of greater weight or more convincing or superior weight of evidence than that which is offered in opposition to it. REASONABLE DOUBT—doubt engendered by an investigation of 73

As to validity of certain transacti ons

certain transactio ns must be in a public document, otherwise they will not be given any validity.

MODES OF EXCLUDING INADMISSIBLE EVIDENCE:

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the whole proof and an inability, after such investigation, to let the mind rest easy upon the certainty of guilt. Absolute certainty of guilt is not demanded by the law to convict a person charged for the commission of an offense, but moral certainty is requires as to every proposition of proof requisite to constitute the offense. EQUIPONDERANCE OF EVIDENCE—The evidence of both parties when placed on the division scale is balance. In civil cases, this means that the court will rule in favor of the party who has no burden of proof. In criminal cases, this means acquittal of the accused. Falsus in uno, Falsus in omnibus A witness willfully testifying the truth in one particular, when upon oath, ought never to be believed upon, the strength of his own testimony whatever he may assert. LIMITATIONS: 1. the testimony concerning which the witness has sworn falsely, must relate to a material point in issue; 2. such testimony must have been given by the witness intentionally, and he must have known it to be false IMPORTANT: a. Deals only with the weight of evidence and not a positive rule of law. b. The witnesses’ false or exaggerated statements on other matters shall not preclude the acceptance of such evidence as is relieved from any sign of falsehood.

c. The court may accept and reject portions of the witness’ testimony depending on the inherent credibility thereof. This is not a mandatory rule of evidence but is applied by the courts in its discretion.
[A.M. No. 07-9-12-SC effect on 24 October 2007.) THE RULE ON THE WRIT OF AMPARO SECTION 1. Petition. – The petition for a writ of amparo is a remedy available to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity. The writ shall cover extralegal killings and enforced disappearances or threats thereof. SEC. 2. Who May File. – The petition may be filed by the aggrieved party or by any qualified person or entity in the following order: (a) Any member of the immediate family, namely: the spouse, children and parents of the aggrieved party; (b) Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity, in default of those mentioned in the preceding paragraph; or (c) Any concerned citizen, organization, association or institution, if there is no known member of the immediate family or relative of the aggrieved party. The filing of a petition by the aggrieved party suspends the right of all other authorized parties to file similar petitions. Likewise, the filing of the petition by an authorized party on behalf of the aggrieved party suspends the right of all others, observing the order established herein. SEC. 3. Where to File. – The petition may be filed on any day and at any time with the Regional Trial Court of the place where the threat, act or omission was committed or any of its elements occurred, or with

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Pearl remedial reviewer the Sandiganbayan, the Court of Appeals, the Supreme Court, or any justice of such courts. The writ shall be enforceable anywhere in the Philippines. When issued by a Regional Trial Court or any judge thereof, the writ shall be returnable before such court or judge. When issued by the Sandiganbayan or the Court of Appeals or any of their justices, it may be returnable before such court or any justice thereof, or to any Regional Trial Court of the place where the threat, act or omission was committed or any of its elements occurred. When issued by the Supreme Court or any of its justices, it may be returnable before such Court or any justice thereof, or before the Sandiganbayan or the Court of Appeals or any of their justices, or to any Regional Trial Court of the place where the threat, act or omission was committed or any of its elements occurred. SEC. 4. No Docket Fees. – The petitioner shall be exempted from the payment of the docket and other lawful fees when filing the petition. The court, justice or judge shall docket the petition and act upon it immediately. SEC. 5. Contents of Petition. – The petition shall be signed and verified and shall allege the following: (a) The personal circumstances of the petitioner; (b) The name and personal circumstances of the respondent responsible for the threat, act or omission, or, if the name is unknown or uncertain, the respondent may be described by an assumed appellation; (c) The right to life, liberty and security of the aggrieved party violated or threatened with violation by an unlawful act or omission of the respondent, and how such threat or violation is committed with the attendant circumstances detailed in supporting affidavits; (d) The investigation conducted, if any, specifying the names, personal circumstances, and addresses of the investigating authority or individuals, as well as the manner and conduct of the investigation, together with any report; (e) The actions and recourses taken by the petitioner to determine the fate or whereabouts of the aggrieved party and the identity of the person responsible for the threat, act or omission; and (f) The relief prayed for the petition may include a general prayer for other just and equitable reliefs. SEC. 6. Issuance of the Writ. – Upon the filing of the petition, the court, justice or judge shall immediately order the issuance of the writ if on its face it ought to issue. The clerk of court shall issue the writ under the seal of the court; or in case of urgent necessity, the justice or the judge may issue the writ under his or her own hand, and may deputize any officer or person to serve it. The writ shall also set the date and time for summary hearing of the petition which shall not be later than seven (7) days from the date of its issuance. SEC. 7. Penalty for Refusing to Issue or Serve the Writ. – A clerk of court who refuses to issue the writ after its allowance, or a deputized person who refuses to serve the same, shall be punished by the court, justice or judge for contempt without prejudice to other disciplinary actions. SEC. 8. How the Writ is Served. – The writ shall be served upon the respondent by a judicial officer or by a person deputized by the court, justice or judge who shall retain a copy on which to make a return of service. In case the writ cannot be served personally on the respondent, the rules on substituted service shall apply. SEC. 9. Return Contents. – Within seventy-two (72) hours after service of the writ, the respondent shall file a verified written return together with supporting affidavits which shall, among other things, contain the following: (a) The lawful defenses to show that the respondent did not violate or threaten with violation the right to life, liberty and security of the aggrieved party, through any act or omission; (b) The steps or actions taken by the respondent to determine the fate or whereabouts of the aggrieved party and the person or persons responsible for the threat, act or omission; (c) All relevant information in the possession of the respondent pertaining to the threat, act or omission against the aggrieved party; and

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Pearl remedial reviewer (d) If the respondent is a public official or employee, the return shall further state the actions that have been or will still be taken: (i) to verify the identity of the aggrieved party; (ii) to recover and preserve evidence related to the death or disappearance of the person identified in the petition which may aid in the prosecution of the person or persons responsible; (iii) to identify witnesses and obtain statements from them concerning the death or disappearance; (iv) to determine the cause, manner, location and time of death or disappearance as well as any pattern or practice that may have brought about the death or disappearance; (v) to identify and apprehend the person or persons involved in the death or disappearance; and (vi) to bring the suspected offenders before a competent court. The return shall also state other matters relevant to the investigation, its resolution and the prosecution of the case. A general denial of the allegations in the petition shall not be allowed. SEC. 10. Defenses not Pleaded Deemed Waived. — All defenses shall be raised in the return, otherwise, they shall be deemed waived. SEC. 11. Prohibited Pleadings and Motions. – The following pleadings and motions are prohibited: (a) Motion to dismiss; (b) Motion for extension of time to file return, opposition, affidavit, position paper and other pleadings; (c) Dilatory motion for postponement; (d) Motion for a bill of particulars; (e) Counterclaim or cross-claim; (f) Third-party complaint; (g) Reply; (h) Motion to declare respondent in default; (i) Intervention; (j) Memorandum; (k) Motion for reconsideration of interlocutory orders or interim relief orders; and (l) Petition for certiorari, mandamus or prohibition against any interlocutory order. SEC. 12. Effect of Failure to File Return. — In case the respondent fails to file a return, the court, justice or judge shall proceed to hear the petition ex parte. SEC. 13. Summary Hearing. — The hearing on the petition shall be summary. However, the court, justice or judge may call for a preliminary conference to simplify the issues and determine the possibility of obtaining stipulations and admissions from the parties. The hearing shall be from day to day until completed and given the same priority as petitions for habeas corpus. SEC. 14. Interim Reliefs. — Upon filing of the petition or at anytime before final judgment, the court, justice or judge may grant any of the following reliefs: (a) 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 involved. The Supreme Court shall accredit the persons and private institutions that shall extend temporary protection to the petitioner or the aggrieved party and any member of the immediate family, in accordance with guidelines which it shall issue. The accredited persons and private institutions shall comply with the rules and conditions that may be imposed by the court, justice or judge. (b) Inspection Order. — The court, justice or judge, upon verified motion and after due hearing, may order any person in possession or control of a designated land or other property, to permit entry for the purpose of inspecting, measuring, surveying, or photographing the property or any relevant object or operation thereon. The motion shall state in detail the place or places to be inspected. It shall be supported by affidavits or testimonies of witnesses having personal knowledge of

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Pearl remedial reviewer the enforced disappearance or whereabouts of the aggrieved party. If the motion is opposed on the ground of national security or of the privileged nature of the information, the court, justice or judge may conduct a hearing in chambers to determine the merit of the opposition. The movant must show that the inspection order is necessary to establish the right of the aggrieved party alleged to be threatened or violated. The inspection order shall specify the person or persons authorized to make the inspection and the date, time, place and manner of making the inspection and may prescribe other conditions to protect the constitutional rights of all parties. The order shall expire five (5) days after the date of its issuance, unless extended for justifiable reasons. (c) Production Order. – The court, justice or judge, upon verified motion and after due hearing, may order any person in possession, custody or control of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, or objects in digitized or electronic form, which constitute or contain evidence relevant to the petition or the return, to produce and permit their inspection, copying or photographing by or on behalf of the movant. The motion may be opposed on the ground of national security or of the privileged nature of the information, in which case the court, justice or judge may conduct a hearing in chambers to determine the merit of the opposition. The court, justice or judge shall prescribe other conditions to protect the constitutional rights of all the parties. (d) Witness Protection Order. – The court, justice or judge, upon motion or motu proprio, may refer the witnesses to the Department of Justice for admission to the Witness Protection, Security and Benefit Program, pursuant to Republic Act No. 6981. The court, justice or judge may also refer the witnesses to other government agencies, or to accredited persons or private institutions capable of keeping and securing their safety. SEC. 15. Availability of Interim Reliefs to Respondent. – Upon verified motion of the respondent and after due hearing, the court, justice or judge may issue an inspection order or production order under paragraphs (b) and (c) of the preceding section. A motion for inspection order under this section shall be supported by affidavits or testimonies of witnesses having personal knowledge of the defenses of the respondent. SEC. 16. Contempt. – The court, justice or judge may order the respondent who refuses to make a return, or who makes a false return, or any person who otherwise disobeys or resists a lawful process or order of the court to be punished for contempt. The contemnor may be imprisoned or imposed a fine. SEC. 17. Burden of Proof and Standard of Diligence Required. – The parties shall establish their claims by substantial evidence. The respondent who is a private individual or entity must prove that ordinary diligence as required by applicable laws, rules and regulations was observed in the performance of duty. The respondent who is a public official or employee must prove that extraordinary diligence as required by applicable laws, rules and regulations was observed in the performance of duty. The respondent public official or employee cannot invoke the presumption that official duty has been regularly performed to evade responsibility or liability. SEC. 18. Judgment. — The court shall render judgment within ten (10) days from the time the petition is submitted for decision. If the allegations in the petition are proven by substantial evidence, the court shall grant the privilege of the writ and such reliefs as may be proper and appropriate; otherwise, the privilege shall be denied. SEC. 19. Appeal. – Any party may appeal from the final judgment or order to the Supreme Court under Rule 45. The appeal may raise questions of fact or law or both. The period of appeal shall be five (5) working days from the date of notice of the adverse judgment. The appeal shall be given the same priority as in habeas corpus cases. SEC. 20. Archiving and Revival of Cases. – The court shall not dismiss the petition,

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Pearl remedial reviewer but shall archive it, if upon its determination it cannot proceed for a valid cause such as the failure of petitioner or witnesses to appear due to threats on their lives. A periodic review of the archived cases shall be made by the amparo court that shall, motu proprio or upon motion by any party, order their revival when ready for further proceedings. The petition shall be dismissed with prejudice upon failure to prosecute the case after the lapse of two (2) years from notice to the petitioner of the order archiving the case. The clerks of court shall submit to the Office of the Court Administrator a consolidated list of archived cases under this Rule not later than the first week of January of every year. SEC. 21. Institution of Separate Actions. — This Rule shall not preclude the filing of separate criminal, civil or administrative actions. SEC. 22. Effect of Filing of a Criminal Action. – When a criminal action has been commenced, no separate petition for the writ shall be filed. The reliefs under the writ shall be available by motion in the criminal case. The procedure under this Rule shall govern the disposition of the reliefs available under the writ of amparo. SEC. 23. 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. After consolidation, the procedure under this Rule shall continue to apply to the disposition of the reliefs in the petition. SEC. 24. Substantive Rights. — This Rule shall not diminish, increase or modify substantive rights recognized and protected by the Constitution. SEC. 25. Suppletory Application of the Rules of Court. – The Rules of Court shall apply suppletorily insofar as it is not inconsistent with this Rule. SEC. 26. Applicability to Pending Cases. – This Rule shall govern cases involving extralegal killings and enforced disappearances or threats thereof pending in the trial and appellate courts. SEC. 27. Effectivity. – This Rule shall take effect on October 24, 2007, following its publication in three (3) newspapers of general circulation. A.M. No. 07-7-12-SC AMENDMENTS TO RULES 41, 45, 58 AND 65 OF THE RULES OF COURT RESOLUTION Effect on December 27. 2007 AMENDMENTS TO RULES 41, 45, 58 AND 65 OF THE RULES OF COURT RULE 41 SECTION 1. Subject of appeal. – An appeal may be taken from a judgment or final order that completely disposes of the case, or of a particular matter therein when declared by these Rules to be appealable. No appeal may be taken from: (a) An order denying a petition for relief or any similar motion seeking relief from judgment; (b) An interlocutory order; (c) An order disallowing or dismissing an appeal; (d) An order denying a motion to set aside a judgment by consent, confession or compromise on the ground of fraud, mistake or duress, or any other ground vitiating consent; (e) An order of execution; (f) A judgment or final order for or against one or more of several parties or in separate claims, counterclaims, crossclaims and third-party complaints, while the main case is pending, unless the court allows an appeal therefrom; and (g) An order dismissing an action without prejudice. In any of the foregoing circumstances, the aggrieved party may file an appropriate special civil action as provided in Rule 65. RULE 45 SECTION 1. Filing of petition with Supreme Court. – A party desiring to appeal by certiorari from a judgment, final order or resolution of the Court of Appeals, the Sandiganbayan, the Court of Tax Appeals, the Regional Trial Court or other courts, whenever authorized by law, may file with the Supreme Court a verified petition for

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Pearl remedial reviewer 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. RULE 58 SEC. 5. Preliminary injunction not granted without notice; exception. – No preliminary injunction shall be granted without hearing and prior notice to the party or persons sought to be enjoined. If it shall appear from facts shown by affidavits or by the verified application that great or irreparable injury would result to the applicant before the matter can be heard on notice, the court to which the application for preliminary injunction was made, may issue ex parte a temporary restraining order to be effective only for a period of twenty (20) days from service on the party or person sought to be enjoined, except as herein provided. Within the twenty-day period, the court must order said party or person to show cause at a specified time and place, why the injunction should not be granted. The court shall also determine, within the same period, whether or not the preliminary injunction shall be granted, and accordingly issue the corresponding order. However, subject to the provisions of the preceding sections, if the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury, the executive judge of a multiplesala court or the presiding judge of a single-sala court may issue ex parte a temporary restraining order effective for only seventy-two (72) hours from issuance, but shall immediately comply with the provisions of the next preceding section as to service of summons and the documents to be served therewith. Thereafter, within the aforesaid seventytwo (72) hours, the judge before whom the case is pending shall conduct a summary hearing to determine whether the temporary restraining order shall be extended until the application for preliminary injunction can be heard. In no case shall the total period of effectivity of the temporary restraining order exceed twenty (20) days, including the original seventy-two hours provided herein. In the event that the application for preliminary injunction is denied or not resolved within the said period, the temporary restraining order is deemed automatically vacated. The effectivity of a temporary restraining order is not extendible without need of any judicial declaration to that effect, and no court shall have authority to extend or renew the same on the same ground for which it was issued. However, if issued by the Court of Appeals or a member thereof, the temporary restraining order shall be effective for sixty (60) days from service on the party or person sought to be enjoined. A restraining order issued by the Supreme Court or a member thereof shall be effective until further orders. The trial court, the Court of Appeals, the Sandiganbyan or the Court of Tax Appeals that issued a writ of preliminary injunction against a lower court, board, officer, or quasi-judicial agency shall decide the main case or petition within six (6) months from the issuance of the writ. RULE 65 Sec. 4. When and where to file the petition. – The petition shall be filed not later than sixty (60) days from notice of the judgment, order or resolution. In case a motion for reconsideration or new trial is timely filed, whether such motion is required or not, the petition shall be filed not later than sixty (60) days counted from the notice of the denial of the motion. If the petition relates to an act or an omission of a municipal trial court or of a corporation, a board, an officer or a person, it shall be filed with the Regional Trial Court exercising jurisdiction over the territorial area as defined by the Supreme Court. It may also be filed with the Court of Appeals or with the Sandiganbayan, whether or not the same is in aid of the court’s appellate jurisdiction. If the petition involves an act or an omission of a quasi-judicial agency, unless otherwise provided by law or these rules, the

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Pearl remedial reviewer petition shall be filed with and be cognizable only by the Court of Appeals. In election cases involving an act or an omission of a municipal or a regional trial court, the petition shall be filed exclusively with the Commission on Elections, in aid of its appellate jurisdiction. Sec. 7. Expediting proceedings; injunctive relief. – The court in which the petition is filed may issue orders expediting the proceedings, and it may also grant a temporary restraining order or a writ of preliminary injunction for the preservation of the rights of the parties pending such proceedings. The petition shall not interrupt the course of the principal case, unless a temporary restraining order or a writ of preliminary injunction has been issued, enjoining the public respondent from further proceeding with the case. The public respondent shall proceed with the principal case within ten (10) days from the filing of a petition for certiorari with a higher court or tribunal, absent a temporary restraining order or a preliminary injunction, or upon its expiration. Failure of the public respondent to proceed with the principal case may be a ground for an administrative charge. Sec. 8. Proceedings after comment is filed. – 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. If, after such hearing or filing of memoranda or upon the expiration of the period for filing, the court finds that the allegations of the petition are true, it shall render judgment for such relief to which the petitioner is entitled. However, the court may dismiss the petition if it finds the same patently without merit or prosecuted manifestly for delay, or if the questions raised therein are too unsubstantial to require consideration. In such event, the court may award in favor of the respondent treble costs solidarily against the petitioner and counsel, in addition to subjecting counsel to administrative sanctions under Rules 139 and 139-B of the Rules of Court. The Court may impose motu proprio, based on res ipsa loquitur, other disciplinary sanctions or measures on erring lawyers for patently dilatory and unmeritorious petitions for certiorari. Salient Points of the Amendments to Rules 41, 45, 58 and 65 of the Rules of Court Rule 41 (Appeal from the Regional Trial Courts) * Under the former provision, no appeal may be taken from “[a]n order denying a motion for new trial or reconsideration.” This was already removed in the amendment. In Neypes vs. Court of Appeals (G.R. No. 141524, 14 September 2005) the SC noted that to “standardize the appeal periods provided in the Rules and to afford litigants fair opportunity to appeal their cases, the Court deems it practical to allow a fresh period of 15 days within which to file the notice of appeal in the Regional Trial Court, counted from receipt of the order dismissing a motion for a new trial or motion for reconsideration.” The SC also stated that “[h]enceforth, this ‘fresh period rule’ shall also apply to Rule 40 governing appeals from the Municipal Trial Courts to the Regional Trial Courts; Rule 42 on petitions for review from the Regional Trial Courts to the Court of Appeals; Rule 43 on appeals from quasi-judicial agencies to the Court of Appeals and Rule 45 governing appeals by certiorari to the Supreme Court. The new rule aims to regiment or make the appeal period uniform, to be counted from receipt of the order denying the motion for new trial, motion for reconsideration (whether full or partial) or any final order or resolution.” Rule 45 (Appeal by Certiorari to the Supreme Court) * Section 1 of Rule 45 was amended to include the Court of Tax Appeals (CTA) in the list of courts from which an appeal may be taken directly to the SC. The previous mode of appeal from a CTA decision is to the Court of Appeals (CA), through Rule 43. This is no longer the case since the CTA is of the same rank as the CA. Republic Act No. 9282 (2004) provides

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Pearl remedial reviewer that the CTA “shall be of the same level as the Court of Appeals.” * Section 1 now provides that the “petition may include an application for a writ of preliminary injunction or other provisional remedies” and that “[t]he petitioner may seek the same provisional remedies by verified motion filed in the same action or proceeding at any time during its pendency.” Rule 58 (Preliminary Injunction) * The following provision had been added to Section 5 of Rule 58: “The trial court, the Court of Appeals, the Sandiganbyan or the Court of Tax Appeals that issued a writ of preliminary injunction against a lower court, board, officer, or quasi-judicial agency shall decide the main case or petition within six (6) months from the issuance of the writ.” * Before the amendment, the language used with respect to the effectivity for a Temporary Restraining Order (TRO) issued by lower courts is 20 days (or 60 days when issued by the CA) “from notice to the party or person sought to be enjoined.” The amendment uses “service,” instead of “notice.” Rule 65 (Certiorari, Prohibition and Mandamus) * The Rules of Court provides that a petition for certiorari “shall be filed in the Supreme Court or xxx.” The amendment removed the SC form the enumeration of courts where the petition may be filed (Section 4). This amendment, however, does not mean that no petition for certiorari may be filed with the SC, as the Constitution (Sec. 5, Article VIII) explicitly provides that the SC has original jurisdiction over “petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus.” * The amendment also removed the provision on extension of time to file the petition. This provision is no longer existent: “No extension of time to file the petition shall be granted except for compelling reasons and in no case exceeding fifteen (15) days.” * The amendment added this provision in Sec. 4: “In election cases involving an act or an omission of a municipal or a regional trial court, the petition shall be filed exclusively with the Commission on Elections, in aid of its appellate jurisdiction.” * The amendment also added this provision in Sec. 7 (“Expediting proceedings; injunctive relief”): “The public respondent shall proceed with the principal case within ten (10) days from the filing of a petition for certiorari with a higher court or tribunal, absent a temporary restraining order or a preliminary injunction, or upon its expiration. Failure of the public respondent to proceed with the principal case may be a ground for an administrative charge.” * The old provision in Sec. 8 (“Proceedings after comment is filed”) provides that “the court may dismiss the petition if it finds the same patently without merit or prosecuted manifestly for delay, or if the questions raised therein are too unsubstantial to require consideration.” The amendment provides for additional sanctions in case of abuse of the process, thus: “In such event, the court may award in favor of the respondent treble costs solidarily against the petitioner and counsel, in addition to subjecting counsel to administrative sanctions under Rules 139 and 139-B of the Rules of Court.” This is a clear warning on parties and their counsels. * Such warning is made even clearer with the addition of this provision, also in Sec. 8: “The Court may impose motu proprio, based on res ipsa loquitur, other disciplinary sanctions or measures on erring lawyers for patently dilatory and unmeritorious petitions for certiorari.” THE RULE ON THE WRIT OF HABEAS DATA [A.M. No. 08-1-16-SC take effect on February 2, 2008] SECTION 1. Habeas Data.—The writ of habeas data is a remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting or storing of data or

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Pearl remedial reviewer information regarding the person, family, home and correspondence of the aggrieved party. SEC. 2. Who May File.—Any aggrieved party may file a petition for the writ of habeas data. However, in cases of extralegal killings and enforced disappearances, the petition may be filed by: (a) Any member of the immediate family of the aggrieved party, namely: the spouse, children and parents; or (b) Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity, in default of those mentioned in the preceding paragraph. SEC. 3. Where to File.—The petition may be filed with the Regional Trial Court where the petitioner or respondent resides, or that which has jurisdiction over the place where the data or information is gathered, collected or stored, at the option of the petitioner. The petition may also be filed with the Supreme Court or the Court of Appeals or the Sandiganbayan when the action concerns public data files of government offices. SEC. 4. Where Returnable; Enforceable.— When the writ is issued by a Regional Trial Court or any judge thereof, it shall be returnable before such court or judge. When issued by the Court of Appeals or the Sandiganbayan or any of its justices, it may be returnable before such court or any justice thereof, or to any Regional Trial Court of the place where the petitioner or respondent resides, or that which has jurisdiction over the place where the data or information is gathered, collected or stored. When issued by the Supreme Court or any of its justices, it may be returnable before such Court or any justice thereof, or before the Court of Appeals or the Sandiganbayan or any of its justices, or to any Regional Trial Court of the place where the petitioner or respondent resides, or that which has jurisdiction over the place where the data or information is gathered, collected or stored. The writ of habeas data shall be enforceable anywhere in the Philippines. SEC. 5. Docket Fees.—No docket and other lawful fees shall be required from an indigent petitioner. The petition of the indigent shall be docketed and acted upon immediately, without prejudice to subsequent submission of proof of indigency not later than fifteen (15) days from the filing of the petition. SEC. 6. Petition.—A verified written petition for a writ of habeas data should contain: (a) The personal circumstances of the petitioner and the respondent; (b) The manner the right to privacy is violated or threatened and how it affects the right to life, liberty or security of the aggrieved party; (c) The actions and recourses taken by the petitioner to secure the data or information; (d) The location of the files, registers or databases, the government office, and the person in charge, in possession or in control of the data or information, if known; (e) The reliefs prayed for, which may include the updating, rectification, suppression or destruction of the database or information or files kept by the respondent. In case of threats, the relief may include a prayer for an order enjoining the act complained of; and (f) Such other relevant reliefs as are just and equitable. SEC. 7. Issuance of the Writ.—Upon the filing of the petition, the court, justice or judge shall immediately order the issuance of the writ if on its face it ought to issue. The clerk of court shall issue the writ under the seal of the court and cause it to be served within three (3) days from its issuance; or, in case of urgent necessity, the justice or judge may issue the writ under his or her own hand, and may deputize any officer or person to serve it. The writ shall also set the date and time for summary hearing of the petition which shall not be later than ten (10) work days from the date of its issuance. SEC. 8. Penalty for Refusing to Issue or Serve the Writ.—A clerk of court who refuses to issue the writ after its allowance, or a deputized person who

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Pearl remedial reviewer refuses to serve the same, shall be punished by the court, justice or judge for contempt without prejudice to other disciplinary actions. SEC. 9. How the Writ Is Served.—The writ shall be served upon the respondent by the officer or person deputized by the court, justice or judge who shall retain a copy on which to make a return of service. In case the writ cannot be served personally on the respondent, the rules on substituted service shall apply. SEC. 10. Return; Contents.—The respondent shall file a verified written return together with supporting affidavits within five (5) work days from service of the writ, which period may be reasonably extended by the Court for justifiable reasons. The return shall, among other things, contain the following: (a) The lawful defenses such as national security, state secrets, privileged communication, confidentiality of the source of information of media and others; (b) In case of respondent in charge, in possession or in control of the data or information subject of the petition: (i) a disclosure of the data or information about the petitioner, the nature of such data or information, and the purpose for its collection; (ii) the steps or actions taken by the respondent to ensure the security and confidentiality of the data or information; and (iii) the currency and accuracy of the data or information held; and (c) Other allegations relevant to the resolution of the proceeding. A general denial of the allegations in the petition shall not be allowed. SEC. 11. Contempt.—The court, justice or judge may punish with imprisonment or fine a respondent who commits contempt by making a false return, or refusing to make a return; or any person who otherwise disobeys or resists a lawful process or order of the court. SEC. 12. When Defenses May Be Heard in Chambers.—A hearing in chambers may be conducted where the respondent invokes the defense that the release of the data or information in question shall compromise national security or state secrets, or when the data or information cannot be divulged to the public due to its nature or privileged character. SEC. 13. Prohibited Pleadings and Motions. —The following pleadings and motions are prohibited: (a) Motion to dismiss; (b) Motion for extension of time to file opposition, affidavit, position paper and other pleadings; (c) Dilatory motion for postponement; (d) Motion for a bill of particulars; (e) Counterclaim or cross-claim; (f) Third-party complaint; (g) Reply; (h) Motion to declare respondent in default; (i) Intervention; (j) Memorandum; (k) Motion for reconsideration of interlocutory orders or interim relief orders; and (l) Petition for certiorari, mandamus or prohibition against any interlocutory order. SEC. 14. Return; Filing.—In case the respondent fails to file a return, the court, justice or judge shall proceed to hear the petition ex parte, granting the petitioner such relief as the petition may warrant unless the court in its discretion requires the petitioner to submit evidence. SEC. 15. Summary Hearing.—The hearing on the petition shall be summary. However, the court, justice or judge may call for a preliminary conference to simplify the issues and determine the possibility of obtaining stipulations and admissions from the parties. SEC. 16. Judgment.—The court shall render judgment within ten (10) days from the time the petition is submitted for decision. If the allegations in the petition are proven by substantial evidence, the court shall enjoin the act complained of, or order the deletion, destruction, or rectification of the erroneous data or information and grant other relevant reliefs as may be just and equitable; otherwise, the privilege of the writ shall be denied. Upon its finality, the judgment shall be enforced by the sheriff or any lawful officer as may be designated by the court, justice or judge within five (5) work days.

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Pearl remedial reviewer SEC. 17. Return of Service.—The officer who executed the final judgment shall, within three (3) days from its enforcement, make a verified return to the court. The return shall contain a full statement of the proceedings under the writ and a complete inventory of the database or information, or documents and articles inspected, updated, rectified, or deleted, with copies served on the petitioner and the respondent. The officer shall state in the return how the judgment was enforced and complied with by the respondent, as well as all objections of the parties regarding the manner and regularity of the service of the writ. SEC. 18. Hearing on Officer’s Return.—The court shall set the return for hearing with due notice to the parties and act accordingly. SEC. 19. Appeal.—Any party may appeal from the judgment or final order to the Supreme Court under Rule 45. The appeal may raise questions of fact or law or both. The period of appeal shall be five (5) work days from the date of notice of the judgment or final order. The appeal shall be given the same priority as habeas corpus and amparo cases. SEC. 20. Institution of Separate Actions.— The filing of a petition for the writ of habeas data shall not preclude the filing of separate criminal, civil or administrative actions. SEC. 21. 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 habeas data, the petition shall be consolidated with the criminal action. After consolidation, the procedure under this Rule shall continue to govern the disposition of the reliefs in the petition. SEC. 22. Effect of Filing of a Criminal Action.—When a criminal action has been commenced, no separate petition for the writ shall be filed. The reliefs under the writ shall be available to an aggrieved party by motion in the criminal case. The procedure under this Rule shall govern the disposition of the reliefs available under the writ of habeas data. SEC. 23. Substantive Rights.—This Rule shall not diminish, increase or modify substantive rights. SEC. 24. Suppletory Application of the Rules of Court.—The Rules of Court shall apply suppletorily insofar as it is not inconsistent with this Rule. SEC. 25. Effectivity.—This Rule shall take effect on February 2, 2008 following its publication in three (3) newspapers of general circulation.

What is the writ of habeas data? It is a remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party. What rule governs petitions for and the issuance of a writ of habeas data? It is governed by The Rule on the Writ of Habeas Data (A.M. No. 08-1-16-SC full text), which was approved by the Supreme Court on 22 January 2008. That Rule shall not diminish, increase or modify substantive rights. What is the Supreme Court’s basis in issuing the Rule? The Rule was drafted pursuant to the Supreme Court’s constitutional power to promulgate rules for the protection and enforcement of constitutional rights (Constitution, Art. VIII, Sec. 5[5]). When does the Rule take effect? The Rule takes effect on 2 February 2008, following its publication in three (3) newspapers of general circulation.

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Who may file a petition for the issuance of a writ of habeas data? The petition may be filed by the aggrieved party. However, in cases of extralegal killings and enforced disappearances, the petition may be filed by: (a) Any member of the immediate family of the aggrieved party, namely: the spouse, children and parents; or (b) Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity, in default of those mentioned in the preceding paragraph. Where can the petition be filed? a. Regional Trial Court where the petitioner or respondent resides, or that which has jurisdiction over the place where the data or information is gathered, collected or stored, at the option of the petitioner. b. Supreme Court; c. Court of Appeals; or d. Sandiganbayan, when the action concerns public data files of government offices. How much is the docket or filing fees for the petition? No docket and other lawful fees shall be required from an indigent petitioner. The petition of the indigent shall be docketed and acted upon immediately, without prejudice to subsequent submission of proof of indigency not later than 15 days from the filing of the petition. What are the required contents of the petition? The verified written petition shall allege the following: (a) The personal circumstances of the petitioner and the respondent; (b) The manner the right to privacy is violated or threatened and how it

affects the right to life, liberty or security of the aggrieved party; (c) The actions and recourses taken by the petitioner to secure the data or information; (d) The location of the files, registers or databases, the government office, and the person in charge, in possession or in control of the data or information, if known; (e) The reliefs prayed for, which may include the updating, rectification, suppression or destruction of the database or information or files kept by the respondent. In case of threats, the relief may include a prayer for an order enjoining the act complained of; and (f) Such other relevant reliefs as are just and equitable. When is the writ of habeas data issued? Upon the filing of the petition, the court, justice or judge shall immediately order the issuance of the writ if on its face it ought to issue. The clerk of court shall issue the writ under the seal of the court and cause it to be served within three (3) days from its issuance; or, in case of urgent necessity, the justice or judge may issue the writ under his or her own hand, and may deputize any officer or person to serve it. The writ shall also set the date and time for summary hearing of the petition which shall not be later than ten (10) work days from the date of its issuance. Is there any penalty in case of refusal to issue or serve the writ? Yes. A clerk of court who refuses to issue the writ after its allowance, or a deputized person who refuses to serve the same, shall be punished by the court, justice or judge for contempt without prejudice to other disciplinary actions.

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How is the writ of habeas data served? The writ shall be served upon the respondent by the officer or person deputized by the court, justice or judge who shall retain a copy on which to make a return of service. In case the writ cannot be served personally on the respondent, the rules on substituted service shall apply. After the writ is served, what should the respondent do? The respondent shall file a verified written return together with supporting affidavits within five (5) work days from service of the writ, which period may be reasonably extended by the Court for justifiable reasons. What are the contents of the written return? The return shall, among other things, contain the following: (a) The lawful defenses such as national security, state secrets, privileged communication, confidentiality of the source of information of media and others; (b) In case of respondent in charge, in possession or in control of the data or information subject of the petition: (i) a disclosure of the data or information about the petitioner, the nature of such data or information, and the purpose for its collection; (ii) the steps or actions taken by the respondent to ensure the security and confidentiality of the data or information; and (iii) the currency and accuracy of the data or information held; and (c) Other allegations relevant to the resolution of the proceeding. A general denial of the allegations in the petition shall not be allowed. What happens if the respondent makes a false return or refuses to

make a return; or if any person who disobeys or resists a lawful process or order of the court? That person may be punished with imprisonment or fine. Also, when the respondent fails to file a return, the court, justice or judge shall proceed to hear the petition ex parte, granting the petitioner such relief as the petition may warrant unless the court in its discretion requires the petitioner to submit evidence. Instead of having the hearing in open court, can it be done in chambers? Yes. It can be done when the respondent invokes the defense that the release of the data or information in question shall compromise national security or state secrets, or when the data or information cannot be divulged to the public due to its nature or privileged character. What is the nature of the hearing on the petition? The hearing on the petition shall be summary. However, the court, justice or judge may call for a preliminary conference to simplify the issues and determine the possibility of obtaining stipulations and admissions from the parties. How long does the court have in deciding the petition? The court shall render judgment within ten (10) days from the time the petition is submitted for decision. If the allegations in the petition are proven by substantial evidence, the court shall enjoin the act complained of, or order the deletion, destruction, or rectification of the erroneous data or information and grant other relevant reliefs as may be just and equitable; otherwise, the privilege of the writ shall be denied.

86

Pearl remedial reviewer

What happens after the finality of the judgment? Upon its finality, the judgment shall be enforced by the sheriff or any lawful officer as may be designated by the court, justice or judge within five (5) work days. The officer who executed the final judgment shall, within three (3) days from its enforcement, make a verified return to the court. The return shall contain a full statement of the proceedings under the writ and a complete inventory of the database or information, or documents and articles inspected, updated, rectified, or deleted, with copies served on the petitioner and the respondent. The officer shall state in the return how the judgment was enforced and complied with by the respondent, as well as all objections of the parties regarding the manner and regularity of the service of the writ. The court shall set the return for hearing with due notice to the parties and act accordingly. Does the filing of the petition preclude the filing of separate criminal, civil or administrative actions? No. However, when a criminal action has been commenced, no separate petition for the writ shall be filed, but the reliefs under the writ shall be available by motion in the criminal case, and the procedure under this Rule shall govern the disposition of the reliefs available under the writ of habeas data. When a criminal action and a separate civil action are filed subsequent to a petition for a writ of habeas data, the petition shall be consolidated with the criminal action. After consolidation, the procedure under this Rule shall continue to govern the disposition of the reliefs in the petition.

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